Stoops v. Larson

          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 ...