Meeker v. Life Care Centers of America, Inc. et al
Filing
120
ORDER Granting in part and Denying in part 25 Life Care Defendants' Motion to Dismiss. It is granted to the extent Plaintiff asserts state law claims against Defendants Baker, Varley and Holmes. It is denied in all other respects, by Judge Wiley Y. Daniel on 5/5/2015.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-02101-WYD-BNB
MICHELLE MEEKER,
Plaintiff,
v.
LIFE CARE CENTERS OF AMERICA, INC., d/b/a HERITAGE PARK CARE CENTER;
COLORADO MEDICAL INVESTORS, LLC, d/b/a HERITAGE PARK CARE CENTER;
TOWN OF CARBONDALE, COLORADO;
EUGENE SCHILLING, Chief of the Carbondale Police Department, in his official and
individual capacities;
MICHAEL ZIMMERMAN, Police Officer in the Carbondale Police Department, in his
official and individual capacities;
ROBERT BAKER, Executive Director of LCCAs Heritage Park Care Center;
JESSICA VARLEY, Human Resources Director of LCCAs Heritage Park Care Center;
and
MELANIE HOLMES, Director of Nursing of LCCAs Heritage Park Care Center,
Defendants.
ORDER
I.
INTRODUCTION
THIS MATTER is before the Court in connection with Life Care Defendants'
Motion to Dismiss filed September 11, 2014. The Life Care Defendants include Life
Care Centers of America, Inc. [“LCCA”], Colorado Medical Investors, LLC [“CMI”],
Robert Baker [“Baker”], Jessica Varley [“Varley”], and Melanie Holmes [“Holmes”]. The
motion is fully briefed. A response was filed on September 25, 2014, and a reply was
filed on October 9, 2014. For the reasons discussed below, the Life Care Defendants’
Motion to Dismiss is granted in part and denied in part.
II.
BACKGROUND
OI July 29, 2014, Plaintiff filed her Complaint and Demand for Jury Trial
[“Complaint”] against Defendants LCCA and CMI; Baker, the executive director of
Heritage Park Care Center [“Heritage Park”]; Varley, human resources director of
Heritage Park; and Holmes, director of nursing of Heritage Park [collectively, the
Employer Defendants”]. She also sues the Town of Carbondale, Colorado; Eugene
Schilling, Chief of Carbondale Police Department, in his official and individual
capacities; and Michael Zimmerman, Police Officer in the Carbondale Police
Department, in his official and individual capacities [“Zimmerman”] [collectively, the
“Non-Employer Defendants”].
The case arises out of the fact that on October 16, 2013, Plaintiff was taken
hostage at gunpoint when she was at work at Heritage Park nursing facility in
Carbondale, Colorado. (CompI., ¶¶ 1, 26-65.) Heritage Park is co-owned by LCCA and
CMI. (Id., ¶¶ 7, 8.) Plaintiff alleges that the gunman held her against her will at
gunpoint, terrorizing her. (Id., ¶¶ 1, 42-44.) As she cried and begged for her life, “the
man said in a hushed tone that this was a ‘drill’”, and that he was a Carbondale Police
Officer. (Id., ¶¶ 46-49.)
Plaintiff had no knowledge that this hostage situation was actually part of an
“active shooter drill” that was deliberately coordinated and carried out by Defendants.
(Compl., ¶ 1.) The “gunman” was played by Defendant Zimmerman, an on-duty police
officer in the Carbondale Police Department. (Id.) Plaintiff asserts that Defendants
intentionally kept the “active shooter drill” secret from the Heritage Park employees and
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intentionally failed to disclose to them that such a drill could or would be conducted at
the facility. (Id.) In so doing, she alleges that the Employer Defendants deliberately
intended to cause Plaintiff’s injuries and acted directly to bring about her injuries. (Id.,
¶ 101.) She further alleges that all Defendants “willfully participated in joint actions in
order to deprive Ms. Meeker of her constitutional rights.” (Id., ¶ 89.)
