Durkee v. Minor, et al

Filing

[10421318] Affirmed in part, reversed in part, and remanded; Terminated on the merits after oral hearing; Written, signed, published; Judges Lucero, Baldock, authoring judge and Bacharach. Mandate to issue. [16-1003]--[Edited 11/15/2016 by JM to add a corrected opinion. ]

FILED
Appellate Case: 16-1003

Document: 01019720139

United States Court of Appeals
Date Filed: 11/14/2016 Circuit 1
Tenth Page:

November 14, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JAMES DURKEE,
Plaintiff-Appellee,
v.

No. 16-1003

SHERIFF JOHN MINOR, in his
individual capacities; SERGEANT
RON HOCHMUTH, in his individual
capacity,
Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 14-CV-745-WYD-MJW)

Melanie B. Lewis (Josh A. Marks with her on the brief), Berg, Hill, Greenleaf,
Ruscitti LLP, Boulder, Colorado, for Defendants-Appellants.
Andrew McNulty (David A. Lane with him on the brief), Killmer, Lane & Newman,
LLP, Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO, BALDOCK, and BACHRACH, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant John Minor is the Sheriff of Summit County, Colorado. Defendant
Ron Hochmuth is a sergeant with the Summit County Sheriff’s Department. Plaintiff

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James Durkee sued them both in their individual capacities under 42 U.S.C. § 1983.
Plaintiff asserts Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment when he was attacked by Ricky Michael Ray Ramos,
a fellow inmate, at the Summit County Detention Center. In a written order, the
district court denied Defendants qualified immunity in the context of their motion
for summary judgment and they appealed. Durkee v. Minor, 2015 WL 8145257 (D.
Colo. 2015) (unpublished). To the extent we may exercise jurisdiction over the
district court’s decision, we do so under 28 U.S.C. § 1291. See Lynch v. Barrett,
703 F.3d 1153, 1158–60 (10th Cir. 2013).
Both the Supreme Court and this Court have spoken repeatedly on the defense
of qualified immunity and our jurisdiction to review the denial of the same prior to
final judgment. See, e.g., Johnson v. Jones, 515 U.S. 304 (1995); Lewis v. Tripp,
604 F.3d 1221 (10th Cir. 2010). We will not reinvent the wheel here. For now,
suffice to say Defendants’ claim to qualified immunity imposes the burden on
Plaintiff to show Defendants violated a constitutional right that was clearly
established under the facts of this case at the time of the violation. Lynch, 703 F.3d
at 1159. In deciding whether Plaintiff has met his burden, we generally are not
empowered to consider which facts the parties might be able to prove at trial. Id. at
1160 & n.2. Rather, we may ask only whether the facts the district court found
support Plaintiff’s claim that Defendants violated clearly established law. Id. at
1159. In other words, if the district court concluded a reasonable jury could find
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“certain specified facts” in favor of Plaintiff, we “usually must take them as
true—and do so even if our own de novo review of the record might suggest
otherwise as a matter of law.” Id. (quoting Lewis, 604 F.3d at 1225). Applying the
appropriate legal standards, we affirm as to Defendant Hochmuth and reverse as to
Defendant Minor.
I.
The facts the district court recited are sufficient to justify the denial of
qualified immunity to Defendant Hochmuth. The district court’s factual statement,
by which we are bound in the current context, reads as follows:
Inmate Ricky Michael Ray Ramos (“Ramos”) had a history of
aggressive behavior at the jail, and had been charged with several
violations of jail rules on several occasions for threatening behavior
towards jail staff, including a threat to stab a deputy in the neck, and
toward other inmates, including the Plaintiff. Ramos had threatened
Plaintiff shortly after Plaintiff’s arrival at the jail, and Plaintiff
requested that he be reassigned to another housing pod away from
Ramos. After an argument between Ramos and Plaintiff, Plaintiff again
expressed concern about Ramos’ aggression toward him. A deputy
issued an incident report stating that “[f]or future reference [Plaintiff]
and Ramos cannot attend any programs together or ever be in the
hallways or [booking] passing.” Jail staff, including Defendant
Hochmuth, acknowledged and initialed receipt of the notice.
On December 28, 2012, Ramos was being escorted back from a court
proceeding by Defendant Hochmuth, and was unshackled in the booking
area of the jail, which is adjacent to the professional visitation room.
At that time, Plaintiff was in the visitation room, meeting with a mental
health counselor. There are windows in the visitation room and those
meeting inside are visible to those in the booking area. Plaintiff states
that he saw both Ramos and Defendant Hochmuth in the booking area
through the visitation room window. Defendant Hochmuth contends he
did not see the Plaintiff in the visitation room. Defendant Hochmuth
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proceeded to unshackle Ramos in the booking area, and instructed him
to return to his housing pod. After taking one or two steps toward the
housing pod door, Ramos suddenly turned around and ran into the
visitation room through its unlocked door and assaulted Plaintiff.
Although the altercation was brief, Plaintiff suffered a facial fracture
from the assault.
Durkee, 2015 WL 8145257, at *1 (brackets in original).
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held a prison
official’s deliberate indifference to a substantial risk of serious harm to an inmate
violates the Eighth Amendment. To establish deliberate indifference on the part of
Defendant Hochmuth, Plaintiff must prove that Hochmuth knew of and disregarded
a substantial risk to Plaintiff. 1 See id. at 837–38. In other words, Hochmuth must
have been aware of facts from which he could draw the inference that a substantial
risk of serious harm to Plaintiff existed, and he must also have drawn the inference.
Id. at 837. Defendant Hochmuth does not dispute that he knew Ramos posed a
substantial risk of serious harm to Plaintiff “generally.” Instead, Hochmuth tells us
he never appreciated the risk to Plaintiff that Ramos posed while in the booking area
because he did not see Plaintiff in the visitation room before he unshackled Ramos.

