United States District Court, D. Colorado
Meghan Lillis and Michele Driscoll, MEGHAN LILLIS, individually, C.A.L., individually, a minor, by and through Michele Driscoll as guardian, C.S.L., individually, a minor, by and through Michele Driscoll as guardian, A.L., individually, a minor, by and through Robin Booth as next friend and mother, JORDAN LILLIS, individually, and ASHLEY PERRY, individually, Plaintiffs,
CORRECT CARE SOLUTIONS, LLC, CORRECTIONAL HEALTHCARE COMPANIES, LLC, GREAT PEAK HEALTHCARE SERVICES, P.C., CORRECTIONAL HEALTHCARE PHYSICIANS, P.C., MAXIM HEALTHCARE SERVICES, INC, ARAPAHOE COUNTY, DENNIS L. FURR, D.O. individually, ANITA BROWN, RN, individually, ROBLY EVANS, RN, individually, DENISE ELWELL, RN, individually, NANCY WINEGAR, RN, individually, JASON FRANK, RN, individually, and RUTH KYAMBADDE, RN, individually, Defendants.
Kristen L. Mix United States Magistrate Judge
matter is before the Court on the following motions: (1)
Motion to Dismiss Plaintiffs'
Second and Third Claim [#16], filed by Defendants Correct
Care Solutions, LLC (“CCS”), Correctional
Healthcare Companies, LLC (“CHC”), Great Peak
Healthcare Services, P.C. (“Great Peak”), and
Correctional Healthcare Physicians, P.C. (“CHP”)
(“CHC/CCS's Motion”); (2) Motion to
Dismiss Plaintiffs' First Claim [#21], filed by
Defendant Dennis Furr (“Furr's Motion”); (3)
Motion to Dismiss Complaint [#23], filed by
Defendants Anita Brown, Nancy Winegar, Jason Frank, and Ruth
Kyambadde (“ACSO's Motion”); (4)
Motion to Dismiss Complaint [#26], filed by
Defendant Arapahoe County (“Arapahoe's
Motion”); (5) Motion to Dismiss Plaintiffs'
Second Claim [#35], filed by Defendant Maxim
Healthcare Services, Inc. (“Maxim's Motion”);
(6) Motion to Dismiss Plaintiffs' First
Claim [#36], filed by Defendant Robly Evans
(“Evans' Motion”); and (7) Motion to
Dismiss Plaintiffs' First Claim [#37], filed by
Defendant Denise Elwell (“Elwell's Motion”).
Plaintiffs filed Responses [#43, #44, #45, #46, #56, #57,
#58] in opposition to the Motions, and Defendants filed
Replies [#59, #60, #62, #63, #65, #66, #67]. The Court has
reviewed the Motions, the Responses, the Replies, the entire
case file, and the applicable law, and is sufficiently
advised in the premises. Based on the following, Defendant
Evans' Motion [#36] is DENIED,
Defendants Elwell, Furr, Arapahoe County, and Maxim's
Motions [#21, #26, #35, #37] are GRANTED,
and the ACSO Defendants and CHC/CCS Defendants' Motions
[#16, #23] are GRANTED in part and
DENIED in part.
allege the following facts as the basis for their
claims. On December 14, 2014, Jeffrey Scott Lillis
(“Lillis”) died as the result of sepsis caused by
bacterial pneumonia while detained in the Arapahoe County
Detention Facility (“ACDF”) in Arapahoe County,
Colorado. Compl. [#1] ¶¶ 1, 40. Plaintiffs
are Mr. Lillis' wife, his minor children through their
guardian or mother, and his adult children. Id.
Lillis was “known by all of the involved medical staff
to be diagnosed with Hepatitis C, which put him at an
increased risk from infections.” Id. ¶
67. He became sick around the beginning of December 2014, and
on the night of December 11, 2014, he submitted a kite asking
for medical attention, but he did not receive a response.
