United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
matter is before the court on Defendants County of El Paso
(“County”), Terry Marketa, Paula Pressley, Biller
Elder, Deputy Long, and Deputy Bork's (collectively,
“County Defendants”) Motion to Dismiss
Plaintiff's First Amended Complaint (Doc. 22) (the
“Motion”). [#31, filed Nov. 3, 2016]. Pursuant to
28 U.S.C. § 636(c) and the Order Referring Case dated
November 21, 2016 [#36], the Motion is before the undersigned
Magistrate Judge. The court concludes that oral argument will
not materially assist in the resolution of this matter.
Accordingly, upon review of the Motion, the case file, and
the applicable law, the court hereby GRANTS IN PART and
DENIES IN PART the Motion for the reasons stated below.
Brenda Anderson Charity (“Plaintiff” or
“Ms. Charity”) is a prisoner in the custody of
the Colorado Department of Corrections, currently
incarcerated at the Denver Women's Correctional Facility
(“DWCF”). See [#1]. On April 25, 2016,
she filed her pro secomplaint pursuant to 42 U.S.C.
§ 1983 alleging that her Eighth Amendment rights were
violated while detained at the El Paso County Jail
(“the Jail”). See [id.].
Specifically, the individual Defendants were deliberately
indifferent to her serious medical needs (Claim I -
Deliberate Indifference) and, because Defendants Maketa,
Pressley, and Elder's failed to train or supervise their
employees, they should also be liable for violating her
constitutional rights (Claim II - Failure to Train).
[Id.; #22]. Plaintiff also alleges a Monell
claim (Claim III) against the County. [#22]. She has been
granted leave to proceed in forma pauperis.
alleges that while she was incarcerated at the Jail, numerous
doctors, Drs. Oozy, Herr, and Jones, prescribed her various
medications, despite being an active and healthy woman prior
to her incarceration. See [#22 at 12]. One of these
medications was the anti-psychotic drug Risperdal.
[Id.]. Plaintiff alleges that these doctors should
never have prescribed her Risperdal because it may pose
serious side effects to elderly patients with heart or blood
vessel disease- Ms. Charity is 70 years old and suffers from
high blood pressure. [Id.]. Nevertheless, Plaintiff
alleges Dr. Oozy prescribed her Risperdal. [Id.].
April 22, 2014, Plaintiff alleges to have suffered an
allergic reaction to Risperdal. [Id.].
Plaintiff's throat began to itch and her tongue began to
swell. [Id.]. Plaintiff informed Nurse John, who
then gave Ms. Charity a Benadryl to ease the swelling.
[Id.]. Nurse John also informed Plaintiff to submit
a kite to Dr. Oozy requesting that he stop prescribing
Risperdal immediately, which Plaintiff did and Nurse John
delivered. [Id. at 12-13].
days later, on April 24, 2014, Plaintiff informed the nurse
dispensing morning medications (“Nurse,
Administered Medication” or “Defendant
Nurse”) that she could not take the Risperdal because
of her allergic reaction; however, the nurse crushed all of
Plaintiff's medications into a powder and forced
Plaintiff to ingest the entire powder. [Id. at 13].
Plaintiff claims that as a result, she began experiencing
severe symptoms of an allergic reaction, and that Deputy Bork
was present at this time. [Id.]. For example, Ms.
Charity alleges that she had difficulty breathing, had an
irregular heartbeat, was itchy and dizzy, developed hives,
and experienced swelling in her throat, face, and tongue.
alleges that she sought help for her worsening condition, but
that Deputy Long refused to help Plaintiff or seek
assistance, stating that Ms. Charity was being “too
needy.” [Id.]. Further, Plaintiff alleges that
Deputy Long informed her that she would have to “wait
like everyone else, ” and allegedly blocked her from
seeking help by standing in her way. [Id.]. After
waiting for more than an hour, Plaintiff was eventually taken
to Memorial Hospital. [Id.]. Plaintiff remained in
the hospital for two days and physicians believed she had
suffered a stroke. [Id.]. Upon returning to the
Jail, Plaintiff received a walker, as ordered by the hospital
physicians, but did not receive the prescribed physical
alleges that the allergic reaction to Risperdal caused her to
suffer several physical impairments such as difficulty
swallowing, damage to her right eye that now droops,
drooling, memory loss, impaired speech, and weakness down the
left side of her face. [Id.]. Plaintiff seeks
damages of $50, 000, 000 from each named Defendant.
[Id. at 13, 27-28].
2, 2016, Magistrate Judge Gordon P. Gallagher ordered Ms.
Charity to file an amended prisoner Complaint. See
[#6]. Magistrate Judge Gallagher advised Plaintiff that her
initial Complaint failed to identify the specific factual
allegations that supported her claims, against which of the
named Defendants she was asserting each claim, and how each
Defendant violated her constitutional rights. See
[id.]. Magistrate Judge Gallagher granted Plaintiff
several extensions of time to submit her Amended Complaint,
which became due on September 1, 2016. See [#9;
September 13, 2016, the Honorable Lewis T. Babcock issued an
Order to Dismiss in Part Plaintiff's Complaint, because
Plaintiff had not filed her Amended Complaint pursuant to
Magistrate Judge Gallagher's Order. See [#18].
Judge Babcock dismissed Plaintiff's claims against El
Paso County Sheriff Department, El Paso County Sheriff
Medical Department, Correct Care Solutions, Correctional
Health Care Companies, Dr. Howard, Dr. Herr, Dr. David Jones,
Dr. Oozy, Paula Pressley, Nurse Farmer, Kathy Jones, and
Nurse John as legally frivolous. See [id.
at 9-10]. Judge Babcock, however, ordered that
Plaintiff's remaining claim against Deputy Long be drawn
“to a presiding judge and, if applicable, to a
magistrate judge.” [Id. at 10].
