Afola v. Corrections Corporation of America et al

Filing 65

ORDER granting 61 Motion to Dismiss and Denying Plaintiffs' request for attorney fees by Judge John L. Kane on 06/10/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12cv02394-JLK
LAGALIA A. AFOLA, Individually and as Personal Representative of
THE ESTATE OF TERRELL D. GRISWOLD,
Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA,
WARDEN BRIGHAM SLOAN, in his Individual and Official Capacity,
DAVID OBA, M.D., in his Individual and Official Capacity,
MANDY MARQUEZ, R.N., in her Individual and Official Capacity,
MARY BUENO-SANDOVOL, LPN, in her Individual and Official Capacity,
CAPTAIN TROY ABDULLA, in his Individual and Official Capacity,
CORRECTIONS OFFICER TRUJILLO, in his Individual and Official Capacity,
SERGEANT MARY LEYBA, in her Individual and Official Capacity,
ANGIE TURNER, RN, HSA, in her Individual and Official Capacity,
STEVE L. BROWN SR., in his Individual and Official Capacity,
LEON KELLY, M.D., in his Individual and Official Capacity,
ROBERT FOWLER, in his Individual and Official Capacity,
GREGORY KIRKLAND, in his Individual Capacity,
Defendants.
ORDER GRANTING DEFENDANT FOWLER’S MOTION TO DISMISS
Kane, J.

On October 28, 2010, Terrell D. Griswold died in his jail cell while incarcerated at
Bent County Correctional Facility (BCCF). His estate and his mother, Ms. Lagalia Afola,
bring this lawsuit against a number of state and county defendants, alleging various
federal and state constitutional causes of action arising out of Mr. Griswold’s
incarceration, the medical care (or alleged lack thereof) he received at BCCF before his
death, and an alleged cover-up of the circumstances of his death. The matter is currently
before the Court on Defendant Robert Fowler’s Motion to Dismiss, Doc. 61, for failure to

state a claim per Federal Rule of Civil Procedure 12(b)(6).1 Defendant Fowler, MD. is the
County Coroner for Otero County, the county in which the hospital where Mr. Griswold
was pronounced dead is located. He is sued individually and in his official capacity.
Of the Second Amended Complaint’s seven claims, two are lodged against
Defendant Fowler, specifically, claims for conspiracy under 42 U.S.C.§§ 1983 and 1985.
I find Defendant Fowler’s briefing persuasive, and GRANT his Motion as to dismissing
both claims. I am mindful that this case is still in its infancy, that discovery has yet to
commence, and that claims for conspiracy often present unique pleading challenges, but I
nonetheless have find that the Second Amended Complaint is insufficient under
Iqbal/Twombly.
Legal Standard
The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 544 (2007) sets out the standard for considering a motion to dismiss for
failure to state a claim. It is no longer enough that a claim be conceivable; it must be
plausible. Id. at 570. This standard has been characterized by the Tenth Circuit as
follows: “to withstand a motion to dismiss, a complaint must contain enough allegations
of fact ‘to state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10 Cir. 2008), (quoting Twombly, 550 U.S. at 570). Furthermore:
[u]nder this revised standard, as we explained in Ridge at Red
Hawk, L.L.C. v. Schneider:

1

In total, there are thirteen named Defendants in this matter; only Defendant Fowler
moves to dismiss, the others having Answered.

the mere metaphysical possibility that some
plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint
must give the court reason to believe
that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.
493 F.3d 1174, 1177 (10 Cir. 2007) (emphasis in original).
The burden is on the plaintiff to frame a “complaint with
enough factual matter (taken as true) to suggest” that he or
she is entitled to relief. Twombly, 127 S. Ct. at 1965.
Id. at 1247. More recently, the Supreme Court further clarified the pleading requirements
set forth in Twombly:
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” [Twombly, 550 U.S.] at 570,
127 S.Ct. 1955. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Id., at 556, 127 S.Ct. 1955. The
plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557, 127 S.Ct. 1955 (brackets
omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).
Background
The operative complaint alleges a plethora of federal and state constitutional
violations against several defendants. Generally, Plaintiffs allege that Mr. Griswold was
denied adequate medical care while incarcerated at BCCF, that that denial led to his
premature death, and that various defendants conspired to cover up the true facts
surrounding Mr. Griswold’s death. Plaintiffs do not allege that Defendant Fowler was

