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Appellate Case: 19-1000 Document: 010110189047 Date Filed: 06/27/2019 Page: 1

No. 19-1000

IN THE UNITED STATES COURT OF APPEALS


FOR THE TENTH CIRCUIT

JAYSON M. OSLUND,
Plaintiff-Appellant,

v.

C/O MULLEN,
Defendant-Appellee.

On Appeal from the United States District Court for the District of Colorado
Case No. 15-cv-00491-KMT
The Honorable Kathleen M. Tafoya, Magistrate Judge

BRIEF OF PRISONERS’ RIGHTS ORGANIZATIONS AND LAW FIRMS


AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND
REVERSAL

Danielle C. Jefferis
Nicole B. Godfrey
Laura Rovner
STUDENT LAW OFFICE | Civil Rights Clinic
University of Denver College of Law
2255 East Evans Avenue, Suite 335
Denver, CO 80208
Tel: 303.871.6155
Fax: 303.871.6847
Email: djefferis@law.du.edu

Counsel for Amici Curiae1 June 27, 2019


1
Olivia Kohrs, a former Civil Rights Clinic student attorney and May 2019 graduate
of the University of Denver College of Law, assisted in the preparation of this brief
while she was enrolled in the Clinic.
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RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, those among the amici

that are corporations declare they have no parent corporations and no publicly traded

corporation currently owns ten percent or more of any one’s stock.

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TABLE OF CONTENTS

RULE 26.1 CORPORATE DISCLOSURE STATEMENT ................................ i

TABLE OF AUTHORITIES ................................................................................ iii

STATEMENT OF INTEREST OF AMICI CURIAE ..........................................1

RULE 29(A)(4)(E) STATEMENT .........................................................................9

SUMMARY OF ARGUMENT ..............................................................................9

ARGUMENT .........................................................................................................11

I. AMERICAN PRISON SYSTEMS OPERATE WITH FEW MEASURES OF


TRANSPARENCY AND ACCOUNTABILITY FOR THE CONDITIONS INSIDE THEIR
PRISONS. ...............................................................................................................11

a. There is No National Agency Tasked Explicitly with Monitoring Prisons.


14
b. Because of the Absence of National Independent Monitoring, Oversight of
Prison Systems Has Fallen to the Courts. ........................................................16

II. INCARCERATED CITIZENS ARE AFFORDED SEPARATE AND UNEQUAL ACCESS TO


JUSTICE AND THE AMERICAN DEMOCRATIC SYSTEM.............................................17

a. Prisoners Are Stripped of Their Fundamental Right to Vote, Leaving Them


with Limited Access to the Legislative and Executive Branches. .....................18
b. Prisoners’ Access to the Judicial Branch is Also Sharply Curtailed. .......19

III. TO ENSURE INCARCERATED CITIZENS RETAIN THE RIGHT TO SOME MEASURE


OF DEMOCRATIC PARTICIPATION, COURTS SHOULD RESPECT JURORS’ VOICES AND
UPHOLD THEIR VERDICTS WHEN THEY FIND IN FAVOR OF PRISONER-PLAINTIFFS IN
CIVIL RIGHTS CLAIMS. ..........................................................................................26

CONCLUSION ......................................................................................................28

CERTIFICATE OF COMPLIANCE ..................................................................30

CERTIFICATE OF SERVICE ............................................................................31

CERTIFICATE OF DIGITAL SUBMISSION ..................................................32

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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................24

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).............................................24

Beville v. Ednie, 74 F.3d 210 (10th Cir. 1996) ........................................................26

Brown v. Plata, 563 U.S. 493 (2011) ......................................................................14

DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988) ................................................26

Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997) ...................................................28

James v. Eli, 889 F.3d 320 (7th Cir. 2018)..............................................................25

McCarthy v. Madigan, 503 U.S. 140 (1992) ...........................................................28

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) .............................................27

Pennewell v. Parish, 923 F.3d 486 (7th Cir. 2019) .................................................25

Prager v. Campbell County Memorial Hosp., 731 F.3d 1046 (10th Cir. 2013)......26

Tucker v. Graves, 107 F.3d 881 (10th Cir. 1997)....................................................26

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .........................................................18, 28

STATUTES

42 U.S.C. § 1997e....................................................................................................22

OTHER AUTHORITIES

Alan Prendergast, Cowboy Justice, WESTWORD (June 26, 2003) ...........................16

Andrea Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of


Penal Institutions, 25 STAN. J.L. & POL’Y 435 (2014) ........................................12

Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates
Are Sick and ‘Frantic,’ THE NEW YORK TIMES (Feb. 1, 2019)............................12

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Brennan Center for Justice, Criminal Disenfranchisement Laws Across the United
States (last updated May 30, 2019) ......................................................................18

Confronting Confinement: A Report of the Commission on Safety and Abuse in


America’s Prisons (2006) ............................................................................ passim

Darryl M. James, Reforming Prison Litigation Reform: Reclaiming Equal Access


to Justice for Incarcerated Persons in America, 12 LOY. J. PUB. INT. L. 465
(2011) ...................................................................................................................19

Drew Kann, 5 facts behind America’s high incarceration rate, CNN (July 10,
2018) ....................................................................................................................12

Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the
United States (2009) .................................................................................... passim

Jennifer Gonnerman, Do Jails Kill People?, THE NEW YORKER (Feb. 20, 2019)...12

Laura Rovner, On Litigating Constitutional Challenges to the Federal Supermax:


Improving Conditions and Shining a Light, 95 DENV. L. REV. 457 (2018) .........12

Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5


U.C. IRVINE L. REV. 153 (2015) .........................................................17, 19, 21, 23

Mark Binelli, Inside America’s Toughest Federal Prison, THE NEW YORK TIMES
MAGAZINE (Mar. 26, 2015) ..................................................................................12

Rachel Poser, Why It’s Nearly Impossible for Prisoners to Sue Prisons, New
Yorker (May 30, 2016) ............................................................................21, 22, 24

Richard H. Frankel and Alistair E. Newbern, Prisoners and Pleading, 94 WASH.


