Ullery v. Bradley

• Decision Date: 10 February 2020
• Docket Number: No. 19-1079,19-1079
• Parties: Susan ULLERY, Plaintiff - Appellee, v. Bruce BRADLEY, in his individual and official capacity, Defendant - Appellant, and Danny Lake, in his individual and official capacity ; Terry Jacques, in his individual and official capacity ; Rick Raemisch, in his official capacity ; David Johnson, in his individual and official capacity ; David Wang, in his individual and official capacity ; David Urich, in his individual and official capacity ; Ramona Avant, in her individual and official capacity ; Scott Smith, in his individual and official capacity, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

949 F.3d 1282

Susan ULLERY, Plaintiff - Appellee,

v. Bruce BRADLEY, in his individual and official capacity, Defendant - Appellant,andDanny Lake, in his individual and official capacity ; Terry Jacques, in his individual and official capacity ; Rick Raemisch, in his official capacity ; David Johnson, in his individual and official capacity ; David Wang, in his individual and official capacity ; David Urich, in his individual and official capacity ; Ramona Avant, in her individual and official capacity ; Scott Smith, in his individual and official capacity, Defendants.

No. 19-1079

United States Court of Appeals, Tenth Circuit.

FILED February 10, 2020

Submitted on the briefs:^*

David R. DeMuro, Vaughan & DeMuro, Denver, Colorado, for Defendant-Appellant.

David A. Lane and Liana G. Orshan, Killmer, Lane & Newman, LLP, for Plaintiff-Appellee.

Before PHILLIPS, BALDOCK, and MORITZ, Circuit Judges.

BALDOCK, Circuit Judge.

In this 42 U.S.C. § 1983 action, Defendant Bruce Bradley appeals the district court’s order denying his motion to dismiss based on qualified immunity. Plaintiff Susan Ullery alleges Defendant violated, among other things, her Eighth Amendment right to be free from cruel and unusual punishment by using excessive force against her in the form of sexual assault and abuse. On appeal, Defendant does not challenge the district court’s determination that he violated a constitutional right. Rather, Defendant argues he is entitled to qualified immunity even if he violated the Constitution because Plaintiff’s asserted Eighth Amendment right to be free from sexual abuse was not clearly established at the time of the alleged violations—between 2014 and April 2016.

We conclude the district court erred to the extent it held the contours of the asserted constitutional right were clearly established before August 11, 2015. But we further conclude any reasonable corrections officer in Defendant’s position since August 11, 2015, would have known the alleged conduct violated the Eighth Amendment based upon the clearly established weight of persuasive authority. Because any actionable constitutional violations in this case would necessarily have occurred after this date, the law was clearly established for all relevant purposes, and the district court therefore correctly denied Defendant qualified immunity. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.¹

I.

Plaintiff is a former inmate at the Denver Women’s Correctional Center, which is a prison in the Colorado state prison system. Between early 2014 and April 2016, Plaintiff worked in the canteen services at the prison under the direction of Defendant, a corrections officer and supervisor of inmates who worked in the department. During this time, Defendant sexually harassed, abused, and assaulted Plaintiff. Defendant’s alleged verbal harassment includes, among other things, suggesting that "jacking off and [his] semen hitting [Plaintiff] in the face would make her feel better[,]" telling Plaintiff he wanted to "shove [his] dick in [her] ass[,]" and demanding Plaintiff expose her breasts to him under threat of reprisal. Plaintiff further alleges Defendant: (1) would "repeatedly approach [her] from behind and forcefully press his genitals into her buttocks" and "moan[ ] mmmmmm in [her] ear"; (2) "purposefully and knowingly used physical force against [her] by touching her breasts"; and on one occasion (3) "backed her into a wall, forcefully thrust his hand between her legs, and [ ] grop[ed] her crotch."

On April 10, 2018, Plaintiff filed a complaint in the United States District Court for the District of Colorado, alleging Defendant’s sexual abuse violated her Eighth Amendment right to be free from excessive force and Fourteenth Amendment right to be secure in her bodily integrity.² Plaintiff’s complaint also asserted claims against other defendants, including Defendant’s supervisors, who were employees of the Colorado Department of Corrections. These other defendants and claims are not involved in this appeal.

Defendant filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In support of his motion, Defendant asserted the defense of qualified immunity and argued he is entitled to a dismissal even if he violated Plaintiff’s Eighth Amendment rights because the law was not clearly established.³ The district court first concluded Plaintiff’s allegations of sexual abuse and assault sufficiently stated a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. Second, the court denied Defendant qualified immunity because it determined Plaintiff’s asserted Eighth Amendment right was clearly established at the relevant time. Defendant timely noticed this appeal.

