Smith et al v. Colorado State Patrol, The et al

Filing 92

ORDER. Weld County Sheriff's Office and the Board of County Commissioners of the County of Weld's Motion to Dismiss the Third, Fourth and Fifth Claims for Relief of Plaintiffs' First Amended Complaint and Jury Demand [Docket No. 77 ] is granted. Correct Care Solutions, LLC and Christin Hernandez's Partial Motion to Dismiss [Docket No. 78 ] is granted in part and denied in part. Plaintiffs' third claim for relief is dismissed as to defendants the Weld County Sheriff's Office, the Board of County Commissioners of the County of Weld, and Correct Care Solutions, LLC. Plaintiffs' fourth and fifth claims for relief are dismissed. Signed by Judge Philip A. Brimmer on 03/08/2017. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00714-PAB-STV
ESTATE OF BARTON GRUBBS and
TANYA SMITH, individually and as the personal representative of the Estate of Barton
Grubbs,
Plaintiffs,
v.
THE WELD COUNTY SHERIFF’S OFFICE,
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD,
CORRECT CARE SOLUTIONS, LLC, and
CHRISTIN HERNANDEZ, in her Individual and Official Capacity,
Defendants.

ORDER

This matter is before the Court on Defendants the Weld County Sheriff’s Office
and the Board of County Commissioners of the County of Weld’s Motion to Dismiss the
Third, Fourth and Fifth Claims for Relief of Plaintiffs’ First Amended Complaint and Jury
Demand [Docket No. 77] and Defendants Correct Care Solutions, LLC and Christin
Hernandez’s Partial Motion to Dismiss [Docket No. 78].
I. BACKGROUND1
On March 28, 2014, Barton Grubbs committed suicide while in custody at the
Weld County Jail. Docket No. 66 at 9, ¶ 47; 21, ¶ 186. The events leading to his death
began on the evening of March 27, 2014 when Colorado State Trooper Travis Tyndall
arrested Mr. Grubbs for driving under the influence. Docket No. 66 at 6-7, ¶¶ 17-21.
1

The facts below are taken from plaintiffs’ amended complaint, Docket No. 66,
and are presumed to be true for purposes of this motion to dismiss.

After being handcuffed, Mr. Grubbs asked Trooper Tyndall to retrieve his pain
medication. Id. at 7, ¶¶ 24, 26. Trooper Tyndall retrieved a bottle of Percocet and a
bottle of Valium from Mr. Grubbs’ car. Id., ¶ 26. Trooper Tyndall took Mr. Grubbs to a
substation, where they were met by paramedics who confirmed that Mr. Grubbs’
medication was in fact Percocet and Valium and permitted him to take one pill of each.
Id., ¶¶ 27-31. Trooper Tyndall told Mr. Grubbs to put his medication in Grubbs’ inside
coat pocket. Id. at 8, ¶ 34. Trooper Tyndall then took Mr. Grubbs to the Weld County
Jail for booking. Id., ¶ 35. While Trooper Tyndall was filling out paperwork, Mr. Grubbs
surreptitiously swallowed all but one of his remaining pills. Id. at 8-9, ¶¶ 45-47, 58.
During the booking process, Officer Eric Sutherland searched Mr. Grubbs and found the
pill bottles. Id. at 9, ¶ 57. Officer Sutherland contacted medical staff, and Licensed
Practical Nurse (“LPN”) Christin Hernandez responded. Id. at 10, ¶¶ 59, 61. Nurse
Hernandez was an employee of Correct Care Solutions, LLC (“CCS”), which contracts
with the Weld County defendants to provide healthcare services, including medical and
mental health, for the Weld County Jail. Id. at 5, ¶¶ 13-14. Nurse Hernandez examined
Mr. Grubbs’ pill bottles and stated she would put them into “property.” Id. at 10, ¶¶ 6263. Trooper Tyndall told Officer Sutherland and Nurse Hernandez that it was possible
that some of the pills were missing. Id., ¶ 65. At the request of Officer Sutherland,
Nurse Hernandez took Mr. Grubbs’ vital signs, which were normal. Id. at 10-11, ¶¶ 66,
75-76.
Officer Sutherland asked Mr. Grubbs if he would tell jail staff members if he were
suicidal; Mr. Grubbs stated that he would not. Id. at 11, ¶¶ 77-78. As a result, Officer
Sutherland scheduled a suicide “staffing” for Mr. Grubbs. Id., ¶ 79. A staffing is a
2

