ORDER AND MEMORANDUM OF DECISION
This is a civil rights case in which Plaintiff Bronwyn Anglin alleges Defendants violated her rights to due process and free speech, as well as her right to be free from unreasonable seizure, by forcibly injecting her with antipsychotic medication while in custody at the Pitkin County Jail. This matter is before the court on “Defendants Pitkin County Commissioners, Robert Braudis, and Walt Geister’s Brief in Support of Motion for Summary Judgment,” filed April 11, 2007. Two other summary judgment motions are currently pending before the court in this case. The instant motion is brought solely by the Defendants associated with Pitkin County, which include Pitkin County Commissioners, Pitkin County Sheriff Robert Braudis, and Pitkin County Deputy Sheriff Walt Geister (hereinafter collectively “County Defendants”). Jurisdiction is premised upon the existence of a federal question pursuant to 28 U.S.C. §§ 1331 and 1343.
FACTS
1. Factual Background
On the evening of December 11, 2004, Plaintiff and her four-year-old daughter attended a dinner party at the apartment of her friend, Amber Nespeca. (Defs. Pit-kin County Comm’rs, Robert Braudis, and Walt Geister’s Br. in Supp. of Mot. for Summ. J. [hereinafter “Defs.’ Br.”], Statement of Undisputed Material Facts [hereinafter “SOF”] ¶1 [filed Apr. 11, 2007]; admitted at Resp. to Pitkin County Defs.’ Mot. for Summ. J. [hereinafter “Pl.’s Resp.”], Resp. to Statement of Undisputed Material Facts [hereinafter “RSOF”] ¶ 1 [filed June 14, 2007].) Kevin Dunkleburg, Ms. Nespeca’s boyfriend, also attended the party. (Id.) Over the course of the evening, Plaintiff consumed four to five glasses of wine. (Id., SOF ¶ 2; admitted at PL’s Resp., RSOF ¶ 2.) During the party, Ms. Nespeca and Mr. Dunkleburg became embroiled in an argument, and Plaintiff witnessed Mr. Dunkleburg hitting Ms. Nespeca. (Id., SOF ¶¶ 3^4; admitted at PL’s Resp., RSOF ¶¶ 3-4.) Out of concern for Ms. Nespeca, Plaintiff called 9-1-1, and Defendants Aspen Valley Police Officers Melinda Calvano and Ron Fabrocini, as well as Officer Dan Davis were dispatched to the scene. (Id., SOF ¶¶ 4-5; admitted at PL’s Resp., RSOF ¶¶ 4r-5.) Upon arrival, the police arrested Ms. Nespeca. (Id., SOF ¶ 6; admitted at PL’s Resp., RSOF ¶ 6.) Plaintiff was shocked at Ms. Nespeca’s arrest, because she thought Mr. Dunkleburg should have been arrested instead. (Id.)
Ms. Nespeca was then taken to Pitkin County Jail. (Id., SOF ¶ 8; admitted at PL’s Resp., RSOF ¶ 8.) At around 1:00
Plaintiff then went to the jail lobby and called 9-1-1 from her mobile phone in an attempt to get a county sheriff to help her bond Ms. Nespeca out of jail. (Id., SOF ¶ 17; admitted in relevant part at PL’s Resp., RSOF ¶ 17; see also PL’s Resp., Ex. 1 at 5-6 [Pl. Dep.].) Plaintiff was unsure how to reach a county sheriff at that time of night other than by calling 9-1-1. (PL’s Resp., Statement of Additional Disputed or Undisputed Facts [hereinafter “SAF”] ¶ 1; admitted at Pitkin County Defs.’ Reply in Supp. of Mot. for Summ. J [hereinafter “Defs.’ Reply”], Resp. Concerning Disputed Facts [hereinafter “RSAF”] ¶ 1 [filed July 9, 2007].) After being put on hold for what Plaintiff believed to be approximately two minutes, she thought the dispatcher had lost the call; so, she hung up and called 9-1-1 a second time. (Defs.’ Br., SOF ¶¶ 17-18; admitted in relevant part at PL’s Resp., RSOF ¶¶ 17-18; see also PL’s Resp., Ex.T at 5 [PL’s Dep.].) Again, the dispatcher placed Plaintiff on hold for approximately two minutes, and, again, Plaintiff hung up and called 9-1-1. (Defs.’ Br., SOF ¶ 18; admitted at PL’s Resp., RSOF ¶ 18.)
