Pinto-Rios v. Brown et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge S. Kato Crews
Civil Action No. 1:20-cv-03698-RMR-SKC
CARLOS PINTO-RIOS,
Plaintiff,
v.
TYLER S. BROWN, et al.,
Defendant.
RECOMMENDATION RE: WELLPATH DEFENDANTS’
MOTION TO DISMISS (DKT. 247)
Before the Court on referral is Defendant Kerry Pruett, Katy Keller, Susan
Greenwald, 	Stacie 	Hengy, 	Micah 	Rhoad, 	Patricia 	Trujillo, 	Jeffrey 	Peterson
(“Individual Defendants”), and Wellpath, LLC’s (collectively, “Defendants”), Motion
to Dismiss. Dkt. 247.1 Defendants move to dismiss Plaintiff Carlos Pinto-Rios’ Second
Amended Complaint (“SAC”) (Dkt. 212) in its entirety. Defendants argue (1) some of
Plaintiff’s claims are barred by the statute of limitations, (2) his state law claims fail
under state law, and (3) Plaintiff generally fails to state a claim under Rule 12(b)(6).
Id. at p. 1.
1 The Court uses “Dkt. __” to refer to specific docket entries in CM/ECF.
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The Court has carefully considered the SAC, Defendants’ Motion to Dismiss,
Plaintiff’s Response (Dkt. 256), Defendants’ Reply (Dkt. 267), and applicable law. No
hearing is necessary. As explained below, the Court respectfully recommends the
Motion be GRANTED IN PART and DENIED IN PART. Because Plaintiff failed to
timely or otherwise file a certificate of review in accordance with Colo. Rev. Stat. §
13-20-602, the Court respectfully recommends the Motion be granted as to his
malpractice claims (Claim 6). While the Court finds Plaintiff may still bring his direct
negligence claims for negligent supervision and training against Wellpath, the Court
respectfully recommends the Motion be granted as to these claims (Claim 6) because
they fail to state a claim under Rule 12(b)(6). Similarly, the Court respectfully
recommends the Motion be granted as to Claims 1-3 (each alleging deliberate
indifference) against Defendants Pruett, Keller, Greenwald, Hengy, Rhoad, and
Trujillo for failing to state claims under Rule 12(b)(6). But because the Court does
find Plaintiff has stated a plausible claim for relief for deliberate indifference (Claim
3) against Dr. Peterson, the Court respectfully recommends the Motion be denied as
to that claim and Dr. Peterson.
BACKGROUND
A. 	Allegations in the SAC2
2 For purposes of the Background, the Court accepts the well-pleaded facts in the SAC
as true and views the allegations in the light most favorable to the non-movant.
Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010).
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Plaintiff was arrested on December 17, 2018, and taken to the Arapahoe
County Detention Center. Dkt. 212 at ¶¶9, 35. He suffers from type-1 bipolar disorder
and was experiencing an episode at the time of his arrest. Id. at ¶37. On the day of
his arrest, Plaintiff told jail personnel he wanted to kill himself. Id. at ¶40. As a
result, Defendants placed Plaintiff on suicide watch protocol from December 17 - 27,
2018. Id. at ¶ 41.
On December 19, 2018, Plaintiff had an altercation with personnel at the
detention facility3 and they placed him in a suicide watch cell in the behavioral health
unit (“BCU”) for eight days. Id. at ¶¶51-52. The cell was small, with cement flooring,
and was devoid of running water, sinks, and furnishings. Id. at ¶53. There was a
window and a hole in the floor for excrement and food waste, with flushing controlled
by jail personnel. Id. According to Plaintiff, the cement construction and windows are
known to be good conductors of cold air. Id. While in the cell, Plaintiff was naked,
except for a suicide smock, and a special blanket. Id. at ¶54.
Plaintiff continued to suffer from severe mental illness while in the BCU. Id.
at ¶55. He expressed difficulty sleeping and feeling agitated; he was compulsively
pacing and ritualistically running his hands over the walls, ran his suicide smock or
bedding over the walls, and he would sing, dance, talk nonsensically to himself, yell
and scream, and eat and play with feces. Id. He alleges his deteriorating condition
3 The SAC states the date as “December 19, 2019,” which appears to be a mistake.
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led to nightmares or hallucinations and he otherwise devolved into serious mental
health disarray. Id. at ¶57.
The Individual Defendants include two mental health professionals, four
registered nurses, and a physician. Id. at ¶13-19. They are all employed by Defendant
Wellpath, a company that contracted with the detention facility to provide medical
services to its detainees. Id. at ¶12. The Individual Defendants monitored Plaintiff
during his time in the BCU. Id. at ¶63-65, 70-71.
Due to Plaintiff’s severe mental illness, he was unable to care for his basic
needs, make decisions or appreciate his actions, including take or refuse medication,
eat and drink, or otherwise make complaints about his bodily needs during his
detention. Id. at ¶79. While in the BCU, Plaintiff became dehydrated to the point of
renal failure. Id. at ¶86. According to arrest and facility records, Plaintiff was 6’ 3”
and 180 lbs. when he entered the facility on December 17, 2018, and weighed 147 lbs.
ten days later, on December 27, 2018. Id. at ¶106. Due to his mental illness, Plaintiff
contends he was not psychologically able to notify anyone when his body needed food
or water. Id. at ¶90. When he kicked or threw his food or otherwise failed to eat or
drink due to his psychotic state, no one at the facility would replace these items. Id.
at ¶91.
During the 7:08am med pass on December 27, 2018, Nurse Trujillo discovered
Plaintiff was suffering frostbite and she immediately contacted Dr. Peterson. Id. at
¶¶182-83, 185-86. Video shows Dr. Peterson did not examine Plaintiff until 2:25pm,
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a period of just over seven hours after Nurse Trujillo contacted him. Id. at ¶189.
EMTs “were called” at about 3:00pm and arrived shortly thereafter to take Plaintiff
to the hospital. Id. at ¶190. During the seven-hour plus period, the Plaintiff’s
condition worsened—his fingers turned darker in color, skin tissue on his fingers and
face was dying and started to harden, the tips of all his fingers (excluding thumbs)
and some of his toes were later amputated, and the remaining damage to his fingers
and toes took months to heal while he lived with continuous open wounds. Id. at
¶¶188, 198-99.
Plaintiff brings six claims for relief. Four of them apply to these Defendants.4
Id. at ¶201-380. The claims are: (1) Claim 1: deliberate indifference to serious mental
health needs; (2) Claim 2: deliberate indifference “regarding inadequate food and
water;” (3) Claim 3: deliberate indifference regarding serious medical needs – cold
exposure and frostbite; and (4) Claim 6: common law negligence and malpractice.
Defendants seek dismissal of each of these claims.
B. 	Pertinent Procedural History
To follow the ensuing analysis regarding Defendants’ statute of limitations
arguments, a summary of the procedural history involving the filing of the SAC is
necessary. Rather than narrate that history, the Court summarizes it in the following
chart, with blue font indicating Plaintiff’s amendments:
4 Plaintiff has also sued 14 individuals from the jail staff. This Motion to Dismiss does
not involve them.
