Hicks v. City and County of Denver

          OPINION AND ORDER GRANTING MOTIONS TO DISMISS AND GRANTING MOTION FOR APPOINTMENT OF COUNSEL

          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court pursuant to: (1) Defendant Wendy Gallegos' (“Nurse Gallegos”) Motion to Dismiss the Amended Prisoner Complaint (#42), Mr. Hicks' Response (#75), Nurse Gallegos' Reply (#83), and Mr. Hicks' Surreply (#96); (2) Defendant Christian Stob's (“Dr. Stob”) Motion to Dismiss Amended Prisoner Complaint (#41), Mr. Hicks' Response (#76), and Dr. Stob's Reply (#81); (3) Defendant Timothy Applegate's (“Mr. Applegate”) Motion to Dismiss Amended Prisoner Complaint (#47), Mr. Hicks' Response (#76), and Mr. Applegate's Reply (#80); (4) Defendants Jerome Gonzales (“Deputy Gonzales”), Jason Sisneros (“Deputy Sisneros”), Victor Lombardi (“Deputy Lombardi”), Kenneth Kent (“Deputy Kent”), Alberta Compton (“Deputy Compton”), Alexandra Wherry (“Deputy Wherry”), Robert Ortiz (“Deputy Ortiz”), Darryl Mehnert (“Deputy Mehnert”), Richard Anderson (“Deputy Anderson”), Carrie Rodriguez (“Deputy Rodriguez”), Sheila Garcia (“Deputy Garcia”), and Gabriel Griego's (“Deputy Griego”) (collectively, “the Denver Sheriff's Department Deputies”) Partial Motion to Dismiss the Amended Prisoner Complaint (#49), Mr. Hicks' Response (#74), the Denver Sheriff's Department Deputies' Reply (#82), and Mr. Hicks' Surreply (#97); (5) Defendant Frank Rolando's (“Deputy Rolando”) Partial Motion to Dismiss the Amended Prisoner Complaint (#88), Mr. Hicks' Response (#99), and Deputy Rolando's Reply (#100); (6) Mr. Hicks' Motion to Appoint Counsel (#93), to which no response was filed; and (7) Mr. Hicks' Motion to Enter Exhibits (#79 and #94), the Denver Sheriff's Department Deputies' Response (#84), and Mr. Hicks' Reply (#95).

         I. JURISDICTION

         The Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. FACTUAL ALLEGATIONS

         The Court provides a brief summary of the pertinent well pled allegations in the Third Amended Complaint's (#65) and elaborates as necessary in its analysis.^[1]

         At all relevant times, Mr. Hicks was a pretrial detainee housed at the Denver County Jail (“the Jail”). (#65 at 10, 12). He contends that he suffers from a severe hearing loss disability, which makes it difficult for him to understand what others are saying and causes him to “exaggerate [his] gestures in order to be understood.” (#65 at 10, 23). Mr. Hicks claims that upon being admitted to the Jail in June 2016, he informed staff members of his hearing disability.^[2] Mr. Hicks also alleges that despite making several requests to Dr. Stob, a physician employed by the Denver Health and Hospital Authority who worked at the Jail, Dr. Stob made no attempts to inform the Jail as to Mr. Hicks' hearing loss nor made any accommodations for his disability.^[3] (#65 at 23-253). Mr. Hicks alleges that the Jail's failure to recognize and accommodate his disability was discrimination under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. (#65 at 23-27).

         Mr. Hicks also contends that he suffers from post-traumatic stress disorder (“PTSD”), “intermittent explosive disorder, ” asthma, arthritis, migraine headaches, and a traumatic brain injury and takes prescription medication on a daily basis to treat and/or manage these conditions. (#65 at 10-11, 21). Mr. Hicks alleges that Nurse Gallegos, a licensed nurse practitioner who dispensed medications at the Jail, knew he was prescribed the following daily medications: Cymbalta, Qvar, Prilosec, Meloxicam, and Propranonal. (#65 at 20-21).

         On the morning of December 14, 2016, Nurse Gallegos was dispensing medications to pretrial detainees at the Jail. Mr. Hicks alleges that when he reached the front of the “med-line, ” he engaged in a verbal altercation with her during which she “cursed” at him and ordered him to the back of the line. (#65 at 21). When Mr. Hicks reached the front of the line again, Nurse Gallegos refused to give him his medications because he had called her names and threatened “to slap” her. (#65 at 21-22). Mr. Hicks contends that because he was not given his medications that day, he “experienced migraines, pain from arthritis, had trouble eating and drinking, and felt anxious and distressed.” (#65 at 22).

