United States District Court, D. Colorado
Raymond P. Moore United States District Judge.
matter is before the Court on the April 12, 2019,
recommendation of Magistrate Judge S. Kato Crews (ECF No. 54)
to grant Defendant David's motion to dismiss (ECF No.
27). Plaintiff, proceeding pro se, has filed an objection to
the recommendation (ECF No. 58). The recommendation is
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). For the reasons
given below, the Court overrules Plaintiff's objection,
accepts and adopts the recommendation, and grants the motion
to Fed.R.Civ.P. 72(b)(3), this Court reviews de novo any part
of the magistrate judge's recommendation that is properly
objected to. An objection is proper only if it is
sufficiently specific “to focus the district
court's attention on the factual and legal issues that
are truly in dispute.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court accepts as true all well-pled factual allegations
in the complaint, views those allegations in the light most
favorable to the plaintiff, and draws all reasonable
inferences in the plaintiff's favor. Brokers'
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d
995, 1000 (10th Cir. 2010). The complaint must allege a
“plausible” right to relief. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 569 n.14 (2007).
“Factual allegations must be enough to raise a right to
relief above the speculative level, ” id. at
555, and conclusory allegations are insufficient, Cory v.
Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The
Court is “not bound to accept as true a legal
conclusion couched as a factual allegation, ”
Twombly, 550 U.S. at 555 (quotation omitted).
proceeds pro se, so the Court liberally construes her
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). The Court does not act as her advocate. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
to the complaint, Plaintiff was given inappropriate and
harmful medications on February 2 and 10, 2015, at a medical
center in Thornton, Colorado. The complaint alleges that
Defendant David, who was the president and CEO of the medical
center, negligently hired and trained emergency room staff
and that she “must take responsibility for the medical
malpractice performed by her staff.” (ECF No. 14 at 9.)
The other Defendants in this case have filed a separate
motion to dismiss that has been referred to the magistrate
judge. (ECF Nos. 55, 56.)
magistrate judge determined that Plaintiff failed to allege
sufficient facts to support a claim for negligent hiring,
supervision, and training against Defendant David because
Plaintiff failed to allege an employment relationship between
Defendant David, who was sued individually, and the other
Defendants. Moreover, the magistrate judge determined that
the allegations did not establish that Defendant David owed
Plaintiff a legal duty because the complaint did not explain
how the other Defendants were unfit to be hired, how they
were inadequately trained, or how Defendant David knew or
should have known that hiring them would create an undue risk
of harm to Plaintiff. The magistrate judge further determined
that Plaintiff failed to allege sufficient facts that would
support holding Defendant David vicariously liable for any
torts allegedly committed by the other Defendants.
objection consists of a somewhat rambling discussion of the
fact that hospitals are frequently sued and a restatement of
her perceived damages. It does not directly address any of
these determinations by the magistrate judge or identify any
additional facts to support her legal theories. The Court
concludes that the magistrate judge's analysis was
thorough and sound and discerns no clear error on the face of
the Court OVERRULES Plaintiffs objection (ECF No. 58),
ACCEPTS and ADOPTS the magistrate judge's recommendation
(ECF No. 54), and GRANTS ...