Rave v. Board of Commissioners for the County of Bernalillo et al

Filing 34

MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack granting in part 11 Opposed MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DAVID RAVE,
Plaintiff,
HA
v.

No. CIV 17-0636 RB/LF

BOARD OF COMMISSIONERS FOR THE
COUNTY OF BERNALILLO, CORRECT
CARE SOLUTIONS, LLC., TIMOTHY
MCMURRAY, MD, AND JOHN DOES 1–10,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the County Defendant’s Motion to Dismiss Plaintiff’s
Amended “Complaint for Civil Rights Violations” and Memorandum in Support Thereof, filed
on June 27, 2017. (Doc. 11.) Jurisdiction arises under 28 U.S.C. § 1331. Having considered the
submissions of counsel and relevant law, the Court will grant in part Defendant’s Motion as
outlined below.
This lawsuit arises out of Defendants’ alleged failure to provide Plaintiff with necessary,
emergent medical care while he was incarcerated at the Bernalillo County Metropolitan
Detention Center (MDC). Plaintiff brought a seven-count Complaint in the Second Judicial
District Court, County of Bernalillo, State of New Mexico, on June 9, 2017. (See Doc. 1-A
(Compl.).) Defendant Board of Commissioners for the County of Bernalillo (the County)
removed the Complaint to this Court on June 12, 2017. (Doc. 1.)

I.

Statement of Facts
The following facts are as alleged in Plaintiff’s Complaint. Mr. David Rave (Plaintiff)

suffers from end stage renal failure. (Compl. ¶ 11.) On Saturday, March 12, 2016, 1 Plaintiff was
arrested and booked into the MDC. (Id. ¶ 9.) Plaintiff told the booking officer that he had chronic
kidney disease and received dialysis three times a week on Tuesday, Thursday, and Saturday.
(Id. ¶ 10.) He also told the booking officer that his last session was on Thursday, March 10,
2016. (Id.) Plaintiff was due for another treatment the day he was arrested.
Plaintiff told the first corrections officer (CO) who put him in an open pod that he needed
dialysis. (Id. ¶ 12.) Plaintiff told “medical” that he needed dialysis, but “nothing happened.” (Id.)
Plaintiff also told a second CO, this CO said he had informed medical of Plaintiff’s need. (Id. ¶
13.) Plaintiff spoke to a Sergeant; the Sergeant advised Plaintiff to “tell the CO because it was
not his job.” (Id.) Plaintiff began to suffer physical consequences: “[h]e couldn’t sleep in spite of
being tired, his body ached, and he [had] a hard time breathing.” (Id. ¶ 14.)
Four days later, on March 16, 2013, Plaintiff told a CO to “please help me—I need
medical.” (Id. ¶ 15.) Someone took Plaintiff to the medical unit with shortness of breath and
chest pain; Plaintiff could not urinate and was swollen with fluid (approximately 50 pounds over
his normal weight of 130). (Id.) Plaintiff had not had dialysis for six days. (Id. ¶ 16.)
Plaintiff was transported to the University of New Mexico Hospital (UNMH) Emergency
Room, where he was assessed with “shortness of breath, chest pain, high potassium
(hyperkalemia) with EKG changes.” (Id. ¶ 17.) Plaintiff told UNMH staff that he was limiting
his fluid intake, because he did not know when he would receive necessary dialysis, and he was
unable to urinate. (Id. ¶ 18.) Plaintiff’s potassium level was “critical at 8.2.” (Id. ¶ 19.) Plaintiff
1

Plaintiff asserts in his Complaint that he was arrested on March 12, 2013, yet every other date is listed as 2016.
(Compl. ¶ 9.) The Court presumes that Plaintiff was arrested in 2016, and “2013” was a clerical error.

2

received hemodialysis twice that day, which is “hard on his body.” (Id.) Hospital staff noted that
Plaintiff “needs HD [hemodialysis] support but he is not getting HD at the Jail so will continue
HD while being admitted and ask social worker to be involved.” (Id.) In Plaintiff’s March 19,
2016 Transfer Orders and Discharge Instructions, hospital staff noted, “Please make sure patient
doesn’t miss his HD sessions.” (Id. ¶ 21 (emphasis omitted).)
Upon his return to the MDC, Plaintiff “was housed in SHU 2 pending clearance by the
doctor.” (Id. ¶ 22.) Plaintiff told the COs that he needed to get dialysis and asked them to either
speak to medical staff or have medical staff come to him. (Id. ¶ 23.) One CO told Plaintiff that he
could not help and advised him to “file a grievance on the Kiosk . . . .” (Id. ¶ 24.) When Plaintiff
went to the Kiosk, he found a sign that read “grievances could not be done at that time.” (Id.)
At 11:15 p.m. the same evening, Plaintiff went to the MDC medical unit for complaints
of chest pain and explained his medical needs and issues to the staff there. (Id. ¶ 25.) An ECG
taken at the medical unit “showed inferior ST elevation[,]” and Plaintiff was transported to the
Emergency Room, where he was admitted on March 20, 2016, with acute pulmonary edema. (Id.
¶ 26.) Plaintiff received dialysis “several more times at the hospital . . . .” (Id. ¶ 27.) Plaintiff’s
March 23, 2016 Discharge Summary stated: “PLEASE BRING PATIENT BACK TO UNMH
ON TUES, THU and SAT for Hemodialysis.” (Id. ¶ 28 (emphasis omitted).) The Discharge
Summary also noted that the MDC did not have a dialysis center yet, so Plaintiff would need to
come back to UNMH for dialysis. (Id.)
Plaintiff was referred to Gibson Dialysis on March 23, 2016, with additional services
approved for March 31, April 2, and April 5, 2016. (Id. ¶ 29.) Medical notes from this period
reflect that Plaintiff had high blood pressure, which started to come down with dialysis. (Id. ¶
2

Plaintiff does not define what SHU stands for, but the Court presumes it is some type of segregated housing unit.

