Frey v. Reams et al

Filing 108

ORDER granting in part and denying in part 80 Officer Reams's and Ms. Kroll's Rule 12(b)(6) motion. Granting in part and denying in part 79 Correct Care's and Dr. Geppert's Rule 12(b)(6) motion. Denying as moot 78 Officers Tharp and Doney's Motion to Dismiss Claim Three, by Judge Lewis T. Babcock on 1/29/2018. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 1:17-cv-00669-LTB-MJW
JAY ALLEN FREY
v.

Plaintiff,

STEVE REAMS, in his official capacity as Sheriff of Weld County;
NANCY KROLL, in her official capacity as Director of Inmate Services for Weld
County Jail;
CORRECT CARE SOLUTIONS LLC, medical provider for Weld County Jail;
DR. MARGO GEPPERT, individually and in her official capacity as employee or
contractor for Correct Care Solutions;
GREG THARP, individually and in his official capacity as police officer for the City
of Greeley;
WES DONEY, individually and in his official capacity as police officer for the City of
Greeley.
Defendants.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
This civil rights case is before the Court on three different motions to dismiss.
First, Defendants Steve Reams and Nancy Kroll move to dismiss the third amended
complaint under Federal Rule of Civil Procedure 12(b)(6), arguing it is conclusory,
deficient, and partially barred by qualified immunity. (ECF No. 80.) Second,
Defendants Correct Care Solutions and Margo Geppert move to dismiss the third
amended complaint against them under Rule 12(b)(6), arguing it does not state a
claim for relief. (ECF No. 79.) Third, Defendants Greg Tharp and Wes Doney move
to dismiss the negligence claim against them, claim three. (ECF No. 78.)

However, after Officers Tharp and Doney filed their Rule 12(b)(6) motion,
Plaintiff Jay Frey sought to voluntarily dismiss them from claim three (ECF No.
97), and I entered an order dismissing the officers from that claim (ECF No. 99),
mooting the officers’ pending Rule 12(b)(6) motion.
As for the other two remaining motions to dismiss, I conclude that Mr. Frey
has not sufficiently pleaded a claim for deliberate indifference to his medical needs
under 42 U.S.C. § 1983, and I dismiss claim two in its entirety. Nevertheless,
because Mr. Frey’s § 1983 claim for excessive force (claim one) remains pending, I
will continue to exercise supplemental jurisdiction over his state-law negligence
claim (claim three).
Thus, I GRANT IN PART and DENY IN PART Officer Reams’s and Ms.
Kroll’s Rule 12(b)(6) motion (ECF No. 80), and I similarly GRANT IN PART and
DENY IN PART Correct Care’s and Dr. Geppert’s Rule 12(b)(6) motion (ECF No
79). In light of the order dismissing Officers Tharp and Doney from claim three
(ECF No. 99), their motion to dismiss claim three (ECF No. 78) is DENIED AS
MOOT.
I. BACKGROUND
Unless otherwise noted, the allegations below are taken from the third
amended complaint (3rd Am. Compl., ECF No. 74-1), and described in the light
most favorable to Mr. Frey.
Mr. Frey tried to evade arrest for a traffic offense by fleeing, on foot, from
police in Greeley, Colorado. Greeley Police Officer Tharp eventually found Mr. Frey
in a residential area and handcuffed him. Mr. Frey did not resist once Officer Tharp
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contacted him, nor did he threaten Officer Tharp or try to flee. Nevertheless, Officer
Tharp punched and kicked Mr. Frey, struck him with instruments, and slammed
his head into a concrete driveway while he was handcuffed. Greeley Police Officer
Doney either participated in the beating or did nothing to stop it.
Because of the injuries he suffered during the arrest, an ambulance
transported Mr. Frey to a hospital for treatment after his arrest. The next day, he
was transferred from the hospital to the Weld County Jail.
Soon after arriving at the jail, Mr. Frey requested medical treatment,
complaining about losing vision in his right eye and body pain. He continued to
complain to jail officials, particularly about his vision problems, from March
through August 2015. Dr. Margo Geppert, through her employer Correct Care
Solutions, directed medical services at the jail. She personally examined Mr. Frey.
Nancy Kroll, the Director of Inmate Services at the jail, responded to several of Mr.
Frey’s requests, usually denying them.
Despite his persistent demands, the medical care he received while
incarcerated was insufficient. He ultimately lost vision in his right eye because of a
detached or torn retina. For any chance to repair the damage, Mr. Frey needed
appropriate medical intervention almost immediately after the injury, something
the jail did not provide. In addition, jail staff failed to comply with outside doctors’
orders regarding Mr. Frey’s treatment after Mr. Frey had surgery on his right eye.
The severe injury to his right eye means he is more likely to go completely blind
because he will overuse his left eye.

