Hoid v. Boulder County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00616-PAB-KAS
EDWARD HOID,
Plaintiff,
v.
BOULDER COUNTY SHERIFF’S OFFICE,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Dismiss Prisoner
Complaint [#32]1 (the “Motion”). Plaintiff filed a Response [#35] in opposition to the
Motion [#32], Defendant filed a Reply [#37], Plaintiff filed a Surreply [#45],2 and Defendant
filed a Supplemental Reply [#46].3 The Motion [#32] has been referred to the undersigned
1 “[#32]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 Surreplies are not contemplated by the Federal Rules of Civil Procedure or the Local Rules of
Practice. However, “[g]enerally, the nonmoving party should be given an opportunity to respond
to new material raised for the first time in the movant’s reply.” Green v. New Mexico, 420 F.3d
1189, 1196 (10th Cir. 2005). “Material, for purposes of this framework, includes both new
evidence and new legal arguments.” Id. (internal quotation marks and citation omitted). Although
the Court did not previously grant Plaintiff leave to file a Surreply, the Court nevertheless has
considered it in its adjudication of the Motion [#32].
3 Due to a scanning error, pages 6 and 7 of Plaintiff’s hard copy Response [#35] were not originally
scanned and made electronically available on the electronic docket, an omission which was later
corrected, but not until Defendant had filed its Reply [#37]. Accordingly, because Defendant did
not have the benefit of having two pages of Plaintiff’s Response [#35] when drafting its Reply
[#37], the Court permitted Defendant to file a short Supplemental Reply [#46] solely to address
those two pages. Minute Order [#44].
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for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1),
and D.C.COLO.LCivR 72.1(c)(3). See [#43]. The Court has reviewed the briefs, the entire
case file, and the applicable law. For the reasons stated below, the Court respectfully
RECOMMENDS that the Motion [#32] be GRANTED.
I. Background4
Plaintiff proceeds in this matter as a pro se litigant.5 On November 12, 2022,
apparently prior to his being held at the Boulder County Jail, Plaintiff was determined to
be an “acute onset diagnosed insulin dependent diabetic” at Longmont United Hospital.
Second Am. Compl. [#17] at 4. At all other times relevant to this litigation, he was
incarcerated at the Boulder County Jail as a pretrial detainee. Id. at 2.
Plaintiff’s Claim One, titled “ADA Discrimination and Deliberate Indifference,” is
based on the following allegations. Id. at 4-7. Inmates at Boulder County Jail are locked
into their cells at 10:00 p.m. each day. Id. at 5. While held there, Plaintiff was on a dosing
regimen for his diabetes of two injections of insulin at 4:00 a.m. and 10:00 p.m. each day
and two oral doses of insulin provided at 7:30 a.m. and 7:30 p.m. each day. Id. at 5. On
4 For the purposes of resolving the Motion [#32], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in Plaintiff's Second Amended Complaint [#17]. See
Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). However, to the extent that Plaintiff provides additional
allegations or possible new claims in his briefs, the Court notes that a party may not amend his
complaint in motion briefing. See, e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F.
Supp. 3d 1112, 1127 (D. Kan. 2021) (stating that “a party may not amend its complaint by way of
arguments in a brief”); Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL 5815915, at *5
(D. Colo. Sept. 30, 2020) (stating that it is “well established that Plaintiff may not amend his
Complaint by adding factual allegations in response to Defendants’ Motion to Dismiss”).
5 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should
the Court “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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March 2, 2023, a nurse did not come at 10:00 p.m. to give Plaintiff his scheduled injection.
Id. at 5-6. Deputy Kennedy performed routine rounds every thirty minutes that night, at
10:30 p.m., 11:00 p.m., 11:30 p.m., and 12:00 a.m. Id. When Plaintiff asked him at 10:30
p.m. to contact medical so Plaintiff could get his injection, Deputy Kennedy refused,
saying that “they will be by.” Id. Deputy Kennedy responded similarly to Plaintiff’s requests
at 11:00 p.m., 11:30 p.m., and 12:00 a.m. Id. at 6.
