Opinion
Civil Action 22-cv-01523-RM-STV
09-18-2023
KIRK CORNELL HURD, Plaintiff, v. ZACHARY CAMPBELL and SUETLANA POLYADOVA Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATED MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint (the “Motion”). [#63] The Motion has been referred to this Court. [#64] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Amended Complaint (the “Complaint”) [#59], which the Court accepts as true at this stage of the proceedings. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
At the time of the events giving rise to the present suit, Plaintiff Kirk Hurd was a Colorado Department of Corrections (“CDOC”) inmate, incarcerated in the Denver Reception and Diagnostic Center (“DRDC”). [#59 at ¶ 1] In July of 2020, Plaintiff was diagnosed with “stage IV base of tongue squamous cell carcinoma.” [Id. at ¶ 2] As part of his treatment, Plaintiff had a gastronomy tube (“G-tube”) placed in his stomach, which remained there for over a year. [Id. at ¶¶ 2, 4] On September 9, 2021, at the Medical Center of Aurora (“Aurora South”), the G-tube was removed. [Id. at ¶ 5] A nurse explained to Plaintiff that he should contact Aurora South immediately if there are any complications. [Id.] The claims in this action arise from the medical treatment that Plaintiff received at DRDC following this G-tube removal procedure.
Soon after Plaintiff returned to DRDC he “noticed yellow-bio and blood coming out of the [ ] G-tube site.” [Id. at ¶ 6] When Plaintiff asked CDOC personnel to return to Aurora South, Plaintiff was told to submit a medical kite. [Id.] On September 10, 2021, Plaintiff told a CDOC nurse, “the G-tube site is very painful, with blood, food and stomach acid coming out,” and Plaintiff was again told to submit a medical kite. [Id. at ¶ 7] Three days later, Plaintiff was seen by his assigned medical provider, Defendant Zachary Campbell. [Id. at ¶ 10] Defendant Campbell did not know how to address Plaintiff's ailments and offered to call Aurora South for guidance. [Id.] When Plaintiff asked to return to Aurora South, Defendant Campbell responded, “I'll see.” [Id.]
On September 14, 2021, Plaintiff submitted an “emergency medical kite,” and he was seen the following day by another medical provider, Defendant Suetlana Polyadova. [Id. at ¶¶ 11-12] Defendant Polyadova “took a culture of the Plaintiff's G-tube site and add[ed] a moisture barrier cream with the dressing.” [Id. at ¶ 12] Plaintiff alleges that the moisture barrier cream bears a warning label stating that the barrier is “not to be applied over deep or puncture wounds or lacerations.” [Id. at 14]
On September 15, 2021, Plaintiff submitted a grievance, asking for a new provider, which was denied. [Id. at ¶ 13] The next day, Defendant Campbell saw Plaintiff. [Id. at ¶ 14] Defendant Campbell changed the dressing on Plaintiff's wound, and informed him that “Aurora South said that the leaking is normal.” [Id.] On September 17, 2021, Plaintiff had an individual counseling session with Dr. David C. Blakely due to Plaintiff's mental anguish. [Id. at ¶ 15]
On September 19, 2021, the dressing on Plaintiff's wound was “full of blood,” and a CDOC nurse wanted Defendant Campbell to look at Plaintiff, but Defendant Campbell refused. [Id. at ¶ 16] The next day, Plaintiff submitted another medical kite. [Id. at ¶ 17] On September 21, 2021, Plaintiff saw Defendant Campbell and they discussed the G-tube site. [Id. at ¶ 18] At this time, Plaintiff was “weak from the lack of food and water” and “[m]oving around [was] very painful.” [Id.] Defendant Campbell suggested that Plaintiff “exercise to make the G-tube hole close,” and informed Plaintiff that the culture, taken by Defendant Polyadova, showed signs of infection. [Id.] Plaintiff asked to return to Aurora South and Defendant Campbell responded “the leaking is normal.” [Id.] Defendant Campbell then ordered antibiotics for Plaintiff. [Id.]
