Estate of Kelroy Newman et al v. Board of County Commissioners of the County of Montezuma, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-01763-PAB-KAS
ESTATE OF KELROY NEWMAN, by and through putative personal representative,
Bryanne Watts-Lucero, and
J.W., a minor child, by and through friend and mother, Elisa Wilson,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MONTEZUMA,
COLORADO, and
SHERIFF STEVEN NOWLIN, individually and in his official capacity,
ZACHARY SUMMERS, individually,
SOUTHWEST HEALTH SYSTEM, INC, d/b/a/ Southwest Memorial Hospital, and
RANDY GENE DAVIDSON, MD, individually,
Defendants.
ORDER
This matter comes before the Court on County Defendants’ Motion for Summary
Judgment [Docket No. 198]. Defendants Board of County Commissioners of
Montezuma County, Colorado (the “BOCC”), Sheriff Steven Nowlin, and Deputy
Zachary Summers seek summary judgment pursuant to Federal Rule of Civil Procedure
56(a) as to four counts in plaintiffs’ third amended complaint. Docket No. 198 at 2.
Specifically, the BOCC and Sheriff Nowlin seek summary judgment on the first count,
which asserts a Monell claim for deliberate indifference under 42 U.S.C. § 1983; the
second count, which alleges negligence in the operation of a jail resulting in wrongful
death; and the fourth count, which alleges deliberate indifference under 42 U.S.C.
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§ 1983. 1 Id. Deputy Summers seeks summary judgment on the third count, which is
brought pursuant to Colo. Rev. Stat. § 13-21-131 and alleges cruel and unusual
punishment in violation of Article 2 of the Colorado Constitution. Id.
Plaintiffs are the estate of Kelroy Newman, by and through his mother, Bryanne
Watts-Lucero, and J.W., a minor child, by and through her mother, Elisa Wilson. Docket
No. 154 at 4, ¶¶ 14-15. Plaintiffs filed a response, Docket No. 210, and defendants filed
a reply. Docket No. 219. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND 2
On Saturday, July 17, 2021, a Cortez, Colorado police officer arrested Kelroy
Newman and took him to the Montezuma County Detention Center (“MCDC”), Docket
No. 198 at 3, ¶¶ 8-9, which is run by the Montezuma County Sheriff’s Office. 3 Mr.
Newman was administered a breathalyzer test, which showed that he had a blood
alcohol content (“BAC”) of 0.421%. Id., ¶ 9. 4 Pursuant to MCDC policy, a BAC over
0.2% is considered a potentially emergent condition that requires the person be
medically cleared by Southwest Memorial Hospital (“SWMH”) before incarceration.
Docket No. 210 at 5, ¶ 6. The arresting officer took Mr. Newman to SWMH for medical
1 The BOCC, Sheriff Nowlin, and Deputy Zachary Summers refer to themselves
collectively as “County Defendants” in the motion for summary judgment. Docket No.
198 at 1. In the third amended complaint, plaintiffs use the term “County Defendants” to
refer to the BOCC and Sheriff Nowlin. Docket No. 154 at 5, ¶ 19. For the sake of
clarity, the Court will not use the phrase “County Defendants” and will specify each
individual party associated with a given claim.
2 The following facts are undisputed unless otherwise indicated.
3 Defendants support these asserted facts by citing to the third amended
complaint, rather than to the evidentiary record. Docket No. 198 at 3, ¶¶ 8-9. Plaintiffs
do not dispute these facts. Docket No. 210 at 2, ¶¶ 8-9. The Court deems these facts
admitted.
4 Defendants support this asserted fact by citing to the third amended complaint,
rather than to the evidentiary record. Docket No. 198 at 3, ¶ 9. Plaintiffs do not dispute
this fact. Docket No. 210 at 2, ¶ 9. The Court deems this fact admitted.
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clearance. Docket No. 198 at 3, ¶ 10. The Sheriff’s Office and SWMH have a
memorandum of understanding (“MOU”) regarding the use of the hospital’s walk-in
clinic for non-emergent medical issues and about certain billing and information-sharing
practices. Id. at 7, ¶ 31. 5
At SWMH, Dr. Randy Davidson examined Mr. Newman. Id. at 3-4, ¶ 11. Dr.
