R.K. et al v. Cedar Springs Hospital, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25–cv–01552–WJM–MDB
R.K., by and through his Special Conservator Eric J.
Kelly, M.K., and J.M.,
Plaintiffs,
v.
CEDAR SPRINGS HOSPITAL, INC, a Delaware corporation,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendant’s F.R.C.P. 12(b)(6) Motion to Dismiss
([“MTD”], Doc. No. 54) and Plaintiffs’ Partial Motion for Summary Judgment ([“MSJ”, together
with the MTD, “Motions”], Doc. No. 55.) Plaintiffs responded to the MTD at Doc. No. 72, and
Defendant replied at Doc. No. 87. Defendant responded to the MSJ at Doc. No. 75, and Plaintiffs
replied at Doc. No. 89. The Court heard oral argument on the Motions on December 9, 2025.
For the following reasons, the Court RECOMMENDS that Defendant’s MTD be
GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ MSJ be DENIED.
BACKGROUND
Plaintiffs are the adoptive parents1 and special conservator of R.K., a minor child with
disabilities. (Doc. No. 40 at ¶¶ 14, 16.) Around November 29, 2021, R.K. (then four years old)
1 M.K. adopted R.K. in August 2020, while J.M. is R.K.’s power of attorney as well as M.K.’s fiancé. For
the purpose of this Order, the Court refers to M.K. and J.M. as R.K.’s parents.
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was placed into inpatient care at Defendant’s behavioral health facility (“Cedar Springs”) for
aggression toward himself and others. (Id. at ¶¶ 26-29.) On December 4, 2021, R.K. was
allegedly sexually abused by W.D. (then nine years old), who was also in inpatient care at Cedar
Springs. (Id. at ¶¶ 80-106.)
As relevant to the Motions, Plaintiffs also allege the following:
(1) R.K.’s treatment plan included round-the-clock supervision by a dedicated staff
member (“1:1 order”), and on November 29, 2021, Defendant assured Plaintiffs that
R.K. would receive such supervision at Cedar Springs. (Id. at ¶¶ 32, 39, 77.)
(2) Plaintiffs relied on this assurance, as well as statements on Defendant’s website, when
they placed R.K. in Cedar Springs. (Id. at ¶¶ 31-36.)
(3) Defendant knew W.D. had a history of sexually inappropriate behavior and needed to
be monitored by a dedicated staff member while he was around other patients. (Id. at
¶¶ 89-91.)
(4) However, Cedar Springs was chronically short-staffed and did not adequately train its
staff on how to manage or supervise patients in accordance with its own policies. (Id.
at ¶¶ 54-61, 246.)
(5) As such, Defendant never assigned a staff member to supervise either child, and the
children were unsupervised for approximately five minutes in the facility’s “sensory
room” when W.D. sexually abused R.K. (Id. at ¶¶ 79, 97.)
(6) After R.K. reported the incident to a staff member, Defendant nonetheless kept him
and W.D. in the sensory room for over an hour under supervision, did not timely
notify the police or R.K.’s parents, and misreported the details of the incident to the
police. (Id. at ¶¶ 106-70.)
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(7) The sexual abuse, and Defendant’s subsequent conduct, caused R.K.’s behavior to
deteriorate and his mental health to worsen, and ultimately led to his indefinite
placement at a residential inpatient treatment facility. (Id. at ¶¶ 175-201.)
Based on these allegations, Plaintiffs bring six claims:
(1) Negligence. (Id. at ¶¶ 202-10.)
(2) Negligent hiring, supervision, and/or training. (Id. at ¶¶ 211-19.)
(3) Premises liability under the Colorado Premises Liability Act (“CPLA”), C.R.S. § 13-
21-115. (Id. at ¶¶ 220-37.)
(4) Deceptive trade practices under the Colorado Consumer Protection Act (“CCPA”),
C.R.S. § 6-1-105. (Id. at ¶¶ 238-53.)
(5) Fraudulent concealment. (Id. at ¶¶ 254-64.)
(6) Discrimination on the basis of disability under the Rehabilitation Act, 29 U.S.C. §
794. (Id. at ¶¶ 265-73.)
Plaintiffs seek equitable relief, along with all applicable economic, noneconomic, nominal, and
punitive damages. (Id. at 41.)
On August 20, 2025, the Court held a scheduling conference where the parties identified
a fundamental dispute about the claims at issue. (Doc. No. 42.) Specifically, Defendant claimed
that Plaintiffs mislabeled their claims (as something other than medical malpractice) to avoid the
limitations set forth in the Health Care Availability Act (“HCAA”). (Id.) Anticipating this could
lead to an ill-defined scope of discovery and related disputes, the Court determined it would be
best to ascertain the nature of the claims before proceeding with fulsome discovery. (Id.) Thus,
the Court ordered dispositive motions practice on this issue and opened only limited discovery.
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(Doc. No. 73, 93, 103.) Remaining discovery will occur after resolution of the Motions. (Doc.
No. 107.)
The Pending Dispositive Motions
Defendant’s MTD argues Plaintiffs’ negligence and CPLA claims should have been pled
as medical malpractice claims. (Doc. No. 54.) Plaintiffs’ MSJ, on the other hand, requests a
determination that none of their claims lie in medical malpractice. (Doc. No. 55.) Thus, a key
question underlying both sets of briefing is whether Plaintiffs’ claims (however pled) should be
subject to the HCAA, which typically applies to medical malpractice claims.
Defendant’s MTD also contends that Plaintiffs’ CCPA, fraudulent concealment, and
Rehabilitation Act claims are insufficiently pled and should be dismissed, and that Plaintiffs’
request for punitive damages is premature. Plaintiffs argue the opposite: all claims are
sufficiently pled, and the punitive damages claim is not premature because it must be pled at the
outset. (Doc. No. 72.)
