Lucero v. Dodd, et al

Filing 109

ORDER that Defendants' motion for summary judgment doc. 90 is granted. The clerk shall enter judgment dismissing Plaintiff's claim under 42 U.S.C. § 1983 with prejudice; dismissing Plaintiffs state law claim of negligence without prejudice; and dismissing this civil action, with costs to be taxed. re: 108 Judgment, by Judge Richard P. Matsch on 1/29/2018. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 14-cv-02606-RPM
KIM LUCERO,
Plaintiff,
v.
EVELYN DODD,
RAUL MIERA, and
SHARIAN HAINDEL,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Kim Lucero (“Lucero” or “Plaintiff”) was an involuntarily committed patient at the
Colorado Mental Health Institute at Pueblo (“CMHIP”) on November 28, 2012, when she was
brutally stabbed by a fellow patient. Plaintiff seeks damages against defendants Evelyn Dodd,
Raul Miera, and Sharian Haindel (collectively “the defendants”). They were working as nurses
at the CMHIP when the attack occurred, and Plaintiff alleges they failed to protect her from the
assailant. The complaint alleges two claims for relief: (1) damages under 42 U.S.C. § 1983 for
deprivation of Plaintiff’s right of substantive due process guaranteed by the Fourteenth
Amendment to the United States Constitution; and (2) negligence under the common law of

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Colorado, asking for the exercise of supplemental jurisdiction under 28 U.S.C. § 1367. The
defendants are sued in their individual capacities.1
After the close of discovery, the defendants moved pursuant to Fed. R. Civ. P. 56 for
dismissal of Plaintiff’s section 1983 claim, asserting that the doctrine of qualified immunity
shields them from liability. They contend that Plaintiff’s evidence is not sufficient to show a
constitutional violation, and even if it is, the defendants cannot be held liable because the law
was not clearly established.
The defendants do not dispute that the evidence is sufficient to create a triable issue on
Plaintiff’s negligence claim. They assert, however, that dismissal of Plaintiff’s section 1983
claim would deprive this court of subject matter jurisdiction, requiring dismissal of the
negligence claim without prejudice to refiling in state court.
Plaintiff opposed the motion. Briefing has been completed. The Court heard argument
of counsel on January 17, 2018.
The following facts are undisputed, except where stated.
Plaintiff was involuntarily committed to the CMHIP in October 2010. During the
relevant time period, Plaintiff resided on a ward at the CMHIP known as the Advanced
Cognitive Behavioral Unit (“ACBU”).
The ACBU is a locked unit, but is considered a minimum security “community
reintegration unit.” Patients residing in that unit receive therapy that focuses in part on preparing
them to live independently in the community. See Def.’s Ex. F, ACBU Unit Rules, p. 1. Some

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The complaint also named as defendants Bill May (a former superintendent of the
CMHIP) and John Does 1-4. Plaintiff’s claims against the Doe defendants and May were
dismissed by orders dated April 25, 2016 [doc. 91] and June 7, 2017 [doc. 96].
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ACBU patients enjoy privileges that allow them to leave the unit or leave hospital grounds and
spend time in the community without an escort.
When Plaintiff lived on the ACBU ward, Lamar Delray Davis (“Davis”) was also an
inpatient there. Davis had been involuntarily committed to the CMHIP in December 2004, after
being found Not Guilty by Reason of Insanity in connection with a charge of second degree
assault.
Davis’s criminal history records state that he stabbed his stepfather in the chest with a
knife during a family disturbance on November 4, 2001. Pl.’s Ex. 1at 000155-56. Davis was
criminally charged, and in May 2002 was given a deferred sentence on the charge of second
degree assault and granted probation for the charge of third degree assault. Id. at 000104. In
June and August, 2004, while Davis was on probation, he left a series of threatening messages on
the voicemails of his probation officer and another probation officer. Id. at 000070-71. The
messages included threats and statements such as: “you could lose your life and your job;”
“don’t make me come up there and slap you around,” and “you need to be naked when I come to
my next appointment.” Id. Davis was charged in Adams County on August 20, 2004, with
Harassment by Telephone Threat/Obscene. Id. On December 6, 2004, Davis was found not
guilty by reason of insanity and ordered transferred to the CMHIP “Until Restored to Reason.”
Id. at 000015.
Nearly eight years later, Davis was still an involuntarily committed patient, living on the
ACBU.

