Estate of Marciano Briones et al v. Adams County et al

Filing 196

ORDER by Chief Judge Philip A. Brimmer on 10/29/2020, re: 171 Adams County Defendants MOTION for Summary Judgment is GRANTED in part and DENIED in part. ORDERED that plaintiffs' claim against Deputy Jimmy Marshall is DISMISSED with prejudice. ORDERED that plaintiffs' claims against Sheriff Michael McIntosh and Adams County are DISMISSED with prejudice. (sphil, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-00865-PAB-MEH
ESTATE OF MARCIANO BRIONES, et al.,
Plaintiffs,
v.
ADAMS COUNTY, a government entity,
SHERIFF MICHAEL MCINTOSH, in his official capacity,
DARIUS ARDREY, in his individual and official capacity,
JIMMY MARSHALL, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Adams County Defendants’ Motion for
Summary Judgment [Docket No. 171]. The Court has jurisdiction pursuant to 28 U.S.C.
§ 1331.
I. BACKGROUND1
On September 9, 2016, Marciano Briones was incarcerated at Adams County
Detention Facility in Adams County, Colorado after being found guilty of driving under
the influence. Docket No. 171 at 2, ¶¶ 1-2. On December 25, 2016, Mr. Briones felt ill
and was seen by a nurse in the medical unit. Id. at 3, ¶ 8. On December 27, 2016, Mr.
Patton, a fellow inmate at the Adams County Detention Facility, approached Deputy

1

The following facts are undisputed unless otherwise indicated.

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Darius Ardrey2 on three occasions. Docket No. 171 at 4, ¶ 17. On at l east one of these
occasions, Mr. Patton informed Deputy Ardrey that Mr. Briones was feeling sick. Id.
Deputy Ardrey did not check on Mr. Briones and told Mr. Patton to inform Mr. Briones
that he should go to medical if he was feeling sick. Id. at 4-5, ¶¶ 19-20. At the 10:00
p.m. lockdown, Deputy Ardrey left the unit. Id. at 5, ¶ 22. Deputy Ardrey did not return
to the unit until after 1:00 a.m. and did not inform anyone about Mr. Briones’s health.
Id.; Docket No. 179 at 4, ¶ 16.
Deputy Jimmy Marshall was on duty in Mr. Briones’s unit on December 27, 2016.
Docket No. 171 at 5, ¶ 27. Before that night, Deputy Marshall had never seen Mr.
Briones.3 Id., ¶ 23. No one approached Deputy Marshall regarding Mr. Briones.4 Id.,
¶ 25. During the night, Deputy Marshall made six row checks, where officers on duty
walk by inmates’ cells, including walking past Mr. Briones’s cell. Docket No. 179 at 910, ¶ 16. While in the control booth, Deputy Marshall noticed Mr. Briones get out of

2

The Adams County Detention Facility is operated by the Adams County
Sheriff’s Department. See Docket No. 128 at 3-4, ¶¶ 9-10.
3

Plaintiffs dispute that Deputy Marshall was “aware of Briones’ obvious and
emergent medical needs while he was conducting rounds earlier that night,” Docket No.
179 at 5, ¶ 23, but do not di spute that Deputy Marshall had never seen Mr. Briones
until the night of December 27, 2016.
4

While plaintiffs dispute that Deputy Marshall was unaware of Mr. Briones’s
condition, plaintiffs do not dispute that no one approached or informed Deputy Marshall
about Mr. Briones’s health and point to no evidence in the record demonstrating that
anyone informed Deputy Marshall about Mr. Briones’s condition. See Docket No. 179
at 10-11, ¶¶ 12-19.
2

