Crane v. Utah Department of Corrections et al

Filing 91

MEMORANDUM DECISION & ORDER GRANTING MOTION FOR JUDGMENT ON PLEADINGS: granting 73 Motion for Judgment on the Pleadings. All Defendants and claims having now been dismissed, this action is CLOSED. Signed by Judge David Nuffer on 02/04/2020. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JANET CRANE, as Administrator of Brock
Tucker's Estate,
Plaintiff,

MEMORANDUM DECISION &
ORDER GRANTING MOTION FOR
JUDGMENT ON PLEADINGS

v.
UTAH DEP'T OF CORR. et al.,
Defendants.

Case No. 2:16-CV-1103-DN
District Judge David Nuffer

Inmate Brock Tucker committed suicide while at Central Utah Correctional Facility
(CUCF). (ECF No. 39, at 2.) Plaintiff, his grandmother, brings this action on his estate's behalf.
(Id.)
Plaintiff's Amended Complaint, (ECF No. 39), asserts these causes of action: (1) Under
§ 1983, 1 cruel-and-unusual-punishment claims against CUCF Defendants Bigelow, Garden,
Taylor, and Cox, U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."); (2) deliberate-indifference claims
against Utah Department of Child and Family Services (DCFS) Defendants Platt, Burke, Futures
Through Choices (FTC), Universal Health Services (UHS), and Jeremy Cottle, U.S. Const.
amend. XIV; (3) Americans with Disabilities Act (ADA) and Rehabilitation Act (Rehab Act)

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The statute reads in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State . . ., subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law . . . .
42 U.S.C.S. § 1983 (2019).

claims against Defendant Utah Department of Corrections (UDOC), 29 U.S.C.S. § 794 (2019);
42 id. § 12101; (4) unnecessary-rigor claims against all defendants. Utah Const. art. I, § 9.
On September 28, 2017, Defendants FTC and Cottle were dismissed from this case. (ECF
No. 58, at 8.)
On November 4, 2018, the remaining defendants moved for judgment on the pleadings.
(ECF No. 73.) On November 5, 2018, a motion hearing was held, with the motion for judgment
on pleadings taken under advisement. (ECF No. 74.)
On December 26, 2018, Plaintiff filed Memorandum in Opposition to Defendants'
Motion for Judgment on the Pleadings. (ECF No. 80.) In that memorandum, Plaintiff conceded,
"Plaintiff has failed to allege a viable . . . claim under the Fourteenth amendment against DCFS
Director Platt and Juvenile Justice [Director] Burke." (Id. at 23.) Plaintiff did not mention UHS,
nor make any further argument as to Plaintiff's Fourteenth Amendment claim. Then, in the first
paragraph of Plaintiff's argument about unnecessary-rigor claims under the Utah Constitution,
Plaintiff acknowledged past dismissal of Defendants FTC and Cottle and recognized, "The
DCFS Defendants are in a different situation than the State Defendants and . . . the DCFS
allegations occurred long before Brock was incarcerated at the prison, and therefore those
Defendants would not have any control over the actions of the State Defendants." (Id. at 28-29.)
Plaintiff did not again mention any of the remaining DCFS defendants in unnecessary-rigor
arguments. Therefore, it appears that there are no further claims against remaining DCFS
Defendants Platt, Burke, and UHS. Those defendants are thus dismissed from this case without
further consideration.

