Licerio v. Officer R. Lamb

Full title: JOHNNY LICERIO, Plaintiff, v. OFFICER R. LAMB, OFFICER TEIGEN, DOCTOR…

Court: United States District Court, District of Colorado

Date published: Jul 15, 2021

Civil Action 20-cv-00681-WJM-STV (D. Colo. Jul. 15, 2021)

Opinion

Civil Action 20-cv-00681-WJM-STV

07-15-2021

JOHNNY LICERIO, Plaintiff, v. OFFICER R. LAMB, OFFICER TEIGEN, DOCTOR MATTHEW DELIERE, [1]JANE DOE, Doctor with Tri County Urgent Care, JOHN DOE, Radiologist with Tri County Urgent Care, PARKER ADVENTIST HOSPITAL, [2]JANE DOE, Officer with Arapahoe County Sheriff's Office, OFFICER BEATY, CHIEF JARED ROWLISON, [3]JOHN DOE, Officer with Arapahoe County Sheriff's Office, JOHN DOE, Nurse with Arapahoe County Sheriff's Office, JOHN DOE, Psychiatrist with Denver Health, JOHN DOE, Nurse with Arapahoe County Sheriff's Office, JOHN DOE, Medical provider with the Arapahoe County Sheriff's Office, JOHN DOE, Someone with Tri County Urgent Care, JOHN DOE, Someone at the Arapahoe County Detention facility, PUBLIC DEFENDER KATIE TELFER, Defendants.

Scott T. Varholak United Stated Magistrate Judge

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Scott T. Varholak United Stated Magistrate Judge

This matter is before the Court on six motions (collectively, the “Motions”): (1) Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction (the “First Motion for Injunction”) [#70], (2) Deputy Defendants' Motion to Dismiss (the “ACSO Motion to Dismiss”)⁴ [#87], (3) Plaintiff's Motion to Add Party (the “Motion to Amend”) [#114], (4) Plaintiff's Motion for Temporary Restraining Order (the “Second Motion for Injunction”) [#127], (5) Katie Telfer's Motion to Dismiss (the “Telfer Motion to Dismiss”) [#155], and (6) Plaintiff's Motion for Temporary Restraining Order (the “Third Motion for Injunction”) [#161]. The Motions have been referred to this Court. [#79, 89, 115, 129, 156, 165] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that neither oral argument nor an evidentiary hearing would materially assist in the disposition of the Motions.⁵ For the following reasons, the Court respectfully RECOMMENDS that the ACSO Motion be GRANTED and the other Motions be DENIED.

4 The Motion to Dismiss was originally filed by Defendants Tyler Teigen and Patrick Lamb, who are both deputies with the Arapahoe County Sheriff's Office (“ACSO”). [#87 at 1] Defendant Jared Rowlison, the Arapahoe County Detentions Bureau Chief, subsequently filed a Notice of Joinder to the Motion to Dismiss (the “Notice”). [#107] In this Recommendation, the Court refers to the Motion to Dismiss and the Notice collectively as the “ACSO Motion to Dismiss” and refers to Defendants Teigen, Lamb, and Rowlison collectively as the “ACSO Defendants.”

5 In considering the Motions, the Court is mindful that Plaintiff is proceeding pro se in this matter. “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).

I. BACKGROUND ⁶

6 The facts are drawn from the allegations in Plaintiff's Third Amended Complaint [#83], 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)).

The instant lawsuit arises out of Plaintiff Johnny Licerio's treatment as a pretrial detainee at the Arapahoe County Detention Facility (“ACDF”). [#83] Plaintiff is a Hispanic male and has a mental disability. [Id. at 10, 13]

A. The Assault and Medical Treatment for Plaintiff's Resulting Injuries

When Plaintiff first arrived at his housing assignment in pod 3A at ACDF, Defendant Officer John Doe (“John Doe Officer”) was talking to another inmate next to Plaintiff while Plaintiff was attempting to ask John Doe Officer a question. [Id. at 12] John Doe Officer ignored Plaintiff's question and wrote something on his hand and showed it to the other inmate-concealing the contents of the message from Plaintiff. [Id.] For the next couple days, the inmates in pod 3A “kept pestering [Plaintiff], taking [his] belongings from the table and throwing trash at [him].” [Id.] The other inmates in pod 3A then began asking Plaintiff to show them his criminal charges and the reason he was being detained at ACDF. [Id.] One of the inmates showed Plaintiff the Colorado Revised Statute for the crime of “Enticement of a Child” and said that he was being charged with that crime. [Id.] Inmates were saying that there “was another guy named Johnny [which is also Plaintiff's name] who was [at ACDF] for ‘messing with kids' or something to that nature.” [Id.] Plaintiff “infer[s] that the contents of the message [on John Doe Officer's hand] . . . related to [Plaintiff's] pending charges . . . [for] ‘Sexual Assault on a Child' due to the fact that inmates in [pod 3A] began harassing and pestering [Plaintiff]” and began asking Plaintiff about his pending charges. [Id. at 14-15]

On the evening of August 17, 2019, while Plaintiff was housed in pod 3A, other inmates housed in pod 3A were throwing trash at Plaintiff. [Id. at 10] One inmate in particular “kept throwing food and trash at [Plaintiff] as if to pester [him], ” and Plaintiff got up and punched him in the face. [Id. at 12, 15] A fight ensued and officers stopped it. [Id.] Plaintiff was pulled out of pod 3A and taken to the multi-purpose room, where he was seen by a nurse. [Id. at 10, 12, 13] Plaintiff informed the nurse that his shoulder was injured in the altercation. [Id. at 10, 12] While Plaintiff was with the nurse, he saw a group of officers on the floor and in the command tower discussing where Plaintiff's next housing assignment would be. [Id. at 10-11] During this discussion, “it became very silent for about 10 minutes.” [Id. at 12-13]

Ultimately, Defendant Officer Jane Doe (“Jane Doe Officer”), who was in the command tower that evening, decided to place Plaintiff in pod 3B-the pod right next to pod 3A where Plaintiff had just been injured.⁷ [Id. at 10] According to the Complaint, Jane Doe Officer, and the other officers who were discussing Plaintiff's next housing assignment, were all aware that Plaintiff's shoulder was injured and that “there was a substantial risk of serious, immediate, and proximate harm [created] by putting [Plaintiff] in pod 3B, as injury resulted from inmate assault.” [Id. at 10-11]

7 Certain allegations in the Third Amended Complaint state that Plaintiff was moved into pod 3A [see #83 at 15], but this appears to be a typographical error as the majority of the allegations make clear that Plaintiff was originally housed in pod 3A but was then relocated to pod 3B on August 17, 2019 after he was involved in a fight in pod 3A.

Right after Plaintiff entered pod 3B and set his belongings in his cell, another inmate asked Plaintiff to take a walk with him and Plaintiff agreed because he thought they were going to have a friendly conversation. [Id. at 13, 15] After the two had walked about five cells down on the same floor, the inmate with whom he was walking and another inmate then shoved Plaintiff into the last cell. [Id. at 13, 15] A third inmate who was already inside the cell brutally assaulted Plaintiff as the other two inmates kept the door to the cell shut. [Id. at 13] Following the assault, Plaintiff returned to his cell, grabbed his belongings, and walked out of pod 3B. [Id. at 15] As Plaintiff was walking out of the pod, Defendant Deputy Tyler Teigen was standing at the door, “smiling directly at [Plaintiff] as he handed [Plaintiff] a piece of mail” and Deputy Teigen and the other officers in the rotunda were laughing. [Id. at 11, 13, 15] As Plaintiff walked into the multi-purpose room, Defendant Deputy Patrick Lamb allegedly “asked [Plaintiff] ‘what had happened' as if he had knowledge of the incident, but chose to ask [Plaintiff] what had happened anyway.” [Id. at 15] Plaintiff alleges that, at some unspecified time prior to Plaintiff's assault in pod 3B, Defendant Officer Beaty went into pod 3A and said, “Oh yeah, he's definitely getting his ass beat” very loudly and clearly as if to let everyone know. [Id. at 12] According to Plaintiff, the assault “was a conspiracy from start to finish” between inmates and officers, including Officer Beaty, Jane Doe Officer, John Doe Officer, Deputy Teigen, and Deputy Lamb.⁸ [Id. at 13, 16] Plaintiff alleges that all of these defendants and the inmates are “white individuals.” [Id. at 13]

8 Plaintiff also alleges that “John Doe Nurse who checked [his shoulder]” was involved in the conspiracy. [#83 at 13] It is unclear whether Plaintiff has named this John Doe Nurse as a defendant. In identifying the named defendants, Plaintiff identified a “John Doe Nurse (who checked [his] injuries after being assaulted in pod 3b . . .)” [id. at 7], but it is unclear whether this nurse (referred to herein as “John Doe ACDF Nurse One”) is the same nurse who checked his shoulder after the initial altercation in pod 3A.

Following the assault in pod 3B, still on August 17, 2019, Plaintiff spoke to Defendant John Doe nurse at ACDF (“John Doe ACDF Nurse One”), who checked his injuries. [Id. at 19] Plaintiff informed John Doe ACDF Nurse One that his shoulder was “damaged and in pain, ” and John Doe ACDF Nurse One determined that Plaintiff needed to go to the emergency room. [Id. at 19] Plaintiff was taken to the emergency room at Defendant Parker Adventist Hospital (the “Hospital”) with an impaired shoulder, a cut between his eyelid and eyebrow, two black eyes, and two knots on his forehead. [Id. at 14, 17, 18] Plaintiff alleges that the Hospital knew about Plaintiff's condition, because the Hospital is “affiliated with” ACDF. [Id. at 18] Plaintiff alleges that, upon his arrival at the Hospital, a nurse told the officer transporting Plaintiff that “they should have called first.” [Id. at 18, 19] Plaintiff informed the nurse that his shoulder was in severe pain and she gave him an ice pack for it. [Id. at 18] Plaintiff was given a full CAT scan and some medications for the pain and swelling. [Id. at 18, 19] Plaintiff alleges that the Hospital's diagnosis was that Plaintiff's “nose was broken and that there was nothing wrong with [his] shoulder, ” whereas, in fact, Plaintiff's nose was not broken and his shoulder was impaired and causing him severe pain. [Id. at 18, 19-20]

Plaintiff alleges that the Hospital failed to provide an appropriate medical screening and that the examination “was so cursory that it was not designed to identify acute and severe symptoms that would have alerted the physician of the need for immediate medical attention to prevent serious bodily injury and impairment.” [Id. at 17] Plaintiff alleges that the Hospital did “not provide[] [him] with an examination comparable to the one offered to other patients presenting similar symptoms.” [Id. at 19, 22] Plaintiff further alleges that the Hospital failed to stabilize his right shoulder injury prior to transferring him back to ACDF on the evening of August 17, 2019. [Id. at 17, 19]

Plaintiff alleges:

Somebody at the jail [Defendant John Doe someone at ACDF (“John Doe Person at ACDF”)] must have communicated with somebody at the [H]ospital [Defendant John Doe someone with the Hospital (“John Doe Person at Hospital”)] to either conceal [Plaintiff's] shoulder injury or to ensure that the examination would be so cursory that it would not identify any acute and severe symptoms that would alert the physician of the need for immediate medical attention to avoid further treatment in the future al[]together.

[Id. at 18; see also Id. at 19] Plaintiff further alleges that John Doe Person at ACDF and John Doe Person at Hospital acted “in concert with . . . at least one other person, including [Defendant John Doe Hospital Radiologist and Defendant Jane Doe Hospital Doctor].” [Id. at 20] Plaintiff alleges that John Doe Person at ACDF “had an agreement with [the Hospital] to deny appropriate medical screening which led to the failure to treat [Plaintiff's] shoulder condition.” [Id.]

After returning to ACDF, Plaintiff contends that he was on ibuprofen for three months and filed numerous “sick calls” regarding his shoulder. [Id. at 22] Plaintiff alleges that Defendant John Doe medical provider at ACDF (“John Doe ACDF Medical Provider”) has provided Plaintiff with two x-rays-the first on or around November 30, 2019 and the second on or around January 30, 2020. [Id. at 21, 32] John Doe ACDF Medical Provider interpreted the x-rays as showing a “normal right shoulder” even though Plaintiff's right shoulder is not normal and continues to be impaired. [Id. at 21] Plaintiff contends that, prior to the second x-ray, a nurse at ACDF who examined Plaintiff's right arm and shoulder, heard Plaintiff's shoulder pop and observed swelling in Plaintiff's right arm. [Id. at 22, 25, 32] Despite this, John Doe ACDF Medical Provider failed to acknowledge the swelling. [Id. at 25] Plaintiff further alleges that he told a different nurse who took the second x-ray that he read that he could have a torn rotator cuff and she told him that she had a torn rotator cuff and “moved along with it just fine.” [Id. at 32]

Plaintiff's right arm and shoulder remain impaired, including that his arm and shoulder “pops and somewhat makes a sound related to something scraping inside the shoulder area when he attempts to use it.” [Id. at 17, 19] Plaintiff alleges that the impairment “has limited his ability to perform daily activities related to pushing or pulling with his right arm.” [Id. at 19]

B. Plaintiff's Receipt of Mental Health Medications

Around July 2019, Defendant Katie Telfer-Plaintiff's public defender in state court criminal proceedings-opined at a hearing in Plaintiff's criminal case that Plaintiff was incompetent to proceed in that case and requested that the judge in the criminal case send Plaintiff to the Colorado Mental Health Institute at Pueblo, Colorado (the “CMHIP”) and place Plaintiff on medication. [Id. at 30] The judge deemed Plaintiff incompetent and ordered competency restoration at the CMHIP, but Plaintiff was not transported to the CMHIP. [Id.] Plaintiff was then given a psychiatric evaluation and was found incompetent to proceed by the State Evaluator and was placed in the R.I.S.E. program at ACDF.⁹ [Id.] Upon entering the R.I.S.E. program, Plaintiff was seen by Defendant John Doe psychiatrist with Denver Health (“John Doe Psychiatrist”), who told Plaintiff that he had to take antipsychotic medications in order to be restored to competency. [Id. at 30] Plaintiff told John Doe Psychiatrist that he did not want to take antipsychotic medication because they irritated his stomach and Plaintiff had completely stopped taking them in 2010. [Id.] John Doe Psychiatrist explained to Plaintiff that, if he refused to take the medication, he would “stay ‘coo-coo'” and it would delay the trial process in the criminal proceedings. [Id.] Plaintiff then agreed to take the medications “only for the purpose of avoiding any more delay in the [criminal] trial.” [Id.]