formal suicide evaluation conducted by medical staff and corrections officers. Id., ¶ 80.
Officer Jennifer Linderlink and Nurse Hernandez conducted the suicide staffing. Id.
at 12, ¶ 87. During the interview, Officer Linderlink asked Mr. Grubbs if he had taken
any pills; Mr. Grubbs responded that he had taken around 70 Valium while waiting in the
booking vestibule. Id. at 13-14, ¶¶ 99-103. Nurse Hernandez spoke with her supervisor
to inquire about what she should do as a result of Mr. Grubbs’ statements. Id. at 14,
¶ 104. Nurse Hernandez’s supervisor told her to obtain information regarding Mr.
Grubbs’ prescriptions and call the provider to inquire as to methods to counteract the
effect of the pills Mr. Grubbs had taken. Id., ¶ 105. Nurse Hernandez checked the
prescription levels on Mr. Grubbs’ medication bottles, but did not call the provider about
drugs to help Mr. Grubbs. Id., ¶¶ 107-08. Nurse Hernandez asked Officer Sutherland
whether it would be possible to review footage from cameras overlooking the booking
area, but neither Nurse Hernandez nor Officer Linderlink requested the tape, which did
in fact show Mr. Grubbs consuming the medication. Id. at 15, ¶¶ 110-12.
At that time Officer Linderlink had Nurse Hernandez check Mr. Grubbs’ vitals
again, which she recorded as abnormal. Id., ¶¶ 115-17. Mr. Grubbs was transported to
a housing unit and placed on suicide watch level one. Id., ¶ 119. Corrections officers
are supposed to observe an inmate on suicide watch level one at no more than five
minute intervals. Id. at 30, ¶ 248. Nurse Hernandez requested a medical screening for
Mr. Grubbs, but none was conducted. Id. at 16, ¶¶ 125-26. Mr. Grubbs was placed in
his cell at around 5:00 a.m. and given a suicide watch gown. Id. at 17-18, ¶¶ 139-42.
Officer Lamb checked on Mr. Grubbs approximately an hour and fifteen minutes after he
was placed in his cell. Id. at 18, ¶¶ 143-44. Officer Steven MacCreery also conducted
3

walkthroughs during the early morning and observed Mr. Grubbs’ foot twitching on at
least one occasion. Id., ¶¶ 148-150. Sometime after 8:00 a.m., three officers entered
Mr. Grubbs’ cell to relocate him. Id. at 19, ¶ 155. Mr. Grubbs never spoke or
responded to the officers in any way. Id. at 19-20, ¶¶ 157-160, 171. Medical staff and
paramedics were called, and Mr. Grubbs was transported to Northern Colorado Medical
Center, where it was determined that Mr. Grubbs had no brain activity. Id. at 20,
¶¶ 172-75. Later that day Mr. Grubbs died, never having regained consciousness. Id.
at 21, ¶ 186. The cause of death on his autopsy report was medication overdose. Id.
On March 25, 2016, his estate and personal representative filed this lawsuit
seeking damages arising from Mr. Grubbs’ death. Docket No. 1. On July 26, 2016,
plaintiffs filed an amended complaint alleging six claims for relief pursuant to: (1) Colo.
Rev. Stat. § 13-21-202 for death by negligence; (2) Colo. Rev. Stat. § 13-20-101 for
expenses related to Mr. Grubbs’ death; (3) 42 U.S.C. § 1983 for deliberate indifference
to medical needs; (4) 42 U.S.C. § 1983 for adoption of an official policy; (5) 42 U.S.C.
§ 1983 for failure to adequately train or supervise; and (6) common law negligence.
Docket No. 66.
Defendants Weld County Sheriff’s Office and Board of County Commissioners of
the County of Weld (collectively “Weld County defendants”) have moved to dismiss
plaintiffs’ third, fourth, and fifth claims for relief. Docket No. 77. Defendants CCS and
Christin Hernandez have moved to dismiss plaintiffs’ third claim for relief against
defendants CCS and Hernandez and plaintiffs’ sixth claim for relief against defendant
Hernandez. Docket No. 78.

