United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the following motions on the
(1) Motion to Dismiss Amended Complaint for Failure
to State a Claim [#34],  filed by Defendants Denver
Health and Hospital Authority (“Denver Health”),
Peter Crum, M.D., (“Crum”), Valerie Snyder,
L.P.N. (“Snyder”), Marcellina Rosales, L.P.N.,
(“Rosales”), Ann Jacobson, L.P.N.
(“Jacobson”), and Glen McCoy
(“McCoy”) (the “Medical Defendants'
Motion”); and (2) Motion to Dismiss
Plaintiff's Amended Complaint [#35], filed by
Defendant City and County of Denver (“Denver”)
(the “Denver Motion”). Plaintiff filed Responses
[#47, #48] in opposition to the Motions, and Defendants filed
Replies [#51, #52]. The Court has reviewed the Motions, the
Responses, the Replies, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
Based on the following, the Motions [#34, #35] are
Todd Weitzman initiated this lawsuit pursuant to 42 U.S.C.
§ 1983 on November 13, 2017. Compl. [#1].
Plaintiff filed an Amended Complaint and Jury Demand [#30]
(the “Amended Complaint”) on March 22, 2018,
which is the operative pleading in this case. Plaintiff's
claims arise from his pre-trial detainment at the Van
Cise-Simonet Detention Center (“VCSDC”) between
September of 2015 and December 12, 2015. Am. Compl.
[#30] ¶ 21-51. Plaintiff generally alleges that medical
staff at VCSDC failed to address his complaints of a skin
rash and vision loss which turned out to be symptoms of
ocular syphilis with which Plaintiff was diagnosed after his
release. See generally id. Plaintiff brings his
claims against Denver, Denver Health, and individual
employees of Denver Health which include Defendants Crum,
Snyder, Rosales, Jacobson, McCoy, Joshua McFerrin
(“McFerrin”),  and Denver Health Medical Center Jane
Doe 1 (“Jane Doe”). See generally id.
alleges the following facts as the basis for his
claims. In September 2015, Plaintiff was arrested
and charged with a misdemeanor. Am. Compl. [#30]
¶ 21. While awaiting disposition of his case, Plaintiff
was booked into VCSDC. Id. During his initial intake
interview with VCSDC medical staff, Plaintiff disclosed his
known medical issues but did not indicate any problems with
his eyes. Id. ¶ 24. Shortly after being
admitted at VCSDC, Plaintiff began experiencing medical and
psychological issues. Id. ¶ 25. Plaintiff was
directed to submit a written notice, known as a “kite,
” to advise medical staff of these issues. Id.
Plaintiff began sending many kites to the medical staff for
his various medical issues which included difficulties
getting medication, pain for preexisting conditions like
ulcerative colitis, back and foot pain, and night terrors.
Id. ¶ 26. Approximately two months into his
detention, Plaintiff was moved into a segregated housing unit
for his own protection and because his night terrors had been
disturbing other inmates. Id. ¶ 27. Plaintiff
states that, after the move, he continued to have issues
getting his medication in a timely manner and in the correct
doses. Id. ¶ 28. Because Plaintiff's kites
failed to resolve these issues, Plaintiff was forced to file
a grievance against one of the nurses at VCSDC. Id.
¶ 28-29. Plaintiff alleges that, after this grievance
was filed, a pattern began where many of his requests for
medical attention were “flatly ignored or brushed off,
” and his attempts to schedule a doctor's
appointment became very difficult. Id. ¶ 29.
around November 5, 2015, Plaintiff had an appointment with
Defendant Crum during which they discussed the issues
Plaintiff was experiencing with his ulcerative colitis, back
pain, and pain from a poorly healed broken foot. Id.
¶ 30. Subsequently, Plaintiff was scheduled for a
follow-up appointment on November 19, 2015. Id.
about November 10, 2015, Plaintiff complained of a bad rash
covering his body to a deputy who agreed that the rash
“looked serious.” Id. ¶ 31. The
deputy notified Plaintiff that he would have to send a kite
to seek attention for the rash, which Plaintiff promptly did.
