Chrisco v. Raemisch

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty United States Magistrate Judge.

         Defendant Donald Gibson seeks to dismiss Plaintiff Luke Chrisco's claim for medical malpractice. Mr. Chrisco did not file a response to Mr. Gibson's motion. Because Mr. Chrisco initiated this case outside of the two-year statute of limitations, I respectfully recommend that the Honorable Philip A. Brimmer grant the motion.

         BACKGROUND

         I. Facts

         The following are relevant factual allegations, which I take as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Mr. Chrisco is incarcerated at the San Carlos Correctional Facility (“SCCF”) in the Colorado Department of Corrections. Compl. 2, ECF No. 1. Relevant here, Mr. Chrisco alleges that on April 15, 2015, Defendant Richard Maley ordered that he be placed on a “Mental Health Watch” (“MHW”) and put him in ambulatory metal shackles and belly restraints.^[1] Id. ¶¶ 26-27. These restraints made it nearly impossible for Mr. Chrisco to sleep, and they caused wounds on his wrists and ankles. Id. ¶¶ 28, 31. During the MHW, Mr. Gibson subjected Mr. Chrisco to “restraint checks” every two hours. Id. ¶ 29. As part of these checks, Mr. Gibson removed Mr. Chrisco from his cell by threat of force and shoved him into a wall while a nurse examined his restraints to ensure they were not too tight. Id. ¶¶ 29-30. Mr. Chrisco alleges Defendants performed the restraint checks to deprive him of sleep and break his will to do legal work. Id. ¶¶ 27, 29-30, 32. Mr. Chrisco remained on the MHW until April 29, 2015. Id. ¶ 27.

         II. Procedural History

         Although Mr. Chrisco initiated this case on April 26, 2017, Compl. 1, he deposited the Complaint in the SCCF mail system on April 24, 2017. ECF No. 1-1, at 2. Mr. Chrisco's second claim alleges Mr. Gibson committed medical malpractice and violated his Eighth Amendment right to be free from cruel and unusual punishment. Compl. 8, ECF No. 1. This is Mr. Chrisco's only cause of action against Mr. Gibson.

         Before Mr. Gibson was served with the Complaint, various other Defendants moved to dismiss Mr. Chrisco's claims against them. Defs.' Mot. to Dismiss, ECF No. 32. I recommended that Judge Brimmer dismiss the Eighth Amendment claim in the second cause of action, because the claim was time barred and Mr. Chrisco failed to establish that equitable tolling was proper. R. & R. on Defs.' Mot. to Dismiss 10-12, ECF No. 94. However, I recommended permitting the medical malpractice claim to proceed, because Defendants did not address these allegations. Id. at 32 n.5. Judge Brimmer adopted my recommendation in full on March 27, 2018. Order Adopting R. & R., ECF No. 103.

         Mr. Gibson was subsequently served with the Complaint, and I granted him an extension of time to file an answer or other response. ECF No. 102. On March 29, 2018, Mr. Gibson responded to the Complaint by filing the present Motion to Dismiss. Gibson's Mot. to Dismiss, ECF No. 104. Mr. Gibson seeks dismissal of Mr. Chrisco's medical malpractice claim as to him, because (1) it is barred by the statute of limitations, (2) it fails to meet the requirements of the Colorado Certificate of Review Statute, and (3) he is immune from liability pursuant to the Colorado Governmental Immunity Act. Id. at 4-8.

         On April 16, 2018, I granted Mr. Chrisco an extension of time until May 25, 2018 to respond to Mr. Gibson's motion. ECF No. 111. Mr. Chrisco did not file a response.

         LEGAL STANDARDS

         I. Fed.R.Civ.P. 12(b)(6)

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the ...