United States District Court, D. Colorado
JOSEPH P. LOVATO, Plaintiff,
VICKIE NIRA, KELSEY DILLINGER, NICOLE ALBRIGHT, and JEN GOMEZ, Defendants.
ORDER ON MOTION TO DISMISS
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendants Vickie Nira,
Kelsey Dillinger, and Nicole Albright's (collectively,
“CDOC Defendants”) Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(1) and (6) (the “Motion” or
“Motion to Dismiss”), filed March 13, 2019.
[#29]. The court considers the Motion pursuant to
28 U.S.C. § 636(c) and the Order of Reference for all
purposes [#27]. The court concludes that oral argument will
not materially assist in the resolution of this matter.
Accordingly, upon review of the Motion and associated
briefing, the applicable case law, and being otherwise fully
advised, I DENY the Motion to Dismiss.
court draws the following facts from the Second Amended
Complaint [#13] and presumes they are true for purposes of
the instant Motion. Plaintiff Joseph Lovato
(“Plaintiff” or “Mr. Lovato”) is an
inmate currently incarcerated within the Colorado Department
of Corrections (“CDOC”). See generally
[#1; #8; #13]. Prior to his incarceration, doctors diagnosed
Mr. Lovato with several medical ailments that require he take
up to 12 different medications. See [#13 at 5, 8].
Upon his incarceration, Plaintiff's medical file
disclosed his medical conditions, his need to take the 12
prescribed medications, and his adverse reactions when
missing a dose of his medications. See [id.
at 5-6, 8]. Despite all this, Mr. Lovato alleges the CDOC
Defendants neglected to give him his prescribed medications
on three occasions and failed to treat his severe symptoms
that followed. See [id. at 5-8].
on August 9, 2016, because the medication line was long and
he felt himself starting to get sick, Plaintiff approached
Defendant Albright and requested his ordered medications
ahead of the others in line. See [#13 at 16].
Defendant Albright refused to provide Plaintiff his
medications and instead directed him to the end of the
medication line or back to his cell. See
[id.]. Later that day Mr. Lovato began vomiting and
“couldn't stop, so [he] declared a Medical
Emergency.” [Id. at 17]. But when he arrived
at “Medical” Defendant Gomez (together with the
CDOC Defendants, “Defendants”) allegedly refused
to treat Mr. Lovato and sent him back to his cell.
See [id.]. Mr. Lovato then declared a
second Medical Emergency and presented to Medical; this time
Defendant Gomez took Plaintiff's vitals and sent
Plaintiff back to his cell still sick. See
[id.]. Mr. Lovato then began vomiting a “blood
dark” substance and presented to Medical for a third
Medical Emergency. See [id.].
on August 29, 2016, Mr. Lovato began vomiting and presented
to Medical. See [#13 at 14]. Defendant Nira,
however, ordered Plaintiff to return to his cell without
treatment. See [id.]. Mr. Lovato alleges
that he remained sick all night into the next morning,
“vomiting up blood and dry heaving[, ]” causing
severe physical pain and abdominal pain. See
[id.]. According to Plaintiff, Defendant Nira could
have treated Plaintiff with a shot (of either Promethazine or
a suppository) but chose not to. See [id.].
on August 30, 2016, because Defendant Nira did not treat his
vomiting, Mr. Lovato called his mother to ask that she call
the CDOC office in Colorado Springs, Colorado to seek help
for Mr. Lovato. See [#13 at 15]. According to Mr.
Lovato, within 10 minutes of his mother's telephone call,
he was called down to Medical and made to wait 45 minutes to
an hour in the waiting room while he was dry heaving.
See [id.]. Defendant Dillinger, with
Defendant Nira in tow, then approached Mr. Lovato and
informed him that “because [he] kept buying hot
jalapeno's [sic] and hot sauce, that medical was done
helping [him], and they were not going to help [him]
August 29 and 30, Mr. Lovato alleges Defendants Nira and
Dillinger deprived him of necessary medical attention for
roughly 32 hours. See [#13 at 8]. Further, Mr.
Lovato alleges CDOC personnel informed him that Medical would
not help him until he was vomiting blood, but then refused to
treat him even once he began to do so. See
[id. at 7].