9 “The RISE Program is a jail-based competency restoration program established between the Colorado Department of Human Services, Office of Behavioral Health, Arapahoe County Sheriff's Office, and Wellpath Recovery Solutions.” [#157 at 2 (quotation omitted)]

Around October 2019, Plaintiff saw Defendant Doctor DeLiere, a psychiatrist, who suggested that Plaintiff take 100 mg of Seroquel, which was then increased to 200 mg. [Id. at 31] At first Plaintiff received one 200 mg pill of Seroquel, but then started receiving two 100 mg pills of Seroquel. [Id. at 28, 31] After Plaintiff took the two 100 mg pills, he began experiencing nausea and diarrhea. [Id.] When Plaintiff told Dr. DeLiere about these negative side effects, Dr. DeLiere suggested that Plaintiff try a different medication and recommended a medication called “Rhespodol.”¹⁰ [Id. at 28] Plaintiff agreed to change medications “as long as it wouldn't cause side effects similar to the Seroquel.” [Id.] Dr. DeLiere told Plaintiff that the “Rhespodol” would not cause similar side effects. [Id. at 31]

10 The operative complaint identifies the medication as “Rhespodol, ” but the Court understands Plaintiff to be referring to Risperdal. The correct name of the medication, however, is immaterial to the Court's consideration of Plaintiff's claims.

Although Dr. DeLiere said that he would prescribe Plaintiff a dissolvable form of “Rhespodol” that would be easier on Plaintiff's stomach, when the medication was brought to Plaintiff the next morning, John Doe ACDF Nurse One told Plaintiff that ACDF was out of the dissolvable medication and only had the “regular kind.” [Id. at 28] Plaintiff asked John Doe ACDF Nurse One if the “regular kind” would cause any severe side effects similar to those Plaintiff experienced from the Seroquel, and John Doe ACDF Nurse One told Plaintiff that it would not. [Id.] Plaintiff contends that-despite the assurances from Dr. DeLiere and John Doe ACDF Nurse One-the side effects caused by the “Rhespodol” were even worse than Plaintiff experienced with the Seroquel. [Id. at 28-29] Specifically, Plaintiff contends that the medication “caused a bad reaction with drinking coffee that caused [Plaintiff] to feel a sharp stinging sensation in [his] abdomen” and caused vomiting, diarrhea, and severe nausea for about four or five days. [Id. at 24-25, 29] Plaintiff alleges that Dr. DeLiere and John Doe ACDF Nurse One failed to provide Plaintiff medical information regarding the side effects and potential risks of taking “Rhespodol” and that, if they had provided such information, Plaintiff would have refused to take it. [Id. at 29] Plaintiff further contends that he is “under the impression that it was unnecessary for [him] to take the[ ] medications altogether and [that they] were imposed to inflict injury and cause permanent damage to [Plaintiff's] bodily organs.” [Id. at 31]

Although Plaintiff stopped taking the “Rhespodol” after the first dose, Plaintiff continues to experience sharp, small stinging sensations in his stomach that become even more painful after Plaintiff drinks coffee or eats spicy foods. [Id. at 25, 33] Plaintiff put in numerous sick calls, but contends that John Doe ACDF Medical Provider failed to provide necessary medical care in response. [Id. at 24-26] In response to one of the sick calls, Plaintiff saw Defendant John Doe nurse at ACDF (“John Doe ACDF Nurse Two”). [Id. at 25, 33] John Doe ACDF Nurse Two requested a urine sample and drew blood to check for damage. [Id. at 33] However, John Doe ACDF Nurse Two only withdrew one and a half tubes of blood and said that he was having trouble completing the blood draw for the second tube. [Id. at 25, 33] According to Plaintiff, John Doe ACDF Nurse Two thus “was not able to complete the blood draw.” [Id. at 25] Although John Doe ACDF Nurse Two told Plaintiff that he would notify Plaintiff if there was any damage, Plaintiff never received a response even though Plaintiff continued to experience the same symptoms. [Id. at 25-26] The medical staff at ACDF recommended only that Plaintiff stay hydrated and drink less coffee. [Id. at 26]

Plaintiff continues to “have symptoms such as sharp and small sensations to [his] stomach as well as discomfort that [Plaintiff] . . . describe[s] as having a form of ‘itchiness' to [his] insides.” [Id. at 33] Plaintiff believes that the “Rhespodol” caused “damage to [his] bodily organs that could result in permanent damage.” [Id.]

C. The Instant Lawsuit

Plaintiff, proceeding pro se, filed the instant action on March 11, 2020. [#1] After twice being directed to cure deficiencies in his pleadings [#3, 10], on June 3, 2020, Plaintiff filed the 15-page Second Amended Complaint, which asserted five claims against five defendants-Deputy Teigen, Deputy Lamb, Dr. DeLiere and two John Doe defendants [#14]. On November 19, 2020, the Court granted Plaintiff leave to file a third amended complaint. [#67] On December 23, 2020, Plaintiff filed the 42-page Third Amended Complaint, which is the operative complaint, asserting 14 claims against seven named defendants and 10 Doe defendants. [#83] More specifically, the Third Amended Complaint asserts the following claims: (1) Claim One alleges state-created danger against Jane Doe Officer and Deputy Teigen [id. at 10-11]; (2) Claim Two alleges a conspiracy to violate Plaintiff's right to be free from punishment and right to equal protection against John Doe Officer, Jane Doe Officer, Officer Beaty, John Doe ACDF Nurse One, and Deputy Teigen based upon their alleged failure to “protect[ ] [Plaintiff] from the assault or by not taking reasonable measures to prevent it” [id. at 12-14]; (3) Claim Three alleges a conspiracy pursuant to 42 U.S.C. § 1983 to violate Plaintiff's right to be free from punishment against John Doe Officer, Jane Doe Officer, Officer Beaty, Deputy Teigen, and Deputy Lamb [id. at 14-15]; (4) Claim Four alleges failure to protect against Jane Doe Officer, Deputy Teigen, and Deputy Lamb [id. at 16-17]; (5) Claim Five alleges a failure to properly screen Plaintiff's injuries in violation of the Emergency Medical Treatment and Active Labor Act (the “EMTALA”), 42 U.S.C. § 1395dd, against the Hospital [id. at 17]; (6) Claim Six alleges a failure to stabilize Plaintiff's injuries in violation of the EMTALA against the Hospital [id. at 18-19]; (7) Claim Seven alleges a conspiracy pursuant to 42 U.S.C. § 1983 to violate Plaintiff's right to be free from punishment and to receive adequate medical care against John Doe ACDF Nurse One, John Doe Person at the Hospital, John Doe Person at ACDF, John Doe Hospital Radiologist, Jane Doe Hospital Doctor, John Doe ACDF Medical Provider, and the Hospital [id. at 19-21]; (8) Claim Eight alleges a conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985 against John Doe ACDF Nurse One, John Doe Person at the Hospital, John Doe Person at ACDF, John Doe Hospital Radiologist, Jane Doe Hospital Doctor, and John Doe ACDF Medical Provider [id. at 21-23]; (9) Claim Nine alleges deliberate indifference to Plaintiff's serious medical needs against John Doe ACDF Medical Provider [id. at 24-26]; (10) Claim Ten alleges a failure to train or supervise that resulted in violations of Plaintiff's constitutional rights against Chief Rowlison [id. at 26-28]; (11) Claim Eleven alleges a violation of Plaintiff's right to medical information and right to refuse medical treatment against Dr. DeLiere and John Doe ACDF Nurse One [id. at 28-29]; (12) Claim Twelve alleges a conspiracy pursuant to 42 U.S.C. § 1983 to violate Plaintiff's right to refuse medical treatment and his right to privacy and bodily integrity against Dr. DeLiere, John Doe Psychiatrist, Ms. Telfer, John Doe ACDF Medical Provider, and John Doe ACDF Nurse Two [id. at 29-32]; (13) Claim Thirteen alleges a state law claim for nondisclosure against John Doe ACDF Nurse One, John Doe ACDF Medical Provider, Dr. DeLiere, and John Doe ACDF Nurse Two [id. at 32-34];¹¹ and (14) Claim Fourteen alleges a state law claim for intentional infliction of emotional distress against Deputy Teigen, Officer Beaty, Jane Doe Officer, Deputy Lamb, John Doe Officer, John Doe ACDF Nurse One, Ms. Telfer, Dr. DeLiere, John Doe Psychiatrist, John Doe ACDF Medical Provider, and John Doe ACDF Nurse Two [id. at 34-36].¹²

11 Although Claim Thirteen is titled “Nondisclosure pursuant to 28 U.SC. § 2367” [#83 at 32], the Court understands Plaintiff to intend to refer to 28 U.S.C. § 1367, which is the statute providing for the Court's supplemental jurisdiction over state law claims. Title 28 does not include a section 2367, and Plaintiff refers to 28 U.S.C. § 1367 in his statement of jurisdiction in the Third Amended Complaint. [#83 at 4]

12 The Third Amended Complaint does not clearly articulate which of the 14 claims are being asserted against which of the 17 defendants. Although Plaintiff includes allegations against “defendants” generally in some of his claims, the Court construes the claims as being asserted against only the defendants expressly referenced by name in the allegations regarding each claim. See Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008) (finding that in Section 1983 action that “include[s] the government agency and a number of government actors sued in their individual capacities, ” it is “particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state” (emphasis in original)); 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.”).

On November 30, 2020, Plaintiff filed the First Motion for Injunction. [#70] The First Motion for Injunction:

seeks a temporary restraining order [“TRO”] and preliminary injunction requiring: a medically appropriate course of physical therapy designed to

restore and maintain the full function of [Plaintiff's] right arm and shoulder; that anyone acting in concert with [ACDF] refrain from imposing any more harm and injury to his person; medical treatment for the ongoing pain and suffering to his stomach, caused by taking the antipsychotic medication; and examination of his arm and shoulder by a qualified orthopedic specialist.

[#79 at 3] On December 7, 2020, District Judge William J. Martinez issued an Order that denied the portion of the First Motion for Injunction that sought a TRO, because Plaintiff “failed to show that he faces a harm so immediate or urgent that justice requires the issuance of an ex parte TRO.” [Id. at 4] Judge Martinez referred the portion of the First Motion for Injunction seeking a preliminary injunction to this Court. [Id. at 5] Deputy Teigen and Deputy Lamb filed a response to the First Motion for Injunction [#88], and Plaintiff did not file a reply.

On January 13, 2021, the ACSO Defendants filed the ACSO Motion to Dismiss. [#87; see also #107] Plaintiff filed a response in opposition to the ACSO Motion to Dismiss [#105], and the ACSO Defendants filed a reply [#113].

On March 1, 2021, Plaintiff filed the Motion to Amend. [#114] The ACSO Defendants filed a response in opposition to the Motion to Amend [#118], and Plaintiff did not file a reply.

On April 16, 2021, Plaintiff filed the Second Motion for Injunction, which requests a TRO and preliminary injunction preventing Ms. Telfer and her successors, agents, and employees from “[s]eeking and enforcing the involuntary administration of antipsychotic medications and from wrongfully confining Plaintiff at the Colorado Mental Health Institute.” [#127] No defendant has filed a response to the Second Motion for Injunction.

On June 3, 2021, Ms. Telfer filed the Telfer Motion to Dismiss. [#155] Plaintiff has not filed a response to the Telfer Motion to Dismiss.

On June 16, 2021, Plaintiff notified the Court that he had been transferred from ACDF to the CMHIP. [#162] On that same date, Plaintiff filed the Third Motion for Injunction, which seeks to enjoin Defendants from: (1) destroying or concealing any of Plaintiff's legal documents, (2) denying Plaintiff access to his legal documents that were left at ACDF when he was transferred to the CMHIP, and (3) impeding Plaintiff's access to his legal documents. [#161] On July 8, 2021, the ACSO Defendants filed their response to the Third Motion for Injunction. [#166]

II. MOTIONS TO DISMISS AND SECTION 1915 REVIEW

The ACSO Motion to Dismiss argues that Plaintiff's claims against the ACSO Defendants-Claims 1 through 4, 10, and 14-should be dismissed because Plaintiff “fails to adequately plead any constitutional violation” and “can[not] . . . demonstrate that their conduct violated any clearly established right” and that Plaintiff's state law claims against them are “barred for failure to allege a claim and because he has no jurisdiction to bring [them] pursuant to the Colorado Governmental Immunity Act (‘CGIA').” [#87 at 3; see also #107] Although the ACSO Defendants only seek dismissal of the claims asserted against them, the Court finds it appropriate to screen all of Plaintiff's claims asserted in the Third Amended Complaint to determine if the allegations are sufficient to plausibly state a claim for relief. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), in a case where the plaintiff has been permitted to proceed without payment of fees pursuant to Section 1915(a), “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” Pursuant to 28 U.S.C. § 1915A, “[t]he court shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and “shall . . . dismiss the complaint, or any portion of the complaint, if the complaint . . . fails to state a claim upon which relief may be granted.” Here, Plaintiff is proceeding in forma pauperis pursuant to Section 1915(a) [#9] and asserts claims mostly against government officers and employees.¹³ Although the court conducted a screen of Plaintiff's initial complaints [#3, 10, 15], no screen pursuant to Section 1915(e) or 1915A has yet been completed on Plaintiff's Third Amended Complaint, which made substantive changes to the allegations in the Second Amended Complaint and asserted nine additional claims against 12 additional defendants.

13 Plaintiff also alleges that the Hospital and its employees were acting under color of state law and should be considered state actors for purposes of his claims. [See #83 at 5, 8, 20]

The Court thus analyzes all of Plaintiff's claims to determine if the factual allegations are sufficient to state a claim for relief. The Court first evaluates Plaintiff's substantive federal causes of action-i.e., Claims One, Four, Five, Six, Nine, and Eleven-and then turns to Plaintiff's federal conspiracy claims-i.e., Claims Two, Three, Seven, Eight, and Twelve-and Monell claim-i.e., Claim Ten, ¹⁴ which are all derivative of the substantive claims. See Hinkle v. Beckham Cty. Bd. of Cty. Commissioners, 962 F.3d 1204, 1231 (10th Cir. 2020) (“For a valid § 1983 conspiracy claim, plaintiffs must plead and prove not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient.” (quotation omitted)); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (“A municipality may not be held liable [under Monell] where there was no underlying constitutional violation by any of its officers.”); Dorsey v. Pueblo Sch. Dist. 60, 140 F.Supp.3d 1102, 1121 (D. Colo. 2015) (finding that “[p]laintiff's Monell claim (including any claim for failure to train and supervise) . . . must be based on an underlying constitutional violation by [d]efendants' representatives”). The Court then considers Plaintiff's two state law claims-Claims Thirteen and Fourteen.

