Cook v. Board of County Commissioners for the County of Curry et al
Filing
54
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 25 Plaintiff Kelly Cook's Motion to Amend the Complaint and denying 15 The County Defendants' Rule 12(b) Motion to Dismiss and for Qualified Immunity. Plaintiff must file their proposed Second Amended Complaint within 10 days of the entry of this Memorandum Opinion and Order. (baw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
KELLY COOK, as Mother and
Next Friend of CHRISTIAN COOK,
Plaintiff
v.
No. 2:16-CV-00597 JCH/CG
BOARD OF COUNTY COMMISSIONERS FOR
THE COUNTY OF CURRY, TORI SANDOVAL,
JOAN MARTIN, SUE MARTIN, CORRECTIONAL
HEALTHCARE COMPAINES, INC., and CORRECT CARE
SOLUTIONS, LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the following motions: (i) Plaintiff Kelly Cook’s
Motion to Amend the Complaint (ECF No. 25); and (ii) the Rule 12(b) Motion to Dismiss and
for Qualified Immunity (ECF No. 15), filed by Defendants Board of County Commissioners for
the County of Curry (the “Board”), Tori Sandoval, and Sandra Martin (collectively, hereinafter
the “County Defendants”).1 The Court, having considered the motions, briefs, pleadings, and
relevant law, concludes that Plaintiff’s motion to amend will be granted, and the County
Defendants’ motion to dismiss and for qualified immunity will be denied.
I.
FACTUAL BACKGROUND2
Christian Cook had a history of mental illness, developmental disorders, and behavioral
issues, including known diagnoses for ADHD, autism spectrum disorder, anxiety, borderline
1
Plaintiff moved to amend her complaint to correctly name Defendant Sandra Martin, rather than Sue Martin.
Defendant Sandra Martin subsequently provided notice that she joins in the Rule 12(b) Motion to Dismiss (ECF No.
15) in lieu of filing an Answer. See Notice, ECF No. 53.
2
The factual allegations in the Amended Complaint, ECF No. 3, and in the Proposed Second Amended Complaint,
ECF No. 25, are largely the same. Because this Court will grant the motion to amend the complaint and the new
complaint will become the operative document in the case, the Court will cite to the Proposed Second Amended
Complaint when setting forth the factual background.
intellectual functioning, schizoid features, nocturnal enuresis, OCD features, and febrile seizures.
Proposed Second Am. Compl. ¶¶ 14, 17, ECF No. 25-1. On June 21, 2013, when he was 15
years old, he was arrested and booked into the Curry County Juvenile Detention Center
(“CCJDC”). Id. ¶¶ 5, 15-16. At the time, Defendant Tori Sandoval was the CCJDC
administrator; Defendant Sandra Martin was a high-ranking guard with supervisory authority at
CCJDC; and Defendant Board employed the individual defendants. Id. ¶¶ 4-7.3 Defendants
Sandoval and Sandra Martin had day-to-day contact with Christian and were fully aware of the
conditions in which he was housed. Id. ¶ 200. The CCJDC facility has a design capacity of 16
juveniles and the average population during Christian’s detention was only 11 juveniles. Id.
¶¶ 201-02.
At the time of his booking, a nurse conducted a medical screening of Christian and noted
his diagnosis of ADHD, he appeared anxious, and had a rash, yet he was not treated for either
condition. Id. ¶¶ 18-19. The nurse recommended Christian be housed in general population;
instead, he was housed in solitary confinement, where he remained for the duration of his 11month detention at CCJDC. See id. ¶¶ 15, 20-22, 186. Despite staffing levels of 16 juvenile
detention officers at CCJDC and times when staff often outnumbered juveniles 2:1, Christian
was housed in solitary confinement and rarely allowed out of his cell. Id. ¶¶ 203-06.
The week after Christian arrived, Sheila Stevenson, a licensed independent social worker
(“LISW”) with TeamBuilders Counseling Services, assessed Christian and noted he had
problems with anxiety and enuresis and had a diagnosis of borderline intellectual functioning.
See id. ¶¶ 23-24. She also noted that he exhibited symptoms of anxiety and depression, and
3
Defendant Joan Martin, the on-site head of medical services at CCJDC, Proposed Second Am. Compl. ¶ 9, ECF
No. 25-1; Defendant Correctional Healthcare Companies, Inc. (“CHC”), which was contractually responsible for
providing health care at CCJDC, id. ¶¶ 11-12; and Defendant Correct Care Solutions, LLC, the successor in interest
to CHC, id. ¶ 13, are not parties to the motions at issue.
2
learned from his mother that Christian had difficulty performing activities of daily living, such as
maintaining hygiene without help. See id. ¶¶ 23-26.
During his stay in solitary confinement, Christian’s mental health deteriorated quickly.
Id. ¶ 28. Guards frequently noticed Christian was visibly upset, crying, afraid in his cell, and
depressed, yet records indicate he received no mental health care in response to these
observations. See id. ¶¶ 29-32, 35-40, 46, 59-61, 82-90, 107-08, 138-42, 160. On August 7, 2013,
Christian was visibly upset and told staff he felt like he was passing out and afraid to fall asleep.