The 9-1-1 dispatcher, in turn, called the jail booking room to report that Plaintiffs repeated phone calls were tying-up the 9-1-1 system and had forced her to drop one legitimate emergency call. (Id., SOF ¶ 20; admitted at PL’s Resp., RSOF ¶ 20.) The dispatcher requested that jail personnel do something to prevent Plaintiff from continuing to interfere with 9-1-1 operations. (Id.) Officers Calvano and Davis proceeded to the lobby and shackled and handcuffed Plaintiff without warning. (PL’s Resp., SAF ¶ 2; admitted at Defs.’ Reply, RSAF ¶ 2.) Because all the other cells in the jail were already occupied by other inmates, Deputy Geister decided to put Plaintiff in the jail’s maximum security cell. (Defs.’ Br., SOF ¶ 23; admitted at PL’s Resp., RSOF ¶ 23.) Plaintiff struggled and had to be dragged to her cell, because she was terrified by the thought of being placed in maximum security. (PL’s Resp., SAF ¶ 2; admitted at Defs.’ Reply, RSAF ¶ 2.) The maximum security cell was tiny, and Plaintiff is claustrophobic. (Id., SAF ¶ 3; admitted at Defs.’ Reply, RSAF ¶ 2.) The cell had a small, narrow window that prevent
Before she was placed in her cell, Plaintiff asked several times to make a phone call to ensure her daughter was safe. (Id., SAF ¶ 4; admitted at Defs.’ Reply, RSAF ¶ 4.) Once Plaintiff was in her cell, Deputy Geister left to attend to other inmates and directed Officers Calvano and Davis to keep an eye on Plaintiff. (Defs.’ Br., SOF ¶ 24; admitted at PL’s Resp., RSOF ¶ 24.) Plaintiff began yelling out her request for a phone call in hopes that someone would hear her, since the cell door was thick steel. (PL’s Resp., SAF ¶ 4; admitted at Defs.’ Reply, RSAF ¶ 4.) Officer Calvano testified that she did not know what Plaintiff was yelling, but called it “intrusive to the inmates” and “obstructive” to jail staff. (Id., SAF ¶ 5; admitted at Defs,’ Reply, RSAF ¶ 5.) Plaintiff began pounding on her cell’s door. (Id., SOF ¶ 25; admitted in relevant part at PL’s Resp., RSOF ¶ 25.) After about ten minutes, Officer Davis reported to Deputy Geister that Plaintiff had been pounding on the door and expressed concern that Plaintiff might hurt herself. (Id., SOF ¶ 26; admitted at PL’s Resp., RSOF ¶ 26; see also PL’s Resp., SAF ¶ 10; admitted in relevant part at Defs.’ Reply, RSAF ¶ 10.) According to Plaintiff, Officer Davis came into her cell and told her to shut up or he would have her sedated. (PL’s Resp., SAF ¶ 11; admitted at Defs.’ Reply, RSAF ¶ 11.) Deputy Geister testified that he told Plaintiff that if she continued to pound against the door “we’re going to contact the hospital and see about sending the paramedics and having [you] sedated.”
Deputy Geister attempted to contact the emergency room physician, Defendant Chris Martinez, M.D., to discuss Plaintiffs behavior, but the deputy could not make contact. (Defs.’ Br., SOF ¶ 27; admitted at PL’s Resp., RSOF ¶27.) As a result, Deputy Geister instructed dispatch to page paramedics to the jail. (Id.) Paramedics Damien Coniglio and Mark Hutchinson (the “Paramedics”) were dispatched to the jail. (Id.) When the Paramedics arrived, Deputy Geister told them that Plaintiff was “combative” and had been banging her head. (Id., SOF ¶ 28; admitted at PL’s Resp., RSOF ¶ 28.) Plaintiff testified that she used only her hands to bang on her cell door — never her head, arms, or body — and that she pounded as hard as she could on the door without hurting herself. (PL’s Resp., SAF ¶¶ 6-7; admitted at Defs.’ Reply, RSAF ¶¶ 6-7.) Deputy Geister described his role vis á vis the Paramedics as “argufing] the case [for sedation].” (Id., SAF ¶ 29; admitted at Defs.’ Reply, RSAF ¶ 29.) According to Deputy Geister, the Pitkin County Jail had “been sedating people for [eighteen years],” and at least two have been sedated since Plaintiff. (Id., SAF ¶ 41; admitted in relevant part at Defs.’ Reply, RSAF ¶ 41.)
