Opinion
CIV-22-50-D
02-14-2023
MIGUEL A. DORANTES, Plaintiff, v. SGT. NYE, et al., Defendants.
REPORT AND RECOMMENDAITON
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Miguel Dorantes, appearing pro se, has filed a Second Amended Complaint (SAC) under 42 U.S.C. § 1983, alleging various civil rights violations. (ECF No. 47). Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the SAC has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, it is recommended that the Court: (1) dismiss the claims against Defendants Cade, Nye, Malone, and Turn Key, without prejudice and (2) conclude that Mr. Dorantes has stated an Eighth Amendment claim for the denial of medical care against Defendants Tucker, Whitaker, Gamble, Mangus, Wilson, Wood, and Solomon, in their individual capacities, limited to the recovery of monetary damages.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); see also Kay v. Bemis, 500 F.3d 1214, 121718 (10th Cir. 2007) (indicating that court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Dorantes' allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Dorantes is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
III. THE SECOND AMENDED COMPLAINT
Mr. Dorantes is a federal inmate who has filed a civil rights complaint regarding incidents which allegedly occurred while he was temporarily housed at the Grady County Jail. During a video visit with his son, Plaintiff states that he was approached by a rival gang member and a fistfight ensued, because according to Plaintiff, the rival gangs have a policy to “attack on sight.” (ECF No. 47:1-2). Grady County Detention Officers Nye and Malone responded to the fight and Defendant Nye allegedly “shot [Plaintiff] in the head twice with hard rubber bullets. . . . [which] caused [Plaintiff's] head to split and bleed and delivered a significant concussive shock, which caused [Plaintiff] to momentarily lose consciousness and inflicted lasting neurological damage.” (ECF No. 47:2). In the SAC, Plaintiff's allegations concern: (1) the inmate altercation, (2) being shot and injured with rubber bullets, and (3) his ensuing medical treatment or lack thereof. See ECF No. 47.
In the SAC, the named Defendants fall into two categories: (1) employees who work for the Grady County Criminal Justice Authority and (2) Turn Key Health (Turn Key)-a private company which has contracted with the Grady County Jail to provide medical services for its inmates-and its employees. As for the Grady County employees, Plaintiff names: (1) Lane Cade, Grady County detention officer; (2) David Nye, Grady County detention officer; (3) Hunter Malone, Grady County detention officer; (4) Misty Tucker, Grady County detention officer; (5) Dustin Whitaker, Grady County detention officer; (6) Bailey Gamble, Grady County detention officer; and (7) Kevin Mangus, Grady County detention officer. (ECF No. 47). As for the Turn Key defendants, Plaintiff names: (1) Turn Key; (2) Nikki Wilson, LPN employed by Turn Key; (3) Stephen Wood, an RN employed by Turn Key; and (4) Samantha Solomon, a nurse employed by Turn Key. (ECF No. 47). Mr. Dorantes sues Defendants Cade, Nye, Malone, Tucker, Whitaker, Gamble, and Mangus in their official and individual capacities, but Plaintiff does not specify in what capacity he sues Defendants Wilson, Wood, and Solomon. See ECF Nos. 47:6, 7, 9, 13. Against all Defendants, Plaintiff seeks only monetary damages. See ECF No. 47:13.
IV. OFFICIAL CAPACITY CLAIMS
As stated, Plaintiff has sued Defendants Cade, Nye, Malone, Tucker, Whitaker, Gamble, and Mangus in their official capacities and seeks only monetary relief. See supra.
However, the Tenth Circuit Court of Appeals has long held that “Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011). As a result, the Court should dismiss, with prejudice, all official capacity claims against Defendants Cade, Nye, Malone, Tucker, Whitaker, Gamble, and Mangus. With this recommendation, what remains are: (1) claims asserted against Defendants Cade, Nye, Malone, Tucker, Whitaker, Gamble, and Mangus, in their individual capacities and (2) claims against Turn Key Health and its employees-Defendants Wilson, Wood, and Solomon.
