The only other defendant in this action is “Nurse Jane Doe.” Docket No. 6 at 1. 1

Plaintiff has not identified this defendant and there is no indication in the docket that

plaintiff has served this individual with any of the pleadings. “If a defendant is not

served within 120 days after the complaint is filed, the court—on motion or on its own

after notice to the plaintiff—must dismiss the action without prejudice against that

defendant or order that service be made within a specified time. But if the plaintiff

shows good cause for the failure, the court must extend the time for service for an

appropriate period.” Fed. R. Civ. P. 4(m). Given that plaintiff has not served or shown

good cause for his failure to serve Nurse Jane Doe, the Court will dismiss his claim

against Nurse Jane Doe without prejudice pursuant to Rule 4(m). See Roper v.

Grayson, 81 F.3d 124, 126 (10th Cir. 1996) (observing that dismissal may be

appropriate when unnamed defendants remain unidentified for a lengthy period of

time).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

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

DWAYNE A. JONES,

Plaintiff,

v.

ERWIN MOZER, M.D., and

NURSE JANE DOE, Individually,

Defendants.

ORDER

This matter is before the Court on the Recommendation of United States

Magistrate Judge (the “Recommendation”) [Docket No. 51]. The magistrate judge

recommends that the Court grant defendant Erwin Mozer’s Motion to Dismiss [Docket

No. 34] and dismiss Claim Three against Dr. Mozer. Docket No. 51 at 11. Plaintiff 1

filed timely objections [Docket No. 54] to the Recommendation. When a party files

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timely objections to a magistrate judge’s recommendation on a dispositive motion, a

district court reviews the objected-to portion of the recommendation de novo. See Fed.

R. Civ. P. 72. Because plaintiff is proceeding pro se, the Court liberally construes his

pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991), but may not act as his advocate. See Hall, 935 F.2d

at 1110. 

Because the Recommendation provides a thorough recitation of the factual

background of this case, the Court will turn directly to the claim at issue. Plaintiff’s

Eighth Amendment claim arises out of medical treatment he received at the Arapahoe

County Detention Facility. Docket No. 6 at 4. Plaintiff claims that a physician at the

Arapahoe County Detention Facility, defendant Mozer, prescribed Risperdal for him to

help with mental health issues. Id. At the time, plaintiff alleges that he told Dr. Mozer

that his doctor at the Veteran’s Administration required that he have a blood test done

2-3 days after starting medication to make sure that the medication did not raise his

blood sugar level and that Dr. Mozer said that he would order a blood test. Id.

Approximately three months later, plaintiff asked Dr. Mozer why he had not received a

blood test. Dr. Mozer told plaintiff that he thought that the blood test had been done

and requested one the next morning. Id. Plaintiff states that, because Risperdal raised

his blood sugar levels, he is now diabetic. Id. at 9. Plaintiff contends that Dr. Mozer

violated his Eighth Amendment rights because Dr. Mozer knew that Risperdal could

cause diabetes, yet he “negligently fail[ed] to provide [plaintiff] with the necessary blood

sample.” Id.

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At the time his claim arose, plaintiff was a pretrial detainee. In cases involving

the right to custodial medical care, “pretrial detainees are protected under the

[Fourteenth Amendment’s] Due Process Clause rather than the Eighth Amendment.” 

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002) (citations and internal

quotation marks omitted). Nevertheless, the Court “applies an analysis identical to that

applied in Eighth Amendment cases brought pursuant to [42 U.S.C.] § 1983.” Id. To

state a cognizable Eighth Amendment claim for denial of medical care, plaintiff must

allege “acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A “deliberate

indifference” claim involves both an objective and subjective component. Sealock v.

Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). In this case, plaintiff must show both that

he suffered a “sufficiently serious” harm (the objective element) and that defendant

knew and disregarded “an excessive risk” to plaintiff’s health (the subjective element). 

See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). 

In his objection, plaintiff does not dispute the dismissal of his vicarious liability

claim. See Docket No. 54. Additionally, neither party disputes that diabetes is a

serious medical condition, that Dr. Mozer was aware of the risks associated with

Risperdal, nor the need to order a blood test. Thus, the only disputed issue is whether

plaintiff’s complaint sufficiently alleges that Dr. Mozer was aware of and disregarded an

excessive risk to plaintiff’s health. 

While an Eighth Amendment violation can occur where medical care is

unnecessarily delayed, Sealock, 218 F.3d at 1210, plaintiff must show that the “delay

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Even if the Court were to consider the additional allegations that Dr. Mozer 2

feigned surprise and said the delay was “no big deal,” the Court finds that these

allegations would not state a viable Eighth Amendment claim because they show only

that Dr. Mozer inadvertently or negligently failed to provide the blood test. See Duffield

v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (a prison official’s “negligent

diagnosis or treatment of a medical condition does not constitute a medical wrong

under the Eighth Amendment, as medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.”) (citations and internal quotations

omitted). 

