Torres v. Colorado Department of Human Services, et al

Filing 34

ORDER granting in part and denying in part 23 Motion to Dismiss First Amended Complaint. Scheduling Conference set for 4/4/2018 10:00 AM in Suite 1000 (Colorado Springs) before Magistrate Judge Kathleen M. Tafoya. The parties shall file their proposed Scheduling Order no later than 3/28/2018, by Magistrate Judge Kathleen M. Tafoya on 3/13/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–00771–KMT
T.T., a minor, by and through his mother and Next Friend, WENDY KANOHO
TORRES,
Plaintiff,
v.
COLORADO DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH
CORRECTIONS,
JAMIE NUSS, Director of Gilliam Youth Services Center, in her individual capacity,
VERA DOMINGUEZ, Assistant Director of Gilliam Youth Services Center, in her
individual capacity,
DAISY SIERRA, in her individual capacity,
CRYSTAL GONZALEZ, in her individual capacity,
JOHN DOE, in his individual capacity,
MARISA VANDERPUIL, in her individual capacity,
GORDON DUVALL, in his individual capacity, and
SHARON PENNA, R.N., in her individual capacity,
Defendants.

ORDER

This case comes before the court on Defendants Colorado Department of Human
Services, Division of Youth Corrections, Nuss, Dominguez, Sierra, Gonzalez,
Vanderpuil, Duvall, and Penna’s “Motion to Dismiss First Amended Complaint” (Doc.
No. 23 [Mot.], filed May 31, 2017). Plaintiff filed a response on June 21, 2017 (Doc. No.
26 [Resp.]), and Defendants filed a reply on June 30, 2017 (Doc. No. 27 [Reply]).

STATEMENT OF THE CASE
Plaintiff T.T., a minor, proceeding by and through his mother and next friend,
filed this case pursuant to 42 U.S.C. § 1983, asserting claims for Failure to Provide
Medical Care and Treatment, Failure to Protect, and Failure to Train and Supervise. (See
Doc. No. 18 [Am. Compl.], filed May 17. 2017.) Plaintiff also asserts claims for
negligence and respondeat superior. (See id.) Plaintiff seeks money damages. (Id. at
16.)
During the time relevant to Plaintiff’s claims, he was a fourteen-year-old who was
a resident of Gilliam Youth Services Center (“Gilliam”). (Id., ¶ 6.) Gilliam is juvenile
detention facility located at 2844 Downing Street in Denver, Colorado, and is
administrated by the Division of Youth Corrections and the Colorado Department of
Human Services. (Id., ¶ 9.) Gilliam incarcerates offenders who are ten to eighteen years
old for crimes committed before their eighteenth birthdays. (Id.)
T.T. was admitted to Gilliam on October 23, 2015, following arrest on suspicion
of third degree assault. (Id., ¶ 16.) Following his admission to Gilliam, T.T. underwent
one or more intake screenings performed by Gilliam personnel, during which he reported
that “kids just tend to pick on me a lot.” (Id., ¶ 17.) Following evaluation, T.T. was
identified as having impaired hearing, being “vulnerable to victimization,” and as being
on Zoloft. (Id.)
During his period of residence at Gilliam, T.T. repeatedly asked Gilliam staff
members for time away from other residents. (Id., ¶ 18.) Plaintiff believes T.T. made
these requests because he was being targeted for verbal and physical abuse at the hands

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of other residents. (Id., ¶ 19.) Plaintiff alleges Gilliam personnel failed to investigate
further and failed to recognize that T.T. was in physical and emotional danger. (Id.)
On November 1, 2015, T.T. was involved in a physical altercation with another
resident. (Id., ¶ 20.) Plaintiff alleges that Gilliam personnel were aware of the altercation
and their persistent targeting of T.T. by other residents, yet they failed to provide T.T.
with additional protection or to isolate him from other residents who might subject him to
physical or emotional harm. (Id.)
On November 6, 2015, Plaintiff was involved in another altercation, during which
Plaintiff was slammed on the ground on his back and struck multiple times on the left
side of his head. (Id., ¶ 22.) After the altercation, T.T. was taken to the medical ward
where he was observed by Defendant Penna to have blood in the helix of his left ear.
(Id., ¶ 25.) T.T. informed Defendant Penna that he was nauseated and not feeling well.
(Id., ¶ 26.) Plaintiff alleges Defendant Penna did not take any steps to evaluate T.T.’s
neurological condition. (Id.) Plaintiff alleges T.T. developed a severe headache, but the
defendants ignored and belittled his complaints and attempted to return him to his room.
(Id., ¶ 30.) Defendant Penna authored a note stating the following:
Resident observed in clinic for 30 minutes. No [nausea/vomiting] while in
clinic. Left ear cleaned with half-strength H202 and dressed with
Bacitracin. Resident given 600 mg Ibuprofen for pain. [Returned to cell]
pm.
(Id., ¶ 29.) Plaintiff alleges Defendant Penna authored an addendum to her earlier report
in which she contradicted her earlier note, indicating she summoned paramedics after
T.T. “vomited 3 or 4 times,” “began complaining of head pain” and started “flailing

