United States District Court, D. Colorado
R. BROOKE JACKSON, District Judge.
This case is before the Court on defendants K. Burford and R. Olivett's motion to dismiss (ECF No. 56) and the Recommendation of Magistrate Judge Kathleen M. Tafoya that the motion be granted (ECF No. 68). More specifically, Judge Tafoya recommends that this Court (1) dismiss plaintiff's Eighth Amendment claims as to these two defendants and also as to defendants Rick Raemisch and Travis Trani, with prejudice, and (2) dismiss plaintiffs Fourteenth Amendment claim in its entirety without prejudice. The Court now affirms the Recommendation. The remaining defendants, the Colorado Department of Corrections and Sherry Grogan, have not yet filed an answer or other response to the Amended Complaint. However, it appears to be inevitable, based on the allegations in the Amended Complaint and the issues raised by the moving defendants, that motions to dismiss will be filed on behalf of the additional defendants as well. It is further evident to this Court that such motions would be granted. Accordingly, the Court finds that there is no just reason to delay and, sua sponte, dismisses the claims against them.
JUDGE TAFOYA'S RECOMMENDATION
Following the issuance of a magistrate judge's recommendation on a dispositive matter the district court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). The Recommendation, issued on August 7, 2014 and incorporated herein by reference, included an advisement regarding the parties' right to file written objections within 14 days after service and a warning that failure to do so waives de novo review. Recommendation [ECF No. 68] at 13. Mr. Bogner timely moved for additional time to file objections. ECF No. 70. The Court granted Mr. Bogner an additional three weeks to September 12, 2014 to file objections. ECF No. 71. However, Mr. Bogner did not file objections by that date (or since).
"In the absence of timely 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) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It 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.")). The Court has reviewed the relevant pleadings concerning the Recommendation. Based on this review, the Court concludes that the Magistrate Judge's analysis is correct, and that "there is no clear error on the face of the record." Fed.R.Civ.P. 72 advisory committee's note. Therefore, the Court ADOPTS the Recommendation as the findings and conclusions of this Court.
THE REMAINING CLAIMS
Following the adoption of Judge Tafoya's Recommendation, the remaining claims in the case are Eighth Amendment claims against the Colorado Department of Corrections and Officer Grogan. The Court now dismisses these remaining claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii) respectively.
1. Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B)(ii), in proceedings in forma pauperis "the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim on which relief may be granted." "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.) (quotation omitted), cert. denied, 534 U.S. 922 (2001). "In determining whether a dismissal is proper, we must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff." Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (internal citations omitted). In addition, the Court liberally construes the filings of a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as the advocate of the pro se litigant, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. E.g., Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
2. Factual Background
The plaintiff's Eighth Amendment claim against the Colorado Department of Corrections and Officer Grogan arose after Mr. Bogner was attacked by another inmate in the recreation room at the Colorado State Penitentiary on September 21, 2011. According to Mr. Bogner, the officer manning the control tower, Defendant Grogan, improperly left the door to the recreation room unlocked, allowing another inmate to gain access and attack Mr. Bogner. ECF No. 53 at 6. Notably, plaintiff states that Defendant Grogan did so "inadvertently" and that her actions were "a mistake." Id. This all took place in the context of prior threats by the same inmate against Mr. Bogner. Mr. Bogner claims that he advised his CDOC therapist and two CDOC sergeants (but not Defendant Grogan) of the threats on three occasions, and that he asked for a transfer, but to no avail. Id. at 4-5, 6. Mr. Bogner was ultimately charged and convicted of a violation of the CDOC's discipline code for his conduct in the September 21st attack. Id. at 9.
Mr. Bogner filed a complaint, pursuant to 42 U.S.C. § 1983, alleging that defendants' deliberate indifference to his safety violated his Eighth Amendment rights.
3. Eleventh Amendment Analysis
Before turning to the merits of Mr. Bogner's claim, the Court must first address the limits that the Eleventh Amendment places on its subject matter jurisdiction. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Here, Mr. Bogner's claim against the Colorado Department of Corrections is barred by the Eleventh Amendment. Under the Eleventh Amendment, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "Even though the clear language does not so provide, the Eleventh Amendment has been interpreted to bar a suit by a citizen against the citizen's own State in Federal Court. Thus, the Eleventh Amendment bars a suit brought in federal court by the citizens of a state against the state or its agencies and applies whether the relief sought is legal or ...