U.L. REV. 899 (2017) ...........................................................................................24

Shane Bauer, My Four Months as a Private Prison Guard: A Mother Jones


Investigation, MOTHER JONES, July/August 2016 ................................................12

Stanley E. Sacks, Preservation of the Civil Jury System, 22 WASH. & LEE. L.R. 76
(1965) ...................................................................................................................27

The Sentencing Project, Felony Disenfranchisement: A Primer (last updated July


2018) ....................................................................................................................19

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U.S. Dep’t of Justice, Civil Rights Division, Investigation of Alabama’s State


Prisons for Men at 1(April 2, 2019).....................................................................13

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STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are organizations and law firms across the country that regularly

represent people in prison seeking to challenge their conditions of confinement

through litigation. Amici also advocate for greater access to justice for people who

are incarcerated. Through their experience, amici have acquired expertise about

prison-conditions litigation. Amici provide this Court information that will assist in

the determination of the case’s merits: Amici discuss the barriers incarcerated people

face when litigating civil rights claims in federal courts, which make it incredibly

difficult for their cases to advance to trial. Amici explain that because of the

enormous challenges facing incarcerated litigants, coupled with the issues of

transparency and accountability of prisons and jails, it is crucial courts honor the

jury verdicts returned after careful deliberations in prisoner-plaintiffs’ favor.

Amici are:

The Abolitionist Law Center (“ALC”) is a public interest law firm that

engages in public education, litigation, and advocacy that furthers efforts to end mass

incarceration. The majority of ALC’s clients are incarcerated people. People in

prison face considerable obstacles to accessing procedural and substantive justice in

the courts, are subject to adverse and differential treatment, and often have to litigate

without representation and in the midst of challenging, often unconstitutional,

conditions of incarceration. Rigorous protection of the rights of those who face the

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greatest barriers to utilizing the courts to vindicate their rights and humanity is an

urgent task that is long overdue, and ALC welcomes increased scrutiny from

lawyers, courts, and the public so that the present inequities can be remedied.

The American Civil Liberties Union Foundation (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization dedicated to the principles of liberty

and equality embodied in the Constitution and this nation’s civil rights laws. The

ACLU of Colorado is one of its statewide affiliates that works on behalf of prisoners

throughout the state.

The Cardozo Civil Rights Clinic (“the Clinic”) is a law school clinic at the

Benjamin N. Cardozo School of Law in New York City. The Clinic litigates federal

civil rights cases on behalf of individuals incarcerated in federal, state, and local

prisons and jails in New York and elsewhere. Prisoners whose civil rights cases

reach a jury trial often face biases based on their status as incarcerated persons. The

Clinic is interested in ensuring that jury verdicts awarded to prisoners in civil rights

cases are upheld and respected by the courts.

The Center for Constitutional Rights (“CCR”) is a nonprofit legal

organization that works with communities under threat to fight for justice and

liberation through litigation, advocacy, and strategic communication. CCR

frequently represents prisoners seeking relief from unconstitutional conditions of

confinement and abuse. Recent cases include Ashker v. Governor, No. 09-cv-05796

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(N.D. Cal.) (class action which resulted in settlement ending indeterminate solitary

confinement in California prisoners); Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016)

(establishing that people in prison have a liberty interest in avoiding placement in

Communications Management Unit); and Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)

(regarding ability of detainees in federal jail to sue federal officials for money

damages under the Constitution). CCR, along with the National Lawyers Guild, also

publishes and distributes The Jailhouse Lawyers Handbook, a self-help litigation

guide for people in prison who are seeking relief from abuse or other constitutional

violations. CCR recognizes the incredible hurdles pro se litigants—especially pro se

prisoner-plaintiffs—face, and thus provides the Handbook as a free tool to assist

those who are attempting, against incredible odds, to enforce their rights.

The Civil Rights Education and Enforcement Center (“CREEC”) is a

national nonprofit membership organization whose mission is to defend human and

civil rights secured by law. CREEC has extensive experience representing prisoners

and detainees in a number of contexts, including challenges to discrimination on the

basis of disability and challenges to unconstitutional conditions of confinement.

CREEC clients and lawyers face numerous barriers in bringing meritorious cases to

trial; it is essential to CREEC’s mission that the results of such a trial—especially

jury verdicts—be respected.

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Frank & Salahuddin LLC is a civil rights law firm in Denver that regularly

represents people who have their civil rights violated by employees of prisons and

jails in federal litigation. In the firm’s experience, defendants in such cases regularly

seek extensive delay, preferring to put off payment as long as possible even where

liability is clear, in the hope that an indigent inmate will become desperate and settle

their claim for far less than a jury would award. The principal backstop against this

tactic is the defendants’ knowledge that jury awards are unpredictable, can be large,

and will be enforced. As such, the firm has an interest in ensuring that jury verdicts

against state actors in prisoners’ cases are given full effect by the federal courts.

Holland, Holland Edwards & Grossman, LLC, is a civil rights firm in

Denver that regularly represents inmates and former inmates who have been

subjected to excessive force or deliberately indifferent medical care in jails and

prisons. Because of the immunities, affirmative defenses, expense, and lack of

counsel, inmates’ cases are frequently disposed of without any determination on the

merits. The very few that make it through to trial for a jury’s consideration serve an

important role in educating the public and the judiciary about the extent of the

violations occurring and the importance juries place on civil rights. The firm has an

interest in federal judiciary respect for jury verdicts and the finality of such

decisions.

