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Magluta v. Daniels

United States District Court, D. Colorado

March 26, 2019

SALVADOR MAGLUTA, Plaintiff,
v.
CHARLES DANIELS, Former Warden, FCC Florence, in his individual and official capacities, DAVID ALLRED, DO, Former Clinical Director, FCC Florence, in his individual and official capacities, GEORGE SANTINI, MD, Clinical director, FCC Florence, in his individual and official capacities, LISA MCDERMOTT, Assistant Health Services Administrator, FCC Florence, in her individual and official capacities, TERESA NEHLS, Former Nurse Practitioner, FCC Florence, in her individual and official capacities, NIXON ROBERTS, DDS, Dentist, FCC Florence, in his individual and official capacities, and JOHN DOE #1-15, Unknown Staff, FCC Florence, in their individual and official capacities, Defendants.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This matter is before this Court on the Recommendation of United States Magistrate Judge (“Recommendation”) (ECF No. 149), recommending that “Defendants' Renewed Motion to Dismiss Remaining Claims in Plaintiff's Fourth Amended Complaint (Doc. 87)” (“Motion”) (ECF No. 129) be granted and the remaining claims in this case be dismissed. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Upon consideration of the Recommendation, and the court record, and being otherwise fully advised, the Court amends the Recommendation; accepts and adopts the Recommendation, as amended; and grants the Motion as stated herein.

         I. BACKGROUND

         This Order presumes the readers' familiarity with the case and the orders previously entered. Briefly, Plaintiff's operative complaint, filed through counsel, alleges Defendants “repeatedly exhibited deliberate indifference to Plaintiff's serious medical conditions involving his kidneys and his dental and oral health.” (ECF No. 87, ¶2.) Plaintiff brought eight causes of action, seeking relief under the Eighth Amendment (first through fourth causes of action), Fifth Amendment (fifth through eighth causes of action), and First Amendment (seventh and eighth causes of action). Based on various orders of dismissals (ECF Nos. 118, 125), the only causes of action (hereafter referred to as “claims”) which remain are portions of claims one and three. None of the claims are directed against John Doe defendants, including the remaining two claims.

         What remains of claim one is against Defendants Daniels, Allred, Santini, McDermott, and Nehls in their official capacities; and against Defendants Allred (in part) and Santini in their individual capacities. What remains of claim three is against Defendants Daniels, McDermott, and Roberts[1] in their official capacities. Defendants sought dismissal of all remaining claims.

         The Magistrate Judge recommended (1) dismissal with prejudice based on the Eleventh Amendment as to Plaintiff's official capacity Bivens claims (one and three) for money damages; (2) dismissal without prejudice as moot Plaintiff's claim one for injunctive relief as his alleged kidney problems have now been resolved; (3) dismissal with prejudice as to claim one against Defendant Allred based on qualified immunity as Plaintiff has failed to allege any wrongful action by him occurring after October 5, 2013, within the applicable statute of limitations period; and (4) dismissal with prejudice as to claim one against Defendant Santini based on qualified immunity for failure to sufficiently alleged any constitutional violations. The Recommendation advised the parties that written objections were due within 14 days of service of the Recommendation. Despite this advisement, no party has filed any objection[2] or sought additional time to do so. (See Dkt.)

         II. LEGAL STANDARD

         A. Review of a Magistrate Judge's Report and Recommendation

         When a 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)). In the 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.”).

         B. Motion to Dismiss

         As no party objects to the Magistrate Judge's statements of the standard applicable to motions to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(2), and the Court finds such statements to be correct, the standard set forth in the Recommendation is incorporated herein by this reference.

         C. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The Court, therefore, reviews Plaintiff's pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citations omitted). Pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

         III. ...


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