Duke v. Gunnison County Sheriff's Office

          Prior Opinion Announced October 3, 2019, WITHDRAWN

          OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35(e)" ON OCTOBER 3, 2019, IS NOW DESIGNATED FOR PUBLICATION

          Gunnison County District Court No. 18CV30013 Honorable J. Steven Patrick, Judge

          Levin Sitcoff PC, Bradley A. Levin, Elisabeth L. Owen, Denver, Colorado, for Plaintiffs-Appellants

          Berg Hill Greenleaf Ruscitti LLP, Josh A. Marks, David J. Goldfarb, Boulder, Colorado, for Defendants-Appellees Gunnison County Sheriff's Office, Richard Besecker, Ian Clark, and Ryan Phillips

          Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendants-Appellees Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn Rupp

          OPINION

          RICHMAN, JUDGE

         ¶ 1 Plaintiffs, Beth Ann Duke and Joseph Councell Duke, Jr., appeal an order granting motions to dismiss a claim for the wrongful death of their son, Joseph C. "Trey" Duke III, for lack of subject matter jurisdiction over defendants, Gunnison County Sheriff's Office (GCSO), Sheriff Richard Besecker, and Deputies Ian Clark, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, Brandyn Rupp, and Ryan Phillips. We affirm in part and reverse in part.

         I. Background

         ¶ 2 Although the district court did not hold a hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), the following facts, taken in part from the record in a related federal case, as relevant here, are undisputed. Trey had a long history of substance abuse, and he had been arrested and incarcerated in Gunnison multiple times for drug and alcohol related offenses. In the afternoon of June 27, 2015, when Trey was twenty-five years old, Deputy Clark found him passed out on pallets outside a motel and wearing an ankle monitor. A search and field test revealed that a material Trey was carrying in a pill bottle was heroin. Clark arrested Trey for possession of heroin, in violation of his parole, and for use of alcohol or controlled substances, in violation of a protection order. Deputy Martinez transported Trey to the Gunnison County Jail. Deputy Phillips was on duty when Trey arrived, at approximately 3:45 p.m.

         ¶ 3 Though Trey's behavior and appearance indicated that he was under the influence of controlled substances, he denied ingesting any drugs other than Clonazepam, as prescribed. He was given a drug recognition examination (DRE), and the evaluator opined that Trey was under the influence of a polydrug combination of a stimulant and a narcotic analgesic. The DRE was not definitive because it did not include a blood test.

         ¶ 4 Deputy Udell placed Trey on a sixteen-hour drug hold in the jail, where he would be checked periodically by deputies on duty. After a check, the deputy would mark the time, comments, and initials on a time check sheet (TCS).

         ¶ 5 Trey turned out his pockets and Udell conducted a partial "hands-on pat-down search" before placing Trey in a padded cell with a camera. At some point before 10:00 p.m., Deputy Hollenbeck saw on the video feed that Trey had removed something from the front of his pants, and she sent Udell to retrieve the item. Udell reported, "it's just some foil."

         ¶ 6 At about 8:05 p.m., and again at about 10:40 p.m., Trey made telephone calls to his girlfriend and his mother - plaintiff Beth Ann Duke. At approximately 10:55 p.m., he was moved to a different cell without a video camera. According to the TCS, deputies checked on Trey fifteen times during the night, between the time he was placed in the new cell and the time he was served breakfast at approximately 7:30 a.m. Plaintiffs allege that the video surveillance in the corridor outside Trey's cell does not corroborate some of the TCS entries.

         ¶ 7 Deputy Roberts served Trey's breakfast. Roberts reported that when he went to collect the tray shortly before 8:00, he saw Trey "sitting [on the cell floor] with his legs crossed hunched over eating." When Roberts asked, Trey said that he was ok.

         ¶ 8 An "inmate trustee," Brandon Morse, was cleaning the area outside Trey's cell when Deputy Phillips went to collect Trey's breakfast tray, sometime between 8:30 and 8:50. The trustee and deputy were each familiar with Trey from prior contacts. Both men saw Trey sitting cross-legged in his cell, with his head resting on the floor in front of his legs.