4

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
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
Local governments may not be sued under 42 U.S.C. § 1983 on a theory of
respondeat superior. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 692 (1978).
Instead, local governing bodies can be sued directly only 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.” Id. at
690 (footnote omitted). “[I]t is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” Id. at 694.

5

In order to state a claim for municipal liability under § 1983 for the actions of a
municipal employee, a party must allege sufficient facts to demonstrate that it is
plausible (1) that the municipal employee committed a constitutional violation; and (2)
that a municipal policy or custom was the moving force behind the constitutional
deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). The plaintiff
must further 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 municipality 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 omitted). 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 ‘deliberate indifference’ to the
injuries that may be caused.” Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th
Cir. 2010) (citations omitted).

6

With this background in mind, the Court considers whether dismissal of the
challenged claims is appropriate.
A. Plaintiffs’ Third Claim for Relief – Deliberate Indifference to Medical
Needs
“Under the Fourteenth Amendment’s Due Process Clause, pretrial detainees are
entitled to the same degree of protection against denial of medical care as that afforded
to convicted inmates under the Eighth Amendment.” Estate of Hocker by Hocker v.
Walsh, 22 F.3d 995, 998 (10th Cir. 1994). To bring a claim for deliberate medical
indifference against an institution, plaintiff must allege “such gross deficiencies in
staffing, facilities, equipment, or procedures that the inmate is effectively denied access
to adequate medical care.” See Garcia v. Salt Lake Cty., 768 F.2d 303, 308 (10th Cir.
1985) (citing Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). To bring a claim for
deliberate indifference to medical needs against an individual, a plaintiff must allege: “(i)
that he suffered from a serious medical need – that is, one that has been diagnosed by
a medical provider as requiring treatment or one which even a lay person would easily
recognize as requiring medical attention; and (ii) the Defendant was subjectively aware
of that need and that failing to treat it would pose an excessive risk to the inmate’s
health or safety, but nevertheless elected to delay or deny treatment for it.” Ajaj v. Fed.
Bureau of Prisons, No. 08-cv-02006-MSK-MJW, 2011 WL 902440, at *16 (D. Colo. Mar.
10, 2011) (citing Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). The first
prong is examined objectively, while the second is examined subjectively and takes into
account whether a prison official “knows of and disregards an excessive risk to inmate

7

health or safety.” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)).
1. Weld County Defendants
The Weld County defendants argue that plaintiffs’ third claim for relief presents
mere boilerplate recitations of the elements of deliberate indifference and, moreover,
that plaintiffs’ allegation that Weld County had a policy of deferring to medical staff on
admittance decisions demonstrates that the Weld County defendants were unable to
provide medical care to Mr. Grubbs. Docket No. 77 at 4. Plaintiffs respond by arguing
that the agreement between the Weld County defendants and CCS has a built-in
deliberate indifference in healthcare standards for inmates by defining one standard for
emergency medical services for visitors and employees and another standard for
detainees and inmates. Docket No. 81 at 3-4.
The allegations in the amended complaint, however, demonstrate that the Weld
County defendants’ policy did not effectively deny Mr. Grubbs access to a hospital.
According to plaintiffs, despite the different standards of care for inmates and visitors,
“three other prisoners were had [sic] already been taken to the hospital” on the same
evening Mr. Grubbs was admitted. Docket No. 66 at 17, ¶ 131. Plaintiffs state that,
because these other inmates were taken to the hospital, Mr. Grubbs was not. Id.
However, the policy identified by plaintiffs does not limit the number of individuals to be
taken to the hospital and the amended complaint confirms that Mr. Grubbs could have
been taken to the hospital had the medical staff determined it was necessary. Id. at 16,
¶¶ 127-28. Based on the allegations in the amended complaint, the policy identified by
plaintiffs in response to the motion to dismiss did not cause the death of Mr. Grubbs.
8

