Delgado et al v. Correct Care Solutions, LLC et al

Filing 158

ORDER. ORDERED that Defendants CCS and CHC's Partial Motion to Dismiss the Second Claim of Plaintiffs' Third Amended Complaint 117 is granted. ORDERED that plaintiffs' second claim for relief is dismissed as to defendants Correct Care Solutions, LLC and Correctional Healthcare Companies, Inc. Signed by Judge Philip A. Brimmer on 03/30/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-02718-PAB-STV
ESTATE OF JENNIFER LOBATO, by and through its personal representative Paul
Montoya,
PAUL MONTOYA, individually,
ANGELICA DELGADO,
A.Z., a minor, by and through his father, Paul Montoya,
J.M., a minor, by and through her father, Paul Montoya,
V.M., a minor, by and through her father, Paul Montoya,
L.F., a minor, by and through his father, Luciano Fresquez,
A.F., a minor, by and through her father, Luciano Fresquez, and
I.F., a minor, by and through his father, Luciano Fresquez,
Plaintiffs,
v.
CORRECT CARE SOLUTIONS, LLC,
CORRECTIONAL HEALTHCARE COMPANIES, INC.,
JEFFERSON COUNTY, COLORADO,
JESSICA ROMERO, in her individual capacity,
CAROLINE RYAN, in her individual capacity,
BRIANNA WHINNERY, in her individual capacity, and
ESME ZIEGELMAN, in her individual capacity,
Defendants.
ORDER
This matter is before the Court on Defendants CCS and CHC’s Partial Motion to
Dismiss the Second Claim of Plaintiffs’ Third Amended Complaint [Docket No. 117].
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND1
On March 2, 2015, Jennifer Lobato died as a result of untreated withdrawal from
methadone while detained in the Jefferson County Detention Facility in Jefferson
1

The facts below are taken from plaintiffs’ third amended complaint, Docket No.
109, and are presumed to be true for purposes of this motion to dismiss.

County, Colorado (“JCDF”). Docket No. 109 at 28-29, ¶¶ 147, 152-54. Plaintif fs are
Ms. Lobato’s husband, her children, and the estate of Ms. Lobato. Id. at 9, ¶¶ 16-17.
Ms. Lobato was arrested on March 1, 2015 for allegedly shoplifting. Id. at 11, ¶ 55.
While being transported to JCDF, Ms. Lobato told Officer Wendy Trentaz of the
Lakewood Police Department that “she was a heroin user and that she was concerned
about going to jail because of her fear of withdrawing from the drug.” Id., ¶ 56.
Ms. Lobato arrived at JCDF at around 5:00 p.m. on March 1, 2015 for booking
and processing. Id. at 13, ¶ 72. During the booking process, Emergency Medical
Technician (“EMT”) Jessica Romero and EMT Bryan Muscutt performed an intake on
Ms. Lobato. Id. at 14, ¶ 79. Romero and Muscutt were employed by the CCS
defendants.2 Id. at 8, ¶¶ 37-38. The CCS defendants contract with Jefferson County to
provide medical care to inmates and detainees at JCDF. Id. at 11, ¶ 57. The purpose
of the intake process is “to determine whether an inmate needs medical attention.” Id.
at 14, ¶ 79. Romero and Muscutt both stated that, during the intake process, “Ms.
Lobato never admitted to any drug use and did not exhibit signs of withdrawal.” Id.
The CCS defendants’ policy requires that, “if an inmate affirmatively confirms
drug usage or exhibits any signs of withdrawal,” the medical staff is required to initiate
the opiate withdrawal protocol. Id., ¶ 80. The opiate withdrawal protocol requires the
EMT staff to check the inmate’s vital signs and for a nurse to screen the inmate for
2

Correctional Healthcare Companies, Inc. (“CHC”) was operating in Colorado as
a provider of jail medical services through 2014, when it was merged with or was
acquired by Correct Care Solutions, LLC (“CCS”). Docket No. 109 at 11-12, ¶¶ 58-61.
CCS and CHC hold themselves out as a combined company. Id. at 12, ¶ 63. For the
sake of brevity, the Court refers to CCS and CHC collectively as the “CCS defendants.”
2