         ¶ 9 The accounts of Morse and Phillips diverge at this point. Morse said he had never seen anyone sit like that before, but Phillips said he had seen Trey in that position before. Morse said he saw the breakfast tray on the floor of the cell and food "splattered all over the floor," but Phillips said he was able to retrieve the breakfast tray from the cell door. (A review of the security video confirms that Phillips retrieved the tray from the cell door.) Morse said he saw Phillips "glance" at Trey. Phillips stated that he "observed [him] to be breathing, based on the rise and fall of his back." Morse reported that he told Phillips he "didn't think Trey looked so good," and he said Phillips responded, "That's what you get for doing drugs." Phillips said he didn't recall speaking with Morse, but he admitted that the video showed them having an interaction.

         ¶ 10 Approximately thirty minutes later, Deputy Rupp noticed Trey sitting in the same position reported by Deputy Phillips, with a small amount of bile coming from his mouth. He tried to wake him but found him to be unresponsive. Rupp called for emergency services and began lifesaving measures, but his efforts were to no avail. An emergency medical services team declared Trey dead shortly thereafter.

         ¶ 11 A final autopsy reported a "disrupted open plastic baggy," ethanol, opiates, and high levels of fentanyl in Trey's stomach; naloxone, clonazepam, oxycodone, fentanyl, cyclobenzaprine, and norfentanyl presence in his blood; and opiates, cocaine, benzodiazepines, and oxycodone presence in his urine. The examiner attributed the cause of death to a polydrug overdose, with fentanyl as the major component.

         ¶ 12 Plaintiffs filed a federal suit, claiming (1) a violation of Trey's constitutional rights for deliberate indifference to a serious medical threat, under 42 U.S.C. § 1983 (2018); and (2) wrongful death, under section 13-21-202, C.R.S. 2019. The federal court granted summary judgment in favor of defendants on the federal claim, concluding that no clearly established constitutional right had been violated, and the GCSO had not been deliberately indifferent to injuries that could result from failure to train its staff on signs of an overdose. The court declined to exercise supplemental jurisdiction over the state law claim.

         ¶ 13 Plaintiffs refiled the state claim in district court. They argued that defendants breached a duty to prevent Trey's death when each defendant failed to obtain professional medical treatment before or during his confinement and that Deputy Udell and the GCSO failed to properly search Trey. They also argued that sovereign immunity is waived pursuant to sections 24-10-105(1) and -106(1)(b), C.R.S. 2019.

         ¶ 14 Defendants moved to dismiss, in two separate motions, arguing that they were immune from the claim because it sounds in tort and does not fall within any waiver of immunity under the Colorado Governmental Immunity Act (CGIA). Specifically, the GCSO argued that the waiver of immunity for operation of a jail does not apply because Trey was incarcerated pursuant to a conviction, see § 24-10-106(1.5)(a), and the Sheriff and individual deputies argued that the waiver of immunity does not apply because their conduct was not willful and wanton, see § 24-10-118(2), C.R.S. 2019. Defendants Clark and Phillips specifically argued that they could not have consciously disregarded the danger of an overdose because they did not know that Trey had ingested fentanyl.

         ¶ 15 Plaintiffs argued that governmental immunity was waived because (1) they, not Trey, were the claimants for the lawsuit, and they were not incarcerated; and (2) the individual defendants willfully and wantonly failed to provide Trey with needed medical attention, failed to thoroughly search his person, and fabricated records.

         ¶ 16 The district court granted the motions to dismiss, concluding that it lacked subject matter jurisdiction to hear the case. The court relied on the evidence from discovery in the federal case and did not hold an evidentiary hearing. First, the court found that the GCSO is immune from liability because Trey was undisputedly a convicted inmate who was incarcerated for a crime at the time of his death, the GCSO is immune from tort claims by convicted inmates, and wrongful death claims are wholly derivative of and dependent upon the claims that the decedent would have had. Second, relying on an assumption that Trey had swallowed a baggie containing a fentanyl patch, and defining "known risk" as the specific knowledge that Trey had ...