Although defendants do not directly raise the issue, the amended complaint also
does not allege that there was insufficient medical staff present at the Weld County jail
to advise corrections officers. In Garcia v. Salt Lake Cty., the Tenth Circuit affirmed a
finding of deliberate indifference where a pretrial detainee died while no medical
personnel were present at the jail. 768 F.2d at 308. The jail housed as many as 400
inmates at a time, but only had a physician on site three days a week for two hours, a
nurse four to five hours five days a week, and a medical technician daily from 5:00 a.m.
to 9:00 p.m. Id; see also Ramos v. Lamm, 639 F.2d 559, 576-79 (10th Cir. 1980)
(discussing minimal staffing at a large prison facility and finding that the services were
grossly inadequate). Unlike those cases where deliberate indifference was found, there
were medical staff present at the Weld County jail and they were free to make a
determination that Mr. Grubbs needed to be hospitalized. Their failure to do so was not
a result of the policy differentiating between visitors and detainees.
The policies described by plaintiffs in the amended complaint do not demonstrate
deliberate indifference on the part of the Weld County defendants. Accordingly,
plaintiffs’ third claim will be dismissed as to the Weld County defendants.
2. Defendant CCS
Plaintiffs argue that defendant CCS has an agreement with the Weld County
defendants to provide inmate health services. Docket No. 66 at 25, ¶ 206. Pursuant to
that agreement, CCS has the “right, ability and duty to control certain activities providing
health services to inmates of the Weld County Jail.” Id., ¶ 207. The agreement defines
“the policy for emergency medical services in the jail for visitors, employees and
detainees or inmates” and “differentiates who will pay for the emergency medical
9

services depending on whether the detainee is being processed into the Weld County
Jail or has already been booked into the jail.” Id. at 26, ¶¶ 215-16. Defendant CCS
“has a budgetary monetary cap on booked detainee’s hospitalization costs.” Id. at 27,
¶ 218. According to plaintiffs, the policy for “emergency medical services creates a
deliberate indifference in health care standards to an inmate.” Id., ¶ 219.
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.”
Id. (quoting Monell, 436 U.S. at 691.). “[T]o 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).
Defendant CCS argues that plaintiffs do not allege the existence of a policy or
practice evincing deliberate indifference to a serious medical need. Docket No. 78 at 3.
The only CCS policy identified in the complaint is that CCS has “a budgetary monetary
cap on booked detainee’s hospitalization costs, [which] creates a deliberate indifference
in health care standards to an inmate.” Docket No. 66 at 27, ¶¶ 218-19. Nowhere in
the amended complaint do plaintiffs argue that the budget was the moving force behind
defendants’ decision not to send Mr. Grubbs to the hospital. Even if the budget were a
cause, the mere existence of a budget does not demonstrate deliberate indifference.
Sherman v. Klenke, 653 F. App’x 580, 592 (10th Cir. 2016) (“The naked assertion that
10

