United States District Court, D. Colorado
ESTATE OF JENNIFER LOBATO, by and through its personal representative Paul Montoya, PAUL MONTOYA, individually, ANGELICA DELGADO, A.Z., a minor, by and through his father, Paul Montoya, J.M., a minor, by and through her father, Paul Montoya, V.M., a minor, by and through her father, Paul Montoya, L.F., a minor, by and through his father, Luciano Fresquez, A.F., a minor, by and through her father, Luciano Fresquez, and I.F., a minor, by and through his father, Luciano Fresquez, Plaintiffs,
CORRECT CARE SOLUTIONS, LLC, CORRECTIONAL HEALTHCARE COMPANIES, INC., JEFFERSON COUNTY, COLORADO, JESSICA ROMERO, in her individual capacity, CAROLINE RYAN, in her individual capacity, BRIANNA WHINNERY, in her individual capacity, and ESME ZIEGELMAN, in her individual capacity, Defendants.
A. BRIMMER, United States District Judge
matter is before the Court on Defendants CCS and CHC's
Partial Motion to Dismiss the Second Claim of Plaintiffs'
Third Amended Complaint [Docket No. 117]. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
March 2, 2015, Jennifer Lobato died as a result of untreated
withdrawal from methadone while detained in the Jefferson
County Detention Facility in Jefferson County, Colorado
(“JCDF”). Docket No. 109 at 28-29, ¶¶
147, 152-54. Plaintiffs are Ms. Lobato's husband, her
children, and the estate of Ms. Lobato. Id. at 9,
¶¶ 16-17. Ms. Lobato was arrested on March 1, 2015
for allegedly shoplifting. Id. at 11, ¶ 55.
While being transported to JCDF, Ms. Lobato told Officer
Wendy Trentaz of the Lakewood Police Department that
“she was a heroin user and that she was concerned about
going to jail because of her fear of withdrawing from the
drug.” Id., ¶ 56.
Lobato arrived at JCDF at around 5:00 p.m. on March 1, 2015
for booking and processing. Id. at 13, ¶ 72.
During the booking process, Emergency Medical Technician
(“EMT”) Jessica Romero and EMT Bryan Muscutt
performed an intake on Ms. Lobato. Id. at 14, ¶
79. Romero and Muscutt were employed by the CCS
defendants. Id. at 8, ¶¶ 37-38. The
CCS defendants contract with Jefferson County to provide
medical care to inmates and detainees at JCDF. Id.
at 11, ¶ 57. The purpose of the intake process is
“to determine whether an inmate needs medical
attention.” Id. at 14, ¶ 79. Romero and
Muscutt both stated that, during the intake process,
“Ms. Lobato never admitted to any drug use and did not
exhibit signs of withdrawal.” Id.
defendants' policy requires that, “if an inmate
affirmatively confirms drug usage or exhibits any signs of
withdrawal, ” the medical staff is required to initiate
the opiate withdrawal protocol. Id., ¶ 80. The
opiate withdrawal protocol requires the EMT staff to check
the inmate's vital signs and for a nurse to screen the
inmate for “clinical indications of withdrawal.”
Id., ¶ 81. Plaintiffs allege that, although
“Ms. Lobato was showing visible signs of withdrawal,
including but not limited to sweating and shaking, JCDF's
written opiate withdrawal protocol was ignored by EMT Romero
and EMT Muscutt and Ms. Lobato was never screened for any
clinical indications of withdrawal.” Id. at
14-15, ¶ 82. Ms. Lobato was then placed in a cell in
Unit 6A. Id. at 15, ¶ 84.
approximately 8:30 a.m. on March 2, 2015, Nurse Caroline
Ryan, another employee of the CCS defendants, id. at
9, ¶ 39, conducted her morning medication disbursement
to the inmates in Unit 6A. Id. at 17, ¶ 94.
Numerous inmates attempted to inform Nurse Ryan about
plaintiff's withdrawal symptoms, but Nurse Ryan did not
examine Ms. Lobato or take any action based on the
inmates' descriptions of Ms. Lobato's symptoms.
Id., ¶ 95. Throughout the morning, Ms. Lobato
and other inmates informed deputies working at JCDF that Ms.
Lobato was experiencing withdrawal symptoms. Id. at
16-20, ¶¶ 96-107. Ms. Lobato informed the deputies
that she was withdrawing from “meth.”
Id. at 19, ¶ 103. One deputy, after hearing Ms.
Lobato complain about withdrawal, reviewed Ms. Lobato's
intake records and spoke to EMT Romero about Ms. Lobato's
intake. Id. at 20, ¶ 107-08. EMT Romero
informed the deputy that Ms. Lobato had not provided any
information related to withdrawal and stated that “they
don't really have a protocol for meth anyway.”
Id., ¶ 108. EMT Romero did not try to clarify
what “meth” referred to. Id.
