N. REID NEUREITER, Magistrate Judge.
This case is before the Court pursuant to Orders issued by Judge Raymond P. Moore (Dkt. #96 and #135) referring Defendants Correctional Health Partners ("CHP") and Mary Margaret Towne's Motions to Dismiss Plaintiff's Third Amended Prisoner Complaint. (Dkt. #95 and #129.) The Court has carefully considered the motions, Plaintiff John Stoops' responses (Dkt. #128 and #136), and CHP and Ms. Towne's replies. (Dkt. #134 and #138.) On May 2, 2019, the Court heard argument on the subject motions. (Dkt. #171.) The Court has taken judicial notice of the Court's file, and considered the applicable Federal Rules of Civil Procedure and case law. Being fully informed, and for the reasons addressed more fully herein, the Court RECOMMENDS that the motions to dismiss (Dkt. #95 and #129) be GRANTED.
The following allegations are taken from Mr. Stoops' Third Amended Prisoner Complaint. (Dkt. #94.) Mr. Stoops is a prisoner in the custody of the Colorado Department of Corrections ("CDOC") at the Sterling Correctional Facility ("SCF") in Sterling, Colorado. He asserts that on June 9, 2015, he had an epileptic seizure while pushing a food cart, and as a result he fell and broke his hip. (Id. at 5 and 7.) Although that same day he was taken to SCF Clinical Services in a wheelchair, he ultimately was sent back to his living unit without his hip being treated.
Mr. Stoops alleges that despite asking various SCF staff that his hip be examined over the next few days, and filing "at least six" medical kites, "[m]edical refused to examine [him]," and he was not called back to SCF Clinical Services until June 13, 2015, when he was given a wheelchair. (Id. at 5.) According to Mr. Stoops, this delay "force[d] [him] to walk on a broken hip from 6-9-2017 [sic] until 6-13-15," and "turn[ed] a hairline fracture into a major break requiring a hip replacement." (Id., and at 8 ¶ 7.) On June 14, 2015, he was taken by ambulance to Denver Health Medical Center ("Denver Health"). (Id. at 6.) There, Mr. Stoops alleges that two physical therapists "broke [his] hip worse by yanking me in the air, using belts they had attached to the [sic] my waist and having me hold on to a walker." (Id. at 6 and 11-12.) He states he landed on his broken hip and screamed in pain. Mr. Stoops was then transferred to Denver Health's Correctional Care Unit, where he waited "more than 48 hrs," or until June 16, 2015, before undergoing hip replacement surgery. (Id. at 6 and 11 ¶ 25.) Mr. Stoops asserts it was "Denver Health Care [that] refused to operate until 6-16-15." (Id. at 6.)
CHP is an organization that is allegedly responsible for reviewing and approving medical treatment for CDOC inmates. Mr. Stoops has asserted one claim against CHP, alleging it violated his Eighth Amendment Constitutional right to be free from cruel and unusual punishment due to the alleged delay in treatment and surgery for his broken hip. (Id. at 13.) Although not entirely clear, this claim appears to be premised on CHP knowing "there was a problem with the medical department" at SCF, but not doing anything to correct it. (Id. ¶ 28.) He asserts that after physicians at the Sterling hospital tell SCF that an inmate needs surgery, the inmate nevertheless has to wait for the surgery because the CHP "has not okayed it." (Id. ¶ 29.) According to Mr. Stoops, "[b]ecause of the defendants' failure to take care of the problems and make changes that exist in S.C.F. medical dept., I was forced to suffer and have to live with repercussions of that incident for the rest of my life." (Id.)
Mr. Stoops further alleges that "[e]ach of the above named defendants [presumably including CHP] is in [a] position of power and/or authority to make changes in this facility's [i.e. SCF's] way of doing things when it comes to medical care, but do nothing about it." (Id. at 14 ¶34.) This, according to Mr. Stoops, allows "the [SCF] medical staff . . . [to] break the law." (Id.) With respect to CHP, Mr. Stoops specifically alleges that it "has the authority to choose who they insure, and though there have been several complaints involving the above named defendants C.H.P. continues to insure them. Without their [CHP's] insurance they could not work here." (Id. ¶ 36.)
In his response brief, Mr. Stoops states he "not only allege[s] that C.H.P. was in violation of my constitutional rights by not doing anything about the quality of medical care received at the S.C.F. [and] by not doing anything as an insurance provider, but also [that] . . . C.H.P.[] fail[ed] to schedule inmates medical care in a timely manner." (Dkt. #128 ¶ 5.) He argues "the time delay, as well as the numerous denials, from CHP, constitutes an unwritten rule." (Id. ¶ 16.)