Id. ¶¶ 41, 43, 46. The next morning,
December 12, 2014, Mr. Lillis approached Nurse Paula Bertram,
LPN, who was administering morning medication pass
(“med pass”) and informed her that he was sick.
Id. ¶¶ 47-48. She charted that he had a
temperature of 102.9 degrees at 7:56 a.m. Id. ¶
49. She then had him transferred to the medical unit at ACDF
where “Influenza-Like-Illness” and
“Respiratory Infection” protocols were initiated,
including providing Mr. Lillis with Tylenol, Mucinex, and an
antihistamine. Id. ¶¶ 50-51. Around noon
that same day, Mr. Lillis was seen by Nurse Lucia Azocar,
LPN, and then, at approximately 4:51 p.m., he was seen by
Defendant Anita Brown, RN (“Brown”) who charted
that he “had ‘chills and fever, congestion and
cough that is non-productive.'” Id.
¶¶ 58-61. Defendant Brown “did not call a
doctor or obtain any treatment for” Mr. Lillis and
instead started him on a “Headache Protocol, ”
giving him ibuprofen and Gatorade. Id. ¶¶
68-69. That same day at approximately 10:19 p.m., Defendant
Jason Frank, RN (“Frank”) saw Mr. Lillis during
med pass. Id. ¶ 70. He noted that Mr. Lillis
had a temperature of 103.1 degrees but did not record any
other vital signs. Id. ¶¶ 70-72. Defendant
Frank “did not call the doctor or obtain any treatment
for Mr. Lillis and “simply continued to give Mr. Lillis
ibuprofen and cold medicine, things that were clearly not
working to resolve this growing infection.”
Id. ¶¶ 73-74.
next day, December 13, 2014, Mr. Lillis was first seen by
Defendant Robly Evans, RN (“Evans”) at
approximately 7:49 a.m. Id. ¶ 75. She found
that Mr. Lillis had a temperature of 98.3 degrees but did not
record his other vital signs. Id. Later that day, at
approximately 2:33 p.m., Defendant Evans saw Mr. Lillis
again, took and charted his vitals, and also “noted
that he was coughing up blood.” Id.
¶¶ 76-78. Additionally, Defendant Evans noted
“a change in mental status, charting that Mr. Lillis
was ‘agitated at staff.'” Id. ¶
81. At this point, Defendant Evans called the on-call doctor,
Defendant Dennis L. Furr, D.O. (“Furr”) and
reported that “Mr. Lillis had ‘blood-tinged
sputum, '” but “didn't relay all of the
critical information about Mr. Lillis' worsening
condition and medical crisis, ” specifically that Mr.
Lillis was “‘producing blood.'”
Id. ¶¶ 83-85. Defendant Furr “never
came to evaluate Mr. Lillis, ” “did not order
chest x-ray, culture of sputum, or any outside evaluation
despite obvious signs of a worsening infection, ” and
instead “ordered cough medicine that ACDF apparently
does not even maintain.” Id. ¶¶ 88,
on December 13, 2014, at approximately 4:00 p.m., Mr. Lillis
was seen by Defendant Denise Elwell, RN
(“Elwell”) while she was conducting med pass.
Id. ¶ 100. Defendant Elwell “observed
that Mr. Lillis' coughing had slowed down but ‘was
still present.'” Id. ¶ 101. She also
charted a temperature of 100.3 degrees, did not take any
additional vitals, and advised Mr. Lillis that
“‘no suppression medications [were]
available.'” Id. ¶¶ 102-104.
Defendant Elwell saw Mr. Lillis again at approximately 10:30
p.m. that evening and noted that “‘some
congestion' was heard in his ‘L-Lower lung,
'” but she did not take his vitals and “did
not call a doctor or do anything to help Mr. Lillis obtain
necessary treatment.” Id. ¶¶
next day, on December 14, 2014, at approximately 7:30 a.m.,
Mr. Lillis was first seen by Defendant Nancy Winegar, RN,
(“Winegar”). Id. ¶ 109. She charted
that Mr. Lillis “complained of ‘weakness,
sorthroat [sic], coughing, and fever x 4 days.'”