Claims One through Six of the Complaint assert federal civil rights claims
pursuant to 42 U.S.C. § 1983. These claims include violations of the Fourth
Amendment against all Defendants for unreasonable seizure, excessive force, false
imprisonment, procedural due process violations, and substantive due process
violations. Plaintiff also asserts violations of the Fourteenth Amendment for failure to
train and/or supervise by and against the Town of Carbondale and Chief Schilling in his
official and individual capacities. Finally, Claims Seven through Ten are state law
claims brought against the Employer Defendants and Chief Schilling and Zimmerman in
their individual capacities. These claims include civil assault, civil battery, civil false
imprisonment and outrageous conduct.
The Employer Defendants assert pursuant to Fed. R. Civ. P. 12(b)(6) that
Plaintiff’s § 1983 claims against Zimmerman fail as a matter of law because he was not
clothed with the authority of the state at the time of the alleged constitutional
deprivations. They argue that the state tort law claims fail because they are precluded
by the Colorado Workers’ Compensation Act. In that regard, the Employer Defendants
contend that the exclusive remedy rule precludes tort claims against them because the
active shooter drill was inherently connected to Plaintiff’s employment and was not
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inherently private to Plaintiff. Further, they argue that the fellow servant doctrine
precludes tort claims against Baker, Varley, and Holmes. Finally, they assert that the
intentional tort exception to the exclusive remedy rule does not apply as a matter of law.
Plaintiff asserts, on the other hand, that the Court has jurisdiction over all the
claims. First, she asserts that Zimmerman was acting under “color of law” sufficient to
raise a claim under § 1983. Second, she argues that the state law tort claims are not
precluded by the Workers’ Compensation Act. In that regard, she asserts that her
claims are based upon intentional torts committed by the employer or the employer’s
“alter ego”. Plaintiff also asserts that her claims are not the type of intentional torts that
“arise” out of her employment, nor were they are in the “course” of her employment.
Further, she argues that whether the exclusivity portions of the Workers’ Compensation
Act bars her state law claims is a question of fact, not appropriately resolved by a
motion to dismiss.
II.
ANALYSIS
A.
Standard of Review
In reviewing a motion to dismiss, the court must “accept all well-pleaded facts as
true and view them in the light most favorable” to the party asserting the claim. JordanArapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011). To
survive a motion to dismiss under Rule 12(b)(6), the party asserting the claim “must
allege that ‘enough factual matter, taken as true, [makes] his claim for relief ... plausible
on its face.’” Id. (quotation and internal quotation marks omitted). “A claim has facial
plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged.’” Id. (quotation omitted).
Thus, a party asserting a claim “must include enough facts to ‘nudge[] his claims
across the line from conceivable to plausible.’” Dennis v. Watco Cos., Inc., 631 F.3d
1303, 1305 (10th Cir. 2011) (quotation omitted). Conclusory allegations are not sufficient
to survive a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.
2009).
B.
The Merits of the Parties’ Arguments
1.
The § 1983 Claims Against Zimmerman
I first address Defendants’ argument that Plaintiff’s § 1983 claims against
Zimmerman fail as a matter of law because he was not clothed with the authority of the
state at the time of the alleged constitutional deprivations. 42 U.S.C. § 1983 provides
that “[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage” of a state subjects another the deprivation of constitutional rights may be liable
in tort.” Key to liability under § 1983 is that the tortfeasor acted under color of law: “the
purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights . . . .” Wyatt v. Cole, 504 U.S.
158, 161(1992).
Thus, “[t]he traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state
law.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1992) (internal quotations omitted).
Therefore, “‘the only proper defendants in a Section 1983 claim are those who
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represent [the state] in some capacity, whether they act in accordance with their
authority or misuse it.’” Id. (quotations and internal quotation marks omitted). “[I]t is the
plaintiff's burden to plead, and ultimately establish, the existence of ‘a real nexus’
between the defendant’s conduct and the defendant’s ‘badge’ of state authority in order
to demonstrate action was taken ‘under color of state law.’” Id. at 494.