Id. ¶ 32. According to Plaintiff, this kite was
addressed by Defendant Rosales on or around November 11,
2015. Id. ¶ 33. Defendant Rosales' only
proposed treatment plan for Plaintiff's rash was for him
to be evaluated in approximately three weeks, on December 1,
2015. Id. ¶ 33.
around November 15, 2015, Plaintiff submitted another kite in
which he indicated that he was beginning to experience
blurred vision and that his rash was getting worse and
spreading. Id. ¶ 34. This kite was addressed by
Defendant Snyder on November 16, 2015, who provided Plaintiff
with a note of her assessment. Id. ¶ 35.
Plaintiff states that Defendant Snyder's assessment
confirmed that Plaintiff's rash had spread “all
over his body” and that he had been using a cream for
his rash since November 3, 2015, without improvement.
Id. ¶ 35. With regard to his blurred vision,
however, Plaintiff avers that Defendant Snyder failed to even
acknowledge or address this issue. Id. ¶ 36.
Plaintiff further states that Defendant Snyder reminded
Plaintiff about his November 19, 2015 follow-up appointment
with Defendant Crum. Id. ¶ 37.
November 19, 2015 follow-up appointment with Defendant Crum
was “abruptly cancelled without explanation” on
an unspecified date. Id. ¶ 38. This appointment
was rescheduled on November 23, 2015. Id. ¶ 39.
During Plaintiff's follow-up appointment, Plaintiff
explained the issues he was having with his eyesight.
Id. ¶ 39. Defendant Crum agreed that Plaintiff
should see an ophthalmologist but decided that they should
wait a week before contacting such a specialist. Id.
Plaintiff “was very concerned about having to wait a
week, ” but decided to trust and defer to Defendant
Crum's medical judgment. Id. ¶ 41.
returning from this appointment, Plaintiff sent another
medical kite which indicated that he was seeing black spots
in one of his eyes and that his rash was continuing to get
worse. Id. ¶ 42. Plaintiff states: “the
only indication that this kite was ever even seen by medical
personnel is Defendant Ann Jacobson's stamped signature
in the ‘triage box' in one corner, where she
checked the box designating [Plaintiff's] kite as
‘routine' although it should have been anything
but.” Id. ¶ 43. Plaintiff further alleges
that the assessment notes did not address his complaint about
seeing black spots in one of his eyes and that there was no
indication that Defendant Jacobson reported or addressed this
request for medical attention. Id.
around December 3, 2015, Plaintiff sent another medical kite
to report that he was losing vision in one eye and that he
was really concerned about his vision. Id. ¶
44. Defendant McCoy acknowledged Plaintiff's complaint
about his vision by writing, “[patient] states that
[he] is having problem seeing out of R Eye (sic).”
Id. Defendant McCoy prepared a treatment plan for
Plaintiff, scheduling an appointment for December 12, 2015.
Id. ¶ 45. However, Plaintiff was scheduled to
be released on December 12, 2015, “a fact which he
repeatedly told medical staff at the jail.”
submitted his final kite on December 9, 2015, in which he
indicated that he was almost completely blind in his right
eye and that he was beginning to lose his vision in his left
eye. Id. ¶ 46. He also noted in the kite that,
although Defendant Crum had advised on November 23, 2015,
that they wait one week to contact an ophthalmologist, nurses
had scheduled Plaintiff for a follow-up appointment three
weeks later. Id. ¶ 46. Plaintiff alleges that,
despite the issues raised in his kite, Defendant McFerrin
wrote the following in his assessment: “[inmate]
walking around pod in no apparent distress. Not favoring one
eye over the other.” Id. ¶ 47. Plaintiff
further alleges that Defendant McFerrin's assessment
stated that “[inmate] states no complaints when
asked” which, according to Plaintiff, was false given
that Plaintiff “was panicked about his rapidly
deteriorating eyesight and Denver Health's apparent
unwillingness to do anything about it.” Id.
¶ 47. Additionally, Plaintiff avers that Defendant
McFerrin reiterated the fact that Plaintiff had a
doctor's appointment on December 21, 2015, nine days
after his scheduled release date. Id. ¶ 48.
