The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 14, 2019 2019COA170
No. 18CA1744, Duke v. Gunnison County — Torts — Wrongful Death; Colorado Governmental Immunity Act — Immunity and Partial Waiver
A division of the court of appeals considers whether the
Colorado Governmental Immunity Act (CGIA) bars a wrongful death
action by parents of a deceased inmate against a public entity — a
jail. The division concludes that the waiver of immunity for
operation of a jail does not apply to the parents’ suit because (1) the
inmate was excluded from the waiver, having been incarcerated
pursuant to a conviction at the time of his injury, see
§ 24-10-106(1.5)(a), C.R.S. 2019; and (2) a party is liable in a
wrongful death action only when the injured party could have
“maintain[ed] an action and recover[ed] damages . . . if death had
not ensued,” § 13-21-202, C.R.S. 2019. Relying on Sigman v.
Seafood Ltd. Partnership I, 817 P.2d 527, 530-31 (Colo. 1991), the division holds that when a decedent could not have maintained an
action for his injury, the tortfeasor is not liable to the decedent’s
heirs.
The division also considers whether a public employee must
have knowledge of a specific danger to another for his or her
conscious disregard of that danger to constitute willful and wanton
conduct excepting the employee from CGIA immunity. See
§ 24-10-118(2)(a), C.R.S. 2019; see also Martinez v. Estate of Bleck,
2016 CO 58, ¶¶ 30, 32. The division concludes that knowledge of a
health danger to another, and conscious disregard thereof, may be
sufficient to render conduct willful and wanton for purposes of the
CGIA. COLORADO COURT OF APPEALS 2019COA170
Court of Appeals No. 18CA1744 Gunnison County District Court No. 18CV30013 Honorable J. Steven Patrick, Judge
Beth Ann Duke and Joseph Councell Duke, Jr.,
Plaintiffs-Appellants,
v.
Gunnison County Sheriff’s Office, Richard Besecker, Ian Clark, Ryan Phillips, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn Rupp,
Defendants-Appellees.
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE RICHMAN Dailey and Brown, JJ., concur
Prior Opinion Announced October 3, 2019, WITHDRAWN
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON OCTOBER 3, 2019, IS NOW DESIGNATED FOR PUBLICATION
Announced November 14, 2019
Levin Sitcoff PC, Bradley A. Levin, Elisabeth L. Owen, Denver, Colorado, for Plaintiffs-Appellants
Berg Hill Greenleaf Ruscitti LLP, Josh A. Marks, David J. Goldfarb, Boulder, Colorado, for Defendants-Appellees Gunnison County Sheriff’s Office, Richard Besecker, Ian Clark, and Ryan Phillips Williams, Turner & Holmes, P.C., Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendants-Appellees Paula Martinez, Conner Udell, Megan Hollenbeck, Chad Roberts, and Brandyn Rupp ¶1 Plaintiffs, Beth Ann Duke and Joseph Councell Duke, Jr.,
appeal an order granting motions to dismiss a claim for the
wrongful death of their son, Joseph C. “Trey” Duke III, for lack of
subject matter jurisdiction over defendants, Gunnison County
Sheriff’s Office (GCSO), Sheriff Richard Besecker, and Deputies Ian
Clark, Paula Martinez, Conner Udell, Megan Hollenbeck, Chad
Roberts, Brandyn Rupp, and Ryan Phillips. We affirm in part and
reverse in part.
I. Background
¶2 Although the district court did not hold a hearing pursuant to
Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d
916 (Colo. 1993), the following facts, taken in part from the record
in a related federal case, as relevant here, are undisputed. Trey had
a long history of substance abuse, and he had been arrested and
incarcerated in Gunnison multiple times for drug and alcohol
related offenses. In the afternoon of June 27, 2015, when Trey was
twenty-five years old, Deputy Clark found him passed out on pallets
outside a motel and wearing an ankle monitor. A search and field
test revealed that a material Trey was carrying in a pill bottle was
heroin. Clark arrested Trey for possession of heroin, in violation of
1 his parole, and for use of alcohol or controlled substances, in
violation of a protection order. Deputy Martinez transported Trey to
the Gunnison County Jail. Deputy Phillips was on duty when Trey
arrived, at approximately 3:45 p.m.
