United States District Court, D. Colorado
ESTATE OF BARTON GRUBBS and TANYA SMITH, individually and as the personal representative of the Estate of Barton Grubbs, Plaintiffs,
THE WELD COUNTY SHERIFF'S OFFICE, BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, CORRECT CARE SOLUTIONS, LLC, and CHRISTIN HERNANDEZ, in her Individual and Official Capacity, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on Defendants the Weld County
Sheriff's Office and the Board of County Commissioners of
the County of Weld's Motion to Dismiss the Third, Fourth
and Fifth Claims for Relief of Plaintiffs' First Amended
Complaint and Jury Demand [Docket No. 77] and Defendants
Correct Care Solutions, LLC and Christin Hernandez's
Partial Motion to Dismiss [Docket No. 78].
March 28, 2014, Barton Grubbs committed suicide while in
custody at the Weld County Jail. Docket No. 66 at 9, ¶
47; 21, ¶ 186. The events leading to his death began on
the evening of March 27, 2014 when Colorado State Trooper
Travis Tyndall arrested Mr. Grubbs for driving under the
influence. Docket No. 66 at 6-7, ¶¶ 17-21. After
being handcuffed, Mr. Grubbs asked Trooper Tyndall to
retrieve his pain medication. Id. at 7, ¶¶
24, 26. Trooper Tyndall retrieved a bottle of Percocet and a
bottle of Valium from Mr. Grubbs' car. Id.,
¶ 26. Trooper Tyndall took Mr. Grubbs to a substation,
where they were met by paramedics who confirmed that Mr.
Grubbs' medication was in fact Percocet and Valium and
permitted him to take one pill of each. Id.,
¶¶ 27-31. Trooper Tyndall told Mr. Grubbs to put
his medication in Grubbs' inside coat pocket.
Id. at 8, ¶ 34. Trooper Tyndall then took Mr.
Grubbs to the Weld County Jail for booking. Id.,
¶ 35. While Trooper Tyndall was filling out paperwork,
Mr. Grubbs surreptitiously swallowed all but one of his
remaining pills. Id. at 8-9, ¶¶ 45-47, 58.
During the booking process, Officer Eric Sutherland searched
Mr. Grubbs and found the pill bottles. Id. at 9,
¶ 57. Officer Sutherland contacted medical staff, and
Licensed Practical Nurse (“LPN”) Christin
Hernandez responded. Id. at 10, ¶¶ 59, 61.
Nurse Hernandez was an employee of Correct Care Solutions,
LLC (“CCS”), which contracts with the Weld County
defendants to provide healthcare services, including medical
and mental health, for the Weld County Jail. Id. at
5, ¶¶ 13-14. Nurse Hernandez examined Mr.
Grubbs' pill bottles and stated she would put them into
“property.” Id. at 10, ¶¶
62-63. Trooper Tyndall told Officer Sutherland and Nurse
Hernandez that it was possible that some of the pills were
missing. Id., ¶ 65. At the request of Officer
Sutherland, Nurse Hernandez took Mr. Grubbs' vital signs,
which were normal. Id. at 10-11, ¶¶ 66,
Sutherland asked Mr. Grubbs if he would tell jail staff
members if he were suicidal; Mr. Grubbs stated that he would
not. Id. at 11, ¶¶ 77-78. As a result,
Officer Sutherland scheduled a suicide “staffing”
for Mr. Grubbs. Id., ¶ 79. A staffing is a
formal suicide evaluation conducted by medical staff and
corrections officers. Id., ¶ 80. Officer
Jennifer Linderlink and Nurse Hernandez conducted the suicide
staffing. Id. at 12, ¶ 87. During the
interview, Officer Linderlink asked Mr. Grubbs if he had
taken any pills; Mr. Grubbs responded that he had taken
around 70 Valium while waiting in the booking vestibule.