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That said, the remaining claims are: (1) cruel and unusual punishment alleged against
Defendants (a) Bigelow (supervisor liability); (b) Garden (supervisor liability); (c) Taylor
(punishments of segregated confinement); and (d) Cox (verbal altercation and denial of
recreation on day of suicide); (2) violation of ADA and Rehab Act against UDOC; and (3)
unnecessary rigor against Bigelow, Garden, Taylor, and Cox (CUCF Defendants) and UDOC.
I. MOTION-TO-DISMISS STANDARD OF REVIEW
"A motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6)." Atl. Richfield
Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th
Cir. 2000); accord Jacobsen v. Deseret Book Co., 287 F.3d 936,
941 n.2 (10th Cir. 2002). . . .
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Emps.' Ret. Sys. v. Williams Cos., Inc.,
889 F.3d 1153, 1161 (10th Cir. 2018) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged." Free Speech v. Fed. Election Comm'n, 720 F.3d 788, 792
(10th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In making this
assessment, we "accept as true 'all well-pleaded factual allegations
in a complaint and view these allegations in the light most
favorable to the plaintiff.'" Schrock v. Wyeth, Inc., 727 F.3d 1273,
1280 (10th Cir. 2013) (quoting Kerber v. Qwest Grp. Life Ins.
Plan, 647 F.3d 950, 959 (10th Cir. 2011)).
Cummings v Dean, 913 F.3d 1227, 1238 (10th Cir. 2019).
II. RELEVANT FACTS ACCEPTED AS TRUE ONLY FOR THIS ORDER'S PURPOSES
1.

At relevant time, Tucker was inmate at CUCF. (ECF No. 39, at 2.)

2.

Plaintiff Janet Crane is administrator of Tucker’s estate. (Id. at 3.)

3.

UDOC is State of Utah political subdivision. (Id.)

4.
Defendant Bigelow, sued in individual capacity, was warden of CUCF from about
2007 to July 2010 and April 2014 to February 10, 2017. (Id. at 4.)
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5.
At relevant times, Defendant Garden, sued in individual capacity, was UDOC
Director of Clinical Services Bureau, managing medical and mental-health treatment of CUCF
inmates. (Id. at 4-5.)
6.
At relevant times, Inmate Taylor, sued in individual capacity, was CUCF inmate
disciplinary officer. (Id. at 5.)
7.
At relevant times, Defendant Cox, sued in individual capacity, was CUCF
correctional officer. (Id.)
8.
On September 5, 2012, Tucker entered Utah State Prison and, within months,
transferred to CUCF. (ECF No. 73, at 5.) Amended Complaint contains no allegation of Tucker's
prior medical or mental-health information being put on prison records.
9.
From February 2013 to February 2014, Tucker spent about 42% of his time--more
than 154 days--in punitive isolation. (ECF No. 39, at 13.) “Punitive isolation” is described as
follows: completely alone in cell; allowed out about 1 hour every other day, which was only time
to shower; and denied recreation, library, visitation, phone calls, and commissary. (Id. at 12-13.)
10.
On June 9, 2014, Tucker’s inmate classification was changed from level 3 to level
2, meaning he was housed in maximum security and kept in his cell 21 hours per day, with
reduced visitation and other privileges. (Id. at 14.) Around same time, Dr. Burnham diagnosed
Tucker with unspecified psychosis and major depressive disorder and ordered treatment. (Id. at
14-15.)
11.
From June 19 to September 12, 2014, Tucker was provided psychiatric drugs,
"outpatient mental health treatment," "self-help programs," "frequent[] correspond[ence] with his
family," and a meeting with a social worker. (Id. at 15-16.)
12.
On September 19, 2014, Defendant Taylor disciplined Tucker for misbehavior
with 2 20-day terms of punitive isolation, scheduled to be served September 19-October 9, 2014,
and October 11-31, 2014. (Id. at 16-17.) CUCF policy “FD18/12.03” reads: “Procedure:
Outpatient Care Disciplinary Action When disciplinary action is being considered for an
offender in outpatient treatment, the psychiatrist mental health staff shall provide information to
the discipline hearing officer stating whether or not the behavior was due to mental illness.” (Id.
at 17.) This procedure was not followed for discipline given Tucker by Defendant Taylor on
September 19, 2014. (Id.)
13.
(Id. at 17.)

On September 22, 2014, Tucker given new disciplinary notices for misbehavior.

