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Swan v. Fauvel

United States District Court, D. Colorado

December 2, 2015

JOSHUA D. SWAN, Plaintiff,
v.
MAURICE FAUVEL, individually and in his official capacity as physician for Sterling Correctional Facility, JAMIE SOUCIE, individually and in her official capacity as Health Service Administrator for Sterling Correctional Facility, PHYSICIAN HEALTH PARTNERS, INC., a Colorado Corporation d/b/a CORRECTIONAL HEALTH PARTNERS, STEPHEN KREBS, CEO and President of Correctional Health Partners and Chairman of Physician Health Partners, JULIE DURSEY, Regional Manager for Physician Health Partners, and JOHN and JANE DOES 1-20, individually and in their official capacities as agents of the Colorado Department of Corrections; and as unidentified employees working for Physician Health Partners, Defendants.

ORDER ADOPTING OCTOBER 5, 2015 RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DISMISSING PLAINTIFF’S CLAIMS WITHOUT PREJUDICE

WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE

This matter is before the Court on United States Magistrate Judge Nina Y. Wang’s Recommendation dated October 5, 2015 (“Recommendation”) (ECF No. 46), which recommended granting a motion to dismiss filed by Defendants Physician Health Partners d/b/a Correctional Health Partners (“CHP”) and Dr. Stephen Krebs (collectively, “CHP Defendants”) (ECF No. 20), granting a motion to dismiss filed by Defendants Dr. Maurice Fauvel and Jamie Soucie (collectively, “CDOC Defendants”) (ECF No. 22), and dismissing Plaintiff’s claims as to the CHP Defendants and CDOC Defendants without prejudice. The Recommendation also ordered Plaintiff to show cause why the action should not be dismissed as to Defendant Julie Dursey[1] for failure to effect proper service within 120 days as required by Federal Rule of Civil Procedure 4(m). (ECF No. 46.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a timely Objection to the Recommendation (ECF No. 47), the CHP Defendants filed a response (ECF No. 48), and the CDOC Defendants filed a response (ECF No. 49). For the reasons set forth below, Plaintiff’s Objection is overruled, the Recommendation is adopted, the CHP Defendants’ motion to dismiss is granted, the CDOC Defendants’ motion to dismiss is granted, and Plaintiff’s claims are dismissed without prejudice.

I. STANDARD OF REVIEW

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties’ dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific objection, “the district court may review a magistrate . . . [judge’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)); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record.”).

Because Plaintiff is proceeding pro se, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as an 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 motions underlying the Recommendation were filed under Federal Rule of Civil Procedure 12(b)(6). The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).

II. BACKGROUND

Neither party objects to the recitation of facts set forth by the Magistrate Judge in the Recommendation.[2] (ECF No. 46 at 2-7.) Accordingly, the Court adopts and incorporates the factual background detailed in that Recommendation as if set forth herein. The following is an abridged recitation of the material facts

At all times relevant to his Complaint, Plaintiff was incarcerated at the Sterling Correctional Facility (“SCF”) of the Colorado Department of Corrections (“CDOC”). (ECF No. 1.) On February 2, 2013, Plaintiff suffered an injury to his left knee as he attempted to pick up a basketball in a SCF gymnasium. (ECF No. 1 ¶¶ 1-4.) Plaintiff submitted a medical kite (i.e., a written request) for treatment of his visibly swollen knee. (Id. ¶ 7.) On February 5, 2013, SCF medical staff provided Plaintiff with an aluminum adjustable cane. (Id. ¶ 8.) On February 8, 2013, Plaintiff’s knee injury was examined by Dr. Fauvel at the SCF Medical Clinic for the first time, and Plaintiff was issued a pair of aluminum crutches. (Id. ¶ 9.) At that time, Dr. Fauvel said that Plaintiff may have torn his left MCL. (Id.) Plaintiff had an x-ray taken of his left knee on February 22, 2013. (Id. ¶ 10.) Plaintiff was examined by Dr. Fauvel on April 17, 2013 and on May 2, 2013. (Id. ¶¶ 12-13.)

At the May 2 visit, Dr. Fauvel determined that an MRI on Plaintiff’s left knee “needed to be done” and requested an MRI from CHP. (Id. ¶ 13.) CHP was responsible for the pre-authorization of certain medical procedures for inmates at SCF. (Id. at 2.) CHP denied this MRI request twice. (Id. at 40.) According to Dr. Fauvel, CHP denied the first MRI request because it “need[ed] more information.” (Id. at 21.) On August 22, 2013, Plaintiff was notified by Dr. Fauvel that CHP had denied the MRI request “again” and had recommended “conservative therapy.” (Id. ¶ 17.) On November 25, 2013, Plaintiff met with Dr. Fauvel and complained of continued suffering from knee pain. (Id. ¶ 22.) Dr. Fauvel told Plaintiff that he would be scheduled to see a physical therapist, in accordance with CHP’s recommended conservative therapy. (Id.) On December 11, 2013, Plaintiff met with a physical therapist. (Id. ¶ 25.) Six days later Plaintiff was issued a knee brace. (Id. ¶ 26.)

On December 23, 2013, Plaintiff was seen by Physician Assistant Gatbel Chamjock at the SCF Medical Clinic. (Id. ¶ 27.) Chamjock told Plaintiff that he would be referred to an orthopedic surgeon. (Id.) In March 2014, Plaintiff was transported to the Sterling Regional Medical Center where an MRI was conducted. (Id. ¶ 30.) On April 22, 2014, Dr. Darrel Fenton from the Sterling Regional Medical Center told Plaintiff that his ACL needed replacement. (Id. ¶ 31.) Dr. Fenton performed surgery on Plaintiff’s left knee on June 3, 2014. (Id. ¶ 32.)

Based on this course of events, Mr. Swan asserts a 42 U.S.C. § 1983 (“Section 1983" or “§ 1983") claim arising under the Eight Amendment for cruel and unusual punishment against the CHP Defendants, the CDOC Defendants, Julie Dursey, and John and Jane Does (collectively, “Defendants”). (Id. ¶¶ 33-57.)

III. ANALYSIS

The Magistrate Judge recommended that the CHP Defendants’ motion to dismiss be granted, the CDOC Defendant’s motion to dismiss be granted, and Plaintiff’s claims as to the CHP Defendants and CDOC Defendants be dismissed, without prejudice. (ECF No. 46 at 18.) The Magistrate Judge made several findings to reach those recommendations. Plaintiff specifically objects to several of the Magistrate Judge’s findings.

Where Plaintiff does not object to the Magistrate Judge’s findings, the Court reviews those findings under a “clearly erroneous” standard of review. Plaintiff does not object to the Magistrate Judge’s finding that Plaintiff failed to plead Ms. Soucie’s personal participation. (Id. at 12.) Plaintiff does not object to the Magistrate Judge’s finding that Plaintiff’s claims should be dismissed to the extent that they seek monetary damages from Defendants in their official capacity. (Id. at 16.) The Court finds no clear error in the Magistrate Judge’s reasoning ...


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