According to Plaintiff, Defendant McFerrin falsely reported
that Plaintiff stated this date was “fine.”
unspecified date shortly thereafter, Plaintiff gave an inmate
message form to an unidentified deputy which indicated that
Plaintiff was 90% blind in his right eye and that he was not
receiving the treatment he was told he would receive.
Id. ¶ 49. Plaintiff alleges that this deputy
“[c]allously . . . wrote [back] ‘RN wants you to
kite! Does not cost to kite. Cost's [sic] to be
seen” and returned the message without delivering it to
medical staff. Id. ¶ 50. No additional facts
are alleged with respect to this incident.
December 12, 2015, Plaintiff was released from VCSDC without
ever having seen Defendant Crum again or having seen a
specialist. Id. ¶ 51. Soon after his release,
Plaintiff's personal doctor referred him to a specialist
at the Denver Retina Center who immediately diagnosed
Plaintiff with ocular syphilis. Id. ¶¶
52-53. Plaintiff's diagnosis was confirmed and he was
admitted to Rose Medical Center for two weeks of aggressive
antibiotic treatment. Id. ¶ 54. Although the
antibiotic treatment stopped the progress of the infection
and the deterioration of Plaintiff's eyesight, he states
that his previous vision loss could not be reversed.
Id. ¶ 55. Ultimately, Plaintiff was diagnosed
with three conditions, all of which were caused by the ocular
syphilis: (1) pseudopapilledema of the optic disc of his
right eye; (2) toxic maculopathy in his right eye; and (3)
lattice degeneration of the retina in his left eye.
Id. ¶ 56.
alleges that he has lost 70% of the vision in his right eye
and that his preexisting nearsightedness has gotten worse
because of Defendants' deliberate indifference to his
serious medical needs. Id. ¶ 57. Plaintiff
believes that, if he had been allowed to see a specialist in
a timely manner, his eyesight could have been saved.
Id. ¶ 58. Plaintiff further states that,
because of this incident, he continues to require intensive
medical treatment, his ability to work has been limited, and
that he suffers from deep depression. Id.
asserts three claims for relief: (1) a Fourteenth Amendment
Claim for failure to provide medical care and treatment
against all the individual Defendants (Claim One); (2) a
§ 1983 municipal liability claim for failure to train
and supervise against Defendants Denver and Denver Health
(Claim Two); and (3) a § 1983 claim for supervisory
liability for failure to train and supervise against
Defendants Crum and Jane Doe (Claim Three). Am.
Compl. [#30] ¶¶ 70-95.
Medical Defendants' Motion [#34] seeks to dismiss (1)
Plaintiff's first claim against Defendants Crum, Snyder,
Rosales, Jacobson, and McCoy; (2) Plaintiff's second and
only claim against Defendant Denver Health; and (3)
Plaintiff's third claim against Defendant
Crum. The Denver Motion [#35] seeks to dismiss
Plaintiff's second and only claim against Defendant
Standard of Review
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n] [ ]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks
Defendant Crum (Official Capacity)
initial matter, the Court notes that “[a]n action
against a person in his official capacity is, in reality, an
action against the government entity for whom the person
works.” Pietrowski v. Town of Dibble, 134 F.3d
1006, 1009 (10th Cir. 1998). Thus, “where a suit
contains both entity and official capacity claims, the only
defendant is the entity.” Doe v. Douglas Cnty. Sch.
Dist., 775 F.Supp. 1414, 1416 (D. Colo. 1991).
“Naming either is sufficient. Naming both is
redundant.” Stump v. Gates, 777 F.Supp. 808,
816 n.3 (D. Colo. 1991).
Plaintiff has named Defendant Crum in his individual and
official capacities as an employee of Denver Health. See
Am. Compl. [#30]. Defendant Crum is named in
Plaintiff's claim for Fourteenth Amendment deliberate
indifference (Claim One) and Plaintiff's claim for §
1983 supervisory liability (Claim Three). Plaintiff's
§ 1983 claim for municipal liability (Claim Two) is
asserted only against Defendants Denver Health and Denver.
