Kerns v. Southwest Colorado Mental Health Center, Inc.

          OMNIBUS ORDER ON MOTIONS TO DISMISS

          WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE

         This lawsuit alleges that Amanda Christensen (“Christensen”) received constitutionally deficient medical care while on an involuntary hold in the Detox Unit at Crossroads at Grandview in Pagosa Springs, Colorado (“Crossroads”), a healthcare facility run by Defendant Southwest Colorado Mental Health Center, Inc., d/b/a Axis Health System (“Axis”), which resulted in Christensen taking her own life. (ECF No. 27.) Justin Kerns (“Kerns”), personally, as personal representative of the Estate of Amanda Christensen (“the Christensen Estate”), and as parent and next of friend of Kerns and Christensen's three minor children; the Christensen Estate; and minor children C.K., T.K., and B.K. (together, “Plaintiffs”) sue five individuals and one entity allegedly responsible in some way for Christensen's death. Plaintiffs allege violations of Christensen's federal substantive due process rights and federal due process rights under 42 U.S.C. § 1983, as well as state law claims for wrongful death, negligence, and survival action, and a violation of the federal Rehabilitation Act § 504.

         Currently before the Court are five motions to dismiss challenging the Amended Complaint (ECF No. 27).^[1] One motion is brought by Defendants Ann Trebelhorn and Alfredo Chavarria, Axis staff members in the Detox Unit at Crossroads at the time of Christensen's death (“Staff Motion”). (ECF No. 33.) Another motion is brought by Defendant Debra Quayle (“Quayle Motion”). (ECF No. 45.) A third motion is brought by Defendant Morgan Williams (“Williams Motion”) and a fourth by Defendant Brian Ensign (“Ensign Motion”). (ECF Nos. 32 & 36.) The final motion is brought by Axis (“Axis Motion”). (ECF No. 35.)^[2] Axis, Williams, and Ensign also brought a sixth motion to dismiss, which was struck by the Court because the undersigned's Revised Practice Standard III.D.2 requires that all requests for relief by a particular defendant must be brought in a single Rule 12 motion. (ECF No. 92.)

         I. BACKGROUND

         The Court assumes the truth of the following facts pled in the First Amended Complaint for the purpose of resolving the pending motions.

         This case arises from the tragic and untimely death of Christensen while she was involuntarily detained at Crossroads in November 2016. Crossroads is one of Axis's seven facilities. (ECF No. 27 ¶ 10.) At the time of the events that form the basis for this lawsuit, Ensign, Trebelhorn, Williams, Quayle, and Chavarria (“Individual Defendants”) were employees of Axis. (Id. ¶¶ 11-15.) Ensign was the Acute Treatment Unit clinical team lead. (Id. ¶ 11.)

         Christensen suffered from borderline personality disorder and bipolar II disorder, and struggled with substance abuse. (Id. ¶¶ 25-26.) On March 22, 2016, Christensen was arrested and charged with criminal mischief, and subsequently pled guilty to that charge and received one year of probation under a deferred sentence. (Id. ¶¶ 27-28.) The terms of her probation prohibited her from using alcohol, and required her to submit to drug and alcohol testing. (Id. ¶ 28.)

         Christensen sought professional help from Dr. Paul Mattox, a psychiatrist in Durango, Colorado, and when Dr. Mattox was unavailable, Christensen often called the Axis Health System crisis hotline. (Id. ¶¶ 31-32.) In June 2016, Christensen began seeing Josh Bramble (“Bramble”), a licensed professional counselor. (Id. ¶ 33.) He helped her through several acute crises in the summer of 2016, and in the fall of 2016, encouraged Christensen to enter a full-time treatment program. (Id. ¶¶ 33-34.) Around October 1, 2016, Christensen attempted suicide by intentionally overdosing on medication. (Id. ¶ 35.)