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Mr. Frey also suffered from other injuries from the arrest, including an
abdominal hernia, a right shoulder injury, and bruised or broken ribs. Aside from a
shoulder X-ray and some painkillers, Mr. Frey received no treatment for the
injuries while at the jail. After his release, he needed surgery for the hernia. His
arm movement is still restricted because of his shoulder injury.
Mr. Frey asserts two claims for civil rights violations under 42 U.S.C. § 1983
and a state law negligence claim based on his arrest and the medical treatment he
received afterward. In claim one, he alleges that Officers Tharp and Doney used
excessive force during his arrest in violation of § 1983. In claim two, he alleges that
Sheriff Reams, Ms. Kroll, Correct Care Solutions, and Dr. Geppert were deliberately
indifferent to his medical needs, also in violation of § 1983. In claim three, he
alleges that all defendants were negligent during his arrest, custody, and care and
brings a claim under Colorado state law.
Sheriff Reams and Ms. Kroll have moved to dismiss the deliberate
indifference § 1983 claim against them under Federal Rule of Civil Procedure
12(b)(6), as have Correct Care Solutions and Dr. Geppert. (ECF Nos. 79-80.) Sheriff
Reams, Ms. Kroll, Correct Care Solutions and Dr. Geppert also ask this Court to
decline to exercise supplemental jurisdiction over the state law negligence claim if
the Court grants their motions to dismiss the deliberate indifference § 1983 claim.
(ECF Nos. 79-80.)
Officers Tharp and Doney moved for partial dismissal, asking this court to
dismiss the negligence claim against them, claim three. (ECF No. 78.) But after

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Officers Tharp and Doney filed their motion, Plaintiff Jay Frey sought to
voluntarily dismiss them from claim three (ECF No. 97), and I entered an order
dismissing the officers from that claim and therefore mooting Officers Tharp and
Doney’s pending motion to dismiss claim three. (ECF No. 99.)
I now turn to the two remaining motions to dismiss. (ECF Nos. 79-80.)
II. RULE 12(b)(6) STANDARD
Under Rule 12(b)(6), “[d]ismissal is appropriate only if the complaint, viewed
in the light most favorable to plaintiff, lacks enough facts to state a claim to relief
that is plausible on its face.” United States ex rel. Conner v. Salina Regional Health

Center, 543 F.3d 1211, 1217 (10th Cir. 2008) (quotation omitted). A claim is
plausible on its face “when the plaintiff pleads factual content that enables the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.
Although plaintiffs need not provide “detailed factual allegations” to survive
a motion to dismiss, they must provide more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555;

