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Estate of Vallina v. Petrescu

United States District Court, D. Colorado

November 14, 2017

THE ESTATE OF ROBERT VALLINA; JUAN J. VALLINA, personally; and MARTHA VALLINA, personally and as personal representative of the Estate of Robert Vallina, deceased, Plaintiffs,
DR. GABRIELA L. PETRESCU, M.D., in her official and individual capacities, Defendant.


          RAYMOND P. MOORE, United States District Judge

         This matter is before the Court on the April 20, 2017, Recommendation and Order of United States Magistrate Judge (the “Recommendation”) (ECF No. 37), recommending the following: granting in part and denying in part Defendant Petrescu's (“Defendant”) Motion to Dismiss (ECF No. 15). Defendant Petrescu filed “Objections to Recommendation of United States Magistrate Judge” (the “Objection”). (ECF No. 38). Plaintiffs filed a response (ECF No. 39) to Defendant's Objection but did not file objections of their own. The Recommendation and Objection are now ripe for determination.


         The Court has reviewed the Background and Procedural History set forth in the Recommendation and finds they accurately reflect the record. The Background and Procedural History are accepted and incorporated herein by reference. Nonetheless, the Court sets forth a summary.

         In May 2014, Robert Vallina (“decedent”) was incarcerated at the Teller County Detention Center (“TCDC”). In July 2014, decedent was transferred to Colorado Mental Health Institute - Pueblo (“CMHIP”) for a competency evaluation for trial. Defendant, who Plaintiffs allege was decedent's treating psychiatrist, did not have any records from decedent's past medical history. While at CMHIP, decedent denied any suicidal ideations and maintained a relatively stable demeanor.

         On August 29, 2014, after decedent's competency evaluation was complete, decedent was transferred back to TCDC. TCDC personnel concluded that decedent was a substantial risk of harm to himself, so he was put on suicide watch. However, on September 2, 2014, decedent took his own life while in his cell.

         Plaintiffs originally brought suit against William May, Dr. Patrick Fox, CMHIP, Dr. Petrescu, and Laura Palma (ECF No. 11), alleging an Eighth Amendment violation and a Fourteenth Amendment violation. Id. Additionally, Plaintiffs alleged a medical malpractice claim and a negligence claim against Dr. Petrescu. Id. However, Plaintiffs ultimately dismissed all claims against May, Fox, CMHIP, and Palma. (ECF No. 36). This leaves Dr. Petrescu as the sole remaining defendant.[1]

         Defendant filed a motion to Dismiss asserting Eleventh Amendment immunity, governmental immunity, failure to allege personal participation, and qualified immunity. (ECF No. 15 at 3-10). Plaintiffs responded (ECF No. 24), and Defendant filed a reply. (ECF No. 31). On April 20, 2017, Magistrate Judge Tafoya entered her Recommendation, which granted in part and denied in part Defendant's Motion to Dismiss. (ECF No. 37). Defendant timely filed an Objection to the Recommendation (ECF No. 38), and Plaintiffs responded to the Objection (ECF No. 39), but did not file any objections of their own. With this background in mind, the Court addresses the Recommendation and Objection.


         A. Review of a Magistrate Judge's Report and Recommendation

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). The district judge need not, however, consider arguments not raised before the magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). And, where a claim is dismissed on two or more independent grounds, the plaintiff must contest each of those grounds. See Lebahn v. Nat'l Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). If the plaintiff fails to do so, the court may affirm on the ground which the plaintiff failed to challenge. Id.

         B. Motions to Dismiss

         1. Fed.R.Civ.P. 12(b)(1)

         Motions to dismiss under Rule 12(b)(1) are, generally, either a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction or a factual attack which goes beyond the allegations and challenges the facts on which subject matter jurisdiction is based. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack challenging the sufficiency of the complaint requires the court to accept the allegations of the complaint as true. Stuart, 271 F.3d at 1225; Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995) (internal citation omitted). A factual attack affords the district court “‘wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.'” Stuart, 271 F.3d at 1225 (quoting Holt, 46 F.3d at 1003). Such reference to evidence outside the pleadings does not convert the Rule 12(b)(1) motion to a Rule 56 motion for summary judgment. Stuart, 271 F.3d at1225.

         2. Fed.R.Civ.P. 12(b)(6)

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs' entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14 (italics in original). “In determining the plausibility of a claim, we look to the elements of the particular cause of action, keeping in ...

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