United States District Court, D. Colorado
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Michael E. Hegarty United States Magistrate Judge
who suffers from several physical impairments including
cerebral palsy, alleges that on April 19, 2014, while
detained at the Arapahoe County Detention Facility, he was
placed in a holding cell in the medical unit and, as he
attempted to approach the door (apparently left slightly open
by the deputies, including the Defendants, who had just
departed), the Defendants re-entered the cell, pushed
Plaintiff against the back wall, and one Defendant twisted
Plaintiff's arm so that he fell causing physical
injuries, including that the femur in Plaintiff's right
leg broke at mid-shaft. Based on these (and other)
allegations, Plaintiff brings claims against the Defendants
under 42 U.S.C. § 1983 for excessive force and for
failure to prevent excessive force in violation of the
Fourteenth Amendment (governing constitutional claims by a
deny these allegations and, here, seek summary judgment in
two separate motions. First, Defendant Geoffrey Maisch
(“Maisch”) seeks summary judgment asserting
qualified immunity and arguing that just prior to the
incident in question, Plaintiff had assaulted three deputies
and, thus, the Court must follow Tenth Circuit precedent
regarding the proper use of force on an assaultive inmate.
Second, Defendants David Kelso, Aaron Gilmour, and Dale
Pemberton (“Defendants”) assert they are also
entitled to qualified immunity and argue the Plaintiff fails
to demonstrate genuine issues of material fact as to whether
(1) the Defendants personally participated in the alleged
claims; (2) the allegations establish an excessive force
claim; and (3) there was sufficient time for Defendants to
intervene and prevent any excessive force.
Court finds the Plaintiff fails to demonstrate genuine issues
of material fact as to whether the conduct in question
constituted constitutionally excessive force and whether his
right against the alleged conduct was clearly established.
Accordingly, the Court will grant the Defendants'
Court makes the following findings of fact viewed in the
light most favorable to the Plaintiff, who is the non-moving
party in this matter.
Plaintiff was arrested on the evening of March 28, 2014 for
harassment, violation of a protection order, and resisting
arrest, and he was booked into the Arapahoe County Detention
Facility (“ACDF”) early in the morning of March
April 19, 2014, Plaintiff was detained in Pod 5E of the ACDF,
which is a minimum security, direct supervision pod in which
there are no doors on the cells and inmates are free to enter
the dayroom or use the restrooms, unless placed on a
“lockdown” (or, order for inmate to remain in his
Given the greater freedom afforded inmates housed in Pod 5E,
inmates are required to abide by the rules. If an inmate
receives more than four disciplinary write-ups in a month in
a direct supervision pod, the inmate will be moved to a more
restrictive housing unit.
Sometime during the evening medication pass on April 19,
2014, Plaintiff became upset with the nurse who was
distributing medications in Pod 5E and began yelling at her.
Plaintiff was warned to stop and when he did not, he was
ordered on lockdown and to return to his cell.
Plaintiff walks with a pronounced limp and unsteady gait.
Plaintiff returned to his cell, but came back out in
violation of the lockdown order to go to the kiosk to file a
kite. Plaintiff continued to leave his cell and yell at the
nurse and at Deputy Yantiss, who was required to stand with
the nurse during the medication pass.
After completing the medication pass, Yantiss returned to his
workstation and began writing up the Plaintiff for violating
the lockdown order. As he started the disciplinary write-up,
Yantiss discovered that Plaintiff had more than four
disciplinary write-ups that month; thus, Yantiss contacted
his supervisor, Defendant Maisch, to determine where he could
Maisch conferred with classifications personnel and his
direct supervisor, Defendant Sgt. Kelso
(“Kelso”), the acting watch commander for that
shift, regarding moving Plaintiff to the medical unit, where
Plaintiff could be housed in a cell with a door, but would
still have access to an ADA compliant shower. Kelso
authorized the move.
Maisch knew Plaintiff “had a problem with his right
arm” and “had a disability.” Deposition of
Geoffrey Maisch, September 12, 2017 (“Maisch
Dep.”) 69: 2-25.