¶3 Though Trey’s behavior and appearance indicated that he was
under the influence of controlled substances, he denied ingesting
any drugs other than Clonazepam, as prescribed. He was given a
drug recognition examination (DRE), and the evaluator opined that
Trey was under the influence of a polydrug combination of a
stimulant and a narcotic analgesic. The DRE was not definitive
because it did not include a blood test.
¶4 Deputy Udell placed Trey on a sixteen-hour drug hold in the
jail, where he would be checked periodically by deputies on duty.
After a check, the deputy would mark the time, comments, and
initials on a time check sheet (TCS).
¶5 Trey turned out his pockets and Udell conducted a partial
“hands-on pat-down search” before placing Trey in a padded cell
with a camera. At some point before 10:00 p.m., Deputy
Hollenbeck saw on the video feed that Trey had removed something
2 from the front of his pants, and she sent Udell to retrieve the item.
Udell reported, “it’s just some foil.”
¶6 At about 8:05 p.m., and again at about 10:40 p.m., Trey made
telephone calls to his girlfriend and his mother — plaintiff Beth Ann
Duke. At approximately 10:55 p.m., he was moved to a different
cell without a video camera. According to the TCS, deputies
checked on Trey fifteen times during the night, between the time he
was placed in the new cell and the time he was served breakfast at
approximately 7:30 a.m. Plaintiffs allege that the video surveillance
in the corridor outside Trey’s cell does not corroborate some of the
TCS entries.
¶7 Deputy Roberts served Trey’s breakfast. Roberts reported that
when he went to collect the tray shortly before 8:00, he saw Trey
“sitting [on the cell floor] with his legs crossed hunched over
eating.” When Roberts asked, Trey said that he was ok.
¶8 An “inmate trustee,” Brandon Morse, was cleaning the area
outside Trey’s cell when Deputy Phillips went to collect Trey’s
breakfast tray, sometime between 8:30 and 8:50. The trustee and
deputy were each familiar with Trey from prior contacts. Both men
3 saw Trey sitting cross-legged in his cell, with his head resting on
the floor in front of his legs.
¶9 The accounts of Morse and Phillips diverge at this point.
Morse said he had never seen anyone sit like that before, but
Phillips said he had seen Trey in that position before. Morse said
he saw the breakfast tray on the floor of the cell and food
“splattered all over the floor,” but Phillips said he was able to
retrieve the breakfast tray from the cell door. (A review of the
security video confirms that Phillips retrieved the tray from the cell
door.) Morse said he saw Phillips “glance” at Trey. Phillips stated
that he “observed [him] to be breathing, based on the rise and fall of
his back.” Morse reported that he told Phillips he “didn’t think Trey
looked so good,” and he said Phillips responded, “That’s what you
get for doing drugs.” Phillips said he didn’t recall speaking with
Morse, but he admitted that the video showed them having an
interaction.
¶ 10 Approximately thirty minutes later, Deputy Rupp noticed Trey
sitting in the same position reported by Deputy Phillips, with a
small amount of bile coming from his mouth. He tried to wake him
but found him to be unresponsive. Rupp called for emergency
4 services and began lifesaving measures, but his efforts were to no
avail. An emergency medical services team declared Trey dead
shortly thereafter.
¶ 11 A final autopsy reported a “disrupted open plastic baggy,”
ethanol, opiates, and high levels of fentanyl in Trey’s stomach;
naloxone, clonazepam, oxycodone, fentanyl, cyclobenzaprine, and
norfentanyl presence in his blood; and opiates, cocaine,
benzodiazepines, and oxycodone presence in his urine. The
examiner attributed the cause of death to a polydrug overdose, with
fentanyl as the major component.
