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Hurst v. Madera

United States District Court, D. Colorado

September 27, 2017

HENRY A. HURST III, SUSAN I. HEATH, as Co-Personal Representatives of the Estate of NATALEE MARIE SKINNER-HURST, deceased, and JONATHAN ROBERTS HURST, individually, Plaintiffs,


          Kathleen M. Tafoya United States Magistrate Judge.

         This matter is before the court on the “Motion to Dismiss Defendants HCA-Healthone LLC, Jo Ann Wacker-Farrand, Margaret Hauser and Jane Gallup.” (Doc. No. 62 [“Mot.”].) Plaintiff filed a Response (Doc. No. 88), to which Defendants filed a Reply. (Doc. No. 89 [“Reply”].)[1]

         Background Information

         Kelsy Newell-Skinner gave birth to Natalee Marie Skinner-Hurst on May 14, 2014. (Doc. No. 50 at 7 [“Am. Comp.”].)[2] On that same date or the next day, an employee(s) of Defendant HCA-Healthone LLC, a limited liability company doing business as Swedish Medical Center (“SMC”), reported to Colorado Protective Services of the Denver County Department of Human Services (“DCDHS”) that Baby Natalee was born prematurely, her mother had admitted to marijuana use during the pregnancy, and the mother had also tested positive for marijuana. (Id. at 8, 115.) DCDHS' records indicate Defendant Jo A. Wacker-Farrand, an SMC social worker, made the report indicating that in addition to the mother's marijuana use, the primary concern was neglect, with other complicating factors of stress in the home, explained as circumstances that create risk to child safety, and that the baby's urine did not test positive but a Meconium test had been requested. (Id. at 8.) SMC's records indicate that Defendant Margaret Hauser, another SMC social worker, informed Baby Natalee's mother and father, Jonathan Hurst, of the report to DCDHS and that the father was upset about it. (Id. at 115.)

         Baby Natalee and her mother were discharged on May 23, 2014. (Id. at 9.) The results of the Meconium test were returned on May 27, 2014 and were positive for tetrahydrocannabinol (“THC”), a chemical contained in marijuana. (Id.)

         Plaintiffs allege that during Baby Natalee's hospitalization and afterward, various family members and other interested persons reached out with multiple pleas, inquiries and requests to SMC's employees, including Defendants Wacker-Farrand, Hauser, and Jane Gallup to inquire why there were no caseworkers/social workers from DCDHS and SMC showing up to render services and investigate. (Id. at 66.) They also reported the baby's mother had not bonded with her, the mother had stated that the baby did not like her, and the mother suffered from preexisting mental health and substance abuse issues. (Id. at 66-67.) Defendant Rotchana Madera, the assigned DCDHS caseworker, reported to DCDHS that she visited Baby Natalee in the hospital after her birth, the Meconium test was negative, and that she had performed a home visit after Natalee was released and interviewed both parents. (Id. at 10-18.) Each of these reports was false as the Meconium test was positive and Defendant Madera never contacted anyone in Baby Natalee's family, nor did she visit the baby in the hospital or at home after the baby's release. (Id.) Additionally, DCDHS records show Defendant Madera accessed Natalee's case file on May 19, 2014 and May 27, 2014, the date of the positive Meconium test results. (Id. at 13-14.) She did not access it again until July 8, 2014, at which point she recommended the case be closed. (Id. at 14.)[3]

         On July 31, 2014, Baby Natalee died after being injured by her mother on July 27, 2014. (Id. at 67-68.) Plaintiffs have asserted a claim of Professional Negligence Resulting in Wrongful Death against Defendants SCM, Wacker-Farrand, Hauser, and Gallup. (Id. at 106-139.) Defendants seek dismissal arguing that they complied with their legal duties and therefore, Plaintiffs cannot state a viable negligence claim.

         Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits and documents incorporated into the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted). “[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Id. (quotations omitted).


         Plaintiffs base their professional negligence claim upon what they describe as “a set of complex acts of misfeasance and nonfeasance” by Defendants. (Resp. at 13.) “In determining whether a defendant owes a duty to a particular plaintiff, the law distinguishes between acting and failure to act, that is, misfeasance, which is active misconduct that injures others, and nonfeasance, which is a failure to take positive steps to protect others from harm.” Smit v. Anderson, 72 P.3d 369, 372 (Colo.App. 2002) (citing Univ. of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987)). According to Plaintiffs, Defendants had statutory duties to take certain actions based upon misfeasance. ...

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