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Cornell v. Denver C.A.R.E.S.

United States District Court, D. Colorado

March 14, 2018

DENVER C.A.R.E.S., a behavioral health facility operated by Denver Health Medical Center/Denver Health and Hospital Authority, ALICIA PORTILLO, PAUL ROSE, and JOHN DOES #3 and #4, employees of DENVER C.A.R.E.S., Defendants.



         This matter is before the Court on the Motion to Dismiss Plaintiffs' First Amended Complaint and Jury Demand [DOC #54] [Docket No. 61] filed by “Denver Health and Hospital Authority, ” Nicole McLean, Alicia Portillo, Rene McQuiller, Ava Walston, and Paul Rose (collectively, “defendants”).[1] The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND[2]

         On October 1, 2016, plaintiff Jon Banks (“plaintiff”) began vomiting while watching a football game at a bar in Denver, Colorado. Docket No. 54 at 11, ¶ 76. Bar staff called an ambulance for plaintiff, which took him to Denver Health Medical Center where he was treated for intoxication. Id., ¶ 78. After approximately six hours, a van from defendant Denver C.A.R.E.S. (“Denver CARES”) picked up plaintiff and transported him to the Denver CARES facility. Id. at 12, ¶¶ 79, 80. Denver CARES is a behavioral health facility with a mission to provide drug and alcohol detoxification and rehabilitation services. Id. at 3, ¶ 8. Denver CARES is operated by the Denver Health and Hospital Authority (“DHHA”), a political subdivision of the State of Colorado. Id.

         After plaintiff arrived at Denver CARES, security staff confiscated plaintiff's personal belongings, including his wallet and cellular telephone. Docket No. 54 at 13, ¶ 86. Defendant Paul Rose, an employee of Denver CARES, created a “service plan” for plaintiff's “safe and humane detox, ” which was signed by Alicia Portillo, a registered nurse. Id. at 4, ¶ 16 and at 13, ¶¶ 87-88. Denver CARES staff told plaintiff that he was not free to leave the facility until he blew a 0.000 blood alcohol level (“BAL”) on a breathalyzer test. Id., ¶¶ 90, 92. Plaintiff observed multiple people be placed in solitary confinement for demanding to know what legal right the facility had to involuntarily detain them. Id., ¶ 94. Prior to being released from Denver CARES, plaintiff was required to submit to a fifteen-minute exit interview. Id. at 14, ¶¶ 95-96.

         After plaintiff was released, Denver CARES billed plaintiff's medical insurance provider for his treatment using information that it took from his wallet while he was at the facility. Docket No. 54 at 14, ¶ 97. Plaintiff filed a complaint with the DHHA, which responded that Denver CARES' clients “may leave whenever they wish unless they have been placed on a hold, ” and that he could have left at any time if he had asked to do so, but he did not. Id., ¶ 98.

         On May 8, 2017, plaintiff's claims against defendants were added to this lawsuit as part of the first amended complaint. Docket No. 54. Plaintiff brings four claims: (1) unlawful seizure of his person in violation of the Fourth Amendment of the United States Constitution, (2) violation of procedural due process in violation of the Fourteenth Amendment of the United States Constitution and Article II, Section 25 of the Colorado Constitution, (3) violation of substantive due process in violation of the Fourteenth Amendment, and (4) common law false imprisonment. Id. at 21-26.[3] On May 22, 2017, defendants filed a motion to dismiss plaintiff's claims for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and asserted that they are entitled to qualified immunity. Docket No. 61 at 1-2. Defendants also asserted that plaintiff's false imprisonment claim is barred by the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat § 24-10-101, et seq. Docket No. 61 at 14.

         II. ANALYSIS

         A. Federal Constitutional Claims

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alteration marks omitted).

         1. Denver CARES

         “A municipality may not be held liable under 42 U.S.C. § 1983 simply because it employs a person who violated a plaintiff's federally protected rights.” Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978).[4] “To establish municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged.” Id. The plaintiff must further show that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (citing Brown, 520 U.S. at 403). “The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (citation omitted). Thus, in order to state a claim under § 1983 for deliberate indifference based on a policy or practice, a plaintiff must allege “(1) official policy or custom, (2) causation, and (3) state of mind.” Schneider, 717 F.3d at 769.

