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Be advised that all parties shall have fourteen (14) days after service hereof to serve and

file any written objections in order to obtain reconsideration by the District Judge to whom this

case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify

those findings or recommendations to which the objections are being made. The District Court

need not consider frivolous, conclusive or general objections. A party's failure to file such

written objections to proposed findings and recommendations contained in this report may bar

the party from a de novo determination by the District Judge of the proposed findings and

recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §

636(b)(1). Additionally, the failure to file written objections to the proposed findings and

recommendations within fourteen (14) days after being served with a copy may bar the

aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or

adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02189-PAB-MEH

DWAYNE JONES,

Plaintiff,

v.

DR. ERWIN MOZER, MD.

NURSE JANE DOE, Individually,

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

Before the Court is Defendant Erwin Mozer, M.D.’s Motion to Dismiss [filed January 26,

2012; docket #34]. In accordance with 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1C, the

matter is referred to this Court for recommendation [docket #35]. The matter is fully briefed, and

oral argument would not materially assist the Court in its adjudication of the motion. Based on the

record contained herein, the Court RECOMMENDS that Defendant’s motion be granted.

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According to the docket, Plaintiff is now housed at the Arkansas Valley Correctional

Facility. 

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BACKGROUND

On August 22, 2011, Plaintiff, proceeding pro se, initiated this action by filing a complaint

pursuant to 42 U.S.C. § 1983. (Docket #1.) Upon initial review of the complaint, Magistrate Judge

Shaffer ordered Plaintiff to file an amended complaint within thirty days. (Docket #5.) In

accordance with Magistrate Judge Shaffer’s order, Plaintiff filed his Amended Complaint on

October 13, 2012, naming the Board of County Commissioners for Arapahoe County, Colorado

(“BOCC”), Dave Welcher, Erwin Mozer, M.D., and Nurse Jane Doe as defendants. (Docket #6.)

“After a considerable amount of thought, discussion, and consideration,” Plaintiff successfully

moved to dismiss Defendants BOCC and Welcher from this lawsuit. (See dockets ##38, 41.) With

the exception of an unidentified nurse, only Defendant Mozer remains. 

Although Plaintiff’s Amended Complaint asserts four causes of action, Plaintiff’s contention

against Defendant Mozer is limited to Claim Three. (Docket #6 at 9.) In Claim Three, Plaintiff

alleges that Defendant Mozer violated his Eighth Amendment rights by failing to provide Plaintiff

with proper medical services during Plaintiff’s incarceration at Arapahoe County Detention Facility

(“ACDF”).2

 (Id.) Plaintiff entered ACDF on June 8, 2009, and was given an intake medical

evaluation upon arrival. (Id. at 4.) Plaintiff claims he was in “reasonably good health” at the time.

(Id.) Although Plaintiff suffered from “mental health issues,” he insists he was not diabetic. (Id.)

On October 31, 2009, Defendant prescribed Plaintiff with an anti-psychotic medication known as

Risperdal. (Id.) When Plaintiff met with Defendant later that day, Plaintiff expressed concern

regarding the effect of the medication on his blood sugar levels. (Id.) In particular, Plaintiff noted

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Plaintiff’s Amended Complaint states that Plaintiff met with Defendant on February 2,

2009; however, the Court reads the date as a typographical error. 

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that his previous doctor required Plaintiff to provide a blood sample within two to three days after

starting the medication to ensure his blood sugar levels were not elevated. (Id.) Defendant stated

he would order a blood draw. (Id.) 

Plaintiff began taking Risperdal on November 1, 2009. (Id.) For the next several weeks,

Plaintiff continued to ask medical staff for a blood test; however, no test was performed. (Id.)

When Plaintiff met with Defendant again on February 2, 20103

, he asked Defendant why his blood

sugar was never checked. (Id.) Defendant told Plaintiff he thought it had been done, and

immediately requested a blood test for the following morning. (Id.) The subsequent blood test

revealed that Plaintiff had diabetes. (Id.) 

