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T.T. v. Colorado Department of Human Services

United States District Court, D. Colorado

March 13, 2018

T.T., a minor, by and through his mother and Next Friend, WENDY KANOHO TORRES, Plaintiff,
COLORADO DEPARTMENT OF HUMAN SERVICES, DIVISION OF YOUTH CORRECTIONS, JAMIE NUSS, Director of Gilliam Youth Services Center, in her individual capacity, VERA DOMINGUEZ, Assistant Director of Gilliam Youth Services Center, in her individual capacity, DAISY SIERRA, in her individual capacity, CRYSTAL GONZALEZ, in her individual capacity, JOHN DOE, in his individual capacity, MARISA VANDERPUIL, in her individual capacity, GORDON DUVALL, in his individual capacity, and SHARON PENNA, R.N., in her individual capacity, Defendants. v.



         This case comes before the court on Defendants Colorado Department of Human Services, Division of Youth Corrections, Nuss, Dominguez, Sierra, Gonzalez, Vanderpuil, Duvall, and Penna's “Motion to Dismiss First Amended Complaint” (Doc. No. 23 [Mot.], filed May 31, 2017). Plaintiff filed a response on June 21, 2017 (Doc. No. 26 [Resp.]), and Defendants filed a reply on June 30, 2017 (Doc. No. 27 [Reply]).


         Plaintiff T.T., a minor, proceeding by and through his mother and next friend, filed this case pursuant to 42 U.S.C. § 1983, asserting claims for Failure to Provide Medical Care and Treatment, Failure to Protect, and Failure to Train and Supervise. (See Doc. No. 18 [Am. Compl.], filed May 17. 2017.) Plaintiff also asserts claims for negligence and respondeat superior. (See id.) Plaintiff seeks money damages. (Id. at 16.)

         During the time relevant to Plaintiff's claims, he was a fourteen-year-old who was a resident of Gilliam Youth Services Center (“Gilliam”). (Id., ¶ 6.) Gilliam is juvenile detention facility located at 2844 Downing Street in Denver, Colorado, and is administrated by the Division of Youth Corrections and the Colorado Department of Human Services. (Id., ¶ 9.) Gilliam incarcerates offenders who are ten to eighteen years old for crimes committed before their eighteenth birthdays. (Id.)

         T.T. was admitted to Gilliam on October 23, 2015, following arrest on suspicion of third degree assault. (Id., ¶ 16.) Following his admission to Gilliam, T.T. underwent one or more intake screenings performed by Gilliam personnel, during which he reported that “kids just tend to pick on me a lot.” (Id., ¶ 17.) Following evaluation, T.T. was identified as having impaired hearing, being “vulnerable to victimization, ” and as being on Zoloft. (Id.)

         During his period of residence at Gilliam, T.T. repeatedly asked Gilliam staff members for time away from other residents. (Id., ¶ 18.) Plaintiff believes T.T. made these requests because he was being targeted for verbal and physical abuse at the hands of other residents. (Id., ¶ 19.) Plaintiff alleges Gilliam personnel failed to investigate further and failed to recognize that T.T. was in physical and emotional danger. (Id.)

         On November 1, 2015, T.T. was involved in a physical altercation with another resident. (Id., ¶ 20.) Plaintiff alleges that Gilliam personnel were aware of the altercation and their persistent targeting of T.T. by other residents, yet they failed to provide T.T. with additional protection or to isolate him from other residents who might subject him to physical or emotional harm. (Id.)

         On November 6, 2015, Plaintiff was involved in another altercation, during which Plaintiff was slammed on the ground on his back and struck multiple times on the left side of his head. (Id., ¶ 22.) After the altercation, T.T. was taken to the medical ward where he was observed by Defendant Penna to have blood in the helix of his left ear. (Id., ¶ 25.) T.T. informed Defendant Penna that he was nauseated and not feeling well. (Id., ¶ 26.) Plaintiff alleges Defendant Penna did not take any steps to evaluate T.T.'s neurological condition. (Id.) Plaintiff alleges T.T. developed a severe headache, but the defendants ignored and belittled his complaints and attempted to return him to his room. (Id., ¶ 30.) Defendant Penna authored a note stating the following:

Resident observed in clinic for 30 minutes. No [nausea/vomiting] while in clinic. Left ear cleaned with half-strength H202 and dressed with Bacitracin. Resident given 600 mg Ibuprofen for pain. [Returned to cell] pm.