Davidson signed a clearance form. Id. On the form, Dr. Davidson “checked a
disposition indicating that Newman was acceptable for admission to jail, with ‘no specific
suggestions regarding the care of this prisoner for the condition’ for which he had been
examined.” Id.
The arresting officer returned Mr. Newman to MCDC, where Deputy Summers
began the booking process. Id. at 4, ¶ 12. 6 When Mr. Newman seemed agitated and
nonresponsive to questions, Deputy Summers decided not to continue the booking
process. Id. He asked if Mr. Newman wanted to lie down and finish the booking
process later, and Mr. Newman agreed. Id.
Based on his intoxication level, Mr. Newman was placed on a list to be checked
at thirty-minute intervals. Id., ¶ 13. 7 Deputies use a wand system to document checks
5 Plaintiffs dispute whether the MOU solely relates to billing and non-emergent
medical issues. Docket No. 210 at 4, ¶ 31. This is non-responsive to the asserted fact.
The Court deems this fact admitted.
6 Plaintiffs partially dispute this fact, stating that Mr. Newman was not
“uncooperative.” Docket No. 210 at 2, ¶ 12. Since the asserted fact does not state that
Mr. Newman was uncooperative, this is nonresponsive. The Court deems this fact
admitted.
7 Plaintiffs dispute whether the checks actually occurred at thirty-minute intervals.
Docket No. 210 at 2, ¶ 13. This is nonresponsive to the fact asserted that Mr. Newman
was on a list for these checks. The Court deems this fact admitted.
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on inmates. Id., ¶ 14. 8 Deputies have a wand or fob they activate outside of a cell to
automatically log a check. Id. The logs from the wand system show that, on the
morning of Mr. Newman’s death, deputies checked on Mr. Newman at 3:27 a.m., 6:15
a.m., 7:01 a.m., 9:20 a.m., and 10:59 a.m. Docket No. 210 at 13, ¶ 31. 9
At 7:41 a.m., Deputy Summers spoke with Mr. Newman, who complained of a
headache and said he wanted to go back to the hospital. Docket No. 198 at 4, ¶ 16.
Deputy Summers told Mr. Newman that he had already been to the hospital. Id. at 4-5,
¶ 16. Deputy Summers then spoke with his supervisor, Deputy Jarrod Jewell, and the
two agreed that deputies would take Mr. Newman back to the hospital at the shift
change. Id. at 5, ¶ 17. 10 Deputy Summers did not feel that Mr. Newman looked sick,
though Deputy Summers thought the bruises on Mr. Newman’s face were more
apparent. Id. 	Deputy Summers did not observe Mr. Newman experiencing any signs
of withdrawal, such as sweating, vomiting, shakes or tremors, difficulty conversing, or
indications of hallucinations. Id., ¶ 18. 11
At 11:43 a.m., Deputy Summers went to deliver Mr. Newman’s lunch tray and
noticed that Mr. Newman was unresponsive. Id. at 5, ¶ 20. When Deputy Summers
8 Plaintiffs admit the existence of the wand system, but deny there is any
evidence that the wand system was not working at the time of Mr. Newman’s death.
Docket No. 210 at 2, ¶ 14. The Court deems this fact admitted.
9 Defendants “[a]dmit there is a dispute to the extent this statement is intended to
mean that the times on the log automatically generated by wands used by the
deputies . . . were the only times checks were done.” Docket No. 219 at 7, ¶ 31. This is
nonresponsive. The Court deems this fact admitted.
10 Plaintiffs neither admit nor deny the asserted fact. Docket No. 210 at 3, ¶ 17.
The Court deems this fact admitted. See Practice Standards (Civil Cases), Chief Judge
Philip A. Brimmer, § III.F.3.b.iv.
11 Plaintiffs admit that this statement reflects Deputy Summers’s testimony, but
deny that his checks were sufficient to evaluate Mr. Newman’s condition. Docket No.
210 at 3, ¶ 18. This is nonresponsive. The Court deems this fact admitted.
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could not rouse Mr. Newman, he called for a medical emergency. Id., ¶¶ 20-21. Other
deputies responded and initiated lifesaving measures, id., ¶ 20, although they had
trouble locating certain equipment. Docket No. 210 at 15, ¶ 43. An ambulance
transported Mr. Newman to SWMH, where he was pronounced dead at 12:20 p.m.
Docket No. 198 at 5, ¶ 22.
