GORDON G. SAWYERS, Plaintiff - Appellee, v. BRIAN NORTON, in his individual & official capacities; JONATHAN L. HART, in his individual & official capacities; SGT. GARY BRUDER, in his individual & official capacities; JESSE HAND, in his individual & official capacities; DOES 1-10, in their individual & official capacities, Defendants - Appellants.
No. 19-1230
United States Court of Appeals for the Tenth Circuit
June 23, 2020
MATHESON, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-02935-RM-SKC). FILED June 23, 2020, Christopher M. Wolpert, Clerk of Court.
Maren Chaloupka,
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
MATHESON, Circuit Judge.
- We affirm the denial of the three officers’ motion for summary judgment asserting qualified immunity to the
§ 1983 claim. First, we lack jurisdiction on interlocutory review to address their factual challenges to the district court’s conclusion that a jury could find a constitutional violation. Second, due to inadequate briefing, they waived an argument about clearly established law. - We affirm the denial of sovereign immunity to Rio Grande County on the state law negligence claim because the Colorado Governmental Immunity Act (CGIA) waives immunity for injuries resulting from operation of a jail.
A. Factual Background
[W]hen reviewing the denial of a summary judgment motion asserting qualified immunity, we lack jurisdiction to review the district court’s conclusions as to what facts the plaintiffs may be able to prove at trial. Fancher v. Barrientos, 723 F.3d 1191, 1194 (10th Cir. 2013). We therefore quote the district court’s account of the facts pertinent to the issues raised on appeal. See id.
On November 17, 2015, Sawyers was arrested for having set fire to an art gallery under the belief that God had told him to cleanse the business of witches with fire. He was charged with a felony and booked into the Mineral County Jail, where he was initially assessed to see if he was an imminent danger to himself, including suicidal risk or self harm. A counselor concluded:
It is difficult to evaluate Mr. Sawyers[’s] mental status completely due to his grandiose and persecutory delusions and psychosis that interferes with his being able to exercise good judgment, understand reality as others do, and to behave appropriately. . . .
[H]e did not display any aggressive behavior toward himself, me or others. He states that he has never been suicidal, even when he was depressed. . . . Although he clearly has mental health issues that I strongly suggest be treated while he is in custody, he denies any thoughts of harm to himself or others. Therefore referral for further evaluation would be questionable, as he does not appear to meet the criteria for commitment under Colorado law. I recommend that he continue to be evaluated while he is in custody, as he reports that he is not currently
receiving treatment and it is likely that his delusions and behavior in reaction to his hallucinations may intensify. Because Mineral County has few resources, Sawyers was transported to the Rio Grande County Jail (RGCJ) later that day to be held on his charges. Defendant Norton is the Rio Grande County Sheriff. Defendants Bruder, Hand, and Hart are law enforcement corrections officers at RGCJ.
When he got to RGCJ, Sawyers affirmed that he had never attempted suicide and did not have any suicidal thoughts, and he was assigned to general population housing. But Sawyers exhibited extreme behavior at RGCJ—including peeling back his toenails, causing other self-inflicted wounds, refusing meals, and refusing medication—and he was seen several times by mental health professionals during his stay.
On November 19, 2015, Sawyers was evaluated by a San Luis Valley Mental Health Group (SLVMH) clinician. Sawyers denied symptoms of depression or anxiety, but the assessor diagnosed schizophrenia and recommended a psychiatric assessment and medication management.
On November 21, jailers moved Sawyers to a lockdown cell for entering another inmate’s cell and spitting because he believed God had told him to do so. He was moved back to general population, but on November 27 guards moved him to the booking/observation cell because he had been suffering from further delusions and [was] found naked in another’s cell attempting to put his penis into his own rectum. As Hart put it, we had no choice ultimately but to place him in the holding cell because of his behavior.
On November 27, 2015, at RGCJ’s request, another SLVMH clinician returned to evaluate Sawyers, but Sawyers refused to talk. The report states, ES kept client on suicide watch and advised the guards that if he has another psychotic episode to take client to the ER and call ES. Per Rio Grande Sheriff’s Office policy, inmates who threaten to commit suicide will be placed in a holding cell and checked at least
every fifteen minutes until cleared. If SLVMH gives an order for an inmate’s safety, including putting him on suicide watch as happened here, jailers cannot change or clear that order. On November 28, SLVMH clinician Tammy Obie met with Sawyers, and her report recounts continued delusional behavior and notes that he had been belly cuffed by the jailers so that he would not harm himself but that he adamantly denied [suicidal or homicidal ideations]. Obie’s plan was that Sawyers would stay in the observation cell where he could be regularly monitored to ensure that he was not harming himself, but she concluded that he did not meet the criteria for invoking emergency procedures permitting the courts or mental health professionals to take action when a person appears to be at risk of harming themselves. Finally, Obie told the jailers that she would request a psychological evaluation for November 30.