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bed and unsteadily walk toward the bathroom.5 Docket No. 171 at 5, ¶ 27. Deputy
Marshall proceeded to check on Mr. Briones. Id. at 6, ¶ 28. Deputy Marshall found Mr.
Briones in a bathroom stall. Id., ¶ 29. Deputy Marshall asked inmates if they were
aware of any problems with Mr. Briones, to which they replied that they believed that he
had the flu.6 Id., ¶ 30. After walking back to the bathroom to check on Mr. Briones,
Deputy Marshall noticed Mr. Briones shaking and called medical.7 Id., ¶ 33. About five
minutes passed from the time that Deputy Marshall saw Mr. Briones get out of bed to
when he called medical. Id., ¶ 34; Docket No. 179 at 6, ¶ 34. Deputy Marshall, along
with other inmates, monitored Mr. Briones while waiting for medical to arrive, including
laying him down and providing blankets. Id. at 6-7, ¶¶ 35-36. Deputy Marshall again
called medical, this time informing them that they would need to bring a gurney. Id. at
7, ¶ 36. Mr. Briones was pronounced dead at 1:48 a.m. on December 28, 2016. Id., ¶

5

Plaintiffs state that they “lack sufficient information to admit or deny” this fact.
Docket No. 179 at 5, ¶¶ 27-28. However, plaintiffs must designate “specific facts
showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986) (quotations omitted). Moreover, the Court’s practice standards require the
non-movant to “admit or deny the asserted material facts” and “[a]ny denial shall be
accompanied by a brief factual explanation of the reason(s) for the denial and a
specific reference to material in the record supporting the denial.” Practice Standards
(Civil cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv. Plaintiffs have failed to do
so, and the Court considers this fact admitted. See Fed. R. Civ. Proc. 56(e)(2)
(permitting a court to consider a fact that a party “fails to properly address” as
“undisputed for the purposes of the motion”); see also Doe v. DiStefano, No. 16-cv01789-WJM-KLM, 2019 WL 2372685, at *2 (D. Colo. June 5, 2019) (deeming facts
undisputed under similar circumstances).
6

Plaintiffs fail to admit or deny this fact. See Docket No. 179 at 5, ¶¶ 29-33. As
a result, the Court deems this fact admitted.
7

Plaintiffs fail to admit or deny this fact. See Docket No. 179 at 5, ¶¶ 29-33. As
a result, the Court deems this fact admitted.
3

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38. An autopsy concluded that the cause of death was sepsis as a result of a gall
bladder infection. Id., ¶ 39.
Plaintiffs, who are the estate of Mr. Briones and the estate’s representatives,
filed this lawsuit on April 12, 2018. See Docket No. 1. In their fourth amended
complaint, plaintiffs bring claims against all defendants pursuant to 42 U.S.C. § 1983
for deliberate indifference to Mr. Briones’s medical needs. Docket No. 128 at 48.
Defendants filed this motion for summary judgment on January 10, 2020, arguing
that (1) there is no evidence that Deputy Ardrey disregarded any medical needs, (2)
there is no evidence that Deputy Marshall disregarded any medical needs, and (3)
there is no evidence of a custom or policy of Adams County that caused Mr. Briones’s
death.8 See Docket No. 171 at 9-18.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed 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). Only disputes
over material facts can create a genuine issue for trial and preclude summary
8

Defendants also argued that there was no evidence that Sheriff Michael
McIntosh was in anyway involved with the events leading to Mr. Briones’s death. Id. at
16. However, since the filing of the motion for summary judgment, plaintiffs have
dismissed the claim against Sheriff McIntosh in his individual capacity. See Docket No.
186.
4

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judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings,
but instead must designate “specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To
avoid summary judgment, the nonmovant must establish, at a minimum, an inference of
the presence of each element essential to the case.” Bausman, 252 F.3d at 1115.
When reviewing a motion for summary judgment, a court must view the evidence in the
light most favorable to the non-moving party. Id.
III. ANALYSIS
Plaintiffs’ claims against all defendants are for violation of Mr. Briones’s right
under the Eighth Amendment to be free from deliberate indifference to his known
medical needs. Docket No. 128 at 48. Plaintiffs bring these claims pursuant to § 1983.
5

