Roemer et al v. Carochi et al

Filing 155

ORDER. Plaintiff's Motion for Partial Summary Judgment 109 is DENIED as moot. Defendant's Motion for Summary Judgment 110 is GRANTED. All claims against defendant Ali Shoaga are dismissed. By Judge Philip A. Brimmer on 9/27/17. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01655-PAB-NYW
THE ESTATE OF JAMES ROEMER,
Plaintiff,
v.
ALI SHOAGA, in his individual capacity,
DAVID JOHNSON, in his individual capacity,
NATHAN ALGIEN, in his individual capacity,
THOMAS BOYER, in his individual capacity, and
CHASE FELZEIN, in his individual capacity,
Defendants.

ORDER

This matter is before the Court on Plaintiff’s Motion for Partial Summary
Judgment [Docket No. 109] and Defendant’s Motion for Summary Judgment [Docket
No. 110] filed by defendant Ali Shoaga.1 The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
I. BACKGROUND
This case arises from the June 13, 2012 murder of James Roemer by his
cellmate, Paul Farley.

1

1.

The initial complaint misspelled Mr. Shoaga’s name as “Showaga.” Docket No.

A. Background2
1. Factual Background
Mr. Farley has an extensive history of violence and threats against other
inmates. Mr. Farley was incarcerated by the Arizona Department of Corrections
(“ADC”) beginning on August 6, 1997. Docket No. 110-4 at 2. In July 2011, Mr. Farley
was transferred to the Colorado Department of Corrections (“CDOC”) to serve a lengthy
sentence for a robbery he committed in Pueblo, Colorado. Docket No. 110 at 1, ¶ 1
(citing Docket No. 110-1). On June 23, 2011, bef ore Mr. Farley was transferred to
Colorado, Herb Haley of the ADC wrote a letter (“Haley letter”)3 summarizing Mr.
Farley’s history and “current management concerns.” Docket No. 110-4 at 2. The ADC
provided materials about Mr. Farley to the CDOC, which the CDOC used to assess Mr.
Farley for placement in its various facilities. See Docket No. 109-3. The Haley letter
was included in these materials. Plaintiff’s Statement of Undisputed Material Facts
(“PSUMF”) 23; Docket No. 109-9 at 12, 71:4-72:19.
The Haley letter indicated that Mr. Farley was incarcerated in the ADC for armed
robbery, aggravated assault, manslaughter, and theft by extortion. Docket No. 110-4 at
2. The letter also stated that “Inmate Farley has an extensive disciplinary history, most
notable for: causing death/great bodily harm, sexual assault, weapons possession/
manufacture, assaults, fighting, and throwing on staff and other inmates.” Id. at 3. The
letter also listed the following security and safety concerns regarding Mr. Farley: While
2

The following facts are undisputed by the parties unless otherwise indicated.

3

The Haley letter is also attached to the amended complaint. Docket No. 141-1.
Its authenticity is not contested by Mr. Shoaga. See Docket No. 116 at 2, ¶ 3.
2

being transported to the ADC from Kansas, Mr. Farley escaped using force. Id. at 3. In
1999, Mr. Farley was disciplined for sexually assaulting his cellmate with a lethal
weapon. Id. In 2000, Mr. Farley sliced open his cellmate’s back with a razorblade.
Docket No. 110 at 2-3, ¶ 6(e) (citing Docket No. 110-4 at 26-43). In 2001, while in
administrative segregation, Mr. Farley assisted the inmate in an adjoining cell to commit
suicide by strangling him with a bed sheet, resulting in a manslaughter conviction.
Docket No. 110-4 at 3.
The Haley letter states that Mr. Farley was targeted by the Aryan Brotherhood, a
prison gang, and was either a victim or predator in relation to 25 other inmates. Docket
No. 110-4 at 3. The letter also recounts various threats and other statements made by
Mr. Farley, including “documented statements to investigators that he ‘had tried to enter
protective segregation [“PS”] for the purposes of killing a PS inmate,’ . . . ‘I want to put
steel in someone,’ and ‘it would be easier to find a victim in PS.’” Id.4 The letter
rejected explaining these statements away as “‘bravado’ to ensure a single cell setting”
because “the violence this inmate has demonstrated in the past has clearly established
a threat towards other inmates.” Id.
2. Mr. Farley’s Transfer to Colorado
At the CDOC’s intake facility, the Denver Reception and Diagnostic Center
(“DRDC”), a CDOC case manager completed a Notice for Administrative Segregation
4