3

30.) Staff at Gibson Dialysis advised Plaintiff to limit his fluid intake to one liter per day and to
eat a renal (low sodium) diet. (Id.) Plaintiff asserts that MDC never gave him the required diet
during his time there. (Id. ¶ 31.)
Plaintiff presented to the MDC medical unit on March 24, 2016, reporting shortness of
breath and a heavy chest. (Id. ¶ 32.) Plaintiff stated that he needed Dialysis treatment, and
medical unit staff sent Plaintiff to the UNMH Emergency Room. (Id.) Plaintiff “was admitted to
UNMH on March 24, 2016, presenting with dyspnea and hypoxia.” (Id. ¶ 34.) Due to his
breathing, Plaintiff was intubated and admitted to the MICU. (Id.) Hospital notes from March 26,
2016, reflect that Plaintiff received dialysis daily. (Id.) A hospital physician told Plaintiff “that
had he not been brought in, he may have had a heart attack and died.” (Id.) The March 29, 2016
discharge documents show that Plaintiff had dialysis that day and was in good condition, he
should have a renal diet, fluids restricted to two liters per day, and he “needed Chem10 prior to
dialysis.” (Id. ¶ 35, 37.) The Discharge Summary directed MDC staff to bring Plaintiff back to
UNMH for hemodialysis on Tuesdays, Thursdays, and Saturdays. (Id. ¶ 35)
Plaintiff “was housed in SHU until he was cleared to population on March 30, 2016.” (Id.
¶ 39.) Plaintiff received dialysis on March 31, April 2, 5, 7, 9, 12, and 15, 2016. (Id. ¶ 40.)
Plaintiff was released from the MDC to Pre-Trial Services on April 13, 2016. (Id. ¶ 41.) Plaintiff
continued to receive dialysis as scheduled, including on Tuesday, July 5, 2016, the day he was
arrested on a probation violation. (Id. ¶ 42.)
Plaintiff was transported from the MDC to Lovelace Hospital for dialysis on July 7, 2016.
(Id. ¶ 43.) He was scheduled to receive dialysis on Saturday, July 9, but MDC did not take him
due to “staffing issues.” (Id. ¶ 44.) MDC staff notes incorrectly stated that Plaintiff “was dialyzed
at UNMH yesterday [July 8], so may be able to wait until next appt. on Tuesday.” (Id.)

4

Plaintiff went to the Gibson Dialysis Clinic for dialysis on July 12, 2016. (Id. ¶ 45.) After
his treatment, his blood pressure was high, he complained of a headache, and he was vomiting.
(Id.) Clinic staff released Plaintiff to be evaluated by an MDC physician. (Id.) Plaintiff received
dialysis treatments on July 14 and 16, and was scheduled for treatment on Tuesday, July 19,
2016. (Id. ¶ 46.) MDC’s pharmacy tech noted that Plaintiff’s dialysis was scheduled for 6:00
a.m., but he had court at 8:30 a.m. (Id.) The pharmacy tech wrote, “Spoke with provider Dr.
McMurray; okay for patient to go to court. [Plaintiff] is scheduled to go to dialysis on Thursday
at 0600.” (Id.)
The next day, Plaintiff was transported to the UNMH Emergency Room with shortness of
breath and respiratory failure. (Id. ¶ 48.) Plaintiff was intubated and transferred to the “MICU for
respiratory arrest secondary to volume overload.” (Id.) Plaintiff’s condition improved after
hemodialysis, and he was later discharged back to MDC. (Id.) Plaintiff received regular dialysis
for the remainder of July until his release from the MDC on July 28, 2016. (Id. ¶ 49.)
Plaintiff was arrested for another probation violation on November 7, 2016, and was
booked into the MDC. (Id. ¶ 50.) Plaintiff received some dialysis treatments while at the MDC,
but he was admitted to UNMH again on November 13, 2016, “for ‘acute hypoxic respiratory
failure likely secondary to fluid overload from non-compliance with hemodialysis as an
outpatient’ requiring intubation and urgent hemodialysis.” (Id. ¶ 51.) Plaintiff was discharged to
the MDC on November 16, 2016. (Id.) He was readmitted to UNMH for “‘urgent’ dialysis due to
hyperkalemia/elevated potassium” on November 26, 2016. (Id. ¶ 52.) Plaintiff reported that the
MDC had forgotten to take him to dialysis the day before. (Id.) Plaintiff’s Complaint is silent on
the date he was released from the MDC after his most recent probation violation.

5

Plaintiff filed suit in state court against three named Defendants (the County,
Correctional Healthcare Companies, Inc. (CHC), and Timothy McMurray, MD), and John Does
1–10 alleging: (1) negligence against Dr. McMurray; (2) violations of the Fourteenth and Eighth
Amendments against all Defendants; (3) violations of the Americans with Disabilities Act
(ADA) and section 504 of the Rehabilitation Act against the County and CHC; (4) negligent
hiring, training, supervision, and retention against the County and CHC; (5) negligent medical
care and treatment against all Defendants; (6) negligent operation of motor vehicles against the
County; and (7) negligent operation of a building against the County. (See id. ¶¶ 55–124) The
County now moves to dismiss Counts Two through Seven of Plaintiff’s Complaint for failure to
state a claim. 3 (See Doc. 11.)
II.

