The federal appeals court based in Denver agreed last month that a detainee who was attacked in the Clear Creek County jail failed to allege the sheriff and the county knew of a risk to his safety and disregarded it.

Aaron Dugar claimed Sheriff Rick Albers and the board of county commissioners were liable for his injuries. He argued they had responsibility over policies and customs in the jail that amounted to deliberate indifference – meaning they knew of a substantial risk of harm but ignored the near-certain constitutional violations that would ensue.

After a trial judge dismissed Dugar’s lawsuit, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that decision. The panel found Dugar had offered no facts to show the decision-makers responsible for jail operations were aware of the allegedly dangerous circumstances that led to Dugar’s attack by fellow detainee Demontrae Wilson.

“Mr. Dugar alleged merely that (1) Sheriff Albers had high-level policymaking authority,” wrote Judge Harris L Hartz, “and (2) conditions at the facility (including overcrowding, the lack of a direct line-of-sight between officers and detainees, and the housing of Mr. Dugar and Mr. Wilson in the same unit) resulted in the attack.”

According to Dugar’s lawsuit, he was detained pending trial at the Clear Creek jail in June 2019. He was housed in the same area as Wilson, who was accused of attempted first-degree murder. One night, Wilson, apparently unprovoked, lunged at Dugar and began striking and stabbing him.

Other detainees intervened to pull Wilson off Dugar, who lay unconscious on his back. Wilson briefly escaped to resume punching Dugar in the head, before the detainees were again able to stop him. Two minutes after the encounter started, sheriff’s deputies entered the pod to seize Wilson.

Court records show Wilson later pleaded guilty to attempted murder. Dugar’s attorney, Mark E. Scabavea, told Colorado Politics that Wilson’s conviction stemmed from the jail attack. Dugar reportedly suffered permanent injuries, including a broken jaw and facial bones, plus head trauma.

Dugar attributed the attack to three alleged policies of the sheriff and Clear Creek County: understaffing, failing to segregate dangerous inmates from the general population and the inability of jail personnel to see the inmates directly. Dugar alleged that, two weeks prior to his attack, one jail deputy admitted that “two officers to supervise 120 inmates was not enough.”

“Logic dictates that an undermanned jail would be less safe for inmates,” wrote Scabavea. “Additionally, logic also dictates that more violent offenders are segregated from the general population so that they can be more closely observed while housing the other inmates in a safer fashion.”

Last year, U.S. District Court Judge William J. Martínez found such allegations insufficient to show Albers and the county knew any of those purported policies created an obvious risk to Dugar’s safety. Further, the fact that Wilson was detained on suspicion of attempted murder did not necessarily indicate he was a threat to other inmates, and Dugar offered no information about Wilson’s inherent likelihood of attacking others.

As for Dugar’s failure-to-intervene claim against the jail deputies themselves, identified only as “John Does,” Dugar “does not allege any facts supporting their knowledge of the risk Wilson posed beyond his charge for attempted murder,” Martínez noted.

On appeal, Dugar only challenged the dismissal of his allegations against Albers and the county. He believed the risk of a constitutional violation would have been “obvious” under the circumstances. But the defendants pushed back, faulting Dugar for not identifying any other incidents of violence that would have specifically shown Wilson was likely to assault another detainee in the jail and would, therefore, have put policymakers on notice about the problem.

“Correctional facilities cannot stop all inmate-on-inmate confrontations and the mere fact that a confrontation occurred does not establish that it was caused by vague allegations of overcrowding,” wrote attorney Nicholas C. Poppe.

The 10th Circuit panel agreed that the lack of allegations pointing to the defendants’ knowledge of an “almost inevitable” injury had doomed Dugar’s lawsuit.

“Even taking as true the allegation that one officer mentioned to another officer two weeks before the attack that the facility was understaffed, Mr. Dugar pleaded no facts indicating Sheriff Albers was aware of this assessment, let alone that he regarded it as true and consciously chose to disregard it,” Hartz wrote in the Oct. 4 order.

“I pled everything that we knew,” Scabavea told Colorado Politics after the decision. “My thought process is the two officers knew it was overcrowded, so, of course, the sheriff knew.”

The case is Dugar v. Board of County Commissioners et al.