Notwithstanding these statements about wanting to use protective segregation
to kill someone, the letter states that he was granted voluntary protective segregation
on April 20, 2009. Docket No. 110-4 at 2. Shortly thereafter, on April 28, 2009, “it was
the decision of the department to override Inmate Farley’s classification to maximum
custody due to his predatory behavior, and . . . that he should remain in maximum
custody while in the ADC.” Id. at 4.
3

Hearing to set a hearing to determine if Mr. Farley would be placed in administrative
segregation. Docket No. 109 at 4, ¶ 11 (citing Docket No. 109-5); Docket No. 116 at 23, ¶ 11. The notice recited some of Mr. Farley’s past disciplinary history and stated,
“Offender Farley’s excessive violation of policy, procedures, and disregard for authority
poses a threat to the safety and security of the facility, staff, and other offenders.”
Docket No. 109-5.
Defendant Ali Shoaga was the chairperson of the three person administrative
segregation hearing committee and, as chairperson, he was responsible for making the
recommendation as to whether Mr. Farley should be placed in administrative
segregation. Docket No. 110 at 2, ¶ 4. On Septem ber 1, 2012, Mr. Shoaga
recommended Mr. Farley not be placed in administrative segregation, stating:
At his hearing, offender Farley admitted that he was guilty of the
infractions committed while in Arizona. The available information
indicates that all of offender Farley’s disciplinary infractions happened
nearly a decade ago. The information available also seems to indicate
that some of the reason for his confinement in Segregation while in
Arizona was due to custody issues. There is no documented evidence of
disciplinary infractions within the last ten years.
Docket No. 110-2.
At his deposition, Mr. Shoaga testified that he had reviewed the materials from
the ADC, including the Haley letter, before the administrative segregation hearing.
Docket No. 109 at 6, ¶ 23 (citing 109-9 at 12, 71:21-72:19). He also testif ied that he
was aware that Mr. Farley posed more than a low risk,5 but he thought that the CDOC’s
classification system and treatment programs would “mitigate the level of risk.” Docket
5

It is unclear what “risk” Mr. Shoaga was referring to. See Docket No. 109-9 at
5, 33:8-34:25.
4

No. 109-9 at 5, 34:14-17 and at 6, 40:19-25. Def endant David Johnson, the associate
warden at DRDC, affirmed the recommendation. PSUMF 34; Docket No. 141 at 11,
¶ 51-53.
3. Murder of Mr. Roemer
On September 22, 2011, Mr. Farley was transferred to the Sterling Correctional
Facility (“SCF”) in Sterling, Colorado. Defendant’s Statement of Undisputed Material
Facts (“DSUMF”) 45. Because he was placed in the general population at SCF, Mr.
Farley was required to have a cellmate. PSUMF 40. After approximately nine months,
Mr. Farley was reassigned to a cell with Mr. Roemer. PSUMF 41; DSUMF 45.
In response to a discovery request, plaintiff stated that “Mr. Roemer’s
relationship with Mr. Farley prior to his murder was permeated with fear and
malcontent.” Docket No. 110-11 at 10, Resp. to Interrog atory 21. On May 25, 2012,
Mr. Roemer met with his mental health provider, Michelle Long, and expressed
concerns about his safety, describing Mr. Farley as a “murderer.” Docket No. 110-11 at
4, Resp. to Interrogatory No. 7.
Approximately two weeks before the murder, Mr. Farley became “extremely
agitated with Mr. Roemer and . . . pinned [Mr. Roemer] against the wall of their cell and
told him, ‘Don’t you know what I could do to you?’” Docket No. 110-11 at 10, Resp. to
Interrogatory 21. “After that point, Mr. Roemer was extremely fearful of Mr. Farley and
wanted not to be housed in a cell with him.” Id.
Approximately ten days before the murder, Mr. Roemer told Officer Thomas
Boyer that he “could not live with Mr. Farley due to safety concerns” and requested to
move to a different cell to get away from Mr. Farley. Docket No. 110-11 at 4, Resp. to
5

