Vreeland v. Fisher et al

Filing 136

ORDER. ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 128] is ACCEPTED in part. ORDERED that defendants Douglas County Sheriff David Weaver, Dea Aragon, and Michael Frenchs Motion to Dismiss [Docket No. 35] is GRANTE D. ORDERED that defendants Joan M. Shoemaker, Kari Baroni, and Richard Raemisch's Motion to Dismiss Complaint [Docket No. 37] is GRANTED. ORDERED that defendant Karen Johnson, M.D.s Motion to Dismiss [Docket No. 43] is GRANTED. ORDERED that d efendant Heart of the Rockies Regional Medical Center's Motion to Dismiss [Docket No. 46] is GRANTED. ORDERED that defendant Thomas C. Fisher, M.D.s Motion to Dismiss Complaint [Docket No. 75] is GRANTED in part and DENIED in part. ORDERED th at plaintiff's first, third, fourth, fifth, seventh, and eighth claims for relief are dismissed with prejudice. ORDERED that plaintiff's sixth claim for relief is dismissed without prejudice. Plaintiff's second claim for relief remains pending by Judge Philip A. Brimmer on 09/29/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02422-PAB-KMT
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
THOMAS C. FISHER, MD,
KAREN A. JOHNSON, MD,
DEA ARAGON,
JOAN M. SHOEMAKER,
HEART OF THE ROCKIES REGIONAL MEDICAL CENTER,
RICHARD RAEMISCH,
THE DOUGLAS COUNTY SHERIFF, MR. WEAVER,
KARI BARONI, CDOC/BVCF, H.S.A., and
MICHAEL FRENCH,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) filed on August 20, 2014
[Docket No. 128]. The magistrate judge recommends that the Court grant motions to
dismiss filed by defendants Douglas County Sheriff David Weaver, Dea Aragon, and
Michael French (the “Douglas defendants”) [Docket No. 35]; defendants Joan M.
Shoemaker, Kari Baroni, and Richard Raemisch (the “CDOC defendants”) [Docket No.
37], defendant Karen A. Johnson, M.D. [Docket No. 43], def endant Heart of the
Rockies Regional Medical Center (“HRRMC”) [Docket No. 46], and defendant Thomas
C. Fisher, M.D. [Docket No. 75]. On August 29, 2014, the Court granted plaintiff until

September 18, 2014 to file his objection to the Recommendation. On September 22,
2014, Plaintiff filed his objections. Docket No. 132. Although untimely, in the interest of
justice, the Court accepts the late-filed objections.
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a
proper objection, the Court may review a magistrate judge’s recommendation under any
standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that
Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). An objection is proper if it is specific enough to enable the Court “to focus
attention on those issues–factual and legal–that are at the heart of the parties’ dispute.”
United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of
plaintiff’s pro se status, the Court construes his filings liberally. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
I. ANALYSIS
Plaintiff is an inmate at the Buena Vista Correctional Facility (“BVCF”). Docket
No. 1 at 5. Before his transfer to BVCF, plaintiff was incarcerated at the Douglas
County Jail in Douglas County, Colorado from 2004 to 2008. Id. The relevant facts are
set forth in detail in the Recommendation and will not be recited here except as relevant
to the Court’s de novo review.

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A. The Douglas Defendants’ Motion to Dismiss
Plaintiff objects to the Recommendation’s finding that his claims against the
Douglas defendants are barred by the applicable statute of limitations. Plaintiff asserts
two claims against the Douglas defendants, both stemming from a letter (the “letter”)
that the Douglas defendants allegedly wrote sometime in 2005 that stated that plaintiff
had a history of faking illnesses. Docket No. 1 at 6. In his first claim for relief, plaintiff
alleges that the Douglas defendants transmitted the letter to the Douglas County Jail
medical staff, which prevented plaintiff from receiving treatment between October 2004
and October 2008, when plaintiff was transferred to BVCF. Id. at 22. In his seventh
claim for relief, plaintiff alleges that the Douglas defendants, by placing the letter into
circulation, conspired to violate plaintiff’s civil rights. Id. at 40. Plaintiff argues that,
contrary to the magistrate judge’s findings that he was required to bring any claims
against the Douglas defendants no later than October 2010, he could not hav e brought
any claim until he suffered a physical injury due to the Douglas defendants’ conduct,
and that plaintiff did not suffer any physical injury until 2012. Docket No. 132 at 6-7
(citing 42 U.S.C. § 1997e(e)).
“State statutes of limitations applicable to general personal injury claims supply
the limitations periods for [42 U.S.C.] § 1983 claims.” Beck v. City of Muskogee Police
Dep’t, 195 F.3d 553, 557 (10th Cir. 1999). Therefore, in this case, plaintiff’s § 1983
claims are subject to a two-year statute of limitations. See Colo. Rev. Stat. § 13-80102(1)(g) (“All actions upon liability created by a federal statute where no period of
limitation is provided in said federal statute” and “regardless of the theory upon which

