Faircloth v. Hickenlooper et al

Filing 229

ORDER Defendants' Objection (ECF No. 227 ) is OVERRULED; The Recommendation (ECF No. 226 ) is ACCEPTED; and Defendants' Motion to Dismiss (ECF No. 204 ) is DENIED, by Judge Raymond P. Moore on 3/25/2021.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 18-cv-01249-RM-STV
JAMES ARTHUR FAIRCLOTH,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
DEAN WILLIAMS,
RICK RAEMISCH,
SUSAN TIONA,
RENAE JORDAN, and
RISHI ARIOLA-TIRELLA,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the Recommendation of United States Magistrate
Judge (the “Recommendation”) (ECF No. 226) to deny Defendants’ Motion to Dismiss (the
“Motion”) (ECF No. 204). Defendants have filed an Objection (ECF No. 227) which objects in
part to the Recommendation. After consideration of the Recommendation, Motion, Objection,
Plaintiff’s Response (ECF No. 228) to the Objection, and relevant parts of the court record, and
being otherwise fully advised, the Court finds and orders as follows.
I.

BACKGROUND
The Recommendation ably set forth the background which gives rise to Plaintiff’s action

so it will not be repeated here. Instead, the Court will provide a brief summary in order to give
context to this Order and provide additional background as appropriate in addressing the
Objection.

Briefly, Plaintiff, an inmate in the custody of the Colorado Department of Corrections
(“CDOC”), suffered from the chronic Hepatitis C Virus (“HCV”). Plaintiff alleges he was denied
treatment for his serious medical condition based on purely non-medical reasons, e.g., whether
he participated in a Drug and Alcohol Treatment Program. This denial was allegedly the result of
the requirements set forth or mandated under certain Clinical Standards and Practices (the
“Clinical Standards”) which Defendants Rishi-Tirella, Jordan, and Tiona approved and signed
and for which Defendant Raemisch was ultimately responsible. Plaintiff brings the following
claims for relief: (1) First Claim for injunctive relief against Defendant Williams under 42
U.S.C. § 1983 alleging violations of the Eighth and Fourteenth Amendments; (2) Second Claim
for damages against Defendants Raemisch, Rishi-Tirella, Jordan, and Tiona under 42 U.S.C. §
1983 alleging violations of the Eighth and Fourteenth Amendments; and (3) Third Claim against
CDOC for violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq.
Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) as to the First and Second
Claims arguing (1) failure to state a claim; (2) Defendants Raemisch, Rishi-Tirella, Jordan, and
Tiona are entitled to qualified immunity as to all claims against them in their individual
capacities; and (3) certain claims are barred by the statute of limitations. Defendants, in their
reply brief, however, withdrew their Motion without prejudice as to Defendant Williams. (ECF
No. 221, p. 6 n.1.) Accordingly, the Motion is only directed to the Second Claim against
Defendants Raemisch, Rishi-Tirella, Jordan, and Tiona. The Magistrate Judge found against
Defendants on all arguments and recommended denying the Motion. Defendants’ Objection
followed.
II.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of the

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magistrate judge’s recommendation to which a proper objection is made. An objection is proper
only if it is sufficiently specific “to focus the district court’s attention on the factual and legal
issues that are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060
(10th Cir. 1996). “In the absence of a timely objection, the district court may review a
magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991).
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must accept as
true all well-pleaded factual allegations in the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox,
613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also id. at 555 (“Factual allegations
must be enough to raise a right to relief above the speculative level.”).
III.

DISCUSSION
A. Sufficiency of § 1983 Allegations
A prison official’s deliberate indifference to an inmate’s serious medical needs violates

the Eighth Amendment, made applicable to the states by the Fourteenth Amendment. See Estelle
v. Gamble, 429 U.S. 97, 104 (1976).1 “Deliberate indifference” involves an objective and
subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). As relevant here, “[t]he
subjective prong of the deliberate indifference test requires the plaintiff to [demonstrate] the

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Defendants argued Plaintiff’s claim under the Fourteenth Amendment should be dismissed as duplicative of his
claim under the Eighth Amendment. Based on Plaintiff’s response to the Motion, the Recommendation construed
Plaintiff’s citation to the Fourteenth Amendment to simply reflect its role in applying the Eighth Amendment to the
states. (ECF No. 226, p. 8 n.3.) No party objects to this characterization; accordingly, the Court accepts such
construction of the § 1983 claims.