Inmates are very frequently booked into MCDC drunk and with high blood alcohol
levels. Docket No. 210 at 5, ¶ 5. 12 Sheriff Nowlin and county employees are all aware
that intoxication and withdrawal from alcohol can be dangerous and life-threatening. Id.
at 4-5, ¶ 1. 13 Deputy Summers knew that a high BAC over 0.2% puts detainees at risk
of complications from alcohol withdrawal. Id. at 8-9, ¶ 13. In 2021, MCDC had no
policy, procedure, or protocol, such as a Clinical Institute Withdrawal Assessment for
Alcohol (“CIWA”) assessment tool, in place to monitor someone’s withdrawal medical
conditions other than deputy observations which were not, by policy, to include medical
assessments. Id. at 5, ¶ 8. 14 MCDC had a nurse on staff during weekdays, but not
during evenings and weekends. Docket No. 198 at 2, ¶¶ 2-3. When the nurse was not
on duty, MCDC staff could call the nurse or call the emergency room if they had medical
questions. Id., ¶ 3. Sheriff Nowlin stated that “[t]here’s no formal training” on what to
12 Defendants respond that they “[a]dmit that detainees are frequently intoxicated
with ranging levels of intoxication. The Jail requires that detainees with BAC levels of
.200 or over on intake be taken for medical clearance.” Docket No. 219 at 3, ¶ 5. This
is nonresponsive. The Court deems this fact admitted.
13 Defendants respond that they “[a]dmit the testimony is as represented.”
Docket No. 219 at 2, ¶ 1. This is nonresponsive. The Court deems this fact admitted.
14 Defendants state that they “[a]dmit the Jail did not have a CIWA protocol in
2021,” but do not otherwise address the asserted fact. Docket No. 219 at 3, ¶ 8. The
Court deems this fact admitted.
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look for or what symptoms to ask inmates about to evaluate withdrawal. Docket No.
210 at 11, ¶ 25.
Deputies determine on their own whether to elevate a visual check to a verbal
check. Id. at 12, ¶ 30. While policies required welfare checks to be every 30 minutes,
checks for Mr. Newman were logged with times between varying from 9 minutes to as
long as 3 hours 29 minutes. Id. at 13, ¶ 31. 15
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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 Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
15 Defendants dispute that the wand-recorded times were the only checks that jail
deputies performed. Docket No. 219 at 7, ¶ 31. But defendants do not identify any
evidence that the wands were not working on the day in question or provide any
explanation for why the log did not reflect other checks. The Court deems this fact
admitted.
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Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III. ANALYSIS
A. Claim Against Deputy Zachary Summers under Colo. Rev. Stat. § 13-
21-131
Plaintiffs bring a claim against Deputy Summers under Colo. Rev. Stat. § 13-21-
131 for cruel and unusual punishment and deprivation of due process in violation of the
Colorado Constitution, Article 2, Sections 20 and 25. Docket No. 154 at 49-51.
Defendants argue that Deputy Summers did not violate Mr. Newman’s constitutional
rights. Docket No. 198 at 10-13, 18-19. Defendants also argue that, even if Deputy
Summers did commit a violation under Colo. Rev. Stat. § 13-21-131, the statute’s
abrogation of qualified immunity is unconstitutionally vague and, in any event, does not
foreclose a public official’s “good faith” defense under Colorado’s common law. Id. at
16-18. Plaintiffs respond that Deputy Summers did act with deliberate indifference and
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that recent state court rulings demonstrate that Deputy Summers’s immunity argument
is without merit. Docket No. 210 at 22-24, 26-29.
As a preliminary matter, defendants state that there is limited case law
interpreting Colo. Rev. Stat. § 13-21-131 and that the Court should look to federal law
on Section 1983 claims as guidance. Docket No. 198 at 18. Plaintiffs do not respond
regarding this point, but they exclusively cite federal law in support of their argument
that Deputy Summers violated Mr. Newman’s rights. Docket No. 210 at 22-24. In
Woodall v. Godfrey, 553 P.3d 249 (Colo. App. 2024), the Colorado Court of Appeals
held that:
While this is the first time we have addressed an excessive force claim brought
under section 13-21-131, we are not without guidance. Section 13-21-131 is
similar to 42 U.S.C. § 1983, which authorizes a private right of action against a
person “who, under color of any statute . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” In addition, the Fourth
Amendment of the United States Constitution is almost identical to article II,
section 7 of the Colorado Constitution. Accordingly, we may look to cases
analyzing § 1983 claims for excessive force as persuasive authority.
