McCranie v. Gavinski

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Chief Judge Philip A. Brimmer

Civil Action No. 23-cv-03347-PAB-KAS

STEVEN MCCRANIE,

Plaintiff,

v.

MOLLY GAVINSKI,

RENE ACUNA,

KARLA GUTIERREZ, and

JOHN DOE # 1,

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

This matter is before the Court on the Motion to Dismiss Complaint Pursuant to

Fed. R. Civ. P. 12(B)(6) [Docket No. 16] filed by defendants Molly Gavinski (“Officer

Gavinski”), Rene Acuna (“Sergeant Acuna”), and Karla Gutierrez (“Sergeant Gutierrez”)

(collectively, the “defendants”). Plaintiff Steven McCranie filed a response, Docket No.

26, and defendants filed a reply. Docket No. 31. The Court has jurisdiction pursuant to

28 U.S.C. § 1331.

I. BACKGROUND1

On January 12, 2022, Mr. McCranie was incarcerated at the Colorado State

Penitentiary (“CSP”), which is a Level V security correctional institution managed by the

Colorado Department of Corrections (“CDOC”). Docket No. 1 at 1, 3, ¶ 13. CSP

1 The facts below are taken from plaintiff’s complaint, Docket No. 1, and are

presumed to be true for purposes of ruling on defendants’ motion to dismiss. See

Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).

houses some of the most violent and dangerous offenders in the state. Id. at 3, ¶ 13.

Officer Gavinski, Sergeant Acuna, Sergeant Gutierrez, and John Doe # 1 worked at

CSP and were employed by CDOC. Id., ¶¶ 7-10. Sergeant Acuna and Sergeant

Gutierrez supervised Officer Gavinski and John Doe # 1, an employee of CSP. Id. at 3,

13, ¶¶ 10, 102. This action arises from an assault at CSP on January 12, 2022, where

inmate Mark Daniels attacked Mr. McCranie. Id. at 1-2.

CSP has six “pods” for inmate housing. Id. at 4 n.1. Each pod contains up to

eight “day halls” and each day hall contains approximately 15 single-offender cells. Id.

Absent special circumstances, such as a medical appointment, inmates do not exit their

day halls. Id. Generally, CSP policies prohibit an inmate from moving between different

parts of the prison without at least one escort officer accompanying the inmate. Id. at 5,

¶¶ 22-23. CSP houses inmates who are at risk of harm together in designated day halls

for their protection, including inmates with mental disabilities and inmates who have

disassociated from gangs. Id. at 3-4, ¶¶ 14, 16. Inmates and prison staff refer to these

designated day halls as “Soft Pods.” Id. at 3, ¶ 14. The CSP officer in the control room

must confirm that an inmate is authorized to enter the Soft Pod before opening the door.

Id. at 4, ¶ 19.

On January 12, 2022, Mr. McCranie was housed in F-Pod’s Day Hall 5, which

was the designated Soft Pod at CSP. Id. at 7, ¶ 41. Mr. McCranie was housed in the

Soft Pod because he renounced his gang affiliation and received death threats from Mr.

Daniels. Id., ¶¶ 42-43. At the time of the assault, defendants knew that Mr. Daniels

was an active member of the Aryan Syndicate gang, which is a white supremacist gang

with an extensive history of assaulting and murdering other inmates in prison. Id. at 5,

¶¶ 26-27. Defendants knew that Mr. Daniels had a violent history of assaulting other

inmates and prison staff based on information from Mr. Daniels’ inmate file and staff

briefings. Id. at 5-6, ¶¶ 29-33. Mr. Daniels threatened Mr. McCranie and Mr.

McCranie’s friends who were not incarcerated via letters and phone calls. Id. at 6, ¶ 36.

Chelsea Gonzalez, Mr. McCranie’s friend, reported to the CSP warden that Mr. Daniels

threatened her and Mr. McCranie. Id., ¶ 37. Due to the threats, CSP issued a “keep-

separate” order for Mr. McCranie and Mr. Daniels. Id., ¶ 38. Defendants knew about

the keep-separate order and knew that it was issued to protect Mr. McCranie from Mr.

Daniels. Id. at 6, 8, ¶¶ 39-40, 55. Defendants knew that Mr. Daniels posed a significant

safety risk to other inmates at CSP. Id. at 6, ¶ 35. Defendants were aware that Mr.

McCranie was housed in the Soft Pod for his protection. Id. at 2, 14, ¶ 104.

Officer Gavinski had worked at CSP for several years and knew that inmates

would often try to enter areas where they were not allowed. Id. at 8, ¶ 51. Based on

her training and experience, Officer Gavinski knew there were significant safety risks

associated with allowing inmates to enter a day hall where they did not live. Id. Officer

Gavinski knew that Day Hall 5 was the designated Soft Pod and that inmates in that day

hall were particularly vulnerable to attacks and retaliation by other inmates. Id., ¶ 52.

At approximately 1:20 p.m. on January 12, 2022, Officer Gavinski was stationed

in the F-Pod control center where she was responsible for controlling the doors to the

day halls in F-Pod. Id. at 7, ¶¶ 44-45. Inmates and staff could only enter the day halls if

Officer Gavinski opened the door from within the control center. Id., ¶ 45. Sergeant

Acuna was in the control center with Officer Gavinski and was the control center

supervisor. Id. at 8-9, 14, ¶¶ 50, 64, 105. Sergeant Gutierrez was stationed within the

F-Pod outside of Day Hall 5 and Day Hall 6. Id. at 8, ¶ 50. Around 1:20 p.m., defendant

John Doe # 1 escorted Mr. Daniels to his day hall, which was Day Hall 6. Id. at 7, ¶ 46.

