Vasquez v. Davis et al

Filing 99

ORDER Denying Defendants motions to dismiss ECF Nos. 57 , 58 , 80 , 84 , and 88 , by Judge William J. Martinez on 11/2/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-01433-WJM-CBS
JIMMY JOSEPH VASQUEZ,
Plaintiff,
v.
JEANNE DAVIS, in her individual capacity,
KATHLEEN MARTORANO, in her individual capacity,
KEITH MEEK, in his individual capacity,
BRIAN WEBSTER, in his individual capacity,
GATBEL CHAMJOCK, in his individual capacity,
KATHLEEN MELLOH, in her individual capacity,
MAURICE FAUVEL, in his individual and official capacities,
JOHN and/or JANE DOE(s), Clinical Services Administrators and Supervisors, in their
official and individual capacities, and
RICK RAEMISCH, in his official capacity,
Defendants.

ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

Plaintiff Jimmy Joseph Vasquez (“Vasquez”) is an inmate in the custody of the
Colorado Department of Corrections (“CDOC”). (ECF No. 55 ¶ 1.) He brings this
lawsuit under the Eighth Amendment (by way of 42 U.S.C. § 1983), alleging that
various CDOC employees (collectively, “Defendants”) were deliberately indifferent to his
medical needs over many years, causing him to develop end-stage liver disease that
will likely kill him absent a liver transplant. (Id. at 1–2.)
Before the Court are five overlapping motions to dismiss filed by the various
Defendants. (ECF Nos. 57, 58, 80, 84, 88.) For the reasons stated below , these
motions are denied.

I. LEGAL STANDARD
Most of the various motions argue for dismissal under both Federal Rule of Civil
Procedure 12(b)(1) (lack of subject matter jurisdiction) and Rule 12(b)(6) (failure to state
a claim). However, those motions invoking Rule 12(b)(1) do not make any explicit lackof-jurisdiction argument.1 The Court therefore analyzes Defendants’ motions under the
Rule 12(b)(6) standards, which require the Court to “assume the truth of the plaintiff’s
well-pleaded factual allegations and view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
In ruling on a Rule 12(b)(6) motion, the dispositive inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to
dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the
spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks
omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and
1

Defendants bring a statute-of-limitations argument (see Part III.A, infra), and
Defendants may mean to imply that failure to file a § 1983 claim within the statute of limitations
deprives this Court of subject matter jurisdiction. But Defendants cite no authority for the notion
that a late-filed § 1983 claim is jurisdictionally barred, and the Court likewise could find no such
authority. Indeed, the existence of such authority would be surprising given that § 1983 does
not have an explicit statute of limitations. Rather, the Supreme Court has instructed lower
courts to “borrow” the state-law statute of limitations for an analogous cause of action. Bd. of
Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 483 (1980). Thus, it would be
difficult to say that Congress intended § 1983’s statute of limitations to be jurisdictional when
Congress did not create any statute of limitations. See, e.g., Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 436 (2011) (when determining whether a filing deadline is jurisdictional,
courts must “look to see if there is any clear indication that Congress wanted the rule to be
jurisdictional” (internal quotation marks omitted)).

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unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
II. FACTS
The Court assumes the following allegations to be true for purposes of this
motion.
A.

Vasquez’s HCV Diagnosis and Imprisonment at Sterling
Vasquez entered CDOC custody in 2004 and was sent to CDOC’s Denver

Reception and Diagnostic Center, where blood tests revealed that he was infected with
HCV (hepatitis C virus). (ECF No. 55 ¶¶ 36, 42.) Vasquez was then assigned to
CDOC’s Sterling Correctional Facility (“Sterling”). (Id. ¶¶ 36, 39.)
Sterling is, “[f]or all practical purposes, . . . two separate facilities,” known as the
“East Side” and the “West Side.” (Id. ¶ 28.) The East Side houses minimum-security
prisoners, while the West Side houses more dangerous prisoners. (Id.) Vasquez was
assigned to West Side, and has been there ever since. (Id. ¶¶ 39–40.)
B.

Defendant Davis
The first medical professional Vasquez saw at Sterling was Defendant Jeanne

Davis (“Davis”), a physician’s assistant. (Id. ¶¶ 2, 47.) Davis saw Vasquez in
November 2004, “confirmed his HCV diagnosis,” and ordered that Vasquez “undergo
additional liver function testing in six months to determine the chronicity of his disease,
in accordance with CDOC policy.” (Id. ¶ 47.) That policy states that HCV-positive
prisoners may receive antiviral drug therapy if they display elevated liver enzymes for
six months. (Id. ¶ 17.)