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around the office” approximately 40 minutes after he had arrived in the medical ward.
(Id., ¶ 31.)
T.T. was emergently transported to Denver Health Medical Center, where he “had
a blown left pupil, decerebrate posturing and a Glasgow Coma Score of 6 or 7/15.” (Id.,
¶ 33.) T.T. was intubated, given medications, and diagnosed with a severe, ruptured
subdural hematoma. (Id.) T.T. underwent a craniectomy and epidural/subdural
hematoma evaculation on November 6, 2015, followed by craniooplasty on November
16, 2015. (Id., ¶ 34.) T.T. spent twelve days at Denver Health Medical Center before he
was discharged. (Id., ¶ 35.) He then underwent months of in-patient rehabilitation and
physical therapy at The Children’s Hospital to address severe cognitive, psychological,
and motor deficits he experienced as a result of a traumatic brain injury. (Id.)
STANDARDS OF REVIEW
A.

Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a

complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a plaintiff s case. Rather, it calls
for a determination that the court lacks authority to adjudicate the matter, attacking the
existence of jurisdiction rather than the allegations of the complaint. See Castaneda v.
INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when specifically authorized to do so).
The burden of establishing subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A

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court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in
which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218
(10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.
2004) (noting that dismissals for lack of jurisdiction should be without prejudice because
a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction
may not render).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of
fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule
12(b)(1) motion, however, the Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume the truthfulness of the
complaint s “factual allegations . . . [and] has wide discretion to allow affidavits, other
documents, and [may even hold] a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
B.

Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to

dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6) (2007). “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

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plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and
quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s
factual allegations are true and construes them in the light most favorable to the
plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court
identifies “the allegations in the complaint that are not entitled to the assumption of
truth,” that is, those allegations which are legal conclusion, bare assertions, or merely
conclusory. Id. at 679–81. Second, the Court considers the factual allegations “to
determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without
supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259,
1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ” Id. (citation omitted).
ANALYSIS
Defendants move to dismiss Plaintiff’s negligence claim as barred by the
Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24–10–101 et seq. (“CGIA”).
(Mot. at 6–7.) Defendants move to dismiss Plaintiff’s constitutional claims as barred by
qualified immunity. (Id. at 7–14.)
A.

CGIA
Defendants argue that Plaintiff has not satisfied CGIA’s notice provisions, and

that such failure is fatal Plaintiff’s negligence claim. (Id. at 6–7.)
The CGIA “requires a person claiming to have suffered an injury by a public
entity to file written notice within 180 days after the discovery of the injury, regardless of
whether the person knew all of the elements of the claim.” Trinity Broad. of Denver, Inc.
v. City of Westminster, 848 P.2d 916, 923 (Colo. 1993). The notice requirement is a
jurisdictional prerequisite to a tort action under the CGIA, and “failure of compliance
shall forever bar any such action.” Colo. Rev. Stat. § 24–10–109(1). Nevertheless, the
Colorado Supreme Court has held that the term “compliance” in § 24–10–109(1) is not to
be interpreted as “strict compliance” but rather as “substantial compliance”. Woodsmall

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v. Reg’l Transp. Dist., 800 P.2d 63, 69 (Colo. 1990); see also City & Cnty. of Denver v.
Crandall, 161 P.3d 627, 632 n.5 (Colo. 2007) (contrasting the notice’s timeliness
requirement, which is subject to strict compliance, with “the adequacy of the notice’s
contents [, which] is subject to a substantial compliance standard”).
To substantially comply with the notice requirement, a claimant is required “to
file written notice with the public entity and to make a good faith effort to include within
the notice, to the extent the claimant is reasonably able to do so, each item of information
listed in section 24–10–109(2).” Woodsmall, 800 P.2d at 69.
The notice must contain
(a) The name and address of the claimant and the name and address of his
attorney, if any; (b) A concise statement of the factual basis of the claim,
including the date, time, place, and circumstances of the act, omission, or
event complained of; (c) The name and address of any public employee
involved, if known; (d) A concise statement of the nature and the extent of
the injury claimed to have been suffered; (e) A statement of the amount of
monetary damages that is being requested.
§ 24–10–109(2). The statement of the factual basis of the claim “must put the public
entity on notice of the theory on which a forthcoming lawsuit will rest.” Miller v.
Mountain Valley Ambulance Serv., Inc., 694 P.2d 362, 364 (Colo. App. 1984). However,
“[t]he CGIA does not require the notice of legal grounds or claims for relief.” Neiberger
v. Hawkins, 70 F. Supp. 2d 1177, 1195 (D. Colo. 1999), aff’d, 6 F. App’x 683 (10th Cir.
2001).
Defendants argue that Plaintiff’s notice identifies the Division of Youth
Corrections and Penna and only identifies the alleged failure to treat T.T. on November 6,
2015. (Mot. at 7.) Defendants contend that, as such, Plaintiff’s notice does not comply