On November 30, Sawyers was transported from RGCJ to SLVMH for another evaluation, but he again refused to cooperate with the psychiatric interview. The report from that day notes that Sawyers was not under a court order to obtain psychiatric treatment and could not be forced to sit for the interview or begin medications.
At some point on or before November 27, 2015, Sheriff Norton directed his deputies to document Sawyers’s behavior in a log to assist SLVMH in assessing him. Thus, while officers at RGCJ use personal logs that detail events throughout their shifts—such as when inmates are out for showers or lunch is served—they kept a log specific to Sawyers entitled Suicide Watch-15 Min. Officers filled this log out on the computer in the booking area next to the cell in which Sawyers was located. From 10:00 p.m. on November 27 through the end of November 30, this log details Sawyers’s activity ad nauseum—whether his doings were mundane or noteworthy. December 1 is nearly empty, but the log continues with regular entries the morning of December 2.
On December 2, 2015, Defendants Hart, Hand, and Bruder were on duty at RGCJ during the evening shift. Hart and Hand were assigned to the booking desk area and were responsible for checking on Sawyers; Bruder was sitting in the sergeant’s office around the corner and could see the booking area on a monitor. The parties have provided photos of the booking area in relation to the cell in which Sawyers was held. Seated at the booking desk, an officer would be able to view portions of the cell. Standing at the desk, nearly every corner of the cell is visible. The area also contains cabinets in which inmate medications are stored. Standing beside those cabinets, an officer can see the entire cell.
At some point during the evening shift, Hart stood at the medicine cabinets preparing medication to take to all of the inmates. Hart and Hand then left the area to distribute the same. Neither Hart nor Hand are sure exactly what time they left the booking area that night or how long they were away, but Hand testified that he usually performed this task at 9:00 p.m. and they were back within fifteen minutes. In fact, Defendants are adamant that Sawyers was observed at least every fifteen minutes that day. However, the Suicide Watch log has only ten entries from 2:15 p.m. to 9:45 p.m. and does not confirm any of Defendants’ whereabouts or Sawyers’s activity from 6:07 p.m. to 9:15 p.m.,3 and there is no surviving surveillance video of the time in question.
When they returned, Hart went to the cabinet to return the medication cups, Hand sat down at the booking desk, and the two spoke for a few minutes. It is not clear who saw him first, but Hart or Hand noticed that Sawyers was turned away from them, had his hands on his face, and was bleeding. He claimed to have a bloody nose but refused to turn around. At around 9:15 p.m., the officers entered the cell and discovered that Sawyers had removed his right eye from its socket and was attempting to injure his left eye. They immediately restrained him to prevent further injury, and Bruder requested that dispatch page an ambulance. Sawyers vividly remembers removing his own eye to prevent it from being harvested by the witches, but he doesn’t recall anything else from earlier that day.
B. Procedural History
1. The Complaint
Mr. Sawyers’s third amended complaint (the operative complaint here) alleged three causes of action.2
First, under
Third, under Colorado law, the defendants negligently caused his injuries. Mr. Sawyers brought this claim against Defendants in their individual and official capacities. But, as the district court pointed out, see Sawyers, 2019 WL 2327756, at *7, the official capacity claims amount to claims against Rio Grande County.4
2. Summary Judgment
Defendants moved for summary judgment. App. at 81. They argued that
- Mr. Sawyers could not show a constitutional violation of deliberate indifference;
- they were entitled to qualified immunity for the
§ 1983 claim and statutory immunity under the CGIA for the state law claim;
Sheriff Norton was not liable for a failure to train or supervise his deputies because there was no underlying constitutional violation; and - Mr. Sawyers could not show any of the Defendants individually violated his constitutional rights.5
See id. at 81-93. The district court granted the motion in part and denied it in part. Sawyers, 2019 WL 2327756, at *1.6 It determined
- Sheriff Norton was entitled to summary judgment on the deliberate indifference claim [t]o the extent deliberate indifference claims [were] raised against [him] in his individual capacity. Id. at *5. But the court denied summary judgment on this claim as to the three officers. Id. It noted [t]here [was] too much factual deviance for [it] to be comfortable entering judgment in [their] favor at this juncture. Id.
- The three officers were not entitled to summary judgment on qualified immunity grounds because it is . . . clearly established by Tenth Circuit precedent that [Mr.] Sawyers is entitled to protection against deliberate indifference. Id. at *6 (citing Garcia v. Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985) and Martin v. Bd. of Cty. Comm’rs, 909 F.2d 402 (10th Cir. 1990)).
