Porter et al v. Daggett County et al
Filing
164
MEMORANDUM DECISION and Order granting in part and denying in part 126 Motion for Summary Judgment. Defendants are entitled to summary judgment on the state-law claims, the claims against Bailey, the claims against Jorgensen, and failure-to train claims against Daggett County. The Eighth Amendment claim against Daggett County for Sheriff Jorgensen's failure to supervise and discipline remains. Signed by Judge David Barlow on 02/16/2022. (jl)
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4046 Page 1 of 31
THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
DUSTIN LAW PORTER, STEVEN
DROLLETTE, JOSHUA ASAY, and
JOSHUA OLSEN,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART [126]
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiffs,
v.
Case No. 2:18-cv-00389-DBB
DAGGETT COUNTY, UTAH et al.,
District Judge David Barlow
Defendants.
Defendants Daggett County, Sheriff Erik Bailey in his official capacity, and former
Sheriff Jerry Jorgensen move for summary judgment on the claims against them.1 For the
reasons stated below, the court GRANTS IN PART and DENIES IN PART the motion.
BACKGROUND
From 2011 to 2017, Jerry Jorgensen served as Daggett County Sheriff.2 He also served
personally as Jail Commander from 2008 until 2015 before appointing Benjamin Lail as Jail
Commander in November or December of 2014.3 After 2015, Jorgensen visited the jail about
once a week and did not frequently interact with inmates or supervise the corrections officers,
control room workers, or sergeants at the jail.4
Daggett County Defendants’ Motion for Summary Judgment (“Motion for Summary Judgment”) at 2, ECF No.
126, filed Aug. 20, 2021.
2
Jorgensen Dep. at 6:24–7:1, 10:15–19, ECF No. 141-5.
3
Id. at 10:15–19, 31:25–32:4.
4
Id. at 129:12–130:11; Jorgensen Decl. at ¶ 15.
1
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4047 Page 2 of 31
Lail and another officer, Dale Bingham, were the Taser trainers for Daggett County; they
were sent to a third-party Taser training and then returned to Daggett County to train others.5
Lail and Bingham conducted Taser training for more than ten other officers while they worked at
the jail.6 Daggett County conducted Taser training in January 2016.7
Jorgensen knew about the general conditions at the jail and would occasionally hear
complaints from officers.8 Jorgensen “heard rumblings” that guards slept during night shifts at
the jail and that guards were watching television during their shifts.9 In response, he told Lail that
that sleeping on the job was not permissible and left Lail to deal with it.10 Jorgensen also knew
that guards would watch television during their shifts.11 Jorgensen knew that the some of the
guards would engage in horseplay and wrestling with each other while at the jail and that in early
2016 Lail “goosed” another officer.12 Jorgensen characterized the behavior as “boys playing”
and recalled that he probably had “the county attorney look at it.”13 Finally, Jorgensen heard a
couple of reports of inmates washing officers’ personal vehicles.14 Although the county did not
have a policy against inmates washing officers’ personal vehicles, Jorgensen “didn’t allow it”
and “dealt with it informally.”15
5
Jorgensen Dep. at 49:16–20; Lail Dep. at 38:17–23, ECF No. 141-4.
Id. at 143:21–146:14.
7
UDOC Report at 51, ECF No. 141-28.
8
See, e.g., Jorgensen Dep. at 43:7–24.
9
Id. at 70:7–15, 71:14–23.
10
Id. at 70:7–15.
11
Id. at 71:14–23.
12
Id. at 94:10–95:3.
13
Id. at 94:24–95:3.
14
Id. at 48:20–49:6.
15
Id.
6
2
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4048 Page 3 of 31
Joshua Cox was hired as a deputy at the jail in 2015.16 Cox testified that on his first day
working at the jail, Lail told him that “it was a relaxed environment and . . . if [he] needed to take
a nap during [his] night shift, that was common practice.”17 Cox saw that it was commonplace
for the guards at the jail, including Lail, to hit or pretend to hit each other in the genitals18 and
that Lail “often played around with [Tasers] and acted like he was going to . . . tase the other
officers.”19
Dogs were occasionally present at the jail. A nighttime controller was allowed to bring
her dog into the jail control room.20 Lail would bring his personal dog to work, and the dog
would hang out in front of the jail.21 Cox would bring his police dog into a fenced-in area behind
the jail and work on training his dog there.22 Jorgensen knew that Cox was training his police
dog behind the jail.23
In April 2016, Jane Doe 2, a teacher who taught inmates at the jail, emailed Jorgensen to
inform him about an incident between her and Lail.24 Doe stated that Lail made “wise-crack
comments” while she was on the phone in the jail control room, yelled at her to “[g]et back to
class and teach!”, and then turned on a Taser and pointed it at the ground directly in front of her
feet.25 She described Lail’s behavior as “extremely unprofessional and unacceptable; not to
mention intimidating and frightening.”26 Jorgensen responded by calling Lail into his office,
16
Cox Dep. at 5:23–25, ECF No. 141-7.
Id. at 12:19–22.
18
Id. at 15:24–16:17.
19
Id. at 17:17–24.
20
Jorgensen Dep. at 133:2–3.
21
Id. at 133:4–6.
22
Id. at 133:6–10.
23
Id.
24
ECF No. 141-26 at 1.
25
Id.
26
Id.
17
3
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4049 Page 4 of 31
telling Lail that the behavior was unacceptable, and asking Lail to apologize to Doe.27 He
characterized the incident as “horseplay.”28 Cox testified that he had heard about the incident
between Lail and Doe and had seen Lail act like he was going to tase “just about everybody” at
the jail.29
Three months later, in July 2016, Brian Thompson, a deputy at the jail, met with
Jorgensen to discuss concerns that he had about Lail.30 Thompson testified that he discussed an
incident in which he witnessed Lail hit an inmate in the genitals, incidents of Lail calling inmates
names, and occurrences of deputies wrestling with inmates.31 Thompson also talked to Jorgensen
about concerns that Lail had been falsifying his time cards and that jail employees were driving
drunk.32 Thompson stated he was not aware of Jorgensen taking any action after this meeting.33
Cox also testified that he reported to Deputy Sheriff Chris Collett that he witnessed Lail getting
out of his vehicle with an open container but that nothing ever came of his report.34 Cox stated
that Lail later pulled him into his office and said “I know what you did.”35
On August 27, 2016, during a jail barbeque, Cox tased five inmates in the jail’s garage in
front of two other deputies, Logan Walker and Rodrigo Toledo.36 On October 17, 2016, Cox
tased inmate Joshua Olsen in the wood shop as an initiation to the work crew, which was
required to keep his outside work privileges.37 There is footage from January 2017 of Cox using
27
Jorgensen Dep. at 33:1–8.
Id. at 33:10–12.
29
Cox Dep. at 19:1–13.
30
Thompson Dep. at 31:1–7, ECF No. 141-13.
31
Id. at 36:13–23.
32
UDOC Report at 21.
