Opinion
Civil Action 1:20-cv-03698-RMR-SKC
12-06-2023
CARLOS PINTO-RIOS, Plaintiff, v. TYLER S. BROWN, et al., Defendant.
RECOMMENDATION RE: WELLPATH DEFENDANTS' MOTION TO DISMISS (DKT. 247)
S. Kato Crews, United States Magistrate Judge.
Before the Court on referral is Defendant Kerry Pruett, Katy Keller, Susan Greenwald, Stacie Hengy, Micah Rhoad, Patricia Trujillo, Jeffrey Peterson (“Individual Defendants”), and Wellpath, LLC's (collectively, “Defendants”), Motion to Dismiss. Dkt. 247.Defendants move to dismiss Plaintiff Carlos Pinto-Rios' Second Amended Complaint (“SAC”) (Dkt. 212) in its entirety. Defendants argue (1) some of Plaintiff's claims are barred by the statute of limitations, (2) his state law claims fail under state law, and (3) Plaintiff generally fails to state a claim under Rule 12(b)(6). Id. at p. 1.
The Court has carefully considered the SAC, Defendants' Motion to Dismiss, Plaintiff's Response (Dkt. 256), Defendants' Reply (Dkt. 267), and applicable law. No hearing is necessary. As explained below, the Court respectfully recommends the Motion be GRANTED IN PART and DENIED IN PART. Because Plaintiff failed to timely or otherwise file a certificate of review in accordance with Colo. Rev. Stat. § 13-20-602, the Court respectfully recommends the Motion be granted as to his malpractice claims (Claim 6). While the Court finds Plaintiff may still bring his direct negligence claims for negligent supervision and training against Wellpath, the Court respectfully recommends the Motion be granted as to these claims (Claim 6) because they fail to state a claim under Rule 12(b)(6). Similarly, the Court respectfully recommends the Motion be granted as to Claims 1-3 (each alleging deliberate indifference) against Defendants Pruett, Keller, Greenwald, Hengy, Rhoad, and Trujillo for failing to state claims under Rule 12(b)(6). But because the Court does find Plaintiff has stated a plausible claim for relief for deliberate indifference (Claim 3) against Dr. Peterson, the Court respectfully recommends the Motion be denied as to that claim and Dr. Peterson.
BACKGROUND
A. Allegations in the SAC
Plaintiff was arrested on December 17, 2018, and taken to the Arapahoe County Detention Center. Dkt. 212 at ¶¶9, 35. He suffers from type-1 bipolar disorder and was experiencing an episode at the time of his arrest. Id. at ¶37. On the day of his arrest, Plaintiff told jail personnel he wanted to kill himself. Id. at ¶40. As a result, Defendants placed Plaintiff on suicide watch protocol from December 17 - 27, 2018. Id. at ¶ 41.
On December 19, 2018, Plaintiff had an altercation with personnel at the detention facilityand they placed him in a suicide watch cell in the behavioral health unit (“BCU”) for eight days. Id. at ¶¶51-52. The cell was small, with cement flooring, and was devoid of running water, sinks, and furnishings. Id. at ¶53. There was a window and a hole in the floor for excrement and food waste, with flushing controlled by jail personnel. Id. According to Plaintiff, the cement construction and windows are known to be good conductors of cold air. Id. While in the cell, Plaintiff was naked, except for a suicide smock, and a special blanket. Id. at ¶54.
Plaintiff continued to suffer from severe mental illness while in the BCU. Id. at ¶55. He expressed difficulty sleeping and feeling agitated; he was compulsively pacing and ritualistically running his hands over the walls, ran his suicide smock or bedding over the walls, and he would sing, dance, talk nonsensically to himself, yell and scream, and eat and play with feces. Id. He alleges his deteriorating condition led to nightmares or hallucinations and he otherwise devolved into serious mental health disarray. Id. at ¶57.
The Individual Defendants include two mental health professionals, four registered nurses, and a physician. Id. at ¶13-19. They are all employed by Defendant Wellpath, a company that contracted with the detention facility to provide medical services to its detainees. Id. at ¶12. The Individual Defendants monitored Plaintiff during his time in the BCU. Id. at ¶63-65, 70-71.
Due to Plaintiff's severe mental illness, he was unable to care for his basic needs, make decisions or appreciate his actions, including take or refuse medication, eat and drink, or otherwise make complaints about his bodily needs during his detention. Id. at ¶79. While in the BCU, Plaintiff became dehydrated to the point of renal failure. Id. at ¶86. According to arrest and facility records, Plaintiff was 6' 3” and 180 lbs. when he entered the facility on December 17, 2018, and weighed 147 lbs. ten days later, on December 27, 2018. Id. at ¶106. Due to his mental illness, Plaintiff contends he was not psychologically able to notify anyone when his body needed food or water. Id. at ¶90. When he kicked or threw his food or otherwise failed to eat or drink due to his psychotic state, no one at the facility would replace these items. Id. at ¶91.
During the 7:08am med pass on December 27, 2018, Nurse Trujillo discovered Plaintiff was suffering frostbite and she immediately contacted Dr. Peterson. Id. at ¶¶182-83, 185-86. Video shows Dr. Peterson did not examine Plaintiff until 2:25pm, a period of just over seven hours after Nurse Trujillo contacted him. Id. at ¶189. EMTs “were called” at about 3:00pm and arrived shortly thereafter to take Plaintiff to the hospital. Id. at ¶190. During the seven-hour plus period, the Plaintiff's condition worsened-his fingers turned darker in color, skin tissue on his fingers and face was dying and started to harden, the tips of all his fingers (excluding thumbs) and some of his toes were later amputated, and the remaining damage to his fingers and toes took months to heal while he lived with continuous open wounds. Id. at ¶¶188, 198-99.
Plaintiff brings six claims for relief. Four of them apply to these Defendants.Id. at ¶201-380. The claims are: (1) Claim 1: deliberate indifference to serious mental health needs; (2) Claim 2: deliberate indifference “regarding inadequate food and water;” (3) Claim 3: deliberate indifference regarding serious medical needs - cold exposure and frostbite; and (4) Claim 6: common law negligence and malpractice. Defendants seek dismissal of each of these claims.
