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Durkee v. Minor

United States Court of Appeals, Tenth Circuit

November 14, 2016

JAMES DURKEE, Plaintiff-Appellee,
v.
SHERIFF JOHN MINOR, in his individual capacities; SERGEANT RON HOCHMUTH, in his individual capacity, Defendants-Appellants.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 14-CV-745-WYD-MJW)

          Melanie B. Lewis (Josh A. Marks with her on the brief), Berg, Hill, Greenleaf, Ruscitti LLP, Boulder, Colorado, for Defendants-Appellants.

          Andrew McNulty (David A. Lane with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellee.

          Before LUCERO, BALDOCK, and BACHRACH, Circuit Judges.

          BALDOCK, Circuit Judge.

         Defendant John Minor is the Sheriff of Summit County, Colorado. Defendant Ron Hochmuth is a sergeant with the Summit County Sheriff's Department. Plaintiff James Durkee sued them both in their individual capacities under 42 U.S.C. § 1983. Plaintiff asserts Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when he was attacked by Ricky Michael Ray Ramos, a fellow inmate, at the Summit County Detention Center. In a written order, the district court denied Defendants qualified immunity in the context of their motion for summary judgment and they appealed. Durkee v. Minor, 2015 WL 8145257 (D. Colo. 2015) (unpublished). To the extent we may exercise jurisdiction over the district court's decision, we do so under 28 U.S.C. § 1291. See Lynch v. Barrett, 703 F.3d 1153, 1158-60 (10th Cir. 2013).

         Both the Supreme Court and this Court have spoken repeatedly on the defense of qualified immunity and our jurisdiction to review the denial of the same prior to final judgment. See, e.g., Johnson v. Jones, 515 U.S. 304 (1995); Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010). We will not reinvent the wheel here. For now, suffice to say Defendants' claim to qualified immunity imposes the burden on Plaintiff to show Defendants violated a constitutional right that was clearly established under the facts of this case at the time of the violation. Lynch, 703 F.3d at 1159. In deciding whether Plaintiff has met his burden, we generally are not empowered to consider which facts the parties might be able to prove at trial. Id. at 1160 & n.2. Rather, we may ask only whether the facts the district court found support Plaintiff's claim that Defendants violated clearly established law. Id. at 1159. In other words, if the district court concluded a reasonable jury could find "certain specified facts" in favor of Plaintiff, 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." Id. (quoting Lewis, 604 F.3d at 1225). Applying the appropriate legal standards, we affirm as to Defendant Hochmuth and reverse as to Defendant Minor.

         I.

         The facts the district court recited are sufficient to justify the denial of qualified immunity to Defendant Hochmuth. The district court's factual statement, by which we are bound in the current context, reads as follows:

Inmate Ricky Michael Ray Ramos ("Ramos") had a history of aggressive behavior at the jail, and had been charged with several violations of jail rules on several occasions for threatening behavior towards jail staff, including a threat to stab a deputy in the neck, and toward other inmates, including the Plaintiff. Ramos had threatened Plaintiff shortly after Plaintiff's arrival at the jail, and Plaintiff requested that he be reassigned to another housing pod away from Ramos. After an argument between Ramos and Plaintiff, Plaintiff again expressed concern about Ramos' aggression toward him. A deputy issued an incident report stating that "[f]or future reference [Plaintiff] and Ramos cannot attend any programs together or ever be in the hallways or [booking] passing." Jail staff, including Defendant Hochmuth, acknowledged and initialed receipt of the notice.
On December 28, 2012, Ramos was being escorted back from a court proceeding by Defendant Hochmuth, and was unshackled in the booking area of the jail, which is adjacent to the professional visitation room. At that time, Plaintiff was in the visitation room, meeting with a mental health counselor. There are windows in the visitation room and those meeting inside are visible to those in the booking area. Plaintiff states that he saw both Ramos and Defendant Hochmuth in the booking area through the visitation room window. Defendant Hochmuth contends he did not see the Plaintiff in the visitation room. Defendant Hochmuth proceeded to unshackle Ramos in the booking area, and instructed him to return to his housing pod. After taking one or two steps toward the housing pod door, Ramos suddenly turned around and ran into the visitation room through its unlocked door and assaulted Plaintiff. Although the altercation was brief, Plaintiff suffered a facial fracture from the assault.

Durkee, 2015 WL 8145257, at *1 (brackets in original).

         In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held a prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. To establish deliberate indifference on the part of Defendant Hochmuth, Plaintiff must prove that Hochmuth knew of and disregarded a substantial risk to Plaintiff.[1] See id. at 837-38. In other words, Hochmuth must have been aware of facts from which he could draw the inference that a substantial risk of serious harm to Plaintiff existed, and he must also have drawn the inference. Id. at 837. Defendant Hochmuth does not dispute that he knew Ramos posed a substantial risk of serious harm to Plaintiff "generally." Instead, Hochmuth tells us he never appreciated the risk to Plaintiff that Ramos posed while in the booking area because he did not see Plaintiff in the visitation room before he unshackled Ramos. Defendant Hochmuth insists that without specific knowledge of facts from which he could infer Plaintiff was at imminent risk of attack while in the visitation room, he could not have been deliberately indifferent to Plaintiff's safety.

         Defendant Hochmuth is quite correct in suggesting that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for condemnation, cannot . . . be condemned as the infliction of punishment." Id. at 838. The Supreme Court has pointed out, however, that if the risk is obvious such that a reasonable man would realize it, a jury might infer that a defendant did in fact realize it. "[B]ut the inference cannot be conclusive, for we know that people are not always conscious of what reasonable people would be conscious of." Id. at 842 (internal quotations omitted). This means that where the facts as found by the district court show-as they do here-that a substantial risk of an inmate attack against Plaintiff was well-documented and expressly noted by prison officials prior to the attack in question, and those facts further show-as they do here-that Defendant Hochmuth was informed of and acknowledged ...


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