McClain v. Denver Health and Hospital Authority

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Denver Health and Hospital Authority d/b/a Denver Health Medical Center's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [Docket No. 16]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

         I. BACKGROUND ^[1]

         This lawsuit arises out of plaintiff's sexual assault while she was a patient in the Intensive Care Unit (“ICU”) at Denver Health and Hospital Authority (“Denver Health”). See Docket No. 13 at 1, ¶ 1. On July 21, 2016, plaintiff sustained a traumatic brain injury in an automobile collision that left her in a coma for forty-three days. Id. at 3, ¶ 10. At some point, plaintiff was admitted to Denver Health's ICU for treatment. Id., ¶ 9.

         Plaintiff alleges that Denver Health had a policy, practice, or custom of allowing people to “access patients in its ICU 24 hours a day, seven days a week” without restriction. Id. at 6, ¶ 40. Patients in the ICU were left “alone in . . . unmonitored room[s]” and not provided with adequate security to protect them from assault. Id. at 6-7, ¶¶ 41-42. Plaintiff also alleges that there was a “pattern of violence” at Denver Health and that an “incapacitated patient ha[d] been sexually assaulted by Denver Health employees while at Defendant Denver Health's facility.” Id. at 10, ¶¶ 66-67.

         On or around September 16, 2016, plaintiff was sexually assaulted by an unknown male while she was a patient in the ICU. Id. at 4, ¶ 19. Plaintiff alleges that, at the time of the assault, she was “incoherent, would drift in and out of consciousness, . . . was unable to make sense of where she was or what was happening to her, ” and “was completely dependent on Defendant Denver Health to satisfy her basic human needs.” Id. at 3, ¶¶ 11, 13. She alleges that Denver Health's policy or practice of allowing unfettered access to incapacitated patients in the ICU was the proximate cause of her sexual assault. See Id. at 9-10, ¶¶ 57, 70.

         Plaintiff filed this lawsuit on September 15, 2017. Docket No. 1. In her operative complaint, plaintiff asserts five claims for relief: (1) a claim for municipal liability under 42 U.S.C. § 1983; (2) a Fourteenth Amendment substantive due process claim pursuant to the special relationship doctrine; (3) a Fourteenth Amendment substantive due process claim pursuant to the state-created danger doctrine; (4) a state-law negligence claim; and (5) a claim under Colorado's Premises Liability Act, Colo. Rev. Stat. § 13-21-115. Docket No. 13 at 8-12. On November 27, 2017, defendant moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Docket No. 16. Plaintiff filed a response on December 18, 2017, Docket No. 20, to which defendant replied on December 29, 2017. Docket No. 22.

         II. LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent, ” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).

         III. ANALYSIS

         A. Substantive Due Process Claim

         Plaintiff alleges substantive due process claims under the Fourteenth Amendment based on defendant's failure to take adequate measures to prevent plaintiff from being sexually assaulted while in the ICU. The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This guarantee consists of both procedural and substantive components. “In its substantive mode, the Fourteenth Amendment provides protection against arbitrary and oppressive government action, even when taken to further a legitimate governmental objective.” Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). This includes “protect[ing] against the exercise of governmental power that shocks the conscience.” Id.

         State actors are “generally only liable under the Due Process Clause for their own acts and not for private violence.” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). However, “there are two recognized . . . exceptions to this rule: (1) the special relationship doctrine; and (2) the ‘danger creation' theory.” Id. Plaintiff asserts that both exceptions apply in this case. See Docket No. 13 at 8-9; Docket No. 20 at 3, 7.

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