Id. ¶ 35. Although they moved him to a holding cell, he was not provided medical treatment. Id.
¶ 36. The following morning Christian began experiencing severe anxiety with hyperventilation,
began crying, and said he needed to go to the hospital, but the jail provided no medical treatment
beyond instructing him to relax and slow his breathing. Id. ¶¶ 37-39. Following the incident,
Christian was placed on “Health and Wellness” Watch, at 30-minute increments, on which he
remained for the rest of his approximately nine and a half month stay. Id. ¶¶ 41-42. During the
first seven days on “Health and Wellness” Watch, records show he remained in his cell for at
least 20 hours per day, received only two short showers, and was let out for recreation only
twice. Id. ¶ 57. Christian began talking to himself underneath his bed, banging on the door and
walls of his cell, and yelling. Id. ¶¶ 58, 110, 113.
On another occasion, a jail officer reported that he saw a journal entry Christian wrote
saying he was tired of being abused and neglected and was tired of living. Id. ¶ 48. The next day
a nurse who examined Christian noted he was anxious, uncooperative, and angry and again
recommended he be housed in general population, yet jail staff continued to house him in a
solitary cell. Id. ¶¶ 52-55. When Christian received counseling, his counselor noticed how
emotionally distressed he was. Id. ¶ 75-76, 127-29, 136. He experienced frequent anxiety attacks
3
throughout his detention and began exhibiting odd behavior, such as flushing food down his
toilet, frequently being seen standing on his sink, and picking at his skin, leading to infections.
See id. ¶¶ 77, 92-97, 106, 109, 176. Although Christian was offered his medications, he
intermittently refused to take them, so guards discontinued his prescriptions without the consent
or advice of his mother or physician. Id. ¶¶ 100-01. In response to his bizarre behavior, guards
often punished him with loss of privileges, including not being let out of his cell. Id. ¶¶ 175-77.
Christian did not receive schooling until nine days after classes began for other children.
Id. ¶ 66. Despite having an updated Individualized Education Plan (“IEP”) setting forth his needs
for special education, occupational therapy, and counseling, Christian consistently received far
fewer minutes of education than the 235 minutes of math and 235 of English each week set forth
in his IEP. See id. ¶¶ 63-72, 124-25, 172-74. For example, during the entire month of September,
Christian received only 36 minutes of education. Id. ¶ 68. Records show that there was not a
single month during his detention when Christian received occupational therapy or mental health
counseling each week as his IEP required. Id. ¶ 73.
Christian’s condition deteriorated to the point that a forensic evaluation was ordered to
determine his competency, yet he remained isolated without mental healthcare. Id. ¶¶ 117-18.
Christian continued to be isolated in his cell for extraordinary lengths of time. Id. ¶ 126. Records
indicate that between December 20, 2013 and January 5, 2014, Christian was not allowed out for
recreation. See id. ¶¶ 138-140. On January 23, 2014, Christian made comments to Melodye
Thomas that he felt like hurting himself, which she reported to Defendant Sandra Martin. Id.
¶¶ 142-44. They placed him on 15-minute suicide watch for 24 hours that day. Id. ¶ 144. Over
the next several weeks, he continued to be housed in isolation, and if he was moved from his
cell, it was to the multi-purpose room in isolation, devoid of social interaction. Id. ¶¶ 146-47. He
4
went days, sometimes weeks without any recreation. See id. ¶¶ 148-168. From September 3 and
14, 2013, Christian was allowed out once for 58 minutes of recreation; from November 22
through 29, 2013, and again from December 2 through 11, 2013, he was not allowed out for
recreation; from April 14 through 21, 2014, he received only 14 minutes of recreation outside his
cell; and during the week of May 4, 2014, he was allowed out to recreation once for 18 minutes.
Id. ¶¶ 150-154. During the last two months of detention, Christian often went days isolated to his
cell for over 20 hours per day. Id. ¶ 171. The lack of recreation and prolonged isolation caused
his mental health to decline very quickly. Id. ¶ 155.
On February 28, 2014, guards noted Christian was crying in his cell, lying underneath the
bunk, asking for his mom, and later in the day he flooded his cell and was rubbing the window
with a wet blanket. Id. ¶¶ 160-62. He began yelling that he was going to kill himself and they
placed him on suicide watch, yet he was not provided any mental health intervention following
his suicide threats. Id. ¶¶ 163-65. Records indicate Christian was not allowed out for recreation
from February 23, 2014 until March 11, 2014. See id. ¶¶ 167-68.
On May 7, 2014, Christian urinated on himself and refused to shower. Id. ¶ 178.
Although he eventually agreed to shower when threatened that he must shower or not be let out
of his cell, he was only let out for an additional two minutes for the entire day following his
shower. Id. ¶ 180. On May 12, 2014, guards found Christian hiding under his blanket with blood
everywhere. Id. ¶ 181. Christian told them he bites his lip when he becomes anxious. Id. ¶ 182.
