Andrade v. Board of County Commissioners

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 3, 2021

_________________________________

Christopher M. Wolpert

Clerk of Court

DARLENE ANDRADE; CHRISTINA

CANDELARIA; CYNTHIA RAMONA

CHAVEZ; MONICA RENEE CHAVEZ;

NAOMI GRIEGO; KIMBERLY

SCHREPFER,

Plaintiffs - Appellants,

v. No. 20-2120

(D.C. No. 1:19-CV-01144-KWR-SMV)

BOARD OF COUNTY (D. N.M.)

COMMISSIONERS OF THE COUNTY

OF BERNALILLO; SERGEANT JASON

ROLSTON, in his individual capacity;

SERGEANT JAMES BRANDON, in his

individual capacity,

Defendants - Appellees.

_________________________________

ORDER AND JUDGMENT *

_________________________________

Before HARTZ, BALDOCK, and KELLY, Circuit Judges.

_________________________________

At the times relevant to this case, the plaintiffs were pretrial detainees in the

Bernalillo County Metropolitan Detention Center (MDC). They filed this 42 U.S.C.

*

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument. This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata, and collateral estoppel. It

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

§ 1983 excessive-force case, complaining that corrections officers pepper sprayed them

when they were assisting a fellow detainee who was having a seizure. The district court

entered summary judgment in favor of the defendants, prompting this appeal. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND 1

On March 20, 2017, “around 30 to 34” detainees, including the plaintiffs, were

together in a “rec yard” as MDC staff searched their cells for lost keys. Aplt. App. at 84,

127. Corrections officers were not present in the yard.

Cynthia Chavez, who was known by other detainees to have a seizure disorder,

was standing alone in the yard when she suddenly lowered herself to the floor into a

squatting position, placed a towel over her head, and began rocking back and forth.

Cynthia’s cellmate, Kimberly Schrepfer, recognized those movements as pre-seizure

behavior and ran over to her, “crouch[ing] down behind her and tr[ying] to hug her.”

Id. at 81.

“[Cynthia] flew into a seizure and knocked [Schrepfer]” backward. Id. As

Cynthia violently convulsed, Schrepfer told the other detainees, “Somebody, have them

call a code. She’s having a seizure.” Id. Two detainees rushed out the rec yard doors

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We recount the background facts as indisputably indicated by the silent video

footage of the incident and the parties’ undisputed deposition testimony. See Scott v.

Harris, 550 U.S. 372, 379-80 (2007) (holding that “[a]t the summary judgment stage,

facts must be viewed in the light most favorable to the nonmoving party only if there

is a ‘genuine’ dispute as to those facts, and that where a video depicts facts in such a

clear manner that “no reasonable jury” could have believed “a different story,” then

the court must “view[ ] the facts in the light depicted by the videotape”).

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and into the adjacent cellpod to get help. Other detainees moved toward Schrepfer and

Cynthia. Darlene Andrade and Christina Candelaria grabbed Cynthia’s legs while

Schrepfer held Cynthia’s head and neck. Candelaria heard at least one of the detainees

who had rushed out to get help, yell “She’s having a seizure. She’s having a seizure.”

Id. at 127 (internal quotation marks omitted).

Sergeants Jason Rolston and James Brandon were searching a cell when they

heard a female voice call out, “fight.” Id. at 86, 89. They ran into the rec yard with

another corrections officer. Sergeant Brandon “saw [Cynthia] sitting down” while

“[an]other inmate . . . had her arm around [Cynthia’s] head/neck area” and “[a] third

inmate was holding her legs down.” Id. at 86. He saw Cynthia “flailing back and forth

like she was punching” as “[s]everal other inmates within the rec yard . . . rush[ed]

toward th[e] area.” Id. Sergeant Rolston thought Cynthia was being “chok[ed] . . . out”

by one detainee while another detainee was “holding [Cynthia] down” by her feet and

other detainees were “moving towards her . . . to fight also.” Id. at 88, 89.