Paramedic Hutchinson testified that he saw Plaintiff pounding her fists against her cell door, being “very vocal and shouting obscenities.” (Id., SAF ¶ 12; admitted in relevant part at Defs.’ Reply, RSAF ¶ 12.) The Paramedics entered Plaintiffs cell with Officer Davis and evaluated Plaintiff while Deputy Geister was working on other matters at the jail. (Defs.’ Br., SOF ¶¶ 29, 33; admitted at PL’s Resp., RSOF ¶¶ 29, 33.) Plaintiff plainly and repeatedly stated that she did not want medical treatment. (PL’s Resp., SAF ¶ 13; admitted at
Paramedic Coniglio then called Dr. Martinez to discuss the information he had been given about Plaintiffs behavior that night, as well as his own observations of Plaintiffs behavior at the jail, his evaluation and examination of Plaintiff, and his concern that Plaintiff was hurting herself and creating a danger to herself and others. (Defs.’ Br., SOF ¶29; admitted at Pl.’s Resp., RSOF ¶ 29.) Mr. Coniglio also held the telephone up so that Dr. Martinez could hear Plaintiff screaming and pounding on the door of her cell. (Id., SOF ¶ 30; admitted at PL’s Resp., RSOF ¶ 30.) Dr. Martinez authorized the Paramedics to sedate Plaintiff. (Id., SOF ¶ 31; admitted at PL’s Resp., RSOF ¶ 31.) After Dr. Martinez’s authorization, the Paramedics approached Deputy Geister to inform him that they were going to sedate Plaintiff and that they would stay with Plaintiff until they knew that the sedative had taken effect and that she did not have any adverse effects. (Id., SOF ¶¶ 33-34; admitted at PL’s Resp., RSOF ¶¶ 33-34.) The Paramedics asked Deputy Geister to assist them with restraining Plaintiff so that they could safely administer the sedative. (Id., SOF ¶ 35; admitted at PL’s Resp., RSOF ¶ 35.) Deputy Geister agreed. (Id., SOF ¶ 6; admitted at PL’s Resp., RSOF ¶ 6.)
When the Paramedics walked into Plaintiffs cell to inject her, Plaintiff was sitting on her bed in shackles and handcuffs. (PL’s Resp., SAF ¶ 32; admitted in relevant pari at Defs.’ Reply, RSAF ¶32.) Plaintiff pleaded not to be injected and asked Deputy Geister for his name, stating that she intended to sue him. (Id., SAF ¶¶ 14, 17; admitted in relevant pari at Defs.’ Reply, RSAF ¶¶ 14, 17.) To assist in injecting Plaintiff, Officer Calvano pushed Plaintiffs face down on the bed so that she could be injected. (Id., SAF ¶ 15; admitted at Defs.’ Reply, RSAF ¶ 15.) Officer Calvano and Deputy Geister, as well as the Paramedics, used force to restrain Plaintiff for the injection as she lay face down in shackles and handcuffs. (Id.) In fear and panic, Plaintiff put her arm next to her head to keep from being injected and was holding her hair. (Id., SAF ¶ 16; admitted at Defs.’ Reply, RSAF ¶ 16.) Officer Calvano admitted that she and a paramedic pried Plaintiffs arm away, pulling some hair from her head in a clump which caused blood to run down Plaintiffs face. (Id.) Officer Calvano also testified that the prospect of the injection “escalated” the situation and dramatically increased Plaintiffs distress. (Id., SAF ¶ 17; admitted at Defs.’ Reply, RSAF ¶ 17.) Plaintiff cried as she was being injected. (Id.) About thirty minutes after Plaintiffs injection, the sedative began to take effect and Deputy Geister removed Plaintiffs restraints. (Defs.’ Br., SOF ¶ 37; admitted at PL’s Resp., RSOF ¶ 37.)
Droperdiol, the drug used to sedate Plaintiff, is most similar to the antipsy-chotic Haldol. (PL’s Resp, SAF ¶ 18; admitted in relevant pari at Defs.’ Reply ¶ 18.) This drug has received a “black box warning,” which denotes the Food and Drug Administration’s highest level of risk
Subsequent physical exam revealed that the only injuries Plaintiff suffered that night were bruising and soreness from the injection, finger-mark bruises from being restrained so forcefully, and bruises and indentation on her wrists from tight handcuffs. (Id., SAF ¶ 7; admitted at Defs.’ Reply, RSAF ¶ 7.)
Plaintiff testified that she would have stopped beating on the door and yelling for a telephone call if someone had told to her that they would check on her daughter’s safety. (Id., SAF ¶ 8; admitted at Defs.’ Reply, RSAF ¶8.) Plaintiff was not told until paramedics were in her cell that an officer would make sure that her daughter was all right. (Id.) Deputy Geister testified that he usually allowed detainees to make a phone call. (Id., SAF ¶ 9; admitted at Defs.’ Reply, RSAF ¶ 9.) He also stated that he was not aware Plaintiff wished to call her child until he entered her cell with the Paramedics around 4:00 A.M. (Id., Ex. 2 at 8 [Geister Dep.].) By that point, according to Deputy Geister, Plaintiff “had lost all credibility” with him. (Id.) He testified that did he not allow her to make a phone call, because doing so would only wake up her young daughter. (Id.)