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with § 24–10–109(2). (Id.) Plaintiff counters that the notice contained each of the
requirements set forth in the statute and that the notice
was more than sufficient to alert the Colorado Department of Human
Services, Director of Youth Corrections (“CDHS”) and its employees that
T.T. sustained serious injuries while in CDHS’s care, that the
circumstances surrounding the injuries were going to be the subject of a
claim that could lead to litigation, and that CDHS would therefore need to
conduct an appropriate investigation of the facts and circumstances of the
incident.
(Resp. at 7.)
Plaintiff alleges in the First Amended Complaint that all of the defendants were
negligent by
failing to protect T.T. from repeated attacks by other residents, failing to
inquire further or otherwise respond appropriately when T.T. asked to be
kept away from other residents, by failing to respond in a timely manner
when T.T. was attacked on November 6, 2015, and by failing to provide
appropriate medical care following the November 6, 2015 attack.
(Am. Compl., ¶ 73.) The notice provides the following description of the “Factual Basis
of the Claims”:
[T.T] (“Claimant”) suffered multiple injuries . . . after officials at [Gilliam]
exhibited deliberate indifference to [T.T.’s] emergent medical needs.
[T.T.] was assaulted by a fellow resident of Gilliam on or about November
6, 2015. The assault caused multiple injuries and rendered [T.T.] in need
of immediate, intensive medical care. Gilliam personnel escorted [T.T.] to
the medical center but, although [T.T.] had blood in his ear, staff failed to
adequately examine or monitor [T.T.] for signs of serious injury. After 40
minutes had elapsed, [T.T.] began vomiting and collapsed, necessitating
emergency transport to intensive care. He has suffered significant
cognitive impairments as a result of a severe brain hemorrhage that was not
appropriately discovered, diagnosed and timely treated by employees
and/or agents of Gilliam.
(Mot., Ex. B at 2.)

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Plaintiff’s allegation in the Amended Complaint that the defendants “fail[ed] to
provide appropriate medical care following the November 6, 2015 attack” (see Am.
Compl., ¶ 73) is akin to the allegation in the NOI that the “medical staff failed to
adequately examine or monitor [T.T.] for signs of serious injury” (see Mot., Ex. B at 2).
Thus, as to these allegations, the court finds the NOI substantially complied with the
CGIA notice requirements, which “permit[] the public entity to conduct an investigation
of the claim and abate a dangerous condition, to make fiscal arrangements for satisfaction
of potential liability and settle meritorious cases, and to prepare defenses if it views the
claim to be unmeritorious.” Crandall, 161 P.3d at 632 (citing City of Lafayette v.
Barrack, 847 P.2d 136, 139 (Colo. 1993)). See Bennett v. Mahan, No. 11–CV–01824–
MSK–KMT, 2012 WL 4127307, at *5 (D. Colo. Sept. 19, 2012) (holding notice of claim
asserting improper medical diagnosis and treatment substantially complied with CGIA
notice requirements where complaint alleged a variety of assertions falling within the
general rubric of improper medical diagnosis and treatment).
However, though Plaintiff’s NOI is directed at Defendant Penna and other
“employees and/or agents of Gilliam” who failed to “appropriately discover[ ],
diagnose[ ] and timely treat[ ] T.T.,” (see Mot., Ex. B at 2), the NOI specifically
identifies only Defendant Penna as being involved in the medical care provided to T.T. on
the date of the assault. (See id.) Moreover, according to the allegations in the Amended
Complaint, there is no basis to have asserted claims against any of the other defendants
for the alleged failures to provide adequate medical treatment to T.T. following the

