May 23, 2017

Colorado Court of Appeals: Fine to Employer for Workers’ Compensation Insurance Lapse Unconstitutional As Applied

The Colorado Court of Appeals issued its opinion in Dami Hospitality, LLC v. Industrial Claim Appeals Office on Thursday, February 23, 2017.

Dami Hospitality, LLC, operates a motel in Denver, Colorado. For a period in 2006, Dami failed to carry workers’ compensation insurance. It paid the $1,200 fine and obtained insurance. In 2014, the Division of Workers’ Compensation informed Dami that it was again without workers’ compensation insurance and had been for periods during 2006 and 2007, as well as from September 2010 through the date of the division’s notice. Dami admitted receiving the Division’s June 28, 2014, notice, but denied receiving a notice the Division contended it had mailed four months earlier. Dami obtained the necessary insurance by July 9, 2014, but did not otherwise respond to the Division’s letter.

The Division imposed a fine of $841,200 based on C.R.S. § 8-43-409(1)(b)(II) and 7 CCR 1101-3 (Rule 3-6). Dami’s owner, Soon Pak, sent a letter to the Director captioned “Petition to Review,” asking the Director to reconsider the fine. Ms. Pak claimed that she relied on her insurance agent to obtain the necessary insurance and believed the hotel’s insurance policies contained workers’ compensation coverage. She also asserted that the fine was more than her business grossed in a year and it would bankrupt both the hotel and her individually. Ms. Pak’s insurance agent also submitted a letter claiming personal responsibility for the lapse in coverage. In a supplemental order, the Director again ordered Dami to pay the fine, asserting that the previous lapse in coverage should have put Dami on notice as to the need for insurance.

Dami appealed to the Industrial Claim Appeals Panel, which ruled that the Director had failed to consider the factors in Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005), to protect against constitutionally excessive fines. On remand, without taking additional evidence, the Director reinstated his original fine, concluding that Rule 3-6 inherently incorporated the Associated Business Products factors. Dami again appealed, but this time ICAO upheld the Director’s order. Dami appealed to the Colorado Court of Appeals.

The court of appeals first considered whether Dami was deprived of procedural due process. Dami argued that notice by mail was unreasonable, and that a hearing should have been held before the fine was imposed. The court of appeals disagreed. Dami did not request a prehearing conference when it received the first notice of the lapse in insurance, and Dami did not show that the address the Division had on file was incorrect. Therefore, the court found that Dami was not denied procedural due process.

Dami next contended that the $841,200 fine was constitutionally excessive in violation of the Eighth Amendment. Dami argued that section 8-43-409 is unconstitutional on its face because the General Assembly removed a penalty cap in 2005 and failed to impose a statutory deadline for notice of missing insurance coverage, which therefore granted the Director “complete discretion regarding the timing of notice and thus the size of the fine.” The court of appeals found no facial constitutional error, noting that other penalty statutes have been upheld despite a lack of cap or statutory deadline.

However, the court of appeals agreed with Dami that the penalty was unconstitutional as applied because the Director abused his discretion in applying the Associated Business Products factors to Dami’s situation. Dami also argued that the fine is grossly disproportionate both to its ability to pay and to the harm caused by the lack of workers’ compensation insurance. It asserts the Director should also have considered its ability to pay when weighing the constitutionality of the fine. The court of appeals again agreed that the fine was unconstitutional as applied.

The court of appeals evaluated whether Eighth Amendment protections apply to corporations, and determined that Dami’s status as a corporation did not deprive it of Eighth Amendment protections. The court cited Citizens United for the premise that individual constitutional protections can apply to corporations.

Evaluating the particular fine, the court of appeals determined that the Director abused his discretion in imposing the fine because he did not make specific findings regarding the Associated Business Products factors. The court of appeals found that the uncontroverted facts put Dami at the low end of the reprehensibility scale, since Ms. Pak relied on her insurance agent to supply all necessary insurance coverage and the agent admitted he had not informed Ms. Pak about workers’ compensation insurance. The court also found that because Dami had not had a single workers’ compensation claim in its existence and it had fewer than ten employees, there was no actual harm from Dami’s lack of workers’ compensation insurance and low risk of potential harm. The court noted that the record lacked any evidence of comparable fines because the Division failed to supply it, but the information Dami supplied showed that in FY 2006-2007 the total amount of fines for failure to carry insurance “would be $200,000.” The court of appeals also recognized that the Director should have considered Dami’s ability to pay before imposing the fine.

