Lockhart v. Van Beek et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-00991-PAB-TPO
ESTATE OF IAN DAVID LOCKHART, by and through its personal representative,
DAVID LOCKHART, and
DAVID LOCKHART, individually,
Plaintiffs,
v.
SHERIFF JAMES VAN BEEK, in his official and individual capacities,
CAPTAIN GREGORY VAN WYK, in his official and individual capacities,
UNDERSHERIFF DAN LOYA, in his official capacity,
DEPUTY ANTHONY VALDEZ, in his official and individual capacities,
DEPUTY ANDREW VIGIL, in his official and individual capacities,
AVON POLICE OFFICER BALMORE HERRERA, in his official and individual
capacities,
EAGLE COUNTY SHERIFF’S OFFICE, and
EAGLE COUNTY BOARD OF COMMISSIONERS,
Defendants.
ORDER
This matter comes before the Court on Undersheriff Dan Loya and the Board of
County Commissioners’ Motion to Dismiss Claims in the First Amended Complaint
[Docket No. 43] and Defendant Herrera’s Motion to Dismiss Plaintiffs’ First Amended
Complaint [Docket No. 47]. Plaintiffs filed responses, Docket No. 59; Docket No. 60,
and defendants filed replies. Docket No. 61; Docket No. 62. With the Court’s
permission, plaintiffs filed a surreply. Docket No. 78. The Court has jurisdiction
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 1 of 23

2
I. BACKGROUND 1
This case arises out of the suicide of Ian David Lockhart (“decedent”) while in
pretrial detention at the Eagle County Detention Facility (“Detention Facility”) in Eagle
County, Colorado on April 13, 2023. Docket No. 36 at 2, ¶¶ 1-3. The Detention Facility
is run by the Eagle County Sheriff’s Department (the “ECSO”). Id. at 5, ¶ 22. The
plaintiffs are the estate of Ian David Lockhart, as represented by decedent’s father and
personal representative, David Lockhart (the “estate”), and David Lockhart on his own
behalf. Id. at 3-4, ¶¶ 9-10. The defendants are Sheriff James Van Beek, the Sheriff of
Eagle County; Captain Gregory Van Wyk, the ECSO officer in charge of the Detention
Facility; ECSO Undersheriff Dan Loya; ECSO Deputies Anthony Valdez and Andrew
Vigil; the ECSO itself; 2 the Eagle County Board of Commissioners; and Sergeant
Balmore Herrera of the Avon Police Department (the “APD”).
Undersheriff Loya and the Eagle County Board of Commissioners filed a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), Docket No. 43, as did Sgt.
Herrera. Docket No. 47.
Decedent’s first alleged interaction with law enforcement occurred on January
15, 2023, when ECSO deputies detained him for making suicidal statements. Id. at 7,
¶¶ 29-34. Members of the Eagle County Paramedic Services (“Paramedic Services”)
assessed decedent and transported him to Vail Health. Id., ¶¶ 32-34. The next day,
Vail Health had decedent transferred to Centennial Peaks Hospital, a behavioral health
1 The facts below are taken from plaintiffs’ first amended complaint, Docket No.
36, and are presumed to be true, unless otherwise noted, for purposes of ruling on
defendants’ motions to dismiss.
2 While the ECSO is listed in the caption of the complaint, id. at 1, no counts
within the complaint are specifically directed at the ECSO.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 2 of 23

3
hospital, on an M1 Psychiatric Hold. 3 Id. at 7-8, ¶¶ 37-40. Centennial Peaks
discharged decedent on January 20, 2023 after diagnosing him with major depressive
disorder and prescribing him several medications. Id. at 8, ¶¶ 41-42.
On January 30, 2023, officers from APD responded to a disturbance call
regarding decedent. Id., ¶ 43. APD placed decedent into custody and outfitted him with
a helmet to protect him from harming himself. Id., ¶ 44. Officer Corey S. Baldwin
transported decedent to the Detention Facility; during the drive to the Detention Facility,
decedent repeatedly stated his intention to commit suicide. Id. at 9, ¶ 46. At the
Detention Facility, ECSO employees initiated protocols for a suicidal detainee, and
Officer Baldwin completed an intake form noting that decedent was suicidal. Id., ¶¶ 47-
49.
On February 4, 2023, APD was again called to a disturbance involving decedent.
Id., ¶ 51. This time, Officer Jonathan P. Lovins arrested decedent and transported him
to Vail Health; during the drive to Vail Health, decedent stated that he wanted the police
to kill him. Id., ¶¶ 52-54. After an initial assessment at Vail Health, which involved
several more statements by decedent regarding his desire for the police to kill him, a
Vail police officer transported decedent to the Detention Facility. Id. at 10, ¶¶ 55-61.
Upon arrival at the Detention Facility, a mental-health provider assessed decedent and
learned of his desire either to kill himself or to be killed by a police officer. Id. at 10-11,
¶¶ 63-68. The mental-health provider recommended that decedent again be placed on
an M1 Psychiatric Hold. Id. at 11, ¶ 71. Paramedic Services then transported decedent
3 Colo. Rev. Stat. § 27-65-101 provides for an M1 Psychiatric Hold when an
individual is deemed to be in imminent danger of harming himself or others. Id. at 8,
¶ 38.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 3 of 23