V. REMAINING CLAIMS AGAINST GRADY COUNTY EMPLOYEES
The Court should: (1) dismiss the individual capacity claims against Defendants Cade, Nye, and Malone, without prejudice and (2) conclude that Plaintiff has stated an Eighth Amendment claim for the denial of medical care against Defendants Tucker, Whitaker, Gamble, and Mangus, in their individual capacities, limited to the recovery of monetary damages.
A. Standard of Review for Individual Capacity Claims Under 42 U.S.C. § 1983
When a defendant is sued in his or her individual capacity under § 1983, the plaintiff must establish specific elements as to each defendant. First, the plaintiff must establish the defendant's “personal involvement or participation” in the alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff must establish a causal connection between the acts of that particular defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls v. Thomas, 718 F.3d 1210, 1225-28 (10th Cir. 2013). Finally, the plaintiff must establish that the defendant acted with the state of mind required for the alleged underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
B. Defendant Cade
Mr. Dorantes alleges that Defendant Cade is responsible for failing to protect Plaintiff from being attacked by the rival gang member-the incident which ultimately led to Plaintiff's head injury when Defendant Nye intervened to break up the fight. (ECF No. 47:6). The Court should conclude that this claim fails on the element of causation.
As stated, Section 1983 requires plaintiffs to show causation, imposing liability on a defendant who “subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights . . . .” 42 U.S.C. § 1983. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1988) ("[A] defendant may not be held liable under § 1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to be subjected to the deprivation.”). The Tenth Circuit has explained that § 1983 liability should be" 'read against the background of tort liability that makes a man responsible for the natural consequences of his actions.' ” Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012). "Thus, Defendants are liable for the harm proximately caused by their conduct.” Id.
Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See id. ("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”). At the pleading stage, "A plaintiff must allege factual causation-i.e. 'but for' causation-in order to state a claim under § 1983.” Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000).
In Trask v. Franco, 446 F.3d 1036 (10th Cir. 2006), the Tenth Circuit Court of Appeals provided the following example of how an intervening cause could relieve an individual from liability:
Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is "no.” The suspect's conduct would constitute a "superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability.Id. at 1043.
Here, Plaintiff has alleged that Defendant Cade is liable under a theory of failing to protect Mr. Dorantes from being attacked by a rival gang member (a "Norteno”), because Defendant Cade: (1) had knowledge that Plaintiff was a "Sureno,” who could not be housed safely with Nortenos, and (2) was responsible for inmate housing placement in the unit, and knew that inmates assigned to the unit were Nortenos. (ECF No. 47:6, 10). However, Plaintiff's ultimate injury and the basis for his SAC stems not from the rival gang member attack, but instead by rubber bullets allegedly fired by Defendant Nye. See supra. Simply put, Plaintiff has failed to allege that "but for” Defendant Cade's actions in housing assignments, he would not have been injured by the rubber bullets. See supra, Scott. Under these circumstances, the Court should conclude that Defendant Nye's actions in firing the rubber bullets (which Plaintiff blames for his injuries) constitute an unforeseeable intervening act/superseding cause similar to that described in Trask which would preclude Defendant Cade's liability. Based on the absence of causation, the Court should dismiss the individual liability claim against Defendant Cade.
Indeed, Plaintiff states that he “quickly achieved dominance in the fight . . . [and] [h]is opponent was on the ground ‘balled up.' ” (ECF No. 47:2).
C. Defendant Nye
Plaintiff alleges that Defendant Nye is responsible for excessive force in violation of the Eighth Amendment though the use of rubber bullets which he fired at Plaintiff to break up the fight, hitting Plaintiff in the head and causing multiple injuries. See ECF No. 47:2, 6-7. The Court should conclude that the individual capacity claim against Defendant Nye should be dismissed because Plaintiff failed to properly allege that Defendant Nye had acted with the requisite state of mind.
“The use of excessive force by jail officials violates a prisoner's rights under the Eighth Amendment's Cruel and Unusual Punishments Clause when the prisoner is subjected to an 'unnecessary and wanton infliction of pain.' ” Miler v. Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). What constitutes unnecessary and wanton infliction of pain “varies according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992). An excessive force claim has an objective and subjective element. A plaintiff must establish that “the alleged wrongdoing was objectively harmful enough to establish a constitutional violation,” and that the defendant applied force “ 'maliciously and sadistically,' ” rather than “ 'in a good faith effort to maintain or restore discipline.' ” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (quoting Giron v. Corrections Corp, of Am., 191 F.3d 1281, 1289 (10th Cir. 1999)).
