Hammond v. Beicker et al

Filing 41

ORDER granting 32 Motion to Dismiss for Failure to State a Claim by Magistrate Judge Michael E. Hegarty on 12/29/2014. The Court GRANTS the Motion to Dismiss Plaintiffs Amended Complaint filed by Defendant Kathy Maetas [filed 10/8/2014; docket #32] and directs the Clerk of the Court to close this case.(mdave)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01991-MEH
ANDREA HAMMOND,
Plaintiff,
v.
CATHY DOE, Nurse,
Defendant.
______________________________________________________________________________
ORDER ON MOTION TO DISMISS
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a Motion to Dismiss Plaintiff’s Amended Complaint filed by Defendant
Kathy Maestas (“believed to be the individual identified in the caption as ‘Nurse Cathy Doe’”) [filed
October 8, 2014; docket #32]. The matter is fully briefed and the Court concludes oral argument
would not materially assist the Court in its adjudication of the motion. For the reasons that follow,
the Court GRANTS the Defendant’s motion.
BACKGROUND
Plaintiff, proceeding pro se, initiated this action on July 18, 2014 against the Fremont County
Sheriff’s Office, its sheriff and deputies, Nurse Cathy Doe, Sgt. Miller and “any deputies working
in G pod the night of Ms. Hammond’s asthma attack.” Docket #3. Pursuant to a court order during
initial review, Plaintiff subsequently filed an Amended Prisoner Complaint on August 12, 2014.
Docket #11. Defendants responded by filing a motions to dismiss the Amended Complaint pursuant
to Fed. R. Civ. P. 12(b)(6) on August 26, 2014 (docket #12) and August 27, 2014 (docket #13). On
September 17, 2014, the reviewing court dismissed the sheriff’s office and the unnamed deputies

from the case, as well as a portion of Claim Three. Docket #17. Thereafter, on October 6, 2014,
Plaintiff voluntarily dismissed the sheriff and the deputies and the sergeant from the case; thus, the
only remaining Defendant was Nurse Cathy Doe. See dockets ##25, 37.
Plaintiff’s operative claim against Defendant Nurse Cathy Doe (whom Plaintiff identifies in
the pleading as “Nurse Kathy Maestas”) is set forth in Claim One for a violation of the Eighth
Amendment to the U.S. Constitution in the form of denial of medical treatment. Amended Prisoner
Complaint, docket #11 at 4. Specifically, Plaintiff alleges:
Kathy Maestas and Deputy Bunch denied me medical treatment in August 2012
when I was having an asthma attack. Jim Beiker was responsible for writing and
enforcing the policies that Maestas and Bunch denied me medical treatment underand those employees cited Jim Beiker’s policies as reasons for denying me treatment.
Deputy Bunch refused to call the on-call nurse or provide me with my prescribed
rescue inhaler for my asthma attack that evening. I eventually passed out and
regained consciousness hours later, but I was still having trouble breathing. I
approached Nurse Kathy Maestas and she took my oxygen saturation level which
was only at 83%. She said I “was fine” I asked what 17 % of her body she would
want going without oxygen and told her I needed to go to a hospital. Nurse Maestas
said the only way I'd get to the hospital “was in a body bag.” This raised my anxiety
level causing me to have a panic attack and made my already constrained breathing
worse.
Id. For this claim, Plaintiff seeks “$75,000 in damages.” Id. at 8.
Defendant Kathy Maestas filed the present motion to dismiss on October 8, 2014. Defendant
Maestas asserts she was working as a nurse at the Fremont County detention center during the period
relevant to the claims made in the Amended Complaint. Nurse Maestas argues that the only claim
raised against her in the operative pleading is a violation of the Eighth Amendment set forth in
Claim One, and that Plaintiff either fails to state the nurse’s personal involvement or fails to state
a constitutional claim as a matter of law. Docket #32. Pursuant to Fed. R. Civ. P. 6 and D.C. Colo.
LCivR 7.1, Plaintiff’s response to the motion was due to be filed on or before November 1, 2014;

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however, without objection by the Defendant, Plaintiff filed a response to the motion on November
12, 2014 (docket #38). Defendant then filed a timely reply in support of her motion on November
25, 2014 (docket #39). The Court is now fully advised.
LEGAL STANDARDS
I.

Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
“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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik, 671 F.3d at 1191 (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the
allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does
not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged

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cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik,
671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more
than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,”
so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” the complaint has made an allegation, “but it has not shown that the pleader is entitled
to relief.” Id. (quotation marks and citation omitted).
II.

Dismissal of a Pro Se Plaintiff’s Complaint
A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997) (quotations
and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite
the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the

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proper function of the district court to assume the role of advocate for the pro se litigant.” Id.
ANALYSIS
I.

