Montalvan v. Williams et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:24-cv-02213-CNS-TPO
THE 	ESTATE 	OF 	VICTOR 	ESQUIVEL, 	by 	and 	through 	personal 	representative
MARISOL MONTALVAN, and D.E. and V.E., minor children, by and through next friend
MARISOL MONTALVAN,
Plaintiffs,
v.
DEAN WILLIAMS,
ED CALEY,
DAVID LICANO,
VIRGIL FONTENOT,
APRIL ORTIZ,
MARY ANN GARCIA,
NATHAN BENNION,
CHRISTOPHER BUCHANAN,
AMOY HINES,
ANDREW VRELL,
BRADY ROBINSON,
JANE GILDEN, and
AMERGIS HEALTHCARE STAFFING INC.,
d/b/a Maxim Healthcare Staffing Services, INC,
Defendants.
ORDER
Perusal of this case’s docket—still at the dismissal stage—confirms its scope. See
ECF Nos. 1–139. Reading the Second Amended Complaint’s allegations, which the Court
accepts as true, see, e.g., Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th
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Cir. 2023), confirms its seriousness: Plaintiffs allege that Defendants denied Mr. Esquivel
medical treatment, resulting in his avoidable death, see ECF No. 72 ¶ 1.
Before the Court are Defendants’ four dismissal motions, each, for various
reasons, arguing Plaintiffs’ claims must be dismissed. See ECF Nos. 84, 86, 91, 127. The
Court DENIES Defendants’ motions. In doing so, the Court presumes familiarity with this
case’s factual and procedural background, the allegations and claims in Plaintiffs’ Second
Amended Complaint (the operative complaint), as well as the governing legal standards.
See, e.g., Fed. R. Civ. P. 12(b)(6); Clinton, 63 F.4th at 1275.
I. 	ANALYSIS
The Court considers Defendants’ motions in turn, explaining why their denial is
proper.
A. Defendant Robinson
Defendant Robinson moves to dismiss on four primary bases. See generally ECF
No. 84. None persuade.
First, Defendant Robinson argues that Plaintiffs’ Eighth Amendment claim “based
on exposure to lidocaine fails as a matter of law.” ECF No. 84 at 5 (citation modified); id.
(arguing Plaintiffs allege Defendant Robinson “should have prevented [Mr. Esquivel] from
consuming lidocaine”); cf. ECF No. 97 at 7 (describing Plaintiffs’ claim as a “failure to
protect claim”). The Court disagrees. In advancing this argument, Defendant Robinson
articulates the proper legal standard governing Plaintiffs’ claim. See, e.g., ECF No. 84 at
6; Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (“The deliberate indifference
standard has objective and subjective components.” (citation modified)). But Defendant
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Robinson is wrong to argue that, under it, Plaintiffs fail to adequately plead a “failure to
protect” deliberate indifference claim. Compare ECF No. 84 at 7, with ECF No. 97 at 7.
Decisional law supports the Court’s conclusion, not only because Plaintiffs allege
that Mr. Esquivel died as a result of lidocaine overdose while incarcerated at the facility,
but also because the operative complaint’s well-pleaded allegations sufficiently allege that
Defendants, 	including 	Defendant 	Robinson, 	knew 	lidocaine 	was 	widely 	available
throughout the facility, yet did not discharge their duties in ensuring Mr. Esquivel’s safety.
See, e.g., ECF No. 72 at ¶ 7 (“Defendants also failed to protect Mr. Esquivel from the
unprescribed lidocaine they knew was widespread and available to him in the facility.”
(emphasis added)); id. at ¶ 40 (“It was common knowledge in this prison, known to all
Defendants, that some people in the facility, including Mr. Esquivel, ingested lidocaine[.]”
(emphasis added)); id. at ¶ 45; id. at ¶ 148 (“[Defendant Robinson] failed to hew to the
Post Orders requiring careful safety checks, rules [he] knew exist[ed] to ensure the safety
of people in [ ] custody like Mr. Esquivel. [B]y Defendant Robinson’s own admission, he
had heard rumors that Mr. Esquivel was abusing lidocaine, and other incarcerated people
were doing the same.”); id. at ¶ 140; Burke, 935 F.3d at 992 (“[D]eath is, without doubt,
sufficiently serious to meet the objective component.” (citation modified)).1 Cf. ECF No.
113 at 7.
1 Some words about Burke, and the line of Sixth Circuit authority to which the parties direct the Court. See,
e.g., ECF No. 84 at 8 (citing Zakora v. Chrisman, 44 F.4th 452, 468 (6th Cir. 2022)). Addressing similar
allegations to those here, the Sixth Circuit, discussing yet distinguishing Zakora, concluded that an estate
failed to meet its deliberate indifference objective component burden where it failed to sufficiently allege, at
bottom, a decedent “faced an excessive risk of harm from unfettered access to drugs.” Caraway v.
CoreCivic of Tennessee, LLC, 98 F.4th 679, 685 (6th Cir. 2024). But central to Caraway’s conclusion was
the Sixth Circuit’s limitation that “the objective prong of a failure-to-protect claim requires an analysis of the
risk to the injured party before the alleged injury occurred.” Id. (citation modified). This reasoning—and the
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Accordingly, Plaintiffs have alleged facts supporting the objective component—
death—and facts supporting the subjective component—that Defendant Robinson knew
of the significant risk of potentially life-threatening lidocaine abuse and seizure activity
that Mr. Esquivel faced yet disregarded it—and have therefore met their failure to protect
deliberate indifference burdens. See, e.g., Prince v. Sheriff of Carter Cnty., 28 F.4th 1033,
1045 (10th Cir. 2022); Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137 (10th
Cir. 2023); ECF No. 72 at ¶ 148 (“[Defendants’] failure to ensure [Mr. Esquivel’s] safety
during this time period was in deliberate indifference to the known and obvious risks of
conclusion it compelled—is contrary to binding Tenth Circuit law and so the Court does—and must—
disregard it. See, e.g., Burke, 935 F.3d at 992; Palmer v. Kaiser Found. Hosps. Tech. Risk Off., No. 16–
cv–2376–WJM–KMT, 2017 WL 4564251, at *2 (D. Colo. Oct. 13, 2017), aff’d, 753 F. App’x 590 (10th Cir.
2018) (“[T]his Court is bound by Tenth Circuit precedent, not law from other circuits.”). Here, the Court’s
objective component focus turns precisely to Mr. Esquivel’s death, and—Caraway aside—his death
satisfies it. See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1088–89 (10th Cir. 2009) (“[T]he ultimate harm to
Mr. Ginn, that is, his heart attack and death, was, without doubt, sufficiently serious to meet the objective
component” necessary to implicate the Fourteenth Amendment.” (citation modified)); Mata v. Saiz, 427 F.3d
745, 753 (10th Cir. 2005) (“For example, when delay by prison employees results in damage to a prisoner’s
heart, the question raised by the objective prong of the deliberate indifference test is whether the alleged
harm (such as heart damage) is sufficiently serious (which it undoubtedly is), rather than whether the
symptoms displayed to the prison employee are sufficiently serious . . . .” (emphasis added)). Indeed, Burke
appeared assured of this proposition without need to further comment. See 935 F.3d at 992 (“We have held
that death, is, without doubt, sufficiently serious to meet the objective component.” (citation modified)); see
also Paugh v. Uintah Cnty., 47 F.4th 1139, 1155 (10th Cir. 2022) (“And we’ve consistently held that death
qualifies as a ‘substantial harm’ that satisfies the objective component.” (citation modified)). Finally, to the
extent Defendant Robinson argues that cases such as Zakora demand that Plaintiff allege Mr. Esquivel
died from “illicit” drug use, ECF No. 84 at 8, the Court declines to indulge such an argument premised on
an immaterial factual distinction. Cf. Zakora, 44 F.4th at 461 (observing complaint alleged decedent died of
fentanyl overdose). And on the topic of out-of-circuit authority that does not bind the Court, Defendant
Robinson directs the Court to Fifth Circuit cases that would appear to preclude any deliberate indifference
claim involving “injur[ies] caused by an inmate’s voluntary acts,” Legate v. Livingston, 822 F.3d 207, 211
(5th Cir. 2016). The Tenth Circuit, however, has certainly permitted deliberate indifference claims premised
on drug overdoses or consumption, see, e.g., Est. of Duke by & through Duke v. Gunnison Cnty. Sheriff’s
Off., 752 F. App'x 669, 673–74 (10th Cir. 2018). Therefore, to the extent Defendant Robinson argues cases
such as Legate bar Plaintiffs’ “failure to protect” claim, he does so unpersuasively. Plaintiffs cite ample
cases that reinforce the Court’s conclusion and this basic principle. See ECF No. 97 at 11; Garcia v. Salt
Lake Cnty., 768 F.2d 303, 308 (10th Cir. 1985). Defendant Vrell makes a virtually identical argument,
discussed further below, which the Court rejects for the same reason. See ECF No. 91 at 13. So too do
Defendants Williams, Caley, Licano, Fontenot, Ortiz, Garcia, Bennion, Buchanan, and Ellis. See ECF No.