Defendants conduct violated his Eighth Amendment rights,
Plaintiff filed his pro se Complaint on April 27, 2017.
See [#1]. Per the Honorable Gordon P.
Gallagher's Orders, Plaintiff filed an Amended and Second
Amended Complaint. See [#5; #8; #10; #13]. The
Honorable Lewis T. Babcock then issued an Order to Dismiss in
Part and to Draw Case, dismissing Plaintiff's claims
against Defendants Rick Raemisch, Matthew Hansen, and
Christopher Ward but drawing Plaintiff's Eighth Amendment
claim against Defendants to the undersigned.
to an amended waiver of service, the CDOC Defendants were to
answer or otherwise respond to the Second Amended Complaint
on or before February 11, 2019, see [#17], but upon
their request, the court extended that deadline to March 13,
2019, see [#23]. As to Defendant Gomez, the court
ordered, and the CDOC Defendants' counsel provided, a
last known address for Defendant Gomez on March 20, 2019.
See [#32 (filed under Level 2 Restriction)]. The
undersigned then directed the United States Marshals Service
to attempt service on Defendant Gomez at the provided
address. See [#33]. On April 23, 2019, Defendant
Gomez's summons was returned unexecuted with the notation
that Defendant Gomez did not work at any of the locations
were service was attempted. See [#38]. To date,
Defendant Gomez has not been served.
CDOC Defendants filed the instant Motion on March 13, 2019.
See [#29]. Following an extension to do so Mr.
Lovato filed his Response, and the CDOC Defendants have since
filed their Reply. See [#39: #40]. The Motion to
Dismiss is now ripe for disposition and I consider the
Parties' arguments below.
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent
obligation to determine whether subject matter jurisdiction
exists, Cellport Sys., Inc. v. Peiker Acustic GMBH &
Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014), even in
the absence of a challenge from any party, 1mage
Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d
1044, 1048 (10th Cir. 2006). Pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, a party may bring either a
facial or factual attack on subject matter jurisdiction, and
a court must dismiss a complaint if it lacks subject matter
jurisdiction. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack
the court takes the allegations in the Complaint as true; for
a factual attack the court may not presume the truthfulness
of the Complaint's factual allegations and may consider
affidavits or other documents to resolve jurisdictional
facts. Rural Water Dist. No. 2 v. City of Glenpool,
698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v.
United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)).
The burden of establishing jurisdiction rests with the party
asserting jurisdiction. See Kline v. Biles, 861 F.3d
1177, 1180 (10th Cir. 2017).
may dismiss a complaint for “failure to state a claim
upon which relief can be granted” under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Fed.R.Civ.P.
12(b)(6). In deciding a motion under Rule 12(b)(6), the court
must “accept as true all well-pleaded factual
allegations . . . and view these allegations in the light
most favorable to the plaintiff.” Casanova
v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010)
(internal quotation marks omitted). A plaintiff may not rely
on mere labels or conclusions, “and a formulistic
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007); see also Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro
se litigants cannot rely on conclusory, unsubstantiated
allegations to survive a 12(b)(6) motion). Rather, “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, 129 S.Ct. 1937, 1949
(2009); see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (explaining that plausibility refers
“to the scope of the allegations in a complaint,
” and that the allegations must be sufficient to nudge
a plaintiff's claim(s) “across the line from
conceivable to plausible.”). In doing so, the court may
consider materials beyond the complaint only if the
documents are central to the plaintiff's claims, referred
to in the complaint, and the parties do not dispute their
authenticity. See Cty. of Santa Fe, N.M. v. Public Serv.
Co. of N.M., 311 F.3d 1031, 1035 (10th Cir.
doctrine of qualified immunity protects government officials
from individual liability for actions carried out while
performing their duties so long as their conduct does not
violate clearly established constitutional or statutory
rights. Washington v. Unified Gov't of WyandotteCty., 847 F.3d 1192, 1197 (10th Cir. 2017). To
facilitate the efficient administration of public services,
the doctrine functions to protect government officials
performing discretionary actions and acts as a “shield
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Once a defendant has asserted a defense of
qualified immunity, the burden shifts to the plaintiff who
must establish that (1) the defendants violated a
constitutional right, and (2) the right was ...