II.

"We review de novo the district court’s denial of a motion to dismiss based on qualified immunity." Apodaca v. Raemisch , 864 F.3d 1071, 1076 (10th Cir. 2017). In conducting this review, we accept all factual allegations in the complaint as true and draw all reasonable inferences in Plaintiff’s favor. Lowe , 864 F.3d at 1208. To survive a Rule 12(b)(6) motion, the complaint must contain factual allegations that plausibly give rise to an entitlement to relief. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. This standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Before turning to the merits of Defendant’s challenge to the district court’s conclusion regarding qualified immunity, we must first address Defendant’s arguments concerning the inadequacy of the factual allegations in Plaintiff’s complaint. Defendant takes issue with the district court’s reading of the complaint and Plaintiff’s presentation of the allegations on appeal. Specifically, Defendant argues the district court misconstrued the allegations in the complaint underlying Plaintiff’s Eighth Amendment claim and erred in considering instances of alleged sexual abuse barred by the statute of limitations.

First, Defendant argues any constitutional violation arising from the allegation he would "repeatedly approach [Plaintiff] from behind and forcefully press his genitals into her buttocks" and "moan[ ] mmmmmm in [her] ear" is barred by the statute of limitations. "The forum state’s statute of limitations for personal-injury actions sets the limitations period for § 1983 actions," Gee v. Pacheco , 627 F.3d 1178, 1190–91 (10th Cir. 2010), and the applicable limitations period in Colorado is two years. Colo. Rev. Stat. § 13–80–102 (providing the general limitation for personal injury claims in Colorado is two years from when the action accrues). Federal law, on the other hand, governs when a § 1983 claim accrues and when the limitations period begins to run. Kripp v. Luton , 466 F.3d 1171, 1175 (10th Cir. 2006). "A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Price v. Philpot , 420 F.3d 1158, 1162 (10th Cir. 2005) (quoting Baker v. Bd. of Regents , 991 F.2d 628, 632 (10th Cir. 1993) ).

Colorado’s two-year statute of limitations applies in this case. See Gee , 627 F.3d at 1190–91 ; Colo. Rev. Stat. § 13–80–102. Plaintiff filed her original complaint on April 10, 2018, and she does not argue for equitable tolling of the limitations period. Accordingly, the applicable statute of limitations bars claims arising out of the alleged constitutional violations Defendant committed before April 10, 2016.

It is proper to dismiss a claim on the pleadings based on the statute of limitations only if the affirmative defense appears plainly on the face of the complaint itself. Fernandez v. Clean House, LLC , 883 F.3d 1296, 1299 (10th Cir. 2018). The face of the complaint at issue provides Defendant would "repeatedly approach [Plaintiff] from behind and forcefully press his genitals into her buttocks" and "moan[ ] mmmmmm in [her] ear[,]" and "Defendant [ ] repeated this behavior every time that [Plaintiff] worked inventory." Plaintiff’s complaint, however, does not identify specific dates when each alleged instance of sexual abuse occurred. Although claims arising out of constitutional violations Defendant committed before April 10, 2016 are time-barred, it is still plausible—when construing the complaint in the light most favorable to Plaintiff—Defendant engaged in this conduct at least once, and possibly on several occasions, within the limitations period. Thus, we will consider whether this alleged sexual misconduct violated clearly established law.

Next, Defendant contends we should not consider the allegation he "purposefully and knowingly used physical force against [Plaintiff] by touching her breasts" because it is conclusory. We disagree. "[U]nder Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests." S.E.C. v. Shields , 744 F.3d 633, 641 (10th Cir. 2014) (quoting Khalik v. United Air Lines , 671 F.3d 1188, 1192 (10th Cir. 2012) ). When read in the context of the entire complaint, rather than in isolation, this allegation provides Defendant sufficient notice of the ground upon which Plaintiff’s claim for relief rests. See Burnett v. Mortg. Elec. Registration Sys. , 706 F.3d 1231, 1236 (10th Cir. 2013) (explaining our review of a complaint is a "context-specific task").

Finally, regarding the allegation Defendant "backed [Plaintiff] into a wall, forcefully thrust his hand between her legs, and [ ] grop[ed] her crotch[,]" Defendant argues the district court erred in interpreting the complaint to state this groping occurred "for approximately three minutes." Defendant’s argument is, again, without merit. The complaint specifically provides prison officials "left [Plaintiff] alone with Defendant [ ] for...