United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
v.
SUSAN M. TIONA, M.D., RENE JORDAN, ROBERT MAGNUSON, M.D., GINA NELSON, M.D., CELIA RIFE, R.N., ANITA NORMANDY, JODY SINKER, DOLF HALL, KATHY MICKEY, THEODORE L. LAURENCE, PA/NP, TEJINDER SINGH, PA/NP, CORRECTIONAL HEALTH PARTNERS, INC., JEFF ARCHAMBEAU, and S. TATESOIAN., Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S
RECOMMENDATION
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on the Recommendation Re:
Defendants’ Motion to Dismiss filed on August 5, 2019
[Docket No. 319] (“the recommendation”).
Magistrate Judge S. Kato Crews recommends that the Court
grant in part and deny in part the Motion to Dismiss in Part
Plaintiff’s Second Amended Complaint [Docket No. 256]
filed by defendants Susan Tiona, Rene Jordan, Robert
Magnuson, Gina Nelson, Anita Normandy, Jody Sinker, Dolf
Hall, and Theodore Laurence (the “CDOC
defendants”). Plaintiff, through counsel, filed timely
written objections. Docket No. 331. The CDOC defendants did
not file an objection.
The
Court will “determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
proper if it is specific enough to enable the Court “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).
Plaintiff
is an inmate in the custody of the Colorado Department of
Corrections. Docket No. 248.[1] In the operative complaint,
plaintiff alleges that, under the direction of defendant
Susan Tiona (“Tiona”), defendants purposefully
refused him medical care. Id.[2] Plaintiff brings
claims against all defendants in their individual capacities
pursuant to 42 U.S.C. § 1983 for violations of his
rights under the First, Eighth, and Fourteenth Amendments to
the Constitution. Id. at 6-7, ¶
36.[3]
The magistrate judge recommends that (1) all claims against
defendants Rene Jordan (“Jordan”), Anita Normandy
(“Normandy”), and Jody Sinker
(“Sinker”) be dismissed as barred because the
claims against them were previously dismissed with prejudice;
(2) the Eighth Amendment claim against Tiona be dismissed in
part as barred by the applicable statute of limitations; (3)
the First and Fourteenth Amendment claims against the CDOC
defendants be dismissed for failure to state a claim, except
for a First Amendment retaliation claim against Tiona; and
(4) the Eighth Amendment claims against defendants Gina
Nelson (“Nelson”), Dolf Hall
(“Hall”), and Theodore Laurence
(“Laurence”) be dismissed for failure to state a
claim. Docket No. 319.
Plaintiff
first objects to the magistrate judge’s conclusion that
the claims against defendants Jordan, Normandy, and Sinker
are barred. Docket No. 331 at 2. On January 16, 2018,
plaintiff and certain defendants – including Jordan,
Normandy, and Sinker – filed a stipulated motion to
dismiss certain claims. Docket No. 62. In the stipulated
motion to dismiss, the parties represented that, earlier that
day, they “discussed [p]laintiff’s claims against
Jordan . . . Normandy . . . [and] Sinker . . . and agreed to
the dismissal of the same with prejudice.” Id.
at 2, ¶ 4 (emphasis added). The stipulated motion to
dismiss is signed “s/ Delmart E.J.M Vreeland, II, by
agreement.” Id. at 2. On January 17, 2018, the
Court entered an order granting the stipulated motion to
dismiss and dismissing the agreed claims with prejudice.
Docket No. 63. However, in the operative complaint, plaintiff
asserts substantively the same claims against defendants
Jordan, Normandy, and Sinker as those that were previously
dismissed with prejudice. Compare Docket No. 10 at 5-18 with
Docket No. 248 at 2-6.