B. Pertinent Procedural History
To follow the ensuing analysis regarding Defendants' statute of limitations arguments, a summary of the procedural history involving the filing of the SAC is necessary. Rather than narrate that history, the Court summarizes it in the following chart, with blue font indicating Plaintiff's amendments:
DATE
DOCUMENT
MEDICAL DEFENDANTS
APPLICABLE CLAIMS
12/17/2020
Complaint (Dkt. 1)
Kerry Pruett Katy Keller Susan Greenwald Stacie Hengy Micah Rhoad
Deliberate Indifference
07/21/2021
First Amended Complaint (Dkt. 21)
Kerry Pruett Katy Keller Susan Greenwald Stacie Hengy Micah Rhoad Wellpath, LLC
Deliberate Indifference Common Law Negligence
01/14/2023
Certificate of Review per Colo. Rev. Stat. 13-20-602 (Dkt. 155-3)
Kerry Pruett Katy Keller Susan Greenwald Stacie Hengy Micah Rhoad Wellpath, LLC
Common Law Negligence
03/10/2023
Second Amended Complaint (Dkt. 212)
Kerry Pruett Katy Keller Susan Greenwald Stacie Hengy Micah Rhoad Patricia Trujillo Jeffrey Peterson Wellpath, LLC
Deliberate Indifference (mental health) Deliberate Indifference (food and water) Deliberate Indifference (cold and frostbite) Common Law Negligence & Malpractice
ANALYSIS
Defendants move to dismiss all claims against them in the SAC. First, they argue some of the claims are barred by the statute of limitations. Second, they argue Claim 6 (negligence claims) fails because Plaintiff failed to comply with Colo. Rev. Stat. § 13-20-602, which requires the filing of a certificate of review before suing licensed professionals in negligence. Finally, they argue Plaintiff fails to state a claim under Rule 12(b)(6) regarding his Section 1983 claims (Claims 1-3).
A. Statute of Limitations
Plaintiff brings three claims (Claims 1-3) under 42 U.S.C. § 1983 each alleging deliberate indifference in violation of the Fourteenth Amendment. These claims “must be brought within the time period prescribed by state law for personal injury actions.” Baker v. Bd. of Regents of State of Kan., 991 F.2d 628, 632 (10th Cir. 1993) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). There is a two-year statute of limitations for personal injury actions in Colorado. Colo. Rev. Stat. § 13-80-102.
A civil rights action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Baker, 991 F.2d at 632; Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (federal law governs the issue of when an action accrues); Fogle v. Pearson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“A § 1983 action accrues when facts that would support a cause of action are or should be apparent.”). The test to determine when a claim accrues is an objective one, with the focus “on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm.” Alexander v. Okla., 382 F.3d 1206, 1216 (10th Cir. 2004).
1. Claims 1-3 (deliberate indifference) and 6 (negligence) against Defendants Trujillo and Peterson
Plaintiff brought Nurse Trujillo and Dr. Peterson in as new defendants when he filed the SAC in March 2023. He explains that these two Defendants were not parties to the original Complaint because he “had no reason to think that either RN Trujillo or Dr. Peterson had engaged in any wrongdoing because their medical records did not show any wrongdoing - nor were there any other records or information known that would support wrongdoing.” Dkt. 256 at p.2. Only when, in 2022, discovery revealed that Plaintiff's “frostbite was discovered by RN Trujillo in the morning, and not in the afternoon,” did Plaintiff believe Defendants Trujillo and Peterson were liable. Id.
Defendants contend the statute of limitations accrued on the claims against Defendants Trujillo and Peterson on December 27, 2018, when these two Defendants are alleged in the SAC to have discovered his frostbite and delayed in providing him care. Dkt. 247, p.4. But Plaintiff waited two and a half years after the statute of limitations expired to raise claims against these Defendants. Id. Because Plaintiff had sufficient facts to be aware of these claims on December 27, 2018, Defendants argue Plaintiff's claims are now barred by the two-year statute of limitations. Id.
When considering when the statute of limitations accrues, detailed knowledge of the level of culpability of each defendant is not required to trigger the statute of limitations; the focus is instead on “whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm . . . In this context, a plaintiff must use reasonable diligence in seeking to discover facts giving rise to a claim for relief.” Alexander, 382 F.3d at 1216 (citations omitted). For purposes of a Section 1983 claim, the relevant “injury” is the alleged constitutional violation. Est. of Roemer v. Johnson, 764 Fed.Appx. 784, 790 (10th Cir. 2019). “Thus, a § 1983 claim accrues ‘when the plaintiff knows or should know that his or her constitutional rights have been violated.'” Id. (citing Smith v. City of Enid By & Through Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998)). And pertinent here, the statute of limitation accrues separately as to each defendant. Vasquez v. Davis, 882 F.3d 1270, 1276 (10th Cir. 2018).
The Court finds the statute of limitations did not accrue against Nurse Trujillo and Dr. Peterson until Plaintiff took Nurse Trujillo's deposition in 2022 and discovered facts to suggest wrongful conduct by these Defendants resulting in constitutional harm. It wasn't until this deposition testimony that Plaintiff learned of the timing associated with the care these two Defendants provided Plaintiff on December 27. It is that timing-in particular the delay-that allegedly caused harm to Plaintiff in violation of his constitutional rights. Since Plaintiff must plead each Defendants' personal participation in the violation of his constitutional rights, the Court does not agree with Defendants that the mere knowledge of his injuries and general care provided to him that day was sufficient to put Plaintiff on notice of Nurse Trujillo's or Dr. Peterson's alleged wrongful conduct in the absence of the timing discovered during the 2022 deposition. See Est. of Roemer, 764 Fed.Appx. at 789-90 (laying out the analytical path a court must follow in determining when deliberate indifference claims accrue and noting “that a plaintiff who brings a constitutional claim under § 1983 can't obtain relief without first satisfying the personal- participation requirement.”); see also id. at 792-93 (noting the Tenth Circuit has “unequivocally and expressly” held that when a plaintiff brings deliberate-indifference claims against multiple defendants, those claims may accrue separately for each defendant depending on when the plaintiff knew or had reason to know when each defendant acted with deliberate indifference).
