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Tivis v. Dowis

United States District Court, D. Colorado

August 11, 2014

MICHAEL TIVIS, Plaintiff,
v.
BEVERLY DOWIS, in her individual and official capacity as Health Service Administrator for SCF, NICOLE WILSON, in her individual capacity, DR. PAULA FRANTZ, in her individual and official capacity as Chief Medical Officer for the Colorado Department of Corrections, MEGHAN REED, in her individual capacity and official capacity as ADA Inmate Coordinator for the State of Colorado, PHYSICIAN HEALTH PARTNERS, Inc. d/b/a CORRECTIONAL HEALTH PARTNERS, a Colorado Corporation, and DR. STEVEN KREBS, in his individual capacity, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KATHLEEN M. TAFOYA, Magistrate Judge.

This case comes before the court on Defendant Beverly Dowis, Nicole Wilson, and Meghan Reeds' "Partial Motion to Dismiss." (Doc. No. 155, filed Oct. 18, 2013.) For the following reasons, Defendants Dowis, Wilson, and Reed's (hereinafter "Defendants") Motion to Dismiss is GRANTED.

FACTUAL BACKGROUND

Plaintiff is an inmate in the Colorado Department of Corrections (CDOC) and is currently housed at the Sterling Correctional Facility (SCF). Generally, Plaintiffs' Second Amended Complaint (Doc. No. 138 [SAC]) targets Defendants' actions in response to complications following his total hip replacement surgery in June 2009. More specifically, Plaintiff asserts that a little over a year after his surgery, the manufacturer of the hip implant installed during his surgery voluntarily recalled the device because it was defective and could cause swelling; infection; nerve, tissue, and muscle damage; and dislocate or fracture the bone to which it attached. (SAC ¶¶ 13-14.) Further, Plaintiff saw at least two specialists who concluded that Plaintiff was suffering from a serious septic hip infection and required immediate surgery. ( See id. ¶¶ 21-29.) Nevertheless, beginning days after his hip replacement surgery, Defendants allegedly ignored Plaintiff's complaints of severe pain, delayed addressing his postoperative problems, and failed to ensure that he received timely and adequate treatment, including surgical intervention.

With that general background established, the court notes that a detailed recitation of facts is not necessary to address Defendants' Partial Motion to Dismiss. Instead, Defendants' Motion to Dismiss concerns only three claims that arise out of a more limited factual background: (1) Plaintiff's second claim under 42 U.S.C. § 1983 against Defendant Wilson for violations of his Eighth Amendment rights; (2) Plaintiff's fifth claim against Defendants Reed, Dowis, and Frantz[1] in their official capacities[2] for violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.; and (3) Plaintiff's sixth claim against Defendants Reed, Dowis, and Frantz in their official capacities for violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.

A. Background for ADA and Rehabilitation Act Claim

Plaintiff has been designated as a mobility disabled class member since October 13, 2009. (SAC ¶ 87; Mot Dismiss, Ex. A-2.)[3] On April 28, 2011, Plaintiff filed a grievance stating that, approximately one year prior, he missed doses of his medication because he refused to stand in the "rain, snow and severe cold" while waiting in the "med-line" where SCF Clinical Services distributes daily medications. (Mot. Dismiss, Ex. A-1.) Sometime thereafter, Plaintiff was allegedly informed by non-party Physician's Assistant Stock that Clinical Services would no longer be providing him with his pain medication, despite his severe pain from his disability, because he "missed those days." ( Id. ) Plaintiff allegedly filed his grievance "only after his simple request to be allowed to enter a shorter med-line' was denied." (SAC ¶ 91.) Among other things, [4] Plaintiff requested "adequate pain relief" in response to his grievance. (Mot. Dismiss, Ex. A-1.)

Defendant Reed, the CDOC's ADA Inmate Coordinator (AIC), denied Plaintiff's grievance. In her Response, Defendant Reed stated that the "

1. AIC is not a medical professional and has no authority to prescribe pain relief or order restrictions and is generally not involved with a disabled offender's medical treatment. Accommodation, which may be approved through the AIC and may work in conjunction with restrictions, is defined as: any structural or procedural modification or adjustment to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or provision of auxiliary aids, equipment, or services, to ensure individuals with disabilities have equal access to services, activities, and programs for which they are otherwise qualified to participate in or benefit from.
2. The AIC cannot control which providers you see and would not have access to the pharmaceutical record in question....

(Mot. Dismiss, Ex. A-2) (emphasis in original.) Defendants Dowis and Frantz allegedly knew of Plaintiff's April 28, 2011 grievance and Defendant Reed's denial thereof. ( See SAC ¶¶ 81, 143.)

B. Background for § 1983 Claim against Defendant Wilson

Defendant Wilson is a records technician at SCF who, beginning in June 2009, was designated as a "grievance coordinator" during the time period relevant to Plaintiffs' claims. (SAC ¶ 4.) In this role, Defendant Wilson was allegedly responsible for reviewing and processing Plaintiff's grievances. ( Id. ¶ 83.) Defendant Wilson was also responsible for arranging appointments with outside specialists. ( Id. ¶ 4.)

Between July 2009 and the present, Defendant Wilson allegedly received dozens of grievances from Plaintiff describing "infection, pain, torture, hopelessness and his overall desire to be treated for his condition." ( Id. ¶¶ 56-57.) Defendant Wilson allegedly "rejected several of his grievances citing bogus procedural deficiencies, resulting in delays in the provision of medical care for his serious medical needs." ( Id. ¶ 84.) Further, in April 2012, Defendant Wilson allegedly ignored the request of Dr. Fauvel[5] to check on the approval and scheduling of Plaintiff's urgent hip osteotomy. ( Id. ¶ 85.)

PROCEDURAL BACKGROUND

Plaintiff's Original Prisoner Complaint, filed August 5, 2011 (Doc. No. 1), was dismissed a year later on August 22, 2012. (Order, Doc. No. 87.) However, as part of the Order of Dismissal, District Judge Philip A. Brimmer granted Plaintiff leave to file an Amended Complaint asserting an Eighth Amendment claim relating to the treatment of his staph infection. ( See id. at 6, 12.)

Plaintiff subsequently retained counsel, and after receiving several extensions of time ( see Doc. Nos. 97, 99, 103), filed an Amended Complaint on February 5, 2013. (Doc. No. 104.) This court subsequently struck this Amended Complaint, however, because it exceeded the scope of Judge Brimmer's Order. (Order, Doc. No. 112, filed March 13, 2013.) On April 30, 2013, Plaintiff filed an Amended Complaint in compliance with Judge Brimmer's Order (Doc. No. 121.) Shortly thereafter, on May 6, 2013, Plaintiff filed a Motion for Leave to Amend the Operative Complaint seeking to add additional claims for relief. (Doc. No. 122.) On June ...


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