Mwangi v. Norman et al

Filing 79

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).

Trujillo v. City and County of Denver, Slip Copy (2016)
2016 WL 5791208

2016 WL 5791208
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Rebecca Trujillo, Plaintiff,
v.
City and County of Denver, Colorado, Denver
Health and Hospital Authority, d/b/a Denver
Health Medical Center; Deputy [First Name
Unknown ] Allen, Denver Sheriff Department,
in his individual and official capacities; Deputy
[First Name Unknown] Rodriguez, Denver
Sheriff Department, in his or her individual and
official capacities; Anthony Perez, RN, in his
individual and official capacities; Victoria Toliver,
RN, in her individual and official capacities;
Dana Wimberly, RN, in her individual and
official capacities; Jennifer Firebaugh, RN, in
her individual and official capacities; Brenda
Sue Hagman, LPN, in her individual and official
capacities; Paul Michael Umbriaco, RN, in his
individual and official capacities; Marvin Korell,
RN, in his individual and official capacities;
Pauline Marie McGann, MD, in his individual and
official capacities; Donna Marie Blatt, RN, in her
individual and official capacities; and John and
Jane Does 1 Through 20, Denver City and County
Sheriff's Deputies and Medical Personnel, in their
official and individual capacities, Defendants.
Civil Action No 14-cv-02798-RBJ-MEH
|
Signed 09/07/2016
Attorneys and Law Firms
Diego G. Hunt, Jessica Jodene Smith, Kathleen Kramer
Custer, Holland & Hart, LLP, Denver, CO, James Lee
Gray, Holland & Hart, LLP, Greenwood Village, CO, for
Plaintiff.
Conor Daniel Farley, Cristina Pena Helm, Denver, CO,
Patrick Andrew Singer, Nixon Shefrin Hensen Ogburn,
P.C., Greenwood Village, CO, for Defendants.

ORDER
R. Brooke Jackson, United States District Judge
*1 This matter is before the Court on two motions to
dismiss [ECF Nos. 114, 123]; plaintiff's motion to strike
a reply brief, or in the alternative, to file a surreply [ECF
No. 150]; and the recommendations of Magistrate Judge
Michael Hegarty regarding all three motions [ECF Nos.
143, 167, 168]. The recommendations are incorporated
herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R.
Civ. P. 72(b). Judge Hegarty recommended that the Court
grant both motions to dismiss, deny the motion to strike,
but permit plaintiff leave to file a surreply. ECF Nos. 143,
167, 168. Following its review, the Court adopts in part
and rejects in part the recommendations.

FACTS
The allegations of facts were minimally summarized in
the original Complaint but were set forth in detail in the
First Amended Complaint, ECF No. 99. In May 2012
Ms. Trujillo was incarcerated in the Denver Jail (the jail).
Id. at ¶ 36. On July 4, 2012, while working as a member
of the cleaning staff, Ms. Trujillo was operating a large,
rotating floor buffer. Id. at ¶ 38. The cord of the buffer
got stuck under the machine, which twisted Ms. Trujillo's
body, injuring her spine and causing her to fall. Id. at ¶ 39.
Ms. Trujillo had received minimal training on how to use
the buffer. Id. at ¶ 37. Her injury happened in front of a
number of on-duty deputies. Id. at ¶ 39. She alleges that
none of the deputies offered to help her. Id.
Ms. Trujillo immediately began to exhibit signs of a
serious spinal injury, including chronic pain, loss of
control of bowel movements, slowed speech, altered gait,
and reduced ability to use her hands and legs. Id. at ¶ 40.
She alleges that she sought help multiple times from the jail
infirmary, sent several kites requesting medical treatment,
and filed formal grievances for the jail's failure to provide
treatment. Id. However, no one responded to her requests
for help. Id.
The following timeline describes Ms. Trujillo's allegations
concerning her attempts to receive medical treatment from

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the time of her injury until her release from jail in May
2013:
• July 6, 2012: Ms. Trujillo visited the jail infirmary.
The nurse on duty was defendant Jennifer Firebaugh.
Nurse Firebaugh noted that Ms. Trujillo had an
altered gait and difficulty walking. Nurse Firebaugh
had also been notified by jail officials of these
same impairments. She did not evaluate Ms. Trujillo
for an injury, but rather noted that Ms. Trujillo
had a history of rheumatoid arthritis (RA). Nurse
Firebaugh provided Ms. Trujillo with a walker.
On or about the same day, defendant Nurse Paul
Michael Umbriaco also evaluated Ms. Trujillo,
noting that she needed help with “activities of
daily living” (ADLs), could not walk or use the
restroom, and was talking slowly. Nurse Umbriaco
recommended that a doctor evaluate Ms. Trujillo the
next day, but he did not follow up to confirm that
Ms. Trujillo did receive a medical evaluation. Id. at
¶¶ 41, 42.
• On or about July 9, 2012: Defendant Brenda Hagman,
a nurse practitioner (NP), saw Ms. Trujillo in the
infirmary and noted that she had fallen “earlier,” had
been seen for previous falls, had an unsteady gait,
and had a history of RA. NP Hagman recorded that
Ms. Trujillo would be housed in the infirmary, but
did not ensure that Ms. Trujillo received any further
evaluation. Id. at ¶ 43.
*2 • July 11, 2012: Jail deputies notified defendant
Nurse Marvin Korell that Ms. Trujillo was struggling
with ADLs, was covered in feces, and was unable
to clean herself. The deputies also reported that Ms.
Trujillo was unsteady even with a walker and was
at a risk of falling. Nurse Korell noted that the jail
should decide whether Ms. Trujillo should continue
being housed at the jail or whether she should be
transferred to the department of corrections. Nurse
Korell did not assess Ms. Trujillo for a spinal injury
or take further action. Id. at ¶ 44.
• July 17, 2012: NP Hagman saw Ms. Trujillo again and
noted that she was in chronic pain and remained at
a risk to fall. NP Hagman recommended that Ms.
Trujillo be transferred to rheumatology but did not
evaluate her for a spinal injury or provide her with
any treatment other than “minimal pain medication
akin to Advil.” Id. at ¶ 45.

• July 23, 2012: Defendant Dr. Paulene McGann
evaluated Ms. Trujillo. Plaintiff explained that she
had fallen recently, was in chronic pain, and was
experiencing tingling in her arm from her shoulder
to her hand. Dr. McGann noted the possibility of an
impinged nerve and recommended that plaintiff be
evaluated for RA. Dr. McGann did not evaluate Ms.
Trujillo for a spinal injury and did not perform any
follow-up examination. Id. at ¶ 46.
• July 25, 2012: Ms. Trujillo told Nurse Korell that
she thought she was having a stroke because she was
experiencing weakness, tingling in her extremities,
and an unsteady gait. Nurse Korell concluded that
Ms. Trujillo's new medication caused the symptoms
but did not perform any additional evaluation. Nurse
Korell recommended continued monitoring. Id. at ¶
47.
• That same day (July 25): NP Kina Mosley answered
the medical call line in the jail. Officer Jones told NP
Mosley that Ms. Trujillo had fallen a few times and
was unstable even with the assistance of a walker. NP
Mosley recommended a wheelchair for Ms. Trujillo
but did not provide plaintiff with any medical care.
Id. at ¶ 48.
• July 26, 2012: Nurse Jacqueline Annette Christman
noted that Sergeant Marshal Gutierrez and other
staff requested a transfer for Ms. Trujillo to the
Denver Department of Corrections Infirmary. Nurse
Christman did not recommend any treatment or
testing. Id. at ¶ 49.
• July 27, 2012: Ms. Trujillo went back to the
infirmary and reported that she was having trouble
walking, and that she had less strength and more
weakness. Nurse Umbriaco encouraged Ms. Trujillo
to ambulate with assistance and recommended daily
supervision, but he did not order or offer any other
medical care. Id. at ¶ 50.
• July 28 and 29, 2012: On two consecutive days Ms.
Trujillo fell when transferring from her wheelchair.
The first happened when she was trying to get
from the toilet back to her wheelchair, and the
second time she was found on the floor by her bed.
Defendant Nurse Anthony Perez recommended that
Ms. Trujillo use the “call light” to request assistance
when transferring. Id. at ¶ 51.