LEGAL STANDARD
I. 	MTD
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (internal quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
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Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). All that is required is plausibility, not probability. Plausibility, in the
context of a Rule 12(b)(6) motion to dismiss, means that the plaintiff pled facts that allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Indeed, a well-pled complaint can survive a motion to dismiss even if “recovery is very remote
and unlikely.” Twombly, 550 U.S. at 555 (quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)).
That being said, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citation omitted). Moreover, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citation omitted).
Ultimately, the Court evaluates “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. 	MSJ
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The Court may grant summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party has the burden of showing an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets
this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex, 477 U.S. at 325).
Statutory construction and legislative history are questions of law and are properly
resolved on summary judgment. See Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160-61
(10th Cir. 2011) (citing State of Okla. ex rel. Dep’t of Hum. Servs. v. Weinberger, 741 F.2d 290,
291 (10th Cir. 1983)). Even when parties cast an issue as factual, if the issue turns on statutory
interpretation, then it is appropriate for summary judgment. See Christoffersen v. United Parcel
Serv., Inc., 747 F.3d 1223, 1231 (10th Cir. 2014) (court is not bound by parties’ characterization
of a dispute as factual when the underlying question is legal).
ANALYSIS
I. 	MTD
Defendant argues Plaintiffs’ claims are barred by C.R.S. § 13-21-117, a statute that
governs (and limits) claims against mental health providers. Defendant further argues that
Plaintiffs’ CPLA, CCPA, fraudulent concealment, and Rehabilitation Act claims (Counts 3
through 6) must be dismissed for insufficient pleading, and that Plaintiffs’ request for exemplary
damages must be stricken as premature.
The Court will first consider the applicability of C.R.S. § 13-21-117, then it will
determine which of Plaintiffs’ claims should be allowed to proceed.
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A. C.R.S. § 13-21-117
The parties dispute the applicability and construction of C.R.S. § 13-21-117.2 The
law states, in relevant part:
(2)(a) A mental health provider is not liable for damages in any civil action for
failure to warn or protect a specific person or persons, including those identifiable
by their association with a specific location or entity, against the violent behavior
of a person receiving treatment from the mental health provider, and any such
mental health provider must not be held civilly liable for failure to predict such
violent behavior, except where the patient has communicated to the mental health
provider a serious threat of imminent physical violence against a specific person
or persons, including those identifiable by their association with a specific
location or entity.
(2)(b) When there is a duty to warn and protect under the provisions of paragraph
(a) of this subsection (2), the mental health provider shall make reasonable and
timely efforts to notify the person or persons, or the person or persons responsible
for a specific location or entity, that is specifically threatened, as well as to notify
an appropriate law enforcement agency or to take other appropriate action,
including but not limited to hospitalizing the patient. A mental health provider is
not liable for damages in any civil action for warning a specific person or persons,
or a person or persons responsible for a specific location or entity, against or
predicting the violent behavior of a person receiving treatment from the mental
health provider.
(c) A mental health provider must not be subject to professional discipline when
there is a duty to warn and protect pursuant to this section.
C.R.S. § 13-21-117.
Generally-speaking, Defendant views Section 117 as a “blanket bar against civil liability”
for mental health providers when a patient harms another patient, with a single exception.3 (Doc.
No. 54 at 6.) Specifically, Defendant contends that “Plaintiffs’ claims…are all based on and stem
from the allegation that R.K. was assaulted by another juvenile patient,” and because the
2 However, there is no dispute that Defendant is a “mental health provider” within the meaning of the
statute. (Doc. No. 54; see Doc. No. 72.)
3 The exception applies “where the patient has communicated to the mental health provider a serious
threat of imminent physical violence against a specific person or persons, including those identifiable by
their association with a specific location or entity.” C.R.S. § 13-21-117(2)(a). But Plaintiff does not allege
that such communication occurred here.
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statutory exception does not apply, all of Plaintiffs’ claims—no matter how they are pled, or the
duty alleged—are barred by C.R.S. § 13-21-117. (See id. at 5-6.) The Court disagrees with this
construction.
In interpreting Section 117, the Court begins with the statute’s plain language and gives
its words their “plain and ordinary meaning.” Wyoming ex rel. Crank v. United States, 539 F.3d
1236, 1245 (10th Cir. 2008); McCulley v. People, 463 P.3d 254, 257 (Colo. 2020). The plain
language of Section 117 reflects narrow application. Specifically, the statute protects mental
health providers from liability “in a civil action for failure to warn or protect... against the
violent behavior of a person receiving treatment from the mental health provider[.]” C.R.S. § 13-
21-117(2)(a) (emphasis added). The statute does not codify all common law duties owed by
mental health providers; nor, as Defendant suggests, does it expressly bar all claims that arise
from the violent acts of another patient. See Fredericks v. Jonsson, 609 F.3d 1096, 1104 (10th
Cir. 2010) (mental health professionals may have “some common-law duties beyond those duties
recognized in Section 117 to protect third persons from the conduct of persons they evaluate”);
see also Sheron v. Lutheran Med. Ctr., 18 P.3d 796 (Colo. App. 2000) (finding Section 117
inapplicable in a wrongful death action based on alleged negligent treatment of a suicidal patient
who later committed suicide); Halverson v. Pikes Peak Family Counseling & Mental Health
Ctr., Inc., 795 P.2d 1352, 1354 (Colo. App. 1990) (in a patient-on-patient sexual assault case, the
court acknowledged the distinction between facts alleged under a duty-to-warn theory and those
which “might support a claim based upon a duty owed by defendants to plaintiff by virtue of her
own alleged special relationship with the hospital”). Said another way, Section 117 only
concerns claims based on a failure to warn or failure to protect.
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Moreover, to the extent the plain language of the statute can be considered ambiguous,
the statutory history and purpose support this narrow construction. See generally Scott v.
