Handy v. Cummings et al
Filing
234
ORDER granting in part and denying in part 212 Motion to Alter Judgment by Judge Wiley Y. Daniel on 01/14/14.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-00581-WYD-KMT
WYATT T. HANDY JR.,
Plaintiff,
v.
SGT. CUMMINGS, individual and official capacity, et al.,
Defendants.
ORDER
THIS MATTER is before the Court on Defendants’ Motion to Alter or Amend a
Judgment Pursuant to Fed.R.Civ.P. 59(e) filed on April 22, 2013. A response was filed
by pro se Plaintiff on May 31, 2013, and a reply was filed on June 14, 2013. After
counsel was appointed for Plaintiff, counsel filed a response on October 22, 2013, per
the Court’s request. Defendants filed a reply on November 5, 2013. For the reasons
discussed below, Defendants’ motion is granted in part and denied in part.
By way of background, the “Motion for Summary Judgment of All Defendants
Except County of Arapahoe to Plaintiff’s Third Amended Complaint” [“summary
judgment motion”] was filed on March 29, 2012. The motion was referred to Magistrate
Judge Tafoya, and a Recommendation of United States Magistrate Judge was issued
on November 27, 2012. Magistrate Judge Tafoya recommended therein that summary
judgment be granted in favor of all remaining Defendants on all of Plaintiff’s claims.
On March 25, 2013, I issued an Order Affirming in Part and Rejecting in Part
Recommendation of United States Magistrate Judge [“the March 25, 2013 Order”].
Defendants seek an order altering or amending only a portion of that Order—the ruling
denying the summary judgment motion as to Defendants’ state law claims. (March 25,
2013 Order at 47-48). In the March 25, 2013 Order, I rejected as moot the
recommendation to decline supplemental jurisdiction over the state law claims on the
basis that federal claims remained pending. (Id.) I also stated in a footnote that
“Defendants provided no other argument in their summary judgment motion as to why
the state law claims should be dismissed.” (Id. at 48 n. 16.)
Defendants take issue with the statement in the footnote, arguing that the March
25, 2013 Order should be altered or amended because the Court overlooked arguments
they made as to why summary judgment was proper as to the state law claims. I agree
that there were arguments as to the state law claims that I did not address, and will
grant Defendants’ motion to alter or amend to the extent it asks the Court to address
those arguments on the merits. See Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222,
1228 (10th Cir. 2009) (a motion to alter or amend a judgment is appropriate where “the
court has misapprehended the facts, a party’s position, or the controlling law”).
Turning to the arguments in the summary judgment motion, Defendants first
asserted that Claims Fifteen (State Tort Assault and Battery), Seventeen (State Tort
Negligence Per Se ) and Eighteen (State Tort Negligent Supervision) should be
dismissed because Plaintiff failed to provide notice as to his claims, a jurisdictional
prerequisite pursuant to the Colorado Governmental Immunity Act [“CGIA”], Colo. Rev.
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Stat. § 24–10–109 (2012). (Summ. J. Mot. at 37.) I note, however, that Plaintiff did file
a “Statutory Notice of Intent Pursuant to § 24-10-109”. (Summ. J. Mot., Ex. A-38.) The
issue is whether the notice was sufficient.
Written notice is a jurisdictional prerequisite to file a lawsuit against a
governmental entity. Colo. Rev. Stat. § 24–10–109 (2011). The notice must contain a
“concise statement of the factual basis of the claim, including the date, time, place, and
circumstances of the act; the name and address of any public employee involved; a
concise statement of the nature and extent of the injury suffered; and a statement of the
amount of monetary damages requested.” Carothers v. Archuleta Cnty. Sheriff, 159
P.3d 647, 652 (Colo. App. 2006) (citing § 24–10–109(2)).
In the case at hand, Plaintiff gave notice of, among other things, his “intent to sue
for . . . various state law claims, . . . battery, negligence, gross negligence, etc.” (Id. at
1.) The notice also named substantially all of the defendants to whom the lawsuit was
“being leveled”. (Id. at 1-2.)1 While Defendants argue to the contrary, I find that
Plaintiff’s reference to battery was sufficient to alert Defendants to the fifteenth claim
asserting state tort assault and battery. I further find that Plaintiff’s reference to
negligence was sufficient to alert Defendants to the seventeenth and eighteenth claims
asserting negligence per se and negligent supervision. Carothers, 159 P.3d at 652
(“the provisions of § 24-10-109(2) regarding the contents of the notice, are satisfied if
the claimant has substantially complied with their requirements. . . .[s]ubstantial
1
While Plaintiff did not name Defendants Vigil and Jones, who were sued in Count Fifteen, he
added these Defendants in the Third Amended Complaint after discovery had occurred.
