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Stout v. Seitz

United States District Court, D. Colorado

June 13, 2018

CHARLES J. STOUT, Plaintiff,
v.
LORI SEITZ, MICHELLE WESOLOWSKI, ELLIARD, ELISON, and LEGGET, Defendants.

          ORDER ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE SCOTT T. VARHOLAK

          CHRISTINE M. ARGUELLO United States District Judge

         This matter is before the Court on review of the Recommendation by United States Magistrate Judge Scott T. Varholak (Recommendation) (Doc. # 43), wherein he recommends that this Court

• grant Defendants' motions for dismissal of Plaintiff Charles J. Stout's Eighth Amendment Claim (Claim One) against Defendant Lori Seitz, and
• decline to exercise supplemental jurisdiction over Plaintiff's state negligence claim (Claim Two) against all Defendants.

         The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). For the following reasons, the Court adopts the Recommendation, grants Defendants' motions, dismisses with prejudice Claim One, and declines to exercise supplemental jurisdiction over Claim Two.

         I. STANDARD OF REVIEW

         Plaintiff objects to the Recommendation in its entirety. Federal Rule of Civil Procedure 72(b)(3) thus requires that this Court conduct a de novo review of the issues. In so doing, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Arguments raised for the first time in objections are deemed waived and need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         II. BACKGROUND

         Plaintiff is a participant in Colorado's Sex Offender Treatment and Monitoring Program (SOTMP) who is housed at the Cheyenne Mountain Re-entry Center (CMRC) in Colorado Springs, Colorado. (Doc. # 43 at 2.) As part of his participation in the SOTMP, Plaintiff is required to adhere to a highly structured treatment program. (Doc. # 10 at 12.) He must also abide by a personal change contract, also known as a relapse prevention plan. (Id. at 18.) As pertinent here, Plaintiff's personal change contract identifies the kitchen as a high risk area for him; Plaintiff contends that being in the kitchen causes him to act out sexually and experience mental anguish and physical pain. (Id. at 5.) He adds that the SOTMP teaches him to avoid such triggers and get out of high risk areas as soon as possible. (Id.)

         Nonetheless, Plaintiff was assigned to kitchen duty in November 2016. (Id. at 4.) Because of the kitchen being a high risk area for him, Plaintiff was removed after one and half days. (Id.) However, Plaintiff was again assigned kitchen duty in early July 2017. (Id. at 4-5.) Plaintiff immediately requested a meeting with his mental health therapist Defendant Lori Seitz to discuss this July assignment. (Id. at 5.) It is unclear from the Amended Complaint precisely what he told Ms. Seitz. (Id. at 4-5.) In any event, Plaintiff contends that Ms. Seitz responded by saying, “[I] see you are doing ok in the kitchen[. Y]ou have learned tools to be in a high risk area.” (Id.) Plaintiff thereafter remained on kitchen duty for sixty days. (Id. at 4.) He contends that, as a result, he suffered “mental anguish, ” with physical manifestations, such as “rash, severe back pain, increased thoughts of sexually acting out, [and the] urge to masturbate more frequently.” (Id. at 5.) Plaintiff was eventually removed from kitchen duty; he is now employed as a porter in the residential housing unit. (Id. at 4.)

         Plaintiff initiated this action in part as a result of his being placed on kitchen duty. He specifically alleges that, by allowing him “to be put in a high risk area [the kitchen] . . . against his personal change contract, which is part of his SOTMP criteria/treatment, ” Ms. Seitz acted with deliberate indifference to his medical condition in violation of the Eighth Amendment (Claim One). (Id. at 2.)

         Defendants contend that Plaintiff has failed to sufficiently plead this Eighth Amendment claim and that it should therefore be dismissed under Federal Rule of Civil Procedure 12(b)(6).

         III. LAW GOVERNING A RULE 12(b)(6) MOTION TO DISMISS

         Under Fed.R.Civ.P. 12(b)(6), the Court may dismiss a complaint for failure to state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in support of his claim that would entitle him to relief. Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). In reviewing a motion to dismiss, courts take all well-pleaded allegations in the plaintiff's complaint as true and construe the allegations in the light most favorable to ...


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