On September 22, 2021, Plaintiff's G-tube site was “very irritating, bloody and painful.” [Id. at ¶ 19] Plaintiff was given “a moisture barrier cream for the burning,” which made his condition worse. [Id.] On September 30, 2021, Plaintiff was transported to the Denver Health Emergency Room (“Denver Health”), where a physician put a fresh dressing on the wound and told Plaintiff to go to Aurora South for follow-up. [Id. at ¶ 21]
On October 6, 2021, Plaintiff was experiencing severe pain and “walking slowly.” [Id. at ¶ 22] He asked Defendant Campbell for a wheelchair which Defendant Campbell denied. [Id.] The following day, Plaintiff filed another grievance, requesting a wheelchair and “adequate medical care.” [Id. at ¶ 23]
On November 30, 2021, Plaintiff was transported to Rocky Mountain Cancer Centers for a routine check-up, and Plaintiff explained to his physician that his G-tube site had been leaking since September 9, 2021. [Id. at ¶ 24] The physician said: “[y]our G-tube should not be leaking, that's not normal.” [Id.] The physician then ordered an upper G-I series of x-rays. [Id.]
Plaintiff, proceeding pro se, initiated the instant action on June 17, 2022. [#1] He filed the operative Amended Complaint (the “Complaint”) on April 6, 2023. [#59] The Complaint asserts: (1) a gross negligence claim against Defendant Polyadova in her individual capacity, (2) a negligence claim against Defendant Campbell in his individual capacities, and (3) a deliberate indifference claim under the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Defendant Campbell in his individual capacity.[#59 at 2-3, 11-15] The Complaint seeks unspecified monetary damages. [Id. at 17]
The Complaint is somewhat unclear as to which claims are being asserted and against whom those claims are asserted. Plaintiff has a section labeled “Claim I: ‘Gross Negligence'” that discusses Defendant Polyadova's treatment of Plaintiff [id. at 13-15] and another section labeled “Claim II: Negligence” that discusses Defendant Campbell's treatment of Plaintiff [id. at 12]. The Complaint does not contain a section specifically asserting a Section 1983 claim. But, the Complaint maintains that the Court has jurisdiction pursuant to Section 1983 [id. at 3], mentions the Eighth and Fourteenth Amendments in the negligence claim brought against Defendant Campbell [id. at 11-12], and mentions deliberate indifference in the prayer for relief [id. at 17]. Thus, liberally construing Plaintiff's Complaint, the Court presumes that Plaintiff intended to bring a deliberate indifference claim against Defendant Campbell.
On April 26, 2023, Defendants Campbell and Polyadova filed the instant Motion, seeking dismissal of the claims against them. [#63] Plaintiff has responded to the Motion [#72] and Defendants have filed a reply [#76].
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
B. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
C. Pro Se Litigants
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
The Motion alleges that: (1) the negligence and gross negligence claims against Defendant Campbell and Defendant Polyadova are barred pursuant to the Colorado Governmental Immunity Act (“CGIA”) [#63 at 5-7]; (2) the Section 1983 claims against Defendant Campbell fail to state a claim upon which relief may be granted [id. at 7-13]; and (3) Defendant Campbell is entitled to qualified immunity [id. at 13-14]. The Court begins with the federal claims and then turns to Plaintiff's state claims.
A. The Eighth and Fourteenth Amendment Claims
The Complaint asserts Section 1983 claims for deliberate indifference under the Eighth and Fourteenth Amendments against Defendant Campbell in his individual capacity. [#59 at 12] Defendants argue these claims must be dismissed because Plaintiff fails to allege facts which could support a claim for relief. [#63 at 7-13] The Court agrees with Defendants.
In the Complaint, Plaintiff references the Fourteenth Amendment only once. Specifically, in discussion of his alleged inadequate access to medical care, Plaintiff states: “Plaintiff was consistently denied and refused needed emergency medical care to prevent Plaintiff's undue pain, suffering, and possible permanent physical impairment in violation of Plaintiff's 8th and 14th Amendment of the U.S. Constitution.” [#59 at 12] According to the Complaint, Plaintiff was a convicted inmate during the relevant period. [#59 at ¶ 1] As a result, the source of the constitutional right to adequate medical care is the Eighth Amendment, not the Fourteenth. Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (reviewing deliberate indifference claim of convicted inmates under the Eighth Amendment, not the Fourteenth Amendment, because “where constitutional protection is afforded under specific constitutional provisions, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of substantive due process”). And Plaintiff does not develop any additional arguments in support of an alleged due process violation. As a result, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Fourteenth Amendment claim against Defendant Campbell in his individual capacity. Moreover, because Plaintiff cannot change his convicted status through better pleading, the Court RECOMMENDS that Plaintiff's Fourteenth Amendment claim against Defendant Campbell in his individual capacity be DISMISSED WITH PREJUDICE.