In Kingsley v. Hendrickson, 576 U.S. 389, (2015), the Supreme Court clarified that the Eighth Amendment standard for excessive force claims brought by prisoners, which requires that defendants act “maliciously and sadistically to cause harm,” does not apply to Fourteenth Amendment excessive force claims brought by pretrial detainees, which require showing only that the defendants' use of force was “objectively unreasonable.” But this standard would not apply to Mr. Dorantes, who was a convicted prisoner at the time of the allegations.
An injury is sufficiently serious for purposes of demonstrating that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation as long as it rises above the level of de minimus harm. Hudson, 503 U.S. at 9-10. Here, Plaintiff alleged that Defendant Nye fired rubber bullets into his head, causing his head to split open and bleed, followed by headaches and concussive type symptoms, including pain. (ECF No. 47:2-6, 10). The Court should assume that these allegations sufficiently allege the objective component of an Eighth Amendment excessive force claim.
Turning to the subjective prong, however, the Court should conclude that Mr. Dorantes has failed to properly allege that Defendant Nye acted with the requisite culpable state of mind. In Green v. Corr. Corp, of Am., 401 Fed.Appx. 371, 376 (10th Cir. 2010) (unpublished), the plaintiff was a pretrial detainee who alleged he was attacked by another prisoner. Id. at 373. The plaintiff subdued the other prisoner and restrained him until a prison official arrived. Id. The prison official ordered the inmates to "break it up” and the plaintiff complied, but then got punched in the face by the other inmate. Id. The prison official then sprayed the plaintiff in the face with pepper spray, but did nothing to the other prisoner. Id.
Following the district court's dismissal of the excessive force claim, the Tenth Circuit Court of Appeals affirmed. In doing so, the Court explained:
[The plaintiff's] allegations establish that [the prison official] had reason to use some force. [The plaintiff] admits that he was physically restraining another prisoner immediately before [the prison official] used the pepper spray. A prison official may use reasonable force to "maintain or restore discipline.” Whitey, 475 U.S. at 320, 106 S.Ct. 1078. [The prison official] was justified in using some force to break up the fight, regardless of [the plaintiff's] reason for restraining the other prisoner. The use of pepper spray was not excessive under the circumstances. [The plaintiff] has failed to state an excessive force claim.Green, 401 Fed.Appx. at 376 (10th Cir. 2010).
Green is instructive in the instant case. Here, Mr. Dorantes states that Defendant Nye "shot Dorantes in the head twice to break up a fist fight.” (ECF No. 47:10). By Mr. Dorantes' own admissions, he was actively engaged in a fight with another inmate when Defendant Nye fired the rubber bullets. Like in Green, Defendant Nye "use[d] reasonable force to maintain or restore discipline.” See Green, supra. As a result, the Court should dismiss the individual capacity claim against Defendant Nye for failure to state a claim.
D. Defendant Malone
Plaintiff alleges that Defendant Malone is liable under the Eighth Amendment for failing to intervene and prevent Defendant Nye's use of excessive force against Plaintiff in breaking up the fight. (ECF No. 47:7, 12). The Court should dismiss this claim for failure to state a claim.
In Farmer, the Supreme Court recognized that the Eighth Amendment's prohibition on cruel and unusual punishments imposes a duty on prison officials to "provide humane conditions of confinement,” "take reasonable measures to guarantee the safety of the inmates,” and "protect prisoners from violence at the hands of other prisoners.” 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556, 558 (1988)). Thus, a failure to intervene is one of several factual theories under which an Eighth Amendment claim may be brought. See Casey v. City of Federal Heights, 509 F.3d 1278, 1283 (10th Cir. 2007) ('“a law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983.”) (citation omitted); see also Hooks v. Bethany Police Dept, No. CIV-17-658-M, 2018 WL 11266782, at *6 (W.D. Okla. Mar. 19, 2018), report and recommendation adopted, 2018 WL 11266754 (W.D. Okla. Apr. 16, 2018) ("The law is well established that failure to intervene in an inmate assault may sustain an Eighth Amendment failure to protect claim.”).
