Broadus v. DeCesaro et al

Filing 162

ORDER granting 114 Motion for Summary Judgment; granting in part and denying in part 118 Motion for Summary Judgment: 1. Defendant CHP's Motion for Summary Judgment (ECF No. 114) is GRANTED; 2. The CDOC Defendants' Motion for Summary Judgment (ECF No. 118) is GRANTED as to Defendants Chapdelaine, Little, and Luyando, but DENIED as to Defendants Giles and Thode; 3. At the conclusion of this case, final judgment will enter in favor of Defendants CHP, Chapdelaine, Little, and Luyand o; and 4. As against defendants Giles and Thode, this matter REMAINS SET for a Final Trial Preparation Conference on March 30, 2018, and a jury trial beginning on April 16, 2018, but that trial is now shortened to four days. At the Final Trial Preparation Conference, the parties shall be prepared to discuss whether a trial against Giles and Thode could be completed in an even shorter time. SO ORDERED by Judge William J. Martinez on 02/15/2018. (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0182-WJM-KLM
JOHN MICHAEL BROADUS
Plaintiff,
v.
CHAPDELAINE, Associate Warden, 1
CHP, Clinical Health Provider,
GILES, Lieutenant,
EVA LITTLE, Lieutenant,
LUYANDO, Lieutenant,
THODE, Sergeant,
Defendants.

ORDER ON SUMMARY JUDGMENT MOTIONS

Plaintiff John Michael Broadus (“Broadus”) is a prisoner in the custody of the
Colorado Department of Corrections (“CDOC”) and is currently housed at CDOC’s
Sterling Correctional Facility (“Sterling”). Broadus’s Complaint (ECF No. 6) alleges
numerous disparate violations of his constitutional rights by various Sterling employees
and officials.
Currently before the Court are two summary judgment motions, one filed by
Defendant Correctional Health Partners, Inc. (“CHP”) (ECF No. 114) and the other filed
by the remaining Defendants, who referred to themselves as the “CDOC Defendants”
1

Plaintiff named this defendant as “Chapdelain” (without an e on the end), but the Court
is aware from other cases on its docket of the proper spelling, and will use it here. The Court
also understands from other cases on its docket that Defendant Chapdelaine retired in 2016,
but that development is immaterial to the theory of liability Plaintiff asserts against him.

(ECF No. 118). For the reasons explained below, the Court grants summary judgment
in favor of all Defendants except Thode and Giles. Thus, this case remains set for trial
as against Thode and Giles, but given the reduced scope of that trial, it will be
shortened to four days.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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 also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact 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). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). 2

2

In the various fact sections below, the recited facts are undisputed unless attributed to
a party or otherwise noted.

2

II. CLAIM 1 (KNEE INJURY)
A.

Relevant Facts
1.

Injury & Response

Broadus injured his knee while playing basketball on February 28, 2014. (ECF
No. 127 at 12, ¶ 9.) His knee swelled to “at least twice its normal size,” and walking
became very difficult. (Id. ¶ 10.) The following day, his condition had not improved, so
he showed his knee to a correctional officer (not a party here) who advised that he
should “talk to someone and declare a medical emergency.” (Id. at 13, ¶ 11.) Broadus
claims that he then spoke to Defendant Luyando (also a correctional officer), who
allegedly “told him that the medical clinic probably would not see him, but that he should
submit a medical kite.” (Id.) Luyando “denies that he had knowledge of the alleged
injury” on this date (ECF No. 154 at 3, ¶ 11), but he does not deny that he interacted
with Broadus on this date.
Broadus and Luyando had no further relevant interactions until March 5, 2014.
Their stories of what happened on that date conflict. Broadus’s story is as follows.
By March 5, 2014, his knee had not improved, and he told another correctional
officer (not a party here) that he wanted to declare a medical emergency. (ECF No. 127
at 13, ¶ 12.) He was then called into Luyando’s office and he asked to declare a
medical emergency, but Luyando “refused to alert medical personnel and told
Mr. Broadus that he could not declare a medical emergency unless he was actually
dying or the injury was life-threatening.” (Id. ¶¶ 13–14.) Broadus then returned to his
cell, and was informed via intercom several minutes later that he was being assigned to

3

a top bunk in a new cell. (Id. at 14, ¶ 17.) He protested because he could not climb
onto a top bunk, and he was ordered to speak with Luyando again. (Id.) During this
second conversation, Luyando refused to change the bunk assignment. (Id. at 19.)
Luyando denies that he spoke with Broadus on March 5 prior to the dispute over
the bunk assignment. (ECF No. 154 at 3–4, ¶¶ 13–15, 17.) Luyando agrees that cell
and bunk reassignments were announced that day; moreover, it is undisputed that
Broadus descended the stairs from the third tier of his cellblock to speak with Luyando
about the reassignment. (ECF No. 118 at 7, ¶¶ 23–24.) But Luyando denies
knowledge of Broadus’s knee injury before that time, and he also says that he observed
Broadus walking with no limp or other obvious problem when coming down the stairs
and entering Luyando’s office. (Id. ¶ 24.)
While in Luyando’s office, Broadus asked to declare a medical emergency. (Id.
¶ 25.) According to Luyando, he then contacted the medical clinic, “who denied the
medical emergency and informed Lt. Luyando that Broadus would be seen when
scheduled based on his medical kite requesting an appointment.” (Id.) Broadus denies
that Luyando contacted the medical clinic. (ECF No. 127 at 6, ¶ 25.)
Regardless of how the conversation with Luyando played out, Broadus ultimately
would not accept a top bunk and so “refused the order [to transfer cells] and was placed
into segregation.” (Id. at 14, ¶ 20.) This development triggered a requirement that
Broadus
be escorted to the medical clinic for an anatomical
evaluation. The “anatomical” is a security-requested
evaluation in order to determine if an offender has any
immediate medical or mental health concerns that would
4

