Lovato v. Nira

          ORDER ON MOTION TO DISMISS

          Nina Y. Wang United States Magistrate Judge.

         This 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].^[1] 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.

         BACKGROUND

         The 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].

         First, 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.].

         Second, 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.].

         Third, 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] anymore.” [Id.].

         Between 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].

         Believing Defendants conduct violated his Eighth Amendment rights, Plaintiff filed his pro se^[2] 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^[3] against Defendants to the undersigned. See [#14].

         Pursuant 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.

         The 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.

         LEGAL STANDARDS

         I. Rule 12(b)(1)

         Federal 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).

         II. Rule 12(b)(6)

         A court 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. 2002).^[4]

         III. Qualified Immunity

         The 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 ...