4
back to Vail Health. Id., ¶ 72. The next day, February 5, a mental-health provider at
Vail Health assessed decedent. Id. at 12-13, ¶¶ 78-82. On February 6, Paramedic
Services transported decedent to Centennial Peaks. Id. at 13, ¶ 83. Mental-health
providers at Centennial Peaks assessed decedent and admitted him to the hospital. Id.
at 14, ¶¶ 87, 91. After treating decedent, Centennial Peaks released him into police
custody on February 10. Id. at 15, ¶ 94.
On April 6, 2023, Sgt. Balmore Herrera of the APD responded to a disturbance
call involving decedent. Id., ¶ 95. Sgt. Herrera arrested decedent and transported him
to the Detention Facility. Id., ¶ 96. According to the complaint, Sgt. Herrera wrote the
following regarding his interactions with decedent:
As we were escorting Ian down the stairs, he began yelling at his father, that he
was going to kill himself and that he would be responsible, he told his happy[sic]
that he hoped he would be happy knowing that Ian killed himself because of him.
Ian was verbally abusive towards me, he stated he wanted to go to the hospital, I
asked him why, he stated that he wanted to kill himself and preferred to be at the
hospital instead of the jail. I advised Ian that I would notify the jail deputies of his
statement, and I would ensure that he had the ability to speak with someone who
could help him. Ian stated he didn’t want to speak to the hope center, I explained
to Ian that the jail would be able to provide him with resources. During the
transport to the Jail, Ian’s demeanor would change from crying, kicking the cage
and at times hitting his head on the side plexi-glass. Every time I observed Ian
hit his head, I would ask him not to do it, he would immediately stop. He did this
several times, but complied every time I asked him to stop. Ian continually
repeated that he was going to kill himself once he got to the jail, that it was easy
for him to hang himself and that I would be responsible for his death.
Once at the jail, Ian refused to exit the car, I unbuckled the prisoner
restraint, Ian kept trying to hit his head. I assisted Ian out of the vehicle, cradling
his head with my arm to ensure he wouldn’t hit me or try to otherwise hurt
himself. Once Ian was out of the vehicle, I transitioned to an escort hold and
escorted Ian into the holding area of the jail. Ian would refuse to sit down, I
applied direct pressure above his hip near his abdomen to assist him into a
sitting position, I did not want Ian ambulatory to prevent Ian from injuring himself.
I secured Ian to the bench by utilizing one of the restraint loops and a second set
of handcuffs. Ian continued his verbal aggression towards me, the jail deputies
exited and attempted to de-escalate Ian, he did not listen and continually made
suicidal statements to them. I filled out the pre-booking questionnaire, one of the
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 4 of 23

5
questions was regarding suicidal statements made by the arrestee, I checked
yes on that portion of the form and advised Jail Deputies that Ian had threatened
to hang himself once inside the jail. I was advised by the Jail Deputies that they
would take note of that, and that Ian also made similar statements to them. I
transferred custody of Ian to the ECSO Jail Deputies.
Id. at 15-16, ¶ 97.
Once at the Detention Facility, decedent was “wrapped and fogged,” a process
that involves being dressed in a mesh outfit, placed in a restraint chair, and sprayed
with pepper spray. Id. at 16, ¶ 99. ECSO officials also placed decedent into the jail’s
STEP monitoring system for inmates at risk of committing suicide. Id. at 17, ¶ 105.
Initially, decedent was at the STEP 1 level, which meant that decedent’s cell was
without any items that he might be able to use to hang himself, and deputies checked
on decedent every 15 minutes. Id., ¶¶ 106-08. During this time, Deputy Vigil observed
decedent kicking his cell and smearing feces on the wall, and both Deputies Vigil and
Valdez heard decedent making suicidal statements. Id. at 18, ¶¶ 112-16.
Mental-health assessments for decedent also began on April 6. Id. at 18-19,
¶¶ 117-119. Clinicians from Your Hope Center, a mental health provider working with
the Detention Facility, assessed decedent that day and heard his suicidal statements
and observed his behaviors. Id., ¶ 119. After the evaluation, Dr. Theresa Haynes, the
clinical director of Your Hope Center, recommended to Captain Van Wyk that decedent
be hospitalized so that he could receive a higher level of care. Id. at 19, ¶¶ 120-23.
Captain Van Wyk rejected that recommendation. Id., ¶ 124.
A second evaluation by Your Hope Center on April 7 found that decedent was
still suicidal. Id. at 20, ¶ 126. But, after an evaluation on April 8, decedent moved to
STEP 2, at which point he received a normal mattress, bedding, and clothes, and
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 5 of 23

