Weitzman v. City and County of Denver et al
Filing
66
ORDER by Magistrate Judge Kristen L. Mix on 3/21/19 GRANTING 35 Motion to Dismiss for Failure to State a Claim; GRANTING 34 Motion to Dismiss for Failure to State a Claim. Pursuant to the granting of 34 Motion, Claim One is DISMISSED with pr ejudice with respect to Defendants Crum, Snyder, Rosales, Jacobson, and McCoy. Claim Two is DISMISSED with prejudice with respect to Defendant Denver Health. Claim Three is DISMISSED with prejudice with respect to Defendant Crum. Pursuant to the granting of 35 Motion, Claim Two is DISMISSED with prejudice with respect to Defendant Denver. Remaining in this lawsuit are Claim One against Defendants McFerrin and Jane Doe and Claim Three against Defendant Jane Doe. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02703-KLM
TODD WEITZMAN,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
DENVER HEALTH AND HOSPITAL AUTHORITY, d/b/a Denver Health Medical Center,
PETER CRUM, M.D., in his individual and official capacities,
VALERIE SNYDER, L.P.N., in her individual capacity,
MARCELLINA ROSALES, L.P.N., in her individual capacity,
ANN JACOBSON, L.P.N., in her individual capacity,
GLEN McCOY, L.P.N., in his individual capacity,
JOSHUA MCFERRIN, L.P.N., in his individual capacity, and
DENVER HEALTH MEDICAL CENTER JANE DOE 1, in her individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the following motions on the (1) Motion to
Dismiss Amended Complaint for Failure to State a Claim [#34],1 filed by Defendants
Denver Health and Hospital Authority (“Denver Health”), Peter Crum, M.D., (“Crum”),
Valerie Snyder, L.P.N. (“Snyder”), Marcellina Rosales, L.P.N., (“Rosales”), Ann
Jacobson, L.P.N. (“Jacobson”), and Glen McCoy (“McCoy”)2 (the “Medical Defendants’
Motion”); and (2) Motion to Dismiss Plaintiff’s Amended Complaint [#35], filed by
1 “[#34]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2
Defendant McCoy joined the Medical Defendants’ Motion [#34] on May 4, 2018. See
Notice of Joinder [#45].
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Defendant City and County of Denver (“Denver”) (the “Denver Motion”). Plaintiff filed
Responses [#47, #48] in opposition to the Motions, and Defendants filed Replies [#51,
#52]. The Court has reviewed the Motions, the Responses, the Replies, the entire case
file, and the applicable law, and is sufficiently advised in the premises. Based on the
following, the Motions [#34, #35] are GRANTED.3
I. Background
Plaintiff Todd Weitzman initiated this lawsuit pursuant to 42 U.S.C. § 1983 on
November 13, 2017. Compl. [#1]. Plaintiff filed an Amended Complaint and Jury Demand
[#30] (the “Amended Complaint”) on March 22, 2018, which is the operative pleading in
this case. Plaintiff’s claims arise from his pre-trial detainment at the Van Cise-Simonet
Detention Center (“VCSDC”) between September of 2015 and December 12, 2015. Am.
Compl. [#30] ¶ 21-51. Plaintiff generally alleges that medical staff at VCSDC failed to
address his complaints of a skin rash and vision loss which turned out to be symptoms of
ocular syphilis with which Plaintiff was diagnosed after his release. See generally id.
Plaintiff brings his claims against Denver, Denver Health, and individual employees of
Denver Health which include Defendants Crum, Snyder, Rosales, Jacobson, McCoy,
Joshua McFerrin (“McFerrin”),4 and Denver Health Medical Center Jane Doe 1 (“Jane
Doe”). See generally id.
3
This case has been referred to the undersigned for all purposes pursuant to
D.C.COLO.LCivR 40.1(c) and 28 U.S.C. § 636(c), on consent of the parties. See [#33].
4
The Amended Complaint names “J.M. L.P.N.” as a Doe defendant. Am. Compl. [#30]
at 1. After the Amended Complaint was filed, Plaintiff identified this individual as Joshua McFerrin,
L.P.N. See Minute Order [#65]. Defendant McFerrin waived service on February 13, 2019.
Waiver of Service [#64]. Defendant McFerrin’s response to the Amended Complaint is presently
due on April 15, 2019, and he has not otherwise entered an appearance in this case. Id.
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Plaintiff alleges the following facts as the basis for his claims.5 In September 2015,
Plaintiff was arrested and charged with a misdemeanor. Am. Compl. [#30] ¶ 21. While
awaiting disposition of his case, Plaintiff was booked into VCSDC. Id. During his initial
intake interview with VCSDC medical staff, Plaintiff disclosed his known medical issues
but did not indicate any problems with his eyes. Id. ¶ 24. Shortly after being admitted at
VCSDC, Plaintiff began experiencing medical and psychological issues. Id. ¶ 25. Plaintiff
was directed to submit a written notice, known as a “kite,” to advise medical staff of these
issues. Id. Plaintiff began sending many kites to the medical staff for his various medical
issues which included difficulties getting medication, pain for preexisting conditions like
ulcerative colitis, back and foot pain, and night terrors. Id. ¶ 26. Approximately two
months into his detention, Plaintiff was moved into a segregated housing unit for his own
protection and because his night terrors had been disturbing other inmates. Id. ¶ 27.
Plaintiff states that, after the move, he continued to have issues getting his medication in
a timely manner and in the correct doses. Id. ¶ 28. Because Plaintiff’s kites failed to
resolve these issues, Plaintiff was forced to file a grievance against one of the nurses at
VCSDC. Id. ¶ 28-29. Plaintiff alleges that, after this grievance was filed, a pattern began
where many of his requests for medical attention were “flatly ignored or brushed off,” and
his attempts to schedule a doctor’s appointment became very difficult. Id. ¶ 29.
On or around November 5, 2015, Plaintiff had an appointment with Defendant
Crum during which they discussed the issues Plaintiff was experiencing with his ulcerative
colitis, back pain, and pain from a poorly healed broken foot. Id. ¶ 30. Subsequently,
Plaintiff was scheduled for a follow-up appointment on November 19, 2015. Id.
5 All well-pled facts from the complaint are accepted as true and viewed in the light most
favorable to Plaintiff. See Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
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On or about November 10, 2015, Plaintiff complained of a bad rash covering his
body to a deputy who agreed that the rash “looked serious.” Id. ¶ 31. The deputy notified
Plaintiff that he would have to send a kite to seek attention for the rash, which Plaintiff
promptly did. Id. ¶ 32. According to Plaintiff, this kite was addressed by Defendant
Rosales on or around November 11, 2015. Id. ¶ 33. Defendant Rosales’ only proposed
treatment plan for Plaintiff’s rash was for him to be evaluated in approximately three
weeks, on December 1, 2015. Id. ¶ 33.
On or around November 15, 2015, Plaintiff submitted another kite in which he
indicated that he was beginning to experience blurred vision and that his rash was getting
worse and spreading. Id. ¶ 34. This kite was addressed by Defendant Snyder on
November 16, 2015, who provided Plaintiff with a note of her assessment. Id. ¶ 35.
Plaintiff states that Defendant Snyder’s assessment confirmed that Plaintiff’s rash had
spread “all over his body” and that he had been using a cream for his rash since
November 3, 2015, without improvement. Id. ¶ 35. With regard to his blurred vision,
however, Plaintiff avers that Defendant Snyder failed to even acknowledge or address
this issue. Id. ¶ 36. Plaintiff further states that Defendant Snyder reminded Plaintiff about
his November 19, 2015 follow-up appointment with Defendant Crum. Id. ¶ 37.