The court of appeals remanded for reconsideration of the excessive fine in light of the Associated Business Products factors.

Tenth Circuit: Isolated Mishap with Execution Does Not Give Rise to Eighth Amendment Violation

The Tenth Circuit Court of Appeals issued its opinion in Estate of Lockett v. Governor Mary Fallin on Tuesday, November 15, 2016.

In 1999, Clayton Lockett kidnapped, raped, sodomized, and shot 19-year-old Stephanie Nieman and then had an accomplice bury her alive. He was found guilty of 19 felonies arising from the incident and was sentenced to death. He was executed in Oklahoma in 2014, using a combination of three drugs—midazolam, vecuronium bromide, and potassium chloride. The doctor and EMT had trouble starting an IV and ultimately inserted the IV into a vein in his groin area. They covered the area with a cloth so that the observers would not see Lockett’s intimate parts. Ten minutes after administering the first drug, midazolam, Lockett was declared unconscious. The executioners then administered the second and third drugs. Unexpectedly, about 15 minutes after the first drug was administered, Lockett began twitching and writhing, tried to rise from the table, uttered some words, and was grimacing in pain. The doctor checked the IV site, which had been covered so as to protect Lockett’s privacy, and discovered the IV had infiltrated so the drugs were not getting to Lockett’s veins. The doctor advised Oklahoma DOC Director Robert Patton that he believed insufficient drugs had entered Lockett’s system to cause his death. The execution was halted 33 minutes after the first drug was administered. However, 43 minutes after administering the first drug, Lockett was pronounced dead.

The Estate of Lockett filed seven claims: (1) “Eighth Amendment violation—Torture,” as to all defendants; (2) “Eighth Amendment—Using Untested Drugs and Human Medical Experimentation,” against all defendants; (3) “Eighth Amendment—Use of Compounded Drugs in Human Medical Experimentation,” against all defendants; (4) “Eighth Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all defendants; (5) “Eighth Amendment—Failure to Train and Supervise,” against Warden Trammell and Director Patton; (6) Fourteenth Amendment—“Failure to Protect State-Created Rights Procedural Due Process Violation,” against all defendants; and (7) “Sixth Amendment Right to Counsel and First Amendment Access to the Court Violation,” against Warden Trammell and Director Patton. Governor Fallin, Director Patton, and Warden Trammell filed a motion to dismiss under F.R.C.P. 12(b)(6), as did Dr. Doe. Both motions asserted qualified immunity among other defenses. The district court granted both motions to dismiss on qualified-immunity grounds and sua sponte dismissed the claims against the other Doe defendants. The district court found the Estate had failed to prove defendants violated clearly established law.

On appeal, the Tenth Circuit evaluated whether the defendants were entitled to qualified immunity, based on whether the Estate asserted facts sufficient to show a violation of a clearly established right. As to Dr. Doe, since he was a private party, the Tenth Circuit also had to find that he was entitled to government qualified immunity. The Tenth Circuit found that he was. A government employee in the same position as Dr. Doe would have been entitled to qualified immunity, and the Tenth Circuit found that Dr. Doe was, too, finding “Dr. Doe is entitled to assert qualified immunity because the purposes of qualified immunity support its application here: carrying out criminal penalties is unquestionably a traditional function of government, exactly the sort of activities that Richardson reasoned qualified immunity was meant to protect.”

