A former Larimer County sheriff’s deputy is not liable for a man’s assault at the hands of another jail detainee, a federal judge ruled on Tuesday.

Dustin Napier suffered a broken jaw and other wounds after his cellmate attacked him in the county jail. On two prior occasions, Napier had asked Deputy Luke Albrook to switch housing assignments, saying he felt unsafe because his cellmate was “weird” and stood over Napier watching him sleep.

After the assault, Napier claimed Albrook violated his constitutional rights by failing to protect him against a known threat. But U.S. District Court Judge Charlotte N. Sweeney sided with Albrook, finding his conduct did not rise to the constitutional standard of “deliberate indifference” to Napier’s safety.

“Here, I don’t even find what defendant Albrook was told was specific enough to alert him to an objectively substantial risk of harm. What he was alerted to was some odd behavior, certainly, but,” she said, “prisons are odd places. That kind of complaint is not sufficient enough to generate the kind of reaction the plaintiff is expecting in this case – namely, moving him because of a substantial risk.”

Napier originally sued multiple law enforcement and medical personnel, plus the county itself. A series of agreements led to Albrook as the only remaining defendant in the case.

Napier was booked into the Larimer County jail in March 2020 for failing to appear in a years-old misdemeanor case. The jail assigned him to a cell with Alex Tovar, who had a lengthy criminal history that included violent offenses.

On March 18, Napier asked Albrook twice if he could switch cells. He said Tovar was “weird” and Napier felt unsafe. He recounted waking up to find Tovar standing over him, watching. “You sleep weird,” Tovar told him.

“You’ll be fine,” Albrook allegedly responded.

The following day, Tovar reportedly took offense at something Napier said. Tovar attacked Napier, choking him, punching him and breaking his jaw. Napier hit the call button in his cell and Albrook responded, taking Napier to get medical care.

Court records show Tovar pleaded guilty to an assault that took place on the day of Napier’s attack, receiving six years in prison.

In his lawsuit, Napier argued he never should have been classified to live with Tovar, given Tovar’s criminal history. Further, Albrook allowed Napier to remain with Tovar even after hearing Napier’s concerns about his safety.

At a hearing in Sweeney’s courtroom, Albrook’s attorney observed the deputy had no role in classifying detainees upon intake, nor did he have knowledge of Tovar’s behavioral or criminal background. All Albrook knew about Tovar was that he was “weird” and had watched Napier sleep, which lawyer Michael T. Lowe argued was “a far cry” from other cases where jail officials ignored obvious risks of violence.

“Prisons and jails are dangerous places. They simply are by their nature,” he said. “The courts have recognized it is not enough that a prison official have knowledge of some danger. That is insufficient to establish deliberate indifference.”

Napier’s lawyer countered Albrook had sufficient information to justify an intervention before the assault, and he could have accessed Tovar’s history if he wanted to.

“Isn’t it a threat to stand over somebody and watch them sleep and shock them when they wake up and say,’ You sleep weird’ in the context of a prison?” said John Shoreman. “I believe that is a threat. It is unsettling.”

Sweeney, ruling from the bench, agreed Albrook was unaware of Tovar’s prior criminal conduct at the time of Napier’s assault, meaning there was no constitutional violation from ignoring Napier’s request to change cells.

“This is a low-level, individual officer in the facility who has no knowledge of the inmate and is reacting to a report from another inmate that is vague and does not alert him to significant risk of harm,” she said.

Sweeney added the case might be different if the jail personnel who classified Tovar to live with Napier were the defendants, but Albrook could not be liable for his role.

The case is Napier v. Albrook.