Opinion
Civil No. 2:00CV0037C
October 12, 2000.
ORDER
This case arose after a Utah state prison inmate assaulted Plaintiff Stebner, a medical technician employed by the Defendant Utah Department of Corrections ("UDC"). Stebner brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants (the UDC and various UDC employees) for violating her right to bodily security in the course of her public employment under the 14th Amendment to the Constitution. The case is before the court on Defendants' (amended) motion to dismiss on the grounds that (1) damage claims against the State are barred by the 11th Amendment; (2) Stebner fails to state a substantive due process claim; and (3) the individual Defendants are entitled to qualified immunity.
After this court granted Stebner's motion to amend her complaint, Defendants were given a chance to amend their response. Instead of amending their response, however, Defendants filed a new motion to dismiss. Defendants' new motion to dismiss is nearly identical to their previous motion, except that it adds the argument that the amended complaint should be dismissed because Stebner's claims are barred by Utah's Workers' Compensation Act. (See Defs.' Memo. in Supp. of Mot. to Dismiss at 15-18.) As this defense is improperly raised in a responsive pleading and appears to be of little merit, it is not discussed in this order.
Stebner filed a motion to strike Defendants' new motion and moved for attorney's fees pursuant to Federal Rule of Civil Procedure 11. For the reasons set forth during the September 13, 2000 hearing, these motions are denied.
The court held a hearing on this motion on September 13, 2000. Having fully considered the arguments of counsel, the submissions of the parties and applicable legal authority, the court now enters the following order.
Background
Stebner has been employed by the UDC as a medical technician at the Utah State prison in Draper, Utah, since September 30, 1991. Stebner performed her medical work in medical rooms within the state prison, often working alone. (See Am. Compl. ¶ 16.) On September 13, 1999, the medical room Stebner was using had only one entrance: a heavy metal door that automatically locked from the inside when it was shut. (See id. ¶ 19, 20.) There were no alarms or video monitoring systems in the room. (See id. ¶ 21, 22.) The Defendants had not trained Stebner about how to deal with dangerous inmates or how to defend herself against inmate attacks. (See id. ¶ 23.)
On the morning of September 13, 1999, Defendants gave Stebner a "Treatment List," which listed the names of inmates requiring medical treatment that day. (See id. ¶ 27.) An inmate named Randy Jackson was on the Treatment List. At the time, Jackson was serving a sentence of 15 years to life for the 1993 kidnaping and rape of a 43-year-old probation counselor.
Stebner called Jackson to come to the medical room, and he arrived without the supervision of a guard. According to Stebner, Jackson was not wearing handcuffs, leg cuffs and was not physically restrained in any way during the medical examination. (See id. ¶ 29.) At the end of his examination, Jackson became angry and hit Stebner a number of times about the head and face with his fists. (See id. ¶ 34.) No one came into the room to help Stebner, and Jackson eventually left on his own accord. (See id. ¶ 36, 37.)
Defendants' official "Restraint Policy" required that all inmates be physically restrained according to their classification, and that their restraints not be removed during the times they were receiving medical care except by written request of a physician when a guard was present. (See id. ¶ 40; Restraint Policy, attached to Stebner Aff. as Ex. 1.) According to Stebner, Jackson was a "high profile inmate," meaning that the Restraint Policy required a high level of restraint:
(a) each leg restrained by a leg iron with its chain attached to the bed frame;
(b) both legs restrained by a set of standard leg restraints with a chain attached to the bed frame and padlocked to the connecting center chain;
(c) minimally, one wrist handcuffed with its chain attached to the bed frame with the securing of both wrists preferred.
(Restraint Policy at (unnumbered) 2.)
Defendants' official "Endangering Conduct by Prison Staff" Policy provided that:
Any act or conduct which constitutes a threat to the safety, welfare, or health of self or others; or which substantially threatens the security or control of the Department's institutions is prohibited.
