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Wojdacz v. Lewis

United States District Court, D. Colorado

April 24, 2018



          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on the following motions: (1) Arapahoe County Deputy Sheriff Brady Wood's Partial Motion to Dismiss Plaintiff's Third Amended Complaint [#184][1] (the “Wood Motion”); (2) Defendants, Rose Medical Center and Presbyterian St. Luke's Medical Center's, Motion to Dismiss Plaintiff's Third Amended Complaint [#197] (“Rose Medical and St. Luke's Motion”); (3) Denver Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint [#198] (the “Denver Defendants' Motion”), filed by Defendants Sean Lewis, Chris Pappas, Matthew Van Pelt, Joshua Herko, Eugene Alfaro, and Thomas Sanchez; and (4) Defendant University of Colorado Hospital's Motion to Dismiss with Prejudice [#201] (the “University Hospital Motion”). Plaintiff filed Responses [#194, #204, #205, #206] in opposition to the Motions, and Defendants filed Replies [#196, #214, #215, #216]. The Motions have been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3). See [#186, #199, #200, #202]. 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, the Court respectfully recommends that the Motions [#184, #197, #198, #201] be GRANTED.

         I. Background

         Plaintiff, a pro se litigant, [2] initiated this case on September 22, 2015, by filing the Complaint [#1]. She filed the First Amended Complaint on December 15, 2015 [#10]. Following the filing of a Motion to Strike [#31] and several Motions to Dismiss [#37, #38, #47, #48], the Court ordered Plaintiff to file a Second Amended Complaint, which she did on August 31, 2016. See [#88]. Subsequently, another round of Motions to Dismiss [#89, #91, #97, #100, #106, #108, #134, #138] was filed and the Court dismissed all of Plaintiff's claims either with or without prejudice. See Recommendation [#157] at 36-38; see also Order [#172] (adopting Recommendation [#157]). The Court granted Plaintiff leave to file a Third Amended Complaint with respect to the claims dismissed without prejudice. Id. The Third Amended Complaint [#175] filed on October 2, 2017, is 78 pages in length and contains nine claims for relief.

         In the Third Amended Complaint, Plaintiff alleges that she sought medical treatment from three different facilities, Defendants University of Colorado Hospital, Rose Medical, and St. Luke's (collectively, the “Medical Defendants”).[3] See Third Am. Compl. [#175] at 6, 9, 12. Plaintiff asserts that she sought treatment from Defendant University of Colorado Hospital on November 22, 2014, for “exposure related illness” which included strep throat, bronchitis, laryngitis, and a cold. Id. at 6-7. Plaintiff further asserts that she was discharged after being given “two Tylenols.” Id. On November 26, 2014, Plaintiff went to Defendant Rose Medical and was treated with “Zithromax for the strep throat and Robitussin with codeine for the bronchitis and pneumonia.” Id. at 6.

         Following a physical assault by an unnamed non-party, Plaintiff next sought treatment from Defendant Rose Medical on June 18, 2015, June 25, 2015, July 7, 2015, and July 14, 2015, for “symptoms of a separated shoulder and spinal injury” and was discharged after being given “Ibuprofen, Prednisone, Noroco, and Valium, and a IV [sic] drip used for dehydration.” Id. at 9-10. On July 14, 2015, Plaintiff went to Defendant St. Luke's seeking treatment for the same physical assault-related injuries including “symptoms of a separated shoulder and spinal injury, including extreme sudden dizziness.” Id. at 12. Plaintiff was discharged from Defendant St. Luke's after being given “25 MG of Meclizine HCI” for her dizziness. Id. at 13. Plaintiff sues the Medical Defendants under the Emergency Medical Treatment and Labor Act (“EMTALA”) for failing to treat, screen, and/or stabilize Plaintiff adequately before discharging her. Id.