¶ 12 Plaintiffs filed a federal suit, claiming (1) a violation of Trey’s
constitutional rights for deliberate indifference to a serious medical
threat, under 42 U.S.C. § 1983 (2018); and (2) wrongful death,
under section 13-21-202, C.R.S. 2019. The federal court granted
summary judgment in favor of defendants on the federal claim,
concluding that no clearly established constitutional right had been
violated, and the GCSO had not been deliberately indifferent to
injuries that could result from failure to train its staff on signs of an
overdose. The court declined to exercise supplemental jurisdiction
over the state law claim.
5 ¶ 13 Plaintiffs refiled the state claim in district court. They argued
that defendants breached a duty to prevent Trey’s death when each
defendant failed to obtain professional medical treatment before or
during his confinement and that Deputy Udell and the GCSO failed
to properly search Trey. They also argued that sovereign immunity
is waived pursuant to sections 24-10-105(1) and -106(1)(b), C.R.S.
2019.
¶ 14 Defendants moved to dismiss, in two separate motions,
arguing that they were immune from the claim because it sounds in
tort and does not fall within any waiver of immunity under the
Colorado Governmental Immunity Act (CGIA). Specifically, the
GCSO argued that the waiver of immunity for operation of a jail
does not apply because Trey was incarcerated pursuant to a
conviction, see § 24-10-106(1.5)(a), and the Sheriff and individual
deputies argued that the waiver of immunity does not apply
because their conduct was not willful and wanton, see
§ 24-10-118(2), C.R.S. 2019. Defendants Clark and Phillips
specifically argued that they could not have consciously disregarded
the danger of an overdose because they did not know that Trey had
ingested fentanyl.
6 ¶ 15 Plaintiffs argued that governmental immunity was waived
because (1) they, not Trey, were the claimants for the lawsuit, and
they were not incarcerated; and (2) the individual defendants
willfully and wantonly failed to provide Trey with needed medical
attention, failed to thoroughly search his person, and fabricated
records.
¶ 16 The district court granted the motions to dismiss, concluding
that it lacked subject matter jurisdiction to hear the case. The
court relied on the evidence from discovery in the federal case and
did not hold an evidentiary hearing. First, the court found that the
GCSO is immune from liability because Trey was undisputedly a
convicted inmate who was incarcerated for a crime at the time of his
death, the GCSO is immune from tort claims by convicted inmates,
and wrongful death claims are wholly derivative of and dependent
upon the claims that the decedent would have had. Second, relying
on an assumption that Trey had swallowed a baggie containing a
fentanyl patch, and defining “known risk” as the specific knowledge
that Trey had swallowed a fentanyl patch, the court found that
none of the individual defendants had acted with conscious
7 disregard for a known risk, and therefore their conduct was not
willful and wanton.
¶ 17 The plaintiffs appeal each of these rulings.
II. GCSO Immunity Under the CGIA
¶ 18 Plaintiffs argue that because they are not convicted inmates,
and they are the claimants, the GCSO enjoys no immunity from
their wrongful death claim. We are not persuaded.
A. Legal Authority and Standard of Review
¶ 19 The CGIA generally provides immunity for public entities from
tort claims, including wrongful death. As relevant here, section
24-10-106 initially immunizes the public entity against a wrongful
death claim but generally waives the immunity in connection with
the operation of a correctional facility or jail, and then limits the
waiver with respect to claimants who have been convicted of a crime
and incarcerated in a jail pursuant to such conviction, specifically
restoring immunity to that jail in such situations. The statute
provides, as relevant here:
(1) A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided
8 otherwise in this section. Sovereign immunity is waived by a public entity in an action for injuries resulting from:
....
(b) The operation of any . . . correctional facility, as defined in section 17-1-102, C.R.S., or jail by such public entity;
(1.5)(a) The waiver of sovereign immunity created in paragraph[] (b) . . . of subsection (1) of this section does not apply to claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction, and such correctional facility or jail shall be immune from liability as set forth in subsection (1) of this section.
Id.
¶ 20 Because CGIA derogates the common law, courts must strictly
construe provisions that grant immunity, broadly construe the
provisions that waive immunity, and strictly construe exceptions to
waivers in favor of compensating victims. See Medina v. State, 35
P.3d 443, 453 (Colo. 2001); see also Dempsey v. Denver Police Dep’t,
2015 COA 67, ¶ 21.
¶ 21 Section 13-21-202 (the wrongful death statute) provides:
When the death of a person is caused by a wrongful act, neglect, or default of another,
9 and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.
