United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Dismiss
From Defendant Correct Care Solutions LLC
[#34] (the “Motion”). Plaintiff, who
proceeds as a pro se litigant,  filed a Response [#42] in
opposition to the Motion, and Defendant filed a Reply [#44].
The Court has reviewed all briefing on the Motion, the entire
case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#34] is GRANTED.
is currently incarcerated at the Bent County Correction
Facility in Las Animas, Colorado. See Notice of Change of
Address [#26]. Plaintiff initiated this action while he
was a pretrial detainee at El Paso County Correctional
Facility by filing his initial Complaint [#1] on May 10,
2016. On May 12, 2016, the Court entered an Order directing
Plaintiff to amend the Complaint [#1]. Plaintiff then filed
his Amended Complaint [#6] on June 9, 2016, which included
four separate claims for relief against fifteen Defendants.
Defendants El Paso County Board of County Commissioners, Bill
Elders, Rob King, Zachary Margurite, Canyon Parcell, and
Michael Kimberlain filed a Motion to Dismiss Pursuant to
Fed.R.Civ.P. 8, 12(b)(1), and 12(b)(6) [#19]
(“Defendants' First Motion”) on July 12,
2016. The Court entered an Order [#33] on March 24, 2017,
granting in part and denying in part Defendants' First
Motion [#19]. The Court dismissed only the state law claims
against Defendants Parcell, Kimberlain, Elders, King, and El
Paso County. Order [#33] at 19. Therefore, the
remaining claims in this case are: (1) Fourteenth Amendment
due process violation alleged against Defendant Margurite and
the John and Jane Does; (2) Fourteenth Amendment conditions
of confinement violation alleged against Defendant El Paso
County; (3) Fourteenth Amendment excessive force claim
alleged against Defendants Parcell and Kimberlain and the
John Does; and (4) Fourteenth Amendment deliberate
indifference claim alleged against Defendant Correct Care
Solutions, LLC (“Defendant”).
present Motion [#34] addresses only the Fourteenth Amendment
deliberate indifference claim against Defendant. In that
claim, Plaintiff alleges that Defendant “asserted [he]
had no injuries” after an alleged assault by El Paso
County Deputies that resulted in injuries to Plaintiff's
face and neck. Am. Comp. [#6] at 12. Additionally,
Plaintiff alleges that Defendant denied him medical care from
April 13, 2015, until April 22, 2015, and “even after
diagnostic procedures on 4-22-15 [Defendant] continued to
deny [he] had no injuries [sic].” Id.
Plaintiff alleges that he “requested to have [his]
medical records reviewed by [his] own doctor and [Defendant]
denied the release.” Id. Lastly, Plaintiff
alleges that “[n]othing has ever been done for my
injuries. I was simply given naproxen for pain even though
the doctor finally admitted to me that my C/T scan did come
back showing some fractures to my face.” Id.
alleges that he has suffered lasting effects to his hearing,
vision and breathing as a result of Defendant's
“policies and procedures.” Id. at 13.
Plaintiff seeks declaratory and injunctive relief, as well as
compensatory damages against Defendant in the amount of $20,
000 and punitive damages in the amount of $10, 000. Am.
Compl. [#6] at 15-20.
argues that Plaintiff's deliberate indifference claim
should be dismissed because Plaintiff only alleges in a
conclusory manner than the alleged deliberate indifference
was a result of Defendant's policy and procedure.
Motion [#34] at 5. Specifically, Defendant argues
that Plaintiff fails to sufficiently allege that
Defendant's actions were widespread or well-settled
customs because Plaintiff only alleges facts related to
himself individually. Id. at 5-6.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
claim has facial plausibility when the plaintiff pleads
factual content that allows 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). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort
Co., 555 F.3d 1188, 1191 (10th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,
” a factual allegation has been stated, “but it
has not show[n][ ] that the pleader is entitled to relief,
” as required by Fed.R.Civ.P. 8(a). Iqbal, 556
U.S. at 679 (second brackets added; citation and internal
quotation marks omitted).
alleges that Defendant violated his Fourteenth Amendment
rights by its deliberate indifference to his medical needs.
Specifically, Plaintiff alleges that Defendant “acted
under color of state law” in violating his Fourteenth
Amendment rights “because [Defendant is] contracted by
the El Paso County Sher[ ]iff[‘]s Department and [is]
delegated constitutional obligations to provide medical
care.” Am. Compl. [#6] at 5 ¶ 15.
Court first considers whether Defendant may be sued pursuant
to U.S.C. 42 § 1983. The United States Supreme Court
held that a municipality cannot be found liable under §
1983 merely on account of unauthorized acts of its agents.
Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S.
658, 691 (1978). However, governing bodies can be sued under
§ 1983 directly where “the action that is alleged
to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers.”
Id. at 690. The Tenth Circuit “has extended
the Monell doctrine to private entities acting under
color of state law.” Carmody v. Ensminger, No.
16-cv-02603-PAB-NYW, 2017 WL 4150601, at *4 (D. Colo. Sept.
19, 2017) (citing Dubbs v. Head Start, Inc., 336
F.3d 1194, 1216 (10th Cir. 2003)). “[T]o hold the
entity liable, the plaintiff must identify an ...