The November 19, 2015 follow-up appointment with Defendant Crum was
“abruptly cancelled without explanation” on an unspecified date.
Id. ¶ 38.
This
appointment was rescheduled on November 23, 2015. Id. ¶ 39. During Plaintiff’s followup appointment, Plaintiff explained the issues he was having with his eyesight. Id. ¶ 39.
Defendant Crum agreed that Plaintiff should see an ophthalmologist but decided that they
should wait a week before contacting such a specialist. Id. Plaintiff “was very concerned
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about having to wait a week,” but decided to trust and defer to Defendant Crum’s medical
judgment. Id. ¶ 41.
After returning from this appointment, Plaintiff sent another medical kite which
indicated that he was seeing black spots in one of his eyes and that his rash was
continuing to get worse. Id. ¶ 42. Plaintiff states: “the only indication that this kite was
ever even seen by medical personnel is Defendant Ann Jacobson’s stamped signature in
the ‘triage box’ in one corner, where she checked the box designating [Plaintiff’s] kite as
‘routine’ although it should have been anything but.” Id. ¶ 43. Plaintiff further alleges that
the assessment notes did not address his complaint about seeing black spots in one of
his eyes and that there was no indication that Defendant Jacobson reported or addressed
this request for medical attention. Id.
On or around December 3, 2015, Plaintiff sent another medical kite to report that
he was losing vision in one eye and that he was really concerned about his vision. Id. ¶
44. Defendant McCoy acknowledged Plaintiff’s complaint about his vision by writing,
“[patient] states that [he] is having problem seeing out of R Eye (sic).” Id. Defendant
McCoy prepared a treatment plan for Plaintiff, scheduling an appointment for December
12, 2015. Id. ¶ 45. However, Plaintiff was scheduled to be released on December 12,
2015, “a fact which he repeatedly told medical staff at the jail.” Id.
Plaintiff submitted his final kite on December 9, 2015, in which he indicated that he
was almost completely blind in his right eye and that he was beginning to lose his vision
in his left eye. Id. ¶ 46. He also noted in the kite that, although Defendant Crum had
advised on November 23, 2015,6 that they wait one week to contact an ophthalmologist,
6
The Amended Complaint states that the final kite referred to November 13, 2015, as
the date on which Defendant Crum advised Plaintiff of the one-week wait to contact a specialist.
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nurses had scheduled Plaintiff for a follow-up appointment three weeks later. Id. ¶ 46.
Plaintiff alleges that, despite the issues raised in his kite, Defendant McFerrin wrote the
following in his assessment: “[inmate] walking around pod in no apparent distress. Not
favoring one eye over the other.” Id. ¶ 47. Plaintiff further alleges that Defendant
McFerrin’s assessment stated that “[inmate] states no complaints when asked” which,
according to Plaintiff, was false given that Plaintiff “was panicked about his rapidly
deteriorating eyesight and Denver Health’s apparent unwillingness to do anything about
it.” Id. ¶ 47. Additionally, Plaintiff avers that Defendant McFerrin reiterated the fact that
Plaintiff had a doctor’s appointment on December 21, 2015, nine days after his scheduled
release date. Id. ¶ 48. According to Plaintiff, Defendant McFerrin falsely reported that
Plaintiff stated this date was “fine.” Id.
On an unspecified date shortly thereafter, Plaintiff gave an inmate message form
to an unidentified deputy which indicated that Plaintiff was 90% blind in his right eye and
that he was not receiving the treatment he was told he would receive. Id. ¶ 49. Plaintiff
alleges that this deputy “[c]allously . . . wrote [back] ‘RN wants you to kite! Does not cost
to kite. Cost’s [sic] to be seen” and returned the message without delivering it to medical
staff. Id. ¶ 50. No additional facts are alleged with respect to this incident.
On December 12, 2015, Plaintiff was released from VCSDC without ever having
seen Defendant Crum again or having seen a specialist. Id. ¶ 51. Soon after his release,
Plaintiff’s personal doctor referred him to a specialist at the Denver Retina Center who
Am. Compl. [#30] ¶ 46. However, as Defendant Denver notes, there is no allegation in the
Amended Complaint of a November 13, 2015 meeting or appointment with Defendant Crum.
Denver Motion [#35] at 5 n.1. In his Reply, Plaintiff concedes that this was a typographical error
and that the date referred to in this allegation should have been November 23, 2015. Reply [#47]
at 4 n.1.
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immediately diagnosed Plaintiff with ocular syphilis. Id. ¶¶ 52-53.
Plaintiff’s diagnosis
was confirmed and he was admitted to Rose Medical Center for two weeks of aggressive
antibiotic treatment. Id. ¶ 54. Although the antibiotic treatment stopped the progress of
the infection and the deterioration of Plaintiff’s eyesight, he states that his previous vision
loss could not be reversed. Id. ¶ 55. Ultimately, Plaintiff was diagnosed with three
conditions, all of which were caused by the ocular syphilis: (1) pseudopapilledema of the
optic disc of his right eye; (2) toxic maculopathy in his right eye; and (3) lattice
degeneration of the retina in his left eye. Id. ¶ 56.
Plaintiff alleges that he has lost 70% of the vision in his right eye and that his preexisting nearsightedness has gotten worse because of Defendants’ deliberate
indifference to his serious medical needs. Id. ¶ 57. Plaintiff believes that, if he had been
allowed to see a specialist in a timely manner, his eyesight could have been saved. Id. ¶
58. Plaintiff further states that, because of this incident, he continues to require intensive
medical treatment, his ability to work has been limited, and that he suffers from deep
depression. Id. ¶¶ 59-61.
Plaintiff asserts three claims for relief: (1) a Fourteenth Amendment Claim for
failure to provide medical care and treatment against all the individual Defendants (Claim
One); (2) a § 1983 municipal liability claim for failure to train and supervise against
Defendants Denver and Denver Health (Claim Two); and (3) a § 1983 claim for
supervisory liability for failure to train and supervise against Defendants Crum and Jane
Doe (Claim Three). Am. Compl. [#30] ¶¶ 70-95.
The Medical Defendants’ Motion [#34] seeks to dismiss (1) Plaintiff’s first claim
against Defendants Crum, Snyder, Rosales, Jacobson, and McCoy; (2) Plaintiff’s second
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and only claim against Defendant Denver Health; and (3) Plaintiff’s third claim against
Defendant Crum.7 The Denver Motion [#35] seeks to dismiss Plaintiff’s second and only
claim against Defendant Denver.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R.
Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not
to weigh potential evidence that the parties might present at trial, but to assess whether
the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact to state a claim for relief that is plausible
on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support
the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)).
7 The Medical Defendants’ Motion appears to also seek dismissal of all claims against
Defendants McFerrin and Jane Doe. [#34] at 1 n.1 (“The arguments and positions taken in this
motion support dismissal of all claims against them as well.”). However, Defendant McFerrin’s
response to the Amended Complaint remains pending and counsel has not yet entered an
appearance on his behalf. Defendant Jane Doe remains unidentified and is not yet a proper party
to the case. For these reasons, the Court does not construe the Medical Defendants’ Motion
[#34] as seeking to dismiss the claims against Defendants McFerrin and Jane Doe, and does not
consider Plaintiff’s claims with respect to these Defendants.
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“A claim has facial plausibility when the plaintiff pleads factual content that allows
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). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] [ ]
that the pleader is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 556 U.S.
at 679 (second brackets added; citation and internal quotation marks omitted).