Id. She also noted that Mr. Lillis had an elevated
pulse of 121, that his throat was red, he had a temperature
of 98.1 degrees, blood pressure of 104/71, respirations of
18, and a “pulse ox” of 91%. Id.
that day, at approximately 4:45 p.m., Mr. Lillis told Deputy
J. Crist that “he needed to speak with a nurse because
he had ‘liver pain.'” Id. ¶
116. Subsequently, Deputy J. Crist reported this symptom to
Defendant Ruth Kyambadde, RN (“Kyambadde”) who
“chose not to see Mr. Lillis at that time.”
Id. ¶¶ 117-118. That same evening, Mr.
Lillis “called the medical control tower and
‘again stated that he needed to speak with a nurse and
that he wasn't feeling well'” reporting that
“he was in a lot of pain and needed medication.”
Id. ¶ 119. After this call, Defendant Kyambadde
saw Mr. Lillis for the first time, and he “asked to be
put on a withdrawal protocol” although he was not
withdrawing from any drugs at the time. Id.
¶¶ 120-121. Plaintiffs assert that Defendant
Kyambadde “recklessly chose to ignore his confused
mental state.” Id. ¶ 124. Sometime later
that night, it was reported to Defendant Kyambadde that Mr.
Lillis “looked sick, ” and approximately forty
minutes later she went to his cell, where she found him
“‘lying in bed on his left side, '
‘moving vigorously, ' holding his breath, and
asking for anxiety medications.” Id.
¶¶ 125-128. While Defendant Kyambadde
“reported that she was unable to take his vitals”
because he was moving, a “video shows that Mr. Lillis
was lying still the whole time for a matter of minutes while
[Defendant] Kyambadde took blood pressure readings,
temperature, and ‘pulse ox, ' but none of these
readings were written down.” Id. ¶¶
129-131. Mr. Lillis informed Defendant Kyambadde that he had
coughed up blood and was having diarrhea. Id.
¶¶ 135, 141. At approximately 7:13 p.m., Defendant
Kyambadde returned and gave him a basin, asking him to cough
up into it so she could evaluate his condition better while
offering him Gatorade. Id. ¶¶ 136, 145.
approximately 7:28 p.m., fifteen minutes after Defendant
Kyambadde had seen Mr. Lillis, Deputy Dube watched on video
as Mr. Lillis collapsed off of the toilet onto the floor.
Id. ¶ 149. At approximately 7:30 p.m., Deputy
Dube reported the fall to Defendant Kyambadde, but she
“wanted to see how he had fallen so the video was
played backwards.” Id. ¶¶ 150-151.
Defendant Kyambadde and Deputy Crist entered Mr. Lillis'
cell at approximately 7:41 p.m., eleven minutes after she had
been informed of his fall. Id. ¶¶ 159-160.
They found him “unresponsive, ” with “blood
coming out of his mouth, ” “surrounded by his own
blood and vomit, ” and with only a “faint
pulse.” Id. ¶¶ 160-164. A medical
emergency was called at 7:43 p.m., but “the emergency
equipment, including the Automatic External Defibrillator was
not readily available” and “by the time an AED
could be brought to Mr. Lillis his heart no longer showed
electrical activity.” Id. ¶¶ 165,
167, 170. Mr. Lillis was pronounced dead at 8:09 p.m.
Id. ¶ 177. The autopsy performed found that his
death was “caused by ‘sepsis due to severe lobar
pneumonia.'” Id. ¶ 181.
Arapahoe County is “ultimately responsible for the
operation of the Arapahoe County Detention Facility”
and employed Defendants Brown, Winegar, Frank, and Kyambadde.