86 at 10. At bottom, cases such as Caraway and Legate do not bar Plaintiffs from asserting Eighth
Amendment claims against Defendants.
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harm, particularly given his well-known recent history of life-threatening seizures and
lidocaine toxicity events, and his well-known use of lidocaine and other dangerous
substances.” (emphasis added)); ECF No. 97 at 8. The Court agrees with Plaintiff that
this conclusion is bolstered by allegations that Defendant Robinson acted in contravention
of “Post Orders.” ECF No. 72 at ¶ 138; Burwell v. City of Lansing, Michigan, 7 F.4th 456,
476 (6th Cir. 2021) (“[The officer] also allegedly violated the jail’s cell check policy by
failing to account for [the individual’s] welfare after seeing him lying in vomit . . . . Although
unnecessary, these additional facts provide ample circumstantial evidence for a jury to
conclude that [the officer] was deliberately indifferent to [the individual’s] serious medical
needs.” (citation modified)).
Resisting this conclusion, Defendant Robinson advances broader arguments that
reach beyond the operative complaint—for example, that determining Plaintiffs’ claim is
plausible is tantamount to extending “greater protection from the effects of the ingestion
of drugs [to incarcerated] than non-incarcerated people.” ECF No. 84 at 7. But these
arguments distract from the narrow task at hand: Determining whether Plaintiffs have,
after considering the operative complaint’s allegations in their entirety, and drawing all
inferences from them in Plaintiffs’ favor, pleaded a plausible failure to protect claim
against Defendant Robinson. And explained above, Plaintiffs have. See, e.g., Burke, 935
F.3d at 992; Prince, 28 F.4th at 1045.2
2 Defendants Williams, Caley, Licano, Fontenot, Ortiz, Garcia, Bennion, Buchanan, and Ellis advance a
virtually identical argument in their dismissal motion, which the Court rejects for the same reason. See ECF
No. 86 at 9 (“[E]ven if this Court were to assume that inmates are entitled to greater protections than non-
incarcerated people . . . .”).
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Second, Defendant Robinson argues that Plaintiffs’ “failure to provide adequate
medical care” theory of deliberate indifference is “not cognizable” under the Eighth
Amendment against him. ECF No. 84 at 9. Plaintiffs represent it “does not assert such a
theory against Defendant Robinson,” and instructs the Court to “disregard” the “portions
of [Defendant Robinson’s] motion” attendant to this argument. ECF No. 97 at 3.
Third, Defendant Robinson argues that Plaintiffs fail to allege any “personal
participation” on his behalf. ECF No. 84 at 10; see also ECF No. 113 at 2. In doing so,
Defendant Robinson urges application of the supervisory liability doctrinal framework, see
ECF No. 84 at 10, but there is nothing in the operative complaint indicating that Plaintiffs
sue Defendant Robinson in his capacity as a supervisor. Compare ECF No. 72 at ¶ 21
(“Defendant Brady Robinson was at all times relevant an employee of CDOC . . . .”), with
id. at ¶ 8. So Defendant Robinson stumbles out of the doctrinal gate, and the caselaw he
cites has no application in the Court’s analysis of whether Plaintiffs have plausibly alleged
Defendant Robinson’s “personal participation.” ECF No. 84 at 10. Indeed, the Court
agrees with Plaintiffs that the fundamental inquiry is instead whether Plaintiffs have
plausibly alleged elements of a deliberate indifference claim against Defendant Robinson.
See ECF No. 97 at 13. And explained above in the Court’s analysis of Defendant
Robinson’s arguments attendant to Plaintiffs’ failure to protect theory, Plaintiffs have
certainly alleged sufficient factual content to demonstrate that Defendant Robinson
participated 	himself 	in 	the 	underlying 	conduct 	giving 	rise 	to 	Plaintiffs’ 	deliberate
indifference claim. See, e.g., Moya v. Garcia, 895 F.3d 1229, 1233 (10th Cir. 2018)
(“[Plaintiffs] must have alleged facts showing that the [defendants] had been personally
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involved in the underlying violations through their own participation or supervisory
control.” (citation modified)).3 That some well-pleaded allegations about Defendant
Robinson’s own, specific conduct also mention the conduct of other defendants does
render them implausible. Cf. ECF No. 113 at 3.
Fourth, Defendant Robinson argues he is entitled to qualified immunity. ECF No.
84 at 11. The quality of Defendant Robinson’s briefing does not establish this entitlement.
For approximately one page, Defendant Robinson recites descriptive legal principles. See
id. at 11–12. Then, Defendant Robinson offers the following sentence before reciting the
clearly 	established 	law 	standard 	over 	another 	page: 	“Even 	if 	Plaintiff 	stated 	a
Constitutional violation—which she has not—the law was not clearly established that any
of Robinson’s alleged conduct rose to the level of an Eighth Amendment violation.” Id. at
12. Finally, Defendant Robinson states “research has not revealed any factually similar
case decided by the Tenth Circuit or the Supreme Court”—without offering any legal
citations 	himself 	in 	support 	of 	the 	argument 	that 	Plaintiffs 	cannot 	meet 	qualified
immunity’s clearly established burden. See id. at 13.
“[T]o trigger the plaintiff’s two-part [qualified immunity] burden, a defendant must
first adequately present the qualified-immunity defense.” Berryman v. Niceta, 143 F.4th
3 Interestingly, in their own dismissal motion, Defendants Williams, Caley, Licano, Fontenot, Ortiz, Garcia,
Bennion, Buchanan, and Ellis (the Department Defendants) discuss what is required to establish “individual
liability” under § 1983, ECF No. 86 at 11, and direct the Court to a case that recites what is essentially the
basic Rule 8 pleading standard. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just.
Ctr., 492 F.3d 1158, 1160 (10th Cir. 2007) (“[A] district court might helpfully advise a pro se litigant that, to
state a claim in federal court, a complaint must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes the defendant violated. After all, these are, very basically put, the elements that enable the legal
system to get weaving.”). Thus, the Department Defendants urge application of an individual “personal
involvement” standard directly at odds with a standard urged by Defendant Robinson in his separate motion.
