Freeman v. Colorado Department of Corrections

          ORDER ON DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1) AND (6) (DOCKET NO. 76)

          MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court pursuant the parties' consent to magistrate judge jurisdiction. (Docket No. 69.) Plaintiff Barbara Freeman (“Plaintiff”) brings this case against Defendants Colorado Department of Corrections (“CDOC”), the Denver Women's Correctional Facility (“DWCF”), and in their official capacities: Rick Raemisch, Captain Gilbert, Caley, Lieutenant Brenda Bland, Dentist Gerald Thalker, Sergeant Trisha Jesik, Sergeant Crystal Sesma, Lieutenant Jill Glacier, and Correctional Officer Brittany Houtz (collectively “Defendants”). Defendants have moved to dismiss Plaintiff's Third Amended Complaint. (Docket No. 76.) Plaintiff filed a response (Docket No. 82), and Defendants filed a Reply. (Docket No. 83.) The Court has reviewed the parties' filings (Docket Nos. 76, 82, & 85), taken judicial notice of the Court's entire file in this case, and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court makes the following order.

         I. BACKGROUND

         a. Procedural History

         Plaintiff, proceeding pro se, initiated this case on August 29, 2016. (Docket No. 1.) After making several attempts to cure various pleading deficiencies and amend her claims (Docket Nos. 9, 25, & 44), Plaintiff's Second Amended Complaint was ultimately drawn to the undersigned Magistrate Judge on August 23, 2018. (Docket No. 45.) Plaintiff was appointed pro bono counsel the next day. (Docket No. 50.) Attorneys Sonia Anderson, Ephraim Hintz, and Chris Ottele of the law firm of Husch Blackwell LLP entered appearances on behalf of Plaintiff (Docket Nos. 66, 67, & 71), and Plaintiff was given leave to file a Third Amended Complaint. (Docket No. 74.) Plaintiff filed a Third Amended Complaint, the operative pleading in this case, on November 21, 2018. (Docket No. 75.) On December 4, 2018, Defendants filed the subject motion. (Docket No. 76.)

         b. Plaintiff's Third Amended Complaint

         The following allegations are taken from Plaintiff's Third Amended Complaint (Docket No. 75), and assumed to be true for the purposes of a motion to dismiss.

         Plaintiff, an 83-year-old woman, is in the custody of the CDOC, and is housed in the DWCF. (Docket No. 75 ¶¶ 2, 4, & 15.) The CDOC operates the DWCF, which is an all-women's prison. (Id. ¶¶ 3-4.) Defendant Raemisch is the CDOC's Executive Director. (Id. ¶ 5.) Defendant Caley is a DWCF General and was the supervisor of DWCF's Unit 1 during the relevant period. (Id. ¶ 6.) Defendant Bland is a DWCF Lieutenant who was in charge of DWCF's Offender Care Aid (“OCA”) during the relevant period. (Id. ¶ 7.) Defendant Thalker was Plaintiff's primary dentist at DWCF during the relevant period. (Id. ¶ 8.) Defendant Jesik was a DWCF Sergeant and the OCA schedule co-coordinator for DWCF's Unit 2. (Id. ¶ 9.) Defendant Sesma is a DWCF Sergeant and the OCA schedule co-coordinator for DWCF's Unit 2. (Id. ¶ 10.) Defendant Glacier is a DWCF Lieutenant and is in charge of assigning medical mattresses and room changes in DWCF's Unit 2. (Id. ¶ 11.) Defendant Houtz was a DWCF Correctional Officer in DWCF's Unit 1 during the relevant period. (Id. ¶ 12.)

