Opinion
Civil Action 23-cv-00328-NYW-MDB
06-06-2024
RICHARD ROMERO, Plaintiff, v. JOHN O. BERTAGNOLLI, Dentist, DDS Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARITZA DOMINGUEZ BRASWELL, MAGISTRATE JUDGE
This matter comes before the Court on Defendant John O. Bertagnolli's Motion to Dismiss. ([“Motion” or “Motion to Dismiss”], Doc. No. 48.) Pro se Plaintiff Richard Romero has not responded and the time to do so has passed. After careful consideration of the issues, the Court RECOMMENDS the Motion to Dismiss be GRANTED.
On April 4, 2024, Plaintiff filed a subpoena request. (Doc. No. 54.) In light of this dismissal recommendation, the Court also recommends Plaintiff's subpoena request be denied as moot.
PRO SE SUMMARY
The Court recommends dismissing your Amended Complaint because it does not contain enough facts to support a valid claim against Defendant. Specifically, you have not shown that Defendant knew about your dental needs and ignored them, thereby putting your health or safety at serious risk. This is only a high-level summary of this Court's decision and does not contain all the relevant information. The full decision is set forth below, along with details about your right to object to this decision.
BACKGROUND
In February 2023, Plaintiff initiated this action alleging various violations of his constitutional rights under 42 U.S.C. § 1983. (Doc. No. 1.) In June 2023, the prior presiding judge dismissed the majority of Plaintiff's claims. (Doc. No. 22.) Although not entirely clear from the pleadings, Plaintiff's remaining claim appears to be an Eighth Amendment claim, and the Court will proceed as such. (See Doc. No. 22; Doc. No. 20 (Plaintiff requesting relief “for pain and suffering and cruel and unusual punishment” against Defendant for damaging the inside of his mouth and leaving him with “a gum infection as well as excruciating pain.”)
In June 2023, Plaintiff amended his complaint. (Doc. No. 20.) Upon review, the operative Amended Complaint contains significantly less detail than the original complaint. See Hooten v. Ikard Servi Gas, 525 Fed.Appx. 663, 668 (10th Cir. 2013) (“An amended complaint supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.”).
In his remaining claim, Plaintiff alleges his tooth became infected, he submitted several kites requesting dental care, and did not receive treatment until months later. (Doc. No. 1 at 5-6.) According to Plaintiff, in November 2021, Defendant, a dentist, extracted his tooth in “an angry and aggressive manner[,]” “damag[ing] the inside of [his] uper [sic] mouth with his dental instrument[,]” and leaving “a piece of the tooth or bone” in Plaintiff's mouth, thereby causing significant pain. (Id. at 6.) Following the extraction, the area remained infected. (Id. at 7.) But despite filing additional medical kites complaining of the infection, Plaintiff did not receive any medical attention. (Id.) In January 2023, a Boulder County Jail dentist informed Plaintiff that his tooth was still infected and that his upper mouth tissue had been damaged by the extraction. (Id.)
In the instant Motion, Defendant argues Plaintiff's Amended Complaint should be dismissed for lack of jurisdiction and failure to state a claim. (Doc. No. 48 at 2-3.) Specifically, Defendant contends Plaintiff's acknowledgment that Defendant “did not act under color of state or federal law[,]” shows the Court lacks jurisdiction. (Id. at 2.) He also asserts there is no diversity-based jurisdiction because “[t]here is no allegation that the parties reside in different states” and “the Request for Relief seems to suggest the claim is for [$] 65,000, which fails to meet the jurisdiction threshold[.]” (Id.) Additionally, Defendant argues the Amended Complaint fails to assert a plausible claim for relief because it “merely asserts that the inside of his upper mouth was damaged and that he had an infection” without addressing a breach of duty or standard of care. (Id. at 3.) Alternatively, Defendant argues there are insufficient allegations to demonstrate Defendant was deliberately indifferent to a medical need, that he disregarded a substantial risk, or that the severity of Plaintiff's condition warranted obvious intervention. (Id. at 7.) And in any case, Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. (Id.)
