Colwell v. Johnson, (10th Cir. 2006)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAMI COLWELL,

Plaintiff-Appellee,

v.

LESLIE JOHNSON, in her personal

capacity and under color of state law;

and TONY HALPAIN, in his personal

capacity and under color of state law,

Defendants-Appellants.

No. 06-2149

(D.C. No. CIV-05-450-WP/RHS)

(D. N.M.)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY, LUCERO, and

HARTZ, Circuit Judges.

Defendants Leslie Johnson and Tony Halpain appeal the district court's

order denying their motion for summary judgment. We AFFIRM in part and

DISMISS in part.

While imprisoned at the Eddy County Detention Center ("ECDC"), Rami

Colwell discovered that a prison guard, Mike Mitchell, was having an intimate

physical relationship with another female inmate. In early September 2004,

Colwell alleges that she told Sergeant Todd Halpain, a guard supervisor, what

she had learned. Halpain denies any knowledge of Mitchell's affair and also

denies having any conversation about that affair with Colwell. At least one

guard testified in a deposition that Mitchell and Halpain were good friends and

that other guards were aware of Mitchell's relationship.

Sometime on or around September 3, 2004, Colwell submitted a written

statement accusing Mitchell of inappropriate behavior. Based on Colwell's

accusation, ECDC personnel commenced an investigation into Mitchell's

activities and reassigned him to another section of the facility. Warden Leslie

Johnson was aware of this investigation. During the investigation, ECDC

officials did not reassign Colwell to another facility or transfer her to a different

cell, although these steps were taken in a prior case when an inmate accused a

guard of misconduct.

On the evening of September 7, ECDC personnel were summoned by

Colwell to her cell. When they arrived, they found her bound, gagged, and

severely bruised in both her face and genital area. Colwell stated that she had

been raped and beaten by at least two assailants, but was unable to identify them.

One of the assailants, Colwell noted, told her "that she asked for it."

Colwell filed suit under 42 U.S.C. 1983 against Johnson and Halpain, in

both their individual and official capacities. She alleged that defendants violated

her Eighth Amendment right to be free from "cruel and unusual punishment"

because they failed to take reasonable steps to ensure her safety after she filed a

written accusation against a prison guard. Defendants moved for summary

judgment, arguing that they were entitled to qualified immunity for their actions

and that Colwell failed to present sufficient evidence to support the municipal

liability claim. The district court denied the motion, and this appeal followed.
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We review the district court's denial of qualified immunity de novo,

making all reasonable inferences in favor of the non-moving party. Romero v.

Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). Summary judgment is inappropriate

when, viewing the facts in the light most favorable to the non-moving party,

there is a "genuine issue as to any material fact." Fed. R. Civ. P. 56(c).

Once a defendant asserts a defense of qualified immunity, plaintiff must

(1) allege facts showing a violation of a constitutional right, and (2) show that

the right was clearly established at the time the defendant acted. Kirkland, 464

F.3d at 1188. It is well settled that the Eighth Amendment requires prison

officials to "provide humane conditions of confinement," which includes taking

"reasonable measures to guarantee the safety of the inmates." See Farmer v.

Brennan, 511 U.S. 825, 832-33 (1994). A prison official violates this right when

the inmate is imprisoned under conditions posing an objectively substantial risk

of serious harm, and the official acted with "deliberate indifference" to the

inmate's health or safety. Id. at 834; Verdecia v. Adams, 327 F.3d 1171, 1175

(10th Cir. 2003). An official exhibits "deliberate indifference" when she was

subjectively aware of the substantial risk posed by the inmate's circumstances

and failed to take reasonable steps to ensure her safety. Id.

Making all inferences in favor of Colwell, it is clear that a colorable claim

under the Eighth Amendment was alleged. Because of Colwell's formal

complaint, Mitchell was likely to be terminated (and he was in fact suspended,

and notified of this suspension on September 8th). Halpain, Mitchell's close

friend, was aware that Colwell was the informant and probably told Mitchell of

this fact. During the investigation, Colwell was neither transferred to a more

secure section of ECDC nor a new facility. In fact, the cell where she continued

to be housed was located in a remote area of the prison and thus had fewer staff

members assigned to monitor the inmates. Finally, although the prison had

adopted general safety measures to ensure the security of all inmates, it was

possible for someone to gain access to Colwell's cell for the purpose of harming

her.(2) On these facts, a jury could easily

conclude that the defendants' failure to

move Colwell to a new location placed her in a location posing an objectively

substantial risk of harm.

A jury could also find that the defendants were aware of this risk and

failed to take reasonable precautions to protect her. When ECDC officials were

faced with a similar incident in 2001 ­ an inmate informed ECDC officials that a

prison guard had sexual relations with a female inmate ­ that inmate was

transferred to another facility. A jury could infer from this evidence that the

defendants' were aware of the risk posed to an inmate in Colwell's

circumstances, and that the defendants' actions were unreasonable because

similar steps were not taken with respect to Colwell.

Defendants argue that they took reasonable steps to protect Colwell as a

matter of law because she was placed in a cell located behind seven metal doors,

all equipped with electronic locks requiring separate key cards, and was closely

monitored. They further argue that they conducted a quiet investigation into her

claim. The "steps" taken by the defendants, however, were no steps at all:

During the investigation, Colwell remained in the same cell she was housed in

when the complaint was filed, and the security identified by the defendants is the

same security given to all inmates. The reasonableness of these measures is

questioned by Halpain himself, who testified that he "absolutely" would have

suggested moving Colwell to another facility if he was aware that Colwell had

formally accused Mitchell. For purposes of this appeal, we assume that he had

such knowledge. Moreover, Colwell's expert stated that keeping her in that cell

was unreasonable. To the extent defendants emphasize the safety of Colwell's

cell, this is a matter of dispute properly presented to a jury.

Accordingly, we AFFIRM the district court's order denying

defendants'

claim of qualified immunity, and DISMISS for lack of jurisdiction with

respect

to all other issues raised by defendants on appeal.

Entered for the Court

Carlos F. Lucero



Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. After examining the briefs and appellate

record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order is not binding

precedent except under the doctrines of law of the case, res judicata and collateral

estoppel. It may be cited, however, for its persuasive value consistent with Fed.

R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).

1. Defendants appeal both the district court's

decision denying them qualified

immunity and its finding that sufficient evidence existed to support the municipal

liability claim. An order denying summary judgment is generally not appealable

to this court, but "a district court's decision denying a government official

qualified immunity, to the extent it turns on an issue of law, is an immediately

appealable final collateral order." Kirkland v. St. Vrain Valley Sch. Dist. No.

Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006). On appeal, our jurisdiction is

limited to this issue, and thus we do not address the defendants' challenge to

Colwell's municipal liability claim. See id.

2. Colwell submitted an affidavit from an

expert in this field, Michael Hackett,

who stated that ECDC's security system was not fail-safe, largely because the

electronic locks on the metal doors were capable of being voided. Defendants

argue that Hackett's testimony is false and unreliable because there is no

evidence that the locks on the metal doors were voided by the assailants. If

defendants are requesting that we look at post-incident evidence to determine

whether Colwell was objectively secure, we note that Colwell was found bound,

gagged, and beaten. Under defendants' analysis, it seems that there would be no

question Colwell was placed in objectively dangerous conditions. Surely, she did

not inflict these wounds on herself. To the benefit of the defendants, however,

our review is limited to whether she was objectively safe based upon preexisting

evidence.

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