“clinical indications of withdrawal.” Id., ¶ 81. Plaintiffs allege that, although “Ms. Lobato
was showing visible signs of withdrawal, including but not limited to sweating and
shaking, JCDF’s written opiate withdrawal protocol was ignored by EMT Romero and
EMT Muscutt and Ms. Lobato was never screened for any clinical indications of
withdrawal.” Id. at 14-15, ¶ 82. Ms. Lobato was then placed in a cell in Unit 6A. Id. at
15, ¶ 84.
At approximately 8:30 a.m. on March 2, 2015, Nurse Caroline Ryan, another
employee of the CCS defendants, id. at 9, ¶ 39, conducted her morning medication
disbursement to the inmates in Unit 6A. Id. at 17, ¶ 94. Numerous inmates attempted
to inform Nurse Ryan about plaintiff’s withdrawal symptoms, but Nurse Ryan did not
examine Ms. Lobato or take any action based on the inmates’ descriptions of Ms.
Lobato’s symptoms. Id., ¶ 95. Throughout the morning, Ms. Lobato and other inmates
informed deputies working at JCDF that Ms. Lobato was experiencing withdrawal
symptoms. Id. at 16-20, ¶¶ 96-107. Ms. Lobato informed the deputies that she was
withdrawing from “meth.” Id. at 19, ¶ 103. One deputy, after hearing Ms. Lobato
complain about withdrawal, reviewed Ms. Lobato’s intake records and spoke to EMT
Romero about Ms. Lobato’s intake. Id. at 20, ¶ 107-08. EMT Romero informed the
deputy that Ms. Lobato had not provided any information related to withdrawal and
stated that “they don’t really have a protocol for meth anyway.” Id., ¶ 108. EMT
Romero did not try to clarify what “meth” referred to. Id.
Nurse Ryan returned to Unit 6A between 11:15 a.m. and 11:45 a.m. to do
another medication distribution. Id. at 20, ¶ 111. By this time, Ms. Lobato had been

3

vomiting for several hours. Id. at 17, ¶ 97. Numerous inmates alerted Nurse Ryan that
Ms. Lobato was in withdrawal, but Nurse Ryan did not evaluate Ms. Lobato or take any
other actions in response to the inmates’ statements. Id. at 21, ¶ 112. Throughout the
afternoon, Ms. Lobato and the other inmates continued to inform the deputies on duty
that Ms. Lobato was in withdrawal, was vomiting, and was in need of medical attention.
Id. at 21-23, ¶¶ 113-126. Instead of providing Ms. Lobato with treatment, the deputies
on duty ignored Ms. Lobato’s pleas and harassed the inm ates who tried to get Ms.
Lobato help. Id. at 24-26, ¶¶ 129-133.
Nurse Ryan returned for a third time to Unit 6A at approximately 4:30 p.m. to
distribute medication. Id. at 26, ¶ 134. One of the deputies informed Nurse Ryan that
Ms. Lobato was withdrawing from “meth” and that Ms. Lobato had not mentioned this
during the intake process. Id. Nurse Ryan stated that “they could not give any
medications for meth withdrawal, and if she had her way, everyone would withdraw
from meth because it was the best [drug to] withdraw from.” Id., ¶ 135. Nurse Ryan did
not attempt to clarify the meaning of “meth,” inquire about Ms. Lobato’s physical
condition, or attempt to examine Ms. Lobato. Id. at ¶ 136.
At approximately 5:00 p.m., Ms. Lobato’s cellmate returned to the cell. Id.,
at 26-27, ¶ 137. She was “overcome by the smell of vomit” and informed the deputies
that “Ms. Lobato was extremely sick and needed help.” Id. at 27, ¶ 138. The deputies
instructed Ms. Lobato’s cellmate to clean the cell and did not ask about Ms. Lobato’s
condition. Id. Ms. Lobato’s cellmate refused to clean the cell and left. Id., ¶ 139. The
deputy told Ms. Lobato “that she would only receive medical attention after the cell had

