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Reinhardt v. Kopcow

United States District Court, D. Colorado

August 28, 2014

CHARLES REINHARDT, RICHARD BURNS, et al., Plaintiffs,
v.
MARCELO KOPCOW, DR. GLENN E. NIEBLING, JAMES VINING, et al., Defendants

Page 1165

[Copyrighted Material Omitted]

Page 1166

[Copyrighted Material Omitted]

Page 1167

For Charles Reinhardt, Roseanne Bernard, Laura Bertrand, Noel Bertrand, Robert Garrett, Carole Garrett, William Hart, Michelle Davis, Loretta Marsh, Donna Mills, Rodel Miranda, Jane Roe, by her next friend and mother Jane Roe, other K.O.B., other M.E.B., other A.M.B., other E.M.B., Richard Burns, Kathy Roe, by his next friend and mother Kathy Roe, other J.D., other E.D., other M.D., Cherry Fisher, Glenn Fisher, Armando Gonzalez-Castillo, Nikolas Winder, J.F., by and through his next friend Cherry Fisher, Scott Winder, L.F., by and through her next friend Cherry Fisher, T.J.B., by and through his next friend Staci McCoy, David Murray, Baruch Bachofer, S.R.B., by and through her next friend Staci McCoy, Danny Daniels, Sr., Cesar Aceves, Josie Amaya, J.H., L.B., Brian Baetz, Ronald Murray, S.D., Robert Herdman, A.D., Plaintiffs: Alison Lee Ruttenberg, Alison L. Ruttenberg, Attorney at Law, Boulder, CO.

For Marcelo Kopcow, in his official capacity as SOMB Board Member, Erin Jemison, in her official capacity as SOMB Board Chair, Mary Baydarian, in her official capacity as SOMB Board Member, Carl Blake, in his official capacity as SOMB Board Member, Allison Boyd, in her official capacity as SOMB Board Member, A. Mervyn Davies, in his official capacity as SOMB Board Member, Cheryl Davies, in her official capacity as SOMB Board Member, Jessica Curtis, in her official capacity as SOMB Board Member, Amy Fitch, in her official capacity as SOMB Board Member, Jeff Geist, in his official capacity as SOMB Board Member, Missy Gursky, in her official capacity as SOMB Board Member, Peggy Heil, in her official capacity as SOMB Board Member, William Hildebrand, in his official capacity as SOMB Board Member, Nancy Johnson, in her official capacity as SOMB Board Member, Jeff Jenks, in his official capacity as SOMB Board Member, Dianna Lwyer-Brook, in her official capacity as SOMB Board Member, Tom Leversee, in his official capacity as SOMB Board Member, Richard Bednarski, in his official capacity as SOMB Board Member, John Odenheimer, in his official capacity as SOMB Board Member, Jessica Meza, in her official capacity as SOMB Board Member, Angel Weant, in her official capacity as SