Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bauer v. City and County of Denver

United States District Court, D. Colorado

July 7, 2015

GORDON BAUER, Plaintiff,



This matter is before me on a Motion to Dismiss, filed by Defendant City and County of Denver (the “City”) for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). [Doc # 10] In addition, I address the Motion to Amend Complaint, filed by Plaintiff Gordon Bauer pursuant to Fed.R.Civ.P. 15(a). [Doc # 13] Oral arguments would not materially assist me in my determination of these motions. After consideration of the parties’ briefs and attachments, and for the reason stated, I GRANT the Motion to Dismiss filed by the City, and I DENY the Motion to Amend filed by the Plaintiff.

I. Motion to Amend

As an initial matter, I address Plaintiff’s motion seeking to amend his complaint pursuant to Fed.R.Civ.P. 15(a)(2), which states, in pertinent part, that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.”

It is well-settled that motions to amend should be freely granted when justice requires. See Bellairs v. Coors Brewing Co., 907 F.Supp. 1448, 1459 (D.Colo. 1995). However, a motion to amend may be denied because of “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Where a party opposes a motion to amend on grounds of futility, the court must apply the same standard that governs a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Jefferson County School District No. R–1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999)(ruling that a proposed amendment is futile if the complaint, as amended, would be subject to dismissal).

Thus, I consider the proposed amendments to Plaintiff’s complaint when assessing Defendant’s claim that the complaint fails to state a claim under Fed.R.Civ.P. 12(b)(6). Because I conclude that Plaintiff’s proposed amended complaint should be dismissed under Fed. R. Civ. P.12(b)(6), as discussed below, I deny his motion to amend as futile. See Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999)(ruling that a court may deny leave to amend where the proposed amendments fail to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6), as “[t]he futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim”).

II. Background

In his complaint, filed on June 23, 2014, Plaintiff claims that during the months of April and May of 2012, he was incarcerated in Denver County Jail in the custody of the Denver Sheriff’s Department. [Doc #1 ¶11] During that time Plaintiff suffered extreme pain to his right leg, ankle and foot caused by his diabetes. [Doc #1 ¶6 & ¶12] Plaintiff reported the pain, but was denied access to immediate medical care. [Doc #1 ¶13] However, after complaining for several days, he was “finally taken to Denver Health” where bandages were applied. [Doc #1 ¶14] Plaintiff continued to complain about pain, and was eventually seen again at Denver Health “where they advised him that the foot had gotten to[o] bad to repair or save.” [Doc #1 ¶14] Plaintiff asserts that Denver Health “failed to properly diagnose and treat [his] foot.” [Doc #1 ¶9] As such, Plaintiff claims that during his incarceration he “was not properly cared for and was refused proper medical treatment from the City Jail employees.” [Doc #1 ¶6]

Plaintiff also asserts that after his release he was seen by several physicians in an attempt to save his foot from being amputated. [Doc #1 ¶15] Ultimately, “[a]s a result of the City’s negligence and Denver Health’s negligence [Plaintiff] was required to undergo full amputation of his lower leg” or right foot on June 28, 2012. [Doc #1 ¶10 & ¶16] In his proposed amended complaint, Plaintiff further asserts that in August of 2012, his primary care physician opined that if he would have gotten proper treatment while in jail his foot could have been saved. [Doc #14 ¶15]

Plaintiff filed this civil rights action against the City, pursuant to 42 U.S.C. §1983, claiming a violation of the Eight Amendment Prohibition Against Cruel and Unusual Punishment. Specifically, Plaintiff argues that he had a clearly established right to be free from deliberate indifference to his known serious medical needs. [Doc #1 ¶21] He avers that the City acted in bad faith and with deliberate indifference to Plaintiff’s serious medical needs and constitutional rights when an unknown individual Defendant willfully ignored his repeated requests for medical attention and intentionally denied and/or delayed his access to medical care. [Doc #1 ¶22] In addition, he asserts that the individual Defendant, acting with deliberate indifference, did not enter a medical order disallowing the use of ill-fitting boots for Plaintiff, did not make or implement an appropriate wound care plan, and decided not to transfer him emergently outside of the facility. [Doc #1 ¶22] In his proposed amended complaint, Plaintiff notes that the names of the Sheriff’s involved are “unknown to the Plaintiff” and that the Sheriff Department’s “unconstitutional policies, customs, [and] practices described herein, where the legal proximate cause of the amputation of the Plaintiff’s foot.” [Doc #14 ¶17 & ¶25] In so doing, Plaintiff notes that the City has recently been charged with numerous lawsuits and allegations of abuse and failure to provide medical attention to their inmates. [Doc #14 ¶25]

III. Motion To Dismiss

The City has filed this Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted based on the following three grounds: 1) Plaintiff failed to timely serve his complaint pursuant to Fed.R.Civ.P. 4(m); 2) Plaintiff’s claim is barred by the applicable statute of limitations; and 3) Plaintiff’s conclusory allegations of municipal liability are insufficient to state a plausible claim for relief pursuant to Fed.R.Civ.P. 12(b)(6).

A. Statue of Limitations

Because it is dispositive, I first address the City’s claim that Plaintiff’s motion must be dismissed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.