Interrogatory No. 7. Officer Boyer immediately denied the request. Docket No. 141 at
18, ¶ 84. The request was allegedly denied because the two had asked to live
together. Id.
On June 13, 2012, Mr. Farley strangled Mr. Roemer to death in their cell.
PSUMF 2; DSUMF 46.
B. Procedural History
Plaintiff, the estate of Mr. Roemer, filed this case on June 12, 2014. Docket No.
1. Plaintiff asserts a 42 U.S.C. § 1983 claim for violation of the Eighth Amendment by
deliberate indifference to a substantial risk of serious harm. Docket No. 141 at 20.
On September 29, 2015, the Court granted in part a motion to dismiss,
dismissing all defendants except Mr. Shoaga. Docket No. 58 at 34-35. On July 21,
2016, plaintiff moved to amend the complaint to add additional defendants. On
September 9, 2016, plaintiff and Mr. Shoaga filed motions for summary judgment.
Docket Nos. 109, 110. On March 30, 2017, the Court g ranted plaintiff’s motion to
amend in part, allowing the addition of four defendants. Docket No. 140. Plaintiff filed
its amended complaint on April 7, 2016. Docket No. 141. The amended complaint
does not alter the claims against Mr. Shoaga. See id.
II. ANALYSIS
The cross motions each seek summary judgment on plaintiff’s deliberate
indifference claim against Mr. Shoaga. Docket Nos. 109, 110. In addition to claim ing
that he is entitled to judgment as a matter of law based on the undisputed evidence, Mr.
Shoaga argues that he is entitled to summary judgment on statute of limitations and

6

qualified immunity grounds. Docket No. 110.
A. Standard of Review
Summary judgment is warranted under Federal Rule of Civil Procedure 56 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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue 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, 119 F.3d 837, 839 (10th Cir.
1997).
However, when “the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The

7

nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994)). “In applying this standard, we view all facts
and any reasonable inferences that might be drawn from them in the light most
favorable to the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d
567, 569 (10th Cir. 1994).
B. Mr. Shoaga’s Motion for Summary Judgment
Plaintiff’s civil rights claim under 42 U.S.C. § 1983 is subject to a two-year statute
of limitations. Blake v. Dickason, 997 F.2d 749, 751 (10th Cir. 1993) (citing Colo. Rev.
Stat. § 13-80-102(1)(i)). “The determination of when a § 1983 action accrues is
controlled by federal rather than state law.” Dodge v. Shoemaker, 695 F. Supp. 2d
1127, 1147 (D. Colo. 2010) (citing Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir.
2000)). “A civil rights action accrues when the plaintiff knows or has reason to know of
the injury which is the basis of the action.” Baker v. Bd. of Regents of State of Kan.,
991 F.2d 628, 632 (10th Cir. 1993). W hen the alleged injury is the violation of a
constitutional right, the Court must locate the violation in time to determine when the
claim accrued. Smith v. City of Enid By & Through Enid City Comm’n, 149 F.3d 1151,
1154 (10th Cir. 1998).
Mr. Shoaga argues that Mr. Roemer knew or should have known that his Eighth