         Defendants argue that plaintiff fails to state a claim against Denver CARES because he has not sufficiently alleged an official policy or custom. Docket No. 61 at 6-7. In response, plaintiff argues that he and the four other individuals discussed in the amended complaint were treated similarly and that the Court should infer a custom from their common experience of being “held against his or [her] will for hours” in violation of the procedures of Colorado's emergency commitment statute, Colo. Rev. Stat. 27-81-111. Docket No. 64 at 4-5.

         An “official policy or custom may be inferred from a complaint's allegations, ” Starstead v. City of Superior, 533 F.Supp. 1365, 1369 (W.D. Wis. 1982) (citing Powe v. City of Chicago, 664 F.2d 639 (7th Cir. 1981)), and courts have done so where a “systematic pattern” suggests a policy or custom “in some form was the motivating force.” Id. at 1369-70. The amended complaint alleges several policies and customs, but each is stated in conclusory fashion in terms of a legal violation. For example, plaintiff alleges that Denver CARES has a policy and custom of “unlawfully committing intoxicated individuals who do not pose a threat to themselves or others, ” Docket No. 54 at 18, ¶ 130, and has a policy and custom of “rounding up intoxicated individuals who they believe have the means to pay for Denver CARES' services and committing them to the Denver CARES facility without their consent and in violation of the Colorado emergency commitment statute.” Id. at 18-19, ¶ 134. These allegations do little more than claim that Denver CARES has a policy or custom of committing constitutional or statutory violations. Such allegations are insufficient because they do not provide specific facts that support an inference that there is policy or custom that was the “moving force” leading to the resulting constitutional deprivations. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004); see also Smith v. D.C., 674 F.Supp.2d 209, 212 (D.D.C. 2009) (dismissing case where plaintiff alleged “systemic problems” with inmate medical treatment but did “nothing more than recite the requisite causal elements of custom or policy liability based on deliberate indifference”); compare Lawson v. Dallas Cty., 286 F.3d 257, 263 (5th Cir. 2002) (finding deliberate indifference where institutional policies prevented nurses from seeing patients regularly and providing sufficient care). The similarity among the five individuals discussed in the complaint is that they were held against their will.[5] Instead of identifying a specific policy that caused them to be held, plaintiff claims generically that plaintiff and the others were “detained pursuant to some set of procedures that treated them like they were simply medical patients who elected to be at the facility.” Docket No. 64 at 5. But the circumstances of each individual's alleged detention varied, and plaintiff does not point to or allege a particular policy or custom that could have led to each incident. See Turpin v. Mailet, 619 F.2d 196, 203 (2d Cir. 1980) (overturning a jury verdict based on a pattern or practice of police harassment because poor decisions made “in the regular course of . . . business” did not indicate a policy or practice of “encouraging police harassment”).

         Plaintiff does allege a specific fact in common with another individual discussed in the complaint that could be viewed as a policy or custom. Plaintiff alleges that unnamed “staff” told him upon arrival that he was being “detained for his level of intoxication and that he was not free to leave until he blew .000 BAL on a breathalyzer test.” Docket No. 54 at 13, ¶ 90. The complaint also alleges that staff told Jeremy Cordova that he “would be permitted to leave when his breath alcohol test registered ‘triple zeros, ' or .000, ” twelve hours after he arrived at the facility. Id. at 16, ¶ 112. But these two similar facts are not enough for the Court to plausibly infer systematic conduct, particularly where, as here, plaintiff does not allege or argue that Denver CARES has a policy or custom of refusing to release individuals who cannot register a .000 on a breathalyzer test. See Atwell v. Gabow, No. 06-cv-02262-JLK, 2008 WL 906105, at *8 (D. Colo. Mar. 31, 2008) (“Simply aggregating eight individual claims and calling them the result of a ‘custom or policy of ...

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