Unless
the Court makes some other provision, “[a] dismissal
with prejudice [pursuant to Fed.R.Civ.P. 41(a)] . . . is
subject to the usual rules of res judicata.” 9 Arthur
R. Miller, Federal Practice & Procedure § 2367 (3d.
ed. Aug. 2019 update); see Schmier v. McDonald’s LLC,
569 F.3d 1240, 1242 (10th Cir. 2009) (“A voluntary
dismissal with prejudice operates as a final adjudication on
the merits and is thus a final judgment.” (internal
citations and quotations omitted)). Plaintiff concedes that
the claims brought against Jordan, Normandy, and Sinker in
the First Amended Complaint are substantively the same as the
previously dismissed claims. Rather, plaintiff now appears to
argue that he did not intend to dismiss the claims with
prejudice. See Docket No. 331 at 2.[4] Plaintiff fails to explain
why, if he did not intend to dismiss the claims with
prejudice, he did not file a motion for reconsideration of
the Court’s order granting the stipulated motion to
dismiss at any point before (or after) filing the operative
complaint. Cf. Alpenglow Botanicals, LLC v. United States,
894 F.3d 1187, 1203 (10th Cir. 2018) (“[A] motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or
controlling law.”). Moreover, plaintiff did not argue
in his response to the motion to dismiss that he intended to
dismiss Jordan, Normandy, and Sinker without prejudice. See
Docket No. 266; see also Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996) (“Issues raised for the first
time in objections to the magistrate judge’s
recommendation are deemed waived.”). Thus, plaintiff
has failed to establish that he intended the dismissal of the
claims against Jordan, Normandy, and Sinker to be without
prejudice. As the Court agrees with the recommendation that
the claims against Jordan, Normandy, and Sinker are barred,
the Court will overrule plaintiff’s objection.
Next,
plaintiff objects to the recommendation that the statute of
limitations bars the Eighth Amendment claims against Tiona.
The magistrate judge concluded that claims against Tiona that
accrued more than two years prior to plaintiff filing this
lawsuit on June 28, 2017 are no longer actionable. Docket No.
319 at 8-9. Plaintiff concedes that the statute of
limitations is two years, but argues that the date that a
claim accrues for the purposes of a statute of limitations is
a “fact issue.” Docket No. 331 at 2. However,
“[a] statute of limitations defense may be
appropriately resolved on a Rule 12(b) motion when the dates
given in the complaint make clear that the right sued upon
has been extinguished.” Sierra Club v. Okla. Gas
& Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016)
(internal quotation marks omitted). The Court agrees with the
recommendation that plaintiff may continue to pursue his
claims against Tiona arising out of conduct occurring after
June 28, 2015.[5] Cf. Chrisco v. Raemisch, 374
F.Supp. 3d 1093, 1098-99 (D. Colo. 2019) (holding that, where
it appears from the complaint that at least some of
defendant’s conduct may have occurred within the
limitations period, plaintiff may pursue a medical
malpractice claim on acts occurring within the limitations
period only).
Finally,
plaintiff states that he “intends to bring First and
Fourteenth Amendment claims against all named
[d]efendants.” Docket No. 331 at 2. The Court
interprets this as an attempt to object to the recommendation
that the First and Fourteenth Amendment claims be dismissed
against all of the CDOC defendants, other than a First
Amendment complaint against Tiona. The objection is otherwise
devoid of sufficient specificity to preserve the issue for
de novo review by this Court. See Wofford v.
Colvin, 570 Fed.Appx. 744, 745-46 (10th Cir. 2014)
(unpublished) (holding that “conclusory and
non-specific” objections that “fail[] to identify
the particular errors the magistrate judge committed”
fail to preserve an issue for appellate review); see also
Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988)
(“[A]n objection stating only ‘I object’
preserves no issue for review.”). In the absence of a
proper objection, the district court may review a magistrate
judge’s recommendation under any standard it deems
appropriate. See Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“[i]t does not appear that
Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a
de novo or any other standard, when neither party
objects to those findings”). The Court has reviewed the
portion of the recommendation analyzing the First and
Fourteenth Amendment claims to satisfy itself that there is
“no clear error on the face of the record.”
Fed.R.Civ.P. 72(b), Advisory Committee Notes.[6] Based on this
review, the Court has concluded that this portion of the
recommendation is a correct application of the facts and the
law, and will dismiss the First and Fourteenth Amendment
claims against the CDOC defendants except for the First
Amendment retaliation claim against Tiona.
The
Court has reviewed the remainder of the recommendation to
satisfy itself that there is “no clear error on the
face of the record.” Fed.R.Civ.P. 72(b), Advisory
Committee Notes.[7] Based on this review, the Court has
concluded that the remainder of the recommendation is a
correct application of the facts and the law, and will adopt
the recommendation. It is therefore
ORDERED
that the Recommendation Re: Defendants’ Motion to
Dismiss [Docket No. 319] is ADOPTED. It is
further
ORDERED
that Plaintiff’s Response to the Recommendation of
Magistrate Judge S. Kato Crews Re: Defendant’s Motion
to Dismiss [Docket No. 331], construed as an objection, is
OVERRULED. It is further
ORDERED
that the Motion to Dismiss in Part Plaintiff’s Second
Amended Complaint [Docket No. 256] is GRANTED IN
PART and DENIED IN PART as
consistent with this order. It is further
ORDERED
that all claims against defendants Rene Jordan, Anita
Normandy, and Jody Sinker are DISMISSED
because the claims were previously dismissed with prejudice.
It is further
ORDERED
that the Eighth Amendment claims against Gina Nelson, Dolf
Hall, and Theodore Laurence are DISMISSED WITH
PREJUDICE ...