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Vasquez v. Davis

United States District Court, D. Colorado

November 2, 2015

JEANNE DAVIS, in her individual capacity, KATHLEEN MARTORANO, in her individual capacity, KEITH MEEK, in his individual capacity, BRIAN WEBSTER, in his individual capacity, GATBEL CHAMJOCK, in his individual capacity, KATHLEEN MELLOH, in her individual capacity, MAURICE FAUVEL, in his individual and official capacities, JOHN and/or JANE DOEs, Clinical Services Administrators and Supervisors, in their official and individual capacities, and RICK RAEMISCH, in his official capacity, Defendants.


William J. Martínez, United States District Judge

Plaintiff Jimmy Joseph Vasquez (“Vasquez”) is an inmate in the custody of the Colorado Department of Corrections (“CDOC”). (ECF No. 55 ¶ 1.) He brings this lawsuit under the Eighth Amendment (by way of 42 U.S.C. § 1983), alleging that various CDOC employees (collectively, “Defendants”) were deliberately indifferent to his medical needs over many years, causing him to develop end-stage liver disease that will likely kill him absent a liver transplant. (Id. at 1-2.)

Before the Court are five overlapping motions to dismiss filed by the various Defendants. (ECF Nos. 57, 58, 80, 84, 88.) For the reasons stated below, these motions are denied.


Most of the various motions argue for dismissal under both Federal Rule of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and Rule 12(b)(6) (failure to state a claim). However, those motions invoking Rule 12(b)(1) do not make any explicit lack-of-jurisdiction argument.[1] The Court therefore analyzes Defendants’ motions under the Rule 12(b)(6) standards, which require the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on a Rule 12(b)(6) motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).


The Court assumes the following allegations to be true for purposes of this motion.

A. Vasquez’s HCV Diagnosis and Imprisonment at Sterling

Vasquez entered CDOC custody in 2004 and was sent to CDOC’s Denver Reception and Diagnostic Center, where blood tests revealed that he was infected with HCV (hepatitis C virus). (ECF No. 55 ¶¶ 36, 42.) Vasquez was then assigned to CDOC’s Sterling Correctional Facility (“Sterling”). (Id. ¶¶ 36, 39.)

Sterling is, “[f]or all practical purposes, . . . two separate facilities, ” known as the “East Side” and the “West Side.” (Id. ¶ 28.) The East Side houses minimum-security prisoners, while the West Side houses more dangerous prisoners. (Id.) Vasquez was assigned to West Side, and has been there ever since. (Id. ¶¶ 39-40.)

B. Defendant Davis

The first medical professional Vasquez saw at Sterling was Defendant Jeanne Davis (“Davis”), a physician’s assistant. (Id. ¶¶ 2, 47.) Davis saw Vasquez in November 2004, “confirmed his HCV diagnosis, ” and ordered that Vasquez “undergo additional liver function testing in six months to determine the chronicity of his disease, in accordance with CDOC policy.” (Id. ¶ 47.) That policy states that HCV-positive prisoners may receive antiviral drug therapy if they display elevated liver enzymes for six months. (Id. ¶ 17.)

Six months later (May 2005), Davis reviewed Vasquez’s chart and informed him that he should receive antiviral therapy. (Id. ¶¶ 49, 53.) She also told him, however, that he would first need to complete six months of substance abuse resistance classes. (Id. ¶¶ 22, 48, 57.) This was also a matter of CDOC policy because

CDOC does not believe that treatment should be given to patients who are likely to become re-infected. For this reason, anyone who wants to receive potentially curative treatment for chronic viral hepatitis is required to participate in and attend drug and alcohol classes and/or activities which can teach them to avoid returning to habits that can lead to re-infection.

(Id. ¶ 21 (internal quotation marks omitted).) But Davis never referred Vasquez to these classes, in violation of a CDOC policy requiring healthcare providers to submit a written referral within twenty-four days of confirming an inmate’s need for antiviral treatment. (Id. ¶¶ 20, 49-52.)

C. Defendant Martorano

Shortly after learning from Davis that he needed to participate in the substance abuse treatment program, Vasquez met with his case manager, Defendant Kathleen Martorano. (Id. ¶¶ 3, 56-57.) Vasquez told Martorano that he needed to take the substance abuse classes before he could receive antiviral therapy for his HCV. (Id. ¶ 59.) Martorano responded that such classes were only available on Sterling’s East Side, and that Vasquez’s custody level prevented him from being transferred there, or to any facility offering substance abuse classes. (Id. ¶¶ 60-61.) At that time, however, CDOC’s most secure facility (the Colorado State Penitentiary) was indeed offering such classes. (Id. ¶ 62.) In addition, Martorano had the power to override Vasquez’s custody level so he could at least be transferred to Sterling’s East Side. (Id. ¶ 63.) Vasquez requested such an override on several occasions, but Martorano “refused each of these requests and eventually threatened to write him up if he kept asking.” (Id. ¶ 64.)

D. Defendant Meek

Sometime in 2005, case management responsibilities for Vasquez were transferred from Martorano to Defendant Keith Meek. (Id. ¶ 65.) As with Martorano, Vasquez repeatedly asked Meek for assistance in obtaining a facility transfer or security classification override so that he could take the required substance abuse classes, but Meek repeatedly refused and threatened to write him up. (Id. ¶¶ 66-68.)

E. Defendant Webster

Sometime in 2006, responsibility for supervising Vasquez’s medical care transferred from Davis to Defendant Brian Webster (“Webster”), another physician’s assistant. (Id. ¶¶ 5, 70.) In October 2006, Webster noted Vasquez’s “elevated liver function test numbers” and acknowledged Vasquez’s ...

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