Duke v. Gunnison County

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 14, 2019
2019COA170

No. 18CA1744, Duke v. Gunnison County — Torts — Wrongful
Death; Colorado Governmental Immunity Act — Immunity and
Partial Waiver

A division of the court of appeals considers whether the

Colorado Governmental Immunity Act (CGIA) bars a wrongful death

action by parents of a deceased inmate against a public entity — a

jail. The division concludes that the waiver of immunity for

operation of a jail does not apply to the parents’ suit because (1) the

inmate was excluded from the waiver, having been incarcerated

pursuant to a conviction at the time of his injury, see

§ 24-10-106(1.5)(a), C.R.S. 2019; and (2) a party is liable in a

wrongful death action only when the injured party could have

“maintain[ed] an action and recover[ed] damages . . . if death had

not ensued,” § 13-21-202, C.R.S. 2019. Relying on Sigman v.

Seafood Ltd. Partnership I, 817 P.2d 527, 530-31 (Colo. 1991), the
division holds that when a decedent could not have maintained an

action for his injury, the tortfeasor is not liable to the decedent’s

heirs.

The division also considers whether a public employee must

have knowledge of a specific danger to another for his or her

conscious disregard of that danger to constitute willful and wanton

conduct excepting the employee from CGIA immunity. See

§ 24-10-118(2)(a), C.R.S. 2019; see also Martinez v. Estate of Bleck,

2016 CO 58, ¶¶ 30, 32. The division concludes that knowledge of a

health danger to another, and conscious disregard thereof, may be

sufficient to render conduct willful and wanton for purposes of the

CGIA.
COLORADO COURT OF APPEALS 2019COA170

Court of Appeals No. 18CA1744
Gunnison County District Court No. 18CV30013
Honorable J. Steven Patrick, Judge

Beth Ann Duke and Joseph Councell Duke, Jr.,

Plaintiffs-Appellants,

v.

Gunnison County Sheriff’s Office, Richard Besecker, Ian Clark, Ryan Phillips,
Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn
Rupp,

Defendants-Appellees.

ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE RICHMAN
Dailey and Brown, JJ., concur

Prior Opinion Announced October 3, 2019, WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED
PURSUANT TO C.A.R. 35(e)” ON OCTOBER 3, 2019, IS
NOW DESIGNATED FOR PUBLICATION

Announced November 14, 2019

Levin Sitcoff PC, Bradley A. Levin, Elisabeth L. Owen, Denver, Colorado, for
Plaintiffs-Appellants

Berg Hill Greenleaf Ruscitti LLP, Josh A. Marks, David J. Goldfarb, Boulder,
Colorado, for Defendants-Appellees Gunnison County Sheriff’s Office, Richard
Besecker, Ian Clark, and Ryan Phillips
Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado,
for Defendants-Appellees Paula Martinez, Conner Udell, Megan Hollenbeck,
Chad Roberts, and Brandyn Rupp
¶1 Plaintiffs, Beth Ann Duke and Joseph Councell Duke, Jr.,

appeal an order granting motions to dismiss a claim for the

wrongful death of their son, Joseph C. “Trey” Duke III, for lack of

subject matter jurisdiction over defendants, Gunnison County

Sheriff’s Office (GCSO), Sheriff Richard Besecker, and Deputies Ian

Clark, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad

Roberts, Brandyn Rupp, and Ryan Phillips. We affirm in part and

reverse in part.

I. Background

¶2 Although the district court did not hold a hearing pursuant to

Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d

916 (Colo. 1993), the following facts, taken in part from the record

in a related federal case, as relevant here, are undisputed. Trey had

a long history of substance abuse, and he had been arrested and

incarcerated in Gunnison multiple times for drug and alcohol

related offenses. In the afternoon of June 27, 2015, when Trey was

twenty-five years old, Deputy Clark found him passed out on pallets

outside a motel and wearing an ankle monitor. A search and field

test revealed that a material Trey was carrying in a pill bottle was

heroin. Clark arrested Trey for possession of heroin, in violation of

1
his parole, and for use of alcohol or controlled substances, in

violation of a protection order. Deputy Martinez transported Trey to

the Gunnison County Jail. Deputy Phillips was on duty when Trey

arrived, at approximately 3:45 p.m.