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assault. (See Am. Compl. at ¶¶ 9–14 [identifying only Defendant Penna as being
involved in the medical care and treatment of T.T. following the assault].)
Additionally, Plaintiff’s notice fails to alert the defendants of any claims other
than claims related to a failure to discover, diagnose, and timely treat T.T. (See Mot., Ex.
B at 2.) Thus, the NOI did not “put the [defendants] on notice” of the theories of failure
to protect T.T. prior to the assault or failure to train and supervise, Miller, 694 P.2d at
364, and, as such, did not permit the defendants to conduct an investigation, correct the
condition, make fiscal arrangements, or to settle the claims against them, Crandall, 161
P.3d at 632.
Plaintiff argues, citing Woodsmall, that the defendants have not articulated any
prejudice they have suffered or could suffer as a result of the alleged deficiencies in the
notice. (Resp. at 7.) In determining whether there has been substantial compliance, a
court “may consider whether and to what extent the public entity has been adversely
affected in its ability to defend against the claim by reason of any omission or error in the
notice.” Woodsmall, 800 P.2d at 69. Thus, it is true that if a plaintiff makes an error in
the notice, the plaintiff can still satisfy the CGIA requirements if the error “does not
prejudice the public entity by adversely affecting its ability to defend against the claim.”
Villalpando v. Denver Health and Hosp. Auth., 181 P.3d 357, 362 (Colo. App. 2007).
Plaintiff contends that, given the two-week time period T.T. was at Gilliam, “any
investigation of the incident . . . would necessarily encompass T.T.’s entire tenure at
Gilliam.” (Id. at 7–8.) Given the limited scope of allegations provided by Plaintiff in the
NOI, the court disagrees that an investigation necessarily would have included anything

11

other than whether the medical care provided to T.T. following the assault was sufficient.
Moreover, any investigation, according to the allegations in the Amended Complaint,
would not have revealed that any defendants other than Defendant Penna were involved
in the medical care and treatment of T.T. following the attack.
Accordingly, Plaintiff’s negligence claim asserted against Defendants Nuss,
Domingeuz, Sierra, Gonzalez, and Duvall, and Plaintiff’s negligence claims related to the
defendants’ failure to protect T.T., failure to investigate T.T.’s requests to be kept away
from other residents, and failure to respond in a timely manner to the November 6, 2015,
attack are dismissed for failure to comply with the CGIA’s notice requirements.
B.

Eleventh Amendment Immunity
Plaintiff has named the Colorado Department of Human Services, Division of

Youth Corrections, as a defendant in this action. State agencies are entitled to Eleventh
Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d 1512,
1525 (10th Cir. 1988) (the immunity conferred by the Eleventh Amendment extends to
the state and its instrumentalities); Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250,
1256 (10th Cir. 2007) (recognizing that agency of the state is entitled to Eleventh
Amendment immunity). Congress did not abrogate Eleventh Amendment immunity
through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor has the CDHS
expressly waived its sovereign immunity. See Griess v. Colorado, 841 F.2d 1042, 1044–
45 (10th Cir. 1988). The Eleventh Amendment prohibits suit against a state entity,
regardless of the relief sought. See Higganbotham v. Okla. Transp. Comm’n, 328 F.3d

12

638, 644 (10th Cir. 2003); see also Hunt v. Colo. Dep’t of Corr., 271 F. App’x 778, 780–
81 (10th Cir. 2008).
Thus, Plaintiff’s claims against the Colorado Department of Human Services,
Division of Youth Corrections, are dismissed for lack of subject matter jurisdiction.
C.

Qualified Immunity
Plaintiff sues all of the defendants in their individual capacities. (See Am. Compl.

at 1.) Qualified immunity is an affirmative defense against § 1983 damage claims
available to public officials sued in their individual capacities. Pearson v. Callahan, 555
U.S. 223, 231 (2009). The doctrine protects officials from civil liability for conduct that
does not violate clearly established rights of which a reasonable person would have
known. Id. As government officials at the time the alleged wrongful acts occurred, being
sued in their individual capacities, the defendants are entitled to invoke a qualified
immunity defense to Plaintiff’s malicious prosecution claim. See id. at 231; Johnson v.
Jones, 515 U.S. 304, 307 (1995) (noting that police officers were “government
officials—entitled to assert a qualified immunity defense”). In resolving a motion to
dismiss based on qualified immunity, a court looks at: “(1) whether the facts that a
plaintiff has alleged make out a violation of a constitutional right, and (2) whether the
right at issue was clearly established at the time of defendant’s alleged misconduct.”
Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011) (quoting
Pearson, 555 U.S. at 232) (internal quotations omitted). Once a defendant invokes
qualified immunity, the burden to prove both parts of this test rests with the plaintiff, and
the court must grant the defendant qualified immunity if the plaintiff fails to satisfy either

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part. Dodds v. Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010). Where no
constitutional right has been violated “no further inquiry is necessary and the defendant is
entitled to qualified immunity.” Hesse v. Town of Jackson, Wyo., 541 F.3d 1240, 1244
(10th Cir. 2008) (quotations omitted).
i.

