Hammond v. Boulder County Sheriffs Office et al

Filing 49

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 2/15/2019. This court respectfully RECOMMENDS that the 41 MOTION to Dismiss filed by David Nagle be GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that: (1) To extent Defendant R. Anderson was a former employee of the jail, counsel for Deputy Nagle shall provide the court with Defendant R. Anderson's full name and last known address, filed under Level 3 Restriction, on or before March 1, 2019; and (2) A copy of this Recommendation shall be sent to: Tory C. Hammond Boulder County Jail 3200 Airport Road Boulder, CO 80301-2226 (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00579-RBJ-NYW
TORY C. HAMMOND,
Plaintiff,
v.
DAVID NAGLE, and
R. ANDERSON,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant David Nagle’s (or “Deputy Nagle”)
Motion to Dismiss (or “Motion”), filed November 26, 2018. See [#41]. The presiding judge, the
Honorable R. Brooke Jackson, referred this matter to the undersigned pursuant to 28 U.S.C.
§ 636(b) and Memorandum dated November 27, 2018 [#42]. This court concludes that oral
argument will not materially assist in the resolution of this matter. Accordingly, upon careful
review of the Motion and associated briefing, the entire case file, and the applicable law, I
respectfully RECOMMEND that Deputy Nagle’s Motion to Dismiss be GRANTED IN PART
and DENIED IN PART.
BACKGROUND
This court draws the following facts from Plaintiff’s Amended Complaint [#18] and
presumes they are true for purposes of the instant Motion.
On March 9, 2018, Plaintiff Tory C. Hammond (“Plaintiff” or “Mr. Hammond”) filed this
civil action while incarcerated at the Boulder County Jail (the “jail”), asserting that jail personnel

violated his constitutional rights. See [#1]. On March 10, 2019, the Honorable Gordon P.
Gallagher directed Plaintiff to file his Complaint on the court-approved complaint form, see [#3],
which Plaintiff filed on April 9, 2018, see [#5]. Magistrate Judge Gallagher then directed Plaintiff
to file an Amended Complaint, see [#9], which Plaintiff did on May 16, 2018, see [#11]. Per
Magistrate Judge Gallagher’s second Order, Mr. Hammond filed his Second Amended Complaint
on June 20, 2018, see [#18], and the Honorable Lewis T. Babcock dismissed in part the Second
Amended Complaint and drew Claims 1 and 5 to Judge Jackson and the undersigned Magistrate
Judge, see [#20].
Claim 1 alleges that Defendant R. Anderson violated Plaintiff’s Eighth Amendment Rights
by driving “recklessly while in control and driving the transporting van that [Mr. Hammond] was
being transported in.” [#18 at 6, 7]. Mr. Hammond asserts that Defendant R. Anderson “ran a red
light and jerked the van and caused [him] to fly into a crevice between the seat and the door as
[he] was in cuffs and not in a seat belt.” [Id.]. According to Mr. Hammond, this caused “major
damage” to his back, including “pain, problems working, working out and sleeping,” as well as
serious pain when lying flat on his back. See [id.].
Claim 5 asserts that Defendant R. Anderson and Deputy Nagle violated his First and Eighth
Amendment rights. Mr. Hammond first asserts that Defendant R. Anderson was removed from
the “transport crew for recklessly driving [through] a red light and injuring [Plaintiff],” and then
retaliated against Mr. Hammond by informing other inmates that Mr. Hammond was a child
molester (which is allegedly untrue) so that the other inmates would assault Mr. Hammond. See
[#18 at 11]. After Defendant R. Anderson allegedly spread this untrue rumor, the other inmates
allegedly threatened and harassed Plaintiff. See [id. at 11-12]. Despite Plaintiff informing Deputy
Nagle and other jail personnel of the harassment, Plaintiff alleges that these other inmates assaulted