4

been cleaned.” Id. At that time, Ms. Lobato informed one of the deputies that she was
withdrawing from methadone. Id. at 27, ¶ 140. The deputy contacted Nurse Brianna
Whinnery, id., another employee of the CCS defendants. Id. at 9, ¶ 40. Nurse
Whinnery told the deputy that Ms. Lobato would be put on the list for the evening
medication rounds. Id. at 27, ¶ 142. Nurse Whinnery did not inquire as to Ms. Lobato’s
condition, send medical staff to evaluate Ms. Lobato, or “otherwise follow the
established protocol.” Id. Nurse Whinnery gave Ms. Lobato’s medical information,
including that she was withdrawing from methadone, to Nurse Esme Ziegelman, the
charge nurse for the night shift. Id. at 28, ¶ 143. Nurse Ziegelman did not attempt to
get any additional information about Ms. Lobato’s physical condition. Id.
The medication rounds for the evening did not begin until 7:30 p.m. Id., ¶ 144.
At approximately 7:00 p.m. on March 2, 2015, Ms. Lobato pressed the intercom button
in her cell and “pleaded for medical attention.” Id. at 29, ¶ 148. The deputies on duty
told Ms. Lobato she would have to wait for the nurse’s evening medication rounds. Id.
At approximately 7:19 p.m., Ms. Lobato’s cellmate pressed the intercom button and told
the deputies that she did not think Ms. Lobato w as breathing. Id., ¶ 149. The deputies
called for paramedics, who arrived at approximately 7:30 p.m. Id., ¶ 151. At 7:45 p.m.,
Ms. Lobato was pronounced dead. Id., ¶ 152. Ms. Lobato died of “cardiac arrest due
to probable electrolyte abnormalities, due to repeated vomiting.” Id., ¶ 153.
According to an expert retained by plaintiffs, Ms. Lobato’s death was preventable
“by simple medical care and treatments, and even up until the immediate time of her

5

death, her treatments with IV fluids and electrolyte replacements would have saved her
life.” Id. at 30, ¶ 156.
The third amended complaint alleges five claims for relief: first, the estate of Ms.
Lobato seeks damages against all defendants under 42 U.S.C. § 1983 for a failure to
provide medical care and treatment in accordance with the Fourteenth Amendment;
second, the estate of Ms. Lobato seeks damages against the CCS defendants and
Jefferson County under 42 U.S.C. § 1983; third, plaintiffs Paul Montoya, Angelica
Delgado, A.Z., J.M., V.M., L.F., A.F., and I.F. seek dam ages against the CCS
defendants, Caroline Ryan, Brianna Whinnery, Jessica Romero, and Esme Ziegelman
for medical negligence causing wrongful death; fourth, plaintiffs Paul Montoya, Angelica
Delgado, A.Z., J.M., V.M., L.F., A.F., and I.F. seek dam ages for negligent operation of
the jail resulting in the wrongful death of Ms. Lobato3; and fifth, all plaintiffs seek
damages from all defendants as heirs to Ms. Lobato’s estate. Docket No. 109 at 38-48,
¶¶ 199-261.
The CCS defendants have moved to dismiss plaintiffs’ second claim for relief.
Docket No. 117.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiffs’ “claim to relief . . .
plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
3

While plaintiffs’ second amended complaint presents five claims for relief,
plaintiffs’ fourth claim, for negligence in the operation of a jail resulting in wrongful
death, Docket No. 109 at 45, was brought only against defendants who have since
been dismissed from this case. See Docket No. 142.
6

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted). Thus, even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.”
Bryson, 534 F.3d at 1286 (alteration marks omitted).
III. ANALYSIS
Plaintiffs’ second claim for relief is based on a theory of entity liability. “Local
governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.
658, 690 (1978) (footnote omitted). While Monell explicitly applies to municipal
governments, the Tenth Circuit has extended the Monell doctrine to private entities
acting under color of state law. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th
Cir. 2003) (citations omitted). An entity like CCS, however, “cannot be held liable solely
because it employs a tortfeasor – or, in other words . . . cannot be held liable under
§ 1983 on a respondeat superior theory.”4 Id. (quoting Monell, 436 U.S. at 691). “[T]o
4