After Deputy Kennedy’s 12:00 a.m. round, Plaintiff called to another inmate, who
was not locked into his cell because he was afforded leisure time in the pod, asking him
to contact a different deputy to let him know that Plaintiff needed his insulin. Id. At 12:15
a.m., Plaintiff was brought downstairs where a nurse, apologizing for the delay and saying
she had forgotten, performed his injection at 12:17 a.m. Id. at 6-7. This was two hours
and seventeen minutes later than his usual time. Id. at 5, 7.
Plaintiff’s Claim Two, titled “Serious Bodily Injury,” is based on the following
allegations. Id. at 8. Plaintiff received his next insulin injection at 4:00 a.m. on March 3,
2023, from a different nurse. Id. He states that “this was an overdose and the nurse was
not made aware.” Id. Plaintiff alleges that his next two oral doses were also administered
at their normal times, but states: “I was very sick and I was consuming massive amounts
of sugar all day to counter-act the effects, as a result, the fluctuations of sugar caused me
to lose my vision, severely.” Id.
Plaintiff’s Claim Three, titled “Assault and Discrimination,” is based on the following
allegations. Id. at 8-9. At 9:30 p.m. on March 3, 2023, Plaintiff states that Deputy Kennedy
“attempted to trigger a behavioral outburst” from Plaintiff in an “attempt to use any effects
of the overdose on my behavior, essentially my disability, to punish me and cause me
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injury.” Id. Deputy Kennedy and Deputy Warwick searched Plaintiff’s cell, although they
confiscated nothing and did not give him a write-up. Id. at 9. Plaintiff received his 10:00
p.m. insulin injection that night as scheduled, about which he alleges: “I was overdosed.”
Id. At his next scheduled injection time of 4:00 a.m. on March 4, 2023, he asked the nurse
if he should take another dose, and the nurse said that he should because his charts did
not show that he had received an extra dose on March 3, 2023. Id.
Plaintiff’s Claim Four, titled “Severe Bodily Injury,” is based on the following
allegations. Id. at 9-11. The morning of March 4, 2023, Plaintiff states that he began to
experience syncope and seizures, “falling onto objects while confined in a cell.” Id. at 10.
Plaintiff alleges that his cellmate gave him more sugar and called a medical emergency
but was ignored by deputies. Id. Plaintiff asserts that he “came out of a strange black out”
at 9:30 a.m., when his cellmate was shouting for the deputies on the new shift to get
medical help. Id. The deputies allegedly refused, accusing Plaintiff of “crying wolf.” Id.
Plaintiff states that Deputies Moore, Cole, and Cadet were all responsible for refusing to
contact medical. Id. at 11. He states that the seizures and syncope “caused me vertigo
like injuries, my ears ring now and I’m always dizzy.” Id.
Plaintiff’s Claim Five, again titled “Severe Bodily Injury,” is based on the following
allegations. Id. at 11-13. Plaintiff alleges that, at 10:00 a.m. on March 4, 2023, he fainted
and struck his head on the brick wall. Id. at 11. His cellmate and others shouted to
deputies that there was a medical emergency, and Deputy Moore came to the cell asking
what was wrong. Id. Plaintiff told him: “I’m diabetic, I ate all this sugar, I was overdosed.”
Id. at 12. The deputy told him that those were not symptoms for which medical should be
contacted. Id. The deputy left, and Plaintiff fainted again, falling to the floor, injuring his
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neck, spine, and head. Id. Another inmate told Deputy Moore, who again did not alert
medical. Id.
At 11:00 a.m., Deputy Moore brought a lunch to Plaintiff’s cell, and he “consumed
it and other sugars.” Id. At 12:00 p.m., medical was alerted, and they did a blood sugar
reading, which “was still low-good.” Id. Plaintiff asserts that the deputies deliberately timed
it this way, i.e., that medical was alerted only after Plaintiff had food/sugar in his system.
Id. Plaintiff states that he “was locked into the cell for 36 consecutive hours because of
the effects of the overdose and [his] disability was used as an instrument to harm [him].”
Id. Plaintiff further states: “I sustained multiple serious injuries. I am now on many
treatments for the injuries, optical exams, pain relievers, neuro checks, and I get one very
small dose, once a day of insulin, instead of four. I get a diabetic diet and over night snack.
Medical is treating me and they corrected the records.” Id. at 13.
