Lieberenz v. Board of County Commissioners of the County of Saguache, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-00628-NYW-NRN
SARAH LIEBERENZ, Individually and as Personal Representative of THE ESTATE OF
JACKSON MAES, deceased,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY
OF SAGUACHE, COLORADO, in its official capacity,
SAGUACHE COUNTY SHERIFF’S OFFICE, a governmental entity,
DAN WARWICK, SHERIFF OF SAGUACHE COUNTY, in his official capacity,
KENNETH WILSON, in his individual capacity,
ELKE WELLS, in her individual capacity,
MIGUEL MACIAS, in his individual capacity, and
SHELBY SHIELDS, in her individual capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are four motions. First, the Board of County Commissioners (the
“Board”), the Saguache County Sheriff’s Office (the “Sheriff’s Office”), Sheriff Dan Warwick
(“Defendant Warwick” or “Sheriff Warwick”), Kenneth Wilson (“Defendant Wilson”), and
Shelby Shields (“Defendant Shields,” and, collectively, the “County Defendants”) filed a Motion
for Partial Summary Judgment (“County Defendants’ Motion”), [Doc. 102, filed June 30, 2022],
on the claims alleged against them. 	Plaintiff Sarah Lieberenz, in her capacity as personal
representative of the Estate of Jackson Maes (“Plaintiff” or “the Estate”)1 filed a Response in
1 Although the briefing associated with the instant Motions for Summary Judgment originally
referred to “Plaintiffs,” the Court refers to Ms. Lieberenz only in her capacity as personal
representative of the Estate because of its ruling on Defendant Miguel Macias’s Motion for Partial
Summary Judgment and its Order to Show Cause that dismissed claims brought pursuant to 42
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opposition to the County Defendants’ Motion, [Doc. 124, filed August 11, 2022], and the County
Defendants followed with a Reply, [Doc. 142, filed August 25, 2022]. Second, Defendant Elke
Wells (“Defendant Wells”) filed a Motion for Summary Judgment (“Defendant Wells’s Motion”),
[Doc. 104, filed June 30, 2022]. 	Plaintiff filed a Response in opposition to Defendant Wells’s
Motion, [Doc. 113, filed August 4, 2022], and Defendant Wells subsequently filed a Reply, [Doc.
150, filed September 8, 2022]. 	Third, Plaintiff filed a “Motion to Supplement Responses to
Motions for Summary Judgment re: Issue of First Impression on Language Improperly Omitted
from 42 U.S.C. § 1983” (“Motion to Supplement Responses”). 	[Doc. 149, filed September 7,
2022]. 	The County Defendants filed a Response in opposition, [Doc. 159, filed September 28,
2022], and Plaintiff filed a Reply, [Doc. 175, filed October 21, 2022]. Fourth and finally, Plaintiff
filed an “Opposed Motion to Strike or Alternatively Motion to File a Surreply” (“Motion to
Strike”). 	[Doc. 169, filed October 14, 2022]. 	The County Defendants filed a Response, [Doc.
176, filed November 4, 2022], and Plaintiff filed a Reply, [Doc. 182, filed November 11, 2022].
The issues have thus been fully briefed and are ripe for resolution. Upon consideration of
the briefing and the entire record, the Court concludes that oral argument will not materially assist
in the resolution of the Motions. For the reasons set forth below, the Court GRANTS IN PART
and DENIES IN PART the County Defendants’ Motion for Partial Summary Judgment,
U.S.C. § 1983 by Ms. Lieberenz in her individual capacity against all Defendants, leaving only
claims brought by the Estate pursuant to § 1983. 	[Doc. 187 at 13]. 	As discussed in that
Memorandum Opinion and Order, the United States Court of Appeals for the Tenth Circuit has
foreclosed wrongful death claims under § 1983. [Doc. 187]. See Berry v. City of Muskogee, 900
F.2d 1489, 1506–07 (10th Cir. 1990) (reasoning that the remedy for § 1983 disputes resulting from
an individual’s death “should be a survival action, brought by the estate of the deceased victim, in
accord with § 1983’s express statement that the liability is to the party injured.” (internal quotations
omitted)). As such, references to Plaintiff’s constitutional injuries relate to those suffered by Mr.
Maes, not to any particular harm suffered by Ms. Lieberenz in her individual capacity.
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GRANTS Defendant Wells’s Motion for Summary Judgment, DENIES Plaintiff’s Motion to
Supplement Responses, and DENIES Plaintiff’s Motion to Strike.
BACKGROUND
I. 	Factual Background
The following facts are drawn from the record in this case and are undisputed for the
purposes of summary judgment, unless otherwise noted. 	In addition to those materials cited by
the Parties—and consistent with Rule 56(c)(3) of the Federal Rules of Civil Procedure—the Court
considers “other materials in the record” where appropriate. Fed. R. Civ. P. 56(c)(3).
A. 	The Saguache County Jail
The Saguache County Jail (“SCJ”) is a detention facility comprised of four cells and one
holding “tank” that is designed to house inmates who have been placed on suicide watch and those
who are intoxicated or are displaying behavioral problems. [Doc. 102 at ¶ 2; Doc. 124 at 1]. The
SCJ is staffed by two individuals during “normal” hours—one jailer and one dispatcher.2 [Doc.
102 at ¶ 3; Doc. 124 at 2, ¶ 3]. The dispatcher’s responsibilities include “handling phone calls,
coordinating responses for road deputies, and entering information into the County’s computer-
aided dispatch system.” 	[Doc. 102 at ¶ 4; Doc. 124 at 1]. 	The jailer’s responsibilities include
“monitoring the inmates and conducting physical checks of the cells every hour.” [Doc. 102 at
¶ 6; Doc. 124 at 2, ¶ 6]. Occasionally, a single jailer/dispatcher model will be employed on the
overnight shift—from midnight to 8:00 a.m.—wherein a single individual acts as both jailer and
dispatcher.3 [Doc. 102 at ¶ 8].
2 Plaintiff disputes that there is a dedicated “dispatcher” position, instead arguing that the
dispatcher is responsible for acting as both a dispatcher and a jailer even when a dedicated jailer
is present at the SCJ. [Doc. 124 at 2, ¶ 3].
3 Plaintiff disputes this fact, admitting that “Defendant[s] used a jailer/dispatcher post, but
disput[ing] it was exclusive to the overnight shift.” [Doc. 124 at 3, ¶ 8]. Respectfully, Plaintiff’s
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A suicide prevention policy is in force at the SCJ, and requires that potentially suicidal
inmates be housed in the “tank,” with nothing but a suicide suit and a mattress. [Doc. 102 at ¶ 37;
Doc. 124 at 1]. The policy also requires jailers to conduct ten-minute camera checks and twenty-
minute in-person checks on suicidal inmates. [Doc. 102 at ¶ 38; Doc. 124 at 1]. Jail employees
receive “a mandatory fourteen-week on-the-job training program while working at the Jail, which
includes training on potentially suicidal parties.”4 [Doc. 102 at ¶ 40].
Since 1995, two other suicides have occurred at the SCJ. [Doc. 102 at ¶ 41; Doc. 124 at
1]. In 2013, another inmate—William Starkey (“Mr. Starkey”)—“committed suicide by hanging
his pants and a white sheet over an electrical conduit pipe in Cell Four of the SCJ.” [Doc. 102 at
¶ 42; Doc. 124 at 1]. He had been incarcerated for four months prior to his suicide. [Doc. 102 at
¶ 43; Doc. 124 at 1]. 	Earlier, in 2008, an inmate named Felix Granados (“Mr. Granados”)
committed suicide in Cell One using the privacy curtain. [Doc. 102 at ¶ 44; Doc. 124 at 1]. Prior
to his death, Mr. Granados was evaluated by a mental health agency and was cleared for a return
to the SCJ. [Doc. 102 at ¶ 45; Doc. 124 at 6, ¶ 45].
B. 	Arrest and Detention of Mr. Maes
The instant case arises out of the arrest of Mr. Jackson Maes (“Mr. Maes”) on November
16, 2019 by Defendant Wells, a Saguache County Sheriff’s Deputy, after receiving a report of an
intoxicated individual from a concerned citizen. [Doc. 102 at ¶ 9; Doc. 104 at ¶ 1; Doc. 113 at 1,
¶ 1; Doc. 124 at 1]. Defendant Wells located Mr. Maes outside the Ute Theater in the Town of
Saguache. [Doc. 104 at ¶¶ 3, 6; Doc. 113 at 1–2, ¶¶ 3, 6]. He was losing his balance and smelled
“dispute” does not speak to whether a single jailer/dispatcher model was employed outside the
overnight shift, and so the Court treats this fact as undisputed.
4 Plaintiff disputes that Defendant Shields received training on intoxicated suicidal inmates before
Mr. Maes’s death. [Doc. 124 at 6, ¶ 40].
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strongly of alcohol. [Doc. 104 at ¶ 7; Doc. 113 at 2, ¶ 7]. His arrest was predicated upon a warrant
for a failure to appear on a traffic offense. [Doc. 104 at ¶ 11; Doc. 113 at ¶ 11]. Defendant Wells
subsequently transported Mr. Maes to the SCJ. [Doc. 102 at ¶ 14; Doc. 124 at 1].
On the evening of November 16, 2019, Defendant Shields was working as the dispatcher
on duty at the SCJ. [Doc. 102 at ¶ 10; Doc. 124 at 1]. At the time, she had been employed by
Saguache County for two months. [Doc. 102 at ¶ 11; Doc. 124 at 1]. Defendant Miguel Macias
(“Defendant Macias”) was on duty as the jailer on the evening of Mr. Maes’s arrest.5 [Doc. 102
at ¶ 12; Doc. 124 at 1]. Defendant Wilson was also present at the SCJ on the evening of November
16, 2019, at least in part, in an effort to fix the dispatcher’s broken radio console. [Doc. 102 at
¶ 13; Doc. 124 at 3, ¶ 13].
Upon Mr. Maes’s arrival at the SCJ, Defendant Shields observed that he appeared
intoxicated and high. [Doc. 102 at ¶ 14; Doc. 124 at 1]. He was placed in Cell One, which was
empty, because the “tank” was occupied by an inmate with behavioral problems. 	[Doc. 102 at
¶¶ 16–17; Doc. 124 at 1]. But for the other inmate, Mr. Maes would have been placed in the tank.
[Doc. 102 at ¶ 16; Doc. 124 at 1]. Defendants Wells, Wilson, and Macias assisted Mr. Maes into
his jail uniform, and placed him into Cell One. [Doc. 102 at ¶ 18; Doc. 124 at 4, ¶ 18].
Around twelve minutes after he was placed in Cell One, Mr. Maes “began making loud
noises by banging into a metal wall in the cell.” [Doc. 102 at ¶ 19; Doc. 124 at 1]. Defendants
Wilson and Macias re-entered the area around the cell, with Defendant Wells following. 	[Doc.
102 at ¶ 21; Doc. 124 at 1]. Defendant Wells advised Mr. Maes to lie down and “get some rest.”
5 Approximately ten days before Mr. Maes’s arrival at the SCJ, Defendant Macias submitted a
letter of resignation to Defendants Kenneth Wilson and Dan Warwick. [Doc. 102 at ¶ 46; Doc.
124 at 1]. Inter alia, Defendant Macias indicated that he was resigning because of “his perception
of having little or no training on certain aspects of his job.” [Doc. 102 at ¶ 47; Doc. 124 at 1].
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[Id.]. In response, Mr. Maes said “I’m trying to kill myself right now.” [Doc. 102 at ¶ 22; Doc.
124 at 4, ¶ 22]. Defendant Wilson replied by asking “You’re trying to kill yourself right now?”
[Doc. 102 at ¶ 23; Doc. 124 at 4, ¶ 23]. Receiving no response, Defendant Wilson subsequently
left the area around Cell One. [Doc. 102 at ¶ 25; Doc. 124 at 4, ¶ 25].
Defendant Shields remained at the dispatcher station during these events. 	[Doc. 102 at
¶ 26; Doc. 124 at ¶ 26]. At some point, she placed a call to an outside vendor to obtain care for
Mr. Maes; she does not recall the impetus for doing so, or whether she attempted “to contact mental
health or the detox facility used by the Jail.”6 [Doc. 102 at ¶¶ 29–30; Doc. 124 at 5, ¶¶ 29–30].
Because her radio was not functioning, Defendant Shields recalled the evening being “hectic.”
[Doc. 102 at ¶ 31; Doc. 124 at 1]. In addition to doing “everything manually,” she was engaged
in a conversation with Defendant Wells about protocols for road deputies. [Doc. 102 at ¶¶ 31–32;
Doc. 124 at 1].
Meanwhile, Defendant Macias engaged in several conversations with Mr. Maes. 	[Doc.
102 at ¶ 33; Doc. 124 at 1]. The two “discussed how to bond out of jail, whether [Mr. Maes] could
obtain food (which [Defendant] Macias provided), and whether he could make calls the following
day.” [Id.]. Fourteen minutes after the end of their conversation—at approximately 10:22 p.m.—
Mr. Maes committed suicide using the privacy curtain in his cell. [Doc. 102 at ¶ 34; Doc. 124 at
5, ¶ 34]. The independent coroner who examined Mr. Maes following his death concluded that he
died “within approximately three minutes.”7 [Doc. 102 at ¶ 35]. Around one hour and thirty-eight
6 The record shows that Defendant Shields called San Luis Valley Behavioral Health. [Doc. 128-
3 at 22:03:04, 22:03:52; Doc. 126 at 3; Doc. 128-7 at 188:23–25; Doc. 128-8 at 48:17–49:4]; see
Fed. R. Civ. P. 56(c)(3). She testified that she did not leave a message. [Doc. 128-8 at 58:6–15].
As noted in the Court’s ruling on Plaintiff’s Motion for Sanctions, there is no evidence in the
record that Defendant Shields did leave a message. [Doc. 200 at 12–13].
7 Plaintiff disputes this fact as overly vague, noting that it does not identify when the “three
minutes” began. [Doc. 124 at 5, ¶ 35]. While true that the purportedly undisputed fact does not
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minutes after Mr. Maes’s death—at midnight—Defendants Macias and Shields were relieved from
their shifts. [Doc. 102 at ¶ 36; Doc. 124 at 5, ¶ 36].
II. 	Procedural Background
Ms. Lieberenz brought suit in her individual capacity and as a personal representative on
behalf of Mr. Maes’s Estate against the Board of County Commissioners of Saguache, Colorado
(the “Board”), the Saguache County Sherriff’s Office (the “SCSO” or “Sheriff’s Office”), Sheriff
Warwick, Defendant Wilson, Defendant Wells, Defendant Macias, and Defendant Shields on
March 3, 2021. [Doc. 1 at 1]. She raised eleven claims:
1. 	Inadequate Physical Plant – Conditions of Confinement (42 U.S.C. § 1983); raised against
the Board. [Id. at ¶¶ 167–72].
2. 	Inadequate Funding – Conditions of Confinement (42 U.S.C. § 1983); raised against the
Board. [Id. at ¶¶ 173–77].
3. 	Inadequate Supervision – Policy or Practice (42 U.S.C. § 1983); raised against Sheriff
Warwick in his official capacity. [Id. at ¶¶ 178–82].
4. 	Inadequate Training – Policy or Practice (42 U.S.C. § 1983); raised against Sheriff
Warwick in his official capacity. [Id. at ¶¶ 183–188].
5. 	Inadequate Staffing – Policy or Practice (42 U.S.C. § 1983); raised against Sheriff Warwick
in his official capacity. [Id. at ¶¶ 189–193].
reference a beginning point for the three-minute clock suggested by the coroner, Defendants cite
to a portion of his deposition in which he testified that death would have occurred within three
minutes after Mr. Maes’s body stopped moving. See [Doc. 102-7 at 99:4–24]. And in any event,
Plaintiff avers that “[w]hile jail staff socialized in the dispatch room, [Mr. Maes] succumbed to his
illness and perished around 10:30 p.m.” [Doc. 1 at ¶ 2]. Therefore, any dispute is not material for
the purposes of the instant Motions for Summary Judgment.
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6. 	Supervisory Liability (42 U.S.C. § 1983); raised against Defendant Wilson in his individual
capacity. [Id. at ¶¶ 194–95].
7. 	Individual Liability (42 U.S.C. § 1983); raised against Defendant Wilson in his individual
capacity. [Id. at ¶¶ 196–97].
