Glover v. Gartman, No. CIV 11-0752 JB/LAM

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesTYLER GLOVER, Individually, and as Personal Representative Over the Estate of DEVON EDWARD GLOVER, Plaintiff, v. JAN GARTMAN, Warden, LEA COUNTY DETENTION CENTER, BRADLEY RICE, CHRISTOPHER COLLINS, and JAVIER RIOS, In their personal capacity and official capacity, Defendants.
Decision Date27 September 2012
Docket NumberNo. CIV 11-0752 JB/LAM

TYLER GLOVER, Individually, and as Personal Representative Over the Estate of DEVON EDWARD GLOVER, Plaintiff,
and JAVIER RIOS, In their personal capacity and official capacity, Defendants.

No. CIV 11-0752 JB/LAM


Dated: September 27, 2012


THIS MATTER comes before the Court on Defendants Christopher Collins and Bradley Rice's Motion to Dismiss Plaintiff's Complaint, filed July 10, 2012 (Doc. 24)("Motion to Dismiss"). The Court held a hearing on April 25, 2012. The primary issues are: (i) whether Defendant Bradley Rice violated Devon Edward Glover's substantive due-process rights when Rice supplied D. Glover, a pretrial detainee, with two razor blades and left him for two hours; (ii) whether Rice violated D. Glover's substantive due-process rights when he did not respond timely to D. Glover's emergency calls for help; (iii) whether Defendant Christopher Collins violated D. Glover's substantive due-process rights when he did not respond timely to D. Glover's emergency calls for help; and (iv) whether Rice's or Collins' alleged acts and omissions violated D. Glover's state substantive due-process clause rights. The Court will grant Rice and Collins' motion. Glover has failed to state, with sufficient specificity, a plausible claim under 42 U.S.C. § 1983 on which Rice and Collins are not entitled to qualified immunity, because their conduct did not violate any clearly established

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substantive due-process clause right of D. Glover; neither Rice nor Collins had any knowledge that D. Glover posed a suicide risk, and neither Rice nor Collins heard his calls for help. T. Glover has also failed in his Complaint to state facts sufficient to show that the conduct of either Collins or of Rice deprived Glover of his rights under the New Mexico Constitution for which New Mexico law has waived sovereign immunity pursuant to the New Mexico Tort Claims Act, N.M.S.A. 1978 §§ 41-4-1-30 ("NMTCA").


Consistent with the Court's duty to take the plaintiff's allegations as true under rule 12(b)(6), the Court takes its facts from T. Glover's Complaint. The Hobbs, New Mexico police department arrested Devon Glover ("D. Glover" or "Decedent") on April 10, 2011, and incarcerated him in the Hobbs Municipal Jail. See Complaint ¶ 14, at 3. Sometime thereafter, D. Glover was transported to the Lea County Detention Center ("LCDC") in Lovington, New Mexico. See id.

On April 12, 2011, D. Rice, a LCDC officer, issued Glover razors and left Glover with the razors so that Glover could shave; Glover was left for over one hour without LCDC officer supervision. See id. ¶ 10, at 3; id. ¶ 15-16, at 3-4. D. Glover harmed himself with the razors by cutting his neck. See id. ¶ 17, at 4. D. Glover then "tried to communicate an emergency situation to the [LCDC] officers by pushing the emergency buttons for help." Id. ¶ 19, at 4. "The Defendants actively ignored the emergency button and pleas for help by the Decedent for up to one (1) hour." Id. 20-21, at 4. D. Glover died of his injuries at approximately 12:46 a.m. on April, 13, 2011. See id. ¶ 13, at 3.

Collins was "a guard employed by the [LCDC] and was on duty on April 12 and . . . was charged with the responsibility of maintaining the safety of the inmates." Id. ¶ 12, at 3. Defendant Jan Gartman was the Warden of LCDC. See Id. ¶ 9, at 3. Defendant Javier Rios was a lieutenant

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and supervisor of LCDC and was in charge of supervising Glover's incarceration. See id. ¶ 11, at 3.


T. Glover ("Glover"), individually, and as personal representative over the Estate of D. Glover, filed his Complaint for Damages on August 23, 2011. See Doc. 1. T. Glover filed his Amended Complaint on October 17, 2011. See Doc. 4. T. Glover asserts three causes of action against Rice and Collins:1 (i) Count I - actively failing to protect D. Glover's life; (ii) Count II - deprivation of constitution rights resulting in death under state law; and (iii) Count III - substantive due-process. See Complaint at 5-9. T. Glover is seeking compensatory and punitive damages, in addition to attorneys' fees, and costs. See Complaint at 10.