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him in his cell as he returned from lunch. See [id. at 12]. Moreover, Mr. Hammond alleges that a
year later Defendants R. Anderson and Nagle knowingly placed Mr. Hammond back in the same
unit as the inmates who assaulted him previously, and did nothing to separate Mr. Hammond from
these other inmates. See [id.].
Defendant R. Anderson has yet to respond to the Second Amended Complaint, as service
was returned unexecuted with the notation that Defendant R. Anderson no longer works with the
Boulder County Sheriff’s Office. See [#33]. Indeed, counsel for Deputy Nagle indicated that “it
is unclear who Defendant R. Anderson is and whether or not this defendant has been served,” but
continued that “[i]f R. Anderson is identified as a current or former employee of the Boulder
County Sheriff’s Office, undersigned counsel anticipates the Boulder County Attorney’s Office
will represent him or her in this action.” [#37 at 2 n.2]. To date, Defendant R. Anderson’s identity
remains unknown, and no further attempts to serve this defendant have been made.
Deputy Nagle, however, moved to dismiss Plaintiff’s Second Amended Complaint on
November 26, 2018, arguing that he is entitled to qualified immunity because Mr. Hammond
cannot establish that Deputy Nagle violated a clearly established constitutional right. See [#41].
Plaintiff has since responded, including filing a Sur-Reply,1 see [#45; #47], and Deputy Nagle has
since replied, see [#46]. Deputy Nagle’s Motion to Dismiss is now ripe for Recommendation, and
I consider the Parties’ arguments below.

1

This court entered a Minute Order explaining that neither the Federal Rules of Civil Procedure
nor this District’s Local Rules of Civil Practice contemplate the filing of a surreply without leave
of the court, and advised Mr. Hammond that this court would not strike his surreply on this
occasion but warned that this court would summarily strike future surreplies filed without leave of
the court. See [#48].
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LEGAL STANDARDS
I.

Rule 12(b)(6)
Under Rule 12(b)(6) a court may dismiss a Complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6),
the court must “accept as true all well-pleaded factual allegations . . . and view these allegations
in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.
2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory,
unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “a Complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a
Complaint,” and that the allegations must be sufficient to nudge a plaintiff’s claim(s) “across the
line from conceivable to plausible.”). The ultimate duty of the court is to “determine whether the
Complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d
1149, 1160 (10th Cir. 2007).
In applying the above legal principles this court is mindful that Mr. Hammond proceeds
pro se. This court therefore affords Plaintiff’s filings a liberal construction. Haines v. Kerner, 404
U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at
1110, and applies the same procedural rules and substantive law to Plaintiff as to a represented

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party, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.2008); Dodson v. Bd.
of Cty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
II.

Qualified Immunity
The doctrine of qualified immunity protects government officials from individual liability

for actions carried out while performing their duties so long as their conduct does not violate
clearly established constitutional or statutory rights. Washington v. Unified Gov’t of Wyandotte
Cty., 847 F.3d 1192, 1197 (10th Cir. 2017). To facilitate the efficient administration of public
services, the doctrine functions to protect government officials performing discretionary actions
and acts as a “shield 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.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant has asserted a defense of
qualified immunity, the burden shifts to the plaintiff who must establish that (1) the defendant
violated a constitutional right, and (2) the right was clearly established at the time of the
defendant’s action. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). Courts, however, have
discretion to consider the prongs in either order. See Pearson v. Callahan, 555 U.S. 223, 236
(2009).
When, as here, a defendant moves to dismiss a plaintiff’s § 1983 claim on the basis of
qualified immunity, “the plaintiff must allege sufficient facts that show—when taken as true—the
defendant plausibly violated his constitutional rights, which were clearly established at the time of
violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). Mr. Hammond’s Second
Amended Complaint need not contain all the necessary factual allegations to sustain a conclusion
that Deputy Nagle violated clearly established law. See Robbins, 519 F.3d at 1249 (recognizing
that such a heightened pleading standard is not required) (quoting Breidenbach v. Bolish, 126 F.3d

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1288, 1293 (10th Cir. 1997)). The Second Amended Complaint needs to satisfy only the minimum
pleading requirements as articulated in Twombly and discussed above. Id.
ANALYSIS
I.

Deputy Nagle
Deputy Nagle argues that the Second Amended Complaint fails to state a claim against

Deputy Nagle and similarly fails to establish that Deputy Nagle violated a clearly established
constitutional right, entitling him to qualified immunity. See [#41]. I consider these arguments in
turn.
First, the court agrees with Deputy Nagle that Mr. Hammond fails to allege that Deputy
Nagle informed the other inmates that Mr. Hammond was a child molester (indeed Mr.
Hammond’s complaint specifically places the blame on Defendant R. Anderson), which may give
rise to an Eighth Amendment failure to protect claim. See Benefield v. McDowall, 241 F.3d 1267,
1271 (10th Cir. 2001) (concluding that it was clearly established that labeling an inmate a “snitch”
could give rise to an Eighth Amendment claim); accord Brown v. Narvais, 265 F. App’x 734, 736
(10th Cir. 2008) (“We hold only that allegations of a prison officer’s deliberate disclosure of
dangerous information about an inmate’s status are sufficient to state a claim under the Eighth
Amendment provided the alleged danger is facially concrete and plausible enough to satisfy basic
pleading standards.”). And personal participation is essential to any § 1983 claim. See Stidham v.
Peace Officer Standards and Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001). Thus, I
respectfully RECOMMEND that any Eighth Amendment claim for informing other inmates that
Mr. Hammond was a child molester be DISMISSED as to Deputy Nagle.
But this court interprets Claim 5 as encompassing more than just the rumor Defendant R.
Anderson spread that allegedly resulted in Plaintiff’s assault. Rather, Mr. Hammond makes