14 In Monell v. Department of Social Services of the City of New York, the Supreme Court held that a local government can be sued under § 1983 for constitutional violations but cannot be held liable merely on account of the unauthorized acts of its agents. 436 U.S. 658, 690-91 (1978).

A. LEGAL STANDARD

1. Rule 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).

2. Rule 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 or 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).

3. Section 1915(e) and Section 1915A Screen

As explained above, pursuant to both Section 1915(e)(2)(B)(ii) and Section 1915A, the Court is required to review a plaintiff's complaint and dismiss those claims that fail to state a claim on which relief may be granted. A complaint is subject to dismissal for failure to state a claim pursuant to Section 1915(e) and Section 1915A “if the allegations, taken as true, show the plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215 (2007). The Court applies the same standard for determining whether a complaint fails to state a claim pursuant to Section 1915(e) and Section 1915A that the Court applies in resolving a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Robertson v. McCullough, 739 Fed.Appx. 932, 936 (10th Cir. 2018) (“To evaluate the sufficiency of a complaint dismissed under 28 U.S.C. § 1915A(b), we apply the same standard applied under Federal Rule of Civil Procedure 12(b)(6).”); Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (“We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.”).

B. State-Created Danger (Claim One)

Claim One asserts a claim for state-created danger against Jane Doe Officer and Deputy Teigen. [#83 at 10-11] In his response to the ACSO Motion to Dismiss, Plaintiff makes clear that Claim One asserts a violation of his substantive due process rights. [#105 at 3-4] Although “state actors are generally only liable under the Due Process Clause for their own acts and not for private violence . . ., there are two recognized . . . exceptions to this rule: (1) the special relationship doctrine; and (2) the ‘danger creation' theory.” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995) (citations and footnote omitted). “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g., when the individual is a prisoner or involuntarily committed mental patient).” Id. “[T]o sustain a claim under the special-relationship doctrine, a plaintiff must demonstrate that the defendant ‘abdicated her professional duty sufficient to shock the conscience.'” Gutteridge v. Oklahoma, 878 F.3d 1233, 1239 (10th Cir. 2018) (quoting Schwartz v. Booker, 702 F.3d 573, 586 (10th Cir. 2012)) (emphasis omitted).

State actors “may be liable for an individual's safety under a ‘danger creation' theory if [they] created the danger that harmed that individual.” Uhlrig, 64 F.3d at 572. “[M]any state activities have the potential for creating some danger-as is true of most human endeavors-but not all such activities constitute a ‘special' danger giving rise to § 1983 liability.” Id. To satisfy this “special, ” “constitutionally cognizable danger” requirement, “the danger creation theory must ultimately rest on the specifics of a substantive due process claim-i.e., a claim predicated on reckless or intentionally injury-causing state action which ‘shocks the conscience.'” Id. It thus “‘is not enough to show that the state increased the danger of harm from third persons; the [§] 1983 plaintiff must also show that the state acted with the requisite degree of culpability in failing to protect the plaintiff.'” Id. at 573 (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994)).

Accordingly, under both the special relationship and danger creation exceptions, Plaintiff must plausibly allege that Defendants acted in a manner that “shocks the conscience” to state a substantive due process claim. Gutteridge, 878 F.3d at 1239; Uhlrig, 64 F.3d at 572. “Conduct is shocking to the conscience when the degree of outrageousness and [ ] magnitude of potential or actual harm [ ] is truly conscience shocking.” Schwartz, 702 F.3d at 586 (quotations omitted). “[T]he ‘shock the conscience' standard requires a high level of outrageousness, because . . . a substantive due process violation requires more than an ordinary tort and . . . merely allowing unreasonable risks to persist in the workplace is not necessarily conscience shocking.” Uhlrig, 64 F.3d at 574.

Here, Plaintiff alleges that Officer Jane Doe and Deputy Teigen violated his substantive due process rights by placing him in pod 3B-right next to pod 3A where he had just been in an altercation with other inmates-because they allegedly were aware that Plaintiff's shoulder was injured as a result of the altercation in pod 3A and “were aware that there was a substantial risk of serious, immediate and proximate harm by putting [Plaintiff] in pod 3B.” [#83 at 10-11] The ACSO Defendants argue that Plaintiff fails to plausibly allege that the officers' decision to place Plaintiff in pod 3B was conscious-shocking, because none of Plaintiffs' allegations “plausibly claim that [the officers] knew of a risk and acted in conscious disregard of that risk.” [#87 at 7 (emphasis in original)] The Court agrees.

Although Plaintiff repeatedly alleges that the defendant officers “were aware that injury would result” from his placement in pod 3B, he fails to offer any factual allegations that plausibly support that conclusory allegation. The Third Amended Complaint alleges that pod 3B was “right next door to pod 3A”-where Plaintiff had been assaulted-but otherwise offers no explanation for why pod 3B was not a safe place for him to be placed or how or why the defendant officers should have known Plaintiff would be at risk of violence in pod 3B.¹⁵ [#83 at 10-11] Nor does this lone allegation regarding the proximity of the pods support a reasonable inference that the defendant officers knew Plaintiff would be at risk of violence if placed in pod 3B. There is no allegation, for example, that the defendant officers were aware of any prior threats made by inmates in pod 3B or that the inmates with whom Plaintiff had the altercation in pod 3A had access to pod 3B. Moreover, Plaintiff alleges that, upon his reassignment to pod 3B, he voluntarily took a walk with one of his subsequent assaulters because he thought they were going to have “a friendly conversation.” [Id. at 15] The factual allegations thus do not plausibly support a finding that the harm to Plaintiff posed by relocating him to pod 3B was known to the defendant officers or that the harm was obvious.

15 In his response to the ACSO Motion to Dismiss, Plaintiff alleges that a couple of months after the assault in pod 3B, an inmate who had been housed in pod 3A at the time told Plaintiff that “after [Plaintiff] was removed out of pod 3A and placed in the M.P.R. room, the inmates in pod 3A somehow communicated with the inmates in pod 3B (through the dividing door in the wall), that [Plaintiff] had punched somebody who was ‘related' to the inmate who assaulted [Plaintiff] in pod 3B.” [#105 at 3] Plaintiff further alleges that he recalls the inmate who assaulted him in pod 3B saying “because you sucker punched my cousin” during the assault. [Id.] As an initial matter, Plaintiff may not amend his complaint to add these new factual allegations through his response to a motion to dismiss. See Mattson v. Napolitano, No. 09-cv-02024-PAB-BNB, 2010 WL 11553697, at *2 (D. Colo. Sept. 15, 2010) (finding that plaintiff may not amend complaint by including new factual allegations in response to motion to dismiss); Smith v. Pizza Hut, Inc., 694 F.Supp.2d 1227, 1230 (D. Colo. 2010) (“Plaintiffs cannot rectify their pleading deficiencies by asserting new facts in an opposition to a motion to dismiss.”). Even if the Court were to consider these new factual allegations, however, Plaintiff does not plausibly allege either: (1) that the defendant officers were aware of the conversation inmates in pod 3A allegedly had with inmates in pod 3B, or (2) that the defendant officers were aware that an inmate in pod 3B was “related” to the inmate Plaintiff punched in pod 3A. [#105 at 3]

Instead, Plaintiff alleges that the defendant officers conspired with the inmates to facilitate Plaintiff's assault in pod 3B. [See, e.g., id. at 14-15] Plaintiff's allegation that the defendant officers orchestrated his assault, however, is based entirely upon speculative and conclusory allegations, which are insufficient to plausibly state a claim. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (stating that Court takes as true “all well-pled (that is, plausible, non-conclusory, and non-speculative . . .) facts alleged in plaintiffs' complaint”). Although Plaintiff contends that “it can be reasonably inferred that, not only did the officers have knowledge that the incident would occur but that they aided in ensuring that injury would result” [#105 at 3], he does not offer any factual allegations that plausibly support such an inference.¹⁶ To the contrary, as the ACSO Defendants point out, “by removing [Plaintiff] from a pod where he had just been involved in an altercation, the [officers seemingly] demonstrated an effort to protect [Plaintiff] from harm.” [#87 at 7 (emphasis in original)]

16 Plaintiff contends that the following three factual allegations support the inference that the defendant officers must have coordinated his assault with the inmates who assaulted him: (1) the officers were quiet for an approximately 10-minute period while Jane Doe Officer was deciding where Plaintiff should be rehoused following the altercation in pod 3A; (2) the officers were laughing when he walked out of pod 3B following his assault; and (3) Deputy Teigen was standing at the door, smiling at Plaintiff as he handed Plaintiff a piece of mail when Plaintiff exited pod 3B after the assault. [#105 at 2-3; see also #83 at 12-13] None of these factual allegations, however, suggests that the officers actually spoke-or otherwise coordinated-with the inmates who orchestrated Plaintiff's assault or had any knowledge that the assault was likely to occur prior to Plaintiff's reassignment to pod 3B. These allegations thus are insufficient to “nudge [Plaintiff's contention regarding the defendant officers' knowledge and coordination of the assault] across the line from conceivable or speculative to plausible.” Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021).

The Court thus finds the allegations in the Third Amended Complaint insufficient to plausibly allege that the defendant officers had knowledge that an assault was likely to occur if Plaintiff was relocated to pod 3B or that the defendant officers orchestrated the attack with the inmates who assaulted Plaintiff. As such, Plaintiff has failed to plausibly allege either that the defendant officers created the danger Plaintiff faced in pod 3B or that their conduct shocks the conscience. At most, Plaintiff has alleged that the defendant officers were negligent in relocating Plaintiff to pod 3B given its proximity to pod 3A where Plaintiff had just been involved in an altercation with other inmates. Such negligence is insufficient to support a substantive due process claim. See Ruiz v. McDonnell, 299 F.3d 1173, 1184 (10th Cir. 2002) (stating that “ordinary negligence does not shock the conscience . . . and that even permitting unreasonable risks to continue is not necessarily conscience shocking”). Accordingly, the Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claim One and that Plaintiff's Claim One be DISMISSED.

C. Failure to Protect (Claim Four)

Claim Four alleges that Jane Doe Officer, Deputy Teigen, and Deputy Lamb failed to protect Plaintiff from the threat posed by the inmates in pod 3B in violation of Plaintiff's constitutional rights. [#83 at 16-17] The Eighth Amendment protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'”¹⁷ 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). As part of this obligation to take reasonable measures to guarantee an inmate's safety, “prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quotations omitted). “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Id. (quotations omitted).

17 Because Plaintiff was a pretrial detainee rather than a convicted prisoner at the time of the events that form the basis of his claims, the Court “consider[s] this lawsuit under the Fourteenth Amendment's provision for due process” rather than the Eighth Amendment. Contreras ex rel. A.L. v. Dona Ana Cty. Bd. of Cty. Commissioners, 965 F.3d 1114, 1116 n.2 (10th Cir. 2020) (Tymkovich, C.J., concurring), cert. denied, 141 S.Ct. 1382, 209 L.Ed.2d 125 (2021). However, “the Eighth Amendment's prohibition against ‘cruel and unusual punishments' guides [the Court's] analysis.” Id.

That said, not every instance of inmate-on-inmate violence “translates into constitutional liability for prison officials responsible for the victim's safety.” Id. at 834. Instead, to establish an Eighth Amendment violation, the victim must establish two requirements.¹⁸ First, there is an objective component in that the deprivation must be “sufficiently serious” such that the prisoner is denied “the minimal civilized measure of life's necessities.” Id. (quotations omitted). “In cases involving a failure to prevent harm, this means that the prisoner must show that the conditions of his incarceration present an objective ‘substantial risk of serious harm.'” Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (quoting Farmer, 511 U.S. at 833). Second, there is a subjective requirement that the prison official have a “deliberate indifference” to the inmate's health or safety. Farmer, 511 U.S. at 839. This deliberate indifference is akin to recklessness as used in the criminal law. See Id. at 839; Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (“The 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.” (quotations omitted)). “The subjective component of the deliberate indifference test requires that, before liability can be imposed, a prison official ‘must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'”¹⁹ Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998)).

18 The Tenth Circuit has held that the deliberate indifference test applicable under the Eighth Amendment applies “to Fourteenth Amendment deliberate indifference claims, including those based on a failure to prevent jailhouse violence. Hooks v. Atoki, 983 F.3d 1193, 1203 (10th Cir. 2020), cert. denied, No. 20-7368, 2021 WL 2405232 (U.S. June 14, 2021).

19 Even where both the objective and subjective components of a deliberate indifference claim have been proven, a constitutional violation may not exist. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844-45.

The ACSO Motion to Dismiss argues that “there are no facts alleged [in the Third Amended Complaint] to satisfy the subjective element of a failure to protect claim that the [ACSO Defendants] were aware of a specific threat to [Plaintiff's] safety after moving him from pod 3A and failed to act.” [#87 at 10] The Court agrees that the allegations in the Third Amended Complaint are insufficient to plausibly allege the subjective component of Plaintiff's failure to protect claim.

As explained above in the context of Plaintiff's claim for a state-created danger, the Third Amended Complaint fails to plausibly allege that the officer defendants either: (1) were aware of a risk of harm Plaintiff faced by his transfer to pod 3B, or (2) orchestrated the assault in pod 3B. Instead, Plaintiff's allegations are entirely conclusory and speculative and thus are insufficient to state a claim.²⁰ See Dudnikov, 514 F.3d at 1070. Plaintiff does not allege that the inmates with whom he had the altercation in pod 3A had access to pod 3B or that the defendant officers were aware of any threat inmates in pod 3B posed to Plaintiff. In his response to the ACSO Motion to Dismiss, Plaintiff argues:

20 For example, Plaintiff baldly alleges that Jane Doe Officer and Deputy Teigen “knew of the risk” and that Deputy Lamb also “had knowledge of it, ” but fails to include any plausible factual allegations to support that conclusion. [#83 at 16] Similarly, Plaintiff alleges that Jane Doe Officer and Deputy Teigen “disregarded that risk or failed to take reasonable measures to protect [P]laintiff in response to that risk, ” without any supporting factual allegations. [Id.]

The fact that [Jane Doe Officer] opened the [pod 3B] door for [Plaintiff] as [he] approached the door, and the fact that [Deputy] Teigen was waiting for [Plaintiff] at the door with a piece of mail . . . on the way out, coupled with the fact that the officers were gathered together, laughing and making a mockery of the incident, is circumstantial evidence of a “culpable state of mind.”

[#105 at 5] The Court disagrees. Without factual allegations to plausibly allege that the officer defendants were aware of the risk of harm to Plaintiff and/or orchestrated the assault, these allegations concerning the officer defendants' proximity right before and after the assault and the officers' alleged laughing do not plausibly allege deliberate indifference.