According to Schrepfer, the officers yelled, “leave her alone.” Id. at 81. Before

Schrepfer could respond, Sergeants Rolston and Brandon drew their MK-9 foggers and

sprayed the group of detainees for two to three seconds, causing all but Schrepfer to

retreat from Cynthia. 2 As Sergeant Brandon prepared to discharge his MK-9 again,

2

The plaintiffs testified variously about whether the officers said anything

before spraying them. Schrepfer’s recollection confirmed the officers’ account that

they warned the detainees before discharging their MK-9s. Monica Chavez testified

the officers said “Get off her” either “while they were spraying or right before they

sprayed.” Aplt. App. at 142 (internal quotation marks omitted). Candelaria testified

she did not recall the officers saying anything beforehand. Andrade testified that

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warning, “Get off of her, let her go,” a detainee spoke up, “we’re not fighting, she’s

having a seizure.” Id. at 86 (internal quotation marks omitted).

Other officers arrived and “yanked [Schrepfer] up,” causing Cynthia’s “head [to]

hit the concrete.” Id. at 82. Cynthia “took a big breath” and “went into another seizure.”

Id. Medical personnel responded and rendered aid.

Schrepfer “believe[d] [MDC staff] [had] called a code for [a] fight” because

“[t]hey said that we were jumping [Cynthia].” Id. Andrade was more specific, testifying

that “[corrections officer] Esther called the wrong code saying that we were fighting, so

that’s when the sergeants came out and fogged us.” Id. at 116.

MDC subsequently conducted an internal investigation of the incident. In addition

to finding that the incident initially appeared to be a fight with Cynthia “in danger of

bodily harm,” the investigation uncovered that other corrections officers had “heard an

inmate yell ‘fight’ and none of them heard the word seizure until after the [pepper spray]

had been deployed.” Id. at 162. But the investigation also found that Sergeant Rolston

told detainee Naomi Griego, “shut the fuck up or I’ll mace you too,” when she

subsequently protested the officers’ use of pepper spray. Id. at 163 (internal quotation

marks omitted).

This lawsuit followed. Cynthia, Schrepfer, Griego, Chavez, Candelaria, and

Andrade sued Sergeants Rolston and Brandon and the Board of Bernalillo County

“when [the officers] were spraying us, they told us to let go of her. And we said,

‘We are not going to let go of her[.]’” Id. at 84. These varying accounts reinforce

the rapid and chaotic nature of the incident.

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Commissioners in state court. They pled a Fourteenth Amendment excessive-force claim

and multiple claims under New Mexico law. The defendants removed the case to federal

district court and sought summary judgment.

The district court granted summary judgment, ruling that Sergeants Rolston and

Brandon were entitled to qualified immunity, and that the Board was not liable without

an underlying constitutional violation. The district court declined to exercise

supplemental jurisdiction over the state law claims and remanded them to state court.

DISCUSSION

I. Summary Judgment Standards

We review the district court’s grant of summary judgment de novo. Lance v.

Morris, 985 F.3d 787, 793 (10th Cir. 2021). “Summary judgment is required when the

movant shows that there is no genuine dispute as to any material fact and that the movant

is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).

Where, as here, the defendants have asserted a qualified-immunity defense, the plaintiffs

must show “(1) that the official violated a statutory or constitutional right, and (2) that the

right was clearly established at the time of the challenged conduct.” A.M. v. Holmes,

830 F.3d 1123, 1134 (10th Cir. 2016) (emphasis and internal quotation marks omitted).

“[A]lthough we review the evidence in the light most favorable to the nonmoving party,

the record must clearly demonstrate the plaintiff[s] ha[ve] satisfied [their] heavy two-part

burden; otherwise, the defendants are entitled to qualified immunity.” Est. of Ceballos v.

Husk, 919 F.3d 1204, 1212 (10th Cir. 2019) (internal quotation marks omitted).

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II. Excessive Force

A. Constitutional Violation

The Fourteenth Amendment’s Due Process Clause governs a pretrial detainee’s

excessive-force claim. Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., 978 F.3d

1165, 1171 (10th Cir. 2020). “A defendant violates the Fourteenth Amendment by

purposely or knowingly using force against a pretrial detainee that is objectively

unreasonable.” Id. (internal quotation marks omitted).

Objective reasonableness is “determin[ed] from the perspective of a reasonable

officer on the scene, including what the officer knew at the time, not with the 20/20

vision of hindsight.” Id. (internal quotation marks omitted). This “standard protects an

officer who acts in good faith, and who is often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly evolving.” Id. (internal quotation

marks omitted).

