United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTIONS TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motions to
Dismiss (Doc. ## 39, 40.) Both Motions are fully briefed.
(Doc. ## 54-57.) For the reasons that follow, the Court
grants both Motions.
March 20, 2016, Plaintiff began serving a criminal sentence
for DUI and careless driving at the Adams County Detention
Facility. (Doc. # 4 at 2.) That morning, at approximately
4:00 a.m., Plaintiff woke up to a sharp pain in his right
buttock. (Id.) Plaintiff alleges that he had a
pimple-sized bite mark on his buttock. Seeking assistance, he
contacted Defendants Russell, Weinstein, and Wright.
(Id. at 10.) Plaintiff was then informed that
“if it's not a life or death issue we are not
sending you down [to the nurse's station.]”
11:00 a.m., Plaintiff contacted Defendants Deal, Mohr, and
Holguin, and again complained of his worsening pain.
(Id. at 11.) At that time, the bump had grown to the
size of a fifty-cent piece. (Id.) Plaintiff was told
again that “if it's not a life or death issue we
are not sending you down [to the nurse's station.]”
(Id.) Throughout the evening of March 20, 2016,
Plaintiff complained to Defendants Russel, Weinstein, and
Wright as they periodically did their rounds. (Id.)
Plaintiff's requests for assistance were unsuccessful.
March 21, 2016, Plaintiff complained about his pain again to
Defendants Deal, Mohr, and Holguin. (Id.) Defendants
Deal, Mohr, and Holguin then escorted Plaintiff to see
Defendant Froncek in the nurse's station. (Id.)
When Plaintiff lowered his pants to show Defendant Froncek
the injury, Froncek allegedly laughed, as did Defendants
Deal, Mohr, and Holguin. (Id.) Defendants Castellano
and Romero were posted in the medical facility at that time
and Plaintiff believes they witnessed the event.
(Id. at 11-12.) Plaintiff asserts that throughout
the evening of March 21, he unsuccessfully pleaded with
Defendants Russell, Weinstein, and Wright to be taken back to
medical as the bump continued to grow. (Id. at 12.)
morning of March 22, Plaintiff discovered the injury had
grown to the size of a softball. (Id.) He complained
again to Defendants Russell, Weinstein, and Wright about his
injury. (Id.) Plaintiff was later taken to medical
and examined by Defendant Yellow, who noted a 1.5 inch by 1.5
inch bump on his buttock. (Id.) At that time,
Plaintiff was prescribed an antibiotic and painkillers by
Defendant Clower, and Defendant Clower also requested for a
specimen to be collected for further testing. (Id.)
Following Defendant Clower's order of antibiotic
treatment, Defendant Wisnieska attempted to administer the
antibiotic to Plaintiff. (Id.) Defendant Wisnieska
was allegedly unable to find a vein and, therefore, did not
administer the medication. (Id.) Plaintiff claims
Defendant Wisnieska told Plaintiff that she
“doesn't have time for you” and threw the IV
bag at him. (Id. at 13.) Plaintiff believes
Defendants Endres and Skalak were posted in medical at that
time and witnessed the event, but took no action.
morning of March 23, Plaintiff's cellmates contacted the
medical emergency line and stated Plaintiff was having chest
pains so that he would be sent to medical. (Id.)
Defendants Russell, Weinstein, and Brown responded, and
Plaintiff was examined by Defendant Ostrom. (Id.)
Defendant Clower ordered a second dose of antibiotics to be
administered and Defendant Ostrom reported that it was
afternoon, Defendant Froncek reported that despite the
administration of an IV, Plaintiff's condition was worse
and Plaintiff needed to go to the hospital. (Id.)
Defendant Jones then completed a history and physical with
Plaintiff, and Defendant Wisnieska reported that Plaintiff
was being sent to the emergency room for wound care.
