Weitzman v. City and County of Denver

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the following motions on the (1) Motion to Dismiss Amended Complaint for Failure to State a Claim [#34], ^[1] 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”)^[2] (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 GRANTED.^[3]

         I. Background

         Plaintiff 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”), ^[4] and Denver Health Medical Center Jane Doe 1 (“Jane Doe”). See generally id.

         Plaintiff alleges the following facts as the basis for his claims.^[5] 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.

         On or 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.

         On or 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.

         On or 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.

         The 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.

         After 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.

         On or 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.” Id.

         Plaintiff 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, ^[6] 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.” Id.

         On an 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.

         On 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.

         Plaintiff 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. ¶¶ 59-61.

         Plaintiff 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.

         The 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.^[7] The Denver Motion [#35] seeks to dismiss Plaintiff's second and only claim against Defendant Denver.

         II. Standard of Review

         The 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)).

         “A 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).

         To 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 omitted).

         III. Analysis

         A. Defendant Crum (Official Capacity)

         As an 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).

         Here, 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).

         B. Claim One: Fourteenth Amendment Failure to Provide Medical Care and Treatment Claim

         In 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.

         The 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.

         The 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).^[8]

         1. Objective Prong: ...