United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KATHLEEN M. TAFOYA, Magistrate Judge.
case comes before the court on "Defendant Correct Care
Solutions' Motion to Dismiss in Lieu of An Answer"
(Doc. No. 48 [Correct Care's Mot.], filed April 20, 2015)
and "Defendant Weld County's Motion to Dismiss
Plaintiff's Third Amended Complaint" (Doc. No. 51
[Weld Cnty.'s Mot.], filed April 24, 2015). Plaintiff did
not file a response to either motion.
OF THE CASE
proceeding pro se, asserts claims for deliberate
indifference to his medical needs in violation of the Eighth
Amendment. ( See Doc. No. 26 [Compl.], filed March
5, 2015). Specifically, Plaintiff alleges Defendant Weld
County Jail and Defendant Correct Care Solutions
("CCS"), the jail's medical service provider,
have failed to give him medication and proper medical
treatment since January 28, 2014. ( Id. at 3.)
Plaintiff alleges he was "left in extream [sic] pain,
misdiagnosed, denied medication and medical care until
4-17-14 where [he] went to N.C. M.C." ( Id. )
Plaintiff also alleges he has waited for over one year for
treatment for his right eye, he has waited for a CT scan for
over one year, and he has been "waiting for cysts on
both legs now for 1 Â½ months." ( Id. at 4.)
defendants move to dismiss Plaintiff's Complaint in its
A. Pro Se Plaintiff
is proceeding pro se. The court, therefore,
"review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys." Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See
also Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (holding allegations of a pro se complaint
"to less stringent standards than formal pleadings
drafted by lawyers"). However, 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 also
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (court may not "supply additional factual
allegations to round out a plaintiff's complaint");
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (the court may not "construct arguments
or theories for the plaintiff in the absence of any
discussion of those issues"). The plaintiff's
pro se status does not entitle him to application of
different rules. See Montoya v. Chao, 296
F.3d 952, 957 (10th Cir. 2002).
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) 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) (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."
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (citations and quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff."
Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
1991). "To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow "the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. The
Iqbal evaluation requires two prongs of analysis.
First, the court identifies "the allegations in the
complaint that are not entitled to the assumption of truth,
" that is, those allegations which are legal conclusion,
bare assertions, or merely conclusory. Id. at
679-81. Second, the Court considers the factual allegations
"to determine if they plausibly suggest an entitlement
to relief." Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. Southern Disposal, Inc., v.
Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
"[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678. Moreover,
"[a] pleading that offers labels and conclusions' or
a formulaic recitation of the elements of a cause of action
will not do.' Nor does the complaint suffice if it
tenders naked assertion[s]' devoid of further factual
enhancement.'" Id. (citation omitted).
"Where a complaint pleads facts that are merely
consistent with' a defendant's liability, it stops
short of the line between possibility and plausibility of
entitlement to relief.'" Id. (citation
defendants argue Plaintiff's claims against them should
be dismissed because Plaintiff fails to plead any basis for