United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. 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.
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.
STANDARD OF REVIEW
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).
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.” Fed. R. Civ. P. 72(b), Advisory Committee
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).
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.