DECISION WITHOUT PUBLISHED OPINION
Dismissed.
Bock in the context of a Title VII or ADEA case.").
Before 2002, under the "continuing violation" theory, the Tenth Circuit recognized a limited exception to the "exhaustion rule for Title VII claims when the unexhausted claim is for discrimination like or reasonably related to the allegations of the EEOC charge." Simms v. Oklahoma ex. rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d at 1327 (internal citations and quotations omitted). The Tenth Circuit "construed the `reasonably related' exception to include most retaliatory acts subsequent to an EEOC filing." 165 F.3d at 1327 (citingSeymore v. Shawyer Sons, Inc., 111 F.3d at 799). In Martinez v. Potter, 347 F.3d 1208 (2003), however, the Tenth Circuit noted that the "Supreme Court's recent pronouncement in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), has effected fundamental changes to the doctrine allowing administratively unexhausted claims in Title VII actions." 347 F.3d at 1210. The Tenth Circuit's "decisions have unambiguously recognized Morgan as rejecting application of the `continuing violation' theory." Martinez v. Potter, 347 F.3d at 1211 (citingDavidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003)). The Tenth Circuit stated:
We agree with the government that such unexhausted claims involving discrete employment actions are no longer viable.
Morgan abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with the teaching that each discrete incident of such treatment constitutes its own unlawful employment practice for which administrative remedies must be exhausted.
347 F.3d at 1210 (internal citations and quotations omitted).
In the Court's MOO, it stated: "When an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge." MOO at 8 (Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)). This statement of law reflects the old law under the continuing-violation theory, and has been abrogated by National Railroad Passenger Corp. v. Morgan, and Martinez v. Potter. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 109 ("Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that `specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit. An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made."). In Martinez v. Potter, the Tenth Circuit stated:
The district court held that [the plaintiff's allegations] could not proceed because they were not like or reasonably related to the allegations in Mr. Martinez's EEO complaint, and Mr. Martinez had failed to exhaust administrative remedies. . . . [T]he district court relied on our holdings . . . Those cases explain that "[w]hen an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC." Although we agree with the district court that these claims were not properly before it, the Supreme Court's recent pronouncement in
National Railroad Passenger Corp. v. Morgan has effected fundamental changes to the doctrine allowing administratively unexhausted claims in Title VII actions. . . .
Morgan abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with the teaching that each discrete incident of such treatment constitutes its own "unlawful employment practice" for which administrative remedies must be exhausted.
Martinez v. Potter, 347 F.3d at 1210 (citations omitted).
Thus, under National Railroad Passenger Corp. v. Morgan, each discrete act of discrimination must be administratively exhausted. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114 (internal citations and quotations omitted). In National Railroad Passenger Corp. v. Morgan, this rule applied to bar a plaintiff from suing on claims for which no administrative remedy had been sought when those incidents complained of occurred more than 300 days before the filing of Plaintiff's EEO complaint. See Martinez v. Potter, 347 F.3d at 1210. "The rule is equally applicable, however, to discrete claims based on incidents occurring after the filing of Plaintiff's EEO complaint." Id. at 1210-11. The Tenth Circuit has stated: "Our decisions have unambiguously recognized Morgan as rejecting application of the continuing violation theory."Martinez v. Potter, 347 F.3d at 1211 (internal quotations omitted). Failing to exhaust administrative remedies does not "bar an employee from using the prior acts as background evidence in support of a timely claim." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 113.
ii. At Least One Related Act that Is the Basis of a Hostile Environment Claim Must Be Exhausted .