The Court thus finds that the allegations in the Third Amended Complaint are insufficient to plausibly allege that the officer defendants “both [were] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” by placing Plaintiff in pod 3B or that the officer defendants “also dr[e]w the inference.” Verdecia, 327 F.3d at 1175. Instead, Plaintiff improperly seeks to rely on his own speculation drawn from seemingly innocuous actions on the part of the defendant officers. Such speculation is insufficient to plausibly state a claim. Accordingly, the Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claim Four and that Plaintiff's Claim Four be DISMISSED.

D. Violations of the EMTALA (Claims Five and Six)

Claim Five alleges that the Hospital failed to properly screen Plaintiff's injuries in violation of the EMTALA and Claim Six alleges the Hospital failed to stabilize Plaintiff's injuries in violation of the EMTALA.²¹ [#83 at 17-19] The EMTALA “places obligations of screening and stabilization upon hospitals and emergency rooms that receive patients suffering from an emergency medical condition.” Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 250 (1999) (quotation omitted). More specifically, pursuant to the EMTALA, “the hospital must conduct an initial medical examination to determine whether the patient is suffering from an emergency medical condition” and “if an emergency medical condition exists, [the hospital must] stabilize the patient before transporting him or her elsewhere.” Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001). Courts have recognized a private right of action under the EMTALA against participating hospitals for violations of their screening and/or stabilization obligations. Ward v. Lutheran Med. Ctr., 769 Fed.Appx. 595, 599 (10th Cir. 2019). Here, Plaintiff has asserted claims alleging both that the Hospital failed to adequately screen him to determine if he was suffering from an emergency medical condition and that the Hospital failed to adequately stabilize his emergency medical condition prior to transferring him back to ACDF. [#83 at 17-19] The Court considers each in turn.

21 “The EMTALA does not provide a private right of action against individual physicians or other hospital personnel.” Ward v. Lutheran Med. Ctr., 769 Fed.Appx. 595, 599 n.3 (10th Cir. 2019) (citing Delaney v. Cade, 986 F.2d 387, 394 (10th Cir. 1993)). The Court thus understands and construes Plaintiff's EMTALA claims to be asserted only against the Hospital.

1. Failure to Properly Screen (Claim Five)

“[W]hether a given hospital has performed an ‘appropriate medical screening examination,' as defined by the EMTALA, varies with the unique capabilities of the specific hospital” and the Court must “give appropriate deference to the existing screening procedures utilized by the hospital, because it, not a reviewing court, is in a superior position to determine its own capabilities and limitations.” Phillips, 244 F.3d at 797. As a result, “a hospital's obligation under EMTALA is measured by whether it treats every patient perceived to have the same medical condition in the same manner” and the hospital has a duty to abide by its established procedures.²² Id. Thus, to state a claim for violation of the screening requirement of the EMTALA, a plaintiff must plausibly allege that the hospital “d[id] not follow its own standard procedures.” Id. (quoting Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994)). However, “[m]ere de minimus variations from the hospital's standard procedures do not amount to a violation of hospital policy.” Repp, 43 F.3d at 523.

22 Plaintiff's allegation that the Hospital “did not meet EMTALA's appropriate medical screening requirement” [#83 at 17] thus is mistaken as the EMTALA does not impose an objective screening standard on hospitals. See Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994) (finding that the language of the EMTALA “reveals that the requisite [screening] standard, far from being uniform, varies with the particular conditions of each individual emergency room”); Phillips, 244 F.3d at 798 (finding that the “EMTALA does not set a federal standard of care or replace pre-existing state medical negligence laws”).

Here, the Third Amended Complaint fails to identify any of the Hospital's standard screening procedures that the Hospital violated during its evaluation of Plaintiff's injuries. [#83 at 17] Although Plaintiff alleges that the Hospital “did not provide [P]laintiff with an examination comparable to the one offered to other patients, ” he fails to identify any specific screening procedure that was violated or any screening technique offered to other patients that was not provided to him. [Id.] Similarly, Plaintiff alleges that the Hospital's “examination was so cursory that it was not designed to identify acute and severe symptoms, ” but he fails to identify any screening procedure or technique that was not offered to him. [Id.] Nor is Plaintiff's conclusory allegation of a cursory examination supported by his more specific factual allegations, which acknowledge that the Hospital's examination of Plaintiff's injuries included a “full CAT scan.” [Id. at 18]

Accordingly, the Court finds that Plaintiff has not identified any screening procedures adopted by the Hospital that the Hospital failed to follow in screening Plaintiff's injuries and Plaintiff thus has not plausibly alleged a violation of the EMTALA. At most, Plaintiff has alleged that the Hospital was negligent or inaccurate in its screening of Plaintiff's injuries, but such allegations are insufficient to state a plausible claim for relief under the EMTALA. “While providing a guaranty for an ‘appropriate medical screening,' EMTALA, unlike traditional state negligence or malpractice law, does not provide a remedy for an inadequate or inaccurate diagnosis.” Phillips, 244 F.3d at 798. Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Claim Five be DISMISSED.

2. Failure to Properly Stabilize (Claim Six)

Plaintiff also alleges that the Hospital violated the EMTALA's stabilization requirement by failing to stabilize his right shoulder injury before transferring Plaintiff “to [ACDF] with material deterioration in his right shoulder.” [#53 at 18-19] As relevant here, the EMTALA provides that a hospital, upon determining that a patient has an emergency medical condition, must provide “within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition.” 42 U.S.C. § 1395dd(b)(1)(A). The EMTALA defines “to stabilize” to mean that “within reasonable medical probability . . . no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.” 42 U.S.C. § 1395dd(e)(3)(A). The EMTALA's stabilization requirement thus is limited to providing such further medical examination and treatment as may be required, within reasonable medical probability, to prevent material deterioration that may result from or occur during the transfer of the patient.²³

23 As the Fourth Circuit has explained:

The stabilization requirement is thus defined entirely in connection with a possible transfer and without any reference to the patient's long-term care within the system. It seems manifest to us that the stabilization requirement was intended to regulate the hospital's care of the patient only in the immediate aftermath of the act of admitting her for emergency treatment and while it considered whether it would undertake longer-term full treatment or instead transfer the patient to a hospital that could and would undertake that treatment. It cannot plausibly be interpreted to regulate medical and ethical decisions outside that narrow context.

Bryan v. Rectors & Visitors of Univ. of Va., 95 F.3d 349, 352 (4th Cir. 1996).

Here, Plaintiff includes a conclusory allegation that “material deterioration” of his right shoulder resulted from the Hospital's failure to properly diagnose and treat his right shoulder injury, but, importantly, Plaintiff does not allege that the material deterioration resulted from or occurred during the transfer of Plaintiff from the Hospital to ACDF. [#83 at 18] As the Tenth Circuit has acknowledged, “[u]nder EMTALA, [a] patient may be in a critical condition . . . and still be ‘stabilized' under the terms of the Act.” St. Anthony Hosp. v. U.S. Dep't of Health & Hum. Servs., 309 F.3d 680, 694 (10th Cir. 2002) (quotation omitted). Although Plaintiff alleges that the Hospital improperly diagnosed him with a broken nose and a normal shoulder, despite his nose not being broken and his shoulder being injured, Plaintiff acknowledges that the Hospital provided him a full CAT scan, an ice pack, and medication for pain and swelling for his injured shoulder and that he continued to receive care, including two x-rays, for his right shoulder after his transfer back to ACDF. [#83 at 18, 19, 21, 32] Plaintiff fails to identify any additional treatment that the Hospital should have provided in order to “stabilize” his condition prior to transferring him back to ACDF or to identify any injury that resulted from or occurred during his transfer to ACDF as distinguished from injury that allegedly resulted from the Hospital's failure to properly diagnose and treat Plaintiff's injury.

The Court thus finds that Plaintiff's allegations, at most, allege that the Hospital engaged in negligence and medical malpractice, which are insufficient to state a claim under the EMTALA. See, e.g., Ward, 769 Fed.Appx. at 599 (finding that district court “correctly dismissed [the plaintiff's] EMTALA claim as legally frivolous to the extent it was based on [allegations of negligence and medical malpractice]”); Urban ex rel. Urban v. King, 43 F.3d 523, 525 (10th Cir. 1994) (“The [EMTALA] is neither a malpractice nor a negligence statute.”). Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Claim Six be DISMISSED.

E. Deliberate Indifference to Serious Medical Needs (Claim Nine)

Claim Nine alleges that John Doe ACDF Medical Provider violated Plaintiff's constitutional rights by demonstrating deliberate indifference to his serious medical needs. [#83 at 24-26] A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment.²⁴ See Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the prison medical context, “deliberate indifference is present when prison officials intentionally deny or delay access to necessary medical treatment for non medical reasons.” Hammond v. Crum, No. 16-CV-0069-GPG, 2016 WL 153224, at *2 (D. Colo. Jan. 13, 2016) (citing Estelle, 429 U.S. at 104-05).

24 “The Fourteenth Amendment's Due Process Clause entitles pretrial detainees to the same standard of medical care that the Eighth Amendment requires for convicted inmates.” Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021) (citing Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020)).

“‘Deliberate indifference' involves both an objective and a subjective component.”²⁵ Sealock v. Colorado, 218 F.3d 1205, 1209 (10^th Cir. 2000). “The objective component is met if the deprivation is ‘sufficiently serious.'” Id. (quoting 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.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). “The subjective component 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 at 1231 (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); see also Id. at 753 (The question is: “were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”).

25 The Tenth Circuit has instructed that courts should “apply the two-part Eighth Amendment inquiry when a pretrial detainee alleges deliberate indifference to serious medical needs.” Quintana v. Santa Fe Cty. Bd. of Commissioners, 973 F.3d 1022, 1028 (10th Cir. 2020).

Here, Plaintiff alleges that John Doe ACDF Medical Provider “was deliberately indifferent to his shoulder impairment [caused by the assault in pod 3B] and sharp discomfort to his stomach [caused by taking the ‘Rhespodol'] by denying him medical attention for both these issues.” [#83 at 24-25] For purposes of the instant Recommendation, the Court assumes without deciding that Plaintiff's allegations of right shoulder injury and stomach pain are sufficiently serious to satisfy the objective component of his deliberate indifference claim and focuses only on the subjective component. The Third Amended Complaint alleges that John Doe ACDF Medical Provider “failed to provide necessary medical care” for Plaintiff's conditions and thereby was “deliberate[ly] indifferent” to them [id. at 26], but fails to offer any factual allegations specific to John Doe ACDF Medical Provider's own conduct to support those conclusory allegations.²⁶ Plaintiff's Third Amended Complaint does not include any factual allegations regarding specific instances in which John Doe ACDF Medical Provider refused to see Plaintiff for his injuries when no other medical provider was available.²⁷Instead, Plaintiff alleges only that John Doe ACDF Medical Provider: (1) interpreted two x-rays as showing a “normal right shoulder” even though Plaintiff's right shoulder is not normal and continues to be impaired, and (2) failed to acknowledge the swelling in Plaintiff's right arm that was confirmed by another nurse. [#83 at 21, 25] Such allegations, at most, allege either a difference of opinion between John Doe ACDF Medical Provider and other health care providers and/or medical malpractice or negligence. Neither is sufficient to establish deliberate indifference. See Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Perkins v. Kan. 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.”); Rascon v. Douglas, 718 Fed.Appx. 587, 591 (10th Cir. 2017) (finding that “[i]t is well established that a difference of opinion between two doctors is insufficient to survive summary judgment on a deliberate-indifference claim” (quotation omitted)).

26 Claim Nine also includes allegations regarding the treatment Plaintiff was provided for his shoulder injury and stomach pain by other health care providers at ACDF, but these actions may not be attributed to John Doe ACDF Medical Provider and Claim Nine is only asserted against John Doe ACDF Medical Provider. [#53 at 24-26] As the Tenth Circuit has instructed, “[p]ersonal participation is an essential allegation in a [§ 1983] claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). The plaintiff must allege “a defendant's direct personal responsibility for the claimed deprivation of a constitutional right.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). In order to assert a claim for the liability of a supervisor, the plaintiff must allege “an affirmative link between the constitutional deprivation and the supervisor's personal participation, exercise of control, or his failure to supervise.” Bertolo v. Benezee, 601 Fed.Appx. 636, 639 (10th Cir. 2015) (citing Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008)). The Third Amended Complaint does not allege that John Doe ACDF Medical Provider had any personal participation or supervisory responsibility for the medical care Plaintiff was provided by these other health care providers at ACDF. Regardless, Plaintiff does not allege that any of these other health care providers were aware of a substantial risk to Plaintiff's health and disregarded it, but instead, at most, alleges that their care was negligent and/or that he disagreed with their treatment decisions. [See #53 at 24-26 (alleging that nurse confirmed Plaintiff had swelling in his right arm and heard his shoulder pop and that John Doe ACDF Nurse Two filled only one and a half tubes during Plaintiff's blood draw and did not provide Plaintiff with the results of the testing)] Such allegations are insufficient to state a claim for deliberate indifference. See Farmer, 511 U.S. at 835 (stating that mere negligence is insufficient to state claim for deliberate indifference); Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation”).

27 Plaintiff alleges only generally that he put in numerous sick calls in response to which John Doe ACDF Medical Provider failed to provide necessary medical care. [#83 at 24, 26] Plaintiff fails to provide any supporting factual allegations regarding the dates of these sick calls, the ACDF medical personnel responsible for responding to them, how long Plaintiff went without a response to the sick calls, and what injury, if any, resulted from the delay. See Sealock, 218 F.3d at 1210 (finding that delay in receiving medical care “only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm”).

Accordingly, the Court finds that Plaintiff has not plausibly alleged the subjective prong of his claim for deliberate indifference and thus respectfully RECOMMENDS that Plaintiff's Claim Nine be DISMISSED. See, e.g., Perkins, 165 F.3d at 811 (“[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation”); Brown v. Schmierer, No. CIV.A.08-3031-SAC, 2008 WL 1884157, at *2 (D. Kan. Apr. 28, 2008) (“Plaintiff's bare claims of inadequate and negligent care, and his speculative concerns over future harm, fail to state any actionable claim of constitutional deprivation.”).

