United States District Court, D. Colorado
A. BRIMMER United States District Judge.
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.
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. 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.
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
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
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.
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. Docket No. 10 at
3, ¶ 14.
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.
Cross Motions for Summary Judgment
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 ...