Cannon v. Washington Co Justice Center et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–02299–MDB
BRIAN K. CANNON,
Plaintiff,
v.
WASHINGTON CO. JUSTICE CENTER, and
TURN KEY MEDICAL GROUP,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant Washington County Sheriff’s Office’s
(“WCSO”)1 Motion to Dismiss. ([“Motion”], Doc. No. 33.) Plaintiff has not responded to the
Motion, and the time to do so has expired.2 After reviewing the Motion and relevant law, the
1 The Washington County Sheriff’s Office says it is incorrectly sued as “Washington County
Justice Center.” (Doc. No. 33 at 1.) For clarity, the Court will use WCSO to refer to this
Defendant.
2 The Motion was filed on July 8, 2024. (Doc. No. 33.) After pro se Plaintiff failed to file a
timely response to the Motion, the Court set a status conference for October 21, 2024. (Doc. No.
34.) During the conference, Plaintiff advised the Court he intended to file a response and had a
copy of the Motion. (Doc. No. 36.) The Court extended the response deadline to November 22,
2024. (Id.) Plaintiff was cautioned “that if he fails to meet the response deadline, he runs the risk
of his case being dismissed for failure to prosecute.” (Id.) On November 21, 2024, Plaintiff filed
a motion for a 60-day extension of this deadline, saying “he never received a true copy” of the
Motion. (Doc. No. 38.) The Court expressed concern as to the inconsistency between Plaintiff’s
representations during the status conference and the extension motion but nevertheless granted
the extension, moving Plaintiff’s response deadline to January 22, 2025. (Doc. No. 39.) In its
Minute Order, the Court notified Plaintiff that “absent extraordinary circumstances, no further
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Court respectfully RECOMMENDS3 that the Motion be GRANTED and Plaintiff’s claim
against WSCO be dismissed.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that your Eighth Amendment Claim against WCSO be
dismissed. To state a viable claim against WCSO, you must plead enough facts to show that an
employee of WCSO committed a constitutional violation and that the violation was the result of
a municipal policy or custom. Your Complaint falls short of that. Although you identify a custom
or policy that allegedly permits only two distributions of medication, your allegations do not
demonstrate that your incorrect dosage was the result of this policy. Additionally, the policy is
entirely disconnected from the allegation that certain medication was not provided for days after
arriving at WCJC, or the allegation that you were given the wrong medication. In other words,
your allegations are insufficient to state a claim against WCSO and the remaining Eighth
Amendment claim against WCSO must be dismissed. This is only a high-level summary; the
extensions would be granted.” (Id.) The Court ordered that Plaintiff be mailed a copy of the
Complaint and Motion, and also directed the parties to file completed magistrate judge consent
forms by December 20, 2024. (Id.) On December 19, 2024, Defendants returned a form
indicating they consent to magistrate judge jurisdiction over this matter. (Doc. No. 42.) On
January 6, 2025, Plaintiff filed a motion advising the Court he had not received a copy of the
Motion, Complaint, or consent form. (Doc. No. 43.) On January 7, 2025, the Court extended
Plaintiff’s response deadline and deadline to file a consent form to February 7, 2025. (Doc. No.
44.) It also ordered the clerk to mail a copy of the Complaint, consent form, and Motion. (Id.; see
Doc. No. 45 (confirming such documents were mailed to Plaintiff.).) To date, Plaintiff has not
filed a response to the Motion, a completed consent form, or a request for additional time. Still,
and in light of Plaintiff’s pro se status, the Court considers the Motion on its merits. See Persik v.
Manpower Inc., 85 F. App’x 127, 130 (10th Cir. 2003) (“A district court may not grant a
12(b)(6) dismissal based solely on [a pro se] plaintiff’s failure to respond.”) (unpublished).
3 Because the Court has not received Plaintiff’s consent form, it issues this decision as a
recommendation rather than an order.
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entire Recommendation is set forth below, along with information about your right to object to
this Recommendation.