The next day, Christian’s mother expressed concern that he had plans to kill himself, so they
moved him to a holding cell for observation without providing mental health counseling or
giving him access to a doctor. Id. ¶¶ 183-84. Following this incident, he was not allowed out for
recreation for the remainder of his detention until May 27, 2014, when he was released to Copper
5
Hill in Utah for treatment to attain competency. Id. ¶¶ 185-86. From June 21, 2013 through May
27, 2014, Christian spent eleven months in solitary confinement without a hearing or periodic
classification review. Id. ¶¶ 242, 249.
While at Copper Hills, Christian made many statements of his desire to commit suicide.
Id. ¶ 188. The Copper Hills treatment providers determined he would not be able to attain
competency to stand trial within a year, if ever, so his criminal charges were dropped. Id. ¶¶ 19293. Because of the severity of Christian’s condition, he remained at Copper Hills for treatment of
his mental illnesses until his discharge on October 19, 2014, and he now suffers from posttraumatic stress disorder. Id. ¶¶ 194-96.
Defendants Sandoval and Sandra Martin knew how badly Christian’s mental health
deteriorated during his time at CCJDC. Id. ¶ 207. They also knew CCJDC was not equipped to
house and treat inmates in need of expert mental healthcare like Christian, yet they accepted
Christian as an inmate and placed him in solitary confinement where they allowed him to remain,
untreated, for eleven months. Id. ¶¶ 208-12. Defendant Sandra Martin was aware of Christian’s
need for medical attention, was directly informed that he was expressing suicidal concerns that
were new symptoms, yet she continued to allow him to be housed in isolation without adequate
mental healthcare. Id. ¶¶ 217-20. Defendants failed to provide Christian with constitutionally
mandated recreation time each day, resulting in him not leaving his cell or going outside for long
periods of time, and they were aware that subjecting a child to these conditions was inhumane.
Id. ¶¶ 222-23. Defendant Sandoval was made aware in October 2013 that the New Mexico
Association of Counties was advising jails not to house the mentally ill in segregation, but to
give them access to recreation and social interaction with other inmates, and to evaluate them
every other day by mental health. See id. ¶¶ 224-28.
6
II.
PROCEDURAL HISTORY
Plaintiff subsequently filed a complaint on behalf of her son Christian asserting claims
for (i) violation of substantive due process based on inhumane conditions of confinement and
inadequate medical care against Defendants Sandoval, Sandra Martin, and Joan Martin; (ii)
violation of procedural due process against the Board, Tori Sandoval in her official capacity, and
Sandra Martin in her official capacity (“Official Capacity Defendants”) for arbitrarily placing
Christian in solitary confinement without a classification hearing or periodic classification
review; (iii) violation of the Rehabilitation Act, 29 U.S.C. § 794, against the Official Capacity
Defendants for denying Christian access to a free appropriate education as required by the
Individuals with Disabilities Act (“IDEA”); (iv) violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12131 et seq. (“ADA”), against the Official Capacity Defendants for failing to
accommodate Christian’s mental disability and denying him the benefits and services of the jail
by reason of his mental disability; (v) a claim against the Official Capacity Defendants for a
custom and policy of violating constitutional rights by housing seriously mentally ill juveniles in
isolation without providing them needed mental healthcare; and (vi) state law negligence claims.
See Am. Compl., ECF No. 3. The County Defendants filed a Rule 12(b) Motion to Dismiss and
for Qualified Immunity seeking dismissal of all the federal claims against them (ECF No. 15).
Plaintiff then moved to amend the complaint, which the County Defendants oppose.
III.
MOTION TO AMEND COMPLAINT
A court should freely give leave to amend a complaint when justice so requires. Fed. R.
Civ. P. 15(a)(2). Whether to allow amendment of the pleadings is within the discretion of the
trial court. Minter v. Prime Equipment Co., 451 F.3d 1196, 1204 (10th Cir. 2006). Leave sought
must be freely given in the absence of any justifiable reason for the denial of the motion, such as
7
undue delay, bad faith, repeated failure to cure deficiencies by amendments, undue prejudice, or
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). “A proposed amendment is
futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379
F.3d 892, 901 (10th Cir. 2004) (quoting Jefferson County Sch. Dist. v. Moody’s Investor’s
Services, 175 F.3d 848, 859 (10th Cir. 1999)). To survive dismissal, a complaint must set forth
factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). When reviewing a plaintiff’s complaint under Rule
12(b)(6), the court must accept all well-pleaded allegations as true and construe them in a light
most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
Plaintiff moves to amend the complaint to correct the name of Defendant Sue Martin to
Sandra Martin, remove the Rehabilitation Act claim, and make minor corrections to two other
counts. Pl.’s Mot. to Am. 1, ECF No. 25. The County Defendants oppose the motion based on
futility, arguing that Plaintiff cannot cure the failure to exhaust administrative remedies by
dropping the claim seeking educational remedies or removing certain factual assertions from the
complaint. The Court will consider the futility arguments when analyzing Defendant’s motion to
dismiss, using the facts as alleged in the amended complaint. For the reasons discussed infra, the
Court concludes that amending the complaint would not be futile and will grant leave to amend.
IV.