Id. at 256 (internal citations and quotations omitted). Based on Woodall, the Court will
consider Section 1983 case law in analyzing whether the undisputed facts show that
Deputy Summers was deliberately indifferent to Mr. Newman’s serious medical need.
The Section 1983 analysis involves a two-part inquiry for assessing whether an officer
has shown deliberate indifference to a pretrial detainee’s serious medical need.
Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1029 (10th Cir. 2020).
The first prong of the test is an objective inquiry considering whether “the harm
suffered rises to a level sufficiently serious to be cognizable under the Cruel and
Unusual Punishment Clause of the Eighth Amendment.” Id. (citations omitted). “A
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medical need is sufficiently serious if it is one that has been diagnosed by a physician
as mandating treatment or . . . is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” Id. (internal quotations omitted)
(quoting Sealock v. Colo., 218 F.2d 1205, 1209 (10th Cir. 2000)). Defendants do not
contest, at least for the purposes of this motion, that this claim satisfies the objective
prong of the analysis. Docket No. 198 at 11-12.
The second prong of the test is a subjective inquiry that requires that “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.” Quintana, 973 F.3d
at 1029 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “[A] factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious. But our precedent effectively cabins this exception by requiring that such
risks present themselves as obvious to the so-called reasonable man.” Id. (internal
citations and quotations omitted).
In the context of alcohol or drug withdrawal, “characteristics common to
intoxicated individuals do not present an obvious risk.” Id. (quoting Martinez v. Beggs,
563 F.3d 1082, 1091 (10th Cir. 2009) (internal quotations and alternation omitted)). In
Quintana, the Tenth Circuit held that “frequent vomiting alone would not present an
obvious risk of severe or dangerous withdrawal.” Id. But, the court held, vomiting blood
would constitute an obvious risk. Id. at 1029-30.
Deputy Summers knew that Mr. Newman’s BAC was 0.421% on Saturday, July
17th. Docket No. 210 at 8, ¶ 13. He knew that the arresting officer took Mr. Newman to
SWMH. Id. He knew from his conversation with Mr. Newman at 7:41 a.m. on Sunday,
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July 18th that Mr. Newman’s head hurt. Docket No. 198 at 4-5, ¶ 16. But Deputy
Summers did not observe Mr. Newman experiencing any signs of withdrawal, such as
sweating, vomiting, shakes or tremors, difficulty conversing, or indications of
hallucinations. Id. at 5, ¶ 18. Plaintiffs argue that Mr. Newman’s headache, when
combined with his facial injuries and his intoxication level the day before, provided
Deputy Summers with knowledge of a substantial risk of serious harm. Docket No. 210
at 22-23. The Court finds, however, that a headache is a “characteristic[ ] common to
intoxicated individuals” and does not present an “obvious risk.” See Quintana, 973 F.3d
at 1029. Mr. Newman’s facial injuries also provided a possible, non-serious, cause for
the headache. The Court therefore finds that Mr. Newman’s symptoms, as seen or
known by Deputy Summers, would not suggest an “obvious” risk to a reasonable person
sufficient to satisfy the subjective prong of the deliberate indifference analysis. Nor is
there any evidence that Deputy Summers otherwise drew an inference that Mr.
Newman faced a substantial risk of serious harm. 16 The Court will grant summary
judgment to Deputy Summers on the third count of the third amended complaint.
B. Monell Claim Against Sheriff Nowlin and the BOCC Regarding MCDC
Policies
Defendants argue that the BOCC and Sheriff Nowlin are entitled to summary
judgment on the Section 1983 claim that plaintiffs bring pursuant to Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978). Docket No. 198 at 8-15. Defendants argue that
16 To the extent that plaintiffs argue that Deputy Summers was deliberately
indifferent in his “gatekeeping” role, the Court finds he fulfilled his gatekeeper role by
relaying Mr. Newman’s request for medical attention to his supervisor, Deputy Jewell.
Mata v. Saiz, 427 F.3d 745, 759 (10th Cir. 2005) (holding that a prison nurse fulfilled her
gatekeeper duty by reporting an inmate’s symptoms to a nurse practitioner in
accordance with the prison protocol).
