Opinion
Civil Action 21-cv-03151-WJM-KAS
02-14-2024
EDWARD ALLEN, Plaintiff, v. EXECUTIVE DIRECTOR OF CDOC, WARDEN OF CTCF, and AMANDA CRANE, Lieutenant Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathryn A. Starnella, United States Magistrate Judge
This matter is before the Court on the Rule 12(b)(1) and 12(b)(6) Motion to Dismiss Amended Complaint [#45](the “Motion”), filed by Defendant Andre Stancil (“Stancil”), the Executive Director of the Colorado Department of Corrections (“CDOC”); Defendant Eddie Caley (“Caley”), the Warden of the Colorado Territorial Correctional Facility (“CTCF”); and Defendant Amanda Crane (“Crane”). Plaintiff, who proceeds as a pro se litigant,filed a Response [#48] in opposition to the Motion [#45], and Defendants filed a Reply [#49]. The Motion [#45] has been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#46]; Reassignment [#47]. The Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons stated below, the Court respectfully RECOMMENDS that the Motion [#45] be GRANTED.
“[#45]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
For the purposes of resolving the Motion [#45], the Court accepts as true all well-pleaded, as opposed to conclusory, allegations made in Plaintiff's Amended Complaint [#41]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, to the extent that Plaintiff may provide additional allegations or possible new claims in his briefs, the Court notes that a party may not amend his complaint in motion briefing. See, e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F.Supp.3d 1112, 1127 (D. Kan. 2021) (stating that “a party may not amend its complaint by way of arguments in a brief”); Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL 5815915, at *5 (D. Colo. Sept. 30, 2020) (stating that it is “well established that Plaintiff may not amend his Complaint by adding factual allegations in response to Defendants' Motion to Dismiss”).
Based on the following allegations, Plaintiff asserts that Defendant Crane violated Plaintiff's Eighth Amendment rights by deliberately forcing him to catch COVID-19, and that Defendants Stancil and Caley violated his Eighth Amendment rights by accepting a policy that allowed subordinates to force COVID-19 on prisoners and by rewarding those subordinates for infecting prisoners with COVID-19. Am. Compl. [#41] at 3, 5.
Plaintiff is over 60 years old and alleges that people that age are especially vulnerable to the COVID-19 virus. Id. ¶ 1. In 2020, before COVID-19 was discovered inside the facility, CTCF went on modified lockdown, meaning that the facility's inmates were not allowed to leave their pods or units without an escort, meals were brought to the inmates, and no recreation, schooling, or work programs were permitted. Id.
In September 2020, after COVID-19 was first discovered inside the facility, Defendants followed guidelines from the Centers for Disease Control (“CDC”) by moving an infected person and his exposed cellmate to Unit 5, quarantining them in an empty unit. Id. ¶ 2. Their prior cell was sterilized with bleach and remained empty for two days before moving another inmate into the cell. Id.
Approximately a month later, United States military medical staff began testing inmates on Fridays. Id. ¶ 3. Plaintiff alleges that the CDOC's Executive Director received federal funds for infected COVID-19 victims. Id. After the military started testing, Plaintiff asserts that Defendants stopped following CDC guidelines and started placing exposed inmates (i.e., inmates who had been living in cells with COVID-positive inmates) in the same cells as unexposed inmates. Id.
Plaintiff twice tested negative for COVID-19, the second time of which was on November 23, 2020, when he had been living in a cell by himself. Id. ¶ 4. On November 25, 2020, he was moved into another cell in another pod to bunk with an exposed cellmate. Id. His new cellmate's prior cellmate had tested positive on November 23, 2020, and had been moved out of the cell on November 25, 2020. Id. Defendant Crane ordered the transfers but did not have the cell sprayed with bleach or the exposed cellmate quarantined. Id.
Up to this time, Plaintiff had been wearing a facility-provided mask and socially distancing himself from exposed inmates. Id. ¶ 5. From November 25, 2020, to November 30, 2020, the only person to whom Plaintiff was exposed was his new cellmate. Id. Both tested positive for COVID-19 on November 30, 2020. Id. ¶ 4. Plaintiff asserts that Defendant Crane purposely infected him with COVID-19 and was ultimately rewarded for doing so by being given “more authority, more money, and more security in her job” when she was promoted from sergeant to lieutenant. Id. ¶ 11.
After his diagnosis, Plaintiff was moved to a pod for infected inmates. Id. ¶ 5. He suffered from symptoms such as itching, sore throat, and sores on his skin. Id. ¶ 6. He was given two generic Mucinex tablets and one cough drop twice a day for three weeks and Mupirocin ointment for itching and sores on his skin for four weeks. Id. ¶ 5. Plaintiff alleges that all medication then stopped until he filed this action, which occurred on November 22, 2021. Id.; Compl. [#1]. After he filed his Complaint [#1], he states that CDOC staff resumed the Mupirocin treatment. Am. Compl. [#41] ¶ 5.