At the time of Plaintiffs sedation, the jail’s restraint chair and isolation cell were already occupied by other inmates. (Defs.’ Br., SOF ¶ 36; admitted at Pl.’s Resp., RSOF ¶ 36.) Officer Davis testified that the padded isolation cell was “typically used for really intoxicated people who may ... hurt themselves.” (PL’s Resp., SAF ¶ 33; admitted at Defs.’ Reply, RSAF ¶ 33.) The padded cell was only partially padded, in that the windows, toilet, and door had no padding. (Id., SAF ¶ 36; admitted at Defs.’ Reply, RSAF ¶ 36; see also id., Ex. 2 at 3-4 [Geister Dep.].) Acknowledging the deficiency of the padded cell, Deputy Geister testified that the jail’s cells were designed for compliant inmates. (Id., SAF ¶ 37; admitted at Defs.’ Reply, RSAF ¶ 37.)
Sheriff Braudis, who was not at the Pit-kin County Jail during the night in question, testified that the policy of the Pitkin County Sheriffs Department is to leave the decision of whether or not to involuntarily sedate an inmate to paramedics who are guided by a physician-advisor. (Id., SOF ¶ 38; admitted at PL’s Resp., RSOF ¶ 38; see also PL’s Resp., RSAF ¶ 35; admitted at Defs.’ Reply, RSAF ¶ 35.) He also stated that his staff was trained that when they believed an individual needed forcible medication, they were to call the Paramedics, and then it would become a medical decision as to whether or not to sedate. (Id., Ex. 12 at 4 [Braudis Dep.].) Sheriff Braudis testified that he did not know what training, if any, paramedics had regarding inmates’ constitutional rights when it came to forced injections. (PL’s Resp., SAF ¶ 25; admitted at Defs.’ Reply, RSAF ¶ 25.)
Deputy Geister testified that when an inmate was “out of control,” and the jail had no other means of restraining that individual, he understood that he had a right to page paramedics so that they
Officer Calvano testified that she was trained that individuals have a right to refuse medical treatment but was not specifically trained on the circumstances under which forcible injection is permissible. (Id, Ex. 3 at 2 [Calvano Dep.].) Further, Officer Calvano testified to her understanding that the decision of whether to inject a detainee “gets turned over to the Paramedics and the people in the medical profession. It’s not my responsibility to let them waive their medical rights or anything, because that’s not my capacity of [sic] my job.” (Id)
On a final note, Deputy Geister testified that, in rare instances, when the Pitkin County Jail needs extra help, it utilizes the Aspen Police Department as auxiliary deputy sheriffs. (Id, SAF ¶ 38; admitted at id, Ex. 2 at 15 [Geister Dep.].) The night of Plaintiffs injection, Deputy Geister did utilize the help of the Aspen Police Department at Pitkin County Jail. (Id, SAF ¶¶ 38-39; admitted in relevant part at id, Ex. 2 at 15 [Geister Dep.].)
2. Procedural History
On August 11, 2006, Plaintiff filed a complaint in this court alleging the following constitutional violations stemming from her involuntary sedation: (1) denial of due process by all Defendants in violation of the Fourteenth Amendment; (2) unreasonable seizure by all Defendants in violation of the Fourth Amendment; (3) constitutional failure to train by Police Chief Loren Ryerson, Sheriff Braudis, Aspen Valley Hospital, and Dr. Martinez; and (4) retaliation for Plaintiffs exercise of free speech in violation of the First Amendment by Officer Davis, Officer Calvano, and Deputy Geister. (Compl. and Jury Demand [filed Aug. 11, 2006] [hereinafter “Compl.”].) On April 11, 2007, County Defendants filed a motion for summary judgment, on all counts against them. (Defs.’ Br.) On June 14, 2007, Plaintiff responded to the motion. (PL’s Resp.) On July 9, 2007, Defendants filed a reply in support of their motion. (Defs.’ Reply.) This matter is fully briefed and ripe for review.
ANALYSIS
1. Legal Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c) (2008); see Anderson v. Liberty Lobby, Inc.,
2. Evaluation of Claims
County Defendants argue they are entitled to summary judgment on all claims against them for the following reasons: (1) Defendants Pitkin County Commissioners should be dismissed as a party because they are not liable for the acts of those Defendants who participated in forcibly injecting Plaintiff; (2) Plaintiffs Fourth and Fourteenth Amendment claims fail as to Defendants Sheriff Braudis and Deputy Geister because they did not personally participate in the decision to sedate Plaintiff, and Plaintiff showed no unconstitutional custom, policy, or practice; (3) Plaintiffs Fourth Amendment claim also fails because an involuntary injection is not cognizable as a “seizure;” (4) Defendants Sheriff Braudis and Deputy Geister are entitled to qualified immunity on Plaintiffs Fourth and Fourteenth Amendment claims; (5) Plaintiffs First Amendment claim against Deputy Geister must fail because Plaintiff admits she has no evidence to support it; and (6) Plaintiff has failed to proffer evidence of inadequate training by Sheriff Braudis. (Defs.’ Br.) After briefly reviewing the law of 42 U.S.C. § 1983 (“Section 1983”), I consider Defendants’ arguments in turn.