Id. at 13-14, ¶¶ 99-103. Nurse Hernandez
spoke with her supervisor to inquire about what she should do
as a result of Mr. Grubbs' statements. Id. at
14, ¶ 104. Nurse Hernandez's supervisor told her to
obtain information regarding Mr. Grubbs' prescriptions
and call the provider to inquire as to methods to counteract
the effect of the pills Mr. Grubbs had taken. Id.,
¶ 105. Nurse Hernandez checked the prescription levels
on Mr. Grubbs' medication bottles, but did not call the
provider about drugs to help Mr. Grubbs. Id.,
¶¶ 107-08. Nurse Hernandez asked Officer Sutherland
whether it would be possible to review footage from cameras
overlooking the booking area, but neither Nurse Hernandez nor
Officer Linderlink requested the tape, which did in fact show
Mr. Grubbs consuming the medication. Id. at 15,
time Officer Linderlink had Nurse Hernandez check Mr.
Grubbs' vitals again, which she recorded as abnormal.
Id., ¶¶ 115-17. Mr. Grubbs was transported
to a housing unit and placed on suicide watch level one.
Id., ¶ 119. Corrections officers are supposed
to observe an inmate on suicide watch level one at no more
than five minute intervals. Id. at 30, ¶ 248.
Nurse Hernandez requested a medical screening for Mr. Grubbs,
but none was conducted. Id. at 16, ¶¶
125-26. Mr. Grubbs was placed in his cell at around 5:00 a.m.
and given a suicide watch gown. Id. at 17-18,
¶¶ 139-42. Officer Lamb checked on Mr. Grubbs
approximately an hour and fifteen minutes after he was placed
in his cell. Id. at 18, ¶¶ 143-44. Officer
Steven MacCreery also conducted walkthroughs during the early
morning and observed Mr. Grubbs' foot twitching on at
least one occasion. Id., ¶¶ 148-150.
Sometime after 8:00 a.m., three officers entered Mr.
Grubbs' cell to relocate him. Id. at 19, ¶
155. Mr. Grubbs never spoke or responded to the officers in
any way. Id. at 19-20, ¶¶ 157-160, 171.
Medical staff and paramedics were called, and Mr. Grubbs was
transported to Northern Colorado Medical Center, where it was
determined that Mr. Grubbs had no brain activity.
Id. at 20, ¶¶ 172-75. Later that day Mr.
Grubbs died, never having regained consciousness.
Id. at 21, ¶ 186. The cause of death on his
autopsy report was medication overdose. Id.
March 25, 2016, his estate and personal representative filed
this lawsuit seeking damages arising from Mr. Grubbs'
death. Docket No. 1. On July 26, 2016, plaintiffs filed an
amended complaint alleging six claims for relief pursuant to:
(1) Colo. Rev. Stat. § 13-21-202 for death by
negligence; (2) Colo. Rev. Stat. § 13-20-101 for
expenses related to Mr. Grubbs' death; (3) 42 U.S.C.
§ 1983 for deliberate indifference to medical needs; (4)
42 U.S.C. § 1983 for adoption of an official policy; (5)
42 U.S.C. § 1983 for failure to adequately train or
supervise; and (6) common law negligence. Docket No. 66.
Weld County Sheriff's Office and Board of County
Commissioners of the County of Weld (collectively “Weld
County defendants”) have moved to dismiss
plaintiffs' third, fourth, and fifth claims for relief.
Docket No. 77. Defendants CCS and Christin Hernandez have
moved to dismiss plaintiffs' third claim for relief
against defendants CCS and Hernandez and plaintiffs'
sixth claim for relief against defendant Hernandez. Docket
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege enough factual matter that, taken as true, makes
the plaintiffs' “claim to relief . . . plausible on
its face.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not shown - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted). Thus, even though modern rules of pleading are
somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Bryson, 534 F.3d at 1286
(alteration marks omitted).
governments may not be sued under 42 U.S.C. § 1983 on a
theory of respondeat superior. Monell v. Dep't of
Soc. Servs. of N.Y., 436 U.S. 658, 692 (1978). Instead,
local governing bodies can be sued directly only where
“the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that body's officers.” Id. at 690
(footnote omitted). “[I]t is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the
government as an entity is responsible under §
1983.” Id. at 694.
order to state a claim for municipal liability under §
1983 for the actions of a municipal employee, a party must
allege sufficient facts to demonstrate that it is plausible
(1) that the municipal employee committed a constitutional
violation; and (2) that a municipal policy or custom was the
moving force behind the constitutional deprivation. Jiron
v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).
