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Bogard v. Hutchings

United States District Court, D. Colorado

March 12, 2014

LARRY DONNELL BOGARD, Plaintiff,
v.
MRS. R.L. HUTCHINGS, Defendant.

ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

This case involves claims that Defendants violated Plaintiff's civil rights. This matter is before the court on "Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) & Fed.R.Civ.P. 12(c)" (Doc. No. 63 [Mot.], filed August 23, 2013), to which Plaintiff filed his response on October 7, 2013 (Doc. No. 76 [Resp.]) and Defendant filed her reply on November 8, 2013 (Doc. No. 81 [Reply]). This matter is ripe for ruling.

STATEMENT OF THE CASE

The following description is taken from Plaintiff's Complaint. (Doc. No. 1 [Compl.], filed June 18, 2013.) Plaintiff asserts jurisdiction under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ( Id. at 3.) At the time of the alleged violations, Plaintiff was an inmate at the ADX in Florence, Colorado, and Defendant worked for the Food Service Department. ( Id. at 2, 4.) Plaintiff asserts one claim for violations of his First Amendment rights. ( Id. at 7.) Plaintiff sues the defendant in her individual capacity only. ( Id. at 10.) Plaintiff alleges on April 21, 2011, he approached the defendant in the Federal Prison Camp ("FPC") parking lot. ( Id. ) Plaintiff states the defendant asked him for his ID card and told Plaintiff he would be taken off the compound and written up for stalking the defendant's staff in food service. ( Id. ) Later that day, Plaintiff received an incident report and was placed in the Special Housing Unit ("SHU"). ( Id. ) Plaintiff alleges while he was waiting to be placed in SHU, a lieutenant at the FPC told Plaintiff that the defendant was mad at him for filing two grievances against staff in the food service. ( Id. ) Plaintiff states the defendant filed a false disciplinary report and made false statements in her report in retaliation for his filing grievances in violation of his First Amendment rights. ( Id. at 9.) Plaintiff seeks compensatory and punitive damages and injunctive relief. ( See id. 9, 10, 15.)

LEGAL STANDARD

1. Pro Se Plaintiff

Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

2. Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. 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 proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).

A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary 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.

3. Judgment on the Pleadings 12(c)

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is governed by the same standard of review applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Nelson v. State Farm Mut. Auto Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005); Shepard v. Applebee's Int'l, Inc., Case No. 08-2416-KHV, 2010 WL 1418588, *1 (D. Kan. Apr.7, 2010) ( citing Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160(10th Cir. 2000). Thus, a court must "accept all the well-pleaded factual allegations in the complaint as true and view them in the light most favorable to the nonmoving party." Id. (internal quotation marks and citation omitted); Ramirez v. Dep't of Corrs., 222 F.3d 1238, 1241 (10th Cir. 2000). "Judgment on the pleadings should not be granted unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'" Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006) (quoting United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). Fed.R.Civ.P. 12(d) further provides that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Hence, under Rule 12(c), a court should consider only matters referred to or incorporated by reference in the pleadings or attached to the answer or complaint. Park Univ. Enters., Inc., 442 F.3d at 1244; GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997). Pursuant to Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed.R.Civ.P. 12(c).

ANALYSIS

Defendant moves to dismiss Plaintiff's claims for compensatory damages for failure to state a claim upon which relief can be granted. (Mot. at 4-5.) Defendant moves to dismiss Plaintiff claims for injunctive relief for lack of subject matter jurisdiction. (Mot. at 5-7.) Defendant also moves to dismiss ...


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