prevent an offender from being placed in RFP (“removed
from population”) status. If an urgent medical or mental
health situation is suspected based on this evaluation, the
nurse will proceed to initiate a nursing protocol evaluation. If
no urgent concerns are identified, no further action is
expected from the nurse performing the anatomical. If nonurgent issues are identified, the nurse will instruct the
offender to submit a kite for formal evaluation.
(ECF No. 118 at 7, ¶ 26 (citation omitted).) The nurse who performed Broadus’s
anatomical evaluation noted “swelling” of his right knee (id. at 8, ¶ 27), but also wrote,
“No medical attention needed @ this time” (ECF No. 120-1 at 12).
Broadus was seen at the medical clinic for his knee injury on March 25, 2014.
(ECF No. 118 at 7, ¶ 28.) The clinician who examined him was Keri McKay, PA (not a
party to this lawsuit). (ECF No. 120-1 at 14.) According to the “subjective” portion of
McKay’s treatment note, Broadus complained of a “dull constant ache” in his right knee
and reported that he had been “trying to just take it easy on his knee with little relief. He
states he has tried exercises and stretches as well to help with the pain but has not had
any relief.” (ECF No. 120-1 at 14.) On the “objective” portion of the treatment note,
McKay wrote that Broadus “ambulate[d] into clinic, in and out of chair without difficulty,”
but also that he “[a]mbulate[d] with antalgic gait favoring the right leg, right knee tender
to palpation, with swelling.” (Id.) McKay further wrote, “McMurr[a]y’s positive in the
right leg and negative in the left leg.” (Id.) This refers to the McMurray test, which is a
particular method of manipulating the leg and knee “to determine injury to meniscal
structures.” Stedmans Medical Dictionary, definition no. 906520 (Westlaw, Nov. 2014
update). Given Broadus’s response, McKay stated she would request an MRI. (ECF
No. 120-1 at 14.)
5

2.

Request for MRI

McKay’s MRI request went to Defendant CHP, with whom CDOC contracts “to
review and provide prior authorization for medical care to be provided to CDOC inmates
outside of the internal CDOC medical system.” (ECF No. 114 at 2, ¶ 1.) CHP does not
have the final say, however, on whether an inmate is authorized for a procedure.
Through an appeals process, that question may ultimately end up before CDOC’s chief
medical officer, who makes the final decision. (Id. at 3–4, ¶¶ 3–10.)
McKay’s MRI request to CHP was handled by CHP employee Stephen Krebs,
M.D. (not a party to this lawsuit). (Id. at 4–5, ¶¶ 13, 21.) Dr. Krebs received a complete
transcript of McKay’s treatment note. (ECF No. 129-3 at 2.) On April 10, 2014, he
denied the MRI request, explaining as follows: “Declined at present. Exam only partially
suggestive, no plain films described or included, and no conservative therapy
described.” (Id. at 3.)
On June 2, 2014, McKay submitted on Broadus’s behalf a new MRI request to
CHP. (ECF No. 116-2.) It is unclear whether Broadus had visited her a second time.
In any event, McKay’s request states, in relevant part:
Consulting for an MRI of his right knee due to needing
further evaluation of joint damage. [Inmate] ambulating with
antalgic gait, wearing knee brace, pain medications, and
done physical therapy on his own with little relief. Will send
encounter form 3/25/14. . . . Xrays returned and showing no
evidence of bone damage. MRI prior was denied due to not
having the xray. Has xrays and still needing an MRI to
evaluate knee pain and underlying damage as McMurr[a]y’s
test was positive, and he is having difficulty and pain with
walking.
(Id.) On June 13, 2014, Krebs denied this request, explaining “no objective impairment
6

of ADLs [activities of daily living] noted.” (Id.)
On September 16, 2014, a different physician assistant at the Sterling medical
clinic submitted to CHP a request that Broadus receive physical therapy, and Krebs
approved that request on October 6, 2014. (ECF No. 114 at 7, ¶ 34.) Broadus has not
seen “any medical provider” regarding his knee since September 2014 (id. at 8, ¶ 36),
although he claims he submitted a medical kite for further knee care sometime in 2015
because his knee was “still messed up” (ECF No. 126 at 7, ¶ 36 (internal quotation
marks omitted)). It is not clear whether “any medical provider” includes physical
therapists; or in other words, the record does not disclose whether Broadus attended
physical therapy.
B.

Basic Principles of Eighth Amendment Liability Based on Inadequate
Medical Care
The Eighth Amendment protects against the infliction of “cruel and unusual

punishment.” U.S. Const. amend. VIII. The Eighth Amendment’s prohibition against
cruel and unusual punishment encompasses deliberate indifference by prison officials to
objectively serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976).
Objectively serious medical needs are those that have “been diagnosed by a physician
as mandating treatment or [are] so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Al-Turki v. Robinson, 762 F.3d 1188,
1192–93 (10th Cir. 2014) (internal quotation marks omitted). A prison official is
deliberately indifferent to such a need when the official “knows of and disregards [the
medical need]; 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
7

inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
C.

“Gatekeeper” Liability
Broadus’s Eighth Amendment claims against Luyando and CHP rely on what is

commonly known as the “gatekeeper” theory of liability. Under this theory, “prison
officials prevent an inmate from receiving treatment or deny him access to medical
personnel capable of evaluating the need for treatment.” Sealock v. Colorado, 218 F.3d
1205, 1211 (10th Cir. 2000). But, for a gatekeeper to be liable, the objective component
of the Eighth Amendment test requires “substantial harm,” meaning that the delay led to
“lifelong handicap, permanent loss, or considerable pain.” Al-Turki, 762 F.3d at 1193
(internal quotation marks omitted).
D.

Defendant Luyando
Broadus’s gatekeeper claim against Luyando quickly runs into a causation

problem. See Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000) (“A plaintiff must allege
factual causation—i.e. ‘but for’ causation—in order to state a claim under § 1983.”).
Broadus must be able to prove a causal connection between (a) Luyando’s alleged
refusal to permit him to declare a medical emergency and (b) whatever “lifelong
handicap, permanent loss, or considerable pain,” Al-Turki, 762 F.3d at 1193 (internal
quotation marks omitted), that forms the basis of his claim. In other words, Broadus
must have evidence from which a jury could conclude that, had Luyando permitted
Broadus to visit the clinic when requested, the subsequent course of events would have
been different.
Broadus presents no evidence that this would have taken place, or that any other