Eighth Amendment Claim
The parties appear to agree that Plaintiff’s sole claim against Defendant Maestas is contained

in Claim One for violation of the Eighth Amendment when Maestas allegedly denied Plaintiff
medical treatment. Maestas argues that Plaintiff’s allegations fail to demonstrate she personally
participated in any constitutional violation, Plaintiff’s allegations reveal only a difference in opinion
as to any treatment provided, Plaintiff’s allegations do not constitute a sufficient serious medical
need, and Plaintiff’s allegations do not demonstrate Maestas knew of any risk of substantial harm.
Plaintiff responds that, as a trained nurse, Maestas knew the risks associated with asthma
attacks and specifically knew about the severity of Plaintiff’s asthma from information Plaintiff
provided at intake and from the daily dispensing of Plaintiff’s medication. Plaintiff also contends
that Maestas knew about her panic attack and did nothing to prevent or treat it. Plaintiff asserts that
Maestas’ state of mind was revealed in her sarcastic comment regarding the “body bag.” Finally,
Plaintiff argues1 that she was injured by the “unnecessary and wanton infliction of pain” caused by
the panic attack and continued asthma attack that lasted all day until the “p.m. nurse” gave her the
medication she needed.
Maestas replies that Plaintiff improperly seeks to add allegations in her response brief or

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Plaintiff mentions in her response brief that her allegations also state a Fourteenth
Amendment claim. Construing the operative pleading liberally, the Court does not perceive the
allegations support such claim; however, even if true, “the same analysis applies to both types of
claims.” Harris v. Matthews, 09-cv-02322-REB-MEH, 2011 WL 3510931, at *4 (D. Colo. July 25,
2011), adopted by Harris v. Matthews, 2011 WL 3489689 (D. Colo. Aug 09, 2011), (citing Barrie
v. Grand Cnty., Utah, 119 F.3d 862, 867 (10th Cir. 1997) and Craig v. Eberly, 164 F.3d 490, 495
(10th Cir. 1998)).
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makes arguments contradicting the facts set forth in the Amended Complaint, and repeats her
arguments that Plaintiff fails to state an Eighth Amendment claim as a matter of law.
Under the Eighth Amendment, prisoners are constitutionally entitled to “humane conditions
of confinement guided by ‘contemporary standards of decency.’” Penrod v. Zavaras, 94 F.3d 1399,
1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Accordingly, prison
officials must “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and
medical care and ... tak[e] reasonable measures to guarantee the inmates’ safety.” Barney v.
Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 832-33
(1994)). Prisoners state a claim of cruel and unusual punishment under the Eighth Amendment by
alleging prison officials demonstrated “deliberate indifference to a prisoner’s serious illness or
injury,” or that prison officials “have, with deliberate indifference,” involuntarily exposed a prisoner
to conditions “that pose an unreasonable risk of serious damage to [the inmate’s] future health.”
Helling v. McKinney, 509 U.S. 25, 35 (1993); Estelle, 429 U.S. at 105.
Plaintiff must meet both the objective and subjective components constituting the test for
deliberate indifference. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The objective
component of a “deliberate indifference to a prisoner’s serious illness or injury” claim is met “if the
harm suffered is ‘sufficiently serious’ to implicate the Cruel and Unusual Punishment Clause.” Id.
(quoting Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006), overruled on other grounds by
Robbins v. Okla., 519 F.3d 1242 (10th Cir. 2008)). The Tenth Circuit established “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.’” Horton v. Ward, 123 F. App’x 368, 371 (10th Cir. 2005) (quoting Sealock v. State of

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Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
The subjective component of the claim is met if the Plaintiff demonstrates Maestas “knew
[s]he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it.” Callahan, 471 F.3d at 1159 (quoting Kikumura, 461 F.3d at 1293). The
subjective component requires an “inquiry into a prison official’s state of mind when it is claimed
that the official has inflicted cruel and unusual punishment.” Kikumura, 461 F.3d at 1293 (quoting
Farmer, 511 U.S. at 838). This component is equivalent to “criminal recklessness, which makes a
person liable when she consciously disregards a substantial risk of harm.” Beauclair v. Graves, 227
F. App’x 773, 776 (10th Cir. 2007) (quoting Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005)). “A
prisoner may satisfy the subjective component by showing that defendants’ delay in providing
medical treatment caused either unnecessary pain or a worsening of [the] condition.” Mata, 427
F.3d at 755. However, “a delay in medical care ‘only constitutes an Eighth Amendment violation
where the plaintiff can show the delay resulted in substantial harm.’” Id. at 751 (quoting Oxendine
v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)). Substantial harm includes “lifelong handicap,
permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).
For Claim 1, Plaintiff alleges that she was “prescribed” a “rescue inhaler,” and that she
suffered a severe asthma attack from which she “eventually passed out” and when she regained
consciousness, she still had trouble breathing. Taken as true, the Court finds Plaintiff’s identified
medical need constitutes a sufficiently serious condition “that has been diagnosed by a physician as
mandating treatment.” See Sealock, 218 F.3d at 1209.
In addition, the Plaintiff must allege facts demonstrating deliberate indifference to her health,
such as when a prison official knew she faced a substantial risk of harm and disregarded that risk.

