Case Information
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 92-N-870 (OES) (Consolidated for all purposes with Civil Action No. 96-N343)
JESSE MONTEZ, et al. Plaintiffs, -OCT - 52005 -vs.- BILL OWENS, et al. Defendants.
Claim Number 03-120 Category III Claimant: Edward Kaneta, #48404 Address of Claimant: SCF, P.O. Box 6000, Sterling, CO 80751-6000
FINAL ORDER OF SPECIAL MASTER
THIS MATTER came before the Special Master for hearing on September 23, 2005. This hearing was held at the Sterling Correctional Facility (SCF) in Sterling, Colorado. Present were the following: Edward Kaneta (Claimant); and Jess Dance, attorney for Defendants.
Testimony was received from Claimant. All documentation previously submitted by both sides was accepted. Claimant did not offer into evidence any exhibits. Defendants offered Exhibits A through N, and all were admitted. After final closing arguments, the case was taken under advisement. This order shall constitute the final action by the Special Master on this specific claim.
I.
This litigation was commenced in 1992 against then-Governor Roy Romer and various officials of the Colorado Department of Corrections (DOC). The case was brought under the Americans with Disabilities Act, 42 U.S.C. 12101 \ . During the summer of 2003, the parties began the process of trying to reach a settlement of all issues. The Remedial Plan was the end result of negotiations between counsel for the Class and counsel for Defendants. Judge Nottingham was not involved in the negotiation of the provisions of the
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settlement document. [1] Once the provisions and terms of the settlement were agreed upon by counsel for the Class and counsel for Defendants, the Court was notified that a settlement had been reached between members of the class and Defendants. Judge Nottingham set the case for a fairness hearing.
On August 27, 2003, the Remedial Plan (Settlement Agreement) was presented to Judge Nottingham. After consideration of objections that had been filed by various individuals, Judge Nottingham determined that the Settlement Agreement should be approved. That approval established the class and did not provide for an opt out provision for any individual. The Settlement Agreement also set up a mechanism for individual inmates, former inmates, or their representatives to file a claim seeking damages or some other remedy available in court.
Section XXXII of the Settlement Agreement provided the basis for the filing of claims for damages and/or for other relief. This section states, in part, as follows:
Claim forms will then be sent to the Special Master. The Special Master shall then determine which of the following five categories of damages shall apply to each class member: I. General inconvenience or nominal damages; II. Damages due to loss of good time, earned time, access to programs or services that have not resulted in physical injury; III. Damages due to actual non-severe physical injuries or non-nominal emotional injuries (such as the fear of death); IV. Damages due to severe physical injuries; and V. Damages due to death.
Only one of the above categories may be applied to each class member. For instance, a class member with both inconvenience damages and non-severe physical injuries will be designated as a Category 3.
Settlement Agreement, pp.28-29. Pursuant to this provision, Claimant filed his claim and requested that the Special Master award appropriate damages or relief.
The Settlement Agreement in Section III provides the following definitions:
III. DEFINITIONS
A. COVERED DISABILITIES
The persons covered by this Plan are individuals with mobility, hearing, and vision impairments and inmates with diabetes. B. QUALIFIED INMATE
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Inmate with a permanent disability/impairment which substantially limits his or her ability to perform a major life activity. C. PERMANENT DISABILITY/IMPAIRMENT
A condition which is not expected to improve within six months. The Settlement Agreement further goes on to discuss categories and criteria for special placement. Settlement Agreement, Section V, Paragraph A. Permanent mobility impairments are limited to "[i]nmates who use wheelchairs full or part time due to a permanent disability" or "[i]nmates who do not require a wheelchair but who have a permanent lower extremity mobility impairment that substantially limits walking...."
The Settlement Agreement further provides, in part, as follows:
2. Permanent Hearing Impairments
Inmates who are permanently deaf or who have a permanent hearing impairment so severe that they must rely on written communication, lip reading, or signing because their residual hearing, with aids, does not enable them either to communicate effectively or hear an emergency warning. 3. Permanent Vision Impairment
Inmates who are permanently blind or who have a vision impairment not correctable to central vision acuity of 20/200 or better, even with corrective lenses. 4. Permanent Diabetics: Insulin or Non Insulin Dependent Diabetic
Inmates who are diabetic and who are or are not dependent on insulin for regulation and require accessible housing to accommodate their disabilities.
Settlement Agreement, Section V, Paragraph A. These definitions control as to implementation of the Settlement Agreement and adjudication of all claims filed by individuals.
On November 23, 2004, Judges Nottingham and Kane issued an order that set forth the criteria that must be utilized in adjudicating a claim. They stated, in part, as follows: 2. The Special Masters shall evaluate individual damage claims submitted in this case by considering the following questions:
- Is the claimant a disabled individual who is a member of the class?
- Was the claimant otherwise qualified to participate in the programs or receive the benefits or services offered by DOC?
- Was the claimant discriminated against by DOC because of his or her disability? (e.g., were accommodations requested and denied because of the disability?)
- Did this conduct cause the claimant harm and if so, what is an appropriate remedy?
This order controls the adjudication of all claims and must be followed by the Special Masters. Any
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claimant must establish by a preponderance of evidence each of the four criteria.
II.