The third amended complaint states that “[p]laintiffs intend to argue that the
10th Circuit case Smedley v. Corr. Corp. of Am., 2005 WL 3475806 (10th Cir. 2005)
(unpublished), was wrongly decided and that respondeat superior should apply to
private entities.” Docket No. 109 at 40 n.2. Plaintif fs acknowledge that current
7

hold the entity liable, the plaintiff must identify an official policy or a custom that is the
‘direct cause’ or ‘moving force’ behind the constitutional violations.” Aguilar v. Colorado
State Penitentiary, 656 F. App’x 400, 403 (10th Cir. 2016) (unpublished) (quoting
Dubbs, 336 F.3d at 1215). The plaintiff must show that “the policy was enacted or
maintained with deliberate indifference to an almost inevitable constitutional injury.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013).
“The deliberate indifference standard may be satisfied when the [entity] has actual or
constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk
of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (citation om itted).
A municipal policy or custom can take the form of “(1) a formal regulation or
policy statement; (2) an informal custom amoun[ting] to a widespread practice that,
although not authorized by written law or express municipal policy, is so permanent and
well settled as to constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such final
policymakers of the decisions – and the basis for them – of subordinates to whom
authority was delegated subject to these policymakers’ review and approval; or (5) the
failure to adequately train or supervise employees, so long as that failure results from

precedent “weighs against a claim based on respondeat superior liability” and do not
rely on such a theory to survive the motion to dismiss. Docket No. 122 at 9 n.4. To the
extent plaintiffs did rely on such a theory, dismissal would be appropriate in light of
Smedley, 175 F. App’x at 946 (“The Tenth Circuit, along with many of our sister circuits,
has rejected vicarious liability in a § 1983 case for private actors based upon Monell.”).
8

‘deliberate indifference’ to the injuries that may be caused.” Bryson v. City of Oklahoma
City, 627 F.3d 784, 788 (10th Cir. 2010) (citations om itted).
The Court applies the requirements of culpability and causation rigorously.
Cacioppo v. Town of Vail, Colo., 528 F. App’x 929, 931 (10th Cir. 2013) (unpublished)
(“[W]here a court fails to adhere to rigorous requirements of culpability and causation,
municipal liability collapses into respondeat superior liability.”) (quoting Bd. of Cty.
Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 415 (1997)). “The causation element is
applied with especial rigor when the municipal policy or practices is itself not
unconstitutional, for example, when the municipal liability claim is based upon
inadequate training, supervision, and deficiencies in hiring.” Schneider, 717 F.3d
at 770.
The third amended complaint makes allegations under several Bryson
categories. Plaintiffs allege that the CCS defendants maintained “unconstitutional
policies, customs, and/or practices regarding opiate withdrawal and provision of
constitutionally adequate medical care.” Docket No. 109 at 41, ¶ 217. Further,
plaintiffs allege that the defendants “failed to properly train and supervise their
employees to provide necessary medical care to detainees at the JCDF.” Id., ¶ 218.
Additionally, plaintiffs allege that the CCS defendants “ratified the constitutional
violation by the individual Defendants by failing to administer any discipline.” Id. at 38,
¶ 198.
A plaintiff cannot rely on a hybrid theory of entity liability, alleging elements of
multiple Bryson categories, but failing to fully develop any. See Cacioppo, 528 F. App’x

9

at 934 (“The potential breadth of the hybrid theory that [plaintiff] advances – which
would elide the substantive weaknesses of proof of any particular theory of municipal
liability just so long as all three theories in the aggregate revealed a constitutional
violation by the municipality – would be at odds with the Court’s conservative, restrictive
approach regarding the individual theories of liability.”) Instead, to proceed on any of
the three aforementioned theories, plaintiffs must sufficiently allege each element of the
relevant theory.
A. Unconstitutional Custom, Policy, or Practice
The third amended complaint states that the “unconstitutional policies, custom s,
and/or practices regarding opiate withdrawal and provision of constitutionally adequate
medical care . . . were the moving and proximate cause of Ms. Lobato’s injuries and
death.” Docket No. 109 at 41, ¶ 217. Plaintif fs allege several policies in the third
amended complaint: the opiate withdrawal policy, id. at 31, ¶ 166; the “company policy
of refusing to send inmates with emergency medical needs to the hospital,” id. at 38,
¶ 197; a policy of “using nurses to provide provider level diagnoses and evaluation,
including to rule out serious medical conditions,” id., at 31, ¶ 168; the training of medical
staff to adopt a “wait and see approach, without meaningful or appropriate evaluation,”
id. at 31, ¶ 164; and the “policy, practice, and widespread custom of knowingly
disregarding the risk of even serious medical needs of inmates by jail nurses.”5 Id. at
31, ¶ 167.
5

The third amended complaint states one additional alleged policy: that the CCS
defendants had a policy or practice of knowingly disregarding medical needs. Docket
No. 109 at 41, ¶ 217. This conclusory statement does not describe a formal CCS policy
and, therefore, does not state a claim.
10