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Six months later (May 2005), Davis reviewed Vasquez’s chart and informed him
that he should receive antiviral therapy. (Id. ¶¶ 49, 53.) She also told him, however,
that he would first need to complete six months of substance abuse resistance classes.
(Id. ¶¶ 22, 48, 57.) This was also a matter of CDOC policy because
CDOC does not believe that treatment should be given to
patients who are likely to become re-infected. For this
reason, anyone who wants to receive potentially curative
treatment for chronic viral hepatitis is required to participate
in and attend drug and alcohol classes and/or activities
which can teach them to avoid returning to habits that can
lead to re-infection.
(Id. ¶ 21 (internal quotation marks omitted).) But Davis never referred Vasquez to these
classes, in violation of a CDOC policy requiring healthcare providers to submit a written
referral within twenty-four days of confirming an inmate’s need for antiviral treatment.
(Id. ¶¶ 20, 49–52.)
C.

Defendant Martorano
Shortly after learning from Davis that he needed to participate in the substance

abuse treatment program, Vasquez met with his case manager, Defendant Kathleen
Martorano. (Id. ¶¶ 3, 56–57.) Vasquez told Martorano that he needed to take the
substance abuse classes before he could receive antiviral therapy for his HCV. (Id. ¶
59.) Martorano responded that such classes were only available on Sterling’s East
Side, and that Vasquez’s custody level prevented him from being transferred there, or
to any facility offering substance abuse classes. (Id. ¶¶ 60–61.) At that time, however,
CDOC’s most secure facility (the Colorado State Penitentiary) was indeed offering such
classes. (Id. ¶ 62.) In addition, Martorano had the power to override Vasquez’s

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custody level so he could at least be transferred to Sterling’s East Side. (Id. ¶ 63.)
Vasquez requested such an override on several occasions, but Martorano “refused
each of these requests and eventually threatened to write him up if he kept asking.” (Id.
¶ 64.)
D.

Defendant Meek
Sometime in 2005, case management responsibilities for Vasquez were

transferred from Martorano to Defendant Keith Meek. (Id. ¶ 65.) As with Martorano,
Vasquez repeatedly asked Meek for assistance in obtaining a facility transfer or security
classification override so that he could take the required substance abuse classes, but
Meek repeatedly refused and threatened to write him up. (Id. ¶¶ 66–68.)
E.

Defendant Webster
Sometime in 2006, responsibility for supervising Vasquez’s medical care

transferred from Davis to Defendant Brian Webster (“Webster”), another physician’s
assistant. (Id. ¶¶ 5, 70.) In October 2006, W ebster noted Vasquez’s “elevated liver
function test numbers” and acknowledged Vasquez’s HCV-positive status. (Id. ¶ 71.)
In October 2007, Webster noted the same. (Id. ¶ 72.)
In June 2008, Webster noted that Vasquez’s liver function test numbers were
even higher than previously. (Id. ¶ 73.) Webster therefore made a note to “begin
Lactulose,” a medication used to treat high ammonia levels in patients with liver
disease. (Id. ¶¶ 74–75.) Webster also added to Vasquez’s chart, “Cirrhosis Liver w/o
mention alcohol,” and notified Vasquez that HCV was causing worsening liver function.
(Id. ¶¶ 76–77.) Webster saw Vasquez again in December 2008, noted still-high liver

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function test numbers and ammonia concentration, and instructed Vasquez not to take
NSAIDs. (Id. ¶ 79.)
Although Webster knew that Vasquez needed to complete substance abuse
treatment classes before obtaining antiviral therapy, Webster never referred Vasquez to
those classes. (Id. ¶¶ 82–83.)
F.