Id. ¶¶ 29, 33, 36, 37, 38. Defendant Maxim
Healthcare Services, Inc. (“Maxim”) contracted
with Defendant Arapahoe County to provide nursing services to
inmates at ACDF. Id. ¶ 25. Defendant Maxim
employed Defendants Evans and Elwell. Id.
¶¶ 34-35. Defendants Correctional Healthcare
Companies, LLC (“CHC”) and Correct Care Solutions
(“CCS”) (collectively “CHC/CCS”)
contracted with Arapahoe County to provide physician and
other medical services at ACDF. Id. ¶¶ 17-18.
Defendant Correctional Healthcare Physicians, P.C.
(“CHP”) and its successor entity Defendant Great
Peak Healthcare Services, P.C. (“Great Peak”) are
believed to have contracted with Defendant Furr. Id.
¶¶ 19-20. Defendants CCS, CHC, CHP, and Great Peak
are collectively referred to by Plaintiffs as the
“CHC/CCS Defendants.” Id. ¶ 21.
assert three claims for relief: (1) a Fourteenth Amendment
Claim for deliberately indifferent medical care against all
of the individual Defendants; (2) a Fourteenth Amendment
claim for deliberately indifferent policies against
Defendants Arapahoe County, Maxim, and the CHC/CCS
Defendants; and (3) a wrongful death claim against Defendants
Maxim, Furr, Evans, Elwell, and the CHC/CCS Defendants.
Id. at 38, 42, 46.
the individual Defendants move to dismiss Plaintiffs'
first claim. See Furr's Motion
[#21]; ACSO Motion [#23]; Evans' Motion
[#36]; Elwell's Motion [#37]. Defendant Arapahoe
County moves to dismiss the only claim asserted against it,
Plaintiffs' second claim. See Arapahoe County's
Motion [#26]. Defendant Maxim moves to dismiss
Plaintiffs' second claim with respect to itself only.
See Maxim's Motion [#35]. Finally, the CHC/CCS
Defendants move to dismiss Plaintiffs' second and third
claims with respect to themselves only. See CHC/CCS
Federal Rule fo Civil Procedure 12(b)(1)
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject-matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
ranging discretion to allow affidavits, other documents, and
a limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
Federal Rule of Civil Procedure 12(b)(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
Claim One: Fourteenth Amendment Deliberate Indifference
Claim One, Plaintiffs allege that Defendants Evans, Ellwell,
Brown, Winegar, Frank, Kyambadde, and Furr, in their
individual capacities, violated Mr. Lillis' Fourteenth
Amendment rights through their deliberate indifference to his
medical needs. See Compl. [#1] at 38. Plaintiffs
assert that each of the individual nurse Defendants
“knew of and disregarded the excessive risks associated
with Mr. Lillis' serious and life-threatening medical
condition and nonetheless, with deliberate indifference,
decided not to report the severity of the symptoms or their
ongoing nature, or obtain a medical evaluation or necessary
urgent medical care.” Id. ¶ 271.
Plaintiffs similarly assert that Defendant Furr, the one
doctor who had been contacted by phone regarding Mr. Lillis,
acted with deliberate indifference when he “decided not
to evaluate Mr. Lillis, obtain for him obviously needed
higher level medical evaluation, including but not limited to
a chest x-ray, or otherwise provide him with obviously needed
orders and tests.” Id. ¶ 272.
Tenth Circuit has stated that a pretrial detainee's
Fourteenth Amendment deliberate indifference claim of
inadequate medical care should be evaluated pursuant to the
standards set by the United States Supreme Court in
Estelle v. Gamble, 429 U.S. 97 (1976), which
concerned a convicted prisoner's Eighth Amendment
deliberate indifference claim. See Blackmon v.