3

suit is brought . . . must be commenced within two years”); see also Hunt v. Bennett, 17
F.3d 1263, 1265 (10th Cir. 1994) (finding that Ҥ 1983 claims are best characterized as
personal injury actions and we therefore apply” the State of Colorado’s two-year statute
of limitations) (citation omitted)).
Federal law, however, “governs the time of accrual of § 1983 claims.” Beck, 195
F.3d at 557. Generally, a § 1983 claim “accrued when [plaintiff] knew or should have
known that his constitutional rights had allegedly been violated.” Parkhurst v. Lampert,
264 F. App’x 748, 749 (10th Cir. 2008) (unpublished) (citing Beck, 195 F.3d at 557).
The issue of whether claims are time-barred by the applicable statute of limitations can
be resolved on a motion to dismiss where the “answer is apparent on the face of the
complaint.” Dummar v. Lummis, 543 F. 3d 614, 619 (10th Cir. 2008).
Plaintiff’s first claim against the Douglas defendants is that they prevented
plaintiff from receiving medical treatment while housed in the Douglas County Jail
between 2004 and 2008. Plaintiff argues that he did not have a physical injury before
2012, but only a mental or emotional injury. Docket No. 132 at 6-7. As a result, he
states that the Prison Litigation Reform Act prevented him from filing any claim for
mental or emotional injury until 2012, which prevents application of the two year statute
of limitations. See 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought . . .
for mental or emotional injury suffered while in custody without a prior showing of
physical injury”) (emphasis added). Plaintiff’s own allegations, however, contradict the
assertion that he had no physical injuries before 2012. Plaintiff alleges that he
complained of numerous ailments including a tumor on his left testicle and “serious,

4

chronic stomach and intestine and appendix pain and cramps” while he was
incarcerated at the Douglas County Jail. Docket No. 1 at 6-7. These allegations
establish that plaintiff believed he was suffering from physical injuries that went
untreated before leaving the Douglas County Jail in October 2008. Thus, plaintiff “knew
or should have known” of his claim that he was not receiving proper medical care at the
Douglas County Jail no later than October 2008, Parkhurst, 264 F. App’x at 749, and
plaintiff was required to bring this claim no later than October 2010. Plaintiff’s claim is
therefore barred by the two-year statute of limitations.
Plaintiff argues that the continuing violation doctrine should apply to prevent
application of the statute of limitations. Docket No. 132 at 7. The continuing violation
doctrine, first employed in Title VII litigation, “would permit a plaintiff to challenge
incidents that occurred outside of the statute of limitations if the incidents are
sufficiently related and thereby constitute a continuing pattern of wrongful conduct.”
Fogle v. Pierson, No. 05-cv-01211-MSK-CBS, 2008 WL 821803 at *5 (D. Colo. Mar. 26,
2008) (citation and quotation omitted). The Tenth Circuit has declined to decide
whether the continuing violation doctrine applies to § 1983 claims. See Mata v.
Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011). Moreover, the continuing violation
doctrine would not preserve plaintiff’s claims against the Douglas defendants. Plaintiff
argues that the continuing violation doctrine should apply because the letter “began its
circulation in 2005” and it caused “an injury that is continuing.” Docket No. 132 at 7.
The continuing violation doctrine, however, is “‘triggered by continual unlawful acts, not
by continual ill effects from the original violation.’” Mata, 635 F.3d at 1253 (quoting

5

Parkhurst, 264 F. App’x at 749). Plaintiff makes no suggestion that he was not aware
of the letter before October 2008. Accordingly, the Court finds no error with the
Recommendation of dismissal of plaintiff’s claims against the Douglas defendants.
B. The CDOC Defendants’ Motion to Dismiss
1. Claims Against Defendant Raemisch
Plaintiff does not object to dismissal of all claims against defendant Raemisch.
Docket No. 132 at 8. In the absence of an objection, the district court may review a
magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“[i]t does not appear that Cong ress intended to require district
court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings”). With respect to plaintiff’s
claims against defendant Raemisch, the Court has reviewed the Recommendation to
satisfy itself that there is “no clear error on the face of the record.”1 Fed. R. Civ. P.
72(b), Advisory Committee Notes. Based on this review, the Court has concluded that
the Recommendation is a correct application of the facts and the law.
2. Claims One and Three: Eighth Amendment Violation
Plaintiff objects to the Recommendation’s finding that claims one and three
against defendants Shoemaker and Baroni fail to state a claim because plaintiff did not
allege personal participation in the violation of his constitutional rights. Docket No. 132

