United States District Court, D. Colorado
civil rights case is before the Court on three different
motions to dismiss. First, Defendants Steve Reams and Nancy
Kroll move to dismiss the third amended complaint under
Federal Rule of Civil Procedure 12(b)(6), arguing it is
conclusory, deficient, and partially barred by qualified
immunity. (ECF No. 80.) Second, Defendants Correct Care
Solutions and Margo Geppert move to dismiss the third amended
complaint against them under Rule 12(b)(6), arguing it does
not state a claim for relief. (ECF No. 79.) Third, Defendants
Greg Tharp and Wes Doney move to dismiss the negligence claim
against them, claim three. (ECF No. 78.)
after Officers Tharp and Doney filed their Rule 12(b)(6)
motion, Plaintiff Jay Frey sought to voluntarily dismiss them
from claim three (ECF No. 97), and I entered an order
dismissing the officers from that claim (ECF No. 99), mooting
the officers' pending Rule 12(b)(6) motion.
the other two remaining motions to dismiss, I conclude that
Mr. Frey has not sufficiently pleaded a claim for deliberate
indifference to his medical needs under 42 U.S.C. §
1983, and I dismiss claim two in its entirety. Nevertheless,
because Mr. Frey's § 1983 claim for excessive force
(claim one) remains pending, I will continue to exercise
supplemental jurisdiction over his state-law negligence claim
GRANT IN PART and DENY IN PART Officer Reams's and Ms.
Kroll's Rule 12(b)(6) motion (ECF No. 80), and I
similarly GRANT IN PART and DENY IN PART Correct Care's
and Dr. Geppert's Rule 12(b)(6) motion (ECF No 79). In
light of the order dismissing Officers Tharp and Doney from
claim three (ECF No. 99), their motion to dismiss claim three
(ECF No. 78) is DENIED AS MOOT.
otherwise noted, the allegations below are taken from the
third amended complaint (3rd Am. Compl., ECF No. 74-1), and
described in the light most favorable to Mr. Frey.
Frey tried to evade arrest for a traffic offense by fleeing,
on foot, from police in Greeley, Colorado. Greeley Police
Officer Tharp eventually found Mr. Frey in a residential area
and handcuffed him. Mr. Frey did not resist once Officer
Tharp contacted him, nor did he threaten Officer Tharp or try
to flee. Nevertheless, Officer Tharp punched and kicked Mr.
Frey, struck him with instruments, and slammed his head into
a concrete driveway while he was handcuffed. Greeley Police
Officer Doney either participated in the beating or did
nothing to stop it.
of the injuries he suffered during the arrest, an ambulance
transported Mr. Frey to a hospital for treatment after his
arrest. The next day, he was transferred from the hospital to
the Weld County Jail.
after arriving at the jail, Mr. Frey requested medical
treatment, complaining about losing vision in his right eye
and body pain. He continued to complain to jail officials,
particularly about his vision problems, from March through
August 2015. Dr. Margo Geppert, through her employer Correct
Care Solutions, directed medical services at the jail. She
personally examined Mr. Frey. Nancy Kroll, the Director of
Inmate Services at the jail, responded to several of Mr.
Frey's requests, usually denying them.
his persistent demands, the medical care he received while
incarcerated was insufficient. He ultimately lost vision in
his right eye because of a detached or torn retina. For any
chance to repair the damage, Mr. Frey needed appropriate
medical intervention almost immediately after the injury,
something the jail did not provide. In addition, jail staff
failed to comply with outside doctors' orders regarding
Mr. Frey's treatment after Mr. Frey had surgery on his
right eye. The severe injury to his right eye means he is
more likely to go completely blind because he will overuse
his left eye.
Frey also suffered from other injuries from the arrest,
including an abdominal hernia, a right shoulder injury, and
bruised or broken ribs. Aside from a shoulder X-ray and some
painkillers, Mr. Frey received no treatment for the injuries
while at the jail. After his release, he needed surgery for
the hernia. His arm movement is still restricted because of
his shoulder injury.
Frey asserts two claims for civil rights violations under 42
U.S.C. § 1983 and a state law negligence claim based on
his arrest and the medical treatment he received afterward.
In claim one, he alleges that Officers Tharp and Doney used
excessive force during his arrest in violation of §
1983. In claim two, he alleges that Sheriff Reams, Ms. Kroll,
Correct Care Solutions, and Dr. Geppert were deliberately
indifferent to his medical needs, also in violation of §
1983. In claim three, he alleges that all defendants were
negligent during his arrest, custody, and care and brings a
claim under Colorado state law.
Reams and Ms. Kroll have moved to dismiss the deliberate
indifference § 1983 claim against them under Federal
Rule of Civil Procedure 12(b)(6), as have Correct Care
Solutions and Dr. Geppert. (ECF Nos. 79-80.) Sheriff Reams,
Ms. Kroll, Correct Care Solutions and Dr. Geppert also ask
this Court to decline to exercise supplemental jurisdiction
over the state law negligence claim if the Court grants their
motions to dismiss the deliberate indifference § 1983
claim. (ECF Nos. 79-80.)
Tharp and Doney moved for partial dismissal, asking this
court to dismiss the negligence claim against them, claim
three. (ECF No. 78.) But after Officers Tharp and Doney filed
their motion, Plaintiff Jay Frey sought to voluntarily
dismiss them from claim three (ECF No. 97), and I entered an
order dismissing the officers from that claim and therefore
mooting Officers Tharp and Doney's pending motion to
dismiss claim three. (ECF No. 99.)
turn to the two remaining motions to dismiss. (ECF Nos.
RULE 12(b)(6) STANDARD
Rule 12(b)(6), “[d]ismissal is appropriate only if the
complaint, viewed in the light most favorable to plaintiff,
lacks enough facts to state a claim to relief that is
plausible on its face.” United States ex rel.
Conner v. Salina Regional Health Center, 543 F.3d 1211,
1217 (10th Cir. 2008) (quotation omitted). A claim is
plausible on its face “when the plaintiff pleads
factual content that enables the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007)). ...