(Emphasis added.)
¶ 22 Where, as here, the underlying facts are undisputed and the
district court decided the jurisdictional issue as a matter of law, we
review de novo. Medina, 35 P.3d at 452.
B. Application
¶ 23 The parties agree that Trey was a convicted inmate for
purposes of the CGIA at the time of his death. Plaintiffs’ argument
that the GCSO (a public entity) should not be immune from their
suit turns on one word in the inmate exception to the immunity
waiver for operation of a jail: “claimants.” However, we agree with
the district court that the question of jurisdiction does not begin
with a definition of the word claimants, but with an interpretation
of the wrongful death statute.
¶ 24 A party is liable in a wrongful death action when the injured
party could have “maintain[ed] an action and recover[ed]
10 damages . . . if death had not ensued.” § 13-21-202. Colorado case
law clearly establishes that the right to collect damages in a
wrongful death case is “dependent upon the right of action which
the decedent would have had, had []he survived [the] injuries.”
Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 102 (Colo. 1995); see
also Steedle v. Sereff, 167 P.3d 135, 140 (Colo. 2007) (The right
“does not arise from a separate tort, but instead is wholly derivative
of the injury to the decedent.”).
¶ 25 When a decedent could not have maintained an action due to
a different section of the Colorado Revised Statutes, the tortfeasor is
not liable to the decedent’s heirs. See Sigman v. Seafood Ltd. P’ship
I, 817 P.2d 527, 530-31 (Colo. 1991) (holding that where the
decedent would have been prevented from suit under a dram shop
liability statute, decedent’s heirs were precluded from bringing a
wrongful death action). As in Sigman, the plaintiffs in this case can
maintain an action only if Trey could have done so had his injuries
not been fatal. Just as the dram shop provisions barred the
decedent’s claims in Sigman, and thus the claims of his heirs, so
too does the CGIA bar the claim of Trey’s parents in this case.
11 ¶ 26 Even granting narrow construction of the immunity
provisions, and broad construction of the waiver provisions, we
could not interpret section 24-10-106 to permit Trey to maintain an
action for his injuries against the GCSO, had he survived his
overdose. In short, under subsections (1), (1)(b), and (1.5)(a) of
section 24-10-106, an injured party cannot sue a jail for a tortious
injury unless the injury (in this case death) occurred in the jail and
the injured (or deceased) party was not a convicted inmate.
Because Trey was a convicted inmate, the GCSO was immune from
suit for any injury to him, even if the injury was death. See
§ 24-10-103(2), C.R.S. 2019 (defining “injury” under the CGIA to
mean “death, injury to a person, damage . . .”). Accordingly, his
parents cannot pursue a wrongful death action against the GCSO
for Trey’s death.
¶ 27 We affirm the portion of the district court’s order dismissing
the plaintiffs’ claims against the GCSO, although we conclude the
dismissal should be for failure to state a claim for relief under
C.R.C.P. 12(b)(5).
III. Public Employee Immunity Under the CGIA
12 ¶ 28 Plaintiffs contend that the district court erred in its analysis of
the willful and wanton conduct of the individual defendants
because it did not consider facts alleged in their complaint. We
agree to a limited extent.
¶ 29 Section 24-10-118(2)(a) provides limited sovereign immunity to
public employees as follows:
A public employee shall be immune from liability in any claim for injury, . . . which lies in tort or could lie in tort . . . and which arises out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing such injury was willful and wanton . . . .
¶ 30 A public employee’s sovereign immunity is a question of
subject matter jurisdiction. As our supreme court recently made
clear, all issues related to an employee’s immunity, including
factual issues such as whether a public employee acted in a willful
and wanton manner, are to be determined by the district court prior
to trial, pursuant to C.R.C.P. 12(b)(1). Martinez v. Estate of Bleck,
2016 CO 58, ¶ 27; see Trinity Broad. of Denver, 848 P.2d at 924.
13 ¶ 31 For willful and wanton conduct to subject a public employee to
liability for a tort claim, the conduct must be more than merely
negligent; the conduct must exhibit a conscious disregard of the
danger to another. See Martinez, ¶¶ 30, 32.