(Am. Compl. ¶ 44; Endangering Conduct by Prison Staff, attached to Stebner Aff. as Ex. 2.) According to that policy,
Staff shall not supervise, counsel, or otherwise be in the presence of a single inmate in any location which is out of the view of other staff. Whenever it is necessary for a staff member to supervise, counsel, or interview a single inmate, they shall: (1) have another person present; or (2) if in a closed room or office, ensure there is a window through which another staff member may see; or (3) if there is not a window in the door, that the door is opened enough for another staff member to see inside.
(Endangering Conduct Policy; Am. Compl. ¶ 45.) The complaint alleges that Defendants "pursued a practice of leaving inmates alone and unsupervised with medical technicians, including her, in direct violation of [this] policy." (Am. Compl. ¶ 46.)
The complaint alleges that other UDC employees (including other medical technicians, physician's assistants and staff psychologists) had complained to the Defendants about the numerous violations of the Restraint Policy and the Endangering Conduct Policy. (See id. ¶ 47.) Despite these complaints, Stebner alleges that Defendants did not take any action to require policy compliance. (See id. ¶ 48.)
Analysis
Section 1983 provides a remedy against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and Laws. . . ." 42 U.S.C. § 1983. In this § 1983 action, Stebner argues that Defendants violated her Due Process rights by failing to protect her constitutional right to bodily security. Stebner seeks both injunctive and declaratory relief and damages. (See Am. Compl. at 11.)
As injunctive relief, Stebner seeks (1) to enjoin defendants to stop their unlawful official policies and (2) to enjoin defendants from retaliating against her for suing them. (See id. at 17) Stebner also seeks an declaration that "the conduct of the defendants . . . [deprived her] of her well established right[s] under the Fourteenth Amendment. . . ." (Id.)
When qualified immunity is raised in a 12(b)(6) motion, the court must apply a "heightened pleading standard," which requires that the complaint contain "specific, nonconclusory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law." Breidenbach v. Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997) (affirming dismissal because the allegation in the complaint of a Fourth Amendment violation was "a conclusory statement with no foundation in any specific facts arising from the warrant affidavit on which the claim is predicated" and therefore failed to sufficiently allege a constitutional violation); but see Dill v. City of Edmond, 155 F.3d 1193, 1204 (10th Cir. 1998) (reversing dismissal since the complaint adequately stated a First Amendment claim and the law was clearly established."). When raised in a motion to dismiss, of course, a court's review of the qualified immunity defense is limited to the pleadings and the court must "construe the allegations in the complaint and any reasonable inferences to be drawn from them in favor of [the] plaintiff." See Dill, 155 F.3d at 1203.
A. 11th Amendment Immunity
Defendants first contend that Stebner's amended complaint should be dismissed because the 11th Amendment bars actions against state agencies and individuals in their official capacities for damages. See, e.g., Hensel v. Office of Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994). Stebner sues the individual Defendants for damages only in their individual capacities, however; her claims against the individual defendants in their official capacities and the UDC seek only injunctive and declaratory relief. These claims are not barred by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 663-64 (1974); Hafer v. Melo, 502 U.S. 21, 25-26 (1991) (holding that plaintiff may recover injunctive relief against individuals named in their official capacity in a § 1983 action).
Defendants' motion to dismiss on this ground is, therefore, denied.
B. Persons under § 1983
Defendants next argue that Stebner's amended complaint should be dismissed because entities entitled to 11th Amendment immunity are not "persons" under § 1983. See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995). As noted above, however, Stebner's claims against the UDC and the individual defendants in their official capacities seek injunctive and declaratory relief only. When injunctive relief is sought, state entities and individuals named in their official capacity are "persons" under § 1983. See Hafer, 502 U.S. at 24.
Hence, Defendants' motion to dismiss on this ground is denied.
C. Failure to State a Claim
The Due Process Clause of the 14th Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." Defendants contend that Stebner's amended complaint should be dismissed because she fails to state a substantive due process claim.