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1134, 1140 (10th Cir. 2025) (citation modified). And “to adequately present the defense,
the defendant must not only explicitly raise it . . . but must also plead the defense beyond
a perfunctory assertion.” Id. (citation modified); cf. Takwi v. Garland, 22 F.4th 1180, 1187
(10th Cir. 2022) (“Language provides many avenues to fully and clearly express an idea.”
(emphasis added)). As Plaintiffs correctly observe, see ECF No. 97 at 16, the Court has
previously—like the Tenth Circuit in Berryman—rejected precisely the bare assertion of
qualified immunity that Defendant Robinson offers here, and for substantially the same
reason it does so again. See Est. of Ward by & through Stamp v. Pueblo Cnty., Colorado,
No. 1:23–cv–00473–CNS–MDB, 2023 WL 4744928, at *9 (D. Colo. July 25, 2023)
(“Defendants’ brief, incantatory remarks do not lend themselves to meaningful analysis,
and for this reason the Court’s analysis is equally brief: Defendants’ mention of qualified
immunity, without more, does not demonstrate their entitlement to it.”). Defendant
Robinson’s contentions in reply fail to salvage his bare argument or warrant the Court’s
engagement with it. See ECF No. 113 at 8.
Accordingly, and for the reasons set forth above, the Court denies Defendant
Robinson’s dismissal motion.
B. The Department Defendants
As a preliminary matter, the Court agrees with Plaintiffs that arguments advanced
by Defendants Williams, Caley, Licano, Fontenot, Ortiz, Garcia, Bennion, Buchanan, and
Hines/Ellis (collectively, the Department Defendants) are best analyzed under the
fundamental deliberate indifference doctrinal framework that governs the Court’s analysis
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of Plaintiffs’ claims.4 See ECF No. 99 at 2. Accordingly, the Court explains why denial of
the Department Defendants’ motion is proper by considering the Defendants’ arguments
through that framework—which Defendants acknowledge applies—focusing on the
plausibility of Plaintiff’s failure to treat and gatekeeper theories of deliberate indifference
attendant to specific, individual Department Defendants. See, e.g., ECF No. 99 at 11;
ECF No. 86 at 5; Johnson v. Sanders, 121 F.4th 80, 90 (10th Cir. 2024) (“[T]he deliberate
indifference standard . . . demands an individualized assessment.”); Lucas, 58 F.4th at
1137 (“[T]he subjective component can be satisfied under two theories.” (citation
modified)).5
1. 	Failure to Treat & Gatekeeper Theories
Defendants Bennion and Buchanan. Plaintiffs have stated plausible claims
against Defendants Bennion and Buchanan under both failure to treat and gatekeeper
theories of deliberate indifference.
First, as to failure to treat liability, Plaintiffs have sufficiently pleaded that both
defendants failed to properly treat Mr. Esquivel. The operative complaint contains
4 The Department Defendants represent that Defendant Amoy Hines is “correctly known” as “Amoy Ellis.”
ECF No. 86 at 1. Plaintiffs do not appear to respond to this “correction” in their response brief. Cf. ECF No.
99. Based on the Department Defendants’ representation, the Court briefly refers here to Defendant Hines
also as Defendant Ellis in introducing the Department Defendants’ dismissal motion. But, based on the
allegations in the operative complaint, which the Court must accept as true, the Court refers to Defendant
Hines throughout its analysis of those allegations, given that Plaintiffs allege that it is Amoy Hines who
engaged in the underlying conduct. Indeed, consistent with the operative complaint’s allegations, the
Department Defendants refer to Defendant Hines in advancing their own dismissal arguments. See ECF
No. 86 at 16.
5 In doing so, the Court agrees with Plaintiffs that the Department Defendants appear to concede that the
objective component of the deliberative indifference test is met. See, e.g., ECF No. 99 at 11. Regardless,
and as discussed above in the Court’s analysis of Defendant Robinson’s motion, given that the operative
complaint alleges that Mr. Esquivel died, Plaintiffs have clearly met the deliberate indifference objective
component. See, e.g., Burke, 935 F.3d at 992.
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numerous well-pleaded allegations detailing that Defendant Bennion and Buchanan had
personal knowledge of Mr. Esquivel’s seizures, see, e.g., ECF No. 72 at ¶ 32–34,
including such knowledge through Mr. Esquivel’s self-medication, id., as well as that—
even more specifically—on June 6, 2022, Mr. Esquivel had not received mental health
treatment, was not taking psychiatric medications, id. at ¶ 39, and that—despite learning
this information—Defendants Bennion and Buchanan neither treated Mr. Esquivel nor
referred him for any neurological or seizure evaluation, id. Further, although Defendant
Bennion later assessed Mr. Esquivel and learned of one of Mr. Esquivel’s seizure events
and that lidocaine was likely a cause of Mr. Esquivel’s seizure events, see, e.g., id. at ¶
42, and ordered “lab tests including to test Mr. Esquivel for lidocaine level[s],” id. ¶ 46, the
operative complaint crucially alleges that “despite ordering the test, Defendants Bennion
and Buchanan failed to take action even after the positive test for lidocaine in Mr.
Esquivel’s lab results,” id. ¶ 47 (emphasis added). Moreover, Plaintiff alleges that “they
failed to even review the lab results until over a month later.” Id. (emphasis added). In
conjunction with this, Plaintiff alleges that “Defendants Buchanan and Bennion failed to
prescribe Mr. Esquivel medication to treat his apparent seizure disorder.” Id. ¶ 48.
These allegations, coupled with others about Defendants Buchanan and Bennion’s
conduct, are sufficient to demonstrate that they failed to treat Mr. Esquivel’s known
medical 	condition, 	and 	therefore 	that 	Plaintiff 	has 	plausibly 	pleaded 	a 	deliberate
indifference claim under a failure to treat theory against both. See, e.g., ECF No. 72 at ¶
48. At a minimum, both defendants knew of a serious and obvious risk that Mr. Esquivel’s
alleged seizure disorder posed—to say nothing of how his known lidocaine self-
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medication compounded and exacerbated this risk—and disregarded it. See, e.g., ECF
No. 72 at ¶ 48 (alleging Defendants Buchanan and Bennion “failed to prescribe Mr.
Esquivel medication to treat his apparent seizure disorder” and that they knew “[his]
seizures were considered ‘grand mal’ or ‘tonic-clonic’”); Est. of Taylor v. Denver Health &
Hosp. Auth., No. 1:23–cv–02355–CNS–KAS, 2025 WL 1952102, at *4 (D. Colo. July 16,
2025); Prince, 28 F.4th at 1046 (“[V]iewing the evidence in the light most favorable to the
plaintiff . . . the record reflects that [an official] both knew of and disregarded a serious
risk to [the inmate’s] health.”) (emphasis added); Est. of Jensen by Jensen v. Clyde, 989
F.3d 848, 859 (10th Cir. 2021). That both defendants provided some treatment to Mr.
Esquivel—for instance, ordering labs for him—is insufficient to immunize them from
liability, especially where Mr. Esquivel presented, and self-reported, severe health risks
about which both defendants were aware. Lucas, 58 F.4th at 1140 (“[P]roviding some
modicum of treatment does not per se insulate [a defendant.]”); Jensen, 989 F.3d at 859
(“We believe that these circumstances—particularly [the detainee’s] self-report that she
had been vomiting for four days and could not keep down water—present a risk of harm
that would be obvious to a reasonable person.”).
Second, as to gatekeeper liability, and as indicated above, Defendants Buchanan
and Bennion, both alleged medical providers, failed to refer Mr. Esquivel to a neurologist
for a neurological or seizure evaluation. See, e.g., ECF No. 72 at ¶¶ 44; 47; 49 (“[I]n
handling Mr. Esquivel’s August 9, [2022] seizure event, Defendants Bennion and
Buchanan intentionally did not call for an ambulance or even non-emergently send Mr.