Personal Participation

Defendants argue that Plaintiff has failed to allege personal participation by some
of the defendants in the some of the alleged constitutional violations. (See Mot. at 10–11,
13–14.)
“Individual liability under § 1983 must be based on [the defendant’s] personal
involvement in the alleged constitutional violation.” Schneider v. City of Grand Junction
Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013) (alteration in original) (quoting Foote v.
Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)). To state a claim under Section 1983, “ ‘a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.’ ” Id. (quoting Iqbal, 556 U.S. at 676
(2009)). Allegations that generally refer to “defendants” are “not sufficient to show how
[an individual] ‘might be individually liable for deprivations of [a plaintiff’s]
constitutional rights.’ ” Brown v. Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011)
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)).
Supervisor status alone is insufficient to support liability. Id. A supervisor is not
liable under § 1983 for the actions of a subordinate unless an “affirmative link” exists
between the constitutional deprivation and either the supervisor’s personal participation

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or his failure to supervise. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008);
Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Courts have explained that a defendant in a supervisory position may be
personally involved in an alleged constitutional violation committed by his or her
subordinates in two situations. First, supervisor liability may arise when the supervisor
was personally involved in directing the subordinates to take the action that resulted in
the alleged constitutional violation. Woodward v. City of Worland, 977 F.2d 1392, 1400
(10th Cir. 1992). Second, supervisor liability may arise when the supervisor had actual
knowledge that the subordinates were committing the alleged constitutional violation and
acquiesced in its commission. Id. (citing Andrews v. City of Philadelphia, 895 F.2d 1469,
1478 (3d Cir. 1990) (stating that supervisor liability requires “allegations of personal
direction or of actual knowledge and acquiescence”)).
The Tenth Circuit in Arocho v. Nafziger, 367 F. App’x 942, 956 (2010),
questioned whether the analysis in Woodward was still controlling in the wake of the
Supreme Court’s decision in Iqbal. The Tenth Circuit suggested, without deciding, that a
showing of “purpose rather than knowledge is required” to impose liability on an official
charged with violations arising from his or her supervisory responsibilities. See also
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (in acknowledging that
consensus “remains elusive” as to the meaning of the Iqbal’s discussion of supervisory
liability under § 1983, the Tenth Circuit concluded that a plaintiff “must plausibly plead
and eventually prove not only that the official’s subordinates violated the Constitution,
but that the official by virtue of his own conduct and state of mind did so as well”).

15

a. General References to the Defendants
The court notes that, in the Amended Complaint, Plaintiff alleges that “Gilliam
personnel ignored [ ] requests [to be kept away from other residents], failing to recognize
or respond to the substantial risk that T.T. would be subjected to a severe physical attack
at the hands of fellow residents.” (Am. Compl., ¶ 1; see also id., ¶ 18.a.–j. [referring to
T.T.’s requests of “Gilliam staff” for time away from other residents].) Plaintiff also
alleges “Gilliam personnel failed to investigate further and failed to recognize that T.T.
was in physical and emotional danger” and “failed to take steps . . . that might have
protected T.T. from serious physical injury.” (Id., ¶ 19.)
These allegations, which are not attributed to any individual defendant, are “not
sufficient to show how [an individual] ‘might be individually liable for deprivations of [a
plaintiff’s] constitutional rights.’ ” Brown, 662 F.3d at 1165.
b. Defendant Penna and Sierra
In addition to the claim for Failure to Provide Medical Care and Treatment,
Plaintiff asserts the Failure to Protect claim against Defendant Penna. However, the
Amended Complaint is devoid of any allegations against Defendant Penna that relate to
anything other than T.T.’s treatment by her in the medical ward. Thus, Plaintiff fails to
allege Defendant Penna’s personal participation in the Failure to Protect Claim.
Plaintiff asserts the Failure to Provide Medical Care and Treatment claim against
Defendant Sierra. Though Plaintiff alleges Defendant Sierra observed the assault on T.T.
on November 6, 2015 (Am. Compl., ¶ 23); the Amended Complaint contains no

16

allegations regarding Defendant Sierra’s failure to provide medical care or assistance
following the incident.
Accordingly, the Failure to Protect claim asserted against Defendant Penna and
the Failure to Provide Medical Care claim asserted against Defendant Sierra are
dismissed for Plaintiff’s failure to allege their personal participation in the constitutional
violations, and these defendants are entitled to qualified immunity on the claims.
c. Defendants Nuss, Dominguez, Duvall, Gonzalez, and Vanderpuil
In the Amended Complaint, Plaintiff states Defendant Nuss is the Director, and
Defendant Dominguez is the Assistant Director of Gilliam. (Am. Compl., ¶¶ 9, 10.)
Plaintiff states Defendants Nuss and Dominguez are responsible
for the care and custody of the children confined at Gilliam; for
establishing, administering and enforcing policies and procedures for
Gilliam; for the maintenance and operation of the physical premises; for the
hiring, firing, training and supervision of Gilliam staff; and other duties
related to the maintenance and operation of Gilliam.
(Id.) Plaintiff states that Defendant Duvall
was responsible for overseeing the provision of medical care to Gilliam
residents, including decisions regarding staffing and training of medical
personnel. More specifically, he was responsible in whole or in part for
performing the intake screening on T.T. following his arrival at Gilliam.
Upon information and belief, his recommendations informed subsequent
decisions regarding T.T.s housing, interaction with other residents, and
psychological and medical care.
Plaintiff states that Defendants Gonzalez and Vanderpuil are “staff members and/or
supervisors” at Gilliam.
The sole allegation Plaintiff makes against Defendants Nuss, Dominguez, Duvall,
and Gonzalez is that they “were aware of” a physical altercation between T.T. and

