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Hartwell v. Correctional Medical Group Companies Inc.
United States District Court, D. Colorado
July 1, 2019
KEVIN HARTWELL and BARBARA HARTWELL, Plaintiffs,
CORRECTIONAL MEDICAL GROUP COMPANIES INC., d/b/a SOUTHWEST CORRECTIONAL MEDICAL GROUP, LLC, d/b/a SOUTHWEST CORRECTIONAL MEDICAL GROUP PLLC, d/b/a COLORADO CORRECTIONAL MEDICAL GROUP, PLLC DOUGLAS COUNTY, TIMOTHY G. MOSER, MD, in his individual and official capacity, SOPHIA NIX, LPN, in her individual and official capacity, DAISHA WADE, LPN, in her individual and official capacity, STEPHANIE RUSSAK, RN, CHARGE NURSE, in her individual and official capacity, JESSICA ISAACS, RN, in her individual and official capacity, DEIMYS VIGIL, RN, in her individual and official capacity, LINDSEY GYGER, RN, in her individual and official capacity, EMILY BARRON, RN, in her individual and official capacity, KATHRYN DAVIDSON, LPN, in her individual and official capacity, JENNIFER TRIMBLE a/k/a GLENN, RN, HSA, in her individual and official capacity, Defendants.
ORDER - MOTION TO DISMISS SECOND AMENDED
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
Douglas County moves to dismiss the Second Amended Complaint
for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6). The motion is granted in part and denied in part.
Hartwell had a history of hypertension, diabetes and seizures
when he was arrested and taken to the Douglas County Jail on
November 10, 2016. He alleges that during the 20 days he
remained in the jail medical personnel did not provide
medications and dosages prescribed by his primary care
physician, and that he experienced dangerous elevations in
blood sugar and blood pressure, seizure, and ultimately, a
serious disorder called status epilepticus. Finally, Mr.
Hartwell was transported to a hospital, but plaintiff alleges
that this came too late to avoid permanent brain damage and
County contracted with the Correctional Medical Group
Companies, Inc. (“CMGC”) to provide medical care
for inmates in its jail. On September 20, 2017 Mr. and Mrs.
Hartwell filed the present case against CMGC, Douglas County
and several of their respective employees or agents on
various constitutional and state law theories. Complaint, ECF
No. 1. The Douglas County defendants moved to dismiss. ECF
No. 21. That motion was briefed but became moot upon the
filing of plaintiffs' First Amended Complaint.
Douglas County defendants again moved to dismiss. ECF No. 78.
Following briefing, I issued an order granting the motion in
part and denying it in part. ECF No. 109. I noted that the
Douglas County defendants do not practice medicine, and that
CMGC would have to answer for any failure of its obligation
to provide adequate medical care. However, I also held that
Douglas County's ultimate constitutional duty to provide
adequate medical care to the inmates in its jail was
non-delegable, meaning that if CMGC were found liable,
Douglas County would also be liable. Id. at 2. I
found that this was not a Monell issue, and that the First
Amended Complaint did not in any event allege facts
sufficient to make out a plausible claim under a Monell
theory. Further, while noting that plaintiffs had
accused the Sheriff and his staff of spoliation of evidence,
that was an evidentiary issue, not the basis for a Monell
claim unless the plaintiffs could allege facts (which they
had not done) plausibly indicating a custom, practice or
policy of destruction of evidence. Id.
County then moved for an order certifying an interlocutory
appeal on the non-delegable duty theory, specifically,
“whether a municipality can be held liable under §
1983 for an alleged failure of its contracted medical
provider to render adequate medical treatment to a pretrial
detainee based solely on a theory of non-delegable
duty.” ECF No. 110 at 3-4. I denied that motion. ECF
moved for leave to file a Second Amended Complaint to
“reassert a Monell claim for ratification against the
County with additional facts learned during discovery,
” to join additional nurse defendants, and to delete or
modify certain claims. See ECF No. 143. The motion was
granted. The Second Amended Complaint, ECF No. 161, is now
the operative complaint in the case. Douglas County has once
again filed a motion to dismiss. ECF No. 162. It has been
fully briefed, and I address this motion in this order.
County argues that plaintiffs still have not alleged facts
that plausibly would support a claim on a municipal liability
theory. ECF No. 162 at 1-2. I agree.
establish § 1983 liability on a municipality for the
acts of its employees, plaintiffs must “identify
‘a government's policy or custom' that caused
the injury.” Schneider v. City of Grand Junction
Police Department, 717 F.3d 760, 769 (10th
Cir. 2013) (citing and quoting Monell, 468 U.S. at 694). A
plaintiff must also show “that the policy was enacted
or maintained with deliberate indifference to an almost
inevitable constitutional injury.” Id. (citing
Board of County Commissioners v. Brown, 520 U.S.
397, 403 (1997)).
I previously held that plaintiffs had failed to state a claim
against the Douglas County defendants on a Monell theory, I
will look now to the relevant allegations that have been
added to see whether they make a difference. Based on my
review of the red-lined version of the Second Amended
Complaint, the relevant new “facts” appear to be
the italicized portions in the following paragraphs:
22. At least two inmates before Hartwell were denied
medications by CMGC until they entered status epilepticus or
continuous seizures, a life-threatening emergency.
23. In July of 2016, inmate Benjamin Ramsey was denied
medications including medications for seizures at the jail