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• July 31, 2012: Dr. McGann saw Ms. Trujillo again
and noted that she was complaining of weakness
and tingling all over her body and that plaintiff's
legs would occasionally lock up and give out. Dr.
McGann suggested an x-ray of Ms. Trujillo's hands
to evaluate her RA but did not examine her for a
spinal injury or take any other action. Id. at ¶ 52.
• On or about August 1, 2012: Defendant Nurse
Donna Blatt noted that Ms. Trujillo made numerous
but “vague” complaints of weakness and tingling.
Nurse Blatt also indicated that plaintiff's charts
reflected recent slips but no falls. Nurse Blatt noted
that she thought Ms. Trujillo was malingering.
She recommended further evaluation but did not
recommend any other treatment. Id. at ¶ 53.
*3 • August 5, 2012: Nurse Perez noted that plaintiff
had “chronic charting,” but he did not recommend
any other treatment or care. Id. at ¶ 54.
• August 10, 2012: Dr. Dennis Boyle examined Ms.
Trujillo at Denver Health Medical Center. The
purpose of the assessment, according to the jail's
referral, was to evaluate Ms. Trujillo for RA. Dr.
Boyle noted that plaintiff complained of weakness,
numbness, and tingling that had persisted for weeks,
especially on her left side, which she indicated
felt “dead” to her. Dr. Boyle's notes indicate
less-severe symptoms on Ms. Trujillo's right side,
and that plaintiff needed to use a walker. Dr.
Boyle's examination revealed a moderate left-sided
hemiparesis (paralysis affecting one side of the body),
as well as abnormalities on plaintiff's right side.
Dr. Boyle concluded that Ms. Trujillo likely had a
significant neurologic illness. He did not detect any
evidence of RA. Dr. Boyle recommended an urgent
neurologic evaluation for a CT scan, MRI, and
neurologic consult. He also recommended against
any continued treatment or assessment for RA. Dr.
Boyle called the jail regarding Ms. Trujillo's status,
and the jail told him officials would return his call.
The jail never called Dr. Boyle, and Dr. Boyle never
followed up regarding Ms. Trujillo's treatment. Id. at
¶¶ 55–60.
• August 10, 2012: Ms. Trujillo returned to the jail
following her visit to Dr. Boyle. Despite defendant
Nurse Victoria Toliver's note that Ms. Trujillo was to
receive an urgent neurologic follow-up, Ms. Trujillo

did not undergo a neurologic evaluation. Nurse
Toliver did not take any action to ensure that Ms.
Trujillo received the follow-up. Id. at ¶ 61.
• August 13, 2012: Nurse Umbriaco noted that Ms.
Trujillo needed to be referred to neurology but no
referral was made. Id.
• August 10–September 12, 2012: Nurse Perez updated
Ms. Trujillo's chart each week during this period,
noting that there was “chronic charting,” plaintiff
had bilateral knee and ankle pain from RA, and that
she was a fall risk. No care or treatment was recorded,
and Nurse Perez did not take any action regarding
Dr. Boyle's finding of neurologic illness. Id. at ¶ 62.
• September 12, 2012: Ms. Trujillo returned to Denver
Health Medical Center where Dr. Richard Hughes
examined her. He made similar findings to those
of Dr. Boyle, noting that Ms. Trujillo's symptoms
indicated a stroke. He ordered an urgent MRI to
determine whether Ms. Trujillo had multiple sclerosis
or whether she had had a stroke. Ms. Trujillo
returned to jail that day where defendant Nurse Dana
Wimberly noted that plaintiff needed an urgent MRI.
However, neither Nurse Wimberly nor Dr. Hughes
followed up to see if Ms. Trujillo received the MRI.
Id. at ¶¶ 63, 64.
• October 10, 2012: Ms. Trujillo had an MRI at the
hospital. The results showed a significant spinal
injury. Upon Ms. Trujillo's return to jail that same
day, Nurse Wimberly did not outline a treatment plan
for Ms. Trujillo. Id. at ¶¶ 65, 66.
• October 10, 2012–January 13, 2013: Ms. Trujillo
received only minimal pain medication for her spinal
injury and did not receive any other treatment. Id. at
¶ 67.
*4 • On or about January 13, 2013: Ms. Trujillo
filed a request for medical assistance, stating
that she had pain in her legs and hands. She
requested a follow-up with Dr. Hughes. Dr. John
Gehred spoke with plaintiff and suggested that her
prescription medications were causing her symptoms.
He recommended Ms. Trujillo continue taking
her medication. Dr. Gehred disregarded the other
doctors' findings and the MRI results. He has
since been disciplined and voluntarily surrendered
his medical license. After Ms. Trujillo's request

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for assistance, Nurse Perez continued to chart Ms.
Trujillo's condition, noting only “chronic” charting
and a risk of falling. Nurse Perez did not provide any
medical treatment despite being aware of the MRI
results showing a severe spinal injury. Id. at ¶¶ 68, 69.
• February 13, 2013: Dr. Edward Maa at Denver
Health Medical Center assessed Ms. Trujillo. Dr.
Maa noted that, after the July 2012 accident,
Ms. Trujillo had pain in both hands and feet
with numbness and pins and needles; a sensation
of “electrical shock” whenever she moved that
worsened with activity; incontinence; a very slow
gait with a need for a walker; dizziness when
standing up; and falling almost daily because of
imbalance. Dr. Maa reviewed the MRI and noted
spinal stenosis at C5-6, C6-7 and T2 signal at
C4-5 and C6-7, which he attributed to edema. He
found the MRI to be consistent with a history of
trauma in addition to chronic stenosis. Dr. Maa
recommended that the jail schedule a neurosurgical
evaluation. That same day, Nurse Umbriaco ignored
the recommendation and indicated that plaintiff
did not need a follow-up appointment. During the
remainder of her incarceration, Ms. Trujillo never
saw a neurosurgeon, and the records do not indicate
any ongoing treatment other than minimal pain
medication. Id. at ¶¶ 70, 71.
• May 16, 2013: Immediately after Ms. Trujillo's
release from jail, she returned to the Denver
Health Medical Center. Dr. Vanderheiden and
Dr. Fleisher diagnosed plaintiff with: (1) Cervical
myelopathy (pathology of the spinal cord); (2) C5-6-7
spondylosis (spinal degeneration) and degenerative
disk changes; (3) C3-4 Klippel-Feil failure of
segmentation (abnormal joining or fusion of two
or more spinal bones in the neck); (4) C4-5
spondylolisthesis (one bone in the back slides forward
over the bone below); (5) Multilevel cervical spinal
cord injury; and (6) Multilevel cervical stenosis. The
doctors recommended that Ms. Trujillo be admitted
to the hospital immediately for emergency surgery.
They were worried that Ms. Trujillo's condition had
deteriorated since the MRI, and that her balance
issues could cause her to fall, further injuring her
spinal cord. Id. at ¶ 72.
• On or about May 21 or May 22, 2013: Ms. Trujillo
underwent surgery. She continues to rely on a walker

or cane. Her gait remains weak, and she still has
considerable pain. Id. at ¶¶ 73, 74.
Based on the foregoing allegations Ms. Trujillo brings
two claims for relief pursuant to 42 U.S.C. § 1983: (1)
deliberate indifference to serious medical needs against all
defendants in violation of the Eighth Amendment, and
(2) municipal liability for failure to train and supervise
against Denver and Denver Health. Id. at ¶¶80-100. 1 Ms.
Trujillo seeks declaratory relief; economic, compensatory,
and punitive damages; costs; and attorney's fees. Id. at 23–
24.