17

another resident on November 1, 2015, but “took no steps to provide T.T. with additional
protection or to isolate him from other residents who might subject him to physical or
emotional harm.” (Am. Compl. at 20.) Additionally, Plaintiff alleges Defendant
Vanderpuil was “responsible in whole or in part for performing the intake screening on
T.T. following his arrival at Gilliam . . . and [her] recommendations informed subsequent
decisions regarding T.T.’s housing, interaction with other residents, and psychological
and medical care” and that she was aware of the November 1, 2015, altercation. (Am.
Compl., ¶ 13, 20.)
Plaintiff seeks to hold these defendants liable on the basis of their supervisory
status. Plaintiff makes no allegations related to the conduct of these defendants in the
claims. Plaintiff does not contend that these defendants were personally involved in
directing the allegedly unconstitutional conduct at issue in this case, nor does Plaintiff
describe with any specificity how these Defendants had actual knowledge of the alleged
constitutional violations, how they knew about any previous altercation involving T.T., or
what they knew about the alleged November 1, 2015 altercation that could have led them
to understand Plaintiff needed protection. See Woodward, 977 F.2d at 1400. Finally,
Plaintiff has failed to show that Defendants Nuss, Dominguez, Duvall, Gonzalez and
Vanderpuil, by virtue of their own conduct and states of mind, violated T.T.’s
constitutional rights. Dodds, 614 F.3d at 1198.
Accordingly, all constitutional claims asserted against Defendants Nuss,
Dominguez, Duvall, Gonzalez, and Vanderpuil are dismissed for failure to allege their
personal participation, and the defendants are entitled to qualified immunity.

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ii.

First Claim for Failure to Provide Medical Care and Treatment

The court addresses Defendants’ argument that Plaintiff’s claim for failure to
provide medical care and treatment should be dismissed as it pertains to Defendant Penna
only, as the court has dismissed this claim to the extent it is asserted against the other
defendants.
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const.
amend VIII. As such, it requires that “prison officials . . . ensure that inmates receive
adequate food, clothing, shelter, and medical care, and [that they] must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (citation omitted). The court’s analysis of Plaintiff’s Eighth Amendment claims
involves both an objective and subjective component. Wilson v. Seiter, 501 U.S. 294,
298–99 (1991); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
As to the objective component, the court considers whether Plaintiff has been
deprived of a sufficiently serious basic human need. “[A] medical need is considered
‘sufficiently serious’ if the condition ‘has been diagnosed by a physician as mandating
treatment . . . or is so obvious that even a lay person would easily recommend the
necessity for a doctor’s attention.’ ” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.
2001) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 2001)).
As to the subjective component of a deliberate indifference claim, the plaintiff
must prove that the prison official “kn[ew] of and disregard[ed] an excessive risk to
inmate health and safety.” Farmer, 511 U.S. at 837. That is, “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id.
Defendants argue Plaintiff fails to satisfy both components of the Eighth
Amendment claim. (See Mot. at 10–11.) As to the objective component, Defendant
argues that T.T. “originally presented to Penna with a scratched ear[, which is] not so
obviously serious that even a lay person would easily recognize the need for a doctor’s
attention.” (Id. at 10.) Defendant then argues that Defendant Penna reevaluated T.T.
when his “symptoms worsened and were sufficiently serious to require a doctor’s
attention.” (Id.) However, there is no indication in the Amended Complaint that the
blood in T.T.’s ear was from a “scratch.” Moreover, Defendants fail to acknowledge that
Plaintiff alleges, in addition to the presence of blood in T.T.’s ear, Defendant Penna
failed to evaluate T.T.’s complaints of “nausea and [ ] not feeling well,” instead tending
to other matters until “T.T. began vomiting and convulsing.” (Am. Compl. at 2.)
Defendants also fail to acknowledge the allegation that “T.T. subsequently developed a
severe headache and nausea while in the medical center, but [Defendant Penna] ignored
and belittled his complaints and attempted to return him to his room.” (Id., ¶ 31.) The
court finds that Plaintiff’s allegations regarding T.T.’s bleeding ear and complaints of
nausea, not feeling well, and severe headache, all of which allegedly were present for
approximately one hour before he starting vomiting and convulsing, are, at the pleading
stage, sufficient to satisfy the objective component.
As to the subjective component, Defendants argue that Defendant Penna did not
disregard the risk to T.T., but rather “she responded appropriately by calling a ‘Code

