Opinion
CIV-22-919-D
03-02-2023
CLIFFORD GENE MYERS, Plaintiff, v. CONNIE JOHNSON, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Clifford Gene Myers, a pretrial detainee proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants Connie Johnson, Amanda Merriott, and Dr. Mark Winchester, all in both their individual and official capacities. See Doc. 13, Ex. 1.He alleges violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights while held at the Oklahoma County Detention Center. Id. Plaintiff originally filed this action in the Oklahoma County District Court. With Defendant Johnson's consent, Defendants Merriott and Winchester removed the action to the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 1441(a), as Plaintiff's claims invoke this Court's federal question jurisdiction under 28 U.S.C. § 1331. Doc. 1. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. 636(b)(1)(B), (C). Doc. 4.
Plaintiff filed this action in state court when he was a pretrial detainee. Doc. 13, Ex. 1, at 1; see State v. Myers, et al., Case No. CF-2020-1529, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2020-1529&cmid=3868364 (last visited Jan. 31, 2023); see also United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (“exercising discretion ‘to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand'”) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated. Plaintiff's petition as originally filed is illegible. See Doc. 1, Exs. 1, 6. On the Court's order, Defendants Merriott and Winchester submitted a legible scan of Plaintiff's petition for relief and supporting brief. Doc. 13, Exs. 1 (petition for relief), 2 (supporting brief).
Along with his complaint, Plaintiff filed a brief detailing his allegations. Doc. 13, Ex. 2. That brief includes allegations from other inmates who are not parties to this action, as well as several signatures from inmates attesting that Plaintiff's claims are “true and factual.” Id. at 10. The Court does not address the non-party allegations.
Defendants Merriott and Winchester moved to dismiss Plaintiff's claims against them, Doc. 6, and Plaintiff responded, Doc. 9. The undersigned recommends the Court grant Defendants' motion to dismiss. The undersigned also recommends the Court dismiss Plaintiff's claims against Defendant Johnson under its obligation to screen prisoner complaints under 28 U.S.C. § 1915A.
I. The Court should grant Defendants Merriott and Winchester's motion to dismiss for failure to state a claim upon which relief may be granted.
Plaintiff names as Defendants Amanda Merriott, RN, whom he describes as “acting head of medical at [the Oklahoma County Detention Center],” and Dr. Mark Winchester. Doc. 13, Ex. 1. He sues them in their official and individual capacities. In their motion to dismiss, Defendants Merriott and Winchester indicate they are employees of Turn Key Health, a private contractor. See Doc. 6, at 14-15. Plaintiff alleges Defendants Merriott and Winchester provided him inadequate medical care in violation of the Eighth and Fourteenth Amendments. Doc. 13, Ex. 1.
A. Plaintiff's claims.
Plaintiff alleges he was arrested when he was on the way to the emergency room for a third surgery, an amputation, to address an “infection of the bone.” Id. Ex. 2, at 8-9. He alleges he “ha[s] not [been] seen personally by any [doctor] here at the” detention center after a surgery that left him with an open wound. Id. Ex. 2, at 9.
He also alleges Dr. Winchester misdiagnosed him with “Covid Toe Syndrom[e]” and “only gave a week of antibiotics [and] no bandages or any other treatment” despite Plaintiff's “written complaints of pain and still open wound from amputation surgery.” Id. Ex. 2, at 24. He alleges he was not “taken to [the] hospital to [the] surgeon who performed [his] amputations causing [a year] of unne[cess]ary pain.” Id. He says he “wrote [a] medical slip to Medical about the pain while walking from the amputation surgery and stated [he] needed to go see Dr. at Integris Baptist Wound and Cancer Center yet [he] remember[s] what Dr. Winchester's diagnosis was, [he] had Covid Toe Syndrome was his statement.” Id. Ex. 2, at 21.
He also alleges that medical staff delayed administration of his seizure medications for nine days. Id. Ex. 1, at 2 & Ex. 2, at 22. He explains that “a nurse . . . said my seizure meds had expired so for nine days I put in several medical slips both to medical and mental health about this issue of not getting life saving medication.” Id. Ex. 2, at 14. He also alleges that “[m]edical has not brought my inhaler [] which is [] a very needed necessity for me,” explaining that “they claim they forgot it so only my seizure meds were given to me.” Id. Ex. 2, at 3.
Plaintiff seeks injunctive and monetary relief. For injunctive relief, he says, “I want them to admit only to me in writing they were wrong for all that's happened to me [and] take me to see my [doctor] to fix what's wrong so I can walk right again.” Id. Ex. 1, at 3-4. For monetary relief, he asks for Defendants to “each be fined $5,000.00 to me and [$]200.00 [per] day for undue pain.” Id. Ex. 1, at 4. He also asks for Defendants to replace $100.00 that was allegedly stolen and to reinstate him in his orderly job. Id.
