Makeen v. Colorado

AKEEM MAKEEN, Plaintiff, v. STATE OF COLORADO, DENVER CITY AND COUNTY, Defendants.

Civil Action No. 14-cv-03452-CMA-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

December 18, 2015

RECOMMENDATION REGARDING PENDING MOTIONS FOR INJUNCTIVE RELIEF

Magistrate Judge Shaffer

THIS MATTER comes before the court on pro se Plaintiff Akeem Makeen's Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #60) and Mr. Makeen's Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #103). The former motion seeks an order "requiring Defendants State of Colorado and Denver City and County to enforce the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, Colorado Anti-Discrimination Act ("CADA"), and C.R.S. § 13-90-201" by requiring "Defendants to appoint Ms. Leta Holden to serve as his note taker at every court hearing and . . . to compensate her at the rate of $300.00 an hour." The more recently filed motion for temporary injunctive relief asks the court to "direct [the] City to retain a competent attorney or other competent person to be Mr. Makeen['s] note taker."

Plaintiff's pursuit of preliminary injunctive relief has been persistent. Mr. Makeen filed a Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #24) on February 2, 2015. Defendant State of Colorado, as well as former Defendants Janel Bravo and Charla Branham (heretofore referred to as the "State Defendants"),¹ filed a Brief in Opposition (doc. #30) on February 23, 2015. That same day, Defendant Arapahoe County filed a separate Brief in Opposition (doc. #31). Mr. Makeen then filed a Reply to State Defendants' Brief in Opposition (doc. #36) on February 26, 2015, as well as a Supplemental Brief in Support of Plaintiff's Verified Petition and Application (doc. #51) on March 18, 2015. The latter submission prompted the State Defendants to file a Response to Plaintiff's Supplemental Brief (doc. # 61) on March 30, 2015. Mr. Makeen then filed a Reply to Defendant's Response (doc. #66) on April 7, 2015, which was followed by a Memorandum of Points and Authorities in Support of Plaintiff's Motion for Preliminary Injunction (doc. # 90) on May 1, 2015.

On April 1, 2015, Mr. Makeen filed his Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #103) against Defendant City and County of Denver. The City and County of Denver and State of Colorado filed separate responses (docs. #108 and 109, respectively) on June 22, 2015. Plaintiff filed a Reply to Defendant City's Response (doc. #110) on June 30, 2015.

This court held an evidentiary hearing in this case on May 5, 2015. At that time, I determined that Mr. Makeen's original Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #24) was moot in light of the subsequently filed Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #60). This court has carefully considered the voluminous briefing submitted by the parties and their attached exhibits, a transcript of the May 5, 2015 hearing, the entire court file and applicable case law. For the following reasons, the court recommends that Mr. Makeen's motions for preliminary injunctive relief be denied.

FACTUAL BACKGROUND

Plaintiff commenced this action on December 23, 2014, with the filing of a Complaint (doc. #1) that asserted violations of the Americans with Disabilities Act, 42 U.S.C. §§12102-12213, the Rehabilitation Act, 29 U.S.C. § 794, and the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, as well as state law contract and tort claims. The Complaint generally alleged that these violations stemmed from Defendants' failure to "provide services to Mr. Makeen so he could access the court and participate fully in all hearings after being approved for services." See Complaint, at 1. Mr. Makeen asserted claims against the State of Colorado, Janel Bravo in her official and individual capacities, Charla Branham in her official capacity, and the Arapahoe County Board of County Commissioners.