John Doe # 1 brought Mr. Daniels to the door of Day Hall 6 but did not ensure that Mr.

Daniels entered Day Hall 6. Id., ¶ 48. Instead, he allowed Mr. Daniels to freely wander

outside of the control room. Id., ¶ 47. Officer Gavinski observed John Doe # 1 leave

Mr. Daniels unattended at the entry to Day Hall 6. Id. at 7, 9, ¶¶ 49, 60. Sergeant

Acuna and Sergeant Gutierrez observed John Doe # 1 walk away before ensuring that

Mr. Daniels entered Day Hall 6 and did not instruct John Doe # 1 to remain with Mr.

Daniels. Id. at 8, 14, ¶¶ 50, 107, 110. Defendants knew that Mr. Daniels was housed in

Day Hall 6, not Day Hall 5. Id. at 8, ¶¶ 53-54.

While standing outside of the control room, Mr. Daniels asked Sergeant Acuna,

“Who was operating the control room?” Id., ¶ 56. Sergeant Acuna instructed Mr.

Daniels to go to the control window to find out. Id. Mr. Daniels walked to the control

room window without an escort and recognized Officer Gavinski inside the control room.

Id., ¶ 57. Officer Gavinski saw Mr. Daniels at the control room window and heard Mr.

Daniels ask her to open Day Hall 5 at least two or three times by stating, “control, give

me day hall 5.” Id. at 9, ¶ 58. When Officer Gavinski heard Mr. Daniels repeatedly ask

for Day Hall 5 to be opened, she recognized that Mr. Daniels was attempting to enter

the wrong day hall. Id., ¶ 59. Despite knowing that Mr. Daniels was not allowed in Day

Hall 5 and that he posed a significant risk to Mr. McCranie, Officer Gavinski opened the

door to Day Hall 5, which allowed Mr. Daniels to enter Day Hall 5. Id., ¶ 61. Officer

Gavinski then said, “oh my god, I screwed up . . . I let the wrong offender into day hall

5.” Id., ¶ 62.

Inside the control room, Sergeant Acuna heard Mr. Daniels ask for Day Hall 5 to

be opened, and she knew that Mr. Daniels was not allowed inside Day Hall 5. Id.,

¶¶ 63, 65. Sergeant Gutierrez was standing “a few feet away” from Mr. Daniels before

he entered Day Hall 5 and knew that he was not allowed in Day Hall 5. Id. at 10, ¶¶ 67-

68.

After Mr. Daniels entered Day Hall 5, Sergeant Gutierrez told Officer Gavinski

and Sergeant Acuna to close the door to Day Hall 5. Id., ¶ 71. Defendants observed

Mr. Daniels scan the room for Mr. McCranie and run aggressively towards Mr.

McCranie. Id., ¶ 73. Mr. Daniels delivered approximately ten punches, kicks, and knee-

strikes to Mr. McCranie’s head and face. Id., ¶ 74. Mr. McCranie did not fight back. Id.

at 11, ¶ 77. During the assault, Sergeant Gutierrez deployed pepper spray on the

inmates through a tray slot to Day Hall 5. Id., ¶ 76. Mr. McCranie suffered significant

injuries from the assault, including bruising, lacerations, neck pain, and back pain. Id.,

¶ 80. CSP released Mr. McCranie from prison approximately one month after the

assault. Id., ¶ 81.

Mr. McCranie asserts two claims in his complaint pursuant to 42 U.S.C. § 1983:

(1) an Eighth Amendment claim against all defendants in their individual capacities for

failing to protect Mr. McCranie from the assault; and (2) an Eighth Amendment claim

against Sergeant Acuna and Sergeant Gutierrez in their individual capacities for failure

to supervise Officer Gavinski and John Doe # 1. Id. at 11-15, ¶¶ 82-113.

II. LEGAL STANDARD

A. Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a complaint must allege enough factual matter that, taken as true, makes

the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671

F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the

facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken

Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534

F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific 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.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting

Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to

accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th

Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or

legal conclusions.”).

“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged – but it has not shown – that

the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations

and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]

claims across the line from conceivable to plausible in order to survive a motion to

dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so

general that they encompass a wide swath of conduct, much of it innocent,” then

plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).

Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still

must contain either direct or inferential allegations respecting all the material elements

necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at

1286 (alterations omitted).

B. Qualified Immunity

“Qualified immunity balances two important interests – the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve

questions of qualified immunity at the earliest possible stage of litigation. Anderson v.

Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified

immunity challenge still does not have a heightened pleading standard. Currier v.

Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified

immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show

(assuming they are true) that the defendants plausibly violated their constitutional

rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.

Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When a

defendant raises the defense of qualified immunity, a “plaintiff carries a two-part burden

to show: (1) that the defendant’s actions violated a federal constitutional or statutory

right, and, if so, (2) that the right was clearly established at the time of the defendant’s

unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal

quotation marks omitted). Courts are “permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case.” Pearson, 555 U.S.

at 236.

A constitutional right is clearly established if “the contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Surat v. Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022). “Ordinarily,

in order for the law to be clearly established, there must be a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Torres v. Madrid, 60 F.4th

596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th Cir.

2022). The relevant precedent is “considered on point if it involves materially similar

conduct or applies with obvious clarity to the conduct at issue.” Yehia, 38 F.4th at 1294

(emphasis in original); see also Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir.