8. 	Individual Liability (42 U.S.C. § 1983); raised against Defendant Macias in his individual
capacity. [Id. at ¶¶ 198–99].
9. 	Individual Liability (42 U.S.C. § 1983); raised against Defendant Wells in her individual
capacity. [Id. at ¶¶ 200–01].
10. Individual Liability (42 U.S.C. § 1983); raised against Defendant Shields in her individual
capacity. [Id. at ¶¶ 202–03].
11. Negligent Supervision of a Jail (C.R.S. § 24-10-106(1)(b)); raised against the Board, the
SCSO, and Sheriff Warwick. [Id. at ¶¶ 204–208].
On April 21, 2021, this action was assigned to Judge William J. Martínez. [Doc. 37]. On
July 29, 2022, the case was reassigned to this Court following Judge Martínez’s recusal. 	[Doc.
110]. Defendant Macias moved to dismiss the individual capacity claims against him, arguing that
Ms. Lieberenz was not a proper party to rise claims under § 1983, and that damages should be
limited to certain categories. See [Doc. 101]. The County Defendants and Defendant Wells joined
Mr. Macias’s motion. 	See [Doc. 103; Doc. 105]. 	On November 30, 2022, the Court entered a
Memorandum Opinion and Order addressing Defendant Macias’ Motion for Partial Summary
Judgment. 	See [Doc. 187]. 	In relevant part, the Court determined that summary judgment in
Defendants’ favor was warranted on Counts One through Ten with respect to any claims or
damages alleged by Ms. Lieberenz as an individual. [Id. at 13]. Those claims therefore survive
only as raised by the Estate. 	The Court also directed Plaintiff to show cause as to why Ms.
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Lieberenz, as an individual, should not be dismissed as a party to the action, which prompted
Plaintiff to move to amend her Complaint to include a claim for wrongful death—a request that is
opposed and still pending. [Doc. 188; Doc. 191].
With this factual and procedural background in mind, the Court turns to a consideration of
the legal standards that will guide the resolution of the pending motions.
LEGAL STANDARD
The Court may grant summary judgment only where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put differently,
the Court’s function at summary judgment is not “to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S.
650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Of course, the
bar on weighing evidence does not absolve a nonmoving party from the need to offer some
“concrete evidence from which a reasonable juror could return a verdict” in his or her favor.
Anderson, 477 U.S. at 256. Such a showing must consist of more than a “scintilla of evidence.”
Id. at 252. 	That is, conclusory statements based on speculation, conjecture, or subjective belief
are insufficient to survive summary judgment. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).
Whether a fact is “material” depends on whether it pertains to an element of a claim or a
defense; a dispute is “genuine” if the evidence is so contradictory that a reasonable jury could
return a verdict for either party. 	See Anderson, 477 U.S. at 248. 	“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
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(citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 	In reviewing a
motion for summary judgment, this Court views all evidence in the light most favorable to the
non-moving party. 	See, e.g., Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002). 	That said, the Court is not required to—and will not—make unreasonable inferences in
favor of that party. Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). It is
this legal framework that will govern the Court’s consideration of Defendant’s Motion.
ANALYSIS
Taken together, the County Defendants and Defendant Wells move for summary judgment
on all but two counts: Count Eight, which is raised against another defendant, Miguel Macias, in
his individual capacity, and Count Eleven, which is raised under a state law concerning the
negligent operation of a jail against Sheriff Warwick, the Saguache County Sherriff’s Office, and
the Board of County Commissioners. Both counts therefore remain pending, subject to limitations
outlined in this Court’s prior orders. E.g. [Doc. 187].
The Court begins by discussing what materials it considers in resolving the instant motions
and turns to the pending Motion to Strike. 	[Doc. 169]. 	The Court then considers whether the
doctrine of qualified immunity bars certain claims against Defendants Wilson, Shields, and Wells
raised in their individual capacities, and for Defendant Wilson in his supervisory capacity. Given
the centrality of Plaintiff’s Motion to Supplement Responses to the qualified immunity analysis,
the Court concurrently addresses the issues raised therein. 	Following this discussion, the Court
will address the propriety of summary judgment with respect to the remaining claims.
I. 	Motion to Strike
Plaintiff’s Motion to Strike is aimed at the County Defendants’ Reply to their Motion for
Partial Summary Judgment. [Doc. 142] Plaintiff contends that the County Defendants use their
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Reply to newly assert that “(1) the jail was ‘fully staffed’ [ ]; (2) the jail was under capacity, and
therefore not ‘overcrowded’ [ ]; (3) that [the Prison Rape Elimination Act] compelled them to
leave a privacy curtain in Cell 1 [ ]; (4) that the Complaint conclusively established when the clock
began on [Mr. Maes’s] death[ ]; and (5) that actual knowledge, and not constructive notice, is the
standard for Monell liability.” 	[Doc. 169 at 2 (citations omitted)]. 	The Estate also argues that
“Defendants 	also 	included 	new 	arguments 	about 	cumulative 	impact 	and 	the 	highly
predictable/plainly obvious path to Monell liability that do not appear in their partial motion.”
[Id.]. Plaintiff seeks to have the entire Reply stricken, or the opportunity to file a sur-reply. [Id.].
Typically, “arguments raised for the first time in a reply brief are generally deemed
waived,” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011), and district courts within
this Circuit have granted motions to strike such newly raised arguments, see Sarl v. Sprint Nextel
Corp., No. CIV.A. 09-2269-CM, 2011 WL 346083, at *3 n.2 (D. Kan. Feb. 2, 2011) (collecting
cases “stri[king] exhibits and arguments from . . . reply brief[s] when the exhibits and discussion
were raised for the first time in a reply brief”). If not stricken, the United States Court of Appeals
for the Tenth Circuit (“Tenth Circuit”) has instructed that “[g]enerally, the nonmoving party should
be given an opportunity to respond to new material raised for the first time in the movant’s reply.”
Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). In any event, the Court retains the
discretion to consider portions of a reply while disregarding others. 	Cf. Becher v. United
Healthcare Servs., Inc., 374 F. Supp. 3d 1102, 1107–08 (D. Kan. 2019) (declining to strike
defendants’ reply to their motion to dismiss in favor of exercising the court’s discretion to
disregard matters outside the pleadings and arguments making reference thereto).
The Court is mindful that the consideration of issues raised for the first time in a reply brief
“robs the [other party] of the opportunity to demonstrate that the record does not support [the
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moving party’s] factual assertions and to present an analysis of the pertinent legal precedent that
may compel a contrary result.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). But in order
to justify striking the County Defendants’ Reply or authorizing a sur-reply, the Court must satisfy
itself that the challenged arguments are truly “new”—that is, not raised in the County Defendants’
Motion for Partial Summary Judgment or in response to Plaintiff’s opposition brief. 	See Home
Design Servs., Inc. v. B & B Custom Homes, LLC, 509 F. Supp. 2d 968, 971 (D. Colo. 2007)
(“[R]eply briefs reply to arguments made in the response brief.”); United States v. Ridley’s Fam.
Markets, Inc., No. 1:20-cv-173-TS-JCB, 2021 WL 2141740, at *1 (D. Utah May 26, 2021)
(denying motion to strike where arguments made in reply were not new, but merely responded to
the opposition to the motion).
That inquiry proves fatal to Plaintiff’s Motion to Strike. 	First, Plaintiff argues that the
County Defendants never contended that the SCJ was “fully staffed” on the night of Mr. Maes’s
death. [Doc. 169 at 2]. But in their Motion for Partial Summary Judgment, the County Defendants
expressly argued that “at the time of [Mr. Maes’s] suicide, the County employed both a dispatcher
and a jailer,” and that Plaintiff had failed to demonstrate that more staff members were
constitutionally necessary. 	[Doc. 102 at 11, 18–19]. 	The County Defendants need not use the
phrase “fully staffed” verbatim in order to communicate its clear implication: that both a jailer and
dispatcher were present at the time of Mr. Maes’s death, and that this level of staffing was
constitutionally adequate.
Second, Plaintiff claims that the County Defendants only raise the fact that the jail was
under capacity—and therefore not overcrowded—in their Reply. 	[Doc. 169 at 2]. 	But it is
Plaintiff—not the County Defendants—who first raised the issue of the SCJ’s capacity in her
Response. [Doc. 124 at 7, ¶ 5 (“The sheriff said his office was ‘extremely overwhelmed and very
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understaffed,’ [and] that the jail is at capacity.”)]. The County Defendants were well within their
rights to respond to allegations of overcrowding with evidence that the SCJ was, in fact, under
capacity on the night of Mr. Maes’s death. [Doc. 142 at 1, ¶ 1; id. at 3, ¶¶ 5–6].
Third, Plaintiff contends that the County Defendants’ argument that the Prison Rape
Elimination Act (“PREA”) required the presence of a privacy curtain in Cell One was novel. [Doc.
169 at 2]. In the Response, Plaintiff avers that “[a]fter the Granados suicide, [the SCJ] continued
housing suicidal inmates in Cell [One] without making any changes, and without any effort to
suicide-proof the cell, which could be done by removing the privacy curtain and using plexiglass
to block access to the exposed bars.” [Doc. 124 at 10, ¶ 26]. In their Reply, the County Defendants
respond to this undisputed fact by stating: “Admitted that the County had a privacy curtain in front
of the toilet, per the Prison Rape Elimination Act.” [Doc. 142 at 5, ¶ 26]. This is the sole mention
of the PREA in any briefing, and the Court does not believe that it warrants further discussion. To
the extent that Plaintiff is concerned that the Court draws an inference with respect to the need for
or propriety of the privacy curtain based on PREA, it does not; indeed, the County Defendants
make no such argument. 	See generally [Doc. 102; Doc. 142]. 	Striking the Reply, or even this
portion of the Reply, thus is unnecessary, as the only conclusion the Court draws from this fact is
that it is undisputed that a privacy curtain was situated around the toilet in Cell One. See White v.
Deere & Co., No. 13-cv-02173-PAB-NYW, 2015 WL 5081609, at *7 n.6 (D. Colo. Aug. 28, 2015)
(declining to strike argument and evidence in reply because “even considering the Reply, the only
conclusion that the court [drew]” was more limited than what the new argument and evidence
suggested).
Fourth, 	Plaintiff 	challenges 	the 	County 	Defendants’ 	argument 	that 	the 	Complaint
“conclusively” establishes “when the clock began” on Mr. Maes’s death. [Doc. 169 at 2]. Plaintiff
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appears to take issue with the County Defendants’ position that they “cannot dispute their own
Complaint,” in this case with reference to paragraph 132 of the Complaint. See [Doc. 142 at 2,
¶¶ 34–36; id. at 6, ¶¶ 41–42; Doc. 1 at ¶ 132]. 	In full, paragraph 132 alleges that “[t]he video
clearly depicts Jackson hanging in his cell for almost two full minutes before expiration of any
purported 15-minute window to perform a suicide check.” [Doc. 1 at ¶ 132]. All of this relates to
what the County Defendants accurately characterize as a new theory presented by Plaintiff in her
Response: that, despite hanging himself at approximately 10:22 p.m., Mr. Maes might still have
been alive during the shift change that occurred at midnight. Compare [Doc. 124 at 25] with [Doc.
1 at ¶¶ 2 (alleging Mr. Maes “succumbed to his illness and perished around 10:30 p.m.”), 132
(alleging Mr. Maes was on video hanging for “almost two full minutes”)]. But it appears to the
Court that the County Defendants properly followed the maxim that “reply briefs reply to
arguments made in the response brief.” Home Design Servs., Inc., 509 F. Supp. 2d at 971.
Fifth, Plaintiff attacks the County Defendants’ argument that actual knowledge—rather
than constructive notice—“is the standard for Monell liability.” [Doc. 169 at 2]. However, “actual
knowledge” appears nowhere in the County Defendants’ Reply, whether in connection with
Monell liability or otherwise. See generally [Doc. 142]. The same is true for “constructive notice.”
[Id.]. Regardless, this Court is charged with determining the appropriate standard to apply to the
instant Motions, and thus, it follows that striking this argument would be inappropriate, because it
does not seem to appear in the Reply.
Sixth and finally, Plaintiff argues that the County “Defendants also included new
arguments about cumulative impact and the highly predictable/plainly obvious path to Monell
liability that do not appear in their partial motion.” [Doc. 169 at 2]. As an initial matter, as posited,
it is difficult to determine which specific portions of the Reply that Plaintiff is challenging. The
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Court notes that the Reply contains no mention of “cumulative impact,” and only references the
“highly predictable or plainly obvious” standard for municipal liability under § 1983 twice. [Doc.
142 at 7 (noting that Plaintiff “claim[s] that [the County Defendants] missed an argument that the
risk of suicide is a ‘highly predictable or plainly obvious consequence’ of utilizing a jail with bars
and privacy curtains,” but failed to cite any precedent demonstrating as much), 9 (noting that
Plaintiff provided “no explanation on [sic] how it was ‘plainly obvious’ that the County’s training
program was deficient”)]. These are not new arguments, but rather attempts to focus the Court’s
attention on perceived shortcomings in Plaintiff’s Response.
In sum: each of the allegedly new arguments and facts that Plaintiff references in the
Motion to Strike are either mentioned in the County Defendants’ Motion for Partial Summary
Judgment or are provided in direct response to Plaintiff’s opposition brief. The Motion to Strike
is accordingly DENIED.
II. 	Qualified Immunity
The County Defendants’ and Defendant Wells’s arguments in favor of partial summary
judgment on Counts Six, Seven, Nine, and Ten each invoke the doctrine of qualified immunity,
which “protects government officials ‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” 	Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Counts Six and Seven are both raised against Defendant Wilson in his
individual capacity, though Count Six is styled as one for “supervisory liability” and Count Seven
is styled as one for “individual liability.” 	[Doc. 1 at 33]. 	In Count Six, Plaintiff alleges that
Defendant Wilson “failed to provide adequate supervision over the SCJ with deliberate
indifference to the consequences,” [id. at ¶ 195], while in Count Seven she claims that he
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“exhibited deliberate indifference to the welfare of [Mr. Maes] despite actual knowledge that [Mr.
Maes] had communicated suicidal ideation at the SCJ while appreciating that [Mr. Maes] was
extremely intoxicated,” [id. at ¶ 197]. 	Count Nine is raised against Defendant Wells in her
individual capacity, and mirrors Count Seven in alleging that she “exhibited deliberate indifference
to the welfare of [Mr. Maes] despite actual knowledge that [Mr. Maes] had communicated suicidal
ideation at the SCJ while appreciating that [Mr. Maes] was extremely intoxicated.” [Id. at ¶ 201].
Finally, Count Ten is raised against Defendant Shields and also alleges that she “exhibited
deliberate indifference to the welfare of [Mr. Maes] despite actual knowledge that [Mr. Maes] had
communicated suicidal ideation at the SCJ while appreciating that [Mr. Maes] was extremely
intoxicated.” [Id. at ¶ 203].
As noted, qualified immunity functions to protect government officials performing
discretionary actions and acts as a “shield from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. Once a defense of qualified immunity is asserted,
“the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the time of the challenged conduct.’” Quinn
v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)). “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the
defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001). 	Courts
may address the prongs in either order. Pearson, 555 U.S. at 236.
While Plaintiff uses nearly identical language in her Complaint to make out § 1983 claims
against Defendants Wilson, Wells, and Shields in their respective individual capacities, the record
demonstrates that each defendant played a different role at the SCJ before and during Mr. Maes’s
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death. While the doctrine of qualified immunity shields “all public officials except those who are
plainly incompetent or those who knowingly violate the law,” Lowe v. Raemisch, 864 F.3d 1205,
1208 (10th Cir. 2017) (emphasis added), such immunity attaches to each individual’s conduct,
e.g., Crane v. Utah Dep’t of Corrs., 15 F.4th 1296, 1308 (10th Cir. 2021) (citing Jacobs v. W.
Feliciana Sheriff’s Dep’t, 228 F.3d 388 (5th Cir. 2000) (noting that two of three officers acted with
deliberate indifference in the wake of a prisoner’s suicide based upon their prior knowledge of a
suicide)); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s
use of either the collective term ‘Defendants’ or a list of the defendants named individually but
with no distinction as to what acts are attributable to whom, it is impossible for any of these
individuals to ascertain what particular unconstitutional acts they are alleged to have committed.”).