8

course of events would have played out. “Rather, the only evidence in the record of
what clinic staff might have done is what they actually did . . . .” Tantlinger v. Duchaine,
2016 WL 8201447, at *5 (D. Colo. Aug. 19, 2016). Broadus did see a nurse on the day
he tried to declare a medical emergency because he refused Luyando’s bunk
reassignment and was sent to segregation—and, as it happened, was therefore
required to undergo an “anatomical” examination at the medical clinic. That nurse noted
Broadus’s knee injury but concluded, “No medical attention needed @ this time.” (ECF
No. 120-1 at 12.) 3 Then, when Broadus eventually received more-formal medical care,
factors outside Luyando’s control delayed the care that Broadus believes he should
have received, namely, the MRI and whatever treatment recommendations might have
flowed from it. To this day, in fact, it appears that Broadus’s knee has never been
treated in the manner he believes necessary. “Accordingly, even assuming that
[Luyando] behaved precisely as [Broadus] believes he should have, there is no
evidence from which a jury could conclude that [Broadus] would have avoided any of
the [pain] he actually suffered.” Tantlinger, 2016 WL 8201447, at *6.
Accordingly, the causation element fails as to Luyando and he is entitled to
summary judgment. 4

3

To the extent this notation is hearsay, it is not needed for the truth of the matter
asserted, but only the fact of assertion. In other words, the nurse chose not to treat Broadus.
4

Broadus argues that this Court endorsed a separate theory of Eighth Amendment
liability based on the bunk assignment, i.e., that Luyando “was deliberately indifferent to Mr.
Broadus’s injury by exacerbating the injury by assigning Mr. Broadus to a top bunk.” (ECF No.
127 at 26 (citing ECF No. 40 at 28–29).) This is doubly incorrect. First, Broadus refused the
bunk assignment, so Luyando did not cause any exacerbation. Second, in a Report &
Recommendation which the Court later adopted, the Magistrate Judge explicitly stated her
understanding that the allegations about assigning Broadus to a top bunk were not meant as a

9

E.

Defendant CHP
Broadus asserts that CHP is also liable to him under the Eighth Amendment for

preventing his access to medical care. (ECF No. 126 at 14.) Broadus states that his
claim against CHP is limited to Krebs’s June 2014 decision to deny an MRI. (Id. at 12,
16 n.1.)5
Beyond the usual gatekeeper elements (see Part II.C, above), Broadus’s case
against CHP involves another layer of complexity because CHP is a business entity, not
a natural person. In the Tenth Circuit, a business entity working on the state’s behalf
can only be liable through the municipal liability framework established by the Supreme
Court in Monell v. Department of Social Services, 436 U.S. 658 (1978). See Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003); Smedley v. Corr. Corp. of Am.,
175 F. App’x 943, 945–46 (10th Cir. 2005). Under Monell, a municipality—or, in this
case, a private entity under contract with the state to fulfill one of the state’s functions—
can be liable in 42 U.S.C. § 1983 for damages only when the entity’s “policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
separate cause of action, but “solely . . . in support of [Broadus’s] claim that Defendant Luyando
was deliberately indifferent to his medical need,” or in other words, that Luyando acted with the
required state of mind when inhibiting Broadus’s access to medical care. (ECF No. 40 at 28
n.9.) Based on this, the Magistrate Judge found that Broadus’s allegations, if true, showed that
Luyando “was both aware of facts from which the inference could be drawn that a substantial
risk of harm existed, and he also allegedly drew that inference.” (Id. at 29.) To the extent
Broadus seeks implicitly to amend his complaint at this late stage with a new theory of liability
based specifically on the bunk assignment, the Court denies that request. See Fuqua v.
Lindsey Mgmt. Co., 321 F. App’x 732, 735 (10th Cir. 2009).
5

There is a lurking question of causation and damages because Broadus has never
explained how his knee condition would likely have changed if CHP had approved the MRI, e.g.,
what care he would have then been prescribed that was different from what he was actually
prescribed, etc. Indeed, to this day, Broadus still has not received an MRI. But given the
outcome below, the Court need not address this problem further.

10

represent official policy, inflicts the [constitutional] injury.” 436 U.S. at 694. As applied
to this case, then, Broadus must be able to show some CHP policy or custom of acting
as a gatekeeper in the face of substantial harm.
Broadus says that the policy at issue here is “requiring the presentation of
several factors to support that an MRI is medically necessary. This policy, requiring
multiple factors before granting an MRI, runs directly counter to the medical standard for
MRIs.” (ECF No. 126 at 18 (citation omitted).) Broadus here relies on the testimony of
his expert that the standard of care in the medical community is to order an MRI for a
patient with a positive McMurray test—or in other words, that nothing but a positive
McMurray test is needed to justify an MRI. (ECF No. 126 at 9, ¶ 9.)
Even assuming that CHP abides by the policy Broadus alleges, and further
assuming that Broadus’s expert has accurately described the standard of care in the
medical community, Broadus has not pointed this Court to any case in which an entity
was held liable under Monell because it required more than the accepted standard of
care before approving a medical procedure. A trial on this matter would essentially be
asking a jury to listen to the testimony of Dr. Krebs and the testimony of Broadus’s
medical expert, and then to judge whether CHP impermissibly deviated from the
medical standard of care. If mere medical malpractice cannot rise to an Eighth
Amendment violation, Estelle, 429 U.S. at 106 (“Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.”), the Court cannot see
how it can nonetheless become a constitutional claim because the malpractice allegedly
flowed from an official policy. Moreover, if a disagreement between medical

11

professionals about the appropriate treatment of a prisoner cannot be the basis of
Eighth Amendment liability, see McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)
(“defendants did not have to bear the risk arising from the variations in the views of the
doctors”), the Court cannot similarly see how a simple disagreement between an entity’s
procedure-approval policies and the community standard of care can be the basis of
Eighth Amendment liability. 6 CHP is entitled to summary judgment in its favor.
III. CLAIM 2 (URANIUM IN THE WATER SUPPLY)
Broadus claims that Chapdelaine is liable to him for exposing him to uraniumcontaminated water at Sterling for several months.
A.

Relevant Facts
1.