Here, Plaintiff alleges that Defendant Malone "had an opportunity to intervene to prevent Nye from using excessive force against Dorantes but failed to do so.” (ECF No. 47:12). To be sure, "even when a jail employee does not himself use excessive force, he may be liable for failure to intervene when he is present at the scene and . . . fails to take reasonable steps to protect the victim of another officer's use of excessive force.” Scriven v. Corby, No. CV-03110-JAR-KKG, 2021 WL 2222682, at *10 (D. Kan. June 2, 2021) (citing Mascorro v. Billings, 656 F.3d. 1198, 1204 n. 5 (10th Cir. 2011). However, to prevail on a failure-to-intervene claim, a plaintiff must establish the existence of an underlying excessive force violation. See Stevenson v. City of Albuquerque, 446 F.Supp.3d 806, 878 (D.N.M. Feb. 21, 2020). Here, Plaintiff's claim against Defendant Malone is predicated on the underlying claim that Defendant Nye had used excessive force when firing the rubber bullets. See supra. But absent a claim for excessive force against Defendant Nye, see supra, Plaintiff's claim against Defendant Malone cannot stand. Accordingly, the Court should dismiss the individual capacity claim against Defendant Malone for failure to state a claim.
E. Defendants Tucker, Whitaker, Gamble, and Mangus
Plaintiff alleges that Defendants Tucker, Whitaker, Gamble, and Mangus are liable to him under a theory that they failed to provide him with proper medical care in violation of the Eighth Amendment. (ECF No. 47:12). The Court should conclude that Mr. Dorantes has stated an Eighth Amendment claim for the denial of medical care against these Defendants.
It is well-established that “[a] prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component is satisfied if the deprivation is “sufficiently serious.” Farmer, 511 U.S. at 834. "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.' ” Sealock, 218 F.3d at 1209.
The standard for the subjective component is that the official "knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The official must be aware of the facts from which the inference of a substantial risk of serious harm could be drawn and also draw that inference. Id. A plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate,” but rather that the official "merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.” Id. at 842, 843 n.8. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence” such as whether "the risk was obvious.” Id. at 842. An official disregards risk when he fails to take reasonable measures to abate the risk. Quintana v. Santa Fe Cnty. Bd. of Commrs, 973 F.3d 1022, 1029 (10th Cir. 2020).
Here, the Court should conclude that Plaintiff has stated an individual capacity Eighth Amendment claim against Defendants Tucker, Whitaker, Gamble, and Mangus premised on a theory that they failed to properly treat his serious medical condition.
According to Mr. Dorantes:
[Defendants Tucker, Whitaker, Gamble, and Mangus] personally observed Dorantes' split head, which was actively bleeding, and spoke with Dorantes and were informed that Dorantes was experiencing headaches and pain so extreme that he could not sleep. Instead of intervening to address Dorantes' dire medical circumstances, those Defendants joked around about Dorantes taking rubber bullets to the head, told him he should not be in a gang and chatted with Dorantes, leaving Dorantes in a position in which his head remained bleeding and in which he was experiencing extreme pain.(ECF No. 47:12).
Plaintiff's allegations of a “split head, which was actively bleeding” along with headaches and extreme pain, are sufficient to satisfy the objective component of the Eighth Amendment claim. Likewise, Mr. Dorantes has sufficiently alleged that these Defendants acted with the requisite culpable state of mind based on his allegations that the Defendants saw the bleeding head and were informed of his headaches and extreme pain, but did nothing to intervene medically, but instead joked and chatted with him, “leaving [him] in a position in which his head remained bleeding and in which he was experiencing extreme pain.” (ECF No. 47:12). In sum, the Court should conclude that Mr. Dorantes has stated an Eighth Amendment claim for the denial of medical care against Defendants Tucker, Whitaker, Gamble, and Mangus, in their individual capacities, limited to the recovery of monetary damages.
