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Vasquez v. Davis

United States District Court, D. Colorado

November 30, 2016

JEANNE DAVIS, in her individual capacity, KATHLEEN MARTORANO, in her 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 individual and official capacities, Defendants.



         Plaintiff Jimmy Joseph Vasquez is an inmate in the custody of the Colorado Department of Corrections (“CDOC”) and housed at the Sterling Correctional Facility (“Sterling”). (ECF No. 113 ¶ 1.) He is infected with the hepatitis C virus (“HCV”). (Id. ¶ 42.) Vasquez brings this lawsuit under the Eighth Amendment to the U.S. Constitution, alleging that various CDOC employees (collectively, “Defendants”) were deliberately indifferent over many years to the effects that HCV was having on him. Due to that indifference, he claims he developed end-stage liver disease that will likely kill him absent a liver transplant. (Id. at 1-2.) Subsequent developments have cast doubt on whether Vasquez in fact requires a liver transplant (see ECF No. 126 (finding, in preliminary injunction proceedings, that Vasquez's condition is stable)), but he nonetheless appears to face lifelong complications from the effects of HCV on his liver.

         Currently before the Court is Defendant Rick Raemisch's Motion to Dismiss. (ECF No. 136.) Invoking Federal Rule of Civil Procedure 12(b)(6), Raemisch specifically seeks dismissal of the claims brought against him in his individual capacity, as alleged in Vasquez's Third Amended Complaint. (See Id. at 1-2.) For the reasons explained below, the Court grants this motion and dismisses Vasquez's claims with prejudice to the extent they seek to hold Raemisch liable in his individual capacity. Raemisch will remain a defendant in his official capacity.


         The Rule 12(b)(6) standard requires 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). Having assumed that truth, the dispositive inquiry then usually becomes “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)). This analysis assumes that the plaintiff's legal theory is recognized in law and that the only salient question is whether the asserted facts state a claim under that theory. However, some Rule 12(b)(6) motions raise the argument that “a legal theory [is] not cognizable as a matter of law.” Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004), aff'd sub nom. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). For reasons that will become clear below, the Court finds this standard applicable here.[1]

         II. ANALYSIS

         A. Supervisory Liability Generally

         Raemisch is CDOC's Executive Director. (ECF No. 113 ¶ 10.) As is generally known throughout this District, see Fed. R. Evid. 201(b)(1), Raemisch became Executive Director in July 2013, after the murder of the former Executive Director, Tom Clements, in March 2013. See also Hebert v. Raemisch, 2015 WL 9304634, at *6 (D. Colo. Dec. 22, 2015) (“As is well known, Clements was murdered in March 2013. Defendant Raemisch took over as Executive Director in July 2013 . . . .”). Thus, Raemisch's appointment post-dates most of the allegations in Vasquez's Third Amended Complaint (the currently operative complaint). Those allegations overwhelmingly focus on Vasquez's medical treatment or lack thereof between late 2004 and mid-2013, climaxing in May 2013 when Vasquez required emergency surgery for conditions secondary to liver deterioration and learned that a liver transplant might be his only chance of long-term survival. (See ECF No. 113 ¶¶ 42-151, 183-213.)

         Considering (i) Raemisch's late entry into Vasquez's timeline, (ii) Raemisch's status as something other than a medical official, and (iii) Raemisch's separation from the day-to-day affairs at Sterling, Vasquez's theory of liability against Raemisch necessarily draws on a concept sometimes known as “supervisory liability.” The Supreme Court has deemed this term “a misnomer” to the extent it implies pure vicarious (respondeat superior) liability. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). With the understanding that § 1983 defendants “do not answer for the torts of their [subordinates]” and may only be “liable for [their] own misconduct, ” id., this Court will continue to refer to “supervisory liability” as a convenient and already-established shorthand for the concept that government officials who did not personally interact with a plaintiff may still be liable, in certain circumstances, for constitutional violations ultimately carried out by those who did have personal interaction with the plaintiff.

         The basic elements of supervisory liability are: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). But these elements are not “distinct analytical prongs, never to be intertwined.” Id. n.8. For example, in Serna v. Colorado Department of Corrections, 455 F.3d 1146 (10th Cir. 2006), the Tenth Circuit evaluated a claim that a senior CDOC official was ultimately responsible for the excessively violent removal of an inmate from his cell by a special SWAT-like team of prison guards who had received an (ultimately erroneous) report that the inmate possessed a gun. Id. at 1149, 1152. This was, at bottom, an Eighth Amendment claim, which requires the “deliberate indifference” state of mind. Id. at 1154-55. In evaluating only that element of the supervisory liability test, the Tenth Circuit noted that the CDOC official-who approved the guard team's use-had every reason to believe that they could accomplish its goal “safely and effectively, ” and the plaintiff failed to “offer[] any evidence that [the official] turned a blind eye to evidence that would contradict that belief, such as a pattern or practice of constitutional abuses by his subordinates on prior occasions.” Id. at 1155.

         Although Serna discussed such a pattern or practice as potential evidence of deliberate indifference (the third element of a supervisory liability Eighth Amendment claim), such evidence would also show, under those circumstances, the existence of a “policy” (the first element). In layman's terms, turning a blind eye to repeated excessive force incidents would not normally be seen as a “policy.” However, in the context of municipal liability-first approved in Monell v. Department of Social Services, 436 U.S. 658 (1978)-municipalities can be liable under § 1983 for damages when the municipality inflicts constitutional injury through a “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. Such a policy or custom may include what is, in effect, a “policy of inaction” in the face of knowledge that municipal officials are routinely violating a specific constitutional right, thus becoming “the functional equivalent of a decision by the [municipality] itself to violate the Constitution.” Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (internal quotation marks omitted); see also Monell, 436 U.S. at 690-91 (discussing § 1983's application to “customs and usages, ” not just formally adopted policies and practices).