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prison official’s culpable state of mind.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The
subjective component is met “where the official knows of and disregards an excessive risk to
inmate health or safety, and there is an affirmative link between the constitutional deprivation
and the supervisor’s actions.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (quotation
marks and citation omitted). “This affirmative link has had three related, indistinct prongs in our
case law: (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of
mind.” Keith, 707 F.3d at 1188 (quotation marks and citation omitted).
Defendants argued the complaint failed to establish: (1) the objective component; (2) the
subjective component; and (3) personal involvement (supervisory liability) as required by
§ 1983. The Recommendation found otherwise. Defendants’ Objection challenges the findings as
to the second (subjective) and third (personal participation) interrelated factors, but not the first.
As no party objects to the Recommendation’s finding that the objective component has been
plausibly plead, and after finding no clear error, the Court accepts this finding. Thus, the Court
examines the Objection to the findings concerning personal participation and the subjective
component.
To start, Defendants argue Plaintiff fails to plead facts showing Defendants acted with
deliberate indifference. Defendants assert Plaintiff has pled nothing more than a medical
malpractice claim – a deviation from the accepted standard of medical care. This argument is
rejected. As Plaintiff counters, he does not allege there were alternative courses of treatment and
Defendants failed to choose Plaintiff’s preferred course of treatment. Instead, Plaintiff alleges
that Defendants failed to treat his chronic HCV at all.
Next, Defendants argue that, as to Defendants Rishi-Tirella, Jordan, and Tiona, Plaintiff’s
allegations that they approved and signed the Clinical Standards which resulted in Plaintiff’s

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unconstitutional delay of his HCV treatment are insufficient to meet the subjective component.
Such failure, Defendants assert, is tantamount to a failure to sufficiently allege personal
participation. In other words, Defendants contend that “merely” signing the Clinical Standards
with only threadbare allegations that any of the Defendants were made aware of Plaintiff’s
Hepatitis C concerns are insufficient. Plaintiff counters that he need not allege that each
supervisory defendant was deliberately indifferent towards Plaintiff individually, i.e., in
particular. Instead, Plaintiff contends, it is sufficient if his allegations are that the supervisory
defendant showed deliberate indifference toward the likelihood that the policy would result in
injury like the one Plaintiff suffered, citing to Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019).
Under Burke, where the defendant did not personally participate in the underlying
constitutional violation, supervisory liability may be predicated on allegations that defendant “(1)
… maintained a policy or custom that (2) led to the underlying constitutional violation and (3)
that he acted with deliberate indifference.” Burke, 935 F.3d at 999. Plaintiff’s allegations here are
sufficient to plausibly allege supervisory liability.
Plaintiff alleges that Defendants Rishi-Tirella, Jordan, and Tiona are the former Interim
Chief Medical Officer of CDOC responsible for medical care, the Director of Clinical and
Correctional Services of CDOC responsible for overseeing administration of prisoner care, and
the Chief Medical Officer of CDOC, respectively. Plaintiff further alleges these Defendants
approved and signed different versions of the Clinical Standards, the application or
implementation of which allegedly resulted in Plaintiff being refused treatment for his serious
medical condition even though non-defendant CDOC medical providers recognized his
condition. Finally, given these Defendants’ medical positions in CDOC, the allegations – and the
reasonable inferences to be drawn therefrom – are sufficient to support that they were