The Court also finds Plaintiff used reasonable diligence in seeking to discover the facts which now give rise to the claims against Nurse Trujillo and Dr. Peterson. While this Court has been critical of Plaintiff's disorderly and expansive approach to discovery (Dkt. 152), the Court will afford Plaintiff the benefit of the doubt-but without condoning Plaintiff's approach-that at least at some base level, a measure of reasonable diligence is reflected in his abundant discovery efforts which led to Nurse Trujillo's deposition and his discovery of new facts to support the claims against her and Dr. Peterson.
For these reasons, the Court respectfully recommends finding Claims 1-3 and 6 against Nurse Trujillo and Dr. Peterson are not time-barred.
2. Claim 1 (deliberate indifference): Mental Health Claims
Defendants argue Plaintiff's new mental health claims are time barred. Their argument for dismissal of these claims is, in total:
Plaintiff was placed on suicide watch between December 19 and December 27, 2018, which he alleged in both the original Complaint and the FAC. (Dkts. 1 at ¶ 27; 21 at ¶ 29.) To the extent he had any issues with the mental-health care related to his being placed on suicide watch, he should have brought those claims by December 27, 2020, as he knew there were mental-health issues at play at that time. Johnson, 925 F.2d at 1301; Liscio, 83 P.3d at 1153. He failed to do so. Because of that, Plaintiff's mental-health claims are time barred.Dkt. 247 at p.5. Plaintiff argues these new mental health claims are not time-barred because, under Fed.R.Civ.P. 15(c), the claims relate back to the date of the original complaint, which was timely filed.
Federal Rule of Civil Procedure 15(c) permits an amended pleading to relate back to the date of the original pleading in certain instances. Rule 15(c)(1)(B) provides that an amended pleading will relate back to the date of the original pleading when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). “The rationale behind Rule 15(c)(1)(B) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitation were intended to provide.” Kole v. Smith, No. 14-cv-01435-WJM-KLM, 2015 WL 5026194, at *8 (D. Colo. Aug. 26, 2015) (internal citation omitted).
If there is a “factual nexus” between the original and amended complaints, the amended claim “is liberally construed to relate back to the original complaint if the defendant had notice of the claim and will not be prejudiced by the amendment.” Benton v. Bd. of Cnty. Comm's, No. 06-cv-01406-PSF-MEH, 2007 WL 4105175, at *3 (D. Colo. Nov. 14, 2007) (quoting Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983)), aff'd, 303 Fed.Appx. 625 (10th Cir. 2008). However, “amendments generally will not relate back if they interject entirely different facts, conduct, transactions or occurrences. It is a matter committed to the district court's discretion to decide whether a new claim arises out of the same transaction or occurrence.” Kole, 2015 WL 5026194, at *8.
The Court agrees with Plaintiff that Claim 1-deliberate indifference to serious mental health needs-relates back to the filing of the original complaint under Rule 15(c). Plaintiff's original complaint raised allegations concerning his poor mental health during his confinement (Dkt. 1 at ¶¶24-25, 31, 39, 54, 67), and the Defendants' deliberate indifference to his mental well-being (Dkt. 1 at ¶¶76, 78, 8093). The allegations in the SAC add greater specificity to the prior allegations. Benton, 2007 WL 4105175, at *3 (“As a general rule, amendments will relate back if they amplify the facts previously alleged, correct a technical defect in the prior complaint, assert a new legal theory of relief, or add another claim arising out of the same facts.”). And ultimately, the Court finds a factual nexus between the allegations in the original complaint and those in the SAC. For these reasons, the Court recommends finding that Claim 1 against the “Medical Defendants”-defined as Keller, Pruett, Greenwald, Hengy, Rhoad, and Trujillo in the SAC (Dkt. 212 at ¶63, and p.39 (“First Claim for Relief”)-is not time-barred because Rule 15(c) applies.
B. Claim 6 and the Requirement of a Certificate of Review
Claim 6 lumps three theories under the heading “common law negligence and malpractice.” These include medical malpractice, negligent failure to train or supervise against Wellpath, and the theory of Wellpath's vicarious liability for its employees' malpractice. Dkt. 212 at ¶¶370-80. In relevant part, Defendants argue these claims must be dismissed because Plaintiff failed to file a certificate of review as required by Colo. Rev. Stat. § 13-20-602.
A certificate of review is required under Colo. Rev. Stat. § 13-20-602 for negligence actions against licensed professionals to “weed out frivolous claims at an early stage of the judicial process.” Yadan v. Southward, 64 P.3d 909, 912 (Colo.App. 2002). The statute provides, in part:
(1)(a) In every action for damages or indemnity based upon the alleged professional negligence of . . . a licensed professional, the plaintiff's or complainant's attorney shall file with the court a certificate of review for each . . . licensed professional named as a party, as specified in subsection (3) of this section, within sixty
days after the service of the complaint, counterclaim, or cross claim against such person unless the court determines that a longer period is necessary for good cause shown.
(1)(b) A certificate of review shall be filed with respect to every action described in paragraph (a) of this subsection (1) against a company or firm that employed a person specified in such paragraph (a) at the time of the alleged negligence, even if such person is not named as a party in such action.
(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.Colo. Rev. Stat. § 13-20-602 (emphasis added).
Defendants argue Plaintiff should have filed a certificate of review within 60 days of service of his original complaint, but he did not. Dkt. 247 at p. 6. Plaintiff concedes he did not file a certificate of review within 60 days of serving the original complaint. Dkt. 256 at p. 4. But he argues the failure to file a certificate of review is an affirmative defense, which Defendants waived by not raising it in a responsive pleading. Id. While it is true assertion of the failure to file a certificate of review is an affirmative defense, the Court does not find these Defendants waived the defense because they raised it in their responsive pleading to the SAC, i.e., the current motion to dismiss. See Miller v. Rowtech, LLC, 3 P.3d 492 (Colo.App. 2000); Blake v. United States, No. 18-cv-00570-RBJ-SKC, 2020 WL 7249090 (D. Colo. Aug. 14, 2020), report and recommendation adopted in part, rejected in part, 2020 WL 6482691 (D. Colo. Nov. 4, 2020).
