Roemer et al v. Carochi et al

Filing 175

ORDER. Defendants Johnson, Algien, Felzein, and Boyer's Motion for Summary Judgment 145 is GRANTED. Plaintiff's Motion to Reconsider Order Granting Defendant Shoaga's Motion for Summary Judgment (Doc. 155) 160 is DENIED. Within 14 days of the entry of this Order, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. This case is closed. By Judge Philip A. Brimmer on 10/12/17. (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.
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 Defendants Johnson, Algien, Felzein, and
Boyer’s Motion for Summary Judgment [Docket No. 145] and Plaintiff’s Motion to
Reconsider Order Granting Defendant Shoaga’s Motion for Summary Judgment (Doc.
155) [Docket No. 160]. 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.
A. Procedural History
The background of this case, and the various procedural twists and turns that
have brought it to this point, are laid out more fully in the Court’s September 27, 2017
order. Docket No. 155 (the “September 27 order”). In that order, the Court granted Ali
Shoaga’s summary judgment motion based on the two-year statute of limitations for 42

U.S.C. § 1983 claims in Colorado.1 Id. at 20-21. The Court found that, at least ten
days before his murder, Mr. Roemer was aware of the facts supporting his § 1983 claim
for deliberate indifference to substantial risk of serious harm in violation of the Eighth
Amendment. Id. at 16. As a result, Mr. Roemer’s cause of action accrued on or before
June 3, 2012 and yet his estate did not file suit until more than two years later. The
Court therefore dismissed plaintiff’s claim against Mr. Shoaga as being barred by the
statute of limitations. Id. at 20.
Defendants’ summary judgment motion incorporates by reference the same
summary judgment arguments made by Mr. Shoaga, Docket No. 145 at 2, and plaintiff
responds by incorporating its response to that argument. Docket No. 148 at 8. After
the Court’s September 27 order, the Court ordered supplemental briefing from the
remaining parties on the statute of limitations issue. Docket Nos. 156, 158, 159. On
October 4, 2017, plaintiff moved for reconsideration of the Court’s September 27 order.
Docket No. 160.
B. Factual Background2
Mr. Farley has an well-documented history of violence and threats against other
inmates. Docket No. 155 at 2. W hen Mr. Farley was transferred from a state prison in
Arizona to the Colorado Department of Corrections (“DOC”), his record was reviewed
by Mr. Shoaga, the chairperson of the administrative segregation hearing committee.
Id. at 4. Despite Mr. Farley’s history, Mr. Shoaga recommended that Mr. Farley not be

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

2

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

1.

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placed in administrative segregation, which meant that Mr. Farley was instead placed in
the general prison population. Id.
Mr. Shoaga’s decision was reviewed and affirmed by defendant David Johnson,
the associate warden of DOC’s Denver Reception and Diagnostic Center, the DOC
facility where Mr. Farley was placed after arrival in Colorado. Defendant’s Statement of
Undisputed Material Facts (“DSUMF”) 8; Docket No. 149 at 1. Defendant Nathan
Algien, an offender services classification officer, assigned Mr. Farley to be housed at
the DOC’s Sterling Correctional Facility (“SCF”). DSUMF 23, 48-49.
Defendant Thomas Boyer, a Corrections Officer I, worked at SCF with defendant
Chase Felzein, a housing lieutenant. DSUMF 56, 58. Both Mr. Roemer and Mr. Farley
were assigned to Living Unit 2 in the medium security portion of SCF. DSUMF 61, 62.
Because he was placed in the general population at SCF, Mr. Farley was required to
have a cellmate. Docket No. 155 at 5. After approximately nine months with other
cellmates, Mr. Farley was reassigned to a cell with Mr. Roemer. Id. This reassignment
resulted from a kite turned in by four inmates asking for a cell reassignment. DSUMF
100. Messrs. Farley and Roemer agreed to live together as part of that request.
DSUMF 101. Officer Boyer met with the four inmates, and both he and Lt. Felzein
reviewed the request. DSUMF 102, 103.
In response to a discovery request in this case, 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
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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 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. Officer Boyer immediately denied the request. Docket No. 141 at
18, ¶ 84; Docket No. 148-12 at 1, ¶ 5. T he 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. Docket
No. 155 at 6.
II. ANALYSIS
The Court first considers plaintiff’s motion for reconsideration and then turns to
defendants’ motion for summary judgment.
A. Motion for Reconsideration
The Federal Rules of Civil Procedure do not expressly provide for motions for
reconsideration. See Hatfield v. Bd. of Cty. Comm’rs for Converse Cty., 52 F.3d 858,
861 (10th Cir. 1995). It is, however, within the Court’s discretion to reconsider its
rulings. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008).

