United States District Court, D. Colorado
THE ESTATE OF JOSEPH C. "TREY" DUKE, III, by and through its personal representatives Beth Anne Duke and Joseph Councell Duke, Jr., BETH ANNE DUKE, and JOSEPH COUNCELL DUKE, JR., Plaintiffs,
GUNNISON COUNTY SHERIFF'S OFFICE, RICHARD BESECKER, in his individual capacity, IAN CLARK, in his individual capacity, SCOTT LEON, in his individual capacity, PAULA MARTINEZ, in her individual capacity, CONNER UDELL, in his individual capacity, MEGAN HOLLENBECK, in her individual capacity, CHAD ROBERTS, in his individual capacity, BRANDYN RUPP, in his individual capacity, and RYAN PHILLIPS, in his individual capacity, Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' motions for
summary judgment. ECF Nos. 91, 92. After hearing oral
argument on the motions, the Court GRANTS the motions.
a sad case involving the death of a young man while in police
custody. Joseph C. (“Trey”) Duke, a recently
released parolee, was arrested on the afternoon of June 27,
2015 for possession of narcotics, violation of a protective
order, and violation of his parole. ECF No. 91 at 3. Trey was
passed out when Deputy Clark of the Gunnison County
Sheriff's Office encountered him, but he woke up when
Deputy Clark addressed him. ECF No. 39 at 5; ECF No. 91-1 at
2. Deputy Clark determined that Trey was under a protective
order prohibiting him from being under the influence of a
controlled substance. ECF No. 91-1 at 3. Trey insisted that
he had only taken Clonazepam, a medication prescribed to him.
Id. at 9. Deputy Clark conducted field sobriety
tests, which Trey failed, and he searched Trey, finding
packets of an unknown substance and a prescription pill
bottle containing a substance other than what Trey was
prescribed. ECF No. 91 at 3, ECF No. 39 at 7, ECF No. 91-1 at
5, 7. Deputy Clark was joined on the scene of the arrest by
Deputies Leon and Martinez, and Colorado State Patrol
Troopers Sparks and Trafton. ECF No. 39 at 7.
Martinez transported Trey to the Gunnison County Detention
Center, where Troopers Trafton and Sparks performed a Drug
Recognition Evaluation (“DRE”). ECF No. 91 at 4.
During the DRE, the troopers checked Trey's vitals
several times, but Trey declined a voluntary blood draw. ECF
No. 92 at 3; ECF No. 91 at 4. During the course of the
evaluation, which lasted about one-and-a-half hours, video
shows that Trey mostly sat on a bench, occasionally with his
head nodding. ECF No. 39 at 8. At one point Trey fell off the
bench to the floor, after which he returned to his seat.
Id. Trey would occasionally “slump over,
” but he was “able to engage in whatever question
was asked him [sic] or whatever the conversation was going on
around him.” ECF No. 91 at 4. The DRE resulted in a
finding that Trey was under the influence of a Central
Nervous System stimulant and a narcotic analgesic, though
Trey continued to deny using any drugs other than his
prescription medication. ECF No. 39 at 8, ECF No. 91 at
Trey's evaluation, Deputy Udell transferred Trey to a
padded holding cell with an in-cell camera. ECF No. 92 at 3.
Between the hours of 7 p.m. and 11 p.m., Deputy Udell met
with Trey at various points to complete a medical
questionnaire, conduct his formal booking, and allow him to
make a few phone calls and use the restroom. Id. at
4. Deputy Udell transferred Trey to a different cell around
11 p.m., and he continued to monitor Trey until the end of
his shift at 2 a.m. Id. Other detention center
staff, including Deputies Rupp and Roberts, periodically
monitored Trey during the night as he slept, although
plaintiffs dispute the level and adequacy of this monitoring.
the early morning hours of June 28, 2015 Trey was monitored
periodically by Deputies Roberts, Rupp and Phillips.
Id. Deputy Roberts delivered Trey a breakfast tray
at 7:30 a.m., for which Trey thanked the deputy. ECF No. 92-2
at 4. When Deputy Roberts attempted to retrieve the tray at
8:00 a.m, Trey indicated that he was not done eating, so he
was allowed to keep the tray. ECF No. 92 at 13. Deputy
Phillips collected the tray around 8:30 a.m. ECF No. 91 at 5.
At 9:01, as Deputy Roberts left the detention center for the
day, he observed that Trey was seated on the floor as he had
been for his breakfast, and that he was slumped over but
breathing. Id. Three minutes later, Deputy Rupp
checked on Trey and noticed that he was not breathing and
appeared to have bile on his mouth. ECF No. 92 at 5. Deputy
Rupp began performing emergency first aid and called for
help; an ambulance arrived in minutes but emergency personnel
were unable to revive Trey. Id.
autopsy revealed a plastic baggie in Trey's gastric
contents that contained traces of fentanyl. ECF No. 91-14.
The autopsy determined that Trey had fentanyl, cocaine,
benzodiazepines and oxycodone in his system at the time of
death and concluded that the cause of death was an acute drug
overdose. Id. Defendants' expert in forensic
toxicology opined that the amount of fentanyl in Trey's
system was high enough to be an independent cause of his
death, and that none of the other drugs in his blood played a
significant role in his death. ECF No. 91-6. As such,
defendants contend that Trey ingested a fentanyl patch before
he was arrested, and that the baggie enclosing the patch must
have ruptured around breakfast time leading to his overdose.
In contrast, plaintiffs' retained expert opined that
while fentanyl most likely caused Trey's death, the
effect of the fentanyl was augmented by the presence of a
benzodiazepine in Trey's system. ECF No. 104-15 at 6.
Plaintiffs argue that it cannot be conclusively proven that
Trey ingested a fentanyl patch; that he ingested the fentanyl
before, as opposed to during, custody; or that the fentanyl
in his system independently caused his death.
Court may grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party has the burden to show that there is
an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must “designate specific
facts showing that there is a genuine issue for trial.”
Id. at 324. A fact is material “if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue
of material fact is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
The Court will examine the factual record and make reasonable
inferences therefrom in the light most favorable to the party
opposing summary judgment. Concrete Works of Colo., Inc.
v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th
complaint raises two claims: (1) a 42 U.S.C. § 1983
claim against all defendants other than Sheriff Besecker for
a violation of Trey's constitutional rights under the
Fourteenth Amendment for deliberate indifference to a serious
medical threat, and (2) a state wrongful death claim under
C.R.S. §13-21-202 against all defendants. Defendants
move for summary judgment on the § 1983 claim, asserting
qualified immunity for the individual defendants and lack of
municipal liability on behalf of the Sheriff's Office.
Defendants also move for summary judgment on the state
wrongful death claim, first on the grounds that the Court
ought not extend supplemental jurisdiction if the federal
claim is dismissed, and alternatively on the basis that
plaintiffs are not eligible to invoke any of the limited
exceptions to defendants' immunity to the state wrongful
death law. I will address each claim in turn.
42 U.S.C. § 1983 Deliberate Indifference
§ 1983 claim alleges that all the named defendants,
aside from Sheriff Besecker, were deliberately indifferent to
Trey's serious medical need in violation of the
Fourteenth Amendment. ECF No. 39 at 14. Plaintiffs contend
that the defendants were aware of Trey's intoxication and
risk of death by overdose at the time of his ...