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plaintiffs have not identified an underlying constitutional violation, id. at 10-13, a
constitutionally deficient policy, id. at 13, or a pattern or practice of similar violations. Id.
at 13-15.
To the extent that plaintiffs bring a Monell claim based on a “failure to train”
theory, the Court agrees with defendants that plaintiffs have not identified an underlying
constitutional violation. A “failure-to-train claim may not be maintained without a
showing of a constitutional violation by the allegedly un-, under-, or improperly-trained
officer.” Crowson v. Washington Cnty., 983 F.3d 1166, 1187 (10th Cir. 2020). Since
the Court will grant summary judgment and dismiss the claim that Deputy Summers
violated Mr. Newman’s constitutional rights, there are no remaining allegations of a
constitutional violation by an individual officer. Therefore, the Court will grant summary
judgment to defendants on plaintiffs’ Monell claim to the extent it includes a failure-to-
train theory.
However, in certain circumstances, a Monell claim is not dependent on a
constitutional violation by an individual officer. This is true where the municipal policy at
issue spreads responsibility across multiple officers. Id. at 1192. In these so-called
“systemic failure” claims, “the policies may be unconstitutional precisely because they
fail to ensure that any single officer is positioned to prevent the constitutional violation.
Where the sum of multiple officers’ actions taken pursuant to municipal policy results in
a constitutional violation, the municipality may be directly liable.” Id. at 1191-92.
For a claim under this theory, a plaintiff must show: “(1) an official policy or
custom, (2) causation, and (3) deliberate indifference.” Id. at 1184 (citation omitted).
Defendants argue, without any citation to the record, that MCDC had policies and
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training for both the medical clearances of detainees and for ongoing monitoring of
detainees. Docket No. 198 at 13. Defendants further argue that there was no pattern
or practice of similar constitutional violations, and that the alleged violation at issue in
this case was not of an obvious or highly predictable nature such that defendants
should have been on notice of the problem even without a prior incident. Id. at 13-15.
Plaintiffs respond that defendants had a policy of using “medically untrained
deputies to monitor intoxicated and withdrawing inmates it frequently housed.” Docket
No. 210 at 20. Plaintiffs further assert that:
the County gave medically untrained deputies unfettered discretion in
determining whether an inmate needed medical attention, while providing no
written guidance on what types of monitoring should be done or what symptoms
to look for. The County’s training was also deliberately indifferent – no training at
all really – on signs and symptoms of alcohol withdrawal, and what conditions
required escalation to a nurse or doctor or hospital to evaluate.
Id. Additionally, plaintiffs argue that Sheriff Nowlin and the BOCC had no protocols on
what deputies should look for during welfare checks or when they should contact the
nurse. Id. at 20-21. Defendants reply that the plaintiffs rely only on generalities to
identify policies and customs and that plaintiffs’ theory would have the effect of
“transforming small county jails into fully-staffed medical withdrawal facilities.” Docket
No. 219 at 9-10.
The Court will first consider whether there is an official policy or custom at issue.
An official policy or custom includes:
(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
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adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused.
Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (citation
omitted). Here, Sheriff Nowlin and the BOCC had at least two policies or customs
involving intoxicated inmates. First, it had a policy of requiring a medical clearance
before booking a prisoner with a BAC over 0.2% into MCDC. Docket No. 210 at 5, ¶ 6.
Second, it had a policy or custom of placing intoxicated inmates on a list for welfare
checks every 30 minutes. Docket No. 198 at 4, ¶ 13. Plaintiffs argue that Sheriff
Nowlin and the BOCC also had a policy or custom of not training deputies about alcohol
withdrawal symptoms and not staffing MCDC with medically trained personnel. Docket
No. 210 at 20-21. Even if the Court assumes plaintiffs are right about this third “policy
or custom,” the question then becomes whether Sheriff Nowlin or the BOCC acted with
deliberate indifference in adopting these policies.
Plaintiffs must demonstrate that the municipality maintained the policies or
customs at issue with deliberate indifference to a “known or obvious risk of violation” to
a detainee’s constitutional rights. Connick v. Thompson, 563 U.S. 51, 61 (2011)
(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)).
“The deliberate indifference standard may be satisfied when the municipality has actual
or constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk of
harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Plaintiffs can prove
notice either by showing that there was a pattern of prior incidents or by showing that
the risk was highly predictable or plainly obvious. Waller, 932 F.3d at 1284.