CASE HISTORY
Ms. Trujillo, represented by counsel, filed her original
Complaint pursuant to 42 U.S.C. § 1983 on October
10, 2014. ECF No. 1. She alleged that she had
been injured while she was an inmate in the Denver
Jail, but that the defendants had been deliberately
indifferent to her medical needs in violation of the Eighth
Amendment. Plaintiff named the City and County of
Denver (sometimes referred to herein simply as “the City”)
and six individuals (two deputies and four nurses) as
defendants. Id.
*5 In 2015 a number of issues arose regarding plaintiff's
counsel and the appointment of pro bono counsel. See
ECF No. 98. Among other things, for several months
after the Complaint was filed none of the defendants had
been served with the summons and complaint. Eventually
one individual defendant, Victoria Toliver, a nurse, was
served. Because the return of service was never filed,
the exact date of service is unknown to me. However,
I presume that it probably was in early March, 2015,
because she answered the Complaint on March 31, 2015.
ECF No. 17. The City and County of Denver presumably
was served in the same timeframe, because counsel entered
an appearance on the City's behalf on April 1, 2015. ECF
No. 18.
On April 10, 2015 plaintiff's counsel moved to withdraw,
claiming difficulty in contacting Ms. Trujillo and an
irreconcilable conflict. ECF No. 21. The motion was
granted by Magistrate Judge Hegarty, ECF No. 23,
although the circumstances of the withdrawal were the
subject of several subsequent orders. ECF Nos. 27, 28, 32,
43, 47. Meanwhile the City had filed a motion to dismiss,

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to which Ms. Trujillo's pro se response was essentially a
request that counsel be appointed to represent her. ECF
Nos. 20, 57.
On July 28, 2015 Judge Hegarty granted Ms. Trujillo's
motion for the appointment of counsel to the extent that
he directed the Clerk of Court to attempt to find a member
of the court's Civil Pro Bono Panel who would be willing
to represent Ms. Trujillo on a pro bono basis. See ECF
No. 63. On September 9, 2015 Diego G. Hunt of the law
firm of Holland & Hart LLP, having informed the Court
of his availability, was appointed. ECF No. 78. This Court
notes its gratitude to Mr. Hunt, who has since withdrawn
due to his appointment to the District Court for the First
Judicial District, and to his colleagues who have taken
over for him.
On October 14, 2015 Ms. Trujillo, through her new
counsel, filed a motion for leave to file the First Amended
Complaint. ECF No. 86. The motion was opposed by
Nurse Toliver, who still was the only individual defendant
to have been served. However, on November 6, 2015
I granted the motion to amend, which mooted Nurse
Toliver's motion to dismiss. ECF No. 98.
The First Amended Complaint, filed the same day, is now
the operative pleading. ECF No. 99. It added substantial
detail, as discussed above, and it named numerous
additional law enforcement and medical defendants. ECF
No. 99. On December 1, 2015 waivers of service were
signed by the original defendants other than Nurse Toliver
and by most of the newly named defendants. ECF No.
105. New defendant Marvin Korell was served by waiver
two days later. ECF No. 109. 2
Defendants Denver Health and Hospital Authority
(Denver Health), Jennifer Firebaugh, Brenda Sue
Hagman, Paul Michael Umbriaco, Marvin Korell,
Pauline Marie McGann, and Donna Marie Blatt
(collectively referred to by Judge Hegarty as the “Health
Care Defendants” and in this order as the “added
defendants”) filed the pending motion to dismiss on
January 5, 2016. ECF No. 114. The City and County of
Denver filed a separate motion to dismiss on January 29,
2016. ECF No. 123. On April 13, 2016 Ms. Trujillo filed
a motion to strike the City and County of Denver's reply
brief, or in the alternative, for leave to file a surreply. ECF
No. 150.

ANALYSIS
I. Standard of Review.
*6 Following the issuance of a magistrate judge's
recommendation on a dispositive matter, the district court
judge must “determine de novo any part of the magistrate
judge's disposition that has been properly objected to.”
Fed. R. Civ. P. 72(b)(3).
To survive a 12(b)(6) motion to dismiss, the complaint
must contain “enough facts to state a claim to relief that
is plausible on its face.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
While the Court must accept the well-pleaded allegations
of the complaint as true and construe them in the light
most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d
1208, 1210 (10th Cir. 2002), purely conclusory allegations
are not entitled to be presumed true. Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009). However, so long as the plaintiff
offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met
the threshold pleading standard. See, e.g., Twombly, 550
U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008). Importantly, “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery
is very remote and unlikely.” Twombly, 550 U.S. at 556
(internal quotation marks omitted); accord Robbins v.
Okla. ex. rel. Dep't of Human Servs., 519 F.3d 1242, 1247
(10th Cir. 2008). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff's
complaint alone is legally sufficient to state a claim for
which relief may be granted.” Sutton v. Utah State Sch.
for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(internal citation omitted).

II. Added Defendants' Motion to Dismiss.
On January 5, 2016 the added defendants filed a motion
to dismiss, arguing that plaintiff's claims against them
are time-barred, and that the “relation-back” provision
in Fed. R. Civ. P. 15 does not apply. ECF No. 114 at
12–16. On March 28, 2016 Judge Hegarty recommended
that this Court grant the motion to dismiss. ECF No.
143. The recommendation advised the parties that specific
written objections were due within fourteen (14) days after

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being served with a copy of the recommendation. Id. at 2
n.3. Plaintiff filed objections on April 14, 2016. ECF No.
152. The Court has reviewed all of the relevant pleadings
and Judge Hegarty's recommendation. After its de novo
review, the Court concludes that Judge Hegarty's analysis
is thorough and correct. Therefore, the Court adopts the
recommendation and grants the added defendants' motion
to dismiss.
“Although a statute of limitations bar is an affirmative
defense, it may be resolved on a Rule 12(b)(6) motion
to dismiss when the dates given in the complaint make
clear that the right sued upon has been extinguished.”
Torrez v. Eley, 378 Fed.Appx. 770, 772 (10th Cir. 2010)
(unpublished) (internal citation omitted). “Limitations
periods in § 1983 suits are to be determined by reference
to the appropriate state statute of limitations[.]” Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal
citation omitted). Pursuant to Colorado law, the statute
of limitations for § 1983 claims is two years “from the
time the cause of action accrued.” Id. (internal citation
omitted); see C.R.S. § 13–80–102. The cause of action
accrues when “the plaintiff knows or should have known
that his or her constitutional rights have been violated.”
Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d
1151, 1154 (10th Cir. 1998) (internal citation omitted).
*7 It is undisputed that plaintiff's cause of action accrued
no later than May 22, 2013 when she underwent surgery
at the Denver Health Medical Center. Accordingly, the
claims against the added defendants, filed on November
6, 2015, were untimely. Ms. Trujillo does not dispute
that the statute of limitations purports to bar her claims
against the added defendants. However, under certain
circumstances, even though the statute of limitations has
run, an amended pleading may relate back to the date of
the original complaint. Plaintiff argues that this relationback rule, and specifically Fed. R. Civ. P. § 15(c)(1)(C),
saves her claims against the added defendants. This Rule
permits the addition of new parties after the expiration of
the period of limitations if three requirements are met.
First, the amendment must address the same facts set out
in the original pleading. Fed. R. Civ. P. 15(c)(1)(C). There
is no dispute that this requirement is satisfied here.
Second, within the service period provided by Fed. R. Civ.
P. 4(m), the new parties must have “received such notice
of the action that [they] will not be prejudiced in defending