¶ 32 It is the plaintiff’s burden to prove that a public employee has
waived the right to sovereign immunity. Gray v. Univ. of Colo. Hosp.
Auth., 2012 COA 113, ¶ 15. However, “the burden is a relatively
lenient one,” as there is no presumption of sovereign immunity, and
plaintiffs “should be afforded the reasonable inferences of [their]
evidence.” Tidwell v. City & Cty. of Denver, 83 P.3d 75, 85-86 (Colo.
2003). “When the alleged jurisdictional facts are in dispute, the
[district] court should conduct an evidentiary hearing and enter
findings of fact.” Id. But the court may rule without a hearing
when there is no evidentiary dispute. Id. at 86.
¶ 33 We will uphold the factual determinations of the district court
unless those determinations are clearly erroneous. Medina, 35 P.3d
at 452. However, when the court does not make findings of fact
and decides jurisdictional issues as a matter of law, we review de
novo. Id. at 452-53.
14 B. Application
¶ 34 The record supports a finding that Trey died after ingesting
fentanyl. The record is not clear as to when, and in what manner,
Trey ingested fentanyl. However, a finding of this fact is not
dispositive to our analysis.
¶ 35 Of significantly greater import is the legal standard set by the
district court’s interpretation that, for the individual defendants’
conduct to be willful and wanton, Trey’s swallowing a fentanyl
patch is “the danger” that must be consciously disregarded. With
respect to almost all the individual defendants, the district court
stated that there was no evidence the individual defendant “knew or
should have known that Trey Duke ingested a fentanyl patch with a
lethal dose of fentanyl.” 1 Based on that finding, the district court
concluded the defendants’ conduct was not willful or wanton.
¶ 36 We conclude, however, that this level of specificity places an
exceedingly high burden on plaintiffs, when instead the burden
should be a lenient one because we must narrowly construe
1With respect to Deputy Martinez, the court found that there is no evidence that she “had any knowledge of any of the drugs that Trey Duke had ingested, or that he was at risk of an overdose.”
15 statutes that grant governmental immunity. See Tidwell, 83 P.3d at
85-86.
¶ 37 We are aware of no support for the proposition that a public
employee’s knowledge of the specific cause of potential injury or
death is required for the employee’s omissions to constitute willful
and wanton conduct. To the contrary, knowledge and conscious
disregard of a health danger to another is sufficient. See Peterson v.
Arapahoe Cty. Sheriff, 72 P.3d 440 (Colo. 2003) (holding allegations
that the defendants refused to take a beaten man, afraid of
additional beatings, into custody was sufficient to plead a claim
based on willful and wanton conduct); Gray, ¶ 41 (holding
allegations that a physician provided inadequate staffing in an
epilepsy monitoring unit sufficiently alleged willful and wanton
conduct because it created “danger or risk” to patients’ safety); see
also Estate of Goodwin v. Connell, 376 F. Supp. 3d 1133 (D. Colo.
2019) (holding that allegations of the defendant’s failure to
investigate claims of child abuse and manipulation of the complaint
filing system were sufficient to show willful and wanton conduct
and a conscious disregard of a serious risk, without a showing that
the defendant expected the drowning of the ten-year-old child).
16 Accordingly, we conclude that the district court applied an
erroneous legal standard.
¶ 38 The deputies knew that Trey had consumed multiple
controlled substances, as revealed by his behavior and the DRE.
However, the DRE examiner did not conclude that Trey was in
danger of an overdose. A conscious disregard of a danger of
overdose would constitute willful and wanton conduct.