Esquivel for a seizure or neurological evaluation . . .”); 50 (“Defendants Bennion and
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Buchanan 	knew as 	of 	May 15 [2022] 	Mr. 	Esquivel 	likely 	needed 	a 	seizure and
neurological evaluation from a specialist . . . [r]ather than take action or even hospitalize
Mr. Esquivel, they failed to do so . . .”). The Court agrees with Plaintiffs that accepting
these well-pleaded allegations as true, as the Court must at the motion to dismiss stage,
they are sufficient to plausibly allege Defendants Bennion and Buchanan’s deliberate
indifference under a gatekeeper theory of liability—again, notwithstanding any allegations
that the defendants at times provided some medical care to Mr. Esquivel. See ECF No.
99 at 15; Johnson, 121 F.4th at 94–95; Lucas, 58 F.4th at 1139 (“[I]t is possible to have
some medical care and still state a claim under the gatekeeper theory.” (emphasis
added)); Paugh v. Uintah Cnty., 47 F.4th 1139, 1160 (10th Cir. 2022) (determining on
summary judgment appeal that “a reasonable jury could find that [an individual defendant]
abdicated her gatekeeping duties by failing to obtain medical assistance for [the plaintiff]”
(emphasis added)). Cf. ECF No. 122 at 6.
Defendants Licano, Fontenot, Ortiz, Williams, and Caley. Plaintiffs state
plausible claims against Defendants Licano, Fontenot, Ortiz, Williams, and Caley—even
if the Court considers Plaintiffs’ claims against them under a supervisor liability rubric.
First, Plaintiff asserts a deliberate indifference claim against Defendants Licano,
Fontenot, Ortiz, Garcia, Williams, and Caley under a gatekeeper theory of liability. See
ECF No. 99 at 15; Paugh, 47 F.4th at 1154. For the reasons set forth below, the Court
agrees with Plaintiffs that they have set forth plausible gatekeeper deliberate indifference
claims against these defendants.
Throughout the operative complaint, Plaintiffs allege:
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• 	Defendants Licano, Fontenot, and Ortiz learned about Mr. Esquivel’s
series of medical emergencies and hospitalizations over the course of
2022, including his August 9 seizure. These Defendants also knew
about his misuse of lidocaine patches by boiling them and drinking the
liquid, and that this was a common, well-known phenomenon occurring
in the prison.
• 	Defendant Licano was shift commander on May 15 at the time of Mr.
Esquivel’s seizure, and personally interviewed Mr. Esquivel after he
returned from the hospital, making him acutely aware of the dangers.
Showing he knew substances were involved, Defendant Licano ordered
a cell search and urinalysis.
• 	Defendants Licano, Fontenot, and Ortiz also knew about Mr. Esquivel’s
June 5 and August seizures. After each of these events, Mr. Esquivel
once again was placed in solitary confinement in restricted housing for
15 days as a punitive response, and denied the care he needed. These
Defendants also knew that placing Mr. Esquivel in isolation like that, with
his obvious mental illness and untreated suffering, would only increase
the dangers to him and exacerbate the risk he would continue to self-
medicate with lidocaine upon placement back in general population.
• 	Defendants Licano, Fontenot, and Ortiz knew lidocaine patches were
found in Mr. Esquivel’s cell, that he tested positive for lidocaine, and that
boiling lidocaine patches to consume the liquid was a known behavior
by Mr. Esquivel and some others in the facility.
• 	Defendants 	Licano, 	Fontenot, 	and 	Ortiz 	knew 	that 	Mr. 	Esquivel
obviously suffered from a seizure disorder related to his multiple life-
threatening seizures, and they further knew it appeared his use of
lidocaine was triggering the dangerous seizures.
• 	Despite this, Defendants Licano, Fontenot, and Ortiz failed to fulfill their
supervisory duty to ensure Mr. Esquivel was safely housed and treated
while in their custody. After the August 9 seizure event related to
lidocaine, these Defendants failed to ensure Mr. Esquivel received a
seizure or neurological evaluation and failed to take any action to
prevent him from accessing lidocaine patches in the future.
• 	On July 11, 2022, attorneys Helen Oh and Tyrone Glover (Attorneys)
wrote a letter to CDOC officials Director Dean Williams and Warden Ed
Caley. In the letter, these Attorneys sounded the alarm which was
already obvious: Mr. Esquivel was suffering multiple life-threatening
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seizures and needed immediate neurological and other treatment.
Attorneys notified Defendants Williams and Caley that Mr. Esquivel
suffered a seizure on May 15, 2022, while in CTCF, causing him to fall
and suffer serious injuries. They notified them that Mr. Esquivel wanted
medical treatment for his seizures and was continuing to experience
confusion, tremors, intense nausea, drooping facial muscles, and other
alarming neurological symptoms.
• 	Attorneys also informed Defendants Williams and Caley of a seizure-like
incident around June 5, 2022, after a visit with his mother at the prison,
in which Mr. Esquivel suffered neurological and other symptoms and
was taken to the hospital.
• 	Attorneys 	then 	provided 	caselaw 	and 	argument 	reiterating 	to
Defendants Williams and Caley their duty to ensure Mr. Esquivel
received 	care 	for 	these 	alarming 	seizures 	and 	other 	neurological
symptoms that had hospitalized him on multiple occasions. Attorneys
specifically noted Mr. Esquivel needed an evaluation by a neurologist.
• 	Defendants Williams and Caley received the Attorney letter by email and
it was reviewed and preserved. Defendants Williams and Caley failed to
take appropriate and necessary action in response to this Attorney letter
in the coming weeks, including throughout August and up to and
including September 5, in deliberate indifference to Mr. Esquivel’s health
and life.
• 	Defendants Williams and Caley further knew that lidocaine abuse was
occurring in CTCF, and that people including Mr. Esquivel were trading
property 	or 	purchasing 	lidocaine 	patches, 	which 	they 	would 	then
consume by boiling the patch and drinking the liquid. They knew this use
of the substance was dangerous and potentially fatal.
• 	Defendants’ failure to stop this practice is consistent with the deliberate
indifference toward Mr. Esquivel’s life and health during this time period.
Moreover, Defendants knew that Mr. Esquivel’s urge to self-medicate
through lidocaine, and possibly other substances, was a key cause of
this underlying vulnerability to extortion. Rather than act to ensure he
received treatment and care and safely house him without access to
such 	dangerous 	drugs, 	Defendants 	failed 	to 	act 	in 	deliberate
indifference to the deadly consequences that would predictably follow.
ECF No. 72 at ¶¶ 95, 97, 99–102, 110–14, 17 (citations modified). These allegations are
sufficient to establish plausible deliberate indifference claims under a gatekeeper theory
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of liability against these defendants. See, e.g., Lucas, 58 F.4th at 1139 (“The inquiry under
a gatekeeper theory is not whether the prison official provided some care but rather
whether they fulfilled their sole obligation to refer or otherwise afford access to medical
personnel capable of evaluating a patient's treatment needs when such an obligation
arises.”); Prince, 28 F.4th at 1046 (concluding estate administrate met subjective
component burden where “[d]espite being on notice of the severity of [decedent’s]
symptoms, [a defendant] made no effort to order that [the decedent] be transported to a
hospital”); Paugh, 47 F.4th at 1163; Burke, 935 F.3d at 994; Green v. Branson, 108 F.3d
1296, 1303 (10th Cir. 1997). Cf. ECF No. 122 at 8.