The Eighth Amendment to the United States Constitution protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials violate this standard when they are deliberately indifferent to an inmate's serious medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
“‘Deliberate indifference' involves both an objective and a subjective component. The objective component requires the deprivation of the medical need to be ‘sufficiently serious.'” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). The subjective component of a deliberate indifference claim “is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component 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) (quoting Farmer, 511 U.S. at 837, 839). In other words, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837) (alteration in original); see also id. at 753 (stating that the subjective component inquiry is: “were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”).
In the prison medical context, the Tenth Circuit recognizes two types of conduct that will constitute deliberate indifference to a medical need. First, “a medical professional may fail to treat a serious medical condition properly.” Sealock, 218 F.3d at 1211. Second, a prison official may “prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” Id. A medical professional is generally not liable for this second type of violation unless that professional's role “is solely to serve as a gatekeeper for other medical personnel capable of treating the condition, and . . . he delays or refuses to fulfill that gatekeeper role due to deliberate indifference.” Id.
The Tenth Circuit has made clear “that the subjective component [of a deliberate indifference claim] is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment.” Self, 439 F.3d at 1232. “[N]egligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
1. Objective Component
“At the pleading stage, the objective showing requires a prisoner to allege facts that establish a serious medical condition.” Broach v. Morris, No. 17-CV-02791-MSK-NYW, 2020 WL 2306637, at *4 (D. Colo. May 8, 2020). For purposes of the Motion, Defendants do not dispute that Plaintiff's G-tube site wound and its associated symptoms constitute a serious medical condition. [#63 at 8] The Court agrees with this concession. The Complaint alleges, for example, that Plaintiff “noticed yellow-bio and blood coming out of the [ ] G-tube site” [#59 at ¶ 6]; the G-tube site was “very painful” with “food and stomach acid coming out” [Id. at ¶ 7]; and the dressing on the wound was at one time “full of blood” [Id. at ¶ 16]. Accordingly, the Court concludes that Plaintiff's alleged injuries and associated symptoms constitute a sufficiently serious medical need for which a lay person would recognize the need for a doctor's attention. See e.g., Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) (affirming district court finding that “oozing sores and the smell of infection made [the inmate's] serious medical needs ‘more than obvious' to a layperson”).
Nonetheless, Defendants appear to challenge the objective component on the ground that Plaintiff received regular treatment for his condition. [#63 at 9-10] But, the “issue of whether Plaintiff had a sufficiently serious medical condition . . . is separate from the inquiry into the adequacy of the treatment provided for that condition.” Mathison v. Wilson, No. 14-CV-03345-RM-STV, 2017 WL 4221396, at *6 (D. Colo. Feb. 28, 2017), report and recommendation adopted, 2017 WL 4227570 (D. Colo. May 10, 2017), aff'd, 719 Fed.Appx. 806 (10th Cir. 2017). The Court addresses the treatment Plaintiff received in analyzing the subjective component of Plaintiff's claims.
2. Subjective Component
Defendants argue that, “[a]ssuming . . . that a leaking and painful G-tube removal site is ‘sufficiently serious,'” Plaintiff has nonetheless failed to allege a constitutional violation. [#63 at 8-13] Plaintiff argues that Defendant Campbell was deliberately indifferent to his medical needs, where Defendant Campbell: (1) failed to properly treat Plaintiff's G-tube extraction site [#72 at 11-12, 16-17]; (2) failed to transport Plaintiff to Aurora South for follow-up [#59 at ¶ ¶ 6,10,18]; and (3) generally delayed treatment [#72 at 12-13].
The allegations in the Complaint, even taken as true, fail to show that Defendant Campbell knowingly disregarded the risk of Plaintiff's condition. Although the allegations permit the reasonable inference that as of September 10, 2021 Defendant Campbell knew that Plaintiff's G-tube site was painful and leaking, [#59 at ¶ 7 (Plaintiff was told to submit a medical kite to Campbell regarding painful G-tube site)], there is nothing in the Complaint to suggest that Defendant Campbell (1) failed to treat the serious medical condition properly, or (2) denied or deliberately delayed Plaintiff's access to appropriate medical intervention. See Sealock, 218 F.3d at 1211.