Plaintiff’s Claim Six, titled “Eighth Amendment; Cruel and Unusual Punishment,” is
based on the following allegations. Id. at 13-14. On April 27, 2023, deputies confiscated
the afternoon snacks Plaintiff receives for his diabetes, saying that jail policy forbids the
accommodations. Id. at 13. Plaintiff sent kites about his snacks to medical but they were
either answered by deputies instead or thrown back at him. Id. at 14. Plaintiff further states
that the medical department has helped him “find a perfect balance, and on 04/27/2023
it was almost disrupted again by jail deputies’ misconduct.” Id. at 17.
Plaintiff seeks $400,000 in damages for injury, pain, and suffering. Id. at 22. In the
present Motion [#32], Defendant seeks dismissal of all claims asserted by Plaintiff. The
Court notes that the precise bases for many of Plaintiff’s claims are unclear. However,
the Court generally agrees with Defendant’s interpretation of the legal basis for each of
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Plaintiff’s 	claims, and Plaintiff 	does 	not 	contest 	Defendant’s 	interpretations 	in 	his
Response [#6]. Thus, the Court construes Plaintiff’s claims as follows: (1) Claim One
(ADA 	Discrimination 	and 	Deliberate 	Indifference): 	violation 	of 	the 	Americans 	with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. and deliberate indifference to serious
medical needs in violation of the Fourteenth Amendment;6 (2) Claim Two (Serious Bodily
Injury): deliberate indifference to serious medical needs in violation of the Fourteenth
Amendment; (3) Claim Three (Assault and Discrimination): state law claim of assault and
violation of Plaintiff’s equal protection rights under the Fourteenth Amendment; (4) Claim
Four (Severe Bodily Injury): deliberate indifference to serious medical needs in violation
of 	the 	Fourteenth 	Amendment; 	(5) 	Claim 	Five 	(Severe 	Bodily 	Injury): 	deliberate
indifference to serious medical needs in violation of the Fourteenth Amendment; and (6)
Claim Six (Eighth Amendment; Cruel and Unusual Punishment): deliberate indifference
to serious medical needs in violation of the Fourteenth Amendment. See Second Am.
Compl. [#17] at 4-16.
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A
complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’”
Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir.
6 Plaintiff was a pretrial detainee at the time of the events underlying this lawsuit. Second Am.
Compl.[#17] at 2. The Fourteenth Amendment’s protections, and not the Eighth Amendment’s,
apply to pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
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2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the
complaint includes ‘well-pleaded allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.’” Carraway v.
State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do . . . . [n]or does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint
alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton
v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
III. Analysis
A. 	Prison Litigation Reform Act
Defendant argues that the Court lacks subject matter jurisdiction because Plaintiff
failed to exhaust his statutorily required administrative remedies under the Prison
Litigation Reform Act (“PLRA”). Motion [#32] at 5-7.
The PLRA requires inmates to exhaust administrative remedies before filing suit
under 42 U.S.C. § 1983 “or any other Federal law.”7 42 U.S.C. § 1997e(a); see Porter v.
Nussle, 534 U.S. 516, 532 (2002) (holding that “the PLRA’s exhaustion requirement
7 “The PLRA applies to pretrial detainees as well as prisoners.” Routt v. Hansford, No. 4:18-cv-
00439-CRK-JFJ, 2022 WL 17553017, at *2 n.3 (N.D. Okla. Dec. 9, 2022) (citing 42 U.S.C. §
1997e(h)).
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applies to all inmate suits about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive force or some other wrong”).
Exhaustion means that an inmate must “properly following all of the steps laid out in the
prison system’s grievance procedure,” including meeting deadlines and complying with
other critical procedural rules.8 Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citing
Woodford v. Ngo, 548 U.S. 81, 90 (2006)); Gray v. Sorrels, 818 F. App’x 787, 789 (10th
Cir. 2020); see also Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“An
inmate who begins the grievance process but does not complete it is barred from pursuing
a § 1983 claim under PLRA for failure to exhaust his administrative remedies.”). An
inmate’s failure to exhaust his administrative remedies does not deprive the Court of
subject matter jurisdiction. Jones v. Bock, 549 U.S. 199, 211 (2007); see also Steele v.
