United States District Court, D. Colorado
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.
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE
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]).
OF THE CASE
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.)
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.
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.)
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.
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.)
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.)
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.)
Lack of Subject Matter Jurisdiction
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).
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.
Failure to State a Claim Upon Which Relief Can Be
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).
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.
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).
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.)
argue that Plaintiff has not satisfied CGIA's notice
provisions, and that such failure is fatal Plaintiff's
negligence claim. (Id. at 6-7.)
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
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.
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).
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 ...