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Paulsen v. Hickenlooper

United States District Court, D. Colorado

September 27, 2019

MARK WALTER PAULSEN, Plaintiff,
v.
JOHN W. HICKENLOOPER, Governor, RICK RAEMISCH, Executive Director CDOC, MATHEW HANSEN, Warden, HELENE CHRISTNER, N/P- .D., SCF Medical Department, Defendants.

          ORDER

          PHILIP A. BRIMMER CHIEF JUDGE

         This 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.

         I. BACKGROUND

         The 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 recommendation.

         II. STANDARD OF REVIEW

         The 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).

         In the 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.”[1]Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         Because 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).

         III. ANALYSIS

         Construed 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.

         Plaintiff’s 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.

         Plaintiff’s 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.

         Plaintiff 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).[2] 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.

         Plaintiff’s 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 ...


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