2022). “To be clear, we do not require plaintiffs to engage in a scavenger hunt for a

prior case with identical facts. We ask whether the existing law provides fair warning to

a defendant.” Shepherd, 55 F.4th at 815 (citations omitted). “When the public official’s

conduct is egregious, even a general precedent would apply with obvious clarity.”

Yehia, 38 F.4th at 1294 (quoting Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th Cir.

2017)); see also Surat, 52 F.4th at 1276 (noting that “there can be the rare obvious

case, where the unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances”).

III. ANALYSIS

Defendants move to dismiss all claims against Officer Gavinski, Sergeant Acuna,

and Sergeant Gutierrez pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 16 at 3-14.2

Defendants also assert qualified immunity on all claims. Id. at 14-15.

A. First Claim – Officer Gavinski

Plaintiff’s first claim alleges that Officer Gavinski violated Mr. McCranie’s Eighth

Amendment rights by failing to protect him from the assault. Docket No. 1 at 11-13,

¶¶ 82-100. Specifically, plaintiff alleges that “Defendant Gavinski disregarded a

substantial risk of harm to Mr. McCranie when she allowed Mr. Daniels to enter Day Hall

#5 – without an escort and upon his own request.” Id. at 12, ¶ 86. Officer Gavinski

argues that Mr. McCranie has failed to plead a constitutional violation and she is entitled

to qualified immunity. Docket No. 16 at 3-9, 14-15.

1) Constitutional Violation

A violation of the Eighth Amendment occurs when a prison official is deliberately

indifferent to a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511

U.S. 825, 828 (1994). Although prison officials have a duty to protect inmates from

violence at the hands of other inmates, not every injury resulting from violence between

inmates results in constitutional liability. Id. at 833-34. An inmate asserting an Eighth

2 Defendants do not move on behalf of the unnamed defendant John Doe # 1 to

dismiss the first claim against him. Accordingly, the Court declines to evaluate that

portion of claim one.

Amendment claim must demonstrate that (1) objectively, the harm he complains of is

sufficiently “serious” to merit constitutional protection and (2) defendants were

subjectively aware of a substantial risk to plaintiff’s health or safety and acted in

purposeful disregard of that risk. Id. at 834, 847; Martinez v. Beggs, 563 F.3d 1082,

1088-89 (10th Cir. 2009); Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018).

To satisfy the objective component of the standard, an inmate “must show that

he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer,

511 U.S. at 834. A prison official’s “act or omission must result in the denial of ‘the

minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452

U.S. 337, 347 (1981)). To satisfy the subjective component of the standard, the inmate

must show both that the prison official was “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists” and that the prison official

did in fact “draw the inference.” Id. at 837. A prisoner must establish “that the

defendants knew he faced a substantial risk of harm and disregarded that risk, by failing

to take reasonable measures to abate it.” Martinez, 563 F.3d at 1089 (citation omitted).

“[D]eliberate indifference entails something more than mere negligence,” but “less than

acts or omissions for the very purpose of causing harm or with knowledge that harm will

result.” Farmer, 511 U.S. at 835 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“[W]hether a prison official had the requisite knowledge of a substantial risk is a

question of fact subject to demonstration in the usual ways, including inference from

circumstantial evidence.” Durkee v. Minor, 841 F.3d 872, 876 (10th Cir. 2016) (quoting

Farmer, 511 U.S. at 842).

Defendants argue that plaintiff has failed to adequately plead the subjective

prong of the failure to protect claim because the allegations in the complaint

characterize Officer Gavinski’s actions as “accidental.” Docket No. 16 at 3-9.3

Defendants assert that plaintiff does not allege that Officer Gavinski opened the door to

Day Hall 5 with any intent of exposing Mr. McCranie to an assault because the

complaint states that, “[c]ontemporaneous with opening the door for Mr. Daniels,

Defendant Gavinski said ‘oh my god, I screwed up . . . I let the wrong offender into day

hall 5.’” Id. at 5 (quoting Docket No. 1 at 9, 12, ¶¶ 62, 87). Defendants contend that Mr.

McCranie explicitly describes Officer Gavinski’s action as an “error.” Id. (quoting Docket

No. 1 at 12, ¶ 87). Defendants argue that the Tenth Circuit has repeatedly held that an

“accident” or “mistake” does not constitute deliberate indifference under the Eighth

Amendment. Id. at 8 (citing Farmer, 511 U.S. at 840; Estelle, 429 U.S. at 105;

McLemore v. Darr, 736 F. App’x 753, 756 (10th Cir. 2018) (unpublished)). Defendants

contend that the Tenth Circuit’s ruling in McLemore is “nearly identical” to the

circumstances in this case. Id. at 8-9.

Mr. McCranie responds that defendants’ argument ignores numerous relevant

allegations in the complaint and mischaracterizes Officer Gavinski’s contemporaneous

admission of wrongdoing. Docket No. 26 at 9. Mr. McCranie argues that the complaint

plausibly alleges that Officer Gavinski knew that Mr. McCranie was housed in the Soft

Pod for his protection and that there was a keep-separate order between Mr. Daniels

and Mr. McCranie, id. at 10, and that Officer Gavinski opened the door to Day Hall 5

3 Defendants do not challenge whether plaintiff has adequately pled the objective

prong of his first claim against Officer Gavinski. Accordingly, the Court assumes that

Mr. McCranie has plausibly alleged this element.

despite knowing that Mr. Daniels did not live there. Id. Plaintiff contends that Officer

Gavinski’s statement that she “screwed up” is plausibly read as an admission to being

deliberately indifferent. Id. at 9-10.