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deliberately indifferent to the risk that the non-medical requirements would result in a
constitutional violation like the one Plaintiff allegedly suffered. See Burke, 935 F.3d at 1000. See
also Keith, 707 F.3d at 1189 (“official’s knowledge of the risk need not be knowledge of a
substantial risk to a particular inmate, or knowledge of the particular manner in which injury
might occur” (italics in original, quotation marks and citation omitted)). Accordingly,
Defendants’ objections as to Defendants Rishi-Tirella, Jordan, and Tiona are overruled.
Defendants’ objection as to Defendant Raemisch is similarly unavailing. Plaintiff alleges
Defendant Raemisch was the CDOC Director at all relevant times, who had oversight and
authority over all aspects of the management and governance of CDOC, including responsibility
for the administration of medical care for prisoners in CDOC’s custody. In addition, Plaintiff
alleges that, as early as April 2014, Plaintiff began writing letters to Defendant Raemisch
complaining that he was being denied treatment of his chronic HCV. Plaintiff alleges he
specifically called Defendant Raemisch’s attention to guidelines on initiating HCV therapy.
Plaintiff also alleges his letters and grievances to Defendant Raemisch maintained that the Eighth
Amendment required CDOC to treat his HCV and that he should not be required to participate in
a Drug and Alcohol Treatment Program. Defendants contend these letters are analogous to cases
which have found that filing grievances with prison authorities are insufficient to establish
personal participation. The Court, however, is not persuaded.
Plaintiff’s allegations do not consist of merely a response and denial of a grievance by
someone who is not responsible for treatment. See Requena v. Roberts, 893 F.3d 1195, 1216
(10th Cir. 2018) (mere response and denial of grievance insufficient to establish personal
participation); Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012) (no liability where
defendant’s “only involvement was to deny the grievance appeal”). As stated by the Tenth

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Circuit in Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009), upon which Defendants rely, “a
denial of a grievance, by itself without any connection to the violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983.” 587 F.3d at 1069
(italics added). Here, as the Recommendation found, Plaintiff plausibly alleges that Defendant
Raemisch was aware of the constitutional violation and allowed it to continue. Here, Plaintiff’s
allegations tend to show that, as the Director of CDOC who possessed responsibility for
administration of medical care, including the Clinical Standards at issue, Defendant Raemisch
was aware of the substantial risks of serious harm in promulgating, implementing, and enforcing
the Clinical Standards. In other words, Defendant Raemisch had a connection to the alleged
violation of Plaintiff’s constitutional rights. And, further, Plaintiff alleges he repeatedly notified
Defendant Raemisch that, due to the Clinical Standards, he was continually denied treatment for
his chronic HVC but Defendant Raemisch continued to fail to act. Accordingly, Plaintiff’s
allegations are sufficient.
In summary, at this stage, Plaintiff has alleged facts sufficient to state a plausible claim
for relief to survive Defendant’s Motion.
B. Qualified Immunity
When a defendant asserts a qualified-immunity defense, the burden shifts to the plaintiff
to allege facts sufficient to show “(1) that the defendant violated a constitutional or statutory
right (2) that was clearly established at the time of the conduct in question.” Dahn v. Amedei, 867
F.3d 1178, 1185 (10th Cir. 2017). The Court “can decide which prong to address first, and need
not address both.” Id. To survive Defendant’s Motion seeking dismissal, Plaintiff must “nudge
his claims across the line from conceivable to plausible.” Id. (quoting Twombly, 550 U.S. at 570
(alterations and quotation marks omitted)).

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Defendants challenge the Recommendation’s finding as to the first prong – that Plaintiff
plausibly alleges Defendants Raemisch, Rishi-Tirella, Jordan, and Tiona violated Plaintiff’s
constitutional rights. Defendants summarily assert that, for the reasons they discussed as to the
sufficiency of the § 1983 allegations and as set forth in their filings related to the Motion,
Plaintiff failed to meet his burden. The Court, however, has overruled Defendants’ objections as
to the sufficiency of the § 1983 allegations. And, as to Defendants’ reference to their earlier
filings, the Court declines to search through such filings to determine what – if anything – in
such filings support Defendants’ conclusory argument. See United States v. City of Las Cruces,
289 F.3d 1170, 1186 (10th Cir. 2002) (“This court declines to sift through the record to find
support for the appellants’ contentions.” (quotation marks and citation omitted)). Accordingly,
Defendants’ objection is overruled.
This leaves the Recommendation that the law was clearly established. Defendants do not
object to this recommended finding and, after finding no clear error, the Court accepts this
recommendation.
C. Statute of Limitations
“A statute of limitations defense may be appropriately resolved on a [Rule] 12(b) motion
when the dates given in the complaint make clear that the right sued upon has been
extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016)
(quotation marks omitted, brackets in original). Defendants argued that certain claims are barred
by the two-year statute of limitations applicable to § 1983 claims. Plaintiff argued the continuing
violation doctrine applies in determining whether the statute of limitations has run as to any
claim or Defendant. The Magistrate Judge found he need not reach the continuing violation
doctrine “because each individual claim is based on conduct within the limitations period” and