(Id., ¶ 29.) Plaintiff alleges Defendant Penna authored an addendum to her earlier report in which she contradicted her earlier note, indicating she summoned paramedics after T.T. “vomited 3 or 4 times, ” “began complaining of head pain” and started “flailing around the office” approximately 40 minutes after he had arrived in the medical ward. (Id., ¶ 31.)

         T.T. was emergently transported to Denver Health Medical Center, where he “had a blown left pupil, decerebrate posturing and a Glasgow Coma Score of 6 or 7/15.” (Id., ¶ 33.) T.T. was intubated, given medications, and diagnosed with a severe, ruptured subdural hematoma. (Id.) T.T. underwent a craniectomy and epidural/subdural hematoma evaculation on November 6, 2015, followed by craniooplasty on November 16, 2015. (Id., ¶ 34.) T.T. spent twelve days at Denver Health Medical Center before he was discharged. (Id., ¶ 35.) He then underwent months of in-patient rehabilitation and physical therapy at The Children's Hospital to address severe cognitive, psychological, and motor deficits he experienced as a result of a traumatic brain injury. (Id.)


         A. Lack of Subject Matter Jurisdiction

         Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).

         A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's “factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.

         B Failure to State a Claim Upon Which Relief Can Be Granted .

         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) (2007). “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) (citations and 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. Southern 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).


         Defendants move to dismiss Plaintiff's negligence claim as barred by the Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24-10-101 et seq. (“CGIA”). (Mot. at 6-7.) Defendants move to dismiss Plaintiff's constitutional claims as barred by qualified immunity. (Id. at 7-14.)

         A. CGIA

         Defendants argue that Plaintiff has not satisfied CGIA's notice provisions, and that such failure is fatal Plaintiff's negligence claim. (Id. at 6-7.)

         The CGIA “requires a person claiming to have suffered an injury by a public entity to file written notice within 180 days after the discovery of the injury, regardless of whether the person knew all of the elements of the claim.” Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 923 (Colo. 1993). The notice requirement is a jurisdictional prerequisite to a tort action under the CGIA, and “failure of compliance shall forever bar any such action.” Colo. Rev. Stat. § 24-10-109(1). Nevertheless, the Colorado Supreme Court has held that the term “compliance” in § 24-10-109(1) is not to be interpreted as “strict compliance” but rather as “substantial compliance”. Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63, 69 (Colo. 1990); see also City & Cnty. of Denver v. Crandall, 161 P.3d 627, 632 n.5 (Colo. 2007) (contrasting the notice's timeliness requirement, which is subject to strict compliance, with “the adequacy of the notice's contents [, which] is subject to a substantial compliance standard”).

         To substantially comply with the notice requirement, a claimant is required “to file written notice with the public entity and to make a good faith effort to include within the notice, to the extent the claimant is reasonably able to do so, each item of information listed in section 24-10-109(2).” Woodsmall, 800 P.2d at 69.

         The notice must contain

(a) The name and address of the claimant and the name and address of his attorney, if any; (b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) The name and address of any public employee involved, if known; (d) A concise statement of the nature and the extent of the injury claimed to have been suffered; (e) A statement of the amount of monetary damages that is being requested.

§ 24-10-109(2). The statement of the factual basis of the claim “must put the public entity on notice of the theory on which a forthcoming lawsuit will rest.” Miller v. Mountain Valley Ambulance Serv., Inc., 694 P.2d 362, 364 (Colo.App. 1984). However, “[t]he CGIA does not require the notice of legal grounds or claims for relief.” Neiberger v. Hawkins, 70 F.Supp.2d 1177, 1195 (D. Colo. 1999), aff'd, 6 F.App'x 683 (10th Cir. 2001).

         Defendants argue that Plaintiff's notice identifies the Division of Youth Corrections and Penna and only identifies the alleged failure to treat T.T. on November 6, 2015. (Mot. at 7.) Defendants contend that, as such, Plaintiff's notice does not comply with § 24-10-109(2). (Id.) Plaintiff counters that the notice contained each of the requirements set forth in the statute and that the notice

was more than sufficient to alert the Colorado Department of Human Services, Director of Youth Corrections (“CDHS”) and its employees that T.T. sustained serious injuries while in CDHS's care, that the circumstances surrounding the injuries were going to be the subject of a claim that could lead to litigation, and that CDHS would therefore ...

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