Plaintiff brings all of her claims under Section 1983, which provides a remedy for constitutional violations committed by state or private actors under color of state law. See 42 U.S.C. § 1983 (2006). Specifically, Section 1983 provides that:
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Id. Thus, to establish a violation of Section 1983, Plaintiff must allege that: (1) Defendants acted under color of state law to deprive her of a right, and (2) the right of which Defendants deprived her was secured by the Constitution or the laws of the United States. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
a. Defendants Pitkin County Commissioners as a Party
County Defendants argue that because, under Colorado law, the sheriff, not Pitkin County Commissioners, is liable for the acts of his undersheriff and deputy sheriffs, Pitkin County Commissioners should be dismissed as a party. (Defs.’ Br. at 8-9.) Plaintiff counters that Pitkin County Commissioners are liable for damages due to the unconstitutional forcible injection
Section 1983 does not provide for liability under the theory of respondeat superior. See Worrell v. Henry,
As County Defendants point out, under Colorado law, the county sheriff is a separate and distinct position from the board of county commissioners. Bristol v. Bd. of County Commn’rs,
County Defendants’ argument misses the mark. The United States Supreme Court has made clear that “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts that may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [Section] 1983.” Monell,
Contrary to County Defendants’ argument, Bristol is no bar to this conclusion. (See Defs.’ Br. at 8-9.) Bristol addressed the limited issue of whether county commissioners were the “employer” of a sheriffs deputy for purposes of the Americans with Disabilities Act. See
In the instant case, reading the facts in the light most favorable to Plaintiff, Sheriff Braudis sets the official policy relating to involuntary medication for Pit-
b. Fourth and Fourteenth Amendment Claims Against Deputy Geis-ter and Sheriff Braudis in Their Individual Capacities
i. Qualified Immunity
Defendants Sheriff Braudis and Deputy Geister argue they are entitled to summary judgment on Plaintiffs Fourth and Fourteenth Amendment claims against them in their individual capacities, because they did not personally participate in Plaintiffs forcible injection. (Defs.’ Br. at 18-21.) They further contend that even if their actions resulted in a violation of Plaintiffs constitutional rights, they are entitled to qualified immunity because Plaintiff cannot establish that a reasonable officer in their position would have believed that their conduct violated the Fourth or Fourteenth Amendments. (Id.)
The doctrine of qualified immunity shields government officials from individual liability when they are performing discretionary functions that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald,
In determining whether qualified immunity shields Sheriff Braudis and Deputy Geister from liability, this court is obligated to consider whether there has been a constitutional violation before determining whether the law was clearly established at the time of the alleged violation. McCook v. Spriner Sch. Dist., 44 Fed.Appx. 896, 902 (10th Cir.2002) (citing Saucier,
(1) Involuntary Sedation Principles Under the Fourteenth Amendment
I review the law related to involuntary sedation of detainees under the Fourteenth Amendment here, because it provides a useful framework for considering the personal participation question discussed in detail below. It is well-established that “the forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty,” thus, triggering the protections of the Due Process Clause. Washington v. Harper,
Prior to Harper, however, the Tenth Circuit had already addressed this issue to some degree in Bee v. Greaves,
Based on the foregoing authority, Plaintiff clearly retains a protected liberty interest in avoiding unwanted medication. This conclusion does not end the court’s inquiry, however. Plaintiffs liberty interest “must be balanced against competing state interests to determine whether it is outweighed by ‘the demands of an organized society.’ ” Id. at 1394 (quoting Youngberg v. Romeo,
Further, according to the court: Determining that an emergency exists sufficient to warrant involuntary medication with this type of drug requires a professional judgment-call that includes a balancing of the jail’s concerns for the safety of its occupants against a detainee’s interest in freedom from unwanted antipsychotics. Any decision to administer antipsychotic drugs forcibly must be the product of professional judgment by appropriate medical authorities, applying accepted medical standards. It requires an evaluation in each case of all the relevant circumstances, including the nature and gravity of the safety threat, the characteristics of the individual involved, and the likely effects of particular drugs.
Id. at 1395-96 (internal citations omitted). In making this evaluation, the decision-maker should consider the availability of less restrictive alternatives to antipsychotic sedation, “such as segregation or the use of less controversial drugs like tranquilizers or sedatives.” Id.
