Hicks v. Massenburg et al

Filing 81

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 79 . CDOC Defendants Motion to Dismiss Amended Complaint 27 is GRANTED as stated herein, Plaintiffs claims against the CDOC Defendants ARE DISMISSED WITHOUT PREJUDICE. Plaintiffs clai ms against the CDOC Defendants in their official capacities for prospective injunctive relief are DISMISSED WITHOUT PREJUDICE AS MOOT as to Defendants Massenburg, Blatnick, and Kucher as Plaintiff is no longer incarcerated at the Limon Correctional F acility. Plaintiffs remaining claims against the CDOC Defendants are DISMISSED WITH PREJUDICE for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and there being no further claims against the CDOC Defendants, this matter shall proceed only against Defendant Trudy Sicotte, who filed an Answer on October 20, 2014 22 , by Judge Raymond P. Moore on 10/02/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02331-RM-KMT
EDWARD LEE HICKS,
Plaintiff,
v.
ALVIN MASSENBURG, Official Capacity as a Medical Provider for the Colorado Dep. of
Corrections, and in his Individual Capacity, Limon Corr. Facility,
NICOLE BLATNICK, Official Capacity as Health Service Adm. For the Colorado Dep. Of
Corrections, and in her individual capacity, Limon Corr. Facility,
TRUDY SICOTTE, Official Capacity as a Medical Provider for the Colorado Dep. Of
Corrections, and in her Individual Capacity, Limon Corr. Facility,
MARTINEZ, Official Capacity as a Chief Medical Officer for the Colorado Dep. Of Corrections,
and in his Individual Capacity,
VALENTINA KUCHER, Official Capacity as a Medical Provider for the Colorado Dep. Of
Corrections, and in her individual capacity, Limon Corr. Facility,
JENNIFER NOVATNY, Official Capacity as a Supervisor in the Pharmacy for the Colorado
Department of Corrections, and in her Individual Capacity,
JOHN DOE, Official Capacity as Deputy Director of Clinical Services for the Colorado Dep. Of
Corrections and in their Individual Capacity,
RICK RAEMISCH, Executive Director for the Colorado Department of Corrections, and
in his Individual Capacity,
Defendants.
______________________________________________________________________________
ORDER ON
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (ECF NO. 79)
______________________________________________________________________________
This matter is before the Court on the September 9, 2015, Recommendation of United
States Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) (ECF No. 79) to grant
Defendants Massenburg, Blatnick, Martinez, Kucher, Novatny, and Raemisch’s (“CDOC
Defendants”) Motion to Dismiss Amended Complaint (“Motion”) (ECF No. 27). Plaintiff filed a
response to the CDOC Defendants’ Motion, to which no reply was filed. The Recommendation is

incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b).
The Recommendation advised the parties that specific written objections were due within
fourteen days after being served with a copy of the Recommendation. (ECF No. 79 at pages
19-20.) Despite this advisement, Plaintiff filed no objection as to the characterization of his claims
or to any other aspect of the Recommendation. In fact, no objections to the Recommendation have
to date been filed by any party and the time to do so has expired. (See generally Dkt.)
As no objections have been filed, the Court reviews the Recommendation only for clear
error on the face of the record. See FED. R. CIV. P. 72(b) advisory committee’s note (“When no
timely objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a
magistrate’s report under any standard it deems appropriate.”). Applying this standard, the Court
approves and adopts the Recommendation except for its statement that the CDOC Defendants
argued only that Plaintiff has failed to satisfy the objective component of the Eighth Amendment
deliberate indifference test (ECF No. 79, page 13). Instead, CDOC Defendants had assumed,
“arguendo, that Plaintiff ha[d] alleged enough to meet the objective component…” (ECF No. 27,
page 9). Nonetheless, the Court finds and concludes that the Magistrate Judge’s analysis of the
Amended Complaint and the matters raised in the Motion was thorough and sound, and concurs
with her Recommendation. The Recommendation, except for the referenced statement, is,
therefore, adopted as an order of this Court.
Based on the foregoing, the Court ORDERS
(1) That the Recommendation of United States Magistrate Judge (ECF No. 79), except for
the referenced statement, is ADOPTED as an order of this Court;
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(2) That CDOC Defendants’ Motion to Dismiss Amended Complaint (ECF No. 27) is
GRANTED as stated herein;
(3) That Plaintiff’s claims against the CDOC Defendants in their official capacities for
money damages and retrospective declaratory relief are DISMISSED WITHOUT
PREJUDICE as barred by the Eleventh Amendment;
(4) That Plaintiff’s claims against the CDOC Defendants in their official capacities for
prospective injunctive relief are DISMISSED WITHOUT PREJUDICE AS MOOT as
to Defendants Massenburg, Blatnick, and Kucher as Plaintiff is no longer incarcerated
at the Limon Correctional Facility;
(5) That Plaintiff’s remaining claims against the CDOC Defendants are DISMISSED
WITH PREJUDICE for failure to state a claim under Fed. R. Civ. P. 12(b)(6); and
(6) There being no further claims against the CDOC Defendants, this matter shall proceed
only against Defendant Trudy Sicotte, who filed an Answer on October 20, 2014 (ECF
No. 22).
DATED this 2nd day of October, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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