         Around November 13, 2016, Christensen violated the terms of her probation by drinking heavily, and taking opiates for which she did not have a prescription. (Id. ¶¶ 36, 57, 59-60.) Kerns wrestled a knife away from Christensen to prevent her from hurting herself. (Id. ¶ 57.) Bramble called the police because he perceived Christensen as a danger to herself and possibly others. (Id. ¶ 58.) Police escorted Christensen in handcuffs to the Pagosa Springs Medical Center for evaluation. (Id. ¶ 59.) Instead of arresting her, Archuleta County law enforcement officials agreed to place Christensen in Axis's custody where she could receive treatment. (Id. ¶¶ 37, 62.) Plaintiffs allege that “Axis performed similar and related services at the request and direction of Archuleta County . . . although her detention was maintained at the Crossroads facility rather than at either the Archuleta County Detention Center or the La Plata County Jail.” (Id. ¶ 46.)

         During Christensen's booking into Crossroads, the Intake Admnistrator noted that Christensen had a blood alcohol content level of 0.103 and was being admitted in part because she made suicidal statements. (Id. ¶ 68.) Christensen was placed in the Detox Unit. (Id. ¶ 70.)

         On November 14, 2016, Christensen met with Jamie Denier for a crisis assessment. (Id. ¶ 72.) The ten-page crisis assessment form detailed Christensen's high suicide risk, mental health diagnosis and symptoms, and history of depression, suicide attempts, self-harm, and substance abuse. (Id. ¶¶ 72-74.) The form was saved into the Axis patient database. (Id. ¶ 72.) Christensen ranked as “moderate or high risk” in most categories of the suicide risk assessment, but denied attempting to take her own life in October 2016. (Id. ¶¶ 76, 80.) Christensen's medical records also stated that Christensen was “exhibiting a deteriorating course leading toward danger to self or others.” (Id. ¶ 82.) The form also noted that Christensen had been diagnosed with bipolar disorder, an unspecified personality disorder, and alcohol dependence. (Id. ¶ 83.) Defendant Ensign, the Acute Treatment Unit clinical team lead, did not review or approve this initial screening form until November 16, 2016.

         When Christensen was admitted to Crossroads, Kerns and Bramble contacted the District Attorney's Office for the 6th Judicial District and the Colorado Department of Human Services to arrange for the filing of a petition for Christensen's temporary involuntary commitment to an intensive, 30-day inpatient alcohol treatment program. (Id. ¶ 86.) On November 15, 2016, Bramble met with Christensen and told her that he was pursuing involuntary commitment. (Id. ¶ 87.) Christensen was distraught upon hearing the news. (Id. ¶ 90.) Defendant Williams performed a safety assessment and noted that Christensen was “very escalated” following her meeting with Bramble. (Id. ¶ 90.) She did not want to be committed and planned to contest it. (Id. ¶ 92.)

         After meeting with Christensen at Crossroads, Bramble told Defendant Quayle that Christensen was “at an extremely high risk for completing suicide” and that her October 2016 suicide attempt “was a serious one.” (Id. ¶ 87.)

         On November 18, 2019, Deputy District Attorney Alexander Lowe filed a petition for involuntary commitment for alcohol abuse under Colo. Rev. Stat. § 27-81-112. (Id. ¶ 93.) That same day, Christensen was taken to Mercy Medical Center to refill her anti-anxiety medications. (Id. ¶ 94.) Defendant Chavarria spoke with Christensen when she returned to Crossroads. (Id. ¶ 95.) His notes from the meeting state “Patient returned from Mercy ER with Librium and a prescription for Ativan.” (Id.) Chavarria did not record Christensen's emotional, physical, or psychological state at that time.

         At approximately 3:45 p.m. on November 18, 2019, Christensen made a phone call supervised by Crossroads. (Id. ¶ 97.) To make a call, a patient must sit in front of a window with an Axis staff member on the other side. (Id.) Plaintiffs believe that Defendant Trebelhorn was responsible for monitoring Christensen's call. (Id.) During the call, Christensen moved out of the chair and slumped to the floor, and was, according to Plaintiffs, “visibly distraught.” (Id. ¶ 98.)

         At approximately 4:08 p.m., Christensen entered the women's bathroom alone, carrying a tote bag and towel. (Id. ¶ 102.) She was in the line of sight of facility staff responsible for monitoring Christensen, and in view of the video surveillance system. (Id.) At 4:38 p.m., two women tried to open the bathroom door, but could not because it was locked. (Id. ¶ 103.) At 5:15 p.m., another woman unsuccessfully tried to open the door and alerted staff that the door had been locked for over an hour. (Id. ¶ 104.) Trebelhorn escorted the woman away from the bathroom. Around 5:35 p.m., Trebelhorn tried to open the door and found it locked. (Id. ¶ 106.) Trebelhorn and a male staff member started looking for a key. (Id. ¶ 107.) A janitor opened the door at approximately 5:38 p.m. (Id.)

