IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02342-WJM-KLM

FRANKIE L. MCCONNELL,

Plaintiff,

v.

ANDREA CIRBO, and

DEBRA REILLY, 

Defendants.

ORDER ADOPTING THE RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the April 24, 2012 Recommendation by U.S.

Magistrate Judge Kristen L. Mix (ECF No. 35) (the “Recommendation”) that Defendants’

Motion to Dismiss (ECF No. 24) be granted in part and denied in part. The

Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);

Fed. R. Civ. P. 72(b).

I. BACKGROUND

The facts relevant to a resolution of the Motion to Dismiss are detailed in the

Recommendation. Briefly, Plaintiff, proceeding pro se, is a state prisoner incarcerated

at the Colorado Department of Corrections (“CDOC”) La Vista Correctional Facility. 

(Am. Compl. (ECF No. 9.)) Defendants Andra Cirbo and Debra Reilly are employees of

the CDOC. (Id.) This lawsuit arises from Plaintiff’s claims that she fell while working in

the prison kitchen facility, and that she received inadequate medical treatment following

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C/O Trujillo is not named as a defendant in this case. (ECF No. 9 at 1.) 1

Defendant K. O’Brien was previously dismissed from this case pursuant to Fed. 2

R. Civ. P. 4(m) based on Plaintiff’s failure to timely effect service. (ECF No. 22.)

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the accident. (Id. at 3.)

Plaintiff’s operative Complaint for purposes of resolving the Motions to Dismiss

was filed on November, 15 2011. (Id.) As explained more fully in the

Recommendation, the Court interprets Plaintiff’s operative Complaint to allege

violations of the Eighth Amendment’s prohibition against cruel and unusual punishment,

brought under 42 U.S.C. § 1983. (Id.) Plaintiff alleges four separate claims – (1) Claim

One – Plaintiff asserts that non-party Correctional Officer (“C/O”) Trujillo accompanied

Plaintiff to Denver General Hospital (“DGH”) after her fall, and that he refused Plaintiff’s

requests to call a nurse to bring a bedpan during the seven and a half hours that

Plaintiff remained strapped to a hospital backboard (id. at 4); (2) Claim Two – Plaintiff 1

alleges that Defendant Reilly, Plaintiff’s medical provider, failed to respond to several

“kites,” or requests for follow-up treatment, and refused to enter Plaintiff’s medical

condition into CDOC’s computer records (id. at 5); (3) Claim Three – Plaintiff asserts

that Defendant Cirbo ordered her to work in the “dishroom” where her fall had occurred

despite her fear of returning to work in that area (id. at 6); and (4) Claim Four – Plaintiff

contends that her doctor at DGH, “K. O’Brien,” failed to provide an adequate course of

treatment. (Id.) In her request for relief, Plaintiff seeks compensatory damages in the 2

amount of $5,000,000 for “mental anguish and pain suffering [sic]” and $2,000,000 for

“failure to act negligence [sic],” along with payment for “all rehabilitate’s [sic] cost” and

any future medical treatment that may be required. (Id. at 8.)

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On January 26, 2011, Defendants filed their Motion to Dismiss requesting that

the Court dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of

jurisdiction over the subject matter, failure to state a claim upon which relief can be

granted, and qualified immunity. (ECF No. 24.) On February 21, 2012, Plaintiff filed

her Response to Defendants’ Motion (ECF No. 29), and Defendants filed their Reply to

Plaintiff’s Response on March 5, 2012 (ECF No. 30). 

On April 24, 2012, the Magistrate Judge issued her Recommendation that

Defendants’ Motion to Dismiss be granted in part and denied in part. (ECF No. 35.) 

Specifically, the Magistrate Judge recommends that: (1) Plaintiff’s first and third claims

be dismissed with prejudice, and that Defendant Cirbo be dismissed from this action;

and (2) Plaintiff’s second claim against Defendant Reilly in her individual capacity be

permitted to proceed. (Id.) On May 7, 2012, Plaintiff filed a timely Objection to the

Recommendation. (ECF No. 37.)

 For the reasons stated below, Plaintiff’s objections to the Recommendation are

overruled, the Magistrate Judge’s Recommendation is adopted in its entirety, and

Defendants’ Motion to Dismiss is granted in part and denied in part.

II. LEGAL STANDARDS

When a Magistrate Judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge

“determine de novo any part of the magistrate judge’s [recommendation] that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district

court judge may accept, reject, or modify the recommendation; receive further

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evidence; or return the matter to the magistrate judge with instructions.” Id.

Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction

over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not

a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that

the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction

rather than the allegations of the complaint. 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). The burden of

establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v.

Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction

“must dismiss the cause at any stage of the proceeding in which it becomes apparent

that jurisdiction is lacking.” Id.