The Court finds that Mr. McCranie has plausibly alleged that Officer Gavinski was

subjectively aware of and disregarded a substantial risk to plaintiff’s safety. Officer

Gavinski knew that Mr. Daniels was an active member of the Aryan Syndicate gang,

had a violent history of assaulting other inmates, and posed a significant safety risk to

inmates at CSP. Docket No. 1 at 5-6, ¶¶ 26, 29-33, 35. Officer Gavinski was aware

that CSP issued a keep-separate order for Mr. McCranie and Mr. Daniels in order to

protect Mr. McCranie. Id. at 6, 8, ¶¶ 38-40, 55. Officer Gavinski knew that Mr.

McCranie was housed in Day Hall 5, the Soft Pod, for his protection and that inmates in

the Soft Pod were particularly vulnerable to attacks by other inmates. Id. at 2, 7-8,

¶¶ 41, 52. Officer Gavinski understood that Mr. Daniels was housed in Day Hall 6, not

Day Hall 5. Id. at 8, ¶¶ 53-54. On January 12, 2022, Officer Gavinski was stationed in

the F-Pod control center with the responsibility of controlling the doors to the day halls.

Id. at 7, ¶¶ 44-45. Inmates and staff could only enter the day halls if Officer Gavinski

opened the door from within the control center. Id., ¶ 45. Officer Gavinski observed Mr.

Daniels at the control room window and heard Mr. Daniels ask her to open Day Hall 5 at

least two or three times. Id. at 9, ¶ 58. When Officer Gavinski heard Mr. Daniels

repeatedly ask for Day Hall 5, she recognized that Mr. Daniels was attempting to enter

the wrong day hall. Id., ¶ 59. Despite knowing that Mr. Daniels was not allowed in Day

Hall 5 and that he posed a significant risk to Mr. McCranie, Officer Gavinski opened the

door to Day Hall 5, which allowed Mr. Daniels to enter Day Hall 5. Id., ¶ 61. The Court

finds that these allegations are sufficient to plead that Officer Gavinski knew that Mr.

McCranie “faced a substantial risk of harm and disregarded that risk, by failing to take

reasonable measures to abate it.” See Martinez, 563 F.3d at 1089; see also Harter v.

Chafee Cnty., No. 22-cv-01759-STV, 2023 WL 8622736, at *7 (D. Colo. Dec. 13, 2023)

(finding that an officer’s “decision to open Plaintiff’s door despite knowing that Plaintiff

was in administrative protection and was at risk from other inmates, one of whom was

lurking outside the cell, constitutes deliberate indifference”).

Defendants are correct that accidental conduct is insufficient to establish the

subjective element of a deliberate indifference claim. See McLemore, 736 F. App’x at

756 (“accidental conduct does not show deliberate indifference”); see also Burke v.

Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (noting that a medical professional’s

“accidental or inadvertent failure to provide adequate medical care” does not constitute

an Eighth Amendment violation (citation omitted)). However, the Court finds that the

complaint’s allegation that Officer Gavinski said “oh my god, I screwed up . . . I let the

wrong offender into day hall 5,” see Docket No. 1 at 9, ¶ 62, is not so plainly

inconsistent with the allegations that Officer Gavinski “recognized that Mr. Daniels was

attempting to enter the wrong day hall” and “[d]espite knowing that Mr. Daniels was not

allowed in Day Hall #5 and that he posed a significant risk to Mr. McCranie, Defendant

Gavinski opened the door,” id., ¶¶ 59, 61, that paragraphs 59 and 61 should be ignored.

See Schapker v. Waddell & Reed Fin., Inc., 2018 WL 1033277, at *10 (D. Kan. Feb. 22,

2018) (“although the court is mindful of the potentially contradictory allegations, on a

motion to dismiss under Rule 12(b)(6), the Court must accept Plaintiff’s well-pled

allegations as true”).4 Accordingly, the Court finds that Mr. McCranie has plausibly pled

his Eighth Amendment claim against Officer Gavinski.5

2) Clearly Established Law

The Court next considers whether the right was clearly established as of January

12, 2022. Defendants argue that they have found no Supreme Court or Tenth Circuit

authority establishing that the “accidental admittance of a potentially dangerous inmate

4 Some courts have found that where a plaintiff’s “own pleadings are internally

inconsistent, a court is neither obligated to reconcile nor accept the contradictory

allegations in the pleadings as true in deciding a motion to dismiss.” Pierce v. Fordham

Univ., Inc., 2016 WL 3093994, at *2 n.1 (S.D.N.Y. June 1, 2016), aff’d, 692 F. App’x 644

(2d Cir. 2017) (unpublished) (citations omitted); see also Jacoby v. Cable News

Network, Inc., 537 F. Supp. 3d 1303, 1313 n.5 (M.D. Fla. 2021), aff’d, 2021 WL

5858569 (11th Cir. Dec. 10, 2021) (“When the facts as plaintiff alleges are so

contradictory that doubt is cast upon their plausibility, the court may dismiss the claim.”

(citation, internal quotations, and alterations omitted)); Oliver v. Meow Wolf, Inc., 2020

WL 6939875, at *13 (D.N.M. Nov. 25, 2020) (finding that an “allegation [was] simply not

plausible in light of the more specific factual allegations that directly contradict it”).

Here, the Court finds that the allegations in the complaint are not so contradictory that

the Court should disregard paragraphs 59 and 61.

5 The Court finds that defendants’ cited case McLemore, involving an inmate-on-

inmate attack during medication distribution in a prison housing pod, is distinguishable.