III. Analysis
A.
Defendant Crum (Official Capacity)
As an initial matter, the Court notes that “[a]n action against a person in his official
capacity is, in reality, an action against the government entity for whom the person works.”
Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998). Thus, “where a suit
contains both entity and official capacity claims, the only defendant is the entity.” Doe v.
Douglas Cnty. Sch. Dist., 775 F. Supp. 1414, 1416 (D. Colo. 1991). “Naming either is
sufficient. Naming both is redundant.” Stump v. Gates, 777 F. Supp. 808, 816 n.3 (D.
Colo. 1991).
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Here, Plaintiff has named Defendant Crum in his individual and official capacities
as an employee of Denver Health. See Am. Compl. [#30]. Defendant Crum is named in
Plaintiff’s claim for Fourteenth Amendment deliberate indifference (Claim One) and
Plaintiff’s claim for § 1983 supervisory liability (Claim Three). Plaintiff’s § 1983 claim for
municipal liability (Claim Two) is asserted only against Defendants Denver Health and
Denver. Accordingly, the Court construes Claims One and Two as being asserted against
Defendant Crum in his individual capacity only.
To the extent that Plaintiff names
Defendant Crum in his official capacity regarding either claim, the Court finds that doing
so would be duplicative of Claim Two against Defendant Denver Health. See Atwell v.
Gabow, Civ. No. 07-cv-2063-JLK, 2008 U.S. Dist. LEXIS 31861, at *18-19 (D. Colo.
March 31, 2008) (“claims against [the individual defendants] in their ‘official capacities’
are claims against Denver Health and need not be separately stated”); Drake v. City and
County of Denver, 953 F. Supp. 1150 (D. Colo. 1997) (a suit against a governmental
entity employee in his “official capacity” is the same as a suit against the entity, and the
naming of both as defendants is in a lawsuit under § 1983 is redundant).
B.
Claim One: Fourteenth Amendment Failure to Provide Medical Care and
Treatment Claim
In Claim One, Plaintiff alleges that Defendants Crum, Snyder, Rosales, Jacobson,
McCoy, McFerrin, and Jane Doe, in their individual capacities, violated Plaintiff’s
Fourteenth Amendment right to be free from deliberate indifference to his known serious
medical needs. Am. Compl. [#30] ¶ 73, 77. Plaintiff generally asserts that “[e]ach
individual Defendant knew or should have known that deliberately disregarding Plaintiff’s
repeated, unambiguous assertions that he was losing his vision posed a substantial risk
of serious harm to Plaintiff’s safety; yet Defendants’ deliberately disregarded that obvious,
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substantial risk, and failed to take reasonable measures to protect Plaintiff from that risk.”
Id. ¶ 74. The Medical Defendants, consisting of Defendants Crum, Snyder, Rosales,
Jacobson, and McCoy, argue that: (1) Plaintiff fails to adequately allege a cause of action
for deliberate indifference; and (2) they are entitled to qualified immunity on Plaintiff’s
Fourteenth Amendment deliberate indifference claim. Medical Defendants’ Motion [#34]
at 5-11.
The doctrine of qualified immunity “shields government officials performing
discretionary functions from liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Boles v. Neet, 486 F.3d 1177, 180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The Court’s analysis of qualified immunity in the context of a
Rule 12(b)(6) motion involves two inquiries. The Court must determine whether the
alleged facts taken in the light most favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). The Court must also
consider whether the plaintiff has shown that “the constitutional right was clearly
established at the time of the alleged unlawful activity.” Swanson v. Town of Mountain
View, Colo., 577 F.3d 1196, 1199 (10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S.
223, 232 (2009)). The Court may assess these inquiries in either order. Pearson, 555
U.S. at 236.
The Tenth Circuit has stated that a pretrial detainee’s Fourteenth Amendment
deliberate indifference claim of inadequate medical care should be evaluated pursuant to
the standards set by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97
(1976), which concerned a convicted prisoner’s Eighth Amendment deliberate
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indifference claim. Blackmon v. Sutton, 734 F.3d 1237, 1244 (10th Cir. 2013) (stating
that pretrial detainees are owed “at least the same standard of care prison officials owe
convicted inmates”); see Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018)
(“Pretrial detainees are protected under the Due Process Clause rather than the Eighth
Amendment. In determining whether [pretrial detainee’s] rights were violated, however,
we apply an analysis identical to that applied in Eighth Amendment cases brought
pursuant to § 1983.” (quoting Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999)).
Because detainees “must rely on prison authorities to treat [their] medical needs,” the
Supreme Court has held that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Estelle, 429 U.S. at 103-04 (quoting Gregg v. Georgia, 428 U.S.
153, 173 (1976)). The test for deliberate indifference is both objective and subjective, in
that a detainee must establish that: (1) he was deprived of a medical need that is,
objectively, “sufficiently serious,” and (2) that the defendant subjectively knew of and
disregarded “an excessive risk to [the detainee’s] health or safety.” Farmer v. Brennan,
511 U.S. 825, 834, 837 (1994).8
1.
Objective Prong: Sufficiently Serious Condition
8 The Tenth Circuit Court of Appeals, in a recent, unpublished opinion, has noted that
circuit courts “are split on whether [Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015),] alters the
standard for conditions of confinement and inadequate medical care claims brought by pretrial
detainees,” with the Second, Seventh, and Ninth Circuits saying it has done so and with the Fifth,
Eighth, and Eleventh Circuits saying it has not done so and that Kingsley applies only to excessive
force claims. Estate of Vallina v. Cty. of Teller Sheriff’s Office, __ F. App’x __, __, No. 17-1361,
2018 WL 6331595, at *2 (10th Cir. Dec. 4, 2018). The Tenth Circuit has not yet directly
determined this issue. See id. However, given that the parties have not raised this issue, and
the Tenth Circuit’s last published statement on the appropriate test indicates that the standard
has not changed at this time, see Perry, 892 F.3d at 1121, the Court proceeds on the basis that
the Fourteenth and Eighth Amendment standards are identical for purposes of Plaintiff’s claims.
See Estate of Vallina, 2018 WL 6331595, at *3.
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With respect to the objective prong, the Court considers whether Plaintiff’s harm
suffered “rises to a level ‘sufficiently serious’ to be cognizable under the Cruel and
Unusual Punishment Clause” of the Eighth Amendment. Mata v. Saiz, 427 F.3d 745,
752-53 (10th Cir. 2005). A medical need is “sufficiently serious if it is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Id. at 751
(citation and internal quotation marks omitted). Further, “it is the harm claimed by the
prisoner that must be sufficiently serious to satisfy the objective component, and not
solely ‘the symptoms presented at the time the prison employee had contact with the
prisoner.’” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Mata, 427
F.3d at 752–53).
The Medical Defendants argue that “Plaintiff’s allegations do not satisfy the
objective component of deliberate indifference because he received prompt assessments
and treatments based on his alleged complaints.” Medical Defendants’ Motion [#34] at
7.
However, the Court finds that this argument does not challenge the objective
seriousness of Plaintiff’s medical condition but, instead, raises an issue regarding the
subjective prong of the deliberate indifference analysis. See Mathison v. Wilson, No. 14cv-03345-RM-STV, 2017 WL 4221396, at *6 (D. Colo. Feb. 28, 2017), report and
recommendation adopted, 2017 WL 4227570 (D. Colo. May 10, 2017), aff'd, 719 F. App’x
806 (10th Cir. 2017) (noting the issue of whether plaintiff had a sufficiently serious medical
condition is separate from the inquiry into the adequacy of the treatment provided for that
condition).