As to the CCS defendants’ opiate withdrawal policy, the third amended complaint
fails to allege facts suggesting that this policy was a cause of Ms. Lobato’s death.
Instead, plaintiffs state that defendant CCS’s policy required “initiation of the opiate
withdrawal protocol . . . if an inmate affirmatively confirms drug usage or exhibits any
signs of withdrawal,” Docket No. 109 at 14, ¶ 80, and that the “withdrawal protocol was
ignored by EMT Romero and EMT Muscutt.” Id. at 14-15, ¶ 82. Similarly, after learning
that Ms. Lobato was withdrawing from methadone, Nurse Whinnery allegedly failed to
“follow the established protocol.” Id. at 27, ¶ 142. Plaintiffs’ allegations do not support
an inference that the opiate withdrawal policy caused Ms. Lobato’s death. The third
amended complaint does not allege that the CCS defendants’ opiate withdrawal policy
was deficient. Instead, the third amended complaint alleges that, if the CCS employees
had followed the established protocol, Ms. Lobato’s death could hav e been prevented.
Id. at 11, ¶¶ 52-53; 14, ¶ 80; 27, ¶ 142; 30, ¶ 156.
Similarly, the CCS defendants’ policy of refusing to send inmates to off-site
hospitals cannot be said to have caused Ms. Lobato’s death. Plaintiffs’ medical expert
indicates that Ms. Lobato’s death was preventable “by simple medical care and
treatments,” id. at 30, ¶ 156, which does not plausibly suggest that her death could only
have been prevented by off-site treatment. Moreover, the CCS defendants’ policy of
using nurses to diagnose inmates has no causal link to Ms. Lobato’s death since
plaintiffs allege that no nurse, or other CCS employee, ever examined, diagnosed, or
treated Ms. Lobato. See id. at 17, ¶ 95; 20-21, ¶¶108, 112; 27-28, ¶¶ 142-43.

11

The third amended complaint also states that the CCS defendants adopted a
“wait and see” approach to medical treatment. Id. at 31, ¶ 164. Plaintiffs’ factual
allegations, however, do not suggest that this policy was a plausible cause of Ms.
Lobato’s death. The facts do not suggest that the CCS nurses declined to provide Ms.
Lobato with medical care until her symptoms were sufficiently severe. Instead, the
nurses scheduled Ms. Lobato to receive treatment in the ordinary course of their rounds
and did not examine Ms. Lobato, inquire about her condition, or otherwise investigate
whether she required emergency treatment. See, id. at 27, ¶ 142. The third amended
complaint does not make factual allegations that make it plausible that the nursing staff
delayed Ms. Lobato’s treatment until she got worse.
In their response to the motion to dismiss, plaintiffs argue that the “wait and see”
approach allegedly adopted by the CCS defendants is financially motivated. Docket
No. 122 at 9. The fact that Ms. Lobato was scheduled for treatment and the averment
that the opiate withdrawal protocol was mandatory belies the plausibility of plaintiffs’
allegation that the CCS defendants were avoiding financial costs by failing to treat Ms.
Lobato. Docket No. 122 at 9. The third amended complaint does not allege facts
related to either the existence of a financially motivated “wait and see” policy or facts
suggesting that this policy caused Ms. Lobato’s death.
Plaintiffs also argue in their response that,
[t]he alleged actions of the individual defendants employed by CCS/CHC
singlehandedly state a claim against the CCS Defendants because these
four individuals had an extended opportunity to do better but consistently
responded in a constitutionally deficient manner to Ms. Lobato’s serious
and obvious medical needs. The individual Defendants’ pattern of
unconstitutional conduct therefore shows that the CCS Defendants’
customs and practices are illegal as well.
12