8

Amendment rights had been violated when Mr. Farley threatened Mr. Roemer and
when Mr. Roemer expressed concerns about his safety to various people before his
murder. Docket No. 110 at 10-12. These conversations allegedly occurred on May 25,
2012 with his mental health provider, Michelle Long, and at least ten days before his
murder with Officer Boyer. Id. at 10, ¶¶ 48-49.
Plaintiff responds that the compensable injury did not occur until Mr. Roemer
was murdered and, therefore, his claim could not have accrued earlier because, before
the murder, Mr. Roemer would only have been able to sue for injunctive relief. Docket
No. 118 at 11-12. Second, plaintiff argues that summary judgment cannot be granted
based on the alleged conversations because Mr. Shoaga disputes that they occurred.
Id. at 12 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)). Third,
plaintiff argues that, under the continuing violation theory, the accrual date is not based
on the first incident. Id. at 13. Finally, plaintiff argues that Mr. Roemer and his estate
are distinct and that “the Estate of Mr. Roemer did not learn of [his] fear until after Mr.
Farley murdered Mr. Roemer.” Id. at 14.
Mr. Shoaga replies that, under Colorado’s survival statute, the estate’s claims
accrue at the same time they would have accrued to the deceased had he survived.
Docket No. 122 at 2 (citing Colo. Rev. Stat. § 13-20-101(2)). Mr. Shoaga further argues
that the distinction between monetary and equitable remedies is irrelevant because Mr.
Roemer did not have to wait until he was physically harmed to bring an Eighth
Amendment claim. Id. at 4 (citing Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir.
1996)).

9

1. Survival of Claims Held by the Estate
“The general rule is that a § 1983 claim survives a plaintiff’s death if that would
be the result under applicable state law.” Cossio v. City & Cty. of Denver, Colo., 986 F.
Supp. 1340, 1344 (D. Colo. 1997) (citing Sager v. City of Woodland Park, 543 F. Supp.
282, 287 (D. Colo. 1982)); see also 42 U.S.C. 1988(a). Two types of action can be
brought after the plaintiff’s death: (1) survival actions and (2) wrongful death actions.
Sager, 543 F. Supp. at 288. “Survival statutes simply allow the cause of action to
survive regardless of the death of a party.” Id. Accordingly, a § 1983 survival action
brought after the plaintiff’s death “is essentially the assertion of the cause of action that
the deceased would have had had he lived, requesting damages for violation of the
decedent’s rights.” Id. By contrast, a wrongful death claim is “for the benefit of certain
designated persons in order to compensate them for their personal losses resulting
from the decedent’s death, against the persons who wrongfully caused the decedent’s
death.” Id. (citations omitted). The action asserted here is a § 1983 survival action for
failure to protect Mr. Roemer from a substantial risk of serious harm in violation of the
Eighth Amendment, alleging that Mr. Shoaga “disregarded the objective risk that Mr.
Farley would cause substantial harm, including death, to another inmate.” Docket No.
141 at 20, ¶ 97. Plaintiff does not bring a wrongful death claim under Colo. Rev. Stat.
§ 13-21-202. See Docket No. 141 at 20-23; Cossio, 986 F. Supp. at 1349 (wrongful
death claims alleging harms to individuals other than the decedent).
Because the claim that plaintiff brings is a § 1983 survival claim, it is the same
claim that could have been brought by Mr. Roemer, had he survived. “[T]he