More recently, the court granted Mr. Makeen's Fifth Motion for Leave to Amend Complaint (doc. #114). Plaintiff's Fifth Amended Complaint is directed only against the State of Colorado and Denver City and County. This pleading alleges that Mr. Makeen was deniedaccess to state courts and was prevented from participating equally in all hearings in those courts after being denied a qualified or appropriate note taker as an accommodation for his disabilities. The specific state court actions cited in the Fifth Amended Complaint are: (1) Rufner v. Makeen, 2014CV31886 (Arapahoe County District Court); (2) Makeen v. Hailey, 2014CV253 (Arapahoe County District Court); (3) Makeen v. Hopf, 15C00003 (County Court for the City and County of Denver); (4) Makeen v. Anthony, 12C00787 (County Court for the City and County of Denver); and (5) Woodstream Falls v. Makeen, 15CV030561 (Denver District Court). More specifically, Mr. Makeen brings claims under Title II of the ADA, the Rehabilitation Act, various constitutional amendments, and the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-801, et seq. The Fifth Amended Complaint also asserts claims for breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, unjust enrichment, fraudulent misrepresentation, and intentional infliction of emotional distress. Mr. Makeen requests, inter alia, declaratory relief, preliminary and permanent injunctive relief,² compensatory damages, punitive damages, "reimbursement for all costs including attorney fees/note taker fees for the cost of Ms. Leta Holden," and an order reinstating all of his state court cases.

On February 2, 2015, Mr. Makeen filed a Request for Accommodation under Americans with Disabilities Act Pursuant [to] D.C.COLO.LCivR 83.3 (doc. #23). This three-page motion asserted, without supporting documentation, that Mr. Makeen "has been a qualified individual with a disability and is need of a (auxiliary aids-note taker)" for purposes of the status conference set on this court's calendar for March 17, 2015. Plaintiff claimed that "[o]ne of [his] disabilities is auditory processing deficits which influence his reading skills, his spelling skills, his ability to communicate, and more importantly, his ability to get the signal value of what is spoke to him." Mr. Makeen asserted that a note-taker enables him "to be able to effectively communicate and understand." Accordingly, Mr. Makeen asked this court "to appoint Ms. Leta Holden as [his] (auxiliary aids-note taker)" at her hourly rate of $300.00.³

This court granted, in part, Mr. Makeen's Request for Accommodation with an Order (doc. #27), dated February 19, 2015. After noting The Judicial Conference Guidelines for Services to the Hearing Impaired and Other Persons with Communications Disabilities, I ordered that Mr. Makeen should be provided with a computer-assisted real-time (CART) court reporter at the March 17, 2015 status conference and that he also should be mailed a "copy of the courtroom minutes, which summarize the content of the hearing, including any established deadlines and orders, as well as instructions on how to order, at his own expense, an official court transcript." I denied Mr. Makeen's request to the extent it sought "court authorization for Ms. Holden to serveas a note-taker."⁴

The status conference on March 17, 2015 lasted 63 minutes. During the conference, the court discussed Mr. Makeen's request for preliminary injunctive relief, pointing out that the motion did not address specifically the required elements for injunctive relief under Fed. R. Civ. P. 65. Mr. Makeen indicated that he could cure this potential shortcoming in a supplemental submission that he would file in 24 hours.⁵ During the March 17, 2015 status conference, Mr. Makeen did not use the CART system available to him and did not have the services of a "note taker" at counsel's table. Although the court acknowledged Mr. Makeen's "marvelous job" of responding to questions posed from the bench without the assistance of a note taker, Mr. Makeen explained that a "qualified note taker" is "somebody that - as a matter of fact, they have to know the subject matter."

The City and County of Denver provided me with a note taker that basically is somebody that writes down what is being said. They cannot interpret what's being said because a qualified note taker is somebody that can actually comprehend what's going on within legal proceedings, to be able to break it down into layman's terms so that I can understand it, also to be able to get it correct because she could not get it correct. . . . What I need help with is somebody who can do the note taking with - into a process to where I can understand what they are saying because there is some things which [the court] said that I have only got the benefit of it because you have basically said things three or four times over. . .. So therefore, a qualified note taker, someone that's in law that is going to get it correct, that is not going to give me the bullet points, all right, that's basically going to say, well, this, this, this and this, and to where I can take it in.

See Transcript of Proceedings on March 17, 2015, at 28-30. Mr. Makeen prefers that Ms. Holden serve as his note taker because "from working with her for so many years, I can follow her notes . . . because she knows the subject matter." Id. at 31.

The court held an evidentiary hearing on the pending motions for injunctive relief on May 5, 2015. Ms. Leta Holden...