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In Quintana, the Tenth Circuit held that a municipality could be on notice of
constitutional deficiencies based on three recent withdrawal-related deaths of inmates
and a study from the Department of Justice criticizing the jail’s medical protocols. 973
F.3d at 1034. In Burke v. Regalado, 935 F.3d 960, 1000 (10th Cir. 2019), the Tenth
Circuit held that a reasonable jury could find deliberate indifference when municipal
officials did not implement any changes despite four different reports from external
auditors criticizing the jail’s medical practices.
Here, plaintiffs do not identify any reports criticizing MCDC practices that would
have alerted officials to any constitutional deficiencies. Plaintiffs do point to the deaths
of four other intoxicated inmates at the jail. See Docket No. 210 at 16-18, ¶¶ 47-50.
Only one of these deaths, however, involved an inmate who had previously been
medically screened at SWMH, id. at 17, ¶ 48, and one 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. Waller, 932 F.3d at 1287 (quoting Coffey v.
McKinley Cnty., 504 F. App’x 715, 719 (10th Cir. 2012)).
Plaintiffs also fail to show that Mr. Newman’s death was a highly predictable or
plainly obvious consequence of Sheriff Nowlin and the BOCC’s policies. For this form
of single-incident deliberate indifference claim, plaintiffs must show that “(i) the
municipality's policymakers know to a moral certainty that their employees will confront
a given situation; (ii) the situation presents the employee with a difficult choice of the
sort that training or supervision will make less difficult; and (iii) the wrong choice will
frequently cause the deprivation of a citizen's constitutional rights.” Stella v. Davis
Cnty., 2024 WL 4764694, at *9 (10th Cir. Nov. 13, 2024) (unpublished) (quoting Valdez
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v. Macdonald, 66 F.4th 796, 817 (10th Cir. 2023)). Given that highly intoxicated
prisoners are screened for emergency medical conditions by an emergency-room
doctor before booking into MCDC, plaintiffs do not explain why county officials would
know to a moral certainty that their employees would encounter difficult decisions
related to withdrawal symptoms such that officials needed to provide additional training
or staffing.
The Court finds that plaintiffs have failed to show that Sheriff Nowlin and the
BOCC acted with deliberate indifference in adopting jail policies. The Court will grant
defendants’ motion for summary judgment on the first count of the third amended
complaint.
C. Monell Claim Against Sherrif Nowlin and the BOCC Regarding
Medical Clearances at SWMH
Plaintiffs bring a claim against the BOCC and Sheriff Nowlin alleging that they
are “non delegably liable for SWMH’s unconstitutional policies, customs, and practices.”
Docket No. 154 at 51-54. The complaint does not specify whether plaintiffs bring this
claim against Sheriff Nowlin in his official capacity or his individual capacity. See id.
But the claim makes no mention of Sheriff Nowlin’s personal involvement in Mr.
Newman having to go to SWMH for a medical clearance, so the Court will treat the
claim as being brought against Sheriff Nowlin in his official capacity. 17 “An action
against a person in his official capacity is, in reality, an action against the government
entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009
17 If the claim were against Sheriff Nowlin in his individual capacity, the Court
would grant summary judgment on the claim. See Trujillo v. Williams, 465 F.3d 1210,
1227 (10th Cir. 2006) (“for liability to arise under [Section] 1983, a defendant’s direct
personal responsibility for the claimed deprivation of a constitutional right must be
established.”).
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(10th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). The Court
will therefore treat this claim as a Monell claim. As discussed already, the first element
of a Monell claim requires that the plaintiff identify an official policy or custom. Crowson,
983 F.3d at 1184.
An officer from the Cortez Police Department arrested Mr. Newman. Docket No.
198 at 3, ¶ 8. That officer took Mr. Newman to MCDC, id., ¶ 9, and then, because
MCDC required a medical clearance to book an individual with a BAC above 0.2% into
the jail, took Mr. Newman to SWMH. Docket No. 210 at 5-6, ¶ 10.