F. Right to Medical Information and to Refuse Treatment (Claim Eleven)

Claim Eleven alleges that Dr. DeLiere and John Doe ACDF Nurse One violated Plaintiff's Fourteenth Amendment “Right to Medical Information” by “exhibit[ing] deliberate indifference to Plaintiff's right to refuse . . . unwanted treatment after requesting information about the side effects and the potential risks of taking the medications” and thereby “depriv[ing] [Plaintiff] of his liberty interest in his right to refuse medical treatment.” [#83 at 28-29] More specifically, Plaintiff alleges that he expressly asked Dr. DeLiere and John Doe ACDF Nurse One whether the “Rhespodol” would cause side effects similar to the nausea Plaintiff had experienced when taking a prior medication, and both Dr. DeLiere and John Doe ACDF Nurse One told Plaintiff that the “Rhespodol” would not have that side effect. [Id. at 28] Despite these assurances, when Plaintiff actually took the “Rhespodol, ” he experienced worse side effects-including vomiting, diarrhea, nausea, and stomach pain-then he had experienced upon taking the prior medication. [Id. at 28-29]

The Supreme Court has recognized that convicted prisoners and pretrial detainees “possess[ ] a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-22 (1990); see also Riggins v. Nevada, 504 U.S. 127, 133-36 (1992) (applying Harper to pretrial detainees such as Plaintiff); United States v. Morrison, 415 F.3d 1180, 1185 (10th Cir. 2005) (same). That “significant liberty interest, ” however, “must be balanced against the interests of the institution in preventing the individual from harming himself or others residing or working in the institution.” Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998).

Here, Plaintiff does not allege that he was forced to take the “Rhespodol” over his objection, but rather, alleges that he would have refused to take the “Rhespodol” if he had been given accurate information about its potential side effects. [#53 at 29] Neither the Supreme Court nor the Tenth Circuit has yet considered whether the substantive due process right to refuse treatment includes an ancillary right to obtain medical information about the treatment. Every other federal circuit that has considered the question, however, has concluded that “[t]he right to refuse medical treatment carries with it an implied right to the information necessary to make an informed decision about whether to refuse the treatment.” Knight v. Grossman, 942 F.3d 336, 342 (7th Cir. 2019) (“join[ing] all other circuits to have considered the question in holding that prisoners have a Fourteenth Amendment right to informed consent”), cert. denied, 141 S.Ct. 233 (2020); see also White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990) (holding that “convicted prisoners . . . retain a limited right to refuse treatment and a related right to be informed of the proposed treatment and viable alternatives”); Benson v. Terhune, 304 F.3d 874, 885 (9th Cir. 2002) (finding that “the right to information recognized in Napoleon is a reasonable application of Supreme Court precedent that would plainly extend to a pre-trial detainee”); Pabon v. Wright, 459 F.3d 241, 251 (2d Cir. 2006) (holding that “right to medical information . . . is a derivative of the right to refuse treatment”). The reasoning for the recognition of the right to medical information was succinctly set forth by the Third Circuit in Napoleon: “A prisoner's right to refuse treatment is useless without knowledge of the proposed treatment” and prisoners thus “have a right to such information as is reasonably necessary to make an informed decision to accept or reject proposed treatment, as well as a reasonable explanation of the viable alternative treatments that can be made available in a prison setting.” 897 F.2d at 113. For purposes of the instant Recommendation, the Court assumes without deciding that the Tenth Circuit would follow the reasoning of these other Circuits and conclude that the Fourteenth Amendment right to refuse medical treatment includes the derivative right to such information as is reasonably necessary for the prisoner to make an informed decision to accept or reject the treatment.

In order to state a claim for violation of the right to informed consent under the Fourteenth Amendment, the prisoner must allege: “(1) [the prisoner] was deprived of information that a reasonable patient would deem necessary to make an informed decision about his medical treatment, (2) the defendant acted with deliberate indifference to the prisoner's right to refuse treatment, and (3) if the prisoner had received the information, he would have refused the treatment.”²⁸ Knight, 942 F.3d at 344; see also Pabon, 459 F.3d at 250-52 (establishing the same standard). The Third Amended Complaint fails to plausibly allege the first or second element of an informed consent claim.

28 “If the prisoner establishes that his right to informed consent has been violated, [the court] then take[s] the second and final step of balancing the prisoner's right to informed consent against countervailing state interests.” Knight, 942 F.3d at 344; see also Pabon, 459 F.3d at 252 (finding that “[t]he prisoner's interest in being provided with information about proposed medical treatment and his right to refuse that treatment must be balanced against the state's interest in effective prison administration”).

Pursuant to the first element, a prisoner is not entitled to all information about a proposed medication. Instead, the prisoner “is entitled only to such information as a reasonable patient would deem necessary to make an informed decision.” Pabon, 459 F.3d at 250. As such, a doctor is “not . . . required to provide each prisoner-patient with an exhaustive list of all the possible adverse effects of each aspect of his treatment” but rather “simply must provide a prisoner with such information as a reasonable patient would find necessary to making an informed decision regarding treatment options.” Id. Here, although Plaintiff alleges that he personally experienced significant side effects as a result of taking the “Rhespodol, ” he does not allege that the side effects he experienced were known side effects of the medication or with what frequency or intensity the side effects occurred in other patients. Without such allegations, the Third Amended Complaint does not plausibly allege that information regarding the side effects Plaintiff personally experienced was information that “a reasonable patient would deem necessary to make an informed decision.” Id.

Nor are the allegations in the Third Amended Complaint sufficient to plausibly allege that Dr. DeLiere and/or John Doe ACDF Nurse One acted with deliberate indifference to Plaintiff's right to refuse the medication. [See #83 at 28-29] Although Plaintiff alleges that both Dr. DeLiere and John Doe ACDF Nurse One provided him inaccurate information with regard to whether he might experience stomach-related side effects by taking the “Rhespodol, ” the Third Amended Complaint does not allege that either Dr. DeLiere or John Doe ACDF Nurse One was actually aware of the potential for such side effects to result from taking “Rhespodol” or that Dr. DeLiere and/or John Doe ACDF Nurse One intentionally misled Plaintiff for the purpose of depriving him of his right to refuse the medication. [Id.] Absent such allegations, the “alleged failure to inform Plaintiff of potential . . . side effects from [“Rhespodol”] amounts to, at most, medical malpractice or negligence” which is insufficient to allege deliberate indifference. Sanders v. Ocean Cty. Bd. of Freeholders, No. CV165380MASLHG, 2021 WL 637828, at *3 (D.N.J. Feb. 18, 2021) (dismissing due process informed consent claim for failure to state a claim); see also Pabon, 459 F.3d at 251 (holding that “a prison official's failure to adequately inform a patient regarding that patient's proposed medical treatment must be done with, at a minimum, deliberate indifference to the prisoner's right to refuse treatment and . . . simple negligence will not suffice”); Blaine v. Burnes, No. 3:19-CV-251 (MPS), 2019 WL 1596573, at *4 (D. Conn. Apr. 15, 2019) (dismissing claim for failure to allege deliberate indifference where plaintiff failed to allege defendant was aware of negative side effects or that defendant acted with the purpose of inducing the plaintiff to take the medication).

Accordingly, the Court finds that Plaintiff has not plausibly alleged the first or second elements of his claim for violation of his right to informed consent under the due process clause and thus respectfully RECOMMENDS that Plaintiff's Claim Eleven be DISMISSED.

G. Conspiracy Claims (Claims Two, Three, Seven, Eight, and Twelve)

Plaintiff alleges five separate conspiracy claims based upon alleged violations of his constitutional rights-three brought pursuant to 42 U.S.C. § 1983 (Claims Three, Seven, and Twelve) and two brought pursuant to 42 U.S.C. § 1985 (Claims Two and Eight).²⁹ The Court addresses the Section 1983 conspiracy claims and then turns to the Section 1985 conspiracy claims.

29 Plaintiff does not specify the statute pursuant to which Claim Two is brought. [#83 at 12-14] The Court construes Claim Two to be asserted pursuant to Section 1985, because Plaintiff alleges in Claim Two that “the defendants' actions were motivated in whole or in part by a discriminatory attitude towards Hispanics, ” which, as explained below, is an element of a Section 1985 claim, and is the same allegation Plaintiff used to support the Section 1985 conspiracy claim asserted in Claim Eight. [Id. at 13, 23]

1. Section 1983 Conspiracy Claims

The Tenth Circuit has recognized a cause of action for a “§ 1983 conspiracy claim, ” which it defined as “a conspiracy to violate a right protected by § 1983; in other words, a conspiracy to deprive a plaintiff of a constitutional or federally protected right under color of state law.”³⁰ Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). “[T]o prevail on such a claim, ‘a plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient.'” Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990) (quoting Dixon, 898 F.2d at 1449).

30 “A § 1983 conspiracy claim may arise when a private actor conspires with [a] state actor to deprive a person of a constitutional right under color of state law.” Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). “The conspiracy provides the requisite color of state law under § 1983.” Id.

Plaintiff's Section 1983 conspiracy claims thus fail as a matter of law, because, as explained above, Plaintiff has not plausibly pled a violation of his constitutional rights. In Claim Three, Plaintiff alleges that his “right to be free from punishment as a pretrial detainee was violated . . . when [he] was assaulted by a group of inmates” on August 17, 2019 and that the defendants conspired with the inmates who assaulted him to accomplish that violation.³¹ [#83 at 14-15] As explained above, however, the allegations in the Third Amended Complaint do not plausibly allege that the defendants were aware of any risk of harm that Plaintiff would experience as a result of being placed in pod 3B or that the defendant officers orchestrated his assault. Plaintiff thus has not plausibly alleged a constitutional violation to support Claim Three.

31 Although Plaintiff contends that defendants conspired to violate his right to be free from punishment as a pretrial detainee, consistent with Plaintiff's allegations of substantive constitutional violations, the Court understands Claim Three to allege a conspiracy to violate Plaintiff's right to be free of a state-created danger. To the extent Plaintiff alleges a violation of his right to be free from punishment as a pretrial detainee, he has failed to plausibly allege such a violation. See Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013) (finding that “punishment is never constitutionally permissible for presumptively innocent individuals awaiting trial” (emphasis in original)). To state a constitutional violation, Plaintiff must plausibly allege either “an expressed intent to punish on the part of [the] detention facility officials” or “that the restriction in question bears no reasonable relationship to any legitimate governmental objective.” Id. (quotations omitted). For the same reasons Plaintiff's claims based upon a state-created danger and failure to protect failed, any claim based upon alleged punishment would faili.e., Plaintiff has not plausibly alleged either that the officer defendants were aware that Plaintiff would be assaulted if placed in pod 3B or that they conspired with the inmates who assaulted him. There thus is no plausible allegation that defendant officers placed Plaintiff in pod 3B with the intent to punish him or without any legitimate objective.

Claim Seven alleges a Section 1983 conspiracy to deprive Plaintiff of his “Fourteenth Amendment liberty interest to be free from punishment as a pretrial detainee . . . without due process” based upon the medical care Plaintiff received for his injuries following the assault. [#83 at 19-21] Although Plaintiff contends that defendants conspired to violate his right to be free from punishment as a pretrial detainee, consistent with Plaintiff's allegations of substantive constitutional violations, the Court understands Claim Seven to allege a conspiracy to violate Plaintiff's right to adequate medical care and federal rights under the EMTALA.³² Consistent with that understanding, the substantive allegations in support of Claim Seven reference violations of the EMTALA and the defendants' “deliberate indifference” to Plaintiff's medical needs. [Id.] Claim Seven thus fails to plausibly allege a violation of Plaintiff's right to adequate medical care and rights under the EMTALA for the same reasons articulated with regard to Claims Five, Six, and Nine above.

32 To the extent Plaintiff alleges a violation of his right to be free from punishment as a pretrial detainee, he has failed to plausibly allege either “an expressed intent to punish” on the part of defendants who provided his medical care or that the medical care “in question bears no reasonable relationship to any legitimate governmental objective.” See Blackmon, 734 F.3d at 1241 (quotations omitted).

Claim Twelve alleges that defendants conspired to deprive Plaintiff of “his right to refuse medical treatment and his right to privacy and bodily integrity” based upon the same allegations with regard to Dr. DeLiere and John Doe ACDF Nurse One providing inaccurate information about the side effects of “Rhespodol” that Plaintiff asserted in support of Claim Eleven. [Id. at 29] For the same reasons that the Court found those allegations insufficient to plausibly allege a violation of Plaintiff's right to refuse treatment, the Court finds Plaintiff's allegations insufficient to plausibly state a constitutional violation to support a Section 1983 conspiracy claim.

In addition to failing to plausibly allege an underlying constitutional violation, Plaintiff's Section 1983 conspiracy claims also fail to plausibly allege a conspiracy. “A conspiracy requires the combination of two or more persons acting in concert.” Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (quotation and alterations omitted). “In order to plead a conspiracy claim, a plaintiff must allege, either by direct or circumstantial evidence, a meeting of the minds or agreement among the defendants.” Id. (internal quotation and alterations omitted). The plaintiff must allege facts showing that there was “a single plan, the essential nature and general scope of which was know[n] to each person who is to be held responsible for its consequences.” Snell, 920 F.2d at 702 (internal quotation and alteration omitted). Here, Plaintiff has not alleged any facts that would support a finding that defendants reached an agreement to deprive Plaintiff of his constitutional rights. At most, Plaintiff has alleged some parallel conduct and made a conclusory and speculative allegation that defendants must have reached an agreement.³³ However, “[w]ithout more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S. at 556-57.

33 Similarly, in his response to the ACSO Motion to Dismiss, without identifying any specific factual allegations in support, Plaintiff merely states that “[i]t can reasonably be inferred that the conspiracy was present with the given facts in this claim, which show the Constitutional deprivation resulting from an agreement to have [Plaintiff] assaulted by other inmates.” [#105 at 7] Plaintiff further argues that “[m]ore can be developed on this claim after an opportunity to conduct discovery.” [Id.] Discovery, however, “is not necessary to resolve a motion to dismiss for failure to state a claim for relief.” Sheldon v. Khanal, 502 Fed.Appx. 765, 773 (10th Cir. 2012). Indeed, “[o]ne purpose of requiring that a complaint state a plausible claim for relief is to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim.” Id. (quotation omitted).

Accordingly, the Court finds that Plaintiff has not plausibly alleged either the constitutional violation or the conspiracy necessary to support his Section 1983 conspiracy claims and thus respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claims Three, Seven, and Twelve and that Plaintiff's Claims Three, Seven, and Twelve be DISMISSED.