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Blue’ to the medical office and having paramedics respond.” (Id., ¶ 23.) Again,
Defendants have overlooked Plaintiff’s allegations that Defendant Penna ignored and
belittled his complaints for an hour while she tended to other matters. These allegations
are sufficient to satisfy the subjective component.
Defendants also argue that, “[w]hile [T.T.] may believe that Penna’s [ ] treatment
was inadequate, inadequate care is not deliberate indifference. (Mot. at 10.) Though it is
true that “a prisoner who merely disagrees with a diagnosis or a prescribed course of
treatment does not state a constitutional violation,” Perkins v. Kan. Dep’t of Corr., 165
F.3d 803, 811 (10th Cir. 1999), the court does not believe this case involves “mere
disagreement” between the parties about either a diagnosis or a prescribed course of care.
Accord Hunt, 199 F.3d at 1223–24 (holding that a prisoner’s claim that he was denied
adequate and timely medical assistance did not reflect “mere disagreement with his
medical treatment”).
Having determined that the plaintiff has satisfied both the objective and subjective
elements of an Eighth Amendment claim for failure to provide medical care and
treatment, the court now addresses whether T.T.’s Eighth Amendment right was clearly
established at the time of Defendant Penna’s alleged misconduct.” Leverington, 643 F.3d
at 732. As stated supra, the burden to prove this rests with the plaintiff. Dodds, 614 F.3d
at 1191.
Plaintiff argues
[I]t is clearly established in the Tenth Circuit that when a medical
professional denies care after being presented with recognizable symptoms
creating a potential medical emergency, the Constitutional rights of the
injured party are violated. Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir.
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2014) (citing Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). Further,
“[w]hether a prison official had the requisite knowledge of a substantial
risk [of serious harm] is a question of fact subject to demonstration in
usual ways, including inference from circumstantial evidence.” Estate of
Booker, 745 F.3d at 430 (quoting Gonzales v. Martinez, 403 F.3d 1179,
1183 (10th Cir. 2005) & Farmer, 511 U.S. at 842); see also Rife v. Okla.
[Dep’t] of Pub. Safety, 854 F.3d 637, 647–48 (10th Cir. Apr. 17, 2017)
(finding qualified immunity inapplicable when claimant presented with
symptoms, including dried blood on his nose and dizziness, potentially
indicating serious head injury).
(Resp. at 10.) Despite Plaintiff’s references to law, Defendants argue that “Plaintiff does
not cite clearly established law . . . particularized to the facts of the case.” (Reply at 5.)
The court disagrees and finds that both Self and Al-Turki provide clearly established law
particularized to this case.
In Al-Turki, the Tenth Circuit explained that “[t]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that [her] conduct was unlawful in the situation [she] confronted.” 762
F.3d at 1194. The Court held that the defendant’s “choice to ignore the repeated requests
for medical help from an inmate who was experiencing severe abdominal pain potentially
caused by a life-threatening condition [ ] would constitute a violation of the Eighth
Amendment.” Id. The court also noted that,
[i]t has been clearly established in this circuit since at least 2006 that a
deliberate indifference claim will arise when ‘a medical professional
completely denies care although presented with recognizable symptoms
which potentially create a medical emergency, e.g., a patient complains of
chest pains and the prison official, knowing that medical protocol requires
referral or minimal diagnostic testing to confirm the symptoms, sends the
inmate back to his cell.
Id. (citing Self, 439 F.3d at 1232).

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Here, Plaintiff alleges Defendant Penna is a trained, registered nurse who ignored
T.T.’s bleeding ear and complaints of nausea, not feeling well, and severe headache, all
of which allegedly were present for approximately one hour before he starting vomiting
and convulsing. (See Am. Compl. at 1, 2 & ¶¶ 15, 31.) Plaintiff also alleges Defendant
Penna belittled T.T.’s complaints and attempted to return him to his room. (Id., ¶ 31.)
As such, Defendant Penna has failed to satisfy either prong of a qualified
immunity analysis.
iii.