33
Thompson Dep. at 36:2–12.
34
Cox Dep. at 88:1–89:17.
35
Id. at 25:15–26:22.
36
Id. at 78:12–79:17; Walker Decl. at ¶¶ 35-43, ECF No. 141-16; UDOC Report at 1.
37
ECF No. 141-30 at 4; UDOC Report at 6.
28
4
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4050 Page 5 of 31
inmates to train his police dog in the jail’s chapel.38 At some point after Adam Gonzalez was
appointed sergeant at the jail in January 2017, he heard a report from a jail controller that Cox
was having an inmate hold a dog bite guard to train his dog—Gonzalez testified that he told Cox
to stop and reported the incident to Lail.39
Plaintiff Steven Drollette, a former inmate at Daggett County Jail, wrote a letter to
Jorgensen on December 31, 2016 that Jorgensen received on January 10, 2017.40 The letter
alleged serious misconduct by correctional officers at Daggett County Jail, including allegations
that Joshua Cox tased inmates.41 Upon receiving the letter from Drollette, Jorgensen and Collett
contacted the Utah Department of Corrections (“UDOC”) to request a formal investigation.42
UDOC began its investigation, and on January 31, 2017 Cox reportedly told inmates in the wood
shop not to talk to investigators if anyone asked about anything to do with the tasings.43 On
February 1, 2017, Jorgensen, Collett, and the UDOC investigator agreed that Cox should be
placed on administrative leave, and Cox was placed on leave that day.44
During the course of the UDOC investigation, the Department of Corrections found
evidence of Cox tasing inmates in front of other correctional officers and requiring inmates to
participate in training his police dog.45 Specifically, the report found that on August 27, 2016,
“Cox tased inmates without provocation, using a stolen taser,” that “Cox also required inmates to
38
UDOC Report at 48.
Gonzalez Dep. at 29:16–36:20, ECF No. 141-10.
40
Jorgensen Dep. at 55:2–9.
41
Plaintiffs’ Consolidated Opposition to Defendants’ Motion for Summary Judgment (“Opposition”) at 21, ECF No.
138, filed Oct. 15, 2021.
42
Jorgensen Dep. at 55:2–9.
43
UDOC Report at 6.
44
Id. at 8.
45
Id. at 1.
39
5
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4051 Page 6 of 31
participate in training for his police service dog,” and that “ Cox was seen on camera assaulting
inmates.”46 The report further found “[n]umerous policy violations” and that “[s]ome officers
appear to lack appropriate staff/offender boundaries.”47 Finally, the report indicated that some
“deputies observed these criminal acts and failed to report them. High ranking jail officers were
unaware of many activities occurring within the jail.”48 Ultimately, the “numerous policy and
criminal violations uncovered throughout the investigation led to the removal of all Utah State
inmates from the Daggett County Jail.”49
Since the investigation, Cox pled guilty to two counts of aggravated assault, transport of a
weapon into a secure area, and theft.50 Lail pled guilty to one count of reckless endangerment.51
Jorgensen entered a guilty plea in abeyance for one count of official misconduct.52 Jorgensen’s
plea admits: “On or about January 2014 through April 2017; [I] did, with the intent to benefit
myself or another, knowingly refrain from performing a duty imposed on me by law or clearly
inherent in the nature of my office as Daggett County Sheriff.”53 The plea goes on to state that
Jorgensen “failed to investigate, discipline, or otherwise supervise deputies under his control,
and failed to investigate criminal conduct that occurred at the Daggett County Jail.”54 Daggett
County has not operated a jail since April 2017.55
46
Id.
Id. at 2.
48
Id.
49
Id.
50
ECF No. 141-30 at 15–16.
51
ECF No. 141-21 at 1.
52
ECF No. 141-25 at 2.
53
Id.
54
Id.
55
Motion for Summary Judgment at 3; Opposition at 5.
47
6
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4052 Page 7 of 31
Plaintiffs Porter, Drollette, Asay, and Olsen—former prisoners at Daggett County Jail—
brought this civil-rights suit against Daggett County; Utah Department of Corrections Director
Mike Haddon in his official capacity; current Daggett County Sheriff Eric Bailey in his official
capacity; caseworker Jeffery Toone in his official capacity; and Jorgensen, Cox, Lail, Walker,
and Toledo in their personal capacities. Plaintiffs’ allegations include that Cox tased all four of
them56 and that Cox forced Porter, Drollette, and Olsen to participate in training his dog and
ordered his dog to attack them.57
All defendants except Daggett County, Bailey, and Jorgensen have either defaulted,
settled, or been dismissed. The three remaining defendants have moved for summary judgment
on the claims against them.
STANDARD
A court grants summary judgment if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.58 Summary judgment is inappropriate
if any material factual issue “may reasonably be resolved in favor of any party.”59 The moving
party is also entitled to summary judgment if “the nonmoving party fails to make a sufficient
showing on an essential element of her case with respect to which she has the burden of proof.”60
Both evidence and reasonable inferences drawn from that evidence are construed in the light
most favorable to the nonmovant.61
56
Amended Complaint at ¶¶ 51–60, 103–07, ECF No. 3, filed June 7, 2018; Asay Complaint at ¶¶ 64–66, ECF No.
2, No. 2:18-cv-422, filed May 30, 2018; Olsen Amended Complaint at ¶ 39, ECF No. 14, No. 2:19-cv-188, filed
June 4, 2019. Cases consolidated on March 1, 2021. See Order to Consolidate, ECF No. 113.
57
Amended Complaint at ¶¶ 64–67, 100–02; Olsen Amended Complaint at ¶ 48.
58
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
59
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
60
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
61
Scott v. Harris, 550 U.S. 372, 378 (2007).
7
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4053 Page 8 of 31
DISCUSSION
The court will address whether summary judgment is appropriate for each of the three
remaining Defendants with respect to the Eighth Amendment claims before turning to examine
the Utah state constitutional claims.
I. Erik Bailey is entitled to summary judgment because the claims against him in his
official capacity are duplicative of the claims against Daggett County.
In general, an official-capacity suit under § 1983 is, “in all respects other than name, to
be treated as a suit against the entity.”62 As such, any claims against Bailey in his official
capacity as the current Sheriff of Daggett County are duplicative of Plaintiffs’ claims against
Daggett County.63 To the extent that Plaintiffs request an award of injunctive relief against
Bailey,64 it is an undisputed fact that Daggett County has not operated a jail since April 2017.65
Accordingly, any equitable claims against Bailey in his official capacity are not merely
subsumed in the claims against Daggett County, but also moot. Bailey is granted summary
judgment.
II. Jerry Jorgensen is entitled to qualified immunity because Plaintiffs have not shown
that his actions violated clearly established law.
When considering Jorgensen’s constitutional liability, the court must determine if
Jorgensen is entitled to qualified immunity. Qualified immunity shields officers from civil
liability so long as their conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”66 When an officer raises a defense of
62
Moss v. Kopp, 559 F.3d 1155, 1168 n. 13 (10th Cir. 2009) (citing Kentucky v. Graham, 473 U.S. 159, 161, 165–66
(1985)).