The Settlement Agreement provides that all claims assigned to Category III are to receive a hearing. The Special Master will detail briefly the testimony elicited from the witnesses called by Claimant.
Claimant came into the custody of DOC in 1981. He has been placed at various correctional facilities over the years. As a child, he was diagnosed with osteomyelitis. This condition leads to deterioration of bones. Claimant believes that this condition continues, and he has been advised that his leg may deteriorate and break in the future. Infection may remain within the bone that was the result of a flare up of this condition.
Claimant has been incarcerated at SCF for approximately two years. He was evaluated by medical staff at SCF and was told that he just had arthritis. Claimant believes that this diagnosis is incorrect, as he believes that the osteomyeltis still is present in his bones. Claimant testified that he found it difficult to walk but that he forced himself to go to the chow hall each day. He requested medication for his osteomyelitis and other health issues, but was told that the medications requested were too expensive. He further asked to see a medical specialist, but that request was denied.
Claimant further testified that he was denied pain medication. He was told to buy aspirin from the Canteen. He stated that his right leg is shorter than his left. He had a brace for his leg while he was placed at the Crowley County Correctional Facility (CCCF) in Olney Springs, Colorado. Claimant is presently working as a porter in the program building. He is allowed to complete his work at his own schedule.
In explaining his present condition, Claimant indicated that he cannot run, but can walk a lap at the track. He can play sports a little, but with pain.
When asked how he has been subjected to discrimination, Claimant testified that he has not received appropriate medical care. DOC medical staff told him that nothing can be done and that he should buy aspirin from the Canteen for his pain. His ankle swells and hurts. He indicated that he filed his claim as he "was hoping to get help."
Medication for the pain is the first order of priority for Claimant. He believes that surgery will be a last resort. Claimant believes that DOC will not pay for medical care that is expensive. He would like to get his ankle repaired so the pain will stop. He would like the medical treatment that he deserves.
On cross-examination, Claimant testified that he believed that he had not received appropriate medical care. Her stated that he would like pain medication. He responded to a question by indicating the he is able to walk. In rebuttal, Claimant testified that he would like to see a
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specialist.
III.
The Special Master must examine the evidence in light of the four questions set forth by Judges Nottingham and Kane in their order of November 23, 2004. Each will be taken separately.
- Is the Claimant a disabled individual who is a member of the class? Based upon all of the evidence presented, the Special Master determines that Claimant had a mobility disability on August 27, 2003. Claimant is a member of the class.
- Was the Claimant otherwise qualified to participate in the programs or receive the benefits or services offered by DOC.? Based upon the testimony provided by both sides, the answer to this question is yes. Other than health issues, there does not appear to have been any disqualification from programs, benefits, or services for other reasons, such as disciplinary convictions.
- Was the Claimant discriminated against by DOC because of his or her disability? There was no evidence that would lead to the conclusion that Claimant had been the victim of discrimination prohibited by the ADA or Rehabilitation Act. Claimant takes issue with the medical care being provided to him at SCF. He believes that the diagnosis of only arthritis being present is wrong. He wants to see a specialist and have a determination made as to his present health.
On April 11, 2005, the United States Court of Appeals for the Tenth Circuit ruled that the ADA and Rehabilitation Act are not available for claims of substandard medical treatment. Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134, 1143 (10 Cir. 2005). Cases involving substandard care or medical negligence must be brought under the Eighth Amendment or pursuant to state statutes. The ADA and Rehabilitation Act are statutes that prevent discrimination that is premised upon a disability. A dispute about the scope and quality of medical care cannot be resolved under the ADA and Rehabilitation Act. All Eighth Amendment claims were dismissed by Judge Nottingham prior to the approval of the Settlement Agreement. To the extent that Claimant is questioning the care provided to him, that is beyond the jurisdiction of the Special Masters as set forth in the Settlement Agreement. In addition, the Special Masters have no jurisdiction over Eighth Amendment claims of medical practice or medical negligence under state law. Claimant may pursue separately any rights that he may have concerning his medical care. 4. Did this conduct cause the Claimant harm and if so, what is an appropriate remedy? Since the answers to Questions #1 and #3 are in the negative, this question does not need to be answered.
IT IS HEREBY ORDERED that the claim of Edward Kaneta is denied, as he has failed to prove by a preponderance of the evidence each of the four criteria set forth in the Order of November 23, 2004.
*6 IT IS FURTHER ORDERED that Claimant and Defendants are advised that they may file an objection to this Order pursuant to Federal Rule of Civil Procedure 53(g)(2), but said objection must be filed with the Clerk of the United States District Court, Street, Denver, CO 80294 on or before December 5, 2005.
SIGNED this day of September, 2005.
BY THE COURT:
Richard M. Borchers Special Master
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CERTIFICATE OF MAILING
I hereby certify that I have mailed a copy of the foregoing Order of Special Master this day of September, 2005 to the following:
Mr. Edward Kaneta #48404 SCF P.O. Box 6000
Sterling, CO P0751-6000 Mr. James X. Quinn Mr. Jess A. Dance Mr. Adam Wiens Office of the Attorney General Litigation Section 1525 Sherman Street, Floor Denver, CO 80203
NOTES
The Special Masters also were not involved in the negotiation of the Settlement Agreement. The Special Masters are bound by the provisions of that agreement, as they have only the jurisdiction agreed upon by the parties.