- Mr. Sawyers’s state law negligence claims—to the extent that they [were] brought against Defendants in their individual capacities—are not cognizable, and judgment in favor of Defendants on them is appropriate based on
Colo. Rev. Stat. Ann. § 24-10-105(1) . Id. The court noted Defendants were clearly acting within the scope of their
- Mr. Sawyers had not demonstrated municipal liability. Id. at *6-7. The court noted Mr. Sawyers ha[d] also sued Defendants in their official capacities, which amount[ed] to a claim against Rio Grande County itself. Id. *6. It found no evidence of any informal or formal policy of denying healthcare. Id. *7. Quite to the contrary, [Sheriff] Norton had an established policy and practice of using mental health professionals to evaluate inmates like [Mr.] Sawyers—and the record reflects that he was indeed evaluated several times and put under a close watch. Id. It also found no evidence of shortcomings in the officers’ training or any inappropriate ratification of their conduct. Id. It granted summary judgment on all official capacity claims under
§ 1983 . Id. - Summary judgment was denied on the state law negligence claim against the county because sovereign immunity is waived by a public entity in an action for injuries resulting from the operation of a correctional facility. Id. (citing
Colo. Rev. Stat. Ann. § 24-10-106(1)(b) ).
The following chart summarizes the defendants, the claims alleged against them, and the district court’s summary judgment rulings.
| DEFENDANTS | CLAIMS FOR RELIEF | DISTRICT COURT’S RULINGS ON SUMMARY JUDGMENT |
|---|---|---|
| Sheriff Brian Norton, sued in his individual and official capacities |
|
|
| Deputy Jonathan L. Hart, Sergeant Gary Bruder, and Deputy Jesse Hand, each sued in his individual and official capacities |
|
|
II. DISCUSSION
On appeal, Appellants challenge only the district court’s (A) denial of qualified immunity to the three officers on the individual capacity
A. Denial of Qualified Immunity under § 1983
Deputy Hart, Sergeant Bruder, and Deputy Hand (the officers) contend they are entitled to qualified immunity because Mr. Sawyers failed to show how they were deliberately indifferent to his serious medical needs under the Fourteenth Amendment.
1. Legal Background
a. Qualified immunity
i. Appellate jurisdiction
This court has appellate jurisdiction to review all final decisions of the district courts of the United States.
A circuit court lacks jurisdiction at this stage to review a district court’s factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff’s evidence is sufficient to support a particular factual inference. Fancher, 723 F.3d at 1199 (quotations omitted); see Johnson v. Jones, 515 U.S. 304, 307, 313 (1995). [I]f a district court concludes that a reasonable jury could find certain specified facts in favor of the plaintiff, the Supreme Court has indicated we usually must take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law. Estate of Booker v. Gomez, 745 F.3d 405, 409-10 (10th Cir. 2014) (quotations omitted).10
ii. Qualified immunity standard
blatantly contradicted by the record, id. at 1225-26 (quotations omitted); or (3) the district court commits legal error en route to a factual determination, Pahls v. Thomas, 718 F.3d 1210, 1232 (10th Cir. 2013). None of these circumstances pertain here.
iii. Summary judgment and standard of review
The court shall grant summary judgment if 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.
Within this court’s limited jurisdiction, we review the district court’s denial of a summary judgment motion asserting qualified immunity de novo. Fancher, 723 F.3d at 1199. [W]e thus consider de novo the purely legal questions of [(1)] whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation and [(2)] whether that law was clearly established at the time of the alleged violation. Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014) (quotations omitted).
A prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); see Estelle v. Gamble, 429 U.S. 97, 105 (1976) ([D]eliberate indifference to a prisoner’s serious illness or injury states a cause of action under
The constitutional protection against deliberate indifference to a pretrial detainee’s serious medical condition springs from the Fourteenth Amendment’s Due Process Clause. Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019). In evaluating such Fourteenth Amendment claims, we apply an analysis identical to that applied in Eighth Amendment cases. Id. (quotations omitted).11
i. Objective component
The objective component of deliberate indifference is met if the harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause. Id. (quotations omitted). A medical need is considered sufficiently serious to satisfy the objective prong if the condition 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. Al-Turki, 762 F.3d at 1192-93 (quotations omitted).
ii. Subjective component
To satisfy the subjective component, the plaintiff must show the official knows of and disregards an excessive risk to inmate health or safety. Burke, 935 F.3d at 992 (quoting Farmer, 511 U.S. at 837). 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. Id. (quotations omitted). Whether a
where Eighth Amendment standard was more favorable to the Sheriffs); Perry v. Durborow, 892 F.3d 1116, 1122 n.1 (10th Cir. 2018) (We haven’t yet addressed Kingsley’s impact on Fourteenth Amendment claims like this one. And in the absence of briefing from either party, we decline to do so here, where resolution of the issue would have no impact on the result of this appeal.).