63
See Amended Complaint at ¶¶ 136–141, 174–85.
64
Id. at 25 (requesting an “award of injunctive relief against . . . Sheriff Bailey to ensure compliance with the federal
and Utah State Constitutions.”).
65
Motion for Summary Judgment at 3; Opposition at 5.
66
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
8
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4054 Page 9 of 31
qualified immunity, “the burden shifts to the plaintiff to show that the defendant is not entitled to
that immunity.”67
Officers are entitled to qualified immunity under § 1983 unless “(1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly
established at the time.’”68 The court has the discretion to decide which of the two prongs of the
qualified-immunity analysis to tackle first.69 Here, the court will first examine whether
Jorgensen’s conduct was clearly established as unlawful under federal law.
For an officer’s conduct to be “clearly established” as unlawful, “at the time of the
officer’s conduct, the law [must be] sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.”70 Existing precedent must have placed the
constitutionality of an officer’s conduct “beyond debate.”71 Essentially, “qualified immunity
protects ‘all but the plainly incompetent or those who knowingly violate the law.’”72
The Supreme Court has instructed lower courts not to define clearly established law at
too high a level of generality.73 The Court teaches that “[i]t is not enough that a rule be suggested
by then-existing precedent; the rule’s contours must be so well defined that it is clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”74 As such,
67
Pyle v. Woods, 874 F.3d 1257, 1262 (10th Cir. 2017) (quoting Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir.
2005)).
68
District of Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)).
69
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
70
Id. (internal quotations and citations omitted).
71
Id.
72
City of Tahlequah v. Bond, 595 U.S. ___, 142 S. Ct. 9, 11 (2021) (per curiam) (quoting Wesby, 138 S. Ct. at 589).
73
See, e.g., Bond, 142 S. Ct. at 11 (overturning the Tenth Circuit’s denial of qualified immunity); Kisela v. Hughes,
584 U.S. ___, 138 S. Ct. 1148, 1152 (2018); Wesby, 138 S. Ct. at 590; White v. Pauly, 580 U.S. ___, 137 S. Ct. 548,
552 (2017) (per curiam); Mullenix v. Luna, 577 U.S. 7, 12 (2015); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
74
Bond, 142 S. Ct. at 11 (quotations omitted).
9
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4055 Page 10 of 31
Plaintiff must identify a case that demonstrates that an officer’s conduct is unlawful with “a high
degree of specificity.”75 The Tenth Circuit has stated that to make a showing of clearly
established law, “the plaintiff must point to a Supreme Court or Tenth Circuit decision on point,
or the clearly established weight of authority from other courts must have found the law to be as
the plaintiff maintains.”76
Plaintiffs allege that Jorgensen violated the Eighth Amendment and the Utah Constitution
when he was “deliberately indifferent to the kinds of abuse against the Plaintiffs,” and that
“[d]espite knowing the risks of harm to the prisoners from these abusive behaviors, Sheriff
Jorgensen allowed Jail supervisors and staff to continue them.”77 In order to defeat Jorgensen’s
defense of qualified immunity, Plaintiffs must show that Jorgensen’s actions were clearly
established as unlawful by identifying a case in which a defendant “acting under similar
circumstances” as Jorgensen was held to have violated the Eighth Amendment.78
Plaintiffs first cite to Hudson v. McMillian79 and Whitley v. Albers80 to argue that, at the
time of Jorgenson’s alleged constitutional violations, it was clearly established that the Plaintiffs
had a right “to be free from malicious and sadistic harm . . . from dogs as well as from tasers.”81
But both Hudson and Whitley involved claims against prison officials who personally physically
harmed the plaintiffs, gave orders to harm a plaintiff, or were present while guards assaulted a
75
Wesby, 138 S. Ct. at 590.
Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021) (quoting Cox v. Wilson, 971 F.3d 1159, 1171 (10th Cir.
2020)).
77
Amended Complaint at ¶¶ 143–44, 146–47.
78
White, 137 S. Ct. at 552.
79
503 U.S. 1 (1992).
80
475 U.S. 312 (1986).
81
Motion for Summary Judgment at 61.
76
10
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4056 Page 11 of 31
plaintiff.82 By contrast, there is no evidence of record that Jorgensen knew that any prisoner
actually had been tased or bitten by a dog, much less that he had participated in, ordered, or was
present for the assaults. As such, Hudson and Whitley do not meet the high bar of specificity
required to clearly establish that Jorgensen’s actions were unconstitutional.
Next, Plaintiffs cite to a litany of cases from outside of the Tenth Circuit that hold that the
unjustified use of Tasers against inmates is a violation of the Eighth Amendment.83 But again,
these cases hold that assaulting prisoners or directing officers to assault prisoners with Tasers is
unconstitutional—they do not address whether conduct such as Jorgensen’s is an Eighth
Amendment violation. Thus, even supposing that case law outside of the Tenth Circuit could
create clearly established law in the Tenth Circuit, these cases are insufficiently particularized to
the case at hand to defeat Jorgensen’s qualified immunity.
Plaintiffs do identify some Tenth Circuit cases in which a supervisor was constitutionally
liable even though the supervisor himself did not engage in malicious conduct, but these cases
are insufficiently particularized to clearly establish Jorgensen’s conduct as unlawful. First, in
Gonzalez v. Martinez, the Tenth Circuit reversed the district court’s grant of summary judgment
where there was a genuine issue of material fact as to whether a Sheriff had ignored inmate
82
Hudson, 503 U.S. at 997–98; Whitley, 475 U.S. at 314–16.
Opposition at 61–62 (citing Hickey v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (holding that use of a Taser
against an inmate violated the Eighth Amendment); Shelton v. Angelone, 183 F. Supp. 2d 830, 835 (W.D. Va. 2002);
Lewis v. Downey, 581 F.3d 467, 478 (7th Cir. 2009) (finding that a guard who used a Taser against an inmate was
not entitled to qualified immunity); Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 796–97 (9th Cir. 2018) (finding
that deputies that tased inmates and officers who gave deputies orders to tase inmates were not entitled to qualified
immunity); Brooks v. Johnson, 924 F.3d 104, 119 (4th Cir. 2019) (finding that it is clearly established that a
corrections officer’s use of a Taser in bad faith violates an inmates Eighth Amendment right)). Of these cases, only
Rodriguez found that a municipality or sheriff’s department could be liable for tasings. Rodriguez, 891 F.3d at 803.
There, the court specifically noted that “[t]here was substantial evidence of repeated constitutional violations, of [the
sheriff department’s] awareness of those violations, and of [the department’s] failure to take ant remedial action. Id.
Here, there is no evidence that Jorgensen was aware that inmates had been tased.
