United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTIONS TO DISMISS AND
GRANTING MOTION FOR APPOINTMENT OF COUNSEL
S. Krieger Senior United States District Judge
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).
Court exercises jurisdiction under 28 U.S.C. § 1331.
Court provides a brief summary of the pertinent well pled
allegations in the Third Amended Complaint's
(#65) and elaborates as necessary in its
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. 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. (#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).
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).
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).
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).
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.
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.
Standard of Review
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).
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).
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).
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).