1

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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at 8-9.2 Plaintiff argues that he had repeated “personal face to face contact with Baroni”
and that she has repeatedly denied care. Id. at 8. Plaintiff also argues that defendant
Shoemaker has not only denied grievances, but also that he met and spoke with
defendants Fisher and Baroni and decided to deny medical care. Id. at 9.
“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). Thus, there must be an affirmative link between actions taken by a defendant
and any plan or policy put into effect that violates a plaintiff’s constitutional rights.
Dodds v. Richardson, 614 F.3d 1185, 1200-01 (10th Cir. 2010).
The allegations described in plaintiff’s objections appear nowhere in the
complaint. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) (“[i]ssues
raised for the first time in objections to the magistrate judge’s recommendation are
deemed waived”) (quoting Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)). As
to defendant Shoemaker, plaintiff’s only specific allegations concern two denials of
grievances. See Docket No. 1 at 11-12. But “[the] denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009).
As to defendant Baroni, the complaint contains only conclusory allegations that
2

Plaintiff’s first claim for relief purports to assert claims for a violation of the Fifth
and Fourteenth Amendments in addition to the Eighth Amendment. Docket No. 1 at 22.
Plaintiff’s claim, however, is based entirely on the denial of medical care, and contains
no facts that support an inference that his rights under the Fifth and Fourteenth
Amendments were violated. Thus, the Court construes plaintiff’s first claim as a claim
for violation of the Eighth Amendment.
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defendant Baroni, in connection with other defendants, denied plaintiff medical care.
Docket No. 1 at 19 (“[d]efendant Fisher, defendant Shoemaker and defendant Baroni
have all denied medical treatment and or any tests whatsoever”), 22 (plaintiff was
“denied medical care by defendant Fisher, Shoemaker and Baroni from October 2008
until the present”), 41 (“defendants Baroni and Shoemaker refuse any up to date testing
at all”). The Court is unable to determine from plaintiff’s allegations any specific
acts–either denial of grievances or otherwise–that defendant Baroni is alleged to have
performed. Thus the Court finds no error in this aspect of the Recommendation.
3. Claims Three and Seven: Conspiracy
Plaintiff does not object to the Recommendation’s holding as to claims three and
seven against the CDOC defendants for conspiracy. Instead, plaintiff’s objections state
that plaintiff “relies only upon his Amended Complaint, (Doc[ket] No. 103-1) as it is
written if it is accepted by the Court.” Docket No. 132 at 9. Plaintiff’s Motion for Leave
to Amend Complaint was denied on August 22, 2014, one month before plaintiff
submitted his objections. Docket No. 129. As plaintiff has not provided an objection
specific enough to enable the Court “to focus attention on those issues–factual and
legal–that are at the heart of the parties’ dispute,” 2121 East 30th Street, 73 F.3d at
1059, the Court has reviewed the Recommendation and is satisfied that there is “no
clear error on the face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes.
C. Defendant Johnson’s Motion to Dismiss
Plaintiff objects to the Recommendation’s finding that defendant Johnson was
not a state actor because she was a private physician not under contract with the

8

CDOC. Docket No. 132 at 10. Plaintiff argues in his objections that defendant Johnson
“was paid by the state to conduct the surgery” and “was paid by HRRMC to conduct the
surgery. The surgery was for profit, [and defendant Johnson] was not forced to do it,
she was asked to do it and agreed to do it.” Id.
The Supreme Court has held that a physician employed by the state “to provide
medical services to state prison inmates” can be considered a state actor for the
purposes of § 1983. West v. Atkins, 487 U.S. 42, 54 (1988). It is an open question,
however, whether a private physician such as defendant Johnson who treats an inmate
on a one-time emergency basis can be considered a state actor for § 1983 purposes.
Compare Conner v. Donnelly, 42 F.3d 220, 223 (4th Cir. 1994) (holding that “a
physician who treats a prisoner acts under color of state law even though there was no
contractual relationship between the prison and the physician”) with Sykes v.
McPhillips, 412 F. Supp. 2d 197, 203 (N.D.N.Y. 2006) (holding that a hospital that is
compelled by law to provide emergency services to inmates is not a state actor).
The Court need not resolve this issue. Even if defendant Johnson were
considered a state actor, plaintiff fails to state a claim against her for violation of the
Eighth Amendment. The Eighth Amendment’s ban on cruel and unusual punishment is
violated if a defendant’s “deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain.” Self v. Crum, 439 F.3d
1227, 1230 (10th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A
claim for deliberate indifference has both an objective and a subjective component. To
satisfy the objective component, a prisoner must demonstrate that his medical need is