83
11
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4057 Page 12 of 31
reports of sexual assault and disregarded an excessive risk to inmate safety.84 Gonzalez is not
enough to defeat Jorgensen’s qualified immunity. In Gonzalez, there was a record of “physical
assaults on inmates set against the facts of [a] Sheriff[’s] knowledge of reported risks to inmate
health or safety, including the documented lapse of security in the control room [and] complaints
of sexual harassment and intimidation. . . .”85 Here, Plaintiffs have identified no facts suggesting
that Jorgensen had personal knowledge of malicious use of Tasers and dogs on inmates at the jail
until he received Drollette’s letter. Additionally, once he received Drollette’s letter, Jorgensen
contacted the Utah Department of Corrections to request a formal investigation.86 Accordingly,
the facts of Gonzalez are not specific enough to the current case to create clearly established law
such that every reasonable official in Jorgensen’s position would have known his actions to be
unlawful.
Plaintiffs also cite Keith v. Koerner, a case in which the Tenth Circuit reversed the
district court’s grant of summary judgment to a prison warden on qualified immunity grounds.87
There, the court noted that “it is clearly established that a prison official’s deliberate indifference
to sexual abuse by prison employees violates the Eighth Amendment” and that where there was
“evidence of limited investigation and lax discipline for both undue familiarity and sexual
misconduct” and evidence of “the inadequate investigation of the sexual misconduct allegations
against [prison officers],” the warden was not entitled to qualified immunity.88
84
Gonzalez v. Martinez, 403 F.3d 1179, 1187 (10th Cir. 2005).
Id.
86
Collett Decl. at ¶¶ 28–29, ECF No. 128.
87
Keith v. Koerner, 843 F.3d 833, 852 (10th Cir. 2016).
88
Id. at 849–50.
85
12
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4058 Page 13 of 31
Keith is also insufficiently particularized to the facts of this case to defeat Jorgensen’s
qualified-immunity defense. In Keith, there was evidence of 43 sexual misconduct investigations
and that Koerner “failed to reasonably respond” to these numerous incidents.89 In this case,
Jorgensen was only once presented with evidence of misconduct directed at inmates before he
received the Drollette complaint—Thompson came to Jorgensen to complain that Lail had hit an
inmate in the genitals, that Lail was calling inmates names, and that deputies were wrestling with
inmates.90 Keith’s denial of qualified immunity for a warden on notice of numerous sexual
misconduct allegations would not cause “every reasonable official” to understand that a failure to
better supervise, investigate and discipline after a single report of misconduct directed toward
inmates was clearly unlawful.91
The other issues at the jail that Jorgensen knew of before receiving the Drollette
complaint were guards sleeping and watching TV on-duty, guards engaging in horseplay with
each other, inmates washing officer’s personal cars, and the incident between Lail and Doe in
which Lail turned his Taser on and pointed it at the ground in front of Doe’s feet.92 While these
reports support the need for improved supervision, investigation, and discipline, they are too
different from the facts of Keith to place the constitutionality of Jorgensen’s deficient
supervision “beyond debate.”93 Thus, in light of the high standard for identifying particularized
case law, a reasonable jury could not find that “every reasonable official” in Jorgensen’s position
89
Id. at 843.
Thompson Dep. at 36:19–23.
91
See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
92
See sources cited supra, notes 8–32.
93
Ashcroft, 563 U.S. at 735.
90
13
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4059 Page 14 of 31
would understand what he was doing or failing to do was unlawful. Accordingly, Keith is not
sufficient to defeat Jorgensen’s qualified-immunity defense.
Plaintiffs also cite to several district court cases that have held that a sheriff is liable as a
supervisor for officer misconduct.94 In one of these cases the district court granted summary
judgment to the defendants because, among other things, there was “no evidence by which a
reasonable jury could find that [the Sheriff] set in motion a series of events that he ‘knew or
reasonably should have known’ would cause [the deputy] to deprive [plaintiffs] of their
constitutional rights.”95 In the other, the court denied summary judgment where the supervisor
knew of past sexual assault allegations against a deputy but decided to hire him anyway.96 In this
case, Jorgensen was presented with no evidence of Tasers or dogs being used on inmates when
he decided to hire Cox or before he received the Drollette complaint. Furthermore, these cases
are insufficient to create clearly established law for the purposes of defeating qualified immunity
because the plaintiff must point to Supreme Court precedent, Tenth Circuit precedent, or a clear
weight of authority from other circuits as a source of clearly established law.97
In sum, at the time the conduct occurred it was not clearly established that Jorgensen’s
actions were unlawful. Plaintiffs have not identified a Supreme Court or Tenth Circuit case—or
the weight of authority from other circuits—with sufficiently particularized facts such that every
94
See J.L.C. v. McKinney, No. CIV-11-683-C, 2014 WL 4145550, at *2 (W.D. Okla. Aug. 19, 2014) (denying
summary judgment where the defendant knew of a sexual misconduct allegation against a deputy when the
defendant made the decision to hire the deputy); Sigg v. Allen Cty., No. 15-CV-01007-EFM, 2016 WL 6716085, at
*9 (D. Kan. Nov. 2016) (finding that “there is no evidence by which a reasonable jury could find that [a Sheriff] set
in motion a series of events that he ‘knew or reasonably should have known’ would cause [a deputy] to deprive
[plaintiffs] of their constitutional rights.”).
95
Sigg, 2016 WL 6716085, at *9.
96
J.L.C., 2014 WL 4145550, at *2.
97
Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021).
14
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4060 Page 15 of 31
reasonable officer in Jorgensen’s position would understand that his actions were unlawful, and
the court is not aware of any. The question is not simply whether it was established that inmates
have a right to be free from unwarranted tasings and dog bites, but whether Jorgensen’s own
actions or inactions were such that “every reasonable official would understand that what he is
doing is unlawful”98 and that the unconstitutionality of Jorgensen’s conduct was “beyond
debate.”99 No sufficiently particularized case establishes that. As such, Jorgensen is entitled to
qualified immunity, and the motion for summary judgment is granted on the claims against him.
III. Daggett County is entitled to summary judgment on Plaintiffs’ Eighth Amendment
claims for failure to train but not on Plaintiffs’ claims for failure to supervise.
A municipality or local government may be liable under 42 U.S.C. § 1983 for its own
illegal acts, but it is not vicariously liable for its employees’ actions.100 To impose liability on a
local government, plaintiffs must prove that “action pursuant to official municipal policy” caused
their injury.101 “Official municipal policy includes the decisions of a government’s lawmakers,
the acts of its policymaking officials, and practices so persistent and widespread as to practically
have the force of law.”102 During the relevant time period in this case, Jorgensen was a final
policymaking official for the County because he was the sheriff.103
To establish municipal liability under § 1983, a plaintiff must demonstrate three things.
First, a plaintiff must identify a “municipal policy or custom.”104 An official policy or custom
may take one of the following forms:
98
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Id.
100
Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 692
(1978)).
101
Id.
102
Id. at 61.
103
Motion for Summary Judgment at 18 (citing Utah Code Ann. § 17-22-4(1)).
104
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019).