¶3 Though Trey’s behavior and appearance indicated that he was

under the influence of controlled substances, he denied ingesting

any drugs other than Clonazepam, as prescribed. He was given a

drug recognition examination (DRE), and the evaluator opined that

Trey was under the influence of a polydrug combination of a

stimulant and a narcotic analgesic. The DRE was not definitive

because it did not include a blood test.

¶4 Deputy Udell placed Trey on a sixteen-hour drug hold in the

jail, where he would be checked periodically by deputies on duty.

After a check, the deputy would mark the time, comments, and

initials on a time check sheet (TCS).

¶5 Trey turned out his pockets and Udell conducted a partial

“hands-on pat-down search” before placing Trey in a padded cell

with a camera. At some point before 10:00 p.m., Deputy

Hollenbeck saw on the video feed that Trey had removed something

2
from the front of his pants, and she sent Udell to retrieve the item.

Udell reported, “it’s just some foil.”

¶6 At about 8:05 p.m., and again at about 10:40 p.m., Trey made

telephone calls to his girlfriend and his mother — plaintiff Beth Ann

Duke. At approximately 10:55 p.m., he was moved to a different

cell without a video camera. According to the TCS, deputies

checked on Trey fifteen times during the night, between the time he

was placed in the new cell and the time he was served breakfast at

approximately 7:30 a.m. Plaintiffs allege that the video surveillance

in the corridor outside Trey’s cell does not corroborate some of the

TCS entries.

¶7 Deputy Roberts served Trey’s breakfast. Roberts reported that

when he went to collect the tray shortly before 8:00, he saw Trey

“sitting [on the cell floor] with his legs crossed hunched over

eating.” When Roberts asked, Trey said that he was ok.

¶8 An “inmate trustee,” Brandon Morse, was cleaning the area

outside Trey’s cell when Deputy Phillips went to collect Trey’s

breakfast tray, sometime between 8:30 and 8:50. The trustee and

deputy were each familiar with Trey from prior contacts. Both men

3
saw Trey sitting cross-legged in his cell, with his head resting on

the floor in front of his legs.

¶9 The accounts of Morse and Phillips diverge at this point.

Morse said he had never seen anyone sit like that before, but

Phillips said he had seen Trey in that position before. Morse said

he saw the breakfast tray on the floor of the cell and food

“splattered all over the floor,” but Phillips said he was able to

retrieve the breakfast tray from the cell door. (A review of the

security video confirms that Phillips retrieved the tray from the cell

door.) Morse said he saw Phillips “glance” at Trey. Phillips stated

that he “observed [him] to be breathing, based on the rise and fall of

his back.” Morse reported that he told Phillips he “didn’t think Trey

looked so good,” and he said Phillips responded, “That’s what you

get for doing drugs.” Phillips said he didn’t recall speaking with

Morse, but he admitted that the video showed them having an

interaction.

¶ 10 Approximately thirty minutes later, Deputy Rupp noticed Trey

sitting in the same position reported by Deputy Phillips, with a

small amount of bile coming from his mouth. He tried to wake him

but found him to be unresponsive. Rupp called for emergency

4
services and began lifesaving measures, but his efforts were to no

avail. An emergency medical services team declared Trey dead

shortly thereafter.

¶ 11 A final autopsy reported a “disrupted open plastic baggy,”

ethanol, opiates, and high levels of fentanyl in Trey’s stomach;

naloxone, clonazepam, oxycodone, fentanyl, cyclobenzaprine, and

norfentanyl presence in his blood; and opiates, cocaine,

benzodiazepines, and oxycodone presence in his urine. The

examiner attributed the cause of death to a polydrug overdose, with

fentanyl as the major component.

¶ 12 Plaintiffs filed a federal suit, claiming (1) a violation of Trey’s

constitutional rights for deliberate indifference to a serious medical

threat, under 42 U.S.C. § 1983 (2018); and (2) wrongful death,

under section 13-21-202, C.R.S. 2019. The federal court granted

summary judgment in favor of defendants on the federal claim,

concluding that no clearly established constitutional right had been

violated, and the GCSO had not been deliberately indifferent to

injuries that could result from failure to train its staff on signs of an

overdose. The court declined to exercise supplemental jurisdiction

over the state law claim.