It is well-established that an “amended complaint supersedes the original complaint and renders the original complaint of no legal effect.” Franklin v. Kan. Dep't of Corr., 160 Fed.Appx. 730, 734 (10th Cir. 2005) (citing Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). Moreover, it is technically impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss. See Fed.R.Civ.P. 12(b) (stating that a motion to dismiss under the rule “shall be made before pleading if further pleading is permitted”); Swearingen v. Honeywell, Inc., 189 F.Supp.2d 1189, 1193 (D. Kan. 2002).
Other than for considerations under Rule 15(c), when Plaintiff filed the SAC, it rendered his prior complaints null and void and the SAC became the operative complaint. Defendants did not file an answer to the SAC; they instead filed the Motion to Dismiss where they properly raised the defense of Plaintiff's failure to comply with Colo. Rev. Stat. § 13-20-602. Thus, Defendants correctly raised this defense in their Motion, and their having filed an answer or other response to Plaintiff's prior complaints did not waive their ability to raise this defense now in response to the SAC. See Pueblo of Pojoaque v. New Mexico, 214 F.Supp.3d 1028, 1069 (D.N.M. 2016), aff'd, 863 F.3d 1226 (10th Cir. 2017) (“[D]efendant can raise the defense on a motion to dismiss where the facts establishing the affirmative defense are apparent on the face of the complaint.”).
The first question is whether Plaintiff's certificate of review was timely. The Court does not agree with the parties that the 60-day period is tied to service of the original complaint. That is because the original complaint did not contain a negligence claim against any of these defendants. See Blake v. United States, No. 18-cv-00570-RBJ-SKC, 2020 WL 6482691, at *5 (D. Colo. Nov. 4, 2020) (“The sixty days begin to run from the date the complaint first raising the predicate claim is served on the defendant.”). Instead, the 60-days runs from service of the FAC because the FAC asserted professional negligence claims against Defendants Keller, Pruett, Greenwald, Hengy, Rhoad, and Wellpath. Dkt. 21 (Fourth Claim for Relief) at ¶¶130-36; Vreeland v. Vigil, No. 18-cv-03165-PAB-SKC, 2022 WL 911133, at *7 (D. Colo. Mar. 29, 2022) (rejecting plaintiff's argument that his certificate of review was filed within 60 days of service of his third amended complaint because he needed to file it within 60 days of his second amended complaint which added the malpractice claim).
Certificate of Review Re: Keller, Pruett, Greenwald, Hengy, Rhoad, and Wellpath
Plaintiff served Defendants Keller, Pruett, Greenwald, Hengy, and Rhoad with the FAC on July 21, 2021, when he filed the pleading. Dkt. 21. Plaintiff, therefore, was required to file a certificate of review as to them by September 19, 2021. Plaintiff served Wellpath with the FAC on August 9, 2021. Dkt. 24. Plaintiff, therefore, was required to file a certificate of review as to Wellpath by October 8, 2021.
Plaintiff did not file a certificate of review until years later, on January 14, 2023. Dkt. 155-3. The statute directs that the failure to file a certificate of review within the requisite 60-day period “shall result in the dismissal of the complaint.” Colo. Rev. Stat. § 13-20-602(4) (emphasis added). For these reasons, the Court recommends dismissal of the malpractice claims against these Defendants for Plaintiff's failure to comply with Colo. Rev. Stat. § 13-20-602(4). See Vreeland, 2022 WL 911133, at *7 (dismissing malpractice claim because certificate of review was filed over six months late).
The Court does not find a basis to excuse Plaintiff's late filing of the certificate of review for good cause. Martinez v. Badis, 842 P.2d 245, 250-251 (Colo. 1992) (trial court must determine whether plaintiffs' late filing of certificate review could be excused for good cause). First, Plaintiff has never sought leave to extend the 60-day period. Second, Plaintiff has ignored the issue of a timely certificate of review since it was first brought to his attention by Defendants. For example, Defendants filed a motion for judgment on the pleadings (regarding the FAC) (Dkt. 149) on December 30, 2022. Dkt. 149. That motion argued Plaintiff's failure to file a certificate of review. In response, Plaintiff neither sought to extend the time-period to file one, nor did he file a response to the motion for judgment on the pleadings despite seeking an extension of time to respond to that motion. Dkt. 158. Instead, on January 14, 2023, he filed his motion to amend his complaint seeking leave to file the SAC, and he filed a certificate of review with that motion. Dkts. 155, 155-3. Plaintiff has yet to offer one reason why he failed to timely file a certificate of review or what good cause there might be to extend the filing period. The Court finds no good cause under these circumstances.
Certificate of Review Re: Trujillo and Peterson
The result is the same, albeit the analysis slightly different, as concerns the two medical Defendants added with the SAC-Defendants Trujillo and Peterson. These two Defendants were added to the case with Plaintiff's filing of the SAC on March 10, 2023. Dkt. 212; see also Dkt. 211. On March 23, 2023, Plaintiff filed his request for the issuance of summonses for these Defendants (Dkt. 217) and the Clerk of Court issued those summonses on March 28, 2023 (Dkt. 222). The docket does not show Plaintiff filed the returns of service for Defendants Trujillo and Peterson. So the Court cannot precisely determine when Plaintiff served these Defendants with the SAC. Colo. Re. Stat. § 13-20-602(1)(a) (certificate of review must be filed “within sixty days after the service of the complaint ”) (emphasis). Nevertheless, these two Defendants filed the instant motion to dismiss on May 12, 2023, which indicates service occurred between the March 10 filing of the SAC and the May 12 filing of the motion to dismiss. Dkt. 247. For the sake of analysis, assuming May 12, 2023, as the latest possible date of service of the SAC on these Defendants, Plaintiff would have been required to file a certificate of review by July 11, 2023. Id.
But Plaintiff still has not filed a certificate of review pertaining to Defendants Trujillo and Peterson after serving them with the SAC. The only certificate of review he filed is the one discussed above that he filed on January 14, 2023, which pre-dates his service of the SAC on Trujillo and Peterson. See DeBuhr v. Hern, No. 15-cv-02613-PAB-MEH, 2016 WL 9738100, at *2 (D. Colo. Sept. 12, 2016) (“Nothing in the certificate of review statute suggests that the Colorado General Assembly intended courts to ignore the rules of procedure regarding when a defendant has been served, especially given that a plaintiff has sixty days after service to file the certificate.”).