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). When considering a Rule

12(b)(1) motion, however, the court may consider matters outside the pleadings without

transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d

1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject

matter jurisdiction depends, a district court may not presume the truthfulness of the

complaint’s “factual allegations . . . [and] has wide discretion to allow affidavits, other

documents, and [may even hold] a limited evidentiary hearing to resolve disputed

jurisdictional facts under Rule 12(b)(1).” Id.

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the

sufficiency of the allegations within the four corners of the complaint after taking those

allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To

survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as

true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the

plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.

2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Sutton v. Utah State Sch. for

the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).

The concept of “plausibility” at the dismissal stage refers not to whether the

allegations are likely to be true; the court must assume them to be true. See Christy

Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192-93 (10th Cir. 2009). 

The question is whether, if the allegations are true, it is plausible and not merely

possible that the plaintiff is entitled to relief under the relevant law. See Robbins v.

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).

Further, in considering the Magistrate Judge’s Recommendations in the instant

case, the Court is also mindful of Plaintiff’s pro se status, and accordingly, reads her

pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 

However, such liberal construction is intended merely to overlook technical formatting

errors and other defects in Plaintiff’s use of legal terminology and proper English. See

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Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve

Plaintiff of the duty to comply with various rules and procedures governing litigants and

counsel or the requirements of the substantive law and, in these regards, the Court will

treat Plaintiff according to the same standard as counsel licensed to practice law before

the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v.

San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).

III. ANALYSIS

The Magistrate Judge’s Recommendation contains numerous findings and

conclusions. (ECF No. 25 at 23.) Plaintiff objects to the recommendations that

Plaintiff’s first and third claims for relief be dismissed with prejudice, and that Defendant

Cirbo be dismissed from this action. (ECF No. 37 at 1-3.) The Court will review de

novo each portion to which a specific objection was made. Otherwise, the Court will

review the Recommendation for clear error. Fed. R. Civ. P. 72(b)(3).

1. Plaintiff’s Objections

Plaintiff objects to the Magistrate Judge’s recommendations that Plaintiff’s first

and third claims be dismissed with prejudice, and that Defendant Cirbo be dismissed

from this action. (ECF No. 37 at 1-3.) Plaintiff’s objections closely mirror arguments

she made in her briefs. (Id.) The Court has thoroughly reviewed the Recommendation

and agrees with the Magistrate Judge regarding these claims.

A. First Claim

Plaintiff’s first claim, brought against both Defendants under 42 U.S.C. § 1983,

alleges that non-parties refused Plaintiff’s requests to call a nurse to bring a bedpan

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during the seven and a half hours that Plaintiff remained strapped to a hospital

backboard. (ECF No. 9 at 4.) “Personal participation is an essential allegation in a

Section 1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)

(citations omitted). Therefore, “individual liability under [42 U.S.C.] § 1983 must be

based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel,

118 F.3d 1416, 1423 (10th Cir. 1997) (citing Grimsley v. MacKay, 93 F.3d 676, 679

(10th Cir. 1996)).

The Court agrees with the Magistrate Judge that Plaintiff makes no allegations

related to the conduct of either Defendant Reilly or Defendant Cirbo under her first

claim, and has therefore failed to allege facts sufficient to link any alleged constitutional

violation in her first claim and either of the Defendants. (ECF No. 35 at 7-8.) 

Accordingly, Plaintiff’s first claim is dismissed with prejudice against Defendants Cirbo

and Reilly. 

B. Third Claim

In her third claim for relief, Plaintiff alleges that Defendant Cirbo ordered Plaintiff

to work in the dish room where her fall had occurred despite Plaintiff’s fear of returning

to that room, and that such conduct constituted “deliberate indifference or reckless

disregard for [Plaintiff’s] safety.” (ECF No. 9 at 6; ECF No. 29 at 5.) The Court

construes Plaintiff’s third claim to allege a claim for failure to protect in violation of the

Eighth Amendment. 

To succeed on an Eighth Amendment claim for failure to protect, a plaintiff must

demonstrate that objectively, she is incarcerated under conditions that pose a

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substantial risk of serious harm, and that subjectively, prison officials were deliberately

indifferent to her safety. See, e.g., Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir.

2006). “Mere negligence does not constitute deliberate indifference; deliberate

indifference is equivalent to recklessness in this context.” Id. (quoting Verdicia v.

Adams, 327 F.3d 1171, 1175 (10th Cir. 2003)). Thus, “the official must ‘both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.’” Riddle v. Mondragon, 83 F.3d 1197,

1204 (10th Cir. 1996). However, “plaintiff’s allegations must furnish more than a

conclusory claim of being afraid.” Id. (affirming dismissal of plaintiffs’ failure to protect

claim based on allegations that plaintiffs were constantly in fear of attacks by other

inmates who might have discovered their sex offender status); see also Lesley v.