Turning to the Estate’s claims, the Tenth Circuit first addressed its claims of torture and deliberate indifference. The Tenth Circuit noted a single reference in the torture claim to “deliberate indifference,” although there were several references to torture. Although the Tenth Circuit would generally find that the deliberate indifference claim was waived, it addressed the claim because Appellees suffered no prejudice from the claim. The Tenth Circuit noted a deficiency in that the Estate did not account for how cruel and unusual punishment claims operate in the death penalty context. Because the Supreme Court has found capital punishment constitutional, and some pain and suffering is inherent in capital punishment, there must be an additional showing of torture or needless addition of pain in order for an Eighth Amendment violation to stand. The Tenth Circuit noted that the Supreme Court’s death penalty opinions recognize that executions can go awry, and that an isolated mishap will not rise to the level of an Eighth Amendment violation. The Tenth Circuit found that Lockett’s infiltrated vein, coupled with the unusual difficulty securing an IV site, constituted precisely the sort of “isolated mishap” contemplated by the Supreme Court. Although the infiltrated IV could have been discovered sooner had the IV site not been covered, the covering was done to protect Lockett’s privacy, not in an attempt to cause pain and suffering.

The Estate also asked the Tenth Circuit to take judicial notice of news articles about Lockett’s botched execution, as well as Justice Sotomayor’s dissent in Glossip v. Gross, in which she discussed Lockett’s execution. The Tenth Circuit declined to take judicial notice of the news articles or the dissent. The Circuit found it inappropriate to take judicial notice of the opinions contained in the news articles, noting that judicial notice is reserved for facts beyond debate. The Tenth Circuit also declined to take judicial notice of Justice Sotomayor’s dissent, because it may only take judicial notice of the fact of the opinion and not its contents.

The Estate also claimed that the defendants violated Lockett’s Eighth Amendment rights by being deliberately indifferent to his serious medical need to die as quickly as possible. The Tenth Circuit noted that, at the same time, the Estate acknowledged that the EMT and doctor had difficulty placing an IV, and did not have alternative veinous access. The Estate argued that the appellees had no plan to respond to or prevent Lockett from suffering a prolonged death. The Tenth Circuit did not find deliberate indifference on the part of the appellees. The Tenth Circuit affirmed the district court’s decision that there was no violation of a clearly established right. The Tenth Circuit further found the appellees violated no clearly established law despite Lockett suffering pain during his execution. The IV infiltration was an “isolated mishap,” not something designed to cause additional pain. The Tenth Circuit noted that Oklahoma has changed its execution procedures to conform to the Supreme Court’s approved procedure in Baze, so the situation is unlikely to arise again in another execution.

The Tenth Circuit next addressed the Estate’s claims that Defendants Patton and Trammell failed to promulgate policies that would prevent Lockett’s execution from violating the Eighth Amendment. The Tenth Circuit found that the Estate’s reliance on the requirements enumerated in Baze was misplaced; because some of the procedural safeguards were in place, and because Oklahoma adopted more procedural safeguards after Lockett’s execution, the Tenth Circuit found no error. The Tenth Circuit noted that the Estate’s claims contained only a high level of generality, which was impermissible.

The Tenth Circuit also dismissed the Estate’s aggregation claim. Because the Estate did not set forth clearly established law to support its aggregation claim, the Tenth Circuit dismissed it. The Tenth Circuit also found no procedural due process violation because Lockett had an opportunity to challenge the drug protocol and failed to do so. Similarly, the Tenth Circuit found that Lockett had no right to counsel during the execution.

The Tenth Circuit affirmed the district court. Judge Moritz wrote a separate concurrence; she would have declined to reach the constitutional issues as to any of the Estate’s questions.

Tenth Circuit: Facts Existed to Support District Court’s Denial of Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Durkee v. Minor on Monday, November 14, 2016.

James Durkee was an inmate at the Summit County Corrections Center in Colorado. After being threatened by a notoriously violent inmate, Ricky Michael Ray Ramos, Durkee expressed concern about Ramos’ aggression and a deputy issued an incident report stating that Durkee and Ramos were not allowed to attend any programs together, be in the hallways together or in passing, or be in the booking area together. The report was signed by the jail staff, including Defendant Hochmuth. On December 28, 2012, Plaintiff Durkee was in the jail’s professional visitation room, when Ramos was escorted into the booking area by Hochmuth. Plaintiff saw both Defendant and Ramos, and Ramos saw plaintiff, but Hochmuth reported that he did not see plaintiff despite the large glass window between the rooms. When defendant removed Ramos’ shackles, he ran into the visitation room and attacked plaintiff, leaving him with severe facial fractures.

