Nasious v. Denver, City and County of et al

Filing 176

ORDER AFFIRMING OCTOBER 20, 2011 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Plaintiff's 173 Objections are overruled and the Court hereby adopts and affirms the 171 Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court. Plaintiff's 161 Motion for Leave to File Amended Complaint is denied. By Judge Christine M. Arguello on 11/9/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 08-cv-00275-CMA-KMT
JOHN NASIOUS,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, Denver Sheriffs [sic] Department,
SHERIFF STRONG, Denver Sheriffs [sic] Department, in his official
and individual capacity,
NURSE ROSIE PAGLIANO, Denver Sheriffs [sic] Department, in her official
and individual capacity,
Defendants.

ORDER AFFIRMING OCTOBER 20, 2011 RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Kathleen M. Tafoya
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 13.) On October 20, 2011,
the Magistrate Judge issued a Recommendation (Doc. # 171), in which she recommended that Plaintiffs’ [sic] Motion for Leave to File Amended Complaint (Doc. # 161)
be denied. Plaintiff, proceeding pro se, filed his objections to the Recommendation on
November 3, 2011. (Doc. # 173.)
When a magistrate judge issues a recommendation on a dispositive matter,
a district court judge is required to “determine de novo any part of the magistrate judge's
[recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In
conducting its review, “[t]he district court judge may accept, reject, or modify the

recommendation; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.
The Court has conducted the requisite de novo review of this matter, including
carefully reviewing all relevant pleadings, the Recommendation, and Plaintiff’s
Objections to the Recommendation. In his motion, which was filed on August 29, 2011,
Plaintiff seeks leave to amend his complaint to assert claims against Denver Health
Medical Center (“Denver Health”). (Doc. # 161.) Plaintiff’s claims against Denver
Health arise from events that occurred on June 18, 2005. However, Colorado law
provides a two-year statute of limitations for actions brought pursuant to 42 U.S.C.
§ 1983.1 See Colo. Rev. Stat. § 13-80-102(g) and (I) (establishing a two-year limitation
period for “all actions upon liability created by a federal statute where no period of
limitation is provided in said federal statute” and for “all other actions of every kind for
which no other period of limitation is provided”); Blake v. Dickason, 997 F.2d 749, 75051 (10th Cir. 1993) (applying § 13-80-102 to § 1983 claim).
The Magistrate Judge correctly found that it would be futile to allow Plaintiff leave
to amend his complaint because any claims against Denver Health would be barred by
the applicable statute of limitations. In her Recommendation, the Magistrate Judge
recited the long and complicated procedural history of this case and thoroughly
explained why the statute of limitations period has run with respect to any claims

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Similarly, a medical negligence claims under Colorado state law is subject to a twoyear statute of limitations. See Colo. Rev. Stat. § 13-80-102.5.

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asserted against Denver Health. (Doc. # 171 at 8-10.) Additionally, the Magistrate
Judge explained why Plaintiff’s proposed amended complaint did not relate back the
original complaint. (Id. at 10-12.) Plaintiff, in his objections, fails to raise any issues
of fact or law that would warrant a result different than that reached by the Magistrate
Judge.
Based on its de novo review, the Court concludes that the Magistrate Judge’s
thorough and comprehensive analyses and recommendations are correct. Therefore,
Plaintiff’s Objections (Doc. # 173) are OVERRULED and the Court hereby ADOPTS
and AFFIRMS the Recommendation of the United States Magistrate Judge as the
findings and conclusions of this Court.
Accordingly, it is ORDERED that Plaintiff’s Motion for Leave to File Amended
Complaint (Doc. # 161) is DENIED.
DATED: November

09 , 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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