Defendant Chamjock
Defendant Gatbel Chamjock (“Chamjock”), another physician’s assistant at

Sterling, began working with a Vasquez in 2008. (Id. ¶¶ 6, 85.) In May 2009, he
reviewed Vasquez’s chart and noted “complain[ts] of intermittent abdominal pain,” HCV,
and “possible cirrhosis of the liver.” (Id. ¶ 85.) Chamjock therefore obtained an outside
consultation through which Vasquez’s liver and pancreas were examined via
ultrasound. (Id. ¶¶ 86, 88.) During a June 2009 visit, Chamjock noted Vasquez’s
jaundiced skin and enlarged liver. (Id. ¶ 87.) At that visit, Chamjock told Vasquez that
the results of the ultrasound were not yet in, and Vasquez never subsequently learned
what those results were. (Id. ¶¶ 88–89.)
Vasquez did not see Chamjock again until May 2010, where Vasquez
complained of abdominal pain. (Id. ¶ 90.) Chamjock observed blood in Vasquez’s
vomit and urine, prescribed antibiotics, and asked Vasquez to return the next week for a
follow-up visit. (Id. ¶¶ 91–92.) During that follow-up visit, Vasquez complained of
“constant off and on abdominal pain.” (Id. ¶ 93.) Chamjock responded by advising
Vasquez “to stop eating spicy food and big meals late at night.” (Id. ¶ 94.)

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Although Chamjock knew that Vasquez needed to complete substance abuse
treatment classes before obtaining antiviral therapy, Chamjock never referred Vasquez
to those classes. (Id. ¶¶ 97–99.)
G.

Defendant Melloh
Defendant Kathleen Melloh, a physician’s assistant, saw Vasquez in January

20122 based on Vasquez’s complaints of vomiting blood. (Id. ¶¶ 109–11.) Melloh
noted Vasquez’s jaundiced skin and “acknowledged his cirrhosis.” (Id. ¶ 112.) Melloh
also “acknowledged the medical necessity of antiviral drug therapy treatment” but
insisted that Vasquez would first need to complete the six-month substance abuse
training. (Id. ¶¶ 114–15.) Vasquez informed Melloh that he had completed “Right StartRight Step, a faith-based substance abuse class,” in 2008, but Melloh would not accept
that. (Id. ¶¶ 116–17.)
After meeting with Melloh, Vasquez “submitted multiple medical kites[3]
requesting to sign a contract agreeing to participate in drug and alcohol classes.” (Id.
¶ 118.)
H.

Defendant Fauvel
Defendant Maurice Fauvel (“Fauvel”) is another physician’s assistant at Sterling.

(Id. ¶ 8.) Fauvel examined Vasquez in February 2012 in response to his medical kites.
(Id. ¶ 122.) Fauvel “purportedly referred” Vasquez “to his case manager to become

2

No medical provider saw Vasquez in 2011. (Id. ¶ 103.) Vasquez argues that some
unknown clinical care supervisor knew or should have known of his need for further treatment
during that time, but took no action. (Id. ¶¶ 104–08.)
3

The Court presumes that a “medical kite” is some form of written request by a

prisoner.

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enrolled” in the substance abuse program, but Fauvel never filled out the required
written referral. (Id. ¶¶ 124–25.)
In May 2012, Fauvel noted Vasquez’s conditions, including cirrhosis with liver
failure and high ammonia levels. (Id. ¶ 129.) In August 2012, Fauvel again noted
Vasquez’s symptoms and the possible need for a liver biopsy. (Id. ¶¶ 130–31.)
Sometime while under Fauvel’s care, Vasquez finally went through the
substance abuse classes. (Id. ¶¶ 132–33.) Near the end of those classes, in October
2012, Vasquez met with a nurse, Ruth Ross (not a defendant here), and told her that
he would soon complete his classes. (Id. ¶ 134.) Ross observed Vasquez’s jaundiced
face and claimed she would discuss the possible liver biopsy with Fauvel. (Id.)
Vasquez and Ross met again in February 2013 and Ross again noted Vasquez’s
request for antiviral treatment. (Id. ¶ 135.) Ross therefore sent a handwritten note to
“[Sterling] mental health” stating that Vasquez should have a liver biopsy, but Fauvel
never scheduled a biopsy. (Id. ¶¶ 136–37.)
Also in February 2013, Vasquez “began experiencing stomach pain and pain on
the right side of his torso around his liver,” for which he submitted another kite. (Id.
¶¶ 138–39.) Over the next two months, Sterling personnel repeatedly scheduled and
then canceled medical appointments, during which time his pain was increasing. (Id.
¶¶ 140–42.) Eventually Vasquez submitted a grievance against Fauvel. (Id. ¶ 150.)
Part of Fauvel’s response states: “HepC was diagnosed long ago and treatment
consideration is a long and [tortuous] process. I cannot speak to why this was not
treated in the past.” (Id. (emphasis removed).)

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I.