A different rule applies to hostile environment claims. UnderNational Railroad Passenger Corp. v. Morgan, a series of events that constitute a hostile environment claim are considered one unlawful action. See West v. Norton, 376 F. Supp. 2d 1105, 1129 (D.N.M. 2004) (Browning, J.). "Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115 (internal citations and quotations omitted). An "unlawful employment practice" that constitutes a hostile work environment thus cannot be said to occur on any particular day, but rather occurs over a series of days or years. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Thus, so long as one of the incidents included within the claim of hostile environment occurred within the 300-day time limit provided for under 42 U.S.C. § 2000e-5(e)(1), other conduct that occurred outside of the proscribed time period, but contributing to the hostile work environment, is not time barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115 (holding "that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period"); West v. Norton, 376 F. Supp. 2d at 1129. "[A] series of alleged events comprises the same hostile environment where `the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.'" Duncan v. Manager, Dep't of Safety, City Co. of Denver, 397 F.3d at 1309 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. at 120).
5. Time Requirements for Exhausting Administrative Remedies Are Not Jurisdictional .
While failure to exhaust administrative remedies is a jurisdictional bar to suit, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), the Supreme Court of the United States held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393. See DeWalt v. Meredith Corp., 288 F. App'x 484, 490 (10th Cir. 2008) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. at 393;Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174-75 (10th Cir. 1998)). The Tenth Circuit treats a plaintiff's failure to timely exhaust administrative remedies not "as a jurisdictional issue, [but] rather . . . as an affirmative defense to be raised by [defendants]." DeWalt v. Meredith Corp.,
Id. at 1263 (quoting
Johnson v. Dallas Ind. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994)). The Tenth Circuit has considered the danger creation theory in the context of a suicide.
Christiansen v. City of Tulsa, 332 F.3d 1270 (10th Cir. 2003);
Armijo, 159 F.3d at 1256.
In their Response Brief, Plaintiffs also appear to argue that Krebs was placed in enhanced danger. However, the Second Amended and Supplemental Complaint does not contain a claim by Krebs under this theory and there are no facts to indicate that Krebs was placed in danger of any harm from a non-state actor.
To establish the "shocks the conscience" element, a plaintiff must demonstrate "deliberately wrongful government decisions rather than merely negligent government conduct." Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115 (1992)). As noted in Collins, the Due Process Clause "is not a guarantee against incorrect or ill advised [government] decisions." 503 U.S. at 129. Therefore, a plaintiff asserting a substantive due process claim must establish either an intent to harm or an intent to place a person unreasonably at risk of harm, i.e., when a state actor "was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences." Uhlrig, 64 F.3d at 573-74 (citations omitted). Moreover, the plaintiff must "demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking," in other words, "a high level of outrageousness." Id. at 574.
Defendants argue that the Estate cannot prevail on this claim because it cannot show that the Defendants or any other responsible employee engaged in conduct in the treatment of Vigil that is conscience shocking. I agree. The failures described, such as housing Vigil in administrative segregation for his own safety, failing to provide an interpreter for the medical screening, and perhaps not conducting regular rounds, are at most negligent or ill-advised. Again, without any known history or indication of suicidal impulses, there is simply no evidence sufficient to show that any of the state actors were aware of a "known or obvious risk that was so great that it was highly probable that serious harm would follow" but that these officials nonetheless "proceeded in conscious and unreasonable disregard of the consequences." The facts alleged here simply do not demonstrate the "high level of outrageousness" needed to state a substantive due process claim.
The facts of Armijo, which Plaintiffs rely on, are distinguishable. In that case, school officials suspended a minor who was known to have expressed suicidal thoughts and sent him home where officials knew he would be alone and had access to firearms. 159 F.3d at 1264.
With respect to Burke, her allegations regarding her late night release and the potential harm from being unable to communicate or get herself home could fall under the state-created danger theory. Plaintiffs argue that Burke's situation is analogous to the "classic" state created danger scenario, where police officers impounded a woman's car and abandoned her in a high crime area at 2:30 a.m. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In their motions, Defendants argue again that the conscience shocking element cannot be established because there is no evidence to show that they intended to harm Burke or recognized that she was at an unreasonable risk of harm. I agree with Defendants.
In their Response Brief, Plaintiffs also appear to argue that the failures to provide adequate medical attention amounts to a state created danger. However, they cite no case law recognizing application of this theory to such facts.