Nationwide Agribusiness Ins. Co., 744 F. Supp. 3d 1206, 1210 (D. Colo. 2024), aff’d, 141 F.4th
1151 (10th Cir. 2025) (to determine legislative intent of state law, court should begin with the
plain language of the statute); State v. Nieto, 993 P.2d 493, 500-02 (Colo. 2000) (directing
Colorado courts to rely on legislative history to interpret state statute only when statute’s plain
language is ambiguous). Most states, including Colorado, passed failure-to-warn statutes to give
psychotherapists a clear way to balance patient confidentiality against their duty to warn third
parties of imminent danger. See Michael R. Geske, Statutes Limiting Mental Health
Professionals’ Liability for the Violent Acts of their Patients, 64 Ind. L.J. 391, 400-03 (1989)
(explaining that Tarasoff v. Regents of the Univ. of Calif., 551 P.2d 334 (Cal. 1976), imposed an
expansive affirmative duty upon psychotherapists to warn or protect third parties from the
violence of their patients, and describing how Section 117 responded to Tarasoff by codifying
and narrowing that duty); McCarty v. Kaiser-Hill Co., LLC, 15 P.3d 1122, 1124-26 (Colo. App.
2000) (explaining that Section 117 immunizes therapists who discharge their duty to warn from
suit for breaching the duty of confidentiality.)4 In other words, Section 117 was enacted to define
the contours of a provider’s duty to warn and protect, and should apply specifically and narrowly
to those types of claims. Thus, to the extent Plaintiffs’ claims are premised on a duty to warn or
protect Plaintiff from another patient, Section 117 bars them. To the extent Plaintiffs’ claims are
premised on a different duty, such as the general duty of care, Section 117 does not bar them.
With that in mind, the Court proceeds to consider each claim in turn.
4 Before C.R.S. § 13-21-117 was enacted, Colorado courts had to conduct lengthy analyses weighing a
psychotherapist’s duty to warn against the duty to maintain confidentiality. E.g., Perreira v. State, 768
P.2d 1198, 1208-20 (twelve pages of analysis on this question).
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B. Negligence & Negligent Supervision (Counts 1 and 2)
Crucially, Defendant’s only basis for seeking dismissal of Counts 1 and 2 is the Section
117 bar described above. But as noted already, Section 117 will bar these claims only if they are
premised on a duty to warn or protect against a patient. Plaintiffs’ negligence claims are not
based on those duties.
Courts recognize that hospitals owe a duty of reasonable care and diligence to safeguard
patients under their care. See Watkins v. Action Care Ambulance, Inc., 2011 WL 1085257, at *3
(D. Colo. 2011); St. Lukes Hosp. Ass’n v. Long, 240 P.2d 917, 921 (Colo. 1952) (hospital liable
for nurse’s negligent provision of medical equipment and failure to check on a child overnight).
Such negligence is not strictly limited to the performance of administrative tasks. Bernardi v.
Community Hospital Association, 443 P.2d 708, 713 (Colo. 1968) (hospitals are responsible for
the acts of their nurses within the scope of their employment, irrespective of whether they are
acting ‘administratively’ or ‘professionally’.”) To that end, hospitals may be held liable for the
negligence of staff within their control. Id. at 710-13 (where hospital was responsible for hiring
and staffing a nurse, hospital was liable for nurse’s negligent injection of a patient.)
Here, Plaintiffs allege R.K. was injured because Cedar Springs staff failed to provide
reasonable care when they failed to follow their own patient supervision policies. (Id. at ¶¶ 76-
79, 203-207.) Specifically, Plaintiffs allege that R.K.’s particular needs required constant
supervision, forming the basis for Defendant’s duty of reasonable care and diligence. (Doc. No.
40 at ¶¶ 34-39; 84-174; Doc. No. 55-3.) See St. Lukes, 240 P.2d at 921 (hospital’s duty of
reasonable care and diligence is “measured by the capacity of the patient to care for himself”).
Defendant allegedly breached these duties when it left R.K. unattended with an older child,
W.D., between approximately 9:40 and 9:45 a.m. on December 4, 2021. (Doc. No. 40 at ¶¶ 85-
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105.) The consequence of the breach was a sexual assault. (Id. at ¶¶ 175-201). Thus, Plaintiffs’
negligence claim survives because it is based on a duty of care beyond the duties contemplated in
Section 117.
As for the negligent supervision claim, Plaintiffs must establish “the usual elements of
negligence—duty, breach of duty, injury, causation,” and “an agency relationship between the
employer and alleged employee.” Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181, 1184
(D. Colo. 2006). An employer may be liable for negligent hiring, supervision, and training if the
employer “knows or should have known that an ‘employee’s conduct would subject third parties
to an unreasonable risk of harm [. . . .]’” Moses v. Diocese of Colorado, 863 P.2d 310 at 329
(Colo. 1993) (citing Destefano v. Grabrian, 763 P.2d 275, 288 (Colo. 1988)).
Here, Plaintiffs allege that Kimberly (Last Name Unknown) was a new trainee working
for Cedar Springs at the time of the assault. (Doc. No. 40. at ¶¶ 92-93, 213.) She was not aware
of any patient observation guidelines. (Id. at ¶ 174.) Nevertheless, Kimberly was solely
responsible for supervising R.K. and W.D., and because she did not have appropriate training,
she left the children alone. (Id. at ¶¶ 93-97, 151-53, 174). As a result, no staff were present to
intervene when W.D. assaulted R.K. (Id. at ¶¶ 95-105, 213-16.) Plaintiffs therefore plausibly
allege that Defendant breached its duty to supervise and train Kimberly, and that this breach
caused R.K.’s injuries. (Id.)5 As with the negligence claim, the negligent supervision claim is
based on a duty beyond those contemplated in Section 117. See Halverson, 795 P.2d at 1354
5 Plaintiffs also appear to allege a lack of patient supervision to support their negligent supervision claim.
(Doc. No. 40 at ¶ 213.) Those allegations may support the negligence claim, but they have no bearing on
a negligent supervision claim, which is brought against an employer for the conduct of specific
employees. See Moses, 863 P.2d at 324 (basis for negligent supervision is the principle that “[a]n
employer may be liable for harm to others for negligently employing an improper person [. . . .]”).
