Hibbs v. Mercer

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JOHN HIBBS, Plaintiff, v. RICK MERCER, CHARISSE UPSHAW, NICOLE SMITH, MISTY ZADE, and SIOBHAN BURTLOW, Defendants.

Civil Action No. 21-cv-00166-RMR-NRN

United States District Court, D. Colorado

December 2, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV P. 12(B)(6) (Dkt. #58)

N REID NEUREITER United States Magistrate Judge

This matter is before the Court on an Order (Dkt. #59) from Judge Regina M. Rodriguez referring Defendants' Motion to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P 12(b)(6) (the “Motion to Dismiss”). (Dkt. #58.) Plaintiff John Hibbs responded to the Motion to Dismiss (Dkt. #63) and Defendant replied. (Dkt. #65.) The Court heard argument on October 14, 2022. (See Dkt. #67.) The Court has taken judicial notice of the docket and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.

PROCEDURAL HISTORY

Mr. Hibbs is an incarcerated inmate at the Fremont Correctional Facility (“FCF”). He initiated this civil rights suit pro se on January 19, 2021 asserting a 42 U.S.C. § 1983 claim against all Defendants for deliberate indifference to a serious medical need in violation of the Eighth Amendment. Defendants moved to dismiss all claims against them, arguing that the Mr. Hibbs had failed to state a claim and that they were entitled to qualified immunity. (Dkt. #15.)

On January 23, 2022, Magistrate Judge Kathleen M. Tafoya^[1] issued a Report and Recommendation (Dkt. #28) recommending that Plaintiff's Eighth Amendment claim against Defendant Mercer arising from an incident that occurred on February 17, 2019 proceed, but all other claims should be dismissed. Defendants did not object to Judge Tafoya's recommendation. On January 18, 2022, Judge Regina M. Rodriguez accepted and adopted Judge Tafoya's recommendation. (Dkt. #32.) Judge Rodriguez further ordered that Mr. Hibbs could file an amended complaint.

Mr. Hibbs filed his Amended Complaint (Dkt. #40) on February 25, 2022, and Defendants moved for more definite statement under Rule 12(e). (Dkt. #43.) The undersigned granted that motion and ordered Mr. Hibbs to file a Second Amended Complaint. (Dkt. #45) and extended the deadline for him to file to May 16, 2022. The Court also granted a motion to appoint counsel for Mr. Hibbs. (Dkt. ## 45, 47-48.)

Counsel for Mr. Hibbs entered their appearance and filed a Second Amended Complaint on July 21, 2022. The subject motion to dismiss followed.

BACKGROUND^[2]

On February 17, 2019, Mr. Hibbs reported to the FCF medical center declaring that he was suffering a medical emergency with symptoms of nausea, dizziness, sweating, chest pains, fever, and breathing issues. (Dkt. #52 at 1, ¶ 2.) He informed Defendant Mercer, a nurse at the medical center, that he had vomited blood earlier that morning and was unable to keep fluid down. (Id.; see also id. at 4, ¶ 19.) Mr. Hibbs says he was denied any treatment at that time; in fact, the interaction was not logged and Mr. Hibbs was not even assessed despite reporting concerning symptoms. (Id. at 4-5, ¶¶ 16, 20.) He further alleges that, at the time Defendant Mercer refused to provide any medical treatment, he was already aware that Mr. Hibbs suffered from several medical issues including chronic obstructive pulmonary disease (“COPD”), diabetes mellitus, hypertension, hyperlipidemia, and chronic back pain. (Id. at 4, ¶ 17.) Importantly, to treat his chronic back pain, Mr. Hibbs was prescribed Mobic, a non-steroidal anti-inflammatory drug (“NSAID”). (Id. at 4, ¶ 17.)

After being denied any medical care, Mr. Hibbs returned to his cell and vomited blood again later that afternoon. (Id. at 5, ¶ 21.) That night, Mr. Hibbs' cellmate woke him for the nightly count. Mr. Hibbs vomited thick, black blood onto the wall, sink, and toilet. (Id., ¶ 22.) Mr. Hibbs' cellmate informed security who requested that Mr. Hibbs exit his cell. When leaving his cell, Mr. Hibbs vomited “coffee ground emesis” and lost consciousness. (Id., ¶ 22.)