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By the fall of 2012, Davis had been granted privileges allowing him to spend a certain
number of hours off the CMHIP grounds to attend classes at Pueblo Community College and
engage in activities such as shopping and dining at restaurants without supervision.
The CMHIP’s care plan for Davis dated October 15, 2012 indicated Davis had reported
that thoughts of forced or violent sexual contact would “accidentally pop into his head.” Def.’s
Ex. J-1. That care plan also stated that Davis was recertified for continued stay at CMHIP
because he “continued to suffer from an abnormal mental condition that was likely to lead to
dangerousness.” Id.
On November 22, 2012, Davis was off the CMHIP grounds when he got into a physical
fight at the home of a former CMHIP patient identified as “D.T.”
Davis’s treatment team met on November 26 and 27, 2012, and discussed Davis’s offcampus conduct. Def.’s Ex. J, Case Consultation. Davis admitted getting into a “physical
altercation” with D.T., D.T.’s daughter Devon, and friend Teresa. Davis told the treatment team
that the others had assaulted him because Davis owed D.T. $30 for prostitution. Id.
Davis’s treatment team decided that all of his privileges should be discontinued. Id.
Notes of those treatment team meetings, prepared by Senior Forensic Advisor Robin
McCann, Ph.D., included the following statements: “staff did not report unstable behavior on
Del Ray’s part (other than the 11-22 allegation),” and “there was no evidence that [Davis] was a
danger to himself or others on the unit.” Id.
Before November 28, 2012, Davis had no history of violence on the grounds of the
CMHIP.

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In the early morning of November 28, 2012, Nurse Dodd was working at the ACBU. Her
shift had started on November 27, 2012, at 10:45 p.m. and was scheduled to end at 6:45 a.m.
Nurse Miera was working that same shift. Nurse Haindel was also there, working an 11:00 p.m.
to 7:00 a.m. shift.
Nurses at CMHIP are expected to read the care plans for each of their patients. Nurse
Dodd had access to Davis’s chart and from time to time read the progress notes in the chart. She
had known Davis for several years as a patient on the ACBU and knew him fairly well.
On the morning of November 28, 2012, Nurse Dodd knew that Davis’s off-grounds
privileges had been suspended recently. According to Nurse Dodd, when a patient’s privileges
are suspended, the nurses exercise a “heightened state of observation” because inpatients
sometimes respond to the loss of privileges by becoming upset and angry and causing problems.
Pl.’s Ex. 2, Dodd Dep.155:19 - 156:22.
At approximately 6:15 a.m., on November 28, 2012, all three defendants were at the
nurses’ station when Davis approached Nurse Dodd and asked to use scissors.
The CMHIP’s nursing department has written policies regarding the monitoring of
“sharps.” Def.’s Ex. H, Sharps Monitoring, 9/28/12. Sharps were to be stored in a locked
location and checked in and out by a staff member. Nursing staff were required to count sharps
at every shift change.
In addition to the nursing department’s policies, the ACBU Unit has written rules
regarding patients’ use and possession of “razors and sharps.” Def.’s Ex. F, ACBU Unit Rules
¶30. The applicable version of those rules stated, “Razors and sharps are permitted in dorms

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only for the time needed to accomplish shaving. . . . Patients may request razors as needed. The
razor must be in your possession at all times and be returned to staff in a timely manner.” Id.
Patients need a physician’s order for the privilege to use certain tools, including knives
and scissors. The ACBU Unit Rules stated that “no sharp knives are allowed in the kitchen,
unless this patient has a physician’s order for knife privileges.” ACBU Unit Rules ¶ 60.
Davis had been granted certain privileges in 2008 which allowed him access to knives
and scissors, and in 2010, he had been granted privileges for scissors and sewing needles. See
Def.’s Ex. M.
ACBU patients with privileges to use scissors were permitted to take scissors to their
rooms or another area of the unit. ACBU staff members were not required to watch a patient use
scissors.
When Davis’s off-campus privileges were suspended on November 26, 2012, the
treatment team did not specifically address his on-campus privileges regarding access to scissors,
knives or other sharps. See Def.’s Ex. J. Defendants contend that the suspension of Davis’s
privileges meant only that he was restricted to the ACBU ward and was prohibited from going
off-campus. Defendants say that a physician’s order would have been necessary to revoke
Davis’s privilege to use scissors. See Def.’s Ex. N, Ortiz Dep. 105:5 - 107:24. Plaintiff
contends that when the treatment team suspended Davis’s privileges, that implied that his access
to scissors was also discontinued.
The parties’ dispute about the scope of the suspension is of little consequence. The
material undisputed fact is that on November 28, 2012, the ACBU nursing staff had authority to
control Davis’s access to scissors and could have denied or limited his access.

