Sawyers v. Norton

• Citation: 962 F.3d 1270
• Decision Date: 23 June 2020
• Docket Number: No. 19-1230,19-1230
• Parties: Gordon G. SAWYERS, Plaintiff - Appellee, v. Brian NORTON, in his individual & official capacities; Jonathan L. Hart, in his individual & official capacities; Sgt. Gary Bruder, in his individual & official capacities; Jesse Hand, in his individual & official capacities; Does 1-10, in their individual & official capacities, Defendants - Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

962 F.3d 1270

Gordon G. SAWYERS, Plaintiff - Appellee,
v.
Brian NORTON, in his individual & official capacities; Jonathan L. Hart, in his individual & official capacities; Sgt. Gary Bruder, in his individual & official capacities; Jesse Hand, in his individual & official capacities; Does 1-10, in their individual & official capacities, Defendants - Appellants.

No. 19-1230

United States Court of Appeals, Tenth Circuit.

FILED June 23, 2020

Sean J. Lane (Alex M. Pass, with him on the briefs), The Lane Law Firm, P.C., Greenwood Village, Colorado, for Defendants - Appellants.

Maren Chaloupka, Chaloupka Holyoke Snyder Chaloupka & Longoria, P.C., L.L.O., Scottsbluff, Nebraska (Jeffrey R. Hill, Jeffrey R. Hill, P.C., Colorado Springs, Colorado, with him on the brief), for Plaintiff - Appellee.

Before HARTZ, MATHESON, and CARSON, Circuit Judges.

MATHESON, Circuit Judge.

This case arose from Gordon G. Sawyers's pretrial detention at the Rio Grande County Jail ("RGCJ"), where his delusional behavior deteriorated to the point that he removed his right eyeball from its socket. He sued the sheriff in his individual and official capacities under 42 U.S.C § 1983 for a deliberate indifference Fourteenth Amendment violation and under state law for negligence.¹ He also sued the three on-duty

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officers in their individual capacities under § 1983, and their individual and official capacities under state law for negligence. The district court granted in part and denied in part the Defendants' summary judgment motion. They appeal the rulings denying their motion. Exercising jurisdiction under 28 U.S.C. § 1291 :

• We affirm the denial of the three officers' motion for summary judgment asserting qualified immunity to the § 1983 claim. First, we lack jurisdiction on interlocutory review to address their factual challenges to the district court's conclusion that a jury could find a constitutional violation. Second, due to inadequate briefing, they waived an argument about clearly established law.

• We affirm the denial of sovereign immunity to Rio Grande County on the state law negligence claim because the Colorado Governmental Immunity Act ("CGIA") waives immunity for injuries resulting from operation of a jail.

I. BACKGROUND

A. Factual Background

"[W]hen reviewing the denial of a summary judgment motion asserting qualified immunity, we lack jurisdiction to review the district court's conclusions as to what facts the plaintiffs may be able to prove at trial." Fancher v. Barrientos , 723 F.3d 1191, 1194 (10th Cir. 2013). We therefore quote the district court's account of the facts pertinent to the issues raised on appeal. See id.

On November 17, 2015, Sawyers was arrested for having set fire to an art gallery under the belief that God had told him to "cleanse the business of witches with fire." He was charged with a felony and booked into the Mineral County Jail, where he was initially assessed "to see if he was an imminent danger to himself, including suicidal risk or self harm." A counselor concluded:

It is difficult to evaluate Mr. Sawyers['s] mental status completely due to his grandiose and persecutory delusions and psychosis that interferes with his being able to exercise good judgment, understand reality as others do, and to behave appropriately. ...

[H]e did not display any aggressive behavior toward himself, me or others. He states that he has never been suicidal, even when he was depressed. ... Although he clearly has mental health issues that I strongly suggest be treated while he is in custody, he denies any thoughts of harm to himself or others. Therefore referral for further evaluation would be questionable, as he does not appear to meet the criteria for commitment under Colorado law. I recommend that he continue to be evaluated while he is in custody, as he reports that he is not currently receiving treatment and it is likely that his delusions and behavior in reaction to his hallucinations may intensify.

Because Mineral County has few resources, Sawyers was transported to the Rio Grande County Jail (RGCJ) later that day to be held on his charges. Defendant Norton is the Rio Grande County Sheriff. Defendants Bruder, Hand, and Hart are law enforcement corrections officers at RGCJ.

When he got to RGCJ, Sawyers affirmed that he had never attempted suicide and did not have any suicidal

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thoughts, and he was assigned to general population housing. But Sawyers exhibited extreme behavior at RGCJ—including peeling back his toenails, causing other self-inflicted wounds, refusing meals, and refusing medication—and he was seen several times by mental health professionals during his stay.

