Licerio v. Officer R. Lamb

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

Civil Action No. 20-cv-00681-WJM-STV

United States District Court, D. Colorado

July 15, 2021

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Scott T. Varholak United Stated Magistrate Judge

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

I. BACKGROUND^[6]

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

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

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

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

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

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

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

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

Plaintiff alleges:

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

[Id. at 18; see also Id. at 19] Plaintiff further alleges that John Doe Person at ACDF and John Doe Person at Hospital acted “in concert with . . . at least one other person, including [Defendant John Doe Hospital Radiologist and Defendant Jane Doe Hospital Doctor].” [Id. at 20] Plaintiff alleges that John Doe Person at...