10

decedent’s estate, by necessity, stands in the decedent’s shoes in a state survival
action.” Espinoza v. O’Dell, 633 P.2d 455, 466 (Colo. 1981) (citing Publix Cab Co. v.
Colorado National Bank, 338 P.2d 702 (Colo. 1959)). Thus, plaintiff’s claim did not, as
plaintiff argues, accrue separately at the time the estate became aware of the relevant
facts. See Docket No. 118 at 14. Rather, plaintiff’s claim accrued when Mr. Roemer’s
claim accrued and is “brought in spite of the injured party’s death” on the basis of an
“action already accrued” by Mr. Roemer. Espinoza, 633 P.2d at 466 (internal quotation
marks omitted).
2. Accrual of Mr. Roemer’s Claim
“Since the injury in a § 1983 case is the violation of a constitutional right, such
claims accrue ‘when the plaintiff knows or should know that his or her constitutional
rights have been violated.’” Smith v. City of Enid By & Through Enid City Comm’n, 149
F.3d 1151, 1154 (10th Cir. 1998) (quoting Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th
Cir. 1994)) (internal citation omitted). Thus, to determine when the claim accrued, the
Court must determine when Mr. Roemer knew or should have known that his
constitutional rights had been violated.
Plaintiff’s claim is predicated on a violation of his Eighth Amendment rights due
to Mr. Shoaga’s deliberate indifference to the risk of serious harm from Mr. Farley. The
Court first addresses when plaintiff was aware of the elements of his claim and then
addresses whether relief was available at that point.
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828

11

(1994); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (“The Eighth Amendment,
as we have said, requires that inmates be furnished with the basic human needs, one
of which is ‘reasonable safety.’” (citing DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 199 (1989))). “The analysis [of an Eighth Amendment claim]
should not be based on ‘a court’s idea of how best to operate a detention facility,’” but
should reflect “the evolving standards of decency that mark the progress of a maturing
society,” which the Tenth Circuit has characterized as a “lofty standard.” DeSpain v.
Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S.
337, 351 (1981)). To prevail on his claim that Mr. Shoaga violated the Eighth
Amendment, plaintiff must show that (1) objectively, the harm he complains of is
sufficiently “serious” to merit constitutional protection and (2) Mr. Shoaga was
subjectively aware of a substantial risk to plaintiff’s health or safety and acted in
purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009).
As to the objective element, a plaintiff must establish that “he [was] incarcerated
under conditions posing a substantial risk of serious harm,” Farmer, 511 U.S. at 834,
which requires “more than ordinary lack of due care for the prisoner’s interests or
safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986); compare Benshoof v. Layton, 351
F. App’x 274, 277 (10th Cir. 2009) (unpublished) (finding objective element satisfied
where plaintiff was forced to remain in cell with stinging fire ants for six days), with
Montez v. Lampert, 595 F. App’x 789, 792 (10th Cir. 2014) (unpublished) (“[A] 15-yearold hernia operation would neither present symptoms readily ascertainable to a lay

12

person, nor make it obvious to a lay person that a bottom-bunk assignment was
necessary. Montez thus fails the objective prong of the Farmer test.”).
As to the subjective element, the Eighth Amendment does not reach a prison
official’s conduct unless the official “knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837; see also Verdecia v. Adams, 327
F.3d 1171, 1175-76 (10th Cir. 2003) (“Deliberate indif ference requires that the
defendant’s conduct is in disregard of a known or obvious risk that was so great as to
make it highly probable that harm would follow, or that the conduct disregards a known
or obvious risk that is very likely to result in the violation of a prisoner’s constitutional
rights.” (internal citations omitted)). A prisoner must therefore establish “that the
defendants knew he faced a substantial risk of harm and disregarded that risk, by
failing to take reasonable measures to abate it.” Martinez, 563 F.3d at 1089 (quotations
omitted). An action or inaction unaccompanied by a subjective awareness of an
unreasonable risk of harm does not constitute “punishment” within the meaning of the
Eighth Amendment. Farmer, 511 U.S. at 837-38. A court “may infer the existence of
this subjective state of mind from the fact that the risk of harm is obvious.” Hope v.
Pelzer, 536 U.S. 730, 738 (2002); see also Farmer, 511 U.S. at 842 (noting that state of
mind can be established with circumstantial evidence and “from the very fact that the
risk was obvious”). The negligent conduct of a prison official is, in all cases, insufficient
to rise to the level of deliberate indifference. Farmer, 511 U.S. at 835 (“Eighth

