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Nilges v. Gilmour

United States District Court, D. Colorado

April 2, 2018

AARON GILMOUR, in his individual and official capacities, DAVID KELSO, Deputy, in his individual and official capacities, GEOFFREY MAISCH, in his individual and official capacities, and DALE PEMBERTON, in his individual and official capacities, Defendants.


          Michael E. Hegarty United States Magistrate Judge

         Plaintiff, 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 pretrial detainee).

         Defendants 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.

         The 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' motions.


         The 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.[1]

         1. 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 29, 2014.

         2. On 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 cell).

         3. 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.

         4. 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.

         5. Plaintiff walks with a pronounced limp and unsteady gait.

         6. 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.

         7. 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 move Plaintiff.

         8. 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.

         9. 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.

         10. 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 medical unit.

         11. Maisch did not use force or place Plaintiff in handcuffs in Pod 5E or while in transit to Medical Cell 7 (“MC7”).

         12. At some point, Deputy Lombardi, having observed the disturbance, entered the dayroom to assist Maisch and Yantiss.

         13. As a result of Plaintiff's refusal to comply, Maisch and Lombardi grabbed Plaintiff's arms and began escorting him to the medical unit.

         14. While being escorted to MC7, Plaintiff actively resisted, including pulling his arm out of Lombardi's grasp and elbowing Lombardi.

         15. 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.

         16. Once in MC7, Plaintiff refused to sit and began throwing punches at the deputies, including striking Deputy Teresa Dillard (“Dillard”) on the arm.

         17. 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.

         19. 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 handcuffed.

         20. 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.

         21. 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.

         22. Plaintiff was placed against a wall in a corner away from the cell door and his handcuffs were removed.

         23. The 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.

         24. Maisch utilized two open-palmed shoves in an attempt to push Plaintiff toward the back of the cell.

         25. Plaintiff kept advancing on Maisch despite the verbal and physical warnings.

         26. As the cell door was shutting, Plaintiff advanced again, thrusting his left arm through the doorway.

         27. Plaintiff struck Maisch, who was at or just outside the threshold of the door, in the chest.

         28. It 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 6-7.

         29. 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.

         30. The 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 173.[2]

         31. 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.”) 77: 3-16.

         32. The 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.

         33. Maisch did not open the cell door prior to re-entering the cell.

         34. 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.

         35. The “arm bar” was a standard FBI takedown maneuver that Maisch had utilized throughout his ...

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