Rice and Collins filed a motion to stay discovery pending a ruling on the Defendants' motion raising qualified immunity, filed January 10, 2012 (Doc. 23). The Court granted that motion on September 12, 2012. See Memorandum Opinion and Order (Doc. 44).

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On January 10, 2012, Rice and Collins filed the Motion to Dismiss. See Doc. 24. Rice and Collins move the Court, pursuant to rule 12(b)(6), for an order dismissing all claims against them and dismissing them as parties in the litigation. Rice and Collins assert that dismissal of all of T. Glover's claims against them is appropriate, because: (i) qualified immunity bars the substantive due-process and Fourth Amendment claims against them in their individual capacities; and (ii) Glover's claims for Fourth Amendment Violations in Count I, substantive due-process violations in Count III, and the state law claims in Count II fail to state a claim upon which relief may be properly granted. See Motion to Dismiss at 1.

Rice and Collins argue that the doctrine of qualified immunity applies to shield the officers from liability under T. Glover's 18 U.S.C. § 1983 ("§ 1983") claims against them, because both Rice and Collins were acting in their official capacities as LCDC officers at all times relevant to T. Glover's claims. See Motion to Dismiss at 3. Rice and Collins assert that the § 1983 claims fail to show that T. Glover is entitled to relief, as the claims do not set forth with sufficient specificity that Rice's and Collins' conduct violated Glover's constitutional rights under the Fourth Amendment or the Due Process Clause of the Fourteenth Amendment, nor do the claims allege that any violated rights were clearly established. See Motion to Dismiss at 5.

Rice and Collins contend that T. Glover's Complaint fails to sufficiently identify what acts or omissions are specifically attributable to either Collins or Rice, noting that the claims in T. Glover's Complaint identify the actors in general terms rather than specifically identifying either Collins or Rice. See Motion to Dismiss at 6. Rice and Collins assert that, because the complaint fails to identify either Rice or Collins as the officer responsible for the acts or omissions, the Complaint fails to "explain 'how they might be individually liable for deprivations of [D. Glover's] constitutional rights.'" Motion to Dismiss at 7 (quoting Robbins v. Oklahoma ex. rel. Dep't of

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Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008)). Rice and Collins argue that, while two of the counts which T. Glover asserts against them "could include claims against Officer Collins and/or Officer Rice for violating [D.] Glover's federal constitutional rights . . .[,] neither of those counts contains any information that demonstrates or even suggests that Officer Collins or Officer Rice's acts or omissions violated or implicated any of [D. Glover's] federal constitutional rights." Motion to Dismiss at 8-9.

Additionally, Rice and Collins argue that T. Glover's Complaint fails to set forth sufficient facts to identify what constitutional violations T. Glover is attempting to allege. See Motion to Dismiss at 8. Regarding T. Glover's claim in Count I, that Rice and Collins' conduct constituted a deprivation of T. Glover's "rights pursuant to the Fourth Amendment of the United States Constitution as incorporated in the due process clause of the Fourteenth Amendment," Complaint ¶ 27, at 5, Rice and Collins argue that T. Glover has failed to state a claim which may serve as a legal basis under which relief may be properly granted, because the "Fourth Amendment, which protects citizens against searches and seizures, does not apply to the present case." Motion to Dismiss at 9 (citing United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir. 2008)). Rice and Collins assert that the United States Court of Appeals for the Tenth Circuit has held that the Fourth Amendment is not implicated in the case of "the suicide of a pretrial detainee." Motion to Dismiss at 9 (quoting Barrie v. Grand County, 119 F.3d 862, 870 (10th Cir. 1997)(Briscoe, J., concurring)(internal quotations omitted)). Rice and Collins argue that Count III fails to "support or give rise to the conclusion" that Collins or Rice violated Glover's federal constitutional rights, because Glover's claim does not identify any particular substantive due-process rights allegedly

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violated.2 Motion to Dismiss at 10. They assert that, "[w]ithout identifying any particular substantive due process right that may have been implicated or providing any specific facts that support such claims, Plaintiff's allegation that Defendants' actions were 'shocking to the conscience' is nothing more than a conclusory statement, which the Court is not required to accept as true." Motion to Dismiss at 11 (quoting Complaint ¶ 38, at 8). Finally, Rice and Collins argue that, because T. Glover failed to identify what constitutional rights Rice and Collins allegedly violated, he also failed to sufficiently allege that any...

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