Garrett v. Board of County Commissioners of County of Fremont

          ORDER ON MOTIONS TO DISMISS

          DANIEL D. DOMENICO UNITED STATES DISTRICT JUDGE

         The plaintiff in this case alleges constitutional harms, federal statutory violations, and negligence arising from a sustained period of bodily restraint after he attempted suicide during his pretrial detention. Defendants are an assemblage of thirty-nine named and additional unnamed individuals and entities. Before the Court are seven fully briefed motions to dismiss, covering all defendants, for failure to state a claim under Fed R. Civ. P. 12(b)(6).

         I. ALLEGATIONS

         The following allegations are taken from the Plaintiff's Amended Complaint (Doc. 14) and are treated as true for purposes of assessing the motions to dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013).

         A. Allegations Concerning the Plaintiff

         Plaintiff Stephen Garrett was arrested on August 10, 2016 and at all relevant times was a pretrial detainee at the Fremont County Detention Center, a division of the Fremont County Sheriff's Office. During the course of his arrest, it became known to officers that Mr. Garrett is mentally infirm. On November 15 and 16, 2016, he informed personnel at the detention center that his depression and suicidal ideation had developed into an acute and spiraling mental health crisis. On November 16, he told Defendant Sarah Brassfield, ^[1] a county employee, that he was “seriously and imminently contemplating suicide.” She responded: “I wish you would f*cking kill yourself.”

         Hours later, on November 17, Mr. Garrett used a razor to slice open his left arm, cutting his radial artery and causing significant blood loss. Mr. Garrett was transported to the hospital, where his wounds were sutured and dressed, and was returned to the detention center and placed in solitary confinement. He received no mental health attention or intervention and, later that day, removed the bandage from his own arm and tried to reopen the wound. Officers discovered the bloody bandage on the ground, called for medical transport, and took Mr. Garrett back to the hospital, where staff noted no significant additional harm and re-dressed the wound. Early on November 18, Mr. Garrett was returned to the detention center, where officers and medical personnel placed him in a restraint chair-a device with straps across the legs, abdomen, chest, and arms. Officers also placed “transport gloves” and metal handcuffs on him.

         Over the next twenty-eight days, Mr. Garrett remained in some form of bodily restraint, including the chair, gloves, handcuffs, or a wrist-waist restraint belt. During the long periods his hands were in the gloves, moisture caused deterioration of the skin on his hands, which painfully molted when the gloves were removed. Once, detention center staff cleaned the gloves with a commercial-grade aerosol disinfectant and placed them back on Mr. Garrett's hands, causing searing pain to his already-raw skin.

         Mr. Garrett was sometimes permitted to choose the method of his restraint: he could remain in the chair with the gloves and handcuffs, or he could use the wrist-waist restraint belt with the gloves and handcuffs. Choosing the latter meant being placed in an observation cell with bright fluorescent lights, where he was made to keep his hands in view. He could only stand or lie on his back and could not use a blanket. As such, he became sleep-deprived. To get rest, he would opt to be strapped down in the chair.

         Mr. Garrett also has a known seizure disorder, for which he was over-prescribed medications, causing physical instability. When permitted to walk, he would trip on stairs and cut his head and suffer headaches. On three occasions, he lost consciousness in the chair. Once, his over-medicated, sleep-deprived, and unconscious state caused him to vomit undigested food and aspirate the vomit while restrained. Because of the restraints, he was unable to signal for help, though he did receive it.

         At all times, Mr. Garrett remained in the highly trafficked and monitored “booking area” of the detention center. It was “obvious to anyone observing . . . that he was in a consistent state of crisis and experiencing excruciating discomfort, severe sleep deprivation, and that his prolonged restraint (and lack of mental health care) was causing [him] extreme mental and physical distress.” He was unable to access certain services programs, and activities the detention center, including telephone, in-person visitation, outdoor exercise, social interaction, and medical “kite” and grievance systems. He pleaded with detention center staff and medical personnel to be released from his restraints. He requested that Fremont County and its personnel “modify” their restraint chair and soft restraint “policies, ” or “any associated actual practices or customs regarding [their] use, ” which were “inhumane, degrading, and a violation of his rights.” He sent detention center personnel and medical staff formal grievances. But despite his pleas and mental distress during this time, he received no “meaningful or timely” mental health treatment, intervention, consultation, or regular monitoring from his arrest until mid-December.

         Around December 16, Mr. Garrett was transferred to the Colorado Mental Health Institute for a competency evaluation in connection with his pending charges. At the institute, his physical and mental health improved. He interacted with others without incident, maintained his weight and nutrition, and managed the side effects related to his medications. He asserts that he is “highly receptive to meaningful treatment by appropriately-trained [sic] staff, ” and “the restraints and solitary confinement utilized by personnel at [the detention center] are absolutely unnecessary provided that he has appropriate mental health treatment and support.” Around January 17, 2017, Mr. Garrett was transferred back to the detention center and returned to solitary confinement, where he suffered physical health deterioration with significant weight loss, increased suicidal ideation, and mental suffering. This confinement lasted several months, and he was only allowed out of his cell for one hour per day.