To the contrary, the Complaint demonstrates that Plaintiff received regular medical care, from both Defendant Campbell as well as other providers. [see generally #59] Plaintiff returned to DRDC after the G-tube removal procedure, and he received the following care: (1) on September 9, 2021, Provider Stephanie Dove ordered lab work and had a nurse change Plaintiff's dressing [id. at ¶ 6]; (2) on September 10, 2021, Plaintiff “called to the clinic for labs and dressing change” and he was seen by Nurse Benyamin David [id. at ¶ 7]; (3) on September 13, 2021, Plaintiff was seen by Defendant Campbell, who contacted Aurora South about Plaintiff's condition [id. at ¶ 10]; (4) on September 15, 2021, Plaintiff was seen by Nurse Payton Schulthies and Provider Suetlana Polyadova -who “took a culture of the Plaintiff's G-tube site and added a moisture barrier cream with the dressing” [id. at ¶ 12]; (5) on September 17, 2021, Dr. David C. Blakely had an individual counseling session with Plaintiff “because of the mental anguish that the Plaintiff [was] going through” [id. at ¶ 15]; (6) on September 19, 2021, Plaintiff was seen by Nurse Brittany Kimbel [id. at ¶ 16]; (7)) on September 20, 2021, Provider Stephanie Dove called to see Plaintiff for lab work [id. at ¶ 17]; (8) on September 18, 2021, Plaintiff was seen by Defendant Campbell who ordered antibiotics in response to an infection of the wound site and gave Plaintiff input as to how to close the wound [id. at ¶ 18]; (9) on September 22, 2021, Plaintiff was given moisture barrier cream for the burning sensation [id. at ¶ 19]; (10) on September 30, 2021, Plaintiff was transported to Denver Health where a physician put a fresh dressing on the G-tube removal site [id. at ¶ 21]; (11) on October 6, 2021, Plaintiff was again seen by Defendant Campbell [id. at ¶ 22]; and (12) on November 30, 2021, Plaintiff was transported to the Rocky Mountain Cancer Centers for a routine check-up [id. ¶ 24].
Although Plaintiff contends that on this one occasion Defendant Campbell refused to see Plaintiff, [#59 at ¶ 16], it appears that Plaintiff was receiving treatment from Nurse Brittany Kimbel at the time [id.], and Plaintiff offers no explanation for why it allegedly was necessary for him to be seen by both Nurse Kimbel and Defendant Campbell.
Plaintiff's main concern appears to be that the treatments he received from Defendant Campbell were inadequate, resulting in continued pain and accompanying limitations. [#72 at 11 (“the defendant put a ban-aide [sic] on a hole and called it adequate medical treatment, when the Plaintiff needed surgery to stop the leaking”); id. at 12 (“Would an expert witness tell his patient to exercise to close the G-tube hole, when the patient is in clear pain?”); id. at 16 (“The defendant Mr. Campbell knew that the Plaintiff was in pain and he did not . . . give pain medication.); #59 at ¶¶ 22-23 (arguing Defendant Campbell's refusal to provide Plaintiff with a wheelchair “is clearly deliberate indifference”)]. That Plaintiff alleges that he desired different medical treatment, like surgery, pain medication, or a wheelchair, does not demonstrate that Defendant Campbell was “deliberately indifferent” to his medical needs. The Tenth Circuit has made clear that “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins, 165 F.3d at 811; see also Sherman v. Klenke, 653 Fed.Appx. 580, 586 (10th Cir. 2016) (an inmate is not entitled to “the type or scope of medical care which he personally desires” (quotation omitted)); Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (finding prisoners do not have an Eighth Amendment right to “a particular course of treatment”).