Docket No. 122 at 7. As factual support for this theory, plaintiffs cite various
paragraphs of the third amended complaint which they claim show that the CCS
defendants were “driven by CCS/CHC’s challenged training and customs.” Id. at 8.
This theory attempts to lay out the requirements for “single incident” Monell liability
because it draws only on the events surrounding the death of Ms. Lobato, not the
formal policies or customs maintained by the CCS defendants. Later in their response,
plaintiffs explicitly discuss single-incident liability, stating
[t]he individual private Defendants’ sustained and willful failure to even
properly assess Ms. Lobato’s increasingly severe medical condition . . .
shows CCS/CHC’s deliberate indifference because the injuries Ms.
Lobato ultimately suffered were a “plainly obvious consequence” of its
inadequate training and supervision.
Id. at 13.
The single incident described in the third amended complaint does not create a
plausible inference that the CCS defendants maintained an unconstitutional policy,
practice, or custom. A single incident can evince a policy, practice, or custom where
the “particular illegal course of action was taken pursuant to a decision made by a
person with authority to make policy decisions on behalf of the entity being sued.”
Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009) (citing Jenkins v. Wood, 81 F.3d
988, 994 (10th Cir. 1996)). There is no allegation in the third amended complaint that
the CCS employees acted pursuant to a policymaker’s decision. Accordingly, plaintiffs
cannot rely on the conduct of the CCS employees surrounding this single incident to
demonstrate a policy, custom, or practice. Id.

13

In limited circumstances, a single incident may provide evidence of a failure to
train employees. In City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), the Supreme
Court stated that, because “city policymakers know to a moral certainty that their police
officers will be required to arrest fleeing felons . . . the need to train officers in the
constitutional limitations on the use of deadly force . . . can be said to be ‘so obvious,’
that failure to do so could properly be characterized as ‘deliberate indifference’ to
constitutional rights.” Id. at 390 n.10. The Supreme Court therefore carved out the
possibility, “however rare, that the unconstitutional consequences of failing to train
could be so patently obvious that a city could be liable under § 1983 without proof of a
pre-existing pattern of violations.” Connick v. Thompson, 563 U.S. 51, 64 (2011)
(discussing Harris).
The Supreme Court, however, has stated that a single constitutional violation
does not evidence a lack of training unless the violation of constitutional rights is a
“highly predictable consequence” of the decision not to provide training. Id. In Connick,
the Court explained that the Harris hypothetical is grounded in the fact that “[t]here is no
reason to assume that police academy applicants are familiar with the constitutional
constraints on the use of deadly force . . . [and] there is no way for novice officers to
obtain the legal knowledge they require.” Id. Accordingly, a single constitutional
violation provides evidence of a failure to train only where there is reason to anticipate
that a subset of municipal employees lacks specific training and that lack of training
makes a constitutional violation highly predictable.

14

Plaintiffs note that substance withdrawal and medical emergencies are common
medical issues in the jail setting. Docket No. 122 at 13. Nevertheless, the third
amended complaint does not allege a plausible basis for the CCS defendants to
anticipate that their medical staff would not be trained to respond appropriately to opiate
withdrawal or to disregard the written policy on the matter. Moreover, Ms. Lobato’s
medical needs were “simple,” Docket No. 109 at 30, ¶ 156; thus, any failure to
appropriately treat Ms. Lobato cannot be described as a “highly predictable
consequence” of a gap in the medical staff’s training. Connick, 563 U.S. at 64. In the
“absence of specific reason, such as a pattern of violations,” the CCS defendants had
no reason to believe that death from opiate withdrawal was a highly predictable
consequence of a failure to train. Id. at 67.
None of the policies identified by plaintiffs states a claim for Monell liability and
the circumstances of this case do not fit within the narrow exceptions for single-incident
liability described in Moss and Harris.
B. Failure to Train
As the Tenth Circuit noted in Bryson, a policy or custom can take the form of “the
failure to adequately train . . . , so long as that failure results from ‘deliberate
indifference’ to the injuries that may be caused.” 627 F.3d at 788. “A municipality's
culpability for a deprivation of rights is at its most tenuous where a claim turns on a
failure to train.” Connick, 563 U.S. at 61. To proceed on a failure-to-train theory,
plaintiff must prove “the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the