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The Human Rights Defense Center (“HRDC”) is a nonprofit charitable

corporation headquartered in Florida that advocates in furtherance of the human

rights of people held in state and federal prisons, local jails, immigration detention

centers, civil commitment facilities, Bureau of Indian Affairs jails, juvenile facilities,

and military prisons. HRDC’s advocacy efforts include publishing two monthly

publications, Prison Legal News, which covers national and international news and

litigation concerning prisons and jails, as well as Criminal Legal News, focused on

criminal law and procedure and policing issues. HRDC also publishes and distributes

self-help reference books for prisoners, and engages in state and federal court

litigation on prisoner rights issues, including wrongful death, class actions, and

Section 1983 civil rights litigation concerning the First Amendment rights of

prisoners and their correspondents. It constantly faces the barriers put up to limit the

transparency of prisons and jails.

Johnson & Klein, PLLC, is a boutique litigation firm in Boulder, Colorado,

that regularly represents prisoners whose constitutional rights have been violated in

federal civil rights litigation. As such, the firm has a strong interest in ensuring that

pro-plaintiff jury verdicts in prisoner cases are respected and given full effect by the

federal courts.

Killmer, Lane & Newman, LLP, (“KLN”) is a Denver civil rights law firm

that represents people whose constitutional rights have been violated by law

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enforcement agencies, including jails and prisons. Due to the nature of these cases,

including the applicability of numerous legal immunities and other defenses specific

to constitutional litigation, as well as the financial impossibility of most clients for

underwriting the expenses of their own case, this constituency of clients has an

extraordinarily difficult time securing competent legal counsel to represent their

interests in years-long litigation against often stubborn defendants with vastly

superior financial resources. The right to a jury trial and respect for the considered

determinations of a jury are paramount to protecting a person’s ability to secure a

viable remedy in response to unconstitutional official misconduct.

Loevy & Loevy (“Loevy”) is a national civil rights law firm headquartered in

Chicago, Illinois, whose attorneys routinely litigate constitutional claims on behalf

of people mistreated in prisons, jails, and other detention facilities throughout the

country. Loevy has tried many such cases before a jury and successfully obtained

awards of both compensatory and punitive damages. The firm also regularly consults

with and advises pro bono counsel in prisoners’ rights cases during all phases of

litigation, including trials. In Loevy’s experience, prisoners’ rights cases are

immensely difficult for counsel to litigate, and nearly impossible for pro se

imprisoned plaintiffs, forced to litigate from the confines of their jail cell. Given the

firm’s work, Loevy has a deep interest in upholding the Seventh Amendment’s

guarantee that cases of this kind be decided by a jury.

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The Pennsylvania Institutional Law Project (“PILP”) provides civil legal

assistance to people who are incarcerated in the state of Pennsylvania when their

statutory and constitutional rights have been violated. Founded in 1981, PILP

litigates cases addressing issues such as sexual assault, religious accommodation,

violence, inadequate medical care, and disability discrimination in both individual

and class action lawsuits. As a nonprofit legal aid organization, PILP not only

initiates litigation challenging conditions of confinement, but frequently provides

representation at trial to people who have previously litigated their prison conditions

claims pro se. In PILP’s experience, the barriers facing prisoners seeking redress

from the courts are incredibly high. To protect the constitutional rights of

incarcerated people and to ensure prison oversight, it is vital that favorable jury

verdicts are respected by the courts.

Rathod Mohamedbhai LLC is a Denver-based civil rights firm that often

represents prisoner-plaintiffs whose rights have been violated at the hands of state

actors. The right of prisoner-plaintiffs to have their claims heard by a jury of their

peers is paramount to the protection of their individual rights and liberties. Jury

verdicts reflect communal judgments regarding whether constitutional violations

have occurred and the appropriate remedies for such violations. As such, jury

verdicts are entitled to the utmost respect and deference by our federal courts.

Moreover, jury verdicts ensure government actors are subject to community

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accountability for the constitutional violations they cause. This accountability is

particularly important to incarcerated litigants, whose access to justice is already

severely curtailed by state and federal law. This firm has a strong interest in ensuring

jury verdicts remedying violations of constitutional rights are respect by our courts.

The Roderick and Solange MacArthur Justice Center (“RSMJC”) is a

public interest law firm founded in 1985 by the family of J. Roderick MacArthur to

advocate for human rights and social justice through litigation. RSMJC has offices

at Northwestern Pritzker School of Law, at the University of Mississippi School of

Law, in New Orleans, in St. Louis, and in Washington, D.C. RSMJC attorneys have

led civil rights battles in areas that include police misconduct, the rights of the

indigent in the criminal justice system, compensation for the wrongfully convicted,

and the treatment of incarcerated men and women. RSMJC litigates appeals related

to the civil rights of incarcerated men and women throughout the federal circuits.

Rosen Bien Galvan & Grunfeld LLP (“RBGG”) is a law firm in San

Francisco, California, founded in 1990 to practice both private and public interest

litigation. Throughout the firm’s history, RBGG has brought both individual and

class action cases challenging dangerous conditions of confinement in jails and

prisons, as well as the exclusion of persons with disabilities from work, education,

and other programs in prisons and on parole that foster positive re-entry and

improved public safety. Although RBGG’s principal cases focus on prospective

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injunctive relief, the firm has also represented survivors of abuse and neglect in

prisons and jails seeking compensation for their losses. RBGG and its clients have a

strong interest in protecting the right to trial by jury in such cases.

The Uptown People’s Law Center (“UPLC”) provides legal representation,

advocacy, and education for poor and working people in Chicago, and legal

assistance to people housed in Illinois prisons in cases related to their confinement.

UPLC has provided direct representation to over 100 persons confined in Illinois

prisons pertaining to their civil rights, including seven class-action or putative class-

action cases that are currently pending. UPLC has represented individuals in cases

involving excessive force, denial of religious freedom, censorship, due process

violations, and denial of medical care, among others.