Plaintiff attributes his diabetes to Defendant’s negligence, arguing that Defendant “grossly

deviated from [the] standard of care.” (Id. at 9.) In addition to direct liability, Plaintiff also advances

a theory of vicarious liability based upon Defendant’s alleged failure to train and supervise other

employees who also acted negligently. (Id.) As relief, Plaintiff seeks $1,250,000 from Defendant

in punitive damages, $1,250,000 in compensatory damages, and reimbursement for all future

medical costs arising from the treatment of Plaintiff’s diabetes. (Id. at 13.) 

In response to the Amended Complaint, Defendant Mozer filed the present Motion to

Dismiss on January 26, 2012. (Docket #34.) Defendant contends that Claim Three should be

dismissed because Plaintiff has failed to allege sufficient facts in support of either theory of liability.

Plaintiff filed a response to Defendant Mozer’s Motion to Dismiss on February 17, 2012, arguing

that Defendant possessed a sufficiently culpable state of mind to support Plaintiff’s claim of

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deliberate indifference. (Docket #46.) In support of this contention, Plaintiff attached excerpts of

medical records detailing the medication and treatment he received at ACDF. (See id. at 5-13.)

Defendant Mozer filed a reply on March 5, 2012, urging the Court to limit its analysis to the “four

corners” of the Amended Complaint. (Docket #49 at 2.) When so limited, Defendant maintains that

Plaintiff’s Amended Complaint fails to state a claim upon which relief can be granted. (Id. at 8.)

Notably, Plaintiff attempted to file a second amended complaint on February 16, 2012,

adding a negligence claim. (Docket #44.) The Court denied Plaintiff’s motion without prejudice

for failure to comply with Fed. R. Civ. P. 11(a) and D.C. Colo. LCivR 5.1G. (Docket #47.) The

Court granted Plaintiff leave to cure his procedural deficiencies and re-file his motion on or before

March 2, 2012. (Id.) Plaintiff did not renew his request; thus, the Court considers the present motion

based upon the facts asserted in the Amended Complaint. 

LEGAL STANDARD

I. Dismissal Under Fed. R. Civ. P. 12(b)(6)

“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. 652, 129

S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow

“the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the

complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal

conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court must consider

the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951.

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If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at

1950.

When considering a motion to dismiss under Rule 12, the Court “must limit its review to the

four corners of the Complaint, but may also consider documents attached to the complaint as

exhibits, as well as unattached documents which are referred to in the Complaint[.]” Colo. Legal

Serv. v. Legal Aid Nat’l Serv., No. 08-cv-00258-MSK-KMT, 2009 WL 347500, at *2 (D. Colo. Feb.

11. 2009) (citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001)). In accordance with

this principle, the Court must disregard supplemental factual material attached to the parties’

motions or response. Id. In light of this mandate, the Court will not consider the medical records

attached to Plaintiff’s response. 

II. Dismissal of a Pro Se Plaintiff’s Complaint

A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not

supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory

on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations

and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably

read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor

syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the

proper function of the district court to assume the role of advocate for the pro se litigant.” Id. A sua

sponte dismissal “without affording the plaintiff notice or an opportunity to amend is proper only

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‘when it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him

an opportunity to amend his complaint would be futile.’” Curley v. Perry, 246 F.3d 1278, 1281-82

(10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks omitted)).

ANALYSIS

As noted above, Plaintiff alleges both direct and vicarious liability. Defendant argues

that Plaintiff has failed to state a claim under either theory. Thus, the Court will address each

theory of liability in turn. 

A. Direct Liability

Claim Three asserts, in part, that Defendant violated Plaintiff’s Eighth Amendment rights

directly by negligently failing to provide Plaintiff with blood testing. (Docket #6 at 9.) As a result

of this failure, Plaintiff believes he developed diabetes. (Id.) Defendant argues that Plaintiff’s

Amended Complaint fails to sufficiently state the elements of a deliberate indifference claim, as set

forth in Estelle v. Gamble, 429 U.S. 97 (1975). (Docket #34 at 4.) 

