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Cary v. Tessier

United States District Court, D. Colorado

October 16, 2014

ARNOLD A. CARY, Plaintiff,
DAVID TESSIER, CTCF, Health Services Administrator, SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County Commissioner, JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County Commissioner, LINDSEY FISH DEPENA, M.D., CTCF, former Health Services Physician RODNEY ACHEN, CTCF, Food Services Captain, RONALD WILLIAMS, CTCF, Lieutenant, CHRISTINA TURNER, CTCF, Sergeant, and ROBERT BURNS, CTCF, Correctional Officer, Defendants.


RAYMOND P. MOORE, District Judge.

This matter is before the Court on United States Magistrate Judge Kristen L. Mix's Recommendations ("the Recommendations") (ECF Nos. 63 and 64) that this Court dismiss Plaintiff Arnold A. Cary's ("Plaintiff") claims against Defendants David Tessier, Susan M. Tiona, M.D., John Buglewicz, M.D., Rodney Achen, Ronald Willams, Christina Turner, and Robert Burns (ECF No. 64), and dismiss Lindsey Fish DePena from the suit without prejudice for Plaintiff's failure to properly execute service of process on her pursuant to Federal Rule of Civil Procedure 4(c). (ECF No. 63). For the reasons below, Plaintiff's Objections to both Recommendations are OVERRULED, and the Recommendations are ADOPTED.[1]


A. Review of the Magistrate Judge's Report and Recommendation

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 timely in accordance with the Federal Rules of Civil Procedure and specific enough to let the "district judge... focus attention on those issues- factual and legal-that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).

B. Standards for Dismissal

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. Courts treat a motion to dismiss based on Eleventh Amendment immunity as a motion to dismiss a complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Meyers v. Colo. Dep't of Human Servs., 62 F.App'x 831, 832 (10th Cir. 2003). A Rule 12(b)(1) dismissal is not a judgment on the merits, but a determination that the Court lacks authority to adjudicate the matter. See Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994).

C. Pro Se Status

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).


The Court adopts and incorporates the factual and procedural history included within the Recommendations. To the extent any additional facts are necessary for the Court to resolve this matter, those facts are below.

Plaintiff is a pro se prisoner incarcerated at the Sterling Correctional Facility. (ECF No. 1). During the period relevant to this lawsuit, he was resident at the Colorado Territorial Correctional Facility ("CTCF"). (ECF No. 1 at 2; ECF No. 21 at 8). Individual Defendants are Colorado Department of Corrections ("CDOC") employees at CTCF. (ECF No. 1 at 2-3).

Plaintiff filed this 42 U.S.C. ยง 1983 action on August 6, 2012, and filed a second amended complaint on January 23, 2013. (ECF No. 1; ECF No. 21). This amended complaint alleged multiple violations of the Eighth Amendment's cruel and unusual punishment clause based on his conditions of confinement, the alleged negative effects on his health, and Defendants' responses to his medical needs. (ECF No. 21 at 10-23). On March 21, 2013, U.S. District Court Senior Judge Lewis Babcock dismissed eleven defendants including Colorado Governor John Hickenlooper and Tom Clements (Executive Director, CDOC) as Plaintiff failed to allege facts supporting an arguable claim against them for deprivation of his Eighth Amendment rights. (ECF No. 22). Governor Hickenlooper and Mr. Clements were the only Defendants capable of redressing the system-wide issues in the Colorado prison system that Plaintiff alleges. All remaining Defendants are CTCF employees. (ECF No. 21 at 1-2).

On May 31, 2013, Defendants submitted a Partial Motion to Dismiss Plaintiff's Second Amended Complaint. (ECF No. 38). They argued that the Eleventh Amendment bars suits against Defendants in their official capacities, that Defendants are entitled to qualified immunity regarding allegedly inadequate medical treatment and a supposed conspiracy to harass him, and that Plaintiffs declaratory and injunctive relief claims are moot since he is no longer housed at CTCF. (ECF No. 38). On February 2, 2014, Judge Mix recommended that the Court grant Defendants' Motion as to those defenses. (ECF No. 64). The Recommendation left unaffected, insofar as the above recommended dismissals are concerned, Plaintiff's compensatory damages claim against Mr. Achen for allegedly improper food sanitation at CTCF. The motion also ...

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