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Id.
While jail officials and “the municipal entities that employ them, cannot
‘absolutely guarantee the safety of their prisoners[,]’ . . . they [still] ‘have a
constitutional duty to take reasonable steps to protect the prisoners’ safety and bodily
integrity.’” Cox v. Glanz, 800 F.3d 1231, 1247-48 (10th Cir. 2015) (quoting Lopez v.
LeMaster, 172 F.3d 756, 759 (10th Cir. 1999); Berry v. City of Muskogee, 900 F.2d
1489, 1499 (10th Cir. 1990)). A claim for deliberate indifference to serious medical
needs has an objective and a subjective component. The objective component
requires that the medical need be “sufficiently serious.” Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000). The subjective component requires that “a prison official
knows of and disregards an excessive risk to inmate health or safety.” Id. (citation and
quotations omitted).
A. Deputy Darius Ardrey
The Court finds that plaintiffs’ claim against Deputy Ardrey is not appropriate for
dismissal at this stage. Defendants concede that facts r elated to Deputy Ardrey’s
liability are disputed. See Docket No. 195 at 2 (“Plaintiffs’ almost exclusive reliance on
[Mr.] Patton’s deposition testimony has established a dispute as to a material fact in
this case.”)
Based on Mr. Patton’s deposition testimony that, on the night Mr. Briones died,
he informed Deputy Ardrey that Mr. Briones was “very sick,” Docket No. 179 at 7, ¶ 6c,
and that he looked like a “skeleton,” id. at 2, ¶ 9, a reasonable jury could conclude that
Deputy Ardrey was both aware of an excessive risk to Mr. Briones’s health because Mr.
6

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Patton informed him as much and ignored it by not checking on Mr. Briones. See
Sealock, 218 F.3d at 1209 (requiring that a medical issue be “sufficiently serious” and
that the “prison official knows of and disregards an excessive risk to inmate health or
safety”). Defendants do not consider Mr. Patton “a credible witness” and dispute his
account. See Docket No. 195 at 2. The Court finds that there is a genuine dispute
regarding material facts and therefore defendants’ motion for summary judgment as to
Deputy Ardrey is denied.
B. Deputy Jimmy Marshall
The Court finds that Deputy Marshall is entitled to summary judgment on
plaintiffs’ claim for deliberate indifference. Assuming that Mr. Briones’s illness meets
the objective prong, there is no evidence in the record suggesting that Deputy Marshall
knew of and disregarded an excessive risk to Mr. Briones’s health or safety.
Plaintiffs argue that Deputy Marshall was aware that Mr. Briones needed help
because Deputy Marshall conducted several row checks during the night.9 Docket No.
9

Defendants contend that plaintiffs’ claim against Deputy Marshall in their
complaint is based on his actions once he saw Mr. Briones, not Deputy Marshall’s
actions during row checks. Docket No. 195 at 5 n.2. The allegations regarding Deputy
Marshall in plaintiffs’ fourth amended complaint support this contention. See Docket
No. 128 at 50, ¶ 208. “As a general rule, a plaintiff should not be prevented from
pursuing a valid claim just because she did not set forth in the complaint a theory on
which she could recover.” Evans v. McDonald’s Corp., 936 F.2d 1087, 1090 (10th Cir.
1991). However, “the liberalized pleading rules [do not] permit plaintiffs to wait until the
last minute to ascertain and refine the theories on which they intended to build their
case.” Id. at 1091. Even were the Court to consider plaintiffs’ new theory as an
attempt to amend their complaint, the Court would deny it. Plaintiffs “w[ere] aware of all
the predicate facts . . . at the time [they] filed” their fourth amended complaint, and so
there is “no reasonable explanation” why this theory could not have been added at the
time the complaint was amended. L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc.,
125 F. Supp. 3d 1155, 1173 (D. Colo. 2015) (construing new argument as a motion to
7