Second, as to these defendants’ supervisory liability, Plaintiffs allege that these
defendants occupy various supervisory roles. See, e.g., ECF No. 72 at ¶ 93. Thus, the
nature of their allegations poses the question of whether Plaintiffs must satisfy elements
of supervisory liability against these defendants. See also id. at ¶ 12 (alleging Defendant
Caley was “at all relevant times the warden of Colorado Territorial Correctional Facility”);
ECF No. 86 at 10.6 Of course, under a typical, individual liability analysis, Plaintiffs have
set forth plausible claims against these defendants. But even applying supervisory liability
principles to defendants, see, e.g., Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir.
2018), Plaintiffs have plausibly alleged facts satisfying elements of supervisory liability.
As Plaintiffs explain in their brief, see ECF No. 99 at 16 n.5, the allegations above
show that these defendants directly participated in the underlying conduct giving rise to
6 The Court notes that it appears Plaintiffs’ Second Amended Complaint has a typographical error where
its paragraphs “reset” from number eighteen to number twelve on page six—essentially at the numbered
paragraph concerning Defendant Caley. See ECF No. 72 at 6. This apparent error has not affected the
Court’s citations to various paragraphs in the operative complaint throughout this order.
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Plaintiffs’ claims, that their participation caused Mr. Esquivel’s constitutional violation by
“setting in motion” events that Plaintiffs plausibly allege resulted in his death, see Burke,
935 F.3d at 997 (citation modified), and that—for all the reasons above—were done with
deliberate indifference. See, e.g., Est. of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir.
2014) 	(“[E]ven 	if 	‘direct 	participation’ 	is 	not 	‘necessary’ 	to 	satisfy 	this 	[personal
involvement] element . . . surely it is sufficient.” (citation modified)); Lovato v. Mahler, No.
1:21–cv–01986–RMR–MDB, 2023 WL 2613821, at *3 (D. Colo. Mar. 23, 2023) (“The third
prong—culpable state of mind—can be established by showing that the official acted with
deliberate indifference.” (citation modified)). Accordingly, Plaintiffs have pleaded facts
establishing all three elements of supervisory liability.7
Defendants resist this conclusion on specific bases as to specific defendants. The
Court considers and rejects them in turn.
First, as to Defendants William and Caley, the Department Defendants argue that
they lacked personal participation in the violation of Mr. Esquivel’s constitutional rights.
See ECF No. 86 at 12. But the operative complaint alleges facts showing that Defendants
William and Caley were “responsible for but failed to create and enforce policies to protect
[Mr. Esquivel] from” the risks his own medical conditions posed as well as lidocaine
7 The Department Defendants attempt to manufacture concerns about whether Plaintiffs have adequately
pleaded proximate causation and foreseeability. See ECF No. 122 at 5. But these concerns are ill-founded
in this doctrinal context, where the Court asks whether Plaintiffs have met their deliberate indifference
burdens as to each defendant and, where, if necessary, any burdens required to establish a defendant’s
supervisory liability, such as causation or personal participation. And as explained throughout the Court’s
analysis of the Department Defendant’s dismissal motion, Plaintiffs have met their burdens under the
applicable doctrinal frameworks, notwithstanding the Department Defendants’ efforts to recast those
burdens in slightly different and unpersuasive terms.
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circulating throughout the facility. Perry, 892 F.3d at 1122. See also ECF No. 72 at ¶¶
109–14.8 And to the extent that Defendants Williams and Caley attempt to escape
supervisory liability because Defendants Bennion and Buchanan “completed a medical
consult,” as explained above this is insufficient for any of these four defendants to be
absolved of liability under a gatekeeper theory of deliberate indifference. ECF No. 86 at
13; Lucas, 58 F.4th at 1139. Nor does the argument that reliance on medical opinions
immunize them from liability prevail, see id. 14, as the case Defendants Williams and
Caley offer in support of this proposition contains a material factual distinction to the facts
alleged in the operative complaint. Cf. Est. of Beauford v. Mesa Cnty., Colorado, 35 F.4th
1248, 1265 (10th Cir. 2022) (“Mr. Beauford actually received medical care during a critical
time.” (emphasis added)).
Second, 	as 	to 	Defendants 	Licano, 	Fontenot, 	and 	Ortiz, 	the 	Department
Defendants argue that Plaintiffs fail to allege how they would have known about Mr.
Esquivel’s seizures or lidocaine use. See ECF No. 86 at 14. But as shown above, the
operative complaint contains numerous allegations explaining how these defendants
possessed such knowledge, including allegations that Defendant Licano personally
8 The Department Defendants attach the July 11, 2022, “attorney letter” in connection with their dismissal
motion, contending it does not identify a “full-blown seizure disorder,” and thus apparently undermines
Plaintiffs’ claims against Defendants Williams and Caley. See ECF No. 86 at 13; ECF No. 86-1. The Court
may consider the letter in its analysis of the Department Defendants’ dismissal motion, see Clinton, 63 F.4th
at 1275, and doing so does not undermine Plaintiffs’ claims against Defendants Williams and Caley. For
instance, the letter describes at length Mr. Esquivel’s health complications that at the time were ongoing.
See ECF No. 86-1 at 1 (“Mr. Esquivel continues to experience confusion, tremors, bouts of intense nausea,
loss of appetite, changes in sleep patterns, and drooping of his facial muscles.” (emphasis added)).
Accordingly, because the statements in this letter do not “utterly discredit” the operative complaint’s
allegations, Clinton, 63 F.4th at 1288 (citation modified), the Court rejects the Department Defendant’s
argument that the letter somehow undermines the plausible allegations that Defendants Williams and Caley
face supervisory liability for Plaintiffs’ claims against them. Cf. ECF No. 86 at 13.
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interviewed Mr. Esquivel, that these defendants specifically knew of Mr. Esquivel’s
placement in solitary confinement and how that placement would negatively affect his
health, that these defendants knew lidocaine patches were found in Mr. Esquivel’s cell,
and that Mr. Esquivel tested positive for lidocaine. See, e.g., ECF No. 72 at ¶¶ 95, 97,
99–100. As for the Department Defendants’ argument that Plaintiffs do not allege these
defendants possessed authority to “refer inmates” for treatment, this is not only immaterial
as a doctrinal matter, but is essentially an invitation to draw inferences away from
Plaintiffs’ allegations, which the Court must decline. See ECF No. 86 at 15; Clinton, 63
F.4th at 1275. And as with Defendants William and Caley, as explained above the
argument that reliance on medical opinions immunizes them from liability is unavailing
based on the numerous, well-pleaded allegations that, at this stage, the Court is bound
to accept as true. Cf. Beauford, 35 F.4th at 1265.
Third, as to Defendants Hines, Buchanan, and Bennion, the Court disagrees with
the Department Defendants that Plaintiffs have failed to allege they “had a culpable
mental state.” ECF No. 86 at 16. As explained above, and contrary to the Department
Defendants’ arguments, see, e.g., ECF No. 86 at 18, the operative complaint contains
numerous, well-pleaded allegations as to Defendants Buchanan and Bennion’s culpable
mental state of deliberate indifference. See, e.g., Lovato, 2023 WL 2613821, at *3. And
as for Defendant Hines, the operative complaint alleges,
• 	On September 5, 2022, the predictable tragedy happened: Mr. Esquivel
died from a seizure related to lidocaine toxicity. This death was not only
preventable by the Defendants who failed to act prior to that date, it was
preventable had Defendants Hines, Vrell, and Robinson performed their
duties to keep Mr. Esquivel safe.
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• 	At approximately 2:14 PM, as part of the next shift, Defendant Hines
conducted 	a 	safety 	round 	but 	failed 	to 	ensure 	Mr. 	Esquivel 	was
breathing and safe, and failed to require he stand, in violation of Post
Orders.
• 	At approximately, 3:09 PM, Defendant Hines again conducted an
inadequate safety round, failing to ensure Mr. Esquivel was breathing
and safe or that he stand, in violation of Post Orders.