Uranium at Sterling

Uranium-238, the form predominantly in our environment, is far more stable than
Uranium-235, the form used in atomic weapons. (ECF No. 118 at 8, ¶ 29.) In
comparison to other states, Colorado has a higher concentration of uranium in the soil
and, consequently, it is ubiquitous in this state’s environment; it is present in the air,
food, water, and Coloradans ingest it every day. (Id. ¶ 30.) The Environmental
Protection Agency (EPA) set the maximum contaminant level (MCL) for uranium at 30
micrograms per liter; however, evidence of chronic chemical toxicity from uranium
arises from much higher exposures. (Id. ¶ 31.) The EPA set the MCL by taking the
lowest contaminant level associated with no toxicity in a particular study (600

6

Notably, Broadus has not alleged that CHP made an entirely non-medical decision to
deny an MRI. Cf. Swan v. Physician Health Partners, Inc., 212 F. Supp. 3d 1000, 1009 (D.
Colo. 2016).

12

micrograms per liter) and reducing it by a factor of ten (i.e., to 60 micrograms) as a
margin of safety. (Id. ¶ 32.) The study then assumed people drink two liters of water
per day, yielding an MCL of 30 micrograms per liter. (Id.) A safe total daily intake of 60
micrograms per day has been established by the EPA and the World Health
Organization. (Id.)
Uranium levels in the water supply for the City of Sterling (“City”) were, on
average, somewhat higher than the MCL from February 2008 through November 2013.
(Id. at 9–10, ¶¶ 34–35, 40–41.) Sterling obtains its drinking water from the City. (ECF
No. 127 at 15, ¶ 31.) The precise uranium levels at Sterling do not necessarily track
those measured within the City “due to water being drawn from different wells and
different environmental factors influencing the levels.” (ECF No. 118 at 11, ¶ 47.)
Nonetheless, Sterling performed quarterly testing of its own water for uranium during
the time that the City’s levels were elevated (2008 to 2013), save for one quarter in
2012 and one in 2013. (Id. at 9–10, ¶¶ 36–39; ECF No. 127 at 16, ¶¶ 33, 35.) From
2008 through the first quarter of 2010, Sterling tested below the MCL for uranium. (ECF
No. 118 at 9, ¶ 36.) From that point through July 2013, readings fluctuated both above
and below the MCL, as high as 33.28 micrograms per liter. (Id. at 10, ¶¶ 37–39.)
Chapdelaine, Sterling’s warden or associate warden at that time, was aware of these
readings. (Id. at 11, ¶ 46.)
By July 2013, Chapdelaine concluded that the elevated uranium levels “would
not decrease” until the City brought an under-construction water treatment plant online.
(Id.) He therefore instituted an alternate drinking water program, announced to inmates

13

in a letter distributed on August 22, 2013. (Id. at 10, ¶ 42.) That letter described the
City’s problems with uranium, which were “expected to be resolved soon with the
planned opening of a new state-of-the-art water treatment facility in the next few
months. (ECF No. 118-21 at 1.) It also stated that Sterling’s water showed a
small increase in the allowable amount of uranium . . . . The
Colorado Department of Public Health and Environment
(CDPHE) believes that uranium is not considered to be a
contaminant associated with health effects from short-term
exposure at the recently observed levels. However, some
people who drink water containing uranium in excess of the
drinking water standard over many years may have an
increased risk of getting cancer and kidney toxicity.
(Id.) The letter went on to announce the following “proactive . . . precautionary
measure[s]”:
•

Beginning this week, the CDOC will supply an additional
source of drinking water brought to our facility from
Cañon City each day.

•

Optional drinking water stations will be set up and
maintained at locations where you now find drinking
water. . . .

•

This alternative source of drinking water is optional and
you may choose to continue drinking tap water.

•

The CDPHE believes that showering, washing, and
eating meals prepared with tap water is not likely to
significantly increase your risk of cancer or kidney
toxicity. You may continue to shower and wash using tap
water.

•

If you have reduced kidney function, you may be at
increased risk of cancer or kidney toxicity and should
seek advice from the facility medical staff.

(Id. at 1–2.) Sterling shipped in Cañon City water through March 2014, at which point
the facility felt assured that the City’s new water treatment plant (operational since
14

November 2013) had actually solved the uranium problem. (ECF No. 118 at 11, ¶ 44.)
2.

Alleged Effect on Broadus

Broadus arrived at Sterling in April 2013. (Id. at 14, ¶ 59.) Upon receiving the
August 22, 2013 letter regarding uranium, Broadus stopped drinking tap water and
stopped eating food prepared with substantial amounts of water. (ECF No. 127 at 17,
¶ 42.) This confined him to the water shipped in from Cañon City, which was only
available in public areas. (Id. ¶ 43.) Given his out-of-cell schedule, this meant he could
access the alternative water source for two hours in the morning, two hours in the
afternoon, two hours in the evening, and during each of the three regular meals (20
minutes each). (Id.) The alternative source was typically depleted during these time
frames given the approximately 100 other inmates allowed out of their cells at the same
time. (Id.) If inmates in Broadus’s unit were on lockdown (e.g., for security reasons),
Broadus says he was not given access to the alternative water source. (Id. ¶ 45.)
When he asked correctional officers for the alternative source, he was told to drink from
the faucet in his cell. (Id. at 18, ¶ 46.)
On December 31, 2013, Broadus saw a nurse at the medical clinic based on a
complaint of blood in his stools two days in a row. (ECF No. 118 at 12, ¶¶ 52–53.) He
had no symptoms of dehydration at that time, and testing for blood in the stool was
negative. (Id. ¶ 53.)
On January 22, 2014, Broadus had a follow-up visit about blood in his stool but
stated that he had not had any since. (Id. at 13, ¶ 54.) He again had no symptoms of
dehydration. (Id.)

15

On March 25, 2014, Broadus saw PA McKay, again complaining of blood in his
stool (id. ¶ 56)—this is the same visit described in Part II.A.1, above, during which he
also complained of knee pain. McKay ordered a colonoscopy, which took place on April
17, 2014, and was entirely normal. (Id.)
Broadus was informed about this time that the alternate water program was
ending and he should return to drinking tap water. (ECF No. 127-1 ¶ 46.) Overall, “[t]he
symptoms Broadus complained of, including dehydration, tender gums, dizziness,
painful urination, and blood in his stool, are not consistent with uranium toxicity.” (ECF
No. 118 at 13, ¶ 58.) Broadus claims, however, that medical tests conducted before he
arrived at Sterling and two years after the water problem ceased showed elevated
levels of certain proteins that suggested reduced kidney function. (ECF No. 127 at 18,
¶¶ 48–49.) The significance of his pre-Sterling test is unclear, except perhaps to imply
that he may have been among those with reduced kidney function that were more
susceptible to the effects of uranium. As for the post-contamination test, Broadus
argues that it is evidence he may have been affected by the uranium. (ECF No. 127 at
30–31.) It is undisputed, however, that the problems created by uranium ingestion
(which can include kidney problems) resolve quickly after uranium exposure ends.
(ECF No. 118 at 12, ¶ 51.)
B.

