Estate of Stieb v. Johnson

          ORDER

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Defendants' Motion for Summary Judgment [#64]^[1] (“Defendants' Motion”), and on Plaintiff's Motion for Summary Judgment [#67] (“Plaintiff's Motion”). Plaintiff filed a Response [#76] in opposition to Defendants' Motion, and Defendants filed a Reply [#85]. Defendants filed a Response [#79] in opposition to Plaintiff's Motion, and Plaintiff filed a Reply [#87]. The Court has reviewed the Motions, Responses, Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises.^[2] For the reasons set forth below, Defendants' Motion [#64] is GRANTED in part and DENIED in part and Plaintiff's Motion [#67] is GRANTED in part and DENIED in part.

         I. Background^[3]

         On August 16, 2014, Justin Stieb (“Stieb”) died in the Delta County Detention Center (“Detention Center”) while serving a criminal sentence. Defs. Motion [#64] at 5; Pl. Motion [#67] at 5. Mr. Stieb had a history of seizures which had started at the age of 16, and Delta County Work Release Center (“Work Release”) staff and Detention Center staff were aware of this health issue. Defs. Motion [#64] at 1; Pl. Motion [#67] at 1. Mr. Stieb also had heart problems. Defs. Motion [#64] at 11; Pl. Motion [#67] at 2.

         On August 16, Mr. Stieb had multiple health “events.”^[4] At 2:05 a.m., Mr. Stieb had what appeared to Mr. Stieb and to Work Release staff to be a seizure. Defs. Motion [#64]; Pl. Response [#76] at 1 ¶ 6. At 4:39 a.m., Mr. Stieb had another event which appeared to himself and to staff to be another seizure. Defs. Motion [#64] at 2; Pl. Response [#76] at 1 ¶ 6. After the second event, Mr. Stieb was transported to the emergency room at Delta Memorial Hospital. Defs. Motion [#64] at 2; Pl. Motion [#67] at 2. Mr. Stieb was not admitted to the hospital and was discharged around 6:40 a.m. Defs. Motion [#64] at 3; Pl. Motion [#67] at 3. During the hospital visit, Mr. Stieb was directed to take 300 mg of Dilantin when he was returned to detention. Defs. Motion [#64] at 3; Pl. Response [#76] at 2 ¶ 8.

         After leaving the hospital, Mr. Stieb was transported to the Detention Center. Defs. Motion [#64] at 3; Pl. Motion [#67] at 3. At approximately 10:30 a.m., Mr. Stieb suffered another health event which Detention Center staff believed was a third seizure. Defs. Motion [#64] at 4; Pl. Motion [#67] at 3. It is undisputed that if Mr. Stieb received his 300 mg of Dilantin, it was not dispensed by Defendant Deborah Johnson (“Johnson”), a nurse, to Mr. Stieb until approximately 11:30 a.m., after he had suffered this third event.^[5] Defs. Motion [#64] 3; Pl. Motion [#67] at 3.

         Not long after the third event, Mr. Stieb was placed in an “at-risk” cell with padded walls and video monitoring. Def. Motion [#64] at 4; Pl. Motion [#67] at 3. Around 3:25 p.m., Mr. Stieb was observed lying on his side moving his limbs. Defs. Motion [#64] at 4; Pl. Response [#76] at 4-5 ¶ 23. Defendants J. Rivera (“Rivera”) and Lottie Dominguez (“Dominguez”), both deputies, checked on Mr. Stieb around 3:48 p.m. Defs. Motion [#64] at 4; Pl. Response [#76] at 6 ¶ 29. They tried to use a defibrillator, but it “malfunctioned” and provided instruction to begin chest compressions. Defs. Motion [#64] at 5; Pl. Response [#76] at 6 ¶ 31. They did not administer any chest compressions. Defs. Motion [#64] at 5; Pl. Response [#76] at 6 ¶ 31. Someone called 9-1-1 for an ambulance which arrived shortly thereafter.^[6] Defs. Motion [#64] at 5; Pl. Motion [#67] at 5. At approximately 4:07 p.m., Mr. Stieb was pronounced dead. Defs. Motion [#64] at 5; Pl. Motion [#67] at 5.

         An autopsy was conducted by Michael J. Benziger, M.D. (“Benziger”). Defs. Motion [#64] at 5; Pl. Motion [#67] at 12-13. It is undisputed that Mr. Stieb died of an acute cardiac event and that leading up to his death, he suffered from severe biventricular dilatory cardiomyopathy, which is a chronic condition. Defs. Motion [#64] at 5; Pl. Motion [#67] at 13.

         On the evening of August 16, individuals from the Sheriff's Office went to the residence of Mr. Stieb's mother, Toni Benevento (“Benevento”), and wife, Tamara Knob (“Knob”), to notify them of Mr. Stieb's death. Defs. Motion [#64] at 19; Pl. Response [#76] at 19. On August 19, 2014, the Montrose Daily Press published a newspaper article relating to Mr. Stieb's death. Defs. Motion [#64] at 20; Pl. Response [#19] at 21. The article stated that initial information indicated Mr. Stieb died of natural causes and that the investigation was ongoing. Defs. Motion [#64] at 20; Pl. Response [#19] at 21. About a month after Mr. Stieb's death, the Sheriff's Office was contacted by Attorney David Lane (“Lane”) of Killmer, Lane & Newman, LLP (“Killmer Lane”), regarding Mr. Stieb's potential legal claims arising from his death. Defs. Motion [#64] at 20; Pl. Response [#76] at 19. Ms. Benevento and Ms. Knob did not begin inquiring into potential constitutional violations relating to Mr. Stieb's death until May 2015, when Mr. Lane contacted them. Defs. Response [#79] at 22; Pl. Reply [#87] at 7-8.