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179 at 17. However, a claim for deliberate indifference to medical needs requires that
a defendant “both be aware of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Plaintiffs do not explain how a row check would
alert Deputy Marshall to a serious health risk to Mr. Briones. For example, they do not
point to any evidence that Mr. Briones was in visible or audible distress such that
Deputy Marshall would notice while “walking directly past Briones’ cubicle,” Docket No.
179 at 16, that Mr. Briones needed assistance. Although the testimony of Mr. Patton
states that Mr. Briones looked like a skeleton, id. at 2, ¶ 9, the undisputed evidence
shows that Deputy Marshall had never seen Mr. Briones before and had no idea what
he looked like. Docket No. 171 at 5, ¶ 27. Thus, even if Deputy Marshall saw Mr.
Briones during the row check – and there is no evidence that he did – this would be
insufficient to demonstrate that Deputy Marshall was aware of the facts of a substantial
risk to Mr. Briones’s health or safety and in fact drew the inference.
Leonhard v. Correct Care Solutions, LLC, No. 19-cv-00600-PAB-STV, 2020 WL
1694377 (D. Colo. Apr. 7, 2020), is instructive. There, the plaintiffs alleged that the
deputies on duty did the “minimum required” during their walkthrough and, as a result,
they failed search an inmate’s cell and find a trash bag that the inmate used to commit
suicide. Id. at *5. The Court concluded that plaintiffs had failed to connect the
substandard walkthrough with a disregard of a substantial risk of suicide. Id. Plaintiffs’

amend and denying the motion due to moving party failing to explain why the argument
was not previously pled). Nevertheless, the Court addresses plaintiffs’ argument and
rejects it for the reasons explained below.
8

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argument here suffers from the same problem: plaintiffs offer no argument or evidence
that walking past the cell would provide Deputy Marshall with the facts to draw an
inference of a harm such that he could actually draw the inference.
As a result, there is no evidence that Deputy Marshall was “aware of the facts” to
draw an inference of substantial risk of serious harm such that Deputy Marshall could in
fact make the inference. See Farmer, 511 U.S. at 837. The evidence shows that, once
Deputy Marshall became aware that Mr. Briones need assistance, he questioned
inmates about Mr. Briones’s health. Docket No. 171 at 5-6, ¶¶ 27-29. When Deputy
Marshall saw Mr. Briones shaking, he called medical and continued to monitor Mr.
Briones until medical assistance arrived. Id. at 6-7, ¶¶ 33-36. Plaintiffs concede that
no constitutional violation occurred once Deputy Marshall saw Mr. Briones leave his
cell. See Docket No. 179 at 6, ¶ 37 (“[W]hile [Deputy] Marshall had previously []
responded with deliberate indifference to [Mr.] Briones[’s] serious and obvious medical
needs, his eventual calling of the code 100 was appropriate.”). Plaintiffs fail to meet
the subjective prong and, as a result, Deputy Marshall is entitled to summary judgment.

C. Adams County and Sheriff McIntosh
Plaintiffs assert that Adams County10 is liable under § 1983 for having a policy or
custom of (1) deliberate indifference to medical needs and (2) inadequate discipline
10

Plaintiffs bring a claim against Sheriff McIntosh in his official capacity, which is
equivalent to asserting a claim against Adams County. See Kentucky v. Graham, 473
U.S. 159, 165 (1985) (“Official-capacity suits . . . generally represent only another way
of pleading an action against an entity of which an officer is an agent.” (quotations and
citation omitted)).
9

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and investigation. Docket No. 179 at 20-25. Defendants argue that there is no
evidence in the record demonstrating the existence of any such policy or custom.
Docket No. 171 at 18.
“Local governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978) (footnote omitted). “[I]t is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.” Id. at 694.
To state a claim for municipal liability under § 1983, a party must allege
sufficient facts to demonstrate that it is plausible (1) that a municipal employee
committed a constitutional violation; and (2) that a municipal policy or custom was the
moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d
410, 419 (10th Cir. 2004). A municipal policy or custom can take the form of
(1) a formal regulation or policy statement; (2) an informal custom
amoun[ting] to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; (3) the decisions
of employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions – and the basis for them – of
subordinates to whom authority was delegated subject to these
policymakers’ review and approval; or (5) the failure to adequately train or
supervise employees, so long as that failure results from ‘deliberate
indifference’ to the injuries that may be caused.