All parties consent to this Brief’s filing.

RULE 29(a)(4)(E) STATEMENT

Under Rule 29(a)(4)(E), amici certify that no party’s counsel authored this

brief in whole or in part, and that no person or entity other than amici and their

counsel made a monetary contribution to the brief’s preparation and submission.

SUMMARY OF ARGUMENT

The United States was founded on the notion that every citizen bears the right

to participate in the democratic process. Our fundamental rights to vote and petition

our government for redress of grievances through the courts are at the core of our

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American identity. Yet there are more than 2.3 million people incarcerated every

day across the United States for whom the American democratic system is largely

out of reach. Simultaneously, prison systems across the country operate with few

measures of transparency and accountability for the conditions inside their facilities.

There is no national, independent oversight body to monitor prisons and jails, and

the people who are incarcerated are largely stripped of their ability to advocate for

change through the democratic process.

Disenfranchisement laws impact millions of people in prison, removing them

nearly altogether from the political process due to their convictions. Without the

right to vote, incarcerated people are left with few tools but the right of access to the

courts to ameliorate dangerous or degrading conditions or obtain relief for harms

they have suffered at the hands of the state. Indeed, this Court and others have held

a prisoner’s right of access to the judiciary is her most fundamental right. Much like

the right to vote, however, prisoners’ access to the judicial system is also sharply

curtailed. The Prison Litigation Reform Act and federal procedural hurdles, among

other requirements, make it nearly impossible for a prisoner-plaintiff with even the

most meritorious claim to advance to trial and obtain a judgment in her favor.

Notwithstanding these significant barriers, some prisoner-plaintiffs do

succeed in litigating their cases to trial, where they then have the right to present

their case to a jury of their peers. At that moment, the public is offered a brief glimpse

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into the otherwise opaque prison system and, through the jury, has the opportunity

to step forward and make a decision—one that favors the prisoner-plaintiff or one

that does not; one that imposes a measure of accountability on a system that is

difficult to hold accountable or one that does not. When juries do find in favor of

prisoner-plaintiffs, believing that a civil rights violation occurred and merits a

remedy, courts should—as they do in other cases—respect their voices and do all

possible to uphold their verdicts. Often, these are the only voices the system hears

in favor of incarcerated people, and they can serve as one of the sole means of citizen

governance available to incarcerated people. Accordingly, maintaining stability in

the judicial process and honoring the deliberations of juries will, in part, ensure

prisoners retain some measure of democratic participation and dignity in a system

of which they are still a part, despite living behind the walls.

ARGUMENT

I. AMERICAN PRISON SYSTEMS OPERATE WITH FEW MEASURES OF


TRANSPARENCY AND ACCOUNTABILITY FOR THE CONDITIONS INSIDE THEIR
PRISONS.

It is no secret that American prisons and jails can be cruel and degrading

places that dehumanize the people who are forced to live, and those who choose to

work, within their walls. With the current political and social interest in criminal law

reform, intrepid journalists are shedding some light on what goes on behind the walls

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of American prisons and jails.2 However, the indignities suffered each day by the

millions of people incarcerated in the United States occur largely out of the public’s

eye for years before they are ever—if ever—exposed.3

Often, exposure of prison conditions does not occur until years after the abuse

has been underway or long after incarcerated people have sustained harm. By way

of recent example, an April 2019 report by the Civil Rights Division of the U.S.

Department of Justice outlined serious incidents and systems of abuse in Alabama’s

prison system that had been occurring for years, concluding “[t]here is reasonable

cause to believe that the Alabama Department of Corrections . . . has violated and is

continuing to violate the Eighth Amendment rights of prisoners housed in men’s

2
See, e.g., Jennifer Gonnerman, Do Jails Kill People?, THE NEW YORKER (Feb. 20,
2019), available at https://www.newyorker.com/books/under-review/do-jails-kill-
people; Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of
Inmates Are Sick and ‘Frantic,’ THE NEW YORK TIMES (Feb. 1, 2019), available at
https://www.nytimes.com/2019/02/01/nyregion/mdc-brooklyn-jail-heat.html;
Shane Bauer, My Four Months as a Private Prison Guard: A Mother Jones
Investigation, MOTHER JONES, July/August 2016, available at
https://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-
corporation-inmates-investigation-bauer/; Mark Binelli, Inside America’s Toughest
Federal Prison, THE NEW YORK TIMES MAGAZINE (Mar. 26, 2015), available at
https://www.nytimes.com/2015/03/29/magazine/inside-americas-toughest-federal-
prison.html.
3
Drew Kann, 5 facts behind America’s high incarceration rate, CNN (July 10,
2018), available at https://www.cnn.com/2018/06/28/us/mass-incarceration-five-
key-facts/index.html; Laura Rovner, On Litigating Constitutional Challenges to the
Federal Supermax: Improving Conditions and Shining a Light, 95 DENV. L. REV.
457, 460-64 (2018); Andrea Armstrong, No Prisoner Left Behind? Enhancing Public
Transparency of Penal Institutions, 25 STAN. J.L. & POL’Y 435, 462-66 (2014).