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DATE 	DOCUMENT 	MEDICAL
DEFENDANTS
APPLICABLE CLAIMS
12/17/2020 	Complaint
(Dkt. 1)
Kerry Pruett
Katy Keller
Susan Greenwald
Stacie Hengy
Micah Rhoad
Deliberate Indifference
07/21/2021 	First Amended
Complaint
(Dkt. 21)
Kerry Pruett
Katy Keller
Susan Greenwald
Stacie Hengy
Micah Rhoad
Wellpath, LLC
Deliberate Indifference
Common Law Negligence
01/14/2023 	Certificate of Review
per Colo. Rev. Stat. §
13-20-602
(Dkt. 155-3)
Kerry Pruett
Katy Keller
Susan Greenwald
Stacie Hengy
Micah Rhoad
Wellpath, LLC
Common Law Negligence
03/10/2023 	Second Amended
Complaint
(Dkt. 212)
Kerry Pruett
Katy Keller
Susan Greenwald
Stacie Hengy
Micah Rhoad
Patricia Trujillo
Jeffrey Peterson
Wellpath, LLC
Deliberate Indifference
(mental health)
Deliberate Indifference
(food and water)
Deliberate Indifference
(cold and frostbite)
Common Law Negligence
& Malpractice
ANALYSIS
Defendants move to dismiss all claims against them in the SAC. First, they
argue some of the claims are barred by the statute of limitations. Second, they argue
Claim 6 (negligence claims) fails because Plaintiff failed to comply with Colo. Rev.
Stat. § 13-20-602, which requires the filing of a certificate of review before suing
licensed professionals in negligence. Finally, they argue Plaintiff fails to state a claim
under Rule 12(b)(6) regarding his Section 1983 claims (Claims 1-3).
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A. 	Statute of Limitations
Plaintiff brings three claims (Claims 1-3) under 42 U.S.C. § 1983 each alleging
deliberate indifference in violation of the Fourteenth Amendment. These claims
“must be brought within the time period prescribed by state law for personal injury
actions.” Baker v. Bd. of Regents of State of Kan., 991 F.2d 628, 632 (10th Cir. 1993)
(citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). There is a two-year statute of
limitations for personal injury actions in Colorado. Colo. Rev. Stat. § 13-80-102.
A civil rights action accrues when the plaintiff knows or has reason to know of
the injury that is the basis of the action. Baker, 991 F.2d at 632; Fratus v. DeLand,
49 F.3d 673, 675 (10th Cir. 1995) (federal law governs the issue of when an action
accrues); Fogle v. Pearson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“A § 1983 action
accrues when facts that would support a cause of action are or should be apparent.”).
The test to determine when a claim accrues is an objective one, with the focus “on
whether the plaintiff knew of facts that would put a reasonable person on notice that
wrongful conduct caused the harm.” Alexander v. Okla., 382 F.3d 1206, 1216 (10th
Cir. 2004).
1. 	Claims 1-3 (deliberate indifference) and 6 (negligence) against
Defendants Trujillo and Peterson
Plaintiff brought Nurse Trujillo and Dr. Peterson in as new defendants when
he filed the SAC in March 2023. He explains that these two Defendants were not
parties to the original Complaint because he “had no reason to think that either RN
Trujillo or Dr. Peterson had engaged in any wrongdoing because their medical records
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did not show any wrongdoing – nor were there any other records or information
known that would support wrongdoing.” Dkt. 256 at p.2. Only when, in 2022,
discovery revealed that Plaintiff’s “frostbite was discovered by RN Trujillo in the
morning, and not in the afternoon,” did Plaintiff believe Defendants Trujillo and
Peterson were liable. Id.
Defendants contend the statute of limitations accrued on the claims against
Defendants Trujillo and Peterson on December 27, 2018, when these two Defendants
are alleged in the SAC to have discovered his frostbite and delayed in providing him
care. Dkt. 247, p.4. But Plaintiff waited two and a half years after the statute of
limitations expired to raise claims against these Defendants. Id. Because Plaintiff
had sufficient facts to be aware of these claims on December 27, 2018, Defendants
argue Plaintiff’s claims are now barred by the two-year statute of limitations. Id.
When considering when the statute of limitations accrues, detailed knowledge
of the level of culpability of each defendant is not required to trigger the statute of
limitations; the focus is instead on “whether the plaintiff knew of facts that would put
a reasonable person on notice that wrongful conduct caused the harm . . . In this
context, a plaintiff must use reasonable diligence in seeking to discover facts giving
rise to a claim for relief.” Alexander, 382 F.3d at 1216 (citations omitted). For
purposes of a Section 1983 claim, the relevant “injury” is the alleged constitutional
violation. Est. of Roemer v. Johnson, 764 F. App’x 784, 790 (10th Cir. 2019). “Thus, a
§ 1983 claim accrues ‘when the plaintiff knows or should know that his or her
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constitutional rights have been violated.’” Id. (citing Smith v. City of Enid By &
Through Enid City Comm’n, 149 F.3d 1151, 1154 (10th Cir. 1998)). And pertinent
here, the statute of limitation accrues separately as to each defendant. Vasquez v.
Davis, 882 F.3d 1270, 1276 (10th Cir. 2018).
The Court finds the statute of limitations did not accrue against Nurse Trujillo
and Dr. Peterson until Plaintiff took Nurse Trujillo’s deposition in 20225 and
discovered facts to suggest wrongful conduct by these Defendants resulting in
constitutional harm. It wasn’t until this deposition testimony that Plaintiff learned
of the timing associated with the care these two Defendants provided Plaintiff on
December 27. It is that timing—in particular the delay—that allegedly caused harm
to Plaintiff in violation of his constitutional rights. Since Plaintiff must plead each
Defendants’ personal participation in the violation of his constitutional rights, the
Court does not agree with Defendants that the mere knowledge of his injuries and
general care provided to him that day was sufficient to put Plaintiff on notice of Nurse
Trujillo’s or Dr. Peterson’s alleged wrongful conduct in the absence of the timing
discovered during the 2022 deposition. See Est. of Roemer, 764 F. App’x at 789-90
(laying out the analytical path a court must follow in determining when deliberate
indifference claims accrue and noting “that a plaintiff who brings a constitutional
claim 	under 	§ 	1983 	can’t 	obtain 	relief 	without 	first 	satisfying 	the 	personal-
5 No party has provided the specific date of the deposition.
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participation requirement.”); see also id. at 792–93 (noting the Tenth Circuit has
“unequivocally 	and 	expressly” 	held 	that 	when 	a 	plaintiff 	brings 	deliberate-
indifference claims against multiple defendants, those claims may accrue separately
for each defendant depending on when the plaintiff knew or had reason to know when
each defendant acted with deliberate indifference).
The Court also finds Plaintiff used reasonable diligence in seeking to discover
the facts which now give rise to the claims against Nurse Trujillo and Dr. Peterson.
While this Court has been critical of Plaintiff’s disorderly and expansive approach to
discovery (Dkt. 152), the Court will afford Plaintiff the benefit of the doubt—but
without condoning Plaintiff’s approach—that at least at some base level, a measure
of reasonable diligence is reflected in his abundant discovery efforts which led to
Nurse Trujillo’s deposition and his discovery of new facts to support the claims
against her and Dr. Peterson.6
For these reasons, the Court respectfully recommends finding Claims 1-3 and
6 against Nurse Trujillo and Dr. Peterson are not time-barred.
6 Because the Court finds the claims against Nurse Trujillo and Dr. Peterson accrued
with the discovery of information from Nurse Trujillo’s 2022 deposition, the Court
does not reach the equitable tolling issue Plaintiff raised. See Fogle v. Pearson, 435
F.3d at 1258 (10th Cir. 2006) (“A § 1983 action accrues when facts that would support
a cause of action are or should be apparent.”); Alexander, 382 F.3d at 1216.