Before turning to the specific allegations, however, the Court will address Plaintiff’s
Motion to Supplement Responses. Following that discussion, the Court will determine whether
Defendants Wilson, Wells, or Shields, respectively, are entitled to qualified immunity.8
A. 	Motion to Supplement Responses
On September 7, 2022, Plaintiff filed a motion to supplement her responses to the County
Defendants’ and Defendant Wells’s summary judgment motions. [Doc. 149]. Plaintiff claims that
she recently “learned that the author of a forthcoming law review article has determined that
important text from the 1871 Civil Rights Act was improperly omitted from 42 U.S.C. § 1983”—
language that, Plaintiff contends, would reject qualified immunity as a defense to § 1983 claims.9
8 	Defendant Macias did not invoke qualified immunity to preclude Claim Eight for individual
liability brought by the Estate against him for violation of the Fourteenth Amendment. [Doc. 101].
9 The forthcoming article is authored by Professor Alexander A. Reinert and is entitled Qualified
Immunity’s Flawed Foundation. At present, it is only available in draft form through the Social
Science Research Network (“SSRN”). See Alexander A. Reinert, Qualified Immunity’s Flawed
Foundation, 	111 	Cal. 	L. 	Rev. 	__ 	(forthcoming) 	(2022)
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4179628).
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[Id. at 1]. The County Defendants oppose the Motion, noting that Plaintiff is not entitled to file a
supplemental response, that the information she seeks to use to supplement her original Response
has been available for approximately 150 years (and, if narrowed solely to the forthcoming article
she cites, still available for nearly a week before filing the original response), and that she has
already exceeded this Court’s expanded page limits for the Response. [Doc. 159 at 1–5].
As Plaintiff and the County Defendants agree, the question of whether to consider a
supplemental response, such as that proposed by Plaintiff, rests within this Court’s discretion.
[Doc. 149 at 2; Doc. 159 at 2]; see e.g., Lighton v. Univ. of Utah, 209 F.3d 1213, 1227 (10th Cir.
2000) (“[T]he district court clearly has discretion to permit supplemental affidavits it finds useful
for summary judgment determination.”). 	One consideration is whether a party exercised
appropriate diligence in securing the supplemental information prior to filing his or her briefing at
summary judgment. Ware v. Denver Health, No. 09-cv-01103-REB-BNB, 2010 WL 2740078, at
*2 (D. Colo. July 12, 2010) (denying motion to supplement response to summary judgment motion
where plaintiff failed to “exercise[] appropriate diligence” in securing affidavit containing
testimony that would have been available prior to filing of original response brief).
Here, Plaintiff concedes that “the basis for” her theory “was technically ‘available’ to
Plaintiff[]” prior to filing her Response, but that “[she] can hardly be faulted for missing it.” [Doc.
149 at 3]. This statement does not persuade this Court of Plaintiff’s diligence. Indeed, it is unclear
what—if any—effort Plaintiff undertook prior to filing her Responses to the pending motions for
summary judgment to search for novel theories regarding the text of § 1983. 	In fact, Plaintiff
seems to suggest that she did not perform any research that would have led her to the forthcoming
article she references, noting that “lawyers do not routinely search for or consider forthcoming law
review articles when writing their briefs.” 	[Doc. 175 at 4]. 	Plaintiff’s position therefore boils
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down to a contradiction: that this article is sufficiently groundbreaking so as to alter this Court’s
reading of § 1983 (and contradict the reading employed by “[f]ederal courts and other litigants . . .
for as long as qualified immunity defenses have been asserted”), [Doc. 149 at 3], but not so
groundbreaking as to warrant additional internet research for secondary sources prior to filing the
original Responses. 	It follows that—even assuming the forthcoming article’s relevance to this
matter10—Plaintiff’s lack of diligence counsels against permitting her to supplement the responses
with arguments that were previously available. Her Motion is accordingly DENIED.
B. 	Counts Six, Seven, Nine, and Ten
The Court turns to a review of the four claims that implicate the doctrine of qualified
immunity in this matter.
1. 	Count Seven: Defendant Wilson – Individual Liability11
Count Seven is raised against Defendant Wilson in his individual capacity. Plaintiff alleges
that he “exhibited deliberate indifference to the welfare of [Mr. Maes] despite actual knowledge
that [Mr. Maes] had communicated suicidal ideation at the SCJ while appreciating that [Mr. Maes]
was extremely intoxicated.” 	[Doc. 1 at ¶ 197]. 	Specifically, Plaintiff alleges that Defendant
Wilson exhibited deliberate indifference to a substantial risk of suicide for four reasons: (1) he
heard Mr. Maes mention that he was attempting to kill himself once, (2) he observed Mr. Maes
striking his head, (3) he believed Mr. Maes was eligible for detox, and (4) he believed “something
10 This Court makes no substantive determination as to the relevance of the proffered article to its
analysis. Nevertheless, Plaintiff does not cite, and this Court unaware of, any authority that permits
it to reject binding case law from the United States Supreme Court or the Tenth Circuit with respect
to qualified immunity based on an unpublished law review article.
11 The Court addresses Defendant Wilson’s entitlement to qualified immunity on individual
grounds before considering Plaintiff’s claim premised on his supervisory role.
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more” needed to be done for Mr. Maes. [Doc. 124 at 27–28]. Plaintiff alleges that this conduct
violated Mr. Maes’s constitutional rights under § 1983.12
Courts treat cases of jail suicides as a failure to provide medical care. 	Barrie v. Grand
Cnty., 119 F.3d 862, 866 (10th Cir. 1997). 	Typically, this would constitute a claim under the
Eighth Amendment to the United States Constitution. E.g. Estelle v. Gamble, 429 U.S. 97, 104
(1976) (holding that a prison official’s deliberate indifference to a prisoner’s “serious medical
needs” violates the Eighth Amendment). 	As a pretrial detainee rather than a prisoner, Plaintiff
relies on the Fourteenth Amendment’s due process clause, which provides the same protection for
medical attention as a convicted inmate would receive under the Eighth Amendment, Barrie, 119
F.3d at 867, and the same deliberate indifference standard governs, Strain v. Regalado, 977 F.3d
984, 989 (10th Cir. 2020).
A prison official may be deliberately indifferent to a prisoner’s medical need where that
official “prevent[s] an inmate from receiving treatment or den[ies] him access to medical personnel
capable of evaluating the need for treatment.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th
12 As previously explained, § 1983 is not a source of substantive rights. 	[Doc. 187 at 6 (citing
Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1536 (10th Cir. 1995) (reasoning that § 1983 “does not
create any substantive rights, but merely provides relief against those who, acting under color of
law, violate federal rights created elsewhere” (emphasis added)))]. 	Plaintiff does not identify a
particular constitutional provision at issue in Count Seven (or any other the other counts addressed
in this Memorandum Opinion and Order). See [Doc. 1 at ¶¶ 167–203]. Earlier in the Complaint,
Plaintiff states that “[t]his is an action under Title 42, Section 1983 of the United States Code for
violations of the Fourteenth Amendment to the United States Constitution” for a variety of
allegations, which appear to capture all except those raised under state law. 	[Doc. 1 at ¶ 4].
Consistent with its ruling on Defendant Macias’s Motion for Partial Summary Judgment [Doc.
187], the Court construes Plaintiff’s claims against Defendant Wilson in his individual capacity as
raised under the Fourteenth Amendment’s due process clause. 	See Barrie v. Grand Cnty., 119
F.3d 862, 866 (10th Cir. 1997) (observing that “claims based on a jail suicide are considered and
treated as claims based on the failure of jail officials to provide medical care for those in their
custody,” and that right arises under the Fourteenth Amendment for pretrial detainees). This same
analysis holds with respect to the claims raised against Defendants Wells and Shields in their
respective individual capacities.
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Cir. 2000). Deliberate indifference includes two components: one objective, and one subjective.
The objective component is met if the deprivation is ‘sufficiently serious.’” Id. at 1209 (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In the context of liability for prison suicide, “the
risk of, or potential for, suicide involves a sufficiently serious medical need and/or harm such that
the objective prong . . . is met.” duBois v. Payne Cnty. Bd. of Cnty. Comm’rs, 543 F. App’x 841,
846 (10th Cir. 2013). As such, the relevant inquiry for this Court in determining whether there is
a cognizable Fourteenth Amendment violation is whether Plaintiff has adduced sufficient evidence
to meet the subjective prong. See [Doc. 102 at 20].
The subjective component of a deliberate indifference claim “is met if a prison official
‘knows of and disregards an excessive risk to inmate health or safety.’” Sealock, 218 F.3d at 1209
(quoting Farmer, 511 U.S. at 837). 	Mere negligence, however, is not sufficient. 	Farmer, 511
U.S. at 835. Put differently, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and [ ]he must also draw the
inference.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837).
In the case of an inmate’s death, “a ‘mere opportunity for suicide, without more,’ is not enough to
impose . . . liability.” Yazzie v. Bd. of Cty. Comm’rs of San Juan Cnty., No. CV 12-479 KG/GBW,
2014 WL 12786915, at *4 (D.N.M. Oct. 16, 2014). 	Defendant Wilson has invoked qualified
immunity to shield himself from liability as an individual and a supervisor by arguing that Plaintiff
has failed to establish either a cognizable constitutional violation or that such violation was clearly
established as of November 2019. [Doc. 102 at 19–22].
Cognizable Fourteenth Amendment Violation. 	The County Defendants argue that the
Estate’s individual capacity claim fails on the “latter prong of deliberate indifference, as the Estate
has failed to show Wilson subjectively disregarded a substantial risk that Maes was going to
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commit suicide.” [Doc. 102 at 20]. The record reflects the following undisputed facts. Defendant
Wilson was present at the SCJ on the night of November 16, 2019, at least in an attempt to fix a
radio. [Doc. 102 at ¶ 11; Doc. 124 at 3, ¶ 13]. Upon Defendant Wells’s arrival at the SCJ with
Mr. Maes, Defendant Wilson assisted in placing Mr. Maes into a jail uniform and into his cell.
[Doc. 102 at ¶ 18; Doc. 124 at 4, ¶ 18]. But for another inmate, Mr. Maes would have been placed
in the “tank” that is designed to house inmates who have been placed on suicide watch and those
who are intoxicated or are displaying behavioral problems. [Doc. 102 at ¶ 16; Doc. 124 at 1]. He
heard Mr. Maes say “I’m trying to kill myself,” and Defendant Wilson responded by asking
“You’re trying to kill yourself right now?” [Doc. 102 at ¶ 22; Doc. 124 at 4, ¶ 22; Doc. 102-1 at
185:19–24; 226:23–227:1; 263:18–23]. He also observed Mr. Maes striking his head against the
cell wall, [Doc. 124-1 at 91:2–8], believed he was eligible for treatment at a detox center, [id. at
253:15–20], and thought “something more” should be done to treat him, [id. at 253:21–254:3]. In
response to a question about his training on how to respond in any specific way to an inmate who
is making statements about suicide, Defendant Wilson testified “[i]f the totality is such that you
were to call mental health and you actually know or are convinced that this is a situation where
they are suicidal, then you call mental health.” [Doc. 124-1 at 80:25–81:8]. At some point during
the night, Defendant Shields made a call to mental health. [Doc. 102 at ¶ 29 (citing Doc. 102-5 at
61:13–16; 63:2–6); Doc. 124 at 5, ¶ 29].
The record also reflects at least the following disputed facts or inconsistencies. The Parties
dispute Mr. Maes’s demeanor at the SCJ, i.e., whether Mr. Maes was “funny, lighthearted, [and]
cordial,” [Doc. 102 at ¶ 18], or whether he was “gloomy, intoxicated, [and] inflicting self-harm
using his head,” [Doc. 124 at 4, ¶ 18]. 	To that end, Defendant Wilson testified that “[e]very
interaction [he] had with [Mr. Maes], he was funny, light-hearted, cordial,” [Doc. 102-1 at 186:25–
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187:1], 	but 	Defendant 	Shields 	testified 	that 	Mr. 	Maes 	was 	“yelling, 	and 	being 	a 	little
noncompliant” and was “just making a scene.” 	[Doc. 102-6 at 44:18–24]. 	Defendant Shields
testified that the standard operating procedures indicated that she needed to talk to her supervising
officers about the possibility of a suicide watch, and she called Defendant Wilson to come to the
station. [Id. at 52:11-16]. But Defendant Wilson testified that he was “called in that night to reset
our radio console.” [Doc. 124-1 at 20:11–16]. Defendant Wilson originally testified that he only
became aware of Mr. Maes banging his head against the wall after the fact. [Id. at 184:22–25],
but later conceded that he saw Mr. Maes hit his head once, [id. at 185:11–14], and Defendant
Shields also testified that Defendant Wilson was part of a group that she overheard discussing that
Mr. Maes was hitting his head, [Doc. 102-6 at 51:6–13]. Defendant Wells testified that, after a
conversation with Corporal Steve Hansen (“Corporal Hansen”), she informed Defendant Wilson
of her own conversation with Corporal Hansen in which Corporal Hansen confirmed that Mr. Maes
needed to be put on suicide watch; mental health needed to be notified; and Mr. Maes could not
be released until he was evaluated by mental health. [Doc. 113-3 at 128:4–129:21]. Defendant
Wilson testified that he had no understanding of the conversation between Deputy Wells and
Corporal Hansen. [Doc. 124-1 at 256:6–10].13 Defendant Wilson testified that he was not aware
of the attempt to call mental health at the time, [id. at 107:20–108:5], but Defendant Shields
testified that she told Defendant Wilson that mental health did not answer, [Doc. 102-6 at 61:23–
62:5].
13 On Reply, the County Defendants do not dispute Defendant Wells’s testimony about the
substance of her conversation with Corporal Hansen, or that she relayed her opinions about how
Mr. Maes needed to be treated or her conversation with Corporal Hansen to Defendant Wilson.
[Doc. 142 at 11–13].
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“Determining whether a defendant possessed actual knowledge of the substantial risk of
harm is a question of fact and can be proven in the usual ways, including by circumstantial
evidence.” See Est. of Roundtree by & through Roundtree v. Correct Care Sols., LLC, No. 19-cv-
00167-RBJ, 2021 WL 981309, at *9 (D. Colo. Mar. 16, 2021). “[T]here is no requirement that
defendants have the express intent to harm the victim of the alleged indifference.” 	Id. 	(citing
Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996)). Further, a plaintiff is not required to
“show that a prison official acted or failed to act believing that harm actually would befall an
inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial
risk of harm.” Id. (citing Farmer, 511 U.S. at 842).
While Defendant Wilson testified that he did not believe that Mr. Maes was actually
suicidal, [Doc. 102-1 at 187:5–11], this Court notes that at summary judgment, it may not weigh
facts or judge credibility. 	See Anderson, 477 U.S. at 255 (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a
directed verdict.”). Accordingly, this Court respectfully concludes that there is a genuine issue of
material fact as to whether Defendant Wilson “kn[ew] of and disregard[ed] an excessive risk to
[Mr. Maes’s] health or safety.’” Sealock, 218 F.3d at 1209.
Clearly Established. 	Having found that the above factual disputes could lead a jury to
reasonably conclude that Defendant Wilson knew of and disregarded an excessive risk to Mr.
Maes’s 	health 	or 	safety, 	this 	Court 	addresses 	the second 	prong—whether 	the 	contested
constitutional right was “clearly established” as of November 2019. 	The Tenth Circuit has
explained the “clearly established” prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right. Although
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plaintiffs can overcome a qualified-immunity defense without a favorable case
directly on point, existing precedent must have placed the statutory or constitutional
question beyond debate. The dispositive question is whether the violative nature
of the particular conduct is clearly established. . . . Qualified immunity protects all
but the plainly incompetent or those who knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted).
“Ordinarily, a plaintiff may satisfy this clearly-established-law standard by identifying an on-point
Supreme Court or published Tenth Circuit decision that establishes the unlawfulness of the
defendant’s conduct,” or “the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th
Cir. 2019) (quotation and brackets omitted). “[T]he precedent must have clearly established the
right in light of the specific context of the case, not as a broad general proposition.” Frasier v.
Evans, 992 F.3d 1003, 1014 (10th Cir. 2021) (quotation omitted). The Tenth Circuit employs a
sort of sliding-scale analysis in analyzing precedent, under which “the more obviously egregious
the conduct in light of prevailing constitutional principles the less specificity is required from prior
case law to clearly establish the violation.” Browder v. City of Albuquerque, 787 F.3d 1076, 1082
(10th Cir. 2015).