Motion to Dismiss Standards
In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court “must accept

all the well-pleaded allegations of the complaint as true and must construe them in the light most
favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir.
2015) (citations omitted). To survive a motion to dismiss, the complaint does not need to contain
“detailed factual allegations,” but it “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

3

The County actually stated it moves to dismiss under “Rule 12(b)(1) and (6) because the Plaintiff’s Complaint fails
to state a claim on the merits . . . .” (Doc. 11, at 2.) It appears that the County’s citation of Rule 12(b)(1) was
inadvertent, as that section provides that a party may move to dismiss for lack of subject matter jurisdiction, and the
County does not make any arguments relevant to subject matter jurisdiction in either its Motion or its Reply. (See
Docs. 11; 22.) Rule 12(b)(6) is the appropriate section to move to dismiss for failure to state a claim. Fed. R. Civ. P.
12(b)(6). Because the Court finds it has subject matter jurisdiction over Plaintiff’s Complaint based on 28 U.S.C. §
1331, it will analyze the Motion to Dismiss only under Rule 12(b)(6).

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III.

Discussion
A.

Count Two—Cruel and Unusual Punishment in Violation of the Fourteenth
and Eighth Amendments

Plaintiff brings a claim for cruel and unusual punishment against all Defendants in Count
Two. (Compl. at ¶¶ 62–75.) Before the Court examines the merits of Plaintiff’s claim, there are
several preliminary issues to consider.
1.

Preliminary Issues

First, the County asserts that because Plaintiff failed to state in his Complaint that he had
been released from the MDC at the time he filed his Complaint, his claim should be dismissed
for failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act
(PLRA). (Doc. 11, at 7–8.) It is true that if Plaintiff was incarcerated at the time he filed his
Complaint, he would be subject to the exhaustion requirements of the PLRA. See Norton v. City
of Marietta, Okla., 432 F.3d 1145, 1149–50 (10th Cir. 2005). If he had been released at the time
he filed his Complaint, he would not have to satisfy the exhaustion requirement. See id. at 1150.
Plaintiff asserts in his responsive brief that he was not incarcerated at the time of filing. (Doc. 18,
at 2.) The Court will analyze the County’s Motion to Dismiss under the assumption that Plaintiff
had been released at the time he filed his Complaint. The Court will, however, direct Plaintiff to
file an amended complaint that includes the fact of his release date. Plaintiff’s failure to file an
amended complaint without including the release date will result in the dismissal with prejudice
of his federal claim.
Second, with respect to Count Two, Plaintiff asserts that he had the same rights as either
a pretrial detainee (under the Fourteenth Amendment) or a convicted inmate (under the Eighth
Amendment). (See Compl. at 10, n.1.) The County disputes “that Plaintiff was a ‘pretrial

7

detainee’ – given that he was repeatedly being arrested for probation violations, having already
been adjudicated guilty . . . .” (Doc. 11, at 6 n.5.) It appears to the Court that Plaintiff was a
pretrial detainee from the time of his initial arrest on March 12, 2016, through April 13, 2016,
when he was released from the MDC to Pretrial Services. (Compl. ¶¶ 9–41.) The County’s
argument that Plaintiff’s status was closer to that of a convicted inmate is more persuasive during
Plaintiff’s later two periods of incarceration after he had violated the terms of his probation. See
Kellum v. Bernalillo Cty., No. CIV 14-00163 RB/CG, -- F. Supp. 3d --, 2017 WL 3278948, at
*3–6 (D.N.M. Jan. 27, 2017) (discussing the difference between a pretrial detainee and an
incarcerated person). Plaintiff’s status is largely irrelevant for the analysis of his federal claim,
because the standard for a denial of medical care is the same for both pretrial detainees and
incarcerated persons. But cf., Chavez v. Bd. of Cty. Comm’rs of Sierra Cty., 899 F. Supp. 2d
1163, 1185 (D.N.M. 2012) (noting that “a plaintiff must plead the correct constitutional
provision underlying the § 1983 claim to state a valid claim”) (citations omitted).
Third, the County argues Plaintiff has failed to make allegations specific enough to state
a claim against any of the individual “John Doe” Defendants. (See Docs. 11, at 6–7; 22, at 3–4
(“there simply cannot be a placeholder without a specific designation of which John Doe
allegedly engaged in specific conduct that is allegedly actionable”).) Plaintiff argues in his
response that the John Doe Defendants “can be held liable pursuant to 42 U.S.C. § 1983 for
violations of Plaintiff’s rights as ‘[a]ny official who “causes” a citizen to be deprived of her
constitutional rights can also be held liable.’” (Doc. 18, at 5 (quoting Buck v. City of
Albuquerque, 549 F.3d 1269, 1279 (10th Cir. 2008) (emphasis omitted)).) Plaintiff also cites to
authority relevant to the liability of supervisors under section1983. (Id. at 5–7.)

8

While the Court will not take up the matter of the John Doe Defendants for purposes of
the County’s Motion, the Court notes that Plaintiff must make more specific allegations in his
amended complaint. See Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996) (gathering cases
re: ability of a plaintiff to use unnamed defendants); see also Rall v. Hobbs Mun. Sch. Dist.,
15cv0518, Mem. Op. & Order, Doc. 44, at 7–9 (D.N.M. Mar. 16, 2016) (discussing individual
versus official capacity suits, and personal versus supervisory liability claims).
The Court turns now to Plaintiff’s municipal liability claim against the County.
2.

Plaintiff has alleged facts sufficient to state a claim for cruel and
unusual punishment against the County.