BACKGROUND
Plaintiff lives with COPD, congestive heart failure, kidney failure, and nerve damage in
his legs and feet. (Doc. No. 1 at 6.) Plaintiff alleges he arrived at Washington County Justice
Center (“WCJC”) on July 27, 2023.4 (Id.) Plaintiff says he “didn’t get any of [his] lifesaving
medication for two days” after arriving at WCJC. (Id.) He also alleges, “after two weeks they
gave me medicine that was not proscribe[d] by my doctor.” (Id.) According to Plaintiff, he took
the new medicine for two days and it did not work. (Id.) Plaintiff also worried the new
medication “might not go with” his old medication, so he stopped taking it. (Id.) According to
Plaintiff, the nerve damage in his legs and feet began to cause him significant pain due to the
lack of medication. (Id. at 7.) Plaintiff goes on to allege that after three weeks at WCJC, he was
given the “correct medication” that had been prescribed by his doctor, but he was given an
incorrect dose. (Id. at 6–7.) According to Plaintiff, he is supposed to take his medication four
times per day, but a WCJC nurse said the facility “only gives out meds twice a day.” (Id. at 7.)
Plaintiff contends WCJC does “not have the correct medical staff available,” and says he does
not think the staff could save him in the event of a medical emergency. (Id.) Based on these
4 Plaintiff is no longer housed at WCJC. On July 2, 2024, WCSO informed the Court that
Plaintiff is now an inmate at Federal Prison Camp Duluth, in Duluth, Minnesota. (Doc. No. 32.)
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allegations, Plaintiff brings an Eighth Amendment deliberate indifference claim against both
Defendants5 under 42 U.S.C. § 1983.6
WCSO moves pursuant to Rule 12(b)(6), arguing Plaintiff fails to state an Eighth
Amendment claim. (Doc. No. 33.) Specifically, the Complaint fails to sufficiently allege
WCSO’s staff acted with deliberate indifference to an objectively serious medical need (id. at 6–
8), and it fails to sufficiently allege that a policy or custom caused Plaintiff’s alleged harm
pursuant to Monell v. Department of Soc. Svcs. 436 U.S. 658 (1978) (id. at 8–9).
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
5 Turn Key Medical Group has not moved to dismiss the claim against them and instead filed an
Answer. (Doc. No. 30.)
6 At the initial review stage, Judge Babcock dismissed this claim without prejudice to the extent
it was based on WCSO’s failure to accommodate Plaintiff’s physical disabilities and to the extent
it was brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). (Doc. No. 14 at 2.) However, Judge Babcock allowed the Eighth
Amendment claim to proceed to the extent it was based on WCSO’s alleged failure to provide
Plaintiff his medication. (Id.; see also Doc. No. 10 (Judge Prose’s Recommendation as to the
same).))
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“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a Rule 12(b)(6) motion to dismiss,
means that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs
of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the
assumption of truth,” i.e., those allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679–81. Second, the court considers the factual allegations “to
determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a
plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That being said, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are
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‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
II. 	Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines
v. Kerner, 404 U.S. 519, 520–21 (1972) (holding the allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has
violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113
F.3d 1170, 1173–74 (10th Cir. 1997) (stating that a court may not “supply additional factual
allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). The plaintiff’s pro se status does not entitle him to
an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
ANALYSIS
“Local governing bodies can be sued directly only where ‘the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.’” Sanchez v. City of Littleton, 491 F.
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Supp. 3d 904, 920 (D. Colo. 2020) (quoting Monell, 436 U.S. at 690). “[I]t is when execution of
a government’s policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Monell, 436 U.S. at 694.
“In order to state a claim for municipal liability under § 1983 for the actions of a
municipal employee, a party must allege sufficient facts to demonstrate that it is plausible ‘(1)
that a municipal employee committed a constitutional violation; and (2) that a municipal policy
or custom was the moving force behind the constitutional deprivation.’” Sanchez, 491 F. Supp. at
920 (quoting Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)); see Crowson v.
Wash. Cty., 983 F.3d 1166, 1191 (10th Cir. 2020) (“[T]here is no question that where the actions
of a municipality’s officers do not rise to the level of a constitutional violation and the claim
against the municipality is based on it serving as the driving force behind those actions, liability
cannot lie.”). A plaintiff must further show that “the policy was enacted or maintained
with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013).