2. Analysis
The district court denied qualified immunity to the officers because issues of fact precluded summary judgment. On appeal, they challenge the court’s factual determinations. We lack jurisdiction to review these arguments. See Fancher, 723 F.3d at 1199-1200. The court also held the officers violated clearly established law. Due to inadequate briefing, the officers have waived a challenge to this determination. We therefore affirm the district court’s denial of summary judgment on the
a. Constitutional violation
The officers argue they were not deliberately indifferent to Mr. Sawyers’s serious medical needs. See Aplt. Br. at 28-43. Ultimately, however, [their] argument depends upon a challenge to the facts the district court concluded a reasonable jury could infer based upon the evidence in the summary judgment record. Fancher, 723 F.3d at 1199. We therefore lack jurisdiction to review their arguments regarding both the objective and subjective components of deliberate indifference.
The officers contend that Mr. Sawyers failed to meet the objective component because his medical needs did not appear to be sufficiently serious. Aplt. Br. at 31.
Although the officers attempt to frame this argument as a legal issue, they challenge the district court’s factual determination of what a reasonable jury could infer. For example, they assert Mr. Sawyers’s medical need had not been diagnosed by a physician or a mental health professional as requiring treatment. Id. at 30. And they contend mental health professionals had actually determined that [Mr. Sawyers] was not a danger to himself. Id.
But the district court concluded the evidence was sufficient for a reasonable jury to draw a contrary inference. Fancher, 723 F.3d at 1200. The court noted Mr. Sawyers was diagnosed with schizophrenia by two separate clinicians at SLVMH during his stay at RGCJ. Sawyers, 2019 WL 2327756, at *4. It added that, after bearing witness to [Mr.] Sawyers’s repeated, strange, and self-harmful acts over the days leading up to the eye incident, [the officers] did recognize the need for medical attention, enlisted SLVMH for further evaluation of [Mr.] Sawyers, and were beseeched by those same professionals to monitor him closely. Id.
The district court refused to hypothesize as to whether a lay person would easily recognize the necessity for a doctor’s attention because [the officers]—themselves not medical professionals—recognized it. Id. Because the officers
ii. Subjective component
The officers contend Mr. Sawyers failed to meet the subjective component. Because their arguments cannot reasonably be understood as anything other than an attack on the[] [factual] conclusions of the district court, this court lacks jurisdiction to consider [them]. Fancher, 723 F.3d at 1200.
1) Knowledge of an excessive risk to inmate health
The officers claim they did not act with the sufficiently culpable state of mind required to establish . . . deliberate indifference to [Mr. Sawyers’s] medical needs.
But the district court found that the officers “did recognize the need for medical attention, enlisted SLVMH for further evaluation of [Mr.] Sawyers, and were beseeched by those same professionals to monitor him closely.” Sawyers, 2019 WL 23327756, at *4. For example, Deputy Hart said, “[W]e had no choice ultimately but to place him in the holding cell because of his behavior.” Id. at *2 (quotations omitted).
The court noted Sheriff Norton “instructed his subordinates to keep regular watch over [Mr. Sawyers] in accordance with the suicide policy.” Id. at *5. The policy required “fifteen-minute checks on inmates until they [were] cleared by [mental health] professionals.” Id. at *3. And it found RGCJ officers “kept a log specific to [Mr.] Sawyers entitled “Suicide Watch-15 Min.,“” id. at *2, which is in the record, see App. at 1965.
Because the officers contest “a question of fact” on interlocutory appeal, we lack jurisdiction to consider this argument. See Burke, 935 F.3d at 992 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact . . . .” (quoting Farmer, 511 U.S. at 842)).
The officers argue they were not deliberately indifferent because “their collective watch over [Mr. Sawyers] never wavered to intervals longer than the required fifteen minutes.” Aplt. Br. at 32 (quotations omitted); see id. 32-35. They assert (1) “that there is no evidence to the contrary,” id. at 32; (2) “the Hand/Bruder log” does not contradict their sworn testimony that they were distributing medication “at approximately 9:00 P.M. on December 2,” id. at 35; and (3) they “repeatedly contacted SLVMH seeking the advice of mental health professionals,” id. at 31, and “not one of the clinicians or the physician who evaluated [Mr. Sawyers] mandated any form of medical treatment,” Aplt. Reply Br. at 14.