Whetzel, 110 F. App’x 851, 853 (10th Cir. 2004) (affirming dismissal of plaintiff’s failure

to protect claim based on a fear of incarceration in the same cell unit as an inmate who

had previously attacked him).

The Court agrees with the Magistrate Judge that Plaintiff has not alleged

sufficient facts to demonstrate that she was exposed to a substantial risk of serious

bodily harm as a result of Defendant Cirbo’s orders. (ECF No. 35 at 16-17.) As the

Magistrate Judge stated, beyond Plaintiff’s general contention of fear, Plaintiff has not

alleged any facts to demonstrate that a risk of serious harm awaited her in the dish

room. Therefore, Plaintiff’s third claim against Defendant Cirbo is dismissed with

prejudice. 

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While Plaintiff’s Objection does not specifically differentiate between official and 3

individual capacity claims, the Court liberally construes Plaintiff’s Objection as objecting to the

Magistrate Judge’s recommendation regarding Plaintiff’s official capacity claims. (ECF No. 37

at 1-3.)

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C. Official Capacity Claims

To the extent that Plaintiff brings her claims against Defendants in their official

capacities, Defendants also assert that they are entitled to Eleventh Amendment

immunity. (ECF No. 24 at 4.)

3

The doctrine of Eleventh Amendment sovereign immunity bars “a citizen from

suing his own State under the federal-question head of [subject-matter] jurisdiction.” 

Alden v. Maine, 527 U.S. 706, 727 (1999) (citing Hans v. Louisiana, 134 U.S. 1, 14-15

(1890)). Plaintiff’s claims against Defendants in their official capacities constitutes a

suit against their employer, the CDOC. See Blake v. Webster, No. 10-cv-0162, 2011

WL 7485055, at *3 (D. Colo. Dec. 13, 2011) (citing Hafer v. Melo, 502 U.S. 21, 25

(1991)) (suit against a state official in his or her official capacity is treated as a suit

against the state). The CDOC is an agency immune from suit under the doctrine of

Eleventh Amendment immunity. See Wood v. Milyard, 414 F. App’x 103, 105 (10th Cir.

2011). Thus, to the extent that Plaintiff requests monetary damages from Defendants

in their official capacities, her claims are barred. See Henderson v. Jones, 378 F. App’x

808, 809-10 (10th Cir. 2010) (“[T]o the extent that [plaintiff] has raised claims for

monetary damages against the defendants in their official capacities, such claims are

barred by the Eleventh Amendment.”).

In accordance with the foregoing, Plaintiff’s claims against Defendants in their

official capacities seeking monetary damages are dismissed without prejudice for lack

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of subject matter jurisdiction due to Eleventh Amendment immunity. See Garman v.

Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010) (“Generally, a

dismissal for lack of subject matter jurisdiction is without prejudice and does not have a

preclusive effect.”).

2. Findings Without Objection

Neither party has objected to the following recommendations of the Magistrate

Judge: (1) that Plaintiff’s second claim for relief against Defendant Reilly in her

individual capacity be permitted to proceed; (2) that Defendant Reilly is not entitled to

qualified immunity at this stage of the proceeding; and (3) that Defendants’ Motion to

Dismiss be denied with respect to Plaintiff’s requested monetary damages related to

her second claim for relief against Defendant Reilly. (ECF No. 35 at 11-15, 17-19.) 

The Court has reviewed these rulings of the Magistrate Judge and finds no clear

error in these determinations. See Fed. R. Civ. P. 72(b) advisory committee’s note;

Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that

Congress intended to require district court review of a magistrate's factual or legal

conclusions, under a de novo or any other standard, when neither party objects to

those findings”). Accordingly, the Recommendation is adopted with respect to these

claims.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiff’s Objections (ECF No. 37) to the Magistrate Judge’s April 24, 2012

Recommendation (ECF No. 35) are OVERRULED and the Recommendation is

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ADOPTED in its entirety;

2. Defendants’ Motion to Dismiss (ECF No. 24) is GRANTED IN PART and

DENIED IN PART;

3. Defendants’ Motion to Dismiss Plaintiff’s first and third claims is GRANTED, and

these claims are DISMISSED WITH PREJUDICE; 

4. Defendants’ Motion to Dismiss Plaintiff’s second claim against Defendant Reilly

in her individual capacity is DENIED; 

5. Plaintiff’s claims against Defendants in their official capacities seeking monetary

damages are DISMISSED WITHOUT PREJUDICE; and 

6. Defendant Andra Cirbo is DISMISSED as a party-Defendant in this action.

Dated this 20 day of August, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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