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Plaintiff alleges that he was ultimately diagnosed with ocular syphilis which caused
him to lose 70% of the vision in his right eye. Am. Compl. [#30] ¶¶ 53, 56, 57. This District
has held held that a loss of vision allegedly due to a delay in treatment is sufficiently
serious under the Eighth Amendment. Estes v. Fortunato, No. 10-cv-01478-REB-CBS,
2011 WL 4369124, at *8 (D. Colo. Aug. 9, 2011), report and recommendation adopted,
2011 WL 4369120 (D. Colo. Sept. 19, 2011) (finding loss of vision “sufficiently serious”
for purposes of the objective prong (collecting cases)); see also Randolph v. Glanz, 2016
U.S. Dist. LEXIS 126311, *9-10 (finding plaintiff’s allegation that he became 85% blind in
his left eye was “sufficiently serious” to satisfy the deliberate indifference objective prong).
Accordingly, with respect to each of the individual Medical Defendants below, the Court
finds that Plaintiff alleges a sufficiently serious medical condition for the purpose of his
medical indifference claim.
2.
Subjective Prong: Knowledge and Disregard of Excessive Risk
The subjective component of the deliberate indifference test “requires a plaintiff to
demonstrate that officials acted with a ‘sufficiently culpable state of mind.’” Vega v. Davis,
673 Fed. App’x. 885, 890 (10th Cir. 2016) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). Further, “a prison official cannot be liable unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be 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.” Self v. Crum, 439 F.3d 1227, 1231 (10th
Cir. 2006) (internal quotation marks omitted).
Importantly, “it is obduracy and
wantonness, not inadvertence or error in good faith,” that characterize the conduct
prohibited by the Cruel and Unusual Punishment Clause. Whitley v. Albers, 475 U.S. 312,
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319 (1986). Additionally, a medical professional can be liable under the deliberate
indifference standard if he “knows that his role in a particular medical emergency is solely
to serve as a gatekeeper for other medical personnel capable of treating the condition,
and if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference, it
stands to reason that he may also be liable for deliberate indifference from denying
access to medical care.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). In
order to “establish gatekeeper liability, a plaintiff must still allege that the need for medical
care was obvious to the prison official.” Estate of Martinez v. Taylor, 176 F. Supp. 3d
1217, 1227 (D. Colo. 2016).
Here, the Medical Defendants argue that Plaintiff’s allegations fail to satisfy the
subjective component with respect to them because there are no allegations that
Defendant Crum or the nursing staff “ever actually knew or even suspected that Plaintiff
had syphilis or ocular syphilis, or any other condition requiring more immediate treatment
than was provided.” Medical Defendants’ Motion [#34] at 8. The Medical Defendants
further assert that “Plaintiff alleges no facts suggesting that [Defendant] Crum or the
nursing staff acted with actual malice, or were aware of, and disregarded, a substantial
risk of serious harm to Plaintiff.” Id. at 9. Plaintiff contends that “[i]t is clear from the
allegations in the Amended Complaint that any treatment provided by the Medical
Defendants was grossly inadequate . . . and even purposefully deficient so as to comply
with Denver Health’s custom, policy, and practice of providing lacking care.” Response
[#48] at 10. Plaintiff further states that “[t]he Amended Complaint alleges that [the Medical
Defendants] all personally fielded unambiguous complaints from [Plaintiff], either in
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writing or in person, that he was having trouble seeing, and that none of them took
reasonable steps to ensure that he received further medical treatment.” Id. at 11.
In addressing these arguments, the Court considers the specific facts and
circumstances surrounding Plaintiff’s claim against each individual Medical Defendant
and whether Plaintiff has sufficiently alleged the subjective component of the deliberate
indifference test in order to state a plausible deliberate indifference claim.
a.
Defendant Crum (Individual Capacity)
Plaintiff asserts that Defendant Crum is the only medical doctor assigned to the
Denver Jail. Am. Compl. [#30] ¶ 30. Plaintiff alleges that he had an appointment with
Defendant Crum on or around November 5, 2015, during which they discussed the issues
Plaintiff was having with his ulcerative colitis, back pain, and pain from a poorly healed
broken foot. Id. ¶ 30. According to Plaintiff, a follow-up appointment with Defendant Crum
was scheduled for November 19, 2015, but was “abruptly cancelled without any
explanation” and did not occur until four days later, on November 23, 2015. Id. ¶¶ 30, 38,
39. Plaintiff states that he explained to Defendant Crum the issue he was having with his
eyesight during the November 23, 2015 appointment. Id. ¶ 39. Plaintiff alleges that
Defendant Crum agreed that Plaintiff should see an ophthalmologist but decided that they
should wait a week before contacting such a specialist. Id. ¶¶ 39-40. Finally, Plaintiff
states that, despite Defendant Crum’s decision to wait one week before contacting a
specialist, “the nurses had scheduled him for a follow-up appointment three weeks later.”
Id. ¶ 46. Plaintiff states that he was released from jail on December 12, 2015, without
having seen Defendant Crum again, or having seen a specialist. Id. ¶ 51.
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With respect to the subjective component of the deliberate indifference test,
Plaintiff’s allegations indicate that Defendant Crum first knew of Plaintiff’s eyesight issues
on November 23, 2015, and recommended a one-week wait before scheduling an
appointment with an ophthalmologist. Am. Compl. [#30] ¶¶ 39-40. However, Plaintiff
alleges no facts to suggest that the threat of vision loss was obvious to Defendant Crum
or made known to him during or after this appointment. Defendant Crum appears to have
responded to Plaintiff’s reported symptoms by taking a “wait and see” approach to which
Plaintiff did not object. “If a prison doctor . . . responds to an obvious risk with treatment
that is patently unreasonable, a jury may infer conscious disregard.... But where a doctor
orders treatment consistent with the symptoms presented and then continues to monitor
the patient’s condition, an inference of deliberate indifference is unwarranted under our
case law.” Self, 439 F.3d at 1232. While Plaintiff makes the conclusory assertion that
Defendant Crum failed to take reasonable steps to ensure that Plaintiff received further
medical treatment, Response [#48] at 11, “[t]he decision that a patient’s condition requires
a specialist is a decision about the patient’s course of treatment, and ‘negligent diagnosis
or treatment of a medical condition do[es] not constitute a medical wrong under the Eighth
Amendment,’” Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (quoting Ramos
v. Lamm, 639 F.2d 559, 575 (10th Cir.1980) (brackets in the original)).
Thus, Plaintiff has not sufficiently alleged that Defendant Crum’s response to
Plaintiff’s condition was constitutionally inadequate in light of the information Plaintiff
alleges Defendant Crum had at the time. Based on Plaintiff’s allegations, construing them
in the light most favorable to him, there is no indication that Defendant Crum knew that
Plaintiff was at “a substantial risk of serious harm” following the November 23, 2015
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appointment and before Plaintiff’s December 12, 2015 release. See Farmer, 511 U.S. at
842; see also Duffield, 545 F.3d at 1239 (“[T]he ‘contention that [plaintiff] was denied
treatment by a specialist is . . . insufficient to establish a constitutional violation.’” (quoting
Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992)); Self, 439 F.3d at 1230
(“‘[I]nadvertent failure to provide adequate medical care’ is not enough, nor does ‘a
complaint that a physician has been negligent in diagnosing or treating a medical
condition . . . state a valid claim of medical mistreatment under the Eighth Amendment.’”