See McLemore, 736 F. App’x at 754. In that case, it was undisputed at the summary

judgment stage that the prison guards used the following policy for distributing

medication: 1) an officer would remotely unlock each inmate’s cell door one at a time

for each inmate to retrieve medicine from the nurse; 2) the inmate would return to his

cell; and 3) once the inmate’s cell door was closed, as indicated by a light on the

officer’s desk, the officer would unlock the next inmate’s door. Id. It was undisputed

that, when plaintiff left his cell to get his medication, plaintiff’s cell door locked behind

him. Id. When plaintiff returned to his cell, the desk light indicated that his cell door was

locked, even though plaintiff was not inside his cell. Id. As a result, the officer then

opened another inmate’s door and that inmate attacked the plaintiff. Id. The Tenth

Circuit affirmed the district court’s grant of summary judgment to the officer on the

Eighth Amendment failure to protect claim because plaintiff “provided no evidence” that

the officer’s action of opening the other inmate’s door before plaintiff entered his cell

was “anything but accidental.” Id. at 755-56. This case is at the motion to dismiss

stage, not the summary judgment stage. Mr. McCranie’s well-pled allegations about

Officer Gavinski’s knowledge are sufficient to allege the subjective component of the

deliberate indifference standard at the pleading stage.

into the wrong unit” violates clearly established law. Docket No. 16 at 15. Mr. McCranie

cites Durkee in support of his argument that Officer Gavinski violated his clearly

established rights under the Eighth Amendment. Docket No. 26 at 12-14. Mr.

McCranie argues that Durkee clearly establishes that when a substantial risk of an

inmate attack is “well-documented and expressly noted by prison officials prior to the

attack in question,” and when the defendant is informed of the risk of allowing an inmate

into an area where the inmate could commit an assault, such facts are sufficient to

overcome qualified immunity. Id. at 12-13 (citing Durkee, 841 F.3d at 874-77).6

In Durkee, the Tenth Circuit denied qualified immunity to an officer, at the

summary judgment stage, for an inmate’s Eighth Amendment failure to protect claim

involving an inmate-on-inmate assault. Durkee, 841 F.3d at 874-76. In Durkee, the

inmate Ramos had a history of “aggressive behavior at the jail” and threatened the

plaintiff. Id. at 874. After plaintiff reported Ramos’ threats, a deputy issued an incident

report stating that plaintiff and Ramos could not attend any programs together or be in

the same hallways or booking areas. Id. Despite having notice of the incident report,

the defendant officer unshackled Ramos in the booking area of the jail when plaintiff

was in the nearby visitation room, which was visible to the booking area. Id. at 874-75.

Ramos took one or two steps towards the housing pod door, but then ran into the

unlocked visitation room and assaulted plaintiff. Id. at 875. The Tenth Circuit found that

where the facts as found by the district court show—as they do here—that a

substantial risk of an inmate attack against Plaintiff was well-documented and

6 In their reply, defendants argue that Durkee cannot provide clearly established

law because that case was decided at the summary judgment stage, not the motion to

dismiss stage. Docket No. 31 at 7-8. Defendants provide no legal authority in support

of their proposition that clearly established law for qualified immunity must originate

from a case at the same procedural posture. The Court rejects this argument.

expressly noted by prison officials prior to the attack in question, and those facts

further show—as they do here—that [defendant] was informed of and

acknowledged the risk and was accompanying Ramos in an area where Ramos

and Plaintiff were visible to each other, such facts are sufficient to permit a jury to

find [defendant] had actual knowledge of the risk and disregarded it.

Id. at 875-76. With respect to the clearly established prong, the Tenth Circuit “easily

conclude[d]” that “a reasonable officer cognizant of Plaintiff’s presence in the unsecured

visitation room would have understood that unshackling Ramos in the booking area

posed a substantial risk of harm to Plaintiff in violation of the Eighth Amendment.” Id. at

876 n.2.

Similarly, here, Officer Gavinski knew that Mr. Daniels had a violent history of

assaulting other inmates and that CSP issued a keep-separate order for Mr. McCranie

and Mr. Daniels to protect plaintiff. Docket No. 1 at 5-6, ¶¶ 29-33, 38-40. Despite

knowing that Mr. Daniels was not allowed in Day Hall 5 and that he posed a significant

risk to Mr. McCranie, Officer Gavinski opened the door to Day Hall 5 and allowed Mr.

Daniels to enter the hall where Mr. McCranie was located. Id. at 7, 9, ¶¶ 41, 61. Based

on Durkee, a reasonable officer should have understood that opening the door to the

Soft Pod for Mr. Daniels when Mr. McCranie was in the Soft Pod posed a substantial

risk of harm to plaintiff. See Durkee, 841 F.3d at 875-76 & n.2; see also Harter, 2023

WL 8622736, at *8 (concluding that, based on Durkee, any reasonable officer would

have understood that opening plaintiff’s door in the administrative protection pod when

another inmate was “lurking outside the cell” would violate plaintiff’s constitutional

rights). As a result, the Court finds that Officer Gavinski is not entitled to qualified

immunity at this stage for the first claim. The Court therefore denies this portion of

defendants’ motion.