There are numerous facts that distinguish Burke's situation from the facts of Wood. Burke was not abandoned in a high crime area; rather, she was released from a detention facility where there was a safe waiting area and where she was surrounded by law enforcement officers. It is clear that she suffered unnecessary difficulty because of the PADF's unwillingness to assist her in contacting her family and in their failure to give her the message that her husband was coming to pick her up. The officers offered her the use of a PDD; although it may not have been operational there is no evidence that the deputies or staff knew that it did not work or that Burke otherwise could not make use of it. Burke has not shown that the officers would have been aware of the risk that instead of waiting in the facility for public transportation to begin that Burke would leave and accept a ride from a stranger. This simply does not amount to a "known and obvious risk" that the PADF staff consciously and unreasonably disregarded. As discussed above, these facts adequately form the basis of a failure to accommodate claim under the ADA and Rehabilitation Act but do not demonstrate the level of outrageousness required to establish a substantive due process violation.
c. Claim 6: Special Relationship Responsibility to Vigil, Burke and Krebs
This claim is predicated on the second doctrine whereby a state actor may be held liable for the acts of a private third party. Armijo, 159 F.3d at 1261 ("[I]f the state restrains an individual's freedom to act to protect himself or herself through a restraint on that individual's personal liberty, the state may thereby enter into a `special relationship' during such restraint to protect that individual from violent acts inflicted by others."). This claim is asserted by the Estate, Krebs, and Burke.
With respect to Krebs and Burke, I see no evidence of a violent act or other act inflicted by a third party while in the custody of the Defendants. To the extent Burke bases her claim on her inability to get home safely after her release, that claim is analyzed above under the state-created danger theory.
The Estate's claim appears to be premised on the theory that by taking Vigil into custody, Defendants undertook responsibility to prevent Vigil from harming himself. Plaintiffs' Response Brief, ECF No. 228, 157 (citing Youngberg v. Romero, 457 U.S. 307, 324 (1982)). Plaintiffs' cited cases, however, concern only the general principle that custodial facilities must not ignore an inmate's serious medical needs. The issue of Vigil's serious medical needs has been addressed above, and the Tenth Circuit has indicated that the Eighth Amendment provides the appropriate framework in analyzing prison suicide cases. Barrie, 119 F.3d at 866 ("we note that claims based on a jail suicide are considered and treated as claims based on the failure of jail officials to provide medical care for those in their custody."). Otherwise, Plaintiffs cite case law concerning the general responsibility to provide for "reasonable safety" to custodial inmates. Plaintiffs do not, however, cite any authority to show that "safety" includes preventing an inmate's harm to himself. Plaintiffs appear to argue that by failing to provide him adequate means of communicating, the Defendants "imposed on [Vigil's] freedom to act on his own behalf." Response Brief at 158.
As discussed above, however, I disagree that Vigil had no means of communication at all; rather, his means of communication were far from optimal but adequate to indicate if he was in need or distress. Moreover, while additional effort might have made a difference in preventing the harm, there is simply no evidence to establish conduct that shocks the conscience. Accordingly, this claim fails.
d. Claim 5: Failure to Train and Supervise Resulting in Due Process Violations
Because I find no due process violations, I need not address whether the alleged failure of the individual Defendants or Denver to adequately train and supervise the deputies and staff of the detention facilities gives rise to municipal or supervisory liability.