In general, the Due Process Clause does not impose any affirmative duty on the state to protect its citizens, nor does it guarantee public employees a workplace free of unreasonable risks of harm. See Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992); see also Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996). The Tenth Circuit, however, recognizes two exceptions to this general rule: (1) if there is a "special relationship" between the plaintiff and defendant or (2) if the "danger creation theory" applies. See Uhlrig, 64 F.3d at 572. Stebner relies on both theories to establish Defendants' liability under § 1983.
1. Special Relationship Theory
A special relationship exists when "the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g., when the individual is a prisoner or involuntarily committed mental patient)." Id. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament . . ., but from the limitation which it has imposed in his freedom to act on his own behalf." DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 200 (1989); see also Youngberg v. Romeo, 457 U.S. 307 (1982) (special relationship exists because state required to provide involuntarily committed mental patients with services necessary to protect them from themselves and others); Estelle v. Gamble, 429 U.S. 97 (1976) (special relationship exists because state required to provide inmates with medical care).
In Uhlrig, the Tenth Circuit held that the special relationship theory did not apply because "Uhlrig was simply an employee of the state working at the Topeka State Hospital, and an employment relationship is consensual in nature." 64 F.3d at 572; see also Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1261 (10th Cir. 1998) (requiring some showing that the state restrained an individual's freedom to act "through incarceration, institutionalization, or other similar restraint"); Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997) (holding that even when a prison guard was required to remain at a certain location, there was no special relationship because of the lack of any custodial relationship between the guard and the state).
Since Stebner voluntarily entered into an employment relationship with Defendants, there was no "special relationship" between Stebner and Defendants, as that term is defined by the Tenth Circuit. Therefore, Stebner is not entitled to due process protection under this theory.
2. Danger Creation Theory
The "danger creation theory" applies when the state actor "created the danger that harmed that individual — that is, provided that the other elements of a § 1983 claim have been satisfied." Uhlrig, 64 F.3d at 572. The Tenth Circuit is clear that "For the state to be liable under § 1983 for creating a special danger . . ., a plaintiff must allege a constitutionally cognizable danger. That is, the danger creation theory must ultimately rest on the specifics of a substantive due process claim — i.e., a claim predicated on reckless or intentionally injury-causing state action which `shocks the conscience.'" Id. (emphasis added).
In evaluating whether a state actor created a danger to a plaintiff, the court uses a six-part test: (1) plaintiff must be a member of a limited and specifically definable group; (2) defendants' conduct must put plaintiff at a substantial risk of serious, immediate, and proximate harm; (3) the risk must have been obvious or known; (4) defendants must have acted recklessly in conscious disregard of that risk; (5) such conduct, when viewed in total, must be conscience shocking; and (6) the defendants must have created the danger or increased the danger in some way. See Armijo, 159 F.3d at 1263; DeAnzona v. City County of Denver, 222 F.3d 1229, 2000 WL 1059377, *3 (10th Cir. 2000).
First, Stebner is a member of a limited and specifically definable group — medical technicians at the Utah State Prison in Draper, Utah. Second, the Defendants knowingly put Jackson, a convicted kidnapper and rapist, in a closed room alone with Stebner, without handcuffing or shackling Jackson and without providing Stebner any training on self-preservation. The Defendants' acts put Stebner at a substantial risk of serious, immediate, and proximate harm. Third, by failing to handcuff or shackle Jackson, there is little doubt but that the risk of harm to Stebner was known and obvious.
The fourth factor requires that the defendants act recklessly in conscious disregard of the risk. According to the Tenth Circuit, "an act is reckless when it reflects a wanton or obdurate disregard or complete indifference to risk." Sutton v. Utah State Sch. for the Deaf Blind, 173 F.3d 1226, 1238 (10th Cir. 1999). In this case, the Defendants acted with the knowledge of Stebner's vulnerability and in knowing violation of their own official Endangering Conduct and Restraint Policies. Defendants knew that Jackson was a dangerous convict, capable of violence. According to Stebner, Defendants had received complaints about their practice of leaving employees alone with dangerous inmates before she was assaulted by Jackson.
