United States District Court, D. Colorado
ORDER OVERRULING PLAINTIFF'S OBJECTION, AND
ADOPTING THE AUGUST 8, 2017 RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE GRANTING DEFENDANTS' MOTIONS TO
DISMISS
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
Plaintiff
Elizabeth Wojdacz (“Plaintiff”) brings this
“complex civil action for civil RICO remedy, Civil
Rights violations and [] non compliance of EMTALA
statutes” pro se against multiple defendants,
including a variety of law enforcement agencies, prosecutors,
judges, medical providers, hospitals, private citizens, and
corporations. (collectively the “Defendants, ”
ECF No. 88 at 3-17.) This matter is before the Court on the
August 8, 2017 Recommendation by U.S. Magistrate Judge
Kristen L. Mix (“Recommendation, ” ECF No. 157)
that each individual Defendant's Motion to Dismiss be
granted (See ECF Nos. 89, 91, 97, 100, 106, 108,
134, 138). Plaintiff filed an objection to the
Recommendation. (“Objection, ” ECF No. 158.)
Responses were filed by the Defendants. (See ECF
Nos. 160, 161, 162, 163, 164, 167, 168, 169.) For the reasons
set forth below, Plaintiff's Objection is overruled, the
Magistrate Judge's Recommendation is adopted, and the
Defendants' Motions to Dismiss are granted, although
Plaintiff is permitted leave to amend in certain limited
respects.
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.” Fed.R.Civ.P. 72(b)(3). 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.” Fed.R.Civ.P. 72(b)(3). Here, Plaintiff
filed a timely objection to Judge Mix's Recommendation.
Id.
Under
Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss for “failure to state a claim upon
which relief can be granted.” In evaluating such a
motion, a court must “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007). The dispositive inquiry is
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion
to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal
rules of pleading but also to protect the interests of
justice.” Dias v. City & Cnty. of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation
marks omitted). “Thus, ‘a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is
very remote and unlikely.'” Id. (quoting
Twombly, 550 U.S. at 556).
In
addition, Plaintiff is proceeding pro se; thus, the
Court must liberally construe her 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 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);
see also Ledbetter v. City of Topeka, Kan., 318 F.3d
1183, 1188 (10th Cir. 2003).
II.
BACKGROUND
No
parties clearly object to the recitation of facts set forth
by Judge Mix in the August 8, 2017 Recommendation. (ECF No.
157 at 3-5.)[1] Accordingly, the Court adopts and
incorporates Section I of that Recommendation as if set forth
herein. Briefly, Plaintiff filed a Second Amended Complaint
(“SAC”) on August 31, 2016. (ECF No. 88.) The SAC
is 128 pages in length and consists of 47 claims for relief.
(Id.)
Plaintiff
alleges that she “is being targeted by law enforcement
as retaliation for seeking a murder investigation and
coroner's inquest into the death of her son.” (ECF
No. 140 at 4.) Plaintiff further alleges that efforts to
intimidate her by law enforcement have been continual and
“seemingly have no end.” (ECF No. 140 at 4-5.)
For
example, Plaintiff alleges that she is being retaliated
against for her testimony in a prior case and for filing an
affidavit in two other cases (see Wojdacz v. Norman,
Case No. 12-cv-1483-REB-MEH, and Sanchez v. Denver Urgent
Care, LLC, Case No. 13-cv-1783-RM-KLM), wherein she
stated that she has been approached by law enforcement while
panhandling and forced to give up her to spot to other
panhandlers, that she was unlawfully arrested during a
traffic stop after which her truck was towed and the Denver
and Arapahoe County police allegedly planted contraband in
it, and that various District Attorneys have refused to file
charges against law enforcement. (See ECF No. 88 at
22-126.) Plaintiff further sues various parties for malicious
prosecution based on traffic-related incidents; she brings
claims against multiple medical defendants for failing to
treat Plaintiff adequately when Plaintiff believed she needed
further care; and she sues an insurance agency for
manipulating Plaintiff's address so that she would not
receive her insurance documents, and for double charging her
for insurance. (Id.) Lastly, Plaintiff asserts that
all of these actions are part of a concerted action to harm
her. (Id. at 101-26.)
III.
LEGAL ANALYSIS
In her
Objection, Plaintiff provides two lists comprising her legal
claims. (ECF No. 158 at 2-3.) The first list is labeled,
“[o]n claims recommended to be dismissed with
prejudice, Plaintiff adopts with disagreement, and reserves
the right of resurection [sic] of these
claims.” (Id. at 2.)[2] In the Court's view,
this is not a proper objection. There is no such “right
of resurrection, ” and “adopting with
disagreement” does not indicate to the Court that
Plaintiff objects to Judge Mix's findings, rather it
indicates that Plaintiff has elected to abandon these claims,
despite her disagreement with Judge Mix's analysis.
Accordingly, the Court will adopt Judge Mix's findings
regarding the claims under the first list without further
analysis.
The
second list is labeled “[o]n all claims recommended to
be dismissed with prejudice Plaintiff files her written
objections . . . .” (Id. at 3.)[3] Plaintiff begins
with an objection to Judge Mix's findings regarding her
“RICO claims.” (Id. at 5.) To support
this contention, Plaintiff asserts that “all elements
of RICO have been properly plead and as such, would withstand
a Rule 12(b)(6) motion to dismiss.” (Id.)
Throughout the remainder of her Objection she states
similarly worded conclusory objections to her EMTALA, mail
fraud, theft, conspiracy, and 42 U.S.C. § 1983 claims.
(See id. at 5-8.)
Plaintiff's
objections are not sufficiently specific, given that they do
barely more than announce her desired outcome. Her arguments
do not describe with specificity why or how Judge Mix's
analysis and findings are unsupported or contrary to the
record or law.[4] Moreover, her arguments do not permit the
Court “to focus attention on those issues-factual and
legal-that are at the heart of the parties'
dispute.” 2121 East 30th St., 73 F.3d at 1059.
Thus, given the lack of an effective objection, the Court
reviews Judge Mix's recommendation for clear error.
See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (in the absence of a specific objection, “the
district court may review a magistrate [judge's] report
under any standard it deems appropriate”).
This
Court has warned Plaintiff on multiple occasions that she
must, in a clear and concise manner, identify: “(1) the
specific claims she is asserting, (2) the specific facts that
support each asserted claim, (3) against which Defendant or
Defendants she is asserting each claim, and (4) what each
Defendant did that allegedly violated her rights.” (ECF
No. 86 at 4; see also ECF No. 148 at 6
(“Plaintiff's allegations against unspecified
defendants and other actors are equally lacking in
specificity.”).) Here, Judge Mix found that
Plaintiff's SAC contained “sparse” and
“conclusory” allegations against many of the
named Defendants. (See ECF No. 157 at 9-36.) As a
result, Judge Mix found that many of those allegations were
insufficient to state a claim and accordingly recommended
that certain claims be dismissed with prejudice, and
others without prejudice. (Id. at 36-38.)
Notably, as for those claims dismissed without
prejudice, Judge Mix specifically recommended that
Plaintiff be permitted leave to amend her SAC with respect to
those claims only.[5] (Id. at 36.)
The
Court agrees with Judge Mix. Having reviewed the
Recommendation and the record the Court concludes that Judge
Mix's analysis was thorough and sound, and that there is
no clear error on the face of the record. See Fed.
R. Civ. P. 72(b); see also Summers, 927 F.2d at
1167.[6] Further, those Defendants against whom
Plaintiff may amend under Judge Mix's Recommendation have
not filed objections to that portion of the Recommendation.
IV.
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