         Inside the bathroom, they found Christensen hanging by a towel. (Id. ¶ 109.) Trebelhorn found scissors, and cut Christensen down at approximately 5:39 p.m. (Id. ¶ 110.) Someone commenced CPR. (Id. ¶ 111.) Emergency Medical Services (“EMS”) arrived at 5:43 p.m. and found Christensen unresponsive and without a pulse. (Id.) EMS intubated Christensen, gave her a shot of epinephrine, and continued CPR. (Id. ¶ 112.) Despite these efforts, Christensen died. Her cause of death was asphyxia due to hanging. (Id. ¶ 113.)

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         III. ANALYSIS

         A. Individual Defendants' Motions to Dismiss (ECF Nos. 32, 33, 36 & 45)

         Plaintiffs contend that the Individual Defendants were “responsible for the monitoring, supervision, care and treatment of Ms. Christensen during her detention at Crossroads, and had an affirmative obligation to protect her health and welfare and constitutional rights.” (ECF No. 27 ¶ 66.) Plaintiffs assert three separate claims under 42 U.S.C. § 1983 for alleged violations of Christensen's constitutional rights. The Court will address each claim in turn.

         First, the Court pauses to clarify that no defendant has challenged his, her, or its status as a state actor under 42 U.S.C. § 1983. Indeed, Quayle is the only defendant to even suggest that there may be an argument regarding her status as a state actor: in a footnote, she states that she “does not concede [that] she is a state actor or that she was acting under color of law at any time relevant herein.” (ECF No. 45 at 7 n.2.) Given that no Defendant squarely raises, much less argues or analyzes the issue, the Court will presume for present purposes that all Defendants were state actors at the time of relevant events. See United States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013) (cursory argument not meaningfully developed by any analysis or citation is deemed waived). The Court notes, however, that there may be a question of whether Defendants are state actors in light of the Tenth Circuit's decision in Wittner v. Banner Health, 720 F.3d 770, 771 (10th Cir. 2013).

         1. Violation of Substantive Due Process Under the Special Relationship Doctrine (Claim 1)^[3]

         Generally, state actors are liable under the Due Process Clause only for their own direct actions, and are not responsible for the actions of other private citizens. Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). There are two exceptions to this rule. State officials may be subject to constitutional liability if they: (1) create a danger that results in a harm to an individual, even if that harm is not ultimately inflicted by a state official; or (2) if the state has a “special relationship” with the individual who then suffers harm. Id. Plaintiffs argue that the special relationship doctrine applies here. (ECF No. 27 ¶¶ 127-136.) “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig, 64 F.3d at 572 (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989)). In other words, the state or its agents become liable “under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs.” Dahn, v. Amedei, 867 F.3d 1178, 1181 (10th Cir. 2017).

         The elements of a substantive due process claim based on the special relationship doctrine are (1) a special relationship; (2) the defendant knew the plaintiff was in danger or failed to exercise processional judgment regarding that danger; (3) the defendant's conduct caused the plaintiff's injuries; and (4) the defendant's actions shock the conscience. Id.

         Individual Defendants do not address the first two elements, and argue solely that their actions do not shock the conscience and did not cause Christensen's injuries.^[4]Further, Ensign challenges Plaintiffs' supervisory liability claim against him for conduct undertaken by his staff. The Court will address these arguments in turn.

         a. Conscience-shocking conduct

         The state actor's behavior must be sufficient to “shock the conscience.” Johnson ex. rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1143 (10th Cir. 2006). To satisfy this standard, “a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Uhlrig, 64 F.3d at 574. The defendant's conduct must be of a “degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Id. The level of conduct required cannot be precisely defined and may evolve over time. Id. Under the special relationship doctrine, it is not sufficient to merely show that a defendant abdicated a professional duty, a plaintiff must instead show that such abdication is sufficient to shock the conscience. Estate of Place v. Anderson, 398 F.Supp.3d 816, 833 (D. Colo. 2019). “To meet that standard, the plaintiff must show more than merely negligent conduct on the part of the defendant.” Id. at 833-34.