99
15
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4061 Page 16 of 31
(1) a formal regulation or policy statement; (2) an informal custom amounting 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.105
In this case, Plaintiffs rely on the fifth example of a municipal policy or custom, the
“failure to adequately train or supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.”106
Second, a plaintiff must demonstrate “a direct causal link between the policy or custom
and the injury alleged.”107 “To establish the causation element, the challenged policy or practice
must be ‘closely related to the violation of the plaintiff’s federally protected right.’”108 This
requirement is satisfied if the plaintiff shows that “the municipality was the moving force behind
the injury alleged.”109 “The causation element is applied with especial rigor when the municipal
policy or practice is itself not unconstitutional, for example, when the municipal liability claim is
based upon inadequate training, supervision, and deficiencies in hiring.”110
Finally, for claims of inadequate hiring, training, or other supervisory practices, a
plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as
to its known or obvious consequences.”111 “Deliberate indifference is a stringent standard of
105
Id. (quoting Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).
Id.
107
Id. at 1284.
108
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013).
109
Bd. of Cty. Comm’rs. v. Brown, 520 U.S. 397, 404 (1997).
110
Schneider, 717 F.3d at 770.
111
Id. (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)). In their opposition, Plaintiffs appended
and referenced the declaration of Margo Frasier. See Frasier Decl., ECF No. 141-17. In their Reply, Defendants
argue that the court should strike the report because Ms. Frasier was not identified as a witness, has not been subject
106
16
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4062 Page 17 of 31
fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.”112
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. In most instances, notice can be established by proving
the existence of a pattern of tortious conduct. Deliberate indifference may be found
absent a pattern of unconstitutional behavior only in a narrow range of
circumstances where a violation of federal rights is a highly predictable or plainly
obvious consequence of a municipality’s action or inaction.113
Here, Plaintiffs allege that Daggett County is liable for failing to properly train jail staff
and failing to supervise and discipline jail staff.114 The court will address these claims in turn.115
A. Failure to Train
Plaintiffs argue that Daggett County is liable for Jorgensen’s failure to properly train jail
staff.116 The Tenth Circuit has held that “a supervising prison official may be liable ‘where there
is essentially a complete failure to train, or training that is so reckless or grossly negligent that
future misconduct is almost inevitable.’”117 “It is not enough to allege ‘general deficiencies’ in a
particular training program. . . . Rather, a plaintiff ‘must identify a specific deficiency in the
[entity’s] training program closely related to his ultimate injury, and must prove that the
to cross-examination, and is not qualified under Federal Rule of Evidence 702. Daggett County Defendants’ Reply
Memorandum in Support of Motion for Summary Judgment (“Reply”) at 19–20, ECF No. 152, filed Nov. 24, 2021.
The court reserves its ruling on whether Ms. Frasier may testify at trial, but has not cited the disputed declaration
here because it did not assist the court in its summary judgment determination.
112
Connick v. Thompson, 563 U.S. 51, 61 (2011).
113
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (internal citations and quotations omitted).
114
See Opposition at 51–56.
115
In their argument for Jorgensen’s personal liability, Plaintiffs also argue that Jorgensen failed to hire “qualified
staff when he promoted Benjamin Lail to Jail Commander.” Id. at 55. But Plaintiffs do not argue in their briefing
that the alleged failure to hire is a potential source of liability for Daggett County on the facts of this case, nor do
they supply any cases supporting that prospect on facts like the ones here. See id. at 55–56.
116
Opposition at 51–53.
117
Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016) (quoting Houston v. Reich, 932 F.2d 883, 888 (10th Cir.
1991) (alteration in original).
17
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4063 Page 18 of 31
deficiency in training actually caused the jailer to act with deliberate indifference to his
safety.’”118 And the Supreme Court has made it clear that a “municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to train.”119
Plaintiffs broadly allege various training failures, including Taser use, use of force, code
of conduct, and reporting misconduct, though they sometimes lump these allegations together
with failure to supervise allegations.120 Regarding the failures to provide a code of conduct and
misconduct reporting training, Plaintiffs do not explain how those failures were “closely related
to [their] ultimate injury” and that the deficiencies “actually caused the jailer to act with
deliberate indifference.”121 Simply noting one or more general deficiencies is insufficient as a
matter of law.
The disputed absence of use of force and Taser policies,122 as well as allegedly
inadequate Taser training,123 present a somewhat closer question. However, the record indicates
that Daggett County conducted Taser training in January 2016, some months before the tasings
in question.124 Furthermore, Plaintiffs have not identified a “specific deficiency” in Daggett
County’s Taser training program or presented evidence that would allow a reasonable jury to
find that the specific deficiency caused Cox to tase inmates or that a possible lack of a use of
118
Id. at 838–39 (alterations in original).
Connick v. Thompson, 563 U.S. 51, 61 (2011).
120
Opposition at 51–53, 64-67.
121
See Keith, 843 F.3d at 838.
122
Defendants claim that there were appropriate Taser and use of force policies in place at the time Cox tased
inmates. Collett Decl. at ¶ 22 (“Deputy Cox directly violated [the Taser policy] by tasing the Plaintiffs.”). But
Plaintiffs note that Collett, as Daggett County representative, did not know when the use of force and Taser policies
went into effect. See Opposition at 52; Daggett County 30(b)(6) Dep. at 9:2–16, ECF No. 141-11 (“Unless there’s a
date attached to [the Taser policy], I do not know [when it went into effect].”). As such, there is a genuine dispute of
material fact about when the Taser policy went into effect, but this dispute does not impact the court’s analysis on
Plaintiffs’ claim for failure to train.
123
Id.
124
UDOC Report at 51.
119
18
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4064 Page 19 of 31
force policy caused Cox to have his dog bite Plaintiffs. The record suggests that the deputy (Cox)
who tased the Plaintiffs already knew his conduct was inappropriate—for example, he used the
Taser on the Plaintiffs in the garage where the surveillance cameras did not work125 and in the
wood shop where there were no cameras.126 And when his conduct was discovered, he reportedly
told the inmates not to say anything.127 So the record evidence does not suggest that Cox needed
more training because he was unaware that what he was doing was wrong: it is that he already
knew it was wrong and chose to do it anyway. It is similarly obvious that a deputy should not
allow or cause his dog to bite an inmate without cause, and Plaintiffs do not explain how the lack
of training actually “caused the jailer to act with deliberate indifference.”128
Plaintiffs analogize to the hypothetical discussed by the Supreme Court in footnote 10 of
City of Canton v. Harris.129 There, the Court noted that “it may happen that in light of the duties
assigned to specific officers or employees the need for more or different training is so obvious,
and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to the
need.”130 The Court gave the example of a city, knowing to a certainty that it will arm its police
officers with firearms and that their officers will be required to arrest fleeing felons, failing to
train its officers in the constitutional limitations on the use of deadly force.131 Plaintiffs contend
that this is comparable to Jorgensen’s failure to provide adequate Taser training because it was
125
See Toledo Dep. at 113:10–23, ECF No. 141-6; Walker Decl. at ¶ 62, ECF No. 141-16.