(2) Personal Participation in a Constitutional Violation
County Defendants argue that, because Sheriff Braudis and Deputy Geister did not personally participate in the decision to sedate Plaintiff, summary judgment on Plaintiffs Fourth and Fourteenth Amendment claims against them in their individual capacities is warranted. (Defs.’ Br. at 9-12.) Plaintiff counters that the evidence supports a finding that Deputy Geister personally participated in Plaintiffs unconstitutional injection by: (1) participating in the decisionmaking process of whether or not to inject Plaintiff; and (2) participating in the actual injection by restraining Plaintiff during the procedure. (See Pl.’s Resp. at 26-36.) As an initial matter, I note that it is beyond dispute that “for liability to arise under [Section] 1983, a defendant’s direct personal responsibility for the claimed deprivation of a constitutional right must be established.” Trujillo v. Williams,
Plaintiff does not specify in what way Sheriff Braudis personally participated in the alleged constitutional violation. Because Plaintiff has literally presented no evidence supporting a finding that Sheriff Braudis, who was not present in the jail on the evening in question, personally participated in the decision to inject Plaintiff or in the injection itself, I grant summary judgment in favor of Sheriff Braudis on Plaintiffs Fourth and Fourteenth Amendment claim against him in his individual capacity. (See Pl.’s Resp.) Thus, I need not reach the qualified immunity question with respect to Sheriff Braudis. I now address Deputy Geister’s personal participation in the alleged constitutional violation.
(a) Personal Participation in the Decision to Sedate Plaintiff
Plaintiff argues that by lobbying for Plaintiffs sedation and failing to properly assess whether an emergency existed warranting sedation, Deputy Geister personally participated in the decision to sedate her. (PL’s Resp. at 26-36.) Additionally, Plaintiffs briefing suggests that Deputy Geister may have lied to the Paramedics about Plaintiffs behavior, thus af
(i) Lobbying for Plaintiff’s Sedation
Deputy Geister openly admitted to lobbying the medics to sedate Plaintiff. (See Pl.’s Resp., Ex. 2 at 10 [Geister Dep.].) He also testified to his understanding that he did not have the “authority” to make a decision about whether to sedate a detainee. (See id., Ex. 2 at 10 [Geister Dep.].) He stated: “[The medical professionals] look at the situation and say, Yes, you’re right. This woman needs to be sedated, or this guy needs to be sedated, or this person needs to be sedated. I don’t make the call.” (Id.) Deputy Geister further stated that “[the medical professionals] do what they’re going to do regardless of what I say. I can put my input in there, which I do, and [they] take it from there.” (Id., Ex. 2 at 11 [Geister Dep.].)
Deputy Geister’s view of his lack of authority in deciding whether to sedate a detainee generally and in the case at bar finds ample support in the record before the court. First, it is undisputed that the Pitkin County Jail’s policy regarding involuntary sedation of prisoners is to leave the decision of whether to sedate a detainee to medical professionals. (See Defs.’ Br., SOF ¶ 38; admitted at PL’s Resp., RSOF ¶ 38.) Second, Deputy Geister testified that he had called emergency medical staff for possible sedation of inmates in the past and the paramedics had refused to sedate based on their medical judgment that sedation was unnecessary. (PL’s Resp., Ex. 2 at 12 [Geister Dep.].) He explained, “[I]f [the ER doctor] say[s] no, it doesn’t get done. And I don’t argue about it. You don’t argue — you don’t order the ER doctor to do anything.” (Id.) Third, Paramedic Coniglio makes clear in his testimony that, in the instant case, the medical professionals — and, in fact, Dr. Martinez alone — made the decision to sedate Plaintiff. Paramedic Coniglio testified that he “initiated contact with Dr. Martinez on [his] own based upon [his] observations,” and that he “was not asked or instructed by law enforcement personnel to contact Dr. Martinez or to seek Dr. Martinez’s permission to sedate [Plaintiff].” (Id., Ex. 7 ¶ 8 [Coniglio Decl.].) He further testified to informing Dr. Martinez, based upon his own observations, that “[Plaintiff] was resistive to medical evaluation, refused to come to the hospital emergency room for evaluation, was combative, and was hurting herself by violently pounding and throwing herself against the cell door and by violently struggling against the handcuffs and shackles.” (Id., Ex. 7 ¶¶ 8-9 [Coniglio Decl.].) Further, Paramedic Con-iglio stated that “[a]t no time did [he] suggest to Dr. Martinez that [Plaintiff] be sedated” and that, “[b]ased upon the information [Mr. Coniglio] provided, Dr. Martinez gave [him] a medical order to sedate [Plaintiff],...” (Id., Ex. 7 ¶¶9-10 [Conig-lio Decl.].) Fourth, it is undisputed that it was Dr. Martinez who authorized the Paramedics to sedate Plaintiff and that the doctor at no time spoke with Deputy Geis-ter. (Defs.’ Br., SOF ¶¶ 27, 31; admitted at PL’s Resp., RSOF ¶¶27, 31.) That Deputy Geister attempted to convince the Paramedics to sedate Plaintiff shows — at worst — that he wished to participate in the decision of whether or not to sedate Plaintiff. It does not show that he did actually participate in such decisionmaking. Because Plaintiff has presented no evidence to counter undisputed testimony that medical authorities made the decision to sedate Plaintiff based upon their independent professional judgment, rather than on the deputy’s repeated requests for sedation, I find Plaintiff has failed to show that Deputy Geister’s lobbying rendered him a personal participant in the decision to sedate Plaintiff.
