Gonzalez v. Cooke et al

Filing 95

MEMORANDUM OPINION AND ORDER granting in part and denying in part 92 Defendants' Motion for Summary Judgment. The motion is denied as to the Commander Defendants and the Sheriff in his official capacity and granted with respect to Sheriff Cooke in his individual capacity. by Judge Richard P. Matsch on 3/24/2015. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action Number 12-cv-00366 RPM
MICHAEL GONZALEZ
Plaintiff,
v.
SHERIFF JOHN COOKE, in his official and individual capacities;
COMMANDER GREG BROSWELL; in his individual capacity;
COMMANDER KENNETH LEACH; in his individual capacity;
COMMANDER PAUL GLANZ; in his individual capacity;
COMMANDER SALLY GOMEZ; in her individual capacity; and
COMMANDER JERAMY HETTINGER, in his individual capacity;
Defendants.
_____________________________________________________________________
MEMORANDUM OPINION AND ORDER
_____________________________________________________________________
On February 12, 2010, Ernest Williams attacked Michael Gonzales in the day
room of Housing Unit 202 of the Weld County Jail in Greeley, Colorado. Both men were
inmates of the Jail, managed by Weld County Sheriff John Cooke. Gonzales filed this
civil action to recover damages for the injuries he sustained in the attack, claiming under
42 U.S.C. § 1983 that the defendants violated the Eighth Amendment to the United
States Constitution because the individual defendants were deliberately indifferent to a
substantial risk of physical harm, known to them, and failed to act to protect him. He
claims that the Sheriff failed to establish an adequate policy and failed to train the jail
staff to provide adequate protection for inmates who are known to be targets for
assaults because they have provided information to law enforcement authorities to
assist in the prosecution of fellow gang members.

The defendants moved for summary judgment of dismissal, denying any
Constitutional violation and asserting qualified immunity for liability of the individual
defendants. That motion has been fully briefed and oral argument was heard. The
following narrative is based on the exhibits submitted with the briefing, viewing the facts
in the light most favorable to Plaintiff as the non-moving party.
There are criminal gangs well known to law enforcement in Weld County. One
such gang is the Surenos gang in which Michael Cole (nickname “Shark”) is a leader
and Michael Gonzales (nickname “Speedy”) is a member. Other members include
Ernest Williams (nickname “Howdy”) and Daniel Cardenas. At the time of the attack
Cardenas was housed in Unit 203 and Cole was in a different unit.
Investigator James Hayward, a deputy of the Sheriff, was assigned to investigate
gang activity in the Jail. Gangs were described as “Security Threat Groups” (“STGs”).
On March 12, 2009, a note (in gang parlance a “wila”) was confiscated from Williams.
Cole was the author. He identified “Speedy” as a snitch based on reading discovery
information provided in the course of criminal proceedings against Cole on serious
criminal charges. Cole, Williams and Gonzales were all in the Jail at that time.
As a result of that note, a “Keep Separate” or “KSEP” order was entered in the
Jail’s computer system directing that Cole and Gonzales be kept apart. The order was
indexed under both names.
The criminal investigation for the charges against Cole was being done by
Greeley Police Detective Scott Barber, beginning with a shooting in November, 2008.
Gonzales became a key witness for four criminal charges against Cole when Gonzales