This is not a case where a state official failed to enact some policy, or committed an act that led to some unforeseeable result. See, e.g., id. at 1239 (no cause of action where state actor did not "affirmatively place [plaintiff] in any danger"); DeAnzona, 2000 WL 1059377 (no cause of action where state actors did not adopt reasonable safety regulations for a day-camp program). In this case, the Defendants took affirmative steps to place an inmate, known to be dangerous, in a closed and locked room with a single female, and left the two together without supervision. There is little doubt but that the Defendants acted in knowing and callous disregard of the risk of injury. Accord Poe v. Wyandotte County, 2000 WL 382038 (D. Kan. Mar. 17, 2000) (concluding that plaintiff's allegations were sufficient since "this is not a case where the defendants sat idly by and simply allowed plaintiff to face a risk he would have otherwise faced; [rather] defendants' conduct substantially increased the risk that plaintiff would be assaulted").
The fifth factor requires that the conduct be conscience shocking. In Uhlrig, the Tenth Circuit held that to satisfy the "shock the conscience" standard, "the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." 64 F.3d at 574. "Even knowingly permitted unreasonable risk to continue does not necessarily rise to the level of conscience shocking." DeAnzona, 2000 WL 1059377, *3.
In considering this issue, the parties cite and discuss several cases. In L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), plaintiff was a registered nurse employed by the State of Oregon at a medium security custodial institution for young male offenders. Although the plaintiff was assured at the time she was hired that she would not be required to work alone in the medical clinic with violent sex offenders, the defendant supervisors required her to work alone with a known violent sex offender. See id. at 120-22. Plaintiff was assaulted and brought a § 1983 action. The Ninth Circuit held that the plaintiff had stated a § 1983 claim and reversed the district court's dismissal of her claim since the defendants had "affirmatively created the dangerous situation which resulted in [plaintiff's] assault." Id. at 122.
In Grubbs, the Ninth Circuit stated:
Something more than an ordinary tort is required [by § 1983]. We need not address the hypothetical boundaries here, however, because [plaintiff] has alleged facts demonstrating official deliberate indifference in creating the danger. [Plaintiff] has alleged that Defendants knew that [the inmate] was a violent sex offender who had failed all treatment and was likely to assault a woman if left alone with her, and that, even knowing this, Defendants intentionally assigned [him] to work alone with [her] in the clinic.
Id. at 122-23 (emphasis added).
In Liebson v. New Mexico Corrections Dept., 73 F.3d 274 (10th Cir. 1996), the plaintiff was a librarian working at the New Mexico State Penitentiary. When the defendants changed the library hours and officer schedules, the plaintiff was left on duty in the library with no officer present. The plaintiff brought a § 1983 claim after she was kidnaped, held hostage, and sexually assaulted by an inmate library assistant.
In Liebson, the Tenth Circuit agreed that the facts presented by the plaintiff in Grubbs rose to "conscience shocking" allegations. See Liebson, 73 F.3d at 277. The Tenth Circuit stated that Grubbs involved several "conscience-shocking" facts:
plaintiff alleged defendants knowingly assigned the inmate to work with her despite their knowledge that (a) the inmate was not qualified to work in the clinic; (b) the inmate had an extraordinary history of unrepentant violence against women and girls; (c) the inmate was likely to assault a female if left alone with her; (d) the inmate and plaintiff would be alone together; and (e) plaintiff would not be prepared to defend herself against an attack by the inmate.
Liebson, 73 F.3d at 277. However, the Tenth Circuit held that the plaintiff in Liebson had not alleged such facts:
Although plaintiffs have alleged that defendants' removal of a security officer was done with "deliberate indifference and in complete disregard" of Ms. Liebson's rights, they have not alleged any specific facts, as did the plaintiffs in Grubbs, to indicate that defendants' actions were egregious, outrageous, or fraught with unreasonable risk.
Id.