13

Amendment liability requires more than ordinary lack of due care for the prisoner’s
interests or safety” (quotations omitted)).
Eighth Amendment failure to protect cases tend to hinge on precisely what risk is
alleged to have led to a prisoner’s injuries. See, e.g., Iwanski v. Ray, 44 F. App’x 370,
373 (10th Cir. 2002) (unpublished) (distinguishing between risk that a specific inmate
would harm plaintiff and threat that the specific inmate posed to all other inmates at
facility due to combination of inmate’s violent background, availability of object that
could be used as weapon, and lax security at the facility). When a plaintiff alleges that
his injuries resulted from a more specific risk, such as the risk of housing an inmate with
particular cellmates, he must show that defendants knew that the plaintiff’s placement
in the cell with those cellmates created a serious risk to plaintiff’s safety. See, e.g.,
Szymanski v. Benton, 289 F. App’x 315, 319 (10th Cir. 2008) (unpublished) (“Mr.
Szymanski never claimed to be the victim of pervasive inmate violence. Rather, his
complaint is based on the alleged failure of detention-center personnel to protect him
from Mr. Wallace.”); Verdecia, 327 F.3d at 1175. The question before the Court,
therefore, is when Mr. Roemer knew or should have known that prison officials were
aware that Mr. Farley’s placement in his cell posed a serious risk to Mr. Roemer’s
safety and that those officials disregarded that risk.
The incidents preceding the murder and Mr. Roemer’s statements about Mr.
Farley show that Mr. Roemer was aware that Mr. Farley posed an objectively serious
risk to his safety. By March 25, 2012, Mr. Roemer believed that Mr. Farley was a
murderer and expressed concerns about his safety. Docket No. 110-11 at 4, Resp. to
Interrogatory No. 7. Shortly thereafter, Mr. Farley aggressively pinned Mr. Roemer
14

against the wall of his cell and asked, “Don’t you know what I could do to you?” Docket
No. 110-11 at 10, Resp. to Interrogatory 21. As plaintiff admits, “[a]fter that point, Mr.
Roemer was extremely fearful of Mr. Farley and wanted not to be housed in a cell with
him.” Id. Ten days before his murder, Mr. Roemer told Officer Boyer that he “could not
live with Mr. Farley due to safety concerns” and requested to move to a different cell to
get away from Mr. Farley. Docket No. 110-11 at 4, Resp. to Interrogatory No. 7. This
series of events shows that Mr. Roemer knew that Mr. Farley posed an objectively
serious risk to Mr. Roemer’s safety, at least from the point Mr. Farley threatened Mr.
Roemer in their shared cell. Mr. Roemer also knew or had reason to know that prison
officials disregarded the risk to his safety because Officer Boyer immediately denied Mr.
Roemer’s request to be moved out of the cell Mr. Farley was in. Thus, Mr. Roemer
knew or should have known the facts that formed the basis of the cause of action.
Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (“A civil rights action accrues when
‘facts that would support a cause of action are or should be apparent.’” (quoting
Blumberg v. HCA Management Co., 848 F.2d 642, 645 (5th Cir. 1988)). “[A] plaintif f
need not have conclusive evidence of the cause of an injury in order to trigger the
statute of limitations.” Alexander v. Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004)
(citing Baker, 991 F.2d at 632). In particular, the Tenth Circuit has rejected the
proposition that a claim does not accrue “until a plaintiff has detailed knowledge of the
level of culpability of each of the actors involved.” Id. Rather, Mr. Roemer needed only
to know of his injuries, i.e., the prison officials’ indifference to the risk to him, and
“general cause of those injuries . . . [t]o start the running of the statute of limitations.”