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(noting that Section 117 would not apply to a claim based on plaintiff’s own “special
relationship” to mental health provider).6
C. Colorado Premises Liability Act (“CPLA”) (Count 3)
Defendant argues that Plaintiffs cannot maintain both negligence and CPLA claims for
the same underlying events, that the CPLA claim is insufficiently pled, and that Section 117 bars
this claim. (Doc. No. 54 at 4-7.)
Under the CPLA, Plaintiffs may recover for injuries suffered on a landowner’s property
which were caused by the landowner’s “unreasonable failure to exercise reasonable care to
protect against dangers” of which the landowner “actually knew or should have known.” C.R.S.
§ 13-21-115(c)(I). Such dangers include dangerous conditions, activities, and circumstances on
the property. Id. To plead a CPLA claim, an invitee must establish: (1) the defendant is a
landowner, and (2) plaintiff’s injuries are attributable to a danger on the property, about which
(3) defendant landowner had actual or constructive knowledge. Id.; see Vigil v. Franklin, 103
P.3d 322, 326 (Colo. 2004). The CPLA applies to “conditions, activities, and circumstances on
the property that the landowner is liable for in its legal capacity as a landowner. Larrieu v. Best
Buy Stores, L.P., 303 P.3d 558, 559 (Colo. 2013). The statute is neither restricted to “inherent”
conditions of land, nor extended to “any tort that happens to occur on another’s property.” Id.
Rather, courts must conduct a “fact-specific, case-by-case inquiry” as to whether the injury
occurred as a result of conditions, activities or circumstances attributable to the defendant in its
capacity as a “landowner.” Id. at 564.
6 In response to the MSJ, Defendant argues Plaintiffs’ negligence claims sound in medical malpractice but
are artfully pled to avoid applicability of the HCAA. (Doc. No. 75.) However, at no point does Defendant
argue the negligence and negligent supervision claims must be dismissed on that basis, or any basis other
than the Section 117 bar. (Id.; see generally Doc. No. 54.)
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Here, there is no dispute that R.K. was an invitee who was injured on Defendant’s
property. (See generally Doc. No. 40; Doc. No. 54 at 6-9.) As for the dangerous condition of the
property, Plaintiffs say Defendant knew of two: (1) W.D., and (2) Defendant’s negligence and
negligent supervision. (Doc. No. 72 at 12-13.) Drawing all inferences in Plaintiffs’ favor and
assuming W.D. is indeed a known danger, (Doc. No. 40 at ¶¶ 226-29), Plaintiffs’ first theory is
barred by C.R.S. § 13-21-117. Marcellot v. Exempla, 317 P.3d 1275, 1278 (Colo. App. 2012)
(holding that Section 117 bars a premises liability action founded on defendant’s duty to warn an
invitee against a mental health patient’s violence). This is because Plaintiffs’ theory that W.D. is
a dangerous condition is essentially a failure-to-warn or failure-to-protect theory. Id.; see also
Texas Dep’t of Transp. v. Mackey, 345 S.W.3d 760, 765-66 (Tex. App. 2011) (although premises
liability is a “species of negligence,” it is predicated on the property owner’s failure to warn of,
or protect from, a dangerous condition of property); Cohen v. Elephant Rock Beach Club, Inc.,
63 F. Supp. 3d 130, 138-46 (D. Mass. 2014) (analyzing the duty to warn as a type of landowner
duty within a premises liability action). Thus, Section 117’s “broad and all-encompassing”
language, which “applies to ‘any civil action’ for ‘failure to warn,’” bars Plaintiff’s CPLA claim
based on W.D. as a dangerous condition. Marcellot, 317 P.3d at 1278 (emphasis added).
Plaintiffs next argue that Defendant’s inadequate training, supervision, and staffing all
give rise to a CPLA claim. (Doc. No. 72 at 13 n. 7; Doc. No. 40 at ¶ 230). It is unclear whether
“supervision” refers to Defendant’s supervision of its staff or Defendant’s supervision of R.K.,
but neither supports a CPLA claim. Negligent supervision of a plaintiff under a defendant’s care
does not invoke a landowner duty and ought to proceed under common law. See Egbert v.
Griswold, 2024 WL 4201599, at *4 (D. Colo. Sept. 16, 2024) (claims stemming from the
defendant’s duty to supervise the plaintiff should proceed in negligence, not CPLA); Giebink v.
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Fischer, 709 F. Supp. 1012, 1017 (D. Colo. 1989) (claims alleging negligent instruction and
supervision in skiing are unrelated to land and proceed separately from CPLA claims). Likewise,
claims alleging negligence in hiring, training, and supervising staff should proceed under
common law in these circumstances. Compare Egbert, 2024 WL 4201599, at *4 (recognizing
duty to hire and train employees to adequately supervise the plaintiff as distinct from landowner
duty), with Casey v. Christie Lodge Owners Ass’n, Inc., 923 P.2d 365, 368 (Colo. App. 1996)
(claim for negligent supervision is abrogated by CPLA when alleged negligence stems from poor
maintenance of furniture).7
D. Colorado Consumer Protection Act (“CCPA”) Claim (Count 4)
Plaintiffs claim Defendant violated the CCPA by making false representations and
material omissions about patient safety and supervision. Defendant argues Plaintiffs’ CCPA
claim is insufficiently pled, and the Court agrees.
To support a private cause of action under the CCPA, Plaintiffs must show “(1) the
defendant engaged in an unfair or deceptive trade practice; (2) the challenged practice occurred
in the course of defendant’s business, vocation, or occupation; (3) it significantly impacts the
public as actual or potential consumers of the defendant’s goods, services, or property; (4) the
plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice
caused the plaintiff’s injury.” HealthONE of Denver, Inc. v. UnitedHealth Grp. Inc., 805 F.