Plaintiff bears the burden of demonstrating that the law was clearly established at the
relevant time, Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337
(10th Cir. 2000), and should cite to “what [s]he thinks constitutes clearly established law,” Crane,
15 F.4th at 1303. Plaintiff appears to concede that there is no Supreme Court or Tenth Circuit case
law that reflects the same or substantially similar facts as this case. [Doc. 124 at 26–27]. Instead,
Plaintiff argues that “[b]y November 2019, it was clearly established that a jailer must act in
response to a substantial risk of serious harm, and in the specific context of suicide prevention, an
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official who consciously disregards an obvious and serious medical need may violated clearly
established law even if there is no case directly on point.” [Id. at 26 (quotation omitted)].
The Court first notes that purported failures, i.e., that Defendant Wilson failed to take more
action when (1) he heard Mr. Maes mention that he was attempting to kill himself once, (2) he
observed Mr. Maes striking his head, (3) he believed Mr. Maes was eligible for detox, and (4) he
believed “something more” needed to be done for Mr. Maes, [Doc. 124 at 27–28]—standing
alone—would not persuade this Court that a clearly-established constitutional right existed.
Indeed, the Tenth Circuit has held that a single suicidal remark does not give rise to deliberate
indifference to a substantial risk of suicide. See, e.g., Daniels v. Glase, 198 F.3d 257, 1999 WL
1020522, at *5 (10th Cir. 1999) (unpublished table decision) (no deliberate indifference where
decedent committed suicide after “suggesting that the thought of suicide had crossed his mind”);
Carey v. Buitrago, No. 19-cv-02073-RM-STV, 2020 WL 3620324, at *9 (D. Colo. Mar. 18, 2020),
report and recommendation adopted, 2020 WL 1921756 (D. Colo. Apr. 21, 2020); Hensley v.
Bucks Cnty. Corr. Facility, No. 15-6098, 2016 WL 4247637, at *11 (E.D. Penn. Aug. 11, 2016)
(an inmate’s single statement, “I’m suicidal put me on suicide watch,” to a prison official as the
inmate was being moved from one cell to another was not an “obviously serious suicide threat”).
Cf. Cox v. Glanz, 800 F.3d 1231, 1250 (10th Cir. 2015) (declining to hold jail officials liable when
decedent inmate appeared “fine” to the officials). Similarly, had Defendant Wilson only observed
Mr. Maes banging his head against the wall, this Court would follow precedent that holds “strange
behavior alone, without indications that that behavior has a substantial likelihood of taking a
suicidal turn,” cannot give rise to deliberate indifference liability. See Est. of Novack v. Cnty. of
Wood, 226 F.3d 525, 530 (7th Cir. 2000). Nor does behavior that is “susceptible to a number of
interpretations”—even where it may “arguably be viewed as” a suicidal characteristic—give rise
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to a clearly established deliberate indifference claim as of November 2019. 	Heidel v. Mazzola,
851 F. App’x 837, 840 (10th Cir. 2021). Mr. Maes’s intoxication alone also does not indicate a
risk of suicide. See, e.g, Est. of Hocker v. Walsh, 22 F.3d 995, 1000 (10th Cir. 1994) (no deliberate
indifference where detainee was severely intoxicated prior to committing suicide and prison
officials did not provide her with medical treatment); Eggert v. Chaffee Cnty., No. 10-cv-01320-
CMA-KMT, 2011 WL 1259616, at *3 (D. Colo. Mar. 29, 2011) (“[I]ntoxication itself is not
enough to indicate a risk of suicide. Nothing in the facts alleged, even when taken as true, gives
rise to the inference that the jail officials knew that [decedent] was suicidal. In short, Plaintiffs
have failed to state a claim that would allow a reasonable inference that the jail officials were
deliberately 	indifferent.”). 	Even 	Defendant 	Wilson’s 	statement 	to 	Defendant 	Wells 	that
“something more needed to be done” for Mr. Maes alone would not persuade the Court that
Defendant Wilson was on notice that his failure to act could give rise to an extant clearly-
established constitutional violation.
But the aggregation of these risk factors, along with construing all inferences of the
disputed facts in favor of the Estate, leads this Court to conclude that despite the lack of a Supreme
Court or Tenth Circuit case that has facts on all fours, it was clearly established as of November
2019 that prison officials are deliberately indifferent if they fail to take reasonable steps to protect
a pretrial detainee or an inmate from suicide when they have subjective knowledge that person is
a substantial suicide risk. Crane, 15 F.4th at 1307 (citing Cox, 800 F.3d at 1248–49). In Elliott v.
Cheshire County, 940 F.2d 7 (1st Cir. 1991), the Court of Appeals for the First Circuit (“First
Circuit”) affirmed the denial of summary judgment in light of the disputed, material fact that the
plaintiff’s threats of self-harm had been reported to the defendants. 	Id. at 12. 	Here, Defendant
Wilson not only observed Mr. Maes’s head banging, but also undisputedly heard, and responded
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to, Mr. Maes’s statement that he was attempting to kill himself. In addition, Defendant Wilson
admits that, had the suicide prevention “tank” been open that night, he would have placed Mr.
Maes in that tank. [Doc. 102 at ¶ 16; Doc. 124 at 1]. And at least two others—Defendants Shields
and Wells—testified that they each directly interacted with Defendant Wilson regarding placing
Mr. Maes on suicide watch. 	See [Doc. 102-6 at 52:11–16 (Defendant Shields); Doc. 124-11 at
117:23–118:7 (Defendant Wells)]. 	Given that the resolution of whether Defendant Wilson
recklessly disregarded a substantial risk of suicide in light of these events requires an evaluation
of the credibility of the witnesses and the weighing of evidence, this Court concludes that such
functions can only be accomplished by the factfinders at trial.14 Elliott, 940 F.2d at 12.
As such, the Court respectfully DENIES the County Defendants’ Motion with respect to
Plaintiff’s claim against Defendant Wilson in his individual capacity in light of this Circuit’s
qualified immunity doctrine.
2. 	Count Six: Defendant Wilson – Supervisory Liability
Count Six involves claims against Defendant Wilson in his individual capacity, though this
time alleging that he “failed to provide adequate supervision over the SCJ with deliberate
indifference to the consequences.” [Doc. 1 at ¶ 195]. Plaintiff claims that Defendant Wilson “is
responsible for supervising the operational aspects of the SCJ,” and that this failure to supervise
“was the direct and proximate cause of the injuries and damages” suffered by Plaintiff. [Id.]. This
is thus a claim for supervisory liability raised against Defendant Wilson in his individual capacity
for violation of Mr. Maes’s Fourteenth Amendment rights pursuant to § 1983.
14 This Court finds Turney v. Waterbury, 375 F.3d 756 (8th Cir. 2004), cited by Plaintiff, to be
distinguishable. In Turney, the reversal of qualified immunity was to an individual Defendant who
had knowledge of Turney’s prior suicide attempt. Here, there is no evidence (or allegation) that
any of the Defendants knew that Mr. Maes had suffered from mental health issues; previously
voiced suicidal ideations; or previously attempted suicide.
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Supervisory liability under § 1983 is distinct from a theory of respondeat superior.15 Dodds
v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010). On the one hand, “a supervisory relationship
alone is insufficient for liability under § 1983.” Poolaw v. Marcantel, 565 F.3d 721, 732 (10th
Cir. 2009). On the other hand, a defendant may be liable if a plaintiff can show that an “affirmative
link exists between the [constitutional] deprivation and either the [officer’s] personal participation,
his exercise of control or direction, or his failure to supervise.” Green v. Branson, 108 F.3d 1296,
1302 (10th Cir. 1997). That showing can be made with “deliberate, intentional act[s]” that “caused
or contributed to the . . . violation.” Jenkins v. Wood, 81 F.3d 988, 994–95 (10th Cir. 1996). The
Tenth Circuit has elucidated a three-part test clarifying Plaintiff’s burden in demonstrating
supervisory liability under § 1983:
A plaintiff may therefore succeed in a § 1983 suit against a defendant-supervisor
by 	demonstrating: 	(1) 	the 	defendant 	promulgated, 	created, 	implemented 	or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.
Dodds, 614 F.3d at 1199.
Defendant Wilson is responsible for overseeing the SCJ, and was present at the SCJ on the
night of Mr. Maes’s death, at least in part, to repair the dispatcher’s radio console. [Doc. 102 at 4;
Doc. 124 at 3, ¶ 13]. But the mere fact that Defendant Wilson was present at the jail on November
16, 2019, or the fact that he was responsible for overseeing its operation, does not establish that he
is liable as a supervisor under § 1983. Rather, “prison officials are deliberately indifferent if they
fail to take reasonable steps to protect a pre-trial detainee or an inmate from suicide when they
15 The Supreme Court has characterized the term “supervisory liability” as “a misnomer,”
inasmuch as it may imply pure vicarious (that is, respondeat superior) liability. Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009). The Court employs the term here solely for the sake of convenience,
and recognizes that supervisory liability in the § 1983 context is not coextensive with traditional
theories of vicarious liability.
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have subjective knowledge that person is a substantial suicide risk.” Crane, 15 F.4th at 1307. As
such, Plaintiff’s claim requires “a particularized state of mind: actual knowledge by a prison
official of an individual inmate’s substantial risk of suicide.” 	Cox, 800 F.3d at 1249. 	That
knowledge could have come from a subordinate even if a supervisory defendant “had no personal
interaction with [the prisoner] or direct and contemporaneous knowledge of his treatment.”
George v. Beaver Cnty., 32 F.4th 1246, 1256 (10th Cir. 2022).
For the reasons articulated above—including his own interactions with Mr. Maes and
Defendant Shields’s testimony about asking about suicide watch and informing Defendant Wilson
that she had called mental health—this Court respectfully DENIES summary judgment as to Count
Six.16
3. 	Count Nine: Defendant Wells – Individual Liability
Count Nine of Plaintiff’s Complaint is raised against Defendant Wells and is the sole claim
in which she is named. 	[Doc. 1 at ¶¶ 200–01]. 	Plaintiff’s allegations mirror Count Seven in
alleging that she “exhibited deliberate indifference to the welfare of [Mr. Maes] despite actual
knowledge that [Mr. Maes] had communicated suicidal ideation at the SCJ while appreciating that
[Mr. Maes] was extremely intoxicated.” [Id. at ¶ 201]. Defendant Wells also invokes qualified
immunity—arguing first, that she did not act with deliberate indifference to Mr. Maes’s serious
medical needs, and second, that no clearly established law existed in November 2019 that would
have advised a deputy in her position that her conduct would constitute a constitutional violation.
[Doc. 104 at 5–9]. Plaintiff disagrees, pointing to Tenth Circuit and out-of-Circuit law for support.
[Doc. 113 at 8–9 (citing Rife v. Jefferson, F. App’x 377, 386 (10th Cir. 2018); McCowan, 945 F.3d
16 This Court acknowledges that, though it concluded that Plaintiff had failed to prove that the loss
of the recording of Defendant Shields making a call to mental health prejudiced the Estate, that
recording could have established facts favorable to either side.
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at 1276; Conn. v. City of Reno, 591 F.3d 1081, 1102 (9th Cir. 2010); Cavalieri v. Shepard, 321
F.3d 616, 623 (7th Cir. 2003); Snow v. City of Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005);
Gordon v. Kidd, 971 F.2d 1087, 1096–97 (4th Cir. 1992))]. 	Defendant Wells replies by
distinguishing these cases, and arguing, inter alia, that (1) the alleged suicidal ideation expressed
to Defendant Wells while en route to the SCJ is based solely on inadmissible hearsay and (2) the
suicidal statement she overheard at the SCJ is insufficient evidence to constitute a violation of
clearly established law.
Inadmissible Hearsay. Plaintiff contends that Defendant Wells first became aware of Mr.
Maes’s risk of suicide while she was transporting him from the site of his arrest to the SCJ. [Doc.
113 at 3, ¶ 20]. Defendant Wells denies that any such statement was made. [Doc. 104 at ¶¶ 19–
20]. Plaintiff points to a Narrative Report prepared by Sergeant Richard Pascoe of the Saguache
County Sheriff’s Office on November 25, 2019 for support. 	[Doc. 113-1]. 	Sergeant Pascoe
responded to the SCJ on the morning of November 17, 2019, after learning of Mr. Maes’s death.
[Id. at 1]. While present at the jail, he reports that Defendant Wells arrived because “she had called
earlier in the day to check on [Mr.] Maes because she was concerned about him from the previous
evening.”17 [Id.]. Pascoe records asking Wells why she was concerned:
Wells stated she was concerned due to his level of intoxication and by some of the
things he said. I asked what [Mr.] Maes said and she stated that he had made the
statement that he may as well just kill himself. I asked what she did when he made
the statement. She stated she took it as just being an off handed comment and she
did not really think he meant anything by the statement. She did not believe by his
actions and tone he was going to harm himself.
17 Notably, Defendant Wells denies speaking to Sergeant Pascoe about the case at all. [Doc. 113-
3 at 135:24–136:1 (“I never spoke to Sergeant Pascoe about this case, never.”)]. She also denies
mentioning anything regarding suicide. [Id. at 137:3–6 (“Nothing—here it says I called because I
was concerned about the level of intoxication and then—and about this statement that he killed
himself. Oh, none of this ever came up.”)].
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[Id. at 1]. Relying on the fact that Defendant Wells referenced the “things” (plural) Mr. Maes said,
Plaintiff argues that the statement “I may as well just kill myself” is distinct from the “I’m trying
to kill myself right now” statement that she overheard at the jail. 	[Doc. 113 at 3–4]. 	Plaintiff
argues the statement must have been made in the car because of the timing of a subsequent call to
Corporal Steve Hansen. [Id. at 4].
At summary judgment, the Court takes the facts in the light most favorable to the non-
moving party. 	Rowe v. United Airlines, Inc., 62 F. Supp. 3d 1225, 1231 (D. Colo. 2014). 	Yet,
critically, “[h]earsay testimony that would be inadmissible at trial cannot be used to defeat a motion
for summary judgment because ‘a third party’s description of a witness’ supposed testimony is not
suitable grist for the summary judgment mill.’” Adams v. Am. Guarantee and Liab. Ins. Co., 233
F.3d 1242, 1246 (10th Cir. 2000) (quoting Wright–Simmons v. City of Okla. City, 155 F.3d 1264,
1268 (10th Cir. 1998)). Defendant Wells therefore argues that Sergeant Pascoe’s report contains
two levels of hearsay: (1) the report itself, which she contends is not admissible as a record of a
regularly-conducted activity under Federal Rule of Evidence 803(6), and (2) Defendant Wells’s
statement reflecting Mr. Maes’s statement, which she argues is not admissible under any applicable
hearsay exception. [Doc. 150 at 4–5].
The Court respectfully agrees with Defendant Wells that Mr. Maes’s statement as recorded
in Sergeant Pascoe’s Report constitutes inadmissible hearsay. While true that “[i]n a civil case,
police reports may be admissible as public records under rule 803(8)(A)(ii) of the Federal Rules
of Evidence,” that exception “covers only information that the officer observed and recorded in
the police report, and not information that the officer received from third parties.” Dorato v. Smith,
108 F. Supp. 3d 1064, 1071 n.6 (D.N.M. 2015). 	In this case, Mr. Maes’s alleged statement—
something to the effect of “I may as well kill myself”—was not personally observed by Sergeant
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Pascoe, but rather, reflects Defendant Wells’s alleged conversation with Mr. Maes. Because the
statement, as recorded in the police report, constitutes inadmissible hearsay, the Court cannot
consider it at summary judgment. See Fed. R. Evid. 805 (providing that hearsay within hearsay is
not excluded by the rule against hearsay” only “if each part of the combined statements conforms
with an exception to the rule” (emphasis added)).
Qualified Immunity. Setting aside consideration of the inadmissible hearsay offered by
Plaintiff, the Court must still conduct the two-step qualified immunity analysis detailed above:
first, resolving whether Defendant Wells violated Mr. Maes’s constitutional rights, and second,
resolving whether the right at issue was clearly established at the time of the alleged unlawful
activity. Castillo v. Day, 790 F.3d 1013, 1019 (10th Cir. 2015). The Court finds that the second
prong is dispositive and will address it first.
