Cary v. Hickenlooper et al

Filing 49

MINUTE ORDER granting in part and denying in part 47 Motion to Review Newly Discovered Evidence. IT IS FURTHER ORDERED that the Clerk of the Court is directed to mail a copy of the pro se prisoner forms to Plaintiff at the address listed on the docket. By Magistrate Judge Kristen L. Mix on 09/16/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02072-RM-KLM
ARNOLD A. CARY,
Plaintiff,
v.
DAVIS TESSIER, CTCF Health Services Administrator,
SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
LINSEY FISH DEPENA, M.D., CTCF, former Health Services Physician,
RODNEY ACHEN, CTCF, Food Services Captain,
RONALD WILLIAMS, CTCF, Lieutenant,
CHRISTINA TURNER, CTCF Sergeant, and
ROBERT BURNS, CTCF, Correctional Officer,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Review Newly Discovered
Evidence [Docket No. 47; Filed August 28, 2013] (the “Motion”).
IT IS HEREBY ORDERED that the Motion [#47] is GRANTED in part and DENIED
in part.
The Motion is granted to the extent it asks the Court to consider additional evidence
in connection with Plaintiff’s opposition to Defendants’ Partial Motion to Dismiss [#38]
pursuant to Fed. R. Civ. P. 12(b)(1) regarding the Court’s subject matter jurisdiction. See
Holt v. United States, 46 F.2d 1000, 1002 (10th Cir. 1995) (stating that, in reviewing the
merits of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) that involves a factual
attack on the complaint, the Court may review affidavits and other documents and make
factual findings without converting it to a summary judgment motion brought pursuant Fed.

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R. Civ. P. 56).1
The Motion is denied to the extent it asks the Court to consider this evidence and
any averments made by Plaintiff in the Motion in connection with Plaintiff’s opposition to
Defendants’ Partial Motion to Dismiss [#38] pursuant to Fed. R. Civ. P. 12(b)(6). See
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (stating that Fed. R. Civ. P.
12(b)(6) tests “the sufficiency of the allegations within the four corners of the complaint after
taking those allegations as true”). If Plaintiff, who proceeds in this matter pro se, is seeking
leave to file an Amended Complaint with additional allegations, he must file a motion which
complies with the federal and local rules, namely, Fed. R. Civ. P. 15, and which includes
the proposed Amended Complaint as a document separate from the Motion. The Court will
not permit piecemeal adjudication of Plaintiff’s case; thus Plaintiff must include all claims
he seeks to bring, defendants he intends to name, and all allegations he wishes the Court
to consider as part of his opposition to the Partial Motion to Dismiss [#38] in the proposed
Amended Complaint. Furthermore, Plaintiff must use the form complaint prescribed by this
Court. D.C.COLO.LCivR 8.2A.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to mail a copy of
the pro se prisoner forms to Plaintiff at the address listed on the docket.

Dated: September 16, 2013

1

The Court here makes no finding regarding the relevance or materiality of the documents
submitted by Plaintiff.

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