1

Plaintiff’s repeated reference in his brief to an erroneous legal standard that
would hold Defendant Hochmuth liable for an Eighth Amendment violation if he
should have known Plaintiff was in the visitation room is unacceptable. To establish
deliberate indifference, the law requires actual knowledge. Farmer plainly tells us
so: “We . . . hold that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837 (emphasis added).
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Defendant Hochmuth insists that without specific knowledge of facts from which he
could infer Plaintiff was at imminent risk of attack while in the visitation room, he
could not have been deliberately indifferent to Plaintiff’s safety.
Defendant Hochmuth is quite correct in suggesting that “an official’s failure
to alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot . . . be condemned as the infliction of punishment.”
Id. at 838. The Supreme Court has pointed out, however, that if the risk is obvious
such that a reasonable man would realize it, a jury might infer that a defendant did
in fact realize it. “[B]ut the inference cannot be conclusive, for we know that people
are not always conscious of what reasonable people would be conscious of.” Id. at
842 (internal quotations omitted). This means that where the facts as found by the
district court show—as they do here—that a substantial risk of an inmate attack
against Plaintiff was well-documented and expressly noted by prison officials prior
to the attack in question, and those facts further show—as they do here—that
Defendant Hochmuth was informed of and acknowledged the risk and was
accompanying Ramos in an area where Ramos and Plaintiff were visible to each
other, such facts are sufficient to permit a jury to find Hochmuth had actual
knowledge of the risk and disregarded it. Id. at 842–43.
As the district court recited the facts, the success of Defendant Hochmuth’s
defense of this suit may very well turn on whether a jury finds credible his testimony
that he never saw Plaintiff in the visitation room. Of course, no one other than
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Hochmuth may testify to what he actually saw while preparing to unshackle Ramos
in the booking area. But others may testify to the surrounding circumstances and
what they witnessed. Obviously, Ramos saw Plaintiff through the large rectangular
window providing visual access from the booking area into the visitation room.
Plaintiff says he saw Ramos in the booking area through the same window. Based
both on the district court’s factual findings and what Farmer teaches us, a jury could
reject Defendant Hochmuth’s testimony and infer that he too saw Plaintiff in the
visitation room before unshackling Ramos.

“[W]hether a prison official had

the requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial evidence.”
Id. at 842. The question whether Defendant Hochmuth was aware of facts from
which he drew the inference that a risk of harm to Plaintiff existed while in the
visitation room is for the factfinder. 2
II.
While the district court’s factual findings are sufficient at this stage to
overcome Defendant Hochmuth’s qualified immunity defense, we cannot say the

2

To complete our qualified immunity analysis as to Defendant Hochmuth, we
easily conclude, based on the district court’s findings and the state of the law during
the relevant time period, that a reasonable officer cognizant of Plaintiff’s presence
in the unsecured visitation room would have understood that unshackling Ramos in
the booking area posed a substantial risk of harm to Plaintiff in violation of the
Eighth Amendment. See Lynch, 703 F.3d at 1160–61. Therefore, the law on which
Plaintiff bases his claim against Hochmuth was clearly established at the time of the
subject incident.
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same for its findings as they bear upon Defendant Minor’s defense. Those findings
are as follows: (1) Defendant Minor was responsible for managing the staff at the
detention center and for implementing the policies and procedures under which the
center operated; (2) the policy of the detention center was to unshackle inmates
in the booking area adjacent to the unlocked professional visitation room once
they returned from court; and (3) Defendant Minor undertook a post-assault review
and determined further inquiry into the conduct of Defendant Hochmuth was
unwarranted. Based on these facts, the court concluded: “A fact finder could impose
liability against Defendant Minor in his individual capacity by virtue of his control
or direction of the jail staff, or by his failure to properly supervise staff members,
including Defendant Hochmuth. Accordingly, summary judgment on this issue is
precluded.” Durkee, 2015 WL 8145257, at *4.
The district court was wrong to conclude—based on its limited findings—that
a jury could hold Defendant Minor liable to Plaintiff in his individual capacity.
Plaintiff’s claim against Defendant Minor in his individual capacity amounts to a
claim of direct supervisory liability. 3 To establish such liability, Plaintiff must show
Defendant Minor’s “direct personal responsibility” for the claimed deprivation of
his Eighth Amendment right. Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010)