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¶ 13 Plaintiffs refiled the state claim in district court. They argued

that defendants breached a duty to prevent Trey’s death when each

defendant failed to obtain professional medical treatment before or

during his confinement and that Deputy Udell and the GCSO failed

to properly search Trey. They also argued that sovereign immunity

is waived pursuant to sections 24-10-105(1) and -106(1)(b), C.R.S.

2019.

¶ 14 Defendants moved to dismiss, in two separate motions,

arguing that they were immune from the claim because it sounds in

tort and does not fall within any waiver of immunity under the

Colorado Governmental Immunity Act (CGIA). Specifically, the

GCSO argued that the waiver of immunity for operation of a jail

does not apply because Trey was incarcerated pursuant to a

conviction, see § 24-10-106(1.5)(a), and the Sheriff and individual

deputies argued that the waiver of immunity does not apply

because their conduct was not willful and wanton, see

§ 24-10-118(2), C.R.S. 2019. Defendants Clark and Phillips

specifically argued that they could not have consciously disregarded

the danger of an overdose because they did not know that Trey had

ingested fentanyl.

6
¶ 15 Plaintiffs argued that governmental immunity was waived

because (1) they, not Trey, were the claimants for the lawsuit, and

they were not incarcerated; and (2) the individual defendants

willfully and wantonly failed to provide Trey with needed medical

attention, failed to thoroughly search his person, and fabricated

records.

¶ 16 The district court granted the motions to dismiss, concluding

that it lacked subject matter jurisdiction to hear the case. The

court relied on the evidence from discovery in the federal case and

did not hold an evidentiary hearing. First, the court found that the

GCSO is immune from liability because Trey was undisputedly a

convicted inmate who was incarcerated for a crime at the time of his

death, the GCSO is immune from tort claims by convicted inmates,

and wrongful death claims are wholly derivative of and dependent

upon the claims that the decedent would have had. Second, relying

on an assumption that Trey had swallowed a baggie containing a

fentanyl patch, and defining “known risk” as the specific knowledge

that Trey had swallowed a fentanyl patch, the court found that

none of the individual defendants had acted with conscious

7
disregard for a known risk, and therefore their conduct was not

willful and wanton.

¶ 17 The plaintiffs appeal each of these rulings.

II. GCSO Immunity Under the CGIA

¶ 18 Plaintiffs argue that because they are not convicted inmates,

and they are the claimants, the GCSO enjoys no immunity from

their wrongful death claim. We are not persuaded.

A. Legal Authority and Standard of Review

¶ 19 The CGIA generally provides immunity for public entities from

tort claims, including wrongful death. As relevant here, section

24-10-106 initially immunizes the public entity against a wrongful

death claim but generally waives the immunity in connection with

the operation of a correctional facility or jail, and then limits the

waiver with respect to claimants who have been convicted of a crime

and incarcerated in a jail pursuant to such conviction, specifically

restoring immunity to that jail in such situations. The statute

provides, as relevant here:

(1) A public entity shall be immune from
liability in all claims for injury which lie in tort
or could lie in tort regardless of whether that
may be the type of action or the form of relief
chosen by the claimant except as provided

8
otherwise in this section. Sovereign immunity
is waived by a public entity in an action for
injuries resulting from:

....

(b) The operation of any . . . correctional
facility, as defined in section 17-1-102, C.R.S.,
or jail by such public entity;

....

(1.5)(a) The waiver of sovereign immunity
created in paragraph[] (b) . . . of subsection (1)
of this section does not apply to claimants who
have been convicted of a crime and
incarcerated in a correctional facility or jail
pursuant to such conviction, and such
correctional facility or jail shall be immune
from liability as set forth in subsection (1) of
this section.

Id.