see also Ashcroft, 556 U.S. at 678 (explaining that a complaint will not suffice if it
offers “naked assertions devoid of further factual enhancement” (quotations and
alterations omitted)). Furthermore, conclusory allegations are “not entitled to be
assumed true.” Ashcroft, 556 U.S. at 679.
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A court may not dismiss a complaint merely because it appears unlikely or
improbable that a plaintiff can prove the facts alleged or ultimately prevail on the
merits. Twombly, 550 U.S. at 556. Instead, a court must ask whether the facts
alleged raise a reasonable expectation that discovery will reveal evidence of the
necessary elements. Id. If, in view of the facts alleged, it can be reasonably
conceived that the plaintiff could establish a case that would entitle him to relief,
the motion to dismiss should not be granted. Id. at 563 n.8.
Granting a motion to dismiss is a “harsh remedy” that should be “cautiously
studied” to “effectuate the liberal rules of pleading” and “protect the interests of
justice.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(quotations omitted).
III. ANALYSIS
A.

Claim Two—Deliberate Indifference
In Claim Two, Mr. Frey alleges that Sheriff Reams, Ms. Kroll, Correct Care

Solutions, and Dr. Geppert were deliberately indifferent to his medical needs, in
violation of Eighth and Fourteenth Amendments.
A prison official’s deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment’s prohibition against cruel and unusual
punishment and states a cause of action under § 1983. See Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). Pretrial detainees are protected under the Due Process
Clause rather than the Eighth Amendment. Lopez v. LeMaster, 172 F.3d 756, 759,
n.2 (10th Cir. 1999). However, the analysis under the Due Process Clause is the
same as under the Eighth Amendment. See id.
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If prison or jail officials prevent or deny an inmate from receiving treatment,
or if a medical professional fails to treat an inmate properly, that can constitute
deliberate indifference. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
Either way, to prove deliberate indifference to serious medical needs, a plaintiff
must satisfy objective and subjective components. Callahan v. Poppell, 471 F.3d
1155, 1159 (10th Cir. 2006). “The objective component of the test is met if the harm
suffered is ‘sufficiently serious’ to implicate the Cruel and Unusual Punishment
Clause.” Id. (quoting Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006)).
The subjective component requires the plaintiff to show that the defendant
disregarded a known risk of substantial harm by failing to take reasonable
measures to abate it, id., and requires a “culpable state of mind,” Mata v. Saiz, 427
F.3d 745, 751 (10th Cir. 2005).
None of the defendants dispute that Mr. Frey’s loss of vision in his right eye
is sufficiently serious to meet the objective component of the inquiry. Rather, they
dispute whether the third amended complaint sufficiently alleges other aspects of
the claim. While their arguments are not identical, they generally fall into the same
category: Basically, the defendants argue that the allegations in the complaint do
not sufficiently allege that these named defendants participated in the challenged
activity. (See generally ECF Nos. 79-80.) I address each defendant’s argument in
turn.
1.

Dr. Geppart in her Personal Capacity

Dr. Geppart argues that the complaint does not sufficiently allege that she
personally acted with deliberate indifference to Mr. Frey’s medical needs, and thus
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does not satisfy the federal pleading standards described in Twombly, 550 U.S. at
555, and its progeny. (ECF No. 79.) Even though Dr. Geppart works for a Correct
Care, a private company, she does not dispute that she was acting under color of
state law for purposes of § 1983 liability. See generally ECF No. 79; see also West v.

Atkins, 487 U.S. 42, 54 (1988) (holding that a physician employed by North
Carolina to provide medical services to state prison inmates “acted under color of
state law for purposes of § 1983 when undertaking his duties in treating petitioner’s
injury”).
The allegations in the third amended complaint show that Dr. Geppert
treated Mr. Frey, albeit unsuccessfully. According to the third amended complaint,
Dr. Geppert “personally directed much of Frey’s care” and was aware he had no
vision in his right eye. (3rd Am. Compl. ¶ 27, ECF No. 74-1.) Mr. Frey also
complained to Dr. Geppert about his vision and pain levels several times. (Id. ¶ 31.)
Dr. Geppert prescribed him eye drops to address pressure that could be causing the
loss of vision in his eye. (Id. ¶ 28.) She authorized an optometry visit in March, soon
after he first arrived at the jail, but the visit didn’t happen until June, in part
because it was initially cancelled because Mr. Frey could not pay for it. (Id. ¶¶ 29,
34, 43.) According to the complaint, Dr. Geppert essentially treated Mr. Frey for
glaucoma (a pre-existing condition that had not caused significant problems in the
past), instead of treating him for the trauma from his arrest. (Id. ¶ 32.)
Mr. Frey also alleges that after he finally had surgery on his eye, various
(largely unnamed) jail staff members failed to follow his doctor’s instructions that