Defendants argue that the Jojola case where the plaintiffs failed to meet their
burden of proving state action is analogous to this one. In that case, the plaintiffs’
daughter, a fifteen year old, was taken into a vacant classroom by Chavez, the school
custodian, and molested. 55 F.3d at 490. The complaint was devoid of any allegation
that Chavez enticed the child into the classroom through the use or misuse of any state
authority he possessed. Id. at 494. Unlike that case, I find that Plaintiff has alleged
sufficient facts to demonstrate both that Zimmerman actually possessed state authority
(as a police officer), and that he exercised it in relation to taking Plaintiff hostage as part
of the active shooter drill.
Specifically, the Complaint alleges that Zimmerman ordered Plaintiff inside a
room at gunpoint. (Compl., ¶¶ 35-42.) Plaintiff alleges she began to cry and begged
the man not to hurt her, telling him she had a young child. (Id., ¶¶ 43-45.) At that point,
the man told Plaintiff “in a hushed tone that he was a Carbondale Police Officer, that
this was a “drill”, and that he needed Plaintiff “to get into the room so that he could
continue the ‘drill.’” (Id., ¶¶ 46-50.) Plaintiff alleges that “[i]n a state of total shock,
confusion, and fear, [she] complied with his order and went into the room, still not
knowing if the man was truly a police officer and still scared that she would not leave
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there alive.” (Id., ¶ 50.) Once inside the room, the man told Plaintiff that he wanted to
see how long it would take for other employees to find her and how they would respond
to the hostage situation. He also instructed Plaintiff to remain in the room and said that
she had to help him “capture” one of her co-workers. (Id., ¶¶ 52-53.) Finally, Plaintiff
alleges that at all relevant time periods Defendants were acting under color of state law,
and that they conspired with Police Defendants for the purpose of depriving her of her
constitutional rights. (Id., ¶ 87.)
The fact that Zimmerman was not dressed in a police uniform is not dispositive.
The Tenth Circuit has applied the color of law requirement even to the conduct of offduty police officers. David v. City and Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.
1996). As the David court noted, “[t]he under color of law determination rarely depends
on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or
whether or not the officer acts in accordance with his or her duty.” Id. “Instead, one
must examine ‘the nature and circumstances of the officer's conduct and the
relationship of that conduct to the performance of his official duties.’” I also reject
Defendants’ argument that Plaintiff cannot simultaneously claim that she believed
Zimmerman was a bona fide hostage-taker but at the same time was compelled by his
authority as a police officer. Here, accepting the allegations as true and giving Plaintiff
the benefit of favorable inferences pursuant to Rule 12(b)(6), Zimmerman identified
himself as a police officer to Plaintiff in an attempt to get her into a room at gunpoint as
part of the alleged safety drill, and was acting within his duties as a police officer. Thus,
I find for purposes of the motion to dismiss that he was acting under color of state law,
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and deny Defendant’s motion on this issue. See also Griffin v. Maryland, 378 U.S. 130,
135 (1964) (private security guard who identified himself as a deputy sheriff “purported
to exercise the authority of a deputy sheriff,” and was therefore a state actor; “[i]f an
individual is possessed of state authority and purports to act under that authority, his
action is state action. . .”).
2.
Whether the State Tort Law Claims Are Precluded by the Workers’
Compensation Act
Defendants next argue that Plaintiff’s state tort claw claims are precluded by the
exclusivity portions of the Colorado Workers’ Compensation Act, which “provides
exclusive remedies for compensation of an employee by an employer for work-related
injury. Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo. 1991); see also Colo. Rev.
Stat. § 8-41-301(1)). For the Workers’ Compensation Act to apply, the employee must
have been “‘performing service arising out of and in the course of the employee's
employment,’ § 8–41–301(1)(b)”, and the injury must be “‘proximately caused by an
injury ... arising out of and in the course of the employee's employment. . . .’” Id. This
constitutes two separate requirements. Id.
The phrase “in the course of” refers to the time, place, and circumstances under
which the injury occurred”. Triad Painting, 812 P.2d at 641. “The ‘course of
employment’ requirement is satisfied when it is shown that the injury occurred within the
time and place limits of the employment relation and during an activity that had some
connection with the employee’s job functions.” Id. Here, Plaintiff alleges that she was
on duty during a regularly-scheduled shift when the incident at issue occurred (Compl.,
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¶¶ 21, 73-74); thus, the injury occurred within the time and place limits of the
employment relation.
