Pinto-Rios v. Brown et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 20-cv-3698-RMR-JPO
CARLOS PINTO-RIOS,
Plaintiff,
v.
TYLER S. BROWN, et al.,
Defendants.
ORDER
This matter comes before the Court on the Recommendation issued by then
Magistrate Judge S. Kato Crews on December 6, 2023, ECF 278, addressing the Motion
to Dismiss filed by Defendants Kerry Pruett, Katy Keller, Susan Greenwald, Stacie Hengy,
Micah Rhoad, Patricia Trujillo, Jeffrey Peterson (“Individual Defendants”), and Wellpath,
LLC (collectively, the “Wellpath Defendants”), ECF 247. 1 Judge Crews recommends that
the motion be granted in part and denied in part.
Plaintiff timely filed an objection to the Recommendation at ECF 284-1, and the
Wellpath Defendants filed a response at ECF 290. The Court has received and
considered the Recommendation, along with the record and the pleadings. For the
1 On January 26, 2024, this action was reassigned to Magistrate Judge James P. O’Hara.
ECF 287.
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reasons 	set 	forth 	below, 	the 	Court 	accepts 	in 	part 	and 	rejects 	in 	part 	the
Recommendation.
I. 	LEGAL STANDARD
The Court is required to make a de novo determination of those portions of a
magistrate judge’s recommendation to which a specific, timely objection has been made,
and it may accept, reject, or modify any or all of the magistrate judge’s findings or
recommendations. 	28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination 	of 	those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).
“[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. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir. 1996). In the absence of a proper objection, the district court may review a
magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely
objection, the district court may review a magistrate’s report under any standard it deems
appropriate.”); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear
that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”). When no proper objection is filed, “the court need only satisfy itself that there
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is no clear error on the face of the record in order to accept the recommendation.” 2 Fed.
R. Civ. P. 72(b) advisory committee’s note to 1993 amendment.
II. 	ANALYSIS
The parties do not object to the factual or procedural background discussed in the
Recommendation. Accordingly, the Court adopts and incorporates the factual and
procedural background included within the Recommendation as if set forth herein. 3
Plaintiff first objects to the Magistrate Judge’s recommendation that the Court
dismiss Plaintiff’s state-law claims for failure to timely file a certificate of review in
accordance with Colo. Rev. Stat. § 13-20-602(4). Plaintiff argues that the Magistrate
Judge “did not appropriately evaluate Colorado law in interpreting the Certificate Statute,”
faulting the Recommendation for “only cit[ing] federal law in determining what constitutes
‘service’ and when the 60-day time period to file the certificate runs.” ECF 284-1 at 2–3.
Specifically, Plaintiff argues that what constitutes “service” for purposes of the statute is
an open question under Colorado law and that the Magistrate Judge erred by failing to
evaluate “how this provision should be interpreted under state law.” Id. at 4.
2 This standard of review is something less than a “clearly erroneous or contrary to law”
standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed.
R. Civ. P. 72(b). See, e.g., Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 305
F.R.D. 247, 249 n.1 (D. Colo. 2014) (Daniel, J.).
3 Additionally, no party has objected to the Recommendation’s conclusion that Plaintiff
has stated a plausible claim for relief for deliberate indifference against Dr. Peterson
(Claim 3). The Court agrees with the Magistrate Judge’s analysis on this issue and
concludes that there is no clear error on the face of the record with regard to this or any
other portion of the Recommendation to which neither party objected. See Fed. R. Civ.
P. 72(b) advisory committee’s note (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”).
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The Court perceives no error on this issue. Tellingly, Plaintiff does not point to a
single case discussing—much less adopting—his proffered interpretation of the certificate
of review requirement, and the Court is aware of none. Plaintiff’s objection thus neither
identifies any error in the Recommendation nor offers any justification for Plaintiff’s failure
to timely file a certificate of review in this case. As the Magistrate Judge noted, “Plaintiff
has yet to offer one reason why he failed to timely file a certificate of review or what good
cause there might be to extend the filing period.” ECF 278 at 18. This remains the case. 4
Reviewing the issue de novo, the Court agrees with the Recommendation’s finding that
Plaintiff’s malpractice claims against the Individual Defendants should be dismissed for
failure to comply with Colo. Rev. Stat. § 13-20-602(4). Plaintiff’s objection on this issue is
therefore overruled. 5
Plaintiff next objects to the Magistrate Judge’s recommendation that Plaintiff’s
direct negligence claims against Wellpath be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). In analyzing Plaintiff’s claims, Judge Crews concluded that the
second amended complaint (“SAC”) “fails to allege sufficient facts to plausibly infer
Wellpath knew (or should have known) any one of the individual medical defendants
4 It also remains the case that “Plaintiff still has not filed a certificate of review pertaining
to Defendants Trujillo and Peterson after serving them with the SAC.” Id. at 19.