Official Liability for Unconstitutional Conditions of Confinement
A prison official’s deliberate indifference to an inmate’s health or safety may

violate the Eighth Amendment’s ban on cruel and unusual punishment. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Such claims have an objective component and a

16

subjective component. The objective component requires a “substantial risk of serious
harm” to the inmate. Id. (internal quotation marks omitted). The subjective component
requires that the prison official acted with “deliberate indifference” to the inmate’s health
or safety, meaning that the official was “aware of facts from which the inference could
be drawn that a substantial risk of serious harm exist[ed],” and that the official actually
“dr[e]w the inference.” Id. at 837.
C.

Defendant Chapdelaine
The Tenth Circuit’s reasoning in Cary v. Hickenlooper, 673 F. App’x 870 (10th

Cir. 2016) forecloses Broadus’s claim on the objective element. Quoting from the same
August 22, 2013 memo reproduced above (Part III.A.1), the Tenth Circuit concluded
that the uranium in the water at Sterling did not present a substantial risk of serious
harm given that inmates’ exposure to elevated levels of uranium had not been and
would not be long-term. Id. at 874–75. Broadus’s dehydration does not change this
outcome. His efforts to avoid drinking tap water are of no constitutional significance
because the tap water did not pose an objectively serious risk of harm.
For these reasons, Chapdelaine is entitled to summary judgment on the objective
component of the deliberate indifference test.
IV. CLAIM 3 (STG STATUS)
Broadus’s Claim 3 centers around CDOC’s determination that Broadus was a
member of the Crips gang, which CDOC has designated a “security threat group” or
“STG.” Broadus claims that Little has unconstitutionally denied him an opportunity to
have this STG label removed from his prison record without going through CDOC’s

17

formal gang disaffiliation process.
A.

Relevant Facts
Broadus has known since the year 2000, when he became a CDOC inmate, that

CDOC had identified him as a member of the Crips STG. (ECF No. 118 at 14, ¶ 60.)
Broadus claims that he is not, and never has been, a member of the Crips or any other
STG. (ECF No. 127 at 18, ¶ 50.) Because of his classification as a Crip, however,
approximately 95% of his cellmates have been Crips, and he has received threats from
members of rival gangs. (Id. at 19, ¶¶ 52, 54.)
Defendant Little is an intelligence officer at Sterling, and responsible for
investigating STG activity. (Id. ¶ 53.) When Broadus arrived at Sterling, Little did not
independently investigate whether his STG designation was appropriate. (Id.)
Little “was involved in creating the process inmates must go through to remove
their STG status,” which is currently embodied in CDOC’s Administrative Regulation
(“AR”) 1150-02RD. (Id. ¶ 55.) “Attachment C” appended to that regulation is a
“Request for STG Removal” form. (ECF No. 120-2 at 16.) The form’s questions
assume that CDOC’s STG classification is correct, e.g., “How old were you when you
joined the STG?”, “How did you become involved in the STG?”, “What activities were
you involved in while you were active or associating with the STG?”, etc. (Id.) And the
intelligence officer who evaluates the inmate’s request for STG removal is expected to
obtain from the inmate as much inside information is possible about the STG. (ECF No.
127 at 21, ¶ 65.)
The applicable procedures also direct that prison staff “should increase

18

monitoring of the [inmate seeking removal from STG status] to ensure their safety.”
(ECF No. 120-2 at 19.) This is because such an inmate faces an increased risk of
violence due to the likelihood of other STG members perceiving disaffiliation as
disrespect and therefore retaliating. (ECF No. 127 at 20, ¶ 60.) Broadus claims that the
Crips are especially notorious for “jumping out” gang members, i.e., beating those who
attempt to disaffiliate. (Id. ¶ 62.) The STG removal process is supposed to be
confidential (ECF No. 118 at 15, ¶ 66), but, according to Broadus, “it is not so in
practice: there is widespread awareness among inmates when an individual undergoes
the deactivation process” (ECF No. 127 at 20–21, ¶ 63).
Shortly after his arrival at Sterling in April 2013, Broadus met with Little to
complain about his STG classification. (Id. at 21–22, ¶ 67.) Little told Broadus that he
had two options: following the process established through AR 1150-02RD, or writing a
letter to the “Unified Intelligence Team” at CDOC headquarters. (Id.) 7 Broadus claims
he “expressed to Defendant Little his concern that he faced a significant risk of physical
harm as a result of his STG label, and that the removal process she was suggesting
[referring to AR 1150-02RD] would likewise place him at significant risk of harm,”
because it would require him “to falsely admit that he had been an associate of the
Crips. The result of such an admission is that Mr. Broadus’s will be targeted by other
gang members and will get beat out of this gang.” (Id. ¶¶ 68–69 (internal quotation
marks and citations omitted).) Increasing this risk, says Broadus, is the AR 1150-02RD
process’s focus on obtaining intelligence about gang activities within the prison, such
7

At some point—it is not clear whether before or after the meeting with Little—Broadus
indeed wrote to the Unified Intelligence Team, but received no response. (Id.)

19

that “inmates undertaking that process face a risk of being perceived as an informant or
‘snitch.’” (Id. ¶ 65.) But, says Broadus, Little has refused to assist him in resolving this
predicament. (Id. ¶ 71.)
Broadus “has been assaulted while at [Sterling] by a shot-caller for the Crips due
to his desire to disassociate from the gang.” (Id. at 23, ¶ 73.) Broadus claims this
happened in October 2014. (ECF No. 127-1 ¶ 56.)
Broadus further claims that Little has told another inmate—one who also believes
he was erroneously classified as a Crip—that Broadus was a Crip “while on the streets.”
(ECF No. 127 at 21, ¶ 64; ECF No. 127-1 ¶ 60; ECF No. 26 at 18.)8
B.