¶ 20 Because CGIA derogates the common law, courts must strictly

construe provisions that grant immunity, broadly construe the

provisions that waive immunity, and strictly construe exceptions to

waivers in favor of compensating victims. See Medina v. State, 35

P.3d 443, 453 (Colo. 2001); see also Dempsey v. Denver Police Dep’t,

2015 COA 67, ¶ 21.

¶ 21 Section 13-21-202 (the wrongful death statute) provides:

When the death of a person is caused by a
wrongful act, neglect, or default of another,

9
and the act, neglect, or default is such as
would, if death had not ensued, have entitled
the party injured to maintain an action and
recover damages in respect thereof, then, and
in every such case, the person who or the
corporation which would have been liable, if
death had not ensued, shall be liable in an
action for damages notwithstanding the death
of the party injured.

(Emphasis added.)

¶ 22 Where, as here, the underlying facts are undisputed and the

district court decided the jurisdictional issue as a matter of law, we

review de novo. Medina, 35 P.3d at 452.

B. Application

¶ 23 The parties agree that Trey was a convicted inmate for

purposes of the CGIA at the time of his death. Plaintiffs’ argument

that the GCSO (a public entity) should not be immune from their

suit turns on one word in the inmate exception to the immunity

waiver for operation of a jail: “claimants.” However, we agree with

the district court that the question of jurisdiction does not begin

with a definition of the word claimants, but with an interpretation

of the wrongful death statute.

¶ 24 A party is liable in a wrongful death action when the injured

party could have “maintain[ed] an action and recover[ed]

10
damages . . . if death had not ensued.” § 13-21-202. Colorado case

law clearly establishes that the right to collect damages in a

wrongful death case is “dependent upon the right of action which

the decedent would have had, had []he survived [the] injuries.”

Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 102 (Colo. 1995); see

also Steedle v. Sereff, 167 P.3d 135, 140 (Colo. 2007) (The right

“does not arise from a separate tort, but instead is wholly derivative

of the injury to the decedent.”).

¶ 25 When a decedent could not have maintained an action due to

a different section of the Colorado Revised Statutes, the tortfeasor is

not liable to the decedent’s heirs. See Sigman v. Seafood Ltd. P’ship

I, 817 P.2d 527, 530-31 (Colo. 1991) (holding that where the

decedent would have been prevented from suit under a dram shop

liability statute, decedent’s heirs were precluded from bringing a

wrongful death action). As in Sigman, the plaintiffs in this case can

maintain an action only if Trey could have done so had his injuries

not been fatal. Just as the dram shop provisions barred the

decedent’s claims in Sigman, and thus the claims of his heirs, so

too does the CGIA bar the claim of Trey’s parents in this case.

11
¶ 26 Even granting narrow construction of the immunity

provisions, and broad construction of the waiver provisions, we

could not interpret section 24-10-106 to permit Trey to maintain an

action for his injuries against the GCSO, had he survived his

overdose. In short, under subsections (1), (1)(b), and (1.5)(a) of

section 24-10-106, an injured party cannot sue a jail for a tortious

injury unless the injury (in this case death) occurred in the jail and

the injured (or deceased) party was not a convicted inmate.

Because Trey was a convicted inmate, the GCSO was immune from

suit for any injury to him, even if the injury was death. See

§ 24-10-103(2), C.R.S. 2019 (defining “injury” under the CGIA to

mean “death, injury to a person, damage . . .”). Accordingly, his

parents cannot pursue a wrongful death action against the GCSO

for Trey’s death.

¶ 27 We affirm the portion of the district court’s order dismissing

the plaintiffs’ claims against the GCSO, although we conclude the

dismissal should be for failure to state a claim for relief under

C.R.C.P. 12(b)(5).

III. Public Employee Immunity Under the CGIA

12
¶ 28 Plaintiffs contend that the district court erred in its analysis of

the willful and wanton conduct of the individual defendants

because it did not consider facts alleged in their complaint. We

agree to a limited extent.

A. Legal Authority and Standard of Review

¶ 29 Section 24-10-118(2)(a) provides limited sovereign immunity to

public employees as follows:

A public employee shall be immune from
liability in any claim for injury, . . . which lies
in tort or could lie in tort . . . and which arises
out of an act or omission of such employee
occurring during the performance of his duties
and within the scope of his employment unless
the act or omission causing such injury was
willful and wanton . . . .

