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Wojdacz v. Presbyterian St. Lukes' Medical Center

United States District Court, D. Colorado

September 14, 2017

ELIZABETH WOJDACZ, Plaintiff,
v.
PRESBYTERIAN ST. LUKES' MEDICAL CENTER, DENVER CITY POLICE DEPARTMENT, LEWIS, Officer, PAPPAS, Officer, HERKO, Corporal, ALFARO, Corporal, SANCHEZ, Officer, VAN PELT, Officer, GREENWOOD VILLAGE CITY POLICE DEPARTMENT, JACKSON, Chief, BRADLEY, Officer, THOMPSON, Officer, VOIGT, Officer, CITY OF GREENWOOD VILLAGE, SHANNON CHAMBERS-NELSON, ELIZABETH SHIFFRIN, Judge, WILLIAM BRUNGER, TORRES, Officer; Supervisory John Doe Officers, ROBERT WHITE, Chief, DENVER DISTRICT ATTORNEY'S OFFICE, JERILYN SCHOEFIELD, ARAPAHOE COUNTY SHERIFF'S DEPARTMENT, WOOD, Deputy, DAVID C. WALCHER, DAVID KELSO, Sgt; Supervisory John Doe Officers, ARAPAHOE COUNTY DISTRICT ATTORNEY'S OFFICE, ERIC FADDIS, ADDISON L. ADAMS, Judge, AURORA CITY POLICE DEPARTMENT, R. RAY, Officer, C. WILKENDORF, Officer, ADLFIGER, Officer, JOHN DOE, Deputy, JOHN DOE, Officers, L.A. INSURANCE AGENCY, ANDREA MANRIGUES, UNIVERSITY OF COLORADO HOSPITAL, UNIVERSITY PHYSICIANS, INC., RESA E. LEWIS, ROSE MEDICAL CENTER, CAREPOINT, DAVID DUCKSUNG MOON, SUSAN W. RYAN, DAVID MORRISON, MATTHEW BUCHANNAN, ORTHOPEDICS ASSOCIATES, LLC, and SARA MEADOWS, D.O., Defendants.

          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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