Wilkins v. Palomino et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03495-PAB-STV
DARUS WILKINS,
Plaintiff,
v.
JOHN PALOMINO,
CHRIS CHAVEZ,
LIEUTENANT KENNEDY,
NITA HUNT,
BRENT PIERCE,
LUKE HOLLAND,
DR. JONATHAN THIELY,
MS. DILLMAN,
JANE GILDEN, and
MR. SMITH,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendant Dr. Thiele’s Renewed Motion
to Dismiss Plaintiff’s Third Amended Complaint Under Fed. R. Civ. P. 12(b)(1) and
12(b)(6) [#205] (the “Motion”). The Motion has been referred to this Court. [#207] This
Court has carefully considered the Motion and related briefing, the case file and the
applicable case law, and has determined that oral argument would not materially assist
in the disposition of the Motion. 	For the following reasons, the Court respectfully
RECOMMENDS that the Motion be GRANTED.
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I. 	BACKGROUND1
At all times relevant to the claims brought against Dr. Thiele,2 Plaintiff was a
convicted inmate serving a twenty-four year sentence at Colorado Department of
Corrections (“CDOC”) facilities. 	[#104 at ¶ 22] 	On July 25, 2019, Plaintiff sustained
injuries when officers at the Bent County Correctional Facility (“BCCF”) allegedly used
excessive force in obtaining a D.N.A. mouth swab from Plaintiff. [See generally id.] To
conduct the D.N.A. swab, the officers relied upon a court order that authorized the
swab. 	[Id. at ¶ 80] 	But, by the time the officers conducted the swab, that court order
had expired. 	[Id.] 	A CDOC panel reviewed the incident and, on September 30, 2019,
issued a report concluding that “no checks and balances were in place to ensure a court
order for a D.N.A. test was valid, nor was the Office of Inspector General and CDOC
Legal Services used as resources.” [Id. at ¶ 81; see also ¶ 126]
At some point after the July 25 incident, Plaintiff was transported to the Colorado
Territorial 	Correctional 	Facility 	(“CTCF”), 	allegedly 	in 	retaliation 	for 	reporting 	the
excessive force incident. [Id. at ¶ 102] Dr. Thiele is a psychiatrist at CTCF. [Id. at ¶ 7]
Dr. Thiele has been “directly involved in [Plaintiff’s] mental health treatment” and,
according to the Complaint, “has been negligent in the proper treatment of [Plaintiff’s]
PTSD, night terrors, and anxiety issues” resulting from the July 25 incident. 	[Id.] 	The
Complaint alleges that Dr. Thiele initially failed to acknowledge that the officers used
1 The facts are drawn from the allegations in Plaintiff’s Third Amended Complaint (the
“Complaint”) [#104], which must be taken as true when considering a motion to dismiss.
See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v.
Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). 	The Court only recites facts relevant
to the instant Motion and the claims brought against Dr. Thiele.
2 While the Complaint and case caption refer to “Dr. Thiely” [See, e.g., #104 at ¶ 7], the
Motion and associated briefing refer to “Dr. Thiele” [##205; 210; 212]. The Court adopts
the latter spelling, as used in both parties’ briefing.
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excessive force or that Plaintiff suffered night terrors or PTSD as a result of the incident
[Id. at ¶¶ 7, 118] 	He only changed his opinion after the release of the September 30
CDOC panel’s report. [Id. at ¶ 118]
Plaintiff initiated this action on November 25, 2020. [#1] The currently operative
Third Amended Complaint brings an Eighth Amendment deliberate indifference claim
and a state court negligence claim against Dr. Thiele. 	[#104 at ¶¶ 1-45, 108-18] 	On
February 6, 2023, Dr. Thiele filed the instant Motion, seeking to dismiss both claims.
[#205] Plaintiff has responded to the Motion [#210] and Dr. Thiele has replied [#212].
II. 	STANDARD OF REVIEW
Federal 	Rule 	of 	Civil 	Procedure 	12(b)(1) 	empowers 	a 	court 	to 	dismiss 	a
complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff’s case, but only a determination that the court lacks
authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise
jurisdiction when specifically authorized to do so). 	A court lacking jurisdiction “must
dismiss the cause at any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” 	Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
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.” 	In deciding a motion
under 	Rule 	12(b)(6), 	a 	court 	must 	“accept 	as 	true 	all 	well-pleaded 	factual
allegations . . . and view these allegations in the light most favorable to the plaintiff.”
Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United
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States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on
mere labels or conclusions, “and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a 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 Twombly, 550 U.S. at 570). 	Plausibility
refers “to the scope of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged their 	claims across 	the 	line from 	conceivable to plausible.’” 	Robbins 	v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).
“The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as
true) to suggest’ that he or she is entitled to relief.” 	Id. (quoting Twombly, 550 U.S. at
556). 	The ultimate duty of the court is to “determine 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).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, at 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
“The Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3.
The court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
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III. 	ANALYSIS
As indicated above, Plaintiff alleges the following claims against Dr. Thiele: (1)
Claim One alleging negligence, and (2) Claim Nine alleging deliberate indifference. 	Dr.
Thiele argues: (1) Plaintiff’s negligence claim is barred by the Colorado Governmental
Immunity Act (“CGIA”), (2) Plaintiff fails to state a negligence claim against Dr. Thiele,
(3) Plaintiff fails to state a deliberate indifference claim, (4) Dr. Thiele is not the proper
party to effectuate Plaintiff’s requested injunctive relief,3 (5) and Dr. Thiele is entitled to
3 Plaintiff seeks to order all Defendants to: (1) immediately arrange for Plaintiff’s
physical 	therapy 	or 	follow-up 	medical 	treatment 	with 	a 	medical 	practitioner 	with
expertise in the treatment and restoration and function of the spinal and nervous
system, (2) carry out without delay the treatment directed by that medical practitioner,
(3) provide Plaintiff with a psychological practitioner with expertise in depression and
PTSD, and (4) carry out without delay the treatment directed by such psychological
practitioner. [#104 at ¶ 135] The Court agrees with Defendant that Plaintiff has failed to
plausibly allege that Mr. Thiele, in his individual capacity, has the authority to provide
the relief requested—i.e., order specialized consultation or provide such specialized
treatment. 	[#205 at 11] 	Plaintiff’s only response to this argument is that “[w]hen . . .
prison authorities prevent an inmate from receiving recommended treatment for serious
medical needs or deny access to a physician capable of evaluating the need for such
treatment, the constitution has been violated.” 	[#210 at 4] 	But the Complaint does not
allege that Dr. Thiele prevented Plaintiff from such specialized treatment, only (and in
conclusory terms) that his own treatment of Plaintiff was deficient. 	Thus, Plaintiff’s
claims for injunctive relief against Dr. Thiele in his individual capacity fail. To the extent
Plaintiff seeks injunctive relief against Dr. Thiele in his official capacity, that claim is
redundant of the official capacity claims brought against other CDOC officials, many of
whom have answered rather than filing a motion to dismiss. 	See, e.g., Frey v. Reams,
No. 17cv00669-LTB-MJW, 2018 WL 582400, at *6 (D. Colo. Jan. 29, 2018) (finding that
plaintiff’s official capacity claim against an employee of a sheriff’s department was
duplicative of claims against the sheriff in his official capacity, because “[a]n official
capacity suit is a way of pleading an action against an agent or officer’s employer,”
which for both individual defendants was the sheriff’s office); Toevs v. Quinn, No. 15-
CV-02838-RBJ, 2017 WL 1055314, at *10 n.11 (D. Colo. Mar. 21, 2017) (finding official
capacity claims against various officers “duplicative” of official capacity claims asserted
against the sheriff); Bailey v. Franklin, No. 20-CV-362-TCK-SH, 2021 WL 2345356, at
*6 n.1 (N.D. Okla. June 8, 2021) (finding official capacity claim against police chief
“redundant” of official capacity claims asserted against officers). 	The Court thus
respectfully RECOMMENDS that Plaintiff’s claims for injunctive relief be DISMISSED.
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qualified immunity. 	[#205] 	The Court first addresses Plaintiff’s deliberate indifference
claim, then turns to Plaintiff’s negligence claim.