CHP argues that Mr. Stoops has failed to state a claim against it because Mr. Stoop's complaint "lacks adequate factual allegations" in three respects. (Dkt. #95 at 2.) Specifically, CHP asserts Mr. Stoops has failed to adequately allege (1) "CHP's participation in an allegedly unconstitutional custom, practice, or policy of CDOC," (2) "CHP's alleged deliberate indifference," or (3) "how CHP could possibly have been in a position to act to remedy the alleged constitutional violations Plaintiff claims he suffered." (Id.)
In neither his original complaint dated June 5, 2017, nor in his next two Amended Prisoner Complaints dated July 5, 2017 and October 2, 2017, respectively, did Mr. Stoops name Defendant Mary Margaret Towne (Nurse Towne) as a defendant. (Dkt. ##1, 7, and 12.) Instead, these early complaints simply identified two Jane Doe physical therapists who worked for Denver Health, indicating they were being sued both in their personal and official capacities. Mr. Stoops did not sue Denver Health.
On January 9, 2018, the Court issued a show cause order with respect to the two Jane Doe physical therapists, and set a show cause hearing on March 19, 2018. (Dkt. #37.) The Court reminded Mr. Stoops that "it is [his] responsibility to name and serve any party he wishes to include as a defendant in this lawsuit." (Id.) After being granted leave on April 6, 2018 to further amend his complaint (Dkt. #53), Mr. Stoops filed an amended complaint on April 19, 2018 that for the first time named "Mary Margaret" and "D. Towne" as the Jane Doe physical therapists who worked for Denver Health.
On November 14, 2018, the Court again granted Mr. Stoops leave to amend (Dkt. #93), and accepted his third amended complaint—the operative pleading in this case. (Dkt. #94.) The November 14, 2018 amended complaint sued Nurse Towne in her individual capacity, although it still incorrectly identified her as two separate individuals, Mary Margaret and D. Towne. Significantly, however, Nurse Towne had not yet been served. It was not until January 14, 2019, that the amended complaint was served on Nurse Towne by serving it on Denver Health. (Dkt. ##121-22.)
Mr. Stoops asserts two claims against Nurse Towne based on alleged violations of his Eighth Amendment rights that occurred on June 14, 2015. Nurse Towne argues that under the applicable two-year statute of limitations,
Mr. Stoops 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). 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 also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (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"). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
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) (citations and quotation marks omitted).
"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, 935 F.2d at1198. "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 motion to dismiss, means that the plaintiff pleaded facts which 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," that is, 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, such claim survives the motion to dismiss. Id. at 679.
However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas 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 the complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (citation omitted). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (citation omitted).
As for a motion to dismiss based on the alleged running of the underlying statute of limitations, such as that filed by Nurse Towne, courts in this District have held that "[a]t the motion-to-dismiss stage, a complaint may be dismissed on the basis of a statute of limitations defense only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the statute." Whitington v. Sokol, 491 F.Supp.2d 1012, 1018 (D. Colo. 2007) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n. 13 (11th Cir.2005) (internal quotation marks and citations omitted)).
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). To resolve a claim of qualified immunity, the Court must consider two elements: (1) whether the plaintiff has alleged a constitutional violation, and (2) whether the violated right was "clearly established" at the time of the violation. Id. at 230-31. "The judges of the district courts . . . [may] exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236. Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the inquiry. Id. at 232. 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).
Qualified immunity is immunity from suit, rather than a mere defense to liability. Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). If a court finds that a defendant is subject to qualified immunity, the court may dismiss with or without prejudice. Breidenbach v. Bolish, 126 F.3d 1288, 1294 (10th Cir. 1997); Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1342 (10th Cir. 2000).
The Court will address in turn the Eighth Amendment claims Mr. Stoops has brought against CHP and Nurse Town, and the parties' respective arguments concerning these claims.
"[P]rison officials violate the Eighth Amendment's ban on cruel and unusual punishment if their `deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.'" Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). As both the Supreme Court and Tenth Circuit have stressed, "`inadvertent failure to provide adequate medical care' is not enough" to prevail on an Eighth Amendment claim alleging deliberate indifference to medical needs. Id. Nor does negligent diagnosis, misdiagnosis, or negligent treatment—even if it constitutes medical malpractice—suffice on their own to give rise to a constitutional violation. Id. at 1231-32.