14.
On October 2, 2014 afternoon, Defendant Cox argued with Tucker through cell
door, refused out-of-cell recreation, was later seen entering Tucker’s cell, and ignored towel over
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Tucker's window. (Id. at 18.) At 6:15PM, unnamed officer discovered Tucker hanging from top
bunk, dead. (Id.) Tucker's cell contained bunk bed, sheets, and towel. (ECF No. 73, at 7.)
III. ANALYSIS
A. CRUEL-AND-UNUSUAL-PUNISHMENT CLAIMS
Invoking the Eighth Amendment, Plaintiff argues that CUCF Defendants' deliberate
indifference caused Tucker's suicide, triggering liability for damages payable by Defendants to
his estate. (ECF No. 39.) Defendants, sued in their individual or personal capacities, counter that
they are shielded from any liability here by qualified immunity. (ECF No. 73.)
The qualified-immunity defense "is available only in suits against officials sued in their
personal capacities, not in suits against . . . officials sued in their official capacities." Starkey v.
Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir. 2009).
The qualified-immunity doctrine protects public employees from
both liability and "from the burdens of litigation" arising from their
exercise of discretion. Allstate Sweeping, LLC v. Black, 706 F.3d
1261, 1266 (10th Cir. 2013); see Elder v. Holloway, 510 U.S. 510,
514 (1994) ("The central purpose of affording public officials
qualified immunity from suit is to protect them 'from undue
interference with their duties and from potentially disabling threats
of liability.'" (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982))). When a defendant raises the qualified-immunity defense,
"the onus is on the plaintiff to demonstrate '(1) that the official
violated a statutory or constitutional right, and (2) that the right
was "clearly established" at the time of the challenged conduct.'"
Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis
added) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011));
accord Cillo v. City of Greenwood Village, 739 F.3d 451, 460
(10th Cir. 2013).
We may address the two prongs of the qualified-immunity
analysis in either order: "[I]f the plaintiff fails to establish either
prong of the two-pronged qualified-immunity standard, the
defendant prevails on the defense." A.M. v. Holmes, 830 F.3d
1123, 1134-35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151
(2017). . . .

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"A clearly established right is one that is 'sufficiently clear that
every reasonable official would have understood that what he is
doing violates that right.'" Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)). Ordinarily, "[a] plaintiff may satisfy this [clearlyestablished-law] standard by identifying an on-point Supreme
Court or published Tenth Circuit decision [that establishes the
unlawfulness of the defendant's conduct]; alternatively, 'the clearly
established weight of authority from other courts must have found
the law to be as the plaintiff maintains.'" Quinn, 780 F.3d at 1005
(quoting Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010));
accord A.M., 830 F.3d at 1135; Cox v. Glanz, 800 F.3d 1231, 1247
(10th Cir. 2015). As the Supreme Court has instructed, this "do[es]
not require a case directly on point, but existing precedent must
have placed the statutory or constitutional question [regarding the
illegality of the defendant's conduct] beyond debate." al-Kidd, 563
U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1106
(10th Cir. 2014) ("Although it is not necessary for the facts in the
cited authority to correspond exactly to the situation the plaintiff
complains of, the 'plaintiff must demonstrate a substantial
correspondence between the conduct in question and prior law
allegedly establishing that the defendant's actions were clearly
prohibited.'" (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d
1179, 1184 (10th Cir. 2000))). In this vein, the Court has
"repeatedly told [lower] courts . . . not to define clearly established
law at a high level of generality." al-Kidd, 563 U.S. at 742 (citation
omitted); accord Mullenix, 136 S. Ct. at 308. "[D]oing so avoids
the crucial question [of] whether the official acted reasonably in
the particular circumstances that he or she faced." Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014) (emphasis added); accord
Estate of B.I.C., 761 F.3d at 1106. In this connection, it bears
underscoring that the federal right allegedly violated must have
been "clearly established at the time of the defendant's unlawful
conduct." Cillo, 739 F.3d at 460.
In furthering the protective aims of qualified immunity, it is
important that courts be especially sensitive to the need to ensure
"a substantial correspondence between the conduct in question and
prior law allegedly establishing that the defendant's actions were
clearly prohibited." Estate of B.I.C., 761 F.3d at 1106 (quoting
Trotter, 219 F.3d at 1184)).
Cummings v Dean, 913 F.3d 1227, 1239-41 (10th Cir. 2019).