6
deputies were to check on him every 30 minutes. Id., ¶ 129. On April 10, ECSO
deputies again “fogged” decedent. Id., ¶ 131. Your Hope Center evaluated decedent
that day. Id. at 21, ¶ 132. Decedent moved to STEP 3, where he received some
personal items, but was still to be checked on every 30 minutes. Id. at 21, ¶¶ 132-134.
Decedent remained in a solitary cell, with a video camera monitoring every part of the
cell except for the toilet. Id., ¶ 134.
On April 11, ECSO Deputy Kyle DeVries wrote a staff-wide email to the
Detention Facility staff saying that decedent had stated that he wanted to die and that
he would tell Your Hope Center staff whatever they wanted to hear in order to “get out
of holding.” Id., ¶¶ 135-37. Deputy Anthony Valdez, who worked at the Detention
Facility, received this email and relayed its contents to Your Hope Center clinicians. Id.
at 21-23, ¶¶ 137-39, 151.
On April 12 at 1:30 p.m., the video camera in decedent’s cell recorded him
fashioning his bedsheet into a noose, putting it around his neck, adjusting it, and then
hiding the noose under his blanket. Id. at 22, ¶ 144. The video shows him tinkering
with the noose again at 1:50 p.m. and 2:02 p.m. Id. at 22-23, ¶¶ 145-146. Between
2:20 p.m. and 3:30 p.m., Your Hope Center evaluated decedent and learned that, while
decedent denied suicidal ideations, he had contemplated writing a suicide note the day
before. Id. at 23, ¶¶ 147-48. Decedent told the Your Hope Center clinician that he
believed he needed to be treated by Centennial Peaks again; the clinician responded
that a transfer to Centennial Peaks was not possible. Id., ¶¶ 149-50.
A deputy checked decedent’s cell at 5:12 p.m. Id., ¶ 153. While the deputy
looked under decedent’s mattress and touched his pillow, the deputy failed to discover
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 6 of 23

7
the noose. Id. Shortly thereafter, the camera again recoded decedent checking the
noose. Id., ¶ 154.
On April 13 at 12:40 p.m., the camera recorded decedent looking out of his cell
door, retrieving the noose, placing the sheet over the cell door, climbing up on the sink,
placing the noose around his neck, and stepping off the sink. Id. at 24, ¶ 160. Plaintiffs
allege that the camera recorded decedent hanging from the noose for 15 minutes. Id.,
¶ 161. At 12:55 p.m. Deputies Vigil and Valdez opened the door to decedent’s cell,
causing him to fall, and dragged him out of the room. Id., ¶ 162. Paramedic Services
arrived at the jail and transported decedent to Vail Health, where he was pronounced
dead. Id. at 25, ¶ 163.
Plaintiffs allege that Undersheriff Loya failed to train and supervise the other
named defendants who worked at ECSO and the Detention Facility and failed to take
reasonable measures to protect the health and welfare of those detained at the
Detention Facility. Id., ¶ 167. Plaintiffs also allege that Undersheriff Loya failed to act
upon warnings that decedent was suicidal. Id. at 25-26, ¶¶ 168-69.
II. LEGAL STANDARD
A. Motions to Dismiss
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 7 of 23

8
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 8 of 23

9
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded 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 v. Fitzgerald, 457 U.S. 800,
818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When a
defendant raises the defense of qualified immunity, a “plaintiff carries a two-part burden
to show: (1) that the defendant’s actions violated a federal constitutional or statutory
right, and, if so, (2) that the right was clearly established at the time of the defendant’s
unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal
quotation marks omitted). Courts are “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case.” Pearson, 555 U.S.
at 236.
A constitutional right is clearly established if “the contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 9 of 23