9

“objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
medical need is sufficiently serious if “it is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (citation omitted). To satisfy the subjective component, a prisoner must
demonstrate that the defendant acted with a “sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834. “‘[D]eliberate indifference’ is a stringent standard of fault.”
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). “A showing of simple or
even heightened negligence will not suffice.” Id. at 407; see also Giron v. Corrs. Corp.
of Am., 191 F.3d 1281, 1286 (10th Cir. 1999). Instead, the def endant must “know[] of
and disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
That is, “the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Id.
As defendant Johnson argues, Docket No. 43 at 8, plaintiff does not allege that
she failed to treat him at HRRMC. Rather, plaintiff alleges that, after he was returned to
BVCF, he wrote letters to defendant Johnson that complained of the post-surgery
complications including “swelling, gas, pain, stiffness, serious bladder problems,
continuous diarrhea on a daily basis, weight loss . . . [and] serious daily pains and
nausea” and that defendant Johnson provided no follow-up treatment. Docket No. 1 at
30. This fails to state a claim for deliberate indifference. Even assuming plaintiff meets
the objective component of pleading deliberate indifference, plaintiff pleads no facts

10

that suggest that defendant Johnson was capable of ordering BVCF to refer plaintiff to
her for a follow-up visit. See Wright v. Genovese, 694 F. Supp. 2d 137, 156 (N.D.N.Y.
2010) (holding that a surgeon “can not be liable under Section 1983 f or not getting
involved . . . in plaintiff’s post-operative care” where he “had no control over if and when
[the prison] would refer a[n] inmate to him for a follow-up examination after the inmate
had been returned to the care of the prison medical staff”); see also Dorn v. Powers,
2011 WL 6890466 at *5 (S.D. Ill. Dec. 30, 2011) (dismissing 1983 claim of deliberate
indifference against hospital physicians where “there is nothing in the allegations of the
complaint to suggest that [the physicians] had . . . any way of exercising control over
[plaintiff’s] treatment in the prison”). Because plaintiff fails to allege that defendant
Johnson was even capable of providing him with post-operative care, he cannot satisfy
the subjective component of a claim for deliberate indifference based on denial of
medical care.
D. Defendant HRRMC’s Motion to Dismiss
Plaintiff objects to the Recommendation’s finding that HRRMC cannot be held
liable under § 1983 based on the doctrine of respondeat superior. Docket No. 132 at
10. The Recommendation raised the issue of respondeat superior sua sponte pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) and found that plaintiff had not stated a claim against
HRRMC. Docket No. 128 at 16. Plaintiff argues that HRRMC has a custom and policy
of denying prisoners follow-up medical care after surgery. Id.
“Dismissal of a pro se complaint for failure to state a claim [under 28 U.S.C.
§ 1915(e)(2)(B)(ii)] is proper only where it is obvious that the plaintiff cannot prevail on

11

the facts he has alleged and it would be futile to give him an opportunity to amend.”
Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001) (internal quotation omitted). “In
determining whether a dismissal is proper, [the Court] must accept the allegations of
the complaint as true and construe those allegations, and any reasonable inferences
that might be drawn from them, in the light most favorable to the plaintiff.” Gaines v.
Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).
“[Section] 1983 liability for an entity cannot be predicated on respondeat
superior.” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1211 (10th
Cir. 2007) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Rather, liability
for an entity under § 1983 must be based on “a single decision by policymakers,” id. at
1212, or an entity’s wrongful policy or custom. See Graves v. Thomas, 450 F.3d 1215,
1218 (10th Cir. 2006).
The complaint contains no allegations of HRRMC’s supposed wrongful custom
or policy or the action of a single decision by a policymaker. Moreover, any amendment
to allege a wrongful policy of denying prisoners follow-up medical care after surgery
would be futile. As HRRMC argues, Docket No. 46 at 9, HRRMC, much like an
individual doctor, would have no authority to mandate that BVCF return an inmate to its
care after the inmate was discharged back into prison custody. Wright, 694 F. Supp. 2d
at 156; Dorn, 2011 WL 6890466 at *5. Thus, even if plaintiff could allege that HRRMC
had a policy of ignoring inmate complaints of post-surgery complications, plaintiff could
not meet the subjective component of deliberate indifference. Thus the Court finds no
error in this aspect of the Recommendation.

