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Colbruno v. Kessler

United States Court of Appeals, Tenth Circuit

July 2, 2019

CHRISTOPHER COLBRUNO, Plaintiff - Appellee,
WILLIAM KESSLER, in his official and individual capacity; SAMANTHA KIELAR, in her official and individual capacity; TINA KLOSIEWSKI, in her official and individual capacity; RYAN SEWITSKY, in his individual and official capacity; THOMAS TINDALL, in his individual and official capacity; STEPHEN PETIT, in his individual and official capacity, Defendants - Appellants, and CITY AND COUNTY OF DENVER, a municipality; ELIAS DIGGINS, Defendants.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01072-WYD-MJW)

          Michele A. Horn, Assistant City Attorney, Denver, Colorado (Melanie B. Lewis, Assistant City Attorney, Denver, Colorado on the briefs) for Defendants-Appellants.

          David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.


         Plaintiff Christopher Colbruno was in jail awaiting trial when he needed to be taken to the hospital for an urgent medical condition. Six deputies in the Denver Sheriff's Department (Defendants) walked him through the public areas of the hospital completely unclothed except for an orange pair of mittens. Complaining that the deputies violated his constitutional rights, he sued them, among others, under 42 U.S.C. § 1983.[1] Defendants moved to dismiss for failure to state a claim on the ground that they were entitled to qualified immunity. The district court disagreed, and Defendants appealed to this court. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Plaintiff's complaint alleges facts supporting the inference that the public exposure of his naked body was wholly unjustifiable and therefore suffices to state a claim under the Fourteenth Amendment. Whether the evidence supports those allegations is a question for further proceedings.

         I. BACKGROUND

         Although the district court characterized its decision (which addressed a variety of issues in addition to qualified immunity) as resolving motions for summary judgment, it is apparent from the record that the court resolved Defendants' qualified-immunity motion solely on the basis of allegations made in Plaintiff's complaint. We therefore consider this to be an appeal from the denial of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). On review we accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Doe v. Woodard, 912 F.3d 1278, 1285 (10th Cir. 2019).

         Plaintiff's complaint alleges the following: On May 4, 2015, he was a pretrial detainee in the custody of the Denver Sheriff's Department at the Van Cise-Simonet Detention Center. During an apparent psychotic episode, he swallowed metal components of an emergency call box in his jail cell. After jail officials learned of this at about 10:00 p.m., they contacted a physician at the Denver Health Medical Center and were told that he should be brought to the hospital for x rays and treatment within one hour. At 12:20 a.m., three of the Defendants removed him from his cell and placed him in a van to go to the hospital. On the way there, Plaintiff urinated and defecated on the smock he was wearing. The three transporting Defendants were met at the hospital by the other three Defendants. Defendants removed the smock and walked Plaintiff into the hospital without any clothes on except a pair of orange mittens, passing through the ambulance bay, entrance, atrium, and hallways before chaining him to a bed. Hospital staff witnessed this conduct and reported it to the hospital risk manager because they found it disturbing.


         Defendants[2] have asserted the defense of qualified immunity, which "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1026 (10th Cir. 2015) (internal quotation marks omitted). "Because qualified immunity establishes immunity from suit rather than a mere defense to liability, a district court's denial of a claim of qualified immunity is immediately appealable under 28 U.S.C. § 1291." Id. (internal quotation marks and citation omitted). But our jurisdiction in such an interlocutory appeal is limited to the legal question of whether the alleged facts state a violation of clearly established law. See id.

         "In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that [Plaintiff] has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of [Defendants'] alleged misconduct." Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted). The law was "clearly established" if it "was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation marks omitted); see id. at 590 ("The rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted." (internal quotation marks omitted)). Generally, "[t]he plaintiff must show there is a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Woodard, 912 F.3d at 1289 (internal quotation marks omitted). "Ultimately, we consider whether our precedents render the [il]legality of the conduct undebatable." Lowe v. Raemisch, 864 F.3d 1205, 1211 (10th Cir. 2017). Our review is de novo. See Keith, 707 F.3d at 1187.

         A. Mistreatment of Detainees

         Plaintiff asserts that Defendants' treatment of him violated the Fourth Amendment's protection against unreasonable seizures and the Fourteenth Amendment's Due Process Clause. To resolve what constitutional provision governs this case, we need to review the proper scope of the potentially applicable provisions. First, however, we should explain our nomenclature, because almost any federal constitutional claim against state officials is, strictly speaking, a claim under the Fourteenth Amendment. Although the provisions of the Bill of Rights are directed only to the federal government, see Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833), the Supreme Court over the years has incorporated most of those provisions into the Fourteenth Amendment, see Timbs v. Indiana, 139 S.Ct. 682, 687 (2019) ("With only a handful of exceptions, this Court has held that the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States." (internal quotation marks omitted)). Thus, even when dealing with state officials, it is common to say that a claim is based, say, on the First Amendment, Fourth Amendment, Sixth Amendment, or Eighth Amendment. We follow that practice here to add clarity to our discussion. When we speak of a Fourteenth Amendment claim in this opinion, we will be referring to a claim that is not based on incorporating the Bill of Rights into that amendment, but rather is based on the Due Process Clause in itself. We note, however, that courts analyze such claims against state officials essentially the same way as they analyze claims against federal officials under the Due Process Clause of the Fifth Amendment. See Ward v. Anderson, 494 F.3d 929, 932 n.3 (10th Cir. 2007) ("The Due Process Clause of the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Due Process Clause of the Fifth Amendment upon their federal counterparts." (brackets and internal quotation marks omitted)).