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2. 	Claim 1 (deliberate indifference): Mental Health Claims
Defendants argue Plaintiff’s new mental health claims are time barred. Their
argument for dismissal of these claims is, in total:
Plaintiff 	was 	placed 	on 	suicide 	watch 	between 	December 	19 	and
December 27, 2018, which he alleged in both the original Complaint and
the FAC. (Dkts. 1 at ¶ 27; 21 at ¶ 29.) To the extent he had any issues
with the mental-health care related to his being placed on suicide watch,
he should have brought those claims by December 27, 2020, as he knew
there were mental-health issues at play at that time. Johnson, 925 F.2d
at 1301; Liscio, 83 P.3d at 1153. He failed to do so. Because of that,
Plaintiff’s mental-health claims are time barred.
Dkt. 247 at p.5. Plaintiff argues these new mental health claims are not time-barred
because, under Fed. R. Civ. P. 15(c), the claims relate back to the date of the original
complaint, which was timely filed.
Federal Rule of Civil Procedure 15(c) permits an amended pleading to relate
back to the date of the original pleading in certain instances. Rule 15(c)(1)(B) provides
that an amended pleading will relate back to the date of the original pleading when
“the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B). “The rationale behind Rule 15(c)(1)(B) is that a party who has been
notified of litigation concerning a particular occurrence has been given all the notice
that statutes of limitation were intended to provide.” Kole v. Smith, No. 14-cv-01435-
WJM-KLM, 2015 WL 5026194, at *8 (D. Colo. Aug. 26, 2015) (internal citation
omitted).
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If there is a “factual nexus” between the original and amended complaints, the
amended claim “is liberally construed to relate back to the original complaint if the
defendant had notice of the claim and will not be prejudiced by the amendment.”
Benton v. Bd. of Cnty. Comm’s, No. 06-cv-01406-PSF-MEH, 2007 WL 4105175, at *3
(D. Colo. Nov. 14, 2007) (quoting Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir.
1983)), aff’d, 303 F. App’x 625 (10th Cir. 2008). However, “amendments generally will
not relate back if they interject entirely different facts, conduct, transactions or
occurrences. It is a matter committed to the district court’s discretion to decide
whether a new claim arises out of the same transaction or occurrence.” Kole, 2015 WL
5026194, at *8.
The Court agrees with Plaintiff that Claim 1—deliberate indifference to
serious mental health needs—relates back to the filing of the original complaint
under Rule 15(c). Plaintiff’s original complaint raised allegations concerning his poor
mental health during his confinement (Dkt. 1 at ¶¶24-25, 31, 39, 54, 67), and the
Defendants’ deliberate indifference to his mental well-being (Dkt. 1 at ¶¶76, 78, 80-
93). The allegations in the SAC add greater specificity to the prior allegations. Benton,
2007 WL 4105175, at *3 (“As a general rule, amendments will relate back if they
amplify the facts previously alleged, correct a technical defect in the prior complaint,
assert a new legal theory of relief, or add another claim arising out of the same
facts.”). And ultimately, the Court finds a factual nexus between the allegations in
the 	original 	complaint 	and 	those 	in 	the 	SAC. 	For 	these 	reasons, 	the 	Court
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recommends finding that Claim 1 against the “Medical Defendants”—defined as
Keller, Pruett, Greenwald, Hengy, Rhoad, and Trujillo in the SAC (Dkt. 212 at ¶63,
and p.39 (“First Claim for Relief”)—is not time-barred because Rule 15(c) applies.7
B. 	Claim 6 and the Requirement of a Certificate of Review
Claim 6 lumps three theories under the heading “common law negligence and
malpractice.”8 These include medical malpractice, negligent failure to train or
supervise against Wellpath, and the theory of Wellpath’s vicarious liability for its
employees’ malpractice. Dkt. 212 at ¶¶370-80. In relevant part, Defendants argue
these claims must be dismissed because Plaintiff failed to file a certificate of review
as required by Colo. Rev. Stat. § 13-20-602.
A certificate of review is required under Colo. Rev. Stat. § 13-20-602 for
negligence actions against licensed professionals to “weed out frivolous claims at an
early stage of the judicial process.” Yadan v. Southward, 64 P.3d 909, 912 (Colo. App.
2002). The statute provides, in part:
(1)(a) In every action for damages or indemnity based upon the
alleged professional negligence of . . . a licensed professional, the
plaintiff’s or complainant’s attorney shall file with the court a
certificate of review for each . . . licensed professional named as a
party, as specified in subsection (3) of this section, within sixty
7 The Court does not address whether claim 6 relates back to the original complaint
because, even assuming it does relate back, it concludes there is a different basis for
dismissal.
8 Plaintiff’s original complaint did not assert a negligence or malpractice claim
against these Defendants. See generally Dkt. 1. Plaintiff did not assert a common law
negligence claim against these Defendants until the FAC. Dkt. 21 at p.26.
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days after the service of the complaint, counterclaim, or cross
claim against such person unless the court determines that a
longer period is necessary for good cause shown.
(1)(b) A certificate of review shall be filed with respect to every
action described in paragraph (a) of this subsection (1) against a
company 	or 	firm 	that 	employed 	a 	person 	specified 	in 	such
paragraph (a) at the time of the alleged negligence, even if such
person is not named as a party in such action.
(4) The failure to file a certificate of review in accordance with this
section 	shall 	result 	in 	the 	dismissal 	of 	the 	complaint,
counterclaim, or cross claim.
Colo. Rev. Stat. § 13-20-602 (emphasis added).
Defendants argue Plaintiff should have filed a certificate of review within 60
days of service of his original complaint, but he did not. Dkt. 247 at p. 6. Plaintiff
concedes he did not file a certificate of review within 60 days of serving the original
complaint. Dkt. 256 at p. 4. But he argues the failure to file a certificate of review is
an affirmative defense, which Defendants waived by not raising it in a responsive
pleading. Id. While it is true assertion of the failure to file a certificate of review is an
affirmative defense, the Court does not find these Defendants waived the defense
because they raised it in their responsive pleading to the SAC, i.e., the current motion
to dismiss. See Miller v. Rowtech, LLC, 3 P.3d 492 (Colo. App. 2000); Blake v. United
States, No. 18-cv-00570-RBJ-SKC, 2020 WL 7249090 (D. Colo. Aug. 14, 2020), report
and recommendation adopted in part, rejected in part, 2020 WL 6482691 (D. Colo.
Nov. 4, 2020).
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It is well-established that an “amended complaint supersedes the original
complaint and renders the original complaint of no legal effect.” Franklin v. Kan.
Dep’t of Corr., 160 F. App’x 730, 734 (10th Cir. 2005) (citing Miller v. Glanz, 948 F.2d
1562, 1565 (10th Cir. 1991)). Moreover, it is technically impermissible under the
Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to
dismiss. See Fed. R. Civ. P. 12(b) (stating that a motion to dismiss under the rule
“shall be made before pleading if further pleading is permitted”); Swearingen v.
Honeywell, Inc., 189 F. Supp. 2d 1189, 1193 (D. Kan. 2002).