B. First Claim – Sergeant Acuna and Sergeant Gutierrez

Plaintiff’s first claim also alleges that Sergeant Acuna and Sergeant Gutierrez

violated Mr. McCranie’s Eighth Amendment rights by failing to protect him from the

assault. Docket No. 1 at 11-13, ¶¶ 82-100. The complaint alleges that “Defendants

Acuna and Gutierrez disregarded a substantial risk of harm to Mr. McCranie when they

failed to stop Defendant Gavinski from opening Day Hall #5 for Mr. Daniels and failed to

prevent Mr. Daniels from entering Day Hall #5.” Id. at 12, ¶ 88. The complaint further

alleges that the sergeants “disregarded a substantial risk of harm to Mr. McCranie when

they failed to ensure that Mr. Daniels had a security escort at all times.” Id., ¶ 90.

Sergeant Acuna and Sergeant Gutierrez argue that Mr. McCranie has failed to plead a

constitutional violation and they are entitled to qualified immunity. Docket No. 16 at 9-

11, 14-15.

1) Constitutional Violation

Defendants argue that plaintiff has failed to plead the subjective prong of the

failure to protect claim against Sergeant Acuna and Sergeant Gutierrez. Id. at 9-11.7

Defendants assert that the complaint contains no allegations suggesting that Sergeant

Acuna and Sergeant Gutierrez knew that Officer Gavinski was going to open the door to

allow Mr. Daniels into Day Hall 5. Id. at 11. Defendants argue that, under the

circumstances alleged in the complaint, “while Plaintiff was in Day Hall 5 with the door

closed, there was no substantial risk of harm from which Plaintiff needed protection.”

Docket No. 31 at 5. Without any knowledge that Officer Gavinski was going to admit

7 Defendants do not challenge whether plaintiff has adequately alleged the

objective prong of his first claim against Sergeant Acuna and Sergeant Gutierrez.

Accordingly, the Court assumes that Mr. McCranie has plausibly alleged this element.

the wrong offender into Day Hall 5, defendants argue that Sergeant Acuna and

Sergeant Gutierrez could not have had the subjective state of mind to violate plaintiff’s

Eighth Amendment rights. Docket No. 16 at 10.

Mr. McCranie responds that the complaint adequately alleges that Sergeant

Acuna and Sergeant Gutierrez were aware of numerous facts demonstrating that there

was a substantial risk to Mr. McCranie’s safety. Docket No. 26 at 10-11. Plaintiff

argues that both sergeants knew that Mr. Daniels lived in Day Hall 6 and that he had a

keep-separate order with Mr. McCranie. Id. Mr. McCranie asserts that neither sergeant

took any steps to ensure that Mr. Daniels was properly escorted. Id. at 11.

Furthermore, Sergeant Acuna was in the control room and heard Mr. Daniels ask for

Day Hall 5 to be opened. Id.

The Court finds that Mr. McCranie has failed to plausibly allege that Sergeant

Acuna and Sergeant Gutierrez knew that Mr. McCranie “faced a substantial risk of harm

and disregarded that risk, by failing to take reasonable measures to abate it.” See

Martinez, 563 F.3d at 1089. Although both sergeants observed that Mr. Daniels was

unescorted outside of Day Hall 6, see Docket No. 1 at 14, ¶¶ 107, 110, the complaint

does not allege that the sergeants knew of or disregarded a substantial risk of harm to

Mr. McCranie by failing to ensure that Mr. Daniels had a security escort. When Mr.

Daniels was wandering outside of the control room unescorted, Mr. McCranie was

inside Day Hall 5. Id. at 7, 10, ¶¶ 41, 47, 73. Inmates could only enter the day halls if

Officer Gavinski opened the door from within the control center. Id. at 7, ¶ 45. Because

Mr. McCranie alleges that he was behind a locked door to Day Hall 5, the complaint

does not plausibly allege that the sergeants knew that Mr. McCranie faced any risk of

harm when Mr. Daniels was merely wandering outside of the control room unattended.

The Court agrees with defendants that there are no allegations in the complaint

suggesting that Sergeant Acuna or Sergeant Gutierrez knew that Officer Gavinski would

open the door to Day Hall 5 for Mr. Daniels. The well-pled allegations of the complaint

state that the sergeants knew that Mr. Daniels was housed in Day Hall 6, Mr. McCranie

was housed in Day Hall 5, and that there was a keep-separate order between the

inmates for Mr. McCranie’s protection. Id. at 6, 8, 14, ¶¶ 38-40, 53-54, 104. Sergeant

Acuna heard Mr. Daniels ask Officer Gavinski to open Day Hall 5 and Sergeant

Gutierrez was standing “a few feet away” from Mr. Daniels. Id. at 9-10, ¶¶ 63, 65, 67.

However, there are no allegations suggesting that the sergeants knew that Officer

Gavinski would open the door to Day Hall 5 when Mr. Daniels requested entry to the

wrong day hall. Rather, the complaint alleges that Officer Gavinski had worked at CSP

for several years and that the control room officer must confirm that an inmate is

authorized to enter the Soft Pod before opening the door to the Soft Pod. Id. at 4, 8,

¶¶ 19, 51. There are no allegations suggesting that either sergeant was aware that

Officer Gavinski would deviate from this policy and admit the wrong inmate into Day Hall

5. Without any allegations suggesting that Sergeant Acuna or Sergeant Gutierrez knew

that Officer Gavinski would unlock the door to Day Hall 5, plaintiff has failed to allege

that Sergeant Acuna and Sergeant Gutierrez were subjectively aware of a substantial

risk to plaintiff’s safety and acted in purposeful disregard of that risk. See Farmer, 511

U.S. at 834, 847; Martinez, 563 F.3d at 1089.8 Accordingly, the Court finds that Mr.

McCranie has failed to state an Eighth Amendment failure to protect claim against

Sergeant Acuna and Sergeant Gutierrez.