2. Section 1985 Conspiracy Claims

Section 1985(3) “imposes liability on two or more persons who ‘conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.'” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866 (2017) (quoting 42 U.S.C. § 1985(3)). “To state a claim under § 1985(3), a plaintiff must first show that the defendants conspired- that is, reached an agreement-with one another.” Id. at 1868. Not every conspiracy to deprive persons of rights or privileges violates § 1985, however. Instead, Section 1985(3) applies “only to conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Thus, to state a Section 1985 conspiracy claim, a plaintiff must plausibly allege: “(1) the existence of a conspiracy (2) intended to deny [him] equal protection under the laws or equal privileges and immunities of the laws (3) resulting in an injury or deprivation of federally-protected rights, and (4) an overt act in furtherance of the object of the conspiracy.” Murray v. City of Sapulpa, 45 F.3d 1417, 1423 (10th Cir. 1995).

In Claim Two, Plaintiff alleges that defendants conspired to deprive him of “the Equal Protection of the laws by not protecting [Plaintiff] from the assault or by not taking reasonable measures to prevent it” [#83 at 13], and, in Claim Eight, Plaintiff alleges that defendants conspired to deprive him of “the Equal Protection of the laws by denying [him] appropriate medical treatment and emergency medical care in violation of [the EMTALA]” [id. at 23]. Both of Plaintiff's Section 1985 conspiracy claims fail to state a claim, however, because Plaintiff has not plausibly alleged the existence of a conspiracy. As explained above in the context of Plaintiff's Section 1983 conspiracy claims, “[i]n order to plead a conspiracy claim, a plaintiff must allege, either by direct or circumstantial evidence, a meeting of the minds or agreement among the defendants.” Salehpoor, 358 F.3d at 789 (internal quotation and alterations omitted). Here, Plaintiff has failed to include any factual allegations that plausibly allege that defendants reached an agreement with one another. At most, Plaintiff has alleged parallel conduct with a conclusory and speculative allegation that Defendants must have had an agreement. Such allegations are insufficient. See Twombly, 550 U.S. at 556-57 (“Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”); Salehpoor, 358 F.3d at 789 (“Parallel action- or inaction . . .-does not necessarily indicate an agreement to act in concert.”); Hamby v. Associated Centers for Therapy, 230 Fed.Appx. 772, 787 (10th Cir. 2007) (holding that “a plaintiff must bring forth more than mere conclusory allegations to establish a claim under § 1985” (quotation omitted)).

In addition to failing to plausibly plead a conspiracy, Plaintiff also fails to plausibly plead the racial animus necessary to support a Section 1985 conspiracy claim. In that regard, the Third Amended Complaint alleges only that: (1) all of the officer defendants are “white individuals” [#83 at 13], (2) Defendants' actions “were motivated in whole or in part by a discriminatory attitude towards [H]ispanics”³⁴ [id. at 13, 23]; and (3) Defendants knew Plaintiff is Hispanic [id.]. Such allegations are insufficient to support a Section 1985 conspiracy claim. See, e.g., Davis v. Bear, 537 Fed.Appx. 785, 789 (10th Cir. 2013) (affirming dismissal of Section 1985 claim where the plaintiff alleged only that he was African American and all of the defendants were Caucasian and thus “the Court could infer racial . . . discriminatory animus behind the conspirators' actions” (quotation omitted)); Diaz v. Lynch, No. 15CV483 JAP/SCY, 2015 WL 13658656, at *3 (D.N.M. Aug. 7, 2015) (finding “conclusory allegations that Defendants were ‘racially motivated' and ‘White Defendants are accusing the Black Plaintiffs . . . Naturally, Blame Blacks for all Wrongs'” insufficient to plausibly plead the racial animus requirement for Section 1985 claim).

34 Plaintiff's allegation that Defendants were motivated by a discriminatory attitude is entirely conclusory and unsupported. Plaintiff does not allege that Defendants made any derogatory comments regarding Hispanic people or provide any specific examples of Defendants treating Hispanic people differently than others.

Because the Court finds that Plaintiff has not plausibly alleged racial animus or the existence of a conspiracy between the defendants, the Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claims Two and Eight and that Plaintiff's Claims Two and Eight be DISMISSED.

H. Monell Claim for Failure to Train and Supervise (Claim Ten)

Claim Ten alleges a Monell claim for failure to train or supervise that resulted in violations of Plaintiff's constitutional rights against Chief Rowlison.³⁵ [#83 at 26-28] “To assert official capacity claims under Monell, [Plaintiff] must allege facts sufficient to demonstrate two elements: (i) that an employee of the [ACSO] committed a constitutional violation; and (ii) that a custom or policy of the [ACSO] was the moving force behind that deprivation.” Martin v. Henderson, No. 09-CV-02574-MSK-CBS, 2011 WL 864293, at *5 (D. Colo. Mar. 10, 2011) (citing Cordova v. Aragon, 569 F.3d 1183, 1193-94 (10th Cir.2009)). To plausibly allege a Monell claim, Plaintiff thus must plausibly allege a constitutional violation.

35 Although the Third Amended Complaint indicates that Chief Liaer-for whom Chief Rowlison was substituted-is being sued in his individual capacity [#83 at 6], the allegations in Claim Ten make it clear that Claim Ten is being asserted against Chief Liaer in his official capacity [id. at 26-28]. Moreover, in Chief Rowlison's motion to be substituted for Chief Liaer, he characterized Plaintiff's claim against Chief Liaer as an official capacity claim, and Plaintiff has not objected to that characterization. [#101 at 2] The Court thus interprets Claim Ten as a Monell claim asserted against Chief Rowlison in his official capacity. Although Claim Ten includes an allegation that ACSO “is liable for failing to adequately train and supervise its officers . . .” [#83 at 26], the Court understands this allegation (and the remainder of the allegations in Claim Ten) to be asserted against Chief Rowlison as the ACSO is not named as a defendant and “an official capacity suit is only another way of pleading an action against an entity of which an officer is an agent.” Johnson v. Bd. of Cty. Comm'rs for Cty. of Fremont, 85 F.3d 489, 493 (10th Cir. 1996) (quotation omitted).

The ACSO Defendants argue that Plaintiff's Claim Ten should be dismissed, because Plaintiff has not plausibly alleged an underlying constitutional violation. [#87 at 13 n.5; #107] The Court agrees. Claim Ten alleges that the defendant officers “were not adequately trained and supervised in protecting inmates from other inmate assault, as well as ensuring that they would not engage and become part of a civil conspiracy” and that John Doe ACDF Medical Provider “was not adequately trained and supervised in providing Plaintiff with proper medical attention for his serious medical needs.” [#83 at 27] Plaintiff's Monell claim for failure to train and supervise thus is based upon the alleged constitutional violations alleged in Claim One (State-Created Danger), Claim Four (Failure to Protect), and Claim Nine (Deliberate Indifference to Serious Medical Needs).

For the reasons explained above, the Court finds that Plaintiff has not plausibly alleged a constitutional violation with regard to any of these claims and thus the Court finds that Plaintiff has not plausibly alleged a Monell claim. See, e.g., Donahue v. Wihongi, 948 F.3d 1177, 1199 (10th Cir. 2020) (holding that “[w]ithout an underlying constitutional violation by [the individual defendant], [the municipal defendants] cannot be liable”); Hinton, 997 F.2d at 782 (“A municipality may not be held liable [under Monell] where there was no underlying constitutional violation by any of its officers.”); Dorsey, 140 F.Supp.3d at 1121 (finding that “[p]laintiff's Monell claim (including any claim for failure to train and supervise) . . . must be based on an underlying constitutional violation by [d]efendants' representatives”). Accordingly, the Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claim Ten and that Plaintiff's Claim Ten be DISMISSED.

I. Plaintiff's State Law Claims (Claims Thirteen and Fourteen)

In addition to the federal claims addressed above, Plaintiff's Third Amended Complaint also asserts two state law claims. To the extent Judge Martinez agrees with this Court's recommendation that all of Plaintiff's federal claims should be dismissed for failure to state a claim, the Court has discretion with regard to whether or not to exercise supplemental jurisdiction over Plaintiff's state law claims. See Arbaugh v. Y&H Corp., 546 U.S. 500, 502 (2006) (“[W]hen a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to [28 U.S.C.] § 1367, over pendent state-law claims.”); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district court's decision whether to exercise [supplemental] jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary.”). The Tenth Circuit has advised, however, that federal courts should “generally decline to exercise supplemental jurisdiction when no federal claims remain because [n]otions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Hubbard v. Oklahoma ex rel. Okla. Dep't of Hum. Servs., 759 Fed.Appx. 693, 714 (10th Cir. 2018) (quotation omitted).

Here, the Court finds compelling reasons to exercise its supplemental jurisdiction over Plaintiff's state law claims. Plaintiff currently has three pending motions for injunctive relief, the resolution of which require the Court to consider the merits of Plaintiff's claims, including Plaintiff's state law claims. Moreover, Plaintiff's state law claims are premised upon the same alleged conduct that forms the basis of Plaintiff's predominate federal claims and, as demonstrated below, do not require the interpretation of novel or complex issues of state law to resolve. See 28 U.S.C. § 1367(c). Judicial economy, convenience, and fairness thus all support the continued exercise of supplemental jurisdiction over Plaintiff's state law claims. See Henderson v. Nat'l R.R. Passenger Corp., 412 Fed.Appx. 74, 79 (10th Cir. 2011) (affirming district court's exercise of supplemental jurisdiction where “judicial economy and fairness supported retaining jurisdiction”). For these reasons, this Court respectfully recommends that Judge Martinez exercise his discretion to retain jurisdiction and consider the sufficiency of Plaintiff's state law claims.

In the ACSO Motion to Dismiss, the ACSO Defendants argue that Claim Fourteen-the only state law claim asserted against the ACSO Defendants-should be dismissed because: (1) “Plaintiff never timely filed (and does not allege he filed) a notice of his claim with Arapahoe County” as required under the CGIA, and (2) plaintiff failed to plausibly allege outrageous conduct by the ACSO Defendants as is required to state a claim for intentional infliction of emotional distress. [#87 at 14-15] Although the ACSO Defendants raise Plaintiff's failure to allege compliance with the CGIA's notice requirement only with regard to Claim Fourteen as asserted against them, the CGIA's notice requirement applies to both of Plaintiff's state law claims to the extent those claims are asserted against any public entity or an employee thereof and the Court may raise the issue sua sponte. See Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 838 (10th Cir. 2003) (stating that “[t]he notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction” and considering sua sponte whether the Plaintiffs complied with the CGIA notice provisions); Weise v. Colorado Springs, 421 F.Supp.3d 1019, 1050 (D. Colo. 2019) (considering, sua sponte, compliance with the CGIA's notice provisions). The Court thus considers Plaintiff's compliance with the CGIA's notice requirement for both state law claims and then considers the sufficiency of Plaintiff's allegations to state a claim as to each of the state law claims.

1. Notice under the CGIA

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).³⁶ “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. A public entity includes “the judicial department of the state, any county, city and county, municipality, . . . and every other kind of district, agency, instrumentality, or political subdivision thereof.” Id. § 24-10-103(5).

36 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.

“Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal.”³⁷ Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 840 (collecting cases). Here, Plaintiff's Third Amended Complaint is entirely silent as to any notice provided pursuant to the CGIA.³⁸ In his response to the ACSO Motion to Dismiss, Plaintiff contends that he “filed a ‘Notice of Claim' to the Attorney General in regards to [his] claims last year to the Colorado Dept. of Law.” [#105 at 11] As an initial matter, Plaintiff was required to plead his compliance with the CGIA's notice requirement in his complaint and he may not amend his complaint through his response to a motion to dismiss. See Mattson v. Napolitano, No. 09-cv-02024-PAB-BNB, 2010 WL 11553697, at *2 (D. Colo. Sept. 15, 2010) (finding that plaintiff may not amend complaint by including new factual allegations in response to motion to dismiss); Smith v. Pizza Hut, Inc., 694 F.Supp.2d 1227, 1230 (D. Colo. 2010) (“Plaintiffs cannot rectify their pleading deficiencies by asserting new facts in an opposition to a motion to dismiss.”). Regardless, Plaintiff does not provide a date for when the notice allegedly was sent and, because Plaintiff's claims are asserted against Arapahoe County employees, the Colorado Attorney General/Department of Law was not the proper place to send the notice.³⁹

37 “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). Because, regardless of whether the CGIA's notice requirement is considered jurisdictional or a substantive element of a state law claim that must be pled, Plaintiff here clearly has not satisfied that pleading requirement, the Court finds it unnecessary to resolve in this Recommendation whether the CGIA's notice requirement is jurisdictional.

38 Although Plaintiff's Third Amended Complaint includes several vague references to grievances he filed within ACDF in response to the conduct that forms the basis of his claims, “he does not allege that these procedures are the same procedures mandated by the CGIA.” Garcia v. Chamjock, No. 11-CV-00263-PAB-MEH, 2012 WL 638145, at *3 (D. Colo. Feb. 27, 2012). He does not allege, for example, that the grievances were sent to the governing body of the ACDF or that the grievances contained the specific information, including “[a] statement of the amount of monetary damages that is being requested, ” mandated by the CGIA. See Colo. Rev. Stat. § 24-10-109(2). “Additionally, [Plaintiff] does not assert a specific date on which he filed the grievances.” Garcia, 2012 WL 638145, at *3.

39 Although Plaintiff contends that the CGIA notice provision “does not state to whom th[e] notice[] is supposed to be filed” [#105 at 11], as noted above, Section 24-10-109(3) expressly provides that notice should be provided to the Attorney General for claims against the state (or employees thereof) and shall be provided to “the governing body of the public entity or the attorney representing the public entity” for claims against any other public entity (or employee thereof).

Because the Court finds that Plaintiff failed to allege compliance with the CGIA's notice requirement, this Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claim Fourteen as to the ACSO Defendants and that Claim Thirteen and Claim Fourteen be DISMISSED as to the ACSO Defendants and to all other defendants who are employees of Arapahoe County. See Weise v. Colo. Springs, 421 F.Supp.3d 1019, 1049-50 (D. Colo. 2019) (dismissing plaintiff's claims for defamation, IIED, and abuse of process where “plaintiff's complaint d[id] not include any allegations that she complied with the notice provisions of the CGIA”); Rose v. City & Cty. of Denver, No. 17-CV-2263-MSK-STV, 2018 WL 1744723, at *3 (D. Colo. Apr. 11, 2018) (dismissing IIED claim for failure to allege compliance with the CGIA's notice provision).

