United States District Court, D. Colorado
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 ...