105 F.3d 572 (10th Cir. 1997), 95-1172, Gaylor v. Does

Docket Nº:95-1172.
Citation:105 F.3d 572
Party Name:Darin Duane GAYLOR, Plaintiff-Appellant, v. John DOES; Denver County Sheriff's Department, named: John and Jane Does 1 through 50, Denver City and County Sheriff's Deputies in their official and individual capacity; Denver, City and County of, Defendants-Appellees.
Case Date:January 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 572

105 F.3d 572 (10th Cir. 1997)

Darin Duane GAYLOR, Plaintiff-Appellant,

v.

John DOES; Denver County Sheriff's Department, named: John

and Jane Does 1 through 50, Denver City and County Sheriff's

Deputies in their official and individual capacity; Denver,

City and County of, Defendants-Appellees.

No. 95-1172.

United States Court of Appeals, Tenth Circuit

January 22, 1997

Page 573

Darin Duane Gaylor, Plaintiff-Appellant, pro se, and Mark W. Williams of Berryhill, Cage & North, Denver, Colorado, for Plaintiff-Appellant.

Theodore S. Halaby (Robert M. Liechty with him on the brief), of Halaby, Cross, Liechty, Schluter & Buck, Denver, Colorado, for Defendants-Appellees.

Before PORFILIO, HOLLOWAY, and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Gaylor appeals from the district court's entry of summary judgment against him on his claim under 42 U.S.C. § 1983 of deprivation by the City and County of Denver, Colorado, of his rights under the Due Process Clause of the Fourteenth Amendment and the Fifth and Sixth Amendments also to the United States Constitution. His claims arise from his five-day incarceration in the Denver City and County jails following a misdemeanor arrest on September 4, 1992, and before being taken to a magistrate and being released on bond on September 9. He claims, inter alia, that defendant Denver has a policy or custom of neglecting to train, supervise and control the deputies working at the jail, named as John and Jane Does 1 through 50, and other deputies. Complaint p 9; I R., Item 1 at 2. Plaintiff Gaylor also complains of defendant Does' actions of not informing him about his bail status and "of holding Plaintiff incommunicado for five days [as] unreasonable and a violation of due process." Id., p 15 at 3. We reverse the summary judgment and remand for further proceedings.

I

On September 4, 1992 (a Friday), Gaylor was arrested on a misdemeanor charge pursuant to a probable cause arrest warrant that had been issued by a judge on August 24, 1992. 1 The magistrate assigned to review bail set bail at $1,000 on Saturday, September 5, after he reviewed the criminal summons and complaint, the affidavit and application for arrest warrant. Based on the documentation, Magistrate Garcia determined that Judge Breese, who issued the warrant, had found probable cause to hold Gaylor. Magistrate Garcia then, on September 5 (Saturday), set Gaylor's bond at $1,000. Affidavit of former Magistrate Garcia, I R., Item 15, Defendant's Brief in Support of Motion for Summary Judgment, Ex. C at 1-2. An affidavit of Officer Comito, Division Chief of Operations for the Denver Sheriff's Downtown Jail, states that through review of the jail's records, he knew that entry of Gaylor's $1,000 bond was put on the jail's computer the day after Gaylor's entry into the jail (thus on Saturday, September 5) at approximately 12:00 noon. See note 2, infra, p 2. However, Gaylor states by deposition that he was told he must see a judge to get bond set to get out; that when questioned whether he asked deputy sheriffs Saturday how he would get out, he said he got the same reply "everyday, morning and afternoon, all the way through" that he would be on the next bus. I R., Item 15, Denver's Brief in Support of Motion for Summary Judgment, Ex. A at 25, 27-28.

Gaylor's roommates, Kenneth Wallendorf and Melody Blankenship, state in their affidavits that they repeatedly called the jail from September 4 to September 8, 1992, and

Page 574

inquired about bail for Gaylor and were told that a bail amount had not been set. I R., Item 19, Affidavit of Kenneth Wallendorf; I R., Item 19, Affidavit of Melody Blankenship. The following Wednesday, September 9, 1992, Gaylor was taken before Magistrate Mootz, who reduced his bail to $700. I R., Item 15, Ex. E. This bail was posted and Gaylor was released that day.

This civil rights action was filed under 42 U.S.C. § 1983 against the City and County of Denver and its deputies who worked at the jail. They were named as John and Jane Does, whose names were unknown. Gaylor claimed, inter alia, that his constitutional rights under the Due Process Clause had been violated by keeping him in jail for the five-day period without a hearing before a magistrate and by not informing him about his bail status. The district judge denied leave to amend the complaint to name the deputies who were the Doe defendants since by the time Gaylor moved to amend the complaint the statute of limitations had run as to claims against the deputies. I R., Ex. 23.

On January 25, 1995, defendant City and County of Denver had filed a motion for summary judgment. That motion asserted that holding a person in jail for five days upon a probable cause warrant was not a constitutional violation and that, even assuming there was such a violation, it was not caused by any policy of the City. I R, Item 14. After consideration of the City's brief, Gaylor's deposition and several affidavits, and plaintiff Gaylor's response and his opposing affidavits and exhibits, the magistrate judge to whom the matter had been referred submitted a report and recommendation for dismissal of the action. Plaintiff Gaylor objected to that report. The district judge approved the report and recommendation and granted summary judgment for the City. For reasons we explain below, on this record we cannot agree that the summary judgment rejecting Gaylor's due process claim was proper.

II

Gaylor's complaint states, inter alia, that the suit was commenced under the Fourteenth Amendment to the United States Constitution; that he was held incommunicado for five days in Denver's jail by its deputies, which was unreasonable and a violation of due process; he was denied the ability to contact a bail bondsman; and that the City has a policy or custom of neglecting to train, supervise and control the Doe defendants and other deputies. Complaint, I R., Item 1 at 1-3.

We set out the allegations underlying plaintiff Gaylor's claim in order to assess its viability as a constitutional claim. Insofar as the sufficiency of the...

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