"The test for constitutional liability of prison officials `involves both an objective and a subjective component.'" Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). Mr. Stoops must adequately allege both components to survive Defendants' motions to dismiss.
Under the objective component, the alleged deprivation must be "sufficiently serious" to constitute a deprivation of constitutional dimension. Self, 439 F.3d at 1233. In the Tenth Circuit, a medical need typically is found to be "sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (quoting Sealock, 218 F.3d at 1209). If the need for treatment would not be obvious to a lay person, then "the medical judgment of the physician" or other health care provider, "even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim." Id.
The subjective component involves evaluating the prison official's culpable state of mind. This component is only satisfied "if the prison official `knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The United States Supreme Court has analogized the deliberate indifference standard to criminal recklessness, stating
Id. at 837-38.
Significantly, "[i]ndividual liability under § 1983 must [also] be based on personal involvement in the alleged constitutional violation." Sherman, 653 F. App'x at 589. See also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976) (same). Where, for example, "the allegations of [a] complaint show only a possible indirect involvement" by a defendant in a plaintiff's situation, it fails "sufficiently to allege the necessary direct personal participation by" that defendant. Whitington v. Ortiz, 307 F. App'x 179, 191 (10th Cir. 2009). A complaint must, therefore, allege "an affirmative link between the alleged constitutional violation and the defendant's own participation or failure to supervise." Estes v. Fortunato, No. 10-CV-01478-REB-CBS, 2011 WL 4369124, at *5 (D. Colo. Aug. 9, 2011), report and recommendation adopted, No. 10-CV-01478-REB-CBS, 2011 WL 4369120 (D. Colo. Sept. 19, 2011).
Further, "[a] defendant cannot be liable under a respondeat superior theory in a section 1983 case." McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). Nor may a defendant be liable merely because of his or her supervisory opinion. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). For supervisory liability to arise under section 1983, there must exist a causal connection or affirmative link "between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993). See also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); Rizzo v. Goode, 423 U.S. 362, 371 (1976). Without a showing of direct responsibility for the alleged violations, liability will not be imposed on a supervisory official. Id. Critically, mere knowledge by a supervising entity of an allegedly discriminatory practice, or alleged acquiescence in such practice, is insufficient to state a claim. Iqbal, 556 U.S. at 677.
Finally, although section 1983 generally applies only to natural persons, the Supreme Court has held that municipalities may also be held liable as "persons" under it. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 690 (1978). And in the Tenth Circuit, a business entity such as CHP, that is under contract with the state to perform and fulfill a state function, can only be liable through Monell's municipal liability framework. Dubbs, 336 F.3d at 1216. Thus, to prevail against a company performing municipal functions, a plaintiff must establish that (1) a company employee committed a constitutional violation, and (2) a company policy or custom was the moving force behind the constitutional deprivation. Myers v. Okla. Cnty. Bd. Of Cnty. Commr's, 151 F.3d 1313, 1316 (10th Cir. 1998). If a company employee did not commit a constitutional violation, the company cannot be held liable under section 1983. Id.
Mr. Stoops claims CHP should be liable for the delay or denial of medical care for his broken hip. CHP argues Mr. Stoops has not adequately alleged certain required elements and criteria that make up this claim. The Court agrees with CHP.
Because CHP is a business entity performing municipal functions, Mr. Stoops is required to establish that a CHP employee committed a constitutional violation, and that a policy or custom of CHP was the moving force behind that violation. Myers, 151 F.3d at 1316; Dubbs, 336 F.3d at 1216. Mr. Stoops never specifically alleges that a CHP employee violated his constitutional rights—although he generally asserts in his response brief that CHP "was in violation of my constitutional rights . . . because of C.H.P.'s failure to schedule inmates [sic] medical care in a timely manner." (Dkt. #128 at 1 ¶ 5.) The statements in his third amended complaint are even more general and conclusory, asserting, for example, that "[b]ecause of their [CHP's] negligence they are responsible for mine [sic] as well as several other inmates' lack of medical attention." (Dkt. #94 at 13 ¶ 29.)
As an initial matter, the Court notes it cannot consider the new factual allegations included in Mr. Stoops' response brief, as the purpose of a motion to dismiss is "to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). But even if Mr. Stoops had included in his third amended complaint the new allegations set forth in his response brief, his claim against CHP still fails.