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When doing so, the Court considers whether new evidence or legal authority has
emerged or whether the prior ruling was clearly in error. See Vigil v. Colorado Dep’t of
Corrections, No. 09-cv-01676-PAB-KLM, 2011 WL 1518660, at *1 (D. Colo. Apr. 20,
2011); cf. Servants of the Paraclete v. Does, 204 F. 3d 1005, 1012 (10th Cir. 2000) (“[A]
motion for reconsideration is appropriate where the court has misapprehended the
facts, a party’s position, or the controlling law. It is not appropriate to revisit issues
already addressed or advance arguments that could have been raised in prior briefing.”)
(citations omitted).
Plaintiff’s motion for reconsideration raises three arguments: (1) Mr. Roemer had
no knowledge during his lifetime, nor would he have discovered with reasonable
diligence, that Mr. Shoaga violated his constitutional rights; (2) plaintiff could not have
discovered the relevant facts; and (3) the statute of limitations should be tolled for the
time period it would have taken for Mr. Roemer to exhaust his administrative remedies.
Docket No. 160 at 4-12.
1. Mr. Roemer’s Knowledge
Plaintiff argues that it was improper for the Court to find that plaintiff’s claim
accrued when Mr. Roemer was aware that prison officials were deliberately indifferent
to Mr. Roemer’s safety when, to prove its claims, plaintiff must show that Mr. Shoaga
specifically acted with deliberate indifference. Docket No. 160 at 7. Plaintiff also
argues that Mr. Roemer would have had no reason to know of the facts it now uses to
support its claim because he did not have access to the relevant records. Id. at 6.
Plaintiff builds its argument around various statements made by the Tenth Circuit

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in Maughan v. SW Servicing, Inc., 758 F.2d 1381 (10th Cir. 1985). See Docket No. 160
at 3, 7. In Maughan, family members of people who died of leukemia near a Utah
uranium processing center brought wrongful death claims after learning that radiation
from the center may have caused the decedents’ leukemia. 758 F.2d at 1381.
Applying the Utah “exceptional circumstances” doctrine, the court held that the
“discovery rule tolls the statute of limitations until the plaintiff knows or should know of
the facts constituting the cause of action.” Id. at 1387 (citations omitted). The court
held that plaintiffs’ wrongful death claims did not accrue until they became aware of the
facts from which they could infer causation. Id. The court found that the plaintiffs’
“mere suspicion” of the causation of the cancer was insufficient for a cause of action to
accrue. Id. Plaintiff analogizes this case to Maughan, claiming that Mr. Roemer’s
suspicion that he was in danger would not have been enough to allow him to bring a
claim against Mr. Shoaga. Docket No. 160 at 7.
Plaintiff’s argument is unpersuasive. In Baker v. Bd. of Regents of State of Kan.,
991 F.2d 628, 632 (10th Cir. 1993), the court held that a plaintif f’s claim that he was
illegally rejected from medical school accrued when he “knew or had reason to know of
the injury.” The court rejected the plaintiff’s argument that his claim did not accrue
because “he was not aware of certain ‘critical facts’ until much later.” Id. In Alexander
v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004), the court interpreted Baker as finding that
“a plaintiff need not have conclusive evidence of the cause of an injury in order to
trigger the statute of limitations.” Id. at 1216 (citing Baker, 991 F.2d at 632). The court
held that the plaintiffs’ § 1983 claims had accrued at the time of the incident in question,