UDOC Report at 48.
127
Id. at 6.
128
See Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016).
129
489 U.S. 378, 390 n.10 (1989).
130
Id. at 390.
131
Id. at 390 n.10.
126
19
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4065 Page 20 of 31
predictable that the lack of training would result in the officers at the jail violating Plaintiffs’
constitutional rights.132
This case is distinct from the hypothetical posed by the Court in Canton. There, the Court
posited that if the need for training was so obvious and a municipality failed to provide it, that
could potentially satisfy the deliberate indifference standard. But here, Daggett County did
provide Taser training.133 Plaintiffs have not pointed to a specific deficiency that was closely
related to their injury and caused the jailer to act with deliberate indifference.
In sum, while more training theoretically might have made it less likely that Cox would
assault inmates, Plaintiffs simply do not show a basis for the legally required “specific
deficiency” that was “closely related to [the] ultimate injury.” 134 The record also does not
reasonably support a finding that “the deficiency in training actually caused the jailer to act with
deliberate indifference to his safety.”135 The “direct causal link,”136 which the court is directed to
apply with “especial rigor,” is missing.137 Accordingly, Daggett County is entitled to summary
judgment on this claim.
B. Failure to Supervise and Discipline
Plaintiffs also argue that Daggett County is liable for Jorgensen’s failure to supervise and
discipline jail staff.138 As noted previously, for Plaintiffs’ claim to survive summary judgment a
reasonable jury must be able to find: (1) that Daggett County had an official policy or custom;
132
Opposition at 65–66.
UDOC Report at 51.
134
Keith v. Koerner, 843 F.3d 833, 838–39 (10th Cir. 2016) (alterations in original).
135
Id.
136
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019).
137
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013).
138
Opposition at 53–55.
133
20
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4066 Page 21 of 31
(2) that there is a direct causal link between the official policy or custom and the injury alleged;
and (3) that the municipal action was taken with “deliberate indifference” as to its known or
obvious consequences.139 The court will address these elements in turn.
1. Official Policy or Custom
This requirement is not in dispute.140 As explained above, Plaintiffs rely on the fifth
example of a municipal policy or custom, the “failure to adequately train or supervise employees,
so long as that failure results from deliberate indifference to the injuries that may be caused.”141
Jorgensen was a final county policymaker because he was the County Sheriff at the time of the
injuries in question.142 Because Plaintiffs argue that Jorgensen’s failure to supervise and
discipline jail staff caused their injuries, a reasonable jury could find that, so long as Plaintiffs
establish that Jorgensen was deliberately indifferent to their injuries, Plaintiffs have also
demonstrated an official municipal policy or custom. As such, the court proceeds to examine the
next elements.
2. Causation
Next, for this case to go to trial, a reasonable jury must be able to find “a direct causal
link between the policy or custom and the injury alleged.”143 The policy or practice must be
“closely related to the violation of the plaintiff’s federally protected right.’”144 This occurs when
139
Schneider, 717 F.3d at 769.
Motion for Summary Judgment at 18 (noting that “Sheriff Jorgensen was the final policymaker regarding jail
policy issues for the County”). Although Defendants argue that “Plaintiffs fail to identify a constitutionally defective
policy or training that the Sheriff implemented,” id., this argument is more appropriately addressed when
considering causation and deliberate indifference, as an official policy can be “failure to adequately train or
supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.”
Schneider, 717 F.3d at 769.
141
Id.
142
Motion for Summary Judgment at 18 (citing Utah Code Ann. § 17-22-4(1)).
143
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019).
144
Schneider, 717 F.3d at 770.
140
21
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4067 Page 22 of 31
“the municipality was the moving force behind the injury alleged.”145 Because inadequate
supervision and discipline are at issue, the “causation element is applied with especial rigor.”146
Cox, the officer who allegedly tased Plaintiffs, gave testimony relevant to supervision at
the jail. Cox testified that, on his first day at the Daggett County Jail, Jail Commander Lail told
him that “it was a relaxed environment and . . . if [he] needed to take a nap during [his] night
shift, that was common practice.”147 Cox testified that it was common for officers, including
Lail, to hit each other in the genitals148 and that Lail “often played around with [Tasers] and
acted like he was going to . . . tase the other officers.”149 Cox had seen Lail act like he was going
to Tase “just about everybody” at the jail and had heard about the incident between Lail and Jane
Doe 2,150 but had never heard of anyone ever being written up for playing with Tasers.151 Cox
also testified that once he had observed Lail getting out of his vehicle with an open container and
had reported the incident to Collett, but then Lail pulled [Cox] into his office and said, ‘I know
what you did,’” and that nothing happened to Lail.152 Ultimately, Cox testified that he
“believe[d] that if the leadership [at Daggett County Jail] was stronger, it would have been
harder for [him] to do the things [he did]”153 because:
There was just a lack of leadership. There wasn’t a whole lot of accountability.
Nobody was really held accountable for the things that they did there. And with the
culture being the way it was, horseplay was prevalent throughout the whole jail.154
Bd. of Cty. Comm’rs. v. Brown, 520 U.S. 397, 404 (1997).
Schneider, 717 F.3d at 770.
147
Cox Dep. at 12:19–22.
148
Id. at 15:24–16:17.
149
Id. at 17:17–24.
150
Id. at 19:1–13.
151
Id. at 19:21–24.
152
Id. at 25:15–26:22.
153
Id. at 36:6–8.
154
Id. at 36:10–14.
145
146
22
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4068 Page 23 of 31
To be sure, some of these supervisory failings are too attenuated to meet the rigor
required for causation. For example, officers sleeping during the night shift is both inappropriate
and evidence of poor supervision, but it does not directly lead to inmates being tased. Similarly,
that Lail, the jail supervisor, allegedly had an open container in his vehicle was certainly wrong
and would undermine his authority, but it did not directly cause inmates to be assaulted. And a
general “lack of leadership” is plainly insufficient too. More pertinent is the testimony that Cox
knew of Lail’s misconduct with Tasers, both with other jail staff in sparking Tasers near them
and acting like he was going to tase them, as well as with the visiting teacher, Doe, at whose feet
Lail pointed his Taser after yelling at her. Cox has testified that he viewed Lail’s conduct and his
own later Taser misconduct as “essentially the same thing.”155
Lail was Jorgensen’s handpicked jail commander. Jorgensen himself has testified that he
did little to supervise others at the jail: At the time in question, Jorgensen did not frequently
interact with inmates or supervise the corrections officers, control room workers, or sergeants at
the jail.156 Prior to the UDOC investigation, Cox only recalled even seeing Jorgensen at the jail
once.157 And Jorgensen himself pled guilty to criminal official misconduct on the basis that he
failed “to investigate, discipline, or otherwise supervise deputies under his control, and failed to
investigate criminal conduct that occurred at the Daggett County Jail.”158 Finally, Jorgensen
testified that the County did not provide him “the money to have the kind of supervision we
155
Id. at 38:1–25.