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E. Defendant Fisher’s Motion to Dismiss
Plaintiff objects to the finding that his claims as to Dr. Fisher’s denial of medical
care before September 5, 2011 are barred by the statute of limitations and that he
failed to state a claim under the Eighth Amendment. Docket No. 132 at 11-16. W ith
respect to the statute of limitations, plaintiff argues that the continuing violation doctrine
applies to his § 1983 claim.
1. The Continuing Violation Doctrine
Plaintiff argues that the continuing violation doctrine applies to his § 1983 claim,
and thus that the magistrate judge erred in finding that plaintiff could not sue based on
any instances where care was denied before September 5, 2011. Once again, the
continuing violation doctrine provides no help to plaintiff even if it applies to his claims.
Courts that apply the continuing violation doctrine to § 1983 claims do so where a
“series of events gives rise to a cumulative injury.” Heard v. Sheahan, 253 F.3d 316,
320 (7th Cir. 2001); see also Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir.
2009) (finding that the continuing violation doctrine applies “to a series of predicate acts
forming the basis for a single claim”). The continuing violation doctrine, however, does
not apply to “repeated events [that give] rise to discrete injuries,” Heard, 253 F.3d at
320, to “isolated or sporadic acts,” or to situations where “plaintiffs are aware of the
injury at the time it occurred.” Muhammad v. Court of Common Pleas of Allegheny
County, Pa., 483 F. App’x 759, 762 (3d. Cir. 2012).
Plaintiff’s allegations specific to Dr. Fisher are as follows. Sometime before
October 15, 2009, Dr. Fisher reported that plaintif f had no medical disabilities even

13

though plaintiff claimed he was disabled in his right hand and suffered from asthma,
which resulted in plaintiff being assigned a work detail that should have been precluded
due to his disability. Docket No. 1 at 10. Sometime after October 14, 2009, Dr. Fisher
denied a disability accommodation after plaintiff complained that he was legally blind,
required lifting restrictions due to disability in his right hand, had limited mobility due to
surgery and an epydidmal cyst or tumor, and had some digestive issues with his
“stomach/intestine/appendix.” Id. at 11. At some point before December 2009, Dr.
Fisher examined plaintiff, but told plaintiff that he was only told to examine plaintiff’s
right hand and would not examine plaintiff for any other complaint. Id. at 11-12. In
January 2010, Dr. Fisher instructed plaintiff to comply with AR # 700-21 pursuant to
plaintiff’s request that he be allowed to pay for a private doctor to perform a full
examination on plaintiff. Id. at 12. At a meeting in March 2010, Dr. Fisher expressed
that he did not believe an ultrasound reading that showed that plaintiff suffered from
“either a testicle tumor . . . or[] an epydidmal cyst.” Id. at 13. At the same meeting, Dr.
Fisher explained that he had received the Douglas defendants’ letter and, based on
their statement that plaintiff had a history of faking illness, he did not believe that
plaintiff suffered from asthma and had no digestive issues. Id. As a result of the
meeting, plaintiff was assigned to a different person to examine him for digestive
issues. Id. at 14. At some point before 2012, Dr. Fisher prescribed plaintiff medications
to treat irritable bowel syndrome. Id. at 18. In February 2012, Dr. Fisher refused to
allow plaintiff to go to the hospital. Id. at 15. Plaintiff was eventually taken to the
hospital after a delay of about two hours when a nurse insisted that he be sent there

14

immediately. Id. After plaintiff returned to the prison from his surgery, Dr. Fisher
refused to grant any pain medications or test for post-surgery complications. He
prescribed medication for irritable bowel syndrome, told plaintiff that post-surgery
complications were “not his problem,” and indicated he would inform plaintiff’s medical
providers at HRRMC of plaintiff’s complications. Id. at 18. In June or July of 2013, it
was discovered that plaintiff had been suffering from a post-surgical infection. Id. at 19.
Although plaintiff’s allegations against Dr. Fisher span several years and concern
events that occurred before and after the expiration of the statute of limitations, they do
not state a continuing violation leading to a single, cumulative injury. Rather, plaintiff’s
injuries are varied, ranging from a mistaken denial of a disability accommodation,
Docket No. 1 at 10-11, to failure to prescribe an inhaler for asthma, id. at 13-14, to a
delayed emergency surgery due to appendicitis. Id. at 15. These allegations did not
lead to a single injury. Notably, although the stone that grew in plaintiff’s appendix
could be considered a cumulative injury due to repeated denial of treatment, plaintiff
alleges that Dr. Fisher was removed from treating his digestive issues in March 2010
and that plaintiff was assigned to another medical provider for his complaints related to
digestive issues after that date. Id. at 13. Moreover, the complaint contains no
allegations that Dr. Fisher denied plaintiff treatment for digestive issues between March
2010 and the date of plaintiff’s emergency surgery.3 Because plaintiff’s claims are “of a