A. 	Deliberate Indifference
Plaintiff’s 	Ninth 	Claim 	asserts 	a 	claim 	against 	Dr. 	Thiele 	for 	deliberate
indifference in violation of the Eighth Amendment. 	[#104 at ¶¶ 108-18] 	A prison
official’s deliberate indifference to an inmate’s serious medical needs violates the Eighth
Amendment. 	See Estelle v. Gamble, 429 U.S. 97, 104 (1976). 	In the prison medical
context, “deliberate indifference is present when prison officials intentionally deny or
delay access to necessary medical treatment for non-medical reasons.” 	Hammond v.
Crum, No. 16-CV-0069-GPG, 2016 WL 153224, at *2 (D. Colo. Jan. 13, 2016) (citing
Estelle, 429 U.S. at 104-05).
“‘Deliberate indifference’ involves both an objective and a subjective component.”
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). 	“The objective component
is met if the deprivation is ‘sufficiently serious.’” 	Id. (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). “[A] medical need is sufficiently serious if it 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.” 	Hunt v.
Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). 	“The subjective
component is met if a prison official ‘knows of and disregards an excessive risk to
inmate health or safety.’” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837).
Mere negligence, however, is not sufficient. 	Farmer, 511 U.S. at 835. 	Rather, “[t]he
subjective component is akin to ‘recklessness in the criminal law,’ where, to act
recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.’”
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Self v. Crum, 439 F.3d 1227, 1231 (10th 	Cir. 2006) (quoting Farmer, 511 U.S. at 837,
839). 	In other words, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and [s]he must also draw
the inference.” 	Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511
U.S. at 837) (alteration in original); see also id. at 753 (stating that the subjective
component inquiry is: “were the symptoms such that a prison employee knew the risk to
the prisoner and chose (recklessly) to disregard it?”).
Dr. Thiele argues that he is entitled to qualified immunity on Plaintiff’s deliberate
indifference claim. 	[#205 at 12-13] 	“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). 	If a defendant asserts qualified immunity, “the
onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time of the
challenged conduct.’” 	Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). 	“If the plaintiff fails to satisfy either part
of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v.
Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
Courts have “discretion in deciding which of the two prongs of the qualified
immunity analysis 	should be addressed first 	in 	light of 	the 	circumstances in 	the
particular case at hand.” 	Pearson, 555 U.S. at 236. 	In Pearson, the Supreme Court
acknowledged that, in certain cases, “a court will rather quickly and easily decide that
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there was no violation of clearly established law before turning to the more difficult
question whether the relevant facts make out a constitutional question at all.” Id. at 239.
Because the Court finds this principle applicable in evaluating Plaintiff’s deliberate
indifference claim, the Court does not address the first prong of the qualified immunity
analysis—i.e., whether Plaintiff has sufficiently alleged a constitutional violation by Dr.
Thiele.
The requirement that the right be clearly established presents a “demanding
standard” intended to ensure the protection of “all but the plainly incompetent or those
who knowingly violate the law.” 	District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the
constitutional right was clearly established at the time of the misconduct, the Tenth
Circuit has explained:
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates
that right. 	Although plaintiffs can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have
placed 	the 	statutory 	or 	constitutional 	question 	beyond 	debate. 	The
dispositive 	question 	is 	whether 	the 	violative 	nature 	of 	the 	particular
conduct is clearly established.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations
omitted). 	The Supreme Court has “not yet decided what precedents—other than [its]
own—qualify as controlling authority for purposes of qualified immunity.” 	Wesby, 138
S. Ct. at 591 n.8. 	The Tenth Circuit, however, has stated that “[o]rdinarily this standard
requires either that there is a Supreme Court or Tenth Circuit decision on point, or that
the ‘clearly established weight of authority from other courts [has] found the law to be as
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the plaintiff maintains.’” 	Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen
v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
Plaintiff cites to no case by the Supreme Court or the Tenth Circuit that would
clearly establish that it was a violation of the Eighth Amendment for Dr. Thiele to not
believe Plaintiff’s excessive force allegations or that Plaintiff was experiencing mental
health consequences of that alleged excessive force.4 	[#210] 	Nor has the Court
identified any such case.5 Neither has the Court determined that the clearly established
weight of authority from other courts has found the law to be as the plaintiff maintains.
