United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
Donald Gibson seeks to dismiss Plaintiff Luke Chrisco's
claim for medical malpractice. Mr. Chrisco did not file a
response to Mr. Gibson's motion. Because Mr. Chrisco
initiated this case outside of the two-year statute of
limitations, I respectfully recommend that the Honorable
Philip A. Brimmer grant the motion.
following are relevant factual allegations, which I take as
true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Chrisco is incarcerated at the San Carlos Correctional
Facility (“SCCF”) in the Colorado Department of
Corrections. Compl. 2, ECF No. 1. Relevant here, Mr. Chrisco
alleges that on April 15, 2015, Defendant Richard Maley
ordered that he be placed on a “Mental Health
Watch” (“MHW”) and put him in ambulatory
metal shackles and belly restraints. Id. ¶¶
26-27. These restraints made it nearly impossible for Mr.
Chrisco to sleep, and they caused wounds on his wrists and
ankles. Id. ¶¶ 28, 31. During the MHW, Mr.
Gibson subjected Mr. Chrisco to “restraint
checks” every two hours. Id. ¶ 29. As
part of these checks, Mr. Gibson removed Mr. Chrisco from his
cell by threat of force and shoved him into a wall while a
nurse examined his restraints to ensure they were not too
tight. Id. ¶¶ 29-30. Mr. Chrisco alleges
Defendants performed the restraint checks to deprive him of
sleep and break his will to do legal work. Id.
¶¶ 27, 29-30, 32. Mr. Chrisco remained on the MHW
until April 29, 2015. Id. ¶ 27.
Mr. Chrisco initiated this case on April 26, 2017, Compl. 1,
he deposited the Complaint in the SCCF mail system on April
24, 2017. ECF No. 1-1, at 2. Mr. Chrisco's second claim
alleges Mr. Gibson committed medical malpractice and violated
his Eighth Amendment right to be free from cruel and unusual
punishment. Compl. 8, ECF No. 1. This is Mr. Chrisco's
only cause of action against Mr. Gibson.
Mr. Gibson was served with the Complaint, various other
Defendants moved to dismiss Mr. Chrisco's claims against
them. Defs.' Mot. to Dismiss, ECF No. 32. I recommended
that Judge Brimmer dismiss the Eighth Amendment claim in the
second cause of action, because the claim was time barred and
Mr. Chrisco failed to establish that equitable tolling was
proper. R. & R. on Defs.' Mot. to Dismiss 10-12, ECF
No. 94. However, I recommended permitting the medical
malpractice claim to proceed, because Defendants did not
address these allegations. Id. at 32 n.5. Judge
Brimmer adopted my recommendation in full on March 27, 2018.
Order Adopting R. & R., ECF No. 103.
Gibson was subsequently served with the Complaint, and I
granted him an extension of time to file an answer or other
response. ECF No. 102. On March 29, 2018, Mr. Gibson
responded to the Complaint by filing the present Motion to
Dismiss. Gibson's Mot. to Dismiss, ECF No. 104. Mr.
Gibson seeks dismissal of Mr. Chrisco's medical
malpractice claim as to him, because (1) it is barred by the
statute of limitations, (2) it fails to meet the requirements
of the Colorado Certificate of Review Statute, and (3) he is
immune from liability pursuant to the Colorado Governmental
Immunity Act. Id. at 4-8.
April 16, 2018, I granted Mr. Chrisco an extension of time
until May 25, 2018 to respond to Mr. Gibson's motion. ECF
No. 111. Mr. Chrisco did not file a response.
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 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 678-80.
Second, the Court must consider the ...