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When Davis asked to check out the scissors, Nurse Dodd reminded Davis that he had just
lost his off-ground privileges. Davis replied, “Yes I know. I want the scissors.” Def.’s Ex. A,
Dodd Dep. 63:10-14.
After Davis signed a book to check out the scissors, Nurse Dodd removed the scissors
from a locked cabinet and gave them to him. The scissors were pointed, metal scissors,
approximately 6 - 8 inches long.
Nurse Dodd did not ask Davis why he wanted the scissors. She thought he wanted to use
them in the kitchen. Nurses Miera and Haindel understood that Davis wanted to use the scissors
to cut a pair of pants.
Davis took the scissors, went to the kitchen, and shortly thereafter returned to the nurses’
station. He then asked for permission to visit a male patient, identified as “M.S.”
The rules of the ACBU require patients to ask a nurse’s permission before visiting
another patient. Even with such permission, a patient can only knock on the door and is not
allowed to go into another patient’s room. Because M.S.’s room was not in the same wing as
Davis’s room, Davis needed permission to walk down that hallway and knock on M.S.’s door.
When Davis asked for permission to visit M.S., Nurse Dodd asked Davis where the
scissors were. Davis responded that he had left the scissors in the kitchen. Davis lied about the
scissors being in the kitchen, when in fact he had them in his pocket.
Because leaving the scissors unattended in the kitchen was a violation of the Unit’s rules,
Nurse Dodd told Davis to go back to the kitchen and get the scissors. She told him to keep the
scissors with him and bring them back by 6:30 a.m., so the day shift could count them.

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Davis went to the kitchen and came back to the nurses’ station. He again asked
permission to visit M.S. Nurse Dodd then gave Davis permission to go down the hallway and
knock on M.S.’s door. She did not require Davis to return the scissors before allowing him to
visit M.S.
Davis went down the hallway toward M.S.’s room. Plaintiff’s room was located on the
same hallway as M.S.’s room, closer to the nurses’ station. Plaintiff was the only female patient
on the ACBU at that time.
As Davis walked down the hallway, Nurse Dodd left the ACBU and went downstairs to
respond to a buzzing intercom. Nurse Miera and Nurse Haindel remained at the nurses’ station.
From there, they could not see down the hallway to Plaintiff’s room or M.S.’s room.
Davis went down hallway, entered Plaintiff’s room and stabbed her with the scissors
repeatedly in the face, eyes and arm.
Hospital police were summoned, and Davis was taken into custody.
Qualified immunity protects governmental 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. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir.
2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
When a defendant moves for summary judgment on the basis of qualified immunity, the
the plaintiff has the burden of showing: “(1) the defendant violated a constitutional right and
(2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 - 16, 172 L. Ed.
2d 565 (2009); Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).

