Opinion
Civil Action 22-cv-02743-DDD-KAS
02-15-2024
WALTER M. KOLAK, Plaintiff, v. DENISE BACKERVILLE, CARTER, Mr., Arapahoe Sheriff, ARAPAHOE SHERIFF'S DETENTION CENTER, ARAPAHOE COUNTY, CARL ANDERSON, Arapahoe Sheriff, MAYFIELD, Mr., Arapahoe Sheriff, DIXON, Mr., Arapahoe Sheriff, JANE DOES, employed as Deputy Sheriffs, JOHN DOES, employed as Deputy Sheriffs, JAMES EDWARDS, Nurse Practitioner, WELLPATH, HEALTH AND SAFETY OF AMERICA CORPORATION, JESSICA CRESPO, LPN, MICAH RHOAD, RN, SHANNA NAVA FLORES, LPN, STACIE HENGY, RN, AMANDA ARUJO, LPN, E., Mrs., Nurse, SONOMA, RN, JANE DOES, employed as medical personnel, and JOHN DOES, employed as medical personnel, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHRYN A. STARNELLA UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on the Motion to Dismiss Plaintiff's Complaint [#33],filed by Defendants Arapahoe Sheriff's Detention Facility, Arapahoe County, and Carl Anderson (the “County Defendants”), and on the Motion to Dismiss Plaintiff's Amended Complaint [#43], filed by Defendants Genor Carter, Paul Mayfield, and Muthalar Dickson (the “Deputy Defendants”). Plaintiff, who proceeds in this matter as a pro se litigant,did not file responses, and the time in which to do so has elapsed. See D.C.COLO.LCivR 7.1(d) (“The responding party shall have 21 days after the date of service of a motion . . . in which to file a response.”). The Motions [#33, #43] have been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#36, #44]. The Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons stated below, the Court respectfully RECOMMENDS that the Motions [#33, #43] be GRANTED.
“[#33]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Plaintiff has been active in his filings with the Court since the Motions [#33, #43] were filed. See, e.g., [#37, #38, #40, #49, #50, #51, #53]. The docket presents no reason to believe that Plaintiff did not receive copies of the Motions [#33, #43]. See Motion to Dismiss [#43] at 11 (sending copy of filing to Plaintiff's then-current address, see [#40]); Notice [#46] (noting that the Motion to Dismiss [#33] was sent to Plaintiff at both his prior address and his then-current address, see [#29] at 6; [#33] at 12; [#40]; [#46] at 2). Thus, it appears that Plaintiff has chosen not to respond and instead to simply stand on his Amended Complaint [#10].
For the purposes of resolving the Motions [#33, #43], the Court accepts as true all well-pleaded, as opposed to conclusory, allegations made in Plaintiff's Amended Complaint [#10]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
According to the Amended Complaint [#10], Plaintiff was arrested and placed in Arapahoe County Sheriff's Detention Facility on June 22, 2019, to be held for a court hearing on a criminal matter. Am. Compl. [#10] ¶ 85. Prior to his incarceration, he had been taking lisinopril, a prescribed medication. Id. ¶ 86. After his incarceration, medical staff changed his medication to simvastatin. Id. ¶ 87. While in his cell, Plaintiff noticed his legs starting to swell, which he attributed to his high blood pressure stemming from his high cholesterol. Id. ¶ 88. Plaintiff was not sure if the swelling was because of his new medication or a new medical condition, so, in January 2020, he requested to be seen by the facility's medical department. Id. ¶ 89. Defendants Araujoand E., both nurses, came to inspect his legs, took some notes, and left. Id. ¶ 90.
Plaintiff spells this name “Araujo” in some parts of the Amended Complaint [#10] and “Arujo.
In February 2020, Defendant Rhoad came to take a blood sample from Plaintiff, although Plaintiff states this was for a sexually-transmitted disease screen rather than anything to do with his legs. Id. ¶ 91. Otherwise, weeks passed with nothing being done, and Plaintiff's “right shin became so inflamed the skin grossly split wide open, bleeding with a mixture of blood, and some sort of clear liquid, exposing the meat looking almost bluish green and white.” Id. ¶ 92.
On March 14, 2020, Plaintiff filed a first grievance, stating that his health care was being ignored and that he was swollen from his toes to his knees. ¶ 98. Defendant Backervilleresponded that Plaintiff had been scheduled to see a provider, but weeks passed without this occurring. Id. ¶ 99. On April 13, 2020, his left ankle “split wide open because the swelling had become so severe.” Id. ¶ 97. That same day, he submitted a second grievance describing the severity of his injury. Id. ¶ 99. After he was again told that he had been placed in queue to see a medical provider, he appealed on April 14, 2020, stating that he was having a medical emergency. Id. ¶ 100.