And Plaintiff fails to plausibly allege that the treatments he did receive were so inadequate to demonstrate a reckless disregard for his condition. “[I]n assessing the chosen method of treatment, it must be kept in mind that a doctor is required to take only reasonable measures to abate the inmate's medical condition.” Wishneski v. Andrade, 572 Fed.Appx. 563, 569 (10th Cir. 2014) (quotation omitted). And even if a physician's provided treatments could be proven so inadequate as to constitute medical malpractice, they “do[ ] not give rise to a constitutional violation.” Perkins, 165 F.3d at 811. Rather, a plaintiff must allege that the treatment he received “so grossly violates medical norms as to suggest deliberate indifference.” Self, 439 F.3d at 1235. Plaintiff has not done so. Instead, the pleading suggests that Defendant Campbell provided treatments in the exercise of his “considered medical judgment.” Self, 439 F.3d at 1232. The Complaint details how Defendant Campbell called Aurora South for guidance on Plaintiff's condition and Aurora South said “the leaking is normal.” [#59 at ¶¶ 10, 14] Defendant Campbell also changed Plaintiff's dressing, ordered antibiotics in response to an infection of the G-tube site, and gave Plaintiff input as to how to close the wound. [#59 at ¶¶ 14, 18] Indeed, the Complaint suggests Defendant Cambell's treatment was consistent with medical norms; when Plaintiff visited the emergency room on September 30, 2021, Denver Health's course of treatment was in line with Defendant Campbell's-putting a fresh dressing on the G-tube removal site. [#59 at ¶ 21] Where, as here, “a doctor orders treatment consistent with the symptoms presented and then continues to monitor the patient's condition, an inference of deliberate indifference is unwarranted.” Self, 439 F.3d at 1232-33.
To the extent Plaintiff predicates his deliberate indifference claim against Defendant Campbell on a theory of gatekeeper liability, the Complaint does not allege sufficient facts to support a reasonable inference that Defendant Campbell refused or delayed in fulfilling his gatekeeper role. First, Plaintiff alleges that Defendant Campbell failed to transport Plaintiff to Aurora South for follow-up [#59 at ¶¶ 6,10,18], despite direction from two outside providers to follow-up with Aurora South for complications following the removal of the G-tube [id. at ¶¶ 5, 21]. Yet, when Defendant Campbell learned of Plaintiff's leaking G-tube site, he did contact Aurora South for guidance, and Aurora South said “the leaking is normal.” [Id. ¶¶ 10, 14] Plaintiff was subsequently seen on a continuing basis at DRDC for his alleged condition [id. at ¶¶ 16-19], and he was transported to the emergency room when his pain did not abate [id. at ¶ 21]. And while Plaintiff alleges that the outside medical providers told him that he should be seen at Aurora South, he does not make any allegations from which the Court can infer that Defendant Campbell knew of such recommendations or that his failure to follow such a recommendation rose to the level of deliberate indifference. Thus, based on the Complaint's allegations, the Court cannot conclude that Defendant Campbell had the requisite state of mind for a deliberate indifference claim when he did not send Plaintiff back to Aurora South for treatment. Self, 439 F.3d at 1231 (In a deliberate indifference claim, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” (quoting Farmer, 511 U.S. at 837, 839)); Ajaj v. Federal Bureau of Prisons, 08-cv-02006-MSK-MJW, 2011 WL 902440, at *16 (D. Colo. Mar. 10, 2011) (“[T]he Constitution is only implicated in situations in which prison officials act purposefully to impose unnecessary pain on an inmate; ‘inadvertent' denials of care or negligent diagnosis or treatment does not rise to the level of an 8th Amendment violation.”).
Next, to the extent Plaintiff alleges that Defendant Campbell unconstitutionally delayed his access to emergency medical intervention [#72 at 12-13], Plaintiff has failed to plausibly allege a deliberate indifference claim. The Complaint alleges that the physician at Denver Health asked Plaintiff how long it had been since the complications started, exclaiming “why are you just now coming for an ‘emergency.” [#59 at ¶ 21] But even assuming that this delay can be attributable to Defendant Campbell, without more, one doctor's view that Defendant Campbell should have brought Plaintiff to the emergency room sooner does not plausibly allege deliberate indifference by Defendant Campbell, especially where the Denver Health doctor provided the same treatment that Defendant Campbell had provided-a change of dressing. [Id. at ¶¶ 14, 21]; Self 439 F.3d at 1231; Ajaj, 2011 WL 902440, at *16; Kershaw v. Jones, No. 15-CV-02110-MEH, 2016 WL 1664281, at *6 (D. Colo. Apr. 27, 2016) (“A delay in treatment that is unintentional, or even negligent, however serious the harm, does not violate the Constitution.”). Simply put, Plaintiff alleges “nothing more than a difference of professional opinion, which cannot give rise to an inference of deliberate indifference.” Sherman v. Klenke, 653 Fed.Appx. 580, 591 (10th Cir. 2016).