Official Liability for a Threat of Inmate-on-Inmate Violence
The Eighth Amendment’s prohibition of “cruel and unusual punishments” grants

prisoners “a right to be reasonably protected from constant threats of violence . . . from
other inmates.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (internal
quotation marks omitted). This is so because “[b]eing violently assaulted in prison is
simply not part of the penalty that criminal offenders pay for their offenses against
society.” Farmer, 511 U.S. at 834.
The standard for official liability in these circumstances is the same as for
unconstitutional conditions: there must exist a substantial risk of serious harm (the
objective component) and the prison official must actually draw the inference that such
a risk exists (the subjective component). (See Part III.B, above.)
8

Based entirely on this claim, Broadus accuses Little of “perpetuat[ing] false rumors
about Mr. Broadus’s gang affiliation.” (ECF No. 127 at 21, ¶ 64; see also id. at 31.) This a
serious overstatement of what the evidence actually shows.

20

C.

Defendant Little
1.

Response to Further Briefing

Broadus obviously seeks an order having the Crip designation removed from his
prison record. However, when reviewing the parties’ summary judgment briefs, the
Court recognized that Little is not named as a defendant in her official capacity. (See
ECF No. 6 at 1, 3, 13–14.) Thus, the Court began to question whether an injunction
directed at Little in her personal capacity would provide the relief Broadus seeks. The
Court also noted Broadus’s allegation that he “has been assaulted while at [Sterling] by
a shot-caller for the Crips due to his desire to disassociate from the gang” (ECF No.
127 at 23, ¶ 73), potentially suggesting that there may be no injunctive relief that could
remedy his situation because Crips at Sterling already know he is attempting to
disaffiliate. The Court therefore informed the parties of its “basic concern about Article
III jurisdiction as to Defendant Little, particularly the ‘redressability’ requirement,” and
ordered Broadus to file a supplemental brief addressing the following:
•

What remedy is Plaintiff seeking against Defendant Little
in her personal capacity?

•

Assuming Plaintiff is seeking at least an injunction—
o Does Defendant Little currently hold authority within
CDOC to remove an inmate’s STG designation?
o By what process could Defendant Little remove
Plaintiff’s STG designation without exposing him to
the risks he fears from the AR 1150-02RD process,
particularly given that it is already known among Crips
at Sterling Correctional Facility that Broadus is
attempting to have his STG designation removed?

(ECF No. 156 at 2–3.)
21

Broadus responded by asserting that he sues Little for “monetary damages . . . in
her personal capacity, as well as injunctive relief against her in her official capacity,”
although without explaining what damages he has incurred or where he named Little as
an official-capacity defendant. (ECF No. 157 at 4–5.) Regardless, Broadus asserted
that Little now works in the “Unified Intelligence” unit at CDOC headquarters, and that
Little could remove his STG designation with “a few keystrokes in CDOC’s computer
system.” (Id. at 5–6.) Finally, in a footnote, Broadus
respectfully requests that, in the event the Court determines
that Defendant Little no longer possesses authority to grant
this relief by virtue of her new position within CDOC, . . .
Plaintiff be permitted to substitute the proper CDOC
defendant, in his or her official capacity, to provide the
requested relief.
(Id. at 6 n.2.)
As to whether any injunction could help him now that Sterling Crips know
Broadus is trying to have his Crip designation removed, Broadus first emphasized that
“the AR 1150-02RD process is largely an intelligence-gathering exercise,” and that
“[a]voiding that process would decrease the risk of retaliation against him for being a
‘snitch.’” (Id. at 6.) Broadus next argued that
the AR 1150-02RD process would require Mr. Broadus to
falsely admit to having been a Crip. Doing so would cause
Mr. Broadus to “be targeted by other gang members” and
“get beat out of this gang.” This risk, too, would be
diminished if his label were simply removed without requiring
a false admission of gang affiliation. Indeed, the Court order
itself would serve as proof that Mr. Broadus had been
erroneously classified as a Crip; that he did not undergo the
AR 1150-02RD process; and that he thus did not provide
prison officials with intelligence on the Crips—all of which
would reduce his risk of retaliation or other harm from gang
22

members.
(Id. at 7 (quoting Broadus’s deposition; citations omitted).) Finally, Broadus asserted
that his conditions of confinement would improve because he would no longer be
classified as a Crip and therefore no longer subject to housing and transfer restrictions
and guilt by association when Crips misbehave. (Id. at 7–8.)
2.

Clarifying Broadus’s Claim

Broadus’s surreply does not dispel the Court’s concerns. To understand why,
the Court first must make explicit a claim Broadus is not bringing. He is not seeking
relief because his allegedly erroneous Crip designation puts him at risk of violence from
Crip rivals. To be sure, he says he “has received threats from other gang members as
a result of his erroneous classification as an associate of the Crips.” (ECF No. 127 at
19, ¶ 52.) But that is not the basis of his claimed injury. Indeed, Little’s first argument
for summary judgment in her favor is that the two-year statute of limitations for § 1983
claims has long since expired for any claim that CDOC erroneously classified Broadus
as a Crip. (ECF No. 118 at 20.) To that argument, Broadus responds that “[h]e is not
challenging his original designation as an associate of the Crips, but rather Defendant
Little’s refusal to provide him with a means of removing that label without subjecting him
to a substantial risk of harm.” (ECF No. 127 at 37.) Accordingly, the question of
whether CDOC—or Little herself—properly believes Broadus to be a Crip is not at
issue.
As for the claim he actually asserts, Broadus argues, in effect, “I am not currently
at risk of Crip violence, but I want to pursue a course of action that will put me at risk of

23

Crip violence and you, Defendant Little, are violating the Constitution by not finding a
way to protect me.” The curious nature of this claim must be kept in mind as the Court
analyzes the possibility of damages and injunctive relief, below.
3.