Vasquez’s Ultimate Diagnosis
On May 3, 2013, Vasquez “began vomiting copious amounts of blood and

experiencing excruciating abdominal pain.” (Id. ¶ 152.) He was emergency evacuated
to Denver Health and received emergency surgery to correct the acute problems. (Id.
¶¶ 152–53.) The doctors at Denver Health diagnosed Vasquez with advanced-stage
cirrhosis of the liver such that antiviral drug therapy was no longer a possibility. (Id.
¶¶ 157–58.) Rather, “the only treatment that could save his life would be a liver
transplant.” (Id. ¶ 159.) In December 2013, furthermore, Vasquez was diagnosed with
a form of myeloma likely caused by hypersplenism (i.e., an overactive spleen), itself
likely caused by his cirrhosis. (Id. ¶ 173.) “CDOC is apparently still considering
providing Mr. Vasquez with some form of treatment.” (Id. ¶ 176.)
III. ANALYSIS
A.

Statute of Limitations
All Defendants except Fauvel claim that the relevant statute of limitations expired

before Vasquez filed this lawsuit. The Court disagrees.
Because Congress did not enact a statute of limitations for § 1983 claims,
Colorado law supplies the limitations period. See Burnett v. Grattan, 468 U.S. 42,
47–49 (1984). Colorado law provides a two-year statute of limitation for “[a]ll actions
upon liability created by a federal statute where no period of limitation is provided in
said federal statute.” Colo. Rev. Stat. § 13-80-102(1)(g).
Despite reliance on the Colorado statute, “federal law controls issues related to
when federal causes of action accrue.” Alexander v. Oklahoma, 382 F.3d 1206, 1215

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(10th Cir. 2004). Generally, federal claims accrue “when the plaintiff knows or has
reason to know of the existence and cause of the injury which is the basis of his action.”
Id. (internal quotation marks omitted).
Defendants argue that Vasquez knew of his injury and the cause as early as
2005, when he became eligible for the substance abuse program but no one would
authorize it for him. (ECF No. 57 at 4–5; ECF No. 58 at 4.) Defendant Chamjock more
particularly argues that, according to Vasquez’s allegations, Vasquez knew of his
worsening symptoms and Chamjock’s failure to refer him to the substance abuse
program no later than May 2010. (ECF No. 58 at 4.) Vasquez did not file this lawsuit
until May 2014 (ECF No. 1), which is obviously more than two years after 2005 or 2010.
Vasquez responds that his injury did not accrue until May 2013, when he was admitted
to Denver Health and learned that his HCV had become incurable and that he would
likely die without a liver transplant. (ECF No. 75 at 5–13.)
In these circumstances, Vasquez has the better argument. Vasquez’s claim
rests not just on his current dire medical condition, but on the alleged delay in receiving
medical care that may have prevented his condition from progressing this far. “[A]
delay in medical care only constitutes an Eighth Amendment violation where the plaintiff
can show that the delay resulted in substantial harm. We have held that the substantial
harm requirement may be satisfied by lifelong handicap, permanent loss, or
considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citation
and internal quotation marks omitted).
The Tenth Circuit has observed in an unpublished disposition that HCV is usually
a slowly progressing disease. Whitington v. Moschetti, 423 F. App’x 767, 773 (10th Cir.
10