Not withstanding this finding, Plaintiff also obliquely argues that Deputy Geister did participate in the decision to sedate Plaintiff by incorrectly assessing whether an emergency existed warranting involuntary sedation. (Pl.’s Resp. at 26-36.) Specifically, Plaintiff argues that Deputy Geister failed to properly determine whether less restrictive means of restraint were appropriate. (Id.) Whether or not this is true, I cannot agree that such actions constitute personal participation in the decision to sedate Plaintiff.
As an initial matter, there is no record evidence that Deputy Geister assessed whether an emergency existed or whether alternative, less-restrictive means of restraint would have been appropriate for Plaintiff. (See id., Ex. 2 [Geister Dep.].) Instead, there is only undisputed evidence that Deputy Geister reported to the Paramedics his observations of Plaintiffs behavior and the availability — or lack thereof — of alternative means of restraint within the jail. (See id., Ex. 7 ¶ 3 [Coniglio Deck].) There is some dispute as to whether Deputy Geister’s report to the Paramedics was accurate, which I will address below.
First, however, I find that by relaying to medical authorities accurate information about a detainee’s behavior and alternative means of restraint within the jail, a law enforcement official does not, thereby, become a personal participant in the medical decision of whether or not to sedate a detainee. Bee makes clear that whether an emergency exists sufficient to warrant sedation is a “professional judgment-call” to be undertaken by medical professionals rather than by law enforcement officials. See
That being said, should a law enforcement officer knowingly make a false report to medical authorities regarding detainee’s behavior or the availability of alternative means of restraint, and should that report factor into the medical decision of whether or not to sedate, there would be a stronger argument that the officer made statements to insert him or herself into the decision-making process, constituting personal participation in that decision. In the case at bar, there can be no dispute that any report by Deputy Geister that the padded room and the restraining chair were occupied on the night in question was, in fact, accurate. (See Defs.’ Br., SOF ¶ 36; admitted at PL’s Resp., RSOF ¶ 36 [noting that at the time of Plaintiffs sedation, the jail’s restraint chair and isolation cell were
On a motion for summary judgment, I must resolve all factual disputes in favor of Plaintiff. Byers,
(b) Personal Participation in Injecting Plaintiff
Alternatively, Plaintiff argues that Deputy Geister personally participated in the alleged constitutional violation by restraining her during the involuntary sedation. (PL’s Resp. at 20-23.) County Defendants urge that Deputy Geister was merely complying with the medics’ request and, thus, cannot be said to have “personally participated” in Plaintiffs sedation. (Defs.’ Br. at 9-12.) I disagree.
As an initial matter, it is important to note that Plaintiff does not allege that Deputy Geister used more force than necessary to restrain her during the injection.
(3) Fourteenth Amendment Violation
I have already found in a separate order that, based on the information before Dr. Martinez at the time, he made a proper professional judgment-call that an emergency existed warranting involuntary sedation of Plaintiff. {See Order and Memorandum of Decision [filed Feb. 29, 2008] [hereinafter “Order”].) Thus, I found his decision to sedate Plaintiff could not have violated her constitutional rights under the Fourth or Fourteenth Amendments. {Id.) In light of the disputed issue of fact as to whether Deputy Geister falsely reported that Plaintiff was banging her head, however, my holding regarding Dr. Martinez does not completely resolve the question of whether Deputy Geister participated in a constitutional violation. Because I am required to read the facts in the light most favorable to Plaintiff, I must pay credence to the possibility that, had Dr. Martinez not received a report that Plaintiff was banging her head, he may not have concluded that she was such a danger to herself as to warrant forcible sedation.
(4) Fourth Amendment Violation
Although Deputy Geister argues that forcible sedation is not cognizable as a “seizure” under the Fourteenth Amendment, he has pointed to no cases so holding. {See Defs.’ Br. at 15-16.) The Supreme Court has clearly stated that “[w]henever an officer restrains the freedom of a person to walk away, he has seized that person.” Tennessee v. Garner,
Moreover, read the light most favorable to Plaintiff, Deputy Geister’s allegedly false report that Plaintiff had been banging her head could also establish a Fourth Amendment violation. “Pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility.” Bell v. Wolfish,
(5) Clearly Established Law
Having found two possible constitutional violations under the summary judgment standard, I must next determine whether the law was clearly established at the time Deputy Geister acted. See Trigalet,
Regarding the Fourth Amendment claim, Plaintiff has failed to point to a single case in which forcible sedation was considered under the Fourth Amendment and this court’s research has failed to reveal any such case. (See Pl.’s Resp. at 36-37.) Therefore, it cannot be said that it was clearly established in 2004 that participation in forcible sedation could result in the violation of a detainee’s Fourth Amendment rights. Accordingly, Deputy Geister is entitled to qualified immunity for Plaintiffs Fourth Amendment claim against him.