Jorgensen Dep. at 129:12–130:11; Jorgensen Decl. at ¶ 15.
157
Cox Dep. at 51:10–18.
158
ECF No. 141-25 at 2.
156
23
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4069 Page 24 of 31
needed round the clock” and that because that supervision was not provided: “the fox was let
around in the hen house a little bit.”159
Viewing the foregoing evidence and the reasonable inferences therefrom in the light most
favorable to the nonmoving party,160 a reasonable jury could find that Jorgensen’s lack of
supervision and discipline at the jail was the “moving force” behind the Plaintiffs’ injuries. Cox
arrived at the jail and was immediately exposed to a “relaxed environment” where the Sheriff
was not present and the jail commander and Taser trainer felt that it was appropriate to hit other
guards in the genitals and treat Tasers like toys. Cox also knew of the Taser incident between
Lail and Jane Doe 2 and had not heard that Lail received any discipline for his misconduct.
Additionally, when Cox tried to report Lail’s misconduct, Lail faced no consequences. A jury
could reasonably credit Cox’s testimony regarding the Taser misconduct: “The same thing I was
observing was the things [sic] I was enacting.”161 While not all of the supervisory failures could
meet the rigorous causation standard, the jail commander’s known Taser misconduct,
Jorgensen’s testimony that he had insufficient funds for supervision, Cox’ testimony regarding
what influenced him, and Jorgensen’s guilty plea regarding his failure “to investigate, discipline,
and otherwise supervise” could be enough for a reasonable jury to find causation.
3. Deliberate Indifference
Finally, for this case to go to trial, a reasonable factfinder would have to be able to
determine that Jorgensen had actual or constructive notice that his actions or failures to act were
“substantially certain” to result in an assault perpetrated against an inmate and that he
159
Jorgensen Dep at 127:23–25, 128:1–5.
Scott v. Harris, 550 U.S. 372, 378 (2007).
161
Cox Dep. at 38:7–11.
160
24
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4070 Page 25 of 31
deliberately chose to disregard that harm.162 That notice usually involves a pattern of
unconstitutional behavior, but it also can be enough if a violation of federal rights was “highly
predictable” or a “plainly obvious” consequence of Jorgensen’s actions or inaction.163
“Deliberate indifference is a stringent standard of fault.”164
In analyzing whether a jury could find that Jorgensen was deliberately indifferent to
Plaintiffs’ constitutional rights, the court begins with what a factfinder might determine
Jorgensen knew about prior to the inmate assaults at issue here. First, Jorgensen knew in April
2016 that Lail—Jorgensen’s jail commander and Taser trainer—had sparked a Taser at jail
teacher Jane Doe 2 and pointed the Taser at the ground directly in front of her feet.165 Jorgensen
testified that he thought of this incident as “horseplay.”166 In response to this incident Jorgensen
told Lail that his behavior was unacceptable and told him to apologize to Doe.167
Next, Deputy Brian Thompson testified that about two months later in July 2016 he had a
discussion with Jorgensen about several concerns he had with Lail’s behavior.168 Thompson
testified that he talked to Jorgensen about his concerns with Lail hitting an inmate in the genitals,
Lail calling inmates names, and deputies wrestling with inmates.169 Thompson testified that
Jorgensen said he was going to talk to Lail, but Thompson “felt like [Jorgensen] was dismissive”
162
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019).
Id.
164
Connick v. Thompson, 563 U.S. 51, 61 (2011).
165
ECF No. 141-26 at 1.
166
Jorgensen Dep. at 106:24–107:1.
167
Id. at 107:2–10. Lail later pled guilty to reckless endangerment for sparking a Taser at Doe. See ECF No. 141-21
at 2.
168
Thompson Dep. at 31:1–7.
169
Id. at 36:13–23.
163
25
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4071 Page 26 of 31
and that Jorgensen said “something to the effect of, I don’t know why you’re saying these
things.”170
Additionally, Jorgensen himself has testified that he did not have enough money for
supervisors. Specifically, he testified that if had more money “for the kind of supervision we
needed” that “would solve all of that problem.”171 If he had more money and enough supervisors
“it could have prevented [Cox tasing the inmates].”172
Finally, as noted earlier, Jorgensen eventually entered a guilty plea in abeyance to official
misconduct.173 The plea states that Jorgensen “[d]id, with the intent to benefit [him]self or
another, knowingly refrain from performing a duty imposed on [him] by law or clearly inherent
in the nature of [his] office as Daggett County Sherriff.”174 The plea also states:
On or about January 2014 through April 2017, JERRY RULON JORGENSEN,
defendant, failed to investigate, discipline, or otherwise supervise deputies under
his control, and failed to investigate criminal conduct that occurred at the Daggett
County Jail.175
Considering all the evidence of record, and viewing it and the reasonable inferences
therefrom in the light most favorable to the nonmoving party,176 a reasonable jury could find that
Jorgensen had notice that his actions or failures to act were “substantially certain” to result in an
assault perpetrated against an inmate and that he deliberately chose to disregard that harm.177
Jorgensen himself did little to supervise jail staff, having delegated that role to his jail
170
Id. at 31:10–15, 17–23.
Jorgensen Dep. at 127:22–128:5.
172
Id. at 128:22–25.
173
ECF No. 141-25 at 1–2.
174
Id. at 2.
175
Id.
176
Scott v. Harris, 550 U.S. 372, 378 (2007).
177
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019).
171
26
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4072 Page 27 of 31
commander, Lail.178 About four months before Cox tased the Plaintiffs, Jorgensen knew that Lail
had pointed an active Taser at a teacher’s feet at the jail.179 Approximately two months later,
Jorgensen was informed by another deputy that Lail had tapped an inmate in the genitals, was
calling inmates names, and may have been falsifying time cards, which would be relevant to the
amount of time actually spent supervising. Jorgensen also believed he did not “have the kind of
supervision that we needed round the clock.”180 Jorgensen later would plead guilty to official
misconduct, where he admitted that he knowingly “failed to investigate, discipline, or otherwise
supervise deputies under his control.”181
The standard for deliberate indifference is stringent. It is an unusual fact pattern that
permits a factfinder to determine that a policymaker’s actions or inaction make a constitutional
violation “substantially certain” or a “highly predictable” or “plainly obvious” consequence of
their action or inaction. The courts are instructed to take care that the evidentiary record actually
can meet those high standards, so that a county or municipality is not simply held vicariously
liable for the acts of its employees.
But this is an unusual case. While many § 1983 prison cases involve alleged crimes by
employees, this is a case in which a policymaker, Sheriff Jorgensen, eventually pleaded guilty to
a crime involving knowingly failing to investigate, discipline, or otherwise supervise deputies
under his control. There is record evidence that the Sheriff knew his handpicked jail commander
178
Jorgensen Dep. at 129:12–130:11.
See ECF No. 141-26.
180
Jorgensen Dep. at 127:22–128:5.