Fed. Bureau of Prisons, 355 F.3d 1204, 1208-09 (10th Cir. 2003) (noting that PLRA’s
exhaustion requirement “does not defeat federal-court jurisdiction[.]”) (internal quotation
marks and citation omitted), rev’d on other grounds by Jones, 549 U.S. at 215-16.
However, the Court must dismiss (usually without prejudice) any claims which have not
been exhausted. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).
An inmate is not required to plead or demonstrate exhaustion in his complaint.
Jones, 549 U.S. at 216. Rather, exhaustion is an affirmative defense under the PLRA,
Jones, 549 U.S. at 216, and therefore “the burden of proof for the exhaustion of
administrative remedies in a suit governed by the PLRA lies with the defendant.” Roberts
8 The primary exception to the exhaustion requirement is where the administrative remedies are
not “available” to the prisoner, such as where “prison officials prevent, thwart, or hinder a
prisoner’s efforts to avail himself of an administrative remedy[.]” Little v. Jones, 607 F.3d 1245,
1250 (10th Cir. 2010). An exception may also be made where the grievance procedure is
“essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands[.]”
Ross v. Blake, 578 U.S. 632, 644 (2016) (citations omitted).
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v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). This burden requires the defendant to
prove both that the remedies were available and that the plaintiff failed to exhaust them.
Purkey v. CCA Det. Ctr., 263 F. App’x 723, 726 (10th Cir. 2008). Because inmates do not
have an affirmative duty to plead exhaustion, a motion to dismiss for failure to exhaust is
only granted in “rare cases” where “it is clear from the face of the complaint that the
prisoner has not exhausted his administrative remedies.” Aquilar-Avellaveda v. Terrell,
478 F.3d 1223, 1225 (10th Cir. 2007).
Defendant characterizes its exhaustion argument as jurisdictional. Motion [#32] at
5. However, as discussed above, this is incorrect. See Steele, 355 F.3d at 1208 (holding
that an inmate’s failure to exhaust his administrative remedies does not deprive courts of
subject matter jurisdiction). Rather, the argument is one to be addressed under Fed. R.
Civ. P. 12(b)(6). See Gallagher, 587 F.3d at 1068. Because Defendant characterized its
argument here as jurisdictional, it also attached Plaintiff’s grievances to the Motion [#32]
for the Court to consider. See [#32-1, #32-2]. Under the Rule 12(b)(6) motion to dismiss
standard, the Court may not consider documents outside the pleadings (with limited
exceptions not applicable here), without converting the motion to dismiss into a motion
for summary judgment. Fed. R. Civ. P. 12(d). Here, because the Court has not converted
the present Motion [#32] into one for summary judgment,9 the Court does not consider
the grievances [#32-1, #32-2] or the incident report [#32-3] provided by Defendant in
connection with its exhaustion argument.
9 The Court has not converted the present Motion [#32] into one for summary judgment in part
because no party made this request and in part because, based on the briefs, it appears likely
that there would be a disputed issue of material fact precluding summary judgment at this juncture,
although the Court reaches no conclusion on that issue at this time.
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Defendant’s arguments rest solely on the exhibits provided. See Motion [#32] at 5-
7. Plaintiff has affirmatively alleged that there was a formal grievance procedure at his
facility and that he exhausted his administrative remedies. Second Am. Compl. [#17] at
21. Thus, Plaintiff’s failure to exhaust his administrative remedies is not “clear from the
face of the complaint[.]” Aquilar-Avellaveda, 478 F.3d at 1225.
Accordingly, the Court recommends that the Motion [#32] be denied in part to
the extent Defendant seeks dismissal based on exhaustion of administrative remedies.
B. 	Capacity
Plaintiff purports to sue Defendant in both individual and official capacities. Second
Am. Compl. [#17] at 2. However, as Defendant asserts, “[t]he Boulder County Sheriff’s
Office is not subject to individual capacity suits,” because individual capacity claims
against a government entity are not permitted. Motion [#32] at 11; see, e.g., Mora v. Doe,
No. CV 23-00013-CJC (DFM), 2023 WL 8125767, at n.4 (C.D. Cal. July 25, 2023) (“In a
suit against a government entity or its department, the distinction between individual and
official-capacity suits does not apply; the entity should be sued in an official capacity only.