Liability for Damages—Qualified Immunity

It is not clear what damages Broadus seeks from Little. Regardless, Broadus
must first overcome Little’s qualified immunity defense. “Qualified immunity shields
federal and state officials from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011) (internal quotation marks omitted). “The judges of the district courts . . .
[may] exercise their sound discretion in deciding 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.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). The plaintiff
bears the burden of demonstrating that the law was clearly established at the relevant
time. Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337
(10th Cir. 2000). “A right is clearly established in this circuit when a Supreme Court or
Tenth Circuit decision is on point, or if the clearly established weight of authority from
other courts shows that the right must be as the plaintiff maintains.” Thomas v. Kaven,
765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted).
Applying these factors, it is not clear that Little has violated any constitutional
right. If Little had ignored a substantial threat of Crip violence which had ripened into
injury, then Broadus would likely have a viable claim. But Broadus does not claim that

24

Little has ignored any such threat. He does allege that a Crip “shot-caller” has attacked
him “due to his desire to disassociate from the gang.” (ECF No. 127 at 23, ¶ 73.) He
does not, however, link this incident to Little in any way. He does not explain how it
became known that he wanted to disassociate from the Crips, or whether Little had any
reason to suspect that such an assault might be forthcoming. Thus, there is a serious
question whether any threat of violence has ripened into injury, which is required to hold
Little liable for damages.
Moreover, Broadus has not explained how he asserts a clearly established right.
Obviously the right to be protected from inmate-on-inmate violence, when prison
officials know of a substantial threat, is clearly established. See Farmer, 511 U.S. at
834. But the violence Broadus currently fears is violence flowing from Crips’ knowledge
that he successfully disassociated. He has not done so yet. Nor does he have a
constitutional right to have his STG classification removed from his prison file. Thus,
the right Broadus asserts is something in the nature of a right to be protected from
violence he expects will flow from a procedure he refuses to follow, and to which he has
no independent right. Broadus does not attempt to demonstrate that this is a clearly
established right, and so Little is entitled to qualified immunity from damages liability.
4.

Injunctive Relief

Qualified immunity does not foreclose injunctive relief. Meiners v. Univ. of
Kansas, 359 F.3d 1222, 1233 n.3 (10th Cir. 2004). 9 Entitlement to injunctive relief for
9

In the Court’s experience, civil rights plaintiffs always seek injunctive relief against
government officials in their official capacities. The undersigned has never before seen a case
such as this where a plaintiff seeks something that looks like an official-capacity injunction but
the relevant defendant is sued only in her individual capacity. The undersigned is therefore

25

an allegedly ongoing threat of violence in prison is judged according to the defendants’
actions and attitudes during the lawsuit, and their likely actions and attitudes after the
lawsuit is over. See Farmer, 511 U.S. at 845–46. The Court finds, however, that it
lacks Article III jurisdiction over the injunctive relief Broadus seeks—an order requiring
Little to remove the STG designation from his file—because such an order would not
diminish the threat of violence of which he complains. It would, rather, bring that
violence upon him. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(federal courts’ Article III jurisdiction requires injury in fact, causation, and power to
grant relief that will redress that injury); see also United States v. Bustillos, 31 F.3d 931,
933 (10th Cir. 1994) (“the burden is on the party claiming that the court has subject
matter jurisdiction”).
To begin, Broadus must understand that at least one important aspect of the
relief he requests will not be forthcoming, namely, a “Court order [that] itself would serve
as proof that Mr. Broadus had been erroneously classified as a Crip.” (ECF No. 157
at 7.) As already noted, whether CDOC erroneously classified him as a Crip is not in
question here, so the Court will not issue any sort of findings or declaratory judgment to
this effect. To the extent Broadus means to say that an injunction requiring CDOC to
strike his STG classification would implicitly convey the falsity of that classification, he

unaware whether qualified immunity might have some application, i.e., to an injunction against a
defendant in her individual capacity. Cf. id. (“Qualified immunity applies to claims for monetary
relief against officials in their individual capacities, but it is not a defense against claims for
injunctive relief against officials in their official capacities.” (emphasis added)). But given the
outcome below, that matter need not be resolved here. Moreover, if Broadus’s request for
injunctive relief had merit, the Court would be inclined to grant his request to substitute an
official-capacity defendant. (See ECF No. 157 at 6 n.2.)

26

does not explain how Sterling Crips (or inmates generally) would learn about the order.
The Court highly doubts that Broadus intends to publish the order to his fellow inmates.
Indeed, although Broadus’s surreply emphasized the “snitch” perception that may come
through the disaffiliation process, most of his summary judgment response brief focused
on the fact that prison gangs simply do not tolerate disaffiliation. (See ECF No. 127 at
20–22, ¶¶ 60–63, 66, 68–69; id. at 32–33, 35.) Broadus actually discusses disaffiliation
and “snitching” as distinct threats:
•

“Among the safety concerns [flowing from disaffiliating with a gang] is that
the gang from which the inmate is attempting to disassociate will view [it]
‘as a disrespect to them.’ There is also concern about retaliation based on
the amount of information about the gang’s activity that the inmate is
expected to disclose as part of the deactivation process.” (Id. at 20, ¶ 60
(citation omitted; emphasis added).)

•

“It is common knowledge that gangs ‘beat out’ or ‘jump out’ members who
attempt to leave the gang, and they severely punish individuals perceived
to have disclosed information about the gang to officials.” (Id. at 35
(emphasis added).)

Thus, if Broadus publicizes the Court-ordered removal of his STG designation, he
invites the beating that he fears, even if some inmates draw the inference that Broadus
at least was not required to divulge secret information about the Crips.
On the other hand, if Broadus does not publicize the Court’s order, inmates will
learn anyway that CDOC no longer treats him as a Crip. Broadus himself asserts that

27

“STG designation . . . impacts aspects of an inmate’s incarceration that [are] visible to
other inmates and [that] enable them to determine the inmate’s status.” (ECF No. 127
at 20–21, ¶ 63.) Broadus refers at least to housing arrangements (i.e., inmates noticing
that a Crip is no longer regularly housed with other Crips, or that the inmate is now
housed with an inmate known to be a member of Crip rival gang) and lockdowns (i.e.,
no longer being locked down with other Crips on account of Crip misbehavior). (See
also ECF No. 118-27 at 6.) But Broadus himself invites these “visible” aspects of his
incarceration: he wants to be free of housing restrictions and Crip-related lockdowns.
(ECF No. 157 at 7–8.)
Broadus’s theory has long been that AR 1150-02RD’s primary harm is the
alleged need to admit Crip affiliation, and that after such an admission, disaffiliation
would bring upon him the wrath of actual Crips. (See, e.g., ECF No. 6 at 13–14; ECF
No. 127 at 22, ¶ 69.) In other words, he seems to be saying that if he is excused from
admitting Crip membership, actual Crips—who already consider him one of their own
and have attacked him for expressing a desire to disassociate—will somehow learn that
he was excused from admitting Crip membership and then they will simply believe him
that he has never been a Crip. Yet Broadus provides no support for such an inference.
Rather, his evidence overwhelmingly points to threatened harm flowing from having
been classified as a Crip in the first place, i.e., Crips’ tendency to “beat out” members
(whether or not they are perceived as snitches), and the fact that it is already known
among Sterling Crips that Broadus is classified as a Crip and is attempting to have that
classification removed. An order from this Court requiring CDOC to remove that