involved in any of the acts occurring before Mr. Griswold’s death. Therefore, a detailed
summary of all of the factual allegations in the complaint is not necessary to address the
issues concerning Defendant Fowler.
Regarding the aftermath and investigation of Mr. Griswold’s death, the Second
Amended Complaint alleges that Dr. Fowler conspired with various other defendants to
cover up the alleged true causes of decedent’s death by lying to Mrs. Afola, refusing to
provide the death certificate, and then falsifying the cause of death. Doc. 58-1, at p. 16, ¶
77. Specifically, Plaintiff Afola alleges that Defendants Kirkland and Brown, both
Colorado Department of Corrections employees, met at BCCF on the day Mr. Griswold
died and “conspired and acted in concert to destroy and falsify evidence” and also met
with Defendant Dr. Kelly, a forensic pathologist for El Paso county, during the autopsy
Defendant Kelly performed on Mr. Griswold. Doc. 53-1 at pp. 13-14, ¶¶ 67-68.
Defendants Kirkland and Brown reportedly told Defendant Kelly that Mr. Griswold
“refused to take his blood pressure medications.” Id. at p. 14, ¶ 68. Following the
autopsy, Plaintiff Afola alleges that Defendant Kelly falsely reported the cause of death
to be “hypertensive cardiovascular disease and a refusal to take blood pressure
medications,” which findings were released in a report on November 24, 2010. Id. at p.
14, ¶¶ 69-70. Plaintiff Afola alleges that she was told by Defendant Kirkland on October
29, 2010, that Defendant Kelly “said the cause of death was an enlarged heart only, no
other problems.” Id. at p. 12, ¶ 61. Plaintiff Afola believes her son died of complications
from a complete urinary obstruction. Id. at p.15, ¶75.

There are no allegations regarding any meetings or conversations or, indeed, any
kind of contact between Defendant Fowler and any of the other Defendants. All
allegations concerning Defendant Fowler discuss Plaintiff Afola’s contacts with him.
Having been told Dr. Fowler served as coroner for her son, she began to telephone him.
Id. at p. 12, ¶ 59. When Dr. Fowler “finally” answered her calls, he allegedly told her
that her son died of “cardiomegaly, heart 500-600 grams, an unknown condition, not
something anyone could have known of, and like what you see in athletes who suddenly
die.” Id. at p. 12, ¶62. Plaintiff Afola also alleges that Defendant Fowler delayed in
releasing Mr. Griswold’s death certificate and refused to change such certificate to reflect
the cause of death as complications from urinary obstruction. Id. at pp. 16, 25 ¶¶ 77, 97.
Ms. Afola states:

Coroner Fowler joined in the conspiracy by lying to Mrs. Afola,
refusing to provide the death certificate, and then falsifying the
cause of death. Both he and Investigator Kirkland told Plaintiff
Afola that her son died due to an enlarged heart or cardiomegaly.
When pressed to be truthful on December 28, 2010, Robert Fowler
promoted the conspiracy by insisting to Mrs. Afola that her son
refused to take his blood pressure and prostate medications.

…
[Defendant Fowler] furthered the conspiracy by relaying
misinformation, by refusing to release the death certificate for
months, and by refusing to correct the cause of death which
incorrectly indicates that obstructive uropathy played no part in
the death.
Id.
42 U.S.C. §1985—Conspiracy