on the merits.” Fed. R. Civ. P. 15(c)(1)(C)(i). Judge
Hegarty did not address this second requirement because
he concluded that even if plaintiff could demonstrate
that the added defendants had sufficient notice of the
claims, she failed demonstrate that she could meet the
third requirement. ECF No. 143 at 14. 3 .
Third, plaintiff must show that defendants “knew or
should have known that the action would have been
brought against [them], but for a mistake concerning the
proper [parties'] identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii).
Judge Hegarty concluded that plaintiff failed to get by this
final hurdle. ECF No. 143 at 14–15. I agree.
“Rule 15(c)(1)(C)(ii) asks what the prospective defendant
knew or should have known during the Rule 4(m) period,
not what the plaintiff knew or should have known at the
time of filing her original complaint.” Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 548 (2010). 4 In applying
this test I emphasize that it has two component parts: (1)
the added defendants knew or should have known (2) that
they would have been named but for plaintiff's mistake
concerning the proper parties' identities.
*8 First, it is not at all clear that the added defendants
knew or should have known during the limitations period,
let alone during the Rule 4(m) service period, that Ms.
Trujillo had filed a lawsuit. The original Complaint was
filed on October 10, 2014, but only two of the original
defendants, Nurse Toliver and the City and County of
Denver, were served by the expiration of the limitations
period on May 22, 2015. The new defendants were added
more than five months later, on November 6, 2015, when
the First Amended Complaint was accepted for filing.
The added defendants (and the original defendants not
previously served) were served by waiver on December 1,
2015. Perhaps there was talk around the jail about the
suit, and some of the added defendants learned something
about it that way. But that is speculation. I am unaware
of anything in the record that shows that the added
defendants knew of the lawsuit by May 22, 2015.
But, second, even if one were to assume (as Judge Hegarty
essentially did) that the added defendants were aware of
the suit during the service and limitations periods, the
Court has no reason to find or assume that they knew or
should have known that they would have been included
but for a mistake by the plaintiff. To be sure, Krupski
described “mistake” broadly. It provided two scenarios

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that could constitute a misunderstanding about the proper
party's identity: (1) where “a plaintiff may know that
[party A] exists, while erroneously believing him to have
the status of party B;” and (2) where “a plaintiff may know
generally what party A does while misunderstanding the
roles that party A and party B played in the ‘conduct,
transaction, or occurrence’ giving rise to her claim.” 560
U.S. at 549. And it added that “[t]he reasonableness of
the mistake is not itself an issue.” Id. But the Court also
established an outer limit to what constitutes a mistake in
identity.
Specifically, the Court agreed with the defendant that
a plaintiff's “making a deliberate choice to sue one
party instead of another while fully understanding the
factual and legal differences between the two parties
is the antithesis of making a mistake concerning the
proper party's identity.” Id. Accordingly, Krupski has
been interpreted to provide that “[c]laims against any
newly added defendants will not ‘relate back’ to the date
of the original complaint where the plaintiff's failure to
name the prospective defendant was ‘the result of a fully
informed decision as opposed to a mistake concerning
the proper defendant's identity.’ ” Schoolcraft v. City
of New York, 81 F.Supp.3d 295, 301 (S.D.N.Y. 2015)
(quoting Krupski, 560 U.S. at 552). Ms. Trujillo asserts
several arguments as to why her claims against the added
defendants should relate back under the Krupski standard.
I am not persuaded.
First, Ms. Trujillo asserts that she mistakenly attempted to
assert claims against all medical providers in the medical
provider's in the Jail's infirmary in the original Complaint
through the case caption. ECF No. 152 at 3-4; ECF No.
124 at 8. The caption read,
REBECCA TRUJILLO,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, COLORADO,
DEPUTY ROMERO, Denver Sheriff Department,
DEPUTY J. ALLEN, Denver Sheriff Department,
J. ALLEN, RN[,]
A. PEREZ, RN,

V. TOLIVER, RN,
DANA WIMERLY, RN, all medical providers in the
Denver City Jail Infirmary,
Defendants.
ECF No. 1 at 1.
However, a plain reading of the caption indicates
that plaintiff capitalized all of the named parties, and
that the lower-case phrases following an individual's
name are descriptors, explaining where that individual
is employed. For example, Ms. Trujillo does not
contend that she intended to name the “Denver Sheriff
Department” as a defendant. Rather, “Denver Sheriff
Department” indicates where Deputies Romero and Allen
are employed. Similarly, the Court reads the phrase “all
medical providers in the Denver City Jail Infirmary”
to indicate where Nurses Allen, Perez, Toliver, and
Wimberly work.
*9 Second, Ms. Trujillo indicates that when the original
Complaint was filed she had access to her medical records
which identified all the medical providers in the infirmary.
This, she suggests, confirms that it was a mistake to rely
on the caption and not to name the providers individually
in the Complaint. ECF No. 152 at 3-4. However, I do
not find the admission that she had access to her medical
records to be helpful to her. Rather, it suggests to me
that she and her lawyer made a deliberate choice of whom
to sue and not to sue, fully aware of the role that each
provider played in her medical care and, presumably, also
aware of the pertinent legal standards. It defies credibility
to believe that Ms. Trujillo and her lawyer knew who the
medical providers were but nevertheless chose to name
only four of them and to rely instead on the ambiguous
(at best) wording of the caption to include the others as
additional defendants.
Similarly, Ms. Trujillo argues that she made a mistake
because, while she knew she had suffered a violation
of her constitutional rights, it took her some time to
“understand how the individuals' roles played into the
conduct, transaction, or occurrence giving rise to her
claims.” ECF No. 152 at 4; ECF No. 124 at 8. However,
Ms. Trujillo fails to explain how she misunderstood
“the factual and legal differences” between the original
defendants and the added defendants. She does not, for

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example, allege that she mistakenly thought Nurse A
refused to provide medical care only to later realize that
Nurse B was the individual who did not order treatment.
Again, she admits to having the medical records when she
filed her original Complaint. She could and presumably
did rely on her lawyer to analyze the applicable law.
I note as well that, although predating Krupski, the Tenth
Circuit held in Garrett v. Fleming that “[a] plaintiff's
designation of an unknown defendant as ‘John Doe’ in the
original complaint is not a formal defect of the type [Rule
15(c)(1)(C)] was meant to address.” 362 F.3d 692, 697
(10th Cir. 2004); see also Hughes v. Colo. Dep't of Corrs.,
594 F. Supp. 1226, 1237 (D. Colo. 2009) (“replacing an
unknown defendant on the basis of new information is
not a ‘mistake concerning the proper party's identity.’
”). Krupski does not appear to have rendered Garrett
obsolete. See Martinez v. Gabriel No. 10–cv–02079–
CMA–MJW, 2012 WL 1719767, at *2 (D. Colo. May
15, 2012). Rather, “[f]iling a complaint against nameless
defendants is not a mechanism by which the plaintiff
receives extra time to discover the John Doe identities.
Even after Krupski, Plaintiff's amended complaint does
not relate back to her original complaint because her
original complaint did not contain a ‘mistake.’ ” Id. (citing
Smith v. City of Akron, 476 Fed.Appx. 67, 69, 2012 WL
1139003, at *2 (6th Cir. 2012) (unpublished) (holding that
Krupski does not affect the rule that relation back does
not apply when the plaintiff seeks to substitute named
defendants for John Doe defendants)).
Plaintiff relies on Santistevan v. City of Colo. Springs,
No. 11–cv–01649–MEH, 2012 WL 280370 (D. Colo.
Jan. 31, 2012) to support her argument that relation
back applies because she misunderstood the roles of
the various individuals involved in her health care.
However, in Santistevan (which was also decided by
Magistrate Judge Hegarty), the court permitted relation
back where the plaintiff learned through discovery that the
named defendant did not have decision making authority
regarding the alleged constitutional violation, and that the
decision maker was someone else. 2012 WL 280370, at
*6. The court explained that this type of mistake tracked
the first hypothetical from Krupski. Id. That is not the
case here. Rather, the present matter is more analogous to
Asten v. City of Boulder, No. 08–cv–00845–PAB–MEH,
2010 WL 5464298, at *5 (D. Colo. Sept. 28, 2010) report
and recommendation adopted, No. 08–cv–00845–PAB–
MEH, 2010 WL 5464297 (D. Colo. Dec. 29, 2010). In