2011). Thus, delay in receiving treatment, including delay occasioned by CDOC’s sixmonth substance abuse training requirement, does not qualify as “substantial harm”
absent something more, such as end-stage liver disease. Id. Relying on Whitington, a
recent unpublished disposition from this District held that a prisoner failed to allege
substantial harm based on delay in receiving HCV treatment: “Because HCV is slowly
progressive, the CDOC’s requirement that patients complete drug and alcohol classes
prior to antiviral treatment should not be expected to contribute to significant
progression of liver disease prior to initiation of treatment.” Wright v. Hodge, 2015 WL
1408753, at *6 (D. Colo. Mar. 25, 2015).
Given these decisions, Vasquez argues that he would have been thrown out of
court had he filed as early as Defendants claim he should have filed. But if the statute
of limitations nonetheless accrued when Defendants say it did, he “would face the
impossible predicament of being unable to file within the supposed statute of limitations
for not actually having a claim, but also unable to file when he does have a claim
because the statute of limitations has run.” (ECF No. 75 at 9–10.)
Defendants offer no response to this eminently reasonable point other than to
observe that Whitington and Wright addressed the elements of Eighth Amendment
liability, not accrual of a claim. (ECF No. 77 at 3; ECF No. 78 at 2.) Defendants’
observation is correct but immaterial. “A civil rights action accrues when facts that
would support a cause of action are or should be apparent.” Alexander, 382 F.3d at
1215 (internal quotation marks and alterations omitted; emphasis added). If lifelong
handicap, permanent loss, or considerable pain is an element of a delay-in-care cause
of action, then a prisoner’s delay-in-care claim is not ripe until such handicap, loss, or
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pain occurs. And if the claim is not ripe, it is impossible to see how the statute of
limitations could be running on it.
Whitington and Wright, although not precedential, are persuasive authority that
delay in treating HCV, without more, does not rise to an Eighth Amendment violation.
Defendants do not argue otherwise. Accordingly, Vasquez’s cause of action did not
accrue until he acquired a lifelong handicap, suffered a permanent loss, or experienced
considerable pain. Garrett, 254 F.3d at 950. Vasquez learned of his “lifelong handicap”
or “permanent loss” in May 2013, and had no reason to know that he had acquired such
a condition any earlier than that. Moreover, although Vasquez alleges incidents of pain
as early as 2009 (see ECF No. 55 ¶¶ 85, 93, 109), no Defendant argues that any
particular incident constitutes the “considerable pain” necessary for a delay-in-care
claim. The Court therefore finds that Vasquez’s complaint does not demonstrate a
failure to file within the statute of limitations. Defendants’ motions are denied in this
regard.
B.

Failure to State a Claim
Defendants Chamjock, Fauvel, Melloh, and Webster argue that Vasquez has

failed to state an Eighth Amendment claim against them. (ECF Nos. 57 at 5–9; ECF
No. 58 at 4–7; ECF No. 84 at 2–5.) 4

4

Defendants Davis, Meek, and Raemisch say they join Fauvel’s motion in full (see ECF
No. 80 at 1; ECF No. 88 at 1), but Fauvel’s failure-to-state-a-claim arguments are specific to the
allegations Vasquez makes against him. These arguments do not apply to Davis, Meek, and
Raemisch. Accordingly, Davis, Meek, and Raemisch have not moved to dismiss for failure to
state a claim. Nor has Martorano. She and Fauvel filed a joint motion to dismiss, but the
failure-to-state-a-claim section addresses Fauvel only. (See ECF No. 57 at 5–8.)

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The Eighth Amendment protects against the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. The Eighth Amendment’s prohibition against
cruel and unusual punishments encompasses deliberate indifference by prison officials
to a prisoner’s serious medical needs. Howard v. Waide, 534 F.3d 1227, 1235 (10th
Cir. 2008). Prison staff members (e.g., guards, medical personnel) can in some
circumstances demonstrate deliberate indifference if they control access to those who
can treat the inmate’s condition and they delay or refuse to grant such access. See
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005); Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
1.

Objective Component

“Deliberate indifference” involves “a two-pronged inquiry, comprised of an
objective component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230
(10th Cir. 2006). The objective component requires a “sufficiently serious” medical
need, meaning “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.” Sealock, 218 F.3d at 1209 (internal quotation marks omitted).
No Defendant actually argues against the objective component here.
Defendants instead assume arguendo that it has been satisfied and move on to the
subjective component. (ECF No. 57 at 7; ECF No. 58 at 6; ECF No. 84 at 4–5.) T his is
somewhat surprising given that Vasquez gifted Defendants an argument. Specifically,
although the Whitington and Wright cases save Vasquez’s claim from foundering on the
statute of limitations, they do so through their respective holdings that untreated HCV,

13

without more, does not satisfy the objective component. See Whitington, 423 F. App’x
at 773; Wright, 2015 WL 1408753, at *5–6.
Given this, it would seem that at least some of the Defendants (particularly those
who worked with Vasquez in the early stages of his disease) might merit dismissal. But,
absent briefing from the parties on the question, the Court will not so hold. The Court
will therefore move on to Defendants’ arguments regarding the subjective component.
2.

Subjective Component

The subjective prong examines the state of mind of the defendant, asking
whether “the official knows of and disregards an excessive risk to inmate health or
safety; 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.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). This is a high standard. “[N]egligent
failure to provide adequate medical care, even one constituting medical malpractice,
does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t of Corrs., 165
F.3d 803, 811 (10th Cir. 1999).
a.