Since filing this action, Plaintiff was moved to the Lexington Assessment and Reception Center. Docs. 15, 16. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . .” O'Shea v. Littleton, 414 U.S. 488, 495 (1974). So Plaintiffs transfer renders moot his request for injunctive relief. David v. Crow, No. CIV-21-534-SLP, 2022 WL 3333513, at *1 (W.D. Okla. May 31, 2022) (“[A]n inmate's transfer from one prison to another generally renders moot any request for injunctive relief against the employees of the original prison concerning the conditions of confinement.”), adopted, 2022 WL 3330581 (W.D. Okla. Aug. 11, 2022).
B. Pleading standard.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The 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)); see also Doc. 6, at 4.
This Court construes “[a] pro se litigant's pleadings. . . liberally,” holding them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). “[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.
But to state a plausible claim, a plaintiff must allege facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010); Doc. 6, at 4. This pleading standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. To that end, the Court may not serve as Plaintiffs advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
C. Plaintiff fails to state a claim against Defendants Merriott and Winchester in their individual capacities for inadequate medical care under the Eighth and Fourteenth Amendments.
Defendants Merriott and Winchester argue that Plaintiff fails to allege facts that could establish he received constitutionally inadequate medical care or that they were responsible for the alleged inadequacy. Doc. 6. The Court agrees.
To establish a plausible constitutional claim for inadequate medical care, a plaintiff must show “deliberate indifference to serious medical needs.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir. 1985)); see also Paugh v. Uintah County, 47 F.4th 1139, 1153-54 (10th Cir. 2022) (“Those same constitutional protections apply to pretrial detainees . . . through the Fourteenth Amendment's Due Process Clause.”); see also Doc. 6, at 5. “Objectively, the deprivation must be sufficiently serious. Subjectively, the defendant must have been aware of a substantial risk of serious harm.” Tennant v. Miller, 589 Fed.Appx. 884, 885-86 (10th Cir. 2014) (internal citations omitted).
Not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); see also Doc. 6, at 5. “A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. “To state a claim under § 1983, an individual must allege misconduct that is ‘so egregious as to subject the aggrieved individual to a deprivation of constitutional dimensions.'” Martin v. Creek Cnty. Jail, 2010 WL 4683852, at *3 (N.D. Okla. Nov. 12, 2010) (quoting Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981)).
As to Defendant Winchester's alleged misdiagnosis of Plaintiff's pain as resulting from “Covid Toe Syndrom[e]” and prescription of a week's worth of antibiotics, the fact that Plaintiff attributed his pain to his recent amputation does not make Defendant Winchester's diagnosis a constitutional violation. “A difference of opinion as to treatment or diagnosis between a prisoner and the medical staff of the prison does not alone give rise to a cause of action under section 1983.” Morris v. Cody, 956 F.2d 278 (10th Cir. 1992); see also Doc. 6, at 6 (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) (“Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.”)).
Although “merely doing something (with no reference to the underlying condition) does not necessarily insulate one from liability,” Lucas v. Turn Key Health Clinics, LLC, 2023 WL 327846, at *5 (10th Cir. 2023), Defendant Winchester provided more than a “modicum of treatment,” Plunkett v. Armor Corr. Health Servs., Inc., 2022 WL 889962, at *6 (N.D. Okla. Mar. 25, 2022). In Lucas, the court declined to dismiss the plaintiff's claims of deliberate indifference where the prison healthcare provider “dismissed [the plaintiffs] blood results,” accused her of “abusing the sick call system” when she requested more pain medication, and merely prescribed Tylenol when the plaintiff “presented with Leukocytosis, E. coli, and ongoing vaginal discharge and bleeding.” Lucas, 2023 WL 327846, at *7. Here, Defendant Winchester did not ignore Plaintiffs symptoms or provide medication wholly out of step with Plaintiffs symptoms. When Plaintiff complained of pain related to his recent amputation-necessitated by a bone-deep infection-Defendant Winchester prescribed a week's worth of antibiotics. This was more than a modicum of treatment, and Plaintiffs allegations do not establish deliberate indifference.
As to the alleged deprivation of his inhaler and seizure medications, Plaintiff has not explained how not receiving his medication harmed his health. See Martinez, 563 F.3d at 1088 (“[I]t is the harm claimed by the prisoner that must be sufficiently serious to satisfy the objective component, and not solely ‘the symptoms presented at the time the prison employee has contact with the prisoner.'” (quoting Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005))); see also Doc. 6, at 8 (“Plaintiff has failed to state a claim under § 1983 against the Medical Defendants as he does not allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs by them.”). Nor does he allege that Defendant Merriott or Winchester were responsible for this deprivation. See Iqbal, 556 U.S. at 678.