Asten the plaintiff sought to add two parties, rather than
to change a party. The Asten court reasoned that “it is
this addition [of parties] that belies Plaintiff's assertion of
a mistake. This matter is not a case of mistaken identity,
as in Krupski, but concerns a deliberate choice to sue
one set of defendants without including certain others
also involved in the [ ] incident.” No. 08–cv–00845–PAB–
MEH, 2010 WL 5464298, at *6.
*10 Ms. Trujillo also cites Laratta v. Raemisch, 12–cv–
02079–MSK–KMT, 2014 WL 1237880 (D. Colo. March
26, 2014) for the notion that a “mistake” can be made
when a plaintiff has a misunderstanding regarding when
and how to name certain defendants. In Laratta, the
pro se plaintiff filed an amended complaint, where,
among other additions, he added a claim against two
Colorado Department of Corrections employees in their
official capacities. 2014 WL 1237880, at *6. The plaintiff
argued that the statute of limitations did not bar his
claims because they related back to the newly-added
defendants. Id. at *14. He contended that because he
“requested declaratory and injunctive relief [in his original
complaint], it is clear that he intended to bring official
capacity claims against the named Defendants, i.e. against
CDOC itself.” Id. at *16 (brackets in original). In
her recommendation Magistrate Judge Kathleen Tafoya
found that the claim did relate back because the plaintiff
had made a mistake by “misunderstanding that he had
to name specific defendants in their official capacities in
order to obtain declaratory and injunctive relief.” 5 Id.
Judge Hegarty reasoned that Laratta did not apply
because the Laratta plaintiff was pro se while Ms. Trujillo
was represented by counsel when she filed her original
complaint. ECF No. 152 at 4; see ECF No. 143 at 17.
Plaintiff objects, arguing that the “Laratta court does
not limit its analysis to pro se plaintiffs.” ECF No.
152 at 4. Maybe not, but even if the Court were to
consider Judge Tafoya's discussion in Laratta to apply
to represented parties, it is distinguishable. Judge Tafoya
found that the plaintiff had committed the legal error of
not knowing when to name defendants in their official
capacities in order to obtain certain types of relief. In
contrast, Ms. Trujillo maintains that her error was that she
did not know she needed to identify the new defendants
individually. However, plaintiff's original complaint belies
this assertion because that pleading demonstrates that she
knew to sue some defendants by name.

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The Court surmises that Ms. Trujillo likely realized—after
the expiration of the statute of limitations and with the
guidance of new counsel—that she had failed to bring
suit against all of the health care providers who might
be liable for a violation of her constitutional rights. The
Court is sympathetic to the issues Ms. Trujillo had with
her original attorney. However, while it might have been
an ill-advised legal strategy to not name all of the health
care providers and Denver Health, there is no indication
that Ms. Trujillo failed to do so because of a mistake
regarding the proper parties' identities. It would be an
unreasonable extension of the relation back doctrine to
permit a plaintiff to expand the scope of her claim simply
by arguing, in a general and conclusory fashion, that she
misunderstood the roles of those involved in the events.
In sum, the Court finds that plaintiff has failed to
demonstrate that her claims against the added defendants
relate back to her original pleading.

III. Plaintiff's Motion to Strike.
On April 13, 2016 plaintiff filed a motion to strike sections
of Denver's reply brief in support of its motion to dismiss,
arguing that Denver improperly sought to dismiss her first
claim for relief for the first time in its reply brief. ECF No.
150 at 2. In the alternative, plaintiff sought leave to file a
surreply. Id. at 4. Judge Hegarty recommended that this
Court deny the motion to strike but grant the request for
leave to file a surreply. ECF No. 167 at 3.
Neither party filed an objection to Judge Hegarty's
recommendation. “In the absence of timely objection, the
district court may review a magistrate ... [judge's] report
under any standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas
v. Arn, 474 U.S. 140, 150 (1985)) (stating that “[i]t does
not appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions, under
a de novo or any other standard, when neither party objects
to those findings”). This Court concludes that “there is
no clear error on the face of the record.” Fed. R. Civ. P.
72 advisory committee's note. Therefore, the Court denies
plaintiff's motion to strike. However, it has considered
plaintiff's surreply, ECF No. 150-1, in deciding the City
and County of Denver's motion to dismiss.

IV. City and County of Denver's Motion to Dismiss.

*11 On January 29, 2016 the City filed a motion to
dismiss. ECF No. 123. On June 8, 2016 Judge Hegarty
recommended that this Court grant the motion to dismiss.
ECF No. 168. Plaintiff filed timely objections to which
the City responded. ECF Nos. 173, 176. After its de novo
review, the Court partially adopts and partially rejects the
recommendation.
The City moves to dismiss Ms. Trujillo's second claim,
arguing that Ms. Trujillo fails to allege plausibly that any
of the allegedly unconstitutional actions resulted from a
municipal policy. 6 ECF No. 123 at 3–10. In response
Ms. Trujillo contends that that her allegations do state
a claim for municipal liability based on the City's failure
to train and supervise, and that her first claim for relief
for deliberate indifference survives the City's motion to
dismiss. Additionally, she argues that the City can be held
indirectly liable through the non-delegable duty doctrine
for policies, practices, or customs of Denver Health. ECF
No. 133 at 2.
“[I]t is axiomatic that there is no vicarious liability under
section 1983, and thus a municipality may not be held
liable merely because one of its employees has inflicted
an injury.” Bryson v. City of Okla. City, 627 F.3d 784,
788 (10th Cir. 2010), cert. denied, 564 U.S. 1019 (2011).
In order to establish municipal liability, a plaintiff must
show the existence of (1) a municipal policy or custom;
(2) a direct causal link between the policy or custom
and the injury alleged; and (3) deliberate indifference
on the part of the municipality. Schneider v. City of
Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir.
2013) (a plaintiff must “show that the policy was enacted
or maintained with deliberate indifference to an almost
inevitable constitutional injury”). The “official policy
or custom” requirement “was intended to distinguish
acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is
actually responsible.” Pembaur v. City of Cincinnati, 475
U.S. 469, 479 (1986) (emphasis in original).

A. Direct Liability.
The Court will consider first whether the City is directly
liable for the alleged violations of Ms. Trujillo's Eighth
Amendment rights. Judge Hegarty reasoned that the First
Amended Complaint fails to state a plausible claim for
relief under any of plaintiff's theories because Ms. Trujillo

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does not allege an underlying constitutional violation by
any of Denver's officers. ECF No. 168 at 16. I agree.
It is well established that “[a] municipality may not be
held liable where there was no underlying constitutional
violation by any of its officers.” Hinton v. City of Elwood,
Kan., 997 F.2d 774, 782 (10th Cir. 1993); see also City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If
a person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the
departmental regulations might have authorized the use
of constitutionally excessive force is quite beside the
point.”). Plaintiff fails to allege any unconstitutional
conduct by the two remaining Denver Sheriff's Deputies
Allen and Rodriguez. Ms. Trujillo does not allege that
either individual engaged in any of the conduct at issue;
in fact, neither deputy's name appears in the allegations.
In her objections, Ms. Trujillo lists the allegations in
her First Amended Complaint regarding how the “jail
repeatedly delayed providing her with necessary treatment
and recommended diagnostic tests.” ECF No. 173 at 14.
However, the only places where Denver employees appear
in the First Amended Complaint are general references to
conduct by “on-duty jail deputies,” “guards,” “officers,”
and “employees of Denver Sheriff's Department.” See
ECF No. 99 at ¶¶ 1, 58–59, 60, 63, 67, 70–71. As
Judge Hegarty determined, such general allegations are
insufficient pursuant to Fed. R. Civ. P. 8(a). ECF No. 168
at 17 n.7 (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 570).
*12 Moreover, as Judge Hegarty noted, there is no
suggestion that plaintiff has served either of the two
remaining defendants within the time required by the
federal rules. See Fed. R. Civ. P. 4(m) (“If a defendant is
not served within 120 days after the complaint is filed, the
court – on motion or on its own after notice to the plaintiff
– must dismiss the action without prejudice or order that
service be made within a specified time.”). Accordingly,
the Court construes Judge Hegarty's recommendation as
notice to Ms. Trujillo and dismisses Deputies Allen and
Rodriguez without prejudice.
In sum, because Ms. Trujillo does not allege any
unconstitutional conduct by an employee of Denver, the
Court finds that Denver cannot be held directly liable on
any of plaintiff's theories.