Other than for considerations under Rule 15(c), when Plaintiff filed the SAC,
it rendered his prior complaints null and void and the SAC became the operative
complaint. Defendants did not file an answer to the SAC; they instead filed the
Motion to Dismiss where they properly raised the defense of Plaintiff’s failure to
comply with Colo. Rev. Stat. § 13-20-602. Thus, Defendants correctly raised this
defense in their Motion, and their having filed an answer or other response to
Plaintiff’s prior complaints did not waive their ability to raise this defense now in
response to the SAC. See Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d 1028,
1069 (D.N.M. 2016), aff'd, 863 F.3d 1226 (10th Cir. 2017) (“[D]efendant can raise the
defense on a motion to dismiss where the facts establishing the affirmative defense
are apparent on the face of the complaint.”).
The first question is whether Plaintiff’s certificate of review was timely. The
Court does not agree with the parties that the 60-day period is tied to service of the
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original 	complaint. 	That 	is 	because 	the 	original 	complaint 	did 	not 	contain 	a
negligence claim against any of these defendants. See Blake v. United States, No. 18-
cv-00570-RBJ-SKC, 2020 WL 6482691, at *5 (D. Colo. Nov. 4, 2020) (“The sixty days
begin to run from the date the complaint first raising the predicate claim is served on
the defendant.”). Instead, the 60-days runs from service of the FAC because the FAC
asserted 	professional 	negligence 	claims 	against 	Defendants 	Keller, 	Pruett,
Greenwald, Hengy, Rhoad, and Wellpath. Dkt. 21 (Fourth Claim for Relief) at ¶¶130-
36; Vreeland v. Vigil, No. 18-cv-03165-PAB-SKC, 2022 WL 911133, at *7 (D. Colo.
Mar. 29, 2022) (rejecting plaintiff’s argument that his certificate of review was filed
within 60 days of service of his third amended complaint because he needed to file it
within 60 days of his second amended complaint which added the malpractice claim).
Certificate of Review Re: Keller, Pruett, Greenwald, Hengy, Rhoad, and Wellpath
Plaintiff served Defendants Keller, Pruett, Greenwald, Hengy, and Rhoad with
the FAC on July 21, 2021, when he filed the pleading. Dkt. 21. Plaintiff, therefore,
was required to file a certificate of review as to them by September 19, 2021. Plaintiff
served Wellpath with the FAC on August 9, 2021. Dkt. 24. Plaintiff, therefore, was
required to file a certificate of review as to Wellpath by October 8, 2021.
Plaintiff did not file a certificate of review until years later, on January 14,
2023. Dkt. 155-3. The statute directs that the failure to file a certificate of review
within the requisite 60-day period “shall result in the dismissal of the complaint.”
Colo. Rev. Stat. § 13-20-602(4) (emphasis added). For these reasons, the Court
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recommends dismissal of the malpractice claims against these Defendants for
Plaintiff’s failure to comply with Colo. Rev. Stat. § 13-20-602(4).9 See Vreeland, 2022
WL 911133, at *7 (dismissing malpractice claim because certificate of review was
filed over six months late).
The Court does not find a basis to excuse Plaintiff’s late filing of the certificate
of review for good cause. Martinez v. Badis, 842 P.2d 245, 250-251 (Colo. 1992) (trial
court must determine whether plaintiffs’ late filing of certificate review could be
excused for good cause). First, Plaintiff has never sought leave to extend the 60-day
period. Second, Plaintiff has ignored the issue of a timely certificate of review since it
was first brought to his attention by Defendants. For example, Defendants filed a
motion for judgment on the pleadings (regarding the FAC) (Dkt. 149) on December
30, 2022. Dkt. 149. That motion argued Plaintiff’s failure to file a certificate of review.
In response, Plaintiff neither sought to extend the time-period to file one, nor did he
file a response to the motion for judgment on the pleadings despite seeking an
extension of time to respond to that motion. Dkt. 158. Instead, on January 14, 2023,
he filed his motion to amend his complaint seeking leave to file the SAC, and he filed
9 The parties also argue over the sufficiency of the content of Plaintiff’s certificate of
review. The Court does not reach those arguments based on its finding that the
certificate of review fails because it was untimely. But the Court does observe that
Plaintiff’s certificate of review suffers the same ills (and for the same reasons) as the
one addressed by the Colorado Supreme Court in Redden v. SCI Colorado Funeral
Servs., Inc., 38 P.3d 75, 82-83 (Colo. 2001), as modified on denial of reh’g (Jan. 14,
2002), and it would require additional inquiry by the Court if it had been timely filed.
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a certificate of review with that motion. Dkts. 155, 155-3. Plaintiff has yet to offer one
reason why he failed to timely file a certificate of review or what good cause there
might be to extend the filing period. The Court finds no good cause under these
circumstances.
Certificate of Review Re: Trujillo and Peterson
The result is the same, albeit the analysis slightly different, as concerns the
two medical Defendants added with the SAC—Defendants Trujillo and Peterson.
These two Defendants were added to the case with Plaintiff’s filing of the SAC on
March 10, 2023. Dkt. 212; see also Dkt. 211. On March 23, 2023, Plaintiff filed his
request for the issuance of summonses for these Defendants (Dkt. 217) and the Clerk
of Court issued those summonses on March 28, 2023 (Dkt. 222). The docket does not
show Plaintiff filed the returns of service for Defendants Trujillo and Peterson. So the
Court cannot precisely determine when Plaintiff served these Defendants with the
SAC. Colo. Re. Stat. § 13-20-602(1)(a) (certificate of review must be filed “within sixty
days after the service of the complaint . . ..”) (emphasis). Nevertheless, these two
Defendants filed the instant motion to dismiss on May 12, 2023, which indicates
service occurred between the March 10 filing of the SAC and the May 12 filing of the
motion to dismiss. Dkt. 247. For the sake of analysis, assuming May 12, 2023, as the
latest possible date of service of the SAC on these Defendants, Plaintiff would have
been required to file a certificate of review by July 11, 2023. Id.
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But Plaintiff still has not filed a certificate of review pertaining to Defendants
Trujillo and Peterson after serving them with the SAC. The only certificate of review
he filed is the one discussed above that he filed on January 14, 2023, which pre-dates
his service of the SAC on Trujillo and Peterson. See DeBuhr v. Hern, No. 15-cv-02613-
PAB-MEH, 2016 WL 9738100, at *2 (D. Colo. Sept. 12, 2016) (“Nothing in the
certificate of review statute suggests that the Colorado General Assembly intended
courts to ignore the rules of procedure regarding when a defendant has been served,
especially given that a plaintiff has sixty days after service to file the certificate.”).
As a result, the Court recommends dismissal of the malpractice claims against
Defendants Trujillo and Peterson because Plaintiff failed satisfy the certificate of
review requirement. See Chubb Grp. of Ins. Companies v. Snowmass Wildcat Fire
Prot. Dist., 51 F.3d 285 (10th Cir. 1995) (“[A]ppellants did not file a certificate of
review nor a motion for an extension of time within sixty days after the service of
their third amended complaint, as required by 13-20-602. Under these circumstances,
we hold that the district court did not err in granting Cottle’s motion to dismiss.”).
Plaintiff has not shown good cause for extending the 60-day period for the reasons
previously stated above.
Direct Negligence Claims Against Wellpath
Despite the above recommendation that Plaintiff’s malpractice claims are
barred by his failure to timely file a certificate of review, the Court notes that neither
his direct negligence claims against Wellpath nor his theory of Wellpath’s vicarious
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liability are correspondingly barred because dismissal of the malpractice claims is on
procedural grounds. Gallegos v. City of Monte Vista, 976 P.2d 299, 301 (Colo. App.
