Thursday, November 18, 2010
Porro v. Barnes No. 10-6002
United States Court of Appeals for the Tenth Circuit
2010 U.S. App. Lexis 23247 November 9, 2010
Alfredo Yero Porro, a federal immigration detainee was acting in a disruptive manner and destroying his cell. A certified emergency response team (CERT) removed him from his cell, walked him to the booking area, and restrained him on a chair. CERT member Kenny Lovett tasered Mr. Porro at least three times while he was restrained. Mr. Porro brought a claim under 42 U.S.C. §1983 against Mr. Lovett, and his supervisor Sheriff Stanley Barnes and Michael Bryant, Mr. Barnes successor, in their official capacity. The district judge entered summary judgment against Mr. Lovett and awarded damages of $100,000. The court granted summary judgment to Sheriffs Barnes and Bryant because Mr. Lovett’s behavior was perpetrated outside the policies and procedures implemented by the supervising defendants.
Mr. Porro appealed the summary judgments in favor of Mr. Barnes and Mr. Bryant, but did not indicate what section of the constitution was violated or why he was detained. §1983 claims of excessive force can be maintained under the Fourth, Fifth, Eighth, or Fourteenth amendment depending where in the criminal justice system the violation occurred. Violations occurring during arrest are covered by the Fourth Amendment and claims from incarcerated persons serving sentences are covered by the Eighth. A person in federal immigration detention who is already detained, but not serving a sentence does not fit under either of these amendments. Therefore the court concludes that any §1983 claim in these circumstances, has to be brought under either the Fifth or Fourteenth Amendments. In this case the defendants were state officials and therefore the Fourteenth Amendment applied.
A §1983 claim requires direct personal participation by the defendant or failure to enact obviously needed procedures or training. It is not sustainable by strict liability or respondeat superior. The sheriff defendant in the present case did not authorize, participate nor was present at the tasering. There was no obvious specific deficiency identified by Mr. Porro in the training the officers received. As the court notes "To create a triable question of fact on the use of excessive force, a plaintiff must do more than show that the defendant county failed to adopt the most porotective possible policy against the application of force. " (Id 1) Therefore, Mr. Porro’s claim against Sherriff Barnes failed.