Wilson v. Phillip

          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 ...