As to each of these factual contentions, the district court found a reasonable jury could infer facts to conclude otherwise. Based on the officers” “failure to document their whereabouts for several hours during the relevant time,” the court concluded a reasonable jury could infer “that [the officers] were not duly monitoring [Mr.] Sawyers as they should have been for up to several hours.” Sawyers, 2019 WL 2327756, at *5. The court said this was “a period long enough to permit the subsequent inference that they may have recklessly left unmonitored an inmate whom they had very good reason to believe could be a danger to himself.” Id.
The court further noted that, “contrary to [the officers‘] summary that medication usually goes out at 9:00 p.m., the Hand/Bruder log reflects that the medicine was prepped as early as 7:40 p.m. on the day in question and at varying
The court concluded “[t]here is too much factual deviance for [it] to be comfortable entering judgment in the[] officers’ favor at this juncture.” Id. at *5. The officers question the court‘s factual inferences, but on interlocutory appeal, we cannot “second-guess[] the district court‘s determinations regarding whether [Mr. Sawyers] has presented evidence sufficient to survive summary judgment.” Fancher, 723 F.3d at 1199 (quotations omitted).13
* * * *
Because the officers attack the district court‘s factual determinations regarding deliberate indifference, we lack jurisdiction to consider their challenge to the first prong of qualified immunity on interlocutory review. See id. at 1200. The court‘s summary judgment ruling on the first prong of qualified immunity—constitutional violation—therefore stands.
Due to their inadequate briefing, the officers have waived an argument that the district court erred in finding that clearly established law supported a deliberate indifference violation under
“Issues not raised in the opening brief are deemed abandoned or waived.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (quotations omitted). “This briefing-waiver rule applies equally to arguments that are inadequately presented in an opening brief . . . [, such as those presented] only in a perfunctory manner.” United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (quotations omitted); see United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir. 1995) (declining to address arguments that were “nominally raised in the Appellant‘s Brief“). “Consistent with these principles is the general rule that appellate courts will not entertain issues raised for the first time on appeal in an appellant‘s reply brief.” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (quotations omitted); see Anderson v. U.S. Dep‘t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005).
Although the officers argue in their reply brief that Mr. Sawyers “produced no Tenth Circuit or United States Supreme Court case law . . . tending to show that the right . . . was clearly established at the time of the alleged misconduct,” Aplt. Reply Br. at 23, this argument is too little, too late. See Silverton Snowmobile Club, 433 F.3d at 783. The officers thus waived a challenge to the district court‘s clearly-established-law holding.
Appellants argue the county is entitled to immunity under the Colorado Governmental Immunity Act (“CGIA“), thereby barring Mr. Sawyers‘s official capacity negligence claim. We disagree.
1. Legal Background
a. Appellate jurisdiction
As with the denial of
b. Colorado Governmental Immunity Act
The CGIA governs whether a public entity or public employee can assert statutory immunity to a negligence claim. See
A public entity waives sovereign immunity “in an action for injuries resulting from . . . [t]he operation18 of any . . . correctional facility . . . or jail.” Colo. Rev.18
As the Appellants point out, sovereign immunity for a public entity is not waived “where the injury arises from the act, or failure to act, of a public employee where the act is the type of act for which the public employee would be or heretofore has been personally immune from liability.”
But under the CGIA, “no public employee shall be liable for injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton, except as provided by this article.”
2. Additional Procedural History
The district court granted summary judgment to the sheriff and the officers for the state law negligence claim “to the extent” they were sued in their individual capacities. Sawyers, 2019 WL 2327756, at *6. The court noted that they “were clearly acting within the scope of their employment at all relevant times,” so they cannot be liable based on
3. Analysis
We have appellate jurisdiction under the collateral order doctrine to review the denial of sovereign immunity to the county on Mr. Sawyers‘s negligence claim. See Aspen Orthopaedics, 353 F.3d at 837; see also Martinez, 379 P.3d at 320 (noting CGIA confers “sovereign immunity“). “We review questions of CGIA immunity de novo.” Glasser v. King, 721 F. App‘x 766, 769 (10th Cir. 2018) (unpublished); see Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir. 1995) (“We review de novo the legal question of when a party can assert sovereign immunity.“).
Appellants argue that the county has immunity under the CGIA based on their personal immunity. Aplt. Br. at 45 (citing
We therefore affirm the district court‘s denial of summary judgment to the county on the state law negligence claim.23
III. CONCLUSION
We affirm the district court‘s denial of qualified immunity to Deputy Hart, Sergeant Bruder, and Deputy Hand and the denial of sovereign immunity to Rio Grande County.