The holding of Liebson and Grubbs support a conclusion that Stebner's complaint adequately alleges facts that could be construed as conscience-shocking. In the instant case, Stebner has pled all five elements identified by the Tenth Circuit in Liebson as sufficient to state a substantive due process claim: Jackson was not qualified to be left alone with a female employee; Jackson had a known history of violence toward women; he was likely to assault a female if left alone with her; the Defendants knew Jackson and Stebner would be left alone; and Stebner was unprepared to defend herself against a violent attack. See Liebson, 73 F.3d at 277. In addition, Stebner alleges that she was left with Jackson without any means of sounding an alarm and with no surveillance in a locked room. The Defendants did not shackle Jackson, and the failure to restrain him was a violation of internal rules and regulations. According to the Liebson (and in accordance with Grubbs), then, Stebner has adequately pled sufficient facts that "defendants' actions were egregious, outrageous, or fraught with unreasonable risk." 73 F.3d at 277.
In Maine v. Oklahoma Dep't of Corrections, 1997 WL 602688 (10th Cir. 1997), a plaintiff prison librarian was raped and assaulted by an inmate who had hidden under a library table. Before the assault, the plaintiff had complained to prison officials about a lack of security provided to her in the prison library. The defendants had, however, denied her request for a two-way radio even though she had earlier received a threatening letter from an inmate.
The court in Maine determined that the defendants' failure to provide plaintiff with adequate security did not constitute a violation of substantive due process:
The evidence supports, at most, a claim that defendants' failure to provide a reasonably safe work environment was negligent, which, as the Supreme Court explained in Collins, is insufficient to support a substantive due process violation claim.
. . .
As the district court correctly found, "there is no evidence that defendants intentionally isolated plaintiff or took affirmative steps to place her in danger. . . ."
Id. at *5 (emphasis added).
As with Liebson, the facts of Maine are distinguishable from the circumstances of this case. In contrast with the plaintiff in Maine, Stebner has alleged that the Defendants "intentionally isolated [her and] took affirmative steps to place her in danger." 1997 WL 602688, *5. Jackson did not avoid the guards' detection and hide out in the medical examining room only later to surprise Stebner. By adding Jackson's name to the list of inmates Stebner was to see that day, the Defendants took steps to ensure that Stebner would see Jackson that day. The Defendants took affirmative steps to put Jackson in a room alone with Stebner without restraining or monitoring him. The court's decision in Maine, therefore, does not counsel in favor of dismissal.
The parties lastly cite White v. Lemacks, 183 F.3d 1253 (11th Cir. 1999), in which plaintiff nurses were attacked by inmates. The plaintiffs had received assurances that there were adequate security measures to keep them safe, but this was not the case. As a condition of their job, the nurses were required to be in close contact with inmates and their freedom of movement and ability to flee or otherwise protect themselves were limited. The Eleventh Circuit characterized the issue as whether the defendants were required "to provide more guards or other safeguards for the protection of nurses working in the jail infirmary." Id. at 1258. Accordingly, the Eleventh Circuit stated that the plaintiffs' claim was one of "resource-allocation choices . . . dressed up in substantive due process clothing. . . ." Id. Relying on the Supreme Court's decision in Collins v. City of Harker Heights, 503 U.S. 115 (1992), the Eleventh Circuit held that plaintiffs had failed to state a substantive due process claim because "[w]hile deliberate indifference to the safety of government employees in the workplace may constitute a tort under state law, it does not rise to the level of a substantive due process violation under the federal Constitution." See White, 183 F.3d at 1259.
A careful reading of the White decision shows that it too is distinguishable from the instant case. In the district court opinion of White, the court held that "Plaintiffs have failed to allege any facts showing any affirmative action or culpable conduct by the Defendants sufficient to create liability under the special danger doctrine." White v. Lemacks, 24 F. Supp.2d 1373, 1379 (1998), aff'd 183 F.3d 1253 (11th Cir. 1999). As discussed at length above, Stebner, in contrast with the plaintiffs in White, does allege that Defendants took affirmative steps to create a danger. Unlike White, this is not a case where the Defendants simply failed to make adequate safety preparations; here, the Defendants failed to provide a safe environment and affirmatively created a situation in which an assault on Stebner was foreseeable and likely to occur.