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compliance in this context requires the claimant to make a good faith effort to include
within the notice, to the extent the claimant is reasonably able to so do, each item of
information listed” in the statute); see also Hamon Contractors, Inc. v. Carter & Burgess,
Inc., 229 P.3d 282, 298 (Colo. App. 2009) (“The plaintiff has the relatively lenient burden
of demonstrating that it complied with the notice requirements” and must only show
substantial compliance with the content requirements.”)
I further find that Defendants have not shown that they were “adversely affected”
in their ability to defend against the claim[s] by reason of any omission or error in the
notice.” Awad v. Breeze, 129 P.3d 1039, 1042 (Colo. App. 2005). Plaintiff’s notice of
claim, together with his administrative grievances, were sufficient to allow Defendants to
conduct an investigation, make fiscal arrangements, and prepare a legal defense for
each state law claim. See Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 68 (Colo.
1990). Accordingly, the argument that summary judgment should be granted as to
Claims Fifteen, Seventeen, and Eighteen because notice was insufficient is denied.
The motion to alter or amend the judgment is thus denied as to this issue.
However, I grant summary judgment motion as to Claim Fifteen asserting injuries
due to an alleged assault and battery on another basis. Under the CGIA, a public entity
is immune from liability in all claims for injury which lie in tort or could lie in tort
regardless of whether that may be the type of action or the form of relief chosen by the
claimant. Colo. Rev. Stat. § 24-10-106 (2011.) Although sovereign immunity is waived
by a public entity in an action for injuries resulting from the operation of any correctional
facility or jail, such waiver does not apply to claimants like Plaintiff who were
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incarcerated but not yet convicted of the crime for which such claimant was being
incarcerated unless the claimant can show injury due to negligence. Id., § 24-10106(1.5)(b) (2011). Negligence is not an element of assault and battery; instead, that
tort is an intentional crime. See Adams v. Corrections Corp. of Am., 137 P.3d 1190,
(Colo. App. 2008) (stating the elements of assault and battery). Accordingly, I find that
sovereign immunity has not been waived as to this tort, and Claim Fifteen must be
dismissed for lack of subject matter jurisdiction.
Finally, Defendants argued in their summary judgment motion that claims
Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-One must, as a matter of
law, be dismissed because Plaintiff failed to demonstrate that a genuine issue of
material fact exists for each of these claims. (Mot. at 38-39.) Plaintiff’s counsel argues
in response that the Court has already found that a genuine issue of material fact exists
relating to the confiscation of Plaintiff’s legal work and religious materials, and that this
finding provides the necessary support for these state law claims.
I first address Claims Sixteen (negligence) and Seventeen (negligence per se).
The elements for negligence are a duty, a breach, causation, and an injury. Casebolt v.
Cowan, 829 P.2d 352, 356 (Colo. 1992). The elements for negligence per se are a
statute or ordinance that defines the standard of care, the plaintiff is a member of the
class intended to be protected by the statute or ordinance, and the injuries suffered
were the type the statute or ordinance was enacted to prevent. Lui v. Barnhart, 987
P.2d 942, 946 (Colo. App. 1999). “The underlying principle of the common law doctrine
of negligence per se is that legislative enactments such as statutes and ordinances can
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prescribe the standard of conduct of a reasonable person such that a violation of the
legislative enactment constitutes negligence. Lombard v. Colo. Outdoor Educ. Ctr.,
Inc., 187 P.3d 565, 573 (Colo. 2008).
In the case at hand, Plaintiff’s counsel points out that inmates retain the
fundamental protections of the First Amendment. Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007). Further, counsel points out that detention facility policy reinforces
these basic rights of access to legal materials and religious freedom. (See, e.g., Pl.’s
Resp. to Def.’s Mot. to Alter or Amend J. Pursuant to Fed. R. Civ. P. 59(e), ECF No.
