Trujillo v. City and County of Denver, Colorado et al
ORDER granting 86 Motion for Leave to File First Amended Complaint; finding as moot 66 Report and Recommendations; finding as moot 20 Motion to Dismiss. by Judge R. Brooke Jackson on 11/6/15.(jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-02798-RBJ-MEH
CITY AND COUNTY OF DENVER, COLORADO,
ROMERO, Deputy, Denver Sheriff Department,
J. ALLEN, Deputy, Denver Sheriff Department,
J. ALLEN, R.N.,
A. PEREZ, R.N.,
V. TOLIVER, R.N.,
DANA WIMBERLY, R.N., and
ALL MEDICAL PROVIDERS IN THE DENVER CITY JAIL INFIRMARY,
The matter is before the Court on defendant City and County of Denver’s motion to
dismiss; a magistrate judge’s recommendation that the motion be granted; and plaintiff’s motion
for leave to file an amended complaint. For the reasons discussed below, the Court grants the
motion for leave to amend, thereby mooting the motion to dismiss and the magistrate judge’s
In her original complaint filed on October 10, 2014, Ms. Trujillo alleged that she was
injured in an accident while she was incarcerated in the Denver jail in July 2012, but that the
defendants were deliberately indifferent to her need for treatment in violation of the Eighth
Amendment. Following her release surgery was performed for spinal injuries, and her surgeon
indicated that her injuries were exacerbated by the failure to provide surgery at an earlier time.
ECF No. 1 at 1-4.
Although Ms. Trujillo was represented by counsel, she only managed to serve the City
and one of the individual defendants, “V. Toliver,” a nurse, who filed an answer. ECF No. 17.
The City filed a motion to dismiss, arguing that the complaint did not plausibly allege a
municipal liability claim. ECF No. 20. On April 10, 2015 – nine days after the filing of the
motion to dismiss – Ms. Trujillo’s lawyer moved to withdraw, citing an “irreconcilable conflict”
with her. Magistrate Judge Hegarty granted the motion to withdraw. ECF No. 23.
There followed several status conferences, ultimately resulting in plaintiff’s former
counsel’s filing of a motion on July 7, 2015 for the appointment of pro bono counsel to represent
Ms. Trujillo. ECF No. 55. This district has a Civil Pro Bono Program wherein lawyers can
volunteer to accept appointments on a pro bono basis. In cases deemed appropriate the court
through the Clerk’s Office contacts the volunteer panel to see whether someone who is able and
willing to take an appointment. The Court cannot guaranty that a pro bono lawyer will be found
for any particular case. On July 28, 2015 Judge Hegarty granted the motion for the appointment
of pro bono counsel, noting among other things that the court “will benefit from the appointment
of counsel for the Plaintiff, particularly considering the issues yet to be determined and the
circumstances underlying Plaintiff’s prior representation in this case.” ECF No. 63 at 2.
Meanwhile, the City’s motion to dismiss had been pending without a response for more
than three months. 1 On July 31, 2015 Judge Hegarty issued a recommendation that the City’s
motion to dismiss be granted. ECF No. 66. The recommendation also advised the parties per
Fed. R. Civ. P. 72 that they had 14 days after service to serve and file any written objection that
Ms. Trujillo filed a pro se response on July 10, 2015, but it simply noted that she believed her rights had
been violated and wished to oppose the motion but was waiting to hear about pro bono counsel. ECF No.
they might have to the recommendation. Id. at 1 n. 1. Ms. Trujillo requested an extension of the
objection deadline. ECF No. 67. On August 20, 2015 Judge Hegarty extended the deadline to
September 16, 2015, noting his hope that a volunteer attorney would be located, but warning Ms.
Trujillo that if that did not happen, the court would not indefinitely postpone her obligation to
file an objection to his recommendation. ECF No. 68.
On September 9, 2015 the Clerk reported that a lawyer had volunteered and had been
selected to represent Ms. Trujillo. ECF No. 78. On September 15, 2015 new counsel, Diego
Hunt, entered his appearance and filed an unopposed motion for another extension of the
objection deadline. ECF Nos. 79 and 80. The deadline was extended to September 30, 2015 and
later extended again to October 14, 2015. ECF Nos. 81 and 85.
On that date Mr. Hunt filed a motion for leave to file an amended complaint and an
objection to the recommendation to grant the City’s motion to dismiss. ECF Nos. 86 and 87.
The objection did not object to Judge Hegarty’s analysis but indicated that the proposed amended
complaint “remedies the purported deficiencies with the original Complaint” by identifying
alleged City policies and customs of failing to train employees and failing to provide proper
medical care to inmates. ECF No. 87 at ¶6. The proposed amended complaint adds two claims
and names numerous additional law enforcement and medical defendants. ECF No. 86-1.
Nurse Toliver opposes the motion to amend on several grounds: (1) plaintiff acted with
undue delay; (2) she and the new medical defendants will be unduly prejudiced by the
amendments; (3) the amendments are made in bad faith; and (4) the proposed amendments are
futile. ECF No. 93. The City opposes the motion to amend on grounds that the proposed
amended complaint (1) asserts claims that are barred by the statute of limitations; (2) does not
allege unconstitutional conduct by the new individual defendants; (3) still does not allege a
plausible municipal liability claim; (4) fails to allege a supervisory liability claim; and (5) would
be prejudicial to the City. ECF No. 96 at 4-17. Separately the City responds to plaintiff’s
“objection” to Judge Hegarty’s recommendation by arguing that it was not a valid objection
under Rule 72(b), and (again) that it did not cure the deficiencies of the original complaint. ECF
Leave to amend pleadings should be freely given when justice so requires. Fed. R. Civ.