Plaintiff has therefore failed to carry his burden to show that Dr. Thiele violated clearly
established law. Accordingly, the Court respectfully RECOMMENDS that the Motion be
GRANTED with respect to Plaintiff’s deliberate indifference claim against Dr. Thiele and
4 Plaintiff cites merely to Pearson for the proposition that “[t]he judges of the district
courts and the courts of appeals should be permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances of the particular case at hand.” [#210 at 5]
5 As another court in this district has recognized:
The Court is mindful that the Tenth Circuit’s admonition that a plaintiff
bears the burden of citing to the Court clearly established law, see
Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010), typically
involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v.
Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d
1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162
(10th Cir. 2013). 	However, the Tenth Circuit has reversed a trial court's
dismissal of a pro se plaintiff’s excessive force claim—where the trial court
found the plaintiff had failed to identify a case demonstrating his right
was clearly established—by 	itself 	pointing 	to 	a 	Supreme 	Court 	case
sufficiently similar to the facts alleged and finding the plaintiff's right
was clearly established. 	See Ali v. Duboise, 763 F. App’x 645, 651–52
(10th Cir. 2019).
Brandt v. Crone, No. 19-CV-03103-MEH, 2021 WL 681441, at *5 (D. Colo. Feb. 22,
2021), aff’d, No. 21-1093, 2022 WL 898761 (10th Cir. Mar. 28, 2022). 	“Therefore, the
Court has conducted an additional inquiry to determine whether the relevant law was
clearly established as of the dates of these events.” Id.
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that the deliberate indifference claim be DISMISSED to the extent it seeks monetary
damages.
B. 	Negligence
Plaintiff’s First Claim asserts a claim against Dr. Thiele for state law negligence.
[#104 at ¶¶ 1-45] 	Dr. Thiele moves to dismiss pursuant to the CGIA, Colo. Rev. Stat. §
24-10-101, et seq. 	[#205 at 4-6] 	With limited exception, the CGIA bars tort claims
against public employees. 	Colo. Rev. Stat. § 24-10-118 (setting forth the limitation on
tort actions against public employees). 	This protection extends to Members of the
CDOC Panel of Medical Consultants “for all activities performed within the course and
scope of said member’s responsibilities to the [CDOC].” 	Id. at § 17-1-103(3)(d). 	Dr.
Thiele is a Member of the CDOC Panel of Medical Consultants.6 	[#106] 	And the
Complaint alleges that Dr. Thiele’s treatment of Plaintiff occurred while performing his
duties at CTCF. [#104 at ¶ 7] Dr. Thiele is thus covered by the CGIA.
Because Dr. Thiele’s CGIA coverage implicates this Court’s subject matter
jurisdiction, Plaintiff bears the burden of establishing that Dr. Thiele’s actions fall outside
the protections of the CGIA. 	Williams v. City of Arvada, 21-cv-02236-NYW, 2022 WL
1102532, at *14 (D. Colo. Apr. 13, 2022); L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo.
App. 2018); see also Glasser v. King, 721 F. App’x 766, 770 (10th Cir. 2018) (stating
that CGIA immunity impacts a court’s subject matter jurisdiction). 	Plaintiff argues that
Dr. Thiele is not protected by CGIA immunity because Colorado has waived sovereign
6 Because the CGIA impacts this Court’s jurisdiction, the Court may appropriately
consider extrinsic documents. 	Loma v. City and Cnty. of Denver, 21-cv-02214-NYW-
KLM, 2023 WL 2574377, at *6-7 (D. Colo. Mar. 20, 2023). 	Plaintiff does not argue that
Dr. Thiele falls outside the scope of the CGIA, only that Dr. Thiele’s actions fall within an
exception to the CGIA. [#210 at 2-3]
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immunity for injuries resulting from the operation of any correctional facility.7 [#210 at 2-
3 (citing Colo. Rev. Stat. § 24-10-106(1)(b))] 	The CGIA provides that “no [immunity for
public 	employees] 	may 	be 	asserted 	in 	an 	action 	for 	injuries 	resulting 	from 	the
circumstances specified in section 24-10-106(1).” 	Colo. Rev. Stat. § 24-10-118(2)(a).