(quoting Estelle, 429 U.S. at 105, 106 (ellipses in the original)).
Additionally, the Court agrees with the Medical Defendants that the ‘abrupt
cancellation’ of Plaintiff’s November 19, 2015 follow-up appointment does not amount to
deliberate indifference. Medical Defendants’ Reply [#51] at 4. Plaintiff does not allege
that the cancellation was for an improper reason or that Defendant Crum had any
involvement in the cancellation. See generally Am. Compl. [#30]; see Berry v. Peterman,
604 F.3d 435, 442 (7th Cir. 2010) (“Anyone who has ever visited a doctor’s office knows
that some delays in treatment are inevitable, particularly absent a life-threatening
emergency.”).
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s first claim against Defendant Crum, in his individual capacity, is dismissed with
prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006)
(holding dismissal on the merits of the complaint is ordinarily with prejudice).
b.
Defendant Rosales
The only allegation Plaintiff makes with respect to Defendant Rosales is that she
reviewed Plaintiff’s November 10, 2015 kite regarding his skin rash and, on the following
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day, proposed a treatment plan for him to be evaluated “in nearly three weeks, on
December 1, 2015.” Am. Compl. [#30] ¶ 33.
With respect to the subjective component of the deliberate indifference test, the
Court finds that Plaintiff has failed to allege that Defendant Rosales was aware of a
significant risk of serious injury to Plaintiff and deliberately disregarded that risk. See
Farmer, 511 U.S. at 837. Based on Plaintiff’s limited allegations, construing them in the
light most favorable to him, there is no indication that Defendant Rosales knew that
Plaintiff was at “a substantial risk of serious harm” at the time she proposed a treatment
plan. Id. at 842. Plaintiff’s only description of his skin rash at this time is that it was “all
over his body,” that it did not itch, and that a “deputy agreed that the rash looked serious.”
Am. Compl. [#30] ¶ 31. Without more, it cannot be said that Defendant Rosales was
“aware of facts from which the inference could be drawn that a substantial risk of serious
harm exist[ed],” Self, 439 F.3d at 1231, or “that the need for medical care was obvious,”
Estate of Martinez, 176 F. Supp. 3d at 1227. See Stepnay v. Goff, 164 F. App’x 767, 770
(10th Cir. 2006) (“[Plaintiff] may not avoid dismissal, however, by merely asserting
conclusory allegations that his condition obviously required a doctor's attention because
most skin conditions are not intuitively serious.”); compare, e.g., Oxendine v. Kaplan, 241
F.3d 1272, 1278 (10th Cir. 2001) (holding that ineffectiveness of the prison doctor’s
reattachment and care of the inmate’s severed finger was so obvious a lay person would
recognize the need for a doctor’s attention where the inmate’s finger tissue blackened
and necrified).
Furthermore, Plaintiff’s limited factual allegation fails to demonstrate that
Defendant Rosales had a culpable state of mind. See Hill v. Corr. Corp. of Am., No. 07-
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cv-00571-LTB-CBS, 2009 WL 2475134, at *4 (D. Colo. Aug. 11, 2009) (finding that the
plaintiff’s allegations that the “defendants failed to give adequate medical treatment” or
that delays in medical treatment cause “severe complications and furtherance of pain and
suffering” were inadequate to allege that the medical defendants had a sufficiently
culpable state of mind constituting deliberate indifference). A mere disagreement with
the medical treatment received simply does not constitute a constitutional violation. Id.
Plaintiff fails to assert that his allegation regarding Defendant Rosales is anything more
than a difference in opinion regarding appropriate medical care. See Callahan, 471 F.3d
at 1160. Therefore, the Court finds that Plaintiff fails to allege anything more than a mere
exercise of Defendant Rosales’ medical judgment, which does not rise to the level of
deliberate indifference in violation of the Eighth or Fourteenth Amendments. See Self,
439 F.3d at 1232.
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s first claim against Defendant Rosales is dismissed with prejudice.
See
Brereton, 434 F.3d at 1216-17 (holding dismissal on the merits of the complaint is
ordinarily with prejudice).
c.
Defendant Snyder
Plaintiff’s allegations against Defendant Snyder solely concern her response to
Plaintiff’s November 15, 2015 kite for medical attention. See Am. Compl. [#30] ¶¶ 34-37.
In the kite, Plaintiff indicated that he was beginning to experience blurred vision and that
his preexisting rash was getting worse. Id. ¶ 34. Plaintiff alleges that Defendant Snyder’s
November 16, 2015 assessment “did not even acknowledge [Plaintiff’s] complaint about
his vision” but did “confirm that [Plaintiff’s] rash was indeed all over his body” and that
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Plaintiff had been using a cream for his rash for nearly two weeks without improvement.
Id. ¶ 35.
Plaintiff asserts that “[d]espite the serious complaint that [Plaintiff] was
experiencing blurred vision, Defendant Snyder did nothing to address that issue.” Am.
Compl. [#30] ¶ 36. Plaintiff’s only other allegation regarding Defendant Snyder is that she
also reminded Plaintiff of his November 19, 2015 follow-up appointment with Defendant
Crum. Id. ¶ 37.
With respect to the subjective component of the deliberate indifference test, the
allegations concerning Defendant Snyder do not suggest that she was aware that Plaintiff
was experiencing anything more than blurred vision and his growing skin rash. See id. ¶
34. Again, although Plaintiff alleges the extent of his skin rash, he does not allege its
severity with any specificity. See id. ¶¶ 31, 33, 35. Further, he does not state the degree
to which his vision was blurred when he was seen by Defendant Snyder. See id. ¶ 3436; Alexander v. Richter, No. 15-cv-766-WMC, 2017 WL 5634132, at *3 (W.D. Wis. Nov.
22, 2017), aff’d, No. 18-1115, 2018 WL 6720935 (7th Cir. Dec. 20, 2018), reh’g denied
(Jan. 9, 2019) (“the need for an eye examination alone is generally insufficient to establish
a serious medical need” (citing Franklin v. McCaughtry, 110 Fed. App’x. 715, 721 (7th
Cir. 2004)). Thus, Plaintiff fails to demonstrate that Defendant Snyder was aware that
Plaintiff’s blurred vision and skin rash constituted substantial health risks requiring
immediate treatment before Plaintiff’s follow-up appointment with Defendant Crum only
three days later on November 19, 2015. See Estate of Martinez, 176 F. Supp. 3d at 1227;
Self, 439 F.3d at 1231, Stepnay, 164 F. App’x at 770. Although the follow-up appointment
was subsequently rescheduled to November 23, 2015, Plaintiff nowhere alleges that
Defendant Snyder was aware of or played a role in rescheduling the appointment.
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Moreover, Plaintiff’s allegations fail to aver specific facts demonstrating that
Defendant Snyder had a culpable state of mind. See Hill v. Corr. Corp. of Am., No. 07cv-00571-LTB-CBS, 2009 WL 2475134, at *4 (D. Colo. Aug. 11, 2009) (finding that the
plaintiff’s allegations that the “defendants failed to give adequate medical treatment” or
that delays in medical treatment cause “severe complications and furtherance of pain and
suffering” were inadequate to allege that the medical defendants had a sufficiently
culpable state of mind constituting deliberate indifference). Although Plaintiff alleges that
Defendant Snyder “did not even acknowledge [the] complaint about his vision” and “did
nothing to address that issue,” Am. Compl. [#30] ¶¶ 35-36, Plaintiff presents no facts to
suggest that this failure amounts to deliberate indifference rather than mere negligence.