Plaintiff sued Hochmuth and the Summit County Sheriff, Defendant Minor, in their individual capacities under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. Both defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and the defendants appealed.

On appeal, the Tenth Circuit evaluated whether the district court found facts sufficient to support plaintiff’s claim that the defendants violated clearly established law. The Tenth Circuit found that, as to Hochmuth, the plaintiff had to prove sufficient facts that the defendant knew of and disregarded a substantial risk to plaintiff. Hochmuth does not dispute that he knew Ramos posed a substantial risk of harm to plaintiff “generally,” but argued he did not know plaintiff was in the unlocked room adjacent to the booking room. The Tenth Circuit noted that the success of the defendant’s defense may turn on whether the jury finds his testimony credible that he did not see plaintiff in the next room.

As to Minor, the Tenth Circuit did not find facts sufficient to prove that in his individual capacity as the director of the jail he knew of and disregarded a substantial risk of harm to plaintiff. The Tenth Circuit found that plaintiff could not show Minor’s direct personal responsibility for the harm suffered by plaintiff. The Tenth Circuit could not find a policy dilemma, since unshackling inmates in the booking area had not been a problem for anyone prior to the incident with plaintiff.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Colorado Court of Appeals: Extended Proportionality Review Needed to Determine Whether Defendant’s Sentence Appropriate

The Colorado Court of Appeals issued its opinion in People v. McRae on Thursday, August 11, 2016.

Clifton McRae was convicted of distribution of methamphetamine. Due to his habitual offender status, his sentence was calculated at 64 years. He requested a proportionality review. After conducting an abbreviated proportionality review, the trial court determined that the sentence was grossly disproportionate to the crime and reduced it to 16 years. The People appealed.

The Colorado Court of Appeals noted first that if an abbreviated proportionality review gives rise to an inference of gross disproportionality, the court should engage in an extended proportionality review, comparing the sentence to that of similarly situated defendants.

Prior to the commission of McRae’s offenses, the Colorado General Assembly passed SB 13-250, which drastically decreased the sentences for certain crimes, including McRae’s, but the effective date was after the date from which his convictions arose. The People argued that the trial court entered an illegal sentence by retroactively applying SB 13-250. The trial court had noted that a defendant who committed the same crime a few months after McRae would be subject to only a 16 year sentence, although it did not rely on the not yet effective legislation in its determination of disproportionality. The Colorado Court of Appeals found no error.

The People also argued that because McRae’s triggering offenses and five of his prior convictions are per se grave or serious, the 64-year sentence failed to raise an inference of disproportionality. The court of appeals disagreed but remanded for an extended proportionality review. Although the court had made findings about the serious nature of the offenses, the court also noted that they were for personal consumption and not for substantial monetary gain. The court of appeals found the trial court did not err in considering these factors. The court noted that although it was tempted to approve of the trial court’s sentence, it should have conducted the further extended review to justify its sentence.

The court of appeals remanded for further proceedings.

Tenth Circuit: Jurisdiction Lacking Where Denial of Summary Judgment Based on Genuine Issues of Material Facts

The Tenth Circuit Court of Appeals issued its opinion in Henderson v. Glanz on Monday, December 28, 2015.

Aleshia Henderson was an inmate at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. She was in a holding cell of the medical unit in handcuffs and leg restraints awaiting medical treatment when Detention Officer (DO) Johnson unlocked the door in view of Inmate Jessie Earl Johnson, a violent offender who was considered extremely high risk for escape and required “extreme caution.” DO Thomas, unaware that the holding cell door was unlocked, left the medical unit to respond to a medical emergency. When a nurse returned with another emergency patient, DO Johnson left the medical unit to assist the nurses.

During this time, Inmate Johnson reported to Inmate Williams that he was going to make sexual contact with Henderson. He left his unlocked holding cell and entered Inmate Henderson’s unlocked holding cell, exiting about 10 minutes later. Both DO Johnson and DO Thomas observed Inmate Johnson leaving Henderson’s cell. DO Johnson immediately confronted Inmate Johnson, who denied being in Henderson’s cell. DO Johnson then interviewed Inmate Henderson, who would not speak but nodded when asked if Inmate Johnson had sexually assaulted her. She was taken to a hospital, where an examination showed bruising, swelling, and a midline vaginal tear consistent with forcible sexual conduct. Inmate Johnson was subsequently charged with rape, though the charge was dismissed when Henderson briefly recanted out of fear for her mother’s safety.