         Plaintiff is legally blind; she also has arthritis in her hands which prevents her from writing or performing manual tasks, lower mobility impairments, and vertebrate contusions. (Id. ¶ 21.) As a result of these limitations, Plaintiff is “disabled” as defined by the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the CDOC's “Montez Policy.” (Id. ¶¶ 1, 16, 20, & 21.) Under the ADA, Plaintiff is entitled to reasonable accommodations at DWCF. (Id. ¶ 22.) The Montez Policy likewise requires all Colorado correctional facilities to provide disabled inmates adequate accommodations and “everyday assistance, ” and prohibits discrimination against disabled inmates. (Id. ¶¶ 19 & 23.) The Montez Policy provides that all inmates with mobility impairments must be placed in a “Montez Remedial room, ” which is a handicapped accessible cell equipped with necessary accommodations for disabled inmates, including services provided by an inmate aide (known as an “OCA 3") to help perform various tasks, a thicker mattress (known as a “medical mattress”), and hearing and visual aids in the event of an emergency evacuation. (Id. ¶¶ 25-27, & 29.)

         When Plaintiff arrived at DWCF in 2001, she was placed into a Montez Remedial room in DWCF's Unit 1. (Id. ¶ 28.) She resided there until July 16, 2016, when Defendants Caley and Houtz moved Plaintiff into a non-Montez Remedial room after she complained that she was allergic to the dogs that were allowed into Unit 1. (Id. ¶ 34.) She remained in a non-Montez Remedial room for 30 days, even though she told Defendants Caley and Houtz that she needed to stay in a Montez Remedial room under the ADA and the Montez Policy. (Id. ¶¶ 35-36.) Defendants Bland, Jesik, and Sesma denied Plaintiff access to the services of an OCA 3 during this period. (Id. ¶ 37.) Due to her disabilities, Plaintiff needs an OCA 3 to help her with various daily tasks. (Id. ¶ 3.) As a result of Defendants Bland, Jesik, and Sesma's actions, during those 30 days, Plaintiff: (1) bathed only once, due to her fear of falling while showering unassisted; (2) missed several meals because she could not walk alone to the cafeteria without falling; (3) could not take her medication because she could not walk unassisted to medication dispensary line. (Id. ¶¶ 38-40.) Plaintiff informed Defendants Caley, Bland, Jesik, Sesma, and Glacier that the non-Montez Remedial room was inadequate to accommodate her needs, but these Defendants did nothing to assist her. (Id. ¶ 41.)

         Plaintiff was moved into a Montez Remedial room DWCF's Unit 2 on August 16, 2016. (Id. ¶ 42.) However, she could not sleep in the room because it did not have a medical mattress and because her roommate's oxygen machine was too noisy. (Id.) She complained to Defendant Glacier, who refused to provide her with a proper mattress. (Id.)

         Plaintiff was eventually moved back to a Montez Remedial room in DWCF's Unit 1, but on at least one occasion, had to miss a meal because the Defendants fail to schedule an OCA 3 to help assist her. (Id. ¶¶ 43-44.)

         Plaintiff also alleges that on December 18, 2015, she requested a dental appointment with Defendant Thalker regarding tooth pain. (Id. ¶ 32.) Defendant Thalker did not reply for 10 weeks, and did not see Plaintiff until DWCF officers set up an appointment for her. (Id.) It took almost a year to schedule oral surgery, and the delay caused Plaintiff to lose two bottom teeth, which has resulted in her experiencing continuous discomfort while eating. (Id.)

         Plaintiff asserts two claims for relief. First, Plaintiff alleges that all Defendants, save Defendant Thalker, violated her rights under Title II of the ADA. (Id. ¶¶ 45-55.) Second, Plaintiff alleges that all Defendants, save Defendant Raemisch, are liable under 42 U.S.C. § 1983 for violating her Eighth Amendment right of “no cruel and unusual punishment” by depriving her of adequate ADA and Montez Policy accommodations, pain medication, hygienic services, dental care, and food. (Id. ¶¶ 56- 62.) She seeks monetary damages and injunctive relief.

         Defendants now move to dismiss Plaintiff's Third Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) (Docket No. 76). Defendants argue that any claims for monetary damages against Defendants in their official capacities are barred by the Eleventh Amendment and therefore the Court lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Defendants also argue that Plaintiff has failed to state viable claims for prospective injunctive relief under the ADA and/or the Eighth Amendment.

         II. LEGAL STANDARDS

         a. ...