However, the parties dispute whether the incident occurred during an activity that
had some connection with Plaintiff’s job functions. They also dispute the second
requirement that the injury arise out of employment. That requirement is narrower than
the phrase “in the course of.” Triad Painting, 812 P.2d at 641. “An injury ‘arises out of’
employment’ when there is a causal relationship between the employment and the
injury.” Id. It must have “‘its origins in an employee’s work-related functions’” and be
“‘sufficiently related thereto as to be considered part of the employee’s service to the
employer in connection with the contract of employment.’” Id. at 641-42 (quotation
omitted). “[T]he determination of whether an injury arises out of employment is fact
specific and is to be resolved by examining the totality of the circumstances.” Id. at 643.
In the case at hand, Plaintiff alleges that the “active shooter drill” and the
circumstances related to that were not part of her job duties or connected to her workrelated functions and were “well outside the scope of employment with LCCA” (Compl.,
¶¶ 28-29, 105.) Moreover, she alleges that (1) “LCCA Defendants' management,
including but not limited to Defendant Holmes, decided ahead of time that Michelle
Meeker would be the victim of the ‘active shooter drill’ and that she would be taken
hostage by Defendant Zimmerman during the drill; (2) “[t]here is nothing about the
nature of Ms. Meeker's employment with LCCA that either allows or requires LCCA
Defendants to intentionally terrorize and place LCCA employees such as Ms. Meeker in
fear for their lives under the threat of deadly force” (3) “Ms. Meeker's job duties as a RN
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at [Heritage Park] did not place her at any greater risk of injury from a hostage scenario
than the risk of injury from a hostage scenario to which the general public is exposed”;
(4) [h]ad Defendants not conspired to execute and actually executed the ‘active shooter
drill’ at [Heritage Park] on October 16, 2013, Ms. Meeker would not have suffered the
injuries and damages complained of herein”; and (5) Defendants' conduct in arranging
for Ms. Meeker to be taken hostage and terrorized by a man armed with a gun lies well
outside the scope of employment with LCCA. (Id., ¶¶ 97, 102-105.)
On the other hand, Defendants argue that the active-shooter drill, which they
characterize as a safety drill, which was conducted by the employer on the employer’s
premises involving an employee during that employee’s shift is reasonably incidental to
the conditions of Plaintiff’s work. They point to the allegation that, after the completion
of the active-shooter drill, Defendant Baker indicated to her that “they [the employer]
needed to get the point across that this threat exists in the real world” because Life Care
Centers has “had problems with men with guns coming into nursing homes.” (Compl.. ¶
69; see also ¶ 85—Defendant Holmes responding to Plaintiff “that the facility has to run
those kinds of drills.”) They assert that this demonstrates the inherent connection
between the safety drill and Plaintiff’s employment.
I find that this is an issue of fact that cannot be resolved on a motion to dismiss.
As to the “course of employment” requirement, while the Colorado state courts have
made clear that the employee need not “be engaged in the actual performance of work
at the time of injury in order for the ‘course of employment’ requirement to be satisfied”,
Ventura v. Albertson’s, Inc., 856 P.2d 35, 38 (Colo. App. 1992), the injury must arise out
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of a risk which is reasonably incidental to the conditions and circumstances of the
particular employment.” Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12 (Colo. App.
1995) (internal citations omitted). I cannot find as a matter of law based on the
allegations at issue that the active-shooter drill where Plaintiff is alleged to have been
purposely chosen to be the hostage and terrorized and put in fear for her life under the
threat of deadly force is reasonably incidental to the conditions of Plaintiff’s work.
Similarly, as to the “arising out of employment” requirement, I cannot find as a
matter of law that the active shooter drill has its origins in Plaintiff’s work-related
functions and is sufficiently related thereto as to be considered part of Plaintiff’s service
“to her employer in connection with the contract of employment.’” Triad Painting, 812
P.2d at 641-42 (quotation omitted). Indeed, the Tenth Circuit has indicated that when
the exclusivity portions of the Workers’ Compensation Act are disputed, the issue is one
for the trier of fact. Radil v. Sanborn Western Camps, Inc., 384 F.3d 1220, 1224 (10th
Cir. 2004). That certainly seems appropriate in this case given the highly charged acts
at issue in the case which were authorized by the Employer Defendants and directed at
Plaintiff.