In the Response brief, Plaintiff cites to an earlier complaint [#8] to support the proposition that: “Plaintiff's condition did result in further significant injury and extreme pain, by the defendant Mr. Campbell's delay in providing adequate medical emergency care.” [#72 at 12]. But the Court looks solely to the allegations in the operative amended complaint [#59] because it “supercedes [the prior complaints] and renders the [prior complaints] without legal effect.” Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (quoting In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000)); Mason v. Clear Creek Cty. Sheriff, No. 14-cv-01917-WJM-BNB, 2014 WL 6790027, at *3 (D. Colo. Dec. 2, 2014) (“[T]he plaintiff may not incorporate by reference his original Complaint or his Amended Complaint into the proposed second amended complaint. The proposed second amended complaint must stand alone; it must contain all of the plaintiff's claims.”); D.C.COLO.LCivR 15.1(b) (“Unless otherwise ordered, the proposed amended pleading shall not incorporate by reference any part of the preceding pleading, including exhibits.”); see also In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”).
Lastly, Plaintiff makes a conclusory assertion that Defendant Campbell failed to comply with a prison administrative regulation (“AR-700-01”), which reads: “it is the policy of the CDOC to ensure that offenders will be provided with health care services that maintains basic health and prevents other than normal physical and emotional deterioration.” [#72 at 11-12] However, Plaintiff's bald assertion that Defendant Campbell violated AR-700-01, without more, cannot substitute for the requirement that he plead facts to show Defendant Campbell “kn[ew] of and disregarded] an excessive risk to inmate health or safety.” Sealock, 218 F.3d at 1209 (quotation omitted); see also Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.”); Perkins, 165 F.3d at 811 (“[N]egligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.”). Nor does “a failure to adhere to administrative regulations . . . equate to a constitutional violation.” Hovter v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993).
The Court thus concludes that Plaintiff has failed to plausibly plead an Eighth Amendment deliberate indifference claim. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's Eighth Amendment claim against Defendant Campbell in his individual capacity and that the claim be DISMISSED WITHOUT PREJUDICE. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “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” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
Defendant Campbell is thus also entitled to qualified immunity, a defense he affirmatively asserts. [#63 at 13-14] “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). “'In resolving a motion to dismiss based on qualified immunity', the court considers (1) ‘whether the facts that a plaintiff has alleged make out a violation of a constitutional right,' and (2) ‘whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct.'” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)) (internal quotation marks omitted). The Court has “discretion to ‘decid[e] which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'” Brown, 662 F.3d at 1164 (quoting Pearson, 555 U.S. at 236) (alterations omitted). As detailed above, the Court finds that Plaintiff has not plausibly alleged that Defendant Campbell was deliberately indifferent to Plaintiff's serious medical needs. Accordingly, Defendant Campbell is entitled to qualified immunity. See Montoya v. Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018) (“It is true that if the plaintiff failed to state a claim under Rule 12(b)(6), the government would also be entitled to qualified immunity.”); Hesse v. Town of Jackson, Wyo., 541 F.3d 1240, 1244 (10th Cir. 2008) (“If the court concludes no constitutional right has been violated, no further inquiry is necessary and the defendant is entitled to qualified immunity.” (quotation omitted)).
B. The Negligence Claims
The Court next turns to Plaintiff's medical negligence claims. The Court recommends that the district court decline supplemental jurisdiction over these claims. Alternatively, in the event the district court exercises supplemental jurisdiction over these claims, the Court recommends that Plaintiff's negligence claims be dismissed because Plaintiff has not complied with the CGIA.
1. Supplemental Jurisdiction
When a district court has dismissed all claims over which it has original jurisdiction, 28 U.S.C. § 1367(c)(3) expressly authorizes the court to decline to exercise supplemental jurisdiction over any remaining state law claims. “Whether to exercise supplemental jurisdiction under such circumstances lies within the discretion of the court” and “[n]otions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Sauer v. McGraw-Hill Cos., No. 99 N 1898, 2001 WL 1250099, at *18 (D. Colo. June 12, 2001) (quotations omitted). As a result, a district court will generally decline the exercise of supplemental jurisdiction when all federal claims have been eliminated prior to trial. See id. (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)); see also Aery v. Bd. of Cty. Comm'rs of Tulsa Cty., 696 Fed.Appx. 360, 361 (10th Cir. 2017) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.” (quotation omitted)); Koch v. City of Del City, 660 F.3d 1228, 1248 (affirming district court's order declining supplemental jurisdiction over state law claims after summary judgment was granted on the federal claims). Accordingly, the Court respectfully RECOMMENDS that the district court decline supplemental jurisdiction over Plaintiff's negligence claim.