         Mr. Garrett further alleges that on April 23, 2017, a few days after he consulted with his counsel in this case, Defendant Brent Merlo, an officer in the detention center, opened the cell door of an inmate who intended to harm Mr. Garrett during a no-contact “lockdown.” That inmate “rushed [Mr. Garrett] and physically engaged him.” On about April 25, detention center personnel did this again during another lockdown, and the same inmate again attempted to harm him. These actions were coordinated, facilitated, and encouraged by Defendant Justin Green. When the Mr. Garrett confronted officers about this retaliatory behavior, the officers responded, on more than one occasion, that it was related to his intention to file a lawsuit against detention center staff. Mr. Green specifically told Mr. Garrett that “life would be hard” if he filed one. Detention center staff also began serving Mr. Garrett cups of sausage grease for breakfast following his complaints about small pieces of metal in his food.

         B. Allegations Concerning Defendants

         Defendants Brassfield, Merlo, and Green are the only defendants alleged by name to have engaged in any specific conduct in the Amended Complaint. Those three, and all other defendants are grouped into one or more of five categories and tied to general allegations:

(1) “Fremont County Defendants”: The Board of County Commissioners of the County of Fremont, Sheriff Allen Cooper (in his official capacity), former Sheriff James Beicker (in his official capacity), and former Sheriff Ty Martin (in his official capacity). These defendants are divisions of a municipality, the latter of which is alleged to be the “final policymaker for Fremont County with respect to all matters . . ., including the [detention center].”

(2) “Corporate Defendants”: Wellpath LLC, Correctional Healthcare Companies, Inc., ^[2] Correct Care Solutions, LLC, CHC Companies, Inc., Great Peak Healthcare Services, P.C., and Natcore Healthcare Industries, Inc. Mr. Garrett alleges, on information and belief, these defendants have “contracted with Fremont County during the relevant time period through a direct contract or sub-contract with another or related entity to provide medical services to inmates and pretrial detainees at the [detention center] and supervise[] and implement[] such care.”

         Mr. Garrett alleges these defendants, acting under color of state law pursuant to their contracts, maintained “policies and practices of systematic isolation and solitary confinement of detainees in mental health crises, inadequate staffing patterns, inadequate behavioral health assessment, diagnosis, and intervention, inadequate mental health care and programming, and a pattern of over-medicating and warehousing detainees in lieu of providing more comprehensive interventions.”

         (3) “Medical Provider Defendants”: Raymond Herr, M.D., Sharon Allen, M.D., Stephanie Repshire, LPN, Kathleen Maestas, LPN, Peter Cedergreen, L.P.C., Adam Beaty, R.N., Travis Waters, George Callahan, and Daniel Vaught. Mr. Garrett alleges that these defendants, acting under color of state law, are “agent[s], employee[s], and/or subcontractor[s] of one or more of the Corporate Defendants and w[ere] responsible for providing medical care to [him] during his pretrial detention.” Mr. Herr was a policymaker and Chief Medical Officer for several Corporate Defendants. Mr. Garret alleges that “Defendants Vaught, Cedergre[e]n, Callahan, Waters, and Beaty, among others providers . . . failed to properly assess and monitor” him, “failed to properly address the acute side effects caused by over-medication that resulted in [him] falling and injuring himself, ” “fail[ed] to intervene during periods of unnecessary and extremely harmful solitary confinement, ” and “fail[ed] to provide reasonable mental health interventions despite [his] numerous and desperate pleas.”

         (4) “FCDC Personnel”^[3]: James Beicker (individually), Ty Martin (individually), Justin Green, John Rankin, Carrie Hammel, Sarah Brassfield, Morgan Roquemore, Mackenzie Roquemore, Travis Taylor, Michael Moore, Amanda Lucero, Andrea Hopkins, Stephen Kreuger, Jeremy Miller, John Ricci, Charlene Combs, Brandon O'Grady, Cory Burton, Jaeson Watts, Caleb Chase, Brandon Lovato, Brent Merlo, and Jordan Peters. Of these each of these defendants, Mr. Barret alleges “[a]t all material times, this defendant was an agent and/or employee of Fremont County, working at the Fremont County Detention Center, and acting under color of state law.”

         (5) “Individual Defendants”: Medical Provider Defendants and FCDC Personnel combined. As a catch-all, Mr. Garrett alleges that “[e]ach of the Individual Defendants named in this lawsuit and identified in the preceding paragraphs were either (1) personally and actively involved . . . in direct observation and . . . prolonged restraint, solitary confinement, and/or retaliation directed towards the Plaintiff; (2) failed to intervene despite a duty and opportunity to do so; or (3) otherwise acquiesced in the illegal conduct described.”

         C. Causes of Action and Procedural History

         Mr. Garrett filed the Complaint on November 11, 2018 and an Amended Complaint on February 13, 2019. He alleges deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment against all Defendants; excessive force in violation of the Fourteenth and Fourth Amendments against the Individual Defendants; retaliation in violation of the First Amendment against Defendants Merlo and Green; medical negligence against the Medical Provider Defendants and Corporate Defendants; negligence in operation of a jail against the Fremont County Defendants and Individual Defendants; and violations of the Americans with Disabilities Act (“ADA”) and Rehabilitation Act against the Fremont County Defendants. Defendants filed seven separate motions to dismiss on May 17 and 21, 2019, on a host of grounds including qualified immunity, statute of limitations, and failure to plausibly plead entitlement ...