Defendants considered cost in treating [an inmate’s] hernia does not suffice to state a
claim for deliberate indifference”) (citing Winslow v. Prison Health Servs., 406 F. App’x
671, 674 (3d Cir. 2011) (unpublished)); see also Morris v. Livingston, 739 F.3d 740, 748
(5th Cir. 2014) (“[T]he deliberate indifference standard . . . does not guarantee prisoners
the right to be entirely free from the cost considerations that figure in the medical-care
decisions made by most non-prisoners in our society.”) (quoting Reynolds v. Wagner,
128 F.3d 166, 175 (3d Cir. 1997)).
Plaintiffs’ response identifies two policies to support their third claim for relief
against CCS: a policy of treating detainees and non-detainees differently for their
medical needs and the custom of using LPNs to evaluate patients and direct treatment.
Docket No. 80 at 5. The Court has already addressed the first of these policies above
and found that it does not warrant liability under § 1983 based on the facts alleged by
plaintiffs. As to the second policy, plaintiffs’ amended complaint makes no reference to
the propriety or impropriety of using LPNs to conduct evaluations of detainees. Thus,
plaintiffs’ argument does not provide a ground to deny the motion to dismiss. See Cty.
of Santa Fe, N.M. v. Pub. Serv. Co. of New Mexico, 311 F.3d 1031, 1035 (10th Cir.
2002) (“In deciding a Rule 12(b)(6) motion, a federal court may only consider facts
alleged within the complaint.”). Even if the Court were to consider plaintiffs’ identified
custom, plaintiffs’ conclusory assertion that “the roles of LPNs, registered nurses and
physicians are unclear and contributed to Mr. Grubbs’ death,” Docket No. 80 at 4, does
not state a claim. There are no factual allegations in the amended complaint that Nurse
Hernandez, or other CCS staff, were barred by CCS policy from providing adequate
care or that role confusion contributed to the death of Mr. Grubbs. Compare Lawson v.
11

Dallas Cty., 286 F.3d 257, 263 (5th Cir. 2002) (finding deliberate indifference where
institutional policies prevented nurses from seeing patients regularly and providing
sufficient care).
Accordingly, plaintiffs’ third claim will be dismissed as to defendant CCS.
3. Defendant Hernandez
Defendant Hernandez argues that she is entitled to qualified immunity on
plaintiffs’ third claim for relief. Docket No. 78 at 5-6. “Qualified immunity balances two
important interests – the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). Qualified immunity provides immunity from trial and the other burdens of
litigation such as discovery, rather than merely a defense to liability. See Saucier v.
Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson, 555 U.S. 223.
Therefore, a court should resolve questions of qualified immunity at the earliest possible
stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). However, a
plaintiff facing a qualified immunity challenge still does not have a heightened pleading
standard. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
The parties dispute whether defendant Hernandez is covered by the doctrine of
qualified immunity. “For private parties, courts ‘look both to history and to the purposes
that underlie government employee immunity’ to determine whether qualified immunity
applies.” The Estate of Lockett by & through Lockett v. Fallin, 841 F.3d 1098, 1107–08
(10th Cir. 2016) (quoting Richardson v. McKnight, 521 U.S. 399, 404 (1997)). Qualified
immunity serves three purposes: first, “qualified immunity ‘protect[s] the public from
12

unwarranted timidity on the part of public officials’”; second, it works “to ensure that
talented candidates [are] not deterred by the threat of damages suits from entering
public service”; third, it “reduces the chance that lawsuits will distract officials from their
governmental duties.” Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413
F.3d 1163, 1166-67 (10th Cir. 2005) (quoting Richardson, 521 U.S. at 408). In
Richardson, the Supreme Court made clear that its holding was limited to the situation
before it, “in which a private firm, systematically organized to assume a major lengthy
administrative task (managing an institution) with limited direct supervision by the
government, undertakes that task for profit and potentially in competition with other
firms.” 521 U.S. at 413.
The Tenth Circuit has not decided whether qualified immunity is available “to
employees of a private company providing medical services to inmates.” Kellum v.
Mares, 657 F. App’x 763, 768 n.3 (10th Cir. 2016) (unpublished). However, the other
circuits to have addressed this question have all found that qualified immunity is
unavailable to employees of a private company providing such medical services. See
McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (refusing to apply qualified
immunity to a prison psychiatrist after an inmate committed suicide); Jensen v. Lane
County, 222 F.3d 570, 577 (9th Cir. 2000) (denying qualified immunity to psychiatrist
who provided services pursuant to a government contract); Hinson v. Edmond, 192 F.3d
1342, 1347 (11th Cir. 1999) (declining to extend qualified immunity to a privately
employed prison physician). While Richardson noted that traditionally “the law did
provide a kind of immunity for certain private defendants, such as doctors or lawyers
who performed services at the behest of the sovereign,” Richardson, 521 U.S. at 407
13