The plaintiff must further show that “the policy was
enacted or maintained with deliberate indifference to an
almost inevitable constitutional injury.” Schneider
v. City of Grand Junction Police Dep't, 717 F.3d
760, 769 (10th Cir. 2013). “The deliberate indifference
standard may be satisfied when the municipality has actual or
constructive notice that its action or failure to act is
substantially certain to result in a constitutional
violation, and it consciously or deliberately chooses to
disregard the risk of harm.” Barney v.
Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)
(citation omitted). A municipal policy or custom can take the
form of “(1) a formal regulation or policy statement;
(2) an informal custom amoun[ting] to a widespread practice
that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the
decisions of employees with final policymaking authority; (4)
the ratification by such final policymakers of the decisions
- and the basis for them - of subordinates to whom authority
was delegated subject to these policymakers' review and
approval; or (5) the failure to adequately train or supervise
employees, so long as that failure results from
‘deliberate indifference' to the injuries that may
be caused.” Bryson v. City of Oklahoma City,
627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).
this background in mind, the Court considers whether
dismissal of the challenged claims is appropriate.
Plaintiffs' Third Claim for Relief - Deliberate
Indifference to Medical Needs
the Fourteenth Amendment's Due Process Clause, pretrial
detainees are entitled to the same degree of protection
against denial of medical care as that afforded to convicted
inmates under the Eighth Amendment.” Estate of
Hocker by Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir.
1994). To bring a claim for deliberate medical indifference
against an institution, plaintiff must allege “such
gross deficiencies in staffing, facilities, equipment, or
procedures that the inmate is effectively denied access to
adequate medical care.” See Garcia v. Salt Lake
Cty., 768 F.2d 303, 308 (10th Cir. 1985) (citing
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).
To bring a claim for deliberate indifference to medical needs
against an individual, a plaintiff must allege: “(i)
that he suffered from a serious medical need - that is, one
that has been diagnosed by a medical provider as requiring
treatment or one which even a lay person would easily
recognize as requiring medical attention; and (ii) the
Defendant was subjectively aware of that need and that
failing to treat it would pose an excessive risk to the
inmate's health or safety, but nevertheless elected to
delay or deny treatment for it.” Ajaj v. Fed.
Bureau of Prisons, No. 08-cv-02006-MSK-MJW, 2011 WL
902440, at *16 (D. Colo. Mar. 10, 2011) (citing Sealock
v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). The
first prong is examined objectively, while the second is
examined subjectively and takes into account whether a prison
official “knows of and disregards an excessive risk to
inmate health or safety.” Sealock, 218 F.3d at
1209 (quoting Farmer v. Brennan, 511 U.S. 825, 837
Weld County Defendants
Weld County defendants argue that plaintiffs' third claim
for relief presents mere boilerplate recitations of the
elements of deliberate indifference and, moreover, that
plaintiffs' allegation that Weld County had a policy of
deferring to medical staff on admittance decisions
demonstrates that the Weld County defendants were unable to
provide medical care to Mr. Grubbs. Docket No. 77 at 4.
Plaintiffs respond by arguing that the agreement between the
Weld County defendants and CCS has a built-in deliberate
indifference in healthcare standards for inmates by defining
one standard for emergency medical services for visitors and
employees and another standard for detainees and inmates.
Docket No. 81 at 3-4.
allegations in the amended complaint, however, demonstrate
that the Weld County defendants' policy did not
effectively deny Mr. Grubbs access to a hospital. According
to plaintiffs, despite the different standards of care for
inmates and visitors, “three other prisoners were had
[sic] already been taken to the hospital” on the same
evening Mr. Grubbs was admitted. Docket No. 66 at 17, ¶
131. Plaintiffs state that, because these other inmates were
taken to the hospital, Mr. Grubbs was not. Id.
However, the policy identified by plaintiffs does not limit
the number of individuals to be taken to the hospital and the
amended complaint confirms that Mr. Grubbs could have been
taken to the hospital had the medical staff determined it was