3

While plaintiff argues in his objections that he complained of stomach, intestine,
and appendix claims “at least 50 times” to Dr. Fisher, either verbally and in writing,
Docket No. 132 at 17, the complaint pleads no facts concerning such a high volume of
direct complaints concerning plaintiff’s digestive issues, and alleges no facts showing
any such complaints between March 2010 and February 2012.
15

discrete nature,” Silverstein v. Fed. Bureau of Prisons, No. 07-cv-02471-PAB-KMT,
2012 WL 4033756 at *2 (D. Colo. Sept. 13, 2012), and do not relate a “series of
predicate acts forming the basis for a single claim,” Shomo, 579 F.3d at 182, plaintiff
has not stated a claim due to any continuing violation. Thus, the Court looks only to
plaintiff’s allegations concerning events that took place after September 5, 2011 to
determine whether plaintiff has stated a claim against Dr. Fisher.
2. Plaintiff’s Eighth Amendment Claim
Plaintiff argues that he has met the standard of deliberate indifference required
to state a claim under the Eighth Amendment. Docket No. 132 at 17-18. The Court
finds that plaintiff has done so, but only with respect to the allegations concerning Dr.
Fisher’s treatment of plaintiff after his surgery.
Before surgery, plaintiff’s only allegation specific to Dr. Fisher is that he delayed
plaintiff’s trip to the hospital by approximately two hours. Docket No. 1 at 15. However,
“[d]elay in medical care only constitutes an Eighth Amendment violation where the
plaintiff can show that the delay resulted in substantial harm.” Sealock v. Colo., 218
F.3d 1205, 1210 (10th Cir. 2000). Plaintiff alleges no harm attributable to this two-hour
delay.
With respect to plaintiff’s post-surgery treatment, plaintiff alleges that Dr. Fisher
refused to see plaintiff for some time and “fought” with another member of the medical
staff at BVCF to avoid seeing plaintiff. Docket No. 1 at 29. Plaintiff further alleges that
when Dr. Fisher did see him, Dr. Fisher told plaintiff that his symptoms were normal, id.
at 29, prescribed the same medications for irritable bowel syndrome that he had

16

prescribed before the surgery, and told plaintiff that he would not treat him because
“surgery complications were not [Dr. Fisher’s] problem and were the problem of
defendants Dr. Johnson and [HRRMC].” Id. at 18. Plaintiff further alleges that Dr.
Fisher refused to provide plaintiff bandages for his surgical stitches and refused to
conduct any testing to determine the nature of plaintiff’s surgery complications, Id. at
34, and that he never received any follow-up treatment from Dr. Johnson or HRRMC.
Id. at 18. Eventually, after Dr. Fisher was no longer employed with BVCF, blood tests
revealed that plaintiff suffered from an infection that had been allowed to fester for 17
months following his surgery. Id. at 19.
The Court finds that the complaint sufficiently alleges that plaintiff had a serious
medical need. The risk of post-operative infection meets the standard of a serious
medical need obvious to a lay person. See Griffin v. Kern Med. Center, 2011 WL
4344133 at *4 (E.D. Cal. Sept. 14, 2011) (holding that a risk of infection for a severe cut
was obvious and failure to provide bandages stated a claim for deliberate indifference).
Plaintiff’s allegations are sufficient to meet the objective prong of the Eighth
Amendment analysis.
As to the subjective component, construing plaintiff’s allegations liberally, the
Court finds that the complaint contains sufficient “direct or inferential allegations” that
Dr. Fisher acted with deliberate indifference to state a claim. Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008). Plaintiff alleges that Dr. Fisher informed him that
post-surgery complications were not his problem, but rather were the problem of the
medical providers at HRRMC who performed plaintiff’s surgery. Docket No. 1 at 18.