2. Compliance with the CGIA
In the event the district court exercises jurisdiction over Plaintiff's negligence claims, the Court recommends that the Motion be granted as to those claims.
Because the Court is issuing a Recommendation and not an Order, and the district court may decide to exercise supplemental jurisdiction over the medical negligence claims, the Court analyzes the medical negligence claims.
Defendants argue that the negligence claims are barred pursuant to the CGIA. [#63 at 5-7] The Court agrees.
Pursuant to the CGIA, public employeesare generally immune from liability in all claims for injury that “lie[ ] in tort or could lie[ ] in tort.” Colo. Rev. Stat. § 24-10-118(2). But the CGIA provides two exceptions to this immunity: (1) where the injury “result[s] from the circumstances specified in [Colo. Rev. Stat. §] 24-10-106(1)” or (2) where the employee's conduct is willful and wanton. Colo. Rev. Stat. § 24-10-118(2)(a).
Pursuant to Colo. Rev. Stat. § 24-10-103(4), “[p]ublic employee” is defined as “an officer, employee, servant, or authorized volunteer of the public entity.”
First, the CGIA waives immunity in a few discrete circumstances. See Colo. Rev. Stat. § 24-10-106(1). Plaintiff does not allege that the negligence claims fall within any of these statutorily circumscribed areas. [See generally ##59, 72]; see Wilkins v. Palomino, No. 20-CV-03495-PAB-STV, 2023 WL 3853464, at *5 (D. Colo. Apr. 13, 2023) (“Plaintiff bears the burden of establishing that [Defendant's] actions fall outside the protections of the CGIA”), report and recommendation adopted, 2023 WL 3848309 (June 6, 2023); Williams v. City of Arvada, No. 21-CV-02236-NYW, 2022 WL 1102532, at *14 (D. Colo. Apr. 13, 2022) (“[T]he party seeking to sue a defendant that enjoys sovereign immunity bears the burden of showing that such immunity has been waived.”). Thus, the Court concludes that these discrete statutory exceptions are inapplicable to Plaintiff's tort claims.
Most pertinent to the facts here, Plaintiff cannot avail himself of the waiver for injuries resulting from the operation of a correctional facility, Colo. Rev. Stat. § 24-10-106(1)(b), because that waiver “does not apply to claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction.” Colo. Rev. Stat. § 24-10-106(1.5)(a). And there is no dispute that Plaintiff was a convicted inmate at the time of Defendants' alleged negligence. [#59 at ¶ 1]
Second, where immunity is not expressly waived, state employees are shielded from tort liability “unless the act or omission causing [the] injury was willful and wanton.” Colo. Rev. Stat. § 24-10-118(2)(a). The phrase willful and wanton is not defined by the CGIA. Moody v. Ungerer, 885 P.2d 200, 204-05 (Colo. 1994). Nonetheless, under general Colorado legal principles, conduct is willful and wanton only when it is done in conscious or reckless disregard of the rights of others. Id.; see also McDonald v. Wise, 769 F.3d 1202, 1218 (10th Cir. 2014) (interpreting the CGIA as requiring that a plaintiff demonstrate that the defendant's actions were calculated to cause harm or done despite awareness that the actions would cause such harm). To overcome a public employee's immunity from suit, at a minimum, a plaintiff must allege “specific facts to support a reasonable inference that the employee was consciously aware that his or her acts or omissions created danger or risk to the safety of others, and that he or she acted, or failed to act, without regard to the danger or risk.” L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo.App. 2018) (quotation omitted).