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he be placed in medical unit and lie face down for 50 minutes of every hour. (Id. ¶¶
50-53.) But none of those allegations implicate anything Dr. Geppart did or failed to
do.
Even viewed in the light most favorable to Mr. Frey, these allegations do not
sufficiently allege that Dr. Geppart was deliberately indifferent to Mr. Frey’s
medical needs with respect to his right eye. At best, the allegations may show that
Dr. Geppart’s treatment was unreasonable or even negligent, but they don’t show
deliberate indifference. Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003)
(“Deliberate indifference requires more than a showing of simple or heightened
negligence.”); Sealock, 218 F.3d 1205 (affirming grant of summary judgment in
favor of nurse where “[a]t worst, she misdiagnosed appellant and failed to pass on
information”). Even assuming Dr. Geppart should have known that treating Mr.
Frey for glaucoma was insufficient, failing to “alleviate a potential risk that should
have been perceived, but was not, does not satisfy the deliberate indifference
standard of the Eighth Amendment.” Verdecia, 327 F.3d at 1177. None of the
allegations in the complaint suggest that Dr. Geppart knew that her course of
treatment was likely to cause Mr. Frey harm. To the contrary, she provided him
treatment and immediately recommended he see a specialist.
The facts in the complaint must “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. A complaint cannot merely “le[ave] open the
possibility that a plaintiff might later establish some set of undisclosed facts to
support recovery.” Id. at 561 (quotation marks and alteration omitted). With respect

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to Dr. Geppart, the facts alleged fail to meet even this forgiving standard. Thus, I
dismiss claim two against Dr. Geppart in her personal capacity.
2.

Sheriff Reams in his Personal Capacity

Sheriff Reams argues that the third amended complaint fails to sufficiently
allege that he personally participated in any of the challenged conduct. Indeed, the
third amended complaint’s allegations with respect to Sheriff Reams only refer to
his supervisory role, and only then in a fairly conclusory way. It alleges that Sheriff
Reams is “ultimately responsible” for the operation of the jail, that he was
responsible for hiring, firing, training, and discipline, and that there was policy,
custom or practice, developed under Sheriff Reams, to treat medical matters with
deliberate indifference. (3rd Am. Compl. ¶¶ 7, 26, ECF No. 74-1.) These allegations
fall short of implicating Sheriff Reams in his personal capacity. See Mitchell v.

Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (affirming dismissal of § 1983 claim
as a matter of law where plaintiff failed to provide any evidence to link supervisor
to the challenged conduct and observing that “supervisor status by itself is
insufficient to support liability”).
Because I agree the allegations in the complaint are insufficient to state a
claim for deliberate indifference against Sheriff Reams, I need not reach his
alternative grounds for dismissal, including his argument that he is protected by
qualified immunity. I dismiss claim two against him in his personal capacity.
3.

