10th Circuit: Prisoner who was victim of unprovoked assault by Denver sheriff’s deputy failed to allege Section 1983 municipal liability claim

Anthony Waller, a criminal defendant, was at a hearing in a courtroom inside the Denver city jail. He politely and calmly addressed the judge about his disagreement with the State’s case against him. Suddenly, a deputy sheriff spun Mr. Waller around and threw him into a glass wall and metal post, inflicting injuries on him. You can see footage of the incident in this story by Justin Joseph of KDVR in Denver.

Mr. Waller sued the deputy under Section 1983 and won an excessive force judgment against him. But the district court dismissed Mr. Waller’s municipal liability claims against Denver, based on its allegedly inadequate hiring practices and failure to train the deputy, because the complaint did not state sufficient facts to support those claims.

In Waller v. City and County of Denver (opinion by Judge McKay), the Tenth Circuit affirmed. First, it restated the bedrock principal that a municipality is not liable in respondeat superior for the acts of its employees. Instead, a municipality is only liable if the plaintiff shows that the government’s “policy or custom” caused the injury.

Here, Mr. Waller generally alleged that the City of Denver has inadequate hiring policies, and that the deputy who assaulted him was hired due to nepotism. But he failed to allege that if adequate hiring practices had been followed, they would have shown that hiring this particular deputy presented a known or obvious risk of harm.

As for Mr. Waller’s “failure to train” theory, the Court observed that it is usually hard to prove this sort of claim, and normally requires proof of a pre-existing, similar pattern of constitutional violations. Mr. Waller alleged only one similar assault by a Denver sheriff’s deputy, which was insufficient to show a “pattern.” He also alleged that a number of inmates died or were injured while in custody, but did not allege that these incidents were the result of any use of force by sheriff’s deputies. Finally, Mr. Waller’s complaint mentioned a number of excessive-force incidents that occurred after his injury, but those were insufficient to show a pre-existing pattern.

This case is a reminder that municipal liability claims under Section 1983 are hard to establish. If you are a plaintiff’s lawyer, it isn’t sufficient to generally allege the existence of a policy or custom. Instead, careful investigation of the municipality’s history of previous incidents is required to find those that might support your case.

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