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Roe v. Minguela

United States District Court, D. Colorado

August 30, 2018

JANE ROE #1, and JANE ROE #2,, Plaintiffs,
v.
CARLOS MINGUELA, MIKE ENSMINGER, JASON MIKESELL, ELIZABETH ROBINSON, TYLER TURNER, DAVID SLOAN, PATRICK BAST, STEVE DAVIDSON, JACLYN GAFFNEY, and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF TELLER, COLORADO Defendants.

          OPINION AND ORDER GRANTING IN PART MOTIONS TO DISMISS, DENYING MOTION TO CONSOLIDATE, AND GRANTING MOTION FOR APPOINTMENT OF COUNSEL

          Marcia S. Krieger Chief Judge

         THIS MATTER comes before the Court on Defendant Steve Davidson's Motion to Dismiss the Second Amended Complaint (#72), Ms. Roe's[1] Response (#86), and Mr. Davidson's Reply (#94); Defendant Tyler Turner's Motion to Dismiss the Second Amended Complaint (#73), Ms. Roe's Response (#87), and Mr. Turner's Reply and Amended Reply (#93, 95); the Board of County Commissioners of the County of Teller, Colorado's (“the Board”) Motion to Dismiss the Second Amended Complaint[2] (#75), Ms. Roe's Response (#84), and the Board's Reply (#91); Elizabeth Robinson, David Sloan, Patrick Bast, and Jaclyn Gaffney's (collectively, “the co-worker deputies”) and Mike Ensminger, Jason Mikesell's Motion to Dismiss the Second Amended Complaint (#76), Ms. Roe's Response (#85), and the co-worker deputies' and Mr. Ensminger and Miskell's Reply (#92); the Plaintiffs' Motion to File under Seal and Request to Proceed Using Pseudonyms (#2), the Board and Mr. Ensminger's Response (#12), and the Plaintiffs' Reply (#13); Mr. Minguela's Motion to Appoint Counsel (# 97), to which no response was filed; and the Defendants' Motion to Consolidate (# 98) this action with Roe v. Minguela et al., D.C. Colo. Civ. No. 17-cv-2901-WYD, the Plaintiffs' response (# 100), and the Defendants' reply (# 102).

         FACTUAL ALLEGATIONS

         The Court provides a brief summary of the Second Amended Complaint's (# 69) allegations here and elaborates as necessary in its analysis.

         In 2015, Plaintiffs Jane Roe #1 and Jane Roe #2 were incarcerated in the Teller County Detention Center (“the Jail”). They contend that Defendants Carlos Minguella, Tyler Turner, and Steve Davidson - all Sheriff's Deputies employed at the Jail - regularly engaged in offensive conduct directed at female inmates. Among other things, the Roes allege that these Deputies would enter female cells unannounced and observe or patrol shower areas and bathrooms with the intention of observing the female inmates in states of undress, made “lascivious comments”[3]about the female inmates, asked female inmates to “dance provocatively, ” and attempted to cultivate sexual relationships with female inmates. The Roes allege that the co-worker deputies were aware of Mr. Minguela, Mr. Turner, and Mr. Davidson's behavior, yet failed to report it to supervisors.

         Ms. Roe contends that, after complaining about the comfort of the beds at the Jail, she was reassigned to a pod with only a few other residents, making her a target for Mr. Minguela's advances. On December 16, 2015, Mr. Minguela entered the shower area and leered at her while she attempted to cover herself with a towel. Shortly thereafter, Mr. Minguela entered Ms. Roe's room and “compelled [her] to perform a sex act on him.” She alleges that Mr. Minguela then boasted about the encounter to Mr. Turner and other deputies. The Court understands Ms. Roe to allege that none of the Defendants reported Mr. Minguela's boasting to Jail authorities. (Ms. Roe #2 alleges that, on one occasion, Mr. Minguela groped her, but the Second Amended Complaint does not indicate whether this event occurred before or after the events with Ms. Roe #1.)

         Based on these allegations, Ms. Roe asserts four claims for relief, all pursuant to 42 U.S.C. § 1983: (i) a broad claim, invoking the Equal Protection clause, the Due Process clause, the 8th Amendment's protection against Cruel and Unusual Punishment, and an unspecified constitutional right to “bodily integrity, ” against Mr. Minguela for “engag[ing] in a persistent pattern of sexual harassment, sexual assault, and sexual misconduct against [her]” and against Mr. Turner and the co-worker deputies for “knowingly participat[ing] in such conduct and/or assist[ing]” Mr. Minguela by moving Ms. Roe to a less-populated pod, ignoring Mr. Minguela's harassing comments and actions, and allowing Mr. Minguela opportunities to have isolated contact with inmates knowing the likelihood that he would commit sexual assault; (ii) a claim against all Defendants for “failure to investigate and report, ” invoking an unspecified Constitutional right, in that Mr. Minguela “engaged in a continuing, widespread, and persistent pattern of misconduct” and that the remaining Defendants had notice of Mr. Minguela's conduct and were “deliberate[ly] indifferent” to it or gave “tacit authorization” to such conduct; (iii) a claim that all Defendants, with deliberate indifference, failed to protect Ms. Roe from a risk of sexual assault, presumably in violation of the 8th Amendment; and (iv) a Monell-type claim that Defendants Ensminger and Mikesell (the past and current Sheriffs of Teller County) and the Board are liable for failing to adequately train and supervise the Jail's staff.[4]