181
ECF No. 141-25 at 2. Defendants argue that “Jorgensen’s plea does not state with any specificity what events he
failed to investigate, what deputies he failed to investigate, or what crimes he failed to investigate . . . it is too
ambiguous and vague to defeat summary judgment.” Reply at 13. But it is precisely this factual ambiguity that could
allow a reasonable jury to determine that Jorgensen had knowledge that his failure to supervise and discipline would
cause Plaintiffs’ injuries.
179
27
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4073 Page 28 of 31
was involved in Taser misconduct. There also is evidence that the Sheriff knew that the same jail
commander was involved in other physical and non-physical misconduct with inmates. And the
Sheriff knew he was short on supervisory staff generally. Of course, Plaintiffs face a heavy
burden, but viewed in the light most favorably to them, the record evidence could allow a
reasonable factfinder to determine that Sheriff Jorgensen was deliberately indifferent to their
constitutional rights because his supervisory failures, which he later admitted were knowing and
criminal, made it substantially certain that they would be assaulted.
In sum, Daggett County is not entitled to summary judgment on Plaintiff’s claims that the
County failed to adequately supervise and discipline its employees. A reasonable jury could find
that there was an official policy or custom of failing to supervise and discipline Daggett County
deputies, that the policy was the moving force behind the assaults that Plaintiffs suffered, that
Jorgensen, the policymaking official, had notice that his actions were substantially certain to
result in an assault perpetrated against an inmate, and that he deliberately chose to disregard that
harm. Daggett County’s motion for summary judgment is denied on these claims, though it is
granted on the failure to train claims for the reasons previously stated.
IV. Defendants are entitled to summary judgment on Plaintiffs’ Utah state
constitutional claims because a reasonable factfinder could not find that Jorgensen
or Daggett County flagrantly violated Plaintiffs’ state constitutional rights.
Plaintiffs also bring an Unnecessary Rigor claim under Article I, Section 9 of the Utah
state constitution as an alternative to their federal constitutional claims.182 To obtain damages for
a state constitutional violation, a plaintiff must show: “(1) that he or she suffered a flagrant
See Utah Const. art. I, § 9 (“Excessive bail shall not be required; excessive fines shall not be imposed; nor shall
cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary
rigor.”).
182
28
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4074 Page 29 of 31
violation of his or her constitutional rights; (2) that existing remedies do not redress his or her
injuries; and (3) that equitable relief, such as an injunction, was and is wholly inadequate to
protect the plaintiff’s rights or redress his or her injuries.”183
To show that plaintiffs have suffered a “flagrant” violation of his or her constitutional
rights, they must demonstrate “that a defendant must have violated ‘clearly established’
constitutional rights ‘of which a reasonable person would have known.’”184 This standard uses
identical language as the standard for qualified immunity—“[t]o be considered clearly
established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”185 “The requirement that the
unconstitutional conduct be ‘flagrant’ ensures that a government employee is allowed the
ordinary ‘human frailties of forgetfulness, distractibility, or misjudgment without rendering [him
or her]self liable for a constitutional violation.’”186 With respect to the Unnecessary Rigor clause
of the Utah Constitution, in Dexter v. Bosko the Utah Supreme Court explained:
We are satisfied that a flagrant violation of the unnecessary rigor clause has
occurred whenever the following two elements are established: First, the nature of
the act presents an obvious and known serious risk of harm to the arrested or
imprisoned person; and second, knowing of that risk, the official acts without other
reasonable justification.187
183
Kuchcinski v. Box Elder Cty., 450 P.3d 1056, 1067 (Utah 2019). Plaintiffs must also demonstrate that the
constitutional provision is self-executing—the Utah Supreme Court has established that “Article I, section 9 is a
self-executing provision.” Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996), abrogated in part on other grounds,
Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 16 P.3d 533 (Utah 2000).
184
Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 16 P.3d 533, 538 (Utah 2000) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
185
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639–40 (1987)).
186
Id. (quoting Bott, 922 P.2d at 739–40).
187
Dexter v. Bosko, 184 P.3d 592, 598 (Utah 2008).
29
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4075 Page 30 of 31
Applying Dexter, the Tenth Circuit has held that an officer is not liable under the Utah state
constitution where a plaintiff has not pointed to any precedent that demonstrates that an officer’s
conduct violates the Unnecessary Rigor clause.188
The Plaintiffs have not shown that Daggett County or Jorgensen “flagrantly” violated
their constitutional rights. As discussed above when addressing qualified immunity,189 the
Plaintiffs have not identified any clearly established law that demonstrates that Jorgensen must
have known that his actions were clearly unlawful when he took them. While Plaintiffs point to
case law that indicates that tasing an inmate or subjecting an inmate to dog bites could violate the
Unnecessary Rigor clause of the state constitution, they do not point to any case law that
indicates that failure to train, supervise, or discipline violates the Unnecessary Rigor clause.190
There is insufficient evidence that Jorgensen knew that inmates were bitten by dogs or tased. As
such, a reasonable fact finder could not determine that the County or Jorgensen “flagrantly”
violated their state constitutional rights. Summary judgment is granted for the Defendants on the
state-law claim.
Brown v. Larsen, 653 F. App’x 577, 578 (10th Cir. 2016).
See supra, at pages 8–15.
190
Although Plaintiffs argue that they “have demonstrated that Defendants’ conduct, as outlined above, is a flagrant
violation of rights,” and that “the Utah Constitution provides greater and different protections than the United States
Constitution,” Opposition at 68, they do not explain how the standard for such a violation is different under the Utah
Constitution or cite any case law to that effect. As such, the court analyzes the claim under the same standard as the
qualified immunity analysis, which uses identical language. At the end of their Opposition, Plaintiffs indicate that if
the court is inclined to dismiss the state constitutional claims, it should do so without prejudice “so that they can be
refiled later in state court if necessary.” Id. at 72. The request is denied. Plaintiffs brought this action in federal
court, not state court, and have litigated it over the past four years. Fact discovery has concluded. See Order
Granting Final Stipulated Motion to Extend Discovery Deadlines at2, ECF No. 119, filed May 4, 2021. The
dispositive motion deadline was months ago. See id. The time for dismissal without prejudice is long past. It would
be both highly prejudicial and inefficient to allow Plaintiffs, after years of litigation and seeing Defendants’
summary judgment motion, to decide that they prefer to relitigate some of their claims in another court.
188
189
30
Case 2:18-cv-00389-DBB-DAO Document 164 Filed 02/24/22 PageID.4076 Page 31 of 31
ORDER
Defendants are entitled to summary judgment on the state-law claims, the claims against
Bailey, the claims against Jorgensen, and failure-to train claims against Daggett County. The
Eighth Amendment claim against Daggett County for Sheriff Jorgensen’s failure to supervise
and discipline remains. Defendants’ Motion for Summary Judgment is GRANTED IN PART
and DENIED IN PART.
Signed February 16, 2022
BY THE COURT
________________________________________
David Barlow
United States District Judge
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?