Weitzman v. McFerrin

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Defendant Joshua McFerrin's (“McFerrin”) Motion to Dismiss Amended Complaint [ECF 30] [#67]^[1] (the “Motion”). Plaintiff filed a Response [#69] in opposition to the Motion, and Defendant McFerrin filed a Reply [#74]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#67] is DENIED.^[2]

         I. Background

         Plaintiff initiated this lawsuit pursuant to 42 U.S.C. § 1983 on November 13, 2017. Compl. [#1]. Plaintiff filed an Amended Complaint and Jury Demand [#30] (the “Amended Complaint”) on March 22, 2018, which is the operative pleading in this case. Plaintiff's claims arise from his pretrial detainment at the Van Cise-Simonet Detention Center (“VCSDC”) between September of 2015 and December 12, 2015. Am. Compl. [#30] ¶¶ 21-51. Plaintiff generally alleges that medical staff at VCSDC failed to address his complaints of a skin rash and vision loss which turned out to be symptoms of ocular syphilis with which Plaintiff was diagnosed after his release. See generally id. Plaintiff brought his claims against The City and County of Denver, Denver Health and Hospitality Authority (“Denver Health”), and individual employees of Denver Health including Defendant McFerrin, a nurse. See generally id. All Defendants except Defendant McFerrin were dismissed from this lawsuit on March 31, 2019. Order [#66]. Accordingly, only factual allegations in the Amended Complaint [#30] that are directed against Defendant McFerrin are considered in this Order.

         Plaintiff alleges the following facts as the basis for his claim.^[3] In September 2015, Plaintiff was arrested and charged with a misdemeanor. Am. Compl. [#30] ¶ 21. While awaiting disposition of his case, Plaintiff was booked into VCSDC. Id. During his initial intake interview with VCSDC medical staff, Plaintiff disclosed his known medical issues but did not indicate any problems with his eyes. Id. ¶ 24. Shortly after being admitted at VCSDC, Plaintiff began experiencing medical and psychological issues. Id. ¶ 25. Plaintiff was directed to submit a written notice, known as a “kite, ” to advise medical staff of these issues. Id. Plaintiff began sending many kites to the medical staff for his various medical issues which included difficulties getting medication, pain for preexisting conditions like ulcerative colitis, back and foot pain, and night terrors. Id. ¶ 26. Approximately two months into his detention, Plaintiff was moved into a segregated housing unit for his own protection and because his night terrors had been disturbing other inmates. Id. ¶ 27. Plaintiff states that, after the move, he continued to have issues getting his medication in a timely manner and in the correct doses. Id. ¶ 28. Because Plaintiff's kites failed to resolve these issues, Plaintiff filed a grievance against one of the nurses at VCSDC. Id. ¶¶ 28-29. Plaintiff alleges that, after this grievance was filed, a pattern began where many of his requests for medical attention were “flatly ignored or brushed off, ” and his attempts to schedule a doctor's appointment became very difficult. Id. ¶ 29.

         Plaintiff sent his fourth and final kite on December 9, 2015, in which he indicated that he was almost completely blind in his right eye and that he was beginning to lose his vision in his left eye. Id. ¶ 46. Plaintiff alleges that, despite the issues raised in his kite, Defendant McFerrin wrote the following in his assessment: “[inmate] walking around pod in no apparent distress. Not favoring one eye over the other.” Id. ¶ 47. Plaintiff further alleges that Defendant McFerrin's assessment stated that “[inmate] states no complaints when asked” which, according to Plaintiff, was false given that Plaintiff “was panicked about his rapidly deteriorating eyesight and Denver Health's apparent unwillingness to do anything about it.” Id. ¶ 47. Additionally, Plaintiff avers that Defendant McFerrin reiterated the fact that Plaintiff had a doctor's appointment on December 21, 2015, nine days after his scheduled release date. Id. ¶ 48. According to Plaintiff, in Defendant McFerrin's written assessment, he falsely reported that Plaintiff stated this date was “fine.” Id.

         On December 12, 2015, Plaintiff was released from VCSDC. Id. ¶ 51. Soon after his release, Plaintiff's personal doctor referred him to a specialist at the Denver Retina Center who immediately diagnosed Plaintiff with ocular syphilis. Id. ¶¶ 52-53. Plaintiff's diagnosis was confirmed and he was admitted to Rose Medical Center for two weeks of aggressive antibiotic treatment. Id. ¶ 54. Although the antibiotic treatment stopped the progress of the infection and the deterioration of Plaintiff's eyesight, he states that his previous vision loss could not be reversed. Id. ¶ 55. Ultimately, Plaintiff was diagnosed with three conditions, all of which were caused by the ocular syphilis: (1) pseudopapilledema of the optic disc of his right eye; (2) toxic maculopathy in his right eye; and (3) lattice degeneration of the retina in his left eye. Id. ¶ 56.

         Plaintiff alleges that he has lost 70% of the vision in his right eye and that his pre-existing nearsightedness has gotten worse because of VCSDC's medical staff and Defendant McFerrin's deliberate indifference to his serious medical needs. Id. ¶ 57. Plaintiff believes that, if he had been allowed to see a specialist in a timely manner, his eyesight could have been saved. Id. ¶ 58. Plaintiff further states that, because of this incident, he continues to require intensive medical treatment, his ability to work has been limited, and that he suffers from deep depression. Id. ¶¶ 59-61.

         Plaintiff asserts that Defendant McFerrin, in his individual capacity, violated Plaintiff's Fourteenth Amendment right to be free from deliberate indifference to his known serious medical needs. Id. ¶¶ 73, 77. The instant Motion [#67] seeks to dismiss Plaintiff's claim against Defendant McFerrin pursuant to Rule 12(b)(6).

         II. Standard of Review

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n] [ ] that the pleader is entitled to relief, ” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).

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