United States District Court, D. Colorado
TERRANCE D. WILSON, Plaintiff,
v.
SHERWYN PHILLIP, STEVEN FRANK, and JAMES FOX, Defendants.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AS TO
CERTAIN DEFENDANTS ON REMARD
Christine M. Arguello Judge
This
matter is before the Court upon the Court of Appeals for the
Tenth Circuit's Opinion (Doc. # 100) affirming in part
and reversing in part this Court's Order Granting
Defendants' Motion for Summary Judgment (Doc. # 93).
Consistent with the Court of Appeal's Opinion and after
reviewing the parties' extensive supplemental briefings,
the Court now denies Defendants' Motion for Summary
Judgment (Doc. # 80) as to Defendants Sherwyn Phillip, Steven
Frank, and James Fox.
I.
PROCEDURAL HISTORY
The
Court detailed the factual background of this case in its
Order Granting Defendants' Motion for Summary Judgment
(Doc. # 93), as did the Court of Appeals when it affirmed in
part and reversed in part that Order in Wilson v.
Falk, 877 F.3d 1204 (10th Cir. 2017), see (Doc.
# 100). This Court's previous Order is incorporated by
reference, and the factual background explained therein need
not be repeated here. The Court recounts only the facts
necessary to address the Court of Appeal's instructions
on remand. See Wilson, 877 F.3d at 1213.
Plaintiff
Terrance D. Williams was incarcerated at the Limon
Correctional Facility (“LCF”), a prison of the
Colorado Department of Corrections (“CDOC”) in
Limon, Colorado, on July 2, 2012, when he was allegedly
stabbed eleven times by a fellow prisoner. (Doc. # 38.)
Plaintiff asserts a single claim for relief under 42 U.S.C.
§ 1983 against the remaining Defendants, all employees
of CDOC at LCF: Defendant Sherwin Phillip, his case manager;
Defendant Stephen Frank, a supervisor of the pod in which
Plaintiff was housed; and Defendant James Fox, the Intake
Lieutenant and supervisor of certain residential units,
including the pod in which Plaintiff was
housed.[1] (Id. at 6-7.) Plaintiff alleges
that Defendants violated his Eighth Amendment rights
“not to be subjected to serious harm” by
disregarding the allegedly known danger that Plaintiff faced
a “substantial risk of serious harm” from other
inmates-members of a rival gang, the Surenos-and by
“failing to take reasonable measures to abate
it.” (Id. at 6.)
Defendants
moved for summary judgment on November 2, 2015, asserting
that they are entitled to qualified immunity because
Plaintiff cannot show that they violated his Eighth Amendment
rights. (Doc. # 80 at 12.) Defendants also argued that
summary judgment should be granted in their favor because
Plaintiff cannot prove that any Defendant “personally
participated” in the alleged constitutional violations,
an “essential allegation in a [Section] 1983
claim.” (Id. at 19-20) (citing, e.g.,
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976)). Plaintiff filed his Response in opposition to
Defendants' Motion for Summary Judgment on November 23,
2015 (Doc. # 82), to which Defendants replied on December 7,
2015 (Doc. # 85).
This
Court concluded that each Defendant is entitled to qualified
immunity and therefore granted Defendants' Motion for
Summary Judgment on June 29, 2016. (Doc. # 93.) After
identifying the applicable legal principles, including what a
plaintiff must allege where a defendant raises qualified
immunity as a defense and under what circumstances a prison
official may be found to have violated the Eighth Amendment,
the Court analyzed Plaintiff's allegations as to each
Defendant. (Id. at 3-11.) As to Defendant Phillip,
the Court determined that he was entitled to qualified
immunity because the evidence, viewed in the light most
favorable to Plaintiff, does not demonstrate that Defendant
Phillip violated Plaintiff's Eighth Amendment rights.
(Id. at 9.) The Court stated that Plaintiff has not
shown that Defendant Phillip was aware of facts “from
which the inference could be drawn that a substantial risk of
serious harm existed and that Defendant Phillip did, in fact,
draw that conclusion.” (Id.) The Court
therefore granted summary judgment to Defendant Phillip.
(Id.) As to Defendants Frank and Fox, the Court
concluded that they too were entitled to qualified immunity:
Regardless of whether Plaintiff did in fact have a
conversation with Defendants Frank and Fox as [another
inmate] alleges, the Court finds that, even if the
conversation took place as alleged, this fact alone is
insufficient to overcome Defendants' summary judgment
motion. Plaintiff's alleged vague and non-specific
reference to “some guys . . . making threats towards
his life” is insufficient to support a finding that
Defendants Frank and Fox were aware of facts from which the
inference could be drawn that a substantial risk of serious
harm existed and that Defendants Frank and Fox did, in fact,
draw that conclusion. The Court finds that Defendants Frank
and Fox are entitled to qualified immunity and summary
judgment on Plaintiff's Eighth Amendment claim because
Plaintiff has failed to identify evidence in the record
sufficient to support a finding that Defendants Frank and Fox
knew of, but ignored, an excessive risk to Plaintiff's
safety.