September 14, 2016, the court docketed Plaintiff's
Amended Complaint. See [#22]. However, Plaintiff
dated the Amended Complaint as September 1, 2016, and her
Certificate of Mailing indicated that she mailed a copy to
the Office of the Clerk on that date. See
[id. at 28- 29]. On October 3, 2016, this Magistrate
Judge issued a Minute Order that directed the Clerk of the
Court to accept Ms. Charity's Amended Complaint [#22], as
the operative Complaint, and directed the named Defendants to
respond accordingly. See [#26]. At the time that the
court docketed Plaintiff's Amended Complaint, it did not
conduct a substantive review of the amended claims pursuant
to this District's Local Rules or 28 U.S.C. § 1915.
November 3 and 4, 2016, respectively, the County Defendants
filed the Motion and a Motion to Stay. See [#31;
#32]. The undersigned granted the Motion to Stay, staying
discovery pending the disposition of the instant Motion.
[#42]. Plaintiff filed a response to the Motion and the
County Defendants a reply. [#39; #40]. The Motion being ripe
for resolution, the court considers the Parties'
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Nevertheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Hall, 935 F.2d at 1110 (holding that even
pro se litigants cannot rely on conclusory,
unsubstantiated allegations to survive a 12(b)(6) motion).
Rather, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(explaining that plausibility refers “to the scope of
the allegations in a complaint, ” and that the
allegations must be sufficient to nudge a plaintiff's
claim(s) “across the line from conceivable to
plausible.”). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160
(10th Cir. 2007).
order to survive a Rule 12(b)(6) motion to dismiss a §
1983 claim, a plaintiff must allege ‘(1) a violation of
rights protected by the federal Constitution or created by
federal statute or regulation, (2) proximately caused (3) by
the conduct of a ‘person' (4) who acted under color
of any statute, ordinance, regulation, custom[, ] or usage,
of any State or Territory or the District of
Columbia.'” Beedle v. Wilson, 422 F.3d
1059, 1064 (10th Cir. 2005) (quoting Summum v. City of
Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The
complaint must allege an affirmative link between the alleged
constitutional violation and the specific individual's
participation in that violation. Stidham v. Peace Officer
Standards and Training, 265 F.3d 1144, 1156-57 (10th
Cir. 2001). Relatedly, “[t]o survive a motion to
dismiss based on qualified immunity, the plaintiff must
allege sufficient facts that show-when taken as true-the
defendant[s] plausibly violated h[er] constitutional rights,
which were clearly established at the time of
violation.” Schwartz v. Booker, 702 F.3d 573,
579 (10th Cir. 2012) (citation omitted).
Statute of Limitations
claims brought pursuant to § 1983, state statutes of
limitations supply the limitations period, while federal law
governs the accrual of such claims. See Beck v. City of
Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir.
1999). Here, the two-year limitations period under Colo. Rev.
Stat. § 13-80-102(g) governs Ms. Charity's claims.
See Onyx Properties LLC v. Bd. of Cty. Comm'rs of
Elbert Cty., 916 F.Supp.2d 1191, 1196 (D. Colo. 2012).
Her claims accrued when she knew or should have known that
the named Defendants violated her constitutional rights.
See Colby v. Herrick, 849 F.3d 1273, 1279 (10th Cir.
County Defendants move to dismiss Plaintiff's Amended
Complaint because she failed to file her complaint within the
applicable two-year limitation period. [#31 at 10; #40
at 2]. Specifically, the Amended Complaint alleges events
occurring on April 22 and 24, 2014, respectively, yet
Plaintiff did not file her initial complaint until April 25,
2016. [#31 at 10; #40 at 2]. While true that the Clerk of the
Court did not file Plaintiff's initial complaint until
April 25, 2016, outside the two-year limitation period, this
fact alone does not necessitate dismissal of Ms.
Charity's case. This is because, “an inmate who
places a federal civil rights complaint in the prison's
internal mail system will be treated as having
‘filed' that complaint on the date it is given to
prison authorities for mailing to the court.” Price
v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005)
(extending the “prison mailbox rule” articulated
in Houston v. Lack, 487 U.S. 266, 276 (1988) to
inmates' § 1983 complaints). Here, the envelope
attached to Ms. Charity's initial complaint indicates
that DWCF's internal mail system received Ms.
Charity's initial complaint on April 21, 2016,
see [#1-1], thereby satisfying the “prison
mailbox rule” and the two-year limitations period.
Accordingly, the Motion is DENIED on statute
of limitations grounds.
Claim I - Deliberate Indifference
to provide adequate medical care is a violation of the Eighth
Amendment if it is a result of deliberate indifference to a
prisoner's serious medical needs.” Garcia v.
Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985)
(citing Estelle v. Gamble, 429 U.S. 97 (1976)). In addition,
pretrial detainees are entitled to the same protections under
the Fourteenth Amendment due process clause. See Martinez
v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (citation
omitted). To establish a prison official's constitutional
liability, a plaintiff must satisfy both the objective and
subjective components of the deliberate indifference test.
See generally Sealock v. Colo., 218 F.3d 1205, 1209
(10th Cir. 2000).
objective component requires Ms. Charity to allege objective
facts that demonstrate that the deprivation is
“sufficiently serious.” Mata v. Saiz,
427 F.3d 745, 751 (10th Cir. 2005) (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994)). Although the County Defendants
apparently concede that the Amended Complaint satisfies the
objective component, the court independently concludes that
Plaintiff's alleged allergic reaction and associated
symptoms constitute a sufficiently serious medical need.
See Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999) (“We have held that a medical need is
sufficiently serious if it is one that has been diagnosed by
a physician as ...