2. State Law Nondisclosure (Claim Thirteen)

Claim Thirteen alleges a state law claim for nondisclosure against John Doe ACDF Nurse One, John Doe ACDF Medical Provider, Dr. DeLiere, and John Doe ACDF Nurse Two.⁴⁰ [#83 at 32-34] More specifically, Plaintiff alleges that these defendants “[1] concealed [Plaintiff's] injuries and [2] failed to disclose the potential side effects of taking the medication ‘Rhespodol' with the intent that [Plaintiff] take a course of action [he] might not have taken if [he] knew the actual facts.” [Id. at 33-34] It is unclear whether Plaintiff intends to assert a claim for fraudulent nondisclosure or negligent nondisclosure. Moreover, although Plaintiff frames his claim in terms of the defendants' “nondisclosure” of certain information, construing the claim liberally, his claim also may be based upon certain affirmative representations made by the defendants-e.g., John Doe ACDF Medical Provider's alleged representation that the two x-rays showed a “normal right shoulder” and the alleged representation by Dr. DeLiere and John Doe ACDF Nurse One that “Respodol” would not cause the same side effects as the Seroquel. [Id. at 21, 28, 31]

40 Although this Court has already recommended that Claim Thirteen be dismissed as to all employees of Arapahoe County based upon Plaintiff's failure to plead compliance with the CGIA, there is an indication in the record that Dr. DeLiere is not an Arapahoe County employee. [See #22] Moreover, there is no guarantee that Judge Martinez will adopt this Court's recommendation with regard to dismissal pursuant to the CGIA. The Court thus finds it appropriate to consider the sufficiency of Plaintiff's allegations to state a claim for non-disclosure pursuant to Section 1915(e) and 1915A.

To establish a claim for fraudulent concealment, a plaintiff must prove:

(1) the concealment of a material existing fact that in equity and good conscience the defendant should have disclosed; (2) knowledge on the defendant's part that such a fact was being concealed; (3) ignorance of that fact on the plaintiff's part; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.⁴¹

Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 420 P.3d 223, 234 (Colo. 2018). To state a claim for negligent misrepresentation, ⁴² a plaintiff must plausibly allege that: “(1) [the defendant] supplied false information in a business transaction; (2) it failed to exercise reasonable care or competence in obtaining or communicating that information; and (3) [the plaintiff] justifiably relied upon the false information.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009) (quoting Campbell v. Summit Plaza Assocs., 192 P.3d 465, 477 (Colo.App. 2008)). Thus, regardless of whether Plaintiff's claim is asserted under a fraud/fraudulent nondisclosure theory or negligent misrepresentation theory, Plaintiff must plausibly plead that the defendants knew or, with the exercise of reasonable care should have known, about the concealed or misleading information and that Plaintiff reasonably relied upon the misrepresentation/nondisclosure.

41 To the extent Plaintiff's nondisclosure claim is actually based upon an affirmative representation made by defendants, Plaintiff similarly:

must show that the defendant made a false representation of a material fact, knowing that representation to be false; that the person to whom the representation was made was ignorant of the falsity; that the representation was made with the intention that it be acted upon; and, that the reliance resulted in damage to the plaintiff.

Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005)

42 The Colorado Supreme has not determined whether a claim for negligent omission or nondisclosure is viable. See, e.g., Leprino Foods Co. v. DCI, Inc., 727 Fed.Appx. 464, 472 n.5 (10th Cir. 2018) (“[I]t is unclear whether a claim for negligent nondisclosure is viable at all in Colorado.”); Aurzadniczek v. Humana Health Plan, Inc., No. 15-cv-00146-RM-KMT, 2016 WL 9735775, at *4 (D. Colo. Feb. 23, 2016) (“The Colorado Supreme Court has never adopted a claim for negligent non-disclosure or negligent omission as distinct from negligent affirmative misrepresentations or fraudulent omission or concealment.”), recommendation adopted in part, rejected in part on other grounds, 2016 WL 1266972 (D. Colo. Apr. 1, 2016); Scott v. Honeywell Int'l Inc., No. 14-cv-00157-PAB-MJW, 2015 WL 1517527, at *11 n.10 (D. Colo. Mar. 30, 2015) (“It is not entirely clear that plaintiff can maintain a negligent misrepresentation claim based upon defendant's omissions.” (collecting cases)); Sheffield Servs. Co. v. Trowbridge, 211 P.3d 714, 725 (Colo.App. 2009) (noting that whether Colorado law even recognized a claim of negligent nondisclosure is uncertain, but assuming without deciding that it did), overruled on other grounds by Weinstein v. Colborne Foodbotics, LLC, 302 P.3d 263 (Colo. 2013). This Court has previously concluded that that “the Colorado Supreme Court would require that a negligent misrepresentation claim be grounded in affirmative statements.” Craig Hosp. v. Tyson Foods, Inc., No. 17-CV-02534-REB-STV, 2019 WL 5095737, at *7 (D. Colo. July 22, 2019), recommendation denied as moot in light of stipulation of dismissal, No. 17-CV-02534-REB-STV, Dkt. No. 196; see also Cahey v. Int'l Bus. Machines Corp., No. 20-CV-00781-NYW, 2020 WL 5203787, at *8 (D. Colo. Sept. 1, 2020) (finding that “the weight of intermediate Colorado court decisions decline to find a viable claim for negligent misrepresentation based on an omission, and no other authority persuades this court that the Colorado Supreme Court would find otherwise”). Courts that have considered the sufficiency of a claim for negligent nondisclosure-without deciding whether the Colorado Supreme Court would recognize such a cause of action-have done so “under a negligent misrepresentation analysis.” Aurzadniczek, 2016 WL 9735775, at *4; see also Sheffield Servs. Co., 211 P.3d at 725. Because Plaintiff's nondisclosure claim appears to be based, at least in part, upon an alleged affirmative misrepresentation and the allegations in the Third Amended Complaint are insufficient to support a negligent nondisclosure claim even if such a claim were recognized under Colorado law, for purposes of the current Recommendation only, the Court analyzes Plaintiff's nondisclosure claim under a negligent misrepresentation analysis.

To the extent Plaintiff's nondisclosure claim is premised upon the defendants' alleged concealment of information about Plaintiff's alleged injuries to his stomach and right shoulder, Plaintiff has not plausibly alleged that these defendants concealed or misrepresented the information intentionally or without exercising reasonable care or competence. Instead, Plaintiff has merely alleged his disagreement with the defendants' statements regarding-and treatment of-his medical conditions. Nor has Plaintiff alleged that he reasonably relied upon any misrepresentation or concealment of information regarding his injuries. To the contrary, Plaintiff's allegations make clear that he has believed in the severity of his injuries and disagreed with the treatment he received for those injuries since their inception and has filed numerous grievances and this lawsuit in response. Because Plaintiff has not plausibly pled that he reasonably relied upon defendants' alleged concealment/misrepresentations regarding his stomach and shoulder injuries, this Court respectfully RECOMMENDS that Claim Thirteen be DISMISSED to the extent it is premised upon the defendants' alleged concealment of his stomach and shoulder injuries. See, e.g., Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1158 (10th Cir. 2016) (“To make out a claim for fraud in Colorado, a plaintiff must establish actual and reasonable reliance on a false statement”); Colo. Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9, 17 (Colo.App. 2010), as modified on denial of reh'g (Apr. 1, 2010) (“Fraudulent nondisclosure requires proof of reasonable reliance on the assumption that the concealed fact does not exist.” (quotation omitted)).

To the extent Plaintiff's nondisclosure claim is premised upon the failure of Dr. DeLiere, and/or John Doe ACDF Nurse One to provide complete and accurate information regarding the side effects of “Rhespodol, ” Plaintiff has not plausibly alleged that Dr. DeLiere and/or John Doe ACDF Nurse One either intentionally concealed/misrepresented the potential side effects or failed to exercise reasonable care or competence in obtaining or communicating that information. Plaintiff does not allege that either Dr. DeLiere or John Doe ACDF Nurse One was actually aware-or would have been aware through the exercise of reasonable care-that Plaintiff was likely to experience the side effects that he allegedly experienced as a result of taking the “Rhespodol.” Nor does Plaintiff allege that the stomach issues he allegedly experienced after taking the “Rhespodol” are a well-known side effect of the medication or that Dr. DeLiere and/or John Doe ACDF Nurse One otherwise received information alerting them to the potential side effect. Accordingly, this Court respectfully RECOMMENDS that Claim Thirteen be DISMISSED to the extent it is premised upon Dr. DeLiere and/or John Doe ACDF Nurse One's alleged concealment or misrepresentation regarding the side effects of “Rhespodol.”

3. State Law Intentional Infliction of Emotional Distress (Claim Fourteen)

Claim Fourteen alleges a state law claim for intentional infliction of emotional distress against Deputy Teigen, Officer Beaty, Jane Doe Officer, Deputy Lamb, John Doe Officer, John Doe ACDF Nurse One, Ms. Telfer, Dr. DeLiere, John Doe Psychiatrist, John Doe ACDF Medical Provider, and John Doe ACDF Nurse Two.⁴³ [#83 at 34-36]. To state a claim for intentional infliction of emotional distress, Plaintiff must plausibly plead the following elements: “(1) the defendant engaged in extreme and outrageous conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) causing the plaintiff severe emotional distress.” Pearson v. Kancilia, 70 P.3d 594, 597 (Colo.App. 2003). “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quotation omitted). Although whether conduct is outrageous is generally a question of fact for the jury, “the trial court is initially responsible for determining whether reasonable persons could differ on the question.” English v. Griffith, 99 P.3d 90, 93 (Colo.App. 2004).

43 Although this Court has already recommended that Claim Fourteen be dismissed as to all employees of Arapahoe County based upon Plaintiff's failure to plead compliance with the CGIA, there is an indication in the record that Ms. Telfer and Dr. DeLiere are not Arapahoe County employees and John Doe Psychiatrist is alleged to be an employee of Denver Health. [See #22; #83 at 7; #108 at 2] Moreover, there is no guarantee that Judge Martinez will adopt this Court's recommendation with regard to dismissal pursuant to the CGIA. The Court thus finds it appropriate to consider the sufficiency of Plaintiff's allegations to state a claim for intentional infliction of emotional distress.

The outrageous conduct alleged in Claim Fourteen is the same conduct that formed the basis of Plaintiff's claims for alleged violations of his constitutional rights. For the same reasons the allegations regarding that conduct are insufficient to state a claim for the violation of Plaintiff's constitutional rights, they are also insufficient to plausibly allege extreme and outrageous conduct.

First, Plaintiff alleges that Deputy Teigen, Officer Beaty, Jane Doe Officer, John Doe Officer, Deputy Lamb, and John Doe ACDF Nurse One “engaged in extreme and outrageous conduct as they were part of a conspiracy to have [Plaintiff] brutally assaulted in pod 3B . . . [and] failed to protect [Plaintiff] from inmate to inmate assault.” [#83 at 34-35] As explained above, the Third Amended Complaint fails to plausibly allege that the officer defendants either: (1) were aware of a risk of harm Plaintiff faced by his transfer to pod 3B, or (2) orchestrated the assault in pod 3B. There is no allegation, for example, that the defendant officers were aware of any prior threats made by inmates in pod 3B or that the inmates with whom Plaintiff had the altercation in pod 3A had access to pod 3B. Moreover, by removing Plaintiff from the pod where he had just had an altercation with other inmates, the defendant officers seemingly sought to protect Plaintiff from harm. Nor has Plaintiff plausibly alleged any conspiracy or agreement among the officer defendants and the inmates who assaulted Plaintiff in pod 3B. Instead, his allegations in support of a conspiracy are entirely conclusory and speculative. Plaintiff's allegations thus are insufficient to plausibly allege that the defendants engaged in extreme and outrageous conduct in relation to Plaintiff's assault in pod 3B.

Second, Plaintiff alleges that Ms. Telfer, Dr. DeLiere, John Doe Psychiatrist, and John Doe ACDF Nurse One “engaged in extreme and outrageous conduct by requesting, insisting and allowing [Plaintiff] to take medications that [he] would have otherwise refused” that had “poisonous side effects . . .as part of an overall agreement to cause [Plaintiff] serious bodily injury.” [#83 at 35] As explained above, although Plaintiff alleges that both Dr. DeLiere and John Doe ACDF Nurse One provided him inaccurate information with regard to whether he might experience stomach-related side effects by taking the “Rhespodol, ” the Third Amended Complaint does not allege that either Dr. DeLiere or John Doe ACDF Nurse One was actually aware of the potential for such side effects or that Dr. DeLiere and/or John Doe ACDF Nurse One intentionally misled Plaintiff for the purpose of depriving him of his right to refuse the medication. [See Id. at 28-29] There are no allegations that would support a finding that Ms. Telfer or John Doe Psychiatrist were involved in Dr. DeLiere's decision to prescribe “Rhespodol” for Plaintiff, let alone a finding that they conspired to intentionally harm Plaintiff through that prescription. The Court thus finds that Plaintiff has not plausibly pled extreme and outrageous conduct with regard to taking “Rhespodol.”

Third, Plaintiff alleges that John Doe ACDF Medical Provider and John Doe ACDF Nurse Two “engaged in extreme and outrageous conduct by concealing injuries to [Plaintiff's] stomach and shoulder, causing serious bodily injury and impairment.” [#83 at 35] The Third Amended Complaint, however, does not include any factual allegations to support this conclusory statement. As noted above, Plaintiff does not identify any specific instances in which John Doe ACDF Medical Provider refused to see Plaintiff for his injuries when no other medical provider was available and does not allege any facts to support a reasonable inference that John Doe ACDF Medical Provider or John Doe ACDF Nurse Two were acting with an intent to harm Plaintiff. Instead, Plaintiff alleges only either a difference of opinion between John Doe ACDF Medical Provider and other health care providers and/or medical malpractice or negligence on the part of John Doe ACDF Medical Provider and John Doe ACDF Nurse Two. Just as such allegations are insufficient to allege deliberate indifference, they are insufficient to establish extreme or outrageous conduct. See Hadley v. Volunteers of Am. Care Facilities, No. 06-CV-01537-W, 2008 WL 269446, at *5 (D. Colo. Jan. 28, 2008) (finding that “[p]laintiff's allegations demonstrate at most negligence, not the level of outrageousness required to support [the claim for intentional infliction of emotional distress]”).

Because the Court finds that Plaintiff has not plausibly alleged extreme and outrageous conduct by any of the named defendants, this Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED to the extent it seeks the dismissal of Claim Fourteen and that Claim Fourteen be DISMISSED.

J. Conclusion

For the foregoing reasons, this Court respectfully RECOMMENDS that the ACSO Motion to Dismiss be GRANTED and that all of Plaintiff's claims be DISMISSED for failure to state a claim pursuant to Rule 12(b)(6) and to Section 1915(e) and 1915A.⁴⁴ Because this Court has found that Plaintiff's claims against Ms. Telfer fail to state a claim and thus should be dismissed pursuant to Section 1915(e) and 1915A, this Court respectfully RECOMMENDS that the Telfer Motion to Dismiss be DENIED AS MOOT.