Plaintiff spells this name “Backerville” in some parts of the Amended Complaint [#10].
The next day, April 15, 2020, he was taken to the medical department, where Defendants Edwards and Araujo injected him with ceftriaxone, a drug used for syphilis. Id. ¶ 101. A day later, April 16, 2020, he awoke with a further painful medical issue caused by, as best he could discern, some infected liquid oozing out and drying, making his genitals stick to his skin and underwear. Id. ¶ 102. Although he called the emergency line, he was told to notify a nurse or living quarters sheriff. Id. ¶ 104. On April 17, 2020, he told Defendants Araujo, Mayfield, Crespo, and Doe of his medical issues but was either denied care outright or told to submit another kite, despite his pain. Id. ¶¶ 105-06. Over the next ten days, approximately, Plaintiff was seen by Defendant Rhoads, but his condition continued to worsen severely in various ways. Id. ¶¶ 107-15.
Around the end of April or possibly very early May, Plaintiff realized he had blood coming from his ears, the bottom of his eyes, and nose. Id. ¶¶ 112-14. The day's medication nurse was told, and Plaintiff gave her a urine sample which was later confirmed to contain blood and further showed that Plaintiff had an infection called MRSA. Id. ¶¶ 114-15. The same day, Defendant Shanna Nava Flores called paramedics due to the severity of Plaintiff's injuries. Id. ¶ 119. Plaintiff was eventually taken to UCHealth for care. Id. ¶¶ 119-23. Three days later, a supervisor from Plaintiff's facility called and “demanded” his return, stating that the facility would not provide any further payment for his care. Id. ¶¶ 124-25. Plaintiff signed a waiver to take over payment to stay and receive care, and he remained at UCHealth another thirteen days. Id. ¶ 126.
Plaintiff asserts claims of failure to protect and deliberate indifference to medical needs against each Defendant. Id. ¶¶ 22-84. He asserts these claims pursuant to the Eighth Amendment and the Fourteenth Amendment. See, e.g., Id. ¶¶ 22, 24 (regarding Claim I). However, he also seems to assert a general violation of the Fifth, Sixth, Eighth, Ninth, Eleventh, and Fourteenth Amendments, as well as “Colorado Cons. Art II. Sec. 3 but not limited to only sec. 3.” Id. at 12, 38. Plaintiff seeks monetary damages “in no event in an amount less than $100,000.00 after apportioning payment for correctional surgery to repair scarring and disfigurement caused by the specified medical ailments.” Id. at 38. In the present Motions [#33, #43], the moving Defendants seek dismissal of all of Plaintiff's claims against them.
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “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). “A complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint includes ‘well-pleaded allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Carraway v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (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.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
III. Analysis
A. Federal Claims
1. The Moving Defendants
Both the County Defendants and the Deputy Defendants argue that all of Plaintiff's claims must be dismissed based on the statute of limitations. Motion [#33] at 3-4; Motion [#43] at 3-5.
“Because there is no applicable federal statute of limitations relating to civil rights actions brought under section 1983, we borrow the limitations period for such claims from the state where the cause of action arose.” Lawson v. Okmulgee Cnty. Crim. Just. Auth., 726 Fed.Appx. 685, 690 (10th Cir. 2018) (internal modifications and quotation marks omitted). In Colorado, a two-year limitations period applies to § 1983 claims. See McDonald v. Citibank N.A., No. 21-1313, 2022 WL 16557957, at *1 n.2 (10th Cir. Nov. 1, 2022) (“Because there is no federal statute of limitations for § 1983 and § 1985 actions, Colorado's two-year residual statute of limitations for personal-injury claims applies to those claims.”); Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) (stating that the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued). “A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998).
Here, as outlined in the background section, Plaintiff's allegations concerning his medical issues and interactions with the various Defendants occurred between January 2020 and April 2020. Even a liberal construction of the Amended Complaint [#10] offers no possibility that any action undertaken by any Defendant or that any event otherwise underlying this lawsuit occurred later than May 2020. The initial Complaint [#1] was filed on October 17, 2022, approximately two years and five months after the statute of limitations passed.Thus, Plaintiffs federal constitutional claims are barred by the two-year statute of limitations for bringing claims under § 1983.
Of course, the statute of limitations for some Defendants may have been earlier than this, but it is clear from the allegations that the statute of limitations would have passed for all Defendants by May 2022.
Accordingly, the Court recommends that the Motions [#33, #43] be granted and that Plaintiffs' federal constitutional claims under the Fifth, Sixth, Eighth, Ninth, Eleventh, and Fourteenth Amendments against the three County Defendants and the three Deputy Defendants be dismissed with prejudice. See, e.g., Lim v. Boone, No. 21-8022, 2022 WL 1122679, at *5 (10th Cir. Apr. 15, 2022) (affirming district court's dismissal with prejudice based on the statute of limitations on a Rule 12(b)(6) motion).
