Ulibarri v. City & County of Denver, Civil Action No. 07–cv–01814–WDM–MJW.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: ORDER ON PENDING MOTIONS
• Citation: 742 F.Supp.2d 1192
• Parties: Debbie ULIBARRI; Estate of Shawn Francisco Vigil; Colorado Cross–Disability Coalition, a Colorado corporation; Colorado Association of the Deaf, a Colorado corporation; Roger Krebs; and Sarah Burke, Plaintiffs,v.CITY & COUNTY OF DENVER; Alvin Lacabe, in his official capacity as Manager of Public Safety for the City & County of Denver, and in his individual capacity; William Lovingier, in his official capacity as Director of Corrections and Undersheriff for the City & County of Denver, and in his individual capacity; Ron D. Foos, in his official capacity as Division Chief for the County Jail Division for the City & County of Denver, and in his individual capacity; Gary Wilson, in his official capacity as Division Chief for the Pre–Arraignment Detention Facility Division, and in his individual capacity; Gerald R. Whitman, in his official capacity as Chief of Police, and in his individual capacity, Defendants.
• Docket Number: Civil Action No. 07–cv–01814–WDM–MJW.
• Decision Date: 30 September 2010

742 F.Supp.2d 1192

Debbie ULIBARRI; Estate of Shawn Francisco Vigil; Colorado Cross–Disability Coalition, a Colorado corporation; Colorado Association of the Deaf, a Colorado corporation; Roger Krebs; and Sarah Burke, Plaintiffs,
v.
CITY & COUNTY OF DENVER; Alvin Lacabe, in his official capacity as Manager of Public Safety for the City & County of Denver, and in his individual capacity; William Lovingier, in his official capacity as Director of Corrections and Undersheriff for the City & County of Denver, and in his individual capacity; Ron D. Foos, in his official capacity as Division Chief for the County Jail Division for the City & County of Denver, and in his individual capacity; Gary Wilson, in his official capacity as Division Chief for the Pre–Arraignment Detention Facility Division, and in his individual capacity; Gerald R. Whitman, in his official capacity as Chief of Police, and in his individual capacity, Defendants.

Civil Action No. 07–cv–01814–WDM–MJW.

United States District Court, D. Colorado.

Sept. 30, 2010.

[742 F.Supp.2d 1197]

Laura Ellen Schwartz, Paula Dee Greisen, King & Greisen, LLP, Amy Farr Robertson, Fox & Robertson, P.C., Carrie Ann Lucas, Kevin William Williams, Colorado Cross–Disability Coalition, Denver, CO, for Plaintiffs.Suzanne A. Fasing, Thomas G. Bigler, Denver City Attorney's Office, Denver, CO, for Defendants.

ORDER ON PENDING MOTIONS MILLER, District Judge.

This case is before me on the Objections (ECF Nos. 80 and 113) to orders entered by Magistrate Judge Michael J. Watanabe, the Motion for Summary Judgment (ECF No. 197) filed by the City and County of Denver and the individual Defendants in their official capacities ¹ (“Denver”), the Motion for Summary Judgment (ECF No. 198) filed by the individual Defendants in their individual capacities, the Motion to Strike (ECF No. 224) filed by Plaintiffs, and the Motion to Strike Exhibits (ECF No. 243) filed by Defendants. I have reviewed the parties' written arguments and the evidence submitted with their briefs and conclude that oral argument is not required. For the reasons that follow, the Objections to the orders of Magistrate Judge Watanabe are overruled. The Motions for Summary Judgment and Motions to Strike are granted in part and denied in part as set forth below.

Background ²

This is a civil rights and disability rights case concerning the arrest and detention of several deaf individuals by the members of Denver's Police and Sheriff Departments and the practices of those entities with respect to persons with disabilities. The persons arrested and detained are Shawn Vigil, now deceased and represented here by his Estate, Plaintiff Roger Krebs, and Plaintiff Sarah Burke. Plaintiff Debbie Ulibarri is the mother of Mr. Vigil. Plaintiffs Colorado Cross–Disability Coalition (“CCDC”) and Colorado Association of the Deaf (“CAD”) assert claims seeking

[742 F.Supp.2d 1198]

injunctive and other equitable relief. The Defendants are Denver and several of its employees, including supervisory members of the Sheriff and Police Departments.

The Denver Sheriff Department operates two facilities at issue in this litigation: the Pre-arraignment Detention Facility (“PADF”) and the Denver County Jail (the “Jail”). Medical services are provided at these facilities by employees of the Denver Health and Hospital Authority (“DHHA”), a separate and independent governmental entity not a party to these proceedings.

I will first review the backgrounds and events involving the three persons detained.

