United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendants' Motion
for Summary Judgment [#64] (“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. 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.
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.
August 16, Mr. Stieb had multiple health
“events.” 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.
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. Defs. Motion [#64] 3; Pl.
Motion [#67] at 3.
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. 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.
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.
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.
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.
Standard of Review
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.
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).
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
(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).
Statute of Limitations
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.
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
Standard for Determining Accrual Date
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).
Defendants' Motion [#64]
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.
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 ...