United States District Court, D. Colorado
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
WILEY Y. DANIEL, Senior District Judge.
THIS MATTER is before the Court on pro se plaintiff, Michael Dicino's, Motion For Leave To Amend Complaint [ECF No. 84] and Magistrate Judge Mix's Recommendation [ECF No. 103]. Because Dicino proceeds pro se, I referred this action to Magistrate Judge Mix. ECF No. 20. On October 9, 2013, Magistrate Judge Mix issued her Recommendation [ECF No. 103] on Dicino's Motion For Leave To Amend Complaint [ECF 84] in which she states that Dicino's motion should be granted in part and denied in part. Magistrate Judge Mix's Recommendation [ECF No. 103] is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Rule 72(b) of the FEDERAL RULES of CIVIL PROCEDURE, and D.C.COLO.LCivR. 72.1.
On August 30, 2012, Dicino filed a Second and Final Amended Prisoner Complaint [ECF No. 16] alleging a claim under 42 U.S.C. § 1983 that defendants, Michael Renfro and Alexandra Garcia, violated his Eighth Amendment right to be free from cruel and unusual punishment. Dicino is currently incarcerated at Arapahoe County's detention facility in Colorado. Dicino was previously incarcerated at Jefferson County Jail in Colorado. Renfro is an Administrative Sergeant at Jefferson County Jail, and Garcia is a Nurse at Jefferson County Jail.
While at Jefferson County Jail, Dicino alleges that water from the showers leaked into the dayroom outside his cell and into his own cell. Dicino alleges that the water formed a "constant moldy puddle" and correctional officers did not provide him with a mop to clean the area. ECF No. 16, p. 4, ¶ 2. Dicino further alleges that as a result of the moldy puddle, he developed a painful skin rash over his entire body "that was so obvious even a layperson would realize the need for medical attention." Id.
Dicino states that he requested medical attention and sent written requests to Garcia, yet he did not receive medical attention until two months after the requests. Upon receiving medical attention, a doctor prescribed steroids for Dicino's rash yet Dicino never received the steroids. As a result, Dicino states that Garcia violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide him adequate medical care.
Dicino states that he alerted Renfro about the condition of his cell and Renfro failed to remedy the leaky shower. Dicino argues that his conditions of confinement and Renfro's failure to fix the leaky shower constitute cruel and unusual punishment under the Eighth Amendment.
On October 11, 2012, Renfro filed a Motion To Dismiss Pursuant To Fed.R.Civ.P. 12(b)(1) And 12(b)(5) [ECF No. 28], arguing that: (1) Dicino fails to state a claim for cruel and unusual living conditions; (2) the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(e), bars Dicino's claim for compensatory damages; (3) Dicino fails to allege facts to support a claim against Renfro in his official capacity; and, (4) qualified immunity bars Dicino's claim against him in his individual capacity. On December 5, 2012, Garcia filed a Motion To Dismiss Plaintiff's Second And Final Amended Prisoner Complaint [ECF No. 45], arguing that: (1) Dicino fails to allege a causal link between his cell conditions and his rash; (2) Dicino fails to adequately allege that she was deliberately indifferent to his medical needs; and, (3) Dicino fails to allege facts to support a claim against her in her official capacity. On February 14, 2013, Magistrate Judge Mix issued a Recommendation [ECF No. 58] stating that: (1) Renfro's motion [ECF No. 28] should be granted and that he should be dismissed from this action; and, (2) Garcia's motion [ECF No. 45] should be granted to the extent Garcia seeks dismissal of Dicino's claim against her in her official capacity, and denied to the extent Garcia seeks dismissal of Dicino's claim against her in her individual capacity. On May 28, 2013, I issued an Order [ECF No. 72] affirming and adopting Magistrate Judge Mix's Recommendation [ECF No. 58].
On June 21, 2013, Dicino filed his Motion For Leave To Amend Complaint [ECF No. 84] in which he requests leave to amend his complaint to cure deficiencies in his previously dismissed Eight Amendment claim against Renfro and to clarify allegations in his Eighth Amendment claim against Garcia. On October 9, 2013, Magistrate Judge Mix issued a Recommendation [ECF No. 103] on Dicino's motion [ECF No. 84] stating that Dicino's motion should be granted to the extent he wishes to clarify allegations against Garcia and denied to the extent Dicino wishes to add allegations to cure deficiencies in his previously dismissed claim against Renfro. On November 18, 2013, Dicino filed his Objections to Recommendation Of United States Magistrate Judge [ECF No. 108] in which he objects to the finding that his allegations are insufficient to state a claim against Renfro.
A. Sections of Magistrate Judge Mix's Recommendation That Are Without Objection
No objections were filed regarding Magistrate Judge Mix's recommendation that Dicino be granted leave to amend his complaint as it relates to his Eight Amendment claim against Garcia. As such, I am vested with discretion to review that portion of the Recommendation "under any standard [I] deem appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review this portion of the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." FED. R. CIV. P. 72(b) Advisory Committee Notes.
Upon careful review, I find that there is no clear error on the face of the record and this portion of the Recommendation is thorough, well-reasoned, and sound. Therefore, Dicino's Motion For Leave To Amend Complaint [ECF No. 84] is GRANTED ...