MOTION TO DISMISS
A. Exhaustion
The Individuals with Disabilities Education Act (“IDEA”) imposes obligations on states
that receive certain federal funds, among other things, to ensure that all children with disabilities
have available to them a free appropriate public education that provides services designed to
meet their unique needs. Carroll v. Lawton Independent Sch. Dist. No. 8, 805 F.3d 1222, 1226-
8
27 (10th Cir. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A)). States must provide educational
services to a child with disabilities in accordance with the child’s IEP that sets forth educational
goals and objectives. See id. at 1227. The IDEA
creates a mandatory administrative framework for resolution of disputes over the
education of children with disabilities: If a parent has a complaint with respect to
any matter relating to the identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public education to such child, the
IDEA entitles the parent to an impartial due process hearing, which shall be
conducted by the State educational agency or by the local educational agency, as
determined by State law or by the State educational agency.
Id. (internal quotations and citations omitted). Claims filed in federal district court under the
ADA, Rehabilitation Act, or other federal laws protecting children with disabilities must also be
first administratively exhausted if the plaintiff seeks relief that is also available under the IDEA.
Id. (quoting 20 U.S.C. § 1415(l)).
To determine if the relief sought is “available” under the IDEA, courts determine whether
“the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’s
administrative procedures and remedies.” Id. The purpose of exhaustion is to give educational
agencies an opportunity to remedy the alleged problem before facing suit. See id. The County
Defendants rely heavily on Carroll for their argument that Plaintiff has alleged educational
injuries that could be redressed to some degree by the IDEA’s administrative process.
In Carroll, the plaintiffs alleged that their autistic child suffered injuries when her teacher
gave her a “wedgie” and placed her in a dark closet on a number of occasions, resulting in their
child becoming agitated upon entering school and negatively affecting her academic progress
9
and emotional health. See Carroll, 805 F.3d at 1225. Her parents sued the teacher, school
district, and two other school district employees for a variety of state law claims and brought
federal claims against only the school district under the ADA, Rehabilitation Act, and § 1983. Id.
The Tenth Circuit affirmed the district court’s dismissal of all the federal claims for failure to
exhaust their administrative remedies under the IDEA because it concluded that plaintiffs alleged
“educational injuries that could be redressed to some degree by the IDEA’s administrative
remedies.” Id. at 1227. Although the plaintiffs alleged some physical, non-educational injuries,
the Tenth Circuit concluded that they also alleged a number of injuries that were educational in
nature, for which the IDEA’s administrative remedies, targeted at providing prospective
educational benefits, were presumptively well suited to remedy. See id. at 1228. The Tenth
Circuit further explained that the discipline of a child in the classroom is a matter that relates to
the provisions of a free appropriate public education and falls within the scope of the IDEA. Id.
at 1229.
In both the Amended Complaint and the proposed Second Amended Complaint, Plaintiff
alleges that Christian was in need of special education, that Christian had an IEP, but that he was
denied adequate schooling in violation of his IEP. See Am. Compl. ¶¶ 63-73, ECF No. 3;
Proposed Second Am. Compl. ¶¶ 63-73, 127-28, 135, ECF No. 25-1. Plaintiff alleges in Count II
of the Amended Complaint that the Official Capacity Defendants violated Christian’s procedural
due process rights by, among other things, punishing him with the removal of privileges,
including “loss of access to counseling required by his IEP” without a hearing or other due
process. Am. Compl. ¶¶ 247-49, ECF No. 3. In the proposed Second Amended Complaint,
Plaintiff eliminated the reference to the removal of privileges that included the loss of counseling
as required by the IEP. See Proposed Second Am. Compl. ¶¶ 237-49, ECF No. 25-1. Instead,
10
proposed amended Count II focuses on the theory that Christian was placed in solitary
confinement, and remained there, without a hearing or reassessment, subjecting him to
unconstitutional punishment through the removal of privileges. See id. In Count III of the
Amended Complaint, Plaintiff asserted that the Official Capacity Defendants violated the
Rehabilitation Act by denying Christian a free appropriate public education, as required by the
IDEA, when they placed him in solitary confinement and denied him access to the required
education. Am. Compl. ¶¶ 251-271, ECF No. 3. Plaintiff seeks to eliminate the Rehabilitation
Act claim entirely in the proposed amended complaint. See Proposed Am. Compl., ECF No. 251. Plaintiff alleges in the ADA claim of the initial and proposed amended complaints that the
Official Capacity Defendants violated Christian’s rights by, among other things, denying him
access to education. Compare Am. Compl. ¶ 282, ECF No. 3, with Proposed Second Am.
Compl. ¶ 260, ECF No. 25-1. In the proposed amended complaint, however, Plaintiff seeks to
add: “Plaintiff is not seeking damages or recovery for any educational injuries as a result of
Defendants’ discriminatory acts and omissions.” Proposed Second Am. Compl. ¶ 264, ECF No.
25-1.
