Hartwell et al v. Southwest Correctional Medical Group, PLLC et al

Filing 206

ORDER granting in part and denying in part 162 Motion to Dismiss by Judge R. Brooke Jackson on 7/1/19.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 17-cv-02278-RBJ
KEVIN HARTWELL and
BARBARA HARTWELL,
Plaintiffs,
v.
CORRECTIONAL MEDICAL GROUP COMPANIES INC., d/b/a SOUTHWEST
CORRECTIONAL MEDICAL GROUP, LLC, d/b/a SOUTHWEST CORRECTIONAL MEDICAL
GROUP PLLC, d/b/a COLORADO CORRECTIONAL MEDICAL GROUP, PLLC
DOUGLAS COUNTY,
TIMOTHY G. MOSER, MD, in his individual and official capacity,
SOPHIA NIX, LPN, in her individual and official capacity,
DAISHA WADE, LPN, in her individual and official capacity,
STEPHANIE RUSSAK, RN, CHARGE NURSE, in her individual and official capacity,
JESSICA ISAACS, RN, in her individual and official capacity,
DEIMYS VIGIL, RN, in her individual and official capacity,
LINDSEY GYGER, RN, in her individual and official capacity,
EMILY BARRON, RN, in her individual and official capacity,
KATHRYN DAVIDSON, LPN, in her individual and official capacity,
JENNIFER TRIMBLE a/k/a GLENN, RN, HSA, in her individual and official capacity,
Defendants.

ORDER – MOTION TO DISMISS SECOND AMENDED COMPLAINT

Defendant Douglas County moves to dismiss the Second Amended Complaint for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The motion is granted in part and denied in
part.

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BACKGROUND
Kevin Hartwell had a history of hypertension, diabetes and seizures when he was arrested
and taken to the Douglas County Jail on November 10, 2016. He alleges that during the 20 days
he remained in the jail medical personnel did not provide medications and dosages prescribed by
his primary care physician, and that he experienced dangerous elevations in blood sugar and
blood pressure, seizure, and ultimately, a serious disorder called status epilepticus. Finally, Mr.
Hartwell was transported to a hospital, but plaintiff alleges that this came too late to avoid
permanent brain damage and other consequences.
Douglas County contracted with the Correctional Medical Group Companies, Inc.
(“CMGC”) to provide medical care for inmates in its jail.1 On September 20, 2017 Mr. and Mrs.
Hartwell filed the present case against CMGC, Douglas County and several of their respective
employees or agents on various constitutional and state law theories. Complaint, ECF No. 1.
The Douglas County defendants moved to dismiss. ECF No. 21. That motion was briefed but
became moot upon the filing of plaintiffs’ First Amended Complaint.
The Douglas County defendants again moved to dismiss. ECF No. 78. Following
briefing, I issued an order granting the motion in part and denying it in part. ECF No. 109. I
noted that the Douglas County defendants do not practice medicine, and that CMGC would have
to answer for any failure of its obligation to provide adequate medical care. However, I also held
that Douglas County’s ultimate constitutional duty to provide adequate medical care to the
inmates in its jail was non-delegable, meaning that if CMGC were found liable, Douglas County

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“CMGC” refers to Correctional Medical Group Companies, Inc., d/b/a Southwest Correctional Medical
Group, LLC, d/b/a Southwest Correctional Medical Group PLLC, d/b/a Colorado Correctional Medical
Group, PLLC, as identified in the Second Amended Complaint.

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would also be liable. Id. at 2. I found that this was not a Monell issue, and that the First
Amended Complaint did not in any event allege facts sufficient to make out a plausible claim
under a Monell theory.2 Further, while noting that plaintiffs had accused the Sheriff and his staff
of spoliation of evidence, that was an evidentiary issue, not the basis for a Monell claim unless
the plaintiffs could allege facts (which they had not done) plausibly indicating a custom, practice
or policy of destruction of evidence. Id.
Douglas County then moved for an order certifying an interlocutory appeal on the nondelegable duty theory, specifically, “whether a municipality can be held liable under § 1983 for
an alleged failure of its contracted medical provider to render adequate medical treatment to a
pretrial detainee based solely on a theory of non-delegable duty.” ECF No. 110 at 3-4. I denied
that motion. ECF No. 126.
Plaintiffs moved for leave to file a Second Amended Complaint to “reassert a Monell
claim for ratification against the County with additional facts learned during discovery,” to join
additional nurse defendants, and to delete or modify certain claims. See ECF No. 143. The
motion was granted. The Second Amended Complaint, ECF No. 161, is now the operative
complaint in the case. Douglas County has once again filed a motion to dismiss. ECF No. 162.
It has been fully briefed, and I address this motion in this order.
ANALYSIS AND CONCLUSIONS
Douglas County argues that plaintiffs still have not alleged facts that plausibly would
support a claim on a municipal liability theory. ECF No. 162 at 1-2. I agree.