Thus, Plaintiff cannot due the District Attorney’s Office in an individual capacity.” (internal
citation omitted)); see also Johnson v. Bd. of Cnty. Comm’rs for the Cnty. of Fremont, 85
F.3d 489, 493 (10th Cir. 1996) (generally explaining the distinction between individual
capacity suits and official capacity suits).
Accordingly, the Court recommends that the Motion [#32] be granted in part and
that Plaintiff’s claims be dismissed with prejudice to the extent asserted against
Defendant in an individual capacity. See Brereton v. Bountiful City Corp., 434 F.3d 1213,
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1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails
to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”).
C. 	Municipal Liability
Defendant argues that Plaintiff has not adequately pled any part of a municipal
liability claim, also known as a Monell claim, with respect to any of his asserted
constitutional violations, including his equal protection claim and his multiple deliberate
indifference to medical care claims. Motion [#32] at 11-19.
A municipality “is a ‘person’ subject to § 1983 liability.” McDonald v. Wise, 769 F.3d
1202, 1215 (10th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978)). “Municipal liability requires an underlying constitutional violation.” Buchanan v.
Turn Key Health Clinics, LLC, No. 22-7029, 2023 WL 6997404, at *7 (10th Cir. Oct. 24,
2023). “A core principle of Monell liability is that municipal entities are liable for only their
own actions and not vicariously liable for the actions of their employees.” Crowson v.
Washington County, 983 F.3d 1166, 1191 (10th Cir. 2020). However, “[b]ecause
municipalities act through officers, ordinarily there will be a municipal violation only where
an individual officer commits a constitutional violation.” Id.
In addition to the requirement that there be a constitutional violation, a plaintiff must
satisfy three other elements to succeed on a municipal liability claim: “(1) an official policy
or custom, (2) causation, and (3) deliberate indifference.” Lucas v. Turn Key Health
Clinics, LLC, 58 F.4th 1127, 1145 (10th Cir. 2023).
Regarding the first element, an official policy or custom may include:
(1) 	a 	formal 	regulation 	or 	policy 	statement; 	(2) 	an 	informal 	custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
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employees with final policymaking authority; (4) the ratification by such final
policymakers of the decisions—and the basis for them—of subordinates to
whom authority was delegated subject to these policymakers’ review and
approval; or (5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the injuries that
may be caused.
Waller v. City and County of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (citation
omitted).
Regarding the second element, i.e., causation, “the challenged policy or practice
must be closely related to the violation of the plaintiff’s federally protected right.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013)
(internal quotation marks omitted). The policy or custom must be “the ‘moving force’
behind the plaintiff’s deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 400 (1997).
Regarding the third element, “[a] local government policymaker is deliberately
indifferent when he ‘deliberately’ or ‘consciously’ fails to act when presented with an
obvious risk of constitutional harm which will almost inevitably result in constitutional injury
of the type experienced by the plaintiff.” Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir.
1997). “In the municipal liability context, deliberate indifference is an objective standard
that may be satisfied if the risk is so obvious that the official should have known of it.”
Buchanan, 2023 WL 6997404, at *8 (internal quotation marks omitted) (quoting Barney
v. Pulsipher, 143 F.3d 1299, 1307 n.5 (10th Cir. 1998)).
Here, the Court finds that Plaintiff has not adequately identified a specific policy or
custom, and, even where he may have done so, he has not sufficiently alleged that such
policy or custom was the moving force behind his asserted constitutional injuries or that
the maker of any such policy was deliberately indifferent. Liberally construing Plaintiff’s
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filings, there are three potential policies/customs which he may be asserting are relevant
here.
First, Plaintiff states that the “policy is, no extra food, is giving to diabetics, no
special diets or treatments, this policy has been changed as of April 2023, it was a jail
policy, and it was effective in causing my injury and suffering, the policies were effective
in causing me frustration and extra punishment because of my disability, I’ve never been
a disciplinary issue.” Second Am. Compl. [#17] at 5. However, even assuming this policy
of failing to give diabetics extra food, special diets, or treatments (despite Plaintiff’s
allegations to the contrary that he received insulin injections to treat his diabetes), Plaintiff
has “fail[ed] to draw a connection between this policy and the individual defendants’
actions.” See Erickson v. City of Lakewood, Colorado, 489 F. Supp. 3d 1192, 1206 (D.
