United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS PLAINTIFF'S THIRD AMENDED PRISONER COMPLAINT
(DKT. #95 AND #129)
N.
Reid Neureiter, United State Magistrate Judge.
This
case is before the Court pursuant to Orders issued by Judge
Raymond P. Moore (Dkt. #96 and #135) referring Defendants
Correctional Health Partners (“CHP”) and Mary
Margaret Towne's Motions to Dismiss Plaintiff's Third
Amended Prisoner Complaint. (Dkt. #95 and #129.) The Court
has carefully considered the motions, Plaintiff John
Stoops' responses (Dkt. #128 and #136), and CHP and Ms.
Towne's replies. (Dkt. #134 and #138.) On May 2, 2019,
the Court heard argument on the subject motions. (Dkt. #171.)
The Court has taken judicial notice of the Court's file,
and considered the applicable Federal Rules of Civil
Procedure and case law. Being fully informed, and for the
reasons addressed more fully herein, the Court RECOMMENDS
that the motions to dismiss (Dkt. #95 and #129) be
GRANTED.[1]
I.
BACKGROUND
The
following allegations are taken from Mr. Stoops' Third
Amended Prisoner Complaint. (Dkt. #94.) Mr. Stoops is a
prisoner in the custody of the Colorado Department of
Corrections (“CDOC”) at the Sterling Correctional
Facility (“SCF”) in Sterling, Colorado. He
asserts that on June 9, 2015, he had an epileptic seizure
while pushing a food cart, and as a result he fell and broke
his hip. (Id. at 5 and 7.) Although that same day he
was taken to SCF Clinical Services in a wheelchair, he
ultimately was sent back to his living unit without his hip
being treated.
Mr.
Stoops alleges that despite asking various SCF staff that his
hip be examined over the next few days, and filing “at
least six” medical kites, “[m]edical refused to
examine [him], ” and he was not called back to SCF
Clinical Services until June 13, 2015, when he was given a
wheelchair. (Id. at 5.) According to Mr. Stoops,
this delay “force[d] [him] to walk on a broken hip from
6-9-2017 [sic] until 6-13-15, ” and “turn[ed] a
hairline fracture into a major break requiring a hip
replacement.” (Id., and at 8 ¶ 7.) On
June 14, 2015, he was taken by ambulance to Denver Health
Medical Center (“Denver Health”). (Id.
at 6.) There, Mr. Stoops alleges that two physical therapists
“broke [his] hip worse by yanking me in the air, using
belts they had attached to the [sic] my waist and having me
hold on to a walker.” (Id. at 6 and 11-12.) He
states he landed on his broken hip and screamed in pain. Mr.
Stoops was then transferred to Denver Health's
Correctional Care Unit, where he waited “more than 48
hrs, ” or until June 16, 2015, before undergoing hip
replacement surgery. (Id. at 6 and 11 ¶ 25.)
Mr. Stoops asserts it was “Denver Health Care [that]
refused to operate until 6-16-15.” (Id. at 6.)
A.
Plaintiff's Claim against CHP
CHP is
an organization that is allegedly responsible for reviewing
and approving medical treatment for CDOC inmates. Mr. Stoops
has asserted one claim against CHP, alleging it violated his
Eighth Amendment Constitutional right to be free from cruel
and unusual punishment due to the alleged delay in treatment
and surgery for his broken hip. (Id. at 13.)
Although not entirely clear, this claim appears to be
premised on CHP knowing “there was a problem with the
medical department” at SCF, but not doing anything to
correct it. (Id. ¶ 28.) He asserts that after
physicians at the Sterling hospital tell SCF that an inmate
needs surgery, the inmate nevertheless has to wait for the
surgery because the CHP “has not okayed it.”
(Id. ¶ 29.) According to Mr. Stoops,
“[b]ecause of the defendants' failure to take care
of the problems and make changes that exist in S.C.F. medical
dept., I was forced to suffer and have to live with
repercussions of that incident for the rest of my
life.” (Id.)
Mr.
Stoops further alleges that “[e]ach of the above named
defendants [presumably including CHP] is in [a] position of
power and/or authority to make changes in this facility's
[i.e. SCF's] way of doing things when it comes to medical
care, but do nothing about it.” (Id. at 14
¶34.) This, according to Mr. Stoops, allows “the
[SCF] medical staff . . . [to] break the law.”