(Id.) As a result of the infection, Plaintiff's
right buttock had to be amputated to remove the necrotic
tissue. (Id. at 14.)
asserts four claims against the various Defendants: (1)
failure to provide medical care and treatment; (2) municipal
liability; (3) supervisory liability for failure to train and
supervise; (4) and medical negligence causing serious bodily
Sherriff Michael McIntosh, Gary Russell, John Weinstein,
Joshua Wright, Patrick Deal, Adam Mohr, Adan Holguin, Gary
Brown, James Castellano, Dominic Romero, Brandon Skalak, Ryan
Endres, and Adams County, Colorado (“County
Defendants”) filed a Motion to Dismiss on July 24,
2018. (Doc. # 39.) Plaintiff filed a Response (Doc. # 54) on
October 3, 2018, and the County Defendants filed a Reply
(Doc. # 56) on October 17, 2018.
Defendants Corizon Health, Inc., Benjamin Clower, Stephanie
Ostrom, Barbara Wisnieska, James Froncek, and Tiffany Jones
(“Corizon Defendants”) filed a Motion to Dismiss
on July 24, 2018. (Doc. # 40.) The Corizon Defendants are not
moving for dismissal of Plaintiff's negligence claims at
this time, but they are seeking dismissal of the deliberate
indifference and municipal liability claims. (Id. at
3.) Plaintiff filed a Response (Doc. # 55) on October 3,
2018, and the Corizon Defendants filed a Reply on October 17,
2018. (Doc. # 57.)
purpose of a motion to dismiss for failure to state a claim
under Rule 12(b)(6) is to test “the sufficiency of the
allegations within the four corners of the complaint.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). A complaint will survive such a motion only if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For a motion to
dismiss, “[t]he question is whether, if the allegations
are true, it is plausible and not merely possible that the
plaintiff is entitled to relief under the relevant
law.” Christy Sports, LLC v. Deer Valley Resort
Co., 555 F.3d 1188, 1192 (10th Cir. 2009). The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and
reviewing a Rule 12(b)(6) motion, a court “must accept
all the well-pleaded allegations of the complaint as true and
must construe them in the light most favorable to the
plaintiff.” Williams v. Meese, 926 F.2d 994,
997 (10th Cir. 1991). Nevertheless, a complaint does not
“suffice if it tenders ‘naked assertion[s]'
devoid of ‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557).
brings claims of deliberate indifference against all
Defendants. Plaintiff's municipal liability claims apply
specifically to the County Defendants and Defendant Corizon
Heath, Inc. Plaintiff's supervisory liability claim for
failure to train and supervise is only against Defendant
Sherriff Michael McIntosh.
indifference to the serious medical needs of prisoners
violates the Eighth Amendment. Redmond v. Crowther,
882 F.3d 927, 939 (10th Cir. 2018) (citing Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976)). Such a claim
involves an objective component and a subjective component.
Redmond, 882 F.3d at 939; see Self v. Crum,
439 F.3d 1227, 1230-31 (10th Cir. 2006). The objective
component requires showing the alleged injury is
“sufficiently serious.” Crum, 439 F.3d
at 1230. For example, a “lifelong handicap, permanent
loss, or considerable pain” may satisfy the substantial
harm requirement. Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005).
the subjective inquiry, a plaintiff must establish that the
defendant had a “sufficiently culpable state of
mind.” Crum, 439 F.3d at 1230-1231; see
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In
describing the subjective component, the Supreme Court made
clear that a prison official cannot be liable “unless
the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Id.; Farmer, 511
U.S. at 837.
subjective component is akin to “recklessness in the
criminal law, ” where, to act recklessly, a
“person must ‘consciously disregard' a
substantial risk of serious harm.” Id.;
Farmer, 511 U.S. at 837, 839 (quoting Model Penal
Code § 2.02(2)(e)). Whether a prison official had the
requisite knowledge of a substantial risk is a question of
fact subject to demonstration by, inter alia, an
inference from circumstantial evidence. Id. For
example, the fact that a serious medical need was
“obvious” could be evidence of ...