Furlow v. University of Colorado Hospital Authority et al

Filing 25

ORDER FOR DISMISSAL re 11 and 12 : the University of Colorado Board of Regents' Motion to Dismiss 11 is granted, and the University of Colorado Hospital Authority's Motion to Dismiss 12 is granted. The Clerk shall dismiss the University and the Hospital from this civil action and award costs, by Judge Richard P. Matsch on 4/16/2014. (jsmit)

IN THE UNITED STATES DISTRICT COURT
IN THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 13-cv-02877-RPM
BENJAMINE FURLOW III,
Plaintiff,
v.
UNIVERSITY OF COLORADO HOSPITAL AUTHORITY,
UNIVERSITY OF COLORADO BOARD OF REGENTS, and
MATTHEW C. UHLENKOTT, M.D.,
Defendants.

ORDER FOR DISMISSAL

In this civil action, Plaintiff Benjamine Furlow III alleges that while he was a patient at
the University of Colorado Hospital he was sexually assaulted by a University-employed
medical resident, Defendant Matthew Uhlenkott, M.D.

He seeks damages from the

University of Colorado Hospital Authority, employer of the nursing staff, and from the
University of Colorado Board of Regents, employer of Uhlenkott, based on claims of
medical negligence (First Claim for Relief) and a violation of substantive due process of law
under the Fourteenth Amendment and 42 U.S.C. § 1983 on a “Conscience Shocking
Conduct/Danger Creation” theory. He sued Uhlenkott for assault, battery, and outrageous
conduct. The University and the Hospital Authority filed motions to dismiss.
The Second Amended Complaint is internally inconsistent in comparing the claims
against these entities and Uhlenkott. There are factual allegations made in the briefing and

the accompanying exhibits. They may be considered under the University and Hospital
Authority’s Fed. R. Civ. P. 12(b)(1) motions asserting lack of jurisdiction under the Colorado
Governmental Immunity Act (“CGIA”).
1. University of Colorado Board of Regents’ Motion to Dismiss [Doc. 11]
The University argues that it is immune from suit under the CGIA because Uhlenkott was
not acting within the course and scope of his employment when he groped Furlow. [See
Doc. 11 at 4-6.] Uhlenkott was working in the PACU in his capacity as a medical resident
on the day in question. [Doc. 16, Ex. 3 at 7.] The University has offered an affidavit of Dr.
Thomas Henthorn, Chairman of the Hospital’s Department of Anesthesiology, stating that
Uhlenkott was not assigned to care for Furlow, and, therefore, Uhlenkott did not enter
Furlow’s room and interact with Furlow for medical reasons. [Doc. 11, Ex. 1 ¶ 6.] Henthorn
further states that even if Uhlenkott had responsibility for Furlow’s care, Uhlenkott’s conduct
would not have been within the scope of his responsibilities as an anesthesiology resident.
[Id. ¶ 7.] According to the police report describing the incident, Tammie Pineda, the PACU
nurse assigned to care for Furlow, stated that she listened to Uhlenkott and Furlow’s
conversation for a bit but then returned to her nursing station after she realized they were
discussing Furlow’s tattoos and not his medical care [Doc. 16, Ex. 3 at 7]; Uhlenkott stated
that Furlow was not his patient, and that he adjusted Furlow’s erection to “make it less
obvious or embarrassing” [id. at 10].
Given that evidence, there is no plausible basis to conclude that Uhlenkott was acting
within the course and scope of his employment when he groped Furlow. There is nothing in
the record to indicate that Uhlenkott did what he did to provide medical care assigned to him
by the University, that such conduct was necessarily incidental to Uhlenkott’s work as an
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anesthesiology resident or customary in the anesthesiology field, or that Uhlenkott intended
to further the University’s business when he did so. Accordingly, Furlow’s claim against the
University for Uhlenkott’s alleged negligence is barred by the CGIA.
The University argues that Furlow’s Section 1983 claim for damages is barred by the
Eleventh Amendment. [Doc. 11 at 7-8.] The University of Colorado is an arm of the state,
Section 1983 did not abrogate the states’ Eleventh Amendment immunity, and Furlow has
not alleged that the University has waived its immunity here. Furlow’s Fifth Claim for
Relief against the University is barred by the Eleventh Amendment.
2. University of Colorado Hospital Authority’s Motion to Dismiss [Doc. 12]
Furlow’s negligence and danger creation claims against the Hospital are premised on the
theory that the Hospital’s nursing staff failed to protect him when he was in a particularly
vulnerable state following surgery. [See Doc. 6 ¶¶ 16, 38.]
Furlow’s negligence claim fails because he has not plausibly shown any conduct or
inaction on the part of the Hospital or its agents that breached the duty of care they owed
him. Furlow’s allegations are nothing more than a recitation of the negligence standard
without any actual facts showing how the standard is plausibly met. [See id. ¶ 16.]
Furlow’s danger creation claim is similarly deficient. Furlow recites the elements of a
state-created danger theory in boilerplate fashion [see Doc. 6 ¶¶ 34-39], but he provides no
factual allegations that would actually support such a theory. Furlow does not allege any
conduct on the part of the Hospital that put him, specifically—as opposed to PACU patients,
in general—at substantial risk of serious, immediate, and proximate harm. There is also
nothing to support the allegation that the risk of Uhlenkott groping Furlow was obvious to
the Hospital or known to it; for example, there is no allegation that the Hospital knew that
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Uhlenkott had previously groped a patient, that he posed a risk of sexual assault, or that the
Hospital knew sexual predators had taken advantage of post-operative patients in the past.
There are no facts supporting the allegation that the Hospital acted in conscious disregard of
a known or obvious risk. There are, finally, no alleged facts showing that the Hospital’s
conduct was conscience shocking—in essence, Furlow’s Complaint paints a picture of a
hospital functioning as usual. Furlow falls considerably short of stating a plausible claim for
relief against the Hospital on a state-created danger theory.
3. Conclusion
Upon the foregoing, it is
ORDERED that the University of Colorado Board of Regents’ Motion to Dismiss [Doc.
11] is granted, and it is
FURTHER ORDERED that the University of Colorado Hospital Authority’s Motion to
Dismiss [Doc. 12] is granted. The Clerk shall dismiss the University and the Hospital from
this civil action and award costs.
Dated: April 16, 2014
BY THE COURT:

s/Richard P. Matsch
________________
Richard P. Matsch
Senior District Judge

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