United States District Court, D. Colorado
A. BRIMMER CHIEF JUDGE
matter is before the Court on the Recommendation of the
United States Magistrate Judge [Docket No. 68] filed on
August 28, 2019. The magistrate judge recommends that the
Court deny Plaintiff’s Motion Requesting Injunction
[Docket No. 55] and grant defendants’ Motion to Dismiss
[Docket No. 42] with respect to all claims, except
plaintiff’s Eighth Amendment claim against defendant
Helene Christner in her individual capacity. See
Docket No. 68 at 20-21.
facts, thoroughly summarized in the magistrate judge’s
recommendation, see Docket No. 68, will not be
restated here. In brief, plaintiff is asserting violations of
his Eighth Amendment, Fourteenth Amendment due process, and
Fourteenth Amendment equal protection rights based on
defendants’ alleged failure to provide him with
adequate medical care during his time as an inmate in the
custody of the Colorado Department of Corrections
(“CDOC”). See generally Docket No. 23.
On December 14, 2018, defendants moved to dismiss the
complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Docket
No. 42. Plaintiff subsequently moved for an injunction
compelling the “CDOC to immediately start medical
treatments (TX) for Physical and Mental ongoing Illnesses
from pro-longed hepatitis ‘C.’” Docket No.
55 at 1. On August 28, 2019, the magistrate judge recommended
that the Court (1) deny plaintiff’s request for a
preliminary injunction as moot; and (2) grant
defendants’ motion to dismiss with respect to all
claims except plaintiff’s Eighth Amendment deliberate
indifference claim against defendant Christner in her
individual capacity. See Docket No. 68 at 20-21. On
September 19, 2019, plaintiff filed an “Objection to
Dismiss Defendants, Hickenlooper Raemish, Hansen, Christner,
” Docket No. 80, which the Court construes as an
objection to the magistrate judge’s August 28, 2019
STANDARD OF REVIEW
Court must “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 both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
absence of a proper objection, the Court reviews the
magistrate judge’s recommendation to satisfy itself
that there is “no clear error on the face of the
record.”Fed. R. Civ. P. 72(b), Advisory Committee
plaintiff is proceeding pro se, the Court construes
his objection and pleadings liberally without serving as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
liberally, plaintiff’s objection raises six arguments
in opposition to the magistrate judge’s recommendation:
(1) dismissal is premature because plaintiff lacks access to
vital documents that he requested in November 2018, Docket
No. 80 at 1; (2) the Eleventh Amendment “does not
forbid suing state officials for damages in their individual
capacities and declaratory or injunctive relief in their
official capacities, ” id.; (3) plaintiff has
submitted numerous attachments and exhibits supporting his
claims, id. at 1-2; (4) defendants Hickenlooper,
Raemisch, and Hansen are liable for helping to implement the
CDOC’s protocol for treating Hepatitis C Virus
(“HCV”), id. at 2-5; (5) the “HCV
protocol denies equal access to inmates seeking HCV
[treatment], a Fourteenth Amendment violation, id.
at 3; and (6) defendant Christner is liable for disregarding
plaintiff’s severe health issues. Id. at 5.
Plaintiff also requests that the Court stay proceedings in
this case until he is given access to the “Infection
Disease Committee (IDC) records.” Id. at 6.
first argument, and his request for a stay pending discovery
of the IDC records, is without merit. “Federal Rule of
Civil Procedure 12(b)(6) permits defendants to test the legal
sufficiency of the complaint prior to
discovery.” See Ultradent Prods., Inc. v.
Spectrum Sols. LLC, 2018 WL 324868, at *2 (D. Utah Jan.
8, 2018) (emphasis added); see also Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010) (“Generally, the
sufficiency of a complaint must rest on its contents
alone.”). Thus, plaintiff is not entitled to discovery
prior to the dismissal of his claims.
second argument – to the extent it can be construed as
an objection to the magistrate judge’s recommendation
– is also misplaced. Plaintiff asserts that the
Eleventh Amendment “does not forbid suing state
officials for damages in their individual capacities and
declaratory or injunctive relief in their official
capacities.” Docket No. 80 at 1. However, the
magistrate judge’s recommendation is not inconsistent.
The magistrate judge concluded that the Eleventh Amendment
bars plaintiff’s claims for monetary relief against
defendants in their official capacities. Docket No. 68 at 11.
While she also recommended dismissal of plaintiff’s
official-capacity claims for injunctive relief and his
individual-capacity claims for damages against defendants
Hickenlooper, Raemisch, and Hansen, she did so on other
grounds. Specifically, the magistrate judge determined that
plaintiff’s claims for injunctive relief were mooted by
plaintiff’s release from CDOC custody, see
Docket No. 68 at 9-10, and his allegations in support of the
individual-capacity claims for monetary relief did not
“show the requisite amount of personal involvement by
Defendants Hickenlooper, Raemisch, or Hansen to state a claim
under [42 U.S.C.] § 1983.” Id. at 12-14.
Because the magistrate judge correctly applied the doctrine
of Eleventh Amendment immunity, plaintiff’s second
argument will be overruled.
next contends that he has submitted sufficient evidence
– in the form of “documents, photographs of
himself, declarations, blood draws, ambulatory records,
grievances, kites, administrative regulations (ARs), clinical
and hospital records” – to proceed to trial on
his constitutional claims. Docket No. 80 at 1-2. As explained
above, however, Fed.R.Civ.P. 12(b)(6) concerns the legal
sufficiency of the complaint without regard to documentary
evidence. Accordingly, with the exception of documents
attached to the complaint, see Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006) (“Exhibits
attached to a complaint are properly treated as part of the
pleadings for purposes of ruling on a motion to
dismiss.”), the Court will generally not consider
evidence outside of the pleadings in resolving
defendants’ motion to dismiss under Rule
12(b)(6). Having reviewed the documents appended to
the complaint, which consist of plaintiff’s CDOC
treatment records from July and August 2018, see
Docket No. 23 at 21-27, the Court finds no error in the
magistrate judge’s recommendation.
fourth argument – that defendants Hickenlooper,
Raemisch, and Hansen are constitutionally liable for helping
to implement the HCV treatment protocols, see Docket
No. 80 at 2-5 – appears to be an objection to the
magistrate judge’s determination that plaintiff’s
“allegations fail to show the requisite amount of