10

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Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).
Plaintiffs make several arguments for municipal liability based on informal
custom or policy. “A municipality is liable only when the official policy [or custom] is the
moving force behind the injury alleged.” Barney v. Pulsipher, 143 F.3d 1299, 1307
(10th Cir. 1998). “A plaintiff must therefore ‘identify a government’s policy or custom
that caused the injury.’” Cacioppo v. Town of Vail, 528 F. App’x 929, 931 (10th Cir.
2013) (quoting Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769
(10th Cir. 2013)). “The plaintiff must then show ‘that the policy was enacted or
maintained with deliberate indifference to an almost inevitable constitutional injury.’” Id.
(quoting Schneider, 717 F.3d at 769).
“The deliberate indifference standard may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain to
result in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm.” Barney, 143 F.3d at 1307. “[C]ontinued adherence to an
approach that [the decision makers] know or should know has failed to prevent tortious
conduct by employees may establish . . . conscious disregard.” Bd. Of Cty. Comm’rs v.
Brown, 520 U.S. 397, 407 (1997); see also Rowe v. City of Marlow, 116 F.3d 1489,
1997 WL 353001, at *6 (10th Cir. 1997) (unpublished table decision) (“Municipal
liability for failure to train or supervise requires a finding that the municipality’s
deliberate indifference ‘led an employee to violate a plaintiff’s rights’ or ‘failed to
prevent tortious conduct by employees.’” (quoting Brown, 520 U.S. at 407)).
Plaintiffs do not identify any specific policy, custom, or practice of Adams County
11

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that led to Mr. Briones’s death. For example, they do not suggest or argue that Adams
County has a policy or custom of requiring inmates to wait until morning to receive
medical assistance. Rather, plaintiffs argue that various actions of Deputy Ardrey,
Deputy Marshall, and Adams County demonstrate that Adams County has a practice,
policy, or custom of general deliberate indifference to medical needs, and that this
policy resulted in Mr. Briones’s death. Specifically, plaintiffs argue that (1) Deputy
Ardrey and Marshall’s actions on their own demonstrate “an established practice,
policy, and custom of deliberate indifference to serious medical needs,” Docket No. 179
at 21, (2) Adams County has a policy or custom of failing to “adequately investigate and
discipline its employees,” id. at 22, as exemplified by its record retention policy, id. at
23, and (3) previous opioid withdrawal deaths at the Adams County Detention Facility
demonstrate that there is a policy or custom of providing inadequate medical care. Id.,
at 23-24. The Court addresses each in turn.
1. Deputies Ardrey and Marshall’s Actions
Plaintiffs contend that, because Deputies Ardrey and Marshall “responded with
deliberate indifference,” this is “more than sufficient for a jury to reasonably infer that
there is an established practice, policy, and custom of deliberate indifference to serious
medical needs.” Id. at 21. The Court finds this argument unpersuasive.11

11

To the extent that plaintiffs argue that Deputy Ardrey and Deputy Marshall’s
actions automatically impute liability to Adams County, such a claim has been rejected
by the Tenth Circuit. See Smedley v. Corr. Corp. of Am., 175 F. App’x 943, 946 (10th
Cir. 2005) (unpublished) (“[A] private actor . . . ‘cannot be held liable solely because it
employs a tortfeasor – or, in other words . . . cannot be held liable under § 1983 on a
respondeat superior theory.” (quoting Monell, 436 U.S. at 691)).
12

