Case Information
*1 Before GORSUCH , BALDOCK , and McHUGH , Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral аrgument.
I. INTRODUCTION
During his brief incarceration in the Denver County Jail, Gordon Bauer complained of pain in his leg, ankle, and foot. He received medical treatment while in jail but his condition ultimately required amputation, which took place after hе was released *2 from custody. Mr. Bauer filed a complaint against the City and County of Denver (the City) more than two years after his release, claiming the City had subjected him to cruel and unusual punishment by denying him timely access to adequate medicаl care. The City moved to dismiss the complaint as barred by the statute of limitations and for failure to state a claim, and Mr. Bauer moved to amend his complaint. The district court denied Mr. Bauer leave to amend and granted the City’s motion to dismiss. Wе affirm.
II. BACKGROUND [1]
Mr. Bauer alleges in his complaint that he was incarcerated in the Denver County Jail during the months of April and May 2012 under the custody of the Denver Sheriff’s Department. During that time, he reported extreme pain in his right leg, ankle, and foot, but “was refused proper medical treatment.”
Only after Mr. Bauer complained for several days did the jail employees transport him to a Denver Health medical facility. But while in the care of Denver Health, Mr. Bauer “was not properly cared for.” In particular, Denver Health “failed to properly diagnose and treat Mr. Bauer’s foot” and instead simply applied bandages and sent him back to jail. After Mr. Bauer continued to complain about the pain, jail employeеs again took him to Denver Health where he was informed his foot could no longer be saved.
Mr. Bauer was released from jail soon thereafter and saw several physicians in an attempt to save his foot. The physicians each indicated that proper treatment while in jail *3 could have saved his foot but that “[a]s a result of the City’s negligence and Denver Health’s negligence Mr. Bauer was required to undergo full amputation of his lower leg on June 28, 201[2].”
On June 23, 2014, Mr. Bauer filed a section 1983 complaint against the City that is the subject of this dispute. He alleges the City acted in bad faith and with deliberate indifference to his medical needs and constitutional rights when an unknown individual defendant willfully ignored his repeated requests for medical assistance, and he further claims this indifference led to the amputation of his foot.
On January 2, 2015, the City filed a motion to dismiss, contending that Mr. Bauer failed to timely serve his complaint pursuant to Federal Rule of Civil Procedure 4(m), that his complaint was barred by the statute of limitations, and that he had failed to state a claim upon which relief could be granted. On February 6, 2015, Mr. Bauer filed a motion to amend his complaint together with a proposed amended complaint.
The district court denied Mr. Bauer’s motion to amend and also granted the City’s motion to dismiss on July 5, 2015. Mr. Bauer timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
III. DISCUSSION On appeal, Mr. Bauer argues the district court erred in: (1) denying his motion to amend the complaint, (2) dismissing the complaint on statute of limitations grounds, and (3) dismissing the complaint for failure to state a claim. We agree with the district court that dismissal was appropriate on either basis and that amending the complaint would have been futile. Accordingly, we affirm.
A.
Dismissal
The district court granted the City’s motion to dismiss both for failure to state a
claim and because Mr. Bauer’s complaint was barred by the statute of limitations. We
review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil
Procеdure 12(b)(6).
Slater v. A.G. Edwards & Sons, Inc.
,
Mr. Bauer has filed suit directly against the City; to establish municipal liability,
he is therefore required to show (1) “the existence of a municipal policy or custom” and
(2) “a direct cаusal link between the policy or custom and the injury alleged.”
Mocek v.
City of Albuquerque
, No. 14-2063,
Mr. Bauer has failed to plead sufficient facts to support a claim for municipal liability. In his complaint, he makes various allegations against an unnamed “Individual Defendant,” claiming this defendant prevented him from gaining access to adequate medical care and further treatment. For example, he claims this defendant “act[ed] in bad faith and with deliberate indifference to Plaintiff’s serious medical needs and constitutional rights when he willfully ignored his repeated requests for medical attention and intentionally denied and/or delayed his access to medical care.” And he further alleges that “the acts or omissions of Defendant as described herein intentionally deprived Plaintiff of his constitutional rights and were moving forces and substantial significant contributing proximate causes of Plaintiff’s injuries.”
