Hurd v. Dove

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 30, 2025
• Docket: 24-1376
• Status: Unpublished

Opinion

Appellate Case: 24-1376 Document: 17 Date Filed: 06/30/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 30, 2025 _________________________________ Christopher M. Wolpert Clerk of Court KIRK CORNELL HURD,

Plaintiff - Appellant,

v. No. 24-1376 (D.C. No. 1:23-CV-02110-PAB-KAS) STEPHANIE R. DOVE, NP, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, CARSON, and ROSSMAN, Circuit Judges. _________________________________

Plaintiff Kirk Cornell Hurd is an inmate with the Colorado Department of

Corrections. He asserted claims under 28 U.S.C. § 1983 arising from medical

treatment received from Nurse Practitioner Stephanie R. Dove. The district court

granted Ms. Dove’s motion to dismiss under Fed. R. Civ. P. 12(b)(6), and Mr. Hurd

appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-1376 Document: 17 Date Filed: 06/30/2025 Page: 2

I. Background

Mr. Hurd was diagnosed with cancer in July 2020 while incarcerated at the

Denver Reception and Diagnostic Center. A part of his treatment, doctors inserted a

gastronomy tube (“G-tube”), through which Mr. Hurd received nutrition for over a

year. On September 9, 2021, the G-tube was removed at an Aurora, Colorado

hospital, and that day, Mr. Hurd was returned to prison. Later that same day, he

experienced complications relating to the G-tube site and saw Ms. Dove at the prison.

Mr. Hurd alleges Ms. Dove ignored an obvious and serious danger to him because

she did not call the hospital to report the complication. He further alleges that as a

result, he incurred pain and suffering for more than 90 days.

On August 17, 2023, Mr. Hurd filed a complaint against the prison and two

unknown defendants. He asserted two claims for violations of the First, Fifth, and

Fourteenth Amendments, alleging the defendants interfered with his legal mail, his

access to the courts, and his ability to conduct legal research. A magistrate judge

found the complaint did not comply with the pleading requirements of Rule 8 of the

Federal Rules of Civil Procedure, and directed Mr. Hurd to file an amended

complaint. He did so on October 30, 2023, naming Ms. Dove as a defendant for the

first time and asserting a claim of deliberate indifference under the Eighth

Amendment for inadequate medical care.

Mr. Hurd amended his complaint twice more. In the third amended complaint

he named only Ms. Dove as the defendant and asserted two claims based on her

alleged failure to provide adequate care: (1) a claim for deliberate indifference to

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medical care in violation of the Eighth Amendment, brought under 42 U.S.C. § 1983,

and (2) a claim under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e. Ms. Dove moved to dismiss the claims under Rule 12(b)(6) of the Federal

Rule of Civil Procedure, and a magistrate judge recommended granting the motion.

Mr. Hurd objected, but the district court overruled his objections, adopted the

recommendation, and entered judgment against Mr. Hurd’s claims. This appeal

followed.

II. Discussion

We review a ruling on a motion to dismiss de novo, “accepting all well-

pleaded allegations of the complaint as true and considering them in the light most

favorable to the nonmoving party.” Johnson v. Smith, 104 F.4th 153, 167 (10th Cir.

2024) (internal quotation marks omitted). Because Mr. Hurd appears pro se, “we

liberally construe his filings, but we will not act as his advocate.” James v. Wadas,

724 F.3d 1312, 1315 (10th Cir. 2013).

The district court dismissed Mr. Hurd’s deliberate indifference claim against

Ms. Dove because he filed it more than two years after the claim accrued. See

Braxton v. Zavaras, 614 F.3d 1156, 1160 (10th Cir. 2010) (noting the statute of

limitations for § 1983 actions brought in Colorado is two years from the time the

action accrues). Mr. Hurd does not contest that his § 1983 claim against Ms. Dove

accrued on September 9, 2021, and that he first named her as a defendant in the third

amended complaint, filed on October 30, 2023. But he argues that his claims against

Ms. Dove are not barred by the statute of limitations because, under Rule 15(c) of the

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Federal Rules of Civil Procedure his amended complaint relates back to the original

complaint he filed on August 17, 2023.

As the district court noted, however, Mr. Hurd raised no specific objections to

the magistrate judge’s ruling that his amended complaint did not relate back to the

original complaint. This court has “adopted a firm waiver rule” regarding objections

to a magistrate judge’s recommendations. United States v. 2121 E. 30th St., 73 F.3d

1057, 1059 (10th Cir. 1996) (internal quotation marks omitted). To preserve de novo

review by the district court and appellate review in this court, “a party’s objections to

[a] magistrate judge’s report and recommendation must be both timely and specific.”