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Plaintiffs seem to argue that, because two separate individuals violated Mr.
Briones’s constitutional rights, the constitutional violations themselves establish that
Adams County has a policy or custom of deliberate indifference to medical needs and,
as a result, the identification of a specific policy is unnecessary. The Court finds that a
reasonable jury could not conclude that Adams County has a policy of indifference
based only on the deputies’ actions. First, the Court already concluded that Deputy
Marshall did not commit any constitutional violation. Rather, Deputy Marshall
responded to Mr. Briones’s health needs as soon as he was aware of that Mr. Briones
needed assistance. Thus, Deputy Marshall’s actions are irrelevant to determining
whether Adams County has a policy of deliberate indifference to medical needs.
Second, Deputy Ardrey’s action alone are not sufficient to demonstrate that
Adams County has any sort of policy or practice of indifference. Generally, a single
incident is insufficient to establish a policy or practice for a municipal liability claim. A
municipal policy must be “evidenced by a practice so persistent and widespread as to
practically have the force of law,” and one constitutional violation will not provide the
requisite foundation. Williams v. City of Tulsa, 627 F. App’x 700, 704 (10th Cir. 2015)
(unpublished) (alterations omitted) (quoting Connick v. Thompson, 563 U.S. 51, 61
(2011)); see also Stewart v. City of Memphis, 788 F. App’x 341, 347-48 (6th Cir. 2019)
(unpublished) (“Arguing that ‘one instance of potential misconduct’ is evidence of a
clear and persistent pattern is a ‘path to municipal liability [that] has been forbidden by
the Supreme Court.’” (citation omitted)); Colardo-Keen v. Rockdale Cty., 775 F. App’x
555, 573 (11th Cir. 2019) (unpublished) (“[P]roof of a single incident of unconstitutional
13

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activity is not sufficient to impose liability against a municipality because a single
incident is not so pervasive as to be custom.” (citations, quotations, and alterations
omitted)); Williams v. Heavener, 217 F.3d 529, 532 (7th Cir. 2000) (“Ordinarily, one
incident is not sufficient to establish a custom that can give rise to Monell liability.”
(citation omitted)). However, one incident “may be enough to impose liability if there
was an official custom or policy behind the one incident.” Luper v. Bd. of Trustees,
2016 WL 5394748, at *6 (D. Kan. Sept. 27, 2016).
Assuming that Deputy Ardrey did in fact violate Mr. Briones’s constitutional
rights, plaintiffs have provided no evidence that he was acting pursuant to any sort of
policy. Rather, the only evidence that plaintiffs have submitted is that Deputy Ardrey
was not following Adams County policy. Adams County’s investigation of Mr. Briones’s
death found that Deputy Ardrey violated its policies by failing to “check on the welfare
of inmate Marciano Briones,” even though it is “standard practice to attend to [an]
inmate’s welfare and send them to medical unit as needed.” Docket No. 179 at 6-7, ¶
2. As a result, this is not a situation where “there was an official custom or policy
behind the one incident,” Luper, 2016 WL 5394748, at *6, such that Deputy Ardrey’s
actions alone can establish the existence of a unconstitutional policy. Therefore,
plaintiffs must provide evidence of “a practice so persistent and widespread as to
practically have the force of law.” Williams, 627 F. App’x at 704. Plaintiffs have not
provided that evidence.12
12

Plaintiffs additionally argue that defendants “have taken the position that
everything Ardrey and Marshall did . . . was consistent with the customs, practices, and
policies of Adams County, and the training the County provided them,” Docket No. 179
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Plaintiffs have thus failed to raise a genuine issue of material fact that would
preclude summary judgment based on only the actions of Deputy Ardrey and Deputy
Marshall.
2. Failure to Investigate and Discipline
Plaintiffs argue that Adams County has a custom or policy of failing to
investigate and discipline its employees. Docket No. 179 at 22-23. As to Deputy
Marshall, they contend that he has been i nvestigated and disciplined for various
infractions while employed by Adams County, but continues to not only be employed by
the county but also receive raises. Id. at 22. As a result of this lackluster investigation
and disciplinary history, plaintiffs contend that the county has “trained [Deputy]
Marshall that he can violate offenders’ rights with impunity” and that this training
“caused [Deputy] Marshall to respond to [Mr.] Briones in the deliberately indifferent
manner that he did.” Id. Regarding Deputy Ardrey, plaintiffs argue that, although
Deputy Ardrey was found to have violated Adams County policy, the county did not
“counsel [Deputy] Ardrey to behave differently in the future.” Id. at 23. The Court
addresses each in turn.
First, the Court already concluded that Deputy Marshall was not deliberately