5 Plaintiff also asserts for the first time in his Objection that “it might behoove the Court”
to decline to exercise supplemental jurisdiction over his state-law claims. ECF 284-1 at
7. Plaintiff does not contend, however, that the Magistrate Judge erred in continuing to
exercise supplemental jurisdiction in this case. Accordingly, Plaintiff’s position regarding
supplemental jurisdiction is not a proper objection, and the Court need not address it
further. See also Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised
for the first time in objections to the magistrate judge's recommendation are deemed
waived.”).
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posed a risk of harm to Plaintiff, or that any harms which did occur were a foreseeable
manifestation of that alleged risk.” ECF 278 at 24. Judge Crews additionally found that
“while the SAC contains numerous allegations regarding Wellpath’s lack of training of its
employees, it inconsistently pleads ‘[t]he individual Medical Defendants have received
professional education and training for the performance of their respective professions to
patients in the community.’” Id. (citing ECF 212, ¶ 373). The Court preliminarily agrees
with Plaintiff that the fact that the Individual Defendants received undefined “education
and training” is not necessarily inconsistent with Plaintiff’s claim for negligent supervision
and training. The Court thus declines to adopt this portion of the Recommendation’s
reasoning. However, even accepting Plaintiff’s contention that the allegations regarding
Defendants’ general “professional education and training” do not foreclose a direct
negligence 	claim 	against 	Wellpath, 	the 	Court 	nonetheless 	agrees 	with 	the
Recommendation’s ultimate determination that the SAC fails to adequately allege such a
claim here. Reviewing Plaintiff’s arguments and considering the motion to dismiss de
novo, the Court finds that the SAC does not sufficiently plead that Wellpath knew (or
should have known) that any of the Individual Defendants posed a risk to Plaintiff. The
Court therefore declines to find that Judge Crews erred in concluding that Plaintiff has
failed to plead a plausible direct negligence claim under these circumstances. Plaintiff’s
objection on this issue is overruled.
Finally, Plaintiff objects to the recommended dismissal of his Eighth Amendment
deliberate indifference claims, arguing that the Magistrate Judge improperly conflated
Rule 8 and Rule 12 in finding that the SAC alleges insufficient facts to plausibly establish
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the subjective component of such claims as to the Individual Defendants. The Court
agrees with Plaintiff that the Magistrate Judge erred in recommending dismissal of
Plaintiff’s deliberate indifference claims. Upon de novo review, the Court finds that the
SAC adequately describes the conduct for which each of the Wellpath Defendants is
being considered liable and enables them to prepare a responsive pleading. Should
discovery reveal that the actions of one or more of the Wellpath Defendants are
insufficient for liability to attach, they may present such evidence on summary judgment
or at trial. See Ferguson v. Bd. of Cnty. Commissioners of Sierra Cnty., No. CV 11-1001
WPL/CG, 2013 WL 12334214, at *4 (D.N.M. Apr. 2, 2013). At this juncture, however, the
Court is satisfied that the Wellpath Defendants are on notice of the claims against them
and able to discern their respective roles in the alleged misconduct such that the case
against them can move forward on the SAC.
Taking the current allegations as true and viewing them in the light most favorable
to Plaintiff, the Court finds that Plaintiff has alleged sufficient facts to survive a motion to
dismiss on his deliberate indifference claims. At this stage in the proceedings, Plaintiff
need not prove the allegations in his complaint. See Chilcoat v. San Juan Cnty., 41 F.4th
1196, 1207 (10th Cir. 2022) (“At the motion to dismiss stage, [the Court is] tasked with
assessing plausibility, not proof.”). He must only allege facts that state a non-speculative
claim for relief and provide the Defendants with notice of the actual grounds of the claim(s)
against them. Well-pleaded claims may proceed even if “actual proof of [the alleged] facts
is improbable.” Dias v. City and Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(quotation omitted). Having assessed the plausibility of Plaintiff’s deliberate indifference
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claims and drawing all inferences in the light most favorable to Plaintiff, the Court finds
that they survive the Wellpath Defendants’ dismissal motion. The Magistrate Judge erred
in concluding otherwise. Accordingly, Plaintiff’s objection on this issue is sustained.
III. 	CONCLUSION
Consistent 	with 	the 	above 	analysis, 	Plaintiff’s 	Objection, 	ECF 	284-1, 	is
SUSTAINED in part and OVERRULED in part. The Magistrate Judge’s Recommendation,
ECF 278, is AFFIRMED and ADOPTED in part and REJECTED in part. Accordingly, the
Wellpath Defendants’ Motion to Dismiss, ECF 247, is DENIED as to Claims 1–3 against
Defendants 	Pruett, 	Keller, 	Greenwald, 	Hengy, 	Rhoad, 	Trujillo, 	and 	Peterson 	and
GRANTED as to Claim 6.
DATED: March 25, 2024
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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