The Court need not consider whether Plaintiff's allegations plausibly raise the inference of willful and wanton behavior, however, as his tort claims are barred for failure to comply with the CGIA's notice requirement. The CGIA includes a notice provision that requires any person claiming to have suffered an injury by a public entity-or any employee thereof while in the course of such employment-to file a written notice within 182 days after the date of the discovery of the injury as a prerequisite to filing suit. See Colo. Rev. Stat. § 24-10-109(1).“If the claim is against the state or any employee thereof,” the plaintiff must file notice with the attorney general. Colo. Rev. Stat. § 24-10-109(3)(a). If, on the other hand, “the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity.” Id. The CGIA requires that notices contain the following information:
Section 24-10-109(1) states in full:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
(1) the name and address of the claimant and the name and address of his attorney; (2) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (3) the name and address of any public employee involved;(4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the monetary damages being requested.Neiberger v. Hawkins (Neiberger I), 70 F.Supp.2d 1177, 1194 (D. Colo. 1999) (citing Colo. Rev. Stat. § 24-10-109(2)), aff'd, 6 Fed.Appx. 683 (10th Cir. 2001). The notice must “substantially” comply with Section 24-10-109(2). Crandall v. City & Cnty. of Denver (“Crandall I”), 143 P.3d 1105, 1108 (Colo.App. 2006), rev'd on other grounds, City & Cnty. of Denver v. Crandall (“Crandall II”), 161 P.3d 627 (Colo. 2007); see also Sawyer v. Washington Cty. Nursing Home, No. 20-cv-1789-WJM-SKC, 2021 WL 87739, at *3 (Mar. 9, 2021) (recognizing substantial compliance standard); Vreeland v. Fisher, No. 13-cv-02422-PAB-KMT, 2014 WL 4854739, at *8 (D. Colo. Sept. 29, 2014) (same). “Substantial compliance means that the claimant must make a good faith effort to include within the written notice, to the extent reasonably possible, each item of information listed in § 24-10-109(2).” Id. (citing Dicke v. Mabin, 101 P.3d 1126, 1132 (Colo.App. 2004)). “Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal.” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003 (collecting cases). And even if a public employee's conduct was willful and wanton, the CGIA's notice requirement still applies. Colo. Rev. Stat. Ann. § 24-10-109(1) (“[a]ny person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice”); see also King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002) (Section 24-10-109(1)'s “notice requirement . . . must be met even if the conduct was ‘willful and wanton.'”).
“Although Colorado considers the timeliness of notice under the CGIA to be a jurisdictional matter,” the Tenth Circuit has not yet determined whether federal courts are “bound by [the] state-court view that [the] issue is jurisdictional.” Scott v. Cary, 829 Fed.Appx. 334, 336 (10th Cir. 2020) (citing Univ. of Colo. v. Booth, 78 P.3d 1098, 1100 (Colo. 2003)); but see King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002) (employing de novo review because CGIA immunity implicates subject-matter jurisdiction). “[W]hen a state proscribes its own courts' jurisdiction over particular subject matter, it does not divest the authority of federal courts within its borders,” because “as an axiom of our federal system, Congress alone defines the lower federal courts' subject-matter jurisdiction.” Odom v. Penske Truck Leasing Co., L.P., 893 F.3d 739, 742 (10th Cir. 2018). The Court treats the CGIA as impacting its subject matter jurisdiction, though that does not impact the result of any of the recommendations herein.
Plaintiff has not alleged compliance with the CGIA notice requirements. [See generally #59]; see also Aspen Orthopaedics, 353 F.3d at 840; Tafoya v. Limon Corr. Facility, No. 20-CV-0768-WJM-NRN, 2020 WL 6565230, at *3 (D. Colo. Nov. 9, 2020) (“[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.” (quotation omitted)). Defendants raised the issue of non-compliance in their response [#63 at 5-7] and Plaintiff's response fails to address the non-compliance [see generally #72]. Because Plaintiff has failed to comply with the CGIA notice provision, the Court lacks subject-matter jurisdiction over Plaintiff's tort claims. Accordingly, if the district court exercises supplemental jurisdiction over Plaintiff's gross negligence and negligence claims, then the Court respectfully RECOMMENDS that Defendants' Motion be GRANTED to the extent it seeks dismissal of those claims against Defendants in their individual capacities and that the claims be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. See Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010) (dismissal for lack of subject matter jurisdiction is generally without prejudice).
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendants' Motion to Dismiss Plaintiff's Amended Complaint [#63] be GRANTED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[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 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).