1998) (“[A]lthough an action against the police officer properly would have been
barred by the one-year statute of limitations, a dismissal on that basis would have
been procedural in nature and would not have operated as an adjudication on the
merits; therefore, that dismissal does not bar plaintiff’s action against the City to the
extent it is based on a theory of respondeat superior.”).
Relying on Brown v. Long Romero, 495 P.3d 955 (Colo. 2021), Wellpath first
argues Plaintiffs’ direct negligence claims against it—negligent failure to train or
supervise—should 	be 	dismissed 	because 	Plaintiff 	asserts 	Wellpath’s 	vicarious
liability for the torts of its employees and Wellpath has acknowledged it is vicariously
liable. But Plaintiff correctly points out that this argument is based on a rule that the
Colorado general assembly abrogated when it enacted Colo. Rev. Stat. § 13-21-111.5.
And the Court further notes that Brown is distinguishable.
In Ferrer v. Okbamicael, 390 P.3d 836, 841-42 (Colo. 2017), the Colorado
Supreme Court adopted the McHaffie Rule articulated by the Supreme Court of
Missouri in McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995).
That rule provided that where an employer acknowledges vicarious liability for its
employee’s negligence, a plaintiff’s direct negligence claims against the employer are
barred. Ferrer, 390 P.3d 841-42. But the Colorado general assembly abrogated this
rule when it amended Colo. Rev. Stat. § 13-21-111.5 “to reverse the holding in
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[Ferrer], that an employer’s admission of vicarious liability for any negligence of its
employees bars a plaintiff’s direct negligence claims against the employer.” Colo. Rev.
Stat. § 13-21-111.5(c). “In abrogating Ferrer, the General Assembly repealed the
McHaffie Rule and allowed plaintiffs to simultaneously assert vicarious liability and
direct negligence claims against an employer.” Brown v. Long Romero, 495 P.3d 955,
957 n.2 (Colo. 2021).
Defendants gloss over abrogation of the rule they now ask this Court to apply.
They argue, in their Reply:
[a]lthough C.R.S. § 13-21-111.5(1.5)(a) abrogated Ferrer on September
7, 2021, the Colorado Supreme Court issued its opinion in [Brown] on
September 27, 2021, finding that a “plaintiff’s direct negligence claims
against an employer are not barred where the plaintiff does not assert
vicarious liability for an employee’s negligence.” Brown, 495 P.3d at 961.
That case has not been overturned. According to Brown, Plaintiff cannot
bring both a vicarious liability and a direct negligence claim against
Wellpath.
Dkt. 267 at p.5 (footnotes omitted).
Defendants’ argument takes Brown out of context. In Brown, the plaintiff
brought only direct negligence claims against the employer and did not assert the
employer’s vicarious liability for the employee’s negligence. Brown, 495 P.3d at 956-
57. Since the Plaintiff in Brown did not also assert vicarious liability, the Brown
Court did not address the general assembly’s abrogation of Ferrer because it was not
confronted with both direct negligence claims and the assertion of vicarious liability.
And in any event, the Brown Court acknowledged both the general assembly’s
abrogation of Ferrer and repeal of the McHaffie Rule. Id. at 957 n.2. This all means
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Plaintiff may assert his direct negligence claims against Wellpath because he
simultaneously asserts Wellpath’s direct negligence and its vicarious liability. Colo.
Rev. Stat. § 13-21-111.5(c).
Addressing these procedural matters, however, does not end the inquiry as the
Court now turns to considering the sufficiency of the allegations under Rule 12(b)(6).
C. 	Failure to State a Claim
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Court accepts
the well-pleaded facts as true and views the allegations in the light most favorable to
the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). But
the Court is not “bound to accept as true a legal conclusion couched as a factual
allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
The Twombly/Iqbal pleading standard requires courts to take a two-prong
approach to evaluating the sufficiency of a complaint. Iqbal, 556 U.S. at 678–79. The
first prong requires the court to identify which allegations “are not entitled to the
assumption of truth” because, for example, they state legal conclusions or merely
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recite the elements of a claim. Id. at 678. The second prong requires the court to
assume the truth of the well-pleaded factual allegations “and then determine whether
they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in
examining 	a complaint 	under Rule 	12(b)(6), 	[courts] 	will 	disregard conclusory
statements and look only to whether the remaining, factual allegations plausibly
suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th
Cir. 2012).
1. 	Claim 6: Direct Negligence Claims Against Wellpath
Plaintiff 	asserts 	negligent 	supervision 	and 	training 	against 	Wellpath.
Colorado courts analyze negligent training and supervision claims the same. Handy
v. Cummings, 2014 U.S. Dist. LEXIS 4366 at *12 (D. Colo. 2014) (“Indeed, Colorado
appears to characterize a negligent training and supervision claim as the same
claim.”); Kahland v. Villarreal, 155 P.3d 491, 493 (Colo. App. 2006) (“[A] claim for
negligent hiring, training, and supervision is based on the employer’s failure to
discover that the employee created an undue risk of harm to others.”). “[I]n a claim
for negligent supervision against an employer the plaintiff must prove that the
defendant knew his employee posed a risk of harm to the plaintiff and that the harm
that occurred was a foreseeable manifestation of that risk.” Keller v. Koca, 111 P.3d
445, 446 (Colo. 2005), as modified on denial of reh’g (May 16, 2005). “[T]he plaintiff
must prove that the employer has a duty to prevent an unreasonable risk of harm to
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third persons to whom the employer knows or should have known that the employee
would cause harm.” Id. at 448
In their Motion, Defendants argue Plaintiff’s direct negligence claim fails
under Rule 12(b)(6). The Court agrees that the SAC fails to allege sufficient facts to
plausibly infer Wellpath knew (or should have known) any one of the individual
medical defendants posed a risk of harm to Plaintiff, or that any harms which did
occur were a foreseeable manifestation of that alleged risk. The allegations in this
regard are wholly conclusory and mere restatements of the elements of this claim.
See Dkt. 212 at ¶¶370-80. Keller, 111 P.3d at 446; Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (“The allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a claim for relief.”).
Also, while the SAC contains numerous allegations regarding Wellpath’s lack
of training of its employees, it inconsistently pleads “[t]he individual Medical
Defendants have received professional education and training for the performance of
their respective professions to patients in the community.” Dkt. 212 at ¶373. The
latter conflicts with the conclusory allegations regarding Wellpath’s failure to train
and its knowledge that these employees posed a risk of harm to Plaintiff, thus further
damaging the plausibility of Plaintiff’s direct negligence claims. Because of these
contradictions, the Court does not accept these inconsistent factual claims. McKinley
Med., LLC v. Medmarc Cas. Ins. Co., No. 11-cv-01218-CMA-KMT, 2012 WL 987821,
at *5 (D. Colo. Mar. 23, 2012) (on Rule 12(b)(6) motions, “courts must liberally
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construe and accept as true allegations of fact in the complaint and inferences
reasonably deductive therefrom, [but] they need not accept factual claims that are
internally inconsistent”) (cleaned up).
For these reasons, the Court respectfully recommends the direct negligence
claims against Wellpath be dismissed.
2. 	Section 1983 Claims Under the Fourteenth Amendment
Plaintiff brings three iterations of his deliberate indifference claim: (1) Claim
1: deliberate indifference to serious mental health needs; (2) Claim 2: deliberate
indifference regarding inadequate food and water; and (3) Claim 3: deliberate
indifference regarding serious medical needs – cold exposure and frostbite. The test
for deliberate indifference has both objective and subjective components. Callahan v.
Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). First, the plaintiff must show that
objectively, the harm complained of is “sufficiently serious” to merit constitutional
protection. Id. The Court finds the SAC pleads sufficient facts to support the objective
component, and Defendants do not appear to argue otherwise.
Second, the plaintiff must establish the defendants were subjectively aware of
the substantial risk to the plaintiff’s health or safety and that they acted in purposeful
disregard of that risk. Martinez, 563 F.3d 1082, 1089 (10th Cir. 2009). The subjective
component requires an “inquiry into a [defendant’s] state of mind[.]” Kikumura v.
Osagie, 461 F.3d 1269, 1293 (10th Cir. 2006), overruled on 	other grounds as
recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (quoting
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Farmer v. Brennan, 511 U.S. 825, 838 (1994)). The requisite state of mind is “akin to
recklessness in the criminal law, where, to act recklessly, a person must consciously
disregard a substantial risk of serious harm.” Self v. Crum, 439 F.3d 1227, 1231 (10th
Cir. 2006) (cleaned up). In the Tenth Circuit, a plaintiff must show a defendant
“disregard[ed] the specific risk of harm claimed by the prisoner, not a more general
risk.” Whiteman v. El Paso Crim. Just. Ctr., No.10-cv-02430-WYD-KLM, 2011 WL
2610202, at *4 (D. Colo. July 1, 2011).
And as always, to state a claim in federal court, a complaint must explain what
each defendant did to the plaintiff; when the defendant did it; how the defendant’s
action harmed the plaintiff; and what specific legal right the plaintiff believes the
defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty.
Just. Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007); see also Bennett v. Passic, 545 F.2d
1260, 1262–63 (10th Cir. 1976) (“Personal participation is an essential allegation in
a § 1983 claim.”).
a. Claim 1: Deliberate Indifference to Serious Mental Health Needs
Plaintiff 	asserts 	this 	claim 	against 	Defendants 	Keller 	(mental 	health
professional), Pruett (mental health professional), Greenwald (registered nurse),
Hengy (registered nurse), Rhoad (registered nurse), and Trujillo (registered nurse).
Dkt. 212 at ¶63. The thrust of the supporting allegations appears in paragraphs 63-
84 and 201-17 of the SAC. See Id.
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Nurse Greenwald
The only allegations specific to Nurse Greenwald are that she was part of the
nursing and mental health staff, she personally observed Plaintiff on four dates in
December 	2018, 	and 	she 	observed 	Plaintiff 	in 	providing 	“CIWA 	medications,
conducting CIWA assessments, and doing purported ‘welfare’ checks on a daily basis.”
Id. at ¶¶42, 63-65. Aside from these allegations, the remaining allegations devolve
into group pleading; such as, for example: (1) “The Medical Defendants observed that
Mr. Pinto-Rios was ‘gravely disabled[;]’” (2) “None of the Medical Defendants checked
or followed up to make sure Mr. Pinto-Rios was receiving the treatment he needed[;]”
and (3) other allegations about what “each of the Defendants” knew, was aware of, or
had notice about. Id. at ¶¶80, 84, 206-07, 209; cf. 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.”) (citing Snyder v.
ACORD Corp., 2016 WL 192270, at *3 (D. Colo. Jan. 15, 2016), aff’d 684 F. App’x 710
(10th Cir. 2017) (repeatedly referencing 113 defendants as a group when only a small
minority engaged in certain conduct violated Rule 8)).
Without more factual allegations to support Nurse Greenwald’s subjective
awareness of a substantial risk of harm to the Plaintiff’s mental health or safety, or
to support that Nurse Greenwald acted in purposeful disregard of that risk, the SAC
fails to allege a plausible claim against her. To be sure, out of 380-numbered
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allegations in the SAC, the pleading only refers to Nurse Greenwald personally in
five of them. Id. at ¶¶15, 42, 63-65. The drafting makes obvious that the conclusory
and group-pleaded allegations are Plaintiff’s only link tying Nurse Greenwald to this
claim. While “[s]pecific facts are not necessary” under the notice pleading standard,
at least sufficient facts are to survive a Rule 12(b)(6) motion. See Erickson v. Pardus,
551 U.S. 89, 93 (2007); Khalik, 671 F.3d at1191 (“[I]n examining a complaint under
Rule 12(b)(6), [courts] will disregard conclusory statements[.]”). Disregarding the
conclusory and group-pleaded allegations, the SAC fails to allege a plausible claim
against Nurse Greenwald and the Court respectfully recommends dismissal of Claim
1 against this defendant.
Nurses Hengy, Rhoad, and Trujillo
The identical analysis, conclusion, and recommendation apply to the factually
sparse and conclusory/group-pleaded allegations against Nurses Hengy, Rhoad, and
Trujillo. The SAC relies on the same allegations against these Defendants as it does
for Nurse Greenwald. See Dkt. 212 at ¶¶42, 63-65, 201-17. The Court respectfully
recommends dismissal of Claim 1 against these defendants.
MHPs Keller and Pruett
Concerning mental health professionals Keller and Pruett, Defendants argue
the allegations show only that Keller and Pruett continuously provided Plaintiff with
mental health care during his detention, and do not demonstrate they consciously
disregarded his serious mental health needs. The Court agrees.
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The SAC alleges Pruett and Keller are mental health professionals but they
are not “licensed to diagnose conditions or order medications.” Dkt. 212 at ¶¶13-14,
44. Each of them personally assessed and observed Plaintiff on multiple days in
December 2018 while doing suicide watch assessments. Id. at ¶¶71-72. Pruett noted
many things about Plaintiff’s erratic behavior or condition, and on December 18 made
a note to refer Plaintiff to Dr. Reynolds, a psychiatrist. Id. at ¶¶72-73. But Plaintiff
“was never referred to Dr. Reynolds.” Id. at ¶74.
Three 	days 	later, 	on 	December 	21, 	Keller 	emailed 	Pruett 	and 	jail
administration that Plaintiff was “psychotic, fighting aliens in his cell, eating feces,
and that she had medical records showing his past mental health treatment.” Id. at
¶75. Keller then conducted suicide watch assessments of Plaintiff on multiple days
and noted his erratic behavior and condition. Id. at ¶76. On December 24, Pruett got
Plaintiff to take Haldol and Cogentin but he spit the medications out. Id. at ¶77.
The SAC then reverts to group pleading, alleging:
80. 	The 	Medical 	Defendants 	observed 	that 	Mr. 	Pinto-Rios 	was
“gravely disabled.”
* * *
82. 	Despite possessing knowledge of his psychotic condition and being
“gravely disabled” by mental illness, none of the providers acted
to ensure that Mr. Pinto-Rios received access to providers capable
of treating his severe mental illness or providing him with
necessary medications.
83. 	None of the Medical Defendants made a referral for Mr. Pinto-
Rios to be seen by Dr. Reynolds or put him on her schedule to be
seen so that his bipolar/psychosis could be treated despite being
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aware of his psychotic state and being “gravely disabled” by
mental illness.
84. 	None of the Medical Defendants checked or followed up to make
sure Mr. Pinto-Rios was receiving the treatment he needed.
Id.
To reiterate, to survive Rule 12(b)(6) on his claims for deliberate indifference,
the SAC must include sufficient facts to plausibly establish (in relevant part) the
subjective component of the claim. The SAC fails to do so with Keller and Pruett.
There are insufficient factual allegations regarding Keller’s subjective intent. And
the closest the SAC comes with Pruett are the allegations that Pruett “made a note
to refer [Plaintiff] to [Dr. Reynolds[,]” but Plaintiff “was never referred to Dr.
