Wilson v. Falk et al
Filing
122
ORDER Denying Motion for Summary Judgment as to Certain Defendants on Remand. The Court DENIES Defendants' Motion for Summary Judgment (Doc. # 80 ) as to Defendants Sherwyn Phillip, Steven Frank, and James Fox. Plaintiff's claim against these Defendants survives. By Judge Christine M. Arguello on 11/26/2018. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-01459-CMA-NRN
TERRANCE D. WILSON,
Plaintiff,
v.
SHERWYN PHILLIP,
STEVEN FRANK, and
JAMES FOX,
Defendants.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AS TO CERTAIN
DEFENDANTS ON REMARD
This matter is before the Court upon the Court of Appeals for the Tenth Circuit’s
Opinion (Doc. # 100) affirming in part and reversing in part this Court’s Order Granting
Defendants’ Motion for Summary Judgment (Doc. # 93). Consistent with the Court of
Appeal’s Opinion and after reviewing the parties’ extensive supplemental briefings, the
Court now denies Defendants’ Motion for Summary Judgment (Doc. # 80) as to
Defendants Sherwyn Phillip, Steven Frank, and James Fox.
I.
PROCEDURAL HISTORY
The Court detailed the factual background of this case in its Order Granting
Defendants’ Motion for Summary Judgment (Doc. # 93), as did the Court of Appeals
when it affirmed in part and reversed in part that Order in Wilson v. Falk, 877 F.3d 1204
(10th Cir. 2017), see (Doc. # 100). This Court’s previous Order is incorporated by
reference, and the factual background explained therein need not be repeated here.
The Court recounts only the facts necessary to address the Court of Appeal’s
instructions on remand. See Wilson, 877 F.3d at 1213.
Plaintiff Terrance D. Williams was incarcerated at the Limon Correctional Facility
(“LCF”), a prison of the Colorado Department of Corrections (“CDOC”) in Limon,
Colorado, on July 2, 2012, when he was allegedly stabbed eleven times by a fellow
prisoner. (Doc. # 38.) Plaintiff asserts a single claim for relief under 42 U.S.C. § 1983
against the remaining Defendants, all employees of CDOC at LCF: Defendant Sherwin
Phillip, his case manager; Defendant Stephen Frank, a supervisor of the pod in which
Plaintiff was housed; and Defendant James Fox, the Intake Lieutenant and supervisor
of certain residential units, including the pod in which Plaintiff was housed.1 (Id. at 6–7.)
Plaintiff alleges that Defendants violated his Eighth Amendment rights “not to be
subjected to serious harm” by disregarding the allegedly known danger that Plaintiff
faced a “substantial risk of serious harm” from other inmates—members of a rival gang,
the Surenos—and by “failing to take reasonable measures to abate it.” (Id. at 6.)
Defendants moved for summary judgment on November 2, 2015, asserting that
they are entitled to qualified immunity because Plaintiff cannot show that they violated
1
Plaintiff initially asserted the same claim against three others: Frances Falk; Tom Norris; and
Joshua Chase. (Doc. # 38 at 1.) Defendant Frances Falk was dismissed from the action in this
Court’s November 2, 2015 Order Granting Defendants’ Motion for Summary Judgment (Doc.
# 80 at 5–7), which the Tenth Circuit later affirmed, Wilson v. Falk, 877 F.3d 1204, 1210 (10th
Cir. 2017). Defendant Tom Norris was dismissed from the action on April 21, 2015, when this
Court affirmed and adopted United States Magistrate Judge Michael Watanabe’s
Recommendation that the Court grant Defendant Norris’s Motion to Dismiss for Failure to State
a Claim. (Doc. # 53.) Defendant Joshua Chase was dismissed from the action on March 4,
2015, when this Court affirmed and adopted Magistrate Judge Watanabe’s recommendation
that the Court dismiss Defendant Chase for lack of service. (Doc. # 47.)
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his Eighth Amendment rights. (Doc. # 80 at 12.) Defendants also argued that summary
judgment should be granted in their favor because Plaintiff cannot prove that any
Defendant “personally participated” in the alleged constitutional violations, an “essential
allegation in a [Section] 1983 claim.” (Id. at 19–20) (citing, e.g., Bennett v. Passic, 545
F.2d 1260, 1262–63 (10th Cir. 1976)). Plaintiff filed his Response in opposition to
Defendants’ Motion for Summary Judgment on November 23, 2015 (Doc. # 82), to
which Defendants replied on December 7, 2015 (Doc. # 85).
