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Charity v. County of El Paso

United States District Court, D. Colorado

April 21, 2017



          Nina Y. Wang United States Magistrate Judge.

         This 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.


         Plaintiff 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 se[1]complaint 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”).[2] 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. See [#4].

         Plaintiff 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.].

         On 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].

         Two 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. [Id.].

         Plaintiff 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 therapy. [Id.].

         Plaintiff 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].

         On May 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; #17].

         On 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].

         On 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.

         On 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' arguments below.


         Under 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).

         “In 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).


         I. Statute of Limitations

         For 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. 2017).

         The County Defendants move to dismiss Plaintiff's Amended Complaint because she failed to file her complaint within the applicable two-year limitation period.[3] [#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.

         II. Claim I - Deliberate Indifference

         “Failure 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).

         The 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 ...

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