4

resulted in substantial harm”, id., and resulted in “the unnecessary and wanton infliction

of pain.” Estelle, 429 U.S. at 104. Thus, a delay in treatment that is unintentional, or

even negligent, however serious the harm, does not violate the Constitution. See id. at

104–05 (deliberate indifference “is manifested . . . by prison guards in intentionally

denying or delaying access to medical care”); see also Hood v. Prisoner Health Servs.,

Inc., 180 F. App’x 21, 25 (10th Cir. 2006) (“inadvertent or negligent failure to provide

medical care, however serious the consequences does not rise to deliberate

indifference to serious medical needs.”); Fitzgerald v. Corrs. Corp. of Am., 403 F.3d

1134, 1143 (10th Cir. 2005) (“Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.”) (internal quotation marks omitted).

In his objection, plaintiff alleges additional facts to support his claim that Dr.

Mozer intentionally failed to order the blood test. Plaintiff asserts that, when he notified

Dr. Mozer in February that he had never gotten a blood test, Dr. Mozer “faked like he

was surprised” and said that it was “no big deal.” Docket No. 54 at 4. Additionally,

plaintiff claims that one of the nurses at the detention facility told him that Dr. Mozer

“stated that [the blood test] didn’t have to be done.” Id. 

2

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Generally, the sufficiency of a complaint must rest on its contents alone. See

Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, these exceptions to

the general rule have been identified as follows: (1) documents that the complaint

incorporates by reference; (2) documents referred to in the complaint if they are central

to plaintiff’s claim; and (3) matters of which a court may take judicial notice. Id. Here,

neither plaintiff’s additional facts nor the medical records fall within any of these

exceptions. See Colo. Legal Serv. v. Legal Aid Nat’l Serv., No. 08-cv-00258-MSKKMT, 2009 WL 347500, at *2 (D. Colo. Feb. 11, 2009) (finding that the court is required

to disregard supplemental material not within the “four corners of the Complaint”).

Although plaintiff’s motion [Docket No. 44] to file a second amended complaint was

denied, it was denied without prejudice. Plaintiff had the opportunity to cure the

procedural deficiencies identified in the minute order and re-file his motion, Docket No.

47, which he failed to do. Although plaintiff is proceeding pro se, because he had an

opportunity to cure the deficiencies in his complaint, the Court will not consider

plaintiff’s additional facts or medical records for the purposes of the motion to dismiss. 

See, e.g., Gee, 627 F.3d at 1186 (noting that before dismissing a pro se complaint

courts should “explain the pleading’s deficiencies so that a prisoner with a meritorious

claim can then submit an adequate complaint.”). 

The Court finds no error with the Recommendation. The third claim alleges that

plaintiff told Dr. Mozer of the need for a blood test, that Dr. Mozer agreed to order one,

that three months later, when told that plaintiff had not had a blood test, Dr. Mozer told

plaintiff that he thought that such a test had been ordered and ordered one the next

day. Docket No. 6 at 4. These allegations assert only that Dr. Mozer negligently failed

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to order the blood test. See, e.g., Docket No. 6 at 9 (“Defendant breached that duty of

care in negligently failing to provide” the blood test); id. (“defendant while acting in the

scope of his employment [ ] committed negligent acts and omissions”). However, it is

well settled that allegations of negligence alone are insufficient to establish an Eighth

Amendment violation. See Estelle, 429 U.S. at 106 (“a complaint that a physician has

been negligent in diagnosing or treating a medical condition does not state a valid claim

of medical mistreatment under the Eighth Amendment.”). Even if the Court assumes

that plaintiff used the wrong legal terminology when he used the term “negligent,” the

acts described at most only identify negligent behavior by Dr. Mozer. Accordingly,

plaintiff’s Eighth Amendment claim against defendant Erwin Mozer is dismissed for

failure to state a claim upon which relief may be granted.

For the foregoing reasons, it is 

ORDERED that the Recommendation of United States Magistrate Judge [Docket

No. 51] is ACCEPTED. It is further 

ORDERED that Defendant Erwin Mozer, M.D.’s Motion to Dismiss Plaintiff’s

Prisoner Complaint [#6] [Docket No. 34] is GRANTED. It is further

ORDERED that plaintiff’s third claim for relief against defendant Erwin Mozer is

DISMISSED. It is further 

ORDERED that Defendant Erwin Mozer, M.D.’s Rule 37 Motion for the Sanction

of Dismissal [Docket No. 73] is DENIED as moot. It is further

ORDERED that plaintiff’s claim against defendant Nurse Jane Doe is

DISMISSED. It is further

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ORDERED that this case shall be dismissed in its entirety. 

DATED August 30, 2012.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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