Nancy Kroll in her Personal Capacity

Ms. Kroll argues that the third amended complaint fails to sufficiently allege
that she personally participated in any of the challenged conduct. The third
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amended complaint alleges that Ms. Kroll responded to some of his requests for
medical help and often denied them. (Am. Compl. ¶ 36, ECF No. 71-4.) It also
alleges that Ms. Kroll told him that the treatment Dr. Geppert prescribed for his
glaucoma was “the proper and sufficient treatment for his loss of vision.” (Id.)
Simply alleging that Ms. Kroll denied some of his requests and told him that
Dr. Geppert’s treatment was appropriate does not demonstrate deliberate
indifference. While it is plain now that Dr. Geppert’s treatment course was
insufficient, it is also plain that Mr. Frey received medical treatment while he was
in jail. Ms. Kroll did not deny him any treatment—she just deferred his treatment
course to Dr. Geppert’s professional judgment.
The other allegations in the complaint do not sufficiently differentiate Ms.
Kroll from other unnamed actors. Perhaps the most disturbing allegations—and
those that, if true, would likely violate the Eighth Amendment—relate to what
happened after Mr. Frey’s surgery, when jail staff ignored his doctor’s post-surgery
treatment instructions. See Gamble, 429 U.S. 97, 105 (1976) (holding that
“intentionally interfering with the treatment once prescribed” violates the Eighth
Amendment). But these allegations fail to describe anything that Ms. Kroll herself
did, and they therefore are insufficient to state a claim against her. See Brown v.

Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011) (“[I]t is particularly important in a §
1983 case brought against a number of government actors sued in their individual
capacity that the complaint make clear exactly who is alleged to have done what to

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whom as distinguished from collective allegations.” (quotation and alterations
omitted)).
I thus dismiss this claim against Ms. Kroll in her personal capacity as
insufficiently pleaded, and I decline to reach any of her alternative arguments for
dismissal.
4.

Correct Care Solutions and Dr. Geppart in her Official Capacity

Mr. Frey also brings a claim for deliberate indifference to his medical needs
against Correct Care Solutions and Dr. Geppart in her official capacity., Correct
Care does not dispute that it was acting under color of state law for purposes of §
1983 liability. See generally ECF No. 79. I accordingly analyze this claim as if
Correct Care were a state entity. And because a claim against Dr. Geppart in her
official capacity is the equivalent of a claim against Correct Care, my analysis
below, which only refers to Correct Care, applies equally to her in her official
capacity. See Kentucky. v. Graham, 473 U.S. 159, 166 (1985) (explaining that
official-capacity suits “generally represent only another way of pleading an action
against an entity of which an officer is an agent”) (quoting Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658, 690, n.55 (1978)).
Correct Care is not liable under the doctrine of respondeat superior in a
§ 1983 suit. Monell, 436 U.S. at 690-91. But Correct Care could be liable if Mr. Frey
sufficiently alleges a municipal liability theory. To establish municipal liability
under § 1983, a plaintiff must demonstrate: (1) an underlying constitutional
violation; (2) that a municipal policy or custom exists; and (3) that there is a direct

12

causal link between the policy or custom and the injury alleged. Graves v. Thomas,
450 F.3d 1215, 1218 (10th Cir. 2006).
Correct Care does not dispute that Mr. Frey suffered a constitutional
violation, but it argues that the deliberate indifference claim against it should be
dismissed because Mr. Frey has not sufficiently pleaded that Correct Care’s policy
or custom caused the deprivation. The Tenth Circuit has described several types of
actions which may constitute a municipal policy or custom:
A municipal policy or custom may take the form of (1) a formal
regulation or policy statement; (2) an informal custom amounting 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) (quotations
and alteration omitted).
The third amended complaint is threadbare when it comes to allegations
about a policy or custom, containing only conclusory language—which I need not
accept as true—that Correct Care “has established a policy, custom, or practice of
being deliberately indifferent in providing medical care to the inmates, and in
failing to train or monitor the staff it employs and/or supervises in providing such
care.” (Am. Compl. ¶ 59, ECF No. 74-1.) It describes other instances where Correct
Care failed to provide adequate medical care, but none of these instances were at
the Weld County Jail. (Id. ¶¶ 60-64.) Describing a few instances of inadequate care
13

in several different facilities does not establish that Correct Care had a custom or
policy of failing to provide adequate medical care.
Perhaps tacitly recognizing the deficiencies in his allegations, Mr. Frey
argues that I should allow the suit to proceed on naked allegations because, without
discovery, Mr. Frey does not have access to information that would support the
claim. Adequately alleging municipal liability under § 1983 can certainly be
challenging, but the pleading requirements under Twombly are not negotiable. Mr.
Frey has not pleaded enough facts to push his claim against Correct Care into the
plausible realm, so I must dismiss it. See Twombly, 550 U.S. at 557 n.5.
5.