Shawn Vigil

Vigil became “profoundly” deaf at the age of two as a result of a severe bacterial infection. He attended the Colorado School for the Deaf and Blind in Colorado Springs, Colorado, where he communicated in large part through American Sign Language (“ASL”) ³. According to one of Vigil's school records from 2004, “Shawn's primary mode of communication is sign language.” Exh. 22 to Plaintiffs' Response, ECF No. 229–23. He spent time with his family in Denver on weekends and vacations. His family are all hearing and know little sign language. He communicated with them through gestures and written notes; however, his writing was sometimes difficult for his family to understand. School records from 2004 indicate that he read at approximately a second grade level. Exh. 22 to Plaintiffs' Response, ECF No. 229–23. He could read lips for simple words like “Hi” or “good bye” but otherwise was unable to read lips. Vigil lived mostly with his grandparents, whose home had a telephone device for the deaf (“TDD”), which uses relay systems to permit deaf individuals to communicate with others over the telephone.⁴ Vigil's mother denied that he had any history of depression or of anxiety or treatment for those conditions. However, his school records reflect that he had some behavioral issues at school and received some counseling in 2000. Exh. 22 to Plaintiffs' Response, ECF No. 229–23.

Vigil was arrested by Denver police on August 17, 2005 and charged with second degree kidnapping, second degree sexual assault, and criminal attempt. At the time of his arrest, he was twenty two years old. He had no previous arrests or detentions.

Vigil was first taken to the PADF on the day of his arrest, August 17, 2005. He was seen by nurse Robert Kelly Costin for a routine initial medical assessment. The document used for such screening is titled “Denver Sheriff Department Medical Services—Admission Assessment” and contains a listing of categories, including Drug Allergies, Mental Health History, etc. Nurse Costin had no memory of his interaction with Vigil, but the form he filled out regarding Vigil provides as follows:

Mental Health History: Denies hx/current problem

* * *

Mental Status: Appropriate / oriented

Behavior: Calm/cooperative

[742 F.Supp.2d 1199]

* * *

Additional: IS DEAF. DOES NOT READ LIPS. DOES COMMUNICATE BY WRITING. CLAIMS NEGATIVE FOR ALL MEDICAL PROBLEMS, IN WRITING. HOUSED ALONE FOR THIS REASON.

Crum Aff. Attach. 1, Exh. A–6 to Denver's Mot. for Summ. J., ECF No. 197–9.

Nurse Costin testified in his deposition that his usual practice is to ask the detainee if he has a mental health problem. If the detainee reports a current mental health problem or appears to need further screening, Nurse Costin refers to the inmate to a psychiatric nurse, available only during daytime hours, for an in-depth mental health screening and evaluation for medications. Costin testified that the screening process is important in determining whether a detainee is suicidal but also testified that in routine cases he goes through his screening process in approximately twelve to fifteen seconds.

Nurse Costin explained that his usual practice for getting information from deaf detainees is to write out the questions for the forms for the detainee to read. He usually recommends housing a deaf detainee with another cellmate so the cellmate can get attention for the deaf detainee's needs. He does not specifically recall why he recommended housing Vigil alone, although he stated it was possible that a deputy made this suggestion for safety reasons.

Vigil had an initial court appearance before a Denver County Court Judge on August 18, 2005 in Case No. 05F04992, and his bond was set at $100,000. A sign language interpreter was provided at the hearing and Vigil was represented by a public defender. Vigil's next court hearing was his second advisement on August 24, 2005. Again, he was provided with a sign language interpreter and had a public defender.

While at the PADF, Vigil used a TDD to call his grandparents' house, where he communicated with his mother, Plaintiff Ulibarri. She told him that his bond was too high and she could not get him released. He expressed concern about how long his sentence would be. At some point while at the PADF, Vigil had another inmate call his grandparents' home for him. The inmate spoke to Vigil's brother and relayed something to the effect that Vigil was having a hard time, did not understand what was going on and wanted a lawyer.

Vigil was transferred from the PADF to the Jail on August 25, 2005. At the time, the Jail received an average of 50 inmates each morning. Routine processing by the deputy sheriffs included a search of each inmate, a shower and uniform for each inmate, an individual meeting with a deputy sheriff for the purpose of classification and cell assignment, and a medical screening. Initial housing decisions are made by the classification officer, but then sometimes adjusted after the medical screening. The Jail has mental health units for inmates with mental health issues. Deputies do not have access to an inmate's medical screening or other medical records.⁵

Vigil met with Deputy Sheriff Randy Coleman, a classification officer. The form completed is titled “Denver County Jail, Classification Intake Questionnaire.” Exh. A–12 to Mot. for Summ. J., ECF No. 197–15. It contains a list of questions with boxes to check “Yes” or “No.” Among the questions asked are: “Have you ever attempted suicide?”, “Do you want to see the medical staff?”, “Do you claim a disability?”, “Are you a U.S. citizen?” On Vigil's

[742 F.Supp.2d 1200]

form, these questions are marked “No” despite that fact that Vigil was deaf and was, in fact, a U.S. citizen. On another question, “Did you have access to a phone?”, both answers are crossed out and a hand written notation of “Deaf” is added. There is a section for the deputy to fill out regarding observations, specifically whether the inmate appears “injured, disabled, sick, anxious, withdrawn, hostile, depressed, under the use of alcohol/drugs, aggressive, confused, suicidal.” None of these was circled on Vigil's form. Vigil signed the form.

Deputy Coleman's usual practice is to read aloud the questions to the inmate and note the answers. In the past he has interviewed deaf inmates and his practice has been to give the form to the inmate to read and point to the answers. He does not recall his screening of Vigil and...