3

While Plaintiff also sues Defendant Minor in his official capacity, we have
no jurisdiction over the district court’s decision to deny him summary judgment in
such capacity. See Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015).
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(emphasis in original) (quoting Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.
2006)). “Simply put, there’s no special rule of [individual capacity] liability for
supervisors. The test for them is the same as the test for everyone else.” Id. at 1328.
Accordingly, Plaintiff must prove Defendant Minor caused his injury with a state of
mind amounting to deliberate indifference for Plaintiff’s safety. See Dodds v.
Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (recognizing the elements of
individual supervisory liability as (1) personal involvement, (2) causation, and
(3) a culpable state of mind equal to that required to establish the underlying
constitutional violation).
In Dodds, we decided a sheriff could be held individually liable for his
deliberately indifferent maintenance of a policy that prevented arrestees from posting
preset bail for no legitimate reason, in violation of the Fourteenth Amendment’s
liberty guarantee. Id. at 1206. Plaintiff tells us the parallels of his case to Dodds are
clear. To us those parallels are clear as mud. Dodds involved a policy or procedure
that was constitutionally infirm in the overwhelming majority of its applications, if
not on its face. See also Wilson v. Montano, 715 F.3d 847, 857–58 (10th Cir. 2013)
(relying on Dodds to hold a warden and sheriff could be held individually liable for
maintaining a policy permitting prolonged warrantless detentions in violation of the
Fourth Amendment). The policy Plaintiff challenges here presents us with no such
dilemma. The detention center’s policy of unshackling inmates in the booking area
next to the visitation room does not appear problematic on its face; nor has it proven
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problematic in its application—at least on the record before us—save the present
isolated incident. See Lynch, 703 F.3d at 1160 n.2 (where a district court’s findings
are insufficient to withstand a qualified immunity defense, the court of appeals may
look behind the district court’s order to ascertain whether the record supports
plaintiff’s claim).
Apart from a supervisor’s promulgation of the sort of policy at issue in Dodds,
some of our sister circuits have held a supervisor may cause a constitutional
violation when he has actual knowledge of subordinates’ past constitutional
violations but does nothing to stop future occurrences. Dodds, 614 F.3d at 1212
(Tymkovich, J., concurring) (citing cases). Nothing in the present record suggests,
however, that the policy in question here led to any constitutional violations prior
to Ramos’s assault on Plaintiff. That Defendant Minor undertook a post-assault
review and determined further inquiry into the conduct of Defendant Hochmuth was
unwarranted does not assist Plaintiff. As we explained in Cordova v. Aragon, 569
F.3d 1183, 1194 (10th Cir. 2009), “basic principals of linear time prevent us from
seeing how conduct that occurs after the alleged violation could have somehow
caused that violation.” (emphasis in original).
We suppose cases of supervisory liability under § 1983 are not necessarily
limited to those two factual scenarios we have just outlined. But whether Plaintiff’s
theory of causation is based on an improper or inadequate policy or something else
such as failure to train or supervise, the fact remains that he must still present record
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evidence sufficient to permit a jury to find that Defendant Minor caused his injury
while deliberately indifferent to his safety. This Plaintiff has not done, which
perhaps accounts for the district court’s inadequate findings.

That Plaintiff

misunderstands his burden is well illustrated by his argument to both the district
court and us that Defendant Minor’s “inadequate training and supervision of
Hochmuth and others at the jail led to Hochmuth’s deliberate indifference to
[Plaintiff’s] safety.” Apellee’s Br. at 35 (emphasis added); see also Durkee, 2015
WL 8145257, at *3. Plaintiff’s argument in support of his individual liability claim
against Defendant Minor amounts to little more than Minor should be held liable
because he was in charge of the detention center. This simply is not enough to hold
Defendant Minor liable in his individual capacity.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 4

4

Defendants’ outstanding motion to file their Appendix Vol. II under seal is
GRANTED.
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