Reynolds[.]” Dkt. 212 at ¶¶73-74. But the latter allegation is passive, which is
problematic because:
. . . § 1983 . . . [is a] vehicle[ ] for imposing personal liability on
government officials, we have stressed the need for careful attention to
particulars, especially in lawsuits involving multiple defendants. It is
particularly important that plaintiffs make clear exactly who is alleged
to 	have 	done 	what 	to 	whom, 	... 	as 	distinguished 	from 	collective
allegations. When various officials have taken different actions with
respect to a plaintiff, the plaintiff's facile, passive-voice showing that his
rights ‘were violated’ will not suffice. Likewise insufficient is a plaintiff’s
more 	active-voice 	yet 	undifferentiated 	contention 	that 	‘defendants’
infringed his rights.
Pahls v. Thomas, 718 F.3d 1210, 1225–26 (10th Cir. 2013) (cleaned up).
The SAC does not allege sufficient facts to establish, for example, that it was
Pruett or Keller (or someone else) who failed to make the referral—it simply alleges
Plaintiff “was never referred”—or facts to establish why the referral never occurred,
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i.e., out of deliberate indifference or mere inadvertence. See Estelle v. Gamble, 429
U.S. 97, 105-06 (1976) (noting an inadvertent failure to provide adequate medical
care fails to state a deliberate indifference claim); Perkins v. Kansas 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.”). And there are insufficient factual allegations to plausibly infer either of
these 	Defendants’ 	subjective 	intent. 	For these 	reasons, 	the 	Court 	respectfully
recommends dismissal of Claim 1 against Keller and Pruett.
b. Claim 2: Deliberate Indifference re: Inadequate Food and Water
Plaintiff asserts this claim against all Defendants.10 He generally alleges that
“[o]ver 10 ten (sic) days, Plaintiff did not receive adequate food and water and his
physical condition deteriorated.” Dkt. 212 at ¶85. The problem with this claim, again,
is its group pleading, to wit: “Each on-duty Defendant during this period failed to
provide sufficient food or water to Mr. Pinto Rios, failed to take appropriate measures
10 Because Plaintiff asserts this claim against “all Defendants,” it purportedly
includes Dr. Peterson. However, the allegations in the SAC specific to him focus on
the cold and frostbite claim only. See Dkt. 212 at ¶¶185-87, 189, 196, 327-38. The
Court, therefore, does not construe Claim 2 as being asserted against Dr. Peterson.
To the extent the Court misconstrues the SAC in this regard, the claim fails Rule
12(b)(6) because it states no factual allegations to establish Dr. Peterson’s personal
participation in providing for Plaintiff’s nourishment, diagnosing related conditions,
or his subjective intent.
The Court also does not construe Claim 2 as being asserted against Wellpath for the
reasons articulated in Defendants’ Motion, which Plaintiff did not address in his
Response.
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for food and water in light of his mental health condition, [and] failed to take steps to
remedy his emaciated/dehydrated state[.]” Dkt. 212 at ¶156.
Many other allegations supporting this claim are conclusory and merely recite
the legal elements of the claim. Id. at ¶¶218-30. This is problematic considering the
large number of Defendants in this case between the medical defendants and the jail-
personnel defendants. See Pahls, 718 F.3d at 1225–26.
The Nurses
In terms of any personal involvement, the SAC alleges MPHs Keller and
Pruett, and Nurses Greenwald, Hengy, Rhoad, and Trujillo, “personally observed”
Plaintiff on various days over the 10-day period. Dkt. 212 at ¶¶63-65, 71-72, 76. But
this claim fails Rule 12(b)(6) as against Nurses Trujillo, Greenwald, Hengy, and
Rhoad for the same reasons the Court found Claim 1 fails against Nurses Greenwald,
Hengy and Rhoad—the allegations against these Defendants are factually sparse and
conclusory or group-pleaded allegations which fail to plausibly allege the subjective
component of the deliberate indifference claim.11 See, supra Section 3(a); Dkt. 212 at
¶¶42 63-65, 218-30.
11 The Court includes Nurse Trujillo here because the allegations against her on
Claim 2 are the same as those alleged against the other three nurses. Dkt. 212 at
¶¶42 63-65, 218-30. While the SAC contains additional allegations against Nurse
Trujillo, those allegations involve Claim 3 regarding Plaintiff’s exposure to cold, and
frostbite and are addressed in a later section of this Recommendation. Id. at ¶¶182-
83, 186-87, 195-96.
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The Mental Health Professionals
The same is true of this claim as it pertains to MPHs Keller and Pruett. While
there are additional factual allegations against these Defendants regarding their
respective personal observations or knowledge of Plaintiff not eating or drinking,
being without water for days, being thirsty, or being confused and wobbly (Dkt. 212
at ¶¶72, 93-94 (Pruett); 96, 98, 99 (Keller)), the SAC contains only conclusory
allegations to plausibly infer they acted in purposeful disregard of the risks to
Plaintiff resulting from a lack of food or water.
First, the SAC fails to allege sufficient facts regarding whether it was either of
these Defendants’ responsibility or within their authority to provide meals and drink
to Plaintiff as a pre-trial detainee, versus the obligations of the law enforcement
defendants who ran and oversaw the facility. Second, to the extent that Plaintiff
alleges his dehydration and emaciation required additional medical care that was not
provided, these allegations are conclusory. See Dkt. 212 at ¶¶96 (alleging “[c]onfusion
and disorientation are classic signs of dehydration and/or malnourishment.”); 98
(alleging 	similar); 	99 	(“This 	was 	likely 	a 	continuing 	medical 	issue 	related 	to
insufficient 	food 	and 	water.”); 	222 	(“These 	Defendants 	acted 	with 	deliberate
indifference to Mr. Pinto-Rios’ obviously serious medical needs and constitutional
rights in seeing obvious signs and symptoms of dehydration, malnourishment, and
emaciation, and they failed to take simple and easy action to abate the harms.”).
Moreover, these conclusory allegations conflict with the SAC’s allegation that Keller
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and Pruett are mental health providers who are not licensed to diagnose conditions
or order medications. Id. at ¶44. Because of these contradictions, the Court does not
accept these inconsistent factual claims. McKinley Med., LLC, 2012 WL 987821, at
*5.
In sum, neither the conclusory allegations nor the allegations regarding
Keller’s 	and 	Pruett’s 	respective 	personal 	observations 	or 	notations 	regarding
Plaintiff’s lack of food or water include sufficient facts to plausibly allege these
Defendants’ respective subjective intent. The Court respectfully recommends the
Motion be granted as to Claim 2.
c. 	Claim 3: Deliberate Indifference Re: Serious Medical Need – Cold
Exposure and Frostbite
Plaintiff asserts this claim against MPH Keller, Nurse Trujillo, and Dr.
Peterson. Dkt. 212 at p.44. This claim involves allegations that on or about December
26 and 27, 2018, “temperatures in Mr. Pinto-Rios[’] cell dropped to below freezing”
and he suffered frostbite to his fingers, feet, and nose that began with his nose the
morning of December 26. Id. at ¶¶328-29. “Each of the Defendants entered Mr. Pinto-
Rios’ cell or otherwise observed the frostbite on Mr. Pinto-Rios’ body on December 26
or 27, 2018, but failed to take appropriate action to abate the jail or medical
condition(s), including calling for maintenance, transferring Plaintiff to another cell,
calling for medical attention, or referring Mr. Pinto-Rios out for urgent medical care.”