Sutton, 734 F.3d 1237, 1244 (10th Cir. 2013) (stating
that pretrial detainees are owed “at least the same
standard of care prison officials owe convicted
inmates”). Because detainees “must rely on prison
authorities to treat [their] medical needs, ” the
Supreme Court has held that “deliberate indifference to
serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain'
proscribed by the Eighth Amendment.” Estelle,
429 U.S. at 103-04 (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). The test for deliberate indifference
is both objective and subjective, in that a detainee must
establish that: (1) he was deprived of a medical need that
is, objectively, “sufficiently serious, ” and (2)
that the defendant subjectively knew of and disregarded
“an excessive risk to [the detainee's] health or
safety.” Farmer v. Brennan, 511 U.S. 825, 834,
respect to the objective component, “the test is met if
the harm suffered rises to a level ‘sufficiently
serious' to be cognizable under the Cruel and Unusual
Punishment Clause' of the Eighth Amendment.”
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009). Further, “it is the harm claimed by the prisoner
that must be sufficiently serious to satisfy the objective
component, and not solely ‘the symptoms presented at
the time the prison employee had contact with the
prisoner.'” Id. (quoting Mata v.
Saiz, 427 F.3d 745, 752-53 (10th Cir. 2005)).
the ultimate harm to Mr. Lillis was death. See
Compl. [#1] ¶ 40. Death is sufficiently serious to
meet the objective component of the deliberate indifference
test. See Martinez, 563 F.3d at 1088-89 (finding
that the detainee's heart attack and death was
“without a doubt, sufficiently serious to meet the
objective component necessary to implicate the Fourteenth
Amendment”) (internal quotation marks omitted); see
also Cox v. Glanz, 800 F.3d 1231, 1240 n.3 (10th Cir.
2015) (noting that death satisfied the objective component of
a deliberate indifference claim); Estate of Martinez v.
Taylor, 176 F.Supp.3d 1217, 1227 (D. Colo. 2016)
(“Obviously death constitutes a serious harm.”).
Thus, with respect to each of the Motions and individual
Defendants below, the Court finds that the objective
component is satisfied. The Court next addresses the specific
facts and circumstances surrounding Plaintiffs' claim
against each individual Defendant and whether Plaintiffs have
sufficiently alleged the subjective component of the
deliberate indifference test in order to state a plausible
deliberate indifference claim.
Defendant Evans' Motion
assert that Defendant Evans first saw Mr. Lillis at
approximately 7:49 a.m. on December 13, 2014, and then again
“sometime in the mid afternoon.” Compl.
[#1] ¶ 75. Plaintiffs allege that, when Defendant Evans
saw Mr. Lillis in the morning, his temperature was 98.3
degrees but that Defendant Evans did not take blood pressure,
pulse, respiration, or oxygenation readings. Id.
¶ 75. When Defendant Evans saw Mr. Lillis later that
afternoon, Mr. Lillis had a temperature of 98.8, blood
pressure of 99/76, respiration of 26, and pulse oxygenation
of 98%. Id. ¶ 77. Plaintiffs assert that
Defendant Evans also charted that Mr. Lillis was coughing up
blood and “noted a change in mental status, charting
that Mr. Lillis was ‘agitated at staff.'”
