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Eller v. Tonche
United States District Court, D. Colorado
March 14, 2018
WILLIAM B. ELLER, Plaintiff,
TODD TONCHE, TAMI RUCH, JEANNIE PARK, KENNETH LEFEVER, SARAH DARULA, NICOLE ALBRIGHT, CHARLES KUDLAUSKAS, CHARLENE LARSON, and MEGHAN JACKSON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
move for summary judgment on all of Plaintiff William
Eller's claims. Defendants first contend Mr. Eller has
not exhausted his administrative remedies. Alternatively,
Defendants Tami Ruch, Jeannie Park, Nicole Albright, Charles
Kudlauskas, Charlene Larson, and Meghan Jackson assert
entitlement to qualified immunity. The Court recommends
holding that Defendants waived their untimeliness objection
regarding some of Mr. Eller's grievances, and that
disputed issues of fact exist as to whether administrative
remedies were available for the remaining grievance.
Proceeding to the merits, the Court recommends holding that
Officer Ruch, Officer Park, Ms. Jackson, and Ms. Larson are
not entitled to qualified immunity at this time. However, Mr.
Eller fails to present evidence establishing a constitutional
violation against Ms. Albright and Mr. Kudlauskas.
Accordingly, the Court respectfully recommends granting in
part and denying in part Defendants' motion.
evidence submitted by the parties reveals the following facts
viewed in the light most favorable to Mr. Eller, who is the
non-moving party in this matter.
1. Mr. Eller was an inmate at the Sterling Correctional
Facility (“SCF”) in the Colorado Department of
Corrections (“CDOC”) at the time of the incidents
giving rise to this lawsuit. Defs.' Statement of Facts
¶ 1, ECF No. 156; Resp. to Defs.' Statement of Facts
¶ 1, ECF No. 163.
2. On February 13, 2013, Correctional Officers Park and
Tonche came to Mr. Eller's cell to escort Mr. Eller to an
appointment. Defs.' Statement of Facts ¶ 3; Resp. to
Defs.' Statement of Facts ¶ 1.
3. When Defendants arrived at Mr. Eller's cell, Mr. Eller
was having a disagreement with his cellmate. Defs.'
Statement of Facts ¶ 4; Resp. to Defs.' Statement of
Facts ¶ 4.
4. Nevertheless, Mr. Eller gathered his belongings and walked
out of his cell into the vestibule area. Defs.' Statement
of Facts ¶ 5; Resp. to Defs.' Statement of Facts
5. Mr. Eller informed the officers that he did not want to go
to his appointment. Instead, he wished to be handcuffed so he
could see the housing sergeant regarding a request to change
cells. Defs.' Statement of Facts ¶ 6; Resp. to
Defs.' Statement of Facts ¶ 7.
6. Officer Ruch placed Mr. Eller in handcuffs, after which
Mr. Eller turned around to face Officer Tonche. Defs.'
Statement of Facts ¶¶ 8-9; Resp. to Defs.'
Statement of Facts ¶ 7.
7. Mr. Eller claims that Officer Tonche then punched him in
the face, put him in a headlock, and “face-planted
[him] into the concrete.” Dep. of William Eller
91:17-92:5, June 28, 2017 (“Eller dep.”), ECF No.
8. Officer Ruch assisted in taking Mr. Eller to the ground.
Dep. of Jeannie Park, 41:10-:14, Apr. 14, 2017 (“Park
dep.”), ECF No. 163-3; Dep. of Tami Ruch, 42:4-:11,
Apr. 10, 2017 (“Ruch dep.”), ECF No. 163-6.
9. During this incident, Officer Park was standing
approximately three feet from Officer Tonche, Officer Ruch,
and Mr. Eller. Park dep. 50:10-:16.
10. Mr. Eller contends that once he was on the ground,
Officer Tonche “took a knee, jumped up, drove it in the
back of [his] neck, ” and “put a knee in the back
of [his] spine.” Eller dep. 92:1-:4. Officer Tonche
then “[j]umped back up [and] stomped [Mr. Eller's]
left leg where it snapped.” Id. at 92:4-:5;
see also Aff. of Jonathan Trujillo, ECF No. 163-5,
at 1-2; Aff. of Jeremiah Woolbright, ECF No. 163-5, at 4.
11. Additionally, Mr. Eller remembers being kicked in the
torso by either Officer Ruch or Officer Park. Eller dep.
12. The entire incident last approximately three minutes.
Park dep. 58:2-:8; Pl.'s Statement of Facts ¶ 1, ECF
No. 163; Resp. to Pl.'s Statement of Facts ¶ 1, ECF
13. On the same day as the incident, Defendant Sarah Darula,
a nurse at SCF, performed an anatomical examination on Mr.
Eller. Ms. Darula noted a one-inch unopened abrasion on Mr.
Eller's left arm and a two-by-two inch red unopened area
on Mr. Eller's lower back. ECF No. 156-11, at 6.
14. Due to his allegedly abusive and threatening conduct on
February 13, 2015, Mr. Eller was subsequently convicted of
advocating or creating a facility disruption. Defs.'
Statement of Facts ¶ 17; Resp. to Defs.' Statement
of Facts ¶ 17.
15. Beginning on the day of the incident and continuing
through February 23, 2015, Mr. Eller verbally complained to
every nurse on med line about pain and swelling in his leg.
Aff. of William Eller ¶¶ 5-6, ECF No. 163-1.
16. In addition to verbal complaints, inmates in
administrative segregation like Mr. Eller can submit informal
medical complaints, called “kites, ” either
directly to a nurse during med line or by placing it in the
cell door so that a nurse on med line can take the kite as he
or she walks by. Dep. of Sterling Correctional Facility
53:11-:25, Aug. 22, 2017 (“SCF dep.”), ECF No.