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he could not conclude that any claims against any particular defendant would be barred by the
statute of limitations, even if the doctrine did not apply. Thus, the Magistrate Judge
recommended denying the Motion as to any claim or Defendant based upon the statute of
limitations defense.
Defendants object in part to the Recommendation on this issue. Specifically, Defendants
argue that, based on Plaintiffs’ allegations, by 2015 Plaintiff was aware of the seriousness of his
condition and knew that Defendants’ ratification of the Clinical Standards caused non-defendant
medical personnel to deny or delay his Hepatitis C treatment. Thus, Defendants assert that, as to
Defendants Raemisch, Tiona, and Jordan, Plaintiff cannot recover for any alleged wrongdoing
which occurred prior to May 21, 2016, two years before the complaint was filed against them on
May 22, 2018.2 As to Defendant Ariola-Tirella, Defendants argue that he was first named as a
defendant in February 14, 2020 and, to the extent he is alleged to have engaged in misconduct
prior to February 14, 2018, Plaintiff cannot recover for such misconduct. Plaintiff counters “that
is not how the statute of limitations operates at this stage of the proceedings.” While the Court
rejects Plaintiff’s argument, see, e.g., Chrisco v. Raemisch, 374 F. Supp. 3d 1093, 1098-99 (D.
Colo. 2019) (while plaintiff’s entire claim was not time barred, he was nonetheless precluded
from pursuing claim based on acts which occurred prior to April 24, 2015 as that was time
barred), the Court nonetheless finds Defendants have not sufficiently shown that dismissal may
be had on this record.
The Court’s review of the record shows it is unable to dismiss any Defendant or any
claim, even in part, based on the allegations and arguments at hand. First, it appears Defendants’
argument that Plaintiff was aware or knew he had claims by 2015 as against all Defendants may

2

Defendants state the complaint was filed on May 21, 2018 but the court records show it was filed on May 22. (ECF
No. 1.)
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be based on aggregating allegations against separate Defendants. That is improper because the
Court must examine when Plaintiff knew or had reason to know “separately for each of these
Defendants.” Vasquez v. Davis, 882 F.3d 1270, 1276 (10th Cir. 2018).
Further, Plaintiff alleges Defendant Tiona signed versions of the Clinical Standards in
November 2015 and November 2016 (ECF No. 188, ¶¶ 11, 51). Those allegations, however, fail
to make clear as to when Plaintiff knew or had reason to know that Defendant Tiona signed those
Clinical Standards on those dates. Nor can Plaintiff’s knowledge be reasonably inferred based on
other allegations. This also holds true for Defendants Rishi-Tirella and Jordan. As for Defendant
Raemisch, the Court agrees with the recommendation that at least some of his conduct may have
occurred within the limitations period. Whether the conduct outside the limitations period is
barred, however, may be impacted by whether the continuing violation doctrine applies under
these allegations. And, on the current record, the Court finds it cannot resolve that issue.
Accordingly, Defendants’ objection is overruled.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
(1) Defendants’ Objection (ECF No. 227) is OVERRULED;
(2) The Recommendation (ECF No. 226) is ACCEPTED; and
(3) Defendants’ Motion to Dismiss (ECF No. 204) is DENIED.
DATED this 25th day of March, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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