Ruiz v. Roetker et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-01055-NYW-TPO
DANIEL RAY RUIZ,
Plaintiff,
v.
CAPTAIN ROETKER,
SERGEANT GUTIERREZ,
LIEUTENANT JOHN DOE,
NURSE JANE DONE, and
OFFICER STICE,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Timothy P. O’Hara issued on February 5, 2025. [Doc. 76]. In this case,
Plaintiff asserts four claims: 	(1) an Eighth Amendment failure to protect claim against
Defendants Roetker, Gutierrez, Stice, and an unnamed John Doe Defendant (“Claim
One”), [Doc. 51 at 7]; (2) a Fourteenth Amendment equal protection claim against
Defendants Roetker, Gutierrez, Stice, and the unnamed John Doe Defendant (“Claim
Two”), [id. at 8]; and (3) two claims of medical deliberate indifference under the Eighth
and Fourteenth Amendments, each asserted exclusively against an unnamed Jane Doe
Defendant, [id.]. 	Defendants Roetker, Guttierez, and Stice have filed a Motion to Dismiss
Plaintiff’s Amended Complaint (the “Motion to Dismiss”). [Doc. 58].
Judge O’Hara recommends that the Motion to Dismiss be granted in part and
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denied in part. [Doc. 76 at 1]. Specifically, Judge O’Hara recommends that Claim One
be dismissed without prejudice as to Defendants Roetker and Gutierrez and that Claim
Two be dismissed without prejudice as to Defendants Roetker, Gutierrez, and Stice. [Id.
at 26]; see also [id. at 8–25]. Judge O’Hara also recommends that the Motion to Dismiss
be denied insofar as it seeks dismissal of Claim One as to Defendant Stice. 	[Id. at 26].
Finally, if the Court dismisses any of Plaintiff’s claims without prejudice, Judge O’Hara
recommends that Plaintiff be given 30 days to file a Fourth Amended Complaint. [Id. at
26 n.8].1
The Recommendation states that objections to the Recommendation must be filed
within fourteen days after its service on the Parties. 	[Id. at n.9]; see also 28 U.S.C.
§ 636(b)(1)(C). The Recommendation was served on February 5, 2025. See [Doc. 76 at
27]. No Party has objected to the Recommendation and the time to do so has elapsed.2
In the absence of an 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); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
1 Judge O’Hara also observes that Plaintiff has not yet identified the Doe Defendants he
names in his Third Amended Complaint and recommends that “in advance of filing his
amended complaint, Plaintiff should confer with Defendants to ascertain the identity of
these individuals or request the information in writing from defense counsel.” [Doc. 76 at
2 n.2]. 	The Court will address the unidentified Doe Defendants in a separate Order to
Show Cause, issued contemporaneously with this Order.
2 On March 3, 2025, Plaintiff filed a “Motion – Request for Update on Status of Case,”
wherein he stated that he did not receive a copy of Judge O’Hara’s Recommendation in
the mail. See [Doc. 77]. On March 4, 2025, the Court granted Plaintiff’s Motion, informed
Plaintiff of the status of this case, and sua sponte extended Plaintiff’s objection deadline
to March 18, 2025. [Doc. 78 at 1–2]. The Court also ordered the Clerk of Court to remail
a copy of the Recommendation to Plaintiff. [Id. at 2]. On March 26, 2025, Plaintiff filed
an untimely motion to extend the deadline to object, see [Doc. 80], which this Court denied
upon concluding that Plaintiff failed to demonstrate extraordinary circumstances justifying
an extension or excusable neglect for failing to mee the deadline, see [Doc. 81].
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does not appear that Congress intended to require district court review of a [magistrate
judge’s] factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”). Here, the Court has reviewed the Recommendation to
satisfy itself that there is “no clear error on the face of the record.”3 Fed. R. Civ. P. 72(b)
advisory committee’s note to 1983 amendment. 	Based on this review, the Court has
concluded 	that 	the 	Recommendation 	is 	thorough, 	well-reasoned, 	and 	a 	correct
application of the facts and the law. However, given the fact that Plaintiff has amended
his pleading numerous times at this juncture, and he does not request to be permitted to
further amend his operative pleading in his Response, see generally [Doc. 69], this Court
finds that it is more appropriate for Plaintiff to seek leave to amend through a motion, with
a proposed Fourth Amended Complaint attached, rather than being preemptively granted
leave to amend. Accordingly, the Recommendation is ADOPTED as modified.
Accordingly, it is ORDERED that:
(1) 	The Recommendation of United States Magistrate Judge Timothy P.
O’Hara [Doc. 76] is ADOPTED as modified;
(2) 	The 	Motion 	to 	Dismiss 	Plaintiff’s 	Amended 	Complaint 	[Doc. 	58] 	is
GRANTED in part and DENIED in part;
(3) 	Claim One is DISMISSED without prejudice as to Defendants Roetker and
Guttierez;
(4) 	Claim One REMAINS as to Defendant Stice;
(5) 	Claim Two is DISMISSED without prejudice as to Defendants Roetker,
3 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).
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Guttierez, and Stice;
(6) 	Plaintiff may file a motion to seek leave to file a Fourth Amended Complaint
no later than April 28, 2025. 	Plaintiff is REMINDED of his obligation to
comply with the Local Rules, including D.C.COLO.LCivR 7.1(a) (duty to
confer) and D.C.COLO.LCivR 15.1(b) (requirements for filing a motion to
amend). 	Plaintiff is further ADVISED that, if he is granted leave to file a
Fourth 	Amended 	Complaint, 	it 	will 	supersede 	his 	Third 	Amended
Complaint. 	See Giles v. United States, 906 F.2d 1386, 1389 (10th Cir.
1990). 	In other words, if he is granted leave to file a Fourth Amended
Complaint, that amended pleading will be the operative pleading in this
action, and Plaintiff’s Third Amended Complaint will no longer have any
legal effect. This means that Plaintiff must include all of his claims, including
the portion of Claim One that survived Defendants’ Motion to Dismiss, in
any forthcoming proposed amended pleading;
(7) 	If no motion for leave to amend is filed by the Court’s deadline, this
case shall proceed only with respect to Claim One against Defendant
Stice, in his individual capacity; and
(8) 	The Clerk of Court shall mail a copy of this Order to:
Daniel Ray Ruiz
5369 South Elati Street, #1
Littleton, CO 80120
DATED: March 27, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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