Id. ¶¶ 78, 81. Additionally, Plaintiffs
allege that Defendant Evans contacted the on-call doctor,
Defendant Furr, and reported to him that Mr. Lillis had
“blood-tinged sputum, ” but that Defendant Evans
“didn't relay all of the critical information about
Mr. Lillis' worsening condition and medical crisis to
[Defendant] Furr, including that he was ‘producing
blood' as [he] charted.” Id. ¶¶
83-85. Lastly, Plaintiffs assert that Defendant Evans
“abdicated his gatekeeper role” by failing to
provide accurate information to a higher-level provider and
not making the appropriate orders. Response [#56] at
Evans argues that Plaintiffs' first claim against him
should be dismissed because: (1) the Complaint “is
devoid of any specific factual allegation that would permit
any inference-let alone a reasonable one-that [Defendant]
Evans acted with deliberate indifference to Lillis's
medical needs”; (2) “he provided medical care to
Lillis and, accordingly, no claim for deliberate indifference
lies”; and (3) the Complaint “alleges nothing
more than the individual nurse [D]efendants committed medical
malpractice.” Evans' Motion [#36] at 6-7,
subjective component of the deliberate indifference test
“requires a plaintiff to demonstrate that officials
acted with a ‘sufficiently culpable state of
mind.'” Vega v. Davis, 673 Fed.Appx. 885,
890 (10th Cir. 2016) (quoting Wilson v. Seiter, 501
U.S. 294, 298 (1991)). Further, “a prison official
cannot be liable unless the official knows of and disregards
an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Self v. Crum,
439 F.3d 1227, 1231 (10th Cir. 2006) (internal quotation
marks omitted). Additionally, a medical professional can be
liable under the deliberate indifference standard if he
“knows that his role in a particular medical emergency
is solely to serve as a gatekeeper for other medical
personnel capable of treating the condition, and if he delays
or refuses to fulfill that gatekeeper role due to deliberate
indifference, it stands to reason that he may also be liable
for deliberate indifference from denying access to medical
care.” Sealock v. Colorado, 218 F.3d 1205,
1211 (10th Cir. 2000). In order to “establish
gatekeeper liability, a plaintiff must still allege that the
need for medical care was obvious to the prison
official.” Estate of Martinez, 176 F.Supp.3d
at 1227 (internal quotation marks and citations omitted).
Evans argues that Plaintiffs provide “nothing more than
uninformed speculation” by asserting “what they
think should be medically obvious or medically necessary . .
. [and] purport[ing] to know what are the signs and symptoms
of sepsis and pneumonia.” Evans' Motion
[#36] at 8. Defendant Evans goes on, however, to contest
Plaintiffs “medical opinion allegations” with his
own medical conclusions. See Evans' Motion [#36]
at 8 n.6. At this stage of the litigation the Court is tasked
with assessing the sufficiency of the Complaint, not the
parties' medical opinions. See Mobley, 40 F.3d
at 340. Thus, regardless of the parties' conclusions
about the potential interpretations of Mr. Lillis'
symptoms, Plaintiffs' assertions (i.e., that coughing up
blood is a serious medical condition that required immediate
medical evaluation and that Defendant Evans noticed a change
in Mr. Lillis' mental state) sufficiently allege that
Defendant Evans knew that Mr. Lillis had concerning, more
than typical flu-like symptoms, and that there was a
“serious medical need.” See Allen v.
Ferrel, No. 11-cv-01424-CMA-MJW, 2013 WL 1222127, at *9
(D. Colo. Feb. 13, 2013) (describing that the plaintiff
“ha[d] merely alleged that he had flu-like symptoms,
namely vomiting, stomach cramping, and some diarrhea”
which were insufficient to allege a serious medical need).
assert that Defendant Evans, being aware that Mr. Lillis'
condition constituted a “serious medical need, ”
contacted the on-call doctor, but allegedly did not
communicate all of Mr. Lillis' symptoms or his
“worsening condition.” See Compl. [#1]
¶ 83. Plaintiffs appear to aver that there is a
distinction between “blood-tinged sputum” and
coughing up blood. See Id. ¶¶ 83-84. They
allege that Defendant Evans reported to the on-call doctor
only that Mr. Lillis had blood-tinged sputum, but not that he
was allegedly coughing up blood. Id. Plaintiffs
allege that this omission was material and that Defendant
Evans' failure to accurately communicate all of Mr.
Lillis' symptoms was a constitutionally inadequate
response that prevented Mr. Lillis from receiving further
evaluations and care. See Self, 439 F.3d at 1231.
