by David M. Reutter

On December 13, 2023, the U.S. District Court for the District of Colorado denied summary judgment to a jail guard who allegedly failed to protect a pretrial detainee from assault by another detainee. But the Court dismissed a municipal liability claim against Colorado’s Chaffee County, even though the guard had been disciplined before—three times—for failing to keep cell doors locked.

Jason Harter, then 34, was arrested and booked into Chaffee County Detention Center (CCDC) on February 20, 2020, on charges of kidnapping, forcible rape of an individual under the age of 15, and enticement. The nature of his charges put guards, including Victoria Stover, on notice that it was important for other detainees not to hear about them. CCDC Cmdr. Tracy Jackson emphasized this in an email to guards on March 10, 2020, advising that they needed to stop any harassment by other detainees. Jackson further advised staff that she had personally addressed two detainees and informed them that harassment of Harter would not be tolerated.

After an altercation with detainee Joshua Mullins on July 16, 2020, Harter was moved to a single cell and placed in protective custody lockdown. That same day, he sent a kite about another detainee in the cellblock identified as Alan Stephen, then also 34, describing him as an “extremely violent person,” who had previously been charged with murder and had given Harter “certain looks.” Harter was displeased when guards failed to promptly act, so he started kicking his cell door and attempted to flood his cell. Guards moved him to administrative confinement (AC) as discipline.

Jackson responded to Harter’s kite, stating he could not be moved to a holding cell because they were not for detainee housing. He was returned to general population on August 15, 2020, and eight days later Stephen was moved to the same cellblock. Harter returned to AC for discipline on September 11, 2020, the same day that Stephen submitted a kite explaining “how he felt” about “people that like to rape 13 [year] old little girls and what should happen to them.” He warned that “most certainly” there would be violence if he and Harter were in the same room. Harter once again filed a kite regarding Stephen. Nonetheless, they remained in the same pod. Four days later, as guards were serving dinner on September 15, 2020, Stephens waited outside Harter’s cell. From the guard control room, Stover remotely opened the cell door, and Stephens assaulted Harter, repeatedly punching him in the face, causing an orbital wall fracture, facial swelling and extreme pain.

Harter filed a civil rights action on July 15, 2022, alleging failure to protect in violation of his Fourteenth Amendment rights. Chaffee County and Stover moved for summary judgment. But the Court concluded that a jury could disbelieve Stover’s testimony: (1) that she was “unaware” Stephen was “lurking” outside Harter’s cell when she opened it; and (2) that she believed fellow guards McDonald and Cpl. Maez were outside the cell to help maintain security. There was testimony that Stover, from the control room, had direct line of sight to Harter’s cell. So a jury could find her decision to open the door—“despite knowing that Plaintiff was in administrative protection and was at risk from other inmates, one of whom was lurking outside the cell”—amounted to unconstitutional deliberate indifference, the Court said. It further found Stover was not entitled to qualified immunity and that sufficient facts were pleaded for the jury to award punitive damages, should it decide to do so.

With that the Court denied Stover’s motion for summary judgment. However, it granted dismissal to Chaffee County, finding the facts insufficient to support a claim for municipal liability. Specifically, it noted that Stover was suspended for just one day and placed on employment probation for only three months after Harter’s assault; that, the Court said, did not indicate her actions were “so outrageous as to suggest that Defendant had a policy of condoning unconstitutional conduct.” By that logic, of course, any jail could beat liability for a detainee’s assault just by making sure the guards involved get light punishment, but the Court dismissed that, saying that punishment after the assault could not be faulted for causing it. The fact that Stover had three times before left cell doors unlocked and lightly disciplined also didn’t make the County deliberately indifferent to the risk she posed of doing it again, the Court said; “we cannot hold that the failure of a police department to discipline in a specific instance is an adequate basis for municipal liability,” the Court declared, quoting Butler v. Norman, 992 F.2d 1053 (10th Cir. 1993).

The Court also didn’t seem to know what to make of the jail’s treatment of Stephen. He was charged with assault (the status of those charges is unclear), but that didn’t factor into the Court’s opinion. It was also noted that a month after the attack on Harter, Stephen was promoted to trustee status, a move that Cpl. Maez testified was a “flat-out terrible idea.” But again, the Court did not opine on that.

The case is now proceeding to trial, and PLN will update developments as they are available. Harter is represented by Denver attorneys David A. Lane and Michael P. Fairhurst with Kilmer Lane LLP. See: Harter v. Chafee Cty., 2023 U.S. Dist. LEXIS 222032 (D. Colo.). [Note: The County name was misspelled in the Court’s decision.] In February 2021, Harter cut a deal and pleaded guilty to harboring a minor, receiving a $258.50 bill for costs and a fine plus a 180-day sentence, with credit for time served.

Additional sources: KUSA, Mountain Mail

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