Id. at ¶330.
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MPH Keller
Defendants astutely point out that the only allegation in the SAC specific to
Keller’s role in this instance of alleged deliberate indifference is the following:
Defendant Wenzel and Hobaugh are believed to have conducted the med
pass together that morning [December 27], with Defendant Keller and
Nurse Trujillo. Each of these persons would have been unequivocally
aware that Mr. Pinto-Rios’s fingers were obviously discolored and purple
and/or black, to an extreme that obviously indicated frostbite was
present, no later than approximately 7:10 a.m. on December 27, 2018.
Id. at ¶183. Yet again, the SAC pleads a wholly conclusory allegation.
The SAC pleads no additional facts to plausibly infer Keller’s “unequivocal
awareness” 	of 	the 	condition 	of 	Plaintiff’s 	fingers. 	For 	example, 	there 	are 	no
allegations she looked at his fingers, examined his extremities, or documented her
observations of his physical condition when she “conducted the med pass” that
morning.12 And again, the SAC alleges Keller is a mental health provider who is not
licensed to diagnose conditions. Id. at ¶44. Considering the latter allegation, and
without 	more, 	the 	SAC 	pleads 	insufficient 	facts 	in 	support 	of 	the 	subjective
component vis-à-vis Keller. See Mata v. Saiz, 427 F.3d 745, 751 (the official must both
be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and she must also draw the inference).
12 The SAC is also internally conflicting—it alleges in paragraph 182 that Deputy
Hobaugh and Trujillo performed the med pass on December 27, but then alleges in
the next paragraph (¶183) that Wenzel and Hobaugh conducted the med pass that
morning with Nurse Trujillo and MPH Keller.
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Nurse Trujillo
The same pertains to the allegations against Nurse Trujillo. The SAC alleges
Nurse Trujillo performed the med pass at 7:08am on December 27, saw Plaintiff’s
frostbite, and that she “testified at her deposition that she contacted Dr. Peterson
immediately after discovering the frostbite.”13 Dkt. 212 at ¶¶182-83, 185-86.
The allegation that Nurse Trujillo acted “immediately” to contact Dr. Peterson
after she discovered Plaintiff’s frostbite negates any plausible pleading of the
subjective component of the deliberate indifference claim; the SAC itself pleads that
Nurse Trujillo did not delay informing Dr. Peterson of Plaintiff’s condition.14 On these
allegations, there are insufficient facts to support Plaintiff’s claim that Nurse Trujillo
ignored any risks to Plaintiff’s health by not attempting to secure Dr. Peterson’s
immediate care. The Court respectfully recommends dismissal of Claim 3 against
Nurse Trujillo as a result.
13 The Court considers this deposition testimony because Plaintiff pleaded it in the
SAC.
14 Plaintiff makes additional allegations against Nurse Trujillo to suggest that since
Dr. Peterson didn’t examine Plaintiff until 2:25pm, Nurse Trujillo may not have
talked to him immediately after she discovered the frostbite that morning, as the SAC
alleges. Dkt. 212 at ¶187. The SAC also includes allegations accusing Nurse Trujillo
of falsifying her chart note for that day writing that she discovered his frostbite
during the afternoon. Id. at ¶195. But these allegations are pure speculation and are
not supported by factual allegations. Further, whether Nurse Trujillo discovered
Plaintiff’s frostbite that morning or that afternoon (Id. at ¶195) does not negate the
SAC’s 	factual 	allegation 	that 	she 	acted 	“immediately” 	to 	inform 	Dr 	Peterson
whenever it was she discovered the frostbite.
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Dr. Peterson
Viewing the allegations in the SAC in the light most favorable to Plaintiff,
the Court does find the SAC states a plausible claim (Claim 3) against Dr. Peterson.
A plaintiff may establish deliberate indifference by showing that the defendants’
delay in providing medical treatment caused substantial harm. Mata, 427 F.3d at
751. Even a brief delay in treatment may be unconstitutional. See, e.g., Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (a delay of “several hours” in taking
an inmate with chest pains to a hospital was unconstitutional).
Regarding Dr. Peterson, the well-pleaded allegations are that Nurse Trujillo
“immediately” contacted Dr. Peterson about Plaintiff’s frostbite after she discovered
it during the 7:08am morning med pass. Dkt. 212 at ¶¶182-83, 185-86. Video shows
Dr. Peterson did not examine Plaintiff until 2:25pm. Id. at ¶189. EMTs “were called”
at about 3:00pm and arrived shortly thereafter to take Plaintiff to the hospital. Id. at
¶190.
The SAC includes sufficient facts to plausibly allege that a period of over seven
hours passed between the time Nurse Trujillo notified Dr. Peterson of Plaintiff’s
frostbite, and the time Dr. Peterson arrived to examine him. Id. at ¶¶182-83, 185-87,
189, 191. During that over seven-hour period, the SAC alleges Plaintiff’s condition
worsened—his fingers turned darker in color, skin tissue on his fingers and face was
dying and started to harden, the tips of all his fingers (excluding thumbs) and some
of his toes were later amputated, and the remaining damage to his fingers and toes
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took months to heal while he lived with continuous open wounds. Id. at ¶¶188, 198-
99. Finally, the SAC alleges this delay in care “prevented Plaintiff from getting timely
care immediately necessary to prevent further harm and/or to recover the damaged
frostbitten tissue, which ultimately resulted in loss/amputation of his fingers and
other frostbite harms, including physical and emotional suffering.” Id. at ¶335.
These facts are sufficient to support the claim that Dr. Peterson, as the staff
physician (Dkt. 212 at ¶42), caused Plaintiff substantial harm by delaying medical
care for over seven hours, and thus, he was deliberately indifferent to Plaintiff’s
serious medical needs. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (a
delay in medical care is a constitutional violation “where the plaintiff can show that
the delay resulted in substantial harm. . . . We have held that the substantial harm
requirement may be satisfied by lifelong handicap, permanent loss, or considerable
pain.”) (cleaned up). The Court respectfully recommends the Motion be denied as to
Claim 3 against Dr. Peterson.
* 	* 	*
For the reasons shared above, the Court respectfully recommends15 the Motion
to Dismiss be GRANTED IN PART and DENIED IN PART, as follows:
15 	ADVISEMENT: 	The 	parties 	have 	14 	days 	after 	service 	of 	this
recommendation 	to 	serve 	and 	file 	any 	written 	objections 	to 	obtain
reconsideration by the District Judge to whom this case is assigned. Fed. R.
Civ. P. 72(b). The party filing objections must specifically identify those
findings or recommendations to which the objections are made. The District
Court need not consider frivolous, conclusive, or general objections. A
party’s failure to file such written objections to proposed findings and
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1. 	Claim 6 be dismissed in its entirety;
2. 	Claims 1-2 be dismissed as against the medical defendants; and,
3. 	Claim 3 be dismissed against Defendants Pruett, Keller, Greenwald,
Hengy, Rhoad, and Trujillo, but remain against Defendant Peterson.
DATED: December 6, 2023.
BY THE COURT:
S. Kato Crews
United States Magistrate Judge
recommendations contained in this report may bar the party from a de novo
determination 	by 	the 	District 	Judge 	of 	the 	proposed 	findings 	and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28
U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the
proposed findings and recommendations within 14 days after being served
with a copy may bar the aggrieved party from appealing the factual findings
and legal conclusions of the Magistrate Judge that are accepted or adopted
by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
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