Colo. 2020). Plaintiff has not identified a “systemic pattern of behavior that would indicate
that the individual defendants were following an official departmental policy.” See id.
Rather, Plaintiff generally complains of being disciplined without cause and of not
receiving timely medical care. The one incident where he complains that jail staff
confiscated his diabetic-related snacks occurred on or about April 27, 2023. Second Am.
Compl. [#17] at 13-14. However, he alleges no injury in connection with this incident, and
there are no specific allegations that this happened to him repeatedly. See id. Thus, the
Court finds that Plaintiff has not adequately alleged that this purported policy was a
moving force behind any asserted constitutional injury.
Second, Plaintiff may be asserting that there existed an informal custom to delay
and/or deny medical care to diabetics at the jail. See generally Second Am. Compl. [#17]
at 4-5. The existence of a custom requires allegations demonstrating that the purported
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custom was widespread, permanent, and well-settled. Brammer-Hoelter v. Twin Peaks
Charter Acad., 602 F.3d 1175, 1190 (10th Cir. 2010). As Defendant points out, Plaintiff
“alleges different types of misconduct by eight deputies within the span of five days,” i.e.,
March 2-4 and April 27-28, 2023. Motion [#32] at 17. However, “[a] plaintiff cannot rely
only on [his] individual treatment to establish a policy or custom, even if [he] is treated on
multiple days by different defendants. . . . [A] single incident of a constitutional violation
is insufficient to prove a policy or custom even when the incident involved several
employees of the municipality.” Estate of Dixon v. Bd. of Cnty. Comm’rs of Crowley Cnty.,
No. 15-cv-02727-NYW, 2017 WL 1407038, at *12 (D. Colo. Apr. 18, 2017) (citation
omitted). Here, Plaintiff has not identified any other instances where these types of issues
repeatedly occurred either as to him or as to any other diabetics at the jail. Thus, the
Court finds that Plaintiff has not adequately alleged that this purported custom was a
moving force behind any asserted constitutional injury.
Third, Plaintiff states in his Response [#35] that Defendant’s policies prevented
him from obtaining a diagnosis as a type 1 diabetic while there, a diagnosis which he
received after he was transferred to Arrowhead Correctional Center (“ACC”). Response
[#35] at 3. However, this does not appear to be the basis for any of his asserted claims.
In fact, the Second Amended Complaint [#17] is dated April 30, 2023, two days after the
last incident which underlies Plaintiff’s claims, and before he was transferred to ACC or
received a type 1 diabetes diagnosis. None of the claims presented by Plaintiff involve
whether he should have been given a blood test to determine whether he had a different
type of diabetes than what had previously been diagnosed at Longmont United Hospital
on November 12, 2022. Second Am. Compl. [#17] at 4. Thus, the Court finds that Plaintiff
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has not adequately alleged that Defendant’s purported policies were a moving force
behind any asserted constitutional claim.
Accordingly, in the absence of adequate allegations demonstrating that a policy or
custom attributable to Defendant was the moving force behind Defendant’s purported
constitutional violations and Plaintiff’s injuries, the Court recommends that the Motion
[#32] be granted in part and that Plaintiff’s constitutional claims asserted in Claims One
through Six be dismissed without prejudice. See Reynoldson v. Schillinger, 907 F.2d
124, 126 (10th Cir. 1990) (explaining that if “it is at all possible that the party against whom
the dismissal is directed can correct the defect in the pleading or state a claim for relief,”
particularly when the litigant is pro se, a court dismisses without prejudice so that the
plaintiff can seek leave to amend).
D. 	ADA
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132. The Tenth Circuit Court of Appeals has explicitly
held that this provision covers discrimination against inmates detained in a county jail.
Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007)
(citing Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)). A public entity such as
a county jail must “make reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on the basis of disability.”
28 C.F.R. § 35.130(b)(7).
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To state a claim under Title II of the ADA, a plaintiff must allege that “(1) he is a
qualified individual with a disability, (2) who was excluded from participation in or denied
the benefits of a public entity’s services, programs, or activities, and (3) such exclusion,
denial of benefits, or discrimination was by reason of a disability.” Robertson, 500 F.3d at
1193. Defendant argues that Plaintiff has failed to adequately allege the third element.
Motion [#32] at 10. Under this element, the plaintiff’s disability must be a “but-for cause”
of the discrimination but need not be “its sole cause.” Crane v. Utah Dep’t of Corr., 15
F.4th 1296, 1313 (10th Cir. 2021).