A claim brought pursuant to 42 U.S.C.§ 1985 requires a showing of “(1) a
conspiracy, motivated by racially discriminatory animus; (2) to deprive plaintiff of equal
protection of the laws; (3) an act in furtherance of the conspiracy; and (4) a deprivation of
rights resulting therefrom.” Paris v.Southwestern Bell Telephone Co., 94 Fed. Appx. 810,
815 (10 Cir. 2004).
The Second Amended Complaint states that “Plaintiff is alleging based on
information and belief that the conspiracy was motivated by racial animus. Plaintiff Afola
and her son are African- Americans.” Doc. 58, at p. 23, ¶ 92. Apart from an earlier
allegation that Mr. Griswold “was a 26 year old African American man,” id. at p. 2, ¶ 5,
this is the only allegation in the entire 32 page Second Amended Complaint referencing
race in any manner.
A bare assertion that the plaintiff and defendant are of different races race does not
sufficiently allege racial animus. “Mere differences in race do not, by themselves, support
an inference of racial animus.” Green v. Corr. Corp. of Am., 401 Fed. Appx. 371, 376
(10 Cir. 2010). For example, in Sawyer v. Burke, the Tenth Circuit upheld the United
States District Court for the District of Kansas’s sua sponte dismissal of a pro se prisoner
complaint. Sawyer v. Burke, 2012 WL 5974236 * 2 (10 Cir. 2012)(unpublished decision).
The district court had found no allegations to support racial animus and the Tenth Circuit
agreed, holding, “[the plaintiff] has offered nothing more than the unsubstantiated
assertion that because he is African American, the decision to withhold the clock radio
and stereo was motivated by racial animus.” Id.

See also Casillas v. Beach, 2010 WL 1348397 * 5-6 (D. Colo. 2010) (“Plaintiff
states that ‘the actions of the Defendants were racially motivated.’ Plaintiff does not
allege any other facts that would demonstrate racial animus or discrimination based on
race, or explain why he believes Defendants’ alleged conduct was motivated by race.”);
Howard v. Las Animas County Sheriff’s Office, 2010 WL 1235668 * 10 (D. Colo. 2010)
(“Plaintiff has presented nothing more than conclusory allegations to show agreement
and concerted action among Defendants. For example, he alleges that there was an
‘agreed conspiracy in racial animus,’ ...”); Johnson v. City of New York, 669 F. Supp. 2d
444, 450 (S.D.N.Y. 2009) (“The mere fact that plaintiff and defendants are of different
races, standing alone, is simply insufficient as a factual pleading to allege racially
motivated discrimination for purposes of a plausible section 1981 claim.”).
Plaintiff Afola’s simplistic argument that the alleged conspiracy may be presumed
to have been motivated by racial animus purely because she and her son are AfricanAmerican is insufficient to survive a 12(b)(6) motion to dismiss. Allowing the claim
against Dr. Fowler to proceed by sole virtue of the phrase “racial animus” being included
in the allegation is squarely at odds with Iqbal’s admonition not to tolerate “threadbare
recitals of a cause of action's elements” as bases for suit.
42 U.S.C. § 1983—Conspiracy
A prima facie claim for conspiracy under 42 U.S.C. § 1983 consists of the
following elements: “(1) a shared conspiratorial objective (the agreement to deprive the
Plaintiff of a constitutional or statutory right); (2) concerted action by the Defendants;
and (3) an actual deprivation of rights.” Snell v. Tunnell, 920 F.2d 673, 702 (10 Cir.

1990). “Conclusory allegations of conspiracy are insufficient to state a valid § 1983
claim.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1994). To state
a cause of action for conspiracy under § 1983, a plaintiff must “allege specific facts
showing agreement and concerted action among defendants.” Durre v. Dempsey, 869
F.2d 543, 545 (10 Cir. 1989). More specifically,
[A]n allegation of parallel conduct and a bare assertion of
conspiracy will not suffice. Without more, parallel conduct
does not suggest conspiracy, and a conclusory allegation
of agreement at some unidentified point does not supply facts
adequate to show illegality. Hence, when allegations of
parallel conduct are set out. . . they must be placed in a
context that raises a suggestion of a preceding agreement, not
merely parallel conduct that could just as well be independent
action.
Twombly, 550 U.S. at 556-57. “[A]n allegation of parallel conduct absent context
implying a meeting of the minds” is, by itself, insufficient to withstand a motion to
dismiss.” Gee v. Pacheco, 627 F.3d 1178, 1183 (10 Cir. 2010).
Although I am required to make all reasonable inferences from the facts in
Plaintiffs’ favor, I need not sift through Plaintiffs’ entire complaint in search of a
coherent theory for their conspiracy claim. See Tonkovich, 159 F.3d at 533-34. I have
made every effort to entertain all reasonable inferences regarding Plaintiff's contentions,
but here the averments simply fail in detail and theory. The sequence of events set forth
by Plaintiffs does not provide the context and inference of meeting of the minds between
Defendant Fowler and any other Defendant.
The Second Amended Complaint clearly represents that it was Plaintiff Afola who
sought out Defendant Fowler to ask him questions—Defendant Fowler did nothing of his

