Mullen v. Bd. of Comm'rs for Adams Cnty.

Decision Date28 April 2022
Docket NumberCivil Action 21-cv-02398-RM-NYW
PartiesCYNTHIA MULLEN, Plaintiff, v. BOARD OF COMMISSIONERS FOR ADAMS COUNTY, COLORADO, RICHARD A. REIGENBORN, in his official capacity, and WELLPATH LLC, Defendants.
CourtU.S. District Court — District of Colorado

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nina Y. Wang, United States Magistrate Judge.

This action is before the court on

(1) Defendants Board of County Commissioners of the County of Adams, Colorado and Richard A. Reigenborn (“Adams County Defendants) Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (“Adams County Motion to Dismiss), [Doc. 22, filed November 29, 2021]; and
(2) Defendant Wellpath, LLC's (“Wellpath”) Motion to Dismiss (“Wellpath Motion to Dismiss and together with the Adams County Motion to Dismiss Motions to Dismiss or “Motions”) [Doc. 23, filed December 7, 2021].

The undersigned considers the Motions to Dismiss pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated September 24, 2021, [Doc. 9], and the Memorandum dated December 8, 2021, [Doc. 24]. After reviewing the Parties' briefings, the entire case file, and the applicable case law I respectfully RECOMMEND (1) that the Adams County Motion to Dismiss be GRANTED IN PART AND DENIED IN PART; and (2) that the Wellpath Motion to Dismiss be GRANTED.

BACKGROUND
I. Factual Background

The following facts are drawn from the First Amended Complaint and Jury Demand (“First Amended Complaint”), [Doc. 16], and taken as true for the purposes of the instant Motions. The allegations in this case arise from the arrest and alleged mistreatment of Plaintiff Cynthia Mullen (“Ms. Mullen” or Plaintiff) during her detention in August 2020. [Doc. 16 at ¶ 1]. Ms. Mullen- who is deaf, physically disabled, and “cannot speak words”-relies on American Sign Language (“ASL”) as her “preferred method of communication.” [Id. at ¶¶ 1, 22-26, 30]. Ms. Mullen cannot write in, or understand sentences that are written in, English; nor can she “understand other people's verbal communication by reading lips.” [Id. at ¶¶ 27-29]. Therefore, [t]o understand English that is conveyed to Ms. Mullen, she requires an ASL interpreter.” [Id. at ¶ 31]. In addition, due to amputations of her right leg and big toe on her left foot, Ms. Mullen requires the use of a wheelchair for transportation. [Id. at ¶¶ 32-34]. Ms. Mullen also suffers from various other conditions. See [id. at ¶¶ 35-41].

On August 24, 2020, around 4:30 p.m., Ms. Mullen was traveling in a vehicle to a doctor's appointment with two friends. [Id. at ¶¶ 66-68]. One of the friends, Deborah Johnson, was the driver, while Ms. Mullen was in the front passenger seat, and the other friend, Susan Weiler, sat in the backseat. [Id. at ¶¶ 69-70]. During the ride, Ms. Mullen and Ms. Weiler had a verbal and physical altercation, which left Ms. Mullen with bleeding wrists and resulted in Ms. Johnson pulling over and calling the Brighton Police Department, who were dispatched to the scene. [Id. at ¶¶ 70-81].

When the officer, Officer Barfield, arrived, he “observed dried and wet blood on Ms. Mullen's wrists”, and called an ambulance to treat her injuries. [Id. at ¶¶ 84-85]. Officer Barfield interviewed all three individuals. First, he spoke with Ms. Johnson, who informed Officer Barfield that Ms. Mullen was deaf and required an ASL interpreter. [Id. at ¶ 86]. Next, Officer Barfield “attempted to interview Ms. Mullen in spoken English” and asked Ms. Johnson to translate his words to ASL. [Id. at ¶¶ 87, 90]. Ms. Johnson explained “that she is not fluent in ASL and could not interpret for Ms. Mullen.” [Id. at ¶¶ 91-93]. In his report, Officer Barfield noted that “Ms. Mullen was able to say some words, but most [were] unintelligible” and she “would not go into more detail or tell [him] anymore about what happened inside the car.” [Id. at ¶¶ 88, 94]. Finally, Officer Barfield spoke with Ms. Weiler, who told the officer “that Ms. Mullen hit her on the jaw.” [Id. at ¶¶ 96, 99]. Based on Ms. Weiler's statement, Officer Barfield thus “concluded that Ms. Mullen was the primary aggressor” and arrested Ms. Mullen. [Id. at ¶¶ 101-02].

Ms. Mullen requested ASL interpreters at the police station, “but her requests were ignored.” [Id. at ¶ 104]. Ms. Mullen alleges she “did not understand the booking process or why she was being arrested” nor did she “understand if she was being charged or the extent of the charges.” [Id. at ¶¶ 106-07]. Before her incarceration, Ms. Mullen was transported to the Platte Valley Medical Center (“Medical Center”) for treatment, and alleges she was unable to communicate during transport. [Id. at ¶¶ 110-11]. When she arrived at the Medical Center, however, officers provided her a piece of paper and she “immediately wrote, [a]m deaf, I use sign language.' [Id. at 113-14]. Ms. Mullen also alleges that [n]o ASL interpreters were provided” while she was treated at the Medical Center. [Id. at ¶¶ 115-16].