         The fact that Serna would draw upon this concept of intentional inaction shows the degree to which individual supervisory liability has absorbed elements of Monell liability. Indeed, the Tenth Circuit has all but held that the law of supervisory liability for failure to train or intervene is functionally interchangeable with the law of Monell liability for similar failures. In particular, the Tenth Circuit in Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226 (10th Cir. 1999), approvingly analyzed an Eleventh Circuit decision, Greason v. Kemp, 891 F.2d 829 (11th Cir.1990), that explicitly adopted its standard for individual supervisory liability from City of Canton v. Harris, 489 U.S. 378 (1989), which is the Supreme Court's seminal case regarding Monell liability for failure to train. See Sutton, 173 F.3d at 1240-41 (discussing Greason's reliance on City of Canton, and then applying Greason's analytical framework to the case before it).

         Given all of this, it appears that there are two general situations in which a supervisor may liable for failure to train or intervene. First, as noted in Serna, the supervisor may be aware of a pattern of constitutional violations among his or her subordinates, yet choose to do nothing about it. According to the Supreme Court, this is the “ordinar[y]” form of supervisory liability. Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 409 (1997) (evidence of a “pattern of injuries [is] ordinarily necessary to establish . . . culpability and causation”). Second, absent evidence of such a pattern, the supervisor may nonetheless be held liable when, “in light of the duties assigned to specific officers or employees[, ] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the [supervisor] can reasonably be said to have been deliberately indifferent to the need.” City of Canton, 489 U.S. at 390; see also Connick, 563 U.S. at 63-64.

         Even in that light, however, supervisory liability ultimately reduces to the question of proximate cause. See Dodds, 614 F.3d at 1195 (§ 1983 liability appropriate “where the plaintiff has shown the supervisor himself breached a duty to plaintiff which was the proximate cause of the injury” (internal quotation marks omitted)).[2] Thus, in some circumstances a supervisor may be liable for “set[ting] in motion a series of events” that the supervisor “knew or reasonably should have known would cause others” to violate constitutional rights. Schneider, 717 F.3d at 768 (internal quotation marks omitted). On the other hand, “[a]t some point, [a supervisor's] involvement simply becomes too tenuous to support liability.” Grimsley v. MacKay, 93 F.3d 676, 680 (10th Cir. 1996).

         B. Vasquez's Theory of Raemisch's Supervisory Liability

         In this case, Vasquez invokes Serna's notion that a supervisor may be liable for turning a blind eye to evidence that would show a pattern or practice of unconstitutional abuses. (ECF No. 137 at 14.) See also Serna, 455 F.3d at 1155. But as already discussed, Raemisch was not in any sense a supervisor over anyone at CDOC throughout most of the relevant events alleged in the Third Amended Complaint. How, then, does Vasquez fit Raemisch into Serna's “blind eye” paradigm?

         The answer lies in a novel theory that begins with the Second Amended Complaint, in which Raemisch was first named as a defendant, although only in his official capacity. (Compare ECF No. 7 (First Amended Complaint) with ECF No. 55 (Second Amended Complaint).) Raemisch received the Second Amended Complaint no later than April 20, 2015. (See ECF No. 59.) Assuming Raemisch personally reviewed the Second Amended Complaint, he would have learned of Vasquez's allegation that multiple medical providers at Sterling repeatedly failed to take adequate steps to treat Vasquez's HCV, leading to end-stage liver disease and severe complications related to that diagnosis. (See ECF No. 99 at 3-9 (summary of Second Amended Complaint).)

         Vasquez's Third Amended Complaint was accepted by the Court about ten months later, on February 16, 2016. (ECF No. 113.) The Third Amended Complaint alleges that Raemisch is liable both in his individual and official capacities. (Id. ¶ 10.) The basis for his alleged individual liability is, in essence, his inaction since learning of Vasquez's allegations in the Second Amended Complaint.

         To understand Vasquez's unique theory, his allegations in the Third Amended Complaint regarding Raemisch's individual liability deserve to be quoted in full:

152. Defendant Raemisch is the CDOC Executive Director and has the authority to order any CDOC employee or agent to comply with any lawful order related to the performance of his or her job duties.
153. As a matter of CDOC policy and state and federal law, Defendant Raemisch is responsible for ensuring that prisoners in CDOC's charge receive adequate medical care. Specifically, Defendant Raemisch is charged with enforcing CDOC policy that “ensure[s] that [prisoners] have access to medical care [that] is consistent with [the] community standard of care.”
154. CDOC policy, which Defendant Raemisch is charged with enforcing, requires that “[m]edical services [] be provided in a manner that ensures the maintenance of basic health and prevention of health deterioration.” The scope of medical services Defendant Raemisch and CDOC are charged with providing include “medical cases that, without treatment, could result in further deterioration of an essential nature of an offender's condition….”
155. At least as early as March 18, 2015, Defendant Raemisch has been aware of Mr. Vasquez's medical condition as set forth herein by virtue of being a named Defendant in this ...

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