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"[B]y asserting the qualified-immunity defense, [Defendants
Bigelow, Garden, Taylor and Cox] triggered a well-settled twofold
burden that [Plaintiff] was compelled to shoulder: not only did she
need to rebut [Defendants'] no-constitutional-violation arguments,
but she also had to demonstrate that any constitutional violation
was grounded in then-extant clearly established law. See, e.g.,
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)
("When a defendant asserts qualified immunity . . . , the burden
shifts to the plaintiff, who must clear two hurdles in order to defeat
the defendant's motion. The plaintiff must demonstrate on the facts
alleged both that the defendant violated his constitutional or
statutory rights, and that the right was clearly established at the
time of the alleged unlawful activity." (emphases added)); see also
Felders v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) ("[T]he
'record must clearly demonstrate the plaintiff has satisfied his
heavy two-part burden; otherwise, the defendants are entitled to
qualified immunity.'" (quoting Medina v. Cram, 252 F.3d 1124,
1128 (10th Cir. 2001))), cert. denied., 135 S. Ct. 975; Mick v.
Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996) ("Unless the plaintiff
carries its twofold burden, the defendant prevails.").
Cox, 800 F.3d at 1245.
The second prong is dispositive: Plaintiff has not carried her burden of showing that the
allegedly violated constitutional right was clearly established at the time of the purported
unlawful activity. Id. at 1246 (stating court has "discretion to address either prong [of this
standard] first" (alteration in original)). Plaintiff argues only two cases as on-point Supreme
Court and published Tenth Circuit law putting the unlawfulness of CUCF Defendants' conduct
beyond debate: Taylor v. Barkes, 135 S. Ct. 2042 (2015), and Cox, 800 F.3d 1231.
In Taylor, an inmate was medically evaluated as he entered prison. 135 S. Ct. at 2043.
The evaluation included screening for suicide-risk factors. Id. Though he disclosed his history of
psychiatric treatment, medication, and suicide attempt, lack of other indicators--e.g., current
suicidal thoughts--resulted in routine referral to mental-health services. Id. However, the next
day, he hung himself. Id. When the inmate's family sued prison officials on his behalf and
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defendants asserted qualified immunity, the Supreme Court held for defendants: "No decision of
this Court establishes a right to the proper implementation of adequate suicide prevention
protocols. No decision of this Court even discusses suicide screening or prevention protocols."
Id. at 2044.
Thus, the Taylor case would not have put CUCF Defendants on notice that they should
screen for suicide risk or adopt a suicide-prevention protocol--let alone when there is no
allegation that CUCF Defendants personally knew of Tucker's psychiatric history or even Dr.
Burnham's recent diagnosis of psychosis and depressive disorder.
And, in Cox, the inmate underwent a mental-health screening when he entered jail. 800
F.3d at 1237. Though the inmate answered, "Yes," to questions that the protocol indicated should
result in follow-up mental-health care, no referral was done. Id. The next day, the inmate filed a
medical request to talk "to someone about problems" and possibly visited with a healthcare
employee. Id. at 1238. Three days after intake, though, the inmate hung himself. Id. The inmate's
mother acted on his behalf to sue the county sheriff under the Eighth Amendment. Id. at 1236.
And defendant invoked qualified immunity. Id. The Tenth Circuit concluded, "[T]he right that
[Plaintiff's] claim implicates--i.e., generally, an inmate's right to proper suicide screening
procedures during booking--was not clearly established in July 2009." Id. at 1247.
Likewise, the Cox case would not have put CUCF Defendants on notice that they were
violating a constitutional right of Tucker—for whom (based on the assumed facts put forth by
Plaintiff) they never had any notice of mentally illness or suicidal inclination. Here, the right
espoused by Plaintiff might be more accurately termed, "an inmate's right to not be argued with,
or disciplined with occasional periods of administrative segregation, due to the possibility that he