Supp. 2d 1115, 1120 (D. Colo. 2011) (quoting Rhino Linings USA, Inc., v. Rocky Mountain
Rhino Lining, Inc., 62 P.3d 142, 146-47 (Colo. 2003)). To survive a motion to dismiss, Plaintiffs
must sufficiently plead each of these elements. Id. (a plaintiff must sufficiently plead every
7 Defendant also argues the CPLA claim is insufficiently pled, and that Plaintiffs cannot maintain a CPLA
claim for the same underlying events that support the negligence claim. However, the Court does not need
to reach these arguments.
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element of a CCPA claim to avoid Rule 12(b)(6) dismissal). Here, Plaintiffs’ CCPA claim fails
because the public impact element is insufficiently pled.
The CCPA is liberally construed to serve the broad purpose of deterring and punishing
businesses for consumer fraud which “injures, offends, or endangers the public.” Hall v. Walter,
969 P.2d 224, 230 (Colo. 1998); Rhino Linings, 62 P.3d. at 146. To that end, a plaintiff bears the
“low burden” of alleging facts which, if proven, could establish impact to the consumer public
upon any legal theory. General Steel Domestic Sales, LLC, v. Hogan & Hartson, LLP, 230 P.3d
1275, 1275 (Colo. App. 2010) (citation modified). Courts look to three factors when evaluating
public impact: “(1) the number of consumers directly affected by the challenged practice, (2) the
relative sophistication and bargaining powers of affected consumers, and (3) evidence that the
challenged practice has previously impacted other consumers or has significant potential to do so
in the future.” Rhino Linings, 62 P.3d at 149. If a wrong is “private in nature” and “does not
affect the public,” then it is not actionable under the CCPA. Id. at 149-50.
Here, Plaintiffs allege that despite knowing of staffing shortages, Defendant failed to
state on its website that patients requiring 1:1 supervision “regularly went without” it due to
inadequate staffing. (Doc. No. 40 at ¶ 55.) In other words, Defendant’s website misrepresented
and materially omitted information about its staffing shortages such that any actual or
prospective consumer (who is necessarily from a group of consumers with low bargaining
power) could be impacted (Id. at ¶¶ 65-67.) In support of these allegations, Plaintiffs highlight
the following statements from Defendant’s website:
• 	“Overall, when you or a loved one seeks treatment at our hospital, our top priority is to
provide a secure and comfortable environment to facilitate your recovery.”
• 	“At our facility, we divide our programs into categories of age and intensity, which helps
to ensure that every one of our patients is receiving complete care with our undivided
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attention.”
• 	“With our inpatient care, we focus primarily on dealing with the immediate symptoms of
your behavioral issues, to get you back to a stable mental state. These programs typically
involve individual and group therapy sessions as well as psychiatric medication
management and 24-hour monitoring.”
(Id. at ¶ 31 (emphasis in original).) At best, the website represents that Defendant offers a
secure and comfortable environment, that they arrange their programs in a way that helps deliver
complete care and undivided attention, and that their programs “typically involve [. . . .] 24-hour
monitoring.” (Id.) But the challenged practice here is a misrepresentation about 1:1 care, which
was a specific assurance made to Plaintiffs over the phone. Id. at ¶ 32. Plaintiffs do not allege
that those same misrepresentations were made to others. See Shekarchian v. Maxx Auto
Recovery, Inc., 487 P.3d 1026, 1035 (Colo. App. 2019) (no public impact in “the absence of
evidence of any exposure to, or an adverse effect from, the [defendant’s] misrepresentations with
respect to anyone other than the plaintiffs.”); Rhino Linings, 62 P.3d at 150 (harm caused by
defendant’s breach of contract with three out of over 550 consumers, rather than by challenged
trade practices, is “private in nature” and not actionable under CCPA). Accordingly, Plaintiffs
cannot offer a specific (or even estimated) number of consumers directly affected by the
challenged practice. And while it is true that Defendant’s consumer base has very low bargaining
power and is less sophisticated than Defendant, the alleged website statements are not the type of
“widespread advertisements” directed at the market in general that typically establish public
impact. Hall v. Walter, 969 P.2d at 235 (finding “no dispute” that widespread advertisements
directed to the market in general implicated the consumer public).8
8 In Crowe v. Tull, advertising that “potentially affect[ed] a large swath of the public via television, print
media, radio, and the internet” was found to impact the public. 126 P.3d 196, 200 (Colo. 2006). In
HealthONE, the court found public impact from “radio, television, and internet advertisements, as well as
direct mail flyers” distributed nationwide. 805 F. Supp. 2d at 1122. By contrast, here, Defendant’s
website statements targeted consumers who were already seeking behavioral health services. (Doc. No. 40
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In short, Plaintiffs’ general and conclusory allegations about potential harm to other
potential consumers are simply insufficient to satisfy the public impact element.
E. Fraudulent Concealment (Count 5)
Next, Plaintiffs claim Defendant fraudulently concealed information from M.K. and J.M.
by failing to disclose its short-staffing and creating the false impression that Defendant had
adequate staff to fulfill 1:1 orders. (Doc. No. 40 at ¶¶ 32, 254-64.) Defendant argues the claim is
insufficiently pled under Rule 9(b). Specifically, Defendant contends Plaintiffs did not identify
the party who made false statements or who should have disclosed the allegedly material
information. (Doc. No. 54 at 10-11.)
Generally, a fraud claim must include the “time, place and contents of the false
representation, the identity of the party making the false statements, and the consequences
thereof.” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000). But the requirements
of Rule 9(b) are somewhat relaxed for omission-based claims, “as one cannot allege with
particularity the time, place, and contents of something that was never said.” S.E.C. v. Nacchio,
438 F. Supp. 2d 1266, 1277 (D. Colo. 2006). “In these circumstances, Rule 9(b) is satisfied if the
Complaint alleges the particular information that should have been disclosed, the reason the
information should have been disclosed, the person who should have disclosed it, and the
approximate time or circumstances in which the information should have been disclosed.” Id. at
1277-78.
This relaxed standard also dispenses with the strict identity requirement and requires only
that the corporation be identified. See Martinez v. Nash Finch Co., 886 F. Supp. 2d 1212, 1216
at ¶¶ 31-32.) Thus, Defendant’s statements are somewhat more akin to the statements in Hildebrand v.