Unlike in Carroll, here Plaintiff has sued the jail administrators and medical staff that
serve the jail, not the local or state educational agencies. The IDEA sets forth procedures and
remedies that must be provided by a state or local educational agency. See Ellenberg v. New
Mexico Military Institute, 478 F.3d 1262, 1269 (10th Cir. 2007). The purpose of exhaustion
under the IDEA is to give an opportunity to the school authorities to resolve conflicts before
being subject to suit. See id. at 1275-76. Plaintiff’s claims against the jail defendants are not
subject to IDEA’s exhaustion requirements. See id. at 1280 (“[W]henever a plaintiff brings a
claim that is ‘educational in nature’ purporting to challenge the provision of educational services
11
by a local school district, the claim is ‘presumptively redressable’ through the IDEA's
administrative procedures…. The benefits of exhaustion fully support this rule, as it allows
educational professionals to have the first crack at designing a program to meet a disabled
student's specific needs.”) (emphasis added). Plaintiff’s asserted damages in this case are those
resulting from Christian’s alleged placement in prolonged solitary confinement, and most of the
injuries alleged are completely separate from anything educational in nature. For example,
Plaintiff seeks damages for pain and suffering, emotional distress, and exacerbation of his mental
illness resulting from the denial of recreational and programming offered by the jail.
Consequently, even had Plaintiff exhausted the IDEA’s administrative remedies, relief from the
conditions of solitary confinement are not in control of the educational agencies, but rather, the
jail administrators who Plaintiff alleges discriminated against Christian on the basis of his
disability. Plaintiff’s ADA and due process claims are therefore not subject to the exhaustion
requirements of the IDEA. See id. at 1280-81 (explaining that IDEA offers no relief in context of
pure discrimination claims because they do not relate to provision of FAPE in least restrictive
environment).
The County Defendants additionally argue, without on-point authority, that Plaintiff
cannot amend a complaint to circumvent the administrative exhaustion requirement. The Court
finds Defendants’ position unpersuasive in this context and will permit Plaintiff to remove the
Rehabilitation Act claim and clarify in the ADA claim that she is not seeking damages for
educational injuries suffered by Christian. Plaintiff’s initial complaint sued jail administrators,
not the state or local school district, and thus the remaining claims were never subject to the
IDEA exhaustion requirements.
12
B. Failure to State a Due Process Claim 4
The Due Process Clause of the Fourteenth Amendment provides that no State may
“deprive any person of life, liberty, or property, without due process of law....” The Due Process
Clause protects individuals against two types of governmental action: (1) “substantive due
process” prevents the government from engaging in action that “shocks the conscience” or
“interferes with rights implicit in the concept of ordered liberty,” and (2) “procedural” due
process ensures that government action depriving a person of liberty is implemented in a fair
manner. See United States v. Salerno, 481 U.S. 739, 746 (1987).
1. Procedural Due Process (Count II)
To determine generally whether a person’s procedural due-process rights were violated, a
court looks at whether the person (i) possesses a protected liberty interest and (ii) was afforded
an appropriate level of process. See Sandin v. Conner, 515 U.S. 472, 487 (1995); Camuglia v.
City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006). Under the Due Process Clause, a
pretrial detainee may be subject to conditions and restrictions of incarceration so long as they do
not amount to punishment prior to a lawful conviction. Peoples v. CCA Detention Centers, 422
F.3d 1090, 1106 (10th Cir. 2005) (citing Bell v. Wolfish, 441 U.S. 520, 535-37 (1979)). See also
Littlefield v. Deland, 641 F.2d 729, 731 (10th Cir. 1981) (“[C]onstitutionality under a due
process analysis of the nature or duration of pretrial detention turns on whether such detention
amounts to ‘punishment’ in the constitutional sense.”). Conditions of pretrial detention that
constitute punishment cannot be constitutionally imposed without due process of law. See Bell,
441 U.S. at 538. Absent a showing of expressed intent to punish by jail officials, the court must
4
The County Defendants asserted generally in the motion that Plaintiff’s ADA claim is barred by his failure to
exhaust IDEA remedies and failure to state a plausible claim for relief. Defs.’ Mot. 2, ECF No. 15. Nowhere in the
motion, however, did the County Defendants address the basis for their assertion that Plaintiff failed to state an
ADA claim aside from the exhaustion theory. The Court will therefore not address an issue not specifically raised in
the motion.
13
analyze whether the restriction is reasonably related to a legitimate governmental objective. Id. at
538-39. If the conditions are not reasonably related to a legitimate governmental purpose, the
court permissibly may infer that the purpose is punishment. Peoples, 422 F.3d at 1106.
According to the allegations of the Proposed Second Amended Complaint, Christian
endured numerous serious conditions that imposed a significant hardship on him by denying him
the ordinary services provided to inmates at the jail for a prolonged period of time. He was given
limited access to recreation and denied social programming, such as group meetings or group
therapy. He was frequently punished with removal of privileges, or lockdown, resulting in
lengthy periods of isolation during his 11-month stay. He was consistently denied adequate
mental healthcare. These allegations, construed in Plaintiff’s favor, show significant restrictions
and hardships on a juvenile pretrial detainee. Moreover, the complaint repeatedly alleges that the
conditions of confinement amounted to punishment. See, e.g., Proposed Second Am. Compl. ¶¶
245-46, 248, ECF No. 25-1.
The County Defendants, relying on Peoples, argue that a jail has a legitimate interest in
segregating inmates for non-punitive reasons, including threats to the safety and security of the
institution, and that Plaintiff has failed to assert that Christian could safely be placed into general
population or to inform the Court of the pending charges against him. The County Defendants
thus contend that Plaintiff did not adequately allege that they placed Christian in solitary
confinement for punitive purposes or that the conditions were sufficiently harsh to constitute
punishment. The County Defendants’ reliance on Peoples, however, is unavailing.