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Monell v. Department of Social Services, 436 U.S. 658, 691-94 (1978).

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To establish § 1983 liability on a municipality for the acts of its employees, plaintiffs
must “identify ‘a government’s policy or custom’ that caused the injury.” Schneider v. City of
Grand Junction Police Department, 717 F.3d 760, 769 (10th Cir. 2013) (citing and quoting
Monell, 468 U.S. at 694). A plaintiff must also show “that the policy was enacted or maintained
with deliberate indifference to an almost inevitable constitutional injury.” Id. (citing Board of
County Commissioners v. Brown, 520 U.S. 397, 403 (1997)).
Because I previously held that plaintiffs had failed to state a claim against the Douglas
County defendants on a Monell theory, I will look now to the relevant allegations that have been
added to see whether they make a difference. Based on my review of the red-lined version of the
Second Amended Complaint, the relevant new “facts” appear to be the italicized portions in the
following paragraphs:
22. At least two inmates before Hartwell were denied medications by CMGC until
they entered status epilepticus or continuous seizures, a life-threatening emergency.
23. In July of 2016, inmate Benjamin Ramsey was denied medications including
medications for seizures at the jail until he went into status epilepticus.
24. Four months later, Kevin Hartwell was denied medications for seizures at the jail
until he went into status epilepticus for over seven hours before EMS was contacted.
...
166. Douglas County through its final policy maker Sheriff Spurlock and/or Captain
Duffy, delegated final policy making authority for medical care at the jail to CMGC.
Douglas County did not formulate any policies, procedures, or protocols for medical
care, and it deferred all decisions pertaining to medical care to CMGC. Even during
medical emergencies, Detentions staff contacted nurses rather than contact 911.
Douglas County is liable for the unconstitutional policies and customs of CMGC at
the Douglas County Jail in 2016.
167. In addition, the County knew CMGC’s policies and customs were substantially
certain to violate inmates’ constitutional rights before Hartwell was injured, but was
deliberately indifferent to the risk. After patient Ramsey was transferred to the ER on
July 21, 2016, suffering from prolonged status epilepticus as a result of being denied

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his seizure medications, Douglas County through Sheriff Spurlock and/or those to
whom he delegated authority, interviewed the nurses involved including Gyger and
Vigil, knew of the unconstitutional policies and customs of CMGC that injured
Ramsey, and knew that these unconstitutional policies and customs were not
changed.
168. At all times material, CMGC purposefully maintained an unconstitutional policy,
practice, or custom including, among other things, the following:
a. Requiring LPNs to work outside the scope of their license;
b. Allowing nurses to routinely fail to fulfill their gatekeeper roles by failing to
contact a physician or send inmates to the ER;
c. Purposefully cutting inmates off prescribed medications;
d. Being understaffed during November of 2016, with no mid-level provider;
e. Prohibiting Dr. Moser from personally evaluating inmates other than for prescheduled appointments six hours per week;
f. Requiring nurses, including LPNs to contact the HSA to determine if a seizure
is “real” prior to contacting EMS;
g. Requiring nurses to call Dr. Moser prior to contacting EMS;
h. Directing or allowing nurses to chart that medications were provided per
protocol without contacting a doctor and without entering any order for the
medications or administering them to the patient;
i. Directing or allowing nurses to make woefully inadequate and/or inaccurate
chart notes, fail to perform nursing assessments, fail to follow nursing protocols
for seizures and emergencies, fail to fulfill gatekeeper roles, and decide if inmates
were faking serious illness;
j. Directing or allowing Dr. Moser to rely on assessments by LPNs over the
phone to decide treatment, and then direct LPNs to monitor patients rather than
call 911;
k. Refusing to investigate, correct, train, and reprimand unconstitutional
behaviors, customs, and policies that resulted in serious harm to inmates
including Ramsey and Hartwell, including the failure to provide any additional
training on acute neurologic changes, seizures, nursing protocols, the scope of
practice of a LPN, and when to contact 911. No changes were made to prevent
future injuries.
169. There are systemic and widespread deficiencies by multiple providers in the
medical care and treatment by CMGC at the Douglas County Jail, beginning with
prisoners before Hartwell including Ben Ramsey, which reflect an official policy or
custom of deliberate indifference to serious medical needs, and which was the cause
moving force behind Kevin Hartwell’s injuries. The deficiencies were so widespread