The County will not “be held liable under § 1983 solely because its officers inflicted
injury.” Griego v. City of Albuquerque, 100 F. Supp. 3d 1192, 1212 (citing Graves v. Thomas,
450 F.3d 1215, 1218 (10th Cir. 2006) (citing Monell v. Dep’t of Soc. Servs. of the City of N.Y.,
436 U.S. 658, 694 (1978))). “Rather, to establish municipal liability under § 1983, a plaintiff
must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a
municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or
custom, and the injury alleged.” Id. (citing Graves, 450 F.3d at 1218 (internal citation omitted)).
The County assumes for purposes of its Motion that Plaintiff can establish a constitutional
violation. It argues instead that the allegations fail to establish that such a violation was the result
of any County policy. (Doc. 11, at 7.)
Plaintiff alleges in his Complaint that “Defendants had a custom, policy, or practice of
acting knowingly and with deliberate indifference in denying obviously necessary medications,
medical services, and hospitalizations to inmates at MDC, including Plaintiff.” (Compl. ¶ 65.)
Plaintiff further alleges that “Defendants, both on their own and through their physicians, nurses,

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other health center staff, and administrators, had an official policy, custom, or practice that was
deliberately indifferent to Plaintiff’s Eighth Amendment rights. . . . Defendants’ unconstitutional
policies, customs or practices were the legal and proximate cause of Plaintiff’s damages.” (Id. ¶¶
72–73.)
“Pleading a municipal policy, custom, or practice is like pleading the breach element of
negligence—which is also ultimately a question of fact for the jury.” Griego, 100 F. Supp. 3d at
1213. “The plaintiff cannot simply allege that there is a policy in place, but, rather, must plead
facts that, if true, would give rise to a plausible inference that such a policy exists.” Id. “With
formal or written policies, satisfying this pleading standard is easy; the plaintiff can simply
allege what the policy is and where it is codified.” Plaintiff does not cite a written policy in his
Complaint.
To make allegations sufficient to show an informal policy, custom, or practice,
the plaintiff can plead either a pattern of multiple similar instances of
misconduct—no set number is required, and the more unique the misconduct is,
and the more similar the incidents are to one another, the smaller the required
number will be to render the alleged policy plausible—or use other evidence, such
as a police officers’ statements attesting to the policy’s existence.
Id. Here, Plaintiff lays out a series of allegedly unconstitutional actions from COs who,
according to the Complaint, knew of his disability and acted deliberately and indifferently in
failing to obtain medical help for Plaintiff. (See Compl. ¶¶ 9–53.) One allegation of failure to
obtain medical treatment would likely be insufficient to show an informal policy, custom, or
practice, but the Court finds several such instances over three separate periods of incarceration is
sufficient to show a pattern of misconduct. See Griego, 100 F. Supp. 3d at 1212 (“Establishing
an informal policy or custom requires the plaintiff to show that the misconduct was

10

‘widespread’—i.e., that it involved a ‘series of decisions.’”) (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 127, 130 (1988)).
The County argues that Plaintiff has failed to allege facts to show that the officers’
actions “represent[] the execution of an official policy rather than gross deviations from such
policy.” (Doc. 11, at 7 (quoting Lujan ex rel. Lujan v. Cty. of Bernalillo, 354 F. App’x 322, 326
(10th Cir. 2009).) In Lujan, the plaintiff argued that officers violated her Fourth Amendment
rights during an allegedly improper search of her home. Lujan, 354 F. App’x at 324. The court
found the plaintiff failed to provide evidence that either “link[ed] the individual defendants to the
challenged conduct” or to show that the challenged conduct represented an improper policy. Id.
at 326. Here, Plaintiff has pleaded facts sufficient to show that the County has an informal
policy, custom, or practice of not requiring COs to obtain medical help for inmates. Therefore,
Lujan is inapposite. The Court will deny the County’s Motion to Dismiss on this issue.
In his Response brief, Plaintiff further argues that municipal liability also lies in the
County’s “failure to adopt or implement a policy or training to prevent violations of [his] rights.”
(Doc. 18, at 6 (emphasis and citations omitted).) There is, however, only one allegation in
Plaintiff’s Complaint under Count Two related to training: “Plaintiff . . . was denied the benefits
of . . . staff/employees properly trained to deal with citizens with serious life threatening and life
altering medical conditions . . . .” (Compl. ¶ 67.) While the Court understands that the allegation
of a failure to train is likely related to the allegations of an unwritten policy, custom, or practice,
Plaintiff’s single allegation regarding training is conclusory and insufficient to properly state a
claim for municipal liability due to a lack of training. See Griego, 100 F. Supp. 3d at 1227–28.
Plaintiff must make more specific factual allegations in his amended complaint to show that the

11

County’s “failure to train reflect[ed] a ‘deliberate’ or ‘conscious’ choice” in order to state a claim
that is plausible on its face. See City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
B.

Count Three—Violations of the Americans with Disabilities Act and section
504 of the Rehabilitation Act

Count Three of Plaintiff’s Complaint is not a model of clarity, but from a reading of the
Complaint and Plaintiff’s Response, it appears Plaintiff is making claims under Titles II and III
of the ADA, as well as section 504 of the Rehabilitation Act.
1.

Plaintiff fails to state a claim under Title II or section 504.

To state a claim under either Title II of the ADA or section 504 of the Rehabilitation Act,
Plaintiff “must allege that (1) he is a qualified individual with a disability, (2) who was excluded
from participation in or denied the benefits of a public entity’s services, programs, or activities,
and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.”
Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007) (citing 42
U.S.C. § 12132; subsequent citation omitted); see also Swenson v. Lincoln Cty. Sch. Dist. No. 2,
260 F. Supp. 2d 1136, 1145 (D. Wyo. 2003) (noting that “[t]he elements of a cause of action
under Title II of the ADA and section 504 of the Rehabilitation Act are the same because
Congress has directed courts to construe the ADA as giving at least the same amount of
protection as the Rehabilitation Act”) (citing 42 U.S.C. § 12201(a); DeBord v. Bd. of Educ. of
Ferguson-Florissant Sch. Dist., 126 F.3d 1102, 1104–05 (8th Cir. 1997) (internal citations
omitted); Baird v. Rose, 192 F.3d 462, 468 (4th Cir. 1999)). The County argues that the conduct
Plaintiff complains of—the denial of necessary medical care—is not “discrimination” that
violates Title II or section 504. (Doc. 11, at 8–9 (citations omitted).) The Court agrees and finds