Accordingly, the Court construes Claims One and Two as being
asserted against Defendant Crum in his individual capacity
only. To the extent that Plaintiff names Defendant Crum in
his official capacity regarding either claim, the Court finds
that doing so would be duplicative of Claim Two against
Defendant Denver Health. See Atwell v. Gabow, Civ.
No. 07-cv-2063-JLK, 2008 U.S. Dist. LEXIS 31861, at *18-19
(D. Colo. March 31, 2008) (“claims against [the
individual defendants] in their ‘official
capacities' are claims against Denver Health and need not
be separately stated”); Drake v. City and
County of Denver, 953 F.Supp. 1150 (D. Colo. 1997)
(a suit against a governmental entity employee in his
“official capacity” is the same as a suit against
the entity, and the naming of both as defendants is in a
lawsuit under § 1983 is redundant).
Claim One: Fourteenth Amendment Failure to Provide Medical
Care and Treatment Claim
Claim One, Plaintiff alleges that Defendants Crum, Snyder,
Rosales, Jacobson, McCoy, McFerrin, and Jane Doe, in their
individual capacities, violated Plaintiff's Fourteenth
Amendment right to be free from deliberate indifference to
his known serious medical needs. Am. Compl. [#30]
¶ 73, 77. Plaintiff generally asserts that “[e]ach
individual Defendant knew or should have known that
deliberately disregarding Plaintiff's repeated,
unambiguous assertions that he was losing his vision posed a
substantial risk of serious harm to Plaintiff's safety;
yet Defendants' deliberately disregarded that obvious,
substantial risk, and failed to take reasonable measures to
protect Plaintiff from that risk.” Id. ¶
74. The Medical Defendants, consisting of Defendants Crum,
Snyder, Rosales, Jacobson, and McCoy, argue that: (1)
Plaintiff fails to adequately allege a cause of action for
deliberate indifference; and (2) they are entitled to
qualified immunity on Plaintiff's Fourteenth Amendment
deliberate indifference claim. Medical Defendants'
Motion [#34] at 5-11.
doctrine of qualified immunity “shields government
officials performing discretionary functions from liability
‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Boles v.
Neet, 486 F.3d 1177, 180 (10th Cir. 2007) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Court's analysis of qualified immunity in the context of
a Rule 12(b)(6) motion involves two inquiries. The Court must
determine whether the alleged facts taken in the light most
favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). The Court must also consider whether the
plaintiff has shown that “the constitutional right was
clearly established at the time of the alleged unlawful
activity.” Swanson v. Town of Mountain View,
Colo., 577 F.3d 1196, 1199 (10th Cir. 2009) (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The
Court may assess these inquiries in either order.
Pearson, 555 U.S. at 236.
Tenth Circuit has stated that a pretrial detainee's
Fourteenth Amendment deliberate indifference claim of
inadequate medical care should be evaluated pursuant to the
standards set by the United States Supreme Court in
Estelle v. Gamble, 429 U.S. 97 (1976), which
concerned a convicted prisoner's Eighth Amendment
deliberate indifference claim. Blackmon v. Sutton,
734 F.3d 1237, 1244 (10th Cir. 2013) (stating that pretrial
detainees are owed “at least the same standard of care
prison officials owe convicted inmates”); see Perry
v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018)
(“Pretrial detainees are protected under the Due
Process Clause rather than the Eighth Amendment. In
determining whether [pretrial detainee's] rights were
violated, however, we apply an analysis identical to that
applied in Eighth Amendment cases brought pursuant to §
1983.” (quoting Lopez v. LeMaster, 172 F.3d
756, 759 n.2 (10th Cir. 1999)). Because detainees “must
rely on prison authorities to treat [their] medical needs,
” the Supreme Court has held that “deliberate
indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain' proscribed by the Eighth Amendment.”
Estelle, 429 U.S. at 103-04 (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). The test for
deliberate indifference is both objective and subjective, in
that a detainee must establish that: (1) he was deprived of a
medical need that is, objectively, “sufficiently
serious, ” and (2) that the defendant subjectively knew
of and disregarded “an excessive risk to [the
detainee's] health or safety.” Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994).
Objective Prong: ...