United States District Court, D. Colorado
RODNEY JARAMILLO, personally and as Personal Representative of the Estate of Joseph Jaramillo, deceased, Plaintiff,
DEPUTY CHRISTIAN CRAIN, in his individual capacity, DEPUTY NICHOLAS CARDINAL, in his individual capacity, and SHERRY BACA, in her individual capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M Tafoya United States Magistrate Judge
case comes before the court on “Defendant Sherry
Baca's Motion to Dismiss” (Doc. No. 26 [Baca's
Mot.], filed May 11, 2018). Plaintiff filed his response on
June 20, 2018 (Doc. No. 39 [Resp. Baca's Mot.]), and
Defendant Baca filed her reply on June 29, 2018 (Doc. No. 41
before the court is the “Motion to Dismiss” filed
by Defendants Crain and Cardinal (Doc. No. 29 [Crain's
Mot.], filed May 14, 2018). Plaintiff filed his response on
June 20, 2018 (Doc. No. 40 [Resp. Crain's Mot.]), and
Defendants Crain and Cardinal filed their reply on July 3,
2018 (Doc. No. 42 [Crain's Reply]).
OF THE CASE
filed this case on February 27, 2018, asserting claims
against Deputies Christian Crain and Nicholas Cardinal and
EMT Sherry Baca. (Doc. No. 1 [Compl.].) Plaintiff sues the
defendants personally and as personal representative of the
Estate of Joseph Jaramillo, who was an inmate housed at the
Pueblo County Detention Facility. (Id. at 1.)
alleges on February 23, 2016, Defendant Crain yelled at
Joseph Jaramillo (“Mr. Jaramillo”) to return to
his bunk from the shower area in his dorm. (Id.,
¶ 10, 11.) Plaintiff states Mr. Jaramillo flipped off
Deputy Crain and proceeded to undress for his shower.
(Id., ¶ 11.) Plaintiff alleges that Mr.
Jaramillo stepped into the shower, and Deputy Crain again
yelled at him to return to his bunk. (Id.) Plaintiff
alleges Defendant Crain “enlisted the help of Deputy
Cardinal to take Mr. Jaramillo out” and the two
defendants “stormed the shower area.”
(Id., ¶ 13.) Plaintiff alleges Defendants Crain
and Cardinal “grabbed Mr. Jaramillo aggressively and
both took him to the ceramic floor” where Mr.
Jaramillo's “head impacted the floor and the
concrete area.” (Id.) Plaintiff contends
Defendants Crain and Cardinal continued to assault Mr.
Jaramillo even after he lost consciousness. (Id.)
Plaintiff claims “Defendants Crain and Cardinal
continued to assault the compliant Mr. Jaramillo with
physical force.” (Id.) Mr. Jaramillo allegedly
requested assistance from medical four hours later with
complaints of “unrelenting head pain.”
(Id., ¶ 15.) Plaintiff states a treating nurse
ignored Mr. Jaramillo's “swelling head
injury” and gave him ibuprofen. (Id.)
states twelve hours later, Defendant Baca responded to Mr.
Jaramillo's continued complaints of “extraordinary
head pain.” (Id., ¶ 16.) Plaintiff
alleges Ms. Baca “did a cursory and generally
indifferent assessment” that revealed Mr. Jaramillo
could not place his chin to his chest. (Id.)
Plaintiff claims the inability to put one's chin to his
chest is “medical emergency, indicative of swelling and
possible bleeding inside the brain” and that Defendant
Baca ignored those signs by giving Mr. Jaramillo more
ibuprofen and then leaving. (Id.)
alleges Defendants Baca and Crain subsequently observed Mr.
Jaramillo screaming for help at 4:45 a.m. on February 24,
2016, and elected to do nothing. (Id., ¶ 17.)
Mr. Jaramillo allegedly collapsed in his cell ten minutes
later. (Id.) Plaintiff alleges ten minutes after Mr.
Jaramillo collapsed, Defendant Baca entered the cell to check
Mr. Jaramillo's blood sugar. (Id.) Plaintiff
states Mr. Jaramillo was unconscious, suffering respiratory
failure, and unresponsive. (Id.) Mr. Jaramillo never
regained consciousness and later died on February 29, 2016,
when he was removed from life support. (Id., ¶
18.) Plaintiff states Mr. Jaramillo died of a subdural
hematoma and associated extensive, untreated brain bleeding
and swelling. (Id.)
filed this survival action pursuant to 42 U.S.C. §
asserting one claim for excessive force under the Eighth
Amendment against Defendants Crain and Cardinal and one claim
for failure to provide medical care and treatment under the
Eighth Amendment against Defendants Crain and Baca.
(Id. at 7-10.) All defendants move to dismiss
Plaintiff's claims for failure to state a claim upon
which relief can be granted. (See Baca's Mot.;
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusion, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
Moreover, “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (citation omitted).
evaluating a Rule 12(b)(6) motion to dismiss, courts may
consider not only the complaint itself, but also attached
exhibits and documents incorporated into the complaint by
reference. Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009) (citations omitted). “[T]he
district court may consider documents referred to in the
complaint if the documents are central to the ...