Further, Plaintiffs allege that when the on-call doctor
allegedly prescribed cough and cold medicines that Defendant
Evans allegedly knew to be unavailable, he took no steps to
inform the on-call doctor of this information. See
Compl. [#1] ¶¶ 91-92, 98. While Defendant
Evans argues that this allegation is in “direct
conflict with their opposition to [Defendant] Furr's
motion to dismiss, ” at this stage of the litigation
the Court's task is assessing the sufficiency of the
allegations contained in the Complaint. See Reply
[#67] at 9 n.4.
have plausibly alleged that Defendant Evans' actions were
constitutionally inadequate and that he failed to fulfill his
“gatekeeper” role with respect to Mr. Lillis.
Accepting as true all well-pled facts from the Complaint [#1]
and viewing them in the light most favorable to Plaintiffs,
the Complaint [#1] plausibly alleges that Defendant
Evans' conduct violated Mr. Lillis' constitutional
rights. Accordingly, Defendant Evans' Motion [#36] is
Defendant Elwell's Motion
assert that Defendant Elwell saw Mr. Lillis at about 4:00
p.m. on December 13, 2014, while “‘conducting
1600 med pass.'” Compl. [#1] ¶ 100.
Plaintiffs allege that Defendant Elwell “observed that
Mr. Lillis' coughing had slowed down but ‘was still
present.'” Id. ¶ 101. Mr. Lillis had
a temperature of 100.3, but Defendant Elwell did not take
readings of his blood pressure, pulse, respiration, or
oxygenation. Id. ¶¶ 102-103. Plaintiffs
assert that Defendant Elwell “next charted at 10:30
p.m. on December 13, 2014, that ‘some congestion'
was heard in his ‘L-Lower lung, '” but he did
not take readings of Mr. Lillis' blood pressure, pulse,
respiration, or oxygenation and did not “call a doctor
or do anything to help Mr. Lillis obtain necessary
treatment.” Id. ¶¶ 105-107.
Elwell argues that Plaintiffs' first claim should be
dismissed with respect to her because the Complaint: (1)
fails to state a cognizable claim; (2) “is devoid of
any specific factual allegation that would permit any
inference . . . that [Defendant] Elwell appreciated the
decedent's serious medical needs”; (3) does not
provide a basis “to infer that [Defendant] Elwell
consciously disregarded Lillis's medical needs”;
and (4) “alleges nothing more than the individual nurse
[D]efendants committed medical malpractice.”
Elwell's Motion [#37] at 6-8, 12.
respect to the subjective component of the deliberate
indifference test, the allegations concerning Defendant
Elwell do not suggest that she was aware that Mr. Lillis was
exhibiting anything more than flu-like symptoms, i.e., a high
temperature, “‘some congestion' . . . in his
‘L-Lower lung, '” and slowed but still
present coughing. See Compl. [#1] ¶¶
100-105; see also Self, 439 F.3d at 1232 (“So
long as a medical professional provides a level of care
consistent with the symptoms presented by the inmate, absent
evidence of actual knowledge or recklessness, the requisite
state of mind cannot be met.”). “Flu-like
symptoms” alone generally do not constitute a
“serious medical need.” Allen, 2013 WL
1222127, at *9.
allegations contained in the Complaint, namely that Defendant
Elwell noted that Mr. Lillis' “coughing had slowed,
” indicate that subjectively, Defendant Elwell believed
that Mr. Lillis' condition was improving rather than
deteriorating. See Compl. [#1] ¶ 101; see
also Elwell Motion [#37] at 7. Accepting as true all
well-pled facts from the Complaint [#1] and viewing them in
the light most favorable to Plaintiffs, while Plaintiffs do
allege that Defendant Elwell knew that Mr. Lillis had
Hepatitis C, which they aver put him at a heightened risk for
infection, there is no indication that Defendant Elwell knew
“that a substantial risk of serious harm
exist[ed]” based on the symptoms she was aware of at
the time. See Self, 439 F.3d at 1231.
Therefore, the Court finds that Plaintiffs have failed to
sufficiently allege that Defendant Elwell acted with
deliberate indifference towards Mr. Lillis' medical
Defendant Elwell's Motion [#37] is
granted and Plaintiffs' First Claim is
dismissed with prejudice with respect to