United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court pursuant to Defendants' Motion to Dismiss (# 29) and Plaintiff Raul Calderon's response (# 30). Having considered the same, the Court FINDS and CONCLUDES that:
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
II. ISSUE(S) PRESENTED
In his Second Amended Complaint (#13), Mr. Calderon asserts a claim under 42 U.S.C. § 1983 for denial of his procedural due process rights for Defendants' failure to provide adequate notice prior to revoking his parole. He also asserts a state law claim for negligent infliction of emotional distress.
In the Motion to Dismiss, Defendants argue that: (1) Defendants are immune from suit to the extent they are sued in their official capacities; (2) with regard to the § 1983 claim, Mr. Calderon fails to adequately allege personal participation by Defendants in any constitutional deprivation; (3) Defendants are entitled to qualified immunity on the § 1983 claim; and (4) Defendants are entitled to immunity under the Colorado Governmental Immunity Act on the state law claim.
The following facts are derived from the Second Amended Complaint. In 2010, Mr. Calderon completed a sentence of incarceration with the Colorado Department of Corrections, and commenced a term of parole. Following a hearing on January 17, 2012, the Colorado Division of Adult Parole ("Parole Board") revoked that parole. Mr. Calderon alleges that he did not receive a copy of the parole revocation complaint before the hearing on January 17, 2012. At the time, Mr. Pasko was the Community Parole Officer assigned to Mr. Calderon, and Mr. Hand was the Director of the Parole Board.
Mr. Calderon filed a challenge in state court to the sufficiency of the notice he received in advance of the January 17 hearing. On December 17, 2012, a state court judge found that Mr. Calderon had not received advance notice of the revocation complaint, that such lack of notice violated C.R.S. § 17-2-103(6)(a), and directed that Mr. Calderon be (re-)released on parole. Mr. Calderon was released from custody on December 25, 2012. He alleges that, during the period from January 17 to December 25, 2012 when he was in custody, he was assaulted by other inmates and required medical care.
A. Standard of review
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Court must limit its consideration to the four corners of the Amended Complaint, any documents attached thereto, and any external documents that are referenced in the Amended Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).
A claim is subject to dismissal if it fails to state a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. at 1949-50. The Court takes the remaining, well-pled factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a claim that is "plausible" or whether the claim being asserted is merely "conceivable" or "possible" under the facts alleged. Id. at 1950-51. What is required to reach the level of "plausibility" varies from context to ...