To briefly recap Defendant Wells’s actions on the night of November 16, 2019, she arrested
Mr. Maes on an outstanding warrant for failure to appear at a hearing regarding a traffic ticket.
[Doc. 104 at ¶ 11]. He was heavily intoxicated at the time, and she transported him to the SCJ.
[Id. at ¶¶ 7, 13]. She—along with Defendants Wilson and Macias—was present when Mr. Maes
said “I’m trying to kill myself right now.” [Id. at ¶ 19]. She advised him to lie down, which Mr.
Maes refused to do. [Doc. 102 at ¶ 21]. Defendant Wells remained in the dispatch area of the SCJ
talking with Defendant Shields during the approximate time that Mr. Maes committed suicide.
[Doc. 102 at ¶¶ 31–32; Doc. 124 at 1]. Upon departing the SCJ, Defendant Wells testified that she
had no concerns for Mr. Maes’s welfare because she “did what[] [she] needed to do.” [Doc. 113-
3 at 153:5–14]. It is also undisputed that Defendant Wells was not employed at the SCJ; rather, in
November 2019, she was a Saguache County Sheriff’s Deputy who was primarily assigned to work
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court security in the Saguache County Courthouse and assisted as a road deputy on weekends when
needed. [Doc. 104 at 1; Doc. 113 at 1, ¶ 1].
Broadly speaking, Plaintiff alleges that Defendant Wells acted with deliberate indifference
toward Mr. Maes’s serious medical needs from the moment of his arrest until his suicide while
detained at the SCJ. [Doc. 113 at 6–11]. She argues that, prior to November 2019, “it was clearly
established in the Tenth Circuit that an arresting officer has a duty to respond to an arrestee with a
serious medical condition.” [Id. at 8]. Plaintiff thus claims that Defendant Wells’s failure to seek
care for Mr. Maes after he informed her of his suicidal ideation constitutes a violation of clearly
established law.
The Court respectfully disagrees. 	Plaintiff argues extensively that Defendant Wells
“concealed” at least one suicidal statement made prior to his arrival at the SCJ, but there is no
admissible evidence that there was any suicidal statement to conceal in the first place. Therefore,
the Court is left with Defendant Wells’s undisputed testimony that she never spoke to Sergeant
Pascoe, that she never told Sergeant Pascoe that Mr. Maes had expressed suicidal ideation to her
prior to his arrival at the jail, and that Mr. Maes never actually expressed suicidal ideation to her
prior to her arrival at the jail. See [Doc. 113-3 at 135:6–136:18].18
18 Because the Court cannot consider Plaintiff’s allegation that Mr. Maes expressed suicidal
ideation while en route to the jail, the argument that Defendant Wells violated Mr. Maes’s
constitutional rights by not seeking medical attention also fails. Citing Rife, 742 F. App’x at 386,
Plaintiff points out the Tenth Circuit’s conclusion that “it has been clearly established for more
than a decade that when an arrestee not only informs an arresting officer of the internal symptoms
of a serious medical condition but also displays outward signs of the need for medical attention,
the arresting officer violates the Fourteenth Amendment by failing to seek such care.” [Doc. 113
at 8]. 	Here, there is no admissible evidence that Mr. Maes informed Defendant Wells of prior
suicidal thoughts, and Plaintiff’s Fourteenth Amendment claim against Defendant Wells is not
premised on a failure to seek medical treatment for his obvious intoxication; as such, Rife is
inapposite.
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Based on the record before the Court, the only medical condition that was apparent to
Defendant Wells at the time of Mr. Maes’s arrest was his heavy intoxication. 	See [Doc. 104 at
¶ 7]. In addition, even assuming that Defendant Wells mischaracterized Mr. Maes as combative
to avoid taking him to detox, see [Doc. 113 at 2, ¶ 15], Plaintiff presents no clearly-established law
that would have placed Defendant Wells on notice that transporting an intoxicated individual to a
jail instead of detox would constitute deliberate indifference to that individual’s substantial risk of
suicide. 	See, e.g., Colburn v. Upper Darby Twp., 946 F.2d 1017, 1026 (3d Cir. 1991) (holding
that a detainee’s intoxication is insufficient to give jail officials knowledge that the particular
detainee poses a suicide risk); Belcher v. Oliver, 898 F.2d 32, 35 (4th Cir. 1990) (same); State
Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983) (same).
Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), established that an intoxicated
individual who was unconscious upon his admission to a county jail prior to his death had
experienced a deprivation of his constitutional rights when he was not transported to a hospital.
Id. at 308. Since Garcia, however, the Tenth Circuit has been careful to distinguish “intoxication”
from “unconsciousness,” and there is no evidence in this record to support the notion that Mr.
Maes was unconscious upon his arrest, arrival at the jail, or placement in his cell. 	See Est. of
Hocker, 22 F.3d at 999. Instead, the undisputed facts establish that Mr. Maes was conscious and
interacting with Defendants. See, e.g., [Doc. 104 at ¶ 19; Doc. 113 at 3, ¶ 19]. As such, there is
no clearly-established law that would have required Defendant Wells to transport Mr. Maes to a
detox center rather than to the SCJ.
It is undisputed that once Mr. Maes arrived at the SCJ that Defendant Wells observed him
striking his head and stating that “I’m trying to kill myself right now.” See, e.g., [Doc. 104 at ¶ 19;
Doc. 113 at 3, ¶ 19]. But as observed above, no Tenth Circuit or Supreme Court authority indicates
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that a single suicidal remark gives rise to deliberate indifference to a substantial risk of suicide.
See, e.g., Daniels, 1999 WL 1020522, at *5 (no deliberate indifference where decedent committed
suicide after “suggesting that the thought of suicide had crossed his mind”); Carey, 2020 WL
3620324, at *9.
Plaintiff also claims that Defendant Wells intentionally interfered with Mr. Maes’s need
for medical care. [Doc. 113 at 10]. She contends that Defendant Wells was aware that Mr. Maes
was not combative and that he was “acutely suicidal,” and she demonstrated deliberate indifference
to Mr. Maes’s medical needs in failing to provide that information to the booking officer at the
SCJ. 	[Id.]. 	Plaintiff accurately notes that deliberate indifference may be shown “not only by
failure to provide prompt attention to the medical needs of a pre-trial detainee, but also by
intentionally interfering with the treatment once prescribed.” Martin v. Bd. of Cnty. Comm’rs of
Cnty. of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990) (emphasis added). Yet Plaintiff’s argument
still falls short; the record bears out no prescribed medical treatment, and the thrust of Plaintiff’s
other arguments is that Defendant Wells played a central role in denying Mr. Maes any treatment—
prescribed or otherwise—in the first place. Indeed, elsewhere in the record, Plaintiff contends that
Defendant Wells informed Defendant Wilson of the need to put Mr. Maes on suicide watch, [Doc.
124 at 27], but there is no evidence that Defendant Wells had either: (1) the responsibility or the
authority to place Mr. Maes on suicide watch or (2) prevented any other individual from doing so.
Finally, Plaintiff points to Defendant Wells’s knowledge of a prior suicide at the SCJ—
that of Felix Granados in 2008—involving substantially similar circumstances. [Dec. 113 at 10].
Defendant Wells was called to the SCJ following the discovery of Mr. Granados’s body; when she
arrived, he was lying on his left side with a shower curtain tied around his neck. [Doc. 113-7 at
17]. Mr. Granados was later determined to be dead. [Id.]. Plaintiff argues that this knowledge of
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a prior suicide at the SCJ—committed using substantially the same methodology as that employed
by Mr. Maes—renders Defendant Wells’s inaction “even more shocking.” [Doc. 113 at 10–11].
But Plaintiff directs the Court to no clearly-established law holding that knowledge of a prior
suicide in a facility required any particular action from Defendant Wells—who is not an employee
of the SCJ. Indeed, Plaintiff’s argument sidesteps an essential point: that, in order to establish that
Defendant Wells acted with deliberate indifference, Plaintiff must show “actual knowledge of the
specific risk of harm [to the detainee] . . . or that the risk was so substantial or pervasive that
knowledge can be inferred.” 	Berry v. City of Muskogee, 900 F.2d 1489, 1498 (10th Cir. 1990)
(emphasis added). 	It follows that knowledge of a prior suicide more than a decade prior to
November 2019 does not speak to the risk of Mr. Maes’s suicide. 	See Cox, 800 F.3d at 1251
(indicating that state actor’s knowledge of that particular inmate’s risk of suicide would be
sufficient to violate clearly established law prohibiting deliberate indifference to significant risk
of serious harm); Matis v. Johnson, 262 F. App’x 671, 673 (5th Cir. 2008) (jury could conclude
that intake nurse at juvenile facility acted with deliberate indifference because she “had actual
knowledge of [the detainee’s] prior suicide attempt and failed to properly complete the intake form
that would have revealed [the detainee’s] suicide risk to other staff members”). In sum: Plaintiff
has not overcome the burden to show that Defendant Wells violated any clearly-established law in
her arrest of, transport of, or interactions with Mr. Maes. As such, qualified immunity shields her
from liability with respect to Count Nine and the Defendant Wells’s Motion for Summary
Judgment is accordingly GRANTED.
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4. 	Count Ten: Defendant Shields – Individual Liability
The County Defendants next argue for summary judgment with respect to the § 1983 claim
raised against Defendant Shields in her individual capacity.19 [Doc. 1 at ¶¶ 202–03]. As with the
other defendants sued in their individual capacities, Defendant Shields’s invocation of qualified
immunity shifts the burden to Plaintiff to demonstrate “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Quinn, 780 F.3d at 1004. Plaintiff cross-references Section III(H)(1) of the Response
to demonstrate that Defendant Shields is not entitled to qualified immunity. [Doc. 124 at 30]. This
section addresses qualified immunity in the context of claims raised against Defendant Wilson;
liberally construed, it appears Plaintiff is again conceding the absence of cases with materially
similar facts and is relying on the alleged obviousness of the constitutional violation to satisfy the
“clearly established” requirement. See [id. at 26]. Given this reference, the Court will determine
whether Plaintiff has overcome the burden to demonstrate that Defendant Shields’s conduct was
so obviously unlawful that she violated Mr. Maes’s clearly-established rights. See Browder, 787
F.3d at 1082.
In the Complaint, Plaintiff argues that Defendant Shields was deliberately indifferent to
Mr. Maes’s welfare despite appreciating his intoxication. [Id. at ¶ 203]. The County Defendants
argue that “[o]ther than observing [Mr.] Maes when he walked into the Jail, in which she described
him as intoxicated and high,” she never communicated with Mr. Maes or heard any suicidal
ideation. [Doc. 102 at 24]. Plaintiff responds by noting that Defendant Shields was advised that
Mr. Maes had been banging his head on his cell wall and could be suicidal, proceeded to call a
19 The County Defendants characterize this claim as Plaintiff’s “Eighth Claim for Relief.” [Doc.
102 at 24]. It is Plaintiff’s Tenth Claim for Relief. See [Doc. 1 at ¶¶ 202–03].
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mental health facility, and took no further action when the call went unanswered. 	[Doc. 124 at
30]. Plaintiff claims that this is evidence that Defendant Shields drew an inference of a suicide
risk. [Id.]. Further, Plaintiff contends that Defendant Shields was aware that standard operating
procedures were not followed with respect to potentially suicidal inmates, and that she failed to
observe the camera feeds given “task saturation.” [Id.].
Respectfully, these facts do not give rise to any violation of Mr. Maes’s clearly-established
constitutional rights. 	Defendant Shields never interacted with Mr. Maes and remained in the
dispatch area while Defendants Wilson, Wells, and Macias engaged with him after he was placed
in Cell One. She proceeded to call a mental health facility, and received no answer.20 Plaintiff
does not point to any case law—in this District, Circuit, or elsewhere—that would support the idea
that this behavior constitutes deliberate indifference to a substantial risk of suicide. 	Indeed, the
County Defendants note that there is no case law suggesting that a reasonable dispatcher in
Defendant Shields’s position would know to act when (1) supervision of inmates was not her
responsibility, (2) no direct interaction between the dispatcher and suicidal inmate occurred, (3) the
dispatcher did not believe the inmate was suicidal, and (4) the dispatcher did not hear the inmate
express any suicidal ideation. [Doc. 102 at 26].
The Court finds this lack of precedent instructive. At bottom, Plaintiff has not cited case
law that would serve to place Defendant Shields on notice that she was violating clearly established
law at any point during the evening of Mr. Maes’s suicide. Nor can this Court conclude that her
conduct was so obviously unlawful as to overcome qualified immunity. 	“Qualified immunity
protects all but the plainly incompetent or those who knowingly violate the law,” Aldaba, 844 F.3d
20 Plaintiff contends that this call demonstrates a belief that Mr. Maes was suicidal. [Doc. 124 at
30]. But Defendant Shields testified that “[she] didn’t know he was suicidal.” [Doc. 124-13 at
62:20].
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at 877, and the Court does not believe that Defendant Shields falls into either category. While she
might have observed Mr. Maes plan his suicide had she not been distracted by the lack of her radio
and conversation with Defendant Wells, [Doc. 124-13 at 68:16–22], such conduct is at most
negligent—not deliberately indifferent to Mr. Maes’s medical needs. See City of Canton v. Harris,
489 U.S. 378, 389 n.7 (1989) (noting that deliberate indifference requires a higher degree of fault
than negligence, or even gross negligence); Est. of Hocker v. Walsh, No. CIV-92-855-H, 1993 WL
664646, at *9 (W.D. Okla. Jan. 14, 1993) (concluding that, “[a]bsent any knowledge of a risk that
[inmate] would commit suicide, the failure of jail personnel to take extra precautions, e.g., to
monitor her cell more frequently is, at best, negligence” (emphasis added)). The same is true of
her unanswered phone call to the mental health facility; while failure to follow up or inquire into
other resources may evidence negligent behavior, it does not rise to the level of deliberate
indifference. Finally, her failure to ensure that certain standard operating procedures for suicidal
inmates were followed on the night of Mr. Maes’s death does not rise to the level of deliberate
indifference because failing to follow operating procedures to their letter does not per se
demonstrate deliberate indifference. See Heidel, 851 F. App’x at 841 (citing Hovater v. Robinson,
1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (observing that “an officer’s failure to follow internal jail
policies does not automatically mean he or she acted with deliberate indifference”); Ulibarri v.
City & Cnty. of Denver, 742 F. Supp. 2d 1192, 1222 (D. Colo. Sept. 30, 2010) (“The failures
described, such as housing [inmate] in administrative segregation for his own safety, failing to
provide an interpreter for the medical screening, and perhaps not conducting regular rounds, are at
most negligent or ill-advised.”).
At bottom, “the Due Process Clause is simply not implicated by a negligent act of an
official,” see Daniels v. Williams, 474 U.S. 327, 328 (1986), as liability under § 1983 requires
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“more than ordinary lack of due care for the prisoner’s interests or safety,” Whitley v. Albers, 475
U.S. 312, 319 (1986). Plaintiff has adduced insufficient evidence of conduct by Defendant Shields
that a reasonable jury could conclude rises above negligence, and in any event has failed to
pinpoint any precedent that would place Defendant Shields on notice that her conduct violated Mr.
Maes’s constitutional rights.
Given the lack of any clearly established law that would have placed Defendants Wells or
Shields on notice that their actions were unconstitutional, qualified immunity shields them from
liability in their individual capacities. 	As such, summary judgment in the County Defendants’
favor is warranted on Count Ten and the Motion is accordingly GRANTED. 	Having resolved
these individual claims, the Court turns to a consideration of the County Defendants’ Motion with
respect to Plaintiff’s municipal liability claims.
III. 	Count One: Inadequate Physical Plant
Plaintiff’s first municipal liability claim is raised against the Board under § 1983, and
alleges that the SCJ’s physical plant was inadequate for, inter alia, failing to provide for the direct
supervision of intoxicated individuals expressing acute suicidal ideation, facilitating suicide by
using cells with exposed bars, and utilizing privacy curtains in cells with exposed bars. [Doc. 1 at
¶¶ 167–172]. Plaintiff claims that these deficiencies were the direct and proximate cause of Mr.
