Baltierra v. Adams County

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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.]” (Id.)

         Around 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. (Id.)

         On 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.)

         On the 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. (Id.)

         On the 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 administered. (Id.)

         That 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.)

         Plaintiff 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 injury.

         Defendants 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.

         Additionally, 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.)

         LEGAL PRINCIPLES

         Rule 12(b)(6)

         The 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 citation omitted).

         In 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).

         I. ANALYSIS

         Plaintiff 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.

         A. DELIBERATE INDIFFERENCE

         1. Law

         Deliberate 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).

         Under 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.

         The 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 ...