2. The Non-Moving Defendants
Only six Defendants are parties to the present Motions [#33, #43]: Arapahoe Sheriff's Detention Facility, Arapahoe County, Carl Anderson, Genor Carter, Paul Mayfield, and Muthalar Dickson. The remaining Defendants have either not been identified, have not been served, or have not entered appearances in this case.
Plaintiff proceeds in forma pauperis in this case pursuant to 28 U.S.C. § 1915. Order [#5]. When a litigant is given leave to proceed without full prepayment of the initial filing fee, then, “notwithstanding any filing fee, or any portion thereof, that may have been paid, the Court shall dismiss at any time all or any part of such complaint which (1) is frivolous or malicious; (2) fails to state a claim on which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief.” Id. at 3 (emphasis added); 28 U.S.C. § 1915(e)(2)(B). As with Fed.R.Civ.P. 12(b)(6), under § 1915(e)(2)(B)(ii), “‘[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.'” Gaylord v. State of Kansas, No. 23-3075, 2024 WL 358240, at *1 (10th Cir. Jan. 31, 2024) (quoting Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)).
However, unlike Rule 12(b)(6), § 1915(e)(2)(B)(ii) “‘authorizes the dismissal of a case prior to service of process if the court determines that the action fails to state a claim upon which relief can be granted.'” Warner v. Lund, No. 23-2187, 2024 WL 358230, at *2 (10th Cir. Jan. 31, 2024) (quoting Collier v. Nelson, 246 F.3d 679, 679 (10th Cir. 2000) (unpublished)). Thus, even though the remaining Defendants have not been served, the Court may dismiss claims against them pursuant to § 1915(e)(2)(B)(ii) if Plaintiff's claims are futile. See, e.g., Gaylord, 2024 WL 358240, at *1; Warner, 2024 WL 358230, at *2.
For the same reasons provided as to the claims against the six moving Defendants, the Court finds that Plaintiff's claims fail here as well. The statute of limitations for Plaintiff's federal constitutional claims is two years, and no alleged event underlying this lawsuit occurred after May 2020.
Accordingly, the Court recommends that the federal constitutional claims against all of the non-moving Defendants be dismissed with prejudice. See, e.g., Washington v. Gilmore, No. 23-CV-0549-CVE-JFJ, 2024 WL 314988, at *2 (N.D. Okla. Jan. 26, 2024) (dismissing claims under § 1915(e)(2) in part based on the statute of limitations).
B. State Law Claims
While Plaintiff's claims appear to be based primarily on federal constitutional law, he also mentions a general violation of “Colorado Cons. Art II. Sec. 3 but not limited to only sec. 3.” Am. Compl. [#10] at 12.
While a court may exercise supplemental jurisdiction over a state law claim if there is otherwise a jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3) states that a court may decline to exercise jurisdiction over such a claim if the Court has dismissed all claims over which it has original jurisdiction. When § 1367(c)(3) is implicated in the Tenth Circuit, courts are advised to dismiss pendent state law claims “absent compelling reasons to the contrary.” McDonald v. Sch. Dist. No. 1 in the Cnty. of Denver & Colorado, 83 F.Supp.3d 1134, 1153 (D. Colo. 2015); see also Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”) (quotation marks omitted). Here, subject matter jurisdiction is based on federal question jurisdiction. Am. Compl. [#10] at 10. Further, Plaintiff has not pleaded any basis for diversity jurisdiction. The Court thus finds that declining to exercise jurisdiction over the state law claim(s) in this case is appropriate.
Accordingly, the Court recommends that Plaintiff's state law claim(s), if any, be dismissed without prejudice. See, e.g., Crane v. Utah Dep't of Corr., 15 F.4th 1296, 1314 (10th Cir. 2021) (affirming district court's dismissal without prejudice of state law claim after dismissing all federal claims and declining to exercise supplemental jurisdiction).
Pursuant to 28 U.S.C. § 1367(d), the limitations period for any supplemental jurisdiction claim is “tolled while the claim is pending and for a period of 30 days after it is dismissed unless State ”
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motions [#33, #43] be GRANTED and that Plaintiff's federal claims be DISMISSED with prejudice and state law claims be DISMISSED without prejudice.
IT IS FURTHER ORDERED that any party may file objections within 14 days of service of this Recommendation. In relevant part, Fed.R.Civ.P. 72(b)(2) provides that, “within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy.” “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” Id. “[A] party who fails to make a timely objection to the magistrate judge's findings and recommendations waives appellate review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).