         The co-worker deputies, Mr. Turner, and Sheriff Mikesell have moved to dismiss the claims against them in their individual capacities under Federal Rule of Civil Procedure 12(b)(6), asserting that they are entitled to qualified immunity. Sheriff Ensminger, Sheriff Mikesell, and the Board have moved to dismiss the claims against them under Rule 12(b)(6) on grounds that the Second Amended Complaint's allegations are insufficient to state claims against them in their official capacities

         ANALYSIS

         A. Standard of Review

         1. Generally

         In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pleaded allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the Complaint, any documents attached thereto, and any external documents that are referenced in the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

         A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a claim that is “plausible” or whether the claim being asserted is merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the level of “plausibility” varies from context to context, but generally, allegations that are “so general that they encompass a wide swath of conduct, much of it innocent, ” will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         2. Qualified Immunity

         Under the doctrine of qualified immunity individual government actors are protected from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 609 (1999); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts a qualified immunity defense in a motion to dismiss, the Court determines (1) whether a complaint's allegations are sufficient to show that the defendant violated a constitutional or statutory right and (2) whether the constitutional or statutory right was clearly established when the alleged violation occurred. See Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). The Court may undertake these two inquiries in whichever order it deems fit. Pearson v. Callahan, 555 U.S. 223, 232 (2009). For all practical purposes, the first inquiry is indistinguishable from the inquiry that the Court would take in assessing a garden-variety challenge under Federal Rule of Civil Procedure 12(b)(6) to the sufficiency of the pleadings. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The “clearly established” inquiry for qualified immunity examines whether the contours of the constitutional right were so well-settled, in the particular circumstances presented, that “every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 132 S.Ct. 2088, 2093 (U.S. 2012).

         B. Defendants' motions

         1. Eighth Amendment claims

         The co-worker deputies, Mr. Turner, and Sheriff Mikesell argue that they are entitled to qualified immunity as to Ms. Roe's failure to protect claims. They argue that the Second Amended Complaint's allegations do not sufficiently allege a constitutional violation, and if they do, any such violation is not clearly established.

         (a) Against the co-worker deputies

         The Eighth Amendment protects convicted prisoners from cruel and unusual punishment. This includes the right to be free from sexual assaults, and jail and prison officials must act reasonably to protect them from such assaults. See Farmer v. Brennan, 511 U.S. 825, 882-83 (1994); Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008) (citing Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.1993)). However, the fact that an inmate has been sexually assaulted by a third person does not necessarily give rise to liability for a supervising official. See Hovater, 1 F.3d at 1066. A prison official is liable for an assault committed by a third person only where two requirements are met: (i) the inmate shows that she was incarcerated under conditions “posing a substantial risk of serious harm”; and (ii) the inmate shows that the official being sued acted in response to that risk with a “sufficiently culpable state of mind”-namely, with “deliberate indifference to inmate health and safety.” Farmer, 511 U.S. at 834. In this context, “deliberate indifference” means that the official both subjectively knew of the risk posed to the inmate and that the official nevertheless elected to ignore that risk. Id. at 837. The official's knowledge of the risk may be shown by alleging that the third party who committed the assault had previously engaged in a pattern of unconstitutional behavior and that the official was aware of such behavior. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

         Turning first to the claims against the co-worker deputies, the Court need not determine whether Ms. Roe's allegations against them suffice to state a claim for violation of the Eighth Amendment; instead, the Court turns first to the question of whether the contours of any such claim are “clearly established.” The burden is on Ms. Roe to point to Supreme Court or Tenth Circuit precedent (or the clear weight of other circuit courts) that recognizes that the circumstances presented here would constitute a constitutional violation. Schwartz v. Booker, 702 F.3d 573, 587-88 (10th Cir. 2012); see also Thomas v. Durstanti, 607 F.3d 655, 669 (10th Cir.2010). She need not adduce a case with identical facts, but must show that “a precedent involves ‘materially similar conduct' or applies ‘with obvious clarity' to the conduct at issue.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (quoting Estate of Reat v. Rodriguez, 824 F.3d 960, 964-65 (10th Cir. 2016)). For example, it is not sufficient to ask whether it is “clearly established” that the Fourth Amendment prohibits the use of excessive force in effecting an arrest; rather, the court examines whether that constitutional principle has previously been found to prohibit particular behavior such as “shoot[ing] a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Brosseau v. Haugen 543 U.S. 194, 198-200 (2004).