DO Johnson and Thomas told their immediate supervisor, Sergeant Pirtle, about the incident, and the Tulsa County Sheriff’s Office (TCSO) conducted an investigation. TCSO determined that department policy was violated when the DOs left their posts, failing to maintain the required two officers in the medical unit, and when they failed to maintain the log book. When asked later how she could have been unaware of the risk to Henderson, DO Johnson stated, “I don’t know how to answer that.”

Henderson brought suit under 42 U.S.C. § 1983 against DO Johnson, DO Thomas, and Tulsa County Sheriff Glanz, asserting violations of her Eighth Amendment rights. Defendants moved for summary judgment based on qualified immunity because Henderson could not show a constitutional violation. The district court denied summary judgment as to DO Johnson and DO Thomas, concluding there were genuine issues of material fact regarding whether DO Johnson and DO Thomas were aware of the risk of assault. The district court denied summary judgment to Sheriff Glanz because there were genuine issues of material fact regarding whether he was aware of the risk of assault to Henderson. Defendants appealed.

On appeal, the Tenth Circuit first determined it lacked jurisdiction to consider DO Johnson’s and Sheriff Glanz’s appeals. The Tenth Circuit noted that the district court’s denial of summary judgment was not ripe for interlocutory appeal because it was not a final order and did not fall into any of the exceptions allowing interlocutory appeal. The Tenth Circuit also noted that the district court found facts sufficient to support its denial of summary judgment, concluding that by viewing the facts in the light most favorable to Henderson, a reasonable jury could find a constitutional violation.

As to DO Thomas, the Tenth Circuit found it had jurisdiction to assess the district court’s denial of summary judgment. Because DO Thomas did not know DO Johnson had unlocked Henderson’s cell door and was not there when DO Johnson left the unit, he was not subjectively aware of a substantial risk of bodily harm to Henderson. The Tenth Circuit reversed the district court’s denial of qualified immunity to DO Thomas.

The Tenth Circuit dismissed the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction, and reversed the district court’s denial of summary judgment to DO Thomas.

Tenth Circuit: Plaintiff Bears Burden to Prove Constitutional Violation of Clearly Extant Law in Qualified Immunity Case

The Tenth Circuit Court of Appeals issued its opinion in Cox v. Glanz on Tuesday, September 8, 2015.

Charles Jernegan surrendered at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma in July 2009, and was asked several questions related to his physical and mental health as part of the intake process by the booking officer and nurse Faye Taylor. He reported that he was taking medication for paranoid schizophrenia but did not express any suicidal ideation. The next day, he filed a medical request through the jail’s kiosk system, reporting he needed to “speak to someone about problems.” Two days later, healthcare employee Sara Sampson attempted to check on him but because he had been moved to a different cell block she never contacted him. That same morning, Jernegan hanged himself and was found dead in his cell.

His mother, Carolyn Cox, brought a 42 U.S.C. § 1983 action against the Tulsa County Sheriff, Stanley Glanz, in his individual and official capacities, and also against the company that provided healthcare services to the jail and several of the jail’s healthcare employees, including Sampson and Taylor. As relevant to Sheriff Glanz, Ms. Cox alleged that his failure to provide adequate and timely mental health screening and care constituted deliberate indifference to Jernegan’s serious medical needs in violation of the Eighth Amendment. For the individual capacity claim, Ms. Cox relied on a supervisory-liability theory, alleging Glanz failed to properly train and supervise jail employees, including Sampson and Taylor. For the official capacity claim, Ms. Cox averred that Glanz had promulgated and administered an unconstitutional policy of providing insufficient mental health evaluation and treatment.

The sheriff moved for summary judgment, contending he was entitled to qualified immunity on the individual capacity claim because Ms. Cox had not established that any jail employee acted with deliberate indifference to Jernegan’s medical needs, he had not acted with the requisite state of mind to support a deliberate indifference claim, and he had not created any policy that produced constitutional harm. The district court denied Glanz’s motion, ruling that genuine issues of material fact precluded summary judgment. The district court did not explicitly focus on the framework of qualified immunity in its ruling. Glanz filed an interlocutory appeal.

