Glasser v. King et al

Filing 116

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that Magistrate Judge Shaffer's Recommendation 101 is AFFIRMED and ADOPTED. ORDERED that Glassers Objection To Proposed Findings And Recommendations Of Magistrate Judge 103 is OVERRULED. ORDERED that Glassers Motion To Amend Order Dismissing Defendant Colorado Department Of Corrections Pursuant to F.R.C.P. Rule 59(e) 22 is DENIED by Judge Wiley Y. Daniel on 01/22/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-00624-WYD-CBS
WAYNE GLASSER,
Plaintiff,
v.
CAROLE KING, R.N.;
MICHAEL WALSH, P.A.;
LT. JAMES HARDING;
LYNN ERICKSON, H.S.A.;
MICHAEL HANSA, M.D., deceased, through surviving spouse and successor, WEERAANONG HANSA;
STEPHEN MACKERROW, M.D.; and,
PUEBLO CARDIOLOGY ASSOCIATES, P.C.,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with plaintiff, Wayne Glasser’s,
Motion To Amend Order Dismissing Defendant Colorado Department Of Corrections
Pursuant to F.R.C.P. Rule 59(e) [ECF No. 22], filed on May 16, 2012. Because Glasser
proceeds pro se, I referred all motions to Magistrate Judge Shaffer [ECF No. 12]. On
November 8, 2012, Magistrate Judge Shaffer issued a Recommendation [ECF No. 101]
stating that Glasser’s motion [ECF No. 22] should be denied. The Recommendation is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b),
D.C.COLO.LCivR. 72.1.

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BACKGROUND
Plaintiff, Wayne Glasser, is an inmate at Fremont Correctional Facility (“FCF”) in
Canon City, Colorado. On March 26, 2010, Glasser returned from the recreational yard
after running five miles and complained inter alia, of chest pain and numbness in his
triceps. FCF’s medical staff administered an electrocardiogram (“EKG”) to Glasser.
The EKG results indicated Glasser was experiencing a heart attack. FCF’s medical
staff gave Glasser a shot of nitroglycerin and dispatched an ambulance. The
ambulance drove Glasser to St. Thomas More Hospital in Canon City, Colorado, and
Glasser was subsequently airlifted to Parkview Medical Center in Pueblo, Colorado,
where he underwent surgery to restore blood flow to his left anterior descending artery.
Glasser sustained permanent myocardial damage and suffers from complications as a
result of the heart attack.
On March 12, 2012, Glasser filed this suit under 42 U.S.C. § 1983 against the
Colorado Department of Corrections (“CDC”) and other defendants, alleging his injuries
are the direct result of the defendants’ failure to provide him adequate medical care and
treatment [ECF No. 1]. Glasser filed an Amended Complaint on April 17, 2012, [ECF
No. 7].1 On April 19, 2012, Judge Babcock of the United States District Court for the
District of Colorado, issued an Order dismissing the CDC as an improper party to this
action pursuant to immunity granted to the state of Colorado under the Eleventh
Amendment to the Constitution of the United States [ECF No. 9, p. 2, ¶¶3 & 4]. On May
16, 2012, Glasser filed a Motion To Amend Order Dismissing Defendant Colorado
Department Of Corrections Pursuant to F.R.C.P. Rule 59(e) [ECF No. 22], arguing that
the state of Colorado “has in fact waived it’s immunity from liability for his claims in
1

Glasser filed a Second Amended Complaint on September 5, 2012 [ECF No. 98].