In Peoples, the Tenth Circuit held that placing a pretrial detainee in segregation to
safeguard the safety and security of the institution without an initial hearing does not violate the
Constitution. See Peoples, 422 F.3d at 1106-07. The context of the case is markedly different --
14
the prison temporarily placed the prisoner in segregation because there were not enough vacant
cells and kept him in segregation when it discovered the prisoner’s plot to escape from a
previous facility and determined he was an escape risk. Id. In contrast, there are no allegations in
this case that the CCJDC believed Christian to be an escape threat or otherwise pose a safety or
security threat to other inmates. Although the jail administrators may have had a security reason
for placing Christian in segregation, that reason is not contained within the four corners of the
complaint. The County Defendants have not cited to authority requiring that a plaintiff
affirmatively allege in the complaint the pending charges against him or allege that he could be
safely placed into general population. Nor have the County Defendants moved for summary
judgment. At the motion to dismiss stage, the totality of the allegations in Plaintiff’s favor
indicates that the jail officials had no legitimate governmental objective reasonably related to the
restrictive conditions of Christian’s confinement. Cf. Littlefield, 641 F.2d at 730-32 (holding that
conditions imposed on pretrial detainee suffering from mental illness who was placed in solitary
cell for 56 days without windows, lights, bed, clothes, toilet, or recreation outside his cell were
unreasonably degrading and excessive).
Regarding the process provided Christian, the alleged facts are that the nurse who
conducted Christian’s initial medical screening recommended he be placed in general population,
yet he was placed in solitary confinement where he remained without periodic classification
reviews. Plaintiff plausibly alleges that Christian’s placement in solitary was arbitrary, served no
legitimate governmental purpose, and was done without any process sufficient to survive a
motion to dismiss for failure to state a claim. Cf. Littlefield, 641 F.2d at 730-31 (affirming
judgment that plaintiff’s confinement amounted to punishment without meaningful notice and
hearing in violation of due process where prisoner was young man suffering from mental illness
15
who was housed in solitary “strip cell” for 56 days without opportunity to engage in recreation
outside his cell); Blackmon v. Sutton, 734 F.3d 1237, 1242-43 (10th Cir. 2013) (affirming denial
of summary judgment and qualified immunity for due process claim when evidence showed
defendants sometimes used restraint chair on juvenile pretrial detainee in punishing way without
legitimate penological purpose, even though evidence also showed defendants usually used chair
to prevent detainee from inflicting self-harm); Stevenson v. Carroll, 495 F.3d 62, 69 (3d Cir.
2007) (“Although pretrial detainees do not have a liberty interest in being confined in the general
prison population, they do have a liberty interest in not being detained indefinitely in the SHU
without explanation or review of their confinement.”). See also Hewitt v. Helms, 459 U.S. 460,
477 n.9 (1983) (“Of course, administrative segregation may not be used as a pretext for
indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review
of the confinement of such inmates.”), abrogated in part on other grounds by Sandin v. Conner,
515 U.S. 472, 483 (1995); Gaines v. Stenseng, 292 F.3d 1222, 1225-26 (10th Cir. 2002)
(concluding it was error to find prior to summary judgment that 75-day disciplinary segregation
was not atypical without carefully examining conditions of confinement); Perkins v. Kansas
Dep’t of Corr., 165 F.3d 803, 808-09 (10th Cir. 1999) (concluding that district erred in
dismissing plaintiff’s due process claim where duration and degree of plaintiff’s restrictions as
compared with other inmates showed atypical, significant hardship where inmate was confined
to small cell for 23 1/2 hours a day and was denied exercise outside his cell for over a year). The
Court will therefore not dismiss Plaintiff’s procedural due process claim.
2. Substantive Due Process
Under the Fourteenth Amendment, the “State does not acquire the power to punish ...
until after it has secured a formal adjudication of guilt.” Ingraham v. Wright, 430 U.S. 651, 671
16
n. 40 (1977). Although the Due Process Clause covers a pretrial detainee’s constitutional claims
concerning conditions of confinement, the Eighth Amendment standard provides the framework
for the claims. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (citing Bell v. Wolfish, 441
U.S. at 535). “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
“[D]eliberate indifference to serious medical needs of prisoners” also violates the Eighth
Amendment’s proscription of cruel and unusual punishments. See Estelle v. Gamble, 429 U.S.
97, 104 (1976). Although prison officials cannot absolutely guarantee the safety of their
prisoners, they are responsible for taking reasonable measures to insure inmate safety. Lopez v.
LeMaster, 172 F.3d 756, 759 (10th Cir.1999).