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specific allegations that after the rumor spread and he received threats, he informed Deputy Nagle
of the threats and harassment but to no avail as the other inmates eventually assaulted him. See
[#18 at 11 (“I told deputy Nagle Deputy [sic] . . . that the two inmates . . . were still making threats
to me”), 12 (“Deputy Nagle . . . put me in harm because I informed [him] all of the situation that I
was being exhorted, harassed and threatened to the point [w]here I was jumped by two inmates
and badly beaten.”)]. Claim 5 continues that a year later, upon Mr. Hammond’s return to the jail,
Deputy Nagle (among others) “put [Plaintiff] back into the same pod with some of the same
inmates” that threatened and harassed Mr. Hammond previously, which placed Mr. Hammond
back in a dangerous situation. See [id. at 12].
The Eighth Amendment protects prisoners from substantial risks of violence at the hands
of other inmates. See Howard v. Waide, 534 F.3d 1227, 1242 (10th Cir. 2008). “To state an Eighth
Amendment claim for failure to protect, ‘the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.’” Savage v. Fallin, 663 F. App’x 588, 592
(10th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Further, Mr. Hammond
must show that Defendants knew of the substantial risk of serious harm yet disregarded that risk.
See Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). Taking the allegations as set forth
above as true and drawing all inferences in favor of Plaintiff, I find that Mr. Hammond has
sufficiently alleged an Eighth Amendment failure to protect claim against Deputy Nagle.
Second, Deputy Nagle argues that he enjoys qualified immunity because no Tenth Circuit
or Supreme Court precedent “establishes individual liability against jail personnel under the
circumstances described in the Complaint. And, Tenth Circuit precedent indicates that no liability
exists where the Defendant did not make the harmful disclosure him or herself.” [#41 at 4]. While
this court agrees that Deputy Nagle cannot be responsible for Defendant R. Anderson’s action in

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spreading the rumor about Mr. Hammond, Deputy Nagle does not raise qualified immunity as to
Mr. Hammond’s failure to protect claim and I find that Deputy Nagle is not entitled to such a
defense at this stage.
“For a constitutional right to be clearly established, the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (brackets, citation, and internal
quotation marks omitted). A plaintiff may satisfy this burden “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.” Washington, 847 F.3d at 1197 (quoting
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted)). But
a plaintiff need not provide case law that is factually identical to his case if the constitutional
violation is “obviously egregious . . . in light of prevailing constitutional principles,” A.M. v.
Holmes, 830 F.3d 1123, 1135-36 (10th Cir. 2016), and the United States Court of Appeals for the
Tenth Circuit (“Tenth Circuit”) has noted that a defendant may be on notice that her conduct
violates clearly established law even in novel factual circumstances, see Casey v. City of Fed.
Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).
Drawing on these principles, the Tenth Circuit recently expounded on the parameters of
establishing a clearly established right:
A constitutional right is clearly established when a Tenth Circuit precedent is on
point, making the constitutional violation apparent. This precedent cannot define
the right at a high level of generality. Rather, the precedent must be particularized
to the facts. But even when such a precedent exists, subsequent Tenth Circuit cases
may conflict with or clarify the earlier precedent, rendering the law unclear.
A precedent is often particularized when it involves materially similar facts. But
the precedent may be adequately particularized even if the facts differ, for general
precedents may clearly establish the law when the defendant’s conduct obviously