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The Tenth Circuit has held that prevention of needed medical treatment would be considered
deliberate indifference and evidence of a culpable state of mind. See Self, 439 F.3d at 1231.
According to the allegations in this case, Maestas refused Plaintiff’s request to be sent to a hospital
after she learned that her oxygen saturation level was 83%. However, Plaintiff does not state how
Maestas’ refusal harmed her physically, except that she had a “panic attack,” which “made [her]
already constrained breathing worse.” This allegation does not demonstrate that Maestas risked
substantial harm to Plaintiff by her refusal to send Plaintiff to the hospital.
Moreover, Maestas’ comment that the only way Plaintiff would get to the hospital “was in
a body bag” might demonstrate disregard for Plaintiff’s request, but the comment itself does not
necessarily demonstrate a “conscious disregard of a substantial risk of harm.” Mata, 427 F.3d at
752. Furthermore, to the extent Plaintiff claims any delay in medical treatment by her admission
that she eventually received asthma medication by the “p.m. nurse,” Plaintiff’s allegations fail to
demonstrate she suffered “substantial harm.” See Garrett, 254 F.3d at 950.
In sum, the Plaintiff has not plausibly alleged facts supporting a viable Eighth Amendment
claim against Maestas. Accordingly, the Court grants Maestas’ motion to dismiss Claim One
alleging an Eighth Amendment violation against Maestas.
II.

Leave to Amend
Dismissal of a case under Fed.R.Civ.P. 12(b)(6) 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.” Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th
Cir. 1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)). As such, in this
jurisdiction, a court typically does not dismiss a claim under Fed. R. Civ. P. 12(b)(6) until the

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plaintiff has been provided notice and an opportunity to amend the complaint to cure the defective
allegations. See Bellmon, 935 F.2d at 1109-10.
Here, the Plaintiff, although proceeding pro se, appears to be familiar with the applicable
legal concepts and landscape, and she has a firm grasp of the facts and issues in this case,
particularly considering that the issues closely resemble those in a lawsuit filed earlier this year,
Hammond v. Intervention, et al., 14-cv-00242-MEH. The legal issues stemming from the alleged
constitutional violations are not overly complex, novel, or difficult to state or analyze.2 Further,
allowing Plaintiff to amend her Complaint to cure any deficiencies would be futile because the Court
has determined that the well-pleaded facts, taken as true, do not state viable causes of action.
Moreover, the Plaintiff was alerted to the insufficiency of her claims against Maestas with
the Court’s order to file an amended complaint during initial review (“The Prisoner Complaint is
deficient in part because Plaintiff fails to allege specific facts to show the personal participation of
Defendants in violation of her constitutional rights. ... Plaintiff must explain in her Amended
Complaint what each defendant did to her, when the defendant did the action, how the action harmed
her, and what specific legal right she believes the defendant violated.”) (docket #6); with Maestas’
filing of a motion to dismiss on August 27, 2014 during the initial review stage of this litigation
(containing essentially the same arguments as those in the present motion), as well as with the
present motion filed October 8, 2014, but failed to seek leave to amend the pleading. In other words,
the Plaintiff was given repeated notice and the opportunity to cure her defective allegations, but she
did not seize the opportunity. See Bellmon, 935 F.2d at 1109-10 (“a motion to dismiss giv[es]

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Plaintiff also identifies herself in this case and in the earlier case with a “JD” after her name,
which typically signifies “juris doctor”; however, it is unclear whether Plaintiff attended and
graduated from law school.
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plaintiff notice and opportunity to amend his complaint”). Consequently, the Court will not grant
Plaintiff another opportunity to amend her pleading in this matter.
CONCLUSION
The Court concludes that Plaintiff’s Amended Prisoner Complaint contains insufficient
allegations to plausibly state an Eighth Amendment claim as set forth in Claim One against
Defendant Maestas.
Accordingly, the Court GRANTS the Motion to Dismiss Plaintiff’s Amended Complaint
filed by Defendant Kathy Maetas [filed October 8, 2014; docket #32] and directs the Clerk of the
Court to close this case.
DATED this 29th day of December, 2014, at Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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