(Id.) With respect to CHP, Mr. Stoops specifically
alleges that it “has the authority to choose who they
insure, and though there have been several complaints
involving the above named defendants C.H.P. continues to
insure them. Without their [CHP's] insurance they could
not work here.” (Id. ¶ 36.)
In his
response brief, Mr. Stoops states he “not only
allege[s] that C.H.P. was in violation of my constitutional
rights by not doing anything about the quality of medical
care received at the S.C.F. [and] by not doing anything as an
insurance provider, but also [that] . . . C.H.P.[] fail[ed]
to schedule inmates medical care in a timely manner.”
(Dkt. #128 ¶ 5.) He argues “the time delay, as
well as the numerous denials, from CHP, constitutes an
unwritten rule.” (Id. ¶ 16.)
CHP
argues that Mr. Stoops has failed to state a claim against it
because Mr. Stoop's complaint “lacks adequate
factual allegations” in three respects. (Dkt. #95 at
2.) Specifically, CHP asserts Mr. Stoops has failed to
adequately allege (1) “CHP's participation in an
allegedly unconstitutional custom, practice, or policy of
CDOC, ” (2) “CHP's alleged deliberate
indifference, ” or (3) “how CHP could possibly
have been in a position to act to remedy the alleged
constitutional violations Plaintiff claims he
suffered.” (Id.)
B.
Plaintiff's Claims Against, and Service on, Nurse
Towne
In
neither his original complaint dated June 5, 2017, nor in his
next two Amended Prisoner Complaints dated July 5, 2017 and
October 2, 2017, respectively, did Mr. Stoops name Defendant
Mary Margaret Towne (Nurse Towne) as a defendant. (Dkt. ##1,
7, and 12.) Instead, these early complaints simply identified
two Jane Doe physical therapists who worked for Denver
Health, indicating they were being sued both in their
personal and official capacities. Mr. Stoops did not sue
Denver Health.
On
January 9, 2018, the Court issued a show cause order with
respect to the two Jane Doe physical therapists, and set a
show cause hearing on March 19, 2018. (Dkt. #37.) The Court
reminded Mr. Stoops that “it is [his] responsibility to
name and serve any party he wishes to include as a defendant
in this lawsuit.” (Id.) After being granted
leave on April 6, 2018 to further amend his complaint (Dkt.
#53), Mr. Stoops filed an amended complaint on April 19, 2018
that for the first time named “Mary Margaret” and
“D. Towne” as the Jane Doe physical therapists
who worked for Denver Health.
On
November 14, 2018, the Court again granted Mr. Stoops leave
to amend (Dkt. #93), and accepted his third amended
complaint-the operative pleading in this case. (Dkt. #94.)
The November 14, 2018 amended complaint sued Nurse Towne in
her individual capacity, although it still incorrectly
identified her as two separate individuals, Mary Margaret and
D. Towne. Significantly, however, Nurse Towne had not yet
been served. It was not until January 14, 2019, that the
amended complaint was served on Nurse Towne by serving it on
Denver Health. (Dkt. ##121-22.)
Mr.
Stoops asserts two claims against Nurse Towne based on
alleged violations of his Eighth Amendment rights that
occurred on June 14, 2015. Nurse Towne argues that under the
applicable two-year statute of limitations, [2] Mr. Stoops'
claims against her are time barred because he did not
designate her as a defendant until April 19, 2018, nearly
three years after the conduct he complains of, and that his
substitution of her for the original Jane Does constitutes a
change in the party sued and therefore does not relate back
for purposes of Fed.R.Civ.P. 15(c)(1)(C). (Dkt. #129 at 6-8.)
She also asserts that, even if Mr. Stoops' claims against
her were timely, they nonetheless still fail and should be
dismissed because Nurse Towne is entitled to qualified
immunity.
II.
LEGAL STANDARDS
A.
Pro Se Plaintiff
Mr.
Stoops is proceeding pro se. The Court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that a plaintiff can
prove facts that have not been alleged, or that a defendant
has violated laws in ways that a plaintiff has not alleged.
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). See
also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff's complaint”);
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (the court may not “construct
arguments or theories for the plaintiff in the absence of any
discussion of those issues”). A plaintiff's pro se
status does not entitle him to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th
Cir. 2002).
B.
Failure to State a Claim Upon Which Relief Can Be
Granted
Federal
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) (citations and quotation marks omitted).
“A
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, 935 F.2d at1198. “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
conclusions, 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.
However,
the court need not accept conclusory allegations without
supporting factual averments. Southern 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 ...