As a result, the Court recommends dismissal of the malpractice claims against Defendants Trujillo and Peterson because Plaintiff failed satisfy the certificate of review requirement. See Chubb Grp. of Ins. Companies v. Snowmass Wildcat Fire Prot. Dist., 51 F.3d 285 (10th Cir. 1995) (“[A]ppellants did not file a certificate of review nor a motion for an extension of time within sixty days after the service of their third amended complaint, as required by 13-20-602. Under these circumstances, we hold that the district court did not err in granting Cottle's motion to dismiss.”). Plaintiff has not shown good cause for extending the 60-day period for the reasons previously stated above.
Direct Negligence Claims Against Wellpath
Despite the above recommendation that Plaintiff's malpractice claims are barred by his failure to timely file a certificate of review, the Court notes that neither his direct negligence claims against Wellpath nor his theory of Wellpath's vicarious liability are correspondingly barred because dismissal of the malpractice claims is on procedural grounds. Gallegos v. City of Monte Vista, 976 P.2d 299, 301 (Colo.App. 1998) (“[A]lthough an action against the police officer properly would have been barred by the one-year statute of limitations, a dismissal on that basis would have been procedural in nature and would not have operated as an adjudication on the merits; therefore, that dismissal does not bar plaintiff's action against the City to the extent it is based on a theory of respondeat superior.”).
Relying on Brown v. Long Romero, 495 P.3d 955 (Colo. 2021), Wellpath first argues Plaintiffs' direct negligence claims against it-negligent failure to train or supervise-should be dismissed because Plaintiff asserts Wellpath's vicarious liability for the torts of its employees and Wellpath has acknowledged it is vicariously liable. But Plaintiff correctly points out that this argument is based on a rule that the Colorado general assembly abrogated when it enacted Colo. Rev. Stat. § 13-21-111.5. And the Court further notes that Brown is distinguishable.
In Ferrer v. Okbamicael, 390 P.3d 836, 841-42 (Colo. 2017), the Colorado Supreme Court adopted the McHaffie Rule articulated by the Supreme Court of Missouri in McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). That rule provided that where an employer acknowledges vicarious liability for its employee's negligence, a plaintiff's direct negligence claims against the employer are barred. Ferrer, 390 P.3d 841-42. But the Colorado general assembly abrogated this rule when it amended Colo. Rev. Stat. § 13-21-111.5 “to reverse the holding in [Ferrer], that an employer's admission of vicarious liability for any negligence of its employees bars a plaintiff's direct negligence claims against the employer.” Colo. Rev. Stat. § 13-21-111.5(c). “In abrogating Ferrer, the General Assembly repealed the McHaffie Rule and allowed plaintiffs to simultaneously assert vicarious liability and direct negligence claims against an employer.” Brown v. Long Romero, 495 P.3d 955, 957 n.2 (Colo. 2021).
Defendants gloss over abrogation of the rule they now ask this Court to apply. They argue, in their Reply:
[a]lthough C.R.S. § 13-21-111.5(1.5)(a) abrogated Ferrer on September 7, 2021, the Colorado Supreme Court issued its opinion in [Brown] on September 27, 2021, finding that a “plaintiff's direct negligence claims against an employer are not barred where the plaintiff does not assert vicarious liability for an employee's negligence.” Brown, 495 P.3d at 961. That case has not been overturned. According to Brown, Plaintiff cannot bring both a vicarious liability and a direct negligence claim against Wellpath.Dkt. 267 at p.5 (footnotes omitted).
Defendants' argument takes Brown out of context. In Brown, the plaintiff brought only direct negligence claims against the employer and did not assert the employer's vicarious liability for the employee's negligence. Brown, 495 P.3d at 95657. Since the Plaintiff in Brown did not also assert vicarious liability, the Brown Court did not address the general assembly's abrogation of Ferrer because it was not confronted with both direct negligence claims and the assertion of vicarious liability. And in any event, the Brown Court acknowledged both the general assembly's abrogation of Ferrer and repeal of the McHaffie Rule. Id. at 957 n.2. This all means Plaintiff may assert his direct negligence claims against Wellpath because he simultaneously asserts Wellpath's direct negligence and its vicarious liability. Colo. Rev. Stat. § 13-21-111.5(c).
Addressing these procedural matters, however, does not end the inquiry as the Court now turns to considering the sufficiency of the allegations under Rule 12(b)(6).
C. Failure to State a Claim
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court accepts the well-pleaded facts as true and views the allegations in the light most favorable to the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). But the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
The Twombly/Iqbal pleading standard requires courts to take a two-prong approach to evaluating the sufficiency of a complaint. Iqbal, 556 U.S. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
1. Claim 6: Direct Negligence Claims Against Wellpath
Plaintiff asserts negligent supervision and training against Wellpath.
Colorado courts analyze negligent training and supervision claims the same. Handy v. Cummings, 2014 U.S. Dist. LEXIS 4366 at *12 (D. Colo. 2014) (“Indeed, Colorado appears to characterize a negligent training and supervision claim as the same claim.”); Kahland v. Villarreal, 155 P.3d 491, 493 (Colo.App. 2006) (“[A] claim for negligent hiring, training, and supervision is based on the employer's failure to discover that the employee created an undue risk of harm to others.”). “[I]n a claim for negligent supervision against an employer the plaintiff must prove that the defendant knew his employee posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of that risk.” Keller v. Koca, 111 P.3d 445, 446 (Colo. 2005), as modified on denial of reh'g (May 16, 2005). “[T]he plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm.” Id. at 448
In their Motion, Defendants argue Plaintiff's direct negligence claim fails under Rule 12(b)(6). The Court agrees that the SAC fails to allege sufficient facts to plausibly infer Wellpath knew (or should have known) any one of the individual medical defendants posed a risk of harm to Plaintiff, or that any harms which did occur were a foreseeable manifestation of that alleged risk. The allegations in this regard are wholly conclusory and mere restatements of the elements of this claim. See Dkt. 212 at ¶¶370-80. Keller, 111 P.3d at 446; Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.”).