(Id. at 11.) Accordingly, the Court granted
Defendants' Motion for Summary Judgment. (Id.)
Upon
Plaintiff's appeal, see (Doc. # 95), the Court
of Appeals for the Tenth Circuit reversed this Court's
granting of summary judgment as to Defendants Phillip, Frank,
and Fox on December 17, 2017. Wilson, 877 F.3d at
1206. First, as to Defendant Phillip, the Court of Appeals
summarized Plaintiff's testimony that he had met with
Defendant Phillip, his case manager, at least twice to
discuss threats from the Surenos and to request transfer to
another facility, in addition to Plaintiff's testimony
that he told Defendant Phillip of attacks by Surenos
affiliates by submitting kites to him. Id. at
1212-13. The Court of Appeals held that viewing that evidence
in the light most favorable to Plaintiff, “there exists
a genuine dispute of material fact as to whether Mr. Phillip
was subjectively aware of the risk to [Plaintiff's]
health and safety and whether he recklessly disregarded that
risk.” Id. at 1213. The Court of Appeals also
observed that “unlike Mr. Phillip's co-defendants,
” Defendants Falk, Frank, and Fox, “there is no
evidence in the record through which [it] could conclude that
Mr. Phillip did anything at all reasonable to abate the risk
of which he was informed.” Id. Accordingly,
the Court of Appeals held that summary judgment in favor
Defendant Phillip was “improper” and reversed
this Court's Order to the extent it held otherwise.
Id.
Second,
as to Defendants Frank and Fox, the Court of Appeals reviewed
Plaintiff's allegations that he spoke with Defendants
Frank and Fox and “told them the whole
problem”-that “[t]he Surenos were after
[him]”-and that Defendants Frank and Fox “cuffed
and moved” an inmate affiliated with the Surenos,
Christopher Green, upstairs from Plaintiff. Id. at
1211. The Court of Appeals reversed this Court's grant of
summary judgment in favor of Defendants Frank and Fox on the
grounds that “[v]iewing that evidence in the light most
favorable to [Plaintiff], a reasonable jury could find that
Mr. Fox and Mr. Frank were subjectively aware of a
substantial risk of serious harm to [Plaintiff.]”
Id. Relevant here, the Court of Appeals also
observed:
On appeal, the Colorado Attorney General hints at an
alternative basis for affirming, arguing that Mr. Fox
and Mr. Frank took proactive steps to separate Mr.
Wilson and Mr. Green, and thus they were not
deliberately indifferent to his plight. Perhaps it
is possible Mr. Fox and Mr. Frank acted reasonably, but the
district court reached no conclusion on that score, and we
decline to affirm on an alternative ground neither passed on
below nor cultivated on appeal. . . . Instead, we express no
opinion on this issue and leave it for the district
court's consideration on remand.
Id. at 1211-12 (emphasis added) (internal citation
omitted).
In
light of the Court of Appeals's opinion, this Court
revisited the parties' summary judgment filings.
See (Doc. ## 80, 82, 85.) Noting that Defendants
only briefly discussed that Defendants Frank and Fox acted
reasonably by proactively separating Plaintiff from Mr.
Green, the Court requested supplemental briefing about steps
Defendants Frank and Fox took to protect Plaintiff, if any.
(Doc. # 103.) On February 14, 2018, Defendants submitted
their Supplemental Brief Regarding Defendants Frank and Fox.
(Doc. # 104.) Plaintiff responded in support of the Court of
Appeals's opinion that Defendants Frank and Fox are not
entitled to qualified immunity on March 1, 2018, (Doc. #
105), to which Defendants replied on March 15, 2018 (Doc. #
106). Upon Plaintiff's request (Doc. # 107), the Court
granted Plaintiff leave to depose Defendants Frank and Fox on
five questions related to why they separated Plaintiff from
Mr. Green. (Doc. # 115.) After deposing Defendants Frank and
Fox, Plaintiff filed a Supplemental Memorandum in Opposition
to the Renewed Motion for Summary Judgment on July 25, 2018
(Doc. # 118), to which Defendants responded on August 15,
2018 (Doc. # 121).
Consistent
with the Court of Appeals's opinion, the Court now
reconsiders Defendants' Motion for Summary Judgment.
(Doc. # 80.)
II.
APPLICABLE ...