28

classification would put Broadus at risk of the very harm he is trying to avoid. Indeed, it
would place him at greater risk of harm than he faces now.
Because Broadus does not answer Little’s argument that the statute of limitations
has run on any claim alleging improper classification, and because Broadus has not
shown that this Court can grant a remedy that would avoid placing him in greater
danger of Crip-perpetrated violence than he now faces, the Court finds that it cannot
issue an order that would redress Broadus’s injury. Accordingly, the Court lacks Article
III jurisdiction over Broadus’s request for injunctive relief against Little.
V. CLAIM 4 (PEPPER SPRAY INCIDENT)
Broadus sues two Sterling officers, Thode and Giles, for allegedly refusing to
permit him to decontaminate after a pepper spray incident.
A.

Relevant Facts
On October 23, 2013, corrections officers were supervising inmates’ return to

their cells, and an inmate began punching at one of the corrections officers. (ECF No.
118 at 16, ¶ 70.) A corrections officer named Swingle—formerly a defendant in this
case (see ECF No. 145)—sprayed that inmate with pepper spray. (Id.) Apparently on
accident, Swingle also sprayed Broadus, who was behaving peacefully but happened to
be nearby. (ECF No. 127 at 23, ¶¶ 77–78.) Broadus nonetheless returned to his cell.
(Id. at 24, ¶ 79.)
In his cell, Broadus experienced significant burning and pain from the pepper
spray. (Id. ¶ 80.) Defendants say that Broadus then began kicking his cell door, so
correctional officers resolved to place him in segregated housing based on bad

29

behavior. (ECF No. 118 at 16, ¶ 73.) Broadus denies this and says that his cellmate
had been using the intercom system to ask for someone to come help Broadus, and a
correctional officer arrived to take Broadus to segregated housing, for no apparent
reason. (ECF No. 127 at 9, ¶ 73.)
As noted above (Part III.A.1), admission to segregated housing first requires an
“anatomical” exam at the prison medical clinic. Broadus says that he told the nurse he
had been sprayed with pepper spray, and she responded that he would have an
opportunity to decontaminate once in segregated housing. (Id. at 24, ¶ 81.) Then,
according to Broadus,
Defendant Thode took Mr. Broadus from his anatomical
evaluation to his cell in segregation. Mr. Broadus spoke with
him at that time, as well as later that day when he walked by
Mr. Broadus’s cell. Both times, Mr. Broadus asked to
decontaminate [i.e., to shower]. In response, Defendant
Thode told him that he first needed to confirm that
Mr. Broadus had been sprayed with [pepper spray].
Mr. Broadus showed him his neck, head, and eyes showing
a reaction to the [pepper spray]. Although Defendant Thode
told Mr. Broadus that he would talk to someone, Mr. Broadus
never heard back.
(Id. ¶ 82.) Thode denies this account, asserting that he was not present on that date
because he was in an eight-hour training session, as reflected on his training records.
(ECF No. 118 at 17, ¶ 76.)
Later that day, Defendant Giles was performing medical rounds, and Broadus
asked him for an opportunity to shower. Giles allegedly “asserted that all inmates who
had been sprayed with [pepper spray] had already decontaminated. When Mr. Broadus
showed him his reaction to [pepper spray], Mr. Giles told him that a shower would not

30

do Mr. Broadus any good because the effects of [pepper spray] should wear off.” (ECF
No. 127 at 24, ¶ 83.) Giles says he does not recall this conversation. (ECF No. 118 at
17, ¶ 79.)
Broadus had no water in his cell so he could not decontaminate that way. (ECF
No. 127 at 24, ¶ 84.) He did not receive an opportunity to shower until two days later.
(Id. at 25, ¶ 85.) The pepper spray caused Broadus to
develop[] welts and his skin peeled off. Also, during the time
he was not allowed to decontaminate he felt a painful,
constant burn on his skin. Any time he moved or anything
touched his skin, the burning would reignite even more as if
his skin was on fire. It was hard to breathe, and he was
constantly coughing and sneezing.
(Id. ¶ 86.)
B.

Defendants Thode & Giles
The Magistrate Judge found that not permitting an inmate to shower for 48 hours

after being exposed to pepper spray was “obviously egregious” such that an inmate’s
right to be free from such treatment can be considered clearly established without a
case directly on point. (ECF No. 40 at 27.) No Defendant objected to the Magistrate
Judge’s recommendation and the Court subsequently adopted it. (See ECF No. 51 at
2, 7–8.) Thus, there is no question that if Thode and Giles behaved as alleged, they are
not entitled to qualified immunity. 10
There is a genuine dispute of material fact whether Thode and/or Giles behaved

10

Defendants’ only argument for qualified immunity as to Claim 4 is that there is that
“us[ing] [pepper spray] to quell a facility disturbance” does not violate any clearly established
law. (ECF No. 118 at 35.) This refers to former Defendant Swingle; it has no application to
Thode or Giles.

31

as alleged, including whether Thode was in training at the time he allegedly interacted
with Broadus. Accordingly, Thode and Giles are not entitled to summary judgment.
VI. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant CHP’s Motion for Summary Judgment (ECF No. 114) is GRANTED;

2.

The CDOC Defendants’ Motion for Summary Judgment (ECF No. 118) is
GRANTED as to Defendants Chapdelaine, Little, and Luyando, but DENIED as
to Defendants Giles and Thode;

3.

At the conclusion of this case, final judgment will enter in favor of Defendants
CHP, Chapdelaine, Little, and Luyando; and

4.

As against defendants Giles and Thode, this matter REMAINS SET for a Final
Trial Preparation Conference on March 30, 2018, and a jury trial beginning on
April 16, 2018, but that trial is now shortened to four days. At the Final Trial
Preparation Conference, the parties shall be prepared to discuss whether a trial
against Giles and Thode could be completed in an even shorter time.
Dated this 15th day of February, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

32