United States District Court, D. Colorado
CLINTON T. ELDRIDGE, Plaintiff,
A. OSAGIE, P.A., G. SANTINI, M.D., and P. LAIRD, R.N., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE KATHLEEN M. TAFOYA
CHRISTINE M. ARGUELLO, United States District Judge
matter is before the Court on review of the Report and
Recommendation by United States Magistrate Judge Kathleen M.
Tafoya (Recommendation) (Doc. # 44), issued on January 23,
2017, and recommending that this Court grant Defendants'
Motion to Dismiss Plaintiff Clinton T. Eldridge's Eighth
Amendment claims against them (Doc. # 31). The Recommendation
is incorporated herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). For the following reasons,
the Court adopts the Recommendation and grants
STANDARD OF REVIEW
Eldridge objects to the Recommendation in its entirety.
Federal Rule of Civil Procedure 72(b)(3) thus requires that
this Court conduct a de novo review of the issues. In so
doing, the Court “may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Id. Any arguments raised for the first time in
objections are deemed waivable and need not be considered by
this Court. Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996).
Amended Complaint, Mr. Eldridge, an inmate at the
Administrative Maximum facility of the Federal Correctional
Complex in Florence, Colorado, argues that for the past ten
years, Defendants A. Osagie, a physician assistant, and G.
Santini, a physician, have denied him treatment for HCV in
violation of his rights under the Eighth Amendment. (Doc. #
12 at 4-5, 7.) He also contends that Defendant P. Laird, a
Bureau of Prisons (BOP) Regional Director, violated his
Eighth Amendment rights by rejecting a requested medical
transfer to a facility that would provide better HCV
treatment. (Id. at 8-10.) Defendants contend that
Mr. Eldridge has failed to sufficiently plead these claims
and that his Amended Complaint should therefore be dismissed
under Federal Rule of Civil Procedure 12(b)(6).
LAW GOVERNING A RULE 12(b)(6) MOTION TO
Fed.R.Civ.P. 12(b)(6), the Court may dismiss a complaint for
failure to state a claim if it appears beyond a doubt that
the plaintiff can plead no set of facts in support of his
claim that would entitle him to relief. Golan v.
Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004).
Dismissal under Rule 12(b)(6) may also be based on the lack
of a cognizable legal theory. Id. at 1217. In
reviewing a motion to dismiss, courts take all well-pleaded
allegations in the plaintiff's complaint as true and
construe the allegations in the light most favorable to
plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007); Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012).
a 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”).
Eldridge appears pro se in this matter. 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); Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Mr. Eldridge's pro se status does not,
however, entitle him to the application of different rules.
See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.
2002). Moreover, the Court may not “construct arguments
or theories for [Mr. Eldridge] in the absence of any
discussion of those issues.” Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
MR. ELDRIDGE'S EIGHTH AMENDMENT CLAIMS
Eighth Amendment protects against the infliction of
“cruel and unusual punishments.” U.S. Const.
amend. VIII. This protection encompasses “deliberate
indifference” by prison officials to a prisoner's
serious medical needs. Howard v. Waide, 534 F.3d
1227, 1235 (10th Cir. 2008) (citing Estelle v.
Gamble, 429 U.S. 97, 105 (1976)). Specifically:
Deliberate indifference to serious medical needs of prisoners
constitutes the “unnecessary and wanton infliction of
pain” proscribed by the Eighth Amendment. This is true
whether the indifference is manifested by prison doctors in
their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access ...