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and ubiquitous as to affect all inmates with serious medical needs at the Douglas
County Jail. The need for training, supervision, and adequate staffing of the medical
department to avoid the risk of serious injury and death from life threatening illness,
including but not limited to seizures, diabetes, and severe hypertension was obvious.
CMGC purposefully failed to adequately staff and/or train and/or supervise staff to
provide detainees including Mr. Hartwell with access to medical treatment by a
qualified medical provider for serious medical needs that posed a substantial risk of
serious harm, all of which was the moving force in causing Mr. Hartwell’s injuries
and damages.
170. Douglas County had a non-delegable duty to provide detainees including Mr.
Hartwell with necessary medical care and treatment from qualified medical providers
that meets a community standard of care. To the extent Douglas County delegated
authority to make official policy, custom, or final decisions to CMGC, either
expressly or by default, the policies and customs of CMGC become the policies and
customs of the county, and the county is liable for their actions if the policy proves
unconstitutional.
171. There was a direct causal link between the constitutional deprivations as
aforesaid, and the inadequate training, inadequate discipline and inadequate
supervision, and/or unconstitutional policies or customs of the Defendants.
172. Each Defendant’s conduct was a direct cause in whole or in part of Plaintiff’s
injuries and damages, which are indivisible, resulting in joint and several liability.
173. The Defendants’ unconstitutional conduct caused Plaintiff’s injuries and
damages as set forth in 131, Supra in an amount to be proved at the time of trial.

ECF No. 161 at 4, 24-27 (emphasis added).
Construing the allegations liberally, the new “facts” are that (1) there were two inmates in
the jail before Mr. Hartwell who were denied medications and went into status epilepticus; (2)
one of those inmates, Ben Ramsey, was hospitalized on July 31, 2016; (3) following the Ramsey
incident Douglas County personnel interviewed the involved nurses including Nurses Gyger and
Vigil who are named defendants in the present suit. Based on those facts plaintiff asserts that
Douglas County therefore knew of the unconstitutional policies and customs of CMGC that injured
Ramsey, and knew that these unconstitutional policies and customs were not changed.

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In my view the new “facts” do not support a finding that Douglas County had a custom,
policy or practice of permitting or ignoring CMGC’s treatment of inmates with seizures, much
less that the policy or practice was maintained with deliberate indifference to an almost
inevitable constitutional injury. Paragraph 22 tells us nothing about the date or circumstances
involved in the alleged incident before the Ramsey incident. Assuming the truth of the sparse
allegation concerning inmate Ramsey, that took place approximately four months before Mr.
Hartwell’s incarceration, plaintiffs allege in paragraph 167 that Douglas County did interview
the involved nurses. Plaintiffs have not asserted that Douglas County determined that medical
negligence had occurred, or that if so, that Douglas County ignored the determination. The
assertion that Douglas County thereby knew of unconstitutional policies and customs of CMGC,
and that Douglas County nevertheless permitted the policies and customs to continue without
modification is not a reasonable inference from the facts alleged. Rather, it amounts to a
conclusory allegation that the Court need not and does not construe in plaintiffs’ favor.
In context, the new allegations reinforce plaintiffs’ allegation that CMGC personnel
failed to provide adequate care to Mr. Hartwell. I stand by my previous holding that because
Douglas County has a duty to provide adequate medical care to inmates in its jail, it is liable if
the private party with whom it contracted to provide the care fails to do so. An inmate has no
ability to provide medical care for himself. If a jail’s duty to provide adequate medical care ends
when it hires a private medical provider, then where does that leave an inmate who gets lousy
care if he cannot collect damages against the contractor? Municipalities presumably can take
steps to protect themselves such as by careful screening of provider companies, indemnification
clauses and insurance, but the duty to provide the care remains. Plaintiffs insist that Douglas

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County is also liable based on its own customs, practices or policies, apparently a “belt and
suspenders” approach. I find that plaintiffs have not plausibly alleged facts that could support
that alternative theory of liability.
ORDER
Douglas County’s motion to dismiss, ECF No. 162, is GRANTED IN PART AND
DENIED IN PART. It is granted insofar as plaintiffs are attempting to assert liability based
upon a Monell theory (municipal custom, practice or policy). It is denied insofar as plaintiffs
rely on the County’s (the Sheriff’s) ultimate and non-delegable duty to provide adequate medical
care to him while he was incarcerated in the Douglas County jail.
DATED this 1st day of July, 2019.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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