United States District Court, D. Colorado
RAYMOND P. MOORE, District Judge.
This matter is before the Court on Magistrate Judge Kristen L. Mix's recommendation ("Recommendation") (ECF No. 22) to deny Plaintiff's motion for leave to file an amended complaint ("Motion") (ECF No. 10). Pro se Plaintiff Timonthy Gonzales ("Gonzales") filed an objection to the Recommendation. (ECF No. 26.)
For the reasons stated below, the Court (1) SUSTAINS Plaintiff's objection; (2) respectfully REJECTS the Recommendation; and (3) GRANTS Plaintiff leave to file an amended complaint by June 9, 2015.
On November 14, 2014, Plaintiff filed his pro se prisoner complaint against Physician Health Partners ("Physician Health"), an unknown licensed medical doctor associated with Physician Health ("Unknown Individual"), and Anthony A. DeCesaro ("DeCesaro"). (ECF No. 1.) Pursuant to 42 U.S.C. § 1983, Plaintiff alleges Defendants violated his Eighth Amendment right under the United States Constitution to be free from cruel and unusual punishment by engaging in deliberate indifference to Plaintiff's medical needs. (ECF No. 1 ¶ 14.)
On November 19, 2014, pursuant to 28 U.S.C. § 1915A, Senior Judge Lewis T. Babcock summarily dismissed Plaintiff's claim against Defendant DeCesaro for lack of personal participation. (ECF No. 6 at 2-3.) Subsequent to that order, the case was then drawn to the undersigned. (ECF No. 7.)
On December 5, 2014, pursuant to Rule 15(a), Plaintiff filed a motion for leave to file an amended complaint. (ECF No. 10.) Plaintiff argued that he would "assert facts to support an arguable claim for relief and in law to support Anthony A. Decesaro's personal involvement in the violation of [his] eight[h] amendment." (ECF No. 10 at 1.) Plaintiff's Motion failed to comply with Local Civil Rule 15.1 because Plaintiff did not "attach as an exhibit a copy of the amended pleading which strikes through (e.g. strikes through) the text to be deleted and underlines (e.g. underlines) the text to be added." ( Compare ECF No. 10 with D. Colo. L. Civ. R. 15.1.)
On March 31, 2015, Magistrate Judge Mix recommended denying Plaintiff's motion for leave to file an amended complaint. (ECF No. 22.) Magistrate Judge Mix stated that although Plaintiff's Motion "is not phrased or agued as such, it is essentially a motion for reconsideration of Senior Babcock's [o]rder, and  construe[d] it in that manner." (ECF No. 22 at 2.) Magistrate Judge Mix found that "Plaintiff still merely asserts that  DeCesaro should not have denied his grievance and, instead, should have performed some affirmative act to correct the alleged constitutional violation of Plaintiff's Eighth Amendment Rights." (ECF No. 22. at 3.)
On April 20, 2015, Plaintiff objected to Magistrate Judge Mix's Recommendation because, as he argues, she erred in construing his motion as one for reconsideration rather than for leave to file an amended complaint. (ECF No. 26 at 1.)
II. LEGAL STANDARDS
A. Pro Se Status
Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A pro se litigant's conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues) (citations ...