Gaylor v. Does

• Decision Date: 22 January 1997
• Docket Number: No. 95-1172,95-1172
• Citation: 105 F.3d 572
• Parties: 97 CJ C.A.R. 137 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.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 572

105 F.3d 572

97 CJ C.A.R. 137

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.

Jan. 22, 1997.

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 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 averments is considered, since Gaylor is proceeding pro se, "the court should construe his pleadings liberally and hold the pleadings to a less stringent standard than formal pleadings drafted by lawyers." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996). Of course, we are actually reviewing a summary judgment against Gaylor. We review a grant or denial of summary judgment de novo, applying the same legal standard as the district court pursuant to Fed.R.Civ.P. 56. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. If there is no genuine issue of material fact in dispute, we then determine if the substantive law was correctly applied by the district court. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). Under these standards governing our review, we turn to the record and controlling constitutional precedents.

III

As noted earlier, see note 1, supra, here the arrest of Gaylor was made on a probable cause warrant and after a judicial determination of probable cause. Thus due process constraints apply: "the Fourth Amendment governs the period of confinement between arrest without a warrant and the preliminary hearing at which a determination of probable cause is made, while due process regulates the period of confinement after the initial determination of probable cause." Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.1992) (emphasis added); cf. Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir.1990) (noting that a convicted inmate awaiting sentencing is protected primarily by Eighth Amendment). The Seventh Circuit also observed in Villanova that "[t]he deprivation of liberty brought about by confining the arrestee, or a person civilly committed, is tested under the due process clause." Id. at 797 (citing United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987)).

Gaylor's submissions make a showing that between September 4 and September 8, 1992, Gaylor's roommates repeatedly called the Sheriff's Deputies to ascertain whether Gaylor's bail had been set, and that each time these roommates were told that it had not been set. I R., Item 19, Plaintiff's Response to Defendant's Motion for Summary Judgment, Affidavit of Wallendorf at 1-2 ("After repeated telephone calls to the Denver City Jail from September 4th, 1992 to September 8th, 1992, your affiant was told that a bail amount had not been set."); id., Affidavit of Blankenship (same). In addition, Gaylor states that he asked a number of times whether his bail had been set:

Every time a deputy came by my cell, I would ask them ... when I was going to see a judge so I could get a bond set and bond out. Every time the reply was the same from every individual, that I would be on the next bus. That was the same reply from every one of them every day, morning and afternoon, all the way through.

I R., Item 15, Defendant's Brief in Support of Motion for Summary Judgment, Ex. A, Transcript of Gaylor Deposition at 27-28 (emphasis added).

Nevertheless, the record is undisputed that Gaylor's bail in fact had been set at $1,000 on Saturday, September 5, 1992, by Magistrate Garcia by approximately 12:00 noon. I R., Item 15, Defendant's Brief in Support of Motion for Summary Judgment, Ex. C, Affidavit of former Magistrate Garcia at 2. The affidavit of Magistrate Mootz, page 2, further shows that on September 9, 1992, Magistrate Mootz reduced Gaylor's bond from $1,000 to $700. I R., Item 15, Defendant's Brief in Support of Motion for Summary Judgment, Ex. C. Viewing the record...