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“[T]he court has discretion to determine ‘which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.’ ”
Martinez, 563 F.3d at 1088 (citing Pearson, 129 S. Ct. at 818).
Lucero claims that her injuries from the attack by Davis were caused by the defendants’
failure to keep her reasonably safe in violation of the Due Process Clause of the Fourteenth
Amendment.
A State’s failure to protect an individual against private violence generally does not
constitute a violation of the Due Process Clause. See DeShaney v. Winnebago County Dept. of
Social Servs., 489 U.S. 189 (1989) (holding that employees of the county’s department of social
services did not violate the plaintiff’s right of substantive Due Process by failing to protect
plaintiff from physical abuse inflicted by his father).
For Plaintiff’s constitutional claim, she must demonstrate “either (1) the existence of a
special custodial relationship between the plaintiff and the defendants; or (2) that the defendants
recklessly created the danger that caused the constitutional violation.” Uhlrig v. Harder, 64 F.3d
567, 573 (10th Cir. 1995) (citing Graham v. Independent Sch. Dist. No. I-89, 22 F.3d 991,
994-95 (10th Cir. 1994)).
The defendants do not dispute that Plaintiff’s involuntary confinement at the CMHIP
created a special custodial relationship. In Youngberg v. Romeo, 457 U.S. 307 (1982), the
United States Supreme Court held that a mentally retarded person involuntarily committed to a
state institution had a constitutionally protected liberty interest under the Due Process Clause of
the Fourteenth Amendment to reasonably safe conditions of confinement. See also DeShaney,
489 U.S. at 199 (“In Youngberg ... we [held] that the substantive component of the Fourteenth

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Amendment’s Due Process Clause requires the State to provide involuntarily committed mental
patients with such services as are necessary to ensure their ‘reasonable safety’ from themselves
and others.”); Uhlrig, 64 F.3d at 572 ( “A special relationship exists when the state assumes
control over an individual sufficient to trigger an affirmative duty to provide protection to that
individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).”)
In this Circuit, a Due Process claim based on the special relationship doctrine has the
following four elements:
First, the plaintiff must demonstrate the existence of a special relationship, meaning
that the plaintiff completely depended on the state to satisfy basic human needs.
Second, the plaintiff must show that the defendant knew that the plaintiff was in
danger or failed to exercise professional judgment regarding that danger. Third, the
plaintiff must show that the defendant’s conduct caused the plaintiff’s injuries. And
finally, fourth, the defendant’s actions must shock the conscience.
Dahn v. Amedei, 867 F.3d 1178, 1185-86 (10th Cir. 2017) (citations omitted.)
In Youngberg, the United States Supreme Court addressed the standard for assessing the
professional judgment of a state actor whose decision allegedly violated the substantive Due
Process rights of an involuntarily committed mental patient. The Court stated:
. . . the decision, if made by a professional, is presumptively valid; liability may be
imposed only when the decision by the professional is such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that
the person responsible actually did not base the decision on such a judgment.
457 U.S. at 323.
As evidentiary support for her constitutional claim, Plaintiff submitted a report of the
opinion of Karin Taylor, a registered nurse with more than 30 years of experience in psychiatric
nursing. Pl.’s Ex. 12. Taylor opines that Nurse Dodd abdicated her professional judgment by:

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(a) allowing Mr. Davis to check out the long pointed scissors while his privileges
were suspended, without questioning him about the specific reason he wanted to use
scissors in the kitchen at 6:15 a.m., and without any supervision of his use of scissors
that morning; (b) failing to ascertain why Mr. Davis needed the scissors to go to the
patient hallway; (c) failing to request the return of the scissors before giving
Mr. Davis permission to go down the patient hallway; (d) allowing Mr. Davis to take
the scissors with him when he went down the patient hallway; and (e) allowing
Mr. Davis to go, unsupervised, down the patient hallway with the scissors.
Taylor report p. 4. Taylor also opines that Nurses Miera and Haindel abdicated their
professional judgment “by not supervising Davis’s use of the scissors that morning and allowing
him to take the scissors with him on an unsupervised visit to another inpatient, while Nurse
Dodd left the area to get the newspaper.” Id. Taylor says that any one of the three nurses could
have refused to give Davis scissors; refused him access to the hallway where Plaintiff resided;
watched him as he
went down the hallway, or asked Davis to return the scissors before allowing him to go down the
hallway. Id. p. 5.
Defendants argue that Plaintiff’s evidence shows only a failure to assess the risk that
Davis might use the scissors to commit an assault. They say that failure may be negligent but
does not rise to the level of conscience shocking conduct required for a violation of the
Fourteenth Amendment.
It is hard to understand why Nurse Dodd accepted without question Davis’s need to use
scissors at 6:15 a.m. for use in the kitchen. It is even harder to understand why she did not take
the scissors away from him before granting his request to visit M.S. There is not only a
complete lack of professional judgment in this conduct, it shows a lack of common sense. This
indifference to an apparent risk is a shock to the conscience of this court.