VI. REMAINING CLAIMS AGAINST TURN KEY AND ITS EMPLOYEES
Plaintiff has alleged that Defendant Turn Key and three of its employees- Defendants Wilson, Wood, and Solomon-are responsible for denying Plaintiff medical care in violation of the Eighth Amendment. See ECF No. 47:3, 10-12. The Court should: (1) dismiss the claim against Turn Key, without prejudice; and (2) conclude that Plaintiff has stated an individual capacity claim against Defendants Wilson, Wood, and Solomon, limited to the recovery of monetary damages.
A. Defendant Turn Key
Before turning to whether plaintiff has sufficiently alleged the deprivation of a constitutional right, the Court must first consider whether a corporation-such as Turn Key-as opposed to an individual acting under color of state law-can be considered a “person” subject to liability under § 1983, and, if so, under what theory. In Monel v. Department of Social Services of New York, 436 U.S. 658 (1978), the Supreme Court held that a municipality is “included among those persons to whom § 1983 applies,” but it cannot be held liable under § 1983 solely because it employs a tortfeasor (i.e, pursuant to a respondeat superior theory). Id. at 690-91. Rather, a municipality can be held liable under § 1983 only if it has an “official municipal policy of some nature” that “ 'causes' an employee to violate another's constitutional rights.” Id. at 691-92. The Tenth Circuit has held that Monels municipal liability theory applies equally to private entities acting under color of state law. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 n.13 (10th Cir. 2003). Indeed, very recently, the Tenth Circuit has affirmed that Turn Key itself may be liable under a theory of Monell municipal liability. See Lucas v. Turn Key Health Clnics, LLC, __ F. 4th __, 2023 WL 327846, at *9 (10th Cir. 2023).
To state a claim against a municipal entity such as Turn Key, a plaintiff must allege facts showing: (1) an official policy or custom, (2) causation, and (3) deliberate indifference. Lucas, __ F. 4th __, 2023 WL 327846, at *10. Any of the following constitute an official policy:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.Id.
Here, Plaintiff has alleged two Turn Key policies which he believes caused his ongoing injuries/denial of medical care. First, Plaintiff alleges: “In an effort to minimize costs and maximize profits, Turn Key fails to make professionally reasonable medical care available to inmates at Grady County Jail. . . . Had Turn Key's policies and practices allowed a qualified provider to treat Dorantes, then Dorantes could have managed the healing process without experiencing excruciating pain and could have sought interventions to prevent lasting damage from the injury.” (ECF No. 47:9). Second, Mr. Dorantes alleges “Turn Key's policy is to get federal transferees out of their care and into the hands of the Federal Bureau of Prisons.” (ECF No. 47:11-12). The Court should conclude that Plaintiff has failed to state a policy or custom with the requisite specificity to state a claim against Turn Key.
In Lucas, the plaintiff had asserted a municipal-liability claim against Turn Key, alleging that Turn Key had a policy “designed to keep jail costs low and profit margins high.” Lucas, __ F. 4th __, 2023 WL 327846, at *10. Citing Sherman v. Klenke, 653 Fed.Appx. 580, 593 (10th Cir. 2016), the Tenth Circuit Court of Appeals held that “the costcutting policy allegations lack[ed] specific facts.” Id. at 11. In Sherman, the Court noted, it had found similar allegations that a jails' medical contractor had a policy “to reduce overall expenses and maximize bonuses with each fiscal period” conclusory. Id.; see Sherman, 653 Fed.Appx. at 593. Here, too, the Court should conclude that Plaintiff's allegations regarding Turn Key's “policies” of “minimizing] costs and maximizing] profits” and “get[ting] federal transferees out of their care” as conclusory and insufficient to state a claim for relief. See Dalcour v. City of Lakewood, 492 Fed.Appx. 924, 930 (10th Cir. 2012) ("To survive a motion to dismiss, [a municipal liability] claim must allege sufficient facts to show that a specific policy or custom was the moving force behind the alleged violation.”) (emphasis added); Woodson v. Armor Correctional Health Services, Inc., No. 20-CV-00186-RM-KMT, 2021 WL 1300596, at *11 (D. Colo. Feb. 8, 2021) (recommending dismissal of municipal liability claim because “the pleadings fail to identify any specific custom, policy, or practice, formal or informal, that was the "moving force” behind the alleged deprivation of Plaintiff's constitutional rights.”) (emphasis in original), adopted, Woodson v. Armor Correctional Health Services, Inc., No. 20-CV-00186-RM-KMT, 2021 WL 1050009, at *1 (D. Colo. Mar. 19, 2021); Allen v. Geo Grp., Inc., No. 20-CV-00179-MEH, 2020 WL 5500454, at *3-4 (D. Colo. Sept. 11, 2020) (finding allegations regarding prison healthcare providers' “improper policies” to be conclusory, and thus, insufficient to establish liability under § 1983, where the complaint merely alleged that “[it] was Defendants' policy, custom, or practice to make inmates suffer by not providing adequate medical care[,] . . . [and] to deny medical care even when objective signs and symptoms warranted additional care”). Based on the absence of a specific policy or custom alleged by Mr. Dorantes, the Court should dismiss any claim against Turn Key for failure to state a claim.