Maes’s injuries, and that they “presented a substantial risk of serious harm to intoxicated persons
with acute suicidal ideation, both individually and in combination.” 	[Id. at ¶¶ 169, 172]. 	The
County Defendants argue that summary judgment is warranted, given that Plaintiff did not show a
pattern of similar instances of constitutional violations. [Doc. 102 at 9]. They also point out that
the SCJ has one cell—defined elsewhere as the “tank”—used to house intoxicated inmates or those
with behavioral problems. [Id.]. Finally, they contend that accepting Plaintiff’s arguments “would
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render almost every small, rural community [jail] vulnerable to constitutional challenge.” [Id. at
10]. 	Plaintiff does not respond directly to these arguments, instead contending that the County
Defendants’ failure to address the “cumulative impact” and “highly predictive/plainly obvious
standard” is fatal to their Motion. [Doc. 124 at 13–14].
The deliberate indifference standard governs claims involving conditions of confinement
in jails and prisons. 	Wilson v. Seiter, 501 U.S. 294, 303 (1991). 	In the Tenth Circuit, a
“municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a
known or obvious risk that is very likely to result in the violation of a prisoner’s constitutional
rights.” Berry, 900 F.2d at 1496.
The Constitution “does not mandate comfortable prisons.”21 See Rhodes v. Chapman, 452
U.S. 337, 347 (1981). Because the sufficiency of a conditions of confinement claim depends upon
“the particular facts of each situation,” “the circumstances, nature, and duration of the challenged
conditions must be carefully considered.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)
(citations and internal quotation marks omitted). 	“It is important to consider the conditions of
confinement 	as 	a 	whole 	because 	several 	deprivations 	in 	combination 	may 	constitute 	a
constitutional violation when they have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need.” Mitchell, 80 F.3d at 1442 (internal quotation marks omitted).
Here, the Court is tasked with considering whether the deprivations outlined by Plaintiff
are sufficient to impose liability upon a municipality under § 1983. 	“[M]unicipalities and
municipal entities . . . are not liable under 42 U.S.C. § 1983 solely because their employees inflict
injury on a plaintiff.” 	Fofana v. Jefferson Cnty. Sheriff’s, No. 11-cv-00132-BNB, 2011 WL
21 While Rhodes addressed the Eighth Amendment, the Court’s analysis turns on the congruent
protections provided by the Fourteenth Amendment. Barrie, 119 F.3d at 868.
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780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell v. New York City Dep’t of Social Servs., 436
U.S. 658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, to
establish a county’s liability, the plaintiff must demonstrate three conditions. First, the plaintiff
must make a showing from the record that a municipal policy or custom directly caused his injury.
Id. Such a policy or custom must take one of the following forms:
(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.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation marks and
brackets omitted); see also Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770
(10th Cir. 2013) (“A challenged practice may be deemed an official policy or custom for § 1983
municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or
practice, a final decision by a municipal policymaker, or deliberately indifferent training or
supervision.”).
Second, and after identifying an official policy or custom, the plaintiff must demonstrate
causation by showing that the policy or custom “is the moving force behind the injury alleged.”
Cacioppo v. Town of Vail, 528 F. App’x 929, 931 (10th Cir. 2013) (quoting Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(same). 	Third and finally, the plaintiff must demonstrate “that the policy was enacted or
maintained with deliberate indifference to an almost inevitable constitutional injury.” Cacioppo,
528 F. App’x at 931 (quoting Schneider, 717 F.3d at 769).
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As an initial matter, the County Defendants concede that the SCJ is not perfect. They note
its age and size, and the undisputed facts suggest that certain improvements would aid in the
functioning of the SCJ. [Doc. 102 at ¶ 13; Doc. 124 at ¶ 13 (noting broken radio)]. But “jails can
almost always be better,” Est. of Morgan v. Toombs Cnty., 400 F.3d 1313, 1323 (11th Cir. 2005),
which leaves the Court to determine whether Plaintiff has outlined deficiencies sufficiently grave
to demonstrate deliberate indifference on the part of the Board.
Yet for the purposes of this analysis, it is enough for the Court to assume—without
deciding—that the continued existence and operation of the SCJ constitutes a challenged policy or
custom and that its physical plant was the moving force behind Plaintiff’s constitutional injuries.22
Even setting those threshold requirements aside, Plaintiff must still demonstrate that the continued
use of the SCJ was “maintained with deliberate indifference to an almost inevitable constitutional
injury.” 	Cacioppo, 528 F. App’x at 931 (emphasis added). 	As the Supreme Court has noted,
“[w]ith deliberate indifference lying somewhere between the poles of negligence at one end and
purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate
indifference with recklessness.” 	Farmer, 511 U.S. at 836. 	The Tenth Circuit is among those
Courts of Appeal. 	See Belcher v. United States, 216 F. App’x 821, 823–24 (10th Cir. 2007) .
Taking the record before it in the light most favorable to Plaintiff, the Court is unable to conclude
that the Board acted recklessly in continuing to fund and approve of the operation of the SCJ.
As the County Defendants point out, the SCJ was equipped with one cell that was
specifically designed to house inmates who are intoxicated or who are expressing behavioral
problems. 	[Doc. 102 at ¶ 2]. 	On the night of Mr. Maes’s suicide, that cell—the “tank”—was
22 Plaintiff suggests as much in the Complaint, contending that the Board “forc[ed]” the Sheriff’s
Office to use the SCJ with the deficiencies outlined therein. [Doc. 1 at ¶ 171].
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occupied by another inmate, necessitating his placement in another cell. [Id. at ¶¶ 16–17]. That
cell was, in turn, able to be monitored by the dispatcher through use of a video system and by the
jailer through use of physical checks. 	See [id. at ¶¶ 5–6]. 	The fact that no such checks were
performed at the moment Mr. Maes committed suicide was therefore not a flaw in the SCJ’s
physical plant, but—at most—a flawed implementation of an inmate check protocol. And even
then, there is no affirmative duty to constantly monitor inmates. Gaston v. Ploeger, 229 F. App’x
702, 711 (10th Cir. 2007) (“However, jailers are neither obligated nor able to watch every inmate
at every minute of every day.”).
In sum: taking these undisputed facts in the light most favorable to the non-moving party,
no reasonable juror could conclude that the Board’s policy or custom of continuing to operate the
SCJ was “maintained with deliberate indifference to an almost inevitable constitutional injury.”23
Cacioppo, 528 F. App’x at 931. As such, summary judgment in the Board’s favor is warranted
with respect to Plaintiff’s first claim and the Motion is respectfully GRANTED.
IV. 	Count Two: Inadequate Funding
Plaintiff’s second count is also directed at the Board, and raises a § 1983 conditions-of-
confinement claim predicated on inadequate funding. [Doc. 1 at ¶¶ 173–177]. She points to four
funding deficiencies in particular: (1) “a failure to adequately fund staffing, retention, and
supervision at the SCJ,” (2) “a failure to adequately fund the [Saguache County Sheriff’s Office]
to provide medical and mental health care for intoxicated persons with acute suicidal ideations,”
23 While demonstrating deliberate indifference is a high bar, the Tenth Circuit has noted that
challenges to the physical attributes of a jail may be more properly raised under a state law tort
theory of negligent design. Bame v. Iron Cnty., 566 F. App’x 731, 740 (10th Cir. 2014) (reasoning
that plaintiff’s “argument about the water pipe, the blind spot, and the lack of a surveillance camera
all sound remarkably like the tort of negligent design, a state remedy, not a constitutional
violation,” and granting summary judgment on § 1983 claim related to jail’s physical features).
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(3) “a failure to provide adequate funding for housing highly intoxicated persons expressing
suicidal ideation in other jurisdictions” despite knowledge of inadequacies at the SCJ that
increased the risk of harm to “a specific and reoccurring population of arrestees,” and (4) “a failure
to fund the construction of a jail that is adequate for the safekeeping of persons.” [Id. at ¶ 175].
Plaintiff claims that these decisions were undertaken with deliberate indifference to their
consequences, and that the alleged underfunding was the direct and proximate cause of the
damages suffered by Mr. Maes. [Id. at ¶ 174].
The County Defendants move for summary judgment on this claim, arguing, inter alia, that
“federal courts have been wary of imputing Monell liability on the basis of inadequate funding”
and that Plaintiff has failed to demonstrate a causal nexus between any damages and the Board’s
funding decisions. 	[Doc. 102 at 11]. 	Plaintiff counters by arguing that the Tenth Circuit has
recognized inadequate funding as a basis for municipal liability, and that the Board was aware of
understaffing and issues with the jail’s physical plant by at least 2016. [Doc. 124 at 17–18].
The Court’s analysis is governed by the same legal standards outlined with respect to
Plaintiff’s first claim—namely, that Plaintiff must demonstrate that a policy or custom was the
moving force behind a constitutional injury, and that it was enacted or maintained with deliberate
indifference to that almost inevitable injury. 	See Schneider, 717 F.3d at 770; Cacioppo, 528 F.
App’x at 931. While uncommon, however, the Court finds it settled that liability may rest against
a municipality where deliberate indifference is evidenced by funding decisions. 	Lopez v.
LeMaster, 172 F.3d 756, 763 (10th Cir. 1999), abrogated in part on other grounds, Brown v.
Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020) (denying summary judgment on Monell claim
where sheriff “told a jail investigator that the county commissioners failed to provide funding for
correction of deficiencies at the jail likely to lead to assaults against inmates even though such
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funding was required by [state] statutes”); Ramos v. Lamm, 639 F.2d 559, 573 n.19 (10th Cir.
1980) (“The lack of funding is no excuse for depriving inmates of their constitutional rights.”);
Pendleton v. Bd. of Cnty. Comm’rs for Okla. Cnty., No. CIV-18-707-G, 2019 WL 4752269, at *7
(W.D. Okla. Sept. 30, 2019) (“While budget appropriations and expenditures are not a ‘condition
of confinement’ per se, such appropriations and expenditures do, as Defendants concede, ‘impact
certain conditions of confinement,’ and can therefore produce unconstitutional jail conditions,
albeit indirectly.”).
As a threshold matter, Plaintiff has adduced evidence that the Board did not provide the
Sheriff’s Office with the full amount of its requested funding. 	E.g. [Doc. 124-16 at 67:15–23].
Sheriff Warwick testified that all of his requested funds were necessary for the operation of the
SCJ, and that one purpose of additional funds could be to eliminate alleged understaffing. [Id. at
71:2–5, 77:1–10]. 	The record is unclear as to why the Sheriff’s Office never received the full
funding it requested from the Board, [id. at 94:18–23], but funding for the SCJ may have been
limited due to the budget requests of other elected officials or departments, [id. at 101:14–24].
Taken together, there exists a genuine dispute of material fact over the cause and impact of
the Board’s funding decisions on the operation of the SCJ and, in turn, whether Mr. Maes’s
constitutional injuries resulted from those decisions. 	It is possible that the Board’s decision to
underfund—at least relative to the Sheriff’s Office’s requests—the SCJ were not causally related
to Mr. Maes’s alleged constitutional injuries. It is also possible that the Board’s funding decisions
were not taken with deliberate indifference to Plaintiff’s injuries. And of course, the opposite is
true as well. But, at summary judgment, the Court will not substitute its judgment for that of a
jury. See Winton v. Bd. of Comm’rs of Tulsa Cnty., 88 F. Supp. 2d 1247, 1268 (N.D. Okla. 2000)
(denying summary judgment to county where evidence suggested that funding for new jail could
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have protected injured inmate, where county’s past inaction could have led to conditions at current
jail, and where county could be found deliberately indifferent). 	That is particularly the case
where—as here—the record shows that the SCJ was on notice that insufficient funding contributed
to potential constitutional violations at the time of Mr. Maes’s death. Plaintiff claims that “lack of
funding . . . caused [Sheriff] Warwick to fill jailer positions with unqualified or untrained
individuals” like Defendant Macias. [Doc. 1 at ¶ 35]. And it is undisputed that Defendant Macias
provided his notice of resignation from his position as a jailer at the SCJ on November 10, 2019.
[Doc. 113-6 at 89:13–21]. He “felt overworked,” was “very exhausted,” and “was very tired all
the time.” 	[Id.]. 	Those statements could stem from those related to insufficient funding, as
Plaintiff plainly assert in the Complaint. [Doc. 1 at ¶ 37 (claiming that “Macias provided a letter
of resignation advising [Defendant] Warwick and [Defendant] Wilson of the following: (1) he had
become less and less satisfied with the work situation; (2) he was unhappy with having to work
every weekend; (3) he had not received a raise when others with less experience had; (4) the rate
of pay was “exceptionally low;” (5) he received “little to no training on many things [he] was
expected to do/perform,” and (6) that his resignation was effective on November 24, 2019.”).
While such evidence does not mandate a particular verdict, the Court concludes that it
demonstrates the existence of a genuine dispute of material fact with respect to Plaintiff’s
insufficient funding claim—namely, that the lack of resources at the SCJ deprived Mr. Maes of
his rights guaranteed by the Fourteenth Amendment.
Given that a reasonable juror could conclude that the Board’s customary practice of
underfunding the SCJ was the moving force behind a constitutional injury, and that those
judgments were undertaken and maintained with deliberate indifference to Plaintiff’s almost
inevitable injury, this Court DENIES summary judgment as to Plaintiff’s second claim.
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V. 	Count Three: Inadequate Supervision
Plaintiff next raises a claim for inadequate supervision under § 1983 against Sheriff
Warwick in his official capacity. [Doc. 1 at ¶¶ 178–182]. The Estate alleges that this inadequate
supervision constituted an official policy or practice, and was the direct and proximate cause of
Plaintiff’s injuries and damages. 	[Id. at ¶ 179]. 	She points to seven specific deficiencies:
(1) failure to adopt a staffing pattern that provided adequate supervision to intoxicated individuals
expressing suicidal ideation, (2) failure to adopt precautions, including direct supervision, double-
celling, and discouragement of staff reliance on suicide contracts,24 to protect intoxicated
individuals expressing suicidal ideation, (3) permitting jailers to substitute monitor checks for
direct welfare checks, (4) failure to adopt a requirement that staff members obtain a mental health
clearance for intoxicated individuals expressing suicidal ideation, (5) the adoption of a policy
admitting intoxicated individuals expressing suicidal ideation to the SCJ, (6) failure to adopt
standardized suicide checks for intoxicated individuals expressing suicidal ideation, and (7) the
supervision of intoxicated individuals expressing suicidal ideation by jail staff who had
communicated concerns about their training, had a recent history of acting with indifference
toward the welfare of others, and had recently communicated an intention to resign following an
investigation into misconduct. [Id. at ¶ 180].
The County Defendants principally contend that Sheriff Warwick lacked knowledge of a
pattern of deficiencies at the SCJ that Plaintiff raises in her Complaint, and that the claims fail as
a matter of law. [Doc. 102 at 13]. Plaintiff argues that demonstrating a pattern of deficiencies is
24 A “suicide contract” refers to an agreement in which a party agrees not to engage in self-harm.
See Tracy O. v. Anthem Blue Cross Life and Health Ins. Co., No. 2:16-cv-422-DB, 2017 WL
3437672, at *2 (D. Utah Aug. 10, 2017). In this case, the Court construes references to a “suicide
contract” as referring to Defendant Macias’s conversation with Mr. Maes in which Mr. Maes
agreed not to harm himself if Defendant Macias retrieved juice for him.
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unnecessary, as the deficiencies she points to were “highly predictable” or “plainly obvious”
consequences of the inadequate supervision she alleges. 	[Doc. 124 at 19]. 	The Estate also
emphasizes the 2008 suicide of Felix Granados and its similarities to Mr. Maes’s death. 	[Id. at
20].
“Suing individual defendants in their official capacities under § 1983 . . . is essentially
another way of pleading an action against the county or municipality they represent,” and thus
courts apply the same standards of liability to municipalities as to official capacity claims against
municipal officials. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). It follows that the
Court applies Monell and its accompanying standards of liability in assessing whether Plaintiff’s
official capacity claim for inadequate supervision survives summary judgment. See Graham, 473
U.S. at 165–66. In other words, to withstand summary judgment on her inadequate supervision
claims, Plaintiff must identify a policy or custom with respect to supervision that amounts to
deliberate indifference and that is the moving force behind the alleged constitutional injury.