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Plaintiff’s claims under Title II of the ADA and section 504 of the Rehabilitation Act fail for at
least three reasons.
First, Plaintiff fails to show that the County discriminated against him solely because of
his disability. In Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir. 1992), cert.
denied, 507 U.S. 910 (1993), the court analyzed a claim under section 504 of the Rehabilitation
Act and held that “to state a claim under section 504,” the plaintiff must prove in part that “he
was discriminated against solely by reason of his handicap . . . .” 971 F.2d at 1492 (citations and
brackets omitted). The court noted that “[t]he word solely provides the key: the discrimination
must result from the handicap and from the handicap alone.” Id. at 1493.
Plaintiff does not allege that the discrimination resulted from his disability; rather, he
alleges that the County denied him medical care for multiple reasons: (1) because a CO said “it
was not his job” (Compl. ¶13); (2) a CO said “that he couldn’t help”; (id. ¶ 24); (3) a staff person
noted that Plaintiff “was dialyzed at UNMH yesterday [July 8], so may be able to wait until next
appt. on Tuesday” (id. ¶ 44); (4) because he had court (id. ¶ 46), and (5) “because of staffing
issues” (see Doc. 18, at 14). Plaintiff makes no allegations in his Complaint or Response that the
County ever denied him medical care solely because of his disability. In Johnson, the court noted
that the disabled persons were denied medical care both because of their disability and also
because of their socioeconomic status. Johnson, 971 F.2d at 1493. Consequently, the court found
that the disabled persons failed to state a claim for discrimination under section 504. Id.
Likewise, because Plaintiff argues that the discrimination here was due to a variety of additional
reasons, he fails to state a claim under Title II of the ADA and section 504 of the Rehabilitation
Act.

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Second, and on a similar note, Plaintiff fails to show that he is “otherwise qualified”
under the ADA or Rehabilitation Act. The Tenth Circuit has noted that “the term otherwise
qualified cannot ordinarily be applied ‘in the comparatively fluid context of medical treatment
decisions without distorting its plain meaning.’” Fitzgerald v. Corr. Corp. of Am., 403 F.3d
1134, 1144 (10th Cir. 2005) (citing Johnson, 971 F.2d at 1494). In Fitzgerald, the Tenth Circuit
noted that where a prisoner alleged that a doctor violated Title II of the ADA by denying surgery
for a broken hip, the prisoner could not show he was “otherwise qualified.” 403 F.3d at 1144.
“Fitzgerald would not have been ‘otherwise qualified’ for such treatment in the absence of his
alleged disability—his alleged disability in this case was the reason why Fitzgerald was seeking
medical treatment.” Id. The same holds true for Plaintiff: his disability was the reason he was
seeking medical treatment, so he would not have been otherwise qualified for treatment or
transport. His claims under Title II and section 504, therefore, fail.
Third, the County argues that Plaintiff’s allegations do not rise to the level of an ADA
violation (Doc. 11, at 9 (citations omitted).) The ADA, asserts the County, “does not provide a
remedy for medical negligence or a means to challenge ‘purely medical decisions’ regarding the
propriety of a course of treatment.” (Id. (quoting Brown v. Idaho Dep’t of Corr., No. 13-cv01342-REB-KMT, 2014 WL 4695958, at *9 (D. Colo. Sept. 19, 2014) (quoting Nasious v. Colo.,
495 F. App’x 899, 902 (10th Cir. 2012) (internal and subsequent citations omitted))).) The Court
agrees.
The Tenth Circuit has explained that “the failure to provide medical treatment to a
disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances,
does not constitute an ADA violation.” Rashad v. Doughty, 4 F. App’x 558, 560 (10th Cir. 2001)
(citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“concluding that the ADA ‘would

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not be violated by a prison’s simply failing to attend to the medical needs of its disabled
prisoners’ and that the statute ‘does not create a remedy for medical malpractice’”); McNally v.
Prison Health Servs., 46 F. Supp. 2d 49, 58 (D. Me. 1999) (“distinguishing between ‘claims that
the medical treatment received for a disability was inadequate from claims that a prisoner has
been denied access to services or programs because he is disabled,’ and concluding that only the
latter class of claims states an ADA violation”)). “In contrast, the allegation that a disabled
prisoner has been denied services that have been provided to other prisoners may state an ADA
claim.” Id. (citing McNally, 46 F. Supp. 2d at 58 (“concluding that an HIV patient’s claim of
discriminatory denial of prescription services provided to general prison population would state
an ADA claim”)).
In Rashad, the plaintiff (a prisoner) “allege[d] inadequate treatment of his post-traumatic
stress disorder but [did] not allege that the defendant corrections officials discriminated against
him on the basis of that disorder.” Id. Similarly, Plaintiff does not claim that he was denied
services that were provided to other prisoners. The County’s denial of dialysis or a special diet,
like the defendants’ denial of treatment for post-traumatic stress disorder in Rashad or surgery in
Fitzgerald, is a decision that relates to “the propriety of a course of treatment” and is not
cognizable under Title II of the ADA.
Plaintiff believes his claim is viable pursuant to the decision in Tivis v. Dowis, No. 11-cv02050-PAB-KMT, 2014 WL 7437661 (D. Colo. Dec. 29, 2014). (Doc. 18, at 15.) Plaintiff
misunderstands Tivis. In Tivis, the plaintiff “allege[d] that decisions made by a non-medical
professional prevented him from accessing prescription pain medication available to other
inmates.” Tivis, 2014 WL 7437661, at *9. Plaintiff’s Complaint is devoid of any such

15

allegations. Ultimately, Plaintiff fails to state a claim under Title II of the ADA or section 504 of
the Rehabilitation Act, and the Court will grant the County’s motion with respect to these claims.
2.

