United States District Court, D. Colorado
ORDER ADOPTING MAGISTRATE'S RECOMMENDATION (ECF No. 171) AND OVERRULING PLAINTIFF'S OBJECTIONS (ECF No. 172)
RAYMOND P. MOORE, District Judge.
This matter is before the Court on United States Magistrate Judge Michael J. Watanabe's Recommendation ("the Recommendation") (ECF No. 171) that the Court dismiss Plaintiff Shawn Mandel Winkler's ("Plaintiff") Amended Complaint ("Complaint"). (ECF No. 19). In his Complaint, Plaintiff brings a mix of individual and official capacity claims against Defendants Thomas Mertens, John Doe 2, Wesly Wilson, Robert Dick, Sgt. Bradshaw, and Correctional Officer Loizer; he brings a use of excessive force and cruel and unusual punishment claim (Claim One); a claim against those same Defendants for failing to remedy a wrong and for intimidation (Claim Two); and finally, he brings a claim for retaliation and harassment (Claim Three). Judge Watanabe recommended that the Court dismiss Claim Two, Three, and the official capacity claims. He further recommended that Defendants Wilson, Dick, Bradshaw, and Lozier be removed as Defendants in this action. Magistrate Judge Watanabe recommended that only Plaintiff's first claim (Claim One), use of excessive force and cruel and unusual punishment as against Defendants Mertens and John Doe 2 individually, remain pending. Plaintiff objected ("the Objection(s)") to the Recommendation. (ECF No. 172). For the reasons below Plaintiff's Objection is OVERRULED, and the Recommendation is ADOPTED.
I. LEGAL STANDARDS
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)).
In the absence of an objection, the Court may review a recommendation under a lesser standard. See Fed.R.Civ.P. 72(b) Advisory Committee's Notes ("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."); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) ("In the absence of a timely objection, the district court may review a magistrate's report under any standard it deems appropriate.").
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.Appx. 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).
II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
No party has objected to the recitation of facts set forth in the Recommendation in that section captioned "Statement of Facts." (See ECF No. 171). That recitation is adopted by this Court and replicated below.
Plaintiff Shawn Winkler is an inmate formerly housed in the Sterling Correctional Facility (SCF) of the Colorado Department of Corrections (CDOC). Winkler is no longer incarcerated with the CDOC. He sues the CDOC Defendants under 42 U.S.C. § 1983 for alleged violations of the Eighth Amendment and for Retaliation. On August 12, 2011, Winkler was transported to the Sterling Regional Medical Center due to "accidental poisoning for an unspecified drug." Winkler was unconscious at the time of his transport. An electric security device, the Karbon "Bandit" was affixed to Winkler's right calf while he was in the hospital. On August 14, 2011, Winkler began to regain consciousness and felt a sharp pain in his right leg, which was convulsing. Winkler recalls hearing John Doe 1 and/or John Doe 2, who were the CDOC Corrections Officers assigned to his hospital room remark, "[h]e's alive. Look at that leg jump." Winkler then stated, "[h]ey I can hear you, " to which John Doe 1 and/or 2 replied, "[s]hit! He's awake." On August 16, 2011, Winkler discovered that he had been severely burned on his right calf by the Bandit. He later discovered that it is a common practice of Corrections Officers on hospital watch to "brand their cattle."
On or around September 16, 2011, Winkler filed an administrative grievance with his case manager, Defendant Dick. On September 21, 2011, Winkler was summoned into Defendant Wilson's office who informed Winkler, "with grievance in hand, " that the matter would not go anywhere, since "we will just claim equipment malfunction." ...