As discussed above, the cases cited by the parties support a conclusion that substantive due process claims only extend to those cases where the state actor has taken affirmative steps, with the knowledge that those actions create a danger to the plaintiff or in conscious disregard of that danger. See Grubbs, 974 F.2d at 122 (liability because defendants "affirmatively created the dangerous situation"); Liebson, 73 F.3d at 277 (no liability because defendants did not place inmate in room with librarian); Maine, 1997 WL 602688 (no liability because defendants did not take "affirmative steps to place her in danger"); White v. Lemacks, 24 F. Supp.2d at 1379 (district court opinion) (same); accord Poe, 2000 WL 382038, *4 (concluding that plaintiff's allegations shocked the conscience because the "if the plaintiff's allegations are true, the defendants practically invited the harm to occur"). The language of the Tenth Circuit's decision in Armijo v. Wagon Mound Pub. Schs., reflects this rule,
The key to the state-created danger cases . . . lies in the state actors' culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid. Thus the environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party's [act] to occur.
159 F.3d at 1263 (emphasis added), citing Johnson v. Dallas Ind. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994).
There is no question but that plaintiffs raising substantive due process claims must satisfy a difficult and demanding standard. Furthermore, substantial caselaw supports Defendants' position that federal courts should adopt a narrow view of substantive due process violations. See Collins, 503 U.S. at 125 (stressing that the Supreme Court "has always been reluctant to expand the concept of substantive due process," and suggesting that judicial self-restraint requires courts to exercise the utmost case in this area); see also Sutton, 173 F.3d at 1239.
In this case, however, Stebner alleges facts that, when viewed in total, could be construed as conscience-shocking. See Armijo at 1263. This case satisfies the rigorous conscious-shocking standard and, therefore, satisfies the fifth Armijo element.
The final element articulated in Armijo is that the defendants create the danger or increase the danger in some way. See id. at 1263. For the reasons articulated above, the court concludes that the Defendants created the danger or increased the danger by taking affirmative and reckless steps.
The complaint therefore satisfies the six-part test articulated by the Tenth Circuit in Armijo, necessary to state a claim of substantive due process violation. The Defendants' motion to dismiss for failure to state a claim, therefore, is denied.
D. Individual Defendants' Qualified Immunity
Government officials 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). The Supreme Court has reasoned that qualified immunity gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. See Malley v. Briggs, 475 U.S. 335, 341 (1986).
To overcome a qualified immunity defense, the Tenth Circuit has held that a plaintiff must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that a defendant's actions were clearly prohibited. See Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992). 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." Horstkoetter v. Department of Pub. Safety, 159 F.3d 1265, 1278 (10th Cir. 1998).
The six-part test necessary to state a claim of a violation of substantive due process was clearly and finally articulated by the Tenth Circuit in Armijo in 1998. Two years prior, in 1996, the Tenth Circuit agreed that the facts of Grubbs, which, as noted above, are strikingly similar to the facts in this case, rose to conscience shocking allegations. See Liebson, 73 F.3d at 277. The decision in Liebson has not been overruled or second-guessed, and it remains good law. The Tenth Circuit decision in Maine supports the long-standing rule that a plaintiff states a claim for violation of substantive due process rights when the defendant's affirmative act is done recklessly in conscious disregard of that danger, is "conscious-shocking," and creates a danger to that plaintiff. Since this rule is, and has been, well-settled in the Tenth Circuit since at least 1996, Defendants are not entitled to qualified immunity. Accord Poe, 2000 WL 382038, *8 (reaching the same conclusion since nothing in the previous cases "can be reasonably read to allow the type of reckless disregard for plaintiff's safety, the type of conduct that substantially increased his risk of danger and effectively stripped him of his ability to protect himself, as allegedly occurred here").
Therefore, Defendants' motion to dismiss on the grounds that they are entitled to qualified immunity is denied.
Conclusion
The Defendants' motion to dismiss is DENIED in its entirety.