Plaintiff’s claim under Title III is moot.

Plaintiff alleges that the County and CHC “refused to provide the necessary level of
accommodation for Plaintiff’s medical condition and needs resulting in physical injuries to
Plaintiff.” (Compl. ¶ 92.) It appears that Plaintiff is attempting to state a claim under Title III of
the ADA. 4 “While Title III of the ADA prohibits discrimination against persons with disabilities
in places of public accommodation, 42 U.S.C. § 12182(a), a Title III plaintiff’s sole remedy is
injunctive relief, Chambers v. Melmed, 141 F. App’x 718, 720 (10th Cir. 2005) (citing 42 U.S.C.
§ 12188(a)).” Handy v. Meyer, No. 11-cv-00644-WYD-KMT, 2011 WL 7478990, at *9 (D.
Colo. Dec. 30, 2011) (citing Lewis v. Burger King, 361 F. App’x 937 n. 1 (10th Cir. 2010)
(internal citation omitted)). “When a party seeks only equitable relief, . . . past exposure to
alleged illegal conduct does not establish a present live controversy if unaccompanied by any
continuing present effects.” Id. (quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867
(10th Cir. 1996) (internal citation omitted)).
Plaintiff asserts in his response that he is no longer an inmate at the MDC. (Doc. 18, at 2.)
“Because Plaintiff may only seek equitable injunctive relief under Title III, the fact that he is no
longer at [the MDC] renders his Title III claim moot.” See Handy, 2011 WL 7478990, at *9
(citing Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (“prisoner’s transfer mooted his
claim for declaratory and injunctive relief as a judgment in the prisoner’s favor ‘would amount to
4

To state a claim for failure to accommodate under Title III, Plaintiff must show “(1) that he is disabled within the
meaning of the ADA, (2) that the defendant is a private entity that owns, leases, or operates a place of public
accommodation, and (3) that the defendant failed to make reasonable modifications that would accommodate the
plaintiff’s disability, without fundamentally altering the nature of the public accommodation.” Phillips v. Tiona, No.
10-cv-00334-PAB-KMT, 2011 WL 2198532, at *6 (D. Colo. Mar. 11, 2011) (citing Doe v. Okla. City Univ., 406 F.
App’x 248, 250–51 (10th Cir. 2010) (internal citation omitted)).

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nothing more than a declaration that he was wronged, and would have no effect on the
defendants’ behavior towards him’”) (internal citations omitted)). The Court will grant the
County’s motion with respect to Count Three.
C.

Counts Four through Seven—State Tort Claims Pursuant to the NMTCA

Plaintiff purports to bring a variety of state tort claims for negligence pursuant to the New
Mexico Tort Claims Act (NMTCA). The NMTCA “shields ‘governmental entities and public
employees from tort liability unless immunity is specifically waived by’ the” NMTCA. Trujillo
v. Salazar, No. CIV-04-0689 JB/WDS, 2006 WL 1228827, at *5 (D.N.M. Mar. 1, 2006) (quoting
Archibeque v. Moya, 866 P.2d 344, 346 (N.M. 1993) (internal citations omitted)). “A plaintiff
may not sue a governmental entity of New Mexico or its employees or agents unless the
plaintiff’s cause of action fits within one of the exceptions listed in the NMTCA.” Hunt v. Cent.
Consol. Sch. Dist., 951 F. Supp. 2d 1136, 1193 (D.N.M. 2013) (citing Begay v. New Mexico, 723
P.2d 252, 256 (N.M. Ct. App. 1985) (“Consent to be sued may not be implied, but must come
within one of the exceptions to immunity under the Tort Claims Act.”) (internal citation
omitted), rev’d on other grounds by Smialek v. Begay, 721 P.2d 1306 (N.M. 1986)).
1.

Count Four—Plaintiff states a claim for negligent hiring, training,
supervision, and retention.

Plaintiff asserts a claim against the County and CHC for negligent hiring, training,
supervision, and retention in Count Four. Specifically, he alleges that the County’s negligence
included (1) inadequate mental health screening of the John Doe Defendants “who failed to
render aid to Plaintiff and interfered with” Plaintiff’s treatment; (2) “[i]nadequate ‘fit for duty’
evaluations” of the John Doe Defendants “as perspective [sic] employees and failure to perform
adequate employee performance evaluations”; (3) “[i]nadequate management, training, and

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enforcement of policies regarding inmate transfers and transport, guarding inmates who are
hospital patients, and responding to inmates with medical issues . . . .” (Compl. ¶ 99.)
He does not cite the specific section of the NMTCA that waives the County’s immunity
for negligence in Count Four (see Compl. ¶¶ 96–102), but he clarifies in his Response that he
brings the claim under section 41-4-6, which waives immunity “for damages resulting from
bodily injury, wrongful death or property damage caused by the negligence of public employees
while acting within the scope of their duties in the operation or maintenance of any building,
public park, machinery, equipment or furnishings.” N.M. Stat. Ann. § 41-4-6(A). (See also Doc.
18, at 20 (quotation omitted).) The County argues Count Four should be dismissed because
Plaintiff “does not explain in what way the County was negligent in hiring or training[,]” and
because the NMTCA “does not specify a tort waiver for negligent supervision.” (Doc. 11, at 10
(quoting Lessen v. City of Albuquerque, 187 P.3d 179, 184 (N.M. Ct. App. 2008) (internal
citations omitted)).)
“The Supreme Court of New Mexico has explained that ‘the liability envisioned by [§ 414-6] is not limited to claims caused by injuries occurring on or off certain “premises,” as the
words “machinery” and “equipment” reveal.’” Hunt, 951 F. Supp. 2d at 1240 (quoting Cobos v.
Doña Ana Cty. Hous. Auth., 970 P.2d 1143, 1146 (N.M. 1998) (internal citations omitted)).
Rather, section “41-4-6 ‘contemplates waiver of immunity where due to the alleged negligence
of public employees an injury arises from an unsafe, dangerous, or defective condition on
property owned and operated by the government.’” Id. (quoting Bober v. N.M. State Fair, 808
P.2d 614, 623 (N.M. 1991) (internal citation omitted) (alteration in original)). For example, the
Supreme Court of New Mexico allowed a claim under section 41-4-6 when “a young girl nearly
drowned at a public swimming pool . . . when an inadequate number of capable lifeguards were