The following non-exclusive factors serve as guideposts:

(1) the relationship between the need for the use of force and the amount of

force used, (2) the extent of the plaintiff’s injury, (3) any effort made by the

officer to temper or to limit the amount of force, (4) the severity of the

security problem at issue, (5) the threat reasonably perceived by the officer,

and (6) whether the plaintiff was actively resisting.

Id. at 1171-72 (citations and internal quotation marks omitted).

The plaintiffs focus their attention on the fifth factor, arguing it was unreasonable

for Sergeants Rolston and Brandon to believe they were fighting. The plaintiffs cite

evidence showing the following facts: the detainees were left unsupervised in the rec

yard; one of the detainees who ran for help yelled the word “seizure”; it was not

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uncommon for MDC detainees to suffer seizures; Cynthia was “convulsing on the

ground”; and Sergeant Rolston threatened to “mace” Griego for protesting the officers’

use of force. 3 Aplt. Opening Br. at 11-12. We are not persuaded.

We begin our analysis of the fifth factor with the strongest evidence in this case,

the video, see Scott v. Harris, 550 U.S. 372, 380-81 (2007) (explaining that a qualified

immunity determination cannot rest on “visible fiction”), asking whether a reasonable

officer could have believed that Cynthia was fighting rather than convulsing. The video

shows that when Sergeants Brandon and Rolston entered the rec yard, Schrepfer and one

or two other detainees were restraining Cynthia on the ground in the midst of over a

dozen other detainees who were moving closer. Sergeants Brandon and Rolston

discharged their foggers into the group surrounding Cynthia within two or three seconds

after arriving. Although it is difficult to see Cynthia’s movements, Schrepfer said that

Cynthia was “flopping around like a fish” and preventing her from “get[ting] a good

grip.” Aplt. App. at 81. Candelaria described Cynthia’s seizures generally as “pretty

violent” and indicated that this seizure was no different. Id. at 126.

Given the rapid and chaotic nature of the scene, and knowing the possibility of

inmate-on-inmate violence in a jail setting, a reasonable officer could have perceived the

3

The plaintiffs make several additional factual assertions that lack record

support. For instance, the plaintiffs claim that “the officers dehumanized [them] after

the incident, calling them ‘zoo animals.’” Aplt. Opening Br. at 12. But the

plaintiffs’ evidence does not attribute that comment to either Sergeant Brandon or

Sergeant Rolston. And supervisory officers like Sergeants Brandon and Rolston “are

only liable under § 1983 for their own culpable involvement in the violation of a

person’s constitutional rights.” Doe v. Woodard, 912 F.3d 1278, 1290 (10th Cir.

2019) (internal quotation marks omitted).

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scene just as Sergeant Rolston described it. In other words, it appears that one detainee is

attempting to choke a fellow detainee from behind with the help of at least one

compatriot who is pinning the victim’s legs to the ground at the same time other

detainees are converging upon the combatants. And although Cynthia’s movements are

difficult to see in the video, we note that Sergeant Brandon’s perception that Cynthia was

flailing and punching is consistent with Schrepfer’s and Candelaria’s testimony.

The plaintiffs’ evidence on the fifth factor does not create a genuine dispute as to

the reasonableness of the officers’ perception. In particular, although Sergeant Rolston

approved of the detainees being in the rec yard unsupervised, that fact would at most

suggest he did not expect a fight to occur, but it would not change the fact that he and

Sergeant Brandon encountered what they reasonably perceived to be a fight. And despite

the fact that a detainee exited the rec yard and twice yelled “She’s having a seizure,”

there is no evidence that Sergeant Brandon or Sergeant Rolston heard the word “seizure.”

It is undisputed that the sergeants heard someone yell “fight,” and both Schrepfer and

Andrade testified they believed a fight code had been called. Nor is there any evidence

that seizures in the MDC population were so common that the sergeants should have

presumed a medical emergency was in progress. Finally, Sergeant Rolston’s subsequent

threat to “mace” Griego for protesting their use of force, while inappropriate, does not

create a genuine factual dispute as to whether Sergeants Brandon and Rolston reasonably

perceived a fight was in progress when they entered the rec yard.

Next, the plaintiffs briefly mention the first and fourth factors of the excessive-

force analysis: the relationship between the need for the use of force and the amount of

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force used; and the severity of the security problem at issue. They maintain that genuine

factual disputes exist as to these factors. We disagree.