2) Clearly Established Law

Even if Mr. McCranie had plausibly alleged an Eighth Amendment violation

against the sergeants, the Court finds that Mr. McCranie has failed to satisfy the second

prong of the qualified immunity analysis. Mr. McCranie cites Durkee in support of his

argument that Sergeant Acuna and Sergeant Gutierrez violated clearly established law.

Docket No. 26 at 12-14. Plaintiff’s theory in this case is that Sergeant Acuna and

Sergeant Gutierrez disregarded a substantial risk of harm to Mr. McCranie “when they

failed to ensure that Mr. Daniels had a security escort at all times” and “when they failed

to stop Defendant Gavinski from opening Day Hall #5 for Mr. Daniels.” See Docket No.

1 at 12, ¶¶ 88, 90. However, Durkee did not involve an officer’s failure to ensure that an

inmate had a security escort. See Durkee, 841 F.3d at 874-75 (discussing how the

defendant officer was escorting and “accompanying” inmate Ramos immediately before

the assault occurred). Therefore, Durkee does not clearly establish that a sergeant

violates the Eighth Amendment by failing to ensure that an inmate has “a security escort

8 In his response, Mr. McCranie does not argue that the sergeants were

deliberately indifferent by failing to stop Mr. Daniels from entering Day Hall 5 in the

moments after Officer Gavinski opened the door. See Docket No. 26 at 10-11. Even if

Mr. McCranie had raised this argument, the Court would reject it because the complaint

contains no allegations indicating how fast Mr. Daniels ran into Day Hall 5 or whether

Sergeant Acuna or Sergeant Gutierrez had any realistic opportunity to stop Mr. Daniels

from entering Day Hall 5. See Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (“In

order to be liable for failure to intervene, the officers must have observed or had reason

to know of a constitutional violation and have had a realistic opportunity to intervene.”

(internal alterations, quotations, and citation omitted)).

at all times.” See Docket No. 1 at 12, ¶ 90. Moreover, Durkee involved an officer’s

affirmative action of “unshackling” Ramos, who had threatened plaintiff, in an unlocked

area where Ramos and plaintiff were visible to each other, thereby allowing Ramos to

access plaintiff. Durkee, 841 F.3d at 875-76 & n.2. In Durkee, there were no other

officers present at the scene who allegedly failed to prevent the defendant officer from

unshackling Ramos. See id. Therefore, Durkee would not put every reasonable officer

on notice that the failure to stop another officer from unpredictably unlocking the

protective custody pod door for an inmate who does not live in that pod would constitute

deliberate indifference. Accordingly, the Court finds that Durkee does not provide

clearly established law for Sergeant Acuna and Sergeant Gutierrez’s alleged conduct.

Mr. McCranie also appears to argue that Farmer constitutes clearly established

law because this Court previously held in another failure to protect case that Farmer

applied with obvious clarity. See Docket No. 26 at 14 n.1 (citing Wilson v. Pauls, No.

20-cv-00609-PAB-SKC, 2023 WL 2574375, at *6 (D. Colo. Mar. 20, 2023)). In Wilson,

the Court found that there was a genuine dispute of material fact at the summary

judgment stage as to whether the defendant officer actually witnessed an attack where

one inmate stabbed another inmate approximately sixty times with a shank. Wilson,

2023 WL 2574375, at *1, 5. Construing the evidence in plaintiff’s favor, the Court found

that “a jury could find that defendant saw the attack occurring nearly four minutes before

he called the emergency alert.” Id. at *6. The Court explained that “Farmer does not, in

all cases, settle every question with respect to prison officials who fail to prevent an

assault.” Id. (citing Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050-51 (9th Cir.

2002) (holding that it is not always sufficient, for purposes of the second prong of the

qualified immunity analysis, “that Farmer clearly states the general rule that prison

officials cannot deliberately disregard a substantial risk of serious harm to an inmate”)).

However, the Court found that, under Farmer and other Tenth Circuit cases, “any

reasonable guard in defendant’s position would have known that the failure to take any

action for four minutes while witnessing an inmate repeatedly stab another inmate with

a shank violates the Eighth Amendment.” Id. The Court concluded that the conduct in

Wilson was so “egregious” that Farmer would apply with “obvious clarity.” Id. (citing

Yehia, 38 F.4th at 1294).9 While Wilson was a rare obvious case, the Court finds that

the alleged conduct of Sergeant Acuna and Sergeant Gutierrez is not so “egregious”

that the general precedent in Farmer would apply with “obvious clarity.” See Yehia, 38

F.4th at 1294; see also Surat, 52 F.4th at 1276 (noting that “there can be the rare

obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear even

though existing precedent does not address similar circumstances”).

Mr. McCranie does not identify any other authority from the Supreme Court or the

Tenth Circuit demonstrating that the law was clearly established. See Crane v. Utah

Dep’t of Corr., 15 F.4th 1296, 1303 (10th Cir. 2021) (noting that “plaintiff bears the

burden of citing to [the court] what he thinks constitutes clearly established law” (citation

omitted)); Est. of Melvin by & through Melvin v. City of Colo. Springs, Colo., 2023 WL

8539921, at *6 (10th Cir. Dec. 11, 2023) (granting qualified immunity to the officers

because the plaintiff “failed to meet its burden to show the constitutional right at issue

9 In Wilson, the Court also found that the “the clear weight of authority from other

circuits” supported the denial of qualified immunity. Wilson, 2023 WL 2574375, at *6

(collecting cases from the Third, Fourth, Seventh, Eighth, and Eleventh Circuits holding

that an officer who witnesses an inmate-on-inmate assault but takes no action to

intervene violates the Eighth Amendment).

was clearly established”). Accordingly, the Court finds that Sergeant Acuna and

Sergeant Gutierrez are entitled to qualified immunity on plaintiff’s first claim. The Court

grants this portion of defendants’ motion and dismisses the first claim against Sergeant

Acuna and Sergeant Gutierrez with prejudice.