Also, while the SAC contains numerous allegations regarding Wellpath's lack of training of its employees, it inconsistently pleads “[t]he individual Medical Defendants have received professional education and training for the performance of their respective professions to patients in the community.” Dkt. 212 at ¶373. The latter conflicts with the conclusory allegations regarding Wellpath's failure to train and its knowledge that these employees posed a risk of harm to Plaintiff, thus further damaging the plausibility of Plaintiff's direct negligence claims. Because of these contradictions, the Court does not accept these inconsistent factual claims. McKinley Med., LLC v. Medmarc Cas. Ins. Co., No. 11-cv-01218-CMA-KMT, 2012 WL 987821, at *5 (D. Colo. Mar. 23, 2012) (on Rule 12(b)(6) motions, “courts must liberally construe and accept as true allegations of fact in the complaint and inferences reasonably deductive therefrom, [but] they need not accept factual claims that are internally inconsistent”) (cleaned up).
For these reasons, the Court respectfully recommends the direct negligence claims against Wellpath be dismissed.
2. Section 1983 Claims Under the Fourteenth Amendment
Plaintiff brings three iterations of his deliberate indifference claim: (1) Claim 1: deliberate indifference to serious mental health needs; (2) Claim 2: deliberate indifference regarding inadequate food and water; and (3) Claim 3: deliberate indifference regarding serious medical needs - cold exposure and frostbite. The test for deliberate indifference has both objective and subjective components. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). First, the plaintiff must show that objectively, the harm complained of is “sufficiently serious” to merit constitutional protection. Id. The Court finds the SAC pleads sufficient facts to support the objective component, and Defendants do not appear to argue otherwise.
Second, the plaintiff must establish the defendants were subjectively aware of the substantial risk to the plaintiff's health or safety and that they acted in purposeful disregard of that risk. Martinez, 563 F.3d 1082, 1089 (10th Cir. 2009). The subjective component requires an “inquiry into a [defendant's] state of mind[.]” Kikumura v. Osagie, 461 F.3d 1269, 1293 (10th Cir. 2006), overruled on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 838 (1994)). The requisite state of mind is “akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (cleaned up). In the Tenth Circuit, a plaintiff must show a defendant “disregard[ed] the specific risk of harm claimed by the prisoner, not a more general risk.” Whiteman v. El Paso Crim. Just. Ctr., No.10-cv-02430-WYD-KLM, 2011 WL 2610202, at *4 (D. Colo. July 1, 2011).
And as always, to state a claim in federal court, a complaint must explain what each defendant did to the plaintiff; when the defendant did it; how the defendant's action harmed the plaintiff; and what specific legal right the plaintiff believes the defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just. Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (“Personal participation is an essential allegation in a § 1983 claim.”).
a. Claim 1: Deliberate Indifference to Serious Mental Health Needs
Plaintiff asserts this claim against Defendants Keller (mental health professional), Pruett (mental health professional), Greenwald (registered nurse), Hengy (registered nurse), Rhoad (registered nurse), and Trujillo (registered nurse). Dkt. 212 at ¶63. The thrust of the supporting allegations appears in paragraphs 6384 and 201-17 of the SAC. See Id.
Nurse Greenwald
The only allegations specific to Nurse Greenwald are that she was part of the nursing and mental health staff, she personally observed Plaintiff on four dates in December 2018, and she observed Plaintiff in providing “CIWA medications, conducting CIWA assessments, and doing purported ‘welfare' checks on a daily basis.” Id. at ¶¶42, 63-65. Aside from these allegations, the remaining allegations devolve into group pleading; such as, for example: (1) “The Medical Defendants observed that Mr. Pinto-Rios was ‘gravely disabled[;]'” (2) “None of the Medical Defendants checked or followed up to make sure Mr. Pinto-Rios was receiving the treatment he needed[;]” and (3) other allegations about what “each of the Defendants” knew, was aware of, or had notice about. Id. at ¶¶80, 84, 206-07, 209; cf. Carrado v. Daimler AG, No. 17-cv-3080-WJM-SKC, 2018 WL 4565562, at *3 (D. Colo. Sept. 24, 2018) (“Group pleading violates Rule 8 when a plaintiff fails to distinguish among multiple defendants, including on claims that could not apply to certain defendants.”) (citing Snyder v. ACORD Corp., 2016 WL 192270, at *3 (D. Colo. Jan. 15, 2016), aff'd 684 Fed.Appx. 710 (10th Cir. 2017) (repeatedly referencing 113 defendants as a group when only a small minority engaged in certain conduct violated Rule 8)).
Without more factual allegations to support Nurse Greenwald's subjective awareness of a substantial risk of harm to the Plaintiff's mental health or safety, or to support that Nurse Greenwald acted in purposeful disregard of that risk, the SAC fails to allege a plausible claim against her. To be sure, out of 380-numbered allegations in the SAC, the pleading only refers to Nurse Greenwald personally in five of them. Id. at ¶¶15, 42, 63-65. The drafting makes obvious that the conclusory and group-pleaded allegations are Plaintiff's only link tying Nurse Greenwald to this claim. While “[s]pecific facts are not necessary” under the notice pleading standard, at least sufficient facts are to survive a Rule 12(b)(6) motion. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Khalik, 671 F.3d at1191 (“[I]n examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements[.]”). Disregarding the conclusory and group-pleaded allegations, the SAC fails to allege a plausible claim against Nurse Greenwald and the Court respectfully recommends dismissal of Claim 1 against this defendant.
Nurses Hengy, Rhoad, and Trujillo
The identical analysis, conclusion, and recommendation apply to the factually sparse and conclusory/group-pleaded allegations against Nurses Hengy, Rhoad, and Trujillo. The SAC relies on the same allegations against these Defendants as it does for Nurse Greenwald. See Dkt. 212 at ¶¶42, 63-65, 201-17. The Court respectfully recommends dismissal of Claim 1 against these defendants.
MHPs Keller and Pruett
Concerning mental health professionals Keller and Pruett, Defendants argue the allegations show only that Keller and Pruett continuously provided Plaintiff with mental health care during his detention, and do not demonstrate they consciously disregarded his serious mental health needs. The Court agrees.