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violates the law. Thus, a right is clearly established when a precedent involves
materially similar conduct or applies with obvious clarity to the conduct at issue.
By requiring precedents involving materially similar conduct or obvious
applicability, we allow personal liability for public officials only when our
precedent puts the constitutional violation beyond debate. Thus, qualified
immunity protects all officials except those who are plainly incompetent or those
who knowingly violate the law.
Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (internal brackets, citations, and
quotation marks omitted); see also Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017)
(discussing what constitutes clearly established law). Again, it is Mr. Hammond’s burden to allege
enough facts (taken as true) that Deputy Nagle violated Plaintiff’s clearly established constitutional
rights. See Dahn v. Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017). I find he has done so.
“The Supreme Court and the Tenth Circuit have repeatedly and unequivocally established
an inmate’s Eighth Amendment right to be protected from substantial risks of sexual assault [and
threats of violence] by fellow prisoners.” Howard v. Waide, 534 F.3d 1227, 1242 (10th Cir. 2008)
(citing Farmer, 511 U.S. at 833-34; Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005);
Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980) (“[A]n inmate does have a right to be
reasonably protected from constant threats of violence and sexual assaults from other inmates.”).
See also Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (“We also acknowledge that a
prison official’s failure to protect an inmate from a known harm may constitute a constitutional
violation.”). Accordingly, I conclude that Mr. Hammond sufficiently alleges a violation of a
clearly established right, and respectfully RECOMMEND that Deputy Nagle’s Motion to Dismiss
be DENIED as to a failure to protect claim against Deputy Nagle.
II.

Defendant R. Anderson
As mentioned, Defendant R. Anderson has yet to be identified or served. Rule 4(m) of the

Federal Rules of Civil Procedure provides, “If a defendant is not served within 90 days after the
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complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be made within a specified
time.” Fed. R. Civ. P. 4(m). The docket reflects that the Clerk of the Court issued Summonses for
service on Deputy Nagle and Defendant R. Anderson by the United States Marshals Service on
August 31, 2018. See [#21; #21-1; #21-2].
On October 12, 2018, the Summons for Defendant R. Anderson was returned unexecuted,
indicating that Defendant R. Anderson no longer works at the jail. See [#33]. While counsel for
Defendant Nagle appears uncertain about identifying Defendant R. Anderson [#37 at 2 n.2], this
court notes that the Return of Service does not indicate that the individual was not able to be
identified, but rather no longer worked at that Boulder Jail. [#33]. In addition, Plaintiff’s Amended
Complaint identified another deputy, A. Boton, who was allegedly a witness to Defendant R.
Anderson’s actions. Thus, defense counsel should use this information and reasonable efforts to
identify Defendant R. Anderson. To the extent Defendant R. Anderson is a former employee of
the jail, this court hereby ORDERS counsel for Deputy Nagle to provide the court with Defendant
R. Anderson’s full name and last known address2 on or before March 1, 2019, given counsel’s
representation that “[i]f R. Anderson is identified as a current or former employee of the Boulder
County Sheriff’s Office, undersigned counsel anticipates the Boulder County Attorney’s Office
will represent him or her in this action.” [#37 at 2 n.2]. To the extent counsel cannot identify
Defendant R. Anderson and Mr. Hammond also cannot do so, this court may recommend
dismissal of Defendant R. Anderson without prejudice for failure to properly serve under
Rule 4(m).

2

If counsel is successful in identifying Defendant R. Anderson, counsel shall file the requested
information on the court’s docket under Level 3 Restriction so that the United States Marshals
Service may attempt service on Defendant R. Anderson.
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CONCLUSION
For the reasons stated herein, I respectfully RECOMMEND that:
(1)

Deputy Nagle’s Motion to Dismiss [#41] be GRANTED IN PART and DENIED

IN PART; and
(2)

Claim 5 be DISMISSED as to Deputy Nagle to the extent it asserts an Eighth

Amendment violation based on Defendant R. Anderson’s rumor, but that Claim 5 REMAIN as to
Deputy Nagle to the extent it asserts a failure to protect claim against Deputy Nagle.3
IT IS FURTHER ORDERED that:
(1)

To extent Defendant R. Anderson was a former employee of the jail, counsel for

Deputy Nagle shall provide the court with Defendant R. Anderson’s full name and last known
address, filed under Level 3 Restriction, on or before March 1, 2019; and
(2)

A copy of this Order shall be sent to:
Tory C. Hammond

3

Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with the
Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does
not put the District Court on notice of the basis for the objection will not preserve the objection
for de novo review. “[A] party’s objections to the magistrate judge’s report and recommendation
must be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th
Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections
may bar de novo review by the District Judge of the Magistrate Judge’s proposed findings and
recommendations and will result in a waiver of the right to appeal from a judgment of the district
court based on the proposed findings and recommendations of the magistrate judge. See Vega v.
Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate
Judge’s recommendation de novo despite the lack of an objection does not preclude application of
the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining
Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the
Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the
ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file
objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when
the interests of justice require review).
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Boulder County Jail
3200 Airport Road
Boulder, CO 80301-2226

DATED: February 15, 2019

BY THE COURT:

________________________
Nina Y. Wang
United States Magistrate Judge

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