15

Id. By the time that Mr. Roemer made Officer Boyer aware of his safety concerns and
requested to move out of the cell, which request Officer Boyer immediately denied two
weeks before the murder, Docket No. 141 at 18, ¶ 84, Mr. Roemer “knew of facts that
would put a reasonable person on notice that wrongful conduct caused” a risk to his
safety. Alexander, 382 F.3d at 1216.
Plaintiff claims that Mr. Shoaga cannot rely on plaintiff’s statements in its
discovery responses because Mr. Shoaga has disputed such incidents. Docket No.
118 at 12 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
Plaintiff, paradoxically, also argues that the Court should treat these incidents as
undisputed. Id., n.2. The Court finds no basis not to consider the incidents reported in
plaintiff’s discovery responses. The discovery responses are plainly admissible, see
Fed. R. Evid. 801(d),6 and plaintiff does not dispute them or present any contrary
evidence.
3. Remedies Available
Plaintiff’s argument that the statute of limitations could not start to run until a
physical injury occurred and plaintiff could sue for damages lacks supporting authority.
See Docket No. 118 at 11-12. Plaintiff is correct that, under the Prison Litigation

6

As filed, the interrogatory responses are unsigned by the personal
representatives of the estate, see Docket No. 110-11 at 13, but plaintif f does not
dispute them on such basis and the responses may be admissible in any event. See
Saria v. Massachusetts Mutual Life Insurance Company, 228 F.R.D. 536, 538-39 (S.D.
W. Va. 2005) (“When responses are only signed by an attorney, and not by the client,
the attorney has effectively been made a witness.”); Docket No. 110 at 9 n.1 (“Plaintiff’s
counsel indicated that the signature page(s) would be forthcoming as soon as they
were received. To date, though Defendant’s counsel has requested the signature
page(s), the signature(s) has not yet been provided.”)
16

Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), Mr. Roemer could not bring a claim for
compensatory damages without physical injury. Docket No. 118 at 11-12 (citing Perkins
v. Kansas Dep’t of Corrections, 165 F.3d 803, 808 n.6 (10th Cir. 1999)). Plaintif f,
however, does not dispute that Mr. Roemer could have sought injunctive relief against
defendants in their official capacities. Id. at 11. Additionally, plaintiff does not address
nominal or punitive damages, which plaintiff seeks, Docket No. 141 at 23, and which
Mr. Roemer could have sought even in the absence of physical injury. Searles v. Van
Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001) (holding that, notwithstanding the PLRA,
“an award of nominal damages is mandatory upon a finding of a constitutional violation”
and that a prisoner could seek punitive damages without showing a compensable,
physical injury). “Section 1983 claims accrue, for the purpose of the statute of
limitations, when the plaintiff knows or has reason to know of the injury which is the
basis of his action.” Johnson v. Johnson Cty. Comm’n Bd., 925 F.2d 1299, 1301 (10th
Cir. 1991) (internal quotation marks omitted). Plaintiff does not cite, and the Court is
not aware of, any authority requiring that a particular remedy be available before a
statute of limitation begins to run. Rather, “[a]s a general matter, a statute of limitations
begins to run when the cause of action ‘accrues’ – that is, when ‘the plaintiff can file suit
and obtain relief.’” Heimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 610
(2013) (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar
Corp. of Cal., 522 U.S. 192, 201 (1997)).
Here, the alleged injury is a constitutional violation, the deliberate indifference to
a threat of serious harm to Mr. Roemer’s safety. Docket No. 141 at 20-21, ¶ 96-97. Mr.