15

policymakers of the city can reasonably be said to have been deliberately indifferent to
the need.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quoting Harris, 489
U.S. at 390). Only where the failure to train amounts to “deliberate indifference” can a
shortcoming in training “be properly thought of as a city ‘policy or custom.’” Connick,
563 U.S. at 61. Notice of particular deficiencies in a training program is the crux of a
failure-to-train theory because “[w]ithout notice that a course of training is deficient in a
particular respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.” Id. at 61.
In addition, there must be a causal link between the failure to train and the
alleged constitutional deprivation. Harris, 489 U.S. at 385. The causation inquiry
focuses on whether “the injury [could] have been avoided had the employee been
trained under a program that was not deficient in the identified respect.” Thomas v.
Cumberland Cty., 749 F.3d 217, 226 (3d Cir. 2014) (quoting Harris, 489 U.S. at 391)).
The second claim alleges that the CCS defendants failed to train their
employees to “provide necessary medical care to detainees.” Docket No. 109 at 41,
¶ 218. Plaintiffs describe a number of lawsuits where inmates died as a result of the
CCS defendants’ employees failing to recognize serious medical needs. Id. at 32-36,
¶¶ 175-186. The cases describe a range of facts including failing to respond to multiday complaints of chest pain where an inmate had a history of cardiovascular problems,
ignoring lab results showing that an inmate’s kidneys had stopped functioning, denying
prescribed medication to inmates with emergent medical problems, and ignoring an
inmate who went into labor in her cell. Id. Plaintiffs also describe reviews of CCS

16

facilities conducted by the Department of Justice, the National Commission on
Correctional Health Care, U.S. Immigration and Customs Enforcement, and the U.S.
Department of Homeland Security’s Office of Civil Rights and Civil Liberties. Id.
at 36-37, ¶¶ 189-194. Each of those studies identified deficiencies in the training of
medical staff. Id. The CCS defendants argue that these reports and cases do not
demonstrate deliberate indifference because they do not show that the CCS
defendants had notice that the CCS defendants’ employees were inadequately trained
with respect to opiate withdrawal. Docket No. 117 at 9-10.
As an initial matter, only one of the lawsuits described by plaintiffs, McGill v.
Correctional Healthcare Companies, Inc., et al., Case No. 13-cv-01080-RBJ-BNB (D.
Colo.), resulted in a jury verdict. Docket No. 109 at 32-33, ¶¶ 175-78. T he third
amended complaint does not state whether the other lawsuits resulted in liability to
defendants, but rather states that the plaintiffs “alleged” CCS or CHC maintained
unconstitutional policies. See id. at 33-36, ¶¶ 180-186. Unsubstantiated allegations
from complaints filed against the CCS defendants, without more, do not put the CCS
defendants on notice that the training of their nursing staff is deficient regarding opiate
withdrawal. See Rowley v. Morant, 2014 WL 11430980, at *2 (D.N.M. July 14, 2014)
(“[T]he mere fact that a lawsuit was filed without any mention of the disposition of the
lawsuit or whether the City was found to have violated any rights does not establish a
pattern and practice.”); see also Morris v. City of N.Y., 2013 WL 5781672, at *11
(E.D.N.Y. Oct. 28, 2013) (“The fact that two of the defendants as well as a
non-defendant supervising officer have had civil suits brought against them in the past

17

that resulted in settlements is not even evidence of wrongdoing, let alone that the City
has a custom or policy that fosters or results in wrongdoing.”).
Accordingly, the McGill lawsuit provides the only relevant grounds for notice to
the CCS defendants of their failure to train their employees. To state a claim, plaintiffs
must plausibly allege that McGill put the CCS defendants on notice that its employees
were likely to fail to respond adequately to opiate withdrawal. In McGill, the jury found
that CHC had unconstitutional policies or informal practices that resulted in nurses
failing to refer inmates with “subjective complaints of a serious medical condition” to
doctors or to send those inmates to the hospital “until the nurse was satisfied that there
was objective evidence that the inmate was probably suffering from the condition.”
Docket No. 109 at 33, ¶ 176. The third amended complaint states that “[t]he jury also
found that CHC had constitutionally deficient training and supervision of nurses.” Id.,
¶ 177. The third amended complaint does not describe any specific findings in McGill
regarding the deficiency of such training. Therefore, the allegations of the third
amended complaint regarding the McGill jury verdict do not plausibly allege that the
CCS defendants had notice of and were deliberately indifferent to the training defects
that allegedly caused Ms. Lobato’s death.
Assuming arguendo that the other lawsuits identified by plaintiffs could provide
the requisite notice to the CCS defendants, none of the cases identifies a training
defect relevant to the manner in which Ms. Lobato was treated. Each of the lawsuits
shows that nursing staff saw the patient and ignored emergent symptoms. See, e.g.,
Docket No. 109 at 33, ¶ 176 (“even if the nurse suspected that the inmate might be