Plaintiff asserts that, in response to a grievance, Defendants refused “to accept responsibility for infecting [Plaintiff] and all the other prisoners even the five dead at CTCF.” Id. ¶ 6. He states that Defendants did not “give a legitimate reason for placing [Plaintiff] with an exposed person and still the defendants cannot find a legitimate penological interest in exposing [Plaintiff] to COVID-19.” Id.
From October 2021 to March 2022, Plaintiff was placed in a cell by himself. Id. ¶ 7. During this time, another wave of COVID-19 came through CTCF, and those inmates who could social distance from others did not contract COVID-19. Id. Plaintiff alleges that he did not contract COVID-19 during this period, thereby proving that “single celling inmates can prevent the spread of COVID-19.” Id.
Additionally, Plaintiff notes that the CDOC's Executive Director closed two units at Sterling Correctional Facility and Camp George West Facility and sent inmates to CTCF to double bunk in the cells, thereby “proving empty cell[s] are available [and] double bunking is not necessary.” Id. ¶ 10. He also states that “there are empty cells at CTCF.” Id.
Plaintiff seeks injunctive and monetary relief in connection with his two Eighth Amendment deliberate indifference claims. Id. at 7. Specifically, Plaintiff seeks injunctive relief requiring the CDOC's Executive Director and CTCF's Warden to place Plaintiff “in safe housing for the duration of his incarceration.” Id. He also seeks damages from Defendant Crane for pain and suffering from “mixing prisoners in unit 7 until [Plaintiff] was infected,” as well as punitive damages “for purposefully infecting” him. Id. In the present Motion [#45], Plaintiffs seek dismissal of all claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
II. Standard of Review
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep't of Interior, 67 F.4th 1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only requires the court to determine whether it has authority to adjudicate the matter.” Kenney v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). Because federal courts are tribunals of limited jurisdiction, the Court must establish a statutory basis to exercise jurisdiction. Fed.R.Civ.P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). The Court may only exercise jurisdiction “in the presence rather than the absence of statutory authority.” Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (quoting Wyeth Lab'ys. v. U.S. Dist. Ct., 851 F.2d 321, 324 (10th Cir. 1988)). “The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen Enters., II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). “When resolving a facial attack on the allegations of subject matter jurisdiction, a court must accept the allegations in the complaint as true.” Graff, 65 F.4th at 507 (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). “When the moving party attacks the factual basis for subject matter jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts.'” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm'rs, 126 F.3d 1272, 1275 (10th Cir. 1997)). “Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment[.]” SK Fin. SA, 126 F.3d at 1275. “In such instances, a court has discretion to consider affidavits and other documents to resolve the jurisdictional question.” Graff, 65 F.4th at 507 (citing Holt, 46 F.3d at 1003).
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint includes ‘well-pleaded allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Carraway v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do .... Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
III. Analysis
With respect to Defendants Stancil and Caley, i.e., the CDOC Executive Director and CTCF's Warden, respectively, Plaintiff asserts a single Eighth Amendment claim stating that they accepted policy allowing their subordinates to force COVID-19 on prisoners and rewarded those subordinates for doing so. Am. Compl. [#41] at 5. The only relief Plaintiff seeks from these Defendants is an order requiring Plaintiff to be “placed in safe housing for the duration of his incarceration.” Id. at 7. Defendants argue that this claim must be dismissed for lack of subject matter jurisdiction because Plaintiff fails to allege the existence of an actual or imminent harm, and therefore there is no Article III injury for which the requested relief would provide redress. Motion [#45] at 5.
Standing is a jurisdictional doctrine which limits federal jurisdiction to cases or controversies to “ensure that federal courts decide only live disputes between adverse parties.” Estate of Schultz v. Brown, 846 Fed.Appx. 689, 693 (10th Cir. 2021) (citing Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016)). The standing doctrine concerns “whether a plaintiff's action qualifies as a case or controversy when it is filed.” Id. (quoting Brown, 822 F.3d at 1163). Relatedly but distinctly, mootness “kicks in once the case gets going, ensuring that a live dispute exists throughout the case and until ‘a court renders its decision.'” Id. (quoting Brown, 822 F.3d at 1163). In other words, “mootness applies when an event that destroys the live dispute between the parties occurs after the plaintiff files suit.” Id. (citing Brown, 822 F.3d at 1165). “If a party lacks standing or the mootness doctrine applies, federal courts lose jurisdiction to hear the case.” Id.