Plaintiff has failed to adequately allege that his disability was a but-for cause of the
denial of benefits or of the discrimination he purportedly endured. In other words, he had
not sufficiently alleged that the deputies’ actions were “by reason of” his disability, i.e.,
because he had diabetes. Plaintiff’s argument appears akin to the one rejected by the
Tenth Circuit Court of Appeals in J.V. v. Albuquerque Public Schools, 813 F.3d 1289,
1296 (10th Cir. 2016). There, the Tenth Circuit held an officer did not violate the ADA
when he handcuffed a disabled student for disruptive behavior, holding that the officer
acted based on the student’s conduct and not by reason of his disability. J.V., 813 F.3d
at 1296. The plaintiff had tried to argue instead that the conduct was a “manifestation” of
his disability, but the Tenth Circuit rejected the argument, stating that it was aware of “no
authority suggesting a school may not regulate a student’s conduct if that conduct is a
manifestation of a disability.” Id. Here, although Plaintiff alleges that his conduct was due
to his disability and that his actions were manifestations arising from that disability, the
allegations do not demonstrate that Plaintiff was either denied a benefit or discriminated
against by reason of his disability.
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In addition, to the extent that Plaintiff is arguing that he was not provided with
certain reasonable accommodations, he has neither adequately alleged that he requested
those accommodations nor shown that the need for such accommodations for diabetics
was obvious. See J.V., 813 F.3d at 1299 (dismissing claim where the plaintiff had not
contended that an accommodation had been requested or that it was obvious that one
was needed). Here, for example, Plaintiff asserts that there should have been emergency
call boxes in the cells at the jail and “diabetic provisions for managing blood sugar” (which,
based on his Response [#35], the Court understands to mean items such as access in
his cell to, for example, glucometers and diabetic snacks and shoes). Second Am. Compl.
[#17] at 4; Response [#35] at 6. But, without specifically alleging that he requested these
items or that they were “obvious,” his claim fails.
Accordingly, the Court recommends that the Motion [#32] be granted in part and
that Plaintiff’s ADA claim be dismissed without prejudice. See Reynoldson, 907 F.2d
at 127.
E. 	Supplemental Jurisdiction
Plaintiff asserts an assault claim against Defendant under Colorado law. Second
Am. Compl. [#17] at 8. While a court may exercise supplemental jurisdiction over a state
law claim if there is otherwise a jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3)
states that a court may decline to exercise jurisdiction over such a claim if the Court has
dismissed all claims over which it has original jurisdiction. When § 1367(c)(3) is implicated
in the Tenth Circuit, courts are advised to dismiss pendent state law claims “absent
compelling reasons to the contrary.” McDonald v. Sch. Dist. No. 1 in the Cnty. of Denver
& Colorado, 83 F. Supp. 3d 1134, 1153 (D. Colo. 2015); see also Koch v. City of Del City,
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660 F.3d 1228, 1248 (10th Cir. 2011) (“When all federal claims have been dismissed, the
court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.”) (quotation marks omitted). Here, subject matter jurisdiction is based on federal
question jurisdiction. Second Am. Compl. [#17] at 3. Further, Plaintiff has not pled any
basis for diversity jurisdiction. The Court thus declines to exercise jurisdiction over the
state law claim in this case.
Accordingly, the Court recommends that Plaintiff’s assault claim be dismissed
without prejudice.10 See, e.g., Crane, 15 F.4th at 1314 (affirming district court’s
dismissal without prejudice of state law claim after dismissing all federal claims and
declining to exercise supplemental jurisdiction).
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#32] be GRANTED and that
Plaintiff’s claims be DISMISSED as outlined above.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
10 Pursuant to 28 U.S.C. § 1367(d), the limitations period for any supplemental jurisdiction claim
is “tolled while the claim is pending and for a period of 30 days after it is dismissed unless State
law provides for a longer tolling period.”
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by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: January 19, 2024
BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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