Estelle, 429 U.S. at 105 (“An inadvertent failure to provide adequate medical care cannot
be said to constitute an ‘unnecessary and wanton infliction of pain[.]’”). “‘[A] complaint
that a physician has been negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth Amendment.’” Green v.
Branson, 108 F.3d 1296, 1303 (10th Cir. 1997) (quoting Estelle, 429 U.S. at 106); see
also Pressley v. Blaine, 544 F. Supp. 2d 446, 454 (W.D. Pa. 2008) (“Medical malpractice
may give rise to a tort claim in state court but does not necessarily rise to the level of a
federal constitutional violation.” (citations omitted)).
Plaintiff generally avers that “[t]he alleged facts raise an inference that the Medical
Defendants had knowledge of [Plaintiff’s] specific need for the attention of a medical
specialist due to the seriousness of claims of declining vision.” Response [#48] at 10
(citing Self, 439 F.3d at 1232). However, blurred vision or a skin rash are not the kind of
ailments that often point to a risk of serious harm. See Stepnay, 164 F. App’x at 770
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(“most skin conditions are not intuitively serious.”); Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (“Delays that courts have found to violate the Eighth Amendment have
frequently involved life-threatening situations and instances in which it is apparent that
delay would exacerbate the prisoner’s medical problems.”); Gillon v. Beeman, No. 10-cv00839-MSK-KMT, 2011 WL 6046929, at *4 (D. Colo. Dec. 5, 2011) (granting summary
judgment where no facts demonstrate “the person [to whom plaintiff] complained . . . was
aware that ‘black spots’ could be caused by a detached retina requiring an examination
before the next optometric clinic”); Alexander, 2017 WL 5634132, at *3 (stating need for
eye exam alone generally insufficient to establish serious medical need).
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s first claim against Defendant Snyder is dismissed with prejudice.
See
Brereton, 434 F.3d at 1216-17 (holding dismissal on the merits of the complaint is
ordinarily with prejudice).
d.
Defendant Jacobson
Plaintiff’s allegations regarding Defendant Jacobson concern the medical kite
Plaintiff sent after his November 23, 2015 appointment with Defendant Crum. Am. Compl.
[#30] ¶ 42-43. Plaintiff alleges that this kite “plainly stated that he was seeing black spots
in one of his eyes” and that his rash was continuing to get worse. Id. [#30] ¶ 42. Plaintiff
asserts that Defendant Jacobson reviewed the kite and designated it as “routine” despite
the apparent urgency. Id. ¶ 43. Plaintiff further alleges that the assessment notes, which
the Court presumes for the sake of the argument were prepared by Defendant Jacobson,
did not address Plaintiff’s complaint about seeing black spots in one of his eyes and gave
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no indication that Defendant Jacobson reported or addressed this request for medical
attention. Id.
For the reasons set forth above, the Court finds that Plaintiff has failed to allege
that Defendant Jacobson knew of and disregarded an excessive risk to Plaintiff’s health
with a culpable state of mind to satisfy the subjective component of the deliberate
indifference test.
Although Plaintiff himself believed that his medical condition was
“anything but” routine at the time, he has not alleged sufficient facts to demonstrate that
this was obvious to Defendant Jacobson. Id. ¶ 43; see Estate of Martinez, 176 F. Supp.
3d at 1227; Gillon, 2011 WL 6046929, at *4; Alexander, 2017 WL 5634132, at *3. Further,
Plaintiff’s mere allegation that Defendant Jacobson marked the kite as “routine” and that
“there [was] no indication” that Defendant Jacobson addressed Plaintiff’s request for
medical attention is wholly inadequate to demonstrate a “sufficiently culpable state of
mind.” Self, 439 F.3d at 1230-31; see Farmer, 511 U.S. at 834.
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s first claim against Defendant Jacobson is dismissed with prejudice. See
Brereton, 434 F.3d at 1216-17 (holding dismissal on the merits of the complaint is
ordinarily with prejudice).
e.
Defendant McCoy
Plaintiff’s only allegation concerning Defendant McCoy is that, in response to
Plaintiff’s December 3, 2015 medical kite, Defendant McCoy acknowledged Plaintiff’s
complaint about his vision but scheduled Plaintiff for an appointment on December 21,
2015, despite the fact that Plaintiff was scheduled to be released on December 12, 2015.
Am. Compl. [#30] ¶¶ 44-45.
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Similar to Defendants Rosales and Snyder, Plaintiff’s sparse factual allegations
with respect to Defendant McCoy fail to demonstrate that this Defendant deliberately
disregarded an obvious and significant risk of serious injury to Plaintiff. Self, 439 F.3d at
1231. Plaintiff concedes that Defendant McCoy acknowledged his request for medical
treatment and, in serving his gatekeeper role, scheduled an appointment for Plaintiff to
be treated.
Am. Compl. [#30] ¶ 45.
Although Defendant McCoy scheduled the
appointment on a date after Plaintiff’s planned release, Plaintiff does not allege that
Defendant McCoy actually knew that Plaintiff would be released on December 12, 2015.
Instead, Plaintiff only states that his release date was “a fact which he repeatedly told
medical staff at the jail.” Id. ¶ 45. Without additional allegations, it cannot be said that
Defendant McCoy consciously disregarded a substantial risk to Plaintiff’s health. At most,
taking Plaintiff’s allegations as true, Defendant McCoy was negligent in scheduling the
appointment after Plaintiff’s release date. Self, 439 F.3d at 1233 (“‘[N]egligent failure to
provide adequate medical care, even one constituting medical malpractice, does not give
rise to a constitutional violation.’” (quoting Perkins v. Kan. Dep’t of Corrections, 165 F.3d
803, 811 (10th Cir. 1999)).
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s first claim against Defendant McCoy is dismissed with prejudice.
See
Brereton, 434 F.3d at 1216-17 (holding dismissal on the merits of the complaint is
ordinarily with prejudice).
C.
Claim Two: Section 1983 Municipal Liability for Failure to Train and
Supervise
In Claim Two, Plaintiff does not distinguish between Defendants Denver Health
and Denver with respect to his municipal liability claim. See Am. Compl. [#30] ¶¶ 81-88.
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He alleges that Denver Health and Denver “have repeatedly failed to properly train and
supervise their employees to recognize and appropriately respond to medical
emergencies.” Id. ¶ 83. He states:
These violations of inmates’ constitutional rights to receive adequate
medical care were so widespread and flagrant that in the proper exercise of
its official responsibilities, Defendants City and County of Denver and
Denver Health knew, or should have known, that its employees would fail
to adequately identify and respond appropriately to medical emergencies,
violating detainees’ constitutional rights.
Id. ¶ 84. Plaintiff further alleges that Defendants Denver Health and Denver “were
deliberately indifferent to the obvious serious medical needs of patients and jail detainees,
knowing that potentially fatal consequences could be suffered by such individuals
(including Mr. Weitzman) by failing to properly train and supervise their employees.” Id.
¶ 85. Further, Plaintiff asserts that these Defendants maintained policies, customs, or
practices that failed to properly train and supervise their employees which were the
moving forces and proximate cause of the violation of Plaintiff’s constitutional rights. Id.
¶ 86. Finally, Plaintiff alleges that the acts or omissions of Denver Health and Denver
“caused [him] damages in that he suffered physical and mental pain during the four
months he was incarcerated at the Denver County Jail, and ultimately lead to [his]
significant vison loss in his right eye and some in his left eye.” Id. ¶ 87.