Under the Eighth Amendment, prisoners are constitutionality entitled to “humane conditions

of confinement guided by ‘contemporary standards of decency.’” Penrod v. Zavaras, 94 F.3d 1399,

1405 (10th Cir. 1996) (quoting Estelle, 429 U.S. at 103). Prisoners state a claim of cruel and

unusual punishment under the Eighth Amendment by alleging prison officials demonstrated

“deliberate indifference to a prisoner’s serious illness or injury,” or that prison officials “have, with

deliberate indifference,” involuntarily exposed a prisoner to conditions “that pose an unreasonable

risk of serious damage to [the inmate’s] future health.” Helling v. McKinney, 509 U.S. 25, 35, 113

S.Ct. 2475, 2481 (1993); see also Estelle, 429 U.S. at 105.

The test for deliberate indifference is both objective and subjective. Marta v. Saiz, 427 F.3d

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745, 752 (10th Cir. 2005). To meet the objective component of the test, the alleged harm must rise

to a level sufficiently serious to be cognizable under the cruel and unusual punishment clause of the

Eight Amendment. Id. at 752-53. A medical need is sufficiently serious if “it has been diagnosed

by a physician as mandating treatment or one that is so obvious a lay person would easily recognize

the necessity for a doctor’s attention.” Id. at 753 (quoting Sealock v. Colorado, 218 F.3d 1205, 1210

(10th Cir. 2000)).

Looking first to the objective component of the test, Plaintiff argues that developing diabetes

constitutes a sufficiently serious harm because the disease is “life altering” and increases the risk

that Plaintiff may lose an appendage, go blind, or suffer from a heart attack or stroke. (Docket #46

at 2.) Defendant does not dispute that Plaintiff has diabetes, but instead argues that Plaintiff’s

description of the severity of the illness is too conclusory to support a claim for relief under the

Eighth Amendment. (Docket #34 at 6.) The Court finds Plaintiff’s view more persuasive. 

Diabetes is a disease that both physicians and lay persons recognize requires treatment. The

Tenth Circuit has found that, left untreated, diabetes constitutes a sufficiently serious medical

condition to support an Eighth Amendment claim. See Lemay v. Winchester, 382 F. App’x 698, 703

(10th Cir. 2010) (finding a defendant was deliberately indifferent to a plaintiff’s serious medical

needs when the defendant failed to adequately treat the plaintiff’s diabetes).

Having determined Plaintiff meets the objective component of the deliberate indifference

test, the Court now turns to whether Plaintiff has alleged sufficient facts to meet the subjective

component of the test. To meet the subjective component, a plaintiff must demonstrate the

defendant “knew he faced a substantial risk of harm and disregarded that risk, by failing to take

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reasonable measures to abate it.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006)

(quoting Kikumura v. Osagie, 461 F.3d 1269, 1293 (10th Cir. 2006)). The subjective component

requires an “inquiry into a prison official’s state of mind when it is claimed that the official has

inflicted cruel and unusual punishment.” Kikumura, 461 F.3d at 1293 (quoting Farmer v. Brennan,

511 U.S. 825, 838, 114 S. Ct. 1970 (1994)). Officials must both know of and disregard an excessive

risk to inmate health or safety. Id. 

In the context of 1983 suits, “inadvertent failure to provide adequate medical care or

negligence in diagnosing or treating a medical condition does not violate the Eighth Amendment.”

Braxton v. Wyandotte County Sheriff’s Dep’t, 205 F. App’x 791, 793 (10th Cir. 2006). “So long as

a medical professional provides a level of care consistent with the symptoms presented by the

inmate, absent evidence of actual knowledge or recklessness, the requisite state of mind cannot be

met.” Self v. Crum, 439 F.3d 1227, 1233 (10th Cir. 2006). 

In this case, both the facts and legal conclusions offered by Plaintiff undermine his alleged

Eighth Amendment claim. Factually, Plaintiff’s Amended Complaint states that Defendant agreed

to order a blood test two to three days after Plaintiff began taking Risperdal. (Docket #6 at 4.)