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prisons by failing to protect them from prisoner-on-prisoner violence, prisoner-on-

prisoner sexual abuse, and by failing to provide safe conditions.”4 The Department

of Justice recommended many immediate and long-term measures Alabama should

take to begin to remedy the abuse and avoid litigation.5

Unfortunately, the conditions described in the Department of Justice report—

while perhaps atypical in volume and severity for a single system—are not unusual.6

In 2006, the Commission on Safety and Abuse in America’s Prisons, a national

group of civic leaders, experienced prison administrators, scholars, prisoners’ rights

advocates, religious leaders, and people who were formerly incarcerated, released a

report documenting the conditions inside prisons and jails across the United States.7

Following a year-long study, their discoveries were troubling. The Commission

found, for instance, violence remains a serious problem in prisons and jails, noting

“disturbing evidence of individual assaults and patterns of violence” on prisoners

and staff.8 The Commission attributed this prevalent violence to overcrowded

prisons, a lack of programming for prisoners, and housing and supervision decisions,

4
U.S. Dep’t of Justice, Civil Rights Division, Investigation of Alabama’s State
Prisons for Men at 1 (April 2, 2019), available at https://www.justice.gov/opa/press-
release/file/1150276/download.
5
Id. at 50-56.
6
See generally Confronting Confinement: A Report of the Commission on Safety
and Abuse in America’s Prisons at 21-22 (2006), available at https://bit.ly/2J8aji4.
7
Id. at 6-7.
8
Id. at 11-12.

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among other factors, and emphasized the violence is preventable.9 The Commission

also documented deficient medical and mental health care in some prisons and jails,

noting that during one month in 2005 one prisoner was dying needlessly from

medical malpractice or neglect every six to seven days in California alone.10

The report outlined several broad areas where the Commission believed

change could occur, including conditions of confinement that directly impact the

safety, health, and well-being of prisoners and staff, and offered several “clear and

bold recommendations that have the potential to change the very nature of

confinement in this country.”11 One of those recommendations, separate from

improving the conditions themselves, was to impose independent, external

monitoring on prison systems, and strengthen and make more use of internal

oversight mechanisms.12 The former has yet to be implemented, leaving much of the

responsibility for overseeing prisons and jails to the federal courts.

a. There is No National, Independent Agency Tasked Explicitly with


Monitoring Prisons.

“Every public institution—hospitals, schools, police departments, and prisons

and jails—needs and benefits from strong oversight. Perhaps more than other

9
Id.
10
Id. at 38; see also Brown v. Plata, 563 U.S. 493, 505 n.4 (2011) (noting in 2007,
there were 68 “preventable or possibly preventable” deaths in California prisons).
11
Confronting Confinement, supra note 7 at 7.
12
Id. at 15-16.

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institutions, correctional facilities require vigorous scrutiny: They are uniquely

powerful institutions, depriving millions of people each year of liberty and taking

responsibility for their security, yet are walled off from the public.”13 There is simply

no substitute for transparency and accountability to external forms of oversight.14

Yet, despite the Commission’s work and recommendations (and those of

others like it), change to prisons and jails has been difficult to come by—at least to

the degree it is urgently needed—in part because there is no national, independent

agency tasked explicitly with monitoring facilities across jurisdictions.15 The

Department of Justice is responsible for overseeing federal prisons, and may

investigate state and local facilities as was done in Alabama, but the Department’s

reach and resources are limited.16 Only a few states and local jurisdictions have an

independent government body to inspect and monitor prisons and jails, and that body

is frequently under-resourced and under-empowered.17 This leaves many prison

systems across the country free to operate prisons and jails with few measures of

13
Id. at 77.
14
Id. at 16 (“Corrections leaders work hard to oversee their own institutions and hold
themselves accountable, but their vital efforts are not sufficient and cannot substitute
for external forms of oversight.”); id. at 79.
15
Human Rights Watch, No Equal Justice: The Prison Litigation Reform Act in the
United States at 3 (2009), available at
https://www.hrw.org/sites/default/files/reports/us0609web.pdf.
16
Confronting Confinement, supra note 7 at 82.
17
Id. at 79.

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external transparency and accountability.18 Without independent monitoring, prison

systems’ leadership and staff—which have resisted external oversight—often fail to

self-police.19 Jack Cowley, a former warden with more than twenty years of

experience in the Oklahoma prison system told the Commission, “When we’re not

held accountable, the culture inside the prisons becomes a place that is so foreign to

the culture of the real world that we develop our own way of doing things.”20 Glenn

Fine, then-Inspector General of the Justice Department, told the Commission,

“There is tremendous pressure within an institution to keep quiet.”21

b. Because of the Absence of National Independent Monitoring, Oversight


of Prison Systems Has Fallen to the Courts.

Without national, external monitoring of prisons and jails, independent

oversight of prisons and jails has fallen largely to the federal courts. Often, the only

ways in which prison conditions are exposed are through prisoners’ lawsuits. Some

prisoners’ civil rights claims have resulted in dramatic, much-needed changes to

prison systems, with increased accountability and improved conditions for the

people inside.22 Many cases have “ushered in life-saving reforms.”23

18
Id. at 16.
19
Id. at 79.
20
Id.
21
Id. at 82.
22
Id. at 79.
23
Id. at 16; see also Alan Prendergast, Cowboy Justice, WESTWORD (June 26, 2003),
available at https://www.westword.com/news/cowboy-justice-5074962 (discussing

16
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For two-plus decades, however, the Prison Litigation Reform Act has

dramatically circumscribed federal courts’ authority to oversee and intervene with

respect to prison conditions. Enacted to curtail purportedly frivolous litigation by

people in prisons and jails, the PLRA has markedly impacted courts’ role in prison

oversight, making it very difficult for prisoners to overcome the procedural hurdles

in the way of access to the courts, have their claims heard on the merits by a jury of

their peers, and obtain redress for past and ongoing harms sustained in prisons and

jails.24 This restricted access to the courts, combined with prisoners’ limited access

to the legislative and executive branches due to disenfranchisement, consigns

prisoners to a separate and unequal system of American democracy, where they have

few ways to participate meaningfully in the systems of which they are a part.

II. INCARCERATED CITIZENS ARE AFFORDED SEPARATE AND UNEQUAL ACCESS


TO JUSTICE AND THE AMERICAN DEMOCRATIC SYSTEM.