In regard to whether Sergeants Brandon and Rolston used an amount of force

proportionate to the need to use force, the plaintiffs complain the sergeants “gave [them]

no opportunity to respond to their commands or explain what was happening” before

“indiscriminately dous[ing] [them] . . . in chemical agent.” Aplt. Opening Br. at 13. But

as we have already discussed, a reasonable officer could have perceived a fight was in

progress, with one detainee being restrained on the ground while multiple other detainees

moved to join the fight. These types of circumstances require officers “to make split-

second judgments” and cannot be evaluated “with the 20/20 vision of hindsight.” Rowell,

978 F.3d at 1171 (internal quotation marks omitted). While it is regrettable that pepper

spray was deployed against detainees who were actually responding to a medical

emergency instead of fighting, the plaintiffs identify no evidence that would allow a

reasonable jury to conclude that the sergeants’ use of pepper spray was unrelated to the

apparent need for such force.

Finally, as to the severity of the security problem, a perceived fight among

multiple detainees presents a threat to institutional security. Cf. Whitley v. Albers,

475 U.S. 312, 321 (1986) (“When the ever-present potential for violent confrontation and

conflagration ripens into actual unrest and conflict, the admonition that a prison’s internal

security is peculiarly a matter normally left to the discretion of prison administrators

carries special weight.” (emphasis, citations, and internal quotation marks omitted)).

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Because no reasonable jury could find that Sergeant Brandon and Sergeant

Rolston unreasonably used force, the officers were entitled to summary judgment. And

in the absence of a Fourteenth Amendment violation by the sergeants, the Board of

Bernalillo County Commissioners was likewise entitled to summary judgment. See

Rowell, 978 F.3d at 1175 (“[A] municipality may not be held liable where there was no

underlying constitutional violation by any of its officers.” (internal quotation marks

omitted)).

B. Clearly Established Law

But even if we assume that Sergeants Brandon and Rolston used constitutionally

excessive force, the plaintiffs must still show that clearly-established law proscribed the

sergeants’ conduct. See Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019). “A

constitutional right is clearly established if it is sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Id. (internal

quotation marks omitted). 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[s] maintain[ ].” Id. (internal quotation marks omitted).

The plaintiffs concede they cannot locate a case on point that establishes the

unconstitutionality of Sergeants Brandon and Rolston’s use of force. But they maintain

the sergeants’ use of force was so clearly unjustified that it constitutes a violation of

clearly established law.

Granted, “general statements of the law are not inherently incapable of giving fair

and clear warning to officers.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (internal

10

quotation marks omitted). But “outside an obvious case” of excessive force, “officers are

entitled to qualified immunity unless existing precedent squarely governs the specific

facts at issue.” Id. (internal quotation marks omitted).

The plaintiffs have not shown the obvious illegality of Sergeants Brandon and

Rolston’s conduct or that existing precedent squarely proscribed their conduct. Cf., e.g.,

Quinn v. Young, 780 F.3d 998, 1014 (10th Cir. 2015) (finding no “patent and egregious”

constitutional violation and “declin[ing] to relieve Plaintiffs of their obligation to identify

clearly established law by reference to decisions that at least have a substantial factual

correspondence with the instant case”). Instead, the plaintiffs cite two inapposite cases:

Martinez v. New Mexico Department of Public Safety, 47 F. App’x 513 (10th Cir. 2002),

and DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001). Martinez involved a state

trooper’s use of mace on a handcuffed arrestee who simply requested the trooper’s

identification and refused to get into the back of the patrol car. Id. at 515. DeSpain

involved a prison guard who indiscriminately discharged pepper spray along a prison tier

as a practical joke. Id. at 977. In contrast, this case involves corrections officers who,

under chaotic and rapidly evolving circumstances, mistook a medical emergency for a

fight among multiple detainees.

Because the plaintiffs have not shown “that any reasonable official in the

[sergeants’] shoes would have understood” they were violating the plaintiffs’ Fourteenth

Amendment rights, qualified immunity applies. See Kisela, 138 S. Ct. at 1153 (internal

quotation marks omitted). Thus, even assuming a constitutional violation, Sergeants

Brandon and Rolston were entitled to summary judgment.

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CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Bobby R. Baldock

Circuit Judge

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