Chrisco v. Raemisch

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Recommendation of the United States Magistrate Judge [Docket No. 113] filed on July 17, 2018. The magistrate judge recommends that the Court dismiss plaintiff's state-law medical malpractice claim against defendant Donald Gibson on the ground that it is barred by Colorado's two-year statute of limitations. See Docket No. 113 at 5. Plaintiff filed a timely objection to the recommendation on August 3, 2018. Docket No. 114.

         I. BACKGROUND

         Plaintiff initiated this pro se lawsuit on April 26, 2017, asserting constitutional and state-law claims arising out of a series of incidents that occurred at San Carlos Correctional Facility (“SCCF”) in April 2015. See Docket No. 1. As relevant here, plaintiff's second claim for relief asserts that he was placed on a “mental health watch” from April 15, 2015 until April 29, 2015, during which time he was placed in ambulatory restraints that made it nearly impossible to sleep. Id. at 8. He alleges that, during this time, various individuals, including defendant Donald Gibson, subjected him to“restraint checks” every two hours whereby plaintiff was removed from his cell and the tightness of his restraints checked, which had the purpose of punishing plaintiff and depriving him of sleep. Id. at 8-9. Plaintiff further alleges that defendant Gibson helped to justify plaintiff's continued placement on mental health watch despite knowing that plaintiff was not a danger to himself or others. Id. at 9. Plaintiff asserts claims against defendant Gibson for medical malpractice under state law and cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. Id. at 8.

         On July 31, 2017, defendants Raemisch, Travis, Montoya, Eslinger, Collins, Maley, Spearing, Gallardo, Espinoza, Cortez, Shofner, Krakow, Jones, and Sierra moved to dismiss the majority of plaintiff's claims, including the second claim for relief. Docket No. 32. Defendant Gibson did not join in the motion to dismiss because he was not served until January 2018. See Docket No. 92.

         On February 20, 2018, the magistrate judge recommended that the defendants' motion be granted and that plaintiff's second claim for relief be dismissed to the extent that it asserted an Eighth Amendment claim against defendants Maley, Gibson, and Spearing. Docket No. 94 at 31. The magistrate judge determined that the claim had accrued outside of the applicable two-year statute of limitations period and was not subject to equitable tolling. Id. at 11-12.^[1] On March 27, 2018, the Court accepted the magistrate judge's recommendation and dismissed plaintiff's second claim for relief to the extent that it asserted an Eighth Amendment claim under 42 U.S.C. § 1983. Docket No. 103 at 10. In doing so, the Court overruled plaintiff's objection that he was entitled to equitable tolling, concluding that plaintiff had not shown he had made diligent efforts to pursue his claims within the limitations period. See Docket No. 103 at 7. Plaintiff's medical malpractice claims were allowed to proceed because defendants had not advanced any argument that those claims were subject to dismissal. Id. at 8-9.

         On March 29, 2018, defendant Gibson moved to dismiss the second claim for relief to the extent it asserted a medical malpractice claim against him. Docket No. 104. Plaintiff did not file a response to the motion. On July 17, 2018, the magistrate judge recommended that the claim be dismissed as time-barred under Colo. Rev. Stat. § 13-80-102.5(1). Docket No. 113 at 5.

         II. STANDARD OF REVIEW

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” 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).

         In the absence of a proper objection, the Court reviews the magistrate judge's recommendation to satisfy itself that there is “no clear error on the face of the record.”^[2] Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         Because plaintiff is proceeding pro se, the Court construes his objection and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. ANALYSIS

         Plaintiff objects to the magistrate judge's recommendation on two grounds. First, he asserts that defendant “Gibson's complained-of conduct was a continuing injury over the course of a two-week period from April 15, 2015 through April 29, 2015” and thus “the full nature of the injury . . . was [not] immediately cognizable on April 15, 2015.” Docket No. 114 at 2. Second, plaintiff contends that the Court erred by dismissing his Eighth Amendment claim against defendant Gibson because defendant Gibson did not join in the motion to dismiss plaintiff's constitutional claims. Id. at 3.

         A. Medical ...