own accord to reach out in furtherance of the alleged conspiracy. Assuming, as is
required, that the allegations in the Second Amended Complaint are true, if Defendant
Fowler spoke to Plaintiff Afola about Mr. Griswold’s enlarged heart or blood pressure
medications, there is nothing to indicate that he was not simply repeating the findings
made by the pathologist, Defendant Dr. Kelly. Indeed, it is difficult to understand how
Defendant Fowler, who did not perform the autopsy and was not present at the autopsy,
could take a position different from the person who had actually performed the autopsy,
Dr. Kelly. Similarly, with respect to Plaintiff Afola’s allegations regarding Defendant
Fowler’s alleged delay in releasing the death certificate and alleged refusal to change
such certificate, it is difficult to understand how Defendant Fowler could legitimately
include a cause of death on the death certificate different from the cause determined by
Defendant Kelly who, again, had actually performed the autopsy and who allegedly also
refused to change the cause of death from cardiac hypertrophy due to hypertension.
Plaintiffs have not provided allegations regarding a meeting of the minds between
Defendant Fowler and any other Defendant save for the bare conclusory allegation that
there was a conspiracy. No suggestions are provided for a context in which a conspiracy
may be inferred, as in, for example, what motivation Defendant Fowler might have to
cover up the cause of death of an inmate. Plaintiffs’ allegations set forth only a “sheer
possibility” that Defendant Fowler was involved in a conspiracy and are insufficient to
survive the Motion.
Defendant Fowler is Entitled to Qualified Immunity

Defendant Fowler also argues he is, in any event, entitled to qualified immunity.
The doctrine of qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). A motion based on a claim of qualified immunity
imposes the burden on the plaintiff to show “both that a constitutional violation occurred
and that the constitutional right was clearly established at the time of the alleged
violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir.2009) (internal quotations
omitted).
Plaintiffs offer, among other amiss authority, Stump v. Gates, 986 F.2d 1429, *1
(10 Cir. 1993) (unpublished) in support of their proposition that Defendant Fowler’s
conduct violated a “clearly established right.” In Gates, the Tenth Circuit denied
qualified immunity to a police chief and a detective after considering “whether a
reasonable officer would have known at the time of [decedent’s] death that a deliberate
failure to investigate and quick destruction of evidence that might have proved homicide
was a violation of the decedent’s children’s right of access to the courts.” Id. at * 2. The
Tenth Circuit stated that “[w]e believe that any reasonable officer would have known that
if the conduct occurred as alleged by the plaintiffs in this case, it would violate the
constitutional rights of the decedent’s children.” Id. at * 3. Here, however, there is no
allegation that Defendant Fowler was responsible for any “quick destruction” of evidence

and no allegation that Defendant Fowler had a duty to investigate decedent’s death
beyond ordering an autopsy and then referring the matter back to Bent County.2
Moreover, the allegations found in the Gates complaint regarding evidence
destruction were greatly more detailed than those alleged by the Plaintiffs in this case.
As discussed in the District Court opinion, the Gates plaintiffs specifically alleged that
the defendants destroyed, among other evidence, two guns found at decedent’s home.
Stump v. Gates, 777 F.Supp. 808, 812 (D.Co.1991). Additionally, Plaintiffs provided a
date for the alleged destruction, June 1, 1984. Id.
Although the Second Amended Complaint in this case is peppered with vague
allegations that Defendant Fowler destroyed/conspired to destroy evidence, there are no
allegations that Defendant Fowler destroyed/conspired to destroy any particular evidence,
nor does the Complaint ever allege when Defendant Fowler is believed to have
destroyed/conspired to have destroyed any evidence. Of course, a plaintiff need not
always plead with specificity what or when evidence is believed to have been
destroyed—the very act of destruction, after all, may make such knowledge impossible.
Nonetheless, it is reasonable to expect Plaintiffs to bolster their claims against Defendant
Fowler by, at the very least, sketching out the essential nature of what evidence
Defendant Fowler might possibly have destroyed, e.g., an autopsy or other medical
records. That this is smart pleading is surely recognized by Plaintiffs themselves, as