B. Indirect Liability.

The next issue is whether Denver is indirectly liable for
any constitutional violations by Denver Health or its
nurses or doctors. 7 The government has an “obligation
to provide medical care for those whom it is punishing by
incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976).
The government's duty to provide adequate medical care
is non-delegable. The “non-delegable duty doctrine” grew
out of the Supreme Court's decision in West v. Atkins,
where the Court reasoned that “[c]ontracting out prison
medical care does not relieve the State of its constitutional
duty to provide adequate medical treatment to those in its
custody, and it does not deprive the State's prisoners of
the means to vindicate their Eighth Amendment rights.”
487 U.S. 42, 56 (1988) (holding that a private physician
who was under contract with a state prison “acted under
the color of state law” pursuant to § 1983). “[T]he State
cannot, by choosing to delegate its constitutional duties
to the professional judgment of others, thereby avoid all
liability flowing from the attempted fulfillment of those
duties under Section 1983.” Anglin v. City of Aspen, Colo.,
552 F.Supp.2d 1229, 1244 (D. Colo. 2008) (citing West,
487 U.S. at 56 n.14).
The City argues that the non-delegable duty doctrine does
not apply because Denver Health is a public entity, and the
doctrine only extends to a government entity's contracting
with a private company for the provision of health care.
ECF No. 139 at 5–9. Denver Health used to be part of
the City and County of Denver. Bradley v. Denver Health
and Hosp. Authority, 734 F.Supp.2d 1186, 1189 (D. Colo.
2010). However, in 1997 Denver Health separated from
Denver and “became a political subdivision of the State of
Colorado.” Id. (citing C.R.S. § 25–29–103(1) (2010)).
Plaintiff contends that there is significant confusion in
state and federal courts regarding whether Denver Health
is a public or private entity. ECF No. 173 at 7 n.7. Plaintiff
nevertheless proceeds on the theory that the non-delegable
duty doctrine does extend to contracts for medical services
between two public entities. See id. at 7. The Court does
not discern any genuine dispute over Denver Health's
status, and for the purposes of this motion, it will consider
Denver Health to be a public entity. See Villalpando v.
Denver Health & Hosp. Auth., 65 Fed.Appx. 683, 686–87,
2003 WL 1870993, at **2–3 (10th Cir. 2003) (unpublished)
(treating Denver Health as a public entity subject to
liability under § 1983); Ware v. Denver Health, 2009
WL 4506409, at *2 (D. Colo. 2009) (Denver Health is
considered a “political subdivision of the state,” it “may

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be sued for alleged civil rights violations only pursuant to
42 U.S.C. § 1983”).

the city would be liable for the county's unconstitutional
policies or customs. Id. at 149.

*13 As Judge Hegarty recognized, the Supreme Court
in cases following West has described the doctrine as
involving the delegation of state authority to a private
actor. See Nat'l Collegiate Athletic Ass'n v. Tarkanian, 48
U.S. 179, 192 (1988) (“In the typical case raising a stateaction issue, a private party has taken the decisive step
that caused the harm to the plaintiff, and the question is
whether the State was sufficiently involved [by delegation
or otherwise] to treat that decisive conduct as state
action.”) (emphasis added); see also Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass'n, 51 U.S. 288, 296
(2001) (“We have treated a nominally private entity as
a state actor when ... it has been delegated a public
function by the State”) (emphasis added). Additionally,
where the Tenth Circuit has considered this issue, it has
done so in the context of a private contractor's alleged
constitutional violation. In fact, this Court considered
such a fact pattern, holding that a county sheriff could
be indirectly liable for a private healthcare provider's
constitutionally inadequate training of its nurses. McGill
v. Correctional Healthcare Cos., Inc., No. 13–cv–01080–
RBJ, 2014 WL 5423271, at **6–7 (D. Colo. Oct. 24, 2014).

The Ford court clarified that it was not relying on a
theory of respondeat superior, stating that “the question is
City liability for promulgation and implementation of an
express County policy, not City liability” for negligence of
“County employees acting as agents of the City.” Id. at 148
n. 36 (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v.
Brown, 520 U.S. 397, 403 (1997)). The court analyzed the
case through the lens of the non-delegable duty doctrine
where, pursuant to a subcontract, the county housed and
“cared for City arrestees.” Id. at 148. The court reasoned
that a city's contracting with a private entity would
not insulate it from liability for constitutional violations
caused by policies or customs of the county. Id. at 149.
The Ford court saw no reason to reach a different result
when the contract was between two governmental entities,
stating that the county's status as “a public entity does not
alter this analysis.” Id. at 149 n.37. The court explained
that the city had “an affirmative obligation ... to ensure
that the policy of the [county] officials did not lead to a
widespread violation” of the arrestee's rights. Id. at 149
(citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700,
705 n.9 (11th Cir. 1984)) (“[W]here a governmental entity
delegates the final authority to make decisions then those
decisions necessarily represent official policy.”).

In his recommendation, Judge Hegarty determined that
the non-delegable duty doctrine does not apply to the
present facts. ECF No. 168 at 14–15. Ms. Trujillo
objects, arguing that Judge Hegarty's interpretation of
the doctrine is “contrary to established legal principles
and public policy concerns for the care of inmates and
deprives Ms. Trujillo of her ability to adequately vindicate
her Eighth Amendment rights.” ECF No. 173 at 6. I
respectfully disagree with Judge Hegarty and agree with
plaintiff. Neither the Supreme Court nor the Tenth Circuit
has explicitly limited the doctrine to a public entity's
contracting with private medical providers. Additionally,
I find that the policy behind the doctrine supports its
application to the facts here.
Plaintiff relies on Ford v. Boston, 154 F.Supp.2d 131 (D.
Mass. 2001). Id. at 7. In Ford, the city and county had
an agreement under which the county took custody of
and housed the city's female arrestees. 154 F. Supp. 2d
at 133–34. The county subjected all jail admittees “to
strip and visual body cavity searches.” Id. at 133. A
certified plaintiff class challenged the constitutionality of
the searches. Id. at 133–34. The Ford court held that

The Ford court cited a case from the Eighth Circuit
with similar facts. Id. at 149 n.38. In Young v. City
of Little Rock, the city had delegated the housing of
prisoners to the county. The Eighth Circuit upheld a jury
verdict for the plaintiff who had been subjected to an
unconstitutional strip search at the county jail. 249 F.3d
730, 736 (8th Cir. 2001). The appellate court reasoned
that “the jury could reasonably infer that the City knew
that a person entering the [County] jail ... would be stripsearched. In these circumstances, it is far from unfair
to attribute to the City the policies routinely used by
the County jail in the housing and processing of City
prisoners.” Id.
*14 While Ford and Young are not binding on this
Court, I find them persuasive. As Judge Hegarty correctly
discussed, one central aim of non-delegable duty doctrine
is to ensure that an individual is not deprived “of the
means to vindicate [her] Eighth Amendment rights[.]”
West, 487 U.S. at 56. Here, as Judge Hegarty recognized
and as defendant argues, Ms. Trujillo attempts to