¶ 30 A public employee’s sovereign immunity is a question of

subject matter jurisdiction. As our supreme court recently made

clear, all issues related to an employee’s immunity, including

factual issues such as whether a public employee acted in a willful

and wanton manner, are to be determined by the district court prior

to trial, pursuant to C.R.C.P. 12(b)(1). Martinez v. Estate of Bleck,

2016 CO 58, ¶ 27; see Trinity Broad. of Denver, 848 P.2d at 924.

13
¶ 31 For willful and wanton conduct to subject a public employee to

liability for a tort claim, the conduct must be more than merely

negligent; the conduct must exhibit a conscious disregard of the

danger to another. See Martinez, ¶¶ 30, 32.

¶ 32 It is the plaintiff’s burden to prove that a public employee has

waived the right to sovereign immunity. Gray v. Univ. of Colo. Hosp.

Auth., 2012 COA 113, ¶ 15. However, “the burden is a relatively

lenient one,” as there is no presumption of sovereign immunity, and

plaintiffs “should be afforded the reasonable inferences of [their]

evidence.” Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86 (Colo.

2003). “When the alleged jurisdictional facts are in dispute, the

[district] court should conduct an evidentiary hearing and enter

findings of fact.” Id. But the court may rule without a hearing

when there is no evidentiary dispute. Id. at 86.

¶ 33 We will uphold the factual determinations of the district court

unless those determinations are clearly erroneous. Medina, 35 P.3d

at 452. However, when the court does not make findings of fact

and decides jurisdictional issues as a matter of law, we review de

novo. Id. at 452-53.

14
B. Application

¶ 34 The record supports a finding that Trey died after ingesting

fentanyl. The record is not clear as to when, and in what manner,

Trey ingested fentanyl. However, a finding of this fact is not

dispositive to our analysis.

¶ 35 Of significantly greater import is the legal standard set by the

district court’s interpretation that, for the individual defendants’

conduct to be willful and wanton, Trey’s swallowing a fentanyl

patch is “the danger” that must be consciously disregarded. With

respect to almost all the individual defendants, the district court

stated that there was no evidence the individual defendant “knew or

should have known that Trey Duke ingested a fentanyl patch with a

lethal dose of fentanyl.” 1 Based on that finding, the district court

concluded the defendants’ conduct was not willful or wanton.

¶ 36 We conclude, however, that this level of specificity places an

exceedingly high burden on plaintiffs, when instead the burden

should be a lenient one because we must narrowly construe

1With respect to Deputy Martinez, the court found that there is no
evidence that she “had any knowledge of any of the drugs that Trey
Duke had ingested, or that he was at risk of an overdose.”

15
statutes that grant governmental immunity. See Tidwell, 83 P.3d at

85-86.

¶ 37 We are aware of no support for the proposition that a public

employee’s knowledge of the specific cause of potential injury or

death is required for the employee’s omissions to constitute willful

and wanton conduct. To the contrary, knowledge and conscious

disregard of a health danger to another is sufficient. See Peterson v.

Arapahoe Cty. Sheriff, 72 P.3d 440 (Colo. 2003) (holding allegations

that the defendants refused to take a beaten man, afraid of

additional beatings, into custody was sufficient to plead a claim

based on willful and wanton conduct); Gray, ¶ 41 (holding

allegations that a physician provided inadequate staffing in an

epilepsy monitoring unit sufficiently alleged willful and wanton

conduct because it created “danger or risk” to patients’ safety); see

also Estate of Goodwin v. Connell, 376 F. Supp. 3d 1133 (D. Colo.

2019) (holding that allegations of the defendant’s failure to

investigate claims of child abuse and manipulation of the complaint

filing system were sufficient to show willful and wanton conduct

and a conscious disregard of a serious risk, without a showing that

the defendant expected the drowning of the ten-year-old child).

16
Accordingly, we conclude that the district court applied an

erroneous legal standard.

¶ 38 The deputies knew that Trey had consumed multiple

controlled substances, as revealed by his behavior and the DRE.

However, the DRE examiner did not conclude that Trey was in

danger of an overdose. A conscious disregard of a danger of

overdose would constitute willful and wanton conduct.

