Carbajal v. Warner et al
Filing
448
ORDER. Defendants Fred McKee's and Bill Railey's Request for Clarification of Order Concerning Recommendation of United States Magistrate Judge 396 is GRANTED; That my order 390 is CLARIFIED to include my analysis, as stated in this ord er, of the objection 379 of defendants Fred McKee and Bill Railey; That on the basis outlined above, the objections stated in Defendants Fred McKee's and Bill Railey's Objection To Magistrate Judge Mix's Order 379 , which actually is an objection to the Recommendation of United States Magistrate Judge 369 , are OVERRULED. By Judge Robert E. Blackburn on 3/6/13. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
MYRL SERRA, in his individual capacity, et al.,
Defendants.
ORDER GRANTING MOTION FOR CLARIFICATION
Blackburn, J.
This matter is before me on Defendants Fred McKee’s and Bill Railey’s
Request for Clarification of Order Concerning Recommendation of United States
Magistrate Judge [DOC. #390] [#396]1 filed September 26, 2012. I grant the motion.
In an order [#390] entered September 24, 2012, I addressed a recommendation
[#369] of the magistrate judge. In the recommendation, the magistrate judge concluded
that the allegations in the plaintiff’s complaint concerning defendants Fred McKee and
Bill Railey were sufficient to state a claim on which relief could be granted against these
two defendants. Recommendation [#369], p. 20. Mr. McKee and Mr. Railey filed an
objection [#379] to the recommendation. I did not address their objection in my order
[#390] adopting the recommendation. In their present motion, defendants Fred McKee
and Bill Railey ask that I address their objection. I address and overrule their objection.
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“[#396]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
In their objection [#379], Mr. McKee and Mr. Railey argue that the magistrate
judge erroneously concluded that the allegations in the plaintiff’s complaint are sufficient
to state a claim against Mr. McKee and Mr. Railey. They argue that the plaintiff’s
allegations are not sufficient to state a claim against them because the plaintiff alleges
only that Mr. McKee and Mr. Railey were acting as supervisors of alleged wrong-doers.
In his Third Amended Complaint [#254], the plaintiff, Dean Carbajal, accuses
defendants Railey, McKee, Weldon, and Schroeder of “coercing Mr. Carbajal to
concede to and sign the contract illegally extending (Mr. Carbajal’s) deferred sentence
through the use of excessive force and threats of death.” Third Amended Complaint
[#254], p. 17. More specifically, Mr. Carbajal alleges:
In July of 2006 . . . Schroeder and Weldon . . . stripped and brutally beat
[plaintiff] . . . kicking him repeatedly . . . as they yelled profanities and
slanderous statements, “You fuckin rapist,” and threatened him, “If your
[sic] smart you’ll take what the District Attorney gives you. The life
expectancy is short in these parts.”
Id. at 8. The plaintiff alleges further that “McKee and Railey were present and laughed
at the abusive attacks of Weldon and Schroeder.” Id. Mr. McKee and Mr. Railey are
alleged to be supervisors of Mr. Schroeder and Mr. Weldon.
Under the applicable law, these allegations are sufficient to state a claim against
Mr. McKee and Mr. Railey:
In order to establish a § 1983 claim against a supervisor for the
unconstitutional acts of his subordinates, a plaintiff must first show the
supervisor's subordinates violated the constitution. Then, a plaintiff must
show an affirmative link between the supervisor and the violation, namely
the active participation or acquiescence of the supervisor in the
constitutional violation by the subordinates. In this context, the
supervisor's state of mind is a critical bridge between the conduct of a
subordinate and his own behavior. Because mere negligence is not
enough to hold a supervisor liable under § 1983, a plaintiff must establish
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that the supervisor acted knowingly or with deliberate indifference that a
constitutional violation would occur.
Serna v. Colorado Dept. of Corr., 455 F.3d 1146, 1151-52 (10th Cir. 2006).
Without question, the alleged actions of Mr. Schroeder and Mr. Weldon
demonstrate a constitutional violation. If Mr. McKee and Mr. Railey, the supervisors,
were present and observed Mr. Schroeder and Mr. Weldon taking these actions against
Mr. Carbajal, then Mr. McKee and Mr. Railey had direct knowledge of an obvious
constitutional violation while it was being committed in their presence by their
subordinates. Allegedly, Mr. McKee and Mr. Railey took no action to stop the violation
being committed by their subordinates. Rather, their alleged response to these
circumstances was to laugh. If true, these facts demonstrate “acquiescence of the
supervisor in the constitutional violation by the subordinates.” Id. Further, these
circumstances demonstrate either a knowing failure to act by the supervisors or
deliberate indifference by the supervisors to the commission of an obvious constitutional
violation by their subordinates. Under the law stated clearly in Serna, the plaintiff’s
allegations are sufficient to state a claim against Mr. McKee and Mr. Railey.
THEREFORE, IT IS ORDERED as follows:
1. That Defendants Fred McKee’s and Bill Railey’s Request for Clarification
of Order Concerning Recommendation of United States Magistrate Judge [DOC.
#390] [#396] filed September 26, 2012, is GRANTED;
2. That my order [#390] entered September 24, 2012, is CLARIFIED to include
my analysis, as stated in this order, of the objection [#379] of defendants Fred McKee
and Bill Railey; and
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3. That on the basis outlined above, the objections stated in Defendants Fred
McKee’s and Bill Railey’s Objection To Magistrate Judge Mix’s August 29, 2012
Order [#379], which actually is an objection to the Recommendation of United States
Magistrate Judge [#369], are OVERRULED.
Dated March 6, 2013, at Denver, Colorado.
BY THE COURT:
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