17

Plaintiff further alleges that he never received any follow-up treatment from HRRMC.
Id. Thus, affording plaintiff the benefit of reasonable inferences, plaintiff has alleged
that Dr. Fisher refused to test him for complications resulting from his surgery and failed
to refer him, despite saying that he would, to the providers who Dr. Fisher believed
should perform any follow-up testing.
With respect to post-surgical care, the Recommendation noted that Dr. Fisher
told plaintiff that the symptoms he was experiencing were normal, Docket No. 128 at
24, and held that Dr. Fisher had merely exercised his considered medical judgment. Id.
(citing Self, 439 F.3d at 1232). The Recommendation did not consider plaintiff’s
allegation that Dr. Fisher openly stated that he was refusing to treat plaintiff for postsurgery complications and failed to provide basic preventative care such as bandages.4
As such, the Recommendation erred in finding that plaintiff did not state a claim for
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
3. Plaintiff’s Conspiracy Claim
The magistrate judge discussed plaintiff’s conspiracy claim against Dr. Fisher in
the context of the CDOC defendants’ motion to dismiss. Docket No. 128 at 12-13. As
discussed above, plaintiff’s objections to the Recommendation that his conspiracy
claims be dismissed state only that plaintiff “relies only upon his Amended Complaint,
(Doc[ket] No. 103-1) as it is written if it is accepted by the Court.” Docket No. 132 at 9.
4

Dr. Fisher’s response to plaintiff’s objection reiterates that he simply exercised
his considered medical judgment in determining that plaintiff’s post-operative symptoms
were normal. Docket No. 134 at 11. Dr. Fisher does not, however, address plaintiff’s
claims that he told plaintiff he would not be providing any care for post-operative
symptoms because that was the responsibility of the surgeons who performed plaintiff’s
operation.
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The amended complaint, however, was rejected on August 22, 2014, one month before
plaintiff submitted his objections. Docket No. 129. Consequently, the Court has
reviewed the Recommendation and is satisfied that there is “no clear error on the face
of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes.
4. Plaintiff’s Medical Malpractice Claim
Having found that plaintiff has stated an Eighth Amendment claim against Dr.
Fisher, the Court exercises supplemental jurisdiction over plaintiff’s state law claim for
medical malpractice pursuant to 28 U.S.C. § 1367(a), as that claim is part of the same
case or controversy as plaintiff’s Eighth Amendment claim.
Dr. Fisher claims that plaintiff failed to file a timely Notice of Intent to Sue as
required by the Colorado Governmental Immunity Act (“CGIA”) and that this
requirement is a jurisdictional bar to plaintiff’s suit. Docket No. 75 at 14 (citing Colo.
Rev. Stat. § 24-10-109). In response, plaintiff argues that he did, in fact, provide presuit notice and has “records, and receipts” that dem onstrate his compliance. Docket
No. 97 at 22. Plaintiff did not, however, attach any documentary evidence showing
compliance with the notice provision of the CGIA.
“The CGIA notice of claim provision is both a condition precedent and a
jurisdictional prerequisite to suit under the CGIA, must be strictly applied, and failure to
comply with it is an absolute bar to suit.” City and County of Denver v. Crandall, 161
P.3d 627, 634 (Colo. 2007). Nevertheless, the Colorado Supreme Court has held that
compliance with the notice requirements is not to be interpreted as “strict compliance,”
but rather as “substantial compliance.” Woodsmall v. Reg’l Transp. Dist., 800 P.2d 63,

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69 (Colo. 1990); see also Crandall, 161 P.3d at 632 n.5 (contrasting the notice’s
timeliness, which is subject to strict compliance, with “the adequacy of the notice’s
contents [, which] is subject to a substantial compliance standard”). Where a party fails
to plead compliance with the notice requirements of the CGIA, but it is not clear from
the record that he or she cannot cure the def icient pleading by amendment, the
complaint is to be dismissed without prejudice. Aspen Orthopaedics & Sports Medicine,
LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 842 (10th Cir. 2003).
Dismissal pursuant to Fed. R. Civ. P. 12(b)(1) is appropriate if the Court lacks
subject matter jurisdiction over claims for relief asserted in the complaint. “The burden
of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Port City
Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). Rule 1 2(b)(1)
challenges are generally presented in one of two forms: “[t]he moving party may (1)
facially attack the complaint’s allegations as to the existence of subject matter
jurisdiction, or (2) go beyond allegations contained in the complaint by presenting
evidence to challenge the factual basis upon which subject matter jurisdiction rests.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004)
(quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). T o the extent a
defendant attacks the factual basis for subject matter jurisdiction, the Court “may not
presume the truthfulness of the factual allegations in the complaint, but may consider
evidence to resolve disputed jurisdictional facts.” SK Finance SA v. La Plata Cnty., 126
F.3d 1272, 1275 (10th Cir. 1997). “Reference to evidence outside the pleadings does
not convert the motion to dismiss into a motion for summary judgment in such