¶ 39 We agree with the district court that for the individual

defendants, other than Deputy Phillips, their conduct as alleged did

not constitute a conscious disregard of a danger that Trey had

overdosed. There is no evidence that Trey requested medical

assistance at the time he was arrested, and, although the deputies

requested that he submit to a blood test, he refused. The facts do

not demonstrate that Trey’s behavior indicated he required medical

attention until sometime after he was served breakfast —

approximately sixteen hours after he was arrested. He was

video-monitored during the first few hours of his confinement, and

he was checked many times after he changed cells, even if some of

the TCS entries are not supported by video evidence. At least

through the time he was served breakfast, Trey was able to function

17
— walking, talking, eating, and sleeping. Although his movements

were sluggish and uncoordinated, as one might expect from an

intoxicated person, he never called for medical attention.

¶ 40 With respect to Deputy Phillips, however, plaintiffs have

alleged some facts to support a finding of willful and wanton

conduct. With record support, plaintiffs allege that when Phillips

saw Trey that morning, he

• knew that Trey had been arrested in an intoxicated state

over seventeen hours earlier;

• saw Trey in an odd position that caused concern to a

trustee inmate familiar with Trey, and later caused

Deputy Rupp enough concern that Rupp attempted to

rouse him;

• was alerted to the concern by the trustee inmate; and

• walked away, saying, “That’s what you get for doing

drugs.”

Although Phillips denies (or does not recall) making that statement

to the trustee inmate, a review of the security videotape shows that

they had a brief exchange after Phillips removed the tray from the

18
cell. In addition, Phillips may have seen spilled food on the floor of

Trey’s cell.

¶ 41 The district court did not address these specific allegations

regarding Deputy Phillips in its order, and it did not make findings

resolving the conflicting accounts of Deputy Phillips, Brandon

Morse, and what appears in the video surveillance. Therefore, we

cannot affirm its conclusion that there was no evidence showing

willful and wanton conduct by defendant Phillips. We therefore

remand this part of the case and direct the district court to conduct

an evidentiary hearing pursuant to Trinity to determine whether it

may exercise subject matter jurisdiction over plaintiffs’ claim

against Deputy Phillips.

IV. Attorney Fees on Appeal

¶ 42 Defendants request attorney fees on appeal pursuant to

section 13-17-201, C.R.S. 2019. The statute provides:

In all actions brought as a result of . . . an
injury to person or property occasioned by the
tort of any other person, where any such
action is dismissed on motion of the defendant
prior to trial under rule 12(b) of the Colorado
rules of civil procedure, such defendant shall
have judgment for his reasonable attorney fees
in defending the action.

19
¶ 43 Under this section, an award of attorney fees is mandatory

when a trial court dismisses an action under C.R.C.P. 12(b).

Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994). A

wrongful death claim is a claim for “an injury to person or property

occasioned by the tort of any other person.” Id. at 424.

¶ 44 Section 13-17-201 provides for an award of attorney fees

where “the defendant” moves for and is granted pretrial dismissal

under Rule 12. Using “defendant” in the singular necessarily

applies to each individual defendant against whom an entire action

has been dismissed. See Smith v. Town of Snowmass Vill., 919 P.2d

868, 873 (Colo. App. 1996). Because we have concluded that the

district court properly dismissed plaintiffs’ claims against the GCSO

under C.R.C.P. 12(b)(5), and against the former Sheriff and all of

the deputies other than Phillips under Rule 12(b)(1), we must award

attorney fees for successfully defending an appeal of those

dismissed claims. See Henderson v. City & Cty. of Denver, 2012

COA 152, ¶ 57. We remand to the district court to decide the

amount of attorney fees.

V. Conclusion

20
¶ 45 We affirm the district court’s dismissal of plaintiffs’ case

against defendant GCSO for failure to state a claim upon which

relief can be granted, and against Sheriff Richard Besecker, Deputy

Ian Clark, Deputy Paula Martinez, Deputy Conner Udell, Deputy

Megan Hollenbeck, Deputy Chad Roberts, and Deputy Brandyn

Rupp for lack of subject matter jurisdiction.

¶ 46 We reverse the district court’s dismissal against Deputy Ryan

Phillips and remand for further proceedings to resolve all remaining

disputed factual issues and jurisdictional issues with respect to

Deputy Phillips. We also remand the determination of the amount

of appellate attorney fees.

JUDGE DAILEY and JUDGE BROWN concur.

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