• 	During a round at 4:10 PM, Defendant Hines noticed that both Mr.
Esquivel and his cellmate had not responded to Defendant Officer Hines’
instruction, as they remained in their bunks.
• 	Defendant 	Officer 	Hines 	instructed 	Mr. 	Esquivel’s 	cellmate, 	who
immediately responded, to pull what seemed to be a rug from Mr.
Esquivel’s face. Defendant Officer Hines noticed discoloration and that
Mr. Esquivel was unresponsive. Mr. Esquivel’s appearance was so
disturbing that an additional staff member who reported to the scene
noted she was seeing his distorted face when she closed her eyes at
night.
• 	Defendant Hines still failed to enter Mr. Esquivel’s cell [after seeing him
unresponsive] and waited, filming, and taking no action to help save Mr.
Esquivel for over four minutes even once she had an additional officer
on scene. When two more personnel responded, they approached Mr.
Esquivel’s cell at what can only be described as an excruciatingly slow
pace. Finally, after doing nothing to try and save Mr. Esquivel, Defendant
Hines entered the cell and pulled Mr. Esquivel from the top bunk. A
medical emergency was declared.
• 	Defendants Hines, Vrell, and Robinson failed to hew to the Post Orders
requiring careful safety checks, rules they knew exist to ensure the
safety of people in their custody like Mr. Esquivel. By Defendant Hines’s
own admission, Defendants knew of Mr. Esquivel’s substance use
disorder, knew of his seizure events, and knew that he was a particularly
vulnerable person in their care.
ECF No. 72 at ¶¶ 133, 141–45, 148.
These allegations are much more than simply “conclusions couched as ‘facts’”,
ECF No. 86 at 17, and accordingly—and for substantially the same reasons the Court
concluded that Plaintiffs have plausibly pleaded claims against Defendant Robinson—
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Plaintiffs have plausibly pleaded that Defendant Hines possessed the requisite state of
mind to satisfy the deliberate indifference subjective component. Cf. id. at 16 (arguing
that Plaintiffs have not “stated facts to support the second prong of their claims” as to
these defendants). And as with their other arguments, where the Department Defendants
argue that “there are no allegations to lend plausibility to an argument that standing
checks would have led to a different result,” id. at 86 at 18, this invites a fundamentally
obvious and obviously fundamental misapplication of the governing legal standard. The
Court—as with the all Department Defendants’ prior invitations—declines the invitation.
Defendant 	Garcia. 	the 	Department 	Defendants 	argue 	that 	“the 	[operative]
complaint contains no allegations that [Defendant] Garcia failed to act to protect” Mr.
Esquivel. ECF No. 86 at 19. The Court disagrees. The operative complaint alleges,
• 	As case manager, Defendant Garcia reviewed Mr. Esquivel’s prison file and
was familiar with his history of seizures, his history of self-medicating with
substances including lidocaine, the family tragedy of his sister Luisa’s death
in late 2021, and the other circumstances of his confinement as alleged
herein.
• 	Defendant Garcia also knew, as did all Defendants, about the use of
lidocaine patches in CTCF by incarcerated people by boiling the patches
and drinking the liquid, and that such use posed a serious danger to the
health and life of people who did it, including Mr. Esquivel.
• 	Mr. Esquivel repeatedly alerted staff including Defendant Garica that he was
struggling to cope with Luisa’s death in the months preceding his own tragic
death.
• 	Defendant Garcia witnessed Mr. Esquivel’s increase in anxiety, depression,
and resultant substance abuse following his sister’s death.
• 	Defendant Garcia learned that on August 13, 2022, Mr. Esquivel reported
to staff that he was consuming lidocaine to cope with Luisa’s death, or self-
medicating to cope with the symptoms of depression or other mental
condition impacting him. Despite this explicit cry for help, Defendant took no
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action to eliminate or even reduce Mr. Esquivel’s access to lidocaine, or to
ensure he received treatment for the grief and suffering he was enduring.
• 	Mr. Esquivel specifically asked Defendant Garcia to be seen by Mental
Health on August 23, 2022. Defendant Garcia knew about Mr. Esquivel’s
August 9 medical emergency and life-threatening seizure, she knew he was
using lidocaine to self-medicate, and she knew he needed immediate help.
Despite the crisis, Defendant Garcia failed to ensure Mr. Esquivel received
a prompt mental health assessment on August 23 or thereafter. He would
be dead just a few weeks later on September 5, never having received the
help he needed.
• 	This delay and denial of access to mental health care by Defendant Garcia
was in deliberate indifference to the serious and immediate risk Mr. Esquivel
faced if his mental illness remain untreated. [This] deliberate indifference
was magnified by her knowledge of his use of a dangerous substance—
lidocaine—to 	self-medicate, 	that 	the 	substance 	had 	triggered 	life-
threatening seizures, that lidocaine continued to be available to him, and
that Mr. Esquivel would inevitably return to self-medicating with lidocaine if
no intervention promptly occurred.
• 	Defendant Garcia also failed to ensure Mr. Esquivel was referred to a
neurologist or seizure specialist. Because of Defendant Garcia’s deliberate
indifference to the risks of another seizure, Mr. Esquivel never received any
diagnosis or treatment for his seizures.
• 	Defendant Garcia further failed to ensure Mr. Esquivel was placed in
housing that would provide adequate monitoring, or that would eliminate or
even reduce his access to lidocaine. Defendant Garcia knew of the staffing
shortages that enabled diversion of lidocaine to high-risk individuals such
as Mr. Esquivel.
• 	Defendant Garcia knew that, in response to Mr. Esquivel’s hospitalizations
in May, June, and August, CDOC punished him with solitary confinement,
which she knew only exacerbated his symptoms and made it more likely
he’d 	continue 	to 	self-medicate. 	Defendant 	Garcia 	further 	knew 	that
whenever Mr. Esquivel was returned to general population, he would
resume 	self-medicating. 	In 	reckless 	disregard 	to 	these 	known 	risks,
Defendant 	Garcia 	allowed 	for 	Mr. 	Esquivel 	to 	remain 	housed 	in 	an
environment that had already been proven life-threatening. Defendant
Garcia’s failure to ensure prompt mental health and medical care, and a
safe housing environment, was a direct cause of his death.
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ECF No. 72 at ¶¶ 120–26, 128–30. For substantially the same reasons as those
discussed in the Court’s analysis of Defendant Robinson’s dismissal motion, these
allegations are sufficient to plausibly allege Defendant Garcia’s liability under a failure to
protect theory of deliberate indifference. Regardless, the Department Defendants’ cursory
arguments to the contrary—that Mr. Esquivel received some medical treatment, and that
Defendant Garcia was entitled to rely on the medical staff assessments, see ECF No. 86
at 20—have been rejected above, and the Court rejects them again here.
2. 	Qualified Immunity
The Department Defendants contend they “are entitled to qualified immunity” as a
defense to Plaintiffs claims against them. See ECF No. 86 at 20. After reciting the general
legal standard, the Department Defendants devote only two substantive paragraphs of
argument explaining why they contend they enjoy such an entitlement, chiefly that: “As
noted above, [Plaintiffs] have failed to allege facts establishing that [the Department]
Defendants violated [Mr.] Esquivel’s Eighth Amendment rights; it follows that Plaintiffs
have not alleged facts sufficient to establish violations of a clearly established right.” ECF
No. 86 at 21.