         Plaintiff, the Estate of Mr. Stieb, filed this lawsuit on October 12, 2016. See generally Compl. [#1]. In the Complaint [#1], Plaintiff asserts (1) an Eighth Amendment claim for “Delay in Access to Medical Care Causing Death” and (2) an Eighth Amendment claim for “Denial and Lack of Treatment in Sub Standard Medical Care Causing Death.” Id. ¶¶ 126-55. Plaintiff generally seeks damages, attorneys' fees, costs, and other monetary relief. Id. at 21-22.

         II. Standard of Review

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

         Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.] . . .

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c)(1)-(4).

         III. Analysis

         A. Statute of Limitations

         Of preliminary importance is whether the statute of limitations bars this suit. “Generally, a limitation defense is an affirmative defense and the burden of proof is on the party asserting it.” Larson v. Snow College, 115 F.Supp.2d 1286, 1292 (D. Utah 2000) (citing Goldsmith v. Learjet Inc., 90 F.3d 1490 (10th Cir. 1996)). In general, a statute of limitations issue is a mixed question of fact and law; however, “[i]f the relevant facts are undisputed, the statute of limitations is a question of law appropriate for summary judgment.” Standards Governing Summ. J., Rutter Grp. Prac. Guide Fed. Civ. Proc. Before Trial (Nat'l Ed.) Ch. 14-F. “[I]n the federal courts, cases involving defenses hinging on applicable statutes of limitations may lend themselves to summary judgment . . . . [T]he cases firmly hold that if the statute of limitations depends on disputed facts, then summary judgment is inappropriate.” Wolf v. Preferred Risk life Ins. Co., 728 F.2d 1304, 1306 (10th Cir. 1984) (citing State of Ohio v. Peterson, 585 F.2d 454, 457 (10th Cir. 1978)) (emphasis added). Thus, there must be no disputed material facts for either Defendants' Motion [#64] or Plaintiff's Motion [#67] to succeed on this issue.

         The statute of limitations for § 1983 cases arising in Colorado is two years. See Colo. Rev. Stat. § 13-80-102(1)(g); see also Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) (holding that an action brought pursuant to 42 U.S.C. § 1983 is subject to the statute of limitations in the state where the action arose). Mr. Stieb died on August 16, 2014. Defs. Motion [#64] at 5; Pl. Motion [#67] at 5. The present action was not filed until October 12, 2016, approximately two years and two months after Mr. Stieb's passing. See Compl. [#1]. Defendants contend that the action accrued at or near Mr. Stieb's death, and, consequently, Plaintiff did not timely file this lawsuit.

         1. Standard for Determining Accrual Date

         The date when a cause of action accrues is determined by federal law. Baker v. Bd. of Regents of the State of Kan., 991 F.2d 628, 632 (10th Cir. 1993). For § 1983 cases, the “action accrues when ‘facts that would support a cause of action are or should be apparent.'” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (quoting Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1998)). That is, the action accrues “when the Plaintiff knows or should know that his or her constitutional rights have been violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998). That test is objective, and the action accrues when “a reasonable person [would be put] on notice that wrongful conduct caused the harm.” Alexander v. Okla., 382 F.3d 1206, 1216 (10th Cir. 2004). “[A] plaintiff is on inquiry notice whenever circumstances exist that would lead a reasonable [plaintiff] of ordinary intelligence, through the exercise of reasonable due diligence, to discover his or her injury.” Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1280 (2014) (citing Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 251 (2001)). “It is not necessary that a claimant know all of the evidence ultimately relied on for the cause of action to accrue.” Baker, 991 F.2d at 632. Defendants bear the burden of proof on the question of when the action accrued. See Beidleman, v. Random House, Inc., 621 F.Supp.2d 1130, 1134 (D. Colo. 2008).

         2. Defendants' Motion [#64]

         Because Defendants bear the burden of proof on this issue, they must show the absence of a genuine issue of material fact such that a reasonable jury could only conclude that the statute of limitations has run. Adler, 144 F.3d at 670-671 (citing Celotex, 477 U.S. at 323). Defendants contend that “a reasonable person using reasonable diligence would have been put on notice at or near Mr. Stieb's death [so that] . . . this lawsuit was not timely commenced.” Def. Motion [#64] at 19. Plaintiff counters that neither Ms. Benevento nor Ms. Knob was put on notice that wrongful conduct may have caused Mr. Stieb's death until May 2015, when Mr. Lane contacted them. Pl. Reply [#87] at 7-8.

         When evaluating Defendants' Motion [#64], the Court must view the evidence in a light most favorable to Plaintiff. Adickes, 398 U.S. at 157. Ms. Benevento and Ms. Knob knew that Mr. Stieb had health problems, including seizures, and they reasonably believed that Mr. Stieb died as a result. See Aff. of Benevento [#68-6] ¶ 6. As Plaintiff points out, the evidence shows that many sources reported that Mr. Stieb died of natural causes: “the Coroner's Report stated Mr. Stieb died of natural causes, . . . the . . . Certificate of Death confirmed Mr. Stieb died of natural causes, . . . the . . . original Autopsy Report confirmed Mr. Stieb died of natural causes, and the Colorado Bureau of Investigations determined their investigation into the death of [Mr.] Stieb [did] not involve criminal violations.” Pl. Motion [#67] at 22. Multiple statements that Mr. Stieb died of natural causes cannot be construed as evidence of a fact “that would suggest to a reasonable person that he [had] been injured.” Kirchhefer, 764 F.3d at 1280. Unlike the estate plaintiff in Dorroug ...