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Counts 8 and 9 of his amended complaint.” ECF No. 22, p. 3, ¶ 2. On November 8,
2012, Magistrate Judge Shaffer issued a Recommendation [ECF No. 101] stating that
Glasser’s motion should be denied because he fails present any ground for
reconsideration under FED. R. CIV. P. 59(e). On November 23, 2012, Glasser filed his
Objection To Proposed Findings And Recommendations Of Magistrate Judge [ECF No.
103].
ANALYSIS
A. Legal Standard
Because Glasser filed an objection to Magistrate Judge Shaffer’s
Recommendation [ECF No. 103], I must review “de novo any part of the magistrate
judge’s disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3); see 28
U.S.C. § 636(b)(1)(C). I must “consider relevant evidence of record and not merely
review the magistrate judge’s recommendation.” In re Griego, 64 F.3d 580, 584 (10th
Cir. 1995) (citation omitted). Further, I am given discretion whether to “accept, reject, or
modify” the recommended disposition made by the Magistrate Judge. FED. R. CIV. P.
72(b)(3); see 28 U.S.C. § 636(b)(1)(C).
B. Glasser’s Objection to Magistrate Judge Shaffer’s Report and
Recommendation [ECF No. 103]
Glasser objects to Magistrate Judge Shaffer’s recommendation that
reconsideration of Judge Babcock’s April 19, 2012, Order is unwarranted. “Grounds
warranting a motion to reconsider [pursuant to FED. R. CIV. P. 59(e)] include (1) an
intervening change in controlling law, (2) new evidence previously unavailable, and (3)
the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Glasser argues that Judge Babcock’s
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April 19, 2012, Order dismissing the CDC constitutes clear error, and therefore
reconsideration is proper.
Judge Babcock dismissed the CDC pursuant to Eleventh Amendment immunity.
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in
federal court against a state and arms of the state.” Jones v. Courtney, 446 Fed. Appx.
696, 698 (10th Cir. 2012). “While the amendment’s literal terms bar only federal-court
lawsuits against a State by ‘Citizens of another [sic] State’ or by foreigners, U.S. Const.
amend. XI (emphasis added), it has long been established that a State’s own citizens
are likewise prohibited from hailing the State into federal court.” Id. (citations omitted).
However, immunity under the Eleventh Amendment is not absolute. There are three
exceptions.
First, a state may consent to suit in federal court. Second,
Congress may abrogate a state’s sovereign immunity by
appropriate legislation when it acts under Section 5 of the
Fourteenth Amendment. Finally, under Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a plaintiff may
bring suit against individual state officers acting in their
official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective
relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted). Regarding waiver, the Supreme Court of the United States has held
that “a State will be deemed to have waived its immunity only where stated by the most
express language or by such overwhelming implication from the text as [will] leave no
room for any other reasonable construction.” Elwell v. Okla. ex rel. Bd. of Regents of the
Univ. of Okla., 693 F.3d 1303, 1315 (10th Cir. 2012) (quoting Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 239-40 (1985)). Whether a state has waived its Eleventh

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Amendment immunity is a matter of federal law. Id.
Colorado has not waived its Eleventh Amendment immunity and neither of the
remaining exceptions to Eleventh Amendment immunity applies. Hunt v. Colo. Dep’t of
Corr., 271 Fed. Appx. 778, 781 (10th Cir. 2008) (citing Greiss v. Colorado, 841 F.2d
1042, 1044-45 (10th Cir. 1988)) (“and the CDOC [Colorado Department of Corrections]
is an agency of the State of Colorado that has not expressly waived its sovereign
immunity”); Hodson v. Dist. Court, 2012 U.S. Dist. LEXIS 158897, *3 (D. Colo. 11/6/12)
(“The State of Colorado has not waived its Eleventh Amendment immunity”). Thus,
reviewing Glasser’s objection to Magistrate Judge Shaffer’s Recommendation [ECF No.
22] de novo, I find that Judge Babcock’s April 19, 2012, Order dismissing the CDC on
Eleventh Amendment immunity grounds does not constitute clear error. Further, upon
review of Magistrate Judge Shaffer’s Recommendation [ECF No. 101], I find that the
recommendation is thorough and well-reasoned, and I agree that Glasser’s motion
should be denied.
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that Magistrate Judge Shaffer’s Recommendation [ECF No. 101] is
AFFIRMED and ADOPTED. It is
FURTHER ORDERED that Glasser’s Objection To Proposed Findings And
Recommendations Of Magistrate Judge [ECF No. 103] is OVERRULED. It is
FURTHER ORDERED that Glasser’s Motion To Amend Order Dismissing
Defendant Colorado Department Of Corrections Pursuant to F.R.C.P. Rule 59(e) [ECF
No. 22] is DENIED.

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Dated: January 22, 2013.

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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