LEGAL STANDARD
I. Motion to Dismiss
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Such dismissal is not a judgment on the merits of a plaintiff's case; rather, it is a determination that a court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the complaint's allegations. Creek Red Nation, LLC v. Jeffco Midget Football Ass'n., Inc., 175 F.Supp.3d 1290, 1293 (D. Colo. 2016). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking[,]” Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019) (quotation omitted), and the dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
Challenges to subject matter jurisdiction may take two forms-a facial attack or a factual attack-each with distinct analytical frameworks. U.S. v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). A facial challenge focuses on the sufficiency of the allegations in the complaint. Id. In resolving a facial challenge, “the district court must accept the allegations in the complaint as true.” Id. Conversely, a factual challenge allows a party to “go beyond allegations contained in the complaint and challenge the facts upon which subject matter depends.” Id. (quotation omitted). In addressing a factual challenge to subject matter jurisdiction, “the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citation and quotations omitted); see also Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (“a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion”). The burden of establishing subject matter jurisdiction lies with the party asserting it. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When ruling on such a motion, a court accepts all well-pleaded facts as true and views the allegations in the light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). However, the plaintiff bears the burden of presenting a complaint with enough factual details to suggest entitlement to relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Ultimately, courts assess “whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
II. PRO SE Litigants
In applying the above principles, this Court is mindful Plaintiff proceeds pro se and thus affords his papers and filings a liberal construction. Smith, 921 F.3d at 1268. But the Court cannot and does not act as his advocate, United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
I. Subject Matter Jurisdiction-12(b)(1)
As a threshold matter, the Court addresses whether it has subject matter jurisdiction over this case.
Defendant argues Plaintiff has not adequately alleged Defendant acted “under color of law” or was “clothed with the authority of state law” as required for a section 1983 claim, and thus has failed to establish federal question jurisdiction. See Whitehead v. Marcantel, 766 Fed.Appx. 691, 700 (10th Cir. 2019) (“To invoke jurisdiction under § 1983, Mr. Whitehead must allege conduct under color of state law.”); Wideman v. Watson, 617 Fed.Appx. 891, 893 (10th Cir. 2015) (“Absent an allegation of action under color of state law, Wideman's § 1983 cause of action is so patently without merit as to justify the court's dismissal for want of jurisdiction,” (quotation omitted); but see Sturdivant v. Fine, 22 F.4th 930, 935 (10th Cir. 2022) (referring to color of state law as an “element,” but finding a lack of appellate jurisdiction over that issue).
The Court disagrees. Interpreting Plaintiff's pleading liberally, as required, it is evident Defendant's actions fall under the purview of section 1983. Smith, 921 F.3d at 1268. The record shows that in his role as a dentist, Defendant extracted one of Plaintiff's teeth while Plaintiff was incarcerated. (Doc. No. 20 at 2; Doc. No. 28 at 3.) It is also undisputed that Plaintiff's Amended Complaint cites 42 U.S.C. § 1983 as the basis for jurisdiction. (Doc. No. 20 at 3.) And the Supreme Court has made clear that for section 1983 claims, “the medical treatment of prison inmates by prison physicians is state action[.]” West v. Atkins, 487 U.S. 42, 53-55 (1988); see also Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013) (describing “nexus test” where private actors can become state actors for section 1983 purposes if the challenged action results “from the State's exercise of coercive power). Thus-given Defendant's role as Plaintiff's dental physician during Plaintiff's incarceration-Defendant's actions qualify as state action. See West, 487 U.S. at 53-55 (private physician contracted by the state to provide medical services to inmates was acting under color of state law when treating an inmate); Parker v. Gosmanova, 335 Fed.Appx. 791, 794 (10th Cir. 2009) (individual doctors may be liable under § 1983 for an Eighth Amendment violation where contracted “to provide medical care to state prisoners.”). And contrary to Defendant's argument, it is inconsequential that Plaintiff's Amended Complaint states Defendant did not act under color of state law. (Doc. No. 20 at 2.) This is especially true considering that as an unrepresented litigant, Plaintiff has limited knowledge of the law. Put differently, Plaintiff has sufficiently alleged the injury at issue was “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible[.]” Anderson v. Suiters, 499 F.3d 1228, 1233 (10th Cir. 2007).