New Vista Homes II, LLC, where the court found no public impact in part because the sales brochure was
only provided to customers who already sought to purchase homes in the subdivision. 252 P.3d 1159,
1170 (Colo. App. 2010).
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(D. Colo. 2012) (in CCPA claim based on material omission, Rule 9(b) is satisfied where
plaintiff alleged the company made a material omission in its advertising materials without
identifying specific person); see also Dean v. Wright Med. Tech., Inc., 593 F. Supp. 3d 1086,
1099 (D. Colo. 2022) (when a plaintiff has plausibly pled that defendant, “as an entity,” was
aware of and concealed specific information, it need not also plead “the identity of the specific
employees who had the relevant knowledge and who were responsible for the alleged decisions
to conceal it” because that information likely is “solely within defendant’s knowledge”). Indeed,
the identity requirement is designed to give each defendant notice of the statements for which it
is allegedly responsible, Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1253 (10th Cir.
1997), but where there is only one defendant, as here, there is no real concern that defendants
will be “lump[ed] together.” Id.; see Bus. Loan Express, LLC v. Faith Ventures, Inc., 2008 WL
11338444, at *3 n. 4 (W.D. Okla 2008) (in fraud case with single defendant, “the identity of the
natural person within the corporate defendant is not an essential allegation if the corporation
itself is the alleged perpetrator of the fraud”). Thus, Plaintiffs’ allegation that Defendant’s phone
representative made a material omission, and that Defendant (as an entity) should have disclosed
its short-staffing to Plaintiffs before or during R.K.’s stay, satisfies the particularity requirement.
(Doc. No. 40 at ¶¶ 73-74, 240-41.)
Additionally, accepting all alleged facts as true and drawing all inferences in favor of
Plaintiffs, the Court finds Plaintiffs have plausibly stated a fraudulent concealment claim.
To succeed on a fraudulent concealment claim, a plaintiff must establish: “(1) the
concealment of a material existing fact [which defendant had a duty to disclose]; (2) knowledge
on the defendant’s part that such a fact was being concealed; (3) ignorance of that fact on the
plaintiff’s part; (4) the intention that the concealment be acted upon; and (5) action on the
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concealment resulting in damages.” Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP,
420 P.3d 223, 234 (Colo. 2018) (citing BP Am. Prod. Co. v. Patterson, 263 P.3d 103, 109 (Colo.
2011)). To satisfy elements (2) and (4), a plaintiff must show “actual kn[owledge] of an
undisclosed material fact,” along with defendant’s intent to cause plaintiff to “act differently than
[they] might otherwise have done if the information had been disclosed.” Barfield v. Hall Realty,
Inc., 232 P.3d 286, 292 (Colo. App. 2010) (internal citation omitted). Fraudulent omission “may
be inferred from circumstantial evidence.” Wisehart v. Zions Bancorporation, 49 P.3d 1200,
1206 (Colo. App. 2002).
Here, Plaintiffs allege that Defendant, as an entity, “was aware it could not provide for
the level of monitoring and oversight it had represented because it was chronically short-staffed”
and regularly left 1:1 orders unfulfilled. (Doc. No. 40 at ¶¶ 50, 55, 72, 246.) Defendant’s
knowledge of its staffing shortage may be reasonably inferred from a 2019 OSHA investigation
and report, which set forth Defendant’s staffing shortages and consistent inability to fulfill 1:1
orders. (Id. at ¶¶ 47-59.) These facts were material because R.K.’s medical needs included direct,
1:1 supervision by a dedicated staff member. (Id.) Additionally, Plaintiffs did not know about the
staffing shortages and wholly relied upon Defendant’s representations when deciding to admit
R.K. on November 29, 2021. (Id. at ¶¶ 25-36, 45, 71.) Had Plaintiffs known about the shortages,
they may have chosen a different treatment center. (Id. at ¶ 257.) Moreover, Defendant’s
representation that it could provide R.K. with 1:1 supervision, coupled with its failure to disclose
known staffing shortages, supports an inference that Defendant intended to induce Plaintiffs into
entering a transaction with Cedar Springs. (Id. at ¶¶ 72-75; cf. Faulhaber, 656 F. Supp. 3d at
1268 (in the CCPA context, representation that a product is appropriate for a certain use, without
disclosing known risks related to such use, supports an inference of intent to induce by way of
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omission).) Thus, Plaintiffs’ allegations are sufficient to support a fraudulent concealment claim
at this stage of the litigation.
F. 	Rehabilitation Act, 29 U.S.C. § 794 (Count 6)
Defendant argues that Count 6 fails because Plaintiffs do not sufficiently allege that R.K.
was excluded from any programs at Cedar Springs by virtue of his disability. (Doc. No. 54 at 15-
17.) Plaintiffs respond that R.K.’s disability required 1:1 supervision which Defendant failed to
provide, causing R.K. to suffer injury and ultimately be discharged from necessary treatment.
(Doc. No. 72 at 19-20.)
To state a claim under the Rehabilitation Act, a plaintiff must prove that: (1) they are
disabled; (2) they otherwise qualify for participation in a program; (3) the program discriminates
against the plaintiff; and (4) the program receives federal financial assistance. Shepherd v. U.S.
Olympic Comm., 464 F. Supp. 2d 1072, 1089-90 (D. Colo. 2006), aff’d sub nom. Hollonbeck v.
U.S. Olympic Comm., 513 F.3d 1191 (10th Cir. 2008); 29 USCA § 794(a).
There is no real dispute that R.K. is disabled or that Defendant receives federal funding.
(Doc. No. 54 at 16; Doc. No. 72 at 19.) Thus, the question is whether R.K. was otherwise
qualified for the program, but nevertheless excluded by Defendant, because of his disability. To
support their argument, Plaintiffs cite Hughes v. Colorado Department of Corrections, 594 F.
