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Hartwell v. Correctional Medical Group Companies Inc.

United States District Court, D. Colorado

July 1, 2019

KEVIN HARTWELL and BARBARA HARTWELL, Plaintiffs,
v.
CORRECTIONAL MEDICAL GROUP COMPANIES INC., d/b/a SOUTHWEST CORRECTIONAL MEDICAL GROUP, LLC, d/b/a SOUTHWEST CORRECTIONAL MEDICAL GROUP PLLC, d/b/a COLORADO CORRECTIONAL MEDICAL GROUP, PLLC DOUGLAS COUNTY, TIMOTHY G. MOSER, MD, in his individual and official capacity, SOPHIA NIX, LPN, in her individual and official capacity, DAISHA WADE, LPN, in her individual and official capacity, STEPHANIE RUSSAK, RN, CHARGE NURSE, in her individual and official capacity, JESSICA ISAACS, RN, in her individual and official capacity, DEIMYS VIGIL, RN, in her individual and official capacity, LINDSEY GYGER, RN, in her individual and official capacity, EMILY BARRON, RN, in her individual and official capacity, KATHRYN DAVIDSON, LPN, in her individual and official capacity, JENNIFER TRIMBLE a/k/a GLENN, RN, HSA, in her individual and official capacity, Defendants.

          ORDER - MOTION TO DISMISS SECOND AMENDED COMPLAINT

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         Defendant Douglas County moves to dismiss the Second Amended Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The motion is granted in part and denied in part.

         BACKGROUND

         Kevin Hartwell had a history of hypertension, diabetes and seizures when he was arrested and taken to the Douglas County Jail on November 10, 2016. He alleges that during the 20 days he remained in the jail medical personnel did not provide medications and dosages prescribed by his primary care physician, and that he experienced dangerous elevations in blood sugar and blood pressure, seizure, and ultimately, a serious disorder called status epilepticus. Finally, Mr. Hartwell was transported to a hospital, but plaintiff alleges that this came too late to avoid permanent brain damage and other consequences.

         Douglas County contracted with the Correctional Medical Group Companies, Inc. (“CMGC”) to provide medical care for inmates in its jail.[1] On September 20, 2017 Mr. and Mrs. Hartwell filed the present case against CMGC, Douglas County and several of their respective employees or agents on various constitutional and state law theories. Complaint, ECF No. 1. The Douglas County defendants moved to dismiss. ECF No. 21. That motion was briefed but became moot upon the filing of plaintiffs' First Amended Complaint.

         The Douglas County defendants again moved to dismiss. ECF No. 78. Following briefing, I issued an order granting the motion in part and denying it in part. ECF No. 109. I noted that the Douglas County defendants do not practice medicine, and that CMGC would have to answer for any failure of its obligation to provide adequate medical care. However, I also held that Douglas County's ultimate constitutional duty to provide adequate medical care to the inmates in its jail was non-delegable, meaning that if CMGC were found liable, Douglas County would also be liable. Id. at 2. I found that this was not a Monell issue, and that the First Amended Complaint did not in any event allege facts sufficient to make out a plausible claim under a Monell theory.[2] Further, while noting that plaintiffs had accused the Sheriff and his staff of spoliation of evidence, that was an evidentiary issue, not the basis for a Monell claim unless the plaintiffs could allege facts (which they had not done) plausibly indicating a custom, practice or policy of destruction of evidence. Id.

         Douglas County then moved for an order certifying an interlocutory appeal on the non-delegable duty theory, specifically, “whether a municipality can be held liable under § 1983 for an alleged failure of its contracted medical provider to render adequate medical treatment to a pretrial detainee based solely on a theory of non-delegable duty.” ECF No. 110 at 3-4. I denied that motion. ECF No. 126.

         Plaintiffs moved for leave to file a Second Amended Complaint to “reassert a Monell claim for ratification against the County with additional facts learned during discovery, ” to join additional nurse defendants, and to delete or modify certain claims. See ECF No. 143. The motion was granted. The Second Amended Complaint, ECF No. 161, is now the operative complaint in the case. Douglas County has once again filed a motion to dismiss. ECF No. 162. It has been fully briefed, and I address this motion in this order.

         ANALYSIS AND CONCLUSIONS

         Douglas County argues that plaintiffs still have not alleged facts that plausibly would support a claim on a municipal liability theory. ECF No. 162 at 1-2. I agree.

         To establish § 1983 liability on a municipality for the acts of its employees, plaintiffs must “identify ‘a government's policy or custom' that caused the injury.” Schneider v. City of Grand Junction Police Department, 717 F.3d 760, 769 (10th Cir. 2013) (citing and quoting Monell, 468 U.S. at 694). A plaintiff must also show “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Id. (citing Board of County Commissioners v. Brown, 520 U.S. 397, 403 (1997)).

         Because I previously held that plaintiffs had failed to state a claim against the Douglas County defendants on a Monell theory, I will look now to the relevant allegations that have been added to see whether they make a difference. Based on my review of the red-lined version of the Second Amended Complaint, the relevant new “facts” appear to be the italicized portions in the following paragraphs:

22. At least two inmates before Hartwell were denied medications by CMGC until they entered status epilepticus or continuous seizures, a life-threatening emergency.
23. In July of 2016, inmate Benjamin Ramsey was denied medications including medications for seizures at the jail until ...

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