at 22, and, as a result, “this binding admission alone also provides a sufficient basis
upon which a reasonable jury could hold the County liable.” Id. While there is
evidence that Deputy Ardrey and Deputy Marshall asserted that their actions were
consistent with Adams County policy, Docket No. 179 at 12, ¶ 29, plaintiffs point to
nothing in the record where Adams County concedes that its deputies’ actions were
consistent with any policy. Regardless, Deputy Marshall did not commit a constitutional
violation and Deputy Ardrey’s actions alone are insufficient to establish the existence of
an unconstitutional policy that caused Mr. Briones’s death. As a result, this argument
in unavailing.
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indifferent. Rather, he acted properly once he became aware of Mr. Briones’s health
condition. Therefore, his actions cannot form the basis of a municipal liability claim
against Adams County because there is no constitutional violation that any alleged
policy could have caused.
Second, plaintiffs fail to establish that Adams County’s lack of counseling of
Deputy Ardrey was the moving force behind Deputy Ardrey’s actions on the night of Mr.
Briones’s death. It is not clear how a lack of counseling after Mr. Briones’s death could
somehow cause Deputy Ardrey to act in the manner he did. Indeed, they cannot
establish that the lack of counseling after the fact was the moving force of Mr. Briones’s
death because the county policy or action in question must occur before the alleged
constitutional violation.13 See Waller, 932 F.3d at 1290 (holding that conduct after an
alleged violation cannot be the cause of the vi olation).
As a result, plaintiffs have failed to raise a genuine issue of material fact
regarding any policy of inadequate investigation to support their municipal liability
claim.
3. Previous Deaths at Adams County Detention Facility
Finally, plaintiffs argue that previous deaths at the Adams County Detention
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Plaintiffs also argue that Adams County’s policy of discarding disciplinary
records that are five years or older causes their employees to violate inmates’
constitutional rights. Docket No. 179 at 12, 23, ¶ 28. However, plaintiffs’ reliance on
Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009), is misplaced. While
Cordova held that a cover-up could provide evidence that a policy is a “policy in name
only,” the Tenth Circuit concluded that there was no cover-up because there was a “full
investigation.” Id. Here, as in Cordova, there was an investigation, and plaintiffs offer
no support for the theory that a five-year record retention policy, on its own, could
supply the direct causal connection necessary to make out a municipal liability claim.
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Facility demonstrate that Adams County has a policy of indifference to medical needs
and was on notice that its policy was constitutionally infirm. Docket No. 179 at 23-25.
However, these deaths are insufficient to create a genuine issue of material fact that
would preclude summary judgment because there is no evidence that the allegedly
unconstitutional policy in those cases was the moving force behind Mr. Briones’s death.
Each case that plaintiffs cite revolves around deficient medical care for inmates
suffering from opioid withdrawal. See Docket No. 179 at 23-25. Plaintiffs do not
explain how deficient care for inmates in opioid withdrawal relates to the sole potential
constitutional violation here – Deputy Ardrey’s alleged decision to ignore an inmate
after being told that Mr. Briones was seriously ill. Plaintiffs must demonstrate a “direct
causal link” between Adams County’s alleged policy of deficient medical care for
inmates in opioid withdrawal and Mr. Briones’s death. See Barney, 143 F.3d at 1307
(citing Bd. of Comm’rs v. Brown, 520 U.S. 397, 397 (1997)). Plaintiffs do not make
such a connection, and it is difficult to see how substandard withdrawal care is related
to the situation here.
Because neither the previous deaths at the Adams County Detention Facility nor
the actions of Deputy Ardrey or Deputy Marshall on their own demonstrate a genuine
issue of material fact as to plaintiffs’ claim for municipal liability claim, Adams County is
entitled to summary judgment.
IV. CONCLUSION
It is therefore
ORDERED that the Adams County Defendants’ Motion for Summary Judgment
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[Docket No. 171] is GRANTED in part and DENIED in part. It is further
ORDERED that plaintiffs’ claim against Deputy Jimmy Marshall is DISMISSED
with prejudice. It is further
ORDERED that plaintiffs’ claims against Sheriff Michael McIntosh and Adams
County are DISMISSED with prejudice.

DATED October 29, 2020.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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