This Court concluded that each Defendant is entitled to qualified immunity and
therefore granted Defendants’ Motion for Summary Judgment on June 29, 2016. (Doc.
# 93.) After identifying the applicable legal principles, including what a plaintiff must
allege where a defendant raises qualified immunity as a defense and under what
circumstances a prison official may be found to have violated the Eighth Amendment,
the Court analyzed Plaintiff’s allegations as to each Defendant. (Id. at 3–11.) As to
Defendant Phillip, the Court determined that he was entitled to qualified immunity
because the evidence, viewed in the light most favorable to Plaintiff, does not
demonstrate that Defendant Phillip violated Plaintiff’s Eighth Amendment rights. (Id. at
9.) The Court stated that Plaintiff has not shown that Defendant Phillip was aware of
facts “from which the inference could be drawn that a substantial risk of serious harm
existed and that Defendant Phillip did, in fact, draw that conclusion.” (Id.) The Court
therefore granted summary judgment to Defendant Phillip. (Id.) As to Defendants
Frank and Fox, the Court concluded that they too were entitled to qualified immunity:
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Regardless of whether Plaintiff did in fact have a conversation with
Defendants Frank and Fox as [another inmate] alleges, the Court finds that,
even if the conversation took place as alleged, this fact alone is insufficient
to overcome Defendants’ summary judgment motion. Plaintiff’s alleged
vague and non-specific reference to “some guys . . . making threats towards
his life” is insufficient to support a finding that Defendants Frank and Fox
were aware of facts from which the inference could be drawn that a
substantial risk of serious harm existed and that Defendants Frank and Fox
did, in fact, draw that conclusion. The Court finds that Defendants Frank
and Fox are entitled to qualified immunity and summary judgment on
Plaintiff’s Eighth Amendment claim because Plaintiff has failed to identify
evidence in the record sufficient to support a finding that Defendants Frank
and Fox knew of, but ignored, an excessive risk to Plaintiff’s safety.
(Id. at 11.) Accordingly, the Court granted Defendants’ Motion for Summary Judgment.
(Id.)
Upon Plaintiff’s appeal, see (Doc. # 95), the Court of Appeals for the Tenth
Circuit reversed this Court’s granting of summary judgment as to Defendants Phillip,
Frank, and Fox on December 17, 2017. Wilson, 877 F.3d at 1206. First, as to
Defendant Phillip, the Court of Appeals summarized Plaintiff’s testimony that he had
met with Defendant Phillip, his case manager, at least twice to discuss threats from the
Surenos and to request transfer to another facility, in addition to Plaintiff’s testimony that
he told Defendant Phillip of attacks by Surenos affiliates by submitting kites to him. Id.
at 1212–13. The Court of Appeals held that viewing that evidence in the light most
favorable to Plaintiff, “there exists a genuine dispute of material fact as to whether Mr.
Phillip was subjectively aware of the risk to [Plaintiff’s] health and safety and whether he
recklessly disregarded that risk.” Id. at 1213. The Court of Appeals also observed that
“unlike Mr. Phillip’s co-defendants,” Defendants Falk, Frank, and Fox, “there is no
evidence in the record through which [it] could conclude that Mr. Phillip did anything at
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all reasonable to abate the risk of which he was informed.” Id. Accordingly, the Court of
Appeals held that summary judgment in favor Defendant Phillip was “improper” and
reversed this Court’s Order to the extent it held otherwise. Id.
Second, as to Defendants Frank and Fox, the Court of Appeals reviewed
Plaintiff’s allegations that he spoke with Defendants Frank and Fox and “told them the
whole problem”—that “[t]he Surenos were after [him]”—and that Defendants Frank and
Fox “cuffed and moved” an inmate affiliated with the Surenos, Christopher Green,
upstairs from Plaintiff. Id. at 1211. The Court of Appeals reversed this Court’s grant of
summary judgment in favor of Defendants Frank and Fox on the grounds that “[v]iewing
that evidence in the light most favorable to [Plaintiff], a reasonable jury could find that
Mr. Fox and Mr. Frank were subjectively aware of a substantial risk of serious harm to
[Plaintiff.]” Id. Relevant here, the Court of Appeals also observed:
On appeal, the Colorado Attorney General hints at an alternative basis for
affirming, arguing that Mr. Fox and Mr. Frank took proactive steps to
separate Mr. Wilson and Mr. Green, and thus they were not deliberately
indifferent to his plight. Perhaps it is possible Mr. Fox and Mr. Frank acted
reasonably, but the district court reached no conclusion on that score, and
we decline to affirm on an alternative ground neither passed on below nor
cultivated on appeal. . . . Instead, we express no opinion on this issue and
leave it for the district court’s consideration on remand.
