Serna v. Colorado Dept. of Corrections

• Decision Date: 26 July 2006
• Docket Number: No. 04-1241.,04-1241.
• Parties: Floyd SERNA, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF CORRECTIONS; Juanita Novak, Warden, in her official and individual capacity, Donna Guyett, Nurse, Dr. Gul, and John/Jane Does, Defendants, and Gerald Gasko, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

455 F.3d 1146

Floyd SERNA, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF CORRECTIONS; Juanita Novak, Warden, in her official and individual capacity, Donna Guyett, Nurse, Dr. Gul, and John/Jane Does, Defendants, and Gerald Gasko, Defendant-Appellant.

No. 04-1241.

United States Court of Appeals, Tenth Circuit.

July 26, 2006.

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Edward T. Farry, Jr., Farry and Rector, L.L.P., Colorado Springs, CO, for Defendant-Appellant.

Elisa Moran (John Mosby, Denver, Colorado, with her on the brief) Denver, CO, for Plaintiff-Appellee.

Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

A prison special operations team forcibly removed Plaintiff-Appellee Floyd Serna from his cell based on reports that a prisoner, possibly his cell mate, had a loaded gun. Claiming he was injured during the incident due to excessive force, Serna filed a civil rights suit under 42 U.S.C. § 1983. He sued a number of correctional officials, including: (1) unidentified members of the prison special operations team; (2) the nurse and physician who treated his injuries; (3) the warden of the prison; and (4) Defendant-Appellant Gerald Gasko, the statewide director of prisons for Colorado. Serna's claims against Gasko were premised on his alleged supervision and control of the team that removed Serna from his cell.

Gasko moved for summary judgment, arguing that he was not liable for Serna's injuries under a theory of supervisory liability. The district court denied the motion. Since the court's order raised questions of qualified immunity, Gasko appealed. In light of the undisputed record below, we conclude that Gasko did not violate clearly established law, so summary judgment should have been granted in his favor. Accordingly, we reverse the district court's order.

I. Background

A. Factual Background

Serna was a prisoner at the Colorado Territorial Corrections Facility, a high security prison in Cañon City, Colorado. On February 2, 2001, the prison's warden, Juanita Novak, received a report based on detailed information from an inmate that a prisoner possessed a gun. According to the report, the inmate claimed he had seen and handled the gun, gave specific details about its appearance, and claimed it was loaded. He also described three inmates' plans to use the gun to escape. One of the inmates allegedly involved with the gun was Serna's cell mate.

In light of this information, Novak initiated a series of response measures. First, she activated the Emergency Command Center, an off-site facility available for high risk or volatile prison emergencies. Second, she initiated a lockdown of the entire prison. Finally, she sought authorization to use the special operations response team (SORT), a SWAT-type unit, to remove the three suspects and their cell mates from their cells. Once the suspected individuals had been removed, guards intended to search the cells for the gun.

Before the SORT team could be activated, it had to be authorized by Gerald Gasko, Director of Prisons for the Colorado Department of Corrections. At the time of the responsive measures, Gasko was not at the prison; he was in his office in Colorado Springs, fifty miles away. As Colorado's Director of Prisons, he had authority to activate SORT but was not in charge of the officers who would enter the cell units. These officers would act under the direction of a SORT Commander at the prison, who reported to the Deputy Director of Prisons, who in turn reported to Gasko.

Serna describes in a declaration what happened when SORT arrived at his cell. He was in his cell during the early afternoon when "a large number of officers and agents in riot gear ran onto [his] tier and began screaming at [him and his cell mate] to get on the floor while they pointed weapons at [them]." Despite his full compliance with their orders, Serna claims that officers "crushed [his] jaw and testicles"; that they kicked him as he was lying on the floor face down; that three officers were on top of him while he lay on the floor — one stepping on his hand, one kneeling on his back, and another holding a gun in his side; that a boot pushed his face into the floor; that he was dragged, face down, by his feet for about 30-40 feet; and that a gun was put to his head while the officers screamed at him. Aple.App. at 2-3.