Murphy v. Bitsoih, 320 F. Supp. 2d 1174, 1197–98 (D.N.M. 2004). Finally, “a municipality may
be held responsible under § 1983 for inadequate supervision and training of its employees ‘only
where the failure to train [or supervise] amounts to deliberate indifference to the rights of persons
with whom the [employees] come in contact.’” Schepp v. Fremont Cnty., 900 F.2d 1448, 1454
(10th Cir. 1990) (quoting City of Canton, 489 U.S. at 388); Brown v. Gray, 227 F.3d 1278, 1291
(10th Cir. 2000) (applying same standard to inadequate training and inadequate supervision
claims).
As an initial matter, the Court notes its disagreement with the County Defendants that the
absence of a “pattern of suicides” at the SCJ is the relevant inquiry for the purposes of establishing
Monell liability. See [Doc. 102 at 13]. Rather, the pertinent question is whether a policy or custom
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of inadequate supervision was both deliberately indifferent to Mr. Maes’s constitutional rights and
the moving force behind his injuries. 	See City of Canton, 489 U.S. at 385. 	At the same time,
however, the Court notes that Plaintiff’s reliance on the 2008 suicide of Felix Granados is
insufficient. 	[Doc. 124 at 20]. 	The focus on the Granados suicide comprises the entirety of
Plaintiff’s Response, essentially arguing that Sheriff Warwick was on notice of the potential for
suicide in Cell One. [Id.]. While it is true that Mr. Granados’s suicide bears similarities to Mr.
Maes’s suicide, those similarities do not speak to the constitutional adequacy of jail supervision
(and Plaintiff does not argue as much). See [id.]. Moreover, the Tenth Circuit has repeatedly held
that “[o]ne prior incident, even if it was a constitutional violation sufficiently similar to put officials
on notice of a problem, does not describe a pattern of violations.” Coffey v. McKinley Cnty., 504
F. App’x 715, 719 (10th Cir. 2012); see also Waller v. City and Cnty. of Denver, 932 F.3d 1277,
1287 (10th Cir. 2019); Martin v. Malhoyt, 830 F.2d 237, 255 (D.C. Cir. 1987) (“One instance,
however egregious, does not a pattern or practice make.”). In addition, the time between the two
incidents—over a decade—weighs against the finding of a pattern. See Heidel, 851 F. App’x at
842 (reasoning that “one suicide-by-hanging from decades ago and one recent attempted suicide-
by-drowning” was “not a pattern of conduct that would establish actual notice of a substantially
high risk of suicide”).
Furthermore, Plaintiff’s Response does not argue that specific policies outlined in the
Complaint were the moving force behind Mr. Maes’s injuries, or that they were enacted or
maintained with deliberate indifference to his rights. In fact, the record suggests that there were
suicide protocols that were potentially unfollowed by Defendants. See [Doc. 102-3 at 5 (“If you
have anyone on a sucide [sic] watch, please do 10 minute camera checks and 20 minute manual
checks with pipe. 	No exceptions.”)]; [Doc. 124 at 10, ¶ 23 (“Other than [Defendant] Macias
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entering phantom site [sic] checks, staff acted consistent with policy in their management of” Mr.
Maes.) (emphasis added)]. 	This leaves the County Defendants’ arguments with respect to
inadequate supervision essentially unrebutted, as Plaintiff has not pointed the Court to any facts in
the record that would contradict the County Defendants’ claims regarding the adequacy of
supervision at the SCJ.
Indeed, a review of each alleged deficiency in supervision only bolsters this conclusion.
First, Plaintiff alleges that Sheriff Warwick failed to adopt a staffing pattern that would provide
adequate supervision to intoxicated individuals expressing suicidal ideation. [Doc. 1 at ¶ 180(a)].
Like the County Defendants, the Court interprets this deficiency as related to the single jailer-
dispatcher model that Plaintiff references elsewhere in her briefing. See, e.g., [Doc. 124 at 24].
That staffing model could not have been the “moving force” behind Mr. Maes’s death because
both a jailer and dispatcher were on duty at the SCJ when Mr. Maes committed suicide. [Doc. 102
at ¶¶ 10, 12].
Second, Plaintiff points to the failure to adopt precautions, including direct supervision,
double-celling, and discouragement of staff reliance on suicide contracts, to protect intoxicated
individuals expressing suicidal ideation. 	[Doc. 1 at ¶ 180(b)]. 	Yet it is unclear how these
precautions—aside from direct supervision by jail staff—relate to the adequacy of supervision of
intoxicated inmates expressing suicidal ideation, and Plaintiff makes no effort to explain as much.
In any event, the Court has not located any case law that would transform the practice of not
adopting any of the above precautions into a constitutional violation.
Third, Plaintiff claims that Sheriff Warwick failed to provide adequate supervision by
permitting jail staff to substitute monitor checks for direct supervision checks on Mr. Maes. [Doc.
1 at ¶ 180(c)]. The County Defendants argue that Plaintiff failed to develop any record evidence
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that the substitution of monitor checks had occurred on other occasions (so as to constitute a policy
or custom under Monell). [Doc. 102 at 15]. Plaintiff does not offer any counterargument in the
Response, and it is not the Court’s role to comb through the extensive deposition testimony in this
matter to determine whether the County Defendants’ representation is correct. 	Abdelmeged v.
Colvin, No. 14-cv-01643-REB, 2015 WL 5047645, at *6 (D. Colo. Aug. 26, 2015) (“This court is
neither required nor inclined to scour the record in search of evidence to support a party’s
arguments.”). Because Plaintiff cannot show that Sheriff Warwick or jail staff failed to perform
direct checks of inmates on any prior occasions, summary judgment is warranted. 	George, 32
F.4th at 1255.
Fourth, Plaintiff raises the failure to adopt a requirement that staff members obtain a mental
health clearance for intoxicated individuals expressing suicidal ideation. [Doc. at ¶ 180(d)]. As
with her second alleged deficiency, Plaintiff is arguing that the absence of particular precautions
constitutes deliberate indifference towards Mr. Maes’s constitutional rights. 	Absent any record
evidence that a policy or custom of inadequate or nonexistent mental health clearances existed, or
any case law suggesting that the absence of such clearances constitutes deliberate indifference, the
Court again concludes that summary judgment is warranted.
Fifth, Plaintiff challenges the policy of admitting intoxicated individuals expressing
suicidal ideation to the SCJ without a mental health evaluation (with the knowledge that the SCJ
presented a suicide risk and was staffed by individuals with inadequate suicide training). [Id. at
¶ 180(e)]. Again, this conclusory allegation is not sufficient to survive summary judgment. As
the County Defendants note, there is no evidence that this policy—as defined by Plaintiff—was
enacted or maintained with deliberate indifference to the rights of Mr. Maes or any other inmates.
[Doc. 102 at 15]. 	Plaintiff does not rebut that argument with record evidence or argument, or
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provide any case law in which courts have determined that such precautionary measures are
constitutionally necessary prior to admitting an inmate to a jail or correctional facility.
Sixth, Plaintiff points to the failure to adopt standardized suicide checks for intoxicated
individuals expressing suicidal ideation. [Doc. 1 at ¶ 180(f)]. Of course, the record demonstrates
that such standardized suicide checks had already been adopted for suicidal inmates; checks were
required every ten minutes via camera, and every twenty minutes manually.25 [Doc. 102 at ¶ 38;
Doc. 102-6 at 3]. Plaintiff does not point to any previous incidents in which this policy was found
to be insufficient to protect suicidal inmates, or previous instances in which it was not followed.
Seventh and finally, Plaintiff focuses on Defendant Macias (though not by name). [Doc. 1
at ¶ 180(g)]. She claims that Sheriff Warwick’s continued employment of Defendant Macias as a
jailer responsible for supervising intoxicated and suicidal inmates was constitutionally deficient,
because he had communicated concerns about his lack of training, had a recent history of acting
with deliberate indifference towards others, and had recently communicated his intention to resign
following an investigation into misconduct. [Id.]. As with the other deficiencies discussed above,
Plaintiff does not cite to the record or case law to demonstrate that Sheriff Warwick’s continued
employment of Defendant Macias with these facts in mind represents deliberate indifference. The
Court is also unaware of any citation that could do so. That Defendant Macias believed his training
was insufficient is not enough to show that Sheriff Warwick acted with deliberate indifference in
employing him; indeed, even where officers have testified that they are completely unfamiliar with
25 While not addressed in the Parties’ briefing, Plaintiff alleges (and Defendant Macias disputes)
that he falsified two checks on Mr. Maes’s cell. 	But the failure to adhere to suicide prevention
policies, such as cell checks, does not establish deliberate indifference. See Hovater v. Robinson,
1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to adhere to administrative regulations does
not equate to a constitutional violation.”); see also Hostetler v. Green, 323 F. App’x 653, 657–58
(10th Cir. 2009).
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a suicide prevention policy, “showing merely that additional training would have been helpful in
making difficult decisions” has not been enough to “establish municipal liability.” 	George, 32
F.4th at 1254 (citing Connick v. Thompson, 563 U.S. 51, 68 (2011)). 	That Defendant Macias
allowed another inmate to escape from the SCJ in October 2019 is entirely disconnected from this
matter, has no bearing on his ability to supervise intoxicated or suicidal inmates, and—contrary to
Plaintiff’s conclusory rhetoric—does not per se constitute deliberate indifference. See [Doc. 1 at
¶¶ 29–32, 180(g)]. 	Finally, Defendant Macias communicated his intent to resign on November
10, 2019, to become effective November 24, 2019. 	[Id. at ¶¶ 37–39]. 	The fact that Sheriff
Warwick permitted Defendant Macias to continue working during the pendency of a standard two-
week notice period does not give rise to a constitutional violation.
Taken together and in turn, these alleged deficiencies do not show a policy or custom with
respect to supervision that amounts to deliberate indifference and that is the moving force behind
Plaintiff’s alleged injuries. 	As such, summary judgment is warranted with respect to Plaintiff’s
claims of inadequate supervision and the County Defendants’ Motion is GRANTED.
VI. 	Count Four: Inadequate Training
Count Four is also raised against Sheriff Warwick in his official capacity, and alleges a
policy or practice of inadequate training under § 1983. [Id. at ¶¶ 183–188]. Plaintiff points to five
specific training deficiencies: (1) an expectation that jailers would make housing and classification
decisions for intoxicated and suicidal inmates without the training to know when to elevate care
decisions, (2) an expectation that jailers would respond to intoxicated and suicidal inmates without
the training to understand suicide contracts, (3) an expectation that jailers would monitor
intoxicated and suicidal inmates in cells with exposed bars using only monitor checks, and without
the training to remove all items that could be used to facilitate suicide, (4) an expectation that
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jailers would monitor intoxicated and suicidal inmates without training to account for the SCJ’s
physical plant, and (5) an expectation that jailers would have responsibility for obtaining mental
health clearance for intoxicated and suicidal inmates without training to ensure that clearance is
obtained. [Id. at ¶ 185].
The County Defendants argue that summary judgment is warranted with respect to claims
of inadequate training, because the Tenth Circuit has recently upheld the constitutionality of a
similar training program and because the mere fact that more training was possible does not render
this training program constitutionally inadequate. [Doc. 102 at 16–18]. Plaintiff relies on contrary
precedent from the Tenth Circuit, and alleges a variety of training deficiencies (albeit without
citation to the record). [Doc. 124 at 21–23].
In considering Plaintiff’s inadequate training claim, the Court is mindful of the Supreme
Court’s teachings that “[a] municipality’s culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train.” 	Connick, 563 U.S. at 61. 	To satisfy the
deliberate indifference standard, “[a] pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary,’” because “[w]ithout notice that a course of training is
deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.” Id. at 62 (quoting Bd. of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)).
To prevail under this standard, Plaintiff must demonstrate that “the need for more or
different training [was] so obvious, and the inadequacy so likely to result in the violation of [Mr.
Maes’s due process] rights, that the policymakers . . . can reasonably be said to have been
deliberately indifferent to the need for additional training.” 	Jenkins, 81 F.3d at 994 (internal
quotation omitted). It is not enough to “show that there were general deficiencies in the county’s
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training program for jailers.” Lopez, 172 F.3d at 760. Instead, a plaintiff must “identify a specific
deficiency” that was obvious and “closely related” to his injury, id., so that it might fairly be said
that the official policy or custom was both deliberately indifferent to his constitutional rights and
the moving force behind his injury, see City of Canton, 489 U.S. at 385.
“To recover for a failure to train, [Plaintiff] needs to prove three elements: [1] the existence
of a county policy or custom involving deficient training[,] [2] the policy or custom’s causation of
an injury[,] [and] [3] the county’s adoption of a policy or custom with deliberate indifference.”
Lance v. Morris, 985 F.3d 787, 800 (10th Cir. 2021). To survive summary judgment, a reasonable
juror must be able to conclude that Plaintiff has established each element.
With respect to the first element, the Court believes that a reasonable juror could find in
favor of Plaintiff on two of her alleged deficiencies. 	First, the record shows that jail staff was
responsible for making housing and classification decisions for inmates, see, e.g., [Doc. 124-1 at
69:11–70:4 (classification), 166:14–167:21 (housing)], but that they did not receive training on
elevating care, see [Doc. 124-9 at 78:17–23]. Plaintiff has also developed record testimony that at
least some jail staff did not receive training on removing items that could be used to facilitate
suicide from the cells of intoxicated or suicidal inmates. [Doc. 124-1 at 184:9–11].
Conversely, the Court has not found (and Plaintiff has not cited) any portion of the record
suggesting that jailers did or did not receive training regarding “suicide contracts,” shorthand
referring to an agreement for an individual to refrain from self-harm. See supra n.24. Nor does
any testimony demonstrate that training omitted discussion of the SCJ’s physical plant and its
attendant limitations. 	Finally, the record does not show that jailers did not receive training to
ensure that mental health clearance is obtained for intoxicated or suicidal inmates. Mindful that it
is insufficient to “show that there were general deficiencies in the county’s training program for
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jailers,” Lopez, 172 F.3d at 760, and that Plaintiff must support any specific allegations with
equally specific citations to the evidence at summary judgment, see Certain Underwriters at
Lloyd’s London v. Garmin Int’l, Inc., 781 F.3d 1226, 1231 (10th Cir. 2015), she has nevertheless
met her burden of establishing a policy or custom involving training with respect to elevating care
and the removal of instruments to facilitate suicide from jail cells.
The Court next turns to consider whether Plaintiff has adduced evidence that these policies
or customs caused Plaintiff’s alleged injuries. Lance, 985 F.3d at 800. To establish this element,
Plaintiff must demonstrate that “the injury [would] have been avoided had the employee been
trained under a program that was not deficient in the identified respect.” City of Canton, 489 U.S.
at 391. As an initial matter, the Court notes that the County Defendants do not appear to challenge
causation with respect to these allegations. But even assuming they had done so, the Court believes
that a reasonable juror could find in Plaintiff’s favor on the two alleged policies that are supported
by the record. 	First, a reasonable juror could conclude that a lack of training in elevating care
decisions led to Plaintiff’s injuries. 	Had jail staff received such training, it is possible that Mr.
Maes’s intoxication and suicidal statements could have led to more immediate attempts to obtain
medical care. [Doc. 124-9 at 91:5–13 (“Q[:] Okay. But would you agree that if there was training
that could help staff identify potentially suicidal people and elevate those care decisions, that
would be beneficial to preventing suicide, or at least potentially preventing suicide? . . . A[:] I think
any training, not just in regards to that, but any training that’s available to educate people regarding
this is a good thing.”)]. Second, training on removing instruments that could be used to facilitate
suicide from cells housing intoxicated or suicidal inmates may very well have prevented Mr.
Maes’s death. 	Yet, without that training, jail staff remained under the impression that such
instruments should remain in each cell. [Doc. 124-1 at 184:9–11 (“Q[:] Would you have removed
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[the privacy curtain] from the cell? A[:] No. I would have asked him to hang it back up.”)]. Given
that the curtain was Mr. Maes’s eventual means of suicide, it is apparent that a failure to remove
it from his cell—or training to do so—may have played a causal role in his death.
Finally, the Court considers whether both policies were adopted or maintained with
deliberate indifference. Lance, 985 F.3d at 800. “Deliberate indifference can exist when a county
fails to train jail guards on how to handle recurring situations presenting an obvious potential to
violate the Constitution.” Id. (citing Allen v. Muskogee, 119 F.3d 837, 842 (10th Cir. 1997)). To
answer whether a problem is sufficiently “recurring” so as to necessitate training, the Tenth Circuit
recently adopted a three-part test:
1. [T]he county’s policymakers know “‘to a moral certainty’ that [their] employees
will confront a given situation.”
