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Lucero v. Dodd

United States District Court, D. Colorado

January 29, 2018

KIM LUCERO, Plaintiff,



         Kim 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.[1]

         After 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 established.

         The 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.

         Plaintiff opposed the motion. Briefing has been completed. The Court heard argument of counsel on January 17, 2018.

         The following facts are undisputed, except where stated.

         Plaintiff 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”).

         The 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.

         When 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.

         Davis's 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.

         Nearly eight years later, Davis was still an involuntarily committed patient, living on the ACBU.

         By the 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 supervision.

         The 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.” Id.

         On 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 prostitution. Id.

         Davis's treatment team decided that all of his privileges should be discontinued. Id.

         Notes 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.

         Before November 28, 2012, Davis had no history of violence on the grounds of the CMHIP.

         In the 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.

         Nurses 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.

         On the 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.

         At 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.

         The 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. ...

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