FILED United States Court of Appeals Tenth Circuit July 26, 2018 PUBLISH Elisabeth A. Shumaker UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT CHRYSTAL D. HAVENS, personal representative of the estate of Darrell L. Havens, Plaintiff-Appellant, v. No. 16-1436 COLORADO DEPARTMENT OF CORRECTIONS; STATE OF COLORADO; RICK RAEMISCH; TOM CLEMENTS; ARISTEDES ZAVARES; DAVID JOHNSON; ROSA FRAYER; DENVER RECEPTION & DIAGNOSTIC CENTER, Defendants-Appellees. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-03024-MSK-MEH) Edward J. LaBarre, Sausalito, California, for Plaintiff-Appellant. Robert C. Huss, Assistant Attorney General, Office of the Attorney General, Denver, Colorado, for Defendants-Appellees. Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. HOLMES, Circuit Judge. Darrell Havens, a former Colorado state prisoner, appealed from the district court’s grant of summary judgment against his claims of discrimination on the basis of his disability. Mr. Havens claimed that certain decisions and policies of the Colorado Department of Corrections (“CDOC”) caused him to be excluded from access to the facilities and services available to able-bodied inmates of the Colorado prison system, in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Following Mr. Havens’s death on April 23, 2017, we granted a motion to substitute Chrystal Havens, Mr. Havens’s sister and personal representative of his estate, as plaintiff-appellant. 1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the district court’s judgment. We first conclude that Mr. Havens’s Title II claim is barred by Eleventh Amendment sovereign immunity. Mr. Havens forfeited an argument before the district court that Title II validly abrogates CDOC’s asserted 1 Mr. Havens passed away after he had filed his opening brief and CDOC had filed its response brief. Though we permitted Chrystal Havens to be substituted in this appeal as the plaintiff-appellant following Mr. Havens’s death, the parties’ briefing (including Mr. Havens’s reply brief) refers to Mr. Havens as the challenger and proponent of arguments for reversal on appeal. For clarity’s sake and ease of reference, we also attribute arguments of the plaintiff-appellant to Mr. Havens. 2 Eleventh Amendment sovereign immunity and has effectively waived such an argument on appeal by not contending that the court’s Eleventh Amendment order constitutes plain error. Accordingly, Mr. Havens has not overcome CDOC’s assertion of sovereign immunity, and we accordingly do not reach the merits of his Title II claim. We also conclude that Mr. Havens has failed to make the requisite showing of intentional discrimination under § 504 of the Rehabilitation Act; therefore, this claim fails on the merits. Accordingly, in light of the foregoing, we uphold the district court’s judgment in full. I2 Mr. Havens was an “incomplete quadriplegic” in the custody of CDOC from 2008 until 2015. 3 Aplt.’s Opening Br. at 4. Early in his incarceration, Mr. Havens was placed at Fort Lyons Correctional Facility (“Fort Lyons”) in Bent County, Colorado. Fort Lyons was a CDOC facility able to provide skilled nursing care ...
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