The American principle of democracy holds that governing power is vested

in the people and every citizen shall have equal and meaningful opportunity to

participate in her government. Whether through participation in the legislative and

executive branches by the act of voting or through one’s right to petition her

federal prosecution after five-year investigation of seven former prison officers who
were “part of a sprawling conspiracy . . . to beat and abuse inmates”).
24
Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood,
5 U.C. IRVINE L. REV. 153, 168 (2015).

17
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government for redress of grievances through the courts, this notion of citizen

engagement is a fundamental belief on which this country was founded.

There are categories of Americans, however, for which equal access to justice

and democratic participation are not guaranteed. Among those are the nation’s 2.3

million prisoners. Through limited access to all three branches of government,

prisoners’ voices are stifled—often muted—in the American democratic process.

a. Prisoners Are Stripped of Their Fundamental Right to Vote, Leaving


Them with Limited Access to the Legislative and Executive Branches.

Despite recognizing the right to vote as “fundamental” because it is

“preservative of all rights,”25 the United States stands out from other countries

around the world for depriving prisoners and former prisoners of the right to vote.

This practice is “in marked contrast to many other democracies, which either allow

all prisoners to vote (such as Austria, Germany, and Ireland) or disenfranchise only

a small proportion of prisoners (such as France, Norway, and Portugal).26 States like

Kentucky and Iowa impose lifetime disenfranchisement for people with any felony

conviction; many other states impose lifetime disenfranchisement for certain

categories of convictions.27 Only two states—Maine and Vermont—do not impose

25
Yick Wo v. Hopkins, 118 U.S. 356, 370-71 (1886).
26
No Equal Justice, supra note 16 at 6 (2009).
27
See Brennan Center for Justice, Criminal Disenfranchisement Laws Across the
United States (last updated May 30, 2019), available at
https://www.brennancenter.org/criminal-disenfranchisement-laws-across-united-
states.

18
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any voting restriction on people who are in prison or have a felony conviction.28

Today, at least 6.1 million Americans are banned from voting due to

disenfranchisement laws, a disproportionate number of those millions being people

of color.29 According to The Sentencing Project, one in every thirteen black adults

is prohibited from voting.30 By stripping them of their right to vote, the government

has cut off incarcerated citizens’ right to participate directly in the political process,

leaving them with few choices but to resort to the judicial branch to have their voices

heard about fundamental deprivations of their rights.31

b. Prisoners’ Access to the Judicial Branch is Also Sharply Curtailed.

Litigation is one of the few avenues for people who are in prison to seek relief

for unconstitutional conditions of confinement or harms they suffer due to official

misconduct. Since at least the 1970s, federal court orders have been a primary source

of regulation of prisons and jails, “whether those orders entailed active judicial

supervision, intense involvement of plaintiffs’ counsel or other monitors, or simply

a court-enforceable set of constraints on prison officials’ discretion.”32 With few

28
The Sentencing Project, Felony Disenfranchisement: A Primer (last updated July
2018), available at https://www.sentencingproject.org/publications/felony-
disenfranchisement-a-primer/.
29
Id.
30
Id.
31
Darryl M. James, Reforming Prison Litigation Reform: Reclaiming Equal Access
to Justice for Incarcerated Persons in America, 12 LOY. J. PUB. INT. L. 465, 469-70
(2011).
32
Schlanger, supra note 25 at 168.

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bodies exercising independent oversight of prison systems, judicial monitoring of

prisons and jails has proven remarkably important, both in ensuring some measure

of protection for the people in the prisons and providing a means for prisoners to

exercise their right to petition their government.

Developments over the past two decades, however, have dramatically

curtailed the federal courts’ reach over prison conditions, and stifled prisoners’

voices and access to the judicial branch. Among those developments are (i) the

PLRA’s enactment and (ii) the intersection of disparities in information between

prisoners and prison systems with federal procedural hurdles.

i. The Prison Litigation Reform Act dramatically restricts prison-


conditions litigation and case outcomes.

Few, if any, pieces of legislation have limited prisoners’ access to the courts

more than the PLRA. Congress passed the PLRA in 1996—not as a freestanding bill

but as an amendment to an appropriations bill—citing a flood of purportedly

frivolous prisoner lawsuits overwhelming the courts but conducting no studies to

support the proposed law and holding just one substantive hearing.33 And, in its two-

plus decades, the PLRA has limited in significant ways the ability of prisoners across

the United States to pursue federal litigation challenging their conditions of

confinement. By many accounts, the PLRA had made it “nearly impossible for

33
Confronting Confinement, supra note 7 at 85; see also No Equal Justice, supra
note 27 at 9.

20
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prisoners to sue prisons.”34 According to a 2009 Human Rights Watch report titled

No Equal Justice: The Prison Litigation Reform Act in the United States, no other

country in the world has enacted national legislation to single out people who are in

prison “for a unique set of barriers to vindicating their legal rights in court.”35

This unique set of barriers has had a clear impact. Data since the PLRA’s

passage show a marked decrease in the volume of prisoner litigation, and a dramatic

effect on the outcome of cases in which people challenge their conditions of

incarceration. Correlated to the growing prison population, the national filing rate of

prisoners’ rights litigation declined steeply in the two years following the PLRA’s

enactment, and continued to drop for the next decade.36 The year before the law took

effect, the rate of filing was thirty-seven lawsuits for every 1,000 prisoners; five

years later the rate was nineteen lawsuits for every 1,000 prisoners.37 Since 2007,

the rates have dropped to an average of just over ten filings per 1,000 prisoners.38 As

University of Michigan Law Professor Margo Schlanger explains, “[Prison]

litigation continues—but at a much reduced rate.”39 Human Rights Watch notes,

34
Rachel Poser, Why It’s Nearly Impossible for Prisoners to Sue Prisons, New
Yorker (May 30, 2016), available at https://www.newyorker.com/news/news-
desk/why-its-nearly-impossible-for-prisoners-to-sue-prisons.
35
No Equal Justice, supra note 16 at 1-2.
36
Schlanger, supra note 25 at 155.
37
Confronting Confinement, supra note 7 at 85.
38
Schlanger, supra note 25 at 155-56.
39
Id. at 155.