10
violates that right.” Surat v. Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022). “Ordinarily,
in order for the law to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Torres v. Madrid, 60 F.4th
596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th Cir.
2022). The relevant precedent is “considered on point if it involves materially similar
conduct or applies with obvious clarity to the conduct at issue.” Yehia, 38 F.4th at 1294
(emphasis in original); see also Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir.
2022). “To be clear, we do not require plaintiffs to engage in a scavenger hunt for a
prior case with identical facts. We ask whether the existing law provides fair warning to
a defendant.” Shepherd, 55 F.4th at 815 (citations omitted). “When the public official’s
conduct is egregious, even a general precedent would apply with obvious clarity.”
Yehia, 38 F.4th at 1294 (quoting Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th Cir.
2017)); see also Surat, 52 F.4th at 1276 (noting that “there can be the rare obvious
case, where the unlawfulness of the officer’s conduct is sufficiently clear even though
existing precedent does not address similar circumstances”).
III. ANALYSIS
The Court will first address the motion to dismiss filed by defendants Undersheriff
Loya and the Eagle County Board of Commissioners (the “BOCC”). The Court will then
address the motion to dismiss filed by defendant Sergeant Balmore Herrera.
A. Undersheriff Loya and the BOCC’s motion to dismiss
Undersheriff Loya and the BOCC (collectively, the “Eagle County defendants”)
assert three grounds for dismissal in their motion. Docket No. 43. First, the Eagle
County defendants argue that David Lockhart does not have standing to pursue any
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 10 of 23

11
claims on his own behalf. Id. at 3-4. Second, they argue that the complaint asserts
duplicative official-capacity claims and that the only official-capacity claim should be
against Sheriff Van Beek. Id. at 4-6. Third, they argue that Colorado law does not
provide a cause of action for plaintiffs to seek relief against the BOCC. Id. at 6.
1. 	Whether David Lockhart has Standing to Pursue Claims On
His Own Behalf
The Eagle County defendants argue that David Lockhart does not have standing
to bring his own section 1983 claim for wrongful death and that only the estate of Ian
Lockhart can bring such a claim. Id. at 3-4. Plaintiffs respond that parents can bring
their own claims for damages resulting from a deprivation of their right to familial
association. Docket No. 60 at 2-4.
There is a constitutional right to familial relationships, and a person deprived of
such a relationship by an official acting under color of state law may bring a cognizable
claim under section 1983. Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe, 768 F.2d 1186,
1188-90 (10th Cir. 1985). Parents have the right to bring such a claim when their child
has wrongfully died while incarcerated. Id. at 1189. David Lockhart therefore has
standing to bring a claim against the Eagle County defendants for depriving him of his
right to familial association with his son, Ian Lockhart.
In their reply, the Eagle County defendants raise a new argument, asserting that
even if David Lockhart does have standing to bring a claim for deprivation of familial
association, he has failed to plead such a claim here. Docket No. 61 at 2-4.
Specifically, they argue that Trujillo requires an allegation that the defendants intended
to deprive David Lockhart of his relationship with his son, and that the complaint does
not include any allegations to that effect. Id. (citing Trujillo, 768 F.2d at 1190). The
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 11 of 23

12
Court gave plaintiffs an opportunity to file a surreply addressing this argument, Docket
No. 76, which plaintiffs did. Docket No. 78. In the surreply, plaintiffs concede that
David Lockhart “has not yet specifically alleged that Defendants acted with ‘intent to
interfere’ with his relationship with his son.” Id. at 2. Plaintiffs thus request that the
Court dismiss without prejudice the Section 1983 claim that David Lockhart brings on
his own behalf. Id.
As the Tenth Circuit explained in Trujillo, “an allegation of intent to interfere with a
particular relationship protected by the freedom of intimate association is required to
state a claim under section 1983.” 768 F.2d at 1190. Having reviewed the present
complaint, the Court finds that there are no allegations that either Undersheriff Loya or
the BOCC acted with an intent to deprive David Lockhart of his familial association with
his son. Therefore, the Court will dismiss the claim that David Lockhart brings on his
own behalf against Undersheriff Loya and the BOCC without prejudice.
2. 	Whether the Complaint’s Official-Capacity Claims are
Duplicative
The Eagle County defendants argue that the claims in the complaint brought
against defendants in their official capacity are duplicative and that only a single official-
capacity complaint against Sheriff Van Beek is proper. Docket No. 43 at 4-6. Plaintiffs
respond that they must bring multiple official-capacity claims because the facts involving
each of the various defendants are distinct. Docket No. 60 at 4-5. The Eagle County
defendants reply that the factual distinctions among various defendants are irrelevant
because the focus of an official-capacity claim is on the “policy or custom” of the
municipal entity that led to the violation of federal law. Docket No. 61 at 5. The Eagle
County defendants also argue that, even if Undersheriff Loya is a policymaker for the
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 12 of 23