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on duty.” Upton v. Clovis Mun. Sch. Dist., 141 P.3d 1259, 1262 (N.M. 2006) (citing Leithead v.
City of Santa Fe, 940 P.2d 459, 463 (N.M. Ct. App. 1997)). The court “held that negligent
implementation of safety protocols created a dangerous condition arising from ‘operation’ of the
facility within the meaning of Section 41-4-6.” Id. (citing Leithead, 940 P.2d at 463).
“For the waiver to apply, the negligent operation or maintenance must create a dangerous
condition that threatens the general public or a class of building users, and must not just be a
claim of negligent supervision . . . .” Hunt, 951 F. Supp. 2d at 1194 (citation omitted). The
County argues that Plaintiff’s allegations amount to a “singular discrete administrative decision[]
affecting only a single person—himself.” (Doc. 22, at 8.) The Court disagrees. Plaintiff’s
allegations relate to “a class of building users”—incarcerated inmates with medical issues. “The
waiver applies to more than the operation or maintenance of the physical aspects of the building,
and includes safety policies necessary to protect the people who use the building.” Upton, 141
P.3d at 1261 (citing Castillo v. Santa Fe Cty., 755 P.2d 48, 50–51 (N.M. 1988) (“stating the
county’s failure to respond to a pack of dogs roaming a public housing facility created a
dangerous condition to residents and their invitees, and fell under the waiver”); Leithead, 940
P.2d 459 (“indicating failure by a public swimming pool to provide an adequate number of
capable lifeguards created a dangerous condition arising out of the operation of the pool”)).
Plaintiff’s allegations, which span three separate instances of incarceration, relate to such
policies that are necessary to protect ill inmates.
The Court finds the New Mexico Supreme Court’s decision in Upton v. Clovis Municipal
School District, 141 P.3d 1259 (N.M. 2006), instructive. There, the court “held that a school
district’s ‘failure to follow safety policies in place for all at-risk students appears to fall
comfortably within the Section 41-4-6 waiver for “operation or maintenance” of a public

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building.’” Hunt, 951 F. Supp. 3d at 1194 (quoting Upton, 141 P.3d at 1262). In Upton, a student
“collapsed and died from an asthma attack after a substitute physical education teacher required
her to continue exercising” despite the fact that her parents had given the school written and
verbal notice about the student’s condition. Id. (citing Upton, 141 P.3d at 1260). The court noted
that “[i]f the only alleged misconduct . . . had been the substitute P.E. teacher failing to watch her
while she participated in physical exercise, the Upton[s’] claim . . . would be” one for negligent
supervision and, therefore, inadequate to trigger liability under section 41-4-6. Id. (quoting
Upton, 141 P.3d at 1264). “It found, however, that the school’s conduct went beyond negligent
supervision, because: (i) the school ignored information that the plaintiffs provided them; (ii) the
school failed to warn the substitute teacher about the student’s condition; and (iii) the school
failed to follow through with the proper emergency procedures.” Id. (citing Upton, 141 P.3d at
1264). “These actions and omissions combined to create the dangerous conditions, placing [the
student] in a far worse position than reasonable and expected risks of [school] life.” Id. (quoting
Upton, 141 P.3d at 1264). Here, Plaintiff alleges that the County’s employees ignored
information he gave them about his medical condition, failed to staff the facility or manage or
train its employees to render aid to inmates with medical conditions, and failed to follow through
with and/or enforce its policies related to inmates with medical issues. See Upton, 141 P.3d at
1264. The allegations go beyond accusations that the County failed to supervise one inmate. The
Court finds that the facts as alleged are in line with the cases holding that municipalities can be
liable under section 41-4-6 for creating dangerous conditions at facilities, and are sufficient to
withstand the County’s Motion to Dismiss.

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2.

Count Five—Negligent Medical Care and Treatment

Plaintiff asserts a claim for negligent medical care and treatment against the County and
other Defendants in Count Five. (Compl. ¶¶ 103–10.) Again, Plaintiff fails to cite a specific
section of the NMTCA, but it appears he brings this claim pursuant to section 41-4-9, which
waives immunity for “damages . . . caused by the negligence of public employees while acting
within the scope of their duties in the operation of any hospital, infirmary, mental institution,
clinic, dispensary, medical care home or like facilities.” N.M. Stat. Ann. § 41-4-9.
Plaintiff’s claim against the County fails, however, because “liability against a jail cannot
be based on § 41-4-9 when the jail has contracted with a private entity to provide medical
services.” Salazar v. San Juan Cty. Det. Ctr., No. CIV 14-0417 JB/LF, 2016 WL 335447, at *49
(D.N.M. Jan. 15, 2016) (citing Lessen, 187 P.3d at 185). While the County owes a duty to
“provide appropriate medical care to persons they incarcerate[,]” this obligation does not
“equate[] with [a] waiver of immunity for negligent operation of an infirmary under” section 414-9. Lessen, 187 P.3d at 185 (citations omitted). Instead, the Lessen court noted, a prisoner
“might be entitled to recover under the waiver of immunity provided in Section 41-4-12.” Id.
Plaintiff alleges in his Complaint that CHC contracts with the County “to provide
healthcare to inmates . . . .” (Compl. ¶ 5.) Consequently, he cannot bring a claim against the
County under section 41-4-9. The County’s Motion is granted as to Count Five.
3.