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“This [evidence] strongly suggests that, rather than filtering out meritless lawsuits,

the PLRA has simply tilted the playing field against prisoners across the board.”40

Reasons for the reduction in prison-conditions case filings include the

PLRA’s administration-exhaustion requirement, attorneys’ fees limits, the

unwaivable filing fee for indigent prisoners, and the three-strikes provision.41

Among those, the administrative-exhaustion requirement imposes one of the

heaviest burdens on prisoners. Before filing a federal lawsuit, the provision requires

a person to raise his complaint through all levels of the prison’s administrative

grievance system, complying with all deadlines and procedural rules.42 If that person

misses one deadline or makes a single mistake on a grievance form, he may have

lost his right to raise the issue in court.43 Many grievance processes are procedurally

complex and have short deadlines, making compliance with the requirements

difficult and seemingly designed to discourage, rather than facilitate, compliance.44

Indeed, prisoners’ grievances have been rejected “for writing in red ink, for writing

on the back of a form, and for attaching medical records to their submissions.”45

40
No Equal Justice, supra note 16 at 35.
41
See generally 42 U.S.C. § 1997e.
42
No Equal Justice, supra note 16 at 2.
43
Id.
44
Id. at 11-12.
45
Poser, supra note 35 at 2; see also No Equal Justice, supra note 27 at 14-15.

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Despite its burdensome gatekeeping requirements, there is little evidence to

suggest the PLRA has achieved its goal of eliminating prisoners’ frivolous filings.

The Commission on Safety and Abuse in America’s Prisons noted in its 2006 report,

“If success in litigation is a measure of case quality, the PLRA has failed: The

proportion of successful suits went down after its enactment.”46 Since 1996, data

show government defendants are winning more cases pre-trial and parties are

settling fewer and fewer cases.47 Strikingly, in 2012 only 1.3 percent of prisoners’

civil rights cases filed in federal district court made it to trial.48 Of that 1.3 percent,

just over one out of ten trial judgments were in the prisoner-plaintiff’s favor.49 In

contrast, plaintiffs succeed in nearly fifty percent of non-prisoner, non-employment

civil rights claims, in sixty percent of civil rights employment claims, and in over

seventy percent of general civil claims.50 The only category of litigant that comes

close to the slim success rate of prisoners bringing civil rights claims are prisoners

seeking relief through the habeas statute and in other quasi-criminal matters.51

46
Confronting Confinement, supra note 7 at 85; see also No Equal Justice, supra
note 16 at 35.
47
Schlanger, supra note 25 at 162; id. at 164.
48
Id.
49
Id.
50
Id. at 165.
51
Id.

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With fewer prisoner-plaintiffs prevailing, the PLRA has caused substantially

less federal court monitoring of prison systems.52 Through stringent requirements

for the entry of injunctions and duration limits on monitoring, “[the PLRA] has

crippled the federal judiciary’s ability to act as a watchdog over prison conditions,”53

and sharply limited prisoners’ ability to seek redress for harms resulting from

government misconduct through the judicial branch.54 And, no other monitoring

body has taken the judiciary’s place.

ii. Disparities in Information and Power Between Prisoners and


Prison Systems Make it More Difficult to Overcome Many of the
Barriers to Trial.

Federal procedural barriers make it difficult for any civil plaintiff to make it

to trial, but the disparities in information and power between prisoners and prison

systems amplify those barriers for prisoner-plaintiffs. One of the most significant

non-PLRA hurdles for prisoner-plaintiffs is the federal pleading standard articulated

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556

U.S. 662 (2009). This standard requires plaintiffs to plead sufficient facts in their

complaints to establish a plausible, rather than a possible, entitlement to relief.55

Satisfying this standard requires access to information. For people alleging

52
Confronting Confinement, supra note 7 at 85.
53
Poser, supra note 35 at 1.
54
Confronting Confinement, supra note 7 at 16.
55
Richard H. Frankel and Alistair E. Newbern, Prisoners and Pleading, 94 WASH.
U.L. REV. 899, 905 (2017).

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conditions-of-confinement claims, this likely means access to information held

exclusively by prison officials or the prison system—something often difficult, if

not impossible, to obtain before a complaint is filed. The Twombly-Iqbal standard

has had the greatest impact on civil rights plaintiffs, including prisoner-plaintiffs,

creating higher dismissal rates of claims at the motion-to-dismiss stage.56

Prisoner-plaintiffs who manage to survive the motion-to-dismiss stage often

face additional hurdles obtaining the evidence necessary to survive the summary-

judgment stage. For example, because prison systems retain custody and control of

prisoner-plaintiffs throughout the lawsuit, officials can transfer the plaintiff multiple

times during a lawsuit, limiting his “access to witnesses, documents, or defendants

necessary to his case.”57 Moreover, plaintiffs who are incarcerated and proceeding

pro se often find it difficult to obtain the evidence necessary to prove nuanced legal

claims, particularly where a defendant’s state of mind is at issue.58 Thus, in the rare

instances where a prisoner-plaintiff can overcome the procedural hurdles inherent to

federal litigation—in general, and specific to prison-conditions litigation—the

56
Id.
57
Pennewell v. Parish, 923 F.3d 486, 491 (7th Cir. 2019) (citing James v. Eli, 889
F.3d 320, 327 (7th Cir. 2018)).
58
James, 889 F.3d at 327-28 (7th Cir. 2018).