The SAC alleges Pruett and Keller are mental health professionals but they are not “licensed to diagnose conditions or order medications.” Dkt. 212 at ¶¶13-14, 44. Each of them personally assessed and observed Plaintiff on multiple days in December 2018 while doing suicide watch assessments. Id. at ¶¶71-72. Pruett noted many things about Plaintiff's erratic behavior or condition, and on December 18 made a note to refer Plaintiff to Dr. Reynolds, a psychiatrist. Id. at ¶¶72-73. But Plaintiff “was never referred to Dr. Reynolds.” Id. at ¶74.
Three days later, on December 21, Keller emailed Pruett and jail administration that Plaintiff was “psychotic, fighting aliens in his cell, eating feces, and that she had medical records showing his past mental health treatment.” Id. at ¶75. Keller then conducted suicide watch assessments of Plaintiff on multiple days and noted his erratic behavior and condition. Id. at ¶76. On December 24, Pruett got Plaintiff to take Haldol and Cogentin but he spit the medications out. Id. at ¶77.
The SAC then reverts to group pleading, alleging:
80. The Medical Defendants observed that Mr. Pinto-Rios was “gravely disabled.”
82. Despite possessing knowledge of his psychotic condition and being “gravely disabled” by mental illness, none of the providers acted to ensure that Mr. Pinto-Rios received access to providers capable of treating his severe mental illness or providing him with necessary medications.
83. None of the Medical Defendants made a referral for Mr. Pinto-Rios to be seen by Dr. Reynolds or put him on her schedule to be seen so that his bipolar/psychosis could be treated despite being
aware of his psychotic state and being “gravely disabled” by mental illness.
84. None of the Medical Defendants checked or followed up to make sure Mr. Pinto-Rios was receiving the treatment he needed.Id.
To reiterate, to survive Rule 12(b)(6) on his claims for deliberate indifference, the SAC must include sufficient facts to plausibly establish (in relevant part) the subjective component of the claim. The SAC fails to do so with Keller and Pruett. There are insufficient factual allegations regarding Keller's subjective intent. And the closest the SAC comes with Pruett are the allegations that Pruett “made a note to refer [Plaintiff] to [Dr. Reynolds[,]” but Plaintiff “was never referred to Dr. Reynolds[.]” Dkt. 212 at ¶¶73-74. But the latter allegation is passive, which is problematic because:
. . . § 1983 . . . [is a] vehicle[ ] for imposing personal liability on government officials, we have stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants. It is particularly important that plaintiffs make clear exactly who is alleged to have done what to whom, ... as distinguished from collective allegations. When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights ‘were violated' will not suffice. Likewise insufficient is a plaintiff's more active-voice yet undifferentiated contention that ‘defendants' infringed his rights.Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013) (cleaned up).
The SAC does not allege sufficient facts to establish, for example, that it was Pruett or Keller (or someone else) who failed to make the referral-it simply alleges Plaintiff “was never referred”-or facts to establish why the referral never occurred, i.e., out of deliberate indifference or mere inadvertence. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (noting an inadvertent failure to provide adequate medical care fails to state a deliberate indifference claim); Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (“A negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.”). And there are insufficient factual allegations to plausibly infer either of these Defendants' subjective intent. For these reasons, the Court respectfully recommends dismissal of Claim 1 against Keller and Pruett.
b. Claim 2: Deliberate Indifference re: Inadequate Food and Water
Plaintiff asserts this claim against all Defendants. He generally alleges that “[o]ver 10 ten (sic) days, Plaintiff did not receive adequate food and water and his physical condition deteriorated.” Dkt. 212 at ¶85. The problem with this claim, again, is its group pleading, to wit: “Each on-duty Defendant during this period failed to provide sufficient food or water to Mr. Pinto Rios, failed to take appropriate measures for food and water in light of his mental health condition, [and] failed to take steps to remedy his emaciated/dehydrated state[.]” Dkt. 212 at ¶156.
Many other allegations supporting this claim are conclusory and merely recite the legal elements of the claim. Id. at ¶¶218-30. This is problematic considering the large number of Defendants in this case between the medical defendants and the jailpersonnel defendants. See Pahls, 718 F.3d at 1225-26.
The Nurses
In terms of any personal involvement, the SAC alleges MPHs Keller and Pruett, and Nurses Greenwald, Hengy, Rhoad, and Trujillo, “personally observed” Plaintiff on various days over the 10-day period. Dkt. 212 at ¶¶63-65, 71-72, 76. But this claim fails Rule 12(b)(6) as against Nurses Trujillo, Greenwald, Hengy, and Rhoad for the same reasons the Court found Claim 1 fails against Nurses Greenwald, Hengy and Rhoad-the allegations against these Defendants are factually sparse and conclusory or group-pleaded allegations which fail to plausibly allege the subjective component of the deliberate indifference claim. See, supra Section 3(a); Dkt. 212 at ¶¶42 63-65, 218-30.
The Mental Health Professionals
The same is true of this claim as it pertains to MPHs Keller and Pruett. While there are additional factual allegations against these Defendants regarding their respective personal observations or knowledge of Plaintiff not eating or drinking, being without water for days, being thirsty, or being confused and wobbly (Dkt. 212 at ¶¶72, 93-94 (Pruett); 96, 98, 99 (Keller)), the SAC contains only conclusory allegations to plausibly infer they acted in purposeful disregard of the risks to Plaintiff resulting from a lack of food or water.
First, the SAC fails to allege sufficient facts regarding whether it was either of these Defendants' responsibility or within their authority to provide meals and drink to Plaintiff as a pre-trial detainee, versus the obligations of the law enforcement defendants who ran and oversaw the facility. Second, to the extent that Plaintiff alleges his dehydration and emaciation required additional medical care that was not provided, these allegations are conclusory. See Dkt. 212 at ¶¶96 (alleging “[c]onfusion and disorientation are classic signs of dehydration and/or malnourishment.”); 98 (alleging similar); 99 (“This was likely a continuing medical issue related to insufficient food and water.”); 222 (“These Defendants acted with deliberate indifference to Mr. Pinto-Rios' obviously serious medical needs and constitutional rights in seeing obvious signs and symptoms of dehydration, malnourishment, and emaciation, and they failed to take simple and easy action to abate the harms.”). Moreover, these conclusory allegations conflict with the SAC's allegation that Keller and Pruett are mental health providers who are not licensed to diagnose conditions or order medications. Id. at ¶44. Because of these contradictions, the Court does not accept these inconsistent factual claims. McKinley Med., LLC, 2012 WL 987821, at *5.