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suffering from a condition requiring urgent review by a doctor, the nurse would not call
the on-call doctor or call 911”); 34-35, ¶ 182 (“medical staff of a CCS-related company
ignored lab results”); 35, ¶ 183 (“The nurse who evaluated [the inmate] simply gave [the
inmate] Tylenol and advised him that he would have to wait to see the physician”). Ms.
Lobato was not evaluated by nursing staff and there is no indication in the third
amended complaint that the nursing staff was made aware of her symptoms. See
Docket No. 109 at 27, ¶ 142 (noting that Nurse Whinnery failed to ask follow-up
questions about Ms. Lobato’s condition or follow the opiate withdrawal protocol). While
Ms. Lobato was seen by CCS employed EMTs, based on plaintiffs’ allegations, Ms.
Lobato misrepresented her condition during intake, Docket No. 109 at 14, ¶ 79, and
none of the cases referenced by plaintiffs refers to either the intake process or EMT
staff. The situations described by plaintiffs do not sufficiently align with the
circumstances surrounding Ms. Lobato’s death. See Coffey v. United States, 2011 WL
6013611, at *33 (D.N.M. Nov. 28, 2011) (noting that “the incidents [supporting a failureto-train claim] must also be sufficiently similar to put officials on notice of the situation.”)
While the investigative reports identified by plaintiff discuss failures “in getting
emergency medical care to detainees,” see, e.g., Docket No. 109 at 36, ¶ 190, the
cases and studies identified by plaintiffs do not describe failures to treat opiate
withdrawal or a general failure by nursing staff to examine patients upon intake. Id. at
36-38, ¶¶ 188-197. The third amended complaint alleges that, had the CCS employees
followed the opiate withdrawal protocol, Ms. Lobato would have been treated. Docket
No. 109 at 27, ¶ 142 (“Nurse W hinnery did not ask any follow up questions,
immediately have someone from medical sent to see Ms. Lobato, or otherwise follow
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the established protocol.”). The lawsuits and studies cited by plaintiffs do not show that
the CCS defendants were on notice that its nursing staff would fail to follow the opiate
withdrawal protocol and, in the absence of such allegations, “decisionmakers can hardly
be said to have deliberately chosen a training program that will cause violations of
constitutional rights.” Connick, 563 U.S. at 62.
C. Ratification
Defendants argue that plaintiffs cannot state a § 1983 claim against them based
on ratification because plaintiffs do not identify a policymaker who ratified the CCS
defendants’ employees’ conduct. Docket No. 117 at 14. Rather than respond to that
argument, plaintiffs state that “the involved CCS/CHC personnel . . . were not
terminated or even disciplined . . . [t]he CCS Defendants instead affirmatively chose to
take no remedial action whatsoever and give their imprimatur to the individual
Defendants’ conduct.” Docket No. 122 at 15. Failure to discipline in a specific instance
is not an adequate basis for municipal liability under Monell. Butler v. City of Norman,
992 F.2d 1053, 1056 (10th Cir. 1993) (citing Santiago v. Fenton, 891 F.2d 373, 382 (1st
Cir.1989)); see also Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir.
2009); Garcia v. City of Imperial, 2010 WL 3911457, at *2 (S.D. Cal. Oct. 4, 2010) (“[I]n
order for there to be ratification, there must be ‘something more’ than a single failure to
discipline or the fact that a policymaker concluded that the defendant officer’s actions
were in keeping with the applicable policies and procedures.”) (citing Kanae v. Hodson,
294 F. Supp. 2d 1179, 1191 (D. Hawaii 2003)). While some after-the-fact conduct
could theoretically provide evidence of a policy, Cordova v. Aragon, 569 F.3d 1183,

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1194 (10th Cir. 2009) (hypothesizing that a cover-up could provide evidence that the
city encouraged contrary behavior), the mere failure to discipline does not demonstrate
that a CCS policymaker caused Ms. Lobato’s death. “[B]asic principals of linear time
prevent us from seeing how conduct that occurs after the alleged violation could have
somehow caused that violation.” Id.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants CCS and CHC’s Partial Motion to Dismiss the
Second Claim of Plaintiffs’ Third Amended Complaint [Docket No. 117] is granted. It is
further
ORDERED that plaintiffs’ second claim for relief is dismissed as to defendants
Correct Care Solutions, LLC and Correctional Healthcare Companies, Inc.

DATED March 30, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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