Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lillis v. Correct Care Solutions, LLC

United States District Court, D. Colorado

March 30, 2018

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,
v.
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.

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on the following motions: (1) Motion to Dismiss Plaintiffs' Second and Third Claim [#16][1], 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.[2]

         I. Background

         Plaintiffs allege the following facts as the basis for their claims.[3] 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. ¶¶ 10-16.

         Mr. 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.

         The 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, 90, 96.

         Later 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. ¶¶ 105-107.

         The 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. ¶¶ 110-111.

         Later 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.

         At 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.

         Defendant 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.[4] 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.

         Plaintiffs 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.

         All of 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 Motion [#16].

         II. Standards

         A. Federal Rule fo Civil Procedure 12(b)(1)

         The 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)).

         A 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.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The 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)).

         “A 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).

         To 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).

         III. Analysis

         A. Claim One: Fourteenth Amendment Deliberate Indifference Claim

         In 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.[5] 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.

         The 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, 837 (1994).

         With 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)).

         Here, 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.

         1. Defendant Evans' Motion

         Plaintiffs 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 6 n.2.

         Defendant 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, 10.

         The 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).

         Defendant 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).

         Plaintiffs 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.

         Plaintiffs 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 denied.

         2. Defendant Elwell's Motion

         Plaintiffs 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.

         Defendant 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.

         With 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.

         The 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.[6] 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 needs.

         Accordingly, Defendant Elwell's Motion [#37] is granted and Plaintiffs' First Claim is dismissed with prejudice with respect to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.