P. 15(a)(2). The plaintiff, Ms. Trujillo, is an impecunious and, so far as the record shows, legally
unsophisticated person. I assume without deciding that Judge Hegarty’s recommendation to
dismiss the claims against the City as set forth in the original complaint was well grounded. I
also have no basis to question the decision to permit counsel to withdraw. See ECF No. 27. The
fact remains that Ms. Trujillo was left without counsel, and even if she has a meritorious claim
against someone, she appears to have had no ability to prosecute the case successfully on her
own behalf. Even as Judge Hegarty was addressing the motion to dismiss he was seeking
counsel for Ms. Trujillo from the Civil Pro Bono Program. It took some time, but Mr. Hunt
volunteered. Absent good grounds to the contrary, Rule 15 and the interest of justice support
granting leave to amend, particularly at an early (albeit belated) stage of the case.
Nurse Toliver’s Opposition.
I have considered each of Nurse Toliver’s objections. First, I do not agree that Ms.
Trujillo acted with undue delay. She did not frame the original complaint. She apparently did
not terminate her lawyer. See ECF No. 27 (minute order indicating that Ms. Trujillo advised
Judge Hegarty that she wasn’t told by her lawyer that he intended to withdraw or that he had
withdrawn). She was not responsible for the time it took to secure pro bono counsel. It is
unusual for a case to be 13 months old and still not have even had an initial scheduling
conference, and Nurse Toliver has reason to be frustrated. But, I cannot fault Ms. Trujillo for the
delay that has occurred.
Second, I do not find that Nurse Toliver has been unfairly prejudiced. Her argument
actually asserts that the new medical defendants have been prejudiced by learning of claims
against them “so long after the care was provided.” ECF No. 93 at 8. She does not explain how
she has standing to make arguments on behalf of others. If and when they are served they can
assert defenses including untimeliness if they or their counsel deem it to be appropriate.
Third, she asserts but has not shown any bad faith on the part of Ms. Trujillo or counsel.
She complains about the “shotgun approach of naming ten new putative health care defendants
simply because they provided care and treatment at some point after her fall in July 2012.” Id. at
10. I am not a fan of shotgun-style pleading or of involving anyone in a lawsuit who does not
belong. At this point, however, I assume that counsel satisfied himself that he had a good faith
basis under Rule 11 for naming the individuals he has named. I expect that counsel will consider
and act on any evidence that is brought to his attention that suggests that an individual or
individuals should be voluntarily dismissed.
Finally, I do not address the futility argument. At this point I am focusing on the motion
to amend, not on the merits of the case. Nurse Toliver asserts that the amendments are barred by
the statute of limitations. That is an affirmative defense that would rarely be addressed on a
motion to dismiss (which Nurse Toliver never filed), much less a motion to amend.
The City’s Opposition.
The City’s first (statute of limitations), second (no allegation of unconstitutional conduct
by certain defendants), third (no plausible municipal liability claim), and fourth (no allegation of
supervisory liability) address merits issues that I do not address in ruling on a motion for leave to
amend the complaint.
The fifth argument, prejudice to the City, is certainly relevant to the motion for leave to
amend, but I am not persuaded by it. The City essentially argues that it is prejudiced by being
denied the benefit of Judge Hegarty’s favorable recommendation on the City’s motion to
dismiss. That assumes, of course, that this Court would have accepted the recommendation.
Even so, the recommendation was based on a poorly drafted complaint. The loss of an
opportunity to get out of a case because opposing counsel did an inadequate job of pleading a
claim and then withdrew before he had a chance to defend his pleading or seek leave to amend
does not constitute unfair prejudice. I understand to some extent the frustration of having
prepared a motion, only to see it mooted. But a Monell defense is familiar stuff these days,
raised and briefed by municipalities in case after case. It is not as if the research were brand new
or that it will go to waste, particularly given the City’s position that the proposed amended
complaint does not cure the insufficient pleading of a municipal liability claim. The City will
have the opportunity to press the defense, but this is not the time or place.
In short, while I understand the City’s (and Nurse Toliver’s) unhappiness at the
reconstitution of the claims by recently appointed counsel, I find that it is in the interest of justice
to permit the amended complaint. I also disagree that Ms. Trujillo’s new counsel did not
sufficiently note his objection to Judge Hegarty’s recommendation. Rather than attempting to
defend a complaint that he did not draft, he drafted a new complaint, in the process making it
clear that he believes there is a viable municipal liability claim. In the circumstances that strikes
me as the substantive equivalent of a more conventional objection.
1. The City’s motion to dismiss, ECF No. 20, is moot.
2. Magistrate Judge Hegarty’s recommendation that this Court grant the City’s motion,
ECF No. 66, is moot.
3. Plaintiff’s motion to amend for leave to file a First Amended Complaint, ECF No. 86,
is granted. The proposed First Amended Complaint, ECF No. 86-1, is accepted for filing.
4. Plaintiff is directed to proceed with dispatch to accomplish proper service upon all
defendants not already served.
5. As soon as it is known who will be representing all named and served defendants,
counsel are directed to contact chambers and set a scheduling conference.
DATED this 6th day of November, 2015.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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