Id. at 1211–12 (emphasis added) (internal citation omitted).
In light of the Court of Appeals’s opinion, this Court revisited the parties’
summary judgment filings. See (Doc. ## 80, 82, 85.) Noting that Defendants only
briefly discussed that Defendants Frank and Fox acted reasonably by proactively
separating Plaintiff from Mr. Green, the Court requested supplemental briefing about
steps Defendants Frank and Fox took to protect Plaintiff, if any. (Doc. # 103.) On
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February 14, 2018, Defendants submitted their Supplemental Brief Regarding
Defendants Frank and Fox. (Doc. # 104.) Plaintiff responded in support of the Court of
Appeals’s opinion that Defendants Frank and Fox are not entitled to qualified immunity
on March 1, 2018, (Doc. # 105), to which Defendants replied on March 15, 2018 (Doc.
# 106). Upon Plaintiff’s request (Doc. # 107), the Court granted Plaintiff leave to depose
Defendants Frank and Fox on five questions related to why they separated Plaintiff from
Mr. Green. (Doc. # 115.) After deposing Defendants Frank and Fox, Plaintiff filed a
Supplemental Memorandum in Opposition to the Renewed Motion for Summary
Judgment on July 25, 2018 (Doc. # 118), to which Defendants responded on August 15,
2018 (Doc. # 121).
Consistent with the Court of Appeals’s opinion, the Court now reconsiders
Defendants’ Motion for Summary Judgment. (Doc. # 80.)
II.
A.
APPLICABLE LEGAL PRINCIPLES
SUMMARY JUDGMENT
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such
that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v.
Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
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non-moving party—in the matter presently before the Court, in the light most favorable
to Plaintiff. See id. However, conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point out to the Court a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party
may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving
party must “set forth specific facts that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at
671. Stated differently, the party must provide “significantly probative evidence” that
would support a verdict in her favor. Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d
1267, 1269 (10th Cir. 2012). “To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Id.
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B.
QUALIFIED IMMUNITY
The doctrine of qualified immunity “protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation and citation omitted). To defeat
a claim of qualified immunity, a plaintiff must show: “(1) that the defendant’ s conduct
violated a constitutional or statutory right, and (2) that the law governing the conduct
was clearly established at the time of the alleged violation.” Eaton v. Meneley, 379 F.3d
949, 954 (10th Cir. 2004); see also Pearson, 555 U.S. at 232. The Court is not required
to address these inquiries in any specific order, Pearson, 555 U.S. at 236–37, and if a
plaintiff fails to carry either part of his or her two-part burden, the defendant is entitled to
qualified immunity, Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
C.
EIGHTH AMENDMENT VIOLATIONS BY PRISON OFFICIALS
In this case, Plaintiff alleges that Defendant violated his constitutional rights
provided by the Eighth Amendment. (Doc. # 38 at 6–7.) The Eighth Amendment
prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. A
violation of the Eighth Amendment occurs when a prison official is deliberately
indifferent to a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511
U.S. 825, 828 (1994). Although prison officials have a duty to protect inmates from
violence at the hands of other inmates, not every injury resulting from violence between
inmates results in constitutionally liability. Id. at 833–34. An inmate asserting an Eighth
Amendment claim must demonstrate: (1) that the harm was “sufficiently serious” under
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an objective standard; and (2) that the prison officials had “subjective knowledge of the
risk of harm” but did nothing to prevent such harm. Howard v. Waide, 534 F.3d 1227,
1236 (10th Cir. 2008).
To satisfy the first requirement, a prison official’s “act or omission must result in
the denial of ‘the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at
834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Where a plaintiff asserts
that a prison official failed to prevent harm, the plaintiff “must show that he is
incarcerated under conditions posing a substantial risk of serious harm.” Id. (citing
Helling v. McKinney, 409 U.S. 25, 35 (1993)).
To satisfy the second requirement, the plaintiff must show that the prison official
has a sufficiently culpable state of mind—"one of ‘deliberate indifference’ to inmate
health and safety” in the context of a prison-conditions case like the one presently
before the Court. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). In order for
the plaintiff to show that the prison official was deliberately indifferent, the plaintiff must
show that: (1) the prison official was subjectively aware of the risk, and (2) the prison
official “recklessly disregarded” that risk. Id. at 828, 836; see also Wilson, 877 F.3d at
1209. Under this standard, prison officials “who actually knew of a substantial risk to
inmate health or safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S.
at 844 (emphasis added).