“Deliberate indifference has objective and subjective components.” Callahan v. Poppell,
471 F.3d 1155, 1159 (10th Cir. 2006). A plaintiff satisfies the objective component of the test if
the harm suffered was sufficiently serious. Id. The Tenth Circuit has described the objective
component as incarceration under “‘conditions posing a substantial risk of serious harm’ to
inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001) (quoting
Farmer, 511 U.S. at 834). When a claim involves numerous alleged inhumane conditions,
“[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in
combination’ when each would not do so alone, but only when they have a mutually enforcing
effect that produces the deprivation of a single, identifiable human need such as food, warmth, or
exercise.” Craig, 164 F.3d at 495 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
The subjective component requires a showing that the defendant acted with a culpable
state of mind. See Farmer, 511 U.S. at 836. In Farmer v. Brennan, the Supreme Court observed
that the required mens rea lies “somewhere between the poles of negligence at one end and
17
purpose or knowledge at the other . . . .” 511 U.S. at 836. The Court then held that “a prison
official cannot be found liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an excessive risk to inmate
health or safety; 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 inference.” Id. at
837. A defendant’s knowledge of a substantial risk may be proven by circumstantial evidence,
including evidence “that the risk was obvious.” Id. at 842. Mere negligence is not enough to
constitute deliberate indifference. Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006).
The County Defendants contend that Plaintiff has not alleged sufficiently harsh
conditions of confinement to state a substantive due process claim. The allegations of the
complaint, however, state a plausible claim for violation of Christian’s substantive due process
rights based on the totality of restrictions and the duration of the restrictions that created a known
substantial risk of harm to Christian’s mental well-being. Plaintiff has asserted that Christian had
known mental disabilities and that his condition deteriorated quickly when placed in solitary
confinement. Plaintiff alleged sufficient facts to indicate that the named defendants in their
individual capacities knew of Christian’s condition, knew that his mental health was
deteriorating to the point of becoming a suicide risk, yet they continued to keep him in isolation
without recreation or access to mental health counseling and healthcare.5 Plaintiff also asserted
facts indicating that Defendant Sandoval was aware that mentally ill inmates should not be
housed in segregation and should be evaluated frequently, yet she did not act to evaluate
Christian and permit him access to social interactions with other inmates, recreation, or mental
health treatment. The complaint sufficiently alleges conditions posing a substantial risk of
5
Contrary to the County Defendants’ argument, this case, as alleged by Plaintiff, is not about the right to forced
medications.
18
serious harm to Christian’s health or safety and that the individual defendants acted with
deliberate indifference to his health and safety, disregarding a known risk of harm. Taken all the
factual allegations as true, a reasonable jury could find that the named Defendants placed
Christian in solitary and deprived him of recreation and mental healthcare to punish him, rather
than for a legitimate purpose. Cf. Fogle v. Pierson, 435 F.3d 1252, 1259-60 (10th Cir. 2006)
(disagreeing with district court that Eighth Amendment claim was frivolous because factfinder
might conclude that risk of harm from three years of deprivation of any form of outdoor exercise
was obvious and prison officials disregarded risk by keeping inmate in administrative
segregation); Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) (concluding that inmate who
alleged he received only 30 minutes of out-of-cell exercise in three months stated Eighth
Amendment claim because allegations showed excessive risk to inmate’s well-being), abrogated
on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). Plaintiff has therefore alleged
sufficient facts to state a substantive due process claim.
C. Qualified Immunity
The County Defendants also argue that they are entitled to qualified immunity and
dismissal of the substantive due process claim against them in their individual capacities,
because the law was not clearly established. Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Anderson v. Creighton, 483 U.S. 635, 638
(1987) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “Officials who are mistaken about
the lawfulness of their conduct may still be entitled to qualified immunity if the mistake is
reasonable in light of the applicable law and the facts known to them at the time.” Gomes v.
Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). If officials of reasonable competence could
disagree about the lawfulness of the challenged conduct, then the defendant is entitled to
19
qualified immunity. Id. (quoting Malley, 475 U.S. at 341). Although a plaintiff can overcome the
defense without a favorable case directly on point, existing precedent must have placed the
constitutional question “beyond debate.” Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016)
(quoting Mullenix v. Luna, 136 S.Ct. 305, 309 (2015)). “Clearly established law” must not be
defined “at a high level of generality.” White v. Pauly, 137 S.Ct. 548, 552 (2017) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
When asserting a qualified immunity defense on a Rule 12(b)(6) motion, the defendant
faces a more challenging standard of review than would apply on summary judgment. Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting Peterson v. Jensen, 371 F.3d 1199, 1201
(10th Cir. 2004)). At the motion to dismiss stage, a court examines the defendant’s conduct as
alleged in the complaint for objective legal reasonableness. Id. (quoting Behrens v. Pelletier, 516
U.S. 299, 309 (1996)). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the
allegations within the four corners of the complaint after taking those allegations as true.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).