Mr. Hibbs was taken to the hospital for emergency medical care. (Id., ¶ 23.) After being seen in the emergency room at St. Thomas More Hospital, he was moved to Penrose-St. Francis Hospital where he received two esophagogastroduodenoscopies (“EGD”). (Id., ¶ 24.) Hospital physicians diagnosed Mr. Hibbs with an upper gastrointestinal tract (“GI”) bleed caused by severe esophagitis-a result of taking Mobic. (Id., ¶¶ 24-25.)

To treat Mr. Hibbs' esophagitis, the hospital doctors placed a clip on his esophagus and gave him proton-pump inhibitors. (Id., ¶ 25.) Mr. Hibbs remained in the hospital for five days. (Id., ¶ 26.) Upon release, doctors prescribed a follow-up appointment and EGD. Doctors also instructed him to continue treating his esophagitis with prescribed proton-pump inhibitors. (Id.)

Mr. Hibbs returned to FCF and attempted to “seek medical treatment for further medical issues” stemming from his esophagitis. (Id. at 6, ¶ 27.) He claims that Defendant Mercer and Defendant Upshaw, another nurse, repeatedly denied him additional care until early April 2019. (Id. at ¶¶ 27-28.) However, even when Defendants Mercer and Upshaw did see him in April, they told Mr. Hibbs he did not require further treatment despite Mr. Hibbs complaints of further pain.

Mr. Hibbs claims that he has continued to seek medical treatment for over a year and is continuously turned away from the medical clinic. To date, FCF still has not permitted Mr. Hibbs to return to the hospital for a follow up EGD or to treat other painful medical issues resulting from his esophagitis. (Id. at ¶ 29.) He alleges that the denial of treatment is, in part, due to a custom, policy, or practice of deliberately indifferent medical care at FCF and is attributable to Defendants Smith, Zade, and Burtlow.^[3]

Based on these allegations, Mr. Hibbs asserts three claims for relief. First, he alleges that Defendant Mercer violated 42 U.S.C. § 1983 by being deliberately indifferent to his medical emergency on February 17, 2019. Second, he asserts that Defendants Mercer and Upshaw violated § 1983 because, since February 17, 2019, they have repeatedly refused to provide him treatment for his ongoing medical issues despite a prescribed course of treatment from hospital doctors.^[4] Finally, Mr. Hibbs asserts a Monell claim against Defendants Smith, Zade, and Burtlow in their official capacities for failure to train and failure to supervise FCF medical care. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Defendants move to dismiss Mr. Hibbs second and third claims, but do not challenge Mr. Hibbs' first claim against Defendant Mercer based on the February 17, 2019 incident, which Judge Rodriguez has already allowed to proceed. Defendants also argue that Defendants Mercer and Hibbs are entitled to qualified immunity.

LEGAL STANDARDS

I. Failure to State a Claim Upon Which Relief Can be Granted

To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled allegations as true, purely conclusory statements are not entitled to this presumption. Id. at 678, 681. Therefore, so long as the plaintiff pleads sufficient factual allegations such that the right to relief crosses “the line from conceivable to plausible,” he has met the threshold pleading standard. Twombly, 550 U.S. at 556, 570.

II. Qualified Immunity

“Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). To determine resolve a government official's qualified immunity claims, a court must “The plaintiff must “decide whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Pearson, 555 U.S. at 232. A reviewing court has discretion to address either prong first. Id. at 236.

Raising a qualified immunity defense in a motion to dismiss “subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Sayed v. Virginia, 744 Fed.Appx. 542, 545-46 (10th Cir. 2018) (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)). “At the motion to dismiss stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.” Id. at 546 (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)). Accordingly, to survive a motion to dismiss, a plaintiff “need ‘only allege enough factual matter' to state a claim that is ‘plausible on its face and provide fair notice to a defendant.'” Id. (quoting Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013)).

ANALYSIS

I. Deliberate Indifference Claim Against Mercer and Upshaw for Refusing Medical Treatment After February 17, 2019

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