Second Claim for Relief for Failure to Protect

Plaintiff asserts all of the defendants failed to protect T.T. in violation of the
Eighth Amendment. (Am. Compl. at 12.) As this court has already held that this claim
asserted against all of the other defendants must be dismissed, the court addresses this
argument only as it pertains to Defendant Sierra.
A claim of failure to protect is evaluated under the Eighth Amendment, which, as
stated above, has “both an objective and a subjective component.” Sealock, 218 F.3d at
1209. The objective component of the test is met if the harm suffered is “sufficiently
serious” to implicate the Cruel and Unusual Punishment Clause. Id. To satisfy this
component, the plaintiff must show that he was incarcerated under conditions posing a
substantial risk of serious harm. Id. The subjective component “is met if a [defendant]
‘knows of and disregards an excessive risk to inmate health or safety.’ ” Id. (quoting
Farmer, 511 U.S. at 837). Under this component, the inmate must establish that the
defendant had a sufficiently culpable state of mind in allowing the deprivation to take
place. Verdicia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quoting Benefield v.

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McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)). To be liable for unsafe conditions of
confinement the defendant “must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and [she] must also draw the
inference.” Farmer, 511 U.S. at 837; Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th
Cir. 2005).
Plaintiff makes only two assertions regarding Defendant Sierra: (1) that she was
aware of the November 1, 2015 altercation and failed to provide T.T. with additional
protection, and (2) that she was monitoring the group that included T.T. on November 6,
2015, and observed another resident slam T.T. down on the ground on his back. (Am.
Compl., ¶¶ 20, 23.) Plaintiff fails to specify how Defendant Sierra became aware of the
November 1 altercation, what it was about the November 1 altercation that should have
alerted Defendant Sierra that T.T. needed protection, or in what ways Defendant Sierra
failed to provide additional protection. With the single allegation that Defendant Sierra
was aware of a previous altercation, the court cannot find that Plaintiff has sufficiently
alleged that Defendant Sierra was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed]” or that Defendant Sierra drew
such an inference that Plaintiff was at risk of another attack on November 6. Farmer,
511 U.S. at 837; Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005).
Because Plaintiff has failed to satisfy the subjective component of a Failure to
Protect claim, the claim against Defendant Sierra is dismissed.

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E.

John Doe Defendant
There is no provision in the Federal Rules of Civil Procedure for the naming of

fictitious or anonymous parties in a lawsuit. Watson v. Unipress, Inc., 733 F.2d 1386,
1388 (10th Cir.1984); Coe v. U.S. Dist. Court for Dist. of Colo., 676 F.2d 411, 415 (10th
Cir.1982). To the contrary, the Federal Rules provide that “[e]very pleading shall contain
a caption setting forth the name of the court, the title of the action, the file number, and a
designation as in Rule 7(a). In the complaint, the title of the action shall include the
names of all the parties . . . .” Fed. R. Civ. P. 10(a). Because anonymous parties are not
permitted by the Federal Rules, and Plaintiff has not identified him, Defendant John Doe
is dismissed from this civil action.
CONCLUSION
Wherefore, for the foregoing reasons, it is
ORDERED that the “Motion to Dismiss First Amended Complaint” (Doc. No.
23) is GRANTED in part and DENIED in part as follows:
1. Plaintiff’s negligence claim asserted against Defendants Nuss, Domingeuz,
Sierra, Gonzalez, and Duvall, and Plaintiff’s negligence claims related to the
defendants’ failure to protect T.T., failure to investigate T.T.’s requests to be
kept away from other residents, and failure to respond in a timely manner to
the November 6, 2015, attack are dismissed without prejudice for lack of
subject matter jurisdiction for failure to comply with the CGIA’s notice
requirements;

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2. Plaintiff’s claims against the Colorado Department of Human Services,
Division of Youth Corrections, are dismissed without prejudice for lack of
subject matter jurisdiction as barred by Eleventh Amendment immunity;
3. Plaintiff’s Failure to Protect claim asserted against Defendant Penna, Failure
to Provide Medical Care claim asserted against Defendant Sierra, and all
constitutional claims asserted against Defendants Nuss, Dominguez, Duvall,
Gonzalez, and Vanderpuil are dismissed with prejudice for failure to allege
their personal participation, and the defendants are granted qualified immunity
on the claims;
4. Plaintiff’s Failure to Protect claim asserted against Defendant Sierra and
Plaintiff’s claims against Defendant John Doe are dismissed with prejudice for
failure to state a claim upon which relief can be granted, and the defendants
are granted qualified immunity on the claims;
5. The case will proceed against only Defendant Penna on Plaintiff’s Failure to
Provide Medical Care and Treatment and Negligence claims.
It is further
ORDERED that a Scheduling Conference will be held on April 4, 2018, at 10:00
a.m., in the Colorado Springs courtroom, Suite 1000, 212 N. Wahsatch Avenue,

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Colorado Springs, Colorado. The parties shall file their proposed Scheduling Order no
later than March 28, 2018.
Dated this 13th day of March, 2018.

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