         In addition, Plaintiff alleges that she is being retaliated against for her May 2014 testimony in a prior case (Case No. 12-cv-01483-REB-MEH), her August 2014 filing of an affidavit in another case (Case No. 13-cv-01783-MSK-MJW), and for demanding a murder investigation regarding the death of her son. See Id. at 19, 36. The alleged retaliation arises from the following events involving the Denver Police Department and Arapahoe County Deputy Sheriff. In August 2014, Plaintiff was approached by Denver Police Department officers while panhandling and was instructed “to leave immediately as there was no panhandling in Denver.” Id. at 19. On August 25, 2014, a “hold” was placed on Plaintiff's vehicle by an “unidentified Denver Police Officer.” Id. at 20. On September 28, 2014, Defendant Wood, an officer of the Arapahoe County Sheriff's Department, pulled Plaintiff over for an alleged traffic violation and allegedly “unbuttoned his shirt and placed the valid proof of insurance card inside his shirt” and then “told Plaintiff she failed to produce a valid proof of current insurance.” Id. at 20, 24. During the traffic stop, Defendant Lewis arrived at the scene. Id. at 23. Plaintiff was arrested and her vehicle was towed based on the “hold.” Id. at 20. Further, Plaintiff asserts claims related to her religious beliefs. Specifically, Plaintiff alleges that she “is an Orthodox Christian, and as a part of her religious belief and practice, she engages in almsgiving, (and receiving of those alms) by the way of panhandling.” Id. at 53. Plaintiff asserts that she was arrested by Defendant Pappas, an officer of the Denver Police Department, on July 20, 2016, while she was panhandling. Id. at 54. Defendant Van Pelt was present at the time of the arrest, and Defendants Herko and Alfaro arrived at the scene shortly after Defendant Pappas handcuffed Plaintiff. Id. at 55. Plaintiff was released “about 15 minutes” after being handcuffed. Id. at 57. On August 9, 2016, Defendant Sanchez approached Plaintiff while she was panhandling and told her that “if she did not stop panhandling and leave the area he would issue her a ticket for pedestrian in the roadway.” Id.

         Plaintiff brings the following claims: (1) an EMTALA claim against the Medical Defendants; (2) a First Amendment retaliation claim against Defendants Wood, Lewis, “John Doe officer, ” and “John Doe Deputy”; (3) a Fourth Amendment unlawful arrest claim against Defendant Wood; (4) a Fourth Amendment unlawful seizure of property claim against Defendants Wood, Lewis, and Doe Deputies/Officers; (5) an Eighth Amendment cruel and unusual punishment claim against Defendants Wood, Lewis, Doe Deputy, and Doe Officers; (6) a First Amendment claim for interference with free speech and free practice of religion against Defendants Pappas, Van Pelt, Alfaro, and Sanchez; (7) a Fourth Amendment false arrest claim against Defendant Pappas; (8) a Fourth Amendment unlawful search claim against Defendant Alfaro; and (9) a Fourteenth Amendment religious discrimination claim against Defendants Pappas, Van Pelt, Herko, Alfaro, and Sanchez. See Third Am. Compl. [#175] at 15, 35, 39, 44, 48, 61, 65, 69, 73.

         II. Legal Standards

         A. Federal Rule of 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).

         C. Qualified Immunity

         The doctrine of qualified immunity “shields government officials performing discretionary functions from liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Boles v. Neet, 486 F.3d 1177, 180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court's analysis of qualified immunity in the context of a 12(b)(6) motion involves two inquiries. The Court must determine whether the alleged facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). The Court must also consider whether the plaintiff has shown that “the constitutional right was clearly established at the time of the alleged unlawful activity.” Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1199 (10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The Court may assess these inquiries in either order. Pearson, 555 U.S. at 236.

