Bertolo v. Shain

JAMES MICHAEL BERTOLO, Plaintiff, v. LAURA SHAIN, in her individual and official capacity,KRISTY STANSELL, in her individual and official capacity,LAURA BORREGO-GIBBS, in her individual and official capacity,MIKE ROMERO, in his individual and official capacity,CAROL TRUJILLO, in her individual and official capacity,RICK RAEMISCH, CDOC Executive Director, in his official capacity,RANDY LIND, FMR Warden, in his individual and official capacity,LEONARD WOODSON III, in his individual and official capacity,SGT SWINGLE, in her individual and official capacity,MATTHEW HANSON, in his individual and official capacity,CHRIS LOBANOV-ROSTOVSKY, in his official capacity,CHARLES TAPPE, in his individual and official capacity,RAE TIMMIE, FMR Warden, in his individual and official capacity,and SHAWNA NYGAARD, in her individual and official capacity, Defendants.

Civil Action No. 17-cv-00773-RM-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 27, 2020

AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE¹

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on two motions to dismiss: (1) Defendants' Motionto Dismiss Plaintiff's Fourth Amended Complaint [#174]² (the "Motion to Dismiss")³; and (2) Defendant Lobanov-Rostovsky's Motion to Dismiss [#191] (the "Lobanov-Rostovsky Motion") (collectively "Motions to Dismiss"). Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motions to Dismiss have been referred to the undersigned for a recommendation regarding disposition. [#175, #192].

The Court has reviewed the Motions to Dismiss [#174, #191], the Response [#194], the Replies [#200, #201], Plaintiff's "Supplemental Reply" [#203] ("Surreply")⁴, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court recommends that the Motions to Dismiss be granted and that this case be dismissed.

I. Background

Plaintiff is a pro se⁵ litigant and inmate of the Colorado Department of Corrections ("CDOC"), housed at Sterling Correctional Facility ("SCF"). Plaintiff initially filed this actionon March 23, 2017. Compl. [#1]. An Amended Prisoner Complaint [#24] asserting a class action, filed on April 3, 2017, was stricken by the Court [#25]. By Order [#58] of February 6, 2018, Plaintiff was directed to file a Second Amended Complaint. Plaintiff filed a Second Amended Complaint [#61] on March 7, 2018. By Order [#68] of May 23, 2018, the Court directed Plaintiff to amend his complaint once again, and on June 22, 2018, Plaintiff filed a Third Amended Complaint [#76] against 28 defendants. By Order [#80] of July 18, 2018, the Court ordered dismissal of 18 of the claims presented in Plaintiff's Third Amended Complaint, leaving five claims against nine defendants remaining. Id. at 16.

On November 7, 2018, Defendants filed a Motion to Dismiss [#119] the Third Amended Complaint [#76]. Thereafter, on January 7, 2019, Plaintiff filed a Revised Third Amended Complaint with Jury Demand [#133]. On January 10, 2019, Plaintiff filed a Motion for Leave to Amend and Supplement Complaint Pursuant to Rule 15 [#134]. The Court granted Plaintiff leave to file a Fourth Amended Complaint by Order [#136] of January 17, 2019. The Order [#136] directed the Clerk to re-file Plaintiff's Revised Third Amended Complaint [#133] as a separate docket entry titled Plaintiff's "Fourth Amended Complaint" and to update the caption to include the additional Defendants that Plaintiff sued. Finally, the Order [#136] denied as moot Defendants' Motion to Dismiss [#119] regarding the Third Amended Complaint.

The Fourth Amended Complaint [#137] was filed on January 17, 2019. This is the operative complaint that Defendants now seek to dismiss. The Fourth Amended Complaint is 48 pages long, sues 24 Defendants, and asserts 17 additional claims along withPlaintiff's five remaining claims from the June 18, 2018 Order [#80].⁶

The Motions to Dismiss [#174, #191] are filed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Motion to Dismiss [#174] argues that certain of the claims are subject to dismissal because, although they may involve new defendants and events, they are minimally-refashioned versions of claims the Court has previously dismissed. Id. at 3. It further argues that certain of Plaintiff's claims are subject to dismissal pursuant to Rule 12(b)(1) for reasons of Eleventh Amendment immunity and mootness. Id. Additionally, the Motion to Dismiss [#174] argues that "despite numerous chances to allege sufficient facts as well as direction from the Court as to what allegations are required to plead various claims, Plaintiff fails to state any plausible claim for relief in his Fourth Amended Complaint." Id. The Lobanov-Rostovsky Motion [#191] seeks to dismiss the two claims asserted against that Defendant (Claims Thirty-Five and Thirty-Six). Those claims assert that restrictions imposed by the Sex Offender Management Board ("SOMB") in Plaintiff's sex offender treatment contract under the Sex Offender Treatment and Management Program ("SOTMP") are unconstitutional. Defendant Lobanov-Rostovsky asserts that these claims should be dismissed under the Eleventh Amendment and for failure to state a claim upon which relief can be granted. Id. at 2-3.

The Court notes that Plaintiff responded to the Motions to Dismiss [#174, #191] by submitting documents and declarations outside the pleadings [#194-1, #196]. The Court finds that these documents are not necessary to and do not impact resolution of theMotions [#174, #191], and they will not be considered. Accordingly, there is no need to convert the Motions to Dismiss [#174, #191] into motions for summary judgment. See Fed. R. Civ. P. 12(h).

By Order of May 21, 2019 [#195], District Judge Raymond Moore granted Plaintiff's "Motion to Withdraw Claims for the Department of Justice to Pursue Claims" [#193]. The following claims have now been dismissed without prejudice: Claims Eighteen, Twenty, Forty, Forty-Two, Forty-Three, Forty-Four, Forty-Five, and Fifty-One in their entirety, and Claim Fifty-Two only as it pertains to allegations against the Limon Correctional Facility. [#195], at 2. The following Defendants who were named in the Fourth Amended Complaint [#137] have been dismissed without prejudice: Steven Cox, Gary Ward, Trisha Kautz, Kelsey Dillinger, John Doe, James Falk, Rhonda Belcher, Daniel Scellenger, Brent Reed, and Nicole Blatnick. Id.

II. Legal Standard

A. Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) attacks a court's subject matter jurisdiction. The determination of a court's jurisdiction over the subject is a threshold question of law. Madsen v. United States ex. rel. U.S. Army Corps of Engineer, 841 F.2d 1011, 1012 (10th Cir.1987). The objection that a federal court lacks subject matter jurisdiction pursuant to Rule 12(b)(1) may be raised by a party, or by a court on its own initiative, at any stage in the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If at any time, the Court determines that it lacks subject matter jurisdiction, the Court must dismiss the action. Fed. R. Civ. P. 12(h)(3); Arbaugh, 546 U.S. at 506.

A 12(b)(1) motion may take two forms: a facial attack or a factual attack on the complaint. When reviewing a facial attack on the complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint pursuant to Rule 12(b)(1), the Court does not presume the truthfulness of the allegations but "resolve(s) disputed jurisdictional facts." Id. at 1003. In doing so, the Court has wide discretion to allow affidavits and other documents. Id.

B. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) tests "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 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)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'furtherfactual enhancement.'" Id. (citation omitted). That said, "'[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Khalik, 671 F.3d at 1192 (citation and internal quotation marks omitted). "While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [his] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim." Id.

"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some...