226, Ex. 1, ACSO-001624, Arapahoe County Sheriff’s Office Detention Policy &
Procedure Manual, DET 607(F)(2)(f); see also Ex. 2, ACSO-001523, Detention Services
Inmate Informational Handbook, p.9.) Accordingly, I find that there may be a genuine
issue of material fact as to whether Defendants breached a duty regarding Plaintiff’s
First Amendment rights as reinforced by the detention facility policy by confiscating his
legal work and materials. This may be sufficient for the negligent and negligent
supervision claims to survive summary judgment. However, I find that these issues
have not been adequately developed, and that this should be resolved at trial or through
another motion, rather than through Defendants’ motion to alter or amend which relies
on the summary judgment motion. Accordingly, the request in the motion to alter or
amend to grant summary judgment as to Plaintiff’s claims of negligence and negligence
per se is denied.
As to Claims Eighteen (state tort negligent supervision) and Nineteen (state tort
respondeat superior), summary judgment was sought as to Defendants Robinson,
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Sauter and the Lieutenant and Sergeant Defendants on the basis that Plaintiff failed to
prove any wrongful actions by the deputy defendants. See Arnold By & Through Valle
v. Colorado State Hosp., Dept. of Institutions, 910 P.2d 104, 107 (Colo. App. 1995) (to
have a valid negligent supervision or respondeat superior claim, Plaintiff must allege
and prove wrongful actions by the person supervised). Here, however, I denied
summary judgment as to certain deputies; namely, Doizaki, Emerson and Kleinheksel,
in relation to the confiscation of Plaintiff’s work and religious materials. I also noted that
Doizaki was alleged to be Emerson’s and Kleinheksel’s supervisor. (March 25, 2013
Order at 25.) Thus, the only argument made by Defendants in support of summary
judgment as to this claim is without merit.
However, I note that to prove negligent supervision under Colorado law, “a
plaintiff must prove (1) the defendant owed the plaintiff a legal duty to supervise others;
(2) the defendant breached that duty; and (3) the breach of the duty caused the harm
that resulted in damages to the plaintiff.” Settle v. Basinger, 11CV1342, 2013 WL
781110, *3 (Colo. App. Feb. 28, 2013). Whether Plaintiff created genuine issues of
material fact as to these elements was not argued in the summary judgment motion.
Arguably, given my ruling on the summary judgment motion, the only Defendant who
could have owed a legal duty to supervise others was Sergeant Doizaki. However,
since this argument has not been properly developed, I decline to consider it. This is
an issue that must be dealt with at trial or through another motion. Accordingly, I deny
the motion to alter or amend as to Claims Nineteen and Twenty.
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Defendants also argue that they are entitled to summary judgment on Plaintiff’s
state tort law failure to train and supervise asserted in Claim Twenty. They assert that
this claim is more properly brought as a 42 U.S.C. § 1983 claim based on failure to
train. While that may be true, this claim is specifically alleged as a state tort law, not a
federal claim. As a state law claim, it appears to be duplicative of Claims Nineteen and
Twenty. Indeed, Colorado appears to characterize a negligent training and supervision
claim as the same claim. See, e.g., Kahland v. Villarreal, 155 P.3d 491, 493 (Colo. App.
2006). Thus, I will grant the alter to amend the judgment as to this claim, and dismiss it
as duplicative.
Finally, I agree with Defendants that they should be granted summary judgment
as to Claim Twenty-One, a state tort conspiracy claim. As with the federal conspracy
claim alleged by Plaintiff for which I granted summary judgment, I find that Plaintiff failed
to allege and prove any specific facts in paragraphs 1-74 of the Complaint
demonstrating the existence of a conspiracy by all Defendants. See Double Oak Const.
L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140, 146 (Colo. App. 2003) (plaintiff
required to prove an object to be accomplished; an agreement by two or more persons
to accomplish that object; one or more unlawful acts which were performed to
accomplish a goal; and damages as a proximate result). Plaintiff’s conclusory
allegation in paragraph 153 of the Complaint that all defendants conspired is without
factual support. Accordingly, the motion to alter or amend is granted as to this claim.
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In conclusion, it is
ORDERED that Defendants’ Motion to Alter or Amend a Judgment Pursuant to
Fed.R.Civ.P. 59(e) filed on April 22, 2013 (ECF No. 212) is GRANTED IN PART AND
DENIED IN PART as set forth in this Order. The Order of March 25, 2013 (ECF No.
204) is amended to reflect that the “Motion for Summary Judgment of All Defendants
Except County of Arapahoe to Plaintiff’s Third Amended Complaint” is also now
GRANTED as to Claim Fifteen (state tort assault and battery), Claim Twenty (state tort
failure to train and supervise), and Claim Twenty-One (state tort conspiracy).
Dated: January 14, 2014
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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