Melnick v. Gamblin

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HUNTER ADAM MELNICK, Plaintiff, v. TONYA GAMBLIN, CPO, DEAN WILLIAMS, Exec. Dir. Of Prisons, JOE BRADY, CPS, SARA PHELPS, CPS, JOE WHITE, CPM, TERESA MITCHELL, CPO, and JANE/JOHN DOES Defendants.

Civil Action No. 20-cv-02284-CMA-KLM

United States District Court, D. Colorado

July 27, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L MIX UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants' Motion to Dismiss Amended Prisoner Complaint [#100]^[1] (the “Motion”).^[2] Plaintiff filed a Response [#106].^[3] The Court has reviewed the briefs, 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 Motion [#100] be granted in part and denied in part.

I. Background^[4]

This matter arises from parole conditions imposed on Plaintiff^[5] in a former period in which Plaintiff was on parole. See generally Compl. [#2].^[6] Plaintiff is subject to supervised parole under Colorado's Sex Offender Lifetime Supervision Act (“SOLSA”) Colo. Rev. Stat. § 18-1.5-1005, due to a 2006 sexual assault conviction. See Motion [#100] at 3-4. Plaintiff, who proceeds as a pro se litigant,^[7] filed the initial Complaint [#2] while he was on parole in August 2020. Plaintiff filed an Amended Complaint [#90] in November 2022.

Plaintiff asserts six claims in connection with the parole conditions: (1) a First Amendment claim in connection with “a near total ban” on Plaintiff's internet access (Claim One); (2) a First Amendment claim in connection with “a total ban on social media” (Claim Two); (3) a Fourteenth Amendment claim “for unwarranted intrusion into familial relationships” (Claim Three); (4) a First and Fourteenth Amendment violation related to a liberty interest in freedom of occupation in connection with the fact that Plaintiff was prohibited from working at a certain job (Claim Four); (5) a First Amendment retaliation claim (Claim Five); and (6) a claim that SOLSA, Colo. Rev. Stat. § 18-1.3-1005, is unconstitutional (Claim Six). Am. Compl. [#90] at 8-13. Plaintiff seeks injunctive and declaratory relief, as well as compensatory and punitive damages. Id. at 6.

Defendants' Motion [#100] seeks dismissal of Plaintiff's Amended Complaint [#90] pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Id. at 5. Defendants argue that: (1) Plaintiff fails to state a claim for violation of constitutional rights pursuant to Rule 12(b)(6); (2) Plaintiff has not alleged personal participation of any Defendants other than Gamblin and Phelps, the latter of whom is only implicated in the First Amendment claim; (3) Plaintiff's claims for injunctive relief are moot and should be dismissed pursuant to Rule 12(b)(1); and (4) Defendants are entitled to qualified immunity. Id.

II. Standard of Review

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. U.S. ex. rel. U.S. Army Corps of Engineers, 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, 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, the court “may not presume the truthfulness of the complaint's factual allegations[,]” and has “wide discretion to allow affidavits [and] other documents . . . to resolve disputed jurisdictional facts. Id.

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

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); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “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).

To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.”) (quoting Twombly, 550 U.S. at 570). “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, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted). The factual allegations must also “be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a factual allegation has been stated, Abut it has not show[n] that the pleader is entitled to relief, “ as required by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).

C. Qualified Immunity

Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities for monetary damages. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982) (“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken, and qualified immunity is appropriate).

III. Analysis

A. Injunctive/Declaratory Relief and official Capacity Claims

The first issue addressed is the Court's subject matter jurisdiction over Plaintiff's claims for injunctive and declaratory relief, which implicate the official capacity claims. Defendants argue that Plaintiff is no longer subject to the parole directives at issue or the supervision of the parole officers who are Defendants in this case. Motion [#100] at 17. Defendants aver that Plaintiff's parole was revoked in the Fall of 2020, and that Plaintiff was released on a new period of parole in January of 2023.^[8] Id. Accordingly, Defendants argue that the claims for injunctive and declaratory relief are moot. Id.

“Article III of the Constitution limits federal courts to deciding 'Cases' and 'Controversies,' and an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kan. Ex rel. Kan. Dep't for Child. & Fams. v. SourceAmerica, 874 F.3d 1226, 1236 (10th Cir. 2017) (quoting Kingdomware Techs., Inc. v. United States, 136 S.Ct. 1969, 1975 (2016) (internal quotation marks omitted)). “In considering mootness, [the court] ask[s] whether granting a present determination of the issues offered will have some effect in the real world.” SourceAmerica, 874 F.3d at 1236 (quoting Fleming v. Gutierrez, 785 F.3d 442, 444-445 (10th Cir. 2015) (internal quotation marks omitted)). “A case is moot . . . where the relief sought can no longer be given or is no longer needed.” Id. (internal quotation marks omitted).

Here Plaintiff was subject to the parole directives at issue by Defendants from July to September of 2020. Am. Compl. [#90] at 8. Plaintiff is no longer subject to those parole conditions as that parole was revoked, and the Court finds that the claims for injunctive and declaratory relief are therefore moot. Granting a present determination of the claims for injunctive and declaratory relief against the Defendants in this case will have no effect in the real world, and more specifically, no effect on Defendants' behavior towards Plaintiff. See Edmond v. Raemisch, 593 Fed.Appx. 761, 765 (10th Cir. 2014) (affirming the district court...