Additionally, this court is inclined to note that if Deputy Geister did not, in fact, lie to the Paramedics regarding Plaintiff banging her head, I would find no Four
c. Fourth and Fourteenth Amendment Official Capacity Claims
Plaintiff assert several claims against Pitkin County Commissioners, as well as Sheriff Braudis and Deputy Geister in their official capacities. “[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity” — in this case Pitkin County. Kentucky v. Graham,
Here, assuming that Plaintiffs forcible injection was unconstitutional, there is no evidence that a policy of Pitkin County had a “direct causal link” to “the violation alleged.” Jenkins,
Additionally, I note that Pitkin County’s policy comports with Tenth Circuit precedent mandating that the decision to sedate be left to medical professionals. See Bee,
d. Failure to Train
Plaintiff also alleges constitutional failure to train against Sheriff Braudis in his official capacity. (Compl. ¶ 57-68.) County Defendants argue that the training provided by Sheriff Braudis — that the decision of whether to sedate is to be left to medical professionals — comports with constitutional requirements. (See Defs.’ Br. at 17-18; Defs.’ Reply at 20.) The Supreme Court has established that “the inadequacy of police training may serve as a basis for [Section] 1983 liability only where the failure to train amounts to a deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton v. Harris,
e. First Amendment
Plaintiffs only remaining claim with respect to County Defendants is her allegation that Deputy Geister retaliated against her for exercising her First Amendment right to free speech by pounding on the jail cell door and calling for assistance in order to ensure the safety of her child. (CompLIffl 96-77.) County Defendants argue summary judgment is warranted on this claim because: (1) Plaintiff has admitted that no staff member retaliated against her; and (2) Plaintiffs screaming and pounding on the door of her jail cell was not protected speech. (Defs.’ Br. at 21-22; Defs.’ Reply at 16-18.) I need only address County Defendants’ second argument.
First Amendment retaliation claims are most often brought in the public employment context. McCook v. Springer Sch. Dist.,
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plaintiffs exercise of constitutionally protected conduct.
In the case at bar, I find Plaintiff fails at the first element. For speech to be constitutionally protected, it must involve a matter of public concern or an issue of public importance. McCook,
Moreover, this court’s independent research has revealed no cases suggesting that Plaintiffs understandable concerns regarding the well-being of her own daughter who was not in the custody of the state was a matter that was in and of itself of interest to the public at large. Cf. Crain v. Bd. of Police Comm’rs,
3. Conclusion
Based on the foregoing it is therefore ORDERED as follows:
1. County Defendants’ Motion for Summary Judgment (#47) is GRANTED IN PART.
A. All of Plaintiffs Claims against Defendants Pitkin County Commissioners are DISMISSED.
B. All of Plaintiffs Claims against Sheriff Braudis in his official and individual capacities are DISMISSED.
C. All of Plaintiffs Claims against Deputy Geister in his official capacity are DISMISSED.
D. Plaintiffs First and Fourth Amendment claims against Deputy Geister is DISMISSED.
E. Plaintiffs Fourteenth Amendment Claims against Deputy Geister in his individual capacity remain PENDING.
2. The clerk shall forthwith enter judgment in favor of Defendants Pitkin County Commissioners and Sheriff Braudis, dismissing all claims with prejudice. These Defendants may have their costs by filing a bill of costs within eleven days of the date of this order.
Notes
. I quote directly from Deputy Geister’s deposition transcript due to Plaintiff’s mischarac-terization of his testimony. (See Pl.'s Resp., RSAF ¶ 10 [citing Deputy Geister’s deposition transcript for the proposition that he told Plaintiff "that if she didn’t stop, he would call the hospital and arrange to have her sedated”].)
. To be clear, Plaintiff does claim that "the restraint and injection which [Deputy Geister] facilitated were unreasonable seizures constituting excessive force,” but Plaintiff does not allege that Deputy Geister used more force than necessary to restrain Plaintiff in order to permit the Paramedics to inject her without injuring her. (See Pl.’s Resp. at 36.)
. This court’s review of the record shows that Dr. Martinez has offered no testimony on this point. (See Pl.’s Resp., Ex. 6 [Martinez Dep.]; Defs.' Br., Ex. A-5 [Martinez Interrogatory].)
. Even if I had found Dr. Martinez's decision to inject Plaintiff unconstitutional, considering that the law requires medical professionals, not jail staff, to independently determine, based on their professional judgment, whether or not to sedate a detainee, this court cannot justifying placing "law enforcement officers in the impossible position of having to second-guess the medical judgments” of medical professionals. Sullivan v. Bornemann,
. The court notes that " ‘[i]n some sense, of course, almost any injury inflicted by a municipal agent or employee ultimately can be traced to a municipal policy.’ ” D.T. v. Indep. Sch. Dist.,