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Vreeland v. Fisher

United States District Court, D. Colorado

September 29, 2014

DELMART E.J.M. VREELAND, II, Plaintiff,
v.
THOMAS C. FISHER, MD, KAREN A. JOHNSON, MD, DEA ARAGON, JOAN M. SHOEMAKER, HEART OF THE ROCKIES REGIONAL MEDICAL CENTER, RICHARD RAEMISCH, THE DOUGLAS COUNTY SHERIFF, MR. WEAVER, KARI BARONI, CDOC/BVCF, H.S.A., and MICHAEL FRENCH, Defendants.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge Kathleen M. Tafoya (the "Recommendation") filed on August 20, 2014 [Docket No. 128]. The magistrate judge recommends that the Court grant motions to dismiss filed by defendants Douglas County Sheriff David Weaver, Dea Aragon, and Michael French (the "Douglas defendants") [Docket No. 35]; defendants Joan M. Shoemaker, Kari Baroni, and Richard Raemisch (the "CDOC defendants") [Docket No. 37], defendant Karen A. Johnson, M.D. [Docket No. 43], defendant Heart of the Rockies Regional Medical Center ("HRRMC") [Docket No. 46], and defendant Thomas C. Fisher, M.D. [Docket No. 75]. On August 29, 2014, the Court granted plaintiff until September 18, 2014 to file his objection to the Recommendation. On September 22, 2014, Plaintiff filed his objections. Docket No. 132. Although untimely, in the interest of justice, the Court accepts the late-filed objections.

The Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[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"). An objection is proper if it is specific enough to enable the Court "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). In light of plaintiff's pro se status, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

I. ANALYSIS

Plaintiff is an inmate at the Buena Vista Correctional Facility ("BVCF"). Docket No. 1 at 5. Before his transfer to BVCF, plaintiff was incarcerated at the Douglas County Jail in Douglas County, Colorado from 2004 to 2008. Id. The relevant facts are set forth in detail in the Recommendation and will not be recited here except as relevant to the Court's de novo review.

A. The Douglas Defendants' Motion to Dismiss

Plaintiff objects to the Recommendation's finding that his claims against the Douglas defendants are barred by the applicable statute of limitations. Plaintiff asserts two claims against the Douglas defendants, both stemming from a letter (the "letter") that the Douglas defendants allegedly wrote sometime in 2005 that stated that plaintiff had a history of faking illnesses. Docket No. 1 at 6. In his first claim for relief, plaintiff alleges that the Douglas defendants transmitted the letter to the Douglas County Jail medical staff, which prevented plaintiff from receiving treatment between October 2004 and October 2008, when plaintiff was transferred to BVCF. Id. at 22. In his seventh claim for relief, plaintiff alleges that the Douglas defendants, by placing the letter into circulation, conspired to violate plaintiff's civil rights. Id. at 40. Plaintiff argues that, contrary to the magistrate judge's findings that he was required to bring any claims against the Douglas defendants no later than October 2010, he could not have brought any claim until he suffered a physical injury due to the Douglas defendants' conduct, and that plaintiff did not suffer any physical injury until 2012. Docket No. 132 at 6-7 (citing 42 U.S.C. § 1997e(e)).

"State statutes of limitations applicable to general personal injury claims supply the limitations periods for [42 U.S.C.] § 1983 claims." Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999). Therefore, in this case, plaintiff's § 1983 claims are subject to a two-year statute of limitations. See Colo. Rev. Stat. § 13-80-102(1)(g) ("All actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and "regardless of the theory upon which suit is brought... must be commenced within two years"); see also Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (finding that "§ 1983 claims are best characterized as personal injury actions and we therefore apply" the State of Colorado's two-year statute of limitations) (citation omitted)).

Federal law, however, "governs the time of accrual of § 1983 claims." Beck, 195 F.3d at 557. Generally, a § 1983 claim "accrued when [plaintiff] knew or should have known that his constitutional rights had allegedly been violated." Parkhurst v. Lampert, 264 F.Appx. 748, 749 (10th Cir. 2008) (unpublished) (citing Beck, 195 F.3d at 557). The issue of whether claims are time-barred by the applicable statute of limitations can be resolved on a motion to dismiss where the "answer is apparent on the face of the complaint." Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir. 2008).