B. Defendants Wilson, Wood, and Solomon
Plaintiff has also asserted Eighth Amendment claims for a denial of medical care against Turn Key employees-Defendants Wilson, Wood, and Solomon. See supra. Although Plaintiff does not specify whether he is suing these Defendants in their official or individual capacities as he did with the Grady County Defendants, he does limit his request for relief to monetary damages only. See ECF No. 47:13. As a result, the undersigned will only consider claims against these Defendants in their individual capacities. See supra, Brown, ("Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.”).
As discussed, to state an individual capacity claim against these Defendants, Mr. Dorantes must allege: (1) each defendant personally participated in the alleged deprivation; (2) each defendant's actions caused the alleged constitutional deprivation, and (3) each defendant acted with the state of mind required for the alleged violation. See supra. In addition, and as discussed, to sufficiently allege an Eighth Amendment claim against these Defendants, Plaintiff must allege that the defendant committed “deliberate indifference” against the Plaintiff-a standard which involves both an objective and subjective component. See supra. The objective component is satisfied if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). And the standard for the subjective component is satisfied if the official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
Although Defendants Wilson, Wood, and Solomon are employees of Turn Key, their individual liability need not be tied to a municipal policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 470 (1986) (stating “The ‘official policy' requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible.”).
1. Defendant Wilson
Following the incident with the rubber bullets, Plaintiff was taken to “medical” and seen by Defendant Wilson, a licensed practical nurse. (ECF No. 47:3). According to Plaintiff, Defendant Wilson examined Plaintiff and said “holy shit, just put glue on his head. He's leaving tomorrow morning. Someone will take care of him.” (ECF No. 47:3). Plaintiff also alleges that “Wilson's evaluation was limited to shining a light in Dorantes' pupils to determine what they were reactive to light bilaterally and were within normal limits.” (ECF No. 47:7). Mr. Dorantes alleges that Defendant Wilson's [him] to passing out and not being able to rouse. Wilson left Dorantes with an open head wound and injury. (ECF No. 47:10-11).
The Court should conclude that Plaintiff's allegations of pain and an open, bleeding head wound are “sufficiently serious” to satisfy the objective component of an Eighth Amendment claim. Likewise, the Court should conclude that at this stage, Plaintiff's allegations are sufficient to satisfy the subjective component of the deliberate indifference test. The deliberate indifference standard lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Farmer, 511 U.S. at 836. The Supreme Court in Farmer analogized this standard to criminal recklessness, which makes a person liable when she consciously disregards a substantial risk of serious harm. Id. at 836-38, Thus, "[deliberate indifference does not require a finding of express intent to harm.” Mitchel v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996) (citation omitted). An inmate "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (emphasis added).
Mr. Dorantes has alleged that Defendant Wilson provided a cursory examination and then left Plaintiff alone "with an open head wound and in agony,” after indicating shock at the wound, but a lack of willingness to provide medical care because Mr. Dorantes was leaving the following day. See supra. These allegations indicate that Defendant Wilson had knowledge of a substantial risk of serious harm, yet failed to treat Plaintiff accordingly. As a result, the Court should conclude that Plaintiff has stated an individual capacity claim against Defendant Wilson, limited to the recovery of damages.
