Opinion
Civil Action No. 1:18-cv-00122-RM-SKC
01-30-2020
FLECIA MARTIN, Plaintiff, v. DR. SARA H. PERMAN, et al., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANTS' MOTION TO DISMISS [#55]
This Recommendation addresses Defendants Dr. Sara Perman, Dr. Kristen E. Nordenholz, Dr. David S. Young, Dr. Roberta Capp, and Dr. Bonnie L. Kaplan's (collectively "Defendants") Motion to Dismiss ("Motion"). [#55.] The Motion was referred to the magistrate judge for a recommendation. [#56.] Plaintiff Flecia Martin ("Martin") filed her Response [#64], which was followed by Defendants' Reply. [#66.] Martin then filed two surreplies. [#67 & #68.] Although surreplies are not contemplated by the Federal Rules, the Court, in its discretion, has considered them along with the other filings. For the following reasons, the Court RECOMMENDS that the Motion be GRANTED.
Several of the Defendants' names were spelled incorrectly in various versions of the complaint and caption. The Court uses the accurate spellings.
The Court uses "[#___]" to refer to specific docket entries in CM/ECF.
SUMMARY FOR THE PRO SE PARTY
The Court is recommending that Martin's claims against Defendants be dismissed. Upon a review of the pleadings in this case, the Court concludes that the Amended Complaint [#14] fails to allege compliance with the Colorado Governmental Immunity Act. In fact, in her responses and surreplies, Martin admits she did not send notice to Defendants as required by the statute because she did not know of the requirement. Ignorance of the law, however, is not an excuse for failing to comply. Therefore, this Court is recommending that the Motion be granted. The parties have 14 days after service of this Recommendation to file specific written objections to the Recommendation with Judge Moore for his review. Judge Moore may either partially or fully adopt this Recommendation, or partially or fully reject it, and issue an order based on his own findings and conclusions. Should Judge Moore adopt this Recommendation, Martin's claim against the Defendants will be dismissed.
BACKGROUND
According to the Amended Complaint, on February 2 and 10, 2015, Martin visited the Emergency Room of North Suburban Medical Center with complaints of nausea, vomiting, and a headache. [#14 at p.7.] Martin alleges that, based on her race (biracial), the Defendants administered numerous drugs that were not clinically indicated and "not the best treatment for her symptoms." [Id. at pp.6-7] She filed this case on January 16, 2018. The Amended Complaint asserts claims for medical malpractice against each Defendant. The Defendants argue that Martin has failed to comply with the Colorado Governmental Immunity Act and that her claims are barred by the statute of limitations. [#55.] The Court agrees that Martin's claims should be dismissed.
A claim against Daphne David, the President and CEO of North Suburban Medical Center, was dismissed on dismissed on August 22, 2019. [#69.]
Martin also purported to assert a claim under 42 U.S.C. § 1983—presumably (although not entirely clear) for a violation of her equal protection rights. [#14 at p.9.] However, Judge Babcock dismissed this claim based on the understanding that the Defendants were "non-state private individuals or entities." [#16 at p.4.] Although Martin did not challenge the Order, this conclusion would appear to conflict with the Defendants' position in the Motion that they are employed by a public entity. [#55.] Nevertheless, the Court observes that Martin's allegations regarding race discrimination are too bare and conclusory to support a claim for a violation of her constitutional right to equal protection even assuming the § 1983 claim was not previously dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
STANDARD OF REVIEW
Defendants also move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Given the Court's conclusions regarding jurisdiction, however, it need not reach the issue.
Defendants' arguments regarding the Colorado Governmental Immunity Act ("CGIA") constitute a challenge to this Court's subject matter jurisdiction. See Colo. Rev. Stat. § 24-10-109(1) (Compliance with the provisions of the CGIA "shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action."); Douglas v. City & Cty. of Denver, 203 P.3d 615, 617 (Colo. App. 2008) ("Whether a claim is barred on grounds of immunity under the CGIA is a question of subject matter jurisdiction and is properly addressed under C.R.C.P. 12(b)(1).").