Ms. Mullen was then transported to the Detention Facility after the Medical Center cleared her for incarceration. [Id. at ¶¶ 117-18]. Ms. Mullen alleges that “no ASL interpreters” were present at the Detention Facility upon her arrival; and the staff at the Detention Facility “transferred her to a holding cell in an old rickety wheelchair” which “caused Ms. Mullen physical pain” that she could not describe to the staff due to the lack of ASL interpreters. [Id. at ¶¶ 122-32]. Ms. Mullen also claims that “the Detention Facility's staff attempted to communicate with Ms. Mullen through a female officer, who knew how to sign individual letters (fingerspell) in ASL” but such attempts were “tedious and ineffective.” [Id. at ¶¶ 133-35]. Further, staff ignored Ms. Mullen's repeated requests for an ASL interpreter, and the female officer ultimately “became frustrated and gave up trying to communicate with Ms. Mullen.” [Id. at ¶¶ 136-38]. The staff also allowed Ms. Mullen to use a videophone to make one phone call to Ms. Johnson, but did not allow her to call anyone else or use the videophone to communicate with staff or other officers. [Id. at ¶¶ 140-44].

Ms. Mullen also alleges that she was “forced to wait several minutes before she was able [ ] to get the attention of the Detention Facility's staff so that she could use the restroom”; and, upon her use of the restroom, she was “forced to wait for an extended period before an officer arrived to take ger back to the holding cell.” [Id. at ¶¶ 145-50]. After returning to her holding cell, Ms. Mullen attempted to communicate with staff “that she needed a specific bed due to her physical handicap” and “staff eventually brought Ms. Mullen a cot.” [Id. at ¶¶ 151-52]. However, the height of the cot was too low to the ground, which made it “impossible for [Ms. Mullen] to transfer from her wheelchair to the cot.” [Id. at ¶¶ 153-54]. Ms. Mullen alleges she was “forced to sit upright in the old rickety wheelchair overnight” after the staff “gave up trying to communicate with her about the height of the cot.” [Id. at ¶¶ 155-56].

The following morning, Detention Facility staff took Ms. Mullen to see a nurse who worked at the Detention Facility under a “contract for healthcare services between the Board, the Sheriff, and WellPath.” [Id. at ¶ 159]. Ms. Mullen was provided a dry erase board to communicate with the nurse, but claims that [w]ritten English on a dry erase board is not an effective means of communication for [her].” [Id. at ¶¶ 161-62]. Because of this ineffective communication, Ms. Mullen alleges, “the nurse denied Ms. Mullen pain medication” and “attempted to give Ms. Mullen a shot for her diabetes, but it was not the correct shot.” [Id. at ¶¶ 163-64]; see also [id. at ¶ 165]. Later that morning, another nurse visited Ms. Mullen to administer an insulin shot, and, again, there was no interpreter available. [Id. at ¶¶ 170-71]. Thereafter, Ms. Mullen was taken to the Adams County Courthouse, where the court provided her an ASL interpreter. [Id. at ¶ 178]. Ms. Mullen was in the custody of the Adams County Sheriff's Department for approximately sixteen hours. See [id. at ¶ 2].

In the First Amended Complaint, Ms. Mullen asserts three claims for relief under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Rehabilitation Act). The First Claim is against the Board of County Commissioners of the County of Adams, Colorado (Board); the Second Claim is against Defendant Reigenborn (“Mr. Reigenborn” or Defendant Reigenborn”); and the Third Claim is against Wellpath. See [Doc. 16 at ¶¶ 181-210]. Ms. Mullen claims that she “has suffered and will continue to suffer damages” as a result of the conduct alleged in the First Amended Complaint, [id. at ¶ 80], and seeks “compensatory damages, attorneys' fees and costs and any other relief to the fullest extent by law and in an amount to be determined at trial”, [id. at ¶¶ 190, 200, 210].

II. Procedural Background

Ms. Mullen initiated this action on September 3, 2021, by filing a Complaint and Jury Demand (“Complaint”) against the Board. [Doc. 1]. This action was ultimately reassigned to the Honorable Raymond P. Moore and referred to the undersigned Magistrate Judge. See [Doc. 2; Doc. 6; Doc. 7; Doc. 8; Doc. 9]. On October 26, 2021, the court held a Scheduling Conference, and established a discovery deadline of April 25, 2022, and a dispositive motion deadline of June 6, 2022. [Doc. 14 at 6].

On November 8, 2021, Ms. Mullen filed the First Amended Complaint, which remains the operative pleading in this action. [Doc. 16]. The First Amended Complaint added as party-defendants Wellpath and Mr. Reigenborn in his official capacity as the Sheriff of Adams County. See [id.]. On November 29, 2021, the Adams County Defendants filed the Adams County Motion to...

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