On November 19, 2015, Sawyers was evaluated by a San Luis Valley Mental Health Group (SLVMH) clinician. Sawyers denied symptoms of depression or anxiety, but the assessor diagnosed schizophrenia and recommended a psychiatric assessment and medication management.

On November 21, jailers moved Sawyers to a lockdown cell for entering another inmate's cell and spitting because he believed God had told him to do so. He was moved back to general population, but on November 27 guards moved him to the booking/observation cell because he had been suffering from further delusions and [was] found naked in another's cell attempting to put his penis into his own rectum. As Hart put it, "we had no choice ultimately but to place him in the holding cell because of his behavior."

On November 27, 2015, at RGCJ's request, another SLVMH clinician returned to evaluate Sawyers, but Sawyers refused to talk. The report states, "ES kept client on suicide watch and advised the guards that if he has another psychotic episode to take client to the ER and call ES." Per Rio Grande Sheriff's Office policy, inmates who threaten to commit suicide will be placed in a holding cell and checked at least every fifteen minutes until cleared. If SLVMH gives an order for an inmate's safety, including putting him on suicide watch as happened here, jailers cannot change or clear that order.

On November 28, SLVMH clinician Tammy Obie met with Sawyers, and her report recounts continued delusional behavior and notes that he had been belly cuffed by the jailers so that he would not harm himself but that he "adamantly denied [suicidal or homicidal ideations]." Obie's plan was that Sawyers would stay in the observation cell where he could be regularly monitored to ensure that he was not harming himself, but she concluded that he did not meet the criteria for invoking emergency procedures permitting the courts or mental health professionals to take action when a person appears to be at risk of harming themselves. Finally, Obie told the jailers that she would request a psychological evaluation for November 30.

On November 30, Sawyers was transported from RGCJ to SLVMH for another evaluation, but he again refused to cooperate with the psychiatric interview. The report from that day notes that Sawyers was not under a court order to obtain psychiatric treatment and could not be forced to sit for the interview or begin medications.

At some point on or before November 27, 2015, Sheriff Norton directed his deputies to document Sawyers's behavior in a log to assist SLVMH in assessing him. Thus, while officers at RGCJ use personal logs that detail events throughout their shifts—such as when inmates are out for showers or lunch is served—they kept a log specific to Sawyers entitled "Suicide Watch-15 Min." Officers filled this log out on the computer in the booking area next to the cell in which Sawyers was located. From 10:00 p.m. on November 27 through the end of November 30, this log details Sawyers's activity ad nauseum —whether his doings were mundane or noteworthy. December 1 is nearly empty, but the log continues with regular entries the morning of December 2.

On December 2, 2015, Defendants Hart, Hand, and Bruder were on duty at

962 F.3d 1277

RGCJ during the evening shift. Hart and Hand were assigned to the booking desk area and were responsible for checking on Sawyers; Bruder was sitting in the sergeant's office around the corner and could see the booking area on a monitor. The parties have provided photos of the booking area in relation to the cell in which Sawyers was held. Seated at the booking desk, an officer would be able to view portions of the cell. Standing at the desk, nearly every corner of the cell is visible. The area also contains cabinets in which inmate medications are stored. Standing beside those cabinets, an officer can see the entire cell.

At some point during the evening shift, Hart stood at the medicine cabinets preparing medication to take to all of the inmates. Hart and Hand then left the area to distribute the same. Neither Hart nor Hand are sure exactly what time they left the booking area that night or how long they were away, but Hand testified that he usually performed this task at 9:00 p.m. and they were back within fifteen minutes. In fact, Defendants are adamant that Sawyers was observed at least every fifteen minutes that day. However, the "Suicide Watch" log has only ten entries from 2:15 p.m. to 9:45 p.m. and does not confirm any of Defendants' whereabouts or Sawyers's activity from 6:07 p.m. to 9:15 p.m.,³ and there is no surviving surveillance video of the time in question.

When they returned, Hart went to the cabinet to return the medication cups, Hand sat down at the booking desk, and the two spoke for a few minutes. It is not clear who saw him first, but Hart or Hand noticed that Sawyers was turned away from them, had his hands on his face, and was bleeding. He claimed to have a bloody nose but refused to turn around. At around 9:15 p.m., the officers entered the cell and discovered that Sawyers had removed his right eye from its socket and was attempting to injure his left eye. They immediately restrained him to prevent further injury, and Bruder requested that dispatch page an ambulance. Sawyers vividly remembers removing his own eye to prevent it from being

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