Although the Court makes no finding on this point, Plaintiff arguably had standing when he filed his case on November 22, 2021. However, given the circumstances which have changed since that time, his second claim for relief appears to be moot, for the reasons stated below.
To obtain prospective relief, “the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). Plaintiff's Amended Complaint [#41] was filed on August 30, 2023. Plaintiff has not alleged that, as of that time (or even currently), he was likely to contract COVID-19 again due to an ongoing outbreak at CTCF or other CDOC facilities or that infection rates outside CDOC facilities are increasing or at levels such that infection inside the facilities is likely. “Generally, a claim for [a] prospective injunction becomes moot once the event to be enjoined has come and gone.” Citizen Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014). As noted by Defendants, “[t]o be sure, like any infectious disease that has not been eradicated it may be possible that [Plaintiff] could be exposed to Covid-19 and contract it at some point in the future.” Motion [#45] at 7 (emphasis in original). The standard, though, is a “continuing injury” or being “under a real and immediate threat of being injured in the future.” Tandy, 380 F.3d at 1283. Here, Plaintiff alleges his COVID-19 infection occurred in November 2020 and was followed by a period of medication to combat lingering effects of the disease. Am. Compl. ¶¶ 4-6. He alleges that a wave of COVID-19 came through CTCF during the winter of 2021-2022, but that he did not catch it then. Id. ¶ 7. He has not alleged that there have been other waves of COVID-19 since that time or that he has caught COVID-19 since November 2020. Even if there were “[p]ast exposure to illegal conduct,” that “does not in itself show a present case or controversy regarding injunctive relief.” O'Shea v. Littleton, 414 U.S. 488, 495 (1974). Thus, the Court finds that Plaintiff has failed to adequately allege a continuing injury or a real and immediate threat of future injury. See Tandy, 380 F.3d at 1283. Therefore, his second claim seeking injunctive relief is moot.
Accordingly, the Court recommends that Plaintiff's second claim, which seeks injunctive relief against the Executive Director of CDOC and the Warden of CTCF, be dismissed without prejudice. See, e.g., Lewis v. Burger King, 398 Fed.Appx. 323, 325 n.3 (10th Cir. 2010) (stating that dismissal due to mootness must be without prejudice); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006) (recognizing established rule that Awhere the district court dismisses an action for lack of jurisdiction . .., the dismissal must be without prejudice@ because a court without jurisdiction lacks power Ato make any determination of the merits of the underlying claim@).
Plaintiff sues Defendant Crane in her individual capacity under the Eighth Amendment for intentionally exposing Plaintiff to COVID-19 and for his pain and suffering caused by the disease. Am. Compl. [#41] at 4-5. Defendant Crane argues that she is entitled to qualified immunity. Motion [#45] at 14-15.
Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). A government official is entitled to qualified immunity from liability for civil damages when their allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Id. at 818. A government official is entitled to qualified immunity in “[a]ll but the most exceptional cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
The threshold inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Id. However, “if a violation could be made out on a favorable view of the parties' submissions,” a court must “ask whether the right was clearly established.” Id.; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that, although qualified immunity determination involves a two-part inquiry, if plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate). The Court thus proceeds to determine whether Plaintiff has plausibly alleged the violation of a constitutional right under the Eighth Amendment.
Plaintiff alleges that Defendant Crane violated the Eighth Amendment prohibition against cruel and unusual punishment by intentionally infecting him with COVID-19. Am. Compl. [#41] at 8-9. Because inmates “must rely on prison authorities to treat [their] medical needs,” the Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The test for deliberate indifference is both objective and subjective, in that a detainee must establish that: (1) he was deprived of a medical need that is, objectively, “sufficiently serious,” and (2) that the defendant subjectively knew of and disregarded “an excessive risk to [the detainee's] health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). Assuming for purposes of the Motion [#45] that Plaintiff's contraction of COVID-19 meets the objective component, the Court turns directly to whether Plaintiff's allegations against Defendant Crane satisfy the subjective prong.
