United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Recommendation of United
States Magistrate Judge Kathleen M. Tafoya filed on February
27, 2017 [Docket No. 46]. The magistrate judge recommends
that the Court grant defendants' motion to dismiss [Docket
No. 30] in part. Specifically, the magistrate judge
recommends dismissing plaintiff Mark Walter Paulsen's
official capacity claims for monetary damages, his equal
protection claim, and his Eighth Amendment claims against
Kerry Baroni, Dave Booth, and Christine Sturgeon. Docket No.
46 at 19. Plaintiff requested an extension to file objections
to the Recommendation, which the Court granted in part.
Docket Nos. 48, 49. Plaintiff filed timely objections on
March 20, 2017. Docket No. 50. In light of plaintiff's
pro se status, the Court will construe
plaintiff's objections liberally, but will not advocate
for him. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
Recommendation contains the relevant background facts, which
will not be repeated here. Docket No. 46 at 1-3.
STANDARD OF REVIEW
dispositive motions, the Court must “determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.” Fed.R.Civ.P. 72(b)(3). An
objection is “proper” 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
discusses all of the magistrate judge's recommendations,
even her recommendations that certain of his claims not be
dismissed, except for her recommendation on plaintiff's
official capacity claims for monetary damages. Docket No. 50.
The Court will assume that plaintiff does not intend to
object to the magistrate judge's recommendations in his
favor, but assumes that he objects to the other
Eighth Amendment Deliberate Indifference
magistrate judge recommends that plaintiff's claims
against Ms. Baroni, the prison's health services
administrator, be dismissed because her alleged denial of his
grievances, “by itself without any connection to the
violation of constitutional rights alleged by plaintiff, does
not establish personal participation under §
1983.” Docket No. 46 at 9 (quoting Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)).
Plaintiff objects that “Ms. Baroni could have and
should have responded to the Set #1 step 1 grievance to
ensure Plaintiff received chronic care for his hepatitis
symptoms, but she neglected or refused to do so.”
Docket No. 50 at 2.
magistrate judge correctly found, an allegation that a prison
official should not have denied a grievance about an alleged
violation is not sufficient to establish personal
participation in the underlying § 1983 violation.
Gallagher, 587 F.3d at 1069 (“Because
[plaintiff's] only allegations involving these defendants
relate to the denial of his grievances, he has not adequately
alleged any factual basis to support an ‘affirmative
link' between these defendants and any alleged
constitutional violation.”). Plaintiff's objection
points to no alleged personal involvement by Ms. Baroni
beyond denying his grievance. Accordingly, the Court will
dismiss plaintiff's claims against Ms. Baroni.
magistrate judge recommends that plaintiff's claim
against Mr. Booth, the executive director of the treatment
program, be dismissed because plaintiff fails to allege Mr.
Booth was aware “when Plaintiff was diagnosed with
Hepatitis C or that his condition was deteriorating due to
lack of treatment” and therefore does not allege any
facts showing Mr. Booth was aware of an excessive risk to
plaintiff's health. Docket No. 46 at 10-11.
Plaintiff's objection ...