         The essence of Plaintiff's claim is that he was mistreated while in state custody. Alleged mistreatment of this type may be challenged under the Fourth Amendment, Eighth Amendment, or Fourteenth Amendment. The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. Even one who has been properly searched or seized by police authorities (say, arrested on probable cause), can claim that the search or seizure was unreasonable because of unreasonable treatment by officers in effecting the search or seizure. Typically, the mistreatment has been the use of excessive force; but "the interests protected by the Fourth Amendment are not confined to the right to be secure against physical harm; they include liberty, property and privacy interests-a person's sense of security and individual dignity." Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001) (internal quotation marks omitted) (abusive conduct of SWAT team while holding residents at gunpoint during execution of search and arrest warrants).

         The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. It applies to those who have been convicted of crime, so they usually cannot complain of confinement itself. But see Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999) (Eighth Amendment protects against sentence that is grossly disproportionate to the offense). It does, however, protect against unjustifiable conditions of confinement, such as "the unnecessary and wanton infliction of pain," Hudson v. McMillian, 503 U.S. 1, 5 (1992) (internal quotation marks omitted), or deliberate indifference to an excessive risk to a prisoner's health, see Farmer v. Brennan, 511 U.S. 825, 837 (1994). When a prisoner challenges a particular use of force by prison officials, the prisoner can establish an unnecessary and wanton infliction of pain by showing that the action was taken "maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. We have held that psychological harm, as well as physical injury, can implicate the Eighth Amendment. See Benefield v. McDowall, 241 F.3d 1267, 1272 (10th Cir. 2001); see also Hudson, 503 U.S. at 16 (Blackmun, J., concurring in the judgment) ("It is not hard to imagine inflictions of psychological harm-without corresponding physical harm-that might prove to be cruel and unusual punishment.")

         For those in pretrial confinement, such as Plaintiff, claims regarding mistreatment while in custody generally do not come within the protection of the Fourth Amendment or the Eighth Amendment. As explained in Porro v. Barnes, 624 F.3d 1322, 1325-26 (10th Cir. 2010) (Gorsuch, J.), "[T]he Fourth Amendment . . . pertains to the events leading up to and including an arrest of a citizen previously at liberty," while the Eighth Amendment is the source of protection for "prisoners already convicted of a crime who claim that their punishments involve excessive force." Thus, when a "plaintiff finds himself in the criminal justice system somewhere between the two stools of an initial seizure and post-conviction punishment[, ] we turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities" to evaluate claims of mistreatment. Id. at 1326. That is Plaintiff's situation, so we assess his claim under the Fourteenth Amendment. See Fisher v. Washington Metro. Area Transit Auth., 690 F.2d 1133, 1142 (4th Cir. 1982) (assessing under the Fourteenth Amendment a pretrial detainee's claim of unwarranted forced nudity), abrogated on other grounds by Cty. Of Riverside v. McLoughlin, 500 U.S. 44, 50 (1991).

         Although the full scope of protection provided by the Due Process Clauses to pretrial detainees may be to some extent uncertain, the Supreme Court has been categorical in one respect: "[A] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535 (1979) (emphasis added). Thus, in analyzing a condition of pretrial confinement, "[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Id. at 538. "Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it." Id. (brackets and internal quotation marks omitted). "[I]f a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees." Id. at 539.

         We applied those principles to a claim of excessive force in Blackmon v. Sutton, 734 F.3d 1237 (10th Cir. 2013) (Gorsuch, J.). An 11-year-old pretrial detainee claimed that detention-center officials had unconstitutionally punished him by repeatedly placing him in a restraint chair (and in one instance by having a guard sit on his chest) without any legitimate penological purpose. See id. at 1242-43. We held that these would be Fourteenth Amendment violations. See id. at 1240-44. We explained that a pretrial detainee can establish that official actions constitute unconstitutional punishment either by showing that "an expressed intent to punish on the part of detention facility officials exists," or "by showing that the restriction in question bears no reasonable relationship to any legitimate governmental objective." Id. at 1241.

         Bell and Blackmon are not entirely clear about whether a pretrial detainee could sustain a due-process claim for mistreatment without showing that the custodians intended their actions as punishment. Both opinions could be read as requiring an intent to punish the pretrial detainee although allowing such intent to be inferred from the absence of a legitimate purpose behind the offensive conduct. See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2477-78 (2015) (Scalia, J., dissenting) (discussing Bell). But the Supreme Court in Kingsley eliminated any ambiguity. Reviewing a claim of excessive force brought by a pretrial detainee, the Court declined to read Bell as meaning "that proof of intent (or motive) to punish is required for a pretrial detainee to prevail on a claim that his due process rights were violated." Id. at 2473. Rather, a pretrial detainee can establish a due-process violation by "providing only objective evidence that the challenged governmental action is not rationally ...

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