In sum, neither the conclusory allegations nor the allegations regarding Keller's and Pruett's respective personal observations or notations regarding Plaintiff's lack of food or water include sufficient facts to plausibly allege these Defendants' respective subjective intent. The Court respectfully recommends the Motion be granted as to Claim 2.
c. Claim 3: Deliberate Indifference Re: Serious Medical Need - Cold Exposure and Frostbite
Plaintiff asserts this claim against MPH Keller, Nurse Trujillo, and Dr. Peterson. Dkt. 212 at p.44. This claim involves allegations that on or about December 26 and 27, 2018, “temperatures in Mr. Pinto-Rios['] cell dropped to below freezing” and he suffered frostbite to his fingers, feet, and nose that began with his nose the morning of December 26. Id. at ¶¶328-29. “Each of the Defendants entered Mr. Pinto-Rios' cell or otherwise observed the frostbite on Mr. Pinto-Rios' body on December 26 or 27, 2018, but failed to take appropriate action to abate the jail or medical condition(s), including calling for maintenance, transferring Plaintiff to another cell, calling for medical attention, or referring Mr. Pinto-Rios out for urgent medical care.” Id. at ¶330.
MPH Keller
Defendants astutely point out that the only allegation in the SAC specific to Keller's role in this instance of alleged deliberate indifference is the following:
Defendant Wenzel and Hobaugh are believed to have conducted the med pass together that morning [December 27], with Defendant Keller and Nurse Trujillo. Each of these persons would have been unequivocally aware that Mr. Pinto-Rios's fingers were obviously discolored and purple and/or black, to an extreme that obviously indicated frostbite was present, no later than approximately 7:10 a.m. on December 27, 2018.Id. at ¶183. Yet again, the SAC pleads a wholly conclusory allegation.
The SAC pleads no additional facts to plausibly infer Keller's “unequivocal awareness” of the condition of Plaintiff's fingers. For example, there are no allegations she looked at his fingers, examined his extremities, or documented her observations of his physical condition when she “conducted the med pass” that morning. And again, the SAC alleges Keller is a mental health provider who is not licensed to diagnose conditions. Id. at ¶44. Considering the latter allegation, and without more, the SAC pleads insufficient facts in support of the subjective component vis-a-vis Keller. See Mata v. Saiz, 427 F.3d 745, 751 (the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must also draw the inference).
Nurse Trujillo
The same pertains to the allegations against Nurse Trujillo. The SAC alleges Nurse Trujillo performed the med pass at 7:08am on December 27, saw Plaintiff's frostbite, and that she “testified at her deposition that she contacted Dr. Peterson immediately after discovering the frostbite.” Dkt. 212 at ¶¶182-83, 185-86.
The allegation that Nurse Trujillo acted “immediately” to contact Dr. Peterson after she discovered Plaintiff's frostbite negates any plausible pleading of the subjective component of the deliberate indifference claim; the SAC itself pleads that Nurse Trujillo did not delay informing Dr. Peterson of Plaintiff's condition. On these allegations, there are insufficient facts to support Plaintiff's claim that Nurse Trujillo ignored any risks to Plaintiff's health by not attempting to secure Dr. Peterson's immediate care. The Court respectfully recommends dismissal of Claim 3 against Nurse Trujillo as a result.
Dr. Peterson
Viewing the allegations in the SAC in the light most favorable to Plaintiff, the Court does find the SAC states a plausible claim (Claim 3) against Dr. Peterson. A plaintiff may establish deliberate indifference by showing that the defendants' delay in providing medical treatment caused substantial harm. Mata, 427 F.3d at 751. Even a brief delay in treatment may be unconstitutional. See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (a delay of “several hours” in taking an inmate with chest pains to a hospital was unconstitutional).
Regarding Dr. Peterson, the well-pleaded allegations are that Nurse Trujillo “immediately” contacted Dr. Peterson about Plaintiff's frostbite after she discovered it during the 7:08am morning med pass. Dkt. 212 at ¶¶182-83, 185-86. Video shows Dr. Peterson did not examine Plaintiff until 2:25pm. Id. at ¶189. EMTs “were called” at about 3:00pm and arrived shortly thereafter to take Plaintiff to the hospital. Id. at ¶190.
The SAC includes sufficient facts to plausibly allege that a period of over seven hours passed between the time Nurse Trujillo notified Dr. Peterson of Plaintiff's frostbite, and the time Dr. Peterson arrived to examine him. Id. at ¶¶182-83, 185-87, 189, 191. During that over seven-hour period, the SAC alleges Plaintiff's condition worsened-his fingers turned darker in color, skin tissue on his fingers and face was dying and started to harden, the tips of all his fingers (excluding thumbs) and some of his toes were later amputated, and the remaining damage to his fingers and toes took months to heal while he lived with continuous open wounds. Id. at ¶¶188, 19899. Finally, the SAC alleges this delay in care “prevented Plaintiff from getting timely care immediately necessary to prevent further harm and/or to recover the damaged frostbitten tissue, which ultimately resulted in loss/amputation of his fingers and other frostbite harms, including physical and emotional suffering.” Id. at ¶335.
These facts are sufficient to support the claim that Dr. Peterson, as the staff physician (Dkt. 212 at ¶42), caused Plaintiff substantial harm by delaying medical care for over seven hours, and thus, he was deliberately indifferent to Plaintiff's serious medical needs. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (a delay in medical care is a constitutional violation “where the plaintiff can show that the delay resulted in substantial harm.... We have held that the substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.”) (cleaned up). The Court respectfully recommends the Motion be denied as to Claim 3 against Dr. Peterson.
For the reasons shared above, the Court respectfully recommends the Motion to Dismiss be GRANTED IN PART and DENIED IN PART, as follows:
1. Claim 6 be dismissed in its entirety; 2. Claims 1-2 be dismissed as against the medical defendants; and, 3. Claim 3 be dismissed against Defendants Pruett, Keller, Greenwald, Hengy, Rhoad, and Trujillo, but remain against Defendant Peterson.