United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
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
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.
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.
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, ¶¶
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
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).
Substantive Due Process Claim
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.
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.