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Roemer did not have to await physical injury to bring a claim based on the violation of
his constitutional rights. To the extent Mr. Shoaga’s actions violated Mr. Roemer’s
constitutional rights, those actions had already occurred and Mr. Roemer could seek
nominal damages. Further, Mr. Roemer could seek a remedy to prevent future harm.
Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996) (“It is true that one does not
have to await the consummation of threatened injury to obtain preventive relief.” (citing
Farmer, 511 U.S. at 845)). As soon as Mr. Roemer was aware of sufficient facts to
plead that prison officials were “knowingly and unreasonably disregarding an objectively
intolerable risk of harm, and that they [would] continue to do so,” he could have sought
injunctive relief. Farmer, 511 U.S. at 846.
4. Continuing Violation Doctrine
Plaintiff argues that the Court should apply the continuing violation doctrine
because a single event gave rise to continuing injuries, which injuries include the death
of Mr. Roemer that occurred within the statute of limitations period. Docket No. 118 at
13 (citing Heard v. Sheahan, 253 F.3d 316, 319-20 (7th Cir. 2001)). Plaintif f claims that
the “single event [was] Mr. Shoaga’s role in placing Mr. Farley in general population,
which ultimately led to him killing Mr. Roemer.” Id. As plaintiff acknowledges, the
“Tenth Circuit has not yet recognized the continuing violation doctrine in § 1983 cases.”
Docket No. 118 at 13; see also Canfield v. Douglas Cty., 619 F. App’x 774, 778-79
(10th Cir. 2015) (unpublished).
Defendant argues that, even if the continuing violation were applicable to § 1983
claims, it would not apply here since there is “no evidence, or even allegation, that

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Shoaga committed any unlawful acts within the 2 years prior to the date of filing of the
Complaint on June 12, 2014.” Docket No. 122 at 6. T he Court agrees. “A continuing
violation is occasioned by continual unlawful acts, not continual ill effects from an
original violation.” National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th
Cir. 1991) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)); Sims v. New,
No. 08-cv-00794-CMA-MEH, 2009 WL 3234225, at *4 (D. Colo. Sept. 30, 2009)
(holding that the statute of limitations began to run when the prisoner became aware
that a letter placed in his file prevented his transfer and further injuries based on the
letter within the limitations period did not allow application of the continuing violation
doctrine). Plaintiff’s reliance on Heard for the proposition that it is appropriate to bring a
single suit that addresses events outside the limitations period is misplaced. See
Docket No. 118 at 13. In Heard, the court compared cases where a single event
outside the limitation period led to injuries within the limitations period to the situation
before the court in which an ongoing hernia went untreated despite the prisoner
requesting medical attention for months, including during the limitations period, and
“every day that the defendants ignored the plaintiff’s request for treatment increased his
pain.” Heard, 253 F.3d at 319. In fact, the case the Heard court cites in discussing
single event cases – Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) – found
that the continuing violation doctrine did not apply and that the plaintiff’s claim was
barred by the statute of limitations where the claim arose from a single event, the
solicitation of false testimony. The Heard court further explained that, “[i]n between the
case in which a single event gives rise to continuing injuries and the case in which a

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continuous series of events gives rise to a cumulative injury is the case in which
repeated events give rise to discrete injuries,” and that even in such an intermediate
case a plaintiff “would not be permitted to reach back to the first [event] by suing within
the limitations period for the last [event].” Heard, 253 F.3d at 320. Plaintiff, likewise,
cannot use the continuing violation doctrine to reach back to Mr. Shoaga’s initial act,
which is outside the limitations period, by suing for Mr. Roemer’s death, which is within
the limitations period. See Matthews v. Wiley, 744 F. Supp. 2d 1159, 1169 (D. Colo.
2010) (finding that the inmate’s due process claim accrued upon the “single discrete
event” of his allegedly wrongful transfer and that the continuing effects of that transfer
within the limitations period were not a continuing violation).
The Court finds that plaintiff’s claim against Mr. Shoaga is barred by the statute
of limitations. Mr. Roemer’s cause of action accrued ten days before the June 13, 2012
murder, namely, by June 3, 2012, when he asked Officer Boyer to change cellmates
but Officer Boyer declined the request; plaintiff, which holds that same claim, needed to
file suit “within two years,” i.e., by June 3, 2014, Colo. Rev. Stat. § 13-80-102(1), but did
not file its complaint until June 12, 2014. Docket No. 1.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion for Partial Summary Judgment [Docket No.
109] is DENIED as moot. It is further
ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 110] is
GRANTED. It is further

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ORDERED that all claims against defendant Ali Shoaga are dismissed.

DATED September 27, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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