Id. at 1060 (emphasis added). This means the objection must be “sufficiently

specific to focus the district court’s attention on the factual and legal issues that are

truly in dispute.” Id. The firm waiver “rule does not apply, however, when

(1) a pro se litigant has not been informed of the time period for objecting and the

consequences of failing to object, or when (2) the interests of justice require

review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (italics

and internal quotation marks omitted).

Here, although Mr. Hurd did not cite Rule 15(c)(1) in opposing dismissal, the

magistrate judge concluded the amended complaint against Ms. Dove did not

appropriately relate back to his original complaint because the requirements of

Rule 15(c)(1) were not met. She observed the original complaint alleged

constitutional violations “regarding impermissible retaliation impacting [Mr. Hurd’s]

legal mail and access to the courts,” but neither included a deliberate indifference

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claim nor identified Ms. Dove. R. at 196. She concluded the third amended

complaint “does not assert a claim arising out of the same conduct, transaction, or

occurrence discussed in the original Complaint.” Id. (applying Fed. R. Civ. P.

15(c)(1)(B)).

Mr. Hurd filed timely objections to the magistrate judge’s recommendation,

but as the district court correctly observed, his objections “merely quote[d] the text of

Rule 15(c)(1)” and stated he objected to the recommendation, offering no statement

about why he believed the magistrate judge’s recommendation was incorrect. We

agree with the district court that his mere citation to Rule 15 did not raise any

sufficiently specific objection to the magistrate judge’s conclusion that his third

amended complaint did not relate back to the original complaint. See Silva v. United

States, 45 F.4th 1134, 1136–37 n.2 (10th Cir. 2022) (stating a pro se plaintiff’s

“single sentence about Bivens” and citation to authority addressing § 1983 claims

was not a sufficiently specific objection to the magistrate judge’s recommendation).

Thus, the firm waiver rule bars review of this issue unless one of the two

exceptions applies. The first exception does not apply because the magistrate judge

provided the required advisement in the recommendation. And the second exception

does not apply because Mr. Hurd has not shown that the district court committed

plain error. See id. at 1122 (holding that the “interests of justice” standard includes,

at a minimum, plain-error review). He argues the delay in notifying Ms. Dove of the

lawsuit was the court’s fault, not his, and that but for the delay Ms. Dove would have

received notice of the claims within the 90-day deadline set by Rule 15(c)(1)(C). But

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even accepting that any delay was not Mr. Hurd’s fault, his argument would not

affect the magistrate judge’s conclusion that the claim against Ms. Dove in the third

amended complaint does not arise out of the same conduct, transaction, or occurrence

alleged in the original complaint, as required by Rule 15(c)(1)(B) & (C). Given that

Mr. Hurd has identified no argument on appeal that challenges the basis of magistrate

judge’s conclusion, the interests of justice do not compel an exception to the firm

waiver rule. In short, we agree with the district court that Mr. Hurd’s objections

were not sufficiently specific, which precludes further review of his § 1983 claim on

appeal.

The district court also held that Mr. Hurd’s claim under the PLRA must be

dismissed because that statute confers no private right of action. We agree with the

district court. The Supreme Court has observed in dicta that the PLRA “itself does

not provide for a standalone damages remedy against federal jailers.” Ziglar v.

Abbasi, 582 U.S. 120, 149 (2017). Instead, the PLRA imposes restrictions on

prisoners’ lawsuits arising under other laws, particularly § 1983. See, e.g.,

§ 1997e(a) (imposing administrative exhaustion requirement on prisoner lawsuits

brought under § 1983); § 1997e(c) (authorizing sua sponte dismissals of prisoner

lawsuits challenging prison conditions under § 1983); § 1997e(e) (barring recovery

for emotional or mental injury in cases not involving physical injury or a sexual act);

see also Jones v. Bock, 549 U.S. 199, 203-04 (2007) (observing the PLRA was

intended to reduce the number of prisoner lawsuits and “filter out the bad claims”).

And a separately codified provision of the PLRA states the act “shall in no way

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expand or restrict the authority of parties other than the United States to enforce the

legal rights which they may have pursuant to existing law with regard to

institutionalized persons.” § 1997j; see also McRorie v. Shimoda, 795 F.2d 780, 782

n.3 (9th Cir. 1986) (stating that § 1997j “precludes a private cause of action” under

the PLRA). Thus, we agree with the district court that § 1997e(e) provides no cause

of action to independently support Mr. Hurd’s claim.

III. Conclusion

We affirm the dismissal of Mr. Hurd’s claims. We grant Mr. Hurd’s motion

for leave to proceed without prepayment of the filing fee. We remind Mr. Hurd he

must continue making partial payments until the entire filing fee has been paid.

Entered for the Court

Veronica S. Rossman Circuit Judge