United States District Court, D. Colorado
RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS
KATO CREWS UNITED STATES MAGISTRATE JUDGE.
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.
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.]
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.]
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. [ECF. #29.] CHP
filed an answer to the Amended Complaint on behalf of itself
and Jeff Archambeau. [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.]
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
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
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).
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
Pro Se Parties
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).
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).
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.
Eleventh Amendment Immunity
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