13
purposes of liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), an
official-capacity claim against him is still redundant given the official-capacity claim
against Sheriff Van Beek. Id.
“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 (10th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66,
(1985)). Furthermore, “[a]s long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Graham, 473 U.S. at 166. Where, as here, the
entity is also named, 4 there is no need for additional official-capacity claims. As a
result, plaintiffs’ official-capacity claim against Undersheriff Loya is redundant,
unnecessary, and potentially confusing.
Courts that have faced similar scenarios – complaints that allege identical claims
against both an entity and agents of that entity in their official capacities – have taken
two tacks. Some dismiss the claims under federal courts’ inherent authority to manage
the cases before them. See, e.g., Saleh v. Federal Bureau of Prisons, No. 05-cv-
02467-PAB-KLM, 2008 WL 6893366, at *5 (D. Colo. July 29, 2008), recommendation
accepted in part and rejected in part on other grounds, 2009 WL 3158120 (D. Colo.
Sept. 29, 2009) (listing cases). Others rely on Federal Rule of Civil Procedure 12(f) –
4 Claims against a Colorado county generally require naming the Board of
County Commissioners as the defendant. Said v. Teller Cnty., No. 14-cv-02745-RPM,
2015 WL 1598098, at *4 (D. Colo. Apr. 9, 2015). But the county sheriff is a distinct
position under the Colorado Constitution, and civil rights claims involving the policies of
the sheriff’s office are appropriately brought against the sheriff in the sheriff’s official
capacity. Id.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 13 of 23

14
“[t]he court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter” – to eliminate redundant official-capacity
claims. See, e.g., Brown v. City of Mounds, Ill., 2009 WL 3055490, at *4 (S.D. Ill. Sept.
22, 2009); McCleskey v. City of Dothan, 2009 WL 1258290, at *1-2 (M.D. Ala. May 5,
2009).
In the present case, while either approach would be justified, the Court believes
that the proper mechanism for removing the official-capacity claims is Rule 12(f).
Therefore, plaintiffs’ official-capacity claim against Undersheriff Loya is stricken as
redundant, unnecessary, and potentially confusing pursuant to Federal Rule of Civil
Procedure 12(f). 5
3. 	Whether Colorado Law Allows a Suit against the BOCC
The Eagle County defendants argue that the BOCC is not a proper defendant
because the BOCC commissioners and the sheriff are separately elected officials and
the BOCC does not exercise managerial control over the sheriff. Docket No. 43 at 6.
The Eagle County defendants further argue that Colorado Revised Statute § 17-26-126,
which directs the BOCC to inspect and remedy issues in the jail, does not provide a civil
remedy. Id. Plaintiffs respond that they are bringing a negligence claim, not a statutory
claim, that C.R.S. § 17-26-126 creates a mandatory duty that the BOCC breached, and
5 The Court rejects plaintiffs’ argument that the distinct facts involving the various
defendants necessitate multiple official-capacity claims. Docket No. 60 at 4-5. The
cases plaintiffs cite in support of this argument, such as Tufaro v. Okla. ex rel. Bd. of
Regents of Univ. of Okla., 107 F.4th 1121 (10th Cir. 2024), involve claims brought
against defendants in both their official and individual capacities. Id. at 1129. Plaintiffs’
present claim against Undersheriff Loya is only an official-capacity claim. Docket No.
36 at 34. Moreover, any factual allegations regarding the various defendants that
plaintiffs believe are relevant could still be asserted as part of the official-capacity claim
against Sheriff Van Beek.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 14 of 23

15
that plaintiffs, as members of the class meant to be protected by said duty, are able to
bring a claim when a public entity violated a statutory duty in a public premises. Docket
No. 60 at 6-12. Defendants reply that there is no authority that supports plaintiffs’
argument that the BOCC can be held liable for violations occurring in a jail run by the
sheriff. Docket No. 61 at 6.
The Court agrees with the Eagle County defendants. Pursuant to Colorado law,
“the [county] commissioners and the sheriff are separately elected officials.” Terry v.
Sullivan, 58 P.3d 1098, 1102 (Colo. App. 2002). “[T]he Board [of County
Commissioners] does not exercise managerial control over either the sheriff or the
detention center and its staff.” Id.; see Colo. Rev. Stat. § 30–10–511 (“[t]he sheriff shall
have charge and custody of the jails of the county, and of the prisoners in the jails, and
shall supervise them himself or herself through a deputy or jailer.”). The BOCC is
granted certain enumerated powers which do not include management of county jails.
Colo. Rev. Stat. § 30–11–107; cf. Richart v. Bd. of Comm'rs of Boulder Cnty., 33 P.2d
971, 972–73 (Colo. 1934) (stating, when interpreting the predecessor statutes, that the
“general powers conferred upon the board with reference to the county’s property
generally, when in conflict with the special, particular powers conferred upon the sheriff
with reference to jails, must yield to the latter”). Therefore, any allegations regarding the
conduct of the ECSO in managing the jail and any resulting harm to the plaintiffs are
insufficient to state a claim against the BOCC. The Court will dismiss plaintiffs’ claim
against the BOCC.
B. Sergeant Herrera’s motion to dismiss
Plaintiffs allege a federal claim under 42 U.S.C. § 1983 and a state law
negligence claim against Sgt. Herrera. Docket No. 36 at 49-52. Sgt. Herrera makes
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 15 of 23

