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Garewal v. U.S. Marshal Jorome Sliz

United States District Court, D. Colorado

September 24, 2014

MILTON BRADLEY GAREWAL, Plaintiff,
v.
U.S. MARSHAL JOROME SLIZ, U.S. MARSHAL GILLIAN FLECK, DR. CRUM, NURSE JOHNSON, and THE NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, Defendants.

ORDER ADOPTING MAGISTRATE'S RECOMMENDATIONS AND DISMISSING CASE

RAYMOND P. MOORE, District Judge

This matter is before the Court on U.S. Magistrate Judge Boyd N. Boland's July 29, 2013 Recommendation (ECF No. 60) that Claim Three of the Third Amended Complaint be dismissed as legally frivolous. This matter is also before the Court on Judge Boland's two December 9, 2013 Recommendations (ECF Nos. 92 and 94, respectively "Recommendation One" and "Recommendation Two"). Recommendation One recommends that the Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) filed by Defendants Crum and Johnson (ECF No. 57) be granted. Recommendation Two recommends that this Court grant the Motion to Dismiss filed by Defendants Jerome Sliz and Gillian Fleck (ECF No. 75). Plaintiff filed objections to each of Recommendations One and Two (ECF Nos. 95 and 96), which are addressed herein. For the reasons stated below, the Magistrate Judge's Recommendations are ADOPTED, the Objections to the Recommendations are OVERRULED, and Plaintiff's Complaint is DISMISSED.

I. LEGAL STANDARD

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the Magistrate Judge's recommendations and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

II. FACTS AND PROCEDURAL HISTORY

The Court adopts and incorporates the factual and procedural history included within the referenced Recommendations as if set forth herein. To the extent any additional facts are necessary for context or for the Court's resolution of this matter, such facts are set forth below.

Plaintiff's Third Amended Complaint was tendered on May 17, 2013 and was accepted for filing on July 29, 2013. (ECF No. 61.) In it, he alleges claims against three clusters of defendants: U.S. Marshals (Sliz and Fleck), Denver County Jail medical staff (Crum and Johnson), and the National Commission on Correctional Health Care (the "Commission").

As to the Marshals, Plaintiff alleges as follows. On May 11, 2012, while in the custody of two United States Marshals, Defendants Sliz and Fleck ("Defendant Marshals"), Plaintiff was transferred from one facility (the "Denver County Jail") to another (the "Federal Building"). ( Id. at 6.) He informed Defendant Marshals that he has a "drop foot" and was wearing a brace, but he was nonetheless required to wear shackles. ( Id. ) During transport, Plaintiff tripped and broke three bones in his right foot, but he walked during the remainder of his transport. ( Id. at 7.) When Plaintiff was returned to the Denver County Jail, he asked Defendant Marshals if they were going to tell personnel at the Denver County Jail about his broken foot, and they responded that he would have to submit a "medical kite" and tell the appropriate personnel himself. ( Id. at 8.)

As to medical staff, Plaintiff alleges as follows. Upon his return to the jail, Plaintiff contacted a deputy and was told that there were no "kites" available, and he would have to ask a nurse for one. ( Id. ) He submitted a medical kite on May 14, 2012, which stated that he had a broken foot due to wearing shackles. ( Id. at 11.) The following day, Plaintiff saw Defendant Johnson, a nurse, who observed that Plaintiff's foot was inflamed, bruised, swollen and hot to the touch. ( Id. ) Defendant Johnson did not send Plaintiff to the hospital or prescribe any medication; according to Plaintiff, he was simply sent back to his pod on foot. ( Id. ) On May 18, 2012, Dr. Crum examined Plaintiff and noticed bruising and swelling. Following the examination, Dr. Crum had Plaintiff return to his cell without a cane, boot or pain pills to await an x-ray. On May 21, 2012, Plaintiff saw an x-ray technician, who "noted... that Plaintiff has had a broken foot sense [sic] May 11th 2012 due to shackles being place on Plaintiff's feet." ( Id. at 12.)

As to the National Commission on Correctional Health Care, the entirety of the allegation is as follows:

"[The Commission] has accredited this facility (The Denver City Detention Center) medical department with policies and procedures used in handeling [sic] inmate medical treatment."

Both the Marshal and medical staff Defendants moved for dismissal of the constitutional and conspiracy claims against them. The medical staff also moved for dismissal of any state law malpractice claim for failure to provide a certificate of review as required by C.R.S. ยง 13-20-602. (ECF Nos. 57 and 75). Sua sponte, the Magistrate Judge recommended that the claim against the Commission be dismissed as legally frivolous.

The Magistrate Judge's collective recommendations equate to a recommendation that the complaint and all ...


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