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vindicate her Eighth Amendment claims by suing Denver
Health and its employees directly for constitutionally
inadequate medical care. See ECF Nos. 168 at 15; 176 at
6. However, there is more to this picture.
The non-delegable duty doctrine presents a second,
equally-important aim: a governmental entity has
a “constitutional duty to provide adequate medical
treatment to those in its custody[.]” West, 487 U.S. at 56.
The Ford court interpreted West to mean that “any entity,
public or private, that takes on the city's obligations may
be held liable as a state actor under § 1983, but the city,
too, retains its oversight obligations.” 154 F. Supp. 2d at
138 n.37. I agree. Even though Ms. Trujillo brings a § 1983
claim against Denver Health directly, the policy forces
at play suggest that the city cannot dodge its obligation
to provide medical care. In sum defendant's argument
must fail because it does not account for the important
aim of preventing a public entity from avoiding liability
by strategically choosing to contract with another public
entity.

we do not believe the County adopts the City's policy
by default absent a showing of deliberate indifference.”
989 F.2d at 889 (emphasis added). The court concluded
that the county was not deliberately indifferent because,
prior to filing of the suit, there was no evidence that “the
[county] sheriff knew or should have known that [the
municipality's] strip searches were conducted in violation
of state law.” Id. at 889–90 (noting that the filing of the suit
arguably placed the county on notice and “any inaction
by the County after this point might make a case for
deliberate indifference” to subsequent prisoners' rights).
Here, unlike in Deaton, the Court finds that plaintiff has
alleged plausibly that the City was deliberately indifferent.
Plaintiff alleges that Denver knew or should have known
that inadequate health care was being provided at the jail
because “Denver has a long history of failing to train its
personnel properly for medical issues relating to inmates
and has not remedied its failures.” ECF No. 99 at ¶ 40.
Specifically, Ms. Trujillo claims that
*15 [i]n 2006, the Denver jail
failed to provide medical assistance
to a prisoner named Emily Rice,
who had sustained injuries during
a drunk driving accident prior to
be housed at the jail, and later
died from her untreated internal
injuries. Emily Rice's family sued
the city of Denver and Denver
Health for her death. Both the
city and Denver Health settled with
Ms. Rice's family, and as part of
the settlement, agreed to provide
enhanced training to its personnel
regarding medical care for inmates.

The City argues that a Sixth Circuit case supports its
position that Denver cannot be held liable for Denver
Health's policies or practices. ECF No. 139 at 6. In
Deaton v. Montgomery Cnty., Ohio, the court addressed
the issue of “whether a county, which contracts with a
municipality to manage and operate its jail facilities ... may
be held liable under 42 U.S.C. § 1983 for constitutional
deprivations resulting from a custom, policy or practice of
the municipality.” 989 F.2d 885, 885–90 (6th Cir. 1993).
The Sixth Circuit found that
[t]he duty to manage and operate
the facility belongs to the City and
the custom or policy it chooses to
implement does not become that
of the County because the City
has separate statutory authority
to house prisoners. Therefore, any
constitutional violations of the
plaintiffs' rights were the result of
City, not County, policy.
Id. at 888.
The Deaton court did not foreclose the possibility that
one public entity could be liable for another public entity's
policy. Rather, the court reasoned that “because each
entity is required to be in compliance with Ohio law,

Id. at ¶ 76.
Additionally, Ms. Trujillo alleges that the City made a
training video, “which was supposed to tell the story of
what happened to Emily Rice and to train deputies to
prevent another inmate from suffering her fate. The video,
however, did not train deputies and there was a public
outcry as a result of this video.” Id. at ¶ 77. It is unclear
if this video was created before or during Ms. Trujillo's
time in jail. Plaintiff states that “[i]n August 2014, it
came to light that Denver Jail was still not providing
proper training to its employees.” Id. At this stage, the
Court must construe any inferences in plaintiff's favor.

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For the purposes of this motion, it is plausible that the
“public outcry” in response to the video's inadequacies
occurred before or during Ms. Trujillo's time in the jail and
therefore would have put the City on notice.
Moreover, plaintiff claims that she “sent several kites for
medical treatment and also filed formal grievances against
the jail for its failure to provide medical treatment.” Id.
at ¶ 40. Ms. Trujillo also alleges that Dr. Boyle called the
jail regarding Ms. Trujillo's status, and the jail told him
officials would return his call. The jail never called Dr.
Boyle, and Dr. Boyle did not follow up regarding Ms.
Trujillo's treatment. Id. at ¶¶ 55–60. The Court finds that
these allegations make it plausible that the City knew or
should have known of the inadequate medical treatment
being provided to Ms. Trujillo. See Young, 249 F.3d at 736
(“City employees were aware of the custom of chaining
prisoners, and they knew that [plaintiff] was being taken
back to the jail.”).
In sum, the Court concludes that Denver can be held
liable for an unconstitutional policy or custom of Denver
Health.

1. Municipal Liability.
The Court must next decide whether Ms. Trujillo has
stated a claim for municipal liability. I find that she has.
A plaintiff may demonstrate the existence of a municipal
policy or custom in the form of (1) an officially
promulgated policy; (2) an informal custom amounting to
a widespread practice; (3) the decisions of employees with
final policymaking authority; (4) the ratification by final
policymakers of the decisions of their subordinates; or
(5) the failure to adequately train or supervise employees.
Bryson, 627 F.3d at 788. Ms. Trujillo argues that she has
“adequately alleged facts to support that the moving force
behind this [constitutional] violation was a Denver Health
policy or custom for nurses to ignore treating physicians'
medical directives if the nurse can justify this conduct due
to some suspected malingering or ‘chronic charting.’ ”
ECF No. 173 at 13. Alternatively, plaintiff argues that
the constitutional violation was caused by a “failure to
adequately train its employees regarding inmate medical
issues, including the detection and treatment of spinal
injuries.” Id.

First, regarding whether Denver Health had a policy
or custom that caused the violation of plaintiff's Eighth
Amendment rights, plaintiff does not allege the existence
of an officially-promulgated policy. Therefore, her first
theory necessarily proceeds on the notion that an informal
custom existed that amounted to a widespread practice.
Bryson, 627 F.3d at 788. Ms. Trujillo alleges that Nurse
Perez “noted that Ms. Trujillo had chronic charting” on
August 5, 2012. ECF No. 99 at ¶ 54. Second, during
the month following Dr. Boyle's assessment that plaintiff
had a “very significant neurologic illness,” id. at ¶ 58,
Nurse Perez “updated Ms. Trujillo's chart on a weekly
basis, stating simply that there was ‘chronic charting,’ ”
and noting knee and ankle pain and a risk of falling. Id.
at ¶ 62. Nurse Perez did not provide any treatment or
care during this time. Id. Finally, from the date of the
MRI on October 10, 2012 until February 2013, Nurse
Perez made weekly notes that repeated that plaintiff had
“chronic charting, bilateral knee and ankle pain, and
fall risk.” Id. at ¶ 67. Ms. Trujillo claims that Nurse
Perez “deliberately never noted Ms. Trujillo's continuing
and worsening neurologic symptoms” and never provided
treatment. Id. Ms. Trujillo concludes that “[t]hese facts,
when taken as true, adequately allege that a Denver
Health policy or custom was the moving force behind the
violation of her constitutional rights.” Id. I agree.
*16 Defendant argues that “[P]laintiff only attacks
the medical judgment and medical treatment of
specific Denver Health personnel who she alleges
violated her constitutional rights[,]” and such allegations
are insufficient because “allegedly inadequate medical
judgment does not rise to the level of deliberate
indifference.” ECF No. 176 at 7. I disagree. This is not a
case where a plaintiff simply has a different opinion about
her medical treatment. See Mata v. Saiz, 427 F.3d 745,
761 (10th Cir 2005). Rather, Ms. Trujillo's allegations,
when taken as true, depict a troubling picture of the jail's
health care providers' ignoring her obvious symptoms and
doctors' diagnoses of a spinal injury and failing to provide
the doctors' recommended treatment.
Second, regarding plaintiff's theory about the failure to
train, plaintiff cites to the same allegations that she
relied on for her informal custom theory. Ms. Trujillo
summarizes her allegations as follows:
on
at
least
four
separate
occasions during her incarceration,
a treating physician identified