         Later that evening, Mr. Hicks was informed by Deputy Gonzales that as a result of the altercation with Nurse Gallegos, he would be transferred to punitive segregation. (#65 at 22). Mr. Hicks claims that he then entered a cleaning closet and retrieved a broom handle. Deputy Gonzales asked him to put down the broom handle and a conversation ensued. Deputies Kent and Lombardi arrived, and Deputy Gonzalez pulled out nunchucks, a martial arts weapon issued to Jail deputies, and advanced on Mr. Hicks. (#65 at 13-14). Mr. Hicks asserts that he brandished the broom handle and was “tackled from behind by Deputy Sisneros” and slammed onto the concrete floor. (#65 at 14). Mr. Hicks alleges that Deputy Gonzales punched and struck him with the nunchucks and applied a choking maneuver. The deputies then restrained Mr. Hicks and took him to see a nurse where he was treated for “two lacerations to his right hand.” (#65 at 15-16). Mr. Hicks alleges that Deputies Compton, Wherry, Ortiz, Mehnert, Anderson, Rodriguez, Garcia, Rolando, and Griego all witnessed the excessive use of force and failed to intervene. (#65 at 18).

         Based on these allegations, Mr. Hicks asserts seven claims for relief: (1) a claim of excessive force pursuant to 42 U.S.C. § 1983, invoking the Fourteenth Amendment, against Deputy Gonzales in both his official and individual capacities; (2) a claim against all the Denver Sheriff's Department Deputies in both their official and individual capacities for “failing to intervene” and stop Deputy Gonzales' use of excessive force pursuant to 42 U.S.C. § 1983, invoking the Fourteenth Amendment; (3) a claim against Deputy Rolando in both his official and individual capacities for “failing to intervene” and stop Deputy Gonzales' use of excessive force and for supervisory liability pursuant to 42 U.S.C. § 1983, invoking the Fourteenth Amendment; (4) a claim that Nurse Gallegos was deliberately indifferent to Mr. Hicks' serious medical needs pursuant to 42 U.S.C. § 1983, invoking the Fourteenth Amendment; (5) a claim against Dr. Stob in both his individual and official capacities for a violation of the ADA; (6) a claim against Mr. Applegate in both his individual and official capacities for a violation of the ADA; and (7) a Monell-type claim against the City and County of Denver and the Denver Health and Hospital Authority for a violation of the Rehabilitation Act for failing to recognize and accommodate his hearing disability.

         Nurse Gallegos has moved to dismiss the claims against her in her individual capacity under Federal Rule of Civil Procedure 12(b)(6), asserting that she is entitled to qualified immunity. Deputy Rolando has moved to dismiss the supervisory liability claim against him in his individual capacity under Federal Rule of Civil Procedure 12(b)(6), asserting that he is entitled to qualified immunity. The Denver Sheriff's Department Deputies (including Deputy Rolando), Dr. Stob, and Mr. Applegate have moved to dismiss the claims against them under Rule 12(b)(6) on grounds that the Second Amended Complaint's allegations are insufficient to state claims against them in their official capacities.^[4]

         III. ANALYSIS

         A. Standard of Review

         Mr. Hicks initiated this case without the assistance of an attorney. Accordingly, the Court reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Such liberal construction is intended merely to overlook technical formatting errors and other defects in Mr. Hicks' filings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Indeed, although he is not represented by counsel, Mr. Hicks must still comply with procedural rules and satisfy substantive law to be entitled to relief. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2008).

         1. Generally

         In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the Complaint, any documents attached thereto, and any external documents that are referenced in the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

         A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a claim that is “plausible” or whether the claim being asserted is merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the level of “plausibility” varies from context to context, but generally, allegations that are “so general that they encompass a wide swath of conduct, much of it innocent, ” will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         2. Qualified Immunity

         Under the doctrine of qualified immunity individual government actors are protected from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 609 (1999); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts a qualified immunity defense in a motion to dismiss, the Court determines (1) whether a complaint's allegations are sufficient to show that the defendant violated a constitutional or statutory right and (2) whether the constitutional or statutory right was clearly established when the alleged violation occurred. See Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). The Court may undertake these two inquiries in whichever order it deems fit. Pearson v. Callahan, 555 U.S. 223, 232 (2009). For all practical purposes, the first inquiry is indistinguishable from the inquiry that the Court would take in assessing a garden-variety challenge under Federal Rule of Civil Procedure 12(b)(6) to the sufficiency of the pleadings. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The “clearly established” inquiry for qualified immunity examines whether the contours of the constitutional right were so well-settled, in the particular circumstances presented, that “every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012).

         B. Defendants' Motions

         1. Fourteenth ...