(citation omitted), the circuit courts to consider this question have rejected the notion
that medical professionals who work on behalf of jails have traditionally been afforded
qualified immunity. McCullum, 693 F.3d at 701-03 (examining the historical analyses in
Hinson and Jensen before conducting its own review of relevant authorities and finding
that “the precedents that do exist point in one direction: there was no special immunity
for a doctor working for the state”).
Defendant Hernandez argues that the public policy factors militate in favor of
granting qualified immunity to medical professionals employed by private entities
providing services to inmates. Docket No. 83 at 7-8. However, private competition
addresses possible timidity on the part of CCS employees and private entities are wellsituated to adequately compensate or indemnify employees for potential liability.
Richardson, 521 U.S. at 409-11 (noting that “[c]ompetitive pressures mean not only that
a firm whose guards are too aggressive will face damages . . . but also that a firm
whose guards are too timid will face threats of replacement” and that private firms can
“offset any increased employee liability risk with higher pay or extra benefits”); see also
Jensen v. Lane Cty., 222 F.3d 570, 578 (9th Cir. 2000) (applying the rationale of
Richardson to medical providers employed by private entities). While potential litigation
would be a distraction for a medical professional, nothing about the prison context
justifies a special exemption. Richardson, 521 U.S. at 412 (“[T]he threat of distracting
workers from their duties is [not] enough virtually by itself to justify providing an
immunity.”)

14

Accordingly the Court declines to extend qualified immunity to defendant
Hernandez and dismissal of plaintiffs’ third claim for relief as to defendant Hernandez is
not warranted.
B. Plaintiffs’ Fourth Claim for Relief – Adoption of an Official Policy
Plaintiffs’ fourth claim seeks relief under § 1983 against the Weld County
defendants for adopting an unconstitutional policy pursuant to Monell. Docket No. 66 at
28-29, ¶¶ 232-39. According to plaintiffs, the Weld County defendants
created and operated pursuant to an expressly adopted official policy and
longstanding practice and custom that does not afford corrections officers
an opinion in whether or not to admit an arrestee into the jail but instead
leaves it entirely up to the medical staff.
Id. at 29, ¶ 236. The Weld County defendants argue that plaintiffs’ fourth claim is
deficient because it fails to allege which entity created the policy at issue, when
the policy was adopted, how long it has been utilized, and which entity followed
the relevant policy. Docket No. 77 at 5. Plaintiffs respond that the complaint not
only specifically identifies the policy at issue, but also ties the policy to the
actions of Officer Linderlink. Docket No. 81 at 4-5. In order to state a claim
under § 1983 for deliberate indifference based on a policy or practice, plaintiffs
must allege “(1) official policy or custom, (2) causation, and (3) state of mind.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir.
2013).
According to the amended complaint, Officer Linderlink believed that
taking Mr. Grubbs to the hospital instead of admitting him would have been safer
and that Officer Linderlink was aware of the policy that corrections officers were
15

not to disagree with medical staff. Docket No. 66 at 15, ¶ 114; 17, ¶¶ 133-134.
These statements may be sufficient to indicate the policy at issue and
demonstrate causation. However, as to the third factor, state of mind, the
amended complaint is deficient.
“[A] plaintiff seeking to establish municipal liability on the theory that a
facially lawful municipal action has led an employee to violate a plaintiff’s rights
must demonstrate that the municipal action was taken with ‘deliberate
indifference’ as to its known or obvious consequences.” Schneider, 717 F.3d at
770 (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 398
(1997)). “The deliberate indifference standard may be satisfied when the
municipality 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. In most instances, notice can
be established by proving the existence of a pattern of tortious conduct.” Id.
at 771 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)).
While the amended complaint contains the boilerplate statement that
“[d]efendants knew or should have known that this policy would lead to serious
injury,” Docket No. 66 at 29, ¶ 237, there are no facts in the complaint to support
this allegation. See Smith v. D.C., 674 F. Supp. 2d 209, 212 (D.D.C. 2009)
(dismissing case where plaintiff did “nothing more than recite the requisite causal
elements of custom or policy liability based on deliberate indifference – that is,
that the District ‘knew or should have known’ about possible constitutional
violations yet failed to act”). There is no allegation, for example, that corrections
16