16
four arguments in his motion to dismiss the two claims against him. First, he argues
that plaintiffs’ official-capacity allegations under Section 1983 are insufficient. Docket
No. 47 at 10. Second, he argues that he is entitled to qualified immunity on plaintiffs’
section 1983 claim. Id. at 4-8. Third, he argues that the Colorado Governmental
Immunity Act (“CGIA”) bars the tort claim against him. Id. at 8-9. Fourth, he argues
that, if the Court dismisses the tort claim, Colorado law requires the Court to award him
attorneys’ fees and costs. Id. at 10-11.
1. 	The Section 1983 Claim against Sgt. Herrera
The caption of the complaint states that Sgt. Herrera is being sued in both his
official and individual capacities. Docket No. 36 at 1. Count XIV of the complaint is a
section 1983 claim against Sgt. Herrera in his official capacity, alleging that Sgt. Herrera
violated the Fourteenth Amendment by being deliberately indifferent to decedent’s
health needs. Id. at 49-51. Count XV of the complaint is a Colorado state tort claim for
wrongful death against Sgt. Herrera, alleging that Sgt. Herrera acted willfully, wantonly,
and recklessly in taking decedent to the Detention Facility rather than to a hospital. Id.
at 51-52. The complaint does not state whether Count XV is against Sgt. Herrera in his
official or individual capacity. Id. at 51.
The Court takes plaintiffs at their word that Count XIV is meant to be brought
against Sgt. Herrera in his official capacity. As previously discussed in this order, “[a]n
action against a person in his official capacity is, in reality, an action against the
government entity for whom the person works.” Pietrowski, 134 F.3d at 1009 (citing
Graham, 473 U.S. at 165-66). And claims against a municipality must allege a policy or
custom that violated a person’s rights. Monell, 436 U.S. at 694. The Court finds that
the complaint is devoid of any allegations regarding the customs or policies of the Town
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 16 of 23

17
of Avon, Sgt. Herrera’s municipal employer. Plaintiffs essentially concede as much, but
they argue that discovery is necessary for them to be able to identify any policies or
customs of the Town of Avon that are relevant to the case. Docket No. 59 at 14. The
law is clear, however, that plaintiffs must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. On this basis alone, the Court will dismiss this claim.
Even if the Court were to interpret the section 1983 claim as being brought
against Sgt. Herrera in his individual capacity, qualified immunity would shield him from
liability because any right of decedent that Sgt. Herrera allegedly violated was not
clearly established. “[F]or the law to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of authority
from other courts must have found the law to be as the plaintiff maintains.” Torres, 60
F.4th at 603 (citation omitted). The plaintiffs have not identified, nor is the Court aware
of, any cases holding that an arresting officer violates an arrestee’s rights when the
arresting officer is aware of that arrestee’s serious mental-health needs, knows that the
jail provides mental-health treatment, and informs the jail of the arrestee’s need for such
services. In fact, the Tenth Circuit has found no clearly established law in the more
problematic context of an arresting officer who is aware of an arrestee’s serious mental-
health needs, but does not inform the jail of these needs. Est. of Simon ex rel. Simon,
2023 WL 8544800, at *5.
Instead, cases from other circuits on this issue and cases from the Tenth Circuit
in the context of other medical needs of arrestees focus on whether the arresting officer
informed the jail of the medical concerns or otherwise acted to obtain medical treatment.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 17 of 23

18
Batton v. Sandusky, 2024 WL 1480522, at *6-7 (6th Cir. 2024) (denying qualified
immunity for an arresting officer who arrested an obviously suicidal man, but did not
inform jail officials that the man was suicidal); Cavalieri v. Shepard, 321 F.3d 616, 622
(7th Cir. 2003); Rife v. Jefferson, 742 F. App’x 377, 384-86 (10th Cir. 2018)
(unpublished) (denying qualified immunity for an officer who arrested a man who had
obviously been seriously injured in a motorcycle accident, but did not make any efforts
to obtain medical treatment); Olsen v. Layton Hills Mall, 312 F.3d 1304, 1316-17 (10th
Cir. 2002) (officer could be held liable for ignoring arrestee’s statements about having
an OCD-induced panic attack).
Sgt. Herrera’s conduct is distinguishable from that of the officers in the cases just
discussed. When decedent told Sgt. Herrera that he wanted to commit suicide, Sgt.
Herrera responded that he would be able to speak with someone at the jail who could
help with mental-health concerns. Docket No. 36 at 15, ¶ 97. Upon arrival at the
Detention Facility, Sgt. Herrera wrote on the intake form that decedent had made
suicidal statements. Id. at 16, ¶ 97. Sgt. Herrera also verbally informed the intake
officers that decedent had threatened to hang himself in the jail. Id. And, true to Sgt.
Herrera’s word, mental-health professionals met with decedent repeatedly during his
time in the Detention Facility. Id. at 18-22, ¶¶ 119, 126, 128, 132, 139. The Court
therefore finds that, even if the complaint brings an individual-capacity claim against
Sgt. Herrera, he is entitled to qualified immunity.
2. 	Whether the CGIA Bars Plaintiffs’ Wrongful Death Claim
against Sgt. Herrera
Sgt. Herrera argues that he is entitled to sovereign immunity under the Colorado
Governmental Immunity Act for actions related to plaintiffs’ wrongful death claim.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 18 of 23