Plaintiff therefore fails to state a claim against Defendants Merriott and Winchester in their individual capacities.
D. Plaintiff's allegations cannot state a claim against Defendants Merriott and Winchester in their official capacities.
Defendants Merriott and Winchester argue that Plaintiffs claims against them in their official capacities fail under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). See Doc. 6, at 14-15. The Court agrees.
A suit under § 1983 against an employee in their official capacity is “another way of pleading an action against the county or municipality they represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); see Doc. 6, at 14. A defendant contracted to perform a county function (such as Turn Key employees contracted to provide care to county inmates) can be liable for the same types of Monell violations. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (“Although the Supreme Court's interpretation of § 1983 in Monell applied to municipal governments and not to private entities acting under color of state law, caselaw from this and other circuits has extended the Monell doctrine to private § 1983 defendants.”); Smedley v. Corr. Corp. of Am., 175 Fed.Appx. 943, 945-46 (10th Cir. 2005).
To state a § 1983 claim against county employees or contractors in their official capacities, a plaintiff must identify “‘a government's policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell, 436 U.S. at 691-92). “A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. at 770. As well, a plaintiff must establish “a direct causal link between the policy or custom and the injury alleged,” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), and must also show “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury,” Schneider, 717 F.3d at 769. These requirements apply to claims for both monetary and injunctive relief. See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1210 (10th Cir. 2006) (“[A] municipality can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'”).
Defendants argue Plaintiff makes no allegation that Defendant Winchester misdiagnosed him with “Covid Toe Syndrom[e]” pursuant to a custom or practice, let alone a formal policy maintained by the detention center. See Doc. 6, at 14-15 (“Here, Plaintiff has failed to allege any facts to show that he suffered any injury as a result of any OCDC and/or Turn Key policy or custom. Plaintiff also has failed to allege that Defendants Nurse Merriott and/or Dr. Winchester promulgated or tacitly approved or encouraged any such unconstitutional policies or customs.”). The Court agrees. Nor, as Defendants argue, does Plaintiff allege that he was deprived of his medications or barred from seeing the doctor who performed his amputation pursuant to a custom, practice, or formal policy. See id. Plaintiff has therefore not satisfied the Monell policy-or-custom requirement for a claim against Defendant Merriott or Winchester in their official capacities.
II. The Court should also dismiss Plaintiff's claims against Defendant Johnson.
Plaintiff brings many claims related to jail conditions, naming Defendant Connie Johnson, “Head of Okl[ahoma] County Detention Center.”Doc. 13, Ex. 1. The undersigned recommends dismissing Plaintiff's claims against Defendant Johnson pursuant to the Court's screening obligation under 28 U.S.C. § 1915A.
The Oklahoma County Criminal Justice Authority, commonly known as the “Jail Trust,” established under OKLA. STAT. tit. 60, § 176 et seq. oversees the Oklahoma County Detention Center. See Current Trustees, OKLA. CNTY. DET. CTR., http://okcountydc.net/trustees.html (last visited Jan. 18, 2023). The “Jail Trust is the ultimate operator” of the detention center. Hickey v. Okla. Cnty. Det. Ctr., No. CIV-20-1291-R, 2022 WL 945319, at *2 (W.D. Okla. Mar. 29, 2022). In any event, Plaintiff's allegations cannot state a claim against the detention center operator and should be dismissed on that ground, as explained below.
The § 1915A screening obligation applies to complaints filed by pretrial detainees. See Benshoof v. Hall, No. CIV-22-527-R, 2022 WL 4287936 (W.D. Okla. July 29, 2022) (recommending dismissal of action filed by pretrial detainee, screening claims under § 1915A), adopted, 2022 WL 3586215 (W.D. Okla. Aug. 22, 2022).
A. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B); see also Berryhill v. President of Okla. City, OK N.A.A.C.P., No. CIV-13-474-W, 2013 WL 3058271 (W.D. Okla. June 17, 2013) (adopting recommendation that Plaintiff's claims be dismissed under § 1915A after removal to federal court).
