Miller v. Grokett et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:24-cv-00148-SKC-CYC
DWAYNE A. MILLER, JR.,
Plaintiff,
v.
CHRISTINA GROKETT,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. 93) RE:
MOTION TO DISMISS (DKT. 65)
The matter is before the Court on Magistrate Judge Cyrus Y. Chung’s Report
and Recommendation (Dkt. 93) regarding Defendant Christina Grokett’s (Dkt. 65)
Motion to Dismiss. 	Judge Chung recommends Defendant’s Motion be granted and
this case be dismissed without prejudice because Plaintiff has failed to plead facts
supporting his claims under the Eighth Amendment. Dkt. 93. No party filed any
objection to Judge Chung’s Recommendation and the time for doing so has lapsed.
As explained below, because the Court has satisfied itself that there is no clear
error 	on 	the 	face 	of 	the 	record, 	the 	Court 	AFFIRMS 	and 	ADOPTS 	the
Recommendation, which is incorporated herein.
Case No. 1:24-cv-00148-SKC-CYC Document 97 filed 01/31/25 USDC Colorado
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BACKGROUND
According to the allegations of the Amended Complaint, which the Court
accepts as true for purposes of the Motion to Dismiss, Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), Plaintiff Dwayne A. Miller broke his ankle and foot while incarcerated at
the Limon Correctional Facility. See Dkt. 93 at p. 1. A doctor assessed Plaintiff’s
injury and recommended Plaintiff be referred to an orthopedic specialist within one
week. Id. Although the doctor specifically spoke to Defendant Grokett regarding the
importance of a follow-up visit, id. at pp. 2, Plaintiff neither was referred to nor saw
a specialist until months after his injury. Id.
In addition, Plaintiff requested the use of a wheelchair and housing in the
infirmary during his convalescence because the crutches he had been issued made
him feel vulnerable in his assigned pod. Id. Defendant denied these requests. Id.
Although Plaintiff initially asserted 13 claims for relief, only three remain.
Specifically, he contends Defendant Grokett violated his Eighth Amendment rights
when she delayed referring him to the orthopedic specialist and denied his request
for a wheelchair and infirmary housing. Dkt. 12. Defendant filed her Motion seeking
dismissal on the basis Plaintiff had failed to allege any claims for relief. Dkt. 65. The
Motion is fully briefed (Dkts. 86, 91) and Judge Chung issued his Recommendation
on January 9, 2025. Dkt. 93.
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FINDINGS AND ORDERS
The Recommendation advised the parties they had 14 days after service of the
Recommendation 	to 	serve 	and 	file 	specific 	written 	objections 	for 	this 	Court’s
consideration, citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Dkt. 93 at p. 10
n.1. No party filed objections. As a result, they have waived de novo review of the
Recommendation by this Court. Thomas v. Arn, 474 U.S. 140, 148-53 (1985).
When no party files objections, the district court may review a magistrate
judge’s recommendation under any standard it deems fit. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“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.”). The Court, therefore, reviews the Recommendation to satisfy
itself that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), 1983
Advisory Committee Notes. This standard of review is something less than a “clearly
erroneous or contrary to law” standard of review, which in turn is less than a de novo
review. See Fed. R. Civ. P. 72(a) and (b).
The Recommendation is detailed and thorough and contains no clear error on
the face of the record. And it correctly applies the law. In it, Judge Chung construes
Plaintiff’s claims liberally, identifies the elements of the Eighth Amendment claims,
and explains why Plaintiff’s Complaint, as drafted, fails to allege factual statements
supporting the elements of his claims. Dkt. 93 at pp.3-9. Judge Chung also correctly
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observes that because Plaintiff has not had an opportunity to amend based on the
Recommendation’s analysis, any dismissal should be without prejudice. Id. at p.10.
* 	* 	*
Because the Court finds “no clear error on the face of the record,” it AFFIRMS
and ADOPTS the Recommendation and GRANTS the Motion to Dismiss without
prejudice.
DATED: January 31, 2025.
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
Case No. 1:24-cv-00148-SKC-CYC Document 97 filed 01/31/25 USDC Colorado
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