Plaintiff's first claim against the Douglas defendants is that they prevented plaintiff from receiving medical treatment while housed in the Douglas County Jail between 2004 and 2008. Plaintiff argues that he did not have a physical injury before 2012, but only a mental or emotional injury. Docket No. 132 at 6-7. As a result, he states that the Prison Litigation Reform Act prevented him from filing any claim for mental or emotional injury until 2012, which prevents application of the two year statute of limitations. See 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought... for mental or emotional injury suffered while in custody without a prior showing of physical injury") (emphasis added). Plaintiff's own allegations, however, contradict the assertion that he had no physical injuries before 2012. Plaintiff alleges that he complained of numerous ailments including a tumor on his left testicle and "serious, chronic stomach and intestine and appendix pain and cramps" while he was incarcerated at the Douglas County Jail. Docket No. 1 at 6-7. These allegations establish that plaintiff believed he was suffering from physical injuries that went untreated before leaving the Douglas County Jail in October 2008. Thus, plaintiff "knew or should have known" of his claim that he was not receiving proper medical care at the Douglas County Jail no later than October 2008, Parkhurst, 264 F.Appx. at 749, and plaintiff was required to bring this claim no later than October 2010. Plaintiff's claim is therefore barred by the two-year statute of limitations.

Plaintiff argues that the continuing violation doctrine should apply to prevent application of the statute of limitations. Docket No. 132 at 7. The continuing violation doctrine, first employed in Title VII litigation, "would permit a plaintiff to challenge incidents that occurred outside of the statute of limitations if the incidents are sufficiently related and thereby constitute a continuing pattern of wrongful conduct." Fogle v. Pierson, No. 05-cv-01211-MSK-CBS, 2008 WL 821803 at *5 (D. Colo. Mar. 26, 2008) (citation and quotation omitted). The Tenth Circuit has declined to decide whether the continuing violation doctrine applies to § 1983 claims. See Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011). Moreover, the continuing violation doctrine would not preserve plaintiff's claims against the Douglas defendants. Plaintiff argues that the continuing violation doctrine should apply because the letter "began its circulation in 2005" and it caused "an injury that is continuing." Docket No. 132 at 7. The continuing violation doctrine, however, is "triggered by continual unlawful acts, not by continual ill effects from the original violation.'" Mata, 635 F.3d at 1253 (quoting Parkhurst, 264 F.Appx. at 749). Plaintiff makes no suggestion that he was not aware of the letter before October 2008. Accordingly, the Court finds no error with the Recommendation of dismissal of plaintiff's claims against the Douglas defendants.

B. The CDOC Defendants' Motion to Dismiss

1. Claims Against Defendant Raemisch

Plaintiff does not object to dismissal of all claims against defendant Raemisch. Docket No. 132 at 8. In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[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"). With respect to plaintiff's claims against defendant Raemisch, the Court has reviewed the Recommendation to satisfy itself that there is "no clear error on the face of the record."[1] Fed.R.Civ.P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law.

2. Claims One and Three: Eighth Amendment Violation

Plaintiff objects to the Recommendation's finding that claims one and three against defendants Shoemaker and Baroni fail to state a claim because plaintiff did not allege personal participation in the violation of his constitutional rights. Docket No. 132 at 8-9.[2] Plaintiff argues that he had repeated "personal face to face contact with Baroni" and that she has repeatedly denied care. Id. at 8. Plaintiff also argues that defendant Shoemaker has not only denied grievances, but also that he met and spoke with defendants Fisher and Baroni and decided to deny medical care. Id. at 9.

"Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Thus, there must be an affirmative link between actions taken by a defendant and any plan or policy put into effect that violates a plaintiff's constitutional rights. Dodds v. Richardson, 614 F.3d 1185, 1200-01 (10th Cir. 2010).

The allegations described in plaintiff's objections appear nowhere in the complaint. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) ("[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived") (quoting Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)). As to defendant Shoemaker, plaintiff's only specific allegations concern two denials of grievances. See Docket No. 1 at 11-12. But "[the] denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).

As to defendant Baroni, the complaint contains only conclusory allegations that defendant Baroni, in connection with other defendants, denied plaintiff medical care. Docket No. 1 at 19 ("[d]efendant Fisher, defendant Shoemaker and defendant Baroni have all denied medical treatment and or any tests whatsoever"), 22 (plaintiff was "denied medical care by defendant Fisher, Shoemaker and Baroni from October 2008 until the present"), 41 ("defendants Baroni and Shoemaker refuse any up to date testing at all"). The Court is unable to determine from plaintiff's allegations any specific acts-either ...


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