Supp. 2d 1226 (D. Colo. 2009). In Hughes, an incarcerated plaintiff sufficiently pled a claim for
disability discrimination when he was barred from accessing generally available medical
treatment. Id. The Hughes court acknowledged the distinction between denial of access to
generally available medical services, which sounds in disability discrimination, and inadequate
medical treatment, which resembles medical malpractice for which the Rehabilitation Act
provides no remedy. Id. at 1240-41.
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R.K.’s circumstances fall into the latter category. Inpatient behavioral health treatment is
not “generally available” care for which R.K. was otherwise qualified, but was denied because of
his disability. Instead, it was precisely because R.K. was disabled that he required (and was
provided) inpatient behavioral health treatment. Where a course of treatment would not have
been necessary but for an underlying disability, the “otherwise qualified” element of a
Rehabilitation Act claim cannot ordinarily be applied. Fitzgerald v. Corrections Corporation of
America, 403 F.3d 1134, 1144 (10th Cir. 2005). In an attempt to avoid this construction,
Plaintiffs draw the line at the 1:1 supervision order, claiming Defendant’s failure to provide that
particular level of supervision resulted in discriminatory discharge. (Doc. No. 72 at 19.)
However, “[w]here the handicapping condition is related to the condition(s) to be treated, it will
rarely, if ever, be possible to say ... that a particular decision was ‘discriminatory.’ ” Id. (quoting
United States v. University Hospital, 729 F.2d 144, 157 (2nd Cir. 1984)). Here, there is no doubt
that R.K.’s 1:1 need was directly related to his disability. The true dispute is whether Defendant
provided adequate care for R.K.’s needs, not whether Defendant denied care altogether. Where a
claim challenges the quality of care rather than access to that care, the Rehabilitation Act does
not apply. Id.9
G. Exemplary Damages
9 Count 6 is Plaintiffs’ only federal claim. Defendant argues the Rehabilitation Act claim is made “solely
to keep this case in federal court, in violation of the ‘well-pleaded complaint rule’. . . .” (Doc. No. 87 at
7.) The Court does not conclude that the Rehabilitation Act claim is “clearly immaterial and made solely
for the purpose of obtaining federal jurisdiction,” or that it is “wholly insubstantial or frivolous.” Bell v.
Hood, 327 U.S. 678, 681-83 (1946). But it does appear that Plaintiffs have stretched the claim to fit the
facts of this case. It will be for the presiding judge to decide whether to maintain or decline to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(1) (permitting
supplemental jurisdiction over remaining claims when the court has original jurisdiction over the federal
claim, and dismisses it on grounds other than jurisdiction).
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Finally, Defendant moves to dismiss Plaintiffs’ demand for punitive damages. Under
C.R.S. § 13-21-102(1.5)(a), claims for exemplary damages (i.e., punitive damages) may not be
made in initial pleadings and are allowed only by amendment of the pleadings after the plaintiff
establishes a triable issue on exemplary damages. See Stamp v. Vail Corp., 172 P.3d 437, 449
(Colo. 2007); West Ridge Group, LLC v. First Trust Co. of Onaga, 2009 WL 641258 (D. Colo.
2009). Accordingly, Plaintiffs’ demand for punitive damages is premature.10 Plaintiffs may move
to add punitive damages later, if the evidence supports such a claim.
II. 	MSJ
Plaintiffs’ MSJ asks for a determination that this case does not present medical
malpractice claims as a matter of law, and therefore, that the HCAA damages cap does not apply.
(Doc. No. 55 at 14.) Although the parties present factual disputes tangentially related to the
issue, (id. at 3-7; Doc. No. 75 at 4-9), the applicability of the HCAA presents a question of
statutory interpretation that can be resolved on summary judgment. See Christoffersen, 747 F.3d
1223 (statutory interpretation is a matter of law and may be resolved on summary judgment).
The HCAA aims to contain the “significantly increasing costs of malpractice insurance
for medical care institutions and licensed medical care professionals” by capping damages for
“medical malpractice” actions. C.R.S. § 13-64-102. The damages cap applies to “all damages for
a course of care for all defendants in any civil action for damages in tort brought against [. . . .] a
health-care institution [….]”. Id. § 13-64-302(b) (emphases added).11
10 Plaintiffs argue they are “obligated” to include punitive damages at the outset. (Doc. No. 72 at 20.)
However, they cite no authority to support this argument, and they agree their punitive damages claims
are subject to C.R.S. § 13-21-102(1.5). (Id.)
11 A health care institution is any “licensed or certified hospital, health-care facility, dispensary,” or “other
institution for the treatment or care of the sick or injured.” C.R.S. § 13-64-202(3).
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Plaintiffs argue that because they allege only ordinary negligence, the HCAA does not
apply. (Doc. No. 55 at 8-14; Doc. No. 89 at 6-7.) They also argue their claims are not subject to
the damages cap because they cannot be traced to the judgment of a medical professional. (Doc.
No. 55 at 8-10; Doc. No. 89.) For its part, Defendant cites Scholz v. Metro. Pathologists, P.C.,
851 P.2d 901 (Colo. 1993) and Price v. Walgreen, Co., 322 F. Supp. 1179 (D. Colo. 2004) to
argue that the acts or omissions of unlicensed employees can constitute medical malpractice.
(Doc. No. 75 at 12-13). Defendant emphasizes that Plaintiff cannot artfully plead around medical
malpractice to avoid the HCAA. (Id. at 14-16.)