Put to the side that the Department Defendants’ arguments are so brief as to
warrant rejection on that basis alone. See, e.g., Berryman, 143 F.4th at 1140; Ward, 2023
WL 4744928, at *9.9 But the essential “incorporation” of the Department Defendants’
dismissal arguments into their qualified immunity arguments is doctrinally improper. See
Berryman, 143 F.4th at 141 (“[I]n raising a qualified-immunity defense, a defendant may
9 So brief a reader could be forgiven for mistaking the Department Defendants’ argument as lazy.
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not merely rely on substantive legal arguments based on the Rule 12(b)(6) failure-to-
state-a-claim standard.” (citation modified)). “This is because a claim of immunity is
conceptually distinct from the merits of the plaintiff’s claim.” Ellis v. Salt Lake City Corp.,
147 F.4th 1206, 1220 (10th Cir. 2025) (citation modified). Accordingly, even if the Court
could read the Department Defendants’ substantive argument without half a page to
spare, the Department Defendants are wrong to essentially incorporate the entirety of
their dismissal briefing— “as noted above”; “it follows”—into one sentence in one
paragraph in a section of their brief concerning such an important defense that might
otherwise shield them from “liability for civil damages.” See id. at 1140 (citation modified).
And nothing in the Department Defendant’s reply brief can salvage their motion’s too-
short briefing. Cf. ECF No. 122 at 12; Healy-Petrik v. State Farm Fire & Cas. Co., No.
2:20–cv–00611–TC–JCB, 2022 WL 464220, at *6 n.8 (D. Utah Feb. 15, 2022) (“[T]he
court does not consider arguments raised for the first time in reply.” (citation modified)).
3. 	Failure to Protect Theory
Plaintiffs argue that they have plausibly alleged a “failure to protect claim” that
“Defendants failed to protect and monitor Mr. Esquivel from known and specific dangers
to his health.” ECF No. 99 at 18. For all the reasons set forth above, the Court agrees.
Fundamentally, Plaintiffs have plausibly alleged that Defendants Fontenot, Licano, Ortiz,
Garcia, Williams, Caley, and Hines all knew the dangers that lidocaine posed to Mr.
Esquivel but failed to act in the face of those known dangers. Id. at 20–21, 23.10 Even
10 The Court notes that Plaintiffs represent they bring claims Defendants Buchanan and Bennion under
“failure to properly treat” and “fail[ure] [to meet] their gatekeeper duty” theories of liability. ECF No. 99 at
12. Thus, even though the Court is here concerned with the plausibility of Plaintiffs’ claims against
Defendants Fontenot, Licano, Ortiz, Garcia, Williams, Caley, and Hines based on a failure to protect theory,
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construing the arguments the Department Defendants make throughout their dismissal
briefing as attendant to Plaintiffs’ failure to protect theory of deliberate indifference, the
Court has rejected them and does so again.
* * *
Accordingly, and for the reasons set forth above, the Court rejects all arguments
the Department Defendants advance in favor of dismissal, and therefore the Court denies
their dismissal motion.
C. Defendant Vrell
Reading Defendant Vrell’s dismissal motion, his actual legal arguments come
surprisingly late in the game. Cf. ECF No. 91 at 1–9. And once a reader gets there, those
arguments sound familiar:
• 	Plaintiffs’ Second Amended Complaint fails to plausibly allege a claim
against Defendant Vrell for violation of the Eighth Amendment; and
• 	Defendant Vrell is entitled to qualified immunity and therefore Plaintiffs’
claim against him should be dismissed as a matter of law.
ECF No. 91 at 9, 11. The Court considers and rejects these arguments in turn.
First, Defendant Vrell essentially argues that the allegations in the operative
complaint fail to show that he “personally participated in the alleged constitutional violation
with a sufficiently culpable state of mind.” ECF No. 91 at 10; ECF No. 119 at 3. But the
operative complaint contains the following well-pleaded allegations:
• 	Defendants knew lidocaine played a role in Mr. Esquivel’s seizures. On
August 9, Defendant Vrell searched Mr. Esquivel’s cell following his
seizure, searching for evidence of the substance involved in causing the
the Court reiterates that Plaintiffs have set forth plausible claims against Defendants Bennion and
Buchanan under these other two theories of deliberate indifference, as explained above.
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seizure. They found unknown white pills, a flex pen with residue inside,
and four lidocaine patches, which Mr. Esquivel was not prescribed to
possess or use.
• 	Defendant Vrell once again found a discrepancy in Mr. Esquivel’s
property which was a clear indication Mr. Esquivel was buying lidocaine
patches, and likely other substances, using prison property and other
personal possessions.
• 	Defendant Vrell reported finding the unprescribed lidocaine patches to
his superiors and medical staff, including Defendants Fontenot, Licano,
and Ortiz named herein. By this time, it was well known by both security
and medical staff that Mr. Esquivel was trading for or buying lidocaine
patches, consuming the liquid, and suffering dangerous seizures as a
result.
• 	On September 5, 2022, the predictable tragedy happened: Mr. Esquivel
died from a seizure related to lidocaine toxicity. This death was not only
preventable by the Defendants who failed to act prior to that date, it was
preventable had Defendants Hines, Vrell, and Robinson performed their
duties to keep Mr. Esquivel safe.
• 	At approximately 11:00 AM, Defendants Vrell and Robinson conducted
a safety round of Mr. Esquivel’s unit, but failed to ensure he stood and/or
was breathing and safe. They failed to ensure he was in a standing
position, as required by Post Orders. The officers completed their safety
check of the entire unit in less than 40 seconds. Defendant Vrell
admitted in his incident review interview that he did not prioritize making
incarcerated people stand for count enough, admitting facts sufficient to
infer deliberate indifference.
• 	During a round at 12:09 PM, they once again failed to ensure Mr.
Esquivel was breathing and safe, and failed to ensure he stood, in
violation of Post Orders.
• 	Defendants Vrell and Robinson then failed to conduct any safety rounds
whatsoever of Mr. Esquivel’s unit between 12:09 PM and the end of their
shift at 2:00 PM, also in violation of Post Orders.
• 	Defendants Hines, Vrell, and Robinson failed to hew to the Post Orders
requiring careful safety checks, rules they knew exist to ensure the
safety of people in their custody like Mr. Esquivel.
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ECF No. 72 at ¶¶ 53–55, 133, 138–140, 148 (citations modified).
Accepting these allegations as true and drawing inferences from them in Plaintiffs’
favor, 	they 	are 	certainly 	enough 	to 	“indicate 	[and] 	suggest 	that 	Defendant 	Vrell
subjectively recognized and disregarded a substantial risk to Mr. Esquivel’s safety,” thus
surviving Defendant Vrell’s dismissal challenge to Plaintiffs’ Eighth Amendment claim.
ECF No. 91 at 10. Indeed, Defendant Vrell’s arguments that Plaintiffs’ claim is implausible
because Plaintiffs fail to allege, for instance, that Defendant Vrell had “any role in Mr.
Esquivel’s medical care,” id., invite a misapplication of the governing legal standard, but
moreover Defendant Vrell cites no authority in support of the proposition that such an
allegation is a requirement for Plaintiffs’ ability to assert a plausible Eighth Amendment
claim against Defendant Vrell as “an employee of CDOC” whom Plaintiffs sue in his
individual capacity. ECF No. 72 at ¶ 20; cf. ECF No. 119 at 5. Nor does Defendant Vrell’s
alleged reporting of Mr. Esquivel’s lidocaine patches immunize him from deliberate
indifference liability, see Lucas, 58 F.4th at 1139, particularly where Plaintiffs also allege
that, like Defendant Robinson, Defendant Vrell violated Post Orders. Compare ECF No.
91 at 10, with Burwell, 7 F.4th at 456. And these allegations read in their entirety—which
are not at all simply “generalized” or “conclusory”— certainly do more than advance a
“negligence” theory of liability. Cf. ECF No. 91 at 10.