Maisch and Yantiss went to Plaintiff's cell and asked him
to pack up his items because he was being moved to the
medical unit. Plaintiff refused to pack his items, argued
with the deputies, and refused to walk voluntarily to the
Maisch did not use force or place Plaintiff in handcuffs in
Pod 5E or while in transit to Medical Cell 7
some point, Deputy Lombardi, having observed the disturbance,
entered the dayroom to assist Maisch and Yantiss.
a result of Plaintiff's refusal to comply, Maisch and
Lombardi grabbed Plaintiff's arms and began escorting him
to the medical unit.
While being escorted to MC7, Plaintiff actively resisted,
including pulling his arm out of Lombardi's grasp and
Plaintiff was temporarily placed in MC7, which was vacant,
while it could be determined where he was going to be
permanently housed. The deputies placed a plastic chair in
the cell so that Plaintiff could sit while they discussed
where to house him.
Once in MC7, Plaintiff refused to sit and began throwing
punches at the deputies, including striking Deputy Teresa
Dillard (“Dillard”) on the arm.
Plaintiff also punched Maisch in the chest with a closed
fist, striking Maisch's bulletproof vest and trauma
plate. Maisch noticed that Plaintiff had used his left arm to
punch him (Plaintiff's non-disabled arm), and was
surprised by how hard Plaintiff could swing. Maisch laughed
and told Plaintiff, “That was the dumbest thing
you've ever done.” 18. Despite being punched,
Maisch took no immediate physical action against Plaintiff
and, instead, instructed Plaintiff to sit back down.
Because Plaintiff had already assaulted three deputies,
Maisch made the decision to utilize a takedown maneuver,
which placed Plaintiff on the ground so he could be
Given Plaintiff's conduct, it was determined that he
would be placed in a padded, holding cell in the booking
unit, holding cell 3 (“HC3”). HC3 is used to
temporarily house assaultive inmates while they cool down.
Plaintiff was escorted to and placed in HC3.
Once inside HC3, Plaintiff was instructed to get on his
knees, but because of his disability, Plaintiff told the
deputies that he could not kneel. As a result, Plaintiff was
allowed to remain standing while his handcuffs were removed.
Plaintiff was placed against a wall in a corner away from the
cell door and his handcuffs were removed.
deputies then begin to exit the cell one by one. As Maisch,
the last deputy to leave the cell, was stepping backward
toward the door, Plaintiff stepped away from the wall and
began moving toward Maisch, despite Maisch's repeated
orders that Plaintiff step back and stand against the wall.
Maisch utilized two open-palmed shoves in an attempt to push
Plaintiff toward the back of the cell.
Plaintiff kept advancing on Maisch despite the verbal and
the cell door was shutting, Plaintiff advanced again,
thrusting his left arm through the doorway.
Plaintiff struck Maisch, who was at or just outside the
threshold of the door, in the chest.
was Plaintiff's intention to prevent the deputies from
shutting the cell door until they answered his questions
about when he would return to Pod 5E. Defendants' Reply
Defendant Kelso observed Plaintiff's arm come through the
doorway, ordered the door to be opened, and placed his hand
on the cell door to stop it from being shut.
cell door had a long, narrow (rectangular) window on the side
near the door knob. Video of Incident in HC3
(“Video”) 10:06:14-10:06:19, ECF
Kelso knew that Plaintiff had an “obvious malady”
in which Plaintiff “appeared to have a clubbed hand on
his right side and walked with a limp.” Deposition of
David Kelso, September 15, 2017 (“Kelso Dep.”)
cell door, which was half-closed before Plaintiff thrust his
arm through it, was then swung wide open. Video
10:06:18-10:06:21. Plaintiff stood just inside the threshold
facing the deputies on the other side of the door and
shifting on his feet. Id.
Maisch did not open the cell door prior to re-entering the
Once the door was open, Maisch entered the cell, advanced on
Plaintiff, grabbed his wrist, and started to turn Plaintiff
back toward the far wall of the cell, intending to perform an
“arm bar” takedown.
“arm bar” was a standard FBI takedown maneuver
that Maisch had utilized throughout his ...