United States District Court, D. Colorado
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).
III.
...