2

It is worth mentioning that Defendant Fowler is the Otero County Coroner. Defendant Fowler figures in
this case only because Mr. Griswold died after being transported to the Arkansas Valley Regional Medical
Center, which is located in Otero County. As the Otero County Coroner, Defendant Fowler ordered an
autopsy to be completed and then referred the matter back to the originating county, Bent County, as that
is from where Mr. Griswold was transported and is where BCCF is located.

elsewhere they allege specific pieces of evidence destroyed by specific individuals. For
example, at ¶ 45, Plaintiffs allege that Corrections Corporation of America (“CCA”)
“destroyed copies of Mr. Griswold’s kites and altered the electronic kite log.” At ¶70,
Defendant Kelly is alleged to have “failed to take or destroyed internal photographs.” At
¶71, Defendant Department of Corrections (“DOC”) is alleged to have “falsified or
destroyed witness statements,” and Defendant Kirkland is alleged to have destroyed
video surveillance.
Defendant Fowler suggests, and I agree, that this case is more similar to a more
recently decided case, Lynch v. Barrett, 703 F.3d 1153, 1155 (10 Cir. 2013). The
plaintiff in that case claimed that the defendant officers had violated his right of access to
the courts by withholding the identities of the officers who had allegedly used excessive
force against the plaintiff. The Tenth Circuit noted that it had previously rejected a right
of access claim based on a “code of silence” and stated as follows:
At least in the Tenth Circuit, the question of whether an
evidentiary cover-up by police officials may violate an
individual’s constitutional right to court access was not clearly
established at the time of the alleged violation. A reasonable
officer might not have understood what Defendant Officers did
(or refused to do) violated that right.
Id. at 1162.
Although Defendant Fowler is a coroner, not a police officer, Plaintiffs have not pointed
to any authority indicating that this analysis would be different for a coroner than a police
officer. Indeed, one would expect a coroner to be less up to speed on constitutional
violations than a police officer. Because Plaintiffs have failed to establish either that

Defendant Fowler violated any constitutional rights of Plaintiffs, or that such rights were
clearly established, he is entitled to qualified immunity.
Plaintiffs Are Not Entitled to Attorney Fees
Plaintiffs request their attorney fees per 28 U.S.C. § 1927, asserting that Defendant
Fowler’s Motion is “frivolous and vexatious” and that it caused them prejudicial delay.
To support this contention, Plaintiffs state that Defendant Fowler’s arguments were
already raised in the Motions to Dismiss filed by Defendants Kelly and Kirkland. That
those motions and the instant motion may share overlapping arguments is irrelevant in
two respects and the delay argument is a non-sequitur.
First, the Motions to Dismiss filed by Defendants Kelly and Kirkland were not
ruled upon and were mooted upon Plaintiffs filing the Second Amended Complaint. The
fact that they were not renewed upon Plaintiffs filing the Second Amended Complaint
provides no information as to whether they were meritorious in the first instance.
Second, the allegations set forth in the Second Amended Complaint with respect to
Defendant Fowler are to be tested on the merits of the pleadings as they are directed to
claims against him, not as they are directed against any other defendant. Defendant
Fowler has not previously filed a dispositive motion in this matter and Plaintiffs have not
presented any legitimate justification as to why Defendant Fowler should not be allowed
to test the sufficiency of the allegations against him.
Finally, Plaintiffs’ argument that they are prejudiced by the delay of the
proceedings caused by Defendant Fowler’s Fed. R. Civ. P. 12 Motion fails to

acknowledge that the Motion is in response to Plaintiffs’ third attempt to set out their
claims in a complaint.
Conclusion
For the foregoing reasons, I GRANT Defendant Fowler’s Motion to
Dismiss, Doc. 61, and DENY Plaintiffs’ request for attorney fees.

DATED:

June 10, 2013

BY THE COURT:
/s/John L. Kane
John L. Kane, U.S. Senior District Judge