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sacrosanct role of the jury in determining the validity of the prisoner’s claim must

be respected.59

III. TO ENSURE INCARCERATED CITIZENS RETAIN THE RIGHT TO SOME


MEASURE OF DEMOCRATIC PARTICIPATION, COURTS SHOULD RESPECT
JURORS’ VOICES AND UPHOLD THEIR VERDICTS WHEN THEY FIND IN
FAVOR OF PRISONER-PLAINTIFFS IN CIVIL RIGHTS CLAIMS.

A panel of this Court has held, “An inmate’s right of access to the courts is

the most fundamental right he or she holds. ‘All other rights of an inmate are illusory

without it, being entirely dependent for their existence on the whim or caprice of the

prison warden.’”60 Notwithstanding the many hurdles to exercising this fundamental

right, some prisoner-plaintiffs do make their way through the courts to the point at

which they are afforded the right to present their claim to a jury of their peers. In this

moment, the prisoner-plaintiff’s right to participate in the democratic process is at

its peak: She is asking the jurors to do what she is largely not permitted to do—speak

out against government abuses, impose some measure of accountability on the prison

system or official accused of wrongdoing, and acknowledge that she retains certain

rights that cannot be violated. The civil jury, “one of our most cherished democratic

59
See, e.g., Prager v. Campbell County Memorial Hosp., 731 F.3d 1046, 1061 (10th
Cir. 2013) (“Trial by jury is the bedrock of our legal system”).
60
Beville v. Ednie, 74 F.3d 210, 212 (10th Cir. 1996) (quoting DeMallory v. Cullen,
855 F.2d 442, 446 (7th Cir. 1988)), overruled on other grounds as recognized in
Tucker v. Graves, 107 F.3d 881 (10th Cir. 1997).

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institutions,”61 expresses and amplifies the voice of the prisoner when its members

conclude she has been wronged, speaking through the system from which the

prisoner-plaintiff has been largely removed.

For those reasons, honoring and upholding jury verdicts in favor of prisoner-

plaintiffs, reached through fair and careful deliberations, is of tantamount

importance in a system full of barriers to transparency and accountability of prison

systems and their officials. Indeed, ensuring respect for the decisions of civil juries

is one of the few—but most important—ways in which the American democratic

system maintains its checks and balances on branches of government that operate

outside the purview of the public’s critical eye. The public rarely hears accounts of

the conditions inside American prisons. When members of the public—in an

unbiased group constituting a jury—conclude those conditions are wrong and should

not be tolerated, those statements must be respected. There are few more direct ways

for Americans to engage in public discourse and citizen governance: “The founders

of our Nation considered the right of trial by jury in civil cases an important bulwark

against tyranny and corruption, a safeguard too precious to be left to the whim of the

sovereign, or, it might be added, to that of the judiciary.”62

61
Stanley E. Sacks, Preservation of the Civil Jury System, 22 WASH. & LEE. L.R.
76, 76 (1965).
62
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979) (footnote omitted).

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CONCLUSION

“Because a prisoner ordinarily is divested of the privilege to vote, the right to

file a court action might be said to be his remaining most ‘fundamental political

right, because [it is] preservative of all rights.’”63 And, even that fundamental right—

to petition one’s government for redress of grievances—is curtailed for prisoners.

The number of barriers prisoners face when attempting to obtain relief for harms

they allege they have suffered is enormous. Yet some do advance to where they have

the opportunity to present their case to a federal jury. When they do—and when they

succeed in proving to a jury of their peers that they were wronged and deserve

relief—federal courts should honor those jurors’ voices and uphold their verdicts,

just as in other cases. Doing so ensures incarcerated citizens retain the right to some

measure of democratic participation, and imposes some measure of accountability

on prison systems and officials for violating the law. As the Commission on Safety

and Abuse in America’s Prisons reminds us, “We must remember that our prisons

and jails are part of the justice system, not apart from it.”64

63
McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (quoting Yick Wo, 118 U.S. at
370, superseded by statute as stated in Garrett v. Hawk, 127 F.3d 1263, 1264-66
(10th Cir. 1997).
64
Confronting Confinement, supra note 7 at 11.

28
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Respectfully submitted,

STUDENT LAW OFFICE

s/ Danielle C. Jefferis
Danielle C. Jefferis
Nicole B. Godfrey
Laura Rovner
University of Denver College of Law
2255 East Evans Avenue, Suite 335
Denver, CO 80208
Tel: 303.871.6155
Fax: 303.871.6847
Email: djefferis@law.du.edu

June 27, 2019 Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rules of

Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it contains 6,499 words,

excluding the parts of the brief exempt by Federal Rule of Appellate Procedure 32(f).

This document complies also with the typeface requirements of Federal Rule of

Appellate Procedure 27(d)(E) because this document has been prepared in a

proportionally spaced typeface using Times New Roman in font size 14.

Dated: June 27, 2019

s/ Danielle C. Jefferis
Danielle C. Jefferis

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Appellate Case: 19-1000 Document: 010110189047 Date Filed: 06/27/2019 Page: 37

CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2019, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit

by using the CM/ECF system. I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: June 27, 2019

s/ Danielle C. Jefferis
Danielle C. Jefferis

31
Appellate Case: 19-1000 Document: 010110189047 Date Filed: 06/27/2019 Page: 38

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) all required privacy redactions have been made per 10th Circuit Rule 25.5;

(2) if required to file additional hard copies, that the ECF submission is an exact

copy of those documents;

(3) the digital submission has been scanned for viruses with the most recent version

of a commercial virus scanning program—Microsoft Defendant and

Crowdstrike—and according to those programs is free of viruses.

Dated: June 27, 2019

s/ Danielle C. Jefferis
Danielle C. Jefferis

32