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when there were “obvious signs of injury,” even though the plaintiffs “did not know the
level of culpability or responsibility” of the defendants until a later report issued. Id. at
1215-16. Likewise, Mr. Roemer’s lack of awareness of the role Mr. Shoaga played is
not a basis to find that the claim had not accrued when Mr. Roemer was aware of his
claimed injury, i.e., that his constitutional rights had been violated by the refusal of the
DOC to remove him from Mr. Farley’s cell. See Docket No. 155 at 15.
Courts outside the Tenth Circuit have also found that a plaintiff need not be
aware of a defendant’s culpability or identity for the plaintiff’s claim to accrue. In
Diminnie v. United States, 728 F.2d 301, 303 (6th Cir. 1984), the Sixth Circuit rejected
the contention that a plaintiff’s “cause of action did not accrue until the date when he
first learned the identity of the culprit.” Rather, the court found that “before the accrual
of a cause of action against the United States under the FTCA may be deferred
because of the plaintiff's inability to identify the party whose conduct triggered the injury,
it must be shown that the United States itself played a wrongful role in concealing the
culprit’s identity.” Id. at 305. Because the plaintiff failed to show fraudulent
concealment, the court found that his claim had accrued before he knew the
tortfeasor’s identity and was barred by the statute of limitations. Id.; see also
Gonzalez-Bernal v. United States, 907 F.2d 246, 250 (1st Cir. 1990) (“Like in Diminnie,
it was not necessary for the appellants to know the identities of Domínguez and
Maravilla for their cause of action to accrue.”).
Plaintiff’s theory is that Mr. Shoaga violated Mr. Roemer’s rights by failing to
recommend that Mr. Farley be placed in administrative segregation instead of being

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placed in the general population where he would have a cellmate, which created an
unreasonable risk to Mr. Roemer’s safety. Docket No. 110 at 17. Plaintiff does not
argue fraudulent concealment. See id. Mr. Roemer was aware that Mr. Farley was in
the general population and had a cellmate. To the extent the danger presented by Mr.
Farley being Mr. Roemer’s cellmate was a violation of Mr. Roemer’s constitutional
rights, Mr. Roemer was “armed with the facts about the harm done to him.” United
States v. Kubrick, 444 U.S. 111, 123 (1979). Further, Mr. Roemer was aware that Mr.
Farley was a murderer, that Mr. Farley threatened Mr. Roemer, and that Officer Boyer
denied Mr. Roemer’s request to change cellmates. Docket No. 155 at 14-15. Mr.
Roemer’s constitutional “injuries and the general cause of those injuries were obvious”
prior to his death, which was sufficient to “start the running of the statute of limitations.”
Alexander, 382 F.3d at 1216. Given his knowledge of the danger that Mr. Farley posed
to him, Mr. Roemer did not need to have “conclusive evidence of the cause of [his]
injury,” i.e., who within the DOC allowed Mr. Farley to be in the general population.
Alexander, 382 F.3d at 1215-16. Like Alexander, this case presents “difficult facts,” but
the harsh result does not allow the Court to depart from precedent. Id. at 1215; see
also Kubrick, 444 U.S. at 125 (“It goes without saying that statutes of limitations often
make it impossible to enforce what were otherwise perfectly valid claims. But that is
their very purpose.”)
2. Discovery by the Estate
Plaintiff argues that the statute of limitations should run from its rediscovery of
the facts underlying its claims because, “[e]ven assuming it is correct that Roemer knew

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that he had a viable Eighth Amendment claim on June 3, 2012[,] . . . that knowledge
was extinguished when Roemer was murdered.” Docket No. 160 at 9. Plaintiff cites no
authority for this proposition, id., and does not show that the Court misapprehended
controlling law or clearly erred in finding that plaintiff’s claims did not “accrue separately
at the time the estate became aware of the relevant facts.” Docket No. 155 at 11; see
also Espinoza v. O’Dell, 633 P.2d 455, 466 (Colo. 1981) (“[T]he decedent’s estate, by
necessity, stands in the decedent’s shoes in a state survival action.” (citing Publix Cab
Co. v. Colorado National Bank, 338 P.2d 702 (Colo. 1959)).
3. Tolling for Administrative Remedies
Plaintiff argues that the statute of limitations should be tolled for the period of
time that it would have taken Mr. Roemer to seek the required administrative remedies
for his claims had he done so in his lifetime. Docket No 160 at 10-12; see also Gillings
v. Banvelos, 650 F. App’x 622, 624 (10th Cir. 2016) (unpublished) (“[P]laintiffs who fail
to diligently pursue their claims after exhausting their administrative remedies are not
entitled to equitable tolling under Colorado’s extraordinary-circumstances doctrine.”
(citations and emphasis omitted)). Plaintiff did not raise this argument in the initial
briefing and provides no explanation for why it could not have done so. Therefore, this
argument was waived. See Docket No. 118 at 10-14; Servants of the Paraclete, 204 F.
3d at 1012 (“It is not appropriate [in a motion for reconsideration] to . . . advance
arguments that could have been raised in prior briefing.”). The Court will deny plaintiff’s
motion for reconsideration.

