United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE:
ECF. #27
S.
Kato Crews, United States Magistrate Judge
This
Recommendation addresses Defendant Daphne G. David's
(“David”) Motion to Dismiss
(“Motion”), filed September 18, 2018. [ECF. #27.]
The Motion was referred to the magistrate judge for a
recommendation. [ECF. #28.] Plaintiff Flecia Martin
(“Martin”) filed her Response [ECF. #48], which
was followed by David's Reply. [ECF. #49.] Martin filed a
surreply on January 2, 2019. [ECF. #50.] Although surreplies
are not contemplated by the Federal Rules, the Court, in its
discretion, has considered the surreply along with the other
filings. For the following reasons, the Court RECOMMENDS that
the Motion be GRANTED.
SUMMARY
FOR THE PRO SE PARTY
The
Court is recommending that Martin's claims against David
be dismissed. Upon a review of the pleadings in this case,
the Court concludes that Martin has failed to allege
sufficient facts to support her claims for negligent hiring,
supervision, and training. To the extent that Martin seeks to
hold David vicariously liable for the physician
defendants' conduct, the Court concludes that Martin has
failed to allege an employment relationship, and the claim is
barred by the corporate practice of medicine doctrine. Martin
has 14 days after service of this Recommendation to file
specific written objections to this Recommendation with Judge
Moore for his review. Judge Moore may either adopt or reject
this Recommendation, and issue an order based on his own
findings and conclusions. Should Judge Moore adopt this
Recommendation, Martin's claim against David will be
dismissed.
BACKGROUND
According
to the Amended Complaint, on February 2 and 10, 2015, Martin
visited the Emergency Room of North Suburban Medical Center
with complaints of nausea, vomiting, and a headache. [ECF.
#14 at p.2.] Martin alleges that the named physician
defendants[1] administered a number of drugs that were
not clinically indicated and “not the best treatment
for her symptoms.” [Id. at p.7]
In
addition, Martin alleges that David, who is President and CEO
of North Suburban Medical Center, “neglected to hire
and/or adequately train emergency room staff” regarding
the proper drug treatments for Martin's symptoms. Martin
also alleges that David “neglected to adequately inform
her staff of the dangers of giving” drugs that are not
clinically indicated. Martin contends that David should be
vicariously liable for the actions of the physician
defendants. [Id. at p. 9.]
STANDARD
OF REVIEW
A.
Rule 12(b)(6)
In
deciding a motion under Fed.R.Civ.P. 12(b)(6), the Court must
“accept as true all well-pleaded factual allegations .
. . and view these allegations in the light most favorable to
the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court
is not, however, “bound to accept as true a legal
conclusion couched as a factual allegation.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
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, 556 U.S. at 678 (internal quotation marks
omitted). A claim is plausible when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This standard
requires more than the sheer possibility that a defendant has
acted unlawfully. Id. Facts that are “merely
consistent” with a defendant's liability are
insufficient. Id. “[T]o state a claim in
federal court, a complaint must explain what each defendant
did to him or her; when the defendant did it; how the
defendant's actions harmed him or her; and what specific
legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The
Court's ultimate duty is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“Nevertheless, the standard remains a liberal one, and
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that recovery is very remote and
unlikely.'” Morgan v. Clements, No.
12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar.
18, 2013) (quoting Dias v. City & County of
Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).
B.
Pro Se Parties
The
Court acknowledges that Martin is not an attorney.
Consequently, her pleadings and other papers are construed
liberally and held to a less stringent standard than formal
pleadings drafted by a lawyer. See Hall, 935 F.2d at
1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21
(1972)). “[I]f the court can reasonably read the
pleadings to state a claim on which the plaintiff could
prevail, it should do so despite the plaintiff's failure
to cite proper authority, his confusion of legal theories,
his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Id.
But this Court cannot act as a pro se litigant's
advocate. Id. It is the responsibility of the
pro se plaintiff to provide a simple and concise
statement of each claim and the specific conduct that gives
rise to them. See Willis v. MCI Telecomms., 3
F.Supp.2d 673, 675 (E.D. N.C. 1998). The Court may not
“supply additional factual allegations to round out a
plaintiff's complaint.” Whitney v. State of New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may
a plaintiff defeat a motion to dismiss by alluding to facts
that have not been alleged, or by ...