         1. Chavarria, Quayle, and Williams

         Plaintiffs contend that they have robustly supported, through their factual allegations, that the actions or inactions of Chavarria, Quayle, and Williams would shock the conscience of a federal judge. On the facts pled, the Court disagrees.

         Plaintiffs posit that after brief, initial intake interactions with Christensen or Bramble, Chavarria, Quayle, and Williams failed to follow up to assure that protocols were put in place and followed by fellow staff members. Specifically, Plaintiffs allege that Chavarria conducted an assessment of Christensen when she returned to Crossroads from obtaining a prescription at Mercy Medical Center. (ECF No. 27 ¶¶ 94-95.) That assessment did not include an assessment of Christensen's emotional, physical, or psychological state. (Id. ¶ 95.) Plaintiffs allege that Williams performed a safety assessment of Christensen and recognized that Christensen was “very escalated.” (Id. ¶ 90.) Plaintiffs allege that Bramble made Quayle aware that Christensen was at a high risk for completing suicide. (Id. ¶ 87.)

         Finally, Plaintiffs allege that Chavarria, Quayle, and Williams failed to follow “reasonable and professionally-appropriate protocols” such as actively observing Christensen at all times or ensuring that Christensen was under surveillance at all times, and preventing Christensen from gaining access to materials that could be used to inflict self-harm. (ECF No. 51 at 9; ECF No. 63 at 5.) In essence, Plaintiffs allege that these three Defendants were subsequently responsible for overseeing each step of Christensen's ensuing care, and that their failure to do so after their limited, initial interactions with Christensen, is conscience shocking.

         The Court finds that even if Chavarria, Quayle, and Williams's alleged conduct-failing to ensure that other staff members at points later in time reasonably carried out their jobs-was an abdication of their professional duties, such conduct does not, on this record, shock the conscience. Plaintiffs have failed to allege facts from which the Court can conclude that after their brief interactions with Christensen or Bramble at the intake phases of Christensen's admission into Crossroads, Chavarria, Quayle, and Williams had any continuing duty or responsibility to monitor or ensure that appropriate procedures were in place for other Crossroads staff to follow during Christensen's subsequent treatment at the facility. Without any factual context as to the scope of these three Defendants' continuing duties, responsibilities and decision-making authority beyond the intake phase of Christensen's admission, the Court has no basis from which to conclude that their alleged actions or omissions shock its conscience.

         For these reasons the Court dismisses the substantive due process claim against Chavarria, Quayle, and Williams. However, because the Court cannot say with any degree of certainty that Plaintiffs could never allege additional facts in an amended complaint which would plausibly allege such a claim based on an alleged special relationship between them and these Defendants, this dismissal will be without prejudice.

         2. Ensign

         Defendant Ensign joins William's Motion, thus asserting that his actions were also not conscience-shocking. (ECF No. 36 at 8.) Ensign was the onsite supervisor at Crossroads at the time of these events. (ECF No. 27 ¶ 85.) According to Plaintiffs, Ensign did not review or approve Christensen's initial screening form until two days after her admission. (Id.) The import of this delay is unclear. Plaintiffs do not suggest that the delay in review in some manner limited staff access to the electronic medical records. To the contrary, Plaintiffs allege that the “Defendants were on notice regarding the content of this extensive screening paperwork at all relevant times.” (Id. ¶ 72.) Plaintiffs also allege that Ensign was “responsible for the monitoring, supervision, care and treatment of Ms. Christensen while she was at Crossroads.” (Id. ¶ 66.)

         Plaintiffs' substantive due process claim against Ensign under a direct liability claim fails for the same reasons that the claim against Chavarria, Quayle, and Williams fails. Plaintiffs fail to allege facts to demonstrate that Ensign abdicated his professional responsibilities or unreasonably exercised or failed to exercise his authority, much less did so in a way that shocks the conscience. Instead, Plaintiffs merely allege that Ensign did not timely review Christensen's paperwork, but fail to present any additional facts material to the issue of whether this purported delay had any impact on her care, adverse or otherwise. Plaintiffs also do not allege any facts to support their conclusory contention that Ensign breached his professional ...