“Local governing bodies . . . can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief 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.” Monell v. Dep’t of Soc. Servs. of N.Y.,
436 U.S. 658, 690 (1978) (footnote omitted). While Monell explicitly applies to municipal
governments, the Tenth Circuit has extended the Monell doctrine to private entities acting
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under color of state law. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir.
2003) (citations omitted). A private entity 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. (emphasis added) (internal quotation marks omitted).
“[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. Colo.
State Penitentiary, 656 Fed. App’x. 400, 403 (10th Cir. 2016) (quoting Dubbs, 336 F.3d
at 1215). To demonstrate “moving force,” there must be “a ‘direct causal link between
the action and the deprivation of federal rights.’” Ireland v. Jefferson Cty. Sheriff’s Dep’t,
193 F. Supp. 2d 1201, 1226 (D. Colo. 2002) (quoting Lopez v. LeMaster, 172 F.3d 756,
763 (10th Cir. 1999)). “The causation element is applied with especial rigor when the
municipal policy or practice is itself not unconstitutional, for example, when the municipal
liability claim is based upon inadequate training, supervision, and deficiencies in hiring.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013). The
plaintiff must show that “the policy was enacted or maintained with deliberate indifference
to an almost inevitable constitutional injury.” Id. at 769. “The deliberate indifference
standard may be satisfied when the [entity] 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 be in 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
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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).
A policy or custom can take the form of “the failure to adequately train . . . so long
as that failure results from deliberate indifference to the injuries that may be caused.”
Bryson, 627 F.3d at 788 (internal quotation marks omitted). “A municipality’s culpability
for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). 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 Harris, 489 U.S. at 390). Only where the failure to train amounts to “deliberate
indifference” can an inadequacy in training “be properly thought of as a city ‘policy or
custom.’” Connick, 563 U.S. at 61. Notice to the entity is vital when a plaintiff is
proceeding on a failure to train theory because “[w]ithout notice that a course of training
is deficient in a particular respect, decisionmakers can hardly be said to have deliberately
chosen a training program that will cause violations of constitutional rights.” Id. at 61.
Although the Court concludes above that Plaintiff has failed to adequately allege a
constitutional violation against Defendants Crum, Rosales, Snyder, Jacobson, and
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McCoy, Plaintiff’s Fourteenth Amendment deliberate indifference claim remains with
respect to Defendant McFerrin who has not yet responded to the Amended Complaint or
otherwise entered an appearance in this case.
Accordingly, the Court proceeds to
determine whether Plaintiff has sufficiently alleged a municipal custom, policy, or practice
with respect to his municipal liability claim against Defendant Denver Health and
Defendant Denver. Given that Plaintiff does not distinguish these Defendants within
Claim Two, the Court addresses Defendant Denver Health and Defendant Denver
together.
1.
Defendants Denver Health and Denver
Denver Health and Defendant Denver both argue that Plaintiff’s allegations fail to
identify a policy or custom that was the moving force behind the alleged constitutional
violation. Medical Defendants’ Motion [#34] at 13-14; Denver Motion [#35] at 14-18.
Specifically, Denver Health avers that Plaintiff fails “to identify a single, specific policy or
unofficial custom of Denver Health that resulted in the alleged deprivation of his
constitutional rights.” Medical Defendants’ Motion [#34] at 14 (citing Walker v. Wegener,
No. 11-cv-03238-PAB-KMT, 2012 WL 4359365, at *10 (D. Colo. Aug. 30, 2012), report
and recommendation adopted, 2012 WL 4355621 (D. Colo. Sept. 24, 2012)). In turn,
Defendant Denver asserts that Plaintiff “‘does not allege specific facts about who, what,
where, and when that establish a plausible claim’ that any policy, practice, or custom of
Denver was the moving force behind the alleged constitutional deprivation.”
Denver
Motion [#35] at 15 (quoting Rehberg v. The City of Pueblo, No. 10-cv-261, 2012 WL
1326575 at *5 (D. Colo. April 17, 2012)).
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In opposition, Plaintiff states that he has “allege[d] that the uniform deliberately
indifferent response by multiple caregivers to [Plaintiff’s] deteriorating and permanently
debilitating condition evidences a pattern of conduct and deliberately indifferent training
and supervision by Defendant Denver Health, an inference to which Plaintiff is entitled at
this procedural stage.” Response [#48] at 18 (citing Olsen v. Layton Hills Mall, 312 F.3d
1304, 1319 (10th Cir. 2002)). With respect to Defendant Denver, Plaintiff argues that
“Denver’s failure to provide even the most basic level of supervision over its medical
provider demonstrates deliberate indifference ‘as to its known or obvious consequences’
toward persons with whom their personnel come into contact.” Response [#47] at 13
(citing Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997)).
Even reading the Amended Complaint [#30] in a light most favorable to Plaintiff,
the Court finds that Plaintiff has failed to properly allege a policy or a custom as the
moving force behind his alleged constitutional violations. Plaintiff does not identify one
official policy or custom, nor does he identify any specific deficiency in Defendants Denver
Health and Denver’s training or supervision. See City of Canton, Ohio v. Harris, 489 U.S.
378, 391 (1989) (a claim for failure to train requires an identified deficiency in a training
program that closely relates to the ultimate injury). Instead, he rests this claim on the
vague assertion that Denver Health and Denver “have repeatedly failed to properly train
and supervise their employees to recognize and appropriately respond to medical
emergencies.” Am. Compl. [#30] ¶ 83. He supports this assertion with only conclusory
factual allegations that his injury “is just one example of Denver’s overwhelmingly
common deliberate indifference to the serious medical needs of inmates” and that “[t]he
City of Denver has created, fostered, tolerated, and perpetuated an environment and
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culture of deliberate indifference to the constitutional and statutory rights of citizens and
residents.” Id. ¶¶ 62-63.
One way of showing “deliberate indifference” is to cite a pattern of tortious conduct.
See Barney, 143 F.3d at 1307-08 (“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.”). Because a pattern of consistent constitutional
violations puts a municipality on constructive notice that its failure to train is a problem,
by not fixing the pattern, the municipality can then be said to display “deliberate
indifference.” Id. In the Amended Complaint, Plaintiff attempts to “showcase Denver’s
longstanding pattern and practice of deliberate indifference to the serious medical needs
of the inmates at its jail” by summarizing, without citation, five lawsuits where allegations
of deliberate medical indifference were made against Defendants Denver and/or Denver
Health. Am. Compl. [#30] ¶¶ 64-69.
However, as the Defendants correctly observe, Plaintiff fails to show that the
incidents underlying these lawsuits were the same or substantially similar to his alleged
constitutional injury. See Watson v. City of Kansas City, Kansas, No. 99-2106-CM, 2002
WL 922155, at *5 (D. Kan. Apr. 12, 2002), aff’d sub nom. Watson v. Unified Gov’t of
Wyandotte Cty./Kansas City, 70 F. App'x 493 (10th Cir. 2003) (“[I]n order for plaintiffs to
rely on prior grievances to establish a custom or usage sufficient to establish a municipal
policy or custom under Section 1983 principles, they must establish: 1) that the prior
grievances were the same or substantially similar to the plaintiffs' constitutional injury;
and 2) that the final policy-making authority of the municipality had actual or constructive
- 31 -
notice of the prior unconstitutional acts of employees to establish deliberate indifference.”
(citing Brown, 520 U.S. at 411).
Plaintiff draws no factual connection between these lawsuits and the present case.