officers, inmates, or others have complained about the policy of deferring to
medical personnel, and no allegation that the policy has led to other incidents of
inadequate treatment. Plaintiffs’ naked conclusion that the Weld County
defendants knew that the policy would lead to serious injury is not entitled to a
presumption of truth. Id. In the absence of factual allegations supporting the
Weld County defendants’ state of mind, plaintiffs’ fourth claim for relief is
deficient.
Accordingly, plaintiffs’ fourth claim for relief will be dismissed.
C. Plaintiffs’ Fifth Claim for Relief – Failure to Train or Supervise
Plaintiffs’ fifth claim seeks relief pursuant to § 1983 against the Weld
County defendants for failure to train or supervise their employees.2 Docket No.
66 at 29-32, ¶¶ 240-66. According to plaintiffs, the Weld County employees
should have interceded on behalf of Mr. Grubbs or “questioned the nurses’
decision to intake Mr. Grubbs” instead of sending him to the hospital. Id. at 29,
¶ 243. In addition, plaintiffs argue that the Weld County employees failed to
adhere to the suicide protocols by failing to make observations of Mr. Grubbs at
five minute intervals. Id. at 30, ¶¶ 245-53. Based on these policies, plaintiffs
argue that the Weld County defendants “knew or should have known that their
2

Plaintiffs allege that the defendant Board of County Commissioners
“exerts its influence over the Weld County Sheriff through the budget process.”
Docket No. 66 at 31, ¶ 258. This allegation alone is likely inadequate to justify
holding the Board of County Commissioners liable. Cf. Van Curen v. McClain
Cty. Bd. of Cty. Comm’rs, 4 F. App’x 554, 558 n.1 (10th Cir. 2001) (unpublished)
(noting the impropriety of holding a board of county commissioners liable for a
failure to train or supervise where the board did not have the power to hire and
fire sheriff employees).
17

employees would fail to use reasonable means to secure a detainee, safeguard a
detainee, protect a known suicidal detainee, and fail to provide necessary
medical care.” Id. at 31, ¶ 261.
Where the theory for recovery rests on a failure to train or supervise
employees, a 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 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 City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989));
Brown v. Gray, 227 F.3d 1278, 1291 (10th Cir. 2000) (applying the same
standard to inadequate supervision). Plaintiffs’ allegations do not meet this
standard.
Plaintiffs allege that the Weld County defendants failed to train their
corrections officers to overrule the recommendations of medical personnel.
Setting aside the fact that deference to medical personnel is likely appropriate,
there is no factual allegation demonstrating that the Weld County defendants
knew or should have known that this lack of training would lead to constitutional
violations. As discussed above, there is no evidence that the policy generated
complaints or has led to other incidents of inadequate medical treatment. See
Smith, 674 F. Supp. 2d at 212.
As to the failure to train employees to follow suicide protocols, there is no
allegation that the Weld County defendants were aware of previous failures to
adhere to those protocols. Plaintiffs’ claim cannot be supported only by the
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events surrounding the death of Mr. Grubbs. See Jenkins, 81 F.3d at 994 (“In
the case where a plaintiff seeks to impose municipal liability on the basis of a
single incident, the plaintiff must show 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.”) (citation omitted). Moreover, there
is no allegation that the Weld County employees did not receive training with
respect to the suicide protocols at issue. See Van Curen v. McClain Cty. Bd. of
Cty. Comm’rs, 4 F. App’x 554, 557 (10th Cir. 2001) (unpublished) (noting the
propriety of summary judgment where evidence showed that jailers were
required to review training materials and obtain relevant certifications).
Plaintiffs fail to allege any facts suggesting that the Weld County
defendants were deliberately indifferent to an obvious risk likely to lead to a
constitutional violation. The Court finds that plaintiffs’ fifth claim for relief is
deficient.