C. Second Claim – Sergeant Acuna and Sergeant Gutierrez

Plaintiff’s second claim alleges that Sergeant Acuna and Sergeant Gutierrez

violated Mr. McCranie’s Eighth Amendment rights by failing to supervise Officer

Gavinski and John Doe # 1. Docket No. 1 at 13-15, ¶¶ 101-113. Plaintiff asserts that

the sergeants failed to supervise John Doe # 1 “when they failed to order the escort to

remain with Mr. Daniels until Mr. Daniels was secured in his housing pod” and the

sergeants failed to supervise Officer Gavinski “when they failed to stop her from

opening the door to Day Hall #5 in response to Mr. Daniels’ repeated requests.” Docket

No. 26 at 12. Sergeant Acuna and Sergeant Gutierrez argue that Mr. McCranie has

failed to plead a constitutional violation and they are entitled to qualified immunity.

Docket No. 16 at 11-15.

Section 1983 does not “authorize liability under a theory of respondeat superior.”

Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018) (quoting Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013)). Thus, it is “not

enough” that Sergeant Acuna and Sergeant Gutierrez “acted in a supervisory role”

when the other officers allegedly violated Mr. McCranie’s constitutional rights. See

Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016). To establish liability, Mr.

McCranie must show an “affirmative link” between the sergeants and the constitutional

violation, id. (quoting Schneider, 717 F.3d at 767), which requires “more than a

supervisor’s mere knowledge of his subordinate’s conduct.” Schneider, 717 F.3d at 767

(citation and internal quotations omitted). To state a § 1983 claim against a defendant

based on her supervisory responsibilities, a plaintiff must establish the following three

elements: (1) personal involvement; (2) causation; and (3) state of mind. Id.; see also

Keith, 843 F.3d at 838; Perry, 892 F.3d at 1121.

In its discretion, the Court will address the second prong of the qualified immunity

analysis first. See Pearson, 555 U.S. at 236; Janny v. Harford, No. 17-cv-00050-PAB-

SKC, 2019 WL 4751761, at *4 (D. Colo. Sept. 30, 2019). Mr. McCranie argues that the

sergeants violated Mr. McCranie’s clearly established Eighth Amendment rights by

failing to enforce CSP’s policy requiring inmates to be escorted at all times outside of

their housing pod, the policy prohibiting inmates from entering unauthorized areas of the

prison, and the policy related to keep-separate orders. Docket No. 26 at 14. In support

of his argument, Mr. McCranie cites Goka v. Bobbitt, 862 F.2d 646, 651-52 (7th Cir.

1988). Id. In Goka, a case involving an inmate who assaulted another inmate with a

broom handle that he kept in his cell, the Seventh Circuit reversed the district court’s

dismissal of an Eighth Amendment deliberate indifference claim, finding that there were

genuine disputes of material fact as to whether the officers failed to enforce a tool

control policy at the prison, which required prison staff to lock all tools in a storage chest

at the end of the day. Goka, 862 F.2d at 648, 651-52.

However, Mr. McCranie’s citation to Goka, a Seventh Circuit case, does not

identify clearly established law because it is not a Supreme Court or a published Tenth

Circuit decision. See Bledsoe v. Carreno, 53 F.4th 589, 607 (10th Cir. 2022) (“To

demonstrate that a right is clearly established, a plaintiff must identify an on-point

Supreme Court or published Tenth Circuit decision, or show that the clearly established

weight of authority from other courts has found the law to be as the plaintiff maintains.”

(internal quotations and citation omitted)); Swanson v. Griffin, 2022 WL 570079, at *3

(10th Cir. Feb. 25, 2022) (discussing how “a plaintiff’s identification of a single out-of-

circuit case is not sufficient to satisfy the weight of authority approach” for

demonstrating that the law is clearly established). Mr. McCranie cites no other cases in

support of his argument that Sergeant Acuna and Sergeant Gutierrez violated plaintiff’s

clearly established constitutional rights by failing to supervise Officer Gavinski and John

Doe # 1. Because Mr. McCranie has failed to satisfy his burden of providing clearly

established law, the Court finds that Sergeant Acuna and Sergeant Gutierrez are

entitled to qualified immunity on the second claim. See Crane, 15 F.4th at 1303; Flores

v. Henderson, 101 F.4th 1185, 1193 (10th Cir. 2024) (noting that a “court must grant the

defendant qualified immunity if the plaintiff fails to prove either prong” (citation omitted)).

The Court therefore grants this portion of defendants’ motion and dismisses the second

claim with prejudice.

IV. CONCLUSION

It is therefore

ORDERED that the Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P.

12(B)(6) [Docket No. 16] is GRANTED in part and DENIED in part. It is

ORDERED that plaintiff’s first claim is DISMISSED with prejudice against

defendants Rene Acuna and Karla Gutierrez. It is further

ORDERED that plaintiff’s second claim is DISMISSED with prejudice. It is

further

ORDERED that defendants Rene Acuna and Karla Gutierrez are dismissed from

this case.

DATED September 24, 2024.

BY THE COURT:

____________________________

PHILIP A. BRIMMER

Chief United States District Judge