As discussed in the previous section of this order, plaintiffs must show that
defendants acted with deliberate indifference in adopting or maintaining the policy at
issue. See Connick, 563 U.S. at 61 (citation omitted). In order to demonstrate
deliberate indifference, plaintiffs must, among other things, show that the municipality
knew of the risk of a constitutional violation either because of a pattern of prior incidents
or because the risk was highly predictable. Waller, 932 F.3d at 1284. Plaintiffs have
identified only one prior instance of an intoxicated detainee dying at MCDC after being
medically cleared by SWMH, Docket No. 210 at 17, ¶ 48, which is insufficient to provide
notice to the municipality. Waller, 932 F.3d at 1287. Nor have plaintiffs shown that the
risk was highly predictable even without a prior pattern of incidents. The Court finds
that no reasonable juror could find that defendants were deliberately indifferent
regarding the sufficiency of SWMH’s medical clearances. The Court will therefore grant
defendants’ motion for summary judgment on the fourth count of the third amended
complaint.
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D. Negligence Claim Against Sheriff Nowlin and the BOCC
Defendants seek summary judgment on the state law negligence claim that
plaintiffs bring against the BOCC and Sheriff Nowlin. Docket No. 198 at 19-20.
Defendants argue that they are entitled to summary judgment because there is no
evidence that the defendants breached any duty to Mr. Newman and no evidence that
any breach caused Mr. Newman’s death. Id. at 20.
In order to establish a prima facie case for negligence under Colorado law, a
plaintiff must show that 1) defendants owed plaintiff a legal duty of care, 2) defendants
breached that duty, and 3) the defendants’ breach caused the plaintiff to suffer an injury.
Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002). As with the other claims addressed in
this order, defendants, as the parties moving for summary judgment, have the burden to
show that “there is no genuine dispute as to any material fact” and that “the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although defendants
state that whether a defendant owes a legal duty to a plaintiff is a question of law to be
decided by a court, Docket No. 198 at 19 (citing Davenport v. Cmty. Corr. of the Pikes
Peak Region, Inc., 962 P.2d 963, 966 (Colo. 1998)), they do not brief the issue of what
duty they owed to Mr. Newman. In the absence of briefing from defendants on the
scope of the duty, the Court will not address the issue. See United States v. Wooten,
377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider . . . issues adverted
to in a perfunctory manner, unaccompanied by some effort at developed
argumentation.”). 18 Since defendants have not called into question plaintiffs’ prima facie
18 The Restatement (Second) of Torts states that “[o]ne who is required by law to
take or who voluntarily takes the custody of another under circumstances such as to
deprive the other of his normal opportunities for protection is under a similar duty to the
other.” Restatement (Second) of Torts § 314A(4) (Am. L. Inst. 1965). The phrase
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case on their negligence claim, the Court will deny defendants’ motion for summary
judgment on this claim.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the County Defendants’ Motion for Summary Judgment [Docket
No. 198] is GRANTED in part and DENIED in part. It is further
ORDERED that the third count of the Third Amended Complaint [Docket No.
154], as alleged as Deputy Zachary Summers, is DISMISSED with prejudice. It is
further
ORDERED that defendant Deputy Zachary Summers is DISMISSED from this
case. It is further
ORDERED that the first count of the Third Amended Complaint [Docket No. 154],
as alleged against the Board of County Commissioners and Sheriff Nowlin, is
DISMISSED with prejudice. It is further
“similar duty” refers to another subsection of the same section, which states that a
“common carrier is under a duty to its passengers to take reasonable action (a) to
protect them against unreasonable risk of physical harm, and (b) to give them first aid
after it knows or has reason to know that they are ill or injured, and to care for them until
they can be cared for by others.” Id. § 314A(1). See also Ulibarri v. City & Cnty. of
Denver, 742 F. Supp. 2d 1192, 1226 (D. Colo. 2010) (“I conclude that Colorado courts
would recognize that the Jail owes the duties described by Plaintiffs to its inmates in the
operation of the facility. The ‘due care’ required in the execution of that duty would be
performance in a manner ‘in accordance with the knowledge and skill ordinarily
possessed by [other] practitioners under similar circumstances.’”).
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ORDERED that the fourth count of the Third Amended Complaint [Docket No.
154], as alleged against the Board of County Commissioners and Sheriff Nowlin, is
DISMISSED with prejudice.
DATED March 28, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
_____	____	__	__	____	__	__	________	__	__	___	_____	__	________	__	__	__	____________________ _______________	__________________________________________________________________
PHILIP A BRIMMER
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