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.
A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado
TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
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. 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.
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).
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 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.
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.
Mistreatment of Detainees
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)).
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).
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.")
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).
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.
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.
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 ...