The Tenth Circuit recently stated that there is ambiguity in this circuit about the right to
outdoor exercise over an 11-month period. See Apodaca v. Raemisch, 864 F.3d 1071, 1079 (10th
Cir. 2017). As alleged, however, this case is about more than simply denial of adequate exercise,
but how the combination of lack of exercise, social interaction, counseling, and mental
healthcare, and the prolonged isolation negatively affected Christian’s mental health in a known
and serious way. Viewing all the allegations in favor of Plaintiff, it would have been clear to a
reasonable jail official that depriving Christian, a juvenile with known mental disabilities, of
access to mental health care and confining him to a solitary cell for long periods of time for a
period of 11 months when there were obvious signs that his mental health was seriously
20
deteriorating violated his constitutional rights. Cf. Blackmon, 734 F.3d at 1245 (“[B]y 1997 it
was clearly established law that the deliberate disregard of a patient’s psychological needs can
violate a detainee’s constitutional rights no less than the deliberate disregard of his physical
needs.”); Craig, 164 F.3d at 492-93, 496 (denying summary judgment to defendants on due
process claim given factual questions of whether pretrial detainee was confined for six months in
small cell with five or six other men, never had bed linens cleaned, was only permitted two
showers a week, sink was frequently clogged, cell had poor ventilation, and he was allowed outof-cell recreation on only two occasions). See also Allen v. Avance, 491 F. App’x 1, 2, 5 (10th
Cir. July 10, 2012) (unpublished decision) (denying qualified immunity for pretrial detainee’s
due process claim alleging that jail officials locked him in jail “drunk tank” for approximately
twelve days without bedding, mattress, or toiletries in retaliation for decision to file
administrative grievance). The individual defendants are therefore not entitled to qualified
immunity on the due process claim.
D. Preclusion
Alternatively, the County Defendants assert that the procedural due process claim
precludes the substantive due process claim based on the principle that when a plaintiff has
recourse to an explicit textual source of constitutional protection, he cannot bring a more general
claim of substantive due process. It is undisputed that the Due Process Clause governs a pretrial
detainee’s claim of unconstitutional conditions of confinement. This case is therefore not one in
which a separate constitutional amendment applies to the claims, such as the Fourth or Eighth
Amendments. The County Defendants have not provided authority that a pretrial detainee cannot
bring both a substantive and procedural due process claim in a complaint where, as here, the
pretrial detainee’s claims are against different defendants, contain different harms, and allege
21
different facts. “Plaintiff’s procedural due process claim is only directed at the warden as the
person with the responsibility to provide disciplinary hearings or procedural due process in such
a small facility.” Pl.’s Resp. 17 n.9, ECF No. 38. In contrast, Plaintiff’s substantive due process
claim alleges conscience-shocking inhumane conditions of confinement and denial of access to
necessary medical care. It is clear that “pretrial detainees, who have not been convicted of any
crimes, retain at least those constitutional rights … enjoyed by convicted prisoners.” Bell, 441
U.S. at 545. Given that pretrial detainees’ substantive due process rights to medical care and
humane treatment mirror the Eighth Amendment rights of prisoners, and prisoners retain rights
to process to protect their liberty interests as well as rights that protect them from conscienceshocking conditions regardless of the process afforded, the Court is not convinced that Plaintiff
cannot bring separate procedural and substantive due process claims where Plaintiff has alleged
plausible claims for each. The Court will therefore not dismiss the substantive due process claim
under a preclusion theory. See Stevenson, 495 F.3d at 64-69 (reversing dismissal of pretrial
detainees’ substantive due process and procedural due process claims, while noting that “the
substantive and procedural due process evaluations are distinct”); Romero v. Board of County
Commissioners, et al., 202 F.Supp.3d 1223, 1263-64 (D.N.M. Aug. 15, 2016) (refusing to
dismiss either procedural or substantive due process claim because the “procedural due-process
claim asserts a constitutional injury from being subjected to inhumane conditions without
process, while the substantive due-process claim addresses the inhumane conditions themselves
as well as the lack of medical care”). As for the County Defendants concerns about double
recovery, they can be resolved through appropriate jury instructions. The Court will therefore
deny the County Defendants’ motion to dismiss Plaintiff’s substantive due process claim.
22
E. Monell Claim6
Plaintiff sets forth a separate count for Monell liability for the violation of Christian’s
constitutional rights. The County Defendants argue that Monell simply extends liability to a
municipal entity for a constitutional violation, that this theory of liability should not be pled in a
separate count, and thus that the separate count containing the Monell claim must be dismissed
for failure to state a claim. Notably, the County Defendants do not argue that Plaintiff fails to
allege sufficient factual allegations to support a theory of liability against the Official Capacity
Defendants under Monell. The Court finds no grounds to dismiss Plaintiff’s Monell claim merely
because Plaintiff chose to plead the theory in a separate count rather than as part of each
constitutional count. To do so would elevate form over substance. Accordingly, the Court will
not dismiss Count IV of the proposed Second Amended Complaint.
IT IS THEREFORE ORDERED that
1. Plaintiff Kelly Cook’s Motion to Amend the Complaint (ECF No. 25) is
GRANTED.
2. The County Defendants’ Rule 12(b) Motion to Dismiss and for Qualified Immunity
(ECF No. 15) is DENIED.
3. Plaintiff must file the proposed Second Amended Complaint within 10 days of entry
of this Memorandum Opinion and Order.
__________________________________________
UNITED STATES DISTRICT JUDGE
6
In Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978), the Supreme Court ruled that
municipalities cannot be held liable under 42 U.S.C. § 1983 on a respondeat superior theory for merely employing a
tortfeasor. Municipalities, instead, are subject to Section 1983 liability only when their official policies or customs
cause a plaintiff’s constitutional injuries. See id. at 694.
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