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Frey v. Reams

United States District Court, D. Colorado

January 29, 2018

JAY ALLEN FREY Plaintiff,
v.
STEVE REAMS, in his official capacity as Sheriff of Weld County; NANCY KROLL, in her official capacity as Director of Inmate Services for Weld County Jail; CORRECT CARE SOLUTIONS LLC, medical provider for Weld County Jail; DR. MARGO GEPPERT, individually and in her official capacity as employee or contractor for Correct Care Solutions; GREG THARP, individually and in his official capacity as police officer for the City of Greeley; WES DONEY, individually and in his official capacity as police officer for the City of Greeley. Defendants.

          ORDER

          LEWIS T. BABCOCK

         This 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.)

         However, 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.

         As for 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 (claim three).

         Thus, I 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.

         I. BACKGROUND

         Unless 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.

         Mr. 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.

         Because 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.

         Soon 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.

         Despite 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.

         Mr. 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.

         Mr. 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.

         Sheriff 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.)

         Officers 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.)

         I now turn to the two remaining motions to dismiss. (ECF Nos. 79-80.)

         II. RULE 12(b)(6) STANDARD

         Under 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)). ...


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