Leyba v. Strom

          ORDER

          Kathleen M Tafoya United States Magistrate Judge.

         This case comes before the court on the following motions:

         1. “Motion for Summary Judgment by Defendant Ronald Armstrong” (Doc. No. 56 [Armstrong Mot.], filed October 30, 2018), to which Plaintiff filed a response (Doc. No. 71 [Resp. Armstrong Mot.], filed January 12, 2019) and Defendant Armstrong filed a reply (Doc. No. 77 [Armstrong Reply]); and

         2. “Motion for Summary Judgment by Defendant Daniel Strom” (Doc. No. 65 [Strom Mot.], filed November 20, 2018), to which Plaintiff filed a response (Doc. No. 72 [Resp. Strom Mot.], filed January 12, 2019). Defendant Strom did not file reply.

         STATEMENT OF THE CASE

         Plaintiff Daniel Leyba alleges two Eighth Amendment claims under 42 U.S.C. § 1983. (Doc. No. 1 [Compl..) Plaintiff's First Claim for Relief is a claim for “Excessive Force, Cruel & Unusual Punishment” against Correctional Officer Defendant Daniel Strom only, based on Plaintiff's allegation that on January 27, 2015, while he was an inmate at the Buena Vista Correctional Complex (“BVCC”) of the Colorado Department of Corrections (“CDOC”), he was assaulted by Defendant Strom. (Id. at 13-15.) Plaintiff's Second Claim for Relief is a claim for “Failure to Train, Failure to Supervise, Failure to Investigate, Policies/Customs/Practices Causing Violation” against Defendant Armstrong as Defendant Strom's supervisor. (Id. at 16-20.)^[1]

         UNDISPUTED FACTS

         On January 27, 2015, in the inmate medication line at Buena Vista Correctional Complex (“BVCC”), where Plaintiff is incarcerated within the Colorado Department of Corrections (“CDOC”), Plaintiff was hit by Defendant Strom at the top of the right kneecap area. (See Armstrong Mot., Ex. B (Leyba Dep.) at 16:17-18:3, 11:16-12:1; and Ex. E (videos of incident and the medication line).) Previously, on January 5, 2015, Plaintiff was injured while playing basketball, and was diagnosed on January 16, 2015, with a meniscus tear, which caused pain and made it difficult to walk. (Ex. B at 9:11-11:10, 113:17-114:19.)

         During the January 27, 2015 incident, Defendant Strom's hit caused Plaintiff to stumble backwards, but Plaintiff did not fall down, and he was able to walk or “hobble off.” (Ex. E; Ex. B, at 22:2-8.) Plaintiff testified that Defendant Strom's hit caused pain at ¶ 6 or 7 level on a ten-point scale, although Investigator William Flint from the CDOC Inspector General's Office reported that Plaintiff said in February 2015 his pain was a 4 on the ten-point scale. (Ex. B at 20:11-25, 64:25-65:10; Ex. M (Inspector General Report), at Bates No. 1567.) Plaintiff testified that Defendant Strom's hit left a bruise on the top of the knee cap the size of a “knuckle” that lasted for one and one-half weeks. (Ex. B at 18:1-9, 21:1-16.)

         After he had been hit by Defendant Strom, Plaintiff did not speak to the nurse who was present at the medication line about being hit and needing treatment. (Id. at 22:25-23:2.) He did not request medical service via kite until he was put into a segregation cell the next day. (Id. at 41:7-25, 77:3-14.) Plaintiff testified he had trouble walking^[2] after being hit, but walked to his living unit and upstairs to his cell on the second tier. (Id. at 23:10-21.) Plaintiff walked down the stairs that evening to participate in the canteen, walked back up the stairs, and walked back down the stairs the next morning so he could work in the kitchen. (Id. at 28:9-29:10, 40:18- 41:4.)

         Defendant Strom had been employed since about May 2013 as a Correctional Officer I working in the East Unit at BVCC, under supervision of two Sergeants and Defendant Lt. Armstrong. (Ex. D (Strom Dep.), at 10:4-5, 13:1-6; Ex. A (Armstrong Decl., ¶¶ 2-4.) Alison Swegart was a Correctional Officer I at BVCC from January 2012 until June 2015. (Ex. C (Swegart Dep.), at 5:13-6:20.) She worked with Defendant Strom and the other supervisors, including Defendant Armstrong, on the swing shift. (Id. at 8:24-10:12, 11:13-12:17.)

         Officer Swegart was supervising the medication line with Defendant Strom when she saw him strike Plaintiff in his right leg, “kind of where his knee was.” (Id. at 51:24-52:8.) She testified that Plaintiff's reaction was his leg buckled “a little bit” but he did not fall down, and he asked Officer Swegart if she saw the punch; she could not remember whether Plaintiff appeared to be in pain or cried out. (Id. at 52:22-53:19, 84:9-15.) Officer Swegart testified the “next” thing that happened was that she left the medication line area and went upstairs to Defendant Armstrong and “made him pull up the cameras” so he could see “what had just happened, ” so she was not able to see Plaintiff walk out of the room. (Id. at 53:20-54:14, 59:1-7, 66:22-67:14, 84:16-85:6.) When Officer Swegart reported to Armstrong, he was eager to see the video. (Id. at 54:20-55:20.)

         Defendant Armstrong left BVCC just after 7:00 p.m. on January 27, 2015, and began his medical leave for open heart surgery in February. He did not work for BVCC again until his leave ended on March 23, 2015. He never saw or spoke to Defendant Strom or Plaintiff again. (Ex. A, ¶ 8; Exs. K and L (Armstrong time and medical records).) Plaintiff was moved to a segregation cell at about 11:15 a.m. on January 28, 2015, and walked downstairs and 300 feet to get there. (Ex. B at 43:11-44:17.)

         Plaintiff was moved to Cellhouse 5 at the Colorado Territorial Correctional Facility (“CTCF”) on January 30, 2015, and to Arkansas Valley Correctional Facility (“AVCF”) on March 2, 2015. (Id. at 52:5-24, 37:2-4.) Plaintiff testified that he filled out kites requesting treatment for an injury from Defendant Strom at BVCC on January 28, 2015, and at CTCF in February 2015. (Id. at 41:5-15, 52:25-53:13.) CDOC medical records indicate that Plaintiff failed to appear for a medical appointment at CTCF on February 19, 2015 (Ex. N (Select Medical Records), at Bates No. 217), did not inform the AVCF intake nurse about the alleged injury by Defendant Strom (but did tell her about the basketball injury) (Ex. B at 123:4-124:10; Ex. N at Bates No. 230), never told AVCF medical staff that he had an injury from Defendant Strom (Ex. B, at 126:10-13), and attended medical appointments in March through May 2015 at AVCF for other problems but did not raise the alleged injury by Defendant Strom. (Id. at 124:25-129:10; Ex. N at Bates Nos. 239, 253, 251, and 264.)

         STANDARD OF REVIEW

         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty ...