Gray v. Univ. of Colorado Hosp. Auth.

• Decision Date: 27 February 2012
• Docket Number: No. 10–1446.,10–1446.
• Citation: 672 F.3d 909
• Parties: Jimmie Louise GRAY, individually and as personal representative of the estate of Charles Gray; Charles Gray, deceased; Teresa Leeper; David Gray; and Tim Gray, Plaintiffs–Appellants, v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, a body corporate and political subdivision of the State of Colorado; University Of Colorado Hospital; Mark Spitz, Archana Shrestha, M.D., Christy Barbee–Young, M.D., Mollie Startzer, R.N., Beverly Solas–Fajardo, C.N.A., Jason Booe, and Jacqueline Funk, in their individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

672 F.3d 909

Jimmie Louise GRAY, individually and as personal representative of the estate of Charles Gray; Charles Gray, deceased; Teresa Leeper; David Gray; and Tim Gray, Plaintiffs–Appellants,

v.UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, a body corporate and political subdivision of the State of Colorado; University Of Colorado Hospital; Mark Spitz, Archana Shrestha, M.D., Christy Barbee–Young, M.D., Mollie Startzer, R.N., Beverly Solas–Fajardo, C.N.A., Jason Booe, and Jacqueline Funk, in their individual and official capacities, Defendants–Appellees.

No. 10–1446.

United States Court of Appeals, Tenth Circuit.

Feb. 27, 2012.

Benjamin Sachs (Natalie Brown and DezaRae D. LaCrue, with him on the brief), Leventhal, Brown & Puga, P.C., Denver, CO, for Plaintiffs–Appellants.

Patrick O'Rourke, Office of University Counsel, Denver, CO, and Richard L. Murray, Jr., Hall & Evans, LLC, Denver, CO, for Defendants–Appellees.

Before BRISCOE, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

Decedent Charles Gray sought treatment for epilepsy at Defendant University of Colorado Hospital. In the course of his withdrawal from medication, hospital staff left decedent unattended and he died after suffering a seizure. Plaintiffs, decedent's estate and family members, filed this civil rights suit pursuant to 42 U.S.C. § 1983. In their complaint, Plaintiffs alleged among other things, that Defendant hospital, and affiliated doctors, nurses, and staff acting in their capacity as “employees and/or agents” of the hospital, deprived decedent of life without due process of law in violation of the Fourteenth Amendment. The district court granted Defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a constitutional claim.¹ Plaintiffs appeal. Our jurisdiction arises under 28 U.S.C. § 1291. We review the district court's dismissal of Plaintiffs' complaint de novo, accepting the pleading's factual allegations as true. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009). Applying the appropriate legal standards, we affirm, but for reasons somewhat different than those proffered by the district court.

I.

Plaintiffs make the following factual allegations in their complaint. At the outset, we note most of these allegations refer generally to Defendant hospital and unspecified doctors, nurses, and staff. In other words, the complaint's material allegations largely fail to specify exactly who allegedly did what. Decedent Charles Gray was admitted to the University of Colorado Hospital's Epilepsy Monitoring Unit (EMU). Defendants arranged to wean decedent off his anti-seizure medication while monitoring him to determine if he would benefit from ameliorative surgery. Defendants represented to decedent and his family that he would receive continuous, 24–hour–per–day intensive care monitoring during his stay in the EMU. Defendants provided decedent with an information sheet that said a neuro-diagnostic technologist would be in the monitoring booth at all times to maintain the equipment and gather data. Defendants knew uninterrupted monitoring of decedent was necessary for his protection, especially during periods of sleep. The hospital's protocol, however, allowed EMU staff to leave patients unattended and unobserved.

On the first full day off his medications, decedent experienced two complex partial seizures. Because these seizures were difficult to localize, Defendants continued to withhold anti-seizure medication from decedent in order to capture data sufficient to determine whether surgery was advisable. Shortly before midnight that same day, an attending technician, unidentified in the complaint, left decedent to “troubleshoot another ICU patient's electrodes.” ² About twenty minutes later, around 12:20 a.m. the following day, decedent suffered a generalized seizure requiring immediate medical attention. At 12:22 a.m., decedent stopped breathing. Around 1:00 a.m., the technician returned to the EMU and discovered decedent was not breathing. Efforts to resuscitate him were unsuccessful. Decedent was pronounced dead at 1:37 a.m. The hospital's Vice President for Patient Safety acknowledged that Defendants made false representations to decedent and his family. The administrator admitted that if the hospital had required constant monitoring in the EMU, decedent likely would have survived.

Based on these facts, Plaintiffs alleged three federal claims on behalf of decedent's estate. Plaintiffs labeled their first claim for relief “Failure to Provide Medical Care and Treatment.” This claim alleged Defendants acted with “deliberate indifference” to decedent's due process “right not to be denied necessary medical care and treatment.” Plaintiffs alleged Defendants exhibited deliberate indifference to decedent's well-being by failing to monitor his condition, despite their knowledge of his serious medical needs. Plaintiffs labeled their second claim for relief “Supervisory Liability for Failure to Train and Supervise.” Plaintiffs' second claim cursorily alleged certain Defendants' failure to adequately train and supervise hospital personnel was the cause of decedent's constitutional deprivation. Plaintiffs labeled their third claim for relief “Substantive Due Process/Danger Creation.” This claim alleged Defendants acted, pursuant to policy and custom, with “reckless disregard” for decedent's right “not to be subjected to serious dangers created by and under the control of the Defendants.” Plaintiffs alleged Defendants knew their repeated assurances were contrary to hospital protocol permitting staff to leave decedent unattended in the EMU for extended periods.

Defendants moved to dismiss Plaintiffs' § 1983 claims for failure to state a cause of action. The district court granted Defendants' motion. The court first reasoned that “where non-prisoners voluntarily seek medical care from state actors, negligent and even willfully indifferent treatment does not amount to a violation of the U.S. Constitution.” Gray v. Univ. of Colo. Hosp. Auth., 2010 WL 3430785, at *2 (D.Colo.2010) (unpublished). The district court wrote: “Plaintiffs do not appear to dispute that [Tenth Circuit] cases ... are dispositive of their simple constitutional claims, but they contend that these cases do not address the substantive due process claim premised on ‘danger creation.’ ” Id. Considering the context in which the district court referenced “simple constitutional claims,” the court presumably was referring to Plaintiffs' first two claims for relief, i.e., (1) for failure to provide medical care and treatment based on a theory of personal liability, and (2) for failure to train and supervise based on a theory of supervisory liability. See Brown v. Montoya, 662 F.3d 1152, 1163–64 (10th Cir.2011) (distinguishing between § 1983 claims based on personal liability and supervisory liability). As to Plaintiffs' third claim, the court expressed doubt regarding Defendants' argument that the “ ‘danger creation’ doctrine is limited to circumstances where violence by a [private] third party is the cause of the victim's injury.” Gray, 2010 WL 3430785, at *3. But the court concluded it need not decide that question because, assuming the danger creation theory applied, the alleged facts failed to demonstrate Defendants' conduct was “conscience-shocking” as required by our precedent. According to the court, Defendants' conduct was at most negligent. The court reasoned that “elevating such careless conduct to the level of a constitutional deprivation would radically broaden the scope of constitutional protection, essentially allowing it to replace ordinary tort law.” Id. at *4.

II.

Because Plaintiffs precisely identify neither the claim or claims for relief—one, two and/or three—nor the theory or theories of liability—personal, supervisory, and/or danger creation—they wish to press upon us, we must determine ourselves what exactly Plaintiffs are appealing. In the issue portion of their opening brief, Plaintiffs characterize their appeal as raising three issues. First, Plaintiffs ask us to decide whether their complaint “failed to establish a cognizable claim for relief” under § 1983. Such a broadly worded issue tells us absolutely nothing about the precise nature of the legal questions Plaintiffs would have us resolve, and is particularly unhelpful. The second issue Plaintiffs raise on appeal is more telling because it refers to their third claim, i.e., the claim based on a danger creation theory. Plaintiffs phrase this issue as whether the district court “applied an incorrect legal standard or multi-criteria test ... as the basis for its dismissal of Plaintiffs' claim for deprivation of substantive due process, under the danger creation exception.” Plaintiffs' third issue also speaks of danger creation and thus also appears to address their third claim. Plaintiffs say the third issue is whether their complaint “sufficiently alleged that Defendants' actions or inactions contributed to the danger that gave rise to a constitutional duty to protect the deceased ... and Defendants acted recklessly and with deliberate indifference to the known risk of harm.”

Unfortunately, the argument portion of Plaintiffs' opening brief does not track their statement of the issues, so we need briefly summarize its main points in our attempt to ascertain where to commence. Plaintiffs begin in Part I by telling us that this case challenges action taken by hospital employees pursuant to Defendants' policies and customs. Plaintiffs say state action taken pursuant to a governmental policy or custom may give rise to supervisory liability under § 1983. But they fail to provide us with developed argumentation as to why Defendants' policies and customs in this case translate into constitutional liability under the danger creation theory identified in their statement of the issues. Plaintiffs next seek to persuade us in ...