163-28. The nurse on med line then takes the kite to the
nurses' station and places it in a basket to be entered
into the computer system. Dep. of Nicole Albright
23:24-24:10, Aug. 24, 2017 (“Albright dep.”), ECF
No. 163-18. Although the charge nurse occasionally assigns a
specific person to input kites into the computer system,
kites are generally entered by any nurse who has time.
Pl.'s Statement of Facts ¶ 13; Resp. to Pl.'s
Statement of Facts ¶ 13.
17. Between February 13, 2015 and February 23, 2015, Mr.
Eller submitted kites twice a day to the nurses on med line.
Aff. of William Eller ¶¶ 5-6; ECF No. 163-9. Among
other issues, these kites complained of “extreme
pain” and “chipped teeth, ” and they
requested an x-ray for his broken leg. ECF No. 163-9.
However, none of these kites were entered into the computer
system. Pl.'s Statement of Facts ¶ 7; Resp. to
Pl.'s Statement of Facts ¶ 7.
18. At some point between February 14, 2015 and February 23,
2015, Mr. Eller told Ms. Jackson, a nurse at SCF, that he
believed he had a broken leg as a result of the incident with
Officers Tonche, Ruch, and Park. Mr. Eller contends he
informed Ms. Jackson that he had extreme pain and was unable
to bear weight on his leg. Defs.' Statement of Facts
¶ 20; Resp. to Defs.' Statement of Facts ¶ 20.
19. Mr. Eller also gave Ms. Jackson a kite. Eller dep.
40:10-41:12; Defs.' Statement of Facts ¶ 20; Resp.
to Defs.' Statement of Facts ¶ 20. However, Ms.
Jackson did not enter the kite into the computer system.
Pl.'s Statement of Facts ¶ 7; Resp. to Pl.'s
Statement of Facts ¶ 7.
20. Mr. Eller informed Ms. Larson, a nurse at SCF, about his
extreme leg pain many times between February 13, 2015 and
February 23, 2015. Specifically, Mr. Eller remembers telling
Ms. Larson on February 22, 2015 that his leg feels broken and
that he suffers extreme pain when he attempts to stand on it.
Eller dep. 175:18-76:3; Defs.' Statement of Facts ¶
23; Resp. to Defs.' Statement of Facts ¶ 23.
21. Mr. Eller contends that in response to his verbal
complaints and kites, Ms. Larson threatened him, threw his
kites away, and destroyed his kites in front of him. Eller
dep. 78:1-:3, 253:13-:23.
22. On February 23, 2015, Ms. Albright, a charge nurse at
SCF, requested that Ms. Larson examine Mr. Eller's leg.
After doing so, Ms. Larson reported to Ms. Albright that Mr.
Eller needed further attention. Defs.' Statement of Facts
¶ 26; Resp. to Defs.' Statement of Facts ¶ 26.
23. Ms. Albright subsequently performed an assessment on Mr.
Eller's leg and noted major swelling to Mr. Eller's
left ankle. Ms. Albright also conducted a capillary refill
and noted that Mr. Eller's skin was warm to touch. Ms.
Albright ordered an ACE wrap and ice pass for the next
seventy-two hours and noted that Mr. Eller would have to
undergo an x-ray for a possible fracture. Lastly, Ms.
Albright reported her findings to the physician assistant,
Mr. Kudlauskas. ECF No. 156-11, at 4; Defs.' Statement of
Facts ¶¶ 28-30; Resp. to Defs.' Statement of
Facts ¶¶ 28-30.
24. Ms. Albright did not give Mr. Eller crutches on February
23, 2015 or February 24, 2015. Albright dep. 104:25-05:2.
25. Despite Mr. Eller's request to have the x-ray taken
immediately, the imaging was not performed until February 25,
2015. Defs.' Statement of Facts ¶ 31; Resp. to
Defs.' Statement of Facts ¶ 31.
26. Mr. Kudlauskas reviewed the imaging on February 25, 2015
and determined that Mr. Eller's leg was fractured. Mr.
Kudlauskas ordered that Mr. Eller receive a bottom bunk
restriction, crutches, ibuprofen, and a half cast. Defs.'
Statement of Facts ¶ 34; Resp. to Defs.' Statement
of Facts ¶ 34; ECF No. 156-11, at 3.
27. Mr. Kudlauskas then spoke with an orthopaedic surgeon on
the phone and subsequently submitted a request for an
orthopaedic consult. Defs.' Statement of Facts ¶ 36;
Resp. to Defs.' Statement of Facts ¶ 36.
28. Mr. Kudlauskas did not order a “bottom tier
restriction, ” which would have allowed Mr. Eller to
stay in a cell on the lower tier. Defs.' Statement of
Facts ¶ 35; Resp. to Defs.' Statement of Facts
29. Mr. Eller received surgery to treat his broken leg on
March 4, 2015. Defs.' Statement of Facts ¶ 37; Resp.
to Defs.' Statement of Facts ¶ 37.
30. In addition to his kites, Mr. Eller submitted grievances
regarding the excessive force incident and his medical needs.
ECF No. 156-17, at 44-71.
31. SCF policy establishes a four-step process for resolving
inmate grievances. This includes an informal opportunity to
engage in dialog with the allegedly offending individual and
three formal steps. The policy requires inmates to file a
step one grievance within thirty days of discovering the
underlying issue. The inmate must then file a step two
grievance within five days of receiving an unsatisfactory
response to the step one grievance. Similarly, the inmate
must file a step three grievance ...