¶ 39 We agree with the district court that for the individual
defendants, other than Deputy Phillips, their conduct as alleged did
not constitute a conscious disregard of a danger that Trey had
overdosed. There is no evidence that Trey requested medical
assistance at the time he was arrested, and, although the deputies
requested that he submit to a blood test, he refused. The facts do
not demonstrate that Trey’s behavior indicated he required medical
attention until sometime after he was served breakfast —
approximately sixteen hours after he was arrested. He was
video-monitored during the first few hours of his confinement, and
he was checked many times after he changed cells, even if some of
the TCS entries are not supported by video evidence. At least
through the time he was served breakfast, Trey was able to function
17 — walking, talking, eating, and sleeping. Although his movements
were sluggish and uncoordinated, as one might expect from an
intoxicated person, he never called for medical attention.
¶ 40 With respect to Deputy Phillips, however, plaintiffs have
alleged some facts to support a finding of willful and wanton
conduct. With record support, plaintiffs allege that when Phillips
saw Trey that morning, he
• knew that Trey had been arrested in an intoxicated state
over seventeen hours earlier;
• saw Trey in an odd position that caused concern to a
trustee inmate familiar with Trey, and later caused
Deputy Rupp enough concern that Rupp attempted to
rouse him;
• was alerted to the concern by the trustee inmate; and
• walked away, saying, “That’s what you get for doing
drugs.”
Although Phillips denies (or does not recall) making that statement
to the trustee inmate, a review of the security videotape shows that
they had a brief exchange after Phillips removed the tray from the
18 cell. In addition, Phillips may have seen spilled food on the floor of
Trey’s cell.
¶ 41 The district court did not address these specific allegations
regarding Deputy Phillips in its order, and it did not make findings
resolving the conflicting accounts of Deputy Phillips, Brandon
Morse, and what appears in the video surveillance. Therefore, we
cannot affirm its conclusion that there was no evidence showing
willful and wanton conduct by defendant Phillips. We therefore
remand this part of the case and direct the district court to conduct
an evidentiary hearing pursuant to Trinity to determine whether it
may exercise subject matter jurisdiction over plaintiffs’ claim
against Deputy Phillips.
IV. Attorney Fees on Appeal
¶ 42 Defendants request attorney fees on appeal pursuant to
section 13-17-201, C.R.S. 2019. The statute provides:
In all actions brought as a result of . . . an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.
19 ¶ 43 Under this section, an award of attorney fees is mandatory
when a trial court dismisses an action under C.R.C.P. 12(b).
Houdek v. Mobil Oil Corp., 879 P.2d 417 (Colo. App. 1994). A
wrongful death claim is a claim for “an injury to person or property
occasioned by the tort of any other person.” Id. at 424.
¶ 44 Section 13-17-201 provides for an award of attorney fees
where “the defendant” moves for and is granted pretrial dismissal
under Rule 12. Using “defendant” in the singular necessarily
applies to each individual defendant against whom an entire action
has been dismissed. See Smith v. Town of Snowmass Vill., 919 P.2d
868, 873 (Colo. App. 1996). Because we have concluded that the
district court properly dismissed plaintiffs’ claims against the GCSO
under C.R.C.P. 12(b)(5), and against the former Sheriff and all of
the deputies other than Phillips under Rule 12(b)(1), we must award
attorney fees for successfully defending an appeal of those
dismissed claims. See Henderson v. City & Cty. of Denver, 2012
COA 152, ¶ 57. We remand to the district court to decide the
amount of attorney fees.
V. Conclusion
20 ¶ 45 We affirm the district court’s dismissal of plaintiffs’ case
against defendant GCSO for failure to state a claim upon which
relief can be granted, and against Sheriff Richard Besecker, Deputy
Ian Clark, Deputy Paula Martinez, Deputy Conner Udell, Deputy
Megan Hollenbeck, Deputy Chad Roberts, and Deputy Brandyn
Rupp for lack of subject matter jurisdiction.
¶ 46 We reverse the district court’s dismissal against Deputy Ryan
Phillips and remand for further proceedings to resolve all remaining
disputed factual issues and jurisdictional issues with respect to
Deputy Phillips. We also remand the determination of the amount
of appellate attorney fees.
JUDGE DAILEY and JUDGE BROWN concur.