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III.
A.
DISCUSSION
DEFENDANT PHILLIP
The Court of Appeals for the Tenth Circuit reversed this Court’s conclusion that
Defendant Phillip is entitled to qualified immunity. Wilson, 877 F.3d at 1213. “Because
genuine issues of material fact exist as to whether Mr. Phillip was subjectively aware of
and disregarded a substantial risk to [Plaintiff’s] health and safety,” the Court of Appeals
wrote, “summary judgment [is] improper.” Id. On remand, this Court accordingly denies
Defendants’ Motion for Summary Judgment as to Defendant Phillip.
B.
DEFENDANTS FRANK AND FOX
1.
The Questions Before the Court
Defendants Frank and Fox move for summary judgment on the grounds that they
are entitled to qualified immunity. (Doc. # 80 at 12; Doc. # 104 at 3.) Defendants do not
argue the second requirement of the qualified immunity analysis; that is, they do not
argue that Plaintiff cannot show that the law governing their alleged conduct was clearly
established at the time of the alleged violation.2 Rather, their argument concerns the
first requirement of the qualified immunity analysis; they argue that Plaintiff cannot show
that they violated his constitutional rights. (Id.)
Accordingly, the Court will begin by examining the first requirement for qualified
immunity. The question for this Court, upon Defendants’ Motion for Summary
2
At oral argument before the Court of Appeals, “counsel for Defendants conceded that if [the
Court of Appeals] were to find an Eighth Amendment violation on these facts, it would be a
violation of clearly established law.” Wilson, 877 F.3d at 1209 (citing Howard v. Waide, 534
F.3d 1227, 1242 (10th Cir. 2009)).
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Judgment, is whether there is a genuine issue of material fact as to whether Defendants
Frank’s and Fox’s conduct violated Plaintiff’s Eighth Amendment rights.
As the Court previously explained, an inmate claiming violation of the Eighth
Amendment must demonstrate two elements: (1) that the harm was sufficiently serious
under an objective standard, and (2) that the prison officials were deliberately
indifferent. Farmer, 511 U.S. at 834; Howard, 534 F.3d at 1236–40. With regard to the
first element, Defendants have failed to carry their burden to demonstrate an absence of
a genuine dispute of material fact regarding whether Plaintiff has sufficiently established
that the harm was objectively and sufficiently serious. The Court of Appeals held that in
“[v]iewing the evidence in the light most favorable to [Plaintiff], a reasonable jury could
find . . . a substantial risk of serious harm to [Plaintiff].” Wilson, 877 F.3d at 1211.
This Court’s analysis therefore turns on the second element of Plaintiff’s Eighth
Amendment claim, whether Defendants Frank and Fox were deliberately indifferent.
Deliberate indifference, as the Court described above, requires that: (1) the prison
officials were subjectively aware of the risk, and (2) the prison officials recklessly
disregarded that risk. Farmer, 511 U.S. at 828, 836; Wilson, 877 F.3d at 1209. The
Court of Appeals ruled that there is a genuine dispute of material fact regarding the first
prong; “[v]iewing the evidence in the light most favorable to [Plaintiff], a reasonable jury
could find that Mr. Fox and Mr. Frank were subjectively aware” of the risk of sufficiently
serious harm to Plaintiff. Wilson, 877 F.3d at 1211.
Defendants’ Motion for Summary Judgment therefore more precisely turns on the
second prong of deliberate indifference, whether Defendants Frank and Fox
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recklessly disregarded the risk to Plaintiff. On that count, the Court of Appeals
tasked this Court with considering on remand Defendants’ argument “that Mr. Fox and
Mr. Frank took proactive steps to separate [Plaintiff] and Mr. Green,” and that
Defendants Frank and Fox therefore did not recklessly disregard any risk to Plaintiff. Id.
at 1211–12.
2.
Defendants’ Arguments Concerning Reckless Disregard
Defendants conclude that they are entitled to summary judgment because they
demonstrate the absence of a genuine dispute of material fact concerning whether they
recklessly disregarded—and were therefore deliberately indifferent to—the threats to
Plaintiff. (Doc. # 104 at 12.) Defendants rely on the holdings of the Supreme Court in
Farmer and the Court of Appeals in Howard for the precept that:
[B]ecause the Eighth Amendment requires only “reasonable safety,” prison
officials who “actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.”