While Defendants cite the law regarding whether assaults arise out of
employment in support of their motion, I find that law is not dispositive. In determining
whether injuries from assaults arise out of employment for purposes of the Workers’
Compensation Act, courts look at whether the assaults have an inherent connection
with the employment, are inherently private, or are neutral. Horodyskyj v. Karanian, 32
P.3d 470, 475 (Colo. 2001). If an employee’s injuries have an inherent connection with
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the employment or are neutral, those injuries arise out of the employment and the
employee is barred from brining a tort claim against her employer. Id.
Here, I cannot find as a matter of law that the active shooter drill and Plaintiff’s
injuries have an inherent connection with employment, i.e., “emanate from the duties of
the job.” Horodyskyj, 32 P.3d at 476.1 Indeed, Plaintiff alleges that the hostage
situation and drill are completely unrelated to her job duties. Further, I cannot find as a
matter of law that the active shooter drill was neutral, i.e., where the injuries “are
attributable to neutral and unexplained forces” such as stray bullets or roving lunatics
“and are neither personal to either party nor distinctly associated with the employment.”
Id. Zimmerman was not a neutral or unplanned force as he was retained by the
Employer Defendants to conduct the drill. Further, Plaintiff alleges that the active
shooter drill was personal to her as she was targeted to be the hostage.
While assaults that are “inherently private”, i.e., those that “have their origin in the
private affairs of the claimant or the tortfeasor and are unrelated to their respective
work-related functions” are deemed not to arise out of employment, Horodyskyj, 32 P.3d
at 477, that is also not the situation in this case. The active shooter drill did not have its
origin in the private affairs of Plaintiff or Officer Zimmerman and the other Defendants.
Instead, Plaintiff’s employer planned and coordinated it ahead of time, and is alleged to
have “had a pattern and practice of instructing its facilities, on a national basis, to
1
Included within this category are assaults originating in arguments over work performance, work
equipment, delivery of a paycheck, or termination from work. Id.
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conduct” such a drill. (Compl., ¶¶ 90-92, 96-97, 106-07.) None of the scenarios
described in Horodyskyj appear to apply, leaving this case in a gray area.
Since I have found that the claims are not barred by the exclusivity portions of
the Workers’ Compensation Act, I need not consider whether the intentional tort
exception applies. I question, however, its applicability. An employer may be held liable
to an employee for damage claims for intentional torts committed by the employer or the
employer's alter ego “if the employer deliberately intended to cause the injury, and acted
directly, rather than constructively through an agent.” Ventura, 856 P.2d at
39. Here, the injury was caused by the acts of Officer Zimmerman, who was retained
by the Employer Defendants to conduct the drill.
Finally, however, I grant the motion to dismiss to the extent Plaintiff’s state law
claims are directed as to the individual LCCA Defendants who were employed at
Heritage Park—Baker, Varley and Holmes. Plaintiff alleges that “the LCCA Defendants
are vicariously liable” for the actions of their agents. (Compl., ¶¶ 209, 216, 227, 235.)
However, employees are barred from maintaining tort actions against either a coemployee or against the employer under the doctrine of respondeat superior for
intentional torts which arise out of and in the course of employment. Ventura, 856 P.2d
at 39. In other words, “workers’ compensation provides the exclusive remedy for an
employee injured by an intentional act of a co-employee [or supervisor] when both were
acting within the course of their employment.” Triad Painting, 812 P.2d at 642; see also
Kandt v. Evans, 645 P.2d 1300, 1302 (Colo. 1982). Accordingly, the state law claims
against Baker, Varley and Holmes are barred on this basis.
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III.
CONCLUSION
Based upon the foregoing, it is
ORDERED that the Life Care Defendants' Motion to Dismiss (ECF No.25 ) is
GRANTED IN PART AND DENIED IN PART. It is granted to the extent Plaintiff asserts
state law claims against Defendants Baker, Varley and Holmes. It is denied in all other
respects.
Dated: May 5, 2015
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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