Fundamentally, and for substantially the same reasons discussed in the Court’s
analysis of Defendant Robinson’s and the Department Defendants’ dismissal motions,
the Court agrees with Plaintiffs that they have pleaded a plausible failure to protect claim
against Defendant Vrell, particularly in light of the ample allegations regarding Defendant
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Vrell’s subjective knowledge of the excessive risks that Mr. Esquivel faced to his safety
due to both his lidocaine abuse and seizure disorder, and Defendant Vrell’s failure to
adequately monitor Mr. Esquivel—in other words, his personal involvement—despite that
subjective knowledge. See ECF No. 112 at 7; id. at 9 (citing ECF No. 72 at ¶¶ 53–56,
131–32); id. at 10; Garcia v. Salt Lake Cnty., 768 F.2d 303, 308 (10th Cir. 1985)
(“Deliberate indifference to serious medical needs may be shown by proving there are
such gross deficiencies in staffing, facilities, equipment, or procedures that the inmate is
effectively denied access to adequate medical care.” (citation modified)). The Court’s
conclusion is bolstered by Plaintiffs’ allegations that Defendant Vrell’s conduct also
amounted to violations of Post Orders. See Burwell, 7 F.4th at 456.
Second, as for Defendant Vrell’s qualified immunity argument, it proceeds from a
flawed premise: “[T]here is no clearly established constitutional right to be protected from
the voluntary misuse of contraband.” ECF No. 91 at 12.11 Defendant Vrell cites authority
also marshaled by Defendant Robinson and the Department Defendants—for example,
Zakora and Legate—which, explained above, does not foreclose Plaintiffs’ Eighth
Amendment claims. Cf. ECF No. 91 at 12–13. Indeed, plenty of cases in the Tenth Circuit
permitted Eighth Amendment deliberate indifference claims to proceed despite or
11 Defendant Vrell also argues that “violations of internal policies” do not amount to constitutional violations.
ECF No. 91 at 12. The Court devotes little time to this argument because reading the operative complaint
and Plaintiffs’ responses to Defendants’ dismissal motions confirm that their claims are not premised on
various Defendants’ violations of Post Orders alone, but rather proceed from the premise that Mr. Esquivel’s
constitutional rights were violated by the entirety of Defendants’ conduct, all of which—accepting Plaintiffs’
well-pleaded allegations as true—amounts to deliberate indifference.
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notwithstanding a plaintiff’s or decedent’s voluntary conduct. See, e.g., Garcia, 768 F.2d
at 308. Accordingly, Defendant Vrell’s clearly established argument fails.
Defendant Vrell then argues the following, which the Court quotes in full:
Because Plaintiffs fail to allege any conduct by Defendant Vrell that
plausibly violated a constitutional right, and because no clearly established
law prohibits the alleged conduct, qualified immunity applies. See White v.
Pauly, 580 U.S. 73, 79 (2017) (qualified immunity protects all but the “plainly
incompetent or those who knowingly violate the law”). There is no legal
basis 	for 	holding 	Defendant 	Vrell 	individually 	liable 	under 	these
circumstances. Accordingly, the claim against him must be dismissed.
ECF No. 91 at 14.
This paragraph—except for a parenthetical quotation—is three sentences long.
See id. Asserting qualified immunity in such an abbreviated way—and in a way that
essentially 	incorporates 	plausibility 	arguments—is 	wrong 	doctrinally. 	See, 	e.g.,
Berryman, 143 F.4th at 1140; Ellis, 147 F.4th at 1220. Accordingly, the Court rejects this
argument as a basis for dismissing Plaintiffs’ claim against Defendant Vrell and need say
no more. And, as with the Department Defendants, arguments made in reply are not
enough to salvage the motion’s own briefing deficiencies. See Healy-Petrik, 2022 WL
464220, at *6 n.8.
* * *
The Court makes one final observation. Three of the four instant dismissal motions
assert qualified immunity as a defense to Plaintiffs’ claims. They do so in a manner that,
by now, the Tenth Circuit has clearly stated is insufficient. See Berryman, 143 F.4th at
1140–41.
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The Court takes seriously any defendant’s assertion of qualified immunity. After
all, “qualified immunity is not only a defense to liability, but immunity from suit.” Est. of
Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (citation modified). But Defendants’
cursory assertions of such an important defense—and then too-late efforts to salvage
those 	assertions 	through 	rehabilitative 	reply 	briefing—threaten 	to 	undermine 	its
importance and, at worst, insult the individuals on whose behalf it is asserted. As the
Court presumes Defendants intended nothing of the sort—despite the quality and brevity
of their qualified immunity briefing—it presumes moving forward that their briefing on any
substantive issue will be well-developed yet concise, and adherent to any clear Tenth
Circuit guidance or precedent.
D. Defendant Amergis Healthcare
Defendant Amergis Healthcare Staffing Incorporated (Amergis Healthcare) moves
to strike and dismiss, see ECF No. 127 at 4, Plaintiffs’ claims against it. The Court rejects
Amergis Healthcare’s arguments for the following reasons.
First, Amergis Healthcare moves to strike Plaintiffs’ “First Claim for Relief . . . as
to [it] as duplicative pursuant to” Rule 12(f). ECF No. 127 at 6. However, the Court agrees
with Plaintiffs that, although this claim is styled as asserted “Against All Defendants,” ECF
No. 72 at 41, it is clear this claim is asserted against the individual Defendants. See ECF
No. 136 at 2–3; ECF No. 72 at ¶ 162 (“All of the deliberately indifferent acts of each
individual Defendant were conducted within the scope of their official duties and
employment.” (citation modified)). Accordingly, to the extent that Amergis Healthcare
moves to strike Plaintiffs’ first claim against it, this request is denied as moot, given it is
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clear that Plaintiffs—as they represent in their response to Amergis Healthcare’s motion—
only assert their first claim for relief against the individual defendants. See ECF No. 136
at 2–3; ECF No. 72 at ¶ 162. The Court’s conclusion to deny Amergis Healthcare’s
request as moot is bolstered by Plaintiffs’ representation that “Plaintiffs’ counsel have
conferred with defense counsel for Amergis and agreed to stipulate that only Claims Two
and Three are alleged against Defendant Amergis.” ECF No. 136 at 3.
Second, 	Amergis 	Healthcare—after 	reciting 	basic 	§ 	1983 	vicarious 	liability
principles—argues only the following: “Given the clear holding of U.S. courts on this issue,
Plaintiffs’ references to, and claims sounding in vicarious liability in their Second Claim
for Relief fail as a matter of law and must be dismissed or stricken pursuant to” Rule
12(b)(6). ECF No. 127 at 7. The Court agrees with Plaintiffs that this single sentence of
argument is “perfunctory,” ECF No. 136 at 11 and inadequately developed. Accordingly,
the Court rejects it on this basis and therefore denies Amergis Healthcare’s dismissal
motion. See, e.g., Morris v. O’Malley, No. 1:22–cv–00318–LF, 2023 WL 8827730, at *8
(D.N.M. Dec. 21, 2023) (“This argument is not developed, and the Court will not consider
it. [I]ssues raised only in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (citation modified)); United States v.
Rodriguez, No. 19–cv–1082–WJM, 2020 WL 525717, at *4 n.2 (D. Colo. Feb. 3, 2020)
(“The Court need not address arguments not raised or inadequately developed.” (citation
modified)); Saleem v. Bondi, No. 23-9568, 2025 WL 1767817, at *1 (10th Cir. June 26,
2025) (“We do not consider inadequately developed arguments.” (citation modified)).
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II. 	CONCLUSION
Consistent with the above analysis, Defendants’ dismissal motions are DENIED. See
ECF Nos. 84, 86, 91, 127.
DATED this 19th day of December 2025.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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