Count Six—Negligent Operation of Motor Vehicles

In Count Six, Plaintiff asserts a claim for negligent operation of motor vehicles pursuant
to section 41-4-5 against the County only. (Id. ¶¶ 111–18.) Section 41-4-5 waives immunity “for
damages . . . caused by the negligence of public employees while acting within the scope of their
duties in the operation or maintenance of any motor vehicle, aircraft or watercraft.” N.M. Stat.

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Ann. § 41-4-5. Specifically, Plaintiff alleges that the County’s failure to transport Plaintiff to the
facility to receive dialysis due to understaffing caused Plaintiff to suffer damages. (Compl. ¶¶
113–16.) This claim fails as a matter of law. A failure to transport using a motor vehicle is not
equivalent to the “operation or maintenance of [a] motor vehicle” as contemplated by the statute.
See, e.g., Lessen, 187 P.3d at 182 (finding that where there is no evidence a driver was in a motor
vehicle, the driver could not “be said to be ‘operating’ the vehicle” to fall within the meaning of
section 41-4-5). The County’s Motion is granted as to Count Six.
4.

Count Seven—Negligent Operation of Building

Plaintiff asserts a claim against the County only in Count Seven for negligent operation
of a building under section 41-4-6. (Compl. ¶¶ 119–24.) This claim appears to be duplicative of
that in Count Four.
5.

Plaintiff fails to state a claim under section 41-4-12.

Plaintiff generally cites section 41-4-12 in both his Complaint (Compl. ¶ 3) and his
Response (Doc. 18, at 19), but does not specifically cite this section in Counts Four through
Seven.
Section 41-4-12 waives immunity “for personal injury, bodily injury, wrongful death or
property damage resulting from assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, defamation of character, violation of property rights
or deprivation of any rights, privileges or immunities secured by the constitution and laws of the
United States or New Mexico when caused by law enforcement officers while acting within the
scope of their duties.” N.M. Stat. Ann. § 41-4-12. Plaintiff does not make any allegations related
to one of the enumerated torts in section 41-4-12. Presumably, Plaintiff would contend that his
injuries resulted from the deprivation of his rights under the Eighth and Fourteenth Amendments

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as alleged in Count Two. Plaintiff’s claims under Counts Four through Seven, however, sound in
negligence. Negligence is insufficient to establish a violation under either the Eighth or
Fourteenth Amendments. See, e.g., DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.
189, 199 n.5 (1989) (noting that “[t]o make out an Eighth Amendment claim based on the failure
to provide adequate medical care, a prisoner must show that the state defendants exhibited
‘deliberate indifference’ to his ‘serious’ medical needs; the mere negligent or inadvertent failure
to provide adequate care is not enough”) (quoting Estelle v. Gamble, 429 U.S. 97, 105–06
(1976))). Consequently, Plaintiff fails to state a claim under section 41-4-12 and the Court grants
the County’s Motion on this issue.
6.

Plaintiff may not recover fees and costs under 42 U.S.C. § 1988 for his
state tort law claims.

Plaintiff includes a request for attorneys’ fees and expenses under 42 U.S.C. § 1988 in
three of his four state tort law claims. (See Compl. ¶¶ 102, 118, 124.) Section 1988 does not
provide for fees or costs for state tort law claims. See 42 U.S.C. § 1988(b). The County’s Motion
will be granted with respect to this issue. (Doc. 11, at 9 n.7.)
IV.

Conclusion
The County’s Motion is granted in part and denied in part as follows:
Count Two: Plaintiff has pleaded facts sufficient to show that the County has an informal

policy, custom, or practice of not requiring COs to obtain medical help for inmates. The Court
will deny the County’s Motion to Dismiss on this issue. Plaintiff has not alleged facts sufficient
to state a municipal liability claim based on the County’s failure to adopt or implement a policy
or training to prevent violations of inmates’ rights. The Court grants the County’s Motion with
respect to any federal constitutional claim for municipal liability based on a failure to train.

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Count Three: Plaintiff fails to state a claim under Title II of the ADA or section 504 of
the Rehabilitation Act, and the Court grants the County’s Motion on these issues. Because
Plaintiff is no longer an inmate at the MDC, his claim under Title III of the ADA is denied as
moot.
Count Four: To the extent Plaintiff asserts a claim for negligent hiring, training,
supervision, and retention under section 41-4-6, his allegations are sufficient and the Court
denies the County’s Motion on this issue.
Count Five: Plaintiff’s claim against the County under section 41-4-9 fails, and the Court
grants the County’s Motion on this issue.
Count Six: Plaintiff’s claim against the County under section 41-4-5 fails, and the Court
grants the County’s Motion on this issue.
Count Seven: Plaintiff’s claim in Count Seven appears to be duplicative of his claim in
Count Four and should be consolidated in his amended complaint.
Claims under section 41-4-12: Plaintiff fails to state a claim under section 41-4-12
against the County, and the Court grants the County’s Motion on this issue.
Request for attorneys’ fees and expenses under 42 U.S.C. § 1988: The Court grants the
County’s Motion with respect to any request for fees or expenses under section 1988 for
Plaintiff’s state tort law claims.
The Court dismisses the claims above without prejudice, and Plaintiff shall file an
amended complaint in accordance with the Court’s August 16, 2017 Scheduling Order. (Doc.
28.)

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THEREFORE,
IT IS ORDERED that the County’s Motion to Dismiss Plaintiff’s Amended “Complaint
for Civil Rights Violations” and Memorandum in Support Thereof (Doc. 11) is GRANTED IN
PART as outlined herein.

___________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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