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may be suicidal." And Plaintiff has not suggested any on-point Supreme Court or published
Tenth Circuit precedent to characterize this as a right of which Defendants may have been aware.
In sum, Plaintiff has not met her burden of showing CUCF Defendants violated Tucker's
clearly established constitutional rights. CUCF Defendants are therefore protected by qualified
immunity from further exposure on this claim.
B. ADA AND REHAB ACT CLAIMS
"The elements for proving a violation of the ADA and [of] the Rehabilitation Act
("Rehab Act") are the same, except that an element of the Rehab Act is that the entity receives
federal funding." Solomon v. Pioneer Adult Rehab. Ctr., No. 1:04-CV-102 DAK, 2007 U.S. Dist.
LEXIS 93878, *10 n.3 (D. Utah 2007). These claims are therefore discussed together. Roe v.
Housing Auth., 909 F. Supp. 814, 821 (D. Colo. 1995) ("[B]ased on the explicit intent of
Congress and the similar goals of the ADA [and] the Rehab Act . . ., I will analyze the . . . ADA
and Rehab Act claims together."); see also Nordwall v. PHC-Las Cruces, Inc., 960 F. Supp. 2d
1200, 1233 (D.N.M. 2013) ("The remedies for ADA and Rehabilitation Act violations are coextensive.").
"ADA claims do not survive a plaintiff's death under Utah's survival statute." Allred v.
Solaray, 971 F. Supp. 1394, 1398 (D. Utah 1997); see Utah Code Ann. § 78B-3-107(1)(a)
(2019). The analysis in Allred also fully supports an explicit conclusion here that co-extensive
Rehab Act claims likewise do not survive a plaintiff's death under Utah's survival statute. Based
on Tucker's death, ADA and Rehab Act claims may not proceed further and are dismissed.

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C. UNNECESSARY RIGOR
Plaintiff's last remaining claim derives from the Utah Constitution. Supplemental
jurisdiction was exercised over the claim while the above federal claims were pending (that have
now been dismissed).
(a) Except as provided [below] . . . in any civil action of which the
district courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that
they form part of the same case or controversy . . . .
....
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if— . . . the district
court has dismissed all claims over which it has original
jurisdiction . . . .
28 U.S.C.S. § 1367 (2019).
"When all federal claims have been dismissed, the court may, and
usually should, decline to exercise jurisdiction over any remaining
state claims." Koch v. City of Del City, 660 F.3d at 1228, 1248
(10th Cir. 2011) (quoting Smith v. City of Enid ex rel. Enid City
Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998)). The Supreme
Court has also recognized:
Needless decisions of state law
should be avoided both as a matter of
comity and to promote justice
between the parties, by procuring for
them a surer-footed reading of
applicable law. Certainly, if the
federal claims are dismissed before
trial, even though not insubstantial in
a jurisdictional sense, the state
claims should be dismissed as well.
United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 726
(1966). The Court has previously stated that a district court should
usually decline to exercise supplemental jurisdiction when 28
U.S.C. § 1367(c) applies. See Armijo v. New Mexico, No. CIV 080336, 2009 U.S. Dist. LEXIS 101917, 2009 WL 3672828, at *4
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(D.N.M. Sept. 30, 2009) (Browning, J.) ("The Supreme Court and
the Tenth Circuit have not only acknowledged such a result, they
have encouraged it."). The Tenth Circuit has recognized that a
district court does not "abuse [its] discretion" when it declines to
exercise supplemental jurisdiction over a claim "under 28 U.S.C. §
1367(c)(3) . . . where it 'has dismissed all claims over which it has
original jurisdiction[.]'" Muller v. Culbertson, 408 F. App'x 194,
197 (10th Cir. 2011) (unpublished).
Nordwall, 960 F. Supp. 2d at 1247-48.
The Utah-Constitution-based unnecessary-rigor claim is therefore dismissed.
IV. CONCLUSION
IT IS ORDERED that Defendants' Motion to Dismiss on the Pleadings is GRANTED.
(ECF No. 73.) All Defendants and claims having now been dismissed, this action is CLOSED.
Dated February 4, 2020.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

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