The Court begins its analysis by acknowledging that Plaintiffs have not expressly alleged
a medical malpractice claim. Additionally, it is clear the General Assembly contemplated that the
HCAA would apply to medical malpractice claims. C.R.S. § 13-64-102(1) (to control the
“significantly increasing costs of malpractice insurance for medical care institutions and licensed
medical care professionals,” the HCAA limits damages for actions in “the area of medical
malpractice”) (citation modified). However, a legislative declaration does not override the scope
or applicability of an unambiguous statute. Scott, 744 F. Supp. 3d at 1210 (when the plain
language of the statute is clear and unambiguous, courts should apply the statute as written); see
also Nieto, 993 P.2d at 502 (turning to legislative declaration when statute is ambiguous).12
Pursuant to the plain language of C.R.S. § 13-64-302, the damages cap applies to “any”
action for “damages in tort” for a “course of care” provided by a “health-care professional” or
“health-care institution.” C.R.S. § 13-64-302(b). In other words, the HCAA applies to any tort
12 In any event, the legislative purpose section contemplates broad application in that it reflects an intent
to curb the cost of malpractice insurance for health care professionals and institutions, C.R.S. § 13-64-
102(a), which can be impacted not only by medical malpractice actions, but also negligence actions. E.g.,
Gresser v. Banner Health, 543 P.3d 1059, 1067 (Colo. App. 2025) (applying HCAA to medical
negligence case against hospital).
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claim for damages against a health care professional or institution, so long as the damages stem
from a “course of care.”
Here, Defendant is a health care institution that provides psychiatric treatment and care.
(Doc. No. 40 at ¶ 27; C.R.S. §§ 13-64-202(3), 302(b).) Moreover, the remaining13 negligence
and fraudulent concealment claims sound in tort. See Barfield, 232 P.3d at 292 (describing
fraudulent concealment as a tort). Thus, the only question is whether the damages arose from a
“course of care.” C.R.S. § 13-64-302(b).
Plaintiffs allege that R.K. was harmed during a period of “down time” that resembled
daycare, rather than a course of treatment. (Doc. No. 55; Doc. No. 89 at 1-2, 10.) But even if the
sensory room where R.K. was assaulted offers something more akin to “down time” than
treatment, the parties agree that the sensory room was for patients and subject to patient
observation policies. (Doc. No. 89 at 3-4.) Moreover, there is no dispute that Cedar Springs is a
round-the-clock treatment facility. Indeed, according to Plaintiffs, R.K. was enrolled in Cedar
Springs precisely because they were led to believe R.K would have round-the-clock care.
Additionally, while Plaintiffs construct their negligence claims narrowly and insist that R.K.’s
injuries have nothing to do with a violation of a professional duty of care, they obtained a
Certificate of Review to support their contention that R.K.’s treatment fell below the applicable
standard of medical care.14 (Doc. No. 40 at ¶ 2.) Plaintiffs’ damages therefore clearly stem from
R.K.’s course of care.15
13 For the sake of this analysis, the Court assumes the presiding judge will accept this Recommendation
and dismiss all claims other than the negligence and fraudulent concealment claims.
14 Plaintiffs say they prepared the Certificate of Review in an abundance of caution, but they are
nevertheless claiming substandard care.
15 The Court rejects Plaintiffs’ argument that the sexual assault categorically removes Defendant’s
negligence from a course of care. (Doc. No. 55 at 11.) None of the cases cited by Plaintiffs are
controlling, and the single state district court case they cite analyzed the HCAA’s applicability to a sexual
assault by the provider. (Id., citing Weber v. Finding Serenity 2, LLC, 2024 WL 713251, at *3 (Colo.
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Before closing, the Court pauses to note that the fraudulent concealment claim concerns
an alleged omission that occurred before R.K. began treatment. On that basis, one might argue
that the damages cap should not apply to the fraudulent concealment claim.16 But the HCAA
does not hinge on the timing of Defendant’s malfeasance. Rather, the operative question is
whether Plaintiffs’ damages stem from a course of care. C.R.S. § 13-64-302(b) (applying the
damages cap to “all damages for a course of care for all defendants in any civil action for
damages in tort brought against [. . . .] a health-care institution [….]”) (emphasis added). Here,
they do. As currently pled, the alleged fraudulent concealment resulted in the very same harm as
the alleged negligence and negligent supervision: R.K. ended up unsupervised and alone with
W.D., giving W.D. enough time to assault R.K. Thus, even the fraudulent concealment damages
stem from the same course of care and are subject to the HCAA cap.17 See generally Price, 322
F. Supp. 2d at 1179 (acknowledging that the Colorado Supreme Court has given “broad
application to the [HCAA’s] liability limits”).18
CONCLUSION
The Court RECOMMENDS that Defendant’s Motion to Dismiss, Doc. No. 54, be GRANTED
IN PART AND DENIED IN PART as follows:
Dist. Ct. Jan. 30, 2024) (sexual assault by masseuse during massage is not part of course of care for
HCAA purposes).)
16 Plaintiffs do not specifically raise this issue, but the Court addresses it for completeness.
17 This is not to say every fraud claim against a medical professional or institution is subject to the HCAA.
For example, fraudulent billing causes a different kind of harm than inadequate care. Zurich Am. Ins. Co.
v. O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916, 921-22 (10th Cir. 2008). But the damages for this specific
fraud claim arose from a course of care, so it is subject to the HCAA’s damages cap.
18 The fraudulent concealment claim is not entirely duplicative of the negligence claims. Plaintiffs may
proceed under alternative theories, albeit for the same capped damages, and evidence of fraud might give
Plaintiffs a basis for exceeding the cap. See C.R.S. § 13-64-302(b).
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1. 	Count 3 (Colorado Premises Liability Act), Count 4 (Colorado Consumer Protection
Act), and Count 6 (Rehabilitation Act) should be dismissed. Count 1 (Negligence), Count
2 (Negligent Supervision), and Count 5 (Fraudulent Concealment), should proceed.
2. 	The portion of Plaintiffs’ Amended Complaint, Doc. No. 40, requesting exemplary
damages should be stricken without prejudice to file a motion to amend the pleadings in
accordance with C.R.S. § 13-21-102(1.5)(a).
The Court further RECOMMENDS that Plaintiffs be given 21 days after final resolution of
these Motions to amend their complaint and conform their pleadings to the final dismissal order.
Finally, the Court RECOMMENDS that Plaintiffs’ Partial Motion for Summary Judgment, Doc.
No. 55, be DENIED.
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.” United States 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
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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. United States, 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).
Dated this 13th day of February, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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