19
Docket No. 47 at 8-9. Plaintiffs respond that the CGIA does not apply because Sgt.
Herrera acted in a willful and wanton manner. Docket No. 59 at 12-14. Sgt. Herrera
replies that plaintiffs have misstated the law and that none of his actions fall within the
“willful and wanton” exception to the CGIA. Docket No. 62 at 7-9.
Under the CGIA, public employees generally cannot incur liability for injuries
arising from conduct performed in the course of their employment. Quintana v. Dodge,
2024 WL 1048959, at *3 (10th Cir. Mar. 11, 2024) (citing Colo. Rev. Stat. § 24-10-118.).
There is an exception to this rule when the employee’s conduct was willful or wanton.
Id. The Tenth Circuit has described the CGIA exception as applying only in the context
of a conscious disregard of danger when “the conduct had been specifically calculated
to cause the alleged harm or the defendant had been aware that the conduct would
cause the harm.” Id. at *4 (citing McDonald v. Wise, 769 F.3d 1202, 1218 (10th Cir.
2014)). In Quintana, two police officers threw tear gas canisters into the house of a
suspect, and the canisters started a deadly fire. Id. at *1. The court held that the
plaintiff failed to show willful and wanton conduct because the evidence showed only
that the officers knew that the canisters “could” cause a fire, not that they “would” cause
a fire. Id. at *5-6. In the context of an arresting officer failing to obtain healthcare for an
arrestee, the Tenth Circuit has similarly held that the willful and wanton standard
requires that the officer “know” of the danger, not just that the officer “should have
known” of it. Schmitz v. Colo. State Patrol, 841 F. App’x 45, 57 (10th Cir. 2020)
(unpublished).
The complaint is devoid of any allegations that Sgt. Herrera, by taking decedent
to the Detention Facility rather than to a hospital, specifically calculated that his actions
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 19 of 23

20
would lead to decedent committing suicide. Nor is there any allegation that Sgt. Herrera
knew that decedent would commit suicide if taken to the Detention Facility. The
complaint asserts that Sgt. Herrera’s decision to take decedent to the Detention Facility
was a deliberate decision to deprive decedent of medical care. Docket No. 36 at 51-52,
¶¶ 301-302. But plaintiffs undercut their argument by also alleging in the complaint that
Sgt. Herrera intended for decedent to receive mental-health services at the Detention
Facility, id. at 15-16, ¶ 97, and that such services were indeed available at the Detention
Facility. Id. at 18-22, ¶¶ 119, 126, 128, 132, 139. The Court finds that plaintiffs have
failed to allege that Sgt. Herrera acted in a willful and wanton manner, and that
therefore the CGIA serves to shield Sgt. Herrera from liability on this claim. The Court
will dismiss the wrongful death claim against Sgt. Herrera.
3. 	Whether Sgt. Herrera is Entitled to Attorneys’ Fees for the
State Claim
Sgt. Herrera argues that, if the Court dismisses the wrongful death claim against
him, as it has, Colorado law requires the Court to award him attorneys’ fees and costs
for defending himself against that claim. Docket No. 47 at 10-11. Plaintiffs respond that
awarding fees is not appropriate in the context of a complaint alleging both federal and
state claims. Docket No. 59 at 14-15. Sgt. Herrera’s reply did not discuss this issue
further.
Federal courts exercising supplemental jurisdiction over a state-law claim apply
the substantive law of the state. In re HomeAdvisor, Inc. Litigation, No. 16-cv-01849-
PAB-KAS, 345 F.R.D. 208, 228 (D. Colo. 2024). In the Tenth Circuit, attorneys’ fees
statutes are considered substantive. See Jones v. Denver Post Corp., 203 F.3d 748,
757 (10th Cir. 2000), abrogated on other grounds by National R.R. Passenger Corp. v.
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 20 of 23

