Beth Ann Duke and Joseph Councell Duke, Jr., Plaintiffs-Appellants,
Gunnison County Sheriff's Office, Richard Besecker, Ian Clark, Ryan Phillips, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn Rupp, Defendants-Appellees.
Opinion Announced October 3, 2019, WITHDRAWN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
Gunnison County District Court No. 18CV30013 Honorable J.
Steven Patrick, Judge
Sitcoff PC, Bradley A. Levin, Elisabeth L. Owen, Denver,
Colorado, for Plaintiffs-Appellants
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
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.
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
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
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
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
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
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
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 ...