Howard, 534 F.3d at 1239 (emphasis added) (quoting Farmer, 511 U.S. at 844–45); see
(Doc. # 104 at 4.) Defendants argue that, viewing the evidence in the light most
favorable to Plaintiff, they responded reasonably to any information about a threat
Plaintiff told them by: “1) immediately remov[ing] a threat – Christopher Green – from
[Plaintiff’s] living unit; 2) inform[ing] [Plaintiff] they would attempt to keep him in Living
Unit 1; and 3) [telling] [Plaintiff] to speak with his case manager about any threats or
issues.” (Doc. # 104 at 7.) “[T]he totality of the evidence and actions of [Defendants]
Frank and Fox as alleged by [Plaintiff] do not show they ‘knowingly or recklessly
declined to act,’” Defendants assert. (Id. at 10) (quoting Howard, 534 F.3d at 1239).
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3.
Genuine Issues of Material Fact as to the Constitutional Reasonableness
of Defendants’ Response
The Court disagrees with Defendants. Defendants Frank and Fox fail to
demonstrate that there are no genuine disputes of material fact as to whether they
responded reasonably to the alleged threats to Plaintiffs. Rather, Plaintiff’s allegations
raise genuine issues of material fact concerning whether Defendants Frank’s and Fox’s
response was constitutionally reasonable.
In determining whether Defendants Frank’s and Fox’s response was
constitutionally reasonable, the Court is guided by the Court of Appeals for the Tenth
Circuit’s statement that “[a]n official responds to a known risk in an objectively
unreasonable manner if he knew of ways to reduce the harm but knowingly or
recklessly declined to act.” Howard, 534 F.3d at 1239–40 (quoting Rodriguez v. Sec’y
for Dep’t of Corr., 508 F.3d 611, 620 (11th Cir. 2007)). The Court of Appeals instructs
the Court to “consider what actions [the prison officials] took, if any, as well as available
alternatives that might have been known to them.” Id. at 1240 (emphasis added)
(citing Tafoya v. Salazar, 516 F.3d 912, 918 (10th Cir. 2008) (“A prison official may be
liable for a substantial risk of serious harm to inmates in spite of efforts reasonably
calculated to reduce the risk, if he intentionally refuses other reasonable alternatives
and the dangerous conditions persist.”)).
In this case, when viewing the evidence in the light most favorable to Plaintiff,
Defendants Frank and Fox knew of a way to reduce the risk of harm to Plaintiff—by
following CDOC’s protocol for addressing threats to an inmate by other inmates—but
knowingly declined to act. Defendant Frank himself explained in his deposition how this
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protocol would have been carried out in regard to Plaintiff:
[CDOC protocol] . . . would include interviewing [Plaintiff] and completing a
written custody report. [Plaintiff] would have been placed in segregation for
his safety and the Shift Commander would have completed a removal from
population form. Then, an investigation would ensue to verify the validity of
[Plaintiff’s] custody issue. All of the above would have been documented.
(Doc. # 80-7 at 2.) Defendant Fox also acknowledged this protocol in his deposition:
“the normal procedure would be to have the inmate placed in segregation for their
safety pending an investigation into the validity of the custody issue.” (Doc. # 80-8 at 3.)
Defendants Frank’s and Fox’s deposition testimony demonstrates that they were aware
of a way to reduce the risk of injury to Plaintiff: by following CDOC’s protocol, initiating
an investigation into Plaintiff’s alleged custody issue, and placing Plaintiff in segregation
to protect him. Plaintiff alleges that Defendants Frank and Fox did not follow this
protocol, (Doc. # 105 at 3, 6–7; Doc. # 118 at 4–5), an allegation Defendants Frank and
Fox do not dispute.
Viewing the evidence in the light most favorable to Plaintiff, the evidence
suggests that Defendants Frank and Fox had a significant reasonable response
available to them—following CDOC’s protocol—but did not pursue that course of action.
Accordingly, Defendants Frank and Fox have not established the absence of genuine
issues of material fact as to whether their response was sufficiently reasonable under
the Eighth Amendment. A reasonable jury could find that Defendants Frank and Fox
recklessly disregarded, and were as a result deliberately indifferent to, the threats facing
Plaintiff because they failed to respond reasonably and to implement to CDOC’s
protocol. Defendants Frank and Fox are therefore not entitled to summary judgment on
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Plaintiff’s Eighth Amendment claim.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion for Summary
Judgment (Doc. # 80) as to Defendants Sherwyn Phillip, Steven Frank, and James Fox.
Plaintiff’s claim against these Defendants survives.
DATED: November 26, 2018
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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