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Brooks v. Colorado Department of Corrections

United States District Court, D. Colorado

August 6, 2019

JASON BROOKS, Plaintiff,



         This Recommendation addresses Defendants' Colorado Department of Corrections ("CDOC") and Susan Tiona, M.D. ("Dr. Tiona") (collectively, "CDOC Defendants") Motion to Dismiss Plaintiffs Verified First Amended Complaint ("Motion"). [ECF. #29.] Plaintiff Jason Brooks ("Brooks") filed his Response [ECF. #32], which was followed by Defendants' Reply. [ECF. #33.] This matter was referred to the Magistrate Judge for a Recommendation. [ECF. #30.] The Court has considered the Motion, the related briefing, and the prevailing law. For the following reasons, the Court RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART.


         According to the allegations in the Amended Complaint, which the Court takes as true for purposes of this Recommendation, Brooks injured his right knee in October 2016. [ECF. #28 at ¶ 1.] After anti-inflammatories were unsuccessful, he submitted a request to see a doctor. [Id. at ¶ 3.] Dr. Tiona evaluated Brooks on December 12, 2016, and ordered an x-ray. [Id. at ¶ 4.] During a follow-up appointment, Dr. Tiona noted that Brooks still had discomfort in his knee. [Id. at ¶ 7.] Despite indications of a meniscus injury, she did not order an MRI but instead treated Brooks with a steroid injection and rehabilitative exercises. [Id. at ¶¶ 8-9, 15-] The Amended Complaint alleges that Dr. Tiona failed to request an MRI because of a contract between the CDOC and Correctional Heath Partners ("CHP") that requires medical providers pursue "conservative therapy" before requesting an MRI. [Id. at ¶¶ 9-15.]

         Dr. Tiona conducted a follow-up in February 2017 and noted that Brooks' issue had been resolved. [Id. at ¶ 19.] In April 2017, Brooks returned to Dr. Tiona for another evaluation complaining that his knee was causing significant problems and that his pain was constant. [Id. at ¶ 20.] Dr. Tiona then ordered an MRI. The MRI revealed a sprain of the ACL, a ligament tear, and degenerative arthritis. [Id. at ¶ 21.] Brooks had arthroscopic surgery in November 2017 to repair the tear; however, according to a medical specialist, he will ultimately need knee replacement surgery and his knee will never be the same. [Id. at ¶ 25.] In addition, Brooks can no longer play sports or exercise without significant pain in his knee. [Id. at ¶ 26.]

         Brooks initiated this action on October 9, 2018, asserting claims against CDOC, Dr. Tiona, CHP, and a John Doe defendant. [ECF. #1.] CDOC and Dr. Tiona filed a Motion to Dismiss [ECF. #25], after which Brooks filed an Amended Complaint.[1] [ECF. #29.] CHP filed an answer to the Amended Complaint on behalf of itself and Jeff Archambeau.[2] [ECF. #31] Defendants CDOC and Dr. Tiona filed a renewed Motion to Dismiss requesting that the claims against them be dismissed in their entirety. [ECF. #23.]


         A. Fed.R.Civ.P. 12(b)(1)

         As courts of limited jurisdiction, federal courts must have a specific legal basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). The determination of a court's subject matter jurisdiction is a question of law. Madsen v. U.S. ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         B. Fed.R.Civ.P. 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 mere 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 & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).

         C. Pro Se Parties

         The Court acknowledges that Brooks is not an attorney. Consequently, his pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (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 plaintiffs 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 his claims and the specific conduct that gives rise to each asserted claim. 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 plaintiffs complaint." Whitney v. 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 suggesting violations that have not been pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).


         In his Amended Complaint, Brooks alleges that the CDOC Defendants were deliberately indifferent to his serious medical need in violation of the Eighth Amendment. [ECF. #28 at ¶¶ 27-39.]He further alleges that their conduct violates the Fourteenth Amendment guarantee of substantive due process, that they engaged in a civil conspiracy to violate his constitutional rights, and that Colorado's law requiring a Certificate of Review in cases asserting professional negligence is unconstitutional.

         A. Eleventh Amendment Immunity

         The CDOC argues that Brooks' claims against it must be dismissed because the claims are barred by the Eleventh Amendment, and therefore, this Court lacks jurisdiction. [ECF. #29 at p.4.] Although he does not concede the issue, Brooks did not offer any arguments in response to this contention.[3] ...

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