Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brosh v. Duke

United States District Court, D. Colorado

August 25, 2014

JEFF BROSH, and JOHN COON, Plaintiffs,
LINDA DUKE, in her individual capacity, Defendant.


RAYMOND P. MOORE, District Judge.

Plaintiffs Jeff Brosh and John Coon, then prisoners working in the Fremont Correctional Facility ("FCF") kitchen, allege that Defendant Linda Duke, a correctional officer, maliciously and sadistically locked Plaintiffs in a walk-in refrigerator for no legitimate penological purpose. This matter is now before the Court on Defendant's two motions for summary judgment. In her first motion (ECF No. 35), Defendant seeks dismissal of Mr. Brosh's claims as barred under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. ยงยง 1997e et seq. In her second motion (ECF No. 59), Defendant seeks dismissal of Plaintiffs' claims based on qualified immunity. Upon consideration of the motions, the Court file, and the applicable statutes, rules and case law, and being otherwise fully advised, the Defendant's Motions for Summary Judgment are GRANTED.


Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine issue of material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

"At the summary judgment stage, the parties need not submit evidence in a form admissible at trial; however, the content or the substance of the evidence must be admissible." Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1122 (10th Cir. 2005); see Fed.R.Civ.P. 56(e). Thus, "(1) the content of summary judgment evidence must be generally admissible and (2) if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge." Bryant, 432 F.3d at 1122.

The standard of review, however, differs in evaluating a motion for summary judgment based on a defense of qualified immunity. Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003). "The doctrine of qualified immunity protects government officials 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." Pearson v. Callahan, 555 U.S. 223, 231 (10th Cir. 2009) (internal quotation marks omitted). Because of the underlying purposes of qualified immunity, "[w]hen a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff to satisfy a strict two-part test: first, the plaintiff must show that the defendant's actions violated a constitutional or statutory right; second, the plaintiff must show that this right was clearly established at the time of the conduct at issue." Roja v. Anderson, 727 F.3d 1000, 1003 (10th Cir. 2013) (internal quotation marks omitted); Smith, 339 F.3d at 1211.

In determining whether the right was "clearly established, " the court must assess the objective legal reasonableness of defendant's action at the time of the alleged violation and ask whether the contours of the right were sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. Holland ex rel Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001).

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. The Supreme Court has held a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful. As this court has pointed out, the Hope [ Hope v. Pelzer, 536 U.S. 730, 741 (2002)] decision shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair notice that the described conduct was unconstitutional.

Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (internal quotation marks, citations and alterations omitted); Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).

In determining whether a plaintiff has satisfied this initial burden, the court must view the facts and draw reasonable inferences in a light most favorable to plaintiff as the party opposing summary judgment. Rojas, 727 F.3d at 1004 n.5. This ordinarily means "adopting... the plaintiff's version of the facts.'" Id. (quoting Scott v. Harris, 550 U.S. 372, 378 (2007); ellipsis in original). The court has discretion to address the two-part test in whatever order is appropriate under the circumstances. Pearson, 555 U.S. at 236; Toevs v. Reid, 685 F.3d 903, 910 (10th Cir. 2012).


A. The Incident.

At all relevant times, Plaintiffs Brosh and Coon were prisoners incarcerated at the FCF who worked in the kitchen under the direction of Sergeant Rhonda Wheeler, a correctional officer ("CO"). (ECF No. 59-1, Duke Deposition (Dep.), pages (pp.) 7, 8.)[2] Plaintiffs' dinner shift duties typically ran from about 3:00 p.m. to 7:30 or 8:00 p.m. (ECF No. 59-6, Ransier Dep., pp. 5 & 12.) The last inmate count of the evening was around 9:25 p.m. (ECF No. 69-2, Ransier Dep., p. 13.)

On February 12, 2012, at approximately 6:00 p.m., and as part of their regular duties, Plaintiffs brought leftover milk to the kitchen cooler ("Cooler"). (ECF No. 59-4, Coon Dep., pp. 24, 30; No. 69-1, Brosh Dep., pp. 23, 30; No. 69-5, Incident Report.) It appears that Plaintiffs were also supposed to be at the Cooler to assist Sergeant Wheeler in pulling food for the next morning. (ECF No. 69-4, Wheeler Dep., p. 7.)

Defendant was present with another prisoner[3] at the Cooler. There was either no interaction between Defendant and Plaintiffs or, at most, Defendant indicated Plaintiffs could go into the Cooler. (ECF No. 69-1, pp. 27-28; No. 69-3, p. 31.) Plaintiffs walked into the Cooler to put their milk pallets away when Mr. Brosh noticed that Defendant had closed the Cooler door. (ECF No. 69-1, pp. 28-29.) Without a word to Plaintiffs, Defendant had walked out of the Cooler, shut the door, and locked the padlock. (ECF No. 59-1, pp. 44, 84; No. 59-4, p. 32.) When Mr. Coon looked out the window of the Cooler, he saw a bread rack in front of the window. (ECF No. 75-2, p. 74.)[4]

Plaintiffs banged, kicked and/or beat on the Cooler door, screamed, and repeatedly pushed on the large knob on the door as instructed by a large, visibly printed, but partially scratched off, yellow sticker on the door. That sticker stated "You Are Not Locked In." Plaintiffs, however, were unable to open the door. (ECF No. 59-1, p. 83; No. 69-1, pp. 29, 39-40; No. 59-4, pp. 32, 40-41; No. 59-11, Photo of Sticker.) Unbeknownst to Plaintiffs, they had to do more than push to exit - they had to turn the knob and unscrew it. (ECF No. 59-1, p. 84.) Neither Plaintiff was given any training on how to get out of the refrigerator. (ECF No. 59-1, p. 84; No. 69-1, p. 96; No. 69-4, p 17.) The temperature check at 5:41 p.m. that evening showed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.