According to Serna, the officers thought he was the target inmate, and once they realized their mistake, they did not treat him so harshly. Following this treatment, Serna was taken to the medical unit. Serna claims the prison medical staff failed to adequately treat his injuries and returned him to his cell despite serious injuries to his jaw and one testicle. He further claims his injuries have never been adequately treated, but these allegations are not before us on appeal.

B. Procedural Background

Serna's complaint named various individuals associated with the prison for violating his Eighth Amendment right to be free from unreasonable and excessive force as a result of the beating, subsequent injuries, and lack of adequate medical care. He sued the SORT team members, whom he has yet to identify; the medical staff who treated his injuries; Novak, the warden; and Gasko, the director of prisons.

The claims against Novak and Gasko are conceptually similar: they were responsible for activating the SORT team, which led to the excessive force that caused his injuries. Both Novak and Gasko filed separate motions for summary judgment on the ground that they were not responsible for the SORT team's use of excessive force.

The district court denied Novak's motion on the basis that she could be liable as a supervisor of the SORT team. We reversed on appeal, however, holding that Serna had not shown disputed facts "to establish Warden Novak ordered the Special Operations Response Team to act, or act in an unconstitutional manner, or that she knew they would act in such a manner when activated, or acquiesced in such conduct." Serna v. Colorado Dept. of Corrections, 108 Fed.Appx. 570, 576-76 (10th Cir. 2004) (Serna I). Accordingly, an "affirmative link" did not exist "between Warden Novak and any alleged constitutional deprivation committed by the Special Operations Response Team against Mr. Serna in removing him from his cell." Id. at 576-77.

Gasko also moved for summary judgment. In Gasko's motion, he argued that he could not be liable for the SORT officers' conduct because (1) they did not use excessive force; (2) even if they did, there was no "affirmative link" between him and the officers conducting the action; and (3) his conduct in approving the cell removal based on the warden's request was objectively reasonable and, thus, protected by qualified immunity. He acknowledged that he asked prison officials to advise him when SORT arrived at the prison and that he received updates throughout the day. However, no one informed him of any injuries or complaints from Serna. He never received any report of unconstitutional conduct arising from the operation, nor has he had direct contact with Serna at any time.

In support of his motion, Gasko described the procedures that the SORT team should have followed that day. SORT and other prison personnel would respond to the target cells but would not enter them. With officers on the outside, prisoners would be ordered to lie on the cell floor and not move. If the inmates complied, officers would open the door and order the prisoners to crawl out of the cell, feet first. Once out, the inmates would be placed in wrist and leg restraints by prison officers under cover of SORT personnel. The inmates would then be taken to the infirmary for examination.

The district court rejected Gasko's motion, concluding factual disputes precluded summary judgment. According to the court, the parties disputed (1) whether the SORT team used excessive force in removing Serna from his cell, (2) whether the SORT team actually caused Serna's injuries, and (3) whether Gasko was personally involved in the incident. Because the Court concluded it "[did] not have a complete picture of what occurred on the day in issue," it also concluded it could not "reasonably rule that there are no genuine issues of material fact." Aplt.App. at 344.

II. Standard of Review

Although appellate courts typically do not have jurisdiction to review denials of summary judgment motions, we have jurisdiction to hear interlocutory appeals where, as here, the defendant raises a qualified immunity defense and "the issue appealed concern[s] . . . whether or not certain given facts showed a violation of `clearly established' law." Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Because this sort of appeal raises the legal significance of the undisputed record below, we review such denials de novo. Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001).

"Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. The privilege is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Saucier v. Katz, 533 U.S. 194, 200-1, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (internal citations and quotations omitted).

Because of the underlying purposes of qualified immunity, we require a plaintiff to satisfy a "heavy two-part burden" to avoid summary judgment: (1) "that the defendant's actions violated a constitutional or statutory right" and (2) that the right "was clearly established at the time of the defendant's unlawful conduct." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). Serna must thus show evidence that Gasko affirmatively violated a constitutional right and that the right was clearly established at the time.

At the summary judgment stage, merely pointing to an unsworn complaint...