United States District Court, D. Colorado
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
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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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
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
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
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.
Review of a Magistrate Judge's Report and
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
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.
Motions to Dismiss
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
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 ...