Rather, Plaintiff relies on these five cases from 2008, 2010, and 2017 (three of which
resulted in settlements) to argue that “[t]he fact that these cases keep occurring again
and again evince [sic] Denver’s failure to train its employees to respond in an appropriate
and timely manner -- indeed to respond at all -- to the serious medical needs of its
inmates.” Response [#47] at 15; see Carter v. Morris, 164 F.3d 215, 218 (4th Cir.1999)
(“a plaintiff cannot rely upon scattershot accusations of unrelated constitutional violations
to prove either that a municipality was indifferent to the risk of [his] specific injury or that
it was the moving force behind [his] deprivation”); Morris v. City of N.Y., No. 12-cv-3959,
2013 WL 5781672, at *11 (E.D.N.Y. Oct. 28, 2013) (“The fact that two of the defendants
as well as a non-defendant supervising officer have had civil suits brought against them
in the past that resulted in settlements is not even evidence of wrongdoing, let alone that
the City has a custom or policy that fosters or results in wrongdoing.”). Such conclusory
allegations, however, fail to demonstrate that there was some unwritten policy or custom
that was so permanent and well-settled as to constitute a “custom or usage” with the force
of law. Monell, 436 U.S. at 691.
A related shortcoming of Plaintiff’s claim is his failure to allege that the supposed
indifference by Defendants Denver Health and Denver was the cause of his deprivation
of constitutional rights. Plaintiff must show a “direct causal link between the municipal
action and the deprivation of federal rights.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v.
Brown, 520 U.S. 397, 404 (1997). Plaintiff has not alleged the requisite causation to make
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his claim of municipal liability plausible. He merely alleges, in a conclusory fashion, that
Defendants Denver Health and Denver’s “policies, customs, or practices in failing to
properly train and supervise their employees were the moving forces and proximate
cause of the violation of [Plaintiff’s] constitutional rights.” Am. Compl. [#30] ¶ 86. Given
that “[t]he causation element is applied with especial rigor when the municipal policy or
practice is itself not unconstitutional, for example, when the municipal liability claim is
based upon inadequate training...[,]” this element of Plaintiff’s Monell claim is not satisfied.
Schneider, 717 F.3d at 770 (citation omitted).
Accordingly, the Medical Defendants’ Motion [#34] and Denver’s Motion [#35] are
granted to the extent that Plaintiff’s second claim against Defendant Denver Health and
Defendant Denver is dismissed with prejudice. See Brereton, 434 F.3d 1213, 1216-17
(holding dismissal on the merits of the complaint is ordinarily with prejudice).
D.
Claim Three: Section 1983 Supervisory Liability for Failure to Train and
Supervise
In Claim Three, Plaintiff alleges that Defendants Crum and Jane Doe, in their
supervisory role, acted intentionally in failing to properly train and supervise nurses and
other jail personnel to ensure the safety and well-being of detainees which was the
moving force and proximate cause of the violation of Plaintiff’s constitutional rights. See
Am. Compl. [#30] ¶¶ 90-95. Defendant Crum seeks to dismiss this claim on the following
grounds: (1) “Plaintiff has failed to adequately allege a violation of the Eighth
Amendment;” (2) Plaintiff has failed to allege any facts demonstrating that Defendant
Crum is a “supervisor” with a broad duty to “train and supervise deputy sheriffs, nurses,
and other jail personnel in order to ensure the safety and well-being of detainees;” (3)
Plaintiff fails “to allege any facts demonstrating that any conduct of these individuals
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(‘intentional’ or otherwise) constitutes a failure to train or supervise that is actionable
under § 1983 and was the ‘moving force’ behind a violation of Plaintiff’s constitutional
rights.” Medical Defendants’ Motion [#34] at 15-16.
In a § 1983 lawsuit, “supervisory liability allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, or implements a policy which subjects,
or causes to be subjected that plaintiff to the deprivation of any rights secured by the
Constitution.” Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015) (citations and internal
alterations omitted). This is not the same as “liability under a theory of respondeat
superior.” Id. “A plaintiff arguing for the imposition of supervisory liability therefore must
show an ‘affirmative link’ between the supervisor and the constitutional violation.” Id.
(internal quotation marks omitted)
Demonstration of an “affirmative link” between a supervisor and the alleged
constitutional injury requires (1) personal involvement, (2) sufficient causal connection,
and (3) culpable state of mind. Id. “Admittedly, the contours of supervisory liability are
still somewhat unclear after the Supreme Court decided Iqbal, which articulated a stricter
liability standard for personal involvement.”
Id. at 1248-49 (citations and internal
alterations omitted) (citing Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010)
(“Much has been made about [the supervisory-liability] aspect of Iqbal, but consensus as
to its meaning remains elusive.”).
Regardless, the Tenth Circuit’s “particularized
approach [still] applies with full force when a plaintiff proceeds under a theory of
supervisory liability.” Cox, 800 F.3d at 1249 (quoting Pahls v. Thomas, 718 F.3d 1210,
1226 (10th Cir. 2013). The Court continues to require plaintiffs to demonstrate “that each
defendant acted with the constitutionally requisite state of mind” by “identify[ing] . . .
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specific policies over which particular defendants possessed supervisory responsibility[ ]
that violated their clearly established constitutional rights.” Pahls, 718 F.3d at 1228.
A supervising prison official may be liable “[w]here there is essentially a complete
failure to train, or training that is so reckless or grossly negligent that future misconduct
is almost inevitable.” Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016) (citation
omitted). “It is not enough to allege ‘general deficiencies’ in a particular training program.”
Id. “Rather, a plaintiff must identify a specific deficiency in the entity’s training program
closely related to his ultimate injury, and must prove that the deficiency in training actually
caused his jailer to act with deliberate indifference to his safety.” Id. (internal alterations
omitted).
In the Amended Complaint [#30], the only factual allegation Plaintiff provides with
respect to Defendant Crum’s supervisory role is that: “Upon information and belief, the
nursing staff at the Denver Jail is often supervised and trained . . . by the medical doctor
(Dr. Crum)[.]” Am. Compl. [#30] ¶ 23. Without more, Plaintiff's conclusory allegation that
Defendant Crum failed to train subordinates who did not provide Plaintiff with appropriate
medical treatment is insufficient to state a claim. Plaintiff’s failure to allege an affirmative
link between Defendant Crum’s direct actions and the conduct of his subordinates is a
fatal omission. Without this link, the Amended Complaint does not allege any purpose by
Defendant Crum to violate Plaintiff's constitutional rights by failing to train his
subordinates.
Accordingly, the Medical Defendants’ Motion [#34] is granted to the extent that
Plaintiff’s third claim against Defendant Crum is dismissed with prejudice.
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See
Brereton, 434 F.3d 1213, 1216-1217 (holding dismissal on the merits of the complaint is
ordinarily with prejudice).
IV. Conclusion
IT IS HEREBY ORDERED that the Medical Defendants’ Motion [#34] is
GRANTED. Claim One is DISMISSED with prejudice with respect to Defendants Crum,
Snyder, Rosales, Jacobson, and McCoy. Claim Two is DISMISSED with prejudice with
respect to Defendant Denver Health. Claim Three is DISMISSED with prejudice with
respect to Defendant Crum.
IT IS FURTHER ORDERED that Denver’s Motion [#35] is GRANTED and that
Claim Two is DISMISSED with prejudice with respect to Defendant Denver.
Remaining in this lawsuit are Claim One against Defendants McFerrin and Jane
Doe and Claim Three against Defendant Jane Doe. See Am. Compl. [#30] at 13, 16.
Dated: March 31, 2019
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