Fauvel

As described in Part II.H, above, Vasquez alleges that Fauvel, in 2012 and 2013,
became aware of Vasquez’s condition and noted disturbing lab results, but Fauvel
failed to follow up with a liver biopsy despite considering it, failed to submit the
appropriate referral so that Vasquez could attend substance abuse classes, and
potentially ignored several requests from Vasquez to be seen as his symptoms
worsened. Fauvel argues that these allegations do not rise above simple negligence.
(ECF No. 57 at 7–8.) To the contrary, at least at the pleading stage, they create a
14

plausible inference that Fauvel knew what was likely happening to Vasquez’s liver but
he simply did not care. That is enough to show deliberate indifference. Vasquez has
adequately pleaded a claim against Fauvel.
b.

Chamjock

As described in Part II.F, above, Vasquez alleges that Chamjock, from 2008 to
2010, became aware of Vasquez’s worsening symptoms (including enlarged liver,
bloody vomit and urine, and complaints of frequent abdominal pain), but failed to follow
up on a diagnostic ultrasound, failed to authorize Vasquez for substance abuse
classes, and simply advised Vasquez to stop eating spicy food and large meals late at
night. Like Fauvel, Chamjock claims that the allegations against himself do not suggest
anything more than mere negligence. (ECF No. 58 at 7.) But, as with Fauvel, the Court
disagrees. As pleaded, Vasquez’s allegations create a plausible inference that
Chamjock knew of the seriousness of Vasquez’s condition but chose not to treat it
seriously. Vasquez has adequately pleaded a claim against Chamjock.
c.

Webster

As described in Part II.E, above, Vasquez alleges that Webster, from 2006 to
2008, observed Vasquez’s continually increasing liver function test and ammonia
concentration numbers, at least suspected cirrhosis of the liver, informed Vasquez that
his HCV was indeed affecting the liver, and recommended medication to control
Vasquez’s ammonia levels, but failed to authorize Vasquez for the substance abuse
classes that stood in his way to obtaining antiviral therapy. Webster appears to argue
that his continuing care shows the opposite of deliberate indifference, and he was at
best negligent in failing to authorize Vasquez for substance abuse classes. (ECF No.
15

84 at 3–4.) The Court again disagrees. Vasquez’s allegations create a plausible
inference that Webster gained a longitudinal picture of Vasquez’s health and thereby
understood that his symptoms were worsening, but took no serious effort to help him
obtain the treatment that would prevent the problems Vasquez eventually faced.
Vasquez has adequately pleaded a claim against Webster.
d.

Melloh

As described in Part II.G, above, Vasquez alleges that Melloh, in 2012, knew
Vasquez had been vomiting blood, knew he was suffering from cirrhosis, and knew that
he needed antiviral therapy, but nonetheless insisted that he first go through substance
abuse classes and refused to accept a different organization’s program in lieu of
CDOC’s requirement. Melloh argues that her treatment of Vasquez shows the opposite
of deliberate indifference (ECF No. 84 at 4–5), but the Court finds that Vasquez has
raised a plausible inference that Melloh knew of the serious and advanced nature of
Vasquez’s condition but refused to prescribe the appropriate treatment. Vasquez has
adequately pleaded a claim against Melloh.
C.

Qualified Immunity
All Defendants except Chamjock argue that they are entitled to qualified

immunity. (ECF No. 57 at 8–9; ECF No. 80 at 1; ECF No. 84 at 5–6; ECF No. 88 at 1.)
“Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (internal quotation marks
omitted). Defendants attack both of these elements.
16

As to the first element, the Court’s analysis above establishes that Vasquez has
sufficiently pleaded a violation of his Eighth Amendment right to be free from cruel or
unusual punishment. As to the second element, Defendants’ only argument is that
“[t]here is no clearly established law in this jurisdiction that states that the actions of
Defendants, as alleged in the Complaint, violated any law.” (ECF No. 57 at 9; ECF No.
84 at 6.) Defendants cannot possibly mean this as a serious argument. Defendants
(and their counsel) well know that the standard for Eighth Amendment medical
treatment claims, including delay-in-care claims, has been established for decades.
See, e.g., Estelle, 429 U.S. at 104–05; Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.
1993). Defendants, on this record, are not entitled to qualified immunity.
IV. CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss (ECF Nos. 57, 58,
80, 84, and 88) are DENIED.
Dated this 2nd day of November, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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