Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eller v. Tonche

United States District Court, D. Colorado

March 14, 2018

WILLIAM B. ELLER, Plaintiff,
v.
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 JUDGE

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Defendants 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.

         BACKGROUND

         I. Factual Background

         The 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 ¶ 4.
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. 163-2.
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. 99:15-100:14.
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 No. 170.
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[1] 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 ¶ 35.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.