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entered into a proffer agreement with the Weld County District Attorney’s Office in May,
2009.
Gonzales was on parole in early February, 2010. His parole officer, Kristen
Maris, told Detective Barber that she thought Gonzales was in danger because of
threats from Sureños gang members. At a meeting among Gonzales, Maris and
Barber, the detective offered the protection of a Witness Protection program, but
Gonzales declined because he did not want to leave Colorado and lose contact with his
family.
On February 4, 2010, parole was revoked and Gonzales was booked into the
Jail. That information was not given to Detective Barber. Cole, Williams and Cardenas
were in the Jail. On February 10, 2010, Investigator Hayward received an anonymous
tip through the Jail inmate telephone system that Cole had put a “hit” on an inmate in
either Units 202 or 203 and ordered inmates Cardenas or Williams to execute the order.
Cole was in a unit other than 202 and 203. Hayward considered this tip to be credible
information and all of the individual defendants were made aware of it.
At 1506 hours on February 12, 2010, Williams was heard on a monitored
telephone call with his mother, expressing anger about snitches and warning her not to
visit him on the following day. He assaulted Gonzales at 1650 hours.
The defendants had the rosters for the inmates in Units 202 and 203. There was
speculation among them about who might be the potential victim of the expected
assault. No one looked in the computer to see the KSEP between Cole and Gonzales.
Commanders had the authority to place Williams and Cardenas in administrative
segregation without any due process procedure, thereby protecting all of the other
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inmates in Units 202 and 203 while investigating the tip to attempt to identify the
potential victim. That identification would have been simple if they had reviewed the
KSEP based on the wila found on Williams in 2009.
The plaintiff has shown sufficient evidence to support a finding that the
defendants had actual knowledge of a threat of physical violence to the inmates of Units
202 and 203 from inmates Williams and Cardenas and the failure to remove them from
their units showed deliberate indifference to their safety, satisfying the subjective intent
element of an Eighth Amendment violation under Farmer v. Brennan, 511 U.S. 825
(1994). The defendants have challenged some of these facts raising questions that
may affect a determination of the reasonableness of inferences to be drawn from
circumstantial evidence of the state of mind of each of the individual defendants.
These defendants seek to avoid a jury trial, claiming qualified immunity because
they say that they did not know that Gonzales was the intended victim and, therefore,
each of them did not have sufficient knowledge of the plaintiff’s exposure to the specific
risk of an assault by Williams or Cardenas. The defendants knew that Williams and
Gonzales had been friends in the Surenos gang and they had been housed in the same
unit and even in the same cell many times before without incident. They thought that
would make it unlikely that Williams was going to attack Gonzales.
Qualified immunity is a legal issue to be decided by the court under an objective
standard, that is, whether a reasonable jail official would have understood that his
failure to act to protect Gonzales and the other inmates by segregating Williams and
Cardenas would be a violation of the Eighth Amendment. Ordinarily that question is
answered at summary judgment. Under exceptional circumstances the case must first
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go to the jury when there are questions of historical facts that are essential to the
constitutional question involved. The plaintiff has a Seventh Amendment right to a jury
determination of those facts.
The question in this case is whether the defendants had enough information to
know that they must remove Williams from Unit 202 to protect Gonzales and the others
in that unit from Williams. That question must be answered separately as to each of the
Commanders. Defendants Greg Broswell and Kenneth Leach were on duty when the
attack occurred. It is not clear when each of the others were on duty and for which units
they were responsible. All of them had access to the computer files and rosters. It is
not clear who had talked with Detective Hayward and what the conversations included.
He is dead.
There is a dispute as to whether Detective Barber knew that Gonzales was back
in Jail and what communications he had with Detective Hayward on February 11, 2010.
Melanie Sedlak, the defense attorney for Gonzales, said that knowing of his proffer
against Cole, she warned an unidentified commander of the danger. The identity of that
commander is not known on this record.
It is not clear what information was on the rosters when defendants reviewed
them and what communications were passed on when shift changes were made.
These and other fact questions relate to the subjective intent of each of the
defendants making them liable for deliberate indifference to a known risk of physical
harm to the plaintiff. The state of mind of a defendant is quintessentially a matter for a
jury making reasonable inferences from circumstantial evidence.

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Under the authority of Maestas v. Lujan, 351 F.3d 1001, 1005 (10th Cir. 2003)
and Gonzales v. Duran, 590 F.3d 855, 856 (10th Cir. 2009) the question of which, if any,
of the individual defendants is entitled to qualified immunity is deferred until a jury
answers these questions in an interrogatories verdict form.
Sheriff Cooke is not individually liable for damages in this case because the
plaintiff has failed to show his personal participation in these events. The Sheriff’s
Office as a governmental entity is liable if the individual defendants acted pursuant to a
policy set by the Sheriff or if there is an affirmative link between a failure to train or
supervise the jail officers. In this case, Sheriff Cooke testified that, based on the
internal investigation of this assault, he found the commanders’ actions were approved
because they did not have enough information to believe that Gonzales was the
intended victim. That is a ratification of their failure to put Williams in segregation and
demonstrates a failure of a policy that should have at least required a search of the
computers for KSEPs, knowing that Gonzales was an informant against Cole, the
source of the order to Williams and Cardenas. There is sufficient support for trial of the
Sheriff.
Upon the foregoing, it is
ORDERED that the defendants’ motion for summary judgment is denied as to the
Commander Defendants and the Sheriff in his official capacity and granted with respect
to Sheriff Cooke in his individual capacity.
DATED: March 24th, 2015
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge
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