Critically, in neither his third amended complaint nor his response brief does Mr. Stoops ever allege any specific actions taken by CHP or a CHP employee, either in relation to the medical care provided Mr. Stoops, or the decisions made relating to such care. He never, for example, specifically alleges it was CHP that failed to timely schedule or approve his hip surgery. Indeed, in his third amended complaint, Mr. Stoops squarely places blame for the delay on others, including non-party Denver Health. (Dkt. #94 at 6 ("Denver Health Care refused to operate until 6-16-15.").) Nowhere does he allege that any of the other Defendants (or non-party Denver Health) even made a request to CHP concerning treatment or surgery for his broken hip. In fact, both his third amended complaint and response brief are completely devoid of any allegation that CHP or a CHP employee was even involved in making decisions about his medical treatment.
At most, Mr. Stoops' third amended complaint and response brief rely on inference and supposition—which does not suffice to adequately state a claim. For example, in his third amended complaint, he describes how "most" of the situations involving delayed medical treatment of other inmates occurred after a physician at the Sterling hospital told an SCF medical provider that an inmate needed surgery, but the inmate "had to wait because the Provider (Correctional Health Partners) has not Okayed it." (Dkt. #94 at 13 ¶29. See also id. at 14 ¶ 33 (stating there are other cases where SCF inmates "needed medical attention," but it "was denied, or delayed" because CHP did "not authoriz[e] the medical expenses").) Thus, Mr. Stoops is merely speculating that CHP must have had something to do with the delay in his hip surgery.
Mr. Stoops' allegations concerning an alleged CHP policy or custom—most if not all of which are in his response brief—suffer from the same lack of specificity, are conclusory, and lack the requisite causal link between the policy and the alleged constitutional violation. In his response brief, for example, he generally asserts "time delay, as well as the numerous denials, from CHP, constitutes an unwritten rule." (Dkt. #128 at 3 ¶ 16.) He similarly refers to "the time delay between an inmate's medical complaints and C.H.P.'s response time to have an inmate taken to an outside source, as well as C.H.P simply denying inmates needed medical care for a variety of irrational reasons." (Id. at 2 ¶ 6.) Finally, he asserts CHP is "a driving force behind the medical treatment [of inmates] for not okaying procedures being done." (Dkt. #128 ¶ 23.)
These allegations are too general, conclusory, and speculative to survive a motion to dismiss. See, e.g., Swan v. Physician Health partners, Inc., 212 F.Supp.3d 1000, 1009 (D. Colo. 2016) (granting motion to dismiss claim premised on CHP's alleged generalized policy to deny treatment due to financial concerns). And, again, Mr. Stoops makes no factual allegations that tie together CHP's alleged general policy to delay or deny medical treatment and the alleged delay in his hip surgery. See, e.g., Meyer v. Singh, No. 10-CV-02302-PAB-KMT, 2011 WL 2297735, at *7 (D. Colo. Apr. 27, 2011), report and recommendation adopted, No. 10-CV-02302-PAB-KMT, 2011 WL 2297718 (D. Colo. June 9, 2011) (granting CHP's motion to dismiss in a similar case where the inmate plaintiff failed to allege that "CHP's decisions regarding his medical treatment were made pursuant to any custom or policy." Here, Mr. Stoops has not even alleged that CHP made any decisions concerning his medical treatment). The Court is not required to, and indeed may not, fill in these factual gaps. Whitney, 113 F.3d at 1173-74. Therefore, even viewing Mr. Stoops' allegations in the light most favorable to him, they are too conclusory, general, and implausible to survive CHP's motion.
Although this basis alone warrants dismissal of Mr. Stoops' claim, the Court nevertheless will briefly address Mr. Stoops' other two theories of liability.
First, Mr. Stoops appears to argue that CHP acted in some sort of supervisory or oversight role vis-à-vis SCF. He claims that, despite knowing there was a problem with how SCF medical providers treated inmates' injuries, CHP did nothing to correct these problems. Any argument by Mr. Stoops that CHP had authority to change unconstitutional policies employed by SCF health care providers, such as unreasonably delaying or denying necessary medical services, are wholly conclusory in nature and do not provide the requisite causal link between CHP and the conduct of those providers.
Other than some amorphous alleged duty to "take care of the problems" at SCF's medical facility, Mr. Stoops' complaint is completely devoid of any specific actions taken by CHP. As CHP has noted, its relationship with CDOC "is merely [that of] a third-party administrator which reviews the medical claims of inmates and works with CDOC to ascertain whether the alleged injuries require outside medical treatment." (Dkt. #134 at 3-4.) Even if Mr. Stoops' allegations sufficiently alleged that CHP is a supervising entity or acted in a gatekeeping role, Mr. Stoops' argument essentially alleges that CHP knew about or acquiesced in the conduct of the SCF providers, which is insufficient to state a claim. Iqbal, 556 at 677.
Second, Mr. Stoops claims that, because CHP acted as an insurer to the individually-named defendants, and continued to insure them despite knowing they were not providing adequate or timely medical care to inmates, this triggers liability on CHP's part. Even if CHP could properly be designated as an insurer, Mr. Stoops has not presented any authority, nor has this Court found any, to support the premise that the insurer for a medical care provider may be liable when that provider violates a patient's constitutional rights.
In light of the above, I RECOMMEND that CHP's motion to dismiss (Dkt. #95) be GRANTED.
Nurse Towne argues Mr. Stoops' claims against her are barred by the applicable two-year statute of limitations that applies to section 1983 actions. The Court agrees.
Under both Tenth Circuit and Colorado law, a "John [or Jane] Doe pleading . . . does not operate to toll the statute of limitations against unidentified defendants. Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir. 1984). This is because
27A Fed. Proc., L. Ed. § 62:335 (March 2019 Update).
As a result, a plaintiff who substitutes a real party defendant for a John or Jane Doe after the statute of limitations has expired must satisfy all the criteria set forth in Fed. R. Civ. 15(c), which could allow for relation back to the date of the original complaint. Watson, 733 F.2d at 1389 ("[W]hen an amendment purports to substitute a party . . . `[s]uch amendment can relate back to the date the complaint was filed only if the provisions of Rule 15(c) are met.'") (quoting Archuleta v. Duffy's Inc., 471 F.2d 33, 35 (10th Cir. 1973)). Under Fed. R. Civ. P. 15(c)(1)(C), an amended pleading will relate back to the date of the original pleading when
Fed. R. Civ. P. 15(c)(1)(C).
As the Watson court explained, "essentially three elements must be met before Rule 15(c) relation back will be allowed, even when the result could be extinguishment of the claim." 733 F.2d at 1390. These include: "(1) [the] same transaction or occurrence; (2) the new party had notice of the action, prior to the expiration of the statute of limitations; and (3) [the new party] knew or should have known that but for a mistake in identity the action would have been brought against him." Id.
Here, Mr. Stoops' claims against Nurse Towne accrued on June 14, 2015, the date on which Mr. Stoops alleges that Nurse Towne manhandled him at Denver Health.
Mr. Stoops argues the Court should apply equitable tolling. As Mr. Stoops himself recognizes, however, tolling is limited to situations in which (1) a defendant has wrongfully impeded a plaintiff's ability bring a claim, or (2) truly extraordinary circumstances prevented the plaintiff from filing his claim despite diligent efforts. Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 149 (Colo. 2007). Although Mr. Stoops attempts to make out an argument that Nurse Towne "falsified state records as well as forged federal evidence on 6-14-2015" because she signed her name as "Mary Margaret D. Towne" on the initial exam form when there apparently is no "D." in her name (Dkt. #166 at 4), this allegation does not suffice to allege that Nurse Towne "wrongfully impeded" Mr. Stoops' ability to bring his claim against her; nor are there any extraordinary circumstances that prevented him from filing this claim.
As Nurse Towne's counsel pointed out at the May 2, 2019 hearing, Mr. Stoops knew Nurse Towne worked at Denver Health, and he had plenty of time to send an inquiry to Denver Health asking it to identify her. Alternatively, he could have served the Jane Doe complaint on Denver Health within the requisite statute of limitations. He failed to do either. Indeed, even after he knew Nurse Towne's identity—in or around April 2018, when he filed the amended complaint designating "Mary Margaret" and "D. Towne" as the two Jane Doe's named in his earlier complaints—he still waited more than eight months, until January 14, 2019, to actually serve Nurse Towne by serving Denver Health. (Dkt. ## 121-22.).
Under these circumstances, the Court concludes that Mr. Stoops cannot prove any set of facts that would toll the statute of limitations, and therefore RECOMMENDS that his claims against Nurse Towne be DISMISSED, and that Nurse Towne's motion to dismiss (Dkt. #129) be GRANTED.
Having ruled in Nurse Towne's favor on her statute of limitations argument, the Court deems it unnecessary to address her argument premised on qualified immunity.