The Tenth Circuit first addressed whether it had jurisdiction to entertain the sheriff’s interlocutory appeal, acknowledging that Ms. Cox’s jurisdictional arguments had merit because the district court did not follow the settled mode of decision-making regarding qualified immunity. Because the sheriff accepted Ms. Cox’s version of the facts as true, the Circuit had jurisdiction to evaluate the legal issues presented by the agreed-upon facts. The Tenth Circuit noted that the appropriate two-fold test for qualified immunity was whether there was a constitutional violation and whether that constitutional violation was grounded in clearly established law. The Tenth Circuit commented that neither party adequately briefed the question of whether the law was clearly established at the time of Jernegan’s suicide.

Turning to the merits of the appeal, the sheriff argued the district court committed reversible error when it denied him qualified immunity on his individual capacity claim and when it denied him summary judgment on his official capacity claim. The Tenth Circuit declined to reach the second argument, noting it lacked jurisdiction and declined to exercise pendent appellate jurisdiction. The Tenth Circuit dismissed the sheriff’s appeal on the official capacity claim.

As to the individual capacity claim, the Tenth Circuit elected to review whether clearly established law prohibited the constitutional violation suffered by Jernegan, i.e., whether an inmate’s right to proper suicide screening was clearly established in 2009. The Tenth Circuit noted that Ms. Cox failed to produce any case law support for her proposition, but conducted an independent review. The Tenth Circuit noted that its standard for the requisite state of mind for deliberate indifference was established in the mid-1990s and had not changed by 2009. The trend in the circuit was to require inmate-specific knowledge of suicide risk, and the circuit declined to hold jail officials responsible when the inmate did not demonstrate a particularized risk of suicide. Because Jernegan did not present a specific risk of suicide, no jail employee could have been found to have acted with deliberate indifference, so the sheriff could not be found to have acted with deliberate indifference under a supervisor liability theory. The Tenth Circuit held that Ms. Cox failed to satisfy the clearly-extant law prong of the qualified immunity analysis, and therefore the sheriff was entitled to qualified immunity on the individual capacity claim.

The Tenth Circuit reversed the district court’s denial of qualified immunity on the individual capacity claim against the sheriff and remanded with instructions to enter judgment in favor of the sheriff, and dismissed the part of the appeal related to the official capacity claim.

Colorado Court of Appeals: Sex Offender Registration Not Punishment so No Eighth Amendment Violation for Juvenile Offender Registration Requirement

The Colorado Court of Appeals issued its opinion in People in Interest of J.O. on Thursday, August 27, 2015.

Juvenile—Unlawful Sexual Contact—Indecent Exposure—Sex Offender Registration—Evidence—Eighth Amendment.

J.O., who was 15 years old at the time of the charged offenses, was adjudicated delinquent for acts that, if committed by an adult, would constitute misdemeanor unlawful sexual contact, attempted misdemeanor unlawful sexual contact, and two counts of indecent exposure. As part of adjudication, J.O. was required to register as a sex offender.

On appeal, J.O. argued that the trial court erred in ordering him to register as a sex offender because (1) he met the criterion for the magistrate to exempt him from registration, (2) the registration violated his rights under the Eighth Amendment, and (3) (1) the evidence was not sufficient to support the adjudication. Because J.O. was simultaneously adjudicated for unlawful sexual contact and indecent exposure, he did not meet the first offense criterion in CRS § 16-22-103(5)(a)(III) for exemption from sex offender registration. Additionally, because sex offender registration is not punishment, requiring him to register did not violate his constitutional rights. Finally, there was sufficient evidence showing that J.O. possessed the requisite intent for unlawful sexual contact and indecent exposure.Therefore, the evidence was sufficient to support his adjudication. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Colorado Court of Appeals: Consecutive Sentences May Constitute De Facto Life Sentence for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Ellis on Thursday, August 13, 2015.

