United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
RICHARD P. MATSCH, SENIOR JUDGE
Lucero (“Lucero” or “Plaintiff”) was
an involuntarily committed patient at the Colorado Mental
Health Institute at Pueblo (“CMHIP”) on November
28, 2012, when she was brutally stabbed by a fellow patient.
Plaintiff seeks damages against defendants Evelyn Dodd, Raul
Miera, and Sharian Haindel (collectively “the
defendants”). They were working as nurses at the CMHIP
when the attack occurred, and Plaintiff alleges they failed
to protect her from the assailant. The complaint alleges two
claims for relief: (1) damages under 42 U.S.C. § 1983
for deprivation of Plaintiff's right of substantive due
process guaranteed by the Fourteenth Amendment to the United
States Constitution; and (2) negligence under the common law
of Colorado, asking for the exercise of supplemental
jurisdiction under 28 U.S.C. § 1367. The defendants are
sued in their individual capacities.
the close of discovery, the defendants moved pursuant to
Fed.R.Civ.P. 56 for dismissal of Plaintiff's section 1983
claim, asserting that the doctrine of qualified immunity
shields them from liability. They contend that
Plaintiff's evidence is not sufficient to show a
constitutional violation, and even if it is, the defendants
cannot be held liable because the law was not clearly
defendants do not dispute that the evidence is sufficient to
create a triable issue on Plaintiff's negligence claim.
They assert, however, that dismissal of Plaintiff's
section 1983 claim would deprive this court of subject matter
jurisdiction, requiring dismissal of the negligence claim
without prejudice to refiling in state court.
opposed the motion. Briefing has been completed. The Court
heard argument of counsel on January 17, 2018.
following facts are undisputed, except where stated.
was involuntarily committed to the CMHIP in October 2010.
During the relevant time period, Plaintiff resided on a ward
at the CMHIP known as the Advanced Cognitive Behavioral Unit
ACBU is a locked unit, but is considered a minimum security
“community reintegration unit.” Patients residing
in that unit receive therapy that focuses in part on
preparing them to live independently in the community.
See Def.'s Ex. F, ACBU Unit Rules, p. 1. Some
ACBU patients enjoy privileges that allow them to leave the
unit or leave hospital grounds and spend time in the
community without an escort.
Plaintiff lived on the ACBU ward, Lamar Delray Davis
(“Davis”) was also an inpatient there. Davis had
been involuntarily committed to the CMHIP in December 2004,
after being found Not Guilty by Reason of Insanity in
connection with a charge of second degree assault.
criminal history records state that he stabbed his stepfather
in the chest with a knife during a family disturbance on
November 4, 2001. Pl.'s Ex. 1at 000155-56. Davis was
criminally charged, and in May 2002 was given a deferred
sentence on the charge of second degree assault and granted
probation for the charge of third degree assault.
Id. at 000104. In June and August, 2004, while Davis
was on probation, he left a series of threatening messages on
the voicemails of his probation officer and another probation
officer. Id. at 000070-71. The messages included
threats and statements such as: “you could lose your
life and your job;” “don't make me come up
there and slap you around, ” and “you need to be
naked when I come to my next appointment.” Id.
Davis was charged in Adams County on August 20, 2004, with
Harassment by Telephone Threat/Obscene. Id. On
December 6, 2004, Davis was found not guilty by reason of
insanity and ordered transferred to the CMHIP “Until
Restored to Reason.” Id. at 000015.
eight years later, Davis was still an involuntarily committed
patient, living on the ACBU.
fall of 2012, Davis had been granted privileges allowing him
to spend a certain number of hours off the CMHIP grounds to
attend classes at Pueblo Community College and engage in
activities such as shopping and dining at restaurants without
CMHIP's care plan for Davis dated October 15, 2012
indicated Davis had reported that thoughts of forced or
violent sexual contact would “accidentally pop into his
head.” Def.'s Ex. J-1. That care plan also
stated that Davis was recertified for continued stay at CMHIP
because he “continued to suffer from an abnormal mental
condition that was likely to lead to dangerousness.”
November 22, 2012, Davis was off the CMHIP grounds when he
got into a physical fight at the home of a former CMHIP
patient identified as “D.T.” Davis's
treatment team met on November 26 and 27, 2012, and discussed
Davis's off-campus conduct. Def.'s Ex. J, Case
Consultation. Davis admitted getting into a “physical
altercation” with D.T., D.T.'s daughter Devon, and
friend Teresa. Davis told the treatment team that the others
had assaulted him because Davis owed D.T. $30 for
treatment team decided that all of his privileges should be
of those treatment team meetings, prepared by Senior Forensic
Advisor Robin McCann, Ph.D., included the following
statements: “staff did not report unstable behavior on
Del Ray's part (other than the 11-22 allegation), ”
and “there was no evidence that [Davis] was a danger to
himself or others on the unit.” Id.
November 28, 2012, Davis had no history of violence on the
grounds of the CMHIP.
early morning of November 28, 2012, Nurse Dodd was working at
the ACBU. Her shift had started on November 27, 2012, at
10:45 p.m. and was scheduled to end at 6:45 a.m. Nurse Miera
was working that same shift. Nurse Haindel was also there,
working an 11:00 p.m. to 7:00 a.m. shift.
at CMHIP are expected to read the care plans for each of
their patients. Nurse Dodd had access to Davis's chart
and from time to time read the progress notes in the chart.
She had known Davis for several years as a patient on the
ACBU and knew him fairly well.
morning of November 28, 2012, Nurse Dodd knew that
Davis's off-grounds privileges had been suspended
recently. According to Nurse Dodd, when a patient's
privileges are suspended, the nurses exercise a
“heightened state of observation” because
inpatients sometimes respond to the loss of privileges by
becoming upset and angry and causing problems. Pl.'s Ex.
2, Dodd Dep.155:19 - 156:22.
approximately 6:15 a.m., on November 28, 2012, all three
defendants were at the nurses' station when Davis
approached Nurse Dodd and asked to use scissors.
CMHIP's nursing department has written policies regarding
the monitoring of “sharps.” Def.'s Ex. H,
Sharps Monitoring, 9/28/12. Sharps were to be stored in a
locked location and checked in and out by a staff member.