Sheriff Reams and Ms. Kroll in their Official Capacities

Mr. Frey also brings a claim for deliberate indifference to his medical needs
against Sheriff Reams and Ms. Kroll in their official capacities. As a threshold
matter, I note that a suit against Ms. Kroll in her official capacity is duplicative of a
suit against Sheriff Reams in his official capacity. An official capacity suit is a way
of pleading an action against an agent or officer’s employer. See Graham, 473 U.S.
at 166. For both Sheriff Reams and Ms. Kroll, that entity is the Weld County
Sheriff’s office.
The claim against Sheriff Reams and Ms. Kroll in their official capacities is
analyzed under the same Monell framework as the claim against Correct Care.
Once again, Mr. Frey provides only conclusory allegations of a municipal policy or
custom, which fall short of the detail required to sufficiently plead a claim for
municipal liability. See Twombly, 550 U.S. at 557 n.5. I accordingly dismiss this
claim against Sheriff Reams and Ms. Kroll in their official capacities.
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B.

Claim Three—Negligence
In Claim Three, Mr. Frey alleges that Sheriff Reams, Ms. Kroll, Correct Care

Solutions, and Dr. Geppert were negligent during his arrest, custody, and care. The
defendants ask me to decline to exercise supplemental jurisdiction over this claim
because I dismissed the other claim against them. The only federal claim still
pending in this case is a § 1983 excessive force claim against Officers Tharp and
Doney.
Supplemental jurisdiction is governed by 28 U.S.C. § 1367. Section 1367(c)(3)
provides that a district court may decline to exercise supplemental jurisdiction over
a state-law claim related to the federal claims in an action if the court “has
dismissed all claims over which it has original jurisdiction.” The defendants’
argument for dismissal overlooks the fact that the § 1983 claim for excessive force is
still pending against their co-defendants. See Jarzyna v. Home Properties, L.P., 763
F. Supp. 2d 742, 753 (E.D. Pa. 2011) (“Even though the Court dismissed the one
federal claim brought against Defendant L.P., the pendency of federal claims
against co-defendant FCO permits jurisdiction.”). In light of the pending § 1983
claim against Officers Tharp and Doney, the exercise of supplemental jurisdiction
over the negligence claim is warranted. See Jarzyna, 763 F. Supp. 2d at 753; § 1367.
IV. CONCLUSION
Mr. Frey has not sufficiently pleaded a claim for § 1983 deliberate
indifference claim (claim two) against any of the defendants. However, his § 1983
excessive force claim (claim one) remains pending against Officers Tharp and
Doney, so I will continue to exercise supplemental jurisdiction over his state-law
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negligence claim (claim three) against Sheriff Reams, Ms. Kroll, Correct Care
Solutions, and Dr. Geppert.
I accordingly rule as follows:
I GRANT IN PART and DENY IN PART Officer Reams’s and Ms. Kroll’s
Rule 12(b)(6) motion (ECF No. 80). Claim two is dismissed against them, but claim
three is not.
I similarly GRANT IN PART and DENY IN PART Correct Care’s and Dr.
Geppert’s Rule 12(b)(6) motion (ECF No 79). Claim two is dismissed against them,
but claim three is not.
In light of the prior order dismissing Officers Tharp and Doney from claim
three, their motion to dismiss claim three (ECF No. 78) is DENIED AS MOOT.

Dated: January

29 , 2018 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK

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