And Section 24-10-106(1)(b), in turn, waives sovereign immunity for injuries resulting
from the operation of a correctional facility, as defined in Section 17-1-102. And Section
17-1-102(1.7) defines “[c]orrectional facility” as “any facility under the supervision of the
[CDOC] in which persons are or may be lawfully held in custody as a result of conviction
of a crime.” 	Thus, at first blush, Plaintiff would appear to have found an exception to
CGIA immunity.
“Plaintiff overlooks, however, a key carve out to [Section 24-10-106(1)(b)].”
Tafoya v. Limon Corr. Facility, No. 20-cv-0768-WJM-NRN, 2020 WL 6565230, at *3 (D.
Colo. 	Nov. 	9, 	2020). 	Specifically, 	Section 	24-10-106(1)(b)’s 	waiver 	of 	sovereign
immunity is limited by Section 24-10-106(1.5)(b). 	That Section provides that the waiver
of sovereign immunity in Section 24-10-106(1)(b) “does not apply to claimants who have
been convicted of a crime and incarcerated in a correctional facility or jail pursuant to
such conviction.” And the Tenth Circuit has held that Section 24-10-106(1.5)(b) applies
7 This is Plaintiff’s only argument against Dr. Thiele’s immunity under the CGIA. 	[#210
at 2-3] 	The Court also notes that Plaintiff has failed to meet his burden to plead facts
sufficient to allege that Dr. Thiele’s conduct was “willful and wanton,” so as to take his
conduct outside the protection of the CGIA. Colo. Rev. Stat. § 24-10-118(1), (2)(a); see
also Williams, 2022 WL 1102532, at *14. 	Plaintiff alleges only that Dr. Thiele did not
believe that Plaintiff had night terrors or PTSD issues and was negligent in treating
Plaintiff. 	[#104 at ¶¶ 7, 118] 	Plaintiff fails to allege that Dr. Thiele “act[ed] not only
unlawfully, but with the intent to injure, or in conscious disregard of the probability that
his acts would result in injury to the plaintiff.” 	See Pittman v. City of Aurora, No. 19-cv-
02209-PAB-NRN, 2020 WL 508946, at *7 (D. Colo. Jan. 31, 2020) (quoting Feltman v.
Europe, No. 18-cv-3113-WJM-STV, 2019 WL 6215445, at *8 (D. Colo. Nov. 21, 2019)).
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to actions brought by convicted inmates against public employees.8 	Glasser, 721 F.
App’x at 770; see also Cisneros v. Elder, 506 P.3d 828, 835 (Colo. 2022) (“[W]e
conclude that section 24-10-106(1.5)(b) waives immunity both for intentional torts and
for acts of negligence resulting from the operation of a jail for claimants who are
incarcerated but not convicted.”). Thus, because there is no dispute that Plaintiff was a
convicted inmate at the time of Dr. Thiele’s alleged negligence [#104 at ¶ 22], Plaintiff
“may not avail himself of the waiver of immunity set forth in [Section 24-10-106(1)(b)].”
Tafoya, 2020 WL 6565230, at *3. 	Accordingly, the Court respectfully RECOMMENDS
that Plaintiff’s negligence claim for monetary damages be DISMISSED for lack of
subject matter jurisdiction.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	this 	Court 	respectfully 	RECOMMENDS 	that
Defendant Dr. Thiele’s Renewed Motion to Dismiss [#205] be GRANTED and that all
claims against Dr. Thiele be DISMISSED.9
8 Once again, Dr. Thiele, as a Member of the CDOC Panel of Medical Consultants,
receives all of the protections of the CGIA “as if [he] were a ‘public employee.’” 	Colo.
Rev. Stat. § 17-1-103(3)(d).
9 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, 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); Griego v. Padilla
(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.” 	United States v. 2121 East 30th
Street, 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 of fact,
legal conclusions, 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 of fact, legal
conclusions, and recommendations of the magistrate judge. 	See Vega v. Suthers, 195
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DATED: April 13, 2023 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court’s decision to review
magistrate judge’s recommendation de novo despite lack of an objection does not
preclude application of “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal
Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant
waived right to appeal certain portions of magistrate judge’s order by failing to object to
those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding
that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file
objections). 	But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005)
(holding that firm waiver rule does not apply when the interests of justice require
review).
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