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circumstances.” Id.
Here, Dr. Fisher attaches an affidavit from Stacy Mortenson, who serves as
“custodian of the records for all notices of claims and intents to sue filed pursuant to
C.R.S. § 24-10-109 with the Office of the Attorney General, State of Colorado.” Docket
No. 75-1 at 1, ¶2. According to Ms. Mortenson’s review of her records, plaintiff has filed
only a single Notice of Intent to Sue regarding an unrelated claim. Id. at 2 ¶¶ 4-5.
Plaintiff responds that he has filed four different notices, but fails to attach any of them.
As such, plaintiff has not carried his burden to show that the Court has subject matter
jurisdiction over his medical malpractice claim, and this claim is properly dismissed
without prejudice.
F. Qualified Immunity
Plaintiff provides only a cursory objection to the magistrate judge’s holdings that
defendants are entitled to qualified immunity, namely, that “the Complaint raises issues
which the Recommendation did not discuss.” Docket No. 132 at 19. T his is not specific
enough to enable the Court “to focus attention on those issues–factual and legal–that
are at the heart of the parties’ dispute,” 2121 East 30th Street, 73 F.3d at 1059. W ith
respect to the CDOC defendants, the Court has reviewed the Recommendation and is
satisfied that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b),
Advisory Committee Notes.
Dr. Fisher, however, is not entitled to qualified immunity. The Court’s analysis of
qualified immunity in the context of a Rule 12(b)(6) motion is a two step process. The
threshold inquiry is whether the facts taken in the light most favorable to the plaintiff

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sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001)
overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). “If no
constitutional right would have been violated were the allegations established, there is
no necessity for further inquiries concerning qualified immunity.” Id. However, “if a
violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id.
The question of whether the constitutional right was clearly established must be
asked in “the context of the particular case before the court, not as a general, abstract
matter.” Simkins v. Bruce, 406 F.3d 1239, 1241 (10th Cir. 2005). T hat is, “[t]he
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer [in the defendant’s position] that his
conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202; see
also Brosseau v. Haugen, 543 U.S. 194, 198 (2004). In order for a constitutional right
to be clearly established, there must be a Supreme Court or Tenth Circuit decision on
point, or the clear weight of authority from other circuits must establish the constitutional
right. Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992),
overruled on other grounds by Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998).
The Tenth Circuit has held that “there is little doubt that deliberate indif ference to
an inmate’s serious medical need is a clearly established constitutional right.” Mata v.
Saiz, 427 F.3d 745, 749 (10th Cir. 2005); see also Estate of Booker v. Gomez, 745 F.3d
405, 430 (10th Cir. 2014) (rejecting qualified immunity defense because “deliberate[]
indifferen[ce] to [a] serious medical need . . . would violate clearly established law”).

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Thus, qualified immunity is inappropriate where a physician fails to provide treatment
where “medical protocol requires referral or minimal diagnostic testing” to confirm or
rule out conditions that could cause a medical emergency. Al-Turki v. Robinson, --F.3d ----, 2014 WL 3906851 at *4 (10th Cir. 2014). At the tim e Dr. Fisher allegedly
refused plaintiff care, plaintiff was recovering from an emergency surgery. As
discussed above, a basic level of monitoring for post-operative infection rises to the
level of an obvious and serious medical need. Thus, the alleged Eighth Amendment
violation was clearly established at the time it occurred, and Dr. Fisher is not entitled to
qualified immunity.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 128] is ACCEPTED in part. It is further
ORDERED that defendants Douglas County Sheriff David Weaver, Dea Aragon,
and Michael French’s Motion to Dismiss [Docket No. 35] is GRANTED. It is further
ORDERED that defendants Joan M. Shoemaker, Kari Baroni, and Richard
Raemisch’s Motion to Dismiss Complaint [Docket No. 37] is GRANTED. It is further
ORDERED that defendant Karen Johnson, M.D.’s Motion to Dismiss [Docket No.
43] is GRANTED. It is further
ORDERED that defendant Heart of the Rockies Regional Medical Center’s
Motion to Dismiss [Docket No. 46] is GRANTED. It is further
ORDERED that defendant Thomas C. Fisher, M.D.’s Motion to Dismiss

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Complaint [Docket No. 75] is GRANTED in part and DENIED in part. It is further
ORDERED that plaintiff’s first, third, fourth, fifth, seventh, and eighth claims for
relief are dismissed with prejudice. It is further
ORDERED that plaintiff’s sixth claim for relief is dismissed without prejudice.
Plaintiff’s second claim for relief remains pending.

DATED September 29, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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