2. Defendant Wood
Sometime after the rubber bullet incident, Plaintiff states that he was taken to an airfield to await transportation to a federal facility. (ECF No. 47:3). Federal authorities apparently rejected Mr. Dorantes for transport based on the fact that his head was continuing to bleed. (ECF No. 47:3). Following the rejection, Mr. Dorantes alleges that Defendant Wood denied Plaintiff medical care in violation of the Eighth Amendment in two ways. First, Plaintiff states that Defendant Wood “misdiagnosed Dorantes' circumstances as resulting from Dorantes smearing blood on his face versus the reality of the wound continuing to actively bleed and failed to address Dorantes' concussion symptoms.” (ECF No. 47:8). Second, Plaintiff states that in response to a sick call where Plaintiff had stated “he was experiencing the post-concussion symptoms of extreme headaches and pain,” “Wood did nothing to address Dorantes' brain pain, but rather limited his treatment to monitoring the progress of the healing of the wound from the bullets striking Dorantes in the head.” (ECF No. 47:8).
The Court should conclude that Mr. Dorantes has stated a valid Eighth Amendment claim against Mr. Wood. First, Plaintiff's allegations of “extreme headaches and pain” sufficiently alleged the objective component of the Eighth Amendment claim. See Sparks v. Rittenhouse, 164 Fed.Appx. 712, 718, 2006 WL 158891, at *6 (10th Cir. 2006) ('“Mr. Sparks's allegations of numerous requests for medical treatment because of pain and his claims of loss of feeling, loss of grip, and "extreme pain,” sufficiently alleged substantial harm.”). Second, Plaintiff's allegations that Mr. Wood: (1) was aware of Plaintiff's headaches and pain based on the sick call form which Plaintiff states "specifically identified the symptoms” and (2) failed to address those symptoms, "le[aving] Dorantes in unnecessary pain and inability to sleep for 45 days” is sufficient, at this stage, to satisfy the subjective component of the deliberate indifference standard.
3. Defendant Solomon
Plaintiff alleges Defendant Solomon denied him medical care in violation of the Eighth Amendment in two ways. First, Plaintiff alleges that "Solomon made rounds when Dorantes was in the Grady County SHU. Dorantes made his issues known to Solomon, but Solomon failed to take any action to address Dorantes' dire medical circumstances.” (ECF No. 47:9). Because Plaintiff gives no indication what "issues” he made known to Defendant Solomon or what "dire medical circumstances” he was experiencing, the Court should conclude that these allegations do not state an Eighth Amendment claim, as they are conclusory. See supra, Iqbal.
Second, Plaintiff alleges:
[Defendant Solomon] personally observed Dorantes' split head, which was actively bleeding, and spoke with Dorantes and were informed that Dorantes was experiencing headaches and pain so extreme that he could not sleep. Instead of intervening to address Dorantes' dire medical circumstances, those Defendants joked around about Dorantes taking rubber bullets to the head, told him he should not be in a gang and chatted with Dorantes, leaving Dorantes in a position in which his head remained bleeding and in which he was experiencing extreme pain.(ECF No. 47:12).
Plaintiff's allegations of a “split head, which was actively bleeding” along with headaches and extreme pain, are sufficient to satisfy the objective component of the Eighth Amendment claim. Likewise, Mr. Dorantes has sufficiently alleged that Defendant Solomon acted with the requisite culpable state of mind based on Plaintiff's allegations that Defendant Solomon saw Plaintiff's bleeding head and was informed he had headaches and extreme pain, but did nothing to intervene medically, but instead joked and chatted with him, “leaving [him] in a position in which his head remained bleeding and in which he was experiencing extreme pain.” (ECF No. 47:12). As a result, the Court should conclude that Mr. Dorantes has stated an Eighth Amendment claim for the denial of medical care against Defendant Solomon, limited to the recovery of monetary damages.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the claims against Defendants Cade, Nye, Malone, and Turn Key, without prejudice and (2) conclude that Mr. Dorantes has stated an Eighth Amendment claim for the denial of medical care against Defendants Tucker, Whitaker, Gamble, Mangus, Wilson, Wood, and Solomon, in their individual capacities, limited to the recovery of monetary damages.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by March 3, 2023. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation does not dispose of all issues currently referred to the undersigned magistrate judge in the captioned matter.