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Trujillo v. City and County of Denver, Slip Copy (2016)
2016 WL 5791208

specific, significant spinal injuries
and ordered necessary treatment
for Ms. Trujillo. And in the
month or months following each
evaluation, the nurses deliberately
disregarded those medical directives
and were deliberately indifferent
to Ms. Trujillo's sudden onset of
obvious indications of a spinal
injury, attributing the symptoms
to rheumatoid arthritis even after
a doctor definitively stated that
Ms. Trujillo's symptoms were likely
caused by a neurologic issue.
ECF No. 173 at 13 (citing ECF No. 99 at ¶¶ 53, 58–
59, 63, 67, 70–71). Plaintiff alleges that the failure to
train caused the violation of her constitutional rights,
arguing that that “[h]ad the nursing staff been trained
on implementing medical directives, [she] would have
received the care prescribed.” ECF No. 133 at 12. Ms.
Trujillo further contends that “[t]he number of incidents
alleged in the Complaint and the egregious nature of
those failures ‘warrant an inference that it was attributable
to inadequate training or supervision[.]’ ” Id. at 12–13
(quoting Martini v. Russell, 582 F. Supp. 136, 142 (C.D.
Cal. 1984)). The Court agrees. Plaintiff's allegations are
“sufficient to support an inference that the need for
different training was so obvious and the inadequacy so
likely to result in violation of constitutional rights that
the policymakers of the City could reasonably be said to
have been deliberately indifferent to the need.” Allen v.
Muskogee, 119 F.3d 837, 842, 844 (10th Cir. 1997).
In sum, I find that Ms. Trujillo has alleged enough
to make it plausible that Denver Health had a custom
of treating nurses' ignoring medical directives based on
a justification that the patient was “malingering” or
had “chronic charting.” Additionally, I conclude that
plaintiff's alternative theory—a failure to train—also
survives dismissal. Furthermore, plaintiff alleges plausibly
that this custom and the purported deficiency in Denver
Health's training program directly caused the violations
of her right to adequate medical care. Finally, regarding
deliberate indifference, the Court finds that plaintiff's
allegations are sufficient to establish that a violation of
plaintiff's rights is “a highly predictable or plainly obvious
consequence of [Denver Health's] action or inaction[.]”
Schnieder, 717 F.3d at 769 (quoting Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998)).

Therefore, these policies can be imputed to the City and
County of Denver because of its delegation of health care
services to Denver Health. Denver's motion to dismiss is
denied on these grounds.

ORDER
For the foregoing reasons, it is ORDERED that
1. The Recommendations of United States Magistrate
Judge Michael E. Hegarty [ECF Nos. 143, 167, 168] are
ADOPTED IN PART AND REJECTED IN PART.
*17 2. The added defendants' motion to dismiss [ECF
No. 114] is GRANTED. The claims against Denver
Health and Hospital Authority; Jennifer Firebaugh, RN;
Brenda Sue Hagman, LPN; Paul Michael Umbriaco, RN;
Marvin Korell, RN; Pauline Marie McGann, MD; and
Donna Marie Blatt, RN are dismissed with prejudice.
The claims against John Allen, RN; Dennis Boyle,
MD; Edward Maa, MD; and Richard Hughes, MD are
dismissed without prejudice.
3. Plaintiff's motion to strike [ECF No. 150] is
GRANTED IN PART AND DENIED IN PART. It is
denied as to striking the reply brief but granted as to leave
to file a surreply.
4. Defendant City and County of Denver's motion to
dismiss [ECF No. 123] is GRANTED IN PART AND
DENIED IN PART. It is granted as to direct liability and
denied as to indirect liability.
5. The claims against Deputies Allen and Rodriguez are
dismissed without prejudice pursuant to Fed. R. Civ. P.
4(m); and
6. Therefore, plaintiff's claims will proceed against
defendant City and County of Denver on a theory of
indirect liability; Anthony Perez, RN; Victoria Toliver,
RN; and Dana Wimberly, RN.
DATED this 7th day of September, 2016.

All Citations
Slip Copy, 2016 WL 5791208

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Footnotes

1
2

3

4

5
6
7

The First Amended Complaint included a third claim for relief based on supervisory liability for failure to train and
supervise. Id. at ¶¶101-08. Plaintiff voluntarily dismissed this claim on February 22, 2016. ECF No. 132.
Original defendants Victoria Toliver, RN; Anthony Perez, RN; and Dana Wimberly, RN filed answers on December 11,
2015 [ECF No. 113] and January 9, 2016 [ECF No. 116]. There is no indication that Deputies Allen and Rodriguez have
been served, and they have not entered their appearances. See ECF No. 123 at 2 n.1. Plaintiff voluntarily dismissed
original defendants Deputy James A. Romero and John Allen, RN. ECF Nos. 121, 157. Plaintiff voluntarily dismissed
newly-added defendants Sergeant Marshal Gutierrez; Deputy Sylvia Luna; Deputy Maria Kaipat-Jones; Dennis Boyle,
MD; Edward Maa, MD; Richard Hughes, MD; and John Gehred, MD. ECF Nos. 118, 121, 180.
Rule 4(m) in the form applicable here provided that if a defendant was not served within 120 days after the complaint was
filed the court must either dismiss the action without prejudice against that defendant, order that service be made within a
specified time, or extend the time for service for good cause shown. For some of the same reasons I discuss below with
respect to the third requirement, I question whether plaintiff could demonstrate compliance with the second requirement.
The Krupski plaintiff tripped on a cruise ship and sued Costa Cruise Lines for negligence. Costa Cruise Lines was identified
on the plaintiff's ticket. The ticket also listed Costa Crociere as the carrier. Id. at 542–43. After the statute of limitations
expired, Costa Cruise asserted that it was the wrong defendant, moving for summary judgment on the basis that Costa
Crociere was the proper defendant. Id. at 543–44. The district court granted plaintiff leave to amend, and the plaintiff filed
an amended complaint against Costa Crociere. Costa Crociere moved to dismiss, arguing that the amended complaint
did not relate back. Id. at 544. The district court granted the motion to dismiss. Id. at 545. The Eleventh Circuit affirmed,
holding that because the plaintiff knew or should have known that Costa Crociere was the correct party, she had made
no mistake, and the statute of limitations barred plaintiff's claim against Costa Crociere. Id. at 546. The Supreme Court
reversed, reasoning that relation back hinged on “whether Costa Crociere knew or should have known that it would have
been named as a defendant but for an error.” Id. at 548.
In adopting the magistrate judge's recommendation, Chief Judge Marcia Krieger did not reach the issue of whether the
added claim related back because she found that the plaintiff's claim was timely. Id. at *6.
Denver also moved to dismiss plaintiff's third claim, but as noted above, Ms. Trujillo voluntarily dismissed it. See ECF
Nos. 123 at 3; 132.
As Judge Hegarty recognized, the parties do not explicitly state whether Denver or Denver Health employs the medical
providers at the jail. ECF No. 168 at 13. However, I agree with Judge Hegarty that it can be inferred from the briefings
that Denver Health employs these individuals.

End of Document

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