Dismissal under Federal Rule of Civil Procedure 12(b)(1) is not a judgment on the merits. Rather, it is a determination that the court lacks authority to judge 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 Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). As the party asserting jurisdiction, Martin bears the burden of establishing proper jurisdiction. American Fair Credit Ass'n v. United Credit Nat. Bank, 132 F.Supp. 2d 1304,1308-09 (D. Colo. 2001) (citation omitted). "Mere conclusory allegations of jurisdiction are not enough; the party pleading jurisdiction must allege in his pleading the facts essential to show jurisdiction." Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (internal quotation marks and citations omitted). B. Pro Se Parties
The Court acknowledges that Martin is not an attorney. Consequently, her pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. But the Court cannot act as a pro se litigant's advocate. Id. The Court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting matters that were not pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). At the end of the day, pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
ANALYSIS
The Amended Complaint asserts state law claims for medical malpractice (a type of negligence) against the Defendants. [#14.] In their Motion, Defendants state that they are physicians employed by the University of Colorado Hospital, a public entity, thus making them public employees. See Univ. of Colo. v. Booth, 78 P.3d 1098, 1102 (Colo. 2003) (the University is an instrumentality of the state for CGIA purposes); Colo. Rev. Stat. § 24-10-103(4)(b)(I) ("Public employee" includes "[a]ny health care practitioner employed by a public entity"). Consequently, Martin's claims are subject to the provisions of the CGIA. Garcia v. Chamjock, No. 11-cv-00263-PAB-MEH, 2011 WL 7429425, at *6 (D. Colo. Dec. 20, 2011) ("Plaintiff's medical negligence claim . . . falls within the CGIA in that it is also a claim that could lie in tort."), report and recommendation adopted, No. 11-cv-00263-PAB-MEH, 2012 WL 638145 (D. Colo. Feb. 27, 2012); Arabasz v. Schwartzberg, 943 P.2d 463, 465 (Colo. App. 1996) ("In resolving whether a claim is barred by the CGIA, the question is not how the claim is characterized, but whether the claim is a tort claim or could be a tort claim.").
Although Martin alleged that Defendants were employed by North Suburban Medical Center, after further research she acknowledged that Defendants were employed by the University of Colorado and requested that the U.S. Marshal serve them at the hospital. [#51 & #53.] The Court further confirmed each Defendants' employment via the University's website. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (taking judicial notice of two federal agency websites); City of Sausalito v. O'Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004) ("We may take judicial notice of a record of a state agency not subject to reasonable dispute.").
Defendants move to dismiss Martin's malpractice claims on the basis that she failed to allege compliance with the notice requirement of the CGIA, Colo. Rev. Stat. § 24-10-109. The notice requirements of the CGIA provide, in pertinent part:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action. . .Colo. Rev. Stat. § 24-10-109(1). As a federal court sitting in diversity jurisdiction, the Court applies the law of the state where the claim was brought, namely Colorado. Sellers v. Allstate Ins. Co., 82 F.3d 350, 352 (10th Cir. 1996).
"Colorado courts strictly construe section 24-10-109(1) and consistently hold that '[c]omplying with the notice of claim [as set forth in section 24-10-109(1)] is a jurisdictional prerequisite to suit.'" Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 839 (10th Cir. 2003) (quoting Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002)). They also hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal. See Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766, 769 (Colo. App. 2000) ("[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.") (citations omitted).
This Court has carefully reviewed the Amended Complaint; it does not include any allegation of compliance with the CGIA's notice provision, nor any allegations that could be liberally construed as alleging such compliance. [#14.] Indeed, Martin concedes that she has not alleged compliance with the CGIA notice provisions. [See #64, #67, and #68.] "When a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of 'fact' that the plaintiff failed to comply with the notice provisions." Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 840. "This lack of compliance, then, is a jurisdictional issue." Id.
In her Response and surreplies, Martin argues that she was not aware of the notice provisions of the CGIA, and that the CGIA contains a provision exempting compliance for those who are unaware of the rule. [See #64, #67, and #68.] This is not an accurate reading of the statute.
First, the plain language of the statute simply does not exempt those who are unaware of the notice provision. See Colo. Rev. Stat. § 25-10-109. To be sure, "[u]nlike under ordinary statutes of limitations, a plaintiff cannot invoke equitable defenses such as waiver, tolling, or estoppel to overcome" the CGIA's notice provision. City & Cty. of Denver v. Crandall, 161 P.3d 627, 633 (Colo. 2007) (en banc). Thus, Martin's reliance on her ignorance of the law is unavailing. See Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 854 (Colo. App. 2007) ("ignorance of the law does not expand the statute of limitations"); see also Cooper v. NCS Pearson, Inc., 733 F.3d 1013, 1016 (10th Cir. 2013) (same).
Second, to the extent Martin contends she was not aware of her injuries until recently, and therefore, could not provide notice, the Court is not persuaded. At minimum, Martin was aware of her injuries on the date she initiated this lawsuit, January 16, 2018. [See #1 at p.4 (describing injuries of memory loss, stress, anxiety, depression, mental confusion, and mental anguish)]. Thus, she should have provided notice no later than July 17, 2018. However, Martin concedes that she has not complied with the notice provision and was not even aware of the requirement until the Defendants filed their Motion on April 16, 2019. [#64 at p.2.] Consequently, the Court concludes that it lacks subject matter jurisdiction over Martin's claims for medical malpractice against the Defendants.
CONCLUSION
For the above reasons, the Court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED. [#55.] DATED: January 30, 2020
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).