When Plaintiff confronted Defendant about why the blood test had not been performed,

“[Defendant] informed [Plaintiff] that he thought it had been done[.]” (Id.) Upon realizing that

Plaintiff’s blood had not been tested, Defendant ordered the test immediately. Id. Accepting the

facts alleged in the Amended Complaint as true, Defendant was unaware of the failure to test, but

attempted to remedy the problem as soon as he discovered it. Defendant’s apparent ignorance

regarding the testing distinguishes this case from Self insofar as the failure to test was not the result

of a deliberate decision, but rather a mistaken belief about whether the testing had already been

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performed. Defendant’s initial agreement to order the test and his immediate action upon realizing

it had not been performed provide further evidence of his state of mind, as they suggest that

Defendant never intended to withhold testing. At most, the facts show that Defendant might have

inadvertently failed to order the test despite his intent to do so. Such inadvertence is not sufficient

to establish liability under the Eighth Amendment. See Estelle, 429 U.S. at 105-06; see also Self ,

439 F.3d at 1232. 

Plaintiff’s legal conclusions are also problematic, as Plaintiff alleges that Defendant

negligently failed to provide proper medical treatment. Even if this were an accurate inference in

light of the facts alleged, the Tenth Circuit has repeatedly confirmed that the Eighth Amendment

does not provide a cause of action for medical negligence. Childress v. Harms, 449 F. App’x 758,

761 (10th Cir. 2011) (citing Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)). Plaintiff

also contends that Defendant demonstrated “willful and wanton indifference,” but this conclusory

statement is inconsistent with the facts asserted in the Amended Complaint. (Docket #6 at 4.) 

Because Plaintiff’s factual and legal assertions do not support a claim for relief under the

Eighth Amendment, the Court recommends the District Court find that Plaintiff cannot prevail on

his theory of direct liability. 

B. Vicarious Liability

Plaintiff also alleges that Defendant is vicariously liable for the violation of his

constitutional rights because Defendant failed to adequately train and supervise the medical staff of

ACDF. (Docket #6 at 9.) Defendant contends that Plaintiff’s theory does not withstand the

plausibility test of Iqbal. 

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As a general rule, an individual cannot be liable under section 1983 unless he or she

personally participated the alleged violation. See Iqbal, 129 S. Ct. at 1948. In Dodds v. Richardson,

614 F.3d 1185 (10th Cir. 2010), the Tenth Circuit recognized that the Supreme Court, in Iqbal,

further narrowed the already limited theory of supervisory liability. The Dodds court explained

Iqbal’s holding that “when a plaintiff sues an official under Bivens or § 1983 for conduct ‘arising

from his or her superintendent responsibilities,’ the plaintiff must plausibly plead and eventually

prove not only that the official’s subordinates violated the Constitution, but that the official by virtue

of his own conduct and state of mind did so as well.” Dodds, 614 F.3d at 1198 (quoting Iqbal, 129

S. Ct. at 1949). A plaintiff may allege supervisory liability by “showing the defendant-supervisor

personally directed the violation or had actual knowledge of the violation and acquiesced in its

continuance.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996.) 

Although Plaintiff does not allege that Defendant was a supervisor, the Court will liberally

infer this fact from Plaintiff’s assertion that Defendant had a duty to supervise other employees at

ACDF. (See docket #6 at 9.) However, even if Defendant was a supervisor, Plaintiff has provided

no facts showing liability for reasons beyond Defendant’s status. Without such information, the

Court cannot plausibly find that Defendant “directed the violation or had actual knowledge of the

violation and acquiesced in its continuance.” See Jenkins, 81 F.3d at 994. If anything, the facts

alleged by Plaintiff show that Defendant lacked knowledge of the medical staff’s supposed failure

and, upon becoming aware of the failure, acted immediately to correct it. (See docket #6 at 4.) 

Accepting the facts asserted in the Amended Complaint as true, the Court finds that Plaintiff

has failed to advance a plausible Eighth Amendment claim under either a direct or vicarious theory

of liability. Accordingly, the Court recommends the District Court dismiss Claim Three and

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Defendant Mozer from this action. 

CONCLUSION

 As described above, the Court finds that Plaintiff has failed to state a claim against

Defendant Mozer upon which relief can be granted. Therefore, the Court RECOMMENDS that

Defendant Erwin Mozer M.D.’s Motion to Dismiss [filed January 26, 2012; docket #34] be granted

and that the District Court dismiss Claim Three against Defendant Mozer accordingly. 

Respectfully submitted at Denver, Colorado, this 28th day of March, 2012.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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