Under the subjective prong, Plaintiff must show that the defendant (1) knew of a substantial risk of serious harm posed to the plaintiff and (2) disregarded that risk “by failing to take reasonable steps to abate [the risk].” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The plaintiff must show more than negligence, meaning the plaintiff cannot rely solely on an allegation that the defendant should have perceived a substantial risk. Farmer, 511 U.S. at 838; Estelle, 429 U.S. at 105-06. The plaintiff must instead show that the defendant was aware of a specific and substantial risk of harm, and deliberately failed to act with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834-35; Wright v. Collison, 651 Fed.Appx. 745, 748 (10th Cir. 2016). “If the official was unaware of the risk, ‘no matter how obvious the risk or how gross his negligence in failing to perceive it,' his failure to alleviate it ‘is not an infliction of punishment and therefore not a constitutional violation.'” Szymanski v. Benton, 289 Fed.Appx. 315, 318 (10th Cir. 2008) (quoting Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)). Further, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Plaintiff's only allegation about Defendant Crane's actions is the following: “The cell change was ordered by Seargent Crane. Crane did not order the cell sprayed with bleach or the exposed cellmate quarantined.” Am. Compl. [#41] ¶ 4. Plaintiff also states that she had a motive to get him infected by COVID-19, because more COVID-19 infections enabled the CDOC to receive more federal funds, and those funds enabled Defendant Crane to receive a promotion and “more authority, more money, and more security in her job.” Id. ¶ 11.
However, Plaintiff's Amended Complaint [#41] fails to allege specific facts indicating that Defendant Crane knew that the cell she was moving Plaintiff into had not been properly sterilized or cleaned, or even that she knew that Plaintiff's new cellmate had contracted COVID-19. Plaintiff also fails to allege any facts from which the Court could plausibly conclude that Defendant Crane subjectively knew that exposing Plaintiff to the cell or to his new cellmate would put Plaintiff at risk for contracting COVID-19, or that Defendant Crane deliberately disregarded that fact. Plaintiff's averments regarding Defendant Crane (that she purposely disregarded CDC guidelines for quarantining exposed prisoners and intentionally infected Plaintiff by forcing him to move into a shared cell) are conclusory allegations which, at most, point towards conduct more akin to negligence than to the reckless, deliberate indifference standard. Am. Compl. [#41] at 34; see also Farmer, 511 U.S. at 836-37 (noting that the deliberate indifference test lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other,@ and has been Aroutinely equated . . . with recklessness.@). In sum, Plaintiff has failed to allege enough facts to show that Defendant Crane subjectively knew that the conditions of the cell posed a significant risk to Plaintiff and that she deliberately disregarded that risk. Thus, because Plaintiff has failed to allege facts which plausibly support the contention that Defendant Crane violated Plaintiff's constitutional rights, Defendant Crane is entitled to qualified immunity from liability for civil damages.
Accordingly, the Court recommends that Plaintiff's Eighth Amendment claim against Defendant Crane be dismissed with prejudice. The Court recommends dismissal with prejudice for the following reasons. Plaintiff's initial Complaint [#1] was filed on November 22, 2021. On October 4, 2022, the Court issued a Recommendation [#30] outlining the reasons why Plaintiff's Complaint [#1] failed to state a claim against Defendants. On May 8, 2023, the Senior District Judge issued an Order [#39], adopting the Recommendation [#30] (with a slight modification). Plaintiff's Amended Complaint [#41] was filed on June 9, 2023. Plaintiff had approximately eight months from the time the Recommendation [#30] was issued until he filed his Amended Complaint [#41] to consider the deficiencies pointed out by the Court and to try to ascertain what additional allegations he could make to correct those deficiencies.
In A & B Stores, Inc. v. Employers Mutual Casualty Co., No. CIV-14-1228-HE, 2015 WL 1014808 at *3 (W.D. Okla. Mar. 9, 2015), for example, the court dismissed the plaintiff's claim with prejudice, stating that the “plaintiff was given the opportunity to amend and made minimal effort to correct the pleading deficiencies .... The court concludes two tries is enough.” Here, Plaintiff has made a clear effort to correct the deficiencies of his original Complaint [#1]. Although dismissal of a pro se claim is ordinarily denied without prejudice, Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010), the Court has discretion to dismiss a pro se plaintiff's complaint with prejudice where “amendment would be futile[.]” See Avery v. Wade, No. 22-4093, 2022 WL 17544077 at *1 (10th Cir. Dec. 9, 2022). Given that Plaintiff had the benefit of the Court's analysis of his claims before he filed his Amended Complaint [#41], and, given that he does not appear closer to having stated a claim against Defendant Crane, it appears that any further amendment would be futile. Therefore, the Court finds that dismissal with prejudice is appropriate.
IV. Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Motion [#45] be GRANTED and that Plaintiff's claims be DISMISSED as outlined above.
IT IS FURTHER ORDERED that any party may file objections within 14 days of service of this Recommendation. In relevant part, Fed.R.Civ.P. 72(b)(2) provides that, “within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy.” “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” Id. “[A] party who fails to make a timely objection to the magistrate judge's findings and recommendations waives appellate review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).