As above, supra § I.B., a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face when the plaintiff's allegations “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
B. Plaintiff's claims.
Plaintiff claims the detention center is an “unconstitutional environment of housing.” Doc. 13, Ex. 1, at 2. He alleges he went eight weeks with no cleaning supplies, sleeping on the floor with “only a blanket [and] no matt for [ten] days with open surgery wound (amputated toes).” Id. He alleges prison officials “look[ed] through” food trays with no gloves. Id. Ex. 2, at 15, 19. He also alleges “fumes and odor due to sewage backing [up]” persisting for five days, id. Ex. 1, at 2, and a “bed bug infestation” that led to the “whole pod [being] removed,” id. Ex. 2, at 2. He alleges overcrowding, with two people in one-man cells, causing “several death[s] in [the] past [three] month[s]” because the “jail wasn[']t built to handle excess weight of people.” Id. He also alleges “[n]o showers for days,” with inmates “[f]orced to wear [the] same clothes [for] weeks at a time.” Id. Ex. 2, at 3. He alleges “several officers” used “plastic guns” to spray chemicals at “gang members” after a fight broke out and “nobody cleaned up [the] chemicals” for three hours. Id. Ex. 2, at 12. Finally, he alleges “[d]irect [indifference] under color of law by staff at jail” and by state judges who allegedly “ignored pleas.” Id. Ex. 1, at 2.
Plaintiff alleges that “person[n]el cusses [at] inmates and physically shoves and [mistreats] people not even convicted and the judges and system [do] nothing.” Id. Ex. 2, at 2. He also alleges racially-based favoritism, with “Black officers . . . discriminat[ing] against white occupants” by, among other examples, giving an “extra pod to Black[ inmates],” as well as “extra time to shower, phone calls, and time out of cells.” Id. Ex. 2, at 5. He alleges “Black trustees have control over [television] programs and at no time [are] there any Hispanic or White programs.” Id.
Unrelated to jail conditions, Plaintiff alleges “[o]utrageous bonds set for traffic tickets by courts.” Id. Ex. 2, at 2. He suggests inmates “sign pleas when not guilty just to get out of jail,” with no one “stand[ing] up for the innocent being housed” at the detention center. Id.
C. Plaintiff fails to state a claim against Defendant Johnson in her individual capacity.
“[A] supervisor may only be held liable if [s]he is affirmatively linked to the constitutional violation.” Hickey v. Oklahoma Cnty. Det. Ctr., No. CIV-20-1291-R, 2022 WL 1221645, at *5-6 (W.D. Okla. Feb. 23, 2022), adopted, 2022 WL 945319 (W.D. Okla. Mar. 29, 2022). “Section 1983 does not authorize liability under a theory of respondeat superior.” Brown, 662 F.3d at 1164. So prison officials have no vicarious liability in a § 1983 suit for the misconduct of their subordinates because “there is no concept of strict supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).
Instead, a supervisor is liable only if he is “personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation.” Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider, 717 F.3d at 767 (requiring a plaintiff to show an “affirmative link” between the supervisor and the constitutional violation). “Thus, [] Plaintiff must base supervisory liability ‘upon active unconstitutional behavior' and ‘more than a mere right to control employees.'” Davis v. Oklahoma County, No. CIV-08-0550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153). Plaintiffs claims against Defendant Johnson appear to turn on her alleged supervisory role. Plaintiff does not allege that she personally cultivated or was even aware of the allegedly unconstitutional prison conditions.
The undersigned therefore recommends dismissal of Plaintiffs claims against Defendant Johnson in her individual capacity based on her lack of personal participation in the alleged constitutional violations. Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006) (upholding dismissal of § 1983 claims because “[n]othing in [plaintiffs] complaint indicates any personal participation by the New Mexico defendants in determining the amount of food [plaintiff] received at the Virginia prison”).
D. Plaintiff fails to state a claim against Defendant Johnson in her official capacity.
As above, supra § I.D., to state a claim against a county employee in her official capacity, Plaintiff must show “‘a government's policy or custom' that caused [him] injury.” See Schneider, 717 F.3d at 769. This means “a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. at 770. “Although not authorized by written law, [] practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage' with the force of law.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68 (1970); see also Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996).
Plaintiff makes no such allegations here. Instead, he describes isolated incidents like a bed bug infestation, or a pattern of behavior by a group of employees (of unspecified duration) like the racially-based favoritism by some Black officers who allegedly give extra privileges to Black inmates. See supra § II.B.
The undersigned therefore recommends dismissal of Plaintiff's claims against Defendant Johnson in her official capacity. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (“The ‘official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”).
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Plaintiff's complaint in its entirety, granting Defendants Merriott and Winchester's motion to dismiss and further recommends the Court dismiss Plaintiff's claims against Defendant Johnson under the Court's § 1915A screening obligation.
The adoption of this Report & Recommendation will render moot Plaintiff's motion to appoint counsel, Doc. 8, and motion to produce favorable evidence, Doc. 11.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before March 23, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.