         III. Analysis

         A. First Claim: EMTALA Violations

         Plaintiff asserts that the Medical Defendants violated her rights under EMTALA. See Third Am. Compl. [#175] at 17. EMTALA was enacted to address concerns that hospitals were refusing to accept or treat patients with emergency conditions who lacked medical insurance. See St. Anthony Hosp. v. U.S. Dep't of Health & Human Servs., 309 F.3d 680, 692 (10th Cir. 2002). EMTALA requires that participating hospitals with emergency departments provide patients with a medical screening examination to determine whether the patient has an emergency medical condition that demonstrates “acute symptoms of sufficient severity” such that the absence of immediate treatment could reasonably be expected to result in placing the individual's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction to any bodily organs. 42 U.S.C. § 1395dd(e). If it is determined that the patient has an emergency medical condition, the hospital must provide either:

(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.

§ 1395dd(b)(1). Subsection (c) provides that a non-stabilized patient may only be transferred when an “appropriate transfer” is requested by the patient, or when a physician certifies that the medical benefits of the transfer likely outweigh the risks. § 1395dd(c). To state an EMTALA claim, a plaintiff must also allege that she was treated differently from other individuals perceived to be suffering from the same medical condition. See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 797 (10th Cir. 2001).

         Plaintiff alleges that, when she sought treatment from the Medical Defendants, the Medical Defendants “did not afford Plaintiff an appropriate screening as required under EMTALA, ” even though she allegedly exhibited “emergency medical conditions.”[4] Third Am. Compl. [#175] at 6, 9, 12, 17. Further, Plaintiff alleges that all of the Medical Defendants failed to comply with EMTALA by “discharging Plaintiff in worse condition than when she arrived in their emergency departments, providing not even the slightest of care most of the times, or, care for issues she was not presenting to them for.” Id. at 17.

         Defendants Rose Medical, St. Luke's, and University of Colorado Hospital move to dismiss Plaintiff's Third Amended Complaint [#175], arguing that Plaintiff: (1) fails to assert how the screenings that were conducted were inappropriate or deficient; (2) does not assert facts to establish that the Medical Defendants had actual knowledge that she had an emergency medical condition; and (3) fails to allege that she was treated differently from other individuals presenting with the same medical conditions. See Rose Medical and St. Luke's Motion [#197] at 4-5, 7; University Hospital's Motion [#201] at 4-6.

         As the Medical Defendants argue, Plaintiff fails to allege in more than a conclusory fashion that her medical screenings were deficient. The Third Amended Complaint merely states that each of the Medical Defendants “did not afford Plaintiff an appropriate screening as required under EMTALA and/or she was discharged before emergency medical condition was stabilized.” Third Am. Compl. [#175] at 6, 9, 12. She has not explained why she believes the screenings were “inappropriate.” To the extent that Plaintiff alleges that the screenings were deficient because Defendants failed to identify any emergency medical conditions, her assertion lacks merit because EMTALA “is not a federal malpractice or negligence statute.”[5] See Genova v. Banner Health, 896 F.Supp.2d 993, 1002 (D. Colo. 2012), aff'd, 734 F.3d 1095 (10th Cir. 2013); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994) (stating that “the statute's [screening] requirement is hospital-specific, varying with the specific circumstances of each provider”). Furthermore, Plaintiff's assertion that the Medical Defendants “were acting per internal directives of their hospitals not to screen, stabilize or otherwise treat uninsured patients” is pure speculation. Third Am. Compl. [#175] at 17; Christy Sports, 555 F.3d at 1191. Thus, Plaintiff has not plausibly alleged that the Medical Defendants failed to conduct an appropriate medical screening, nor has she alleged that she was treated differently from other individuals perceived to be suffering from the same medical conditions. See Twombly, 550 U.S. at 570; Phillips, 244 F.3d at 797.

         Accordingly, the Court respectfully recommends that the Medical Defendants' Motions [#197, #201] be granted, and that Plaintiff's First Claim be dismissed with prejudice. See Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (explaining that dismissal with prejudice is appropriate where a plaintiff's amended pleadings fail to cure the deficiencies in his claims); see also Robinette v. Schirard, No. 10-cv-02172-CMA-KLM, 2014 WL 12649011, at *12 (D. Colo. Feb. 11, 2014) (dismissing the pro se ...

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