21
Morgan, 536 U.S. 101 (2002). A determination of whether to award attorneys’ fees
begins with the American Rule, which precludes an award of attorneys’ fees absent a
specific contractual, statutory, or procedural rule providing otherwise. City of Aurora ex
rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595, 618 (Colo. 2005) (citing Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975)); see also Buder v.
Sartore, 774 P.2d 1383, 1390 (Colo. 1989). Sgt. Herrera argues that he is entitled to
attorneys’ fees under Colo. Rev. Stat. § 13-17-201, which applies to tort claims
dismissed at the motion-to-dismiss stage, and Colo. Rev. Stat. § 24-10-110(5)(c).
Docket No. 47 at 10-11. 6 Sgt. Herrera also seeks costs under Colo. Rev. Stat. § 13-16-
113(2). Id. at 11.
Cases addressing motions for attorneys’ fees under Colo. Rev. Stat. § 24-10-
110(5)(c) have held that the statute does not apply in cases where the claim is primarily
a section 1983 claim and the state law claim arises from the same alleged facts and
conduct as the federal claim. Brooks v. Gaenzle, No. 06-cv-01436-CMA-MJA, 2009 WL
4949922, at *3 (D. Colo. Dec. 15, 2009) (citing Haynes v. City of Gunnison, 214
F. Supp. 2d 1119, 1122-23 (D. Colo. 2002)). While Brooks and Haynes do not address
Colo. Rev. Stat. § 13-17-201, the statute’s language is similar to Colo. Rev. Stat. § 24-
10-110(5)(c). Moreover, the Colorado Supreme Court has held that section 13-17-201
is in derogation of the long-established American Rule and must be construed narrowly.
Crandall v. City of Denver, 238 P.3d 659, 662 (Colo. 2010). As such, the Court finds
that section 13-17-201 should be limited in the same way as section 24-10-110(5)(c).
6 Colo. Rev. Stat. § 24-10-110(5)(c) applies to claims for exemplary damages
brought against public officials for willful and wanton conduct where the plaintiff does
not “substantially prevail.”
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 21 of 23

22
The complaint’s allegations against Sgt. Herrera in the federal and state claims are
essentially the same, with both counts focusing on Sgt. Herrera’s decision to transport
decedent to the Detention Facility rather than to a hospital. Docket No. 36 at 49-52.
Therefore, the Court finds that neither section 13-17-201 nor section 24-10-110(5)(c)
applies to the present case, and that Sgt. Herrera is not entitled to attorneys’ fees.
Section 13-16-113(2) is not, however, in derogation of any general rule, Crandall,
238 P.3d at 662, and it applies in federal court. Infant Swimming Rsch., Inc. v.
Heumann, No. 07-cv-00839-LTB-BNB, 2008 WL 11435774, at *4 (D. Colo. 2008). But,
although Sgt. Herrera may be entitled to costs, the award of costs under section 13-16-
113(2) is “committed to the sole discretion of the trial court.” Infant Swimming Rsch.,
Inc. v. Faegre & Benson, LLP, 335 F. App'x 707, 717 (10th Cir. 2009) (unpublished)
(quoting City of Westminster v. Centric–Jones Constructors, 100 P.3d 472, 487 (Colo.
App. 2003)). The Court will order Sgt. Herrera to file a motion detailing the costs he
believes he is entitled to recover, along with supporting documentation, within three
weeks of this order.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED Undersheriff Dan Loya and the Board of County Commissioners’
Motion to Dismiss Claims in the First Amended Complaint [Docket No. 43] is
GRANTED. It is further
ORDERED that David Lockhart’s claims on his own behalf against Undersheriff
Dan Loya and the Eagle County Board of Commissioners are DISMISSED without
prejudice. It is further
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 22 of 23

23
ORDERED that Count IV against Undersheriff Dan Loya is DISMISSED without
prejudice. It is further
ORDERED that Count XIII against the Eagle County Board of Commissioners is
DISMISSED without prejudice. It is further
ORDERED that defendants Undersheriff Dan Loya and the Eagle County Board
of Commissioners are DISMISSED from this case. It is further
ORDERED that Defendant Herrera’s Motion to Dismiss Plaintiffs’ First Amended
Complaint [Docket No. 47] is GRANTED in part and DENIED in part. It is further
ORDERED that Counts XIV and XV against Sgt. Balmore Herrera are
DISMISSED without prejudice. It is further
ORDERED that defendant Sgt. Balmore Herrera is DISMISSED from this case.
It is further
ORDERED that Sgt. Balmore Herrera may file a motion for costs on or before
March 21, 2025 in compliance with D.C.COLO.LCivR 54.1.
DATED February 28, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
___________________________________	_ __________	_________	___________
Case No. 1:24-cv-00991-PAB-TPO Document 79 filed 02/28/25 USDC Colorado
pg 23 of 23