Juvenile—Murder—Life Sentence—Eighth Amendment—Possibility of Parole—Life Expectancy—Direct Transfer Hearing—Jury Selection—Batson Challenge.

Ellis was 17 years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend’s car. Defendant was found guilty of the charges against him for these crimes. He was sentenced to life with the possibility of parole after forty years on the first-degree murder conviction and a thirty-two-year consecutive sentence for the attempted first-degree murder–extreme indifference conviction.

On appeal, Ellis contended that his sentence to life with the possibility of parole after a minimum of forty years’ imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment, is the equivalent of life without the possibility of parole and, therefore, unconstitutional. The Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. Ellis’s sentence would constitute a de facto life sentence without the possibility of parole, and therefore would be unconstitutional, if it left Ellis without a meaningful opportunity for release. However, because Ellis’s contention depended on a factual determination of his life expectancy, which the trial court did not previously conduct, the case was remanded to the trial court to make this determination.

Ellis contended that the trial court erred when it denied his request for a direct transfer hearing. CRS § 19-2-517(1)(a)(I) permits prosecutors to charge juveniles 16 years old or older as adults, without a transfer hearing, if their charges include a class 1 or 2 felony. The reenacted statute included a provision allowing juveniles charged by direct filing to file a motion with the district court seeking transfer to juvenile court. However, the reenacted statute became effective three days after a jury convicted Ellis. Therefore, the trial court did not err when it denied Ellis’s reverse transfer motion as untimely.

Ellis also contended that the trial court abused its discretion when it denied his Batson challenge to the prosecution’s use of peremptory challenges to excuse two potential jurors on account of their race. The prosecution provided a race-neutral explanation, the court found the prosecutor’s reasons believable, and the trial court’s ruling is supported by the record. Therefore, the trial court did not clearly err when it denied Ellis’s Batson challenges.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Juvenile Life Sentences Subject to Consideration of Defendants’ “Youth and Attendant Characteristics”

The Colorado Supreme Court issued its opinion in the consolidated cases of People v. TateBanks v. People, and Jensen v. People on Monday, June 1, 2015.

Juvenile Sentencing.

In this consolidation of three cases, the Supreme Court examined the appropriate remedies for defendants who were given sentences that would be unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (2012). Miller held that it is a violation of the Eighth Amendment to sentence juveniles to life without the possibility of parole (LWOP) without first giving them individualized sentencing that takes into account their “youth and attendant characteristics.” Under the statutory scheme in place between 1990 and 2006, all three defendants were given mandatory LWOP sentences for crimes committed as juveniles.

Two of the cases, Tate and Banks, come on direct review. Miller therefore applies and renders their sentences unconstitutional. To preserve as much of the legislature’s work as possible, Tate and Banks should be given individualized resentencing hearings that take into account their “youth and attendant characteristics.” If the resentencing court determines LWOP is not warranted, the appropriate sentence is life with the possibility of parole (LWPP) after forty years. LWPP is appropriate in that instance because it was the sentence given both before 1990 and after 2006, and thus is what the legislature likely would have intended had they known about the subsequent constitutional rulings. The Court therefore remanded the cases for an individualized resentencing hearing to determine whether LWOP is warranted. If LWOP is not warranted, LWPP should be imposed.

The third case, Jensen, is a CAR 50 petition that came on collateral review of a final judgment. As such, the issue is whether Miller applies retroactively. Because the new rule from Miller is procedural rather than substantive and is not a “watershed” rule of procedure, it does not apply retroactively to cases on collateral review of a final judgment. It therefore does not apply to Jensen.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Juvenile Life Sentences on Collateral Review Not Subject to Constitutionality Test

The Colorado Supreme Court issued its opinion in People v. Vigil on Monday, June 1, 2015.

Juvenile Sentencing.

In this CAR 50 petition on collateral review of a final judgment, the Supreme Court held that Miller v. Alabama, 132 S.Ct. 2455 (2012), does not apply retroactively to cases on collateral review of a final judgment, and thus does not apply to Vigil. This holding was based on the Court’s decision in Jensen v. People, 2015 CO 42, __ P.3d __. The Court therefore reversed the trial court’s decision to grant Vigil’s collateral Crim.P. 35(c) motion pursuant to Miller.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.