         For purposes of assessing whether Ms. Roe can show that her Eighth Amendment claim against the co-worker deputies is “clearly established, ” the Court pauses here to identify the particular distinguishing characteristics of such her claim. First, the crux of the claim is that the co-worker deputies were aware of Mr. Minguela engaging in sexually-inappropriate behavior towards female inmates, but that they failed to report that behavior to Mr. Mingeula's supervisors or other Jail officials. Ms. Roe has not alleged that the co-worker deputies themselves had the power to discipline Mr. Minguela, only that they should have reported his conduct to their mutual superiors in the hopes that the superiors would act to curtail it. Moreover, it is important to recognize that Ms. Roe seeks to hold the co-worker deputies responsible for Mr. Minguela's sexual assault against her, based solely upon knowledge that Mr. Minguela engaged in non-physical, inappropriate, conduct of a sexual nature - e.g. attempting to observe female inmates in states of undress, asking female inmates to dance provocatively, etc. This distinction is significant because it suggests that the co-worker deputies should have inferred that Mr. Minguela's non-physical sexual conduct towards female inmates gave reason to believe that he was likely to engage in physical conduct by assaulting Ms. Roe.

         Ms. Roe cites to five cases: Ortiz v. Jordan, 562 U.S. 180 (2011); Keith v. Koerner, 707 F.3d 1185 (10th Cir. 10th Cir. 2013); Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008); Gonzales v. Martinez, 403 F.3d 1179, 1187 (10th Cir. 2008), and Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993).[5] None of these cases are factually similar to this matter. The Court examines each in turn.

         In Ortiz, while incarcerated, Ortiz was sexually assaulted by a guard on two consecutive nights. After the first assault, the guard told Ortiz that he would “see her tomorrow.” She reported what happened to her case manager, but the case manager did not immediately inform her superiors or file a report. The guard again sexually assaulted Ortiz. Although it shares some factual similarities to the instant case, Ortiz was decided by the Supreme Court on procedural grounds - namely, whether a party may appeal the denial of summary judgment after a full trial has been had on the merits. The Court was not asked to opine as to whether Ortiz had stated a colorable Eighth Amendment claim against Jordan, and it did not render any opinion on the question; rather, it remanded the qualified immunity question back to the Circuit Court to consider.[6] Ortiz is also distinct from the instant case on one of the important points noted above: the case manager was informed by the inmate that the guard had physically assaulted Ortiz on the first night. In contrast, here, Ms. Roe reported no incident to anyone and there is no allegation that the co-worker deputies were aware that Mr. Minguela had engaged in inappropriate physical contact with any inmate before Ms. Roe. Instead, the Second Amended Complaint alleges that the co-worker defendants should have anticipated a future physical sexual assault based on Mr. Minguela's inappropriate, but non-physical and non-assaultive, behavior directed at female inmates. Thus, the Court cannot say that Ortiz clearly establishes the Eighth Amendment claim Ms. Roe asserts against the co-worker deputies.

         In Keith, Keith was participating in vocational training while she was incarcerated. In 2007, her vocational training instructor had sexual relations with and impregnated her. Keith filed suit against the prison warden, alleging that he promulgated or was responsible for a policy that led to the instructor's assault. The trial court rejected the warden's invocation of qualified immunity, and on appeal, the 10th Circuit affirmed. It found that Keith had alleged that there were 54 incidents of sexual misconduct and 33 incidents of undue familiarity at the prison between 2005 and 2009, that discipline in response to these incidents was inconsistent, that structural policy problems (the failure to address known problems with the vocational training program and the failure to effectively use cameras to monitor staff and inmate) contributed to the unlawful sexual conduct at issue, and that there were no training programs tailored to the prison's all-female population. 707 F.3d at 1188-89.

         Keith is distinguishable from the instant case in two important respects. First, the claim in Keith was against a prison warden and based on his own failure to implement policies to protect inmates against sexual assaults. Such claims are governed by a different analysis than claims like those asserted by Ms. Roe against the co-worker deputies, who are accused simply of failing to report their knowledge of Mr. Minguela's activities to supervisors. In other words, a failure to report is not the same as a failure to supervise. Second, Keith is distinguishable insofar as it appears that Koerner apparently had personal knowledge of actual sexual assaults occurring at the prison; here, Ms. Roe argues that the co-worker defendants should have anticipated a sexual assault by Mr. Minguela because he otherwise behaved ...


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