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The question then is whether there was at that time any clearly established law of which
these nurses should have been aware to know that they were in violation of the Constitution.
“[T]his inquiry must be made ‘in light of the specific context of the case, not as a broad
general proposition.’ ” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) (per curiam ). A case
directly on point is not required, but existing precedent must have placed the statutory or
constitutional question beyond debate. White v. Pauly, 137 S. Ct. 548, 551-52 (2017).
Citing Youngberg, Plaintiff says it has long been established that a person involuntarily
committed to a state mental institution has a protected liberty interest in services necessary to
ensure their reasonable safety from others. Plaintiff also cites DeShaney for its discussion of
Youngberg and the “special relationship” exception.
Plaintiff’s citation of that case authority is not sufficient to overcome the protection of
qualified immunity in this case. In White v. Pauly, the United States Supreme Court recently
reiterated the rule that “clearly established law must be particularized to the facts of the case.”
137 S.Ct. at 551-52.
Plaintiff also cites Estate of Conners v. O’Connor, 846 F.2d 1205 (9th Cir. 1988),
arguing that the facts of that case are strikingly similar to the facts presented in this action.
Conners was a section 1983 case brought by the estate of an involuntarily committed
mental patient (Marilyn Marie Conners), who was raped and murdered by a fellow patient (John
Duncan) in a remote corner of the hospital grounds. Duncan was a “penal code” patient who had
been confined after pleading not guilty by reason of insanity to a charge of rape and murder of
another young woman. The plaintiffs alleged that the hospital administrators were grossly

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negligent and recklessly indifferent to patient safety when they approved ground privileges for
penal code patients. The defendants moved for summary judgment, arguing that the doctrine of
qualified immunity shielded them from liability. In response to the motion, the plaintiffs
presented an affidavit of a psychiatrist who described the hospital’s approach to assessment and
determination of risk from violence, as “grossly and totally inadequate” in that it failed to give
special consideration to penal code patients. Id. at 1208-1209. The expert also noted that the
staff made no attempt to rectify the problems, despite a history of violence among penal code
patients at the hospital. Id. The defendants presented competing affidavits. The trial court
concluded that issues of material fact precluded summary judgment. Id. at 1206. The United
States Court of Appeals for the Ninth Circuit affirmed the denial of summary judgment, finding
that “the facts alleged in the [plaintiffs’ expert’s] affidavit, if proven, could reasonably support a
trier’s finding that the defendants were indifferent to patient safety and had made ‘such a
substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that [they] actually did not base the decision on such a judgment.’” Id. at 1209
(quoting Youngberg, 457 U.S. at 323). The Circuit Court considered Youngberg to be the clearly
established law. Id. at 1208.
The facts of Conners are far more extreme and distinguishable from the facts of this case.
Duncan (the assailant in Conners) was committed following his rape and murder of another
young woman and the subject attack occurred only two or three weeks after Duncan had
committed an assault with a deadly weapon and attempted rape on another female patient. See
Conners, 846 F.2d at 1207 n.2. The evidentiary record in Conners included a history of violence
by penal code patients. In contrast, there is no evidence of any prior acts of violence during the

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years that Davis was in the CMHIP. The reported physical altercation off campus earlier in
November was not sufficiently comparable to this assault to serve as a warning that Ms. Lucero
would be stabbed.
In sum, Plaintiff has not provided any legal authority sufficiently similar to the facts of
this case to make a reasonable person in the position of the defendant nurses aware that their
failure to control Davis’s use of scissors was a violation of the Fourteenth Amendment.
With dismissal of the federal claim on summary judgment, the Court declines to exercise
supplemental jurisdiction of the claim under Colorado common law.
Upon the foregoing, it is
ORDERED that Defendants’ motion for summary judgment [doc. 90] is granted.
The clerk shall enter judgment dismissing Plaintiff’s claim under 42 U.S.C. § 1983 with
prejudice; dismissing Plaintiff’s state law claim of negligence without prejudice; and dismissing
this civil action, with costs to be taxed.
Dated: January 29, 2018
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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