Here, even assuming (without deciding) that Plaintiff indeed suffered a constitutional
injury, 7 the Complaint fails to sufficiently plead a Monell claim against WCSO. See Eberhardt
v. City of Greeley, Co., 2023 WL 11867125, at *4–5 (D. Colo. Aug. 28, 2023) (assuming
plaintiff pled a constitutional harm, but nevertheless concluding he failed to plead a Monell
claim). Plaintiff identifies one alleged policy in connection with his claim: that WCJC distributes
7 The Court notes that, as plead, the Complaint’s allegations appear too sparse to plausibly allege
a constitutional violation occurred. See Iqbal, 556 U.S. at 678–81.
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medication twice a day. (Doc. No. 1 at 7.) And while this alleged distribution policy is at least
somewhat connected to Plaintiff’s allegation that he was given the wrong dosage of his
medication, the Complaint fails to plausibly demonstrate this policy caused Plaintiff injury.
Plaintiff appears to allege he was being given only two doses of his medication every
day—one during each of the two scheduled distributions—even though he was prescribed to take
four doses, total. But the allegations in the Complaint do not specifically tie his incorrect dosage
to the distribution schedule. For example, Plaintiff does not allege that he asked for a double
dose during a particular distribution and WCJC refused, nor does he allege that WCJC staff knew
he was required to take four doses but ignored his dosage requirements because of the
distribution schedule.8 Said another way, the allegations—even if accepted as true—do not
demonstrate the distribution schedule was the moving force behind Plaintiff’s incorrect dosage.
See Sanchez, 491 F. Supp. 3d at 920 (in order to allege a municipal liability claim under § 1983,
“a party must allege sufficient facts to demonstrate that it is plausible ... ‘that a municipal policy
or custom was the moving force behind the constitutional deprivation’” (quoting Jiron, 392 F.3d
at 419)). Thus, the incorrect dosage does not give rise to a viable Monell claim.
Additionally, the distribution policy is entirely disconnected from other allegations in the
Complaint, including that Plaintiff’s medication was not provided for days after arriving at
WCJC, and that Plaintiff was initially given a different medication than what was prescribed.
Thus, none of Plaintiff’s allegations are sufficient to state a valid Monell claim.
8 At most, Plaintiff alleges a nurse told him WCJC “only give[s] out meds twice a day,” but he
does not allege that he explained his dosage requirements or that the nurse refused to follow his
dosage requirements because she was bound by the distribution schedule.
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The Court pauses to acknowledge that the Complaint paints a troubling picture
concerning Plaintiff’s access to medication at WCJC. But pleading a Monell claim requires much
more than pleading a troubling set of facts. A plaintiff must tie the injury to a specific policy or
custom. Here, Plaintiff’s allegations suggest that unidentified, non-party, WCJC staff may have
been careless with respect to Plaintiff’s medication, but they do not support a municipal liability
claim.
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS Defendant
Washington County Sheriff’s Office’s Motion to Dismiss (Doc. No. 33) be GRANTED and
Plaintiff’s claim against WCSO be DISMISSED. 9
The Clerk of Court is directed to reassign this case to a District Judge under
D.C.COLO.LCivR 40.1(c)(8) and D.C.COLO.LCivR 40.1(a) for consideration of the Court’s
Recommendation.
The Clerk of Court is further directed to mail a copy of this Recommendation to Plaintiff:
Brian K. Cannon
# 63505-509
DULUTH
FEDERAL PRISON CAMP
Inmate Mail/Parcels
P.O. BOX 1000
DULUTH, MN 55814
9 “[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice.”
Ghailani v. Sessions, 859 F.3d 1295, 1304 (10th Cir. 2017). Here, however, Plaintiff was warned
in October, 2024 that failure to respond to the Motion could result in dismissal. At that time, the
Court extended Plaintiff’s time to respond. Thereafter, the Court extended Plaintiff’s deadline
twice more, and in total Plaintiff was allowed nearly seven extra months to respond. Plaintiff still
has not responded.
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ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings 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); 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. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
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the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 25th day of February, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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