D. Plaintiffs’ Sixth Claim for Relief – Negligence
Defendant Hernandez moves to dismiss plaintiffs’ sixth claim for relief,
which alleges that she was negligent in her treatment of Mr. Grubbs. Docket No.
78 at 6-9. To support a claim for negligence against a professional, a plaintiff
must allege “(1) the defendant owed a legal duty to the plaintiff; (2) the defendant
breached that duty; and (3) the breach of duty caused the harm resulting in the
damages alleged.” Settle v. Basinger, 2013 WL 781110, at *7 (Colo. App. Feb.
28, 2013) (citation omitted).
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The amended complaint alleges that defendant Hernandez “owed Mr.
Grubbs the basic right to have adequate health care and not deprive him of
necessary care.” Docket No. 66 at 33, ¶ 269. The amended complaint also
states that “Defendant Hernandez is an extension of the physician and the
patient-physician relationship pursuant to American Medical Association
standards” and that she “assumed a doctor-patient relationship between herself
and Barton Grubbs.” Id., ¶¶ 274, 276. With respect to allegations of negligence,
the amended complaint enumerates multiple ways in which defendant Hernandez
was purportedly negligent without reference to a doctor-patient relationship:
defendant Hernandez’s “patient care decisions in her treatment of Mr. Grubbs
were willfully and/or negligently acted in a manner inconsistent with the health or
safety of Mr. Grubbs”; “Defendant Hernandez was negligent in making incorrect
entries on the patient record of Mr. Grubbs”; “Defendant Hernandez was
negligent in treating Barton Grubbs in that she did not do what a reasonable,
ordinary nurse would do treating the decedent and thus her conduct fell below
the standard of care required of her.” Id. at 33-34, ¶¶ 278, 280, 283.
Defendant Hernandez argues that plaintiffs have failed to identify a duty of
care that she owed to Mr. Grubbs and, in the alternative, that the duty alleged is
not identical to the duty that was allegedly breached. Docket No. 78 at 7-8.
However, defendant Hernandez does not dispute that she owed a duty to Mr.
Grubbs. Docket No. 78 at 7 (“CCS Defendants admit that Nurse Hernandez is ‘a
licensed practical nurse’ as Plaintiffs allege. The duty of a nurse in Colorado is to
act as a reasonably careful nurse would act, or refrain from acting as a
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reasonably careful nurse would not.”) (citations omitted). Instead, defendants
argue that, because plaintiffs allege that defendant Hernandez owed the duty of
a physician, the sixth claim must fail. Id. at 8.
As noted above, the complaint alleges that defendant Hernandez owed
Mr. Grubbs a duty to provide “adequate health care” and “necessary care.”
Docket No. 66 at 33, ¶ 269. According to plaintiffs, defendant Hernandez was
negligent because she “did not do what a reasonable, ordinary nurse would do.”
Id. at 34, ¶ 283. The allegations of negligence in the amended complaint are not
limited to a doctor-physician relationship and instead provide that defendant
Hernandez’s conduct was negligent in light of her duty of care as a nurse.
Accordingly, the Court finds that plaintiffs adequately allege that defendant
Hernandez owed a duty and breached that corresponding duty. Dismissal of
plaintiffs’ sixth claim for relief is not warranted.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Weld County Sheriff’s Office and the Board of County
Commissioners of the County of Weld’s Motion to Dismiss the Third, Fourth and
Fifth Claims for Relief of Plaintiffs’ First Amended Complaint and Jury Demand
[Docket No. 77] is granted. It is further
ORDERED that Defendants Correct Care Solutions, LLC and Christin
Hernandez’s Partial Motion to Dismiss [Docket No. 78] is granted in part and
denied in part. It is further

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ORDERED that plaintiffs’ third claim for relief is dismissed as to
defendants the Weld County Sheriff’s Office, the Board of County
Commissioners of the County of Weld, and Correct Care Solutions, LLC. It is
further
ORDERED that plaintiffs’ fourth and fifth claims for relief are dismissed.

DATED March 8, 2017.
BY THE COURT:

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

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