II. Failure to State a Claim-12(b)(6)
Notwithstanding the Court's subject matter jurisdiction over this case, Plaintiff's Amended Complaint can only survive a motion to dismiss if it contains sufficient facts to plausibly demonstrate the alleged conduct deprived him of a federal right.
The Eighth Amendment protects a prisoner's right to “humane conditions of confinement including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm” and requires prison officials to be “guided by contemporary standards of decency.” Thompson v. Lengerich, 798 Fed.Appx. 204, 209 (10th Cir. 2019) (quotation omitted). “[D]eliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
Deliberate indifference to a medical need has both an objective and a subjective component. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component is met if the deprivation is “sufficiently serious[,]” meaning the medical need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (quotations omitted). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Crowson v. Washington Cnty., 983 F.3d 1166, 1178 (10th Cir. 2020) (internal quotations omitted); see also Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (“subjective component [of a deliberate indifference claim] is akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm”) (quotation omitted).
If inmates believe their medical rights have been violated, they can file a claim under 42 U.S.C. § 1983. See Thompson, 798 Fed.Appx. at 209. Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of their federal rights. Veile v. Martinson, 258 F.3d 1180, 1184 (10th Cir. 2000).
The Court concludes Plaintiff's Eighth Amendment claim fails on the subjective component of deliberate indifference. Even assuming Plaintiff's alleged medical injuries were sufficiently serious to satisfy the objective component of deliberate indifference, the allegations fall short of demonstrating that Defendant knew about and ignored an excessive risk to Plaintiff's health or safety. See Sealock, 218 F.3d at 1209. In the Amended Complaint, Plaintiff generally accuses “medical and dental staff as well as nurses and providers” of “damaging the inside of [his] uper [sic] mouth” and leaving him “with a gum infection as well as excruciating pain.” (Doc. No. 20.) These allegations do not address knowledge or disregard. In other words, Plaintiff has not sufficiently alleged that Defendant knew of the severity of Plaintiff's dental condition but intentionally ignored it. See Robbins, 519 F.3d at 1247. This holds true even if the Court were to consider the allegations in Plaintiff's original complaint. Although Plaintiff alleges Defendant extracted his tooth in an aggressive manner, there is no indication that Defendant “consciously disregard[ed] a substantial risk of serious harm” during the extraction. Self, 439 F.3d at 1231. There is also no indication that, following the extraction, Defendant was aware of the requests for medical care or that Plaintiff was suffering from an infection. In short, Plaintiff does not allege Defendant knew about Plaintiff's dental needs before the extraction and subsequently disregarded the pain and infection that ensued. Accordingly, the Court finds Plaintiff fails to meet the subjective component of a deliberate indifference claim and, as a result, fails to state a claim for relief.
Given this finding, and in the interest of judicial economy, the Court will not address Defendant's alternative arguments for dismissal. (Doc. No. 48 at 7.) See Morales v. L. Firm of Michael W. McDivitt, P.C., 641 F.Supp.3d 1035, 1040 n.1 (D. Colo. 2022) (declining to address alternate grounds for dismissal when dismissing on 12(b)(6) grounds).
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that:
(1) Defendant's Motion to Dismiss be GRANTED; and
(2) Plaintiff's Amended Complaint be DISMISSED with prejudice.
Although dismissal of a pro se claim under Rule 12(b)(6) 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). Here, Plaintiff had the opportunity to amend his complaint but rather than add information to support his claim, he removed information, leading the Court to believe he has no additional facts to support his Eight Amendment claim. (Docs. No. 1, 20.) Moreover, Plaintiff failed to respond to the Motion, suggesting he may not be interested in pursuing the litigation further.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[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.” U.S. v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. U.S., 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).