United States District Court, D. Colorado
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.
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.
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.)
Plaintiff's Third Amended Complaint
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.
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.)
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.)
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.)
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.
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.)
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.
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.
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