In his proposed amended complaint, he adds that the City’s (specifically the Sheriff’s Department’s) “unconstitutional policies, customs, [and] practices, as described herein, were the legal proximate cause of the amputation of the Plaintiff’s foot” and that the City “hаs recently been hit with numerous lawsuit[s] and allegations including abuse and failure to provide medical attention to their inmates.”
As the district court correctly acknowledged, Mr. Bauer’s complaint contains
insufficient allegations to support a claim that the
City
“was the ‘moving force’” behind
the alleged constitutional violation.
Brown
,
Furthermore, the complaint lacks allegations to support a claim that the City’s established practice was to withhold timely and adequate access to medical care. On appeal, Mr. Bauer recognizes that such a practice “need not be codified and may be evidenced by a widespread practice so permanent and well settled as to constitute a custom or usage having the force of law.” But his complaint contains allegations about only a single incident—the treatment of Mr. Bauer’s medical complaints during his incarceration.
The district court also correctly concludеd the action is barred by the statute of
limitations. “Plaintiffs have no obligation to plead against affirmative defenses,”
including a statute of limitations defense.
Asebedo v. Kan. State Univ.
, 559 F. App’x.
668, 671 (10th Cir. 2014) (unpublished). But “when the dates given in the complaint
make clear that the right sued upon has been extinguished,” dismissal under 12(b)(6) is
appropriate.
Aldrich v. McCulloch Props., Inc.
,
Based on the allegations in Mr. Bauer’s complaint, dismissal was warranted on
statute of limitations grounds. As the district court aptly explained in its order, Mr.
Bauer’s claim was subject to a two-year statute of limitations that accrued on the date he
knew or should have known his constitutional rights had been violated. Colo. Rev. Stat.
§ 13-80-102(1)(g);
Smith v. City of Enid
,
On appeal, Mr. Bauer maintains that his claim accrued on the date of his
amputation—June 28, 2012. But his alleged injury is not the amputation itself, which
occurred after he was released from custody; it is the alleged cruel and unusual
punishment during his incarceration, manifested by deliberate indifference to his medical
needs. Although Mr. Bauer asserts this indifference led to the amputation, he
acknowledges in his complaint that he became aware his foot could not be saved before
he was released from custody in May 2012.
See Alexander v. Oklahoma
,
B.
Motion to Amend
Mr. Bauеr further claims the district court erred in denying his motion to amend
his complaint. “[T]he grant of leave to amend the pleadings pursuant to Rule 15(a) is
within the discretion of the trial court.”
Zenith Radio Corp. v. Hazeltine Research, Inc.
,
On appeal, Mr. Bauer contends the district court did “not give any specifics on how the Amended Cоmplaint if allowed would fail to state a claim for relief” and “failed [to] look at the amended complaint in its analysis and accept all factual allegations as true.” But in ruling on Mr. Bauer’s motion to amend, the district court considered all of the allegations in Mr. Bauer’s proposed amended complaint and assumed them to be true. The district court nevertheless found the additional allegations insufficient to support a claim for municipal liability.
We agree that Mr. Bauer’s proposed amended complaint added little to his claim.
He merely noted that “[t]he Sheriff names that were involved are unknown to the
Plaintiff” and that the Sheriff’s Department’s “unconstitutional policies, customs, [and]
practices, as described herein, were the legal proximate cause of the amputation of the
Plaintiff’s foot.” To support this position, he asserted that “the City has recently been hit
with numerous lawsuit[s] and allegations including abuse and failure to providе medical
attention to [its] inmates.” But vague notions of pending lawsuits and a conclusory
statement of the Sheriff’s Department’s customs fail to provide the factual allegations
that withholding medical care was the City’s pattern or praсtice.
See Monell v. Dep’t of
Soc. Servs.
,
As amendment would have been futile, the district court did not abuse its discretion in denying Mr. Bauer’s motion to amend.
IV. CONCLUSION
For the foregоing reasons, we AFFIRM the district court’s order granting the City’s motion to dismiss and denying Mr. Bauer’s motion to amend.
Entered for the Court Carolyn B. McHugh Circuit Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[1] We state the facts as alleged in Mr. Bauer’s complaint. Mink v. Knox , 613 F.3d 995, 1000 (10th Cir. 2010) (in determining whether a motion to dismiss was properly granted, “[w]e accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party”).