2. “[T]he situation either presents the employee with a difficult choice of the sort
that training or supervision will make less difficult.”
3. “[T]he wrong choice . . . will frequently cause the deprivation of a citizen’s
constitutional rights.”
Id. (citing Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992)). Applying that test
here, a reasonable juror could conclude that Sheriff Warwick knew “to a moral certainty” that SCJ
staff members would confront inmates with medical and mental health problems that would require
elevated care decisions. 	The record supports as much. 	[Doc. 124-9 at 91:5–13 (referencing
benefits of providing training on elevating care decisions)]. Moreover—and setting aside debates
over its adequacy—the fact that a suicide policy was in place at the SCJ is evidence that Sheriff
Warwick and other policymakers were aware that SCJ staff would confront suicidal inmates.
Turning to the second factor, a reasonable juror could find that both situations presented employees
with difficult choices that training could make less difficult. Training with regard to elevating care
decisions could, naturally, aid SCJ employees in making decisions regarding the type and degree
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of mental health and medical attention that a given intoxicated or suicidal inmate requires. And
training with regard to removing instruments of suicide could similarly aid SCJ employees in
ensuring that intoxicated or suicidal inmates are unable to harm themselves. Third and finally, the
wrong choice in either of these areas may lead to a deprivation of an individual’s constitutional
rights. As discussed supra, “claims based on a jail suicide are considered and treated as claims
based on the failure of jail officials to provide medical care for those in their custody.” Barrie,
119 F.3d at 866. Failing to make choices that could prevent jail suicides may therefore cause the
deprivation of a pretrial detainee’s rights arising under the Fourteenth Amendment. 	Failing to
elevate mental health or medical care decisions when facing an intoxicated or suicidal inmate could
frequently cause suicide or self-harm, as could failing to remove instruments to facilitate suicide
from the jail cell of an intoxicated or suicidal inmate. As such, the Court believes that a reasonable
juror could determine that Sheriff Warwick’s policy of inadequate training with respect to both
specific deficiencies was adopted or maintained with deliberate indifference to the consequences.
The Court is, of course, aware that “[a] municipality’s culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61. It also
acknowledges the County Defendants’ reliance on recent Tenth Circuit precedent upholding
similar training programs. Specifically, in George v. Beaver County the Tenth Circuit reasoned
that a suicide-prevention policy that included four hours of suicide prevention training as part of a
twelve-week 	program—along 	with 	on-the-job 	training—did 	not 	demonstrate 	deliberate
indifference even though officers testified that they were unfamiliar with the suicide prevention
policy. 32 F.4th at 1254. First, as Plaintiff points out, the training program in George appears to
have included more training than that received by SCJ staff. [Doc. 124 at 21 n.2 (citing Doc. 124-
13 at 37:18–25)]. Second—and more broadly—the reasoning employed in George addresses the
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adequacy of the suicide prevention program as a whole (rather than specific deficiencies). To that
end, the Tenth Circuit held that “showing merely that additional training would have been helpful
in making difficult decisions does not establish municipal liability.” 	Id.. 	Here, Plaintiff is not
simply asking for “additional” training. Instead, she has raised specific allegations, supported by
record evidence, of insufficient training in two discrete areas with a connection to Mr. Maes’s
suicide. 	It follows that—even assuming the George defendants’ approach to training is
substantially similar to that offered to the SCJ staff—the Tenth Circuit’s reasoning in George does
not foreclose Plaintiff’s ability to succeed on the specific failure-to-train allegations here.
As such, Plaintiff’s inadequate training claims—as they relate to a failure to train jail staff
on elevating care, [Doc. 1 at ¶ 185(a)], and removing items that could be used to facilitate suicide
from jail cells holding intoxicated or suicidal inmates, [id. at ¶ 185(c)]—are not subject to summary
judgment. 	The Motion is DENIED with respect to those allegations. 	All other failure-to-train
allegations contained in Count Four are subject to summary judgment in the County Defendants’
favor and the Motion is respectfully GRANTED with respect to those allegations.
VII. 	Count Five: Inadequate Staffing
Lastly, Plaintiff raises a third claim against Sheriff Warwick in his official capacity under
§ 1983 for adopting or maintaining a policy or practice of inadequate staffing at the SCJ. [Doc. 1
at ¶¶ 189–193]. The Estate outlines three specific deficiencies: (1) a failure to provide adequate
staffing to supervise intoxicated inmates experiencing suicidal ideation, (2) reliance on untrained
or inexperienced staff to supervise high-risk inmates, and (3) reliance on a single jailer/dispatcher
structure. [Id. at ¶ 191].
The County Defendants move for summary judgment on Plaintiff’s inadequate staffing
claim, principally basing their argument on causation. [Doc. 102 at 18–19]. They point out that
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the single jailer/dispatcher model was not employed at the time of Mr. Maes’s suicide, and note
that Plaintiff did not allege or develop testimony regarding constitutionally adequate levels of
staffing at the SCJ. [Id.]. Rather than address each of the specific deficiencies in the Complaint
in turn, Plaintiff uses the Response to argue that the “cumulative impact” of Sheriff Warwick’s
staffing decisions led to Mr. Maes’s death. [Doc. 124 at 23–25]. She also argues that the County
Defendants 	are 	misrepresenting 	the 	single 	jailer/dispatcher 	model, 	and 	that 	they 	cannot
demonstrate that Mr. Maes was dead before Defendants Macias and Shields changed shifts. [Id.].
Understaffing may constitute a municipal policy or custom that can form the basis for
liability under § 1983. 	See Burke v. Regaldo, 935 F.3d 960, 1001 (10th Cir. 2019) (affirming
jury’s conclusion that sheriff was responsible for “an unconstitutional policy or custom . . . of poor
training, inadequate staffing, and lack of urgency surrounding jail medical care”); Garcia, 768
F.2d at 307–08 (reasoning that deliberate indifference could be “shown by proving that there are
such gross deficiencies in staffing, facilities, equipment or procedures that the inmate was
effectively denied access to adequate medical care”); Morgan v. Bd. of Cnty. Comm’rs of Okla.
Cnty., No. CIV-08-1317-R, 2010 WL 11508854, at *9 (W.D. Okla. Mar. 11, 2010) (“A reasonable
jury could also find from the evidence concerning conditions at the jail that the need for . . .
increased staffing of the jail was so obvious and so likely to result in the violation of detainees’
Fourteenth Amendment rights, resulting in injuries to or deaths of detainees, that [the sheriff] can
reasonably be said to have been deliberately indifferent to such need or needs.”).
As with Plaintiff’s other municipal liability claims, Plaintiff must supply record evidence
of (1) the existence of a policy or custom, (2) causation, and (3) deliberate indifference in order to
survive summary judgment. 	See Schneider, 717 F.3d at 769–71. 	Here, the Court assumes—
without deciding—that each of Plaintiff’s three alleged policies or customs stemming from
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understaffing actually are policies or customs. 	The Court’s analysis therefore turns on whether
Plaintiff has supplied record evidence to demonstrate that the specific policies caused Plaintiff’s
injuries and that they were enacted or maintained with deliberate indifference to Mr. Maes’s
constitutional rights.
Turning to Plaintiff’s first challenged policy—that Sheriff Warwick simply provided an
inadequate number of jail staff members to supervise intoxicated individuals experiencing suicidal
ideation—the Court concludes that summary judgment is appropriate. See [Doc. 1 at ¶ 191(a)].
First, Plaintiff has pointed to nothing in the record suggesting that the presence of additional jail
staff on the night of November 16, 2019 would have prevented Mr. Maes’s death. Indeed, portions
of the record independently located by the Court suggest the opposite. E.g. [Doc. 124-1 at 120:18–
121:1 (“Q[:] Were you understaffed in 2019? A[:] We had the correct amount of people on staff
that night, because we’re understaffed. Sometimes we have to pull double shifts or sometimes the
sheriff or I even have to cover for shifts. 	So we make sure we have the appropriate amount of
people on shift at a time. And at the same time, we could always hire three or four more people,
because we’re understaffed. It’s not about the staffing issue.” (emphasis added))].
Plaintiff’s second challenged policy also fails to survive summary judgment. 	Plaintiff
charges that Sheriff Warwick maintained a policy of relying on untrained or inexperienced staff to
supervise high-risk inmates. [Doc. 1 at ¶ 191(b)]. Yet nowhere in the Response—or, as far as the
Court is aware, in the record—does Plaintiff point to a specific degree of qualification required for
the supervision of high-risk individuals, or explain how Defendant Macias’s and Shields’s lack of
qualifications and experience caused Mr. Maes’s death.
Finally, Plaintiff’s third challenged policy—the use of the single jailer/dispatcher model—
also fails on causation grounds. [Id. at ¶ 191(c)]. As its name suggests, the single jailer/dispatcher
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structure involves using one individual as both jailer and dispatcher at a given time. See [Doc. 102
at ¶ 7; Doc. 102-2 at 48:4–49:20]. 	At the time of Mr. Maes’s suicide, however, the single
jailer/dispatcher structure was not in use; both Defendant Macias and Defendant Shields were
present at the SCJ acting as jailer and dispatcher, respectively.26 [Doc. 102 at ¶¶ 10, 12]. Plaintiff
nevertheless argues that the County Defendants have misrepresented the “operation of the
jailer/dispatcher post,” claiming that Cell One was unsupervised because Defendant Macias was
preoccupied with other inmates while Mr. Maes put his suicide plan into motion and Defendant
Shields was preoccupied with other tasks. [Doc. 124 at 24–25]. First, this much seems to concede
that two staff members were present at the SCJ at the time of Mr. Maes’s death. Second, accepting
that two staff members were present at the SCJ—and that this staffing was inadequate—presumes
that the presence of three or more staff members would have prevented Mr. Maes’s death. 	But
Plaintiff does not explain how the addition of another staff member would have saved Mr. Maes’s
life. Plaintiff’s failure to develop record evidence on this point, whether through the use of experts
or otherwise, vitiates the argument.
Plaintiff raises one final argument: that the medical examiner did not identify Mr. Maes’s
time of death, and that it is possible that he was still alive when the single jailer/dispatcher structure
was employed beginning at midnight on the night of Mr. Maes’s suicide. 	[Doc. 124 at 25].
Respectfully, this argument defies the record. 	At approximately 10:22 p.m., Mr. Maes began
26 Plaintiff, somewhat confusingly, appears to dispute that Defendant Shields was acting as a
dispatcher, noting that she “called herself a ‘detention deputy,’ not a ‘dispatch deputy.’” [Doc.
124 at 2, ¶ 3]. Regardless of Defendant Shields’s self-identification, it remains the case that the
single jailer/dispatcher structure was not in use prior to midnight on November 16, 2019.
Moreover, while Plaintiff argues that the County Defendants “misconstrue” Defendant Shields’s
role in the dedicated dispatcher post, [id.], she also admits that “[t]he only person able to supervise
[Mr. Maes] was Shields in the dispatcher/jailer post,” [id. at 9, ¶ 15]. Finally, Plaintiff admits that
it is undisputed that “Shelby Shields was the dispatcher on duty” at the time of Mr. Maes’s arrest.
[Doc. 102 at ¶ 4; Doc. 124 at 1].
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hanging himself using the privacy curtain in his cell.27 [Doc. 102 at ¶ 34]. 	Only one hour and
thirty-eight minutes later did Defendants Macias and Shields end their shifts, replaced by a single
jailer/dispatcher. [Id. at ¶ 36]. The independent coroner who examined Mr. Maes—endorsed as
an expert by both parties—testified that death would have occurred within three minutes after Mr.
Maes’s body stopped moving (though also allowing for a range of two to four minutes). 	[Doc.
102-7 at 99:4–24]. 	Nevertheless, Plaintiff claims that Mr. Maes may still have been alive by
midnight, arguing that jail video cannot determine when movement stopped and that there is no
recording of his left hand reaching inside the ligature around his neck. [Doc. 124 at 25].
Respectfully, the Court does not believe that this argument precludes summary judgment
in favor of the County Defendants. 	While summary judgment requires the Court to draw all
inferences in favor of Plaintiff, a “genuine” factual dispute requires more than a mere scintilla of
evidence. Anderson, 477 U.S. at 252. Instead, “there must be evidence on which the jury could
reasonably find for” Plaintiff. Farm Bureau Life Ins. Co. v. Am. Nat’l Ins. Co., 505 F. Supp. 2d
1178, 1184 (D. Utah 2007).
Here, Plaintiff’s own allegations demonstrate that Mr. Maes began hanging himself at
approximately 10:22 p.m. [Doc. 1 at ¶ 131 (“At 10:21:59 p.m., video shows Jackson’s legs swing
off the lower bunk.”)]. 	Plaintiff further alleges that “[w]hile jail staff socialized in the dispatch
room, [Mr. Maes] succumbed to his illness and perished around 10:30 p.m.”28 	[Id. at ¶ 2].
Accepting Plaintiff’s argument now would therefore require setting aside some of the very
allegations that underlie this lawsuit.
27 Plaintiff only “generally admit[s]” this fact, and disputes any inference as to time of death. [Doc.
124 at 5, ¶ 34].
28 To the extent Plaintiff argues that midnight is “around 10:30 p.m.,” the Court does not believe
that a reasonable juror could conclude the same.
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This pattern repeats itself as Plaintiff challenges the reliability of the video system in the
Response—a notable contrast to the repeated emphasis upon the clarity, [id. at ¶ 132], and
unobstructed view, [id. at ¶ 138], provided by the video recording that expressed in the Complaint.
The Court is mindful that its role is not to weigh evidence at the summary judgment stage, but can
find no support in the record—beyond Plaintiff’s speculation—for the proposition that Mr. Maes
remained alive for nearly an hour and forty minutes after hanging himself. It follows that summary
judgment is appropriate with respect to Plaintiff’s claims stemming from allegedly inadequate
staffing at the SCJ. This Court thus respectfully GRANTS the Motion with respect to Count Five.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
1. 	The Court GRANTS IN PART the County Defendants’ Motion for Partial Summary
Judgment, [Doc. 102], as follows:
a. 	Summary judgment is awarded to the County Defendants with respect to
Counts One, [Doc. 1 at ¶¶ 167–72], Three, [id. at ¶¶ 178–82], Five, [id. at
¶¶ 189–93], Nine, [id. at ¶¶ 200–01], and Ten, [id. at ¶¶ 202–03]; and
b. 	Summary judgment is awarded to the County Defendants with respect to Count
Four, insofar as Plaintiff raises claims based on a lack of training regarding
suicide contracts, [Doc. 1 at ¶ 185(b)], regarding the physical, funding and
staffing decisions of the SCJ, [id. at ¶ 185(d)], and regarding mental health
clearance for intoxicated persons expressing acute suicidal ideation, [id. at
¶ 185(e)].
2. 	The Court DENIES IN PART the County Defendants Motion for Partial Summary
Judgment, [Doc. 102], as follows:
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a. 	Plaintiff’s 	conditions-of-confinement 	claim 	stemming 	from 	inadequate
funding, [Doc. 1 at ¶ 173–77], shall proceed to trial;
b. 	Plaintiff’s claims raised against Defendant Wilson in Counts Six, [id. at ¶¶ 194–
95], and Seven, [id. at ¶¶ 196–97], shall proceed to trial; and
c. 	Plaintiff’s inadequate training claims, as they relate to a failure to train jail staff
on elevating care, [Doc. 1 at ¶ 185(a)], and removing items that could be used
to facilitate suicide from jail cells holding intoxicated or suicidal inmates, [id.
at ¶ 185(c)], shall proceed to trial.
3. 	The Court GRANTS Defendant Elke Wells’s Motion for Summary Judgment, [Doc
104];
4. 	The Court DENIES Plaintiff’s Motion to Supplement Responses, [Doc. 149];
5. 	The Court DENIES Plaintiff’s Motion to Strike, [Doc. 169];
6. 	The Final Pretrial Conference in this matter REMAINS SET for March 8, 2023 at
11:00 a.m. in Courtroom A-502 before Judge Nina Y. Wang; and
7. 	Any updates to the Parties’ previously-submitted proposed final pretrial order
REMAIN DUE on or before March 1, 2023. 	The Parties shall file a copy of any
updates to the proposed Order via CM/ECF and shall send a Word version to
Wang_Chambers@cod.uscourts.gov.
DATED: February 3, 2023 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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