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B. Defendants’ Motion for Summary Judgment3
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,

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Plaintiff requests a hearing on defendants’ motion for summary judgment, but
the Court has determined that it can resolve the motion without a hearing. See
D.C.COLO.LCivR 7.1(h).
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1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
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).
Plaintiff raises the same statute of limitations argument against the remaining
defendants as he did against Mr. Shoaga, namely, that Mr. Roemer was unaware of the
facts relating to defendants’ knowledge about Mr. Farley’s dangerousness. Docket No.
159 at 3. Plaintiff also focuses on Mr. Farley’s “well-documented history of
dangerousness” and claims that Mr. Roemer could not have known of such records
because inmates are barred from accessing other inmates records. Id. at 5 (emphasis
removed).
For the reasons discussed above and in the September 27 order, the Court finds
that, even if Mr. Roemer was unaware of the specific facts that would support a claim,
his claim nonetheless accrued prior to his murder. See Docket No. 155 at 15-16. As
the Court found, Mr. Roemer knew of his injury and the general cause of that injury at
least by the time that he spoke with Officer Boyer and unsuccessfully requested to

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change cellmates. Id. at 15. Plaintiff’s arguments that Mr. Roemer did not know the
specifics and extent of Mr. Farley’s history are unavailing in light of Mr. Roemer’s
knowledge that Mr. Farley was a murderer who presented a serious danger to him and
in light of Mr. Roemer’s knowledge that Officer Boyer had denied his request to change
cellmates. Id. at 14-16.4 As plaintiff acknowledges, “Defendant Johnson’s
constitutionally violative conduct was nearly identical to Defendant Shoaga’s” and, thus,
the same reasoning applies to whether the statute of limitations should bar plaintiff’s
claim against Mr. Johnson. Docket No. 159 at 3 n.2. Plaintiff’s claim against Lt. Felzein
and Lt. Algien is also barred by the statute of limitations because Mr. Roemer’s
knowledge of the general cause of his injuries was sufficient for his claim to accrue,
even if he was not aware of facts concerning their identity, role, or culpability. See
Baker, 991 F.2d at 632; Diminnie, 728 F.2d at 305. Finally, the Court finds that
plaintiff’s claim against Officer Boyer is barred by the statute of limitations because, in
addition to Mr. Roemer’s general knowledge of the cause of his injuries, Mr. Roemer
knew specifically that Officer Boyer denied Mr. Roemer’s request to change cells. See
Docket No. 155 at 16; Docket No. 148-12 at 1, ¶ 6. Def endants’ allegedly wrongful
actions were all committed outside the two-year statute of limitations period, and Mr.
Roemer’s murder within the limitations period does not provide a basis to reach back to
those earlier events. See Docket No. 155 at 20 (citing Matthews v. Wiley, 744 F. Supp.
4

Officer Boyer and Lt. Felzein have submitted affidavits stating that Mr. Roemer
had never expressed fear of Mr. Farley to them. Docket No. 145-4 at 9, ¶ 58; Docket
No. 145-5 at 8, ¶ 60. Even after the Court’s September 27 order, plaintiff has made no
attempt to withdraw its prior admissions that show Mr. Roemer was aware of the danger
posed by Mr. Farley and discussed his safety concerns with Officer Boyer. See Docket
Nos. 159, 160.
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2d 1159, 1169 (D. Colo. 2010)). Therefore, the Court will grant defendants’ motion for
summary judgment and enter judgment in favor of all defendants based on the statute
of limitations.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants Johnson, Algien, Felzein, and Boyer’s Motion for
Summary Judgment [Docket No. 145] is GRANTED. It is further
ORDERED that Plaintiff’s Motion to Reconsider Order Granting Defendant
Shoaga’s Motion for Summary Judgment (Doc. 155) [Docket No. 160] is DENIED. It is
further
ORDERED that judgment shall enter in favor of defendants and against plaintiff.
It is further
ORDERED that, within 14 days of the entry of this Order, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed.

DATED October 12, 2017.
BY THE COURT:

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

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