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Nosewicz v. Janosko

United States District Court, D. Colorado

March 5, 2018



          PHILIP A. BRIMMER United States District Judge.

         This matter is before the Court on defendant's Motion and Brief in Support of Summary Judgment [Docket No. 39], Plaintiff's Motion for Summary Judgment on Issue of Liability [Docket No. 45], and defendant's Motion to Strike Affidavits of Plaintiff [ECF 44-1 & 42-1], Stephanie Chiu [ECF 44-6 & 42-2], and Tavi Wolf [ECF 44-2 & 42-3]. Docket No. 47. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND[1]

         A. Factual Background

         On December 5, 2014, plaintiff Edward John Nosewicz was arrested by Thornton police officers. Docket No. 39, Defendant's Statement of Undisputed Material Fact (“DSUMF”) 1; Docket No. 39 at 2, ¶ 1. During his arrest, the police officers slammed plaintiff to the ground, injuring his face. DSUMF 2.[2] Plaintiff was first taken to the Thornton Police Station and later to the Adams County Detention Facility. Docket No. 45, Plaintiff's Statement of Undisputed Material Facts (“PSUMF”) 2; Docket No. 45 at 3, ¶ 2. Plaintiff's claim relates to his treatment at the detention facility, not his arrest. See Docket No. 10.

         Two members of the detention facility medical staff saw plaintiff during the intake process; he was then released into the general population and assigned a cell in the intake pod. DSUMF 3, 6, 7. Between 7:00 p.m. and 8:00 p.m. on December 5, 2014, plaintiff complained in an irate manner that he needed to see the medical staff. PSUMF 8. Defendant Jeffrey Janosko, a deputy sheriff assigned to the detention facility, spoke to plaintiff and contacted the medical unit. PSUMF 6, 8, 9; DSUMF 8. Sergeant Robert Hannah took plaintiff to the medical unit for evaluation. DSUMF 9. A nurse saw plaintiff and issued him an oxygen concentrator. DSUMF 10. Plaintiff told the medical staff that he needed medications. DSUMF 10.[3]

         At approximately 4:10 a.m. on December 6, 2014, plaintiff began yelling at the top of his lungs. DSUMF 14; PSUMF 14. Defendant went to plaintiff's cell and asked the tower deputy to open plaintiff's cell door so that plaintiff and defendant could better communicate. DSUMF 14; PSUMF 14. Defendant stood in front of the open door and spoke with plaintiff. DSUMF 16. Defendant offered to call the medical staff to ask if they would see him and told plaintiff that he could file a kite if they would not see him. Id.; see also PSUMF 16. Plaintiff became progressively angrier and began yelling at defendant. DSUMF 17. Because of plaintiff's irate behavior and because plaintiff would not obey defendant's commands, defendant decided that he needed escort plaintiff to a safer location. PSUMF 17; DSUMF 18.[4]

         Defendant entered plaintiff's cell and a physical altercation ensued. DSUMF 20; PSUMF 19. The parties dispute the particulars of the altercation, but they agree that defendant forced plaintiff to the cell floor and that plaintiff's left elbow was lacerated. PSUMF 19, 20. At the time, plaintiff told defendant that he had broken plaintiff's ribs. PSUMF 22. Several other officers responded to the altercation and plaintiff was taken to a cool-down “PR Cell” in the intake pod. DSUMF 20, 21, 22. Approximately five minutes later, a nurse saw plaintiff. DSUMF 22. Plaintiff was escorted to the medical unit and a nurse treated plaintiff's elbow injury. DSUMF 24. The medical staff later saw plaintiff again and provided him with one of his medications. Id.

         B. Procedural History

         On February 24, 2016, plaintiff filed his complaint. Docket No. 1. Plaintiff asserts a 42 U.S.C. § 1983 claim for use of excessive force in violation of the Fourth Amendment and deliberate indifference to plaintiff's serious medical needs in violation of the Fourteenth Amendment.[5] Docket No. 10 at 3, ¶ 14.

         On March 29, 2017, defendant filed his motion for summary judgment, arguing that plaintiff cannot prove his claim and that defendant is entitled to qualified immunity. Docket No. 39 at 2, 13, 19. On April 21, 2017, plaintif f filed his partial motion for summary judgment, seeking judgment on the issue of liability for his excessive force claim. Docket No. 45 at 1. On May 3, 2017, defendant filed his motion to strike, seeking to strike three affidavits attached to plaintiff's response to defendant's motion for summary judgment. Docket No. 47 at 1-2.

         II. ANALYSIS

         A. Cross Motions for Summary Judgment

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is ...

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