44 Because Plaintiff has already amended his complaint three times [#4, 14, 83] and has not sought an additional opportunity to amend his complaint-or identified any additional factual allegations sufficient to support his claims-in response to the ACSO Motion to Dismiss, this Court respectfully RECOMMENDS that Plaintiff's claims be DISMISSED WITHOUT LEAVE TO AMEND. See Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (finding that dismissal with prejudice was appropriate where plaintiff “had previously filed amended pleadings . . . [and had] made no showing, beyond his conclusory allegations, that he could have stated viable causes of action . . . if he had been granted yet another opportunity to amend his claims”).

III. MOTION TO AMEND

Through the Motion to Amend, Plaintiff requests that the Court allow Plaintiff to add Tyler S. Brown, the Sheriff of the Arapahoe County Sheriff's Office, as a named defendant. [#114] The Motion to Amend does not seek to add any substantive factual allegations or claims to the Third Amended Complaint, but rather alleges only that “Tyler S. Brown is also liable to Plaintiff because he has failed to train his employees which failed to protect [Plaintiff] on the evening of August 17, 2019 and have also been deliberately indifferent to [Plaintiff's] medical needs as a pretrial detainee.” [#114 at 2]

The Motion to Amend contends that Sheriff Brown “is a required party within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, ” but Plaintiff merely parrots the language of the rule without explaining why Sheriff Brown is a required party⁴⁵-i.e., why the court cannot accord relief among the existing parties or why disposing of the action in Sheriff Brown's absence may impair or impede his ability to protect his interests or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations. [#114 at 2-3] Nor can the Court discern any reason why Sheriff Brown is a required party.

45 Pursuant to Rule 19(a)(1):

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

The Motion to Amend does not allege any personal involvement by Sheriff Brown but rather appears to seek to add an official capacity-i.e., Monell-claim against him based upon the ACSO's failure to properly train the defendant officers. “An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166.

Plaintiff's proposed official capacity claim against Sheriff Brown thus is actually a claim against Arapahoe County for failure to properly train the defendant officers. Likewise, Plaintiff's Claim Ten, which asserts an official capacity claim against Chief Rowlison for failure to properly train and supervise the defendant officers, is actually a claim against Arapahoe County. Plaintiff's proposed official capacity claim against Sheriff Brown thus is entirely redundant of Plaintiff's Claim Ten against Chief Rowlison and Sheriff Brown is not a required party. See, e.g., Frey v. Reams, No. 17cv00669-LTB-MJW, 2018 WL 582400, at *6 (D. Colo. Jan. 29, 2018) (finding that plaintiff's official capacity claim against an employee of a sheriff's department was duplicative of claims against the sheriff in his official capacity, because “[a]n official capacity suit is a way of pleading an action against an agent or officer's employer, ” which for both individual defendants was the sheriff's office); Toevs v. Quinn, No. 15-CV-02838-RBJ, 2017 WL 1055314, at *10 n.11 (D. Colo. Mar. 21, 2017) (finding official capacity claims against various officers “duplicative” of official capacity claims asserted against the sheriff); Bailey v. Franklin, No. 20-CV-362-TCK-SH, 2021 WL 2345356, at *6 n.1 (N.D. Okla. June 8, 2021) (finding official capacity claim against police chief “redundant” of official capacity claims asserted against officers). Indeed, counsel for Chief Rowlison (i.e., counsel for Arapahoe County) acknowledges that Claim Ten is “identical to the official capacity failure to train claim Plaintiff seeks to add against [Sheriff Brown]” and thus opposes the Motion to Amend. [#118 at 3]

Accordingly, because Plaintiff has not established that Sheriff Brown is a necessary party, the Court respectfully RECOMMENDS that the Motion to Amend be DENIED.⁴⁶

46 To the extent Plaintiff seeks to amend the Third Amended Complaint to add an official capacity claim against Sheriff Brown pursuant to Federal Rule of Civil Procedure 15, that request also should be denied. Although leave to amend under Rule 15 is liberally granted, refusal may be “justified upon a showing of . . . futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Here, amendment to add an official capacity claim against Sheriff Brown is futile for the same reasons articulated above with regard to Plaintiff's failure to plausibly allege a Monell claim against Chief Rowlison.

IV. MOTIONS FOR INJUNCTIVE RELIEF

Plaintiff has filed three separate motions seeking injunctive relief-e.g., a temporary restraining order and/or a preliminary injunction.⁴⁷ [#70, 127, 161] As one court recently explained:

47 “The primary differences between a TRO and a preliminary injunction are that a TRO may issue without notice to the opposing party and that TROs are limited in duration to fourteen days.” Legacy Church, Inc. v. Kunkel, 455 F.Supp.3d 1100, 1132 (D.N.M. 2020) (citing Fed.R.Civ.P. 65(b)(1)-(2)).

To obtain preliminary injunctive relief-whether a TRO or preliminary injunction-the movant must show: “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.”

Sugar v. Tackett, No. 1:20-CV-00331-KWR-LF, 2021 WL 2141940, at *2 (D.N.M. May 26, 2021) (quoting Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016)); see also Mostafa v. Wilkinson, No. 20-CV-00694-PAB-NYW, 2021 WL 269675, at *1 (D. Colo. Jan. 27, 2021) (stating that “[t]he standard for a TRO is the same as that for a preliminary injunction” and identifying the four requirements applicable to both). Because the grant of preliminary injunctive relief “is an extraordinary remedy, the movant's right to relief must be clear and unequivocal.” Dine Citizens Against Ruining Our Env't, 839 F.3d at 1281 (quotation omitted).

Here, Plaintiff cannot demonstrate a substantial likelihood of prevailing on the merits and thus is not entitled to injunctive relief, because, for the reasons articulated above, all of the claims asserted in the Third Amended Complaint fail to plausibly state a claim for relief. See, e.g., Med. Diagnostic Lab'ys, LLC v. Health Care Serv. Corp., 772 Fed.Appx. 637, 644 (10th Cir. 2019) (affirming denial of injunctive relief based upon “conclusion that [plaintiff] has failed to state a claim”); Obduskey v. Fargo, No. 15-CV-01734-RBJ, 2016 WL 4091174, at *8 (D. Colo. July 19, 2016) (“Because the Court finds that plaintiff fails to state a claim on which relief could be granted, he is not entitled to a TRO or a preliminary injunction.”); Guiden v. Werholtz, No. 11-3031-SAC, 2011 WL 1807443, at *3 (D. Kan. May 11, 2011) (finding that plaintiff failed to demonstrate a likelihood of success on the merits where “plaintiff's claims [we]re subject to being dismissed for several reasons including failure to state a claim”); Meyer v. Singh, No. 10- CV-02302-PAB-KMT, 2011 WL 2297735, at *18 (D. Colo. Apr. 27, 2011) (“Given the court's determination that Plaintiff has failed to state a claim for deliberate indifference, Plaintiff has not established a substantial likelihood of success on the merits.”), report and recommendation adopted, 2011 WL 2297718 (D. Colo. June 9, 2011).

In the First Motion for Injunction, Plaintiff seeks an injunction preventing defendants from causing him any additional harm and compelling them to provide him with additional medical treatment for his shoulder injury and stomach pain. [#70 at 4] Based upon the same factual allegations alleged in the Third Amended Complaint, Plaintiff contends that he “ha[s] not been provided with an appropriate course of treatment for [his] shoulder and stomach . . . or provided with a physician qualified to assess and treat [his] conditions.” [Id. at 7] In the First Motion for Injunction, Plaintiff references his claims for deliberate indifference to his serious medical needs, state-created danger, failure to protect from the risk of serious harm posed by other inmates, and violation of his right to refuse medical treatment and argues he has a substantial likelihood of success on these claims.⁴⁸ [Id. at 10-11, 15-18] As discussed above, however, Plaintiff has not plausibly stated a claim as to any of his Claims in the Third Amended Complaint and thus cannot demonstrate a substantial likelihood of success on the merits of any of the claims upon which the First Motion for Injunction is based. With regard to Plaintiff's contention that he has not been provided with appropriate treatment for his shoulder injury and stomach pain, as explained above, Plaintiff's contention appears to merely reflect a difference of opinion as to the appropriate treatment or, at most, malpractice and neither is sufficient to establish a constitutional violation.

48 Plaintiff also alleges that, subsequent to filing this lawsuit, Plaintiff has faced death threats and other retaliatory actions in violation of his First Amendment rights. [#70 at 11-13] The allegations regarding the alleged retaliation largely relate to events that allegedly occurred after the Third Amended Complaint was filed and Plaintiff did not assert a First Amendment retaliation claim in the Third Amended Complaint. Nor has Plaintiff sought leave to amend his complaint to add these allegations and a First Amendment claim. “[W]hen there is no connection between the injury claimed in a motion for a preliminary injunction and the underlying lawsuit, the ‘motion for temporary relief has nothing to do with preserving the district court's decision-making power over the merits' of the action, and is thus properly denied.” Boles v. Colo. Dep't of Corr., No. 19-CV-1158-WJM-STV, 2020 WL 2098205, at *2 (D. Colo. May 1, 2020) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). Plaintiff's allegations regarding the alleged retaliation “might support additional claims against the same prison officials, [but] they cannot provide the basis for a preliminary injunction in this lawsuit.” Devose, 42 F.3d at 471.

In the Second Motion for Injunction, Plaintiff seeks an injunction restraining Ms. Telfer from “seeking and enforcing the involuntary administration of antipsychotic medications and from wrongfully confining Plaintiff at the [CMHIP].” [#127 at 1] In support, Plaintiff alleges that Ms. Telfer and “the Competency Restoration Director” have made misrepresentations to the Arapahoe County District Court handling Plaintiff's pending state criminal charges and, based upon those misrepresentations, the Arapahoe County District Court allegedly is “seeking to wrongfully confine [Plaintiff] at CMHIP and [is] also seeking to enforce orders for the involuntary administration of antipsychotic medications.” [Id. at 2-3] Plaintiff contends that the alleged misrepresentations “implicate a substantial question of federal law, ” because “an individual has a significant constitutionally protected ‘liberty' interest in avoiding the unwanted administration of antipsychotic drugs.” [Id. at 3] Plaintiff further contends that the Arapahoe County District Court's orders “are being enforced unnecessarily due to a retaliatory motive which could be circumstantial evidence of First Amendment retaliation.” [Id. at 6]

The Court finds that Plaintiff is not entitled to the relief sought through the Second Motion for Injunction for multiple reasons. First, as explained above, the Court finds that Plaintiff has not stated a plausible claim against Ms. Telfer and thus Plaintiff has not demonstrated a substantial likelihood of success on the merits. Second, Plaintiff's request for relief in the Second Motion for Injunction appears to be based upon alleged misrepresentations made after the Third Amended Complaint was filed and upon claims-such as a claim for the forced administration of drugs and First Amendment retaliation-that are not asserted in the Third Amended Complaint.⁴⁹ “[W]hen there is no connection between the injury claimed in a motion for a preliminary injunction and the underlying lawsuit, the ‘motion for temporary relief has nothing to do with preserving the district court's decision-making power over the merits' of the action, and is thus properly denied.” Boles v. Colo. Dep't of Corr., No. 19-CV-1158-WJM-STV, 2020 WL 2098205, at *2 (D. Colo. May 1, 2020) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). Third, to the extent Plaintiff seeks injunctive relief based upon misrepresentations made to-and orders imposed by-the Arapahoe County District Court, Plaintiff's request appears to be barred by Younger abstention. “Absent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings under Younger v. Harris.” Hodson v. Reams, 823 Fed.Appx. 659, 660 n.2 (10th Cir. 2020) (citing 401 U.S. 37, 91 (1971)). “Younger abstention applies when ‘(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests.'” Id. (quoting Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce, 240 F.3d 871, 875 (10th Cir. 2001)). Here, all three requirements appear to be met and Plaintiff has not even attempted to carry his “heavy burden to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment.” Amanatullah v. Colo. Bd. of Med. Examiners, 187 F.3d 1160, 1165 (10th Cir. 1999) (quotations omitted).

49 Although Plaintiff references the negative side effects he experienced after taking the antipsychotic medication “Rhespodol” [#127 at 4], the relief he seeks does not appear to derive from his claims in the Third Amended Complaint related to taking “Rhespodol, ” because Plaintiff expressly alleges in the Third Amended Complaint that he “discontinued the medication after the first dose” [#83 at 33]. Regardless, because Plaintiff failed to state a claim for relief related to taking “Rhespodol, ” he cannot demonstrate a substantial likelihood of success on the merits of those claims.

In the Third Motion for Injunction, Plaintiff seeks to enjoin defendants from: (1) destroying or concealing any of Plaintiff's legal documents, (2) denying Plaintiff access to his legal documents that were left at ACDF when he was transferred to the CMHIP, and (3) impeding Plaintiff's access to his legal documents. [#161] As an initial matter, the Third Motion for Injunction does not address any of the requirements for obtaining injunctive relief and thus Plaintiff clearly has not established that his “right to relief [is] clear and unequivocal.” Dine Citizens Against Ruining Our Env't, 839 F.3d at 1281 (quotation omitted). Moreover, Plaintiff's request for injunctive relief appears to be based upon the alleged failure of ACDF officers to tell Plaintiff he was being transferred to the CMHIP and thereby allow him to bring his legal documents with him to CMHIP [see #162]-conduct that: (1) was not alleged in the Third Amended Complaint, (2) does not form the basis of any of Plaintiff's claims in this litigation, and (3) thus cannot serve as the basis for injunctive relief. See Boles, 2020 WL 2098205, at *2. To the extent Plaintiff's request for relief in the Third Motion for Injunction is based upon any of the claims asserted in the Third Amended Complaint, Plaintiff cannot establish a substantial likelihood of success on the merits of those claims for the same reasons the Court found the allegations in support of those claims insufficient to state a claim.

Accordingly, the Court respectfully RECOMMENDS that the First Motion for Injunction, the Second Motion for Injunction, and the Third Motion for Injunction be DENIED.

V. CONCLUSION

For the foregoing reasons, this Court respectfully RECOMMENDS that:

(1) The ACSO Motion to Dismiss [#87] be GRANTED;

(2) All of Plaintiff's claims asserted in the Third Amended Complaint be DISMISSED without leave for Plaintiff to file a further amended complaint;

(3) The Telfer Motion [#155] be DENIED AS MOOT;

(4) The Motion to Amend [#114] be DENIED;

(5) The First Motion for Injunction [#70] be DENIED;

(6) The Second Motion for Injunction [#127] be DENIED; and

(7) The Third Motion for Injunction [#161] be DENIED.⁵⁰

50 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, 579-80 (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).