3. Claims 7-9: State Negligence and Wrongful Death Claims
Plaintiff Ulibarri asserts a wrongful death claim against Denver on her own behalf. She and the Estate assert two negligence claims against Denver for negligence in failing to prevent Vigil's suicide and for failure to train and supervise. Denver asserts a defense of governmental immunity to a portion of these claims and otherwise asserts that the Plaintiffs cannot establish the elements of the wrongful death and state claims.
a. Governmental Immunity
The Colorado Governmental Immunity Act ("CGIA") provides governmental immunity for "all actions which lie in tort or could lie in tort" unless immunity is waived. C.R.S. § 12-10-105(a). Immunity is waived for injuries resulting from the operation of any jail by a public entity. C.R.S. § 12-10-106(1)(b). The "operation" of a facility is defined as "the act or omission of a public entity or public employee in the exercise and performance of the powers, duties, and functions vested in them by law with respect to the purposes of any public . . . jail. . . ." C.R.S. § 24-10-103(3)(a). In other words, sovereign immunity is waived only if the activity at issue relates to the facility's primary "purpose." Pack v. Arkansas Valley Corr. Facility, 894 P.2d 34, 37 (Colo. App. 1995). Therefore, governmental immunity was not waived for a visitor's claim against a correctional facility and its warden resulting from a slip and fall injury a visitor sustained in the parking lot; the "purpose" of the correctional facility, like hospitals and jails, was to house persons for continuous periods, not to maintain a parking facility. Id.; see also Flores v. Colo. Dep't of Corr., 3 P.3d 464, 466 (Colo. App. 1999) (distinguishing Pack in the case of a slip and fall within the visitor area of a correctional facility and therefore finding a waiver of immunity; "because the purpose of a correctional facility is to manage convicts safely and effectively, and visitation within the facility directly assists in meeting that purpose, the maintenance of the visitor area within the custodial facility here is directly related to the purpose of the correctional facility").
Denver argues that it is not liable, therefore, for any injuries arising from the exercise of powers, duties, and functions not vested in the Sheriff Department by law, specifically any duty to train and supervise. I disagree. Under Colorado law, each county is required to have a jail "for the detention, safekeeping, and confinement of persons and prisoners lawfully committed." C.R.S. § 17-26-101. The Sheriff is responsible for "the manner in which the same is kept" and "shall see that the same is kept clean, safe, and wholesome." C.R.S. § 17-26-102. The acts and omissions alleged here all concern the vested duty and powers of the Sheriff Department in keeping inmates safe and healthy, including proper classification, supervision, and provision of medical care, which implies the duty to adequately train and supervise in these areas. See also C.R.S. § 17-26-104.5 (concerning medical care in county jails); Flores, 3 P.3d at 466. Accordingly, I am persuaded that the waiver of governmental immunity for the operation of a jail applies to all of Plaintiffs' claims here.
b. Merits of Wrongful Death and Negligence Claims
Plaintiff Ulibarri and the Estate's claims are basically premised on the notion that the Jail was negligent in failing to prevent Vigil's suicide and did not adequately train its staff in this regard. To establish a prima facie claim of negligence, a plaintiff must show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and causation (i.e., that the defendant's breach caused the plaintiff's injury). Gerrity Oil Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997). Whether a party owes a legal duty to another is a question of law for me to decide. Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980).
As noted above, Ulibarri's claim is for wrongful death, which is permitted under Colorado law, while the Estate's claims are in a representative capacity for Vigil. See Rowell v. Clifford, 976 P.2d 363, 364 (Colo. App. 1998) (provision creating cause of action for wrongful death is separate and distinct from the action that the injured person would have had for personal injuries if he or she had survived).
In determining whether the law imposes a duty on a defendant to exercise reasonable care, I examine the following relevant factors: "(1) the risk involved, (2) the foreseeability of harm to others and likelihood of injury as weighed against the social utility of the actor's conduct, (3) the magnitude of the burden of guarding against the injury or harm, and (4) the consequences of placing the burden on the actor." Montoya v. Connolly's Towing, Inc., 216 P.3d 98, 104 (Colo. App. 2008). No one factor is controlling and the issue essentially comes down to "fairness under contemporary standards." Id. In addition, in making this analysis Colorado law distinguishes between acting and failure to act; "by `misfeasance' the defendant has created a new risk of harm to the plaintiff, while by `nonfeasance' he has at least made the situation no worse, and had merely failed to benefit him by interfering in his affairs." Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1159 (Colo. App. 2008) (citations omitted). While generally a tortfeasor's nonfeasance does not give rise to liability, a duty to take affirmative action may arise where there is a "special relationship" between the parties. Id.