Ryan returned to Unit 6A between 11:15 a.m. and 11:45 a.m. to
do another medication distribution. Id. at 20,
¶ 111. By this time, Ms. Lobato had been vomiting for
several hours. Id. at 17, ¶ 97. Numerous
inmates alerted Nurse Ryan that Ms. Lobato was in withdrawal,
but Nurse Ryan did not evaluate Ms. Lobato or take any other
actions in response to the inmates' statements.
Id. at 21, ¶ 112. Throughout the afternoon, Ms.
Lobato and the other inmates continued to inform the deputies
on duty that Ms. Lobato was in withdrawal, was vomiting, and
was in need of medical attention. Id. at 21-23,
¶¶ 113-126. Instead of providing Ms. Lobato with
treatment, the deputies on duty ignored Ms. Lobato's
pleas and harassed the inmates who tried to get Ms. Lobato
help. Id. at 24-26, ¶¶ 129-133.
Ryan returned for a third time to Unit 6A at approximately
4:30 p.m. to distribute medication. Id. at 26,
¶ 134. One of the deputies informed Nurse Ryan that Ms.
Lobato was withdrawing from “meth” and that Ms.
Lobato had not mentioned this during the intake process.
Id. Nurse Ryan stated that “they could not
give any medications for meth withdrawal, and if she had her
way, everyone would withdraw from meth because it was the
best [drug to] withdraw from.” Id., ¶
135. Nurse Ryan did not attempt to clarify the meaning of
“meth, ” inquire about Ms. Lobato's physical
condition, or attempt to examine Ms. Lobato. Id. at
approximately 5:00 p.m., Ms. Lobato's cellmate returned
to the cell. Id., at 26-27, ¶ 137. She was
“overcome by the smell of vomit” and informed the
deputies that “Ms. Lobato was extremely sick and needed
help.” Id. at 27, ¶ 138. The deputies
instructed Ms. Lobato's cellmate to clean the cell and
did not ask about Ms. Lobato's condition. Id.
Ms. Lobato's cellmate refused to clean the cell and left.
Id., ¶ 139. The deputy told Ms. Lobato
“that she would only receive medical attention after
the cell had been cleaned.” Id. At that time,
Ms. Lobato informed one of the deputies that she was
withdrawing from methadone. Id. at 27, ¶ 140.
The deputy contacted Nurse Brianna Whinnery, id.,
another employee of the CCS defendants. Id. at 9,
¶ 40. Nurse Whinnery told the deputy that Ms. Lobato
would be put on the list for the evening medication rounds.
Id. at 27, ¶ 142. Nurse Whinnery did not
inquire as to Ms. Lobato's condition, send medical staff
to evaluate Ms. Lobato, or “otherwise follow the
established protocol.” Id. Nurse Whinnery gave
Ms. Lobato's medical information, including that she was
withdrawing from methadone, to Nurse Esme Ziegelman, the
charge nurse for the night shift. Id. at 28, ¶
143. Nurse Ziegelman did not attempt to get any additional
information about Ms. Lobato's physical condition.
medication rounds for the evening did not begin until 7:30
p.m. Id., ¶ 144. At approximately 7:00 p.m. on
March 2, 2015, Ms. Lobato pressed the intercom button in her
cell and “pleaded for medical attention.”
Id. at 29, ¶ 148. The deputies on duty told Ms.
Lobato she would have to wait for the nurse's evening
medication rounds. Id. At approximately 7:19 p.m.,
Ms. Lobato's cellmate pressed the intercom button and
told the deputies that she did not think Ms. Lobato was
breathing. Id., ¶ 149. The deputies called for
paramedics, who arrived at approximately 7:30 p.m.
Id., ¶ 151. At 7:45 p.m., Ms. Lobato was
pronounced dead. Id., ¶ 152. Ms. Lobato died of
“cardiac arrest due to probable electrolyte
abnormalities, due to repeated vomiting.” Id.,
to an expert retained by plaintiffs, Ms. Lobato's death
was preventable “by simple medical care and treatments,
and even up until the immediate time of her death, her
treatments with IV fluids and electrolyte replacements would
have saved her life.” Id. at 30, ¶ 156.
third amended complaint alleges five claims for relief:
first, the estate of Ms. Lobato seeks damages against all
defendants under 42 U.S.C. § 1983 for a failure to
provide medical care and treatment in accordance with the
Fourteenth Amendment; second, the estate of Ms. Lobato seeks
damages against the CCS defendants and Jefferson County under
42 U.S.C. § 1983; third, plaintiffs Paul Montoya,
Angelica Delgado, A.Z., J.M., V.M., L.F., A.F., and I.F. seek
damages against the CCS defendants, Caroline Ryan, Brianna
Whinnery, Jessica Romero, and Esme Ziegelman for medical
negligence causing wrongful death; fourth, plaintiffs Paul
Montoya, Angelica Delgado, A.Z., J.M., V.M., L.F., A.F., and
I.F. seek damages for negligent operation of the jail
resulting in the wrongful death of Ms. Lobato; and fifth, all
plaintiffs seek damages from all defendants as heirs to Ms.
Lobato's estate. Docket No. 109 at 38-48, ¶¶
defendants have moved to dismiss plaintiffs' second claim
for relief. Docket No. 117.
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).