Denver argues that the existence and scope of a duty of a jailer to prevent an inmate's suicide has not been determined by Colorado courts. It argues that to the extent such a duty exists, "the scope of the duty to prevent an inmate's suicide should, at a minimum, require that the officers were aware of a specific risk that the prisoner would commit suicide, as the Tenth Circuit requires in a civil rights claim." Denver's Mot. for Summ. J., ECF No. 197, 64. I disagree. As discussed in detail above, the standard for a
civil rights claim in a jail suicide is deliberate indifference, which is a heightened standard for a plaintiff to meet, and is affirmatively not a negligence standard. Accordingly, I disagree that the duty in a state negligence action should be deemed equivalent to that required in a constitutional claim.
Plaintiffs argue that Denver's duty to Vigil in the operation of the Jail included the duty to provide appropriate classification, communication and supervision. Plaintiffs contend that Denver breached those duties by isolating Vigil in the special management area solely on the basis of his disability, failing to allow Vigil to appear before the Administrative Review Board despite his request to do so, failing to provide Vigil or his family any effective way of communicating and failing to provide Vigil any effective way of communicating with the deputies and medical staff, failing to adequately supervise Vigil, and generally "[a]cting in a manner without due regard for the safety of Mr. Vigil." Plaintiffs' Response Brief, ECF No. 228, 183.
I now examine whether the law would impose a duty on a jailer to take reasonable care to prevent an inmate from committing suicide by providing proper classification, supervision, and communication, and to adequately train staff in these areas. I note first that the risk involved is quite serious. As Denver and Plaintiffs' evidence demonstrates, suicide is a significant risk among incarcerated populations and is a major cause of death in jails and detention facilities. Romero Aff. Attach. 6, ECF No. 197-8 ("Suicide is the number one cause of death in jails"). Second, the harm is foreseeable; inmate suicides are a documented hazard and, again, the evidence presented shows that numerous factors present in a detention facility, including isolation, demoralization, and an authoritarian environment, could contribute to despair. Foos Dep., Exh. 6 to Plaintiffs' Response, ECF No. 229-7, 87-89. The evidence indicates the burden is not significant and that these processes are already in place to a large extent. Moreover, there is overwhelming social utility in placing this burden on the jail and its personnel, as inmates have no other source of protection or assistance and must rely almost solely on the facility for protection, communication, and medical and psychiatric services.
I conclude that Colorado courts would recognize that the Jail owes the duties described by Plaintiffs to its inmates in the operation of the facility. The "due care" required in the execution of that duty would be performance in a manner "in accordance with the knowledge and skill ordinarily possessed by [other] practitioners under similar circumstances." Perreira v. State, 768 P.2d 1198, 1220 (Colo. 1989).
There are significant issues of fact regarding whether these duties were breached and whether these failures proximately caused Vigil's death. Accordingly, summary judgment on the negligence claims is not appropriate.
Accordingly, it is ordered:
1. The Objections (ECF Nos. 80 and 113) to orders entered by Magistrate Judge Michael J. Watanabe are overruled and the orders are affirmed.
2. The Motion to Strike (ECF No. 224) filed by Plaintiffs and the Motion to Strike Exhibits (ECF No. 243) filed by Defendants are granted in part and denied in part as described in Part B of this order.
3. The Motions for Summary Judgment (ECF Nos. 197 198) filed Defendants are granted in part and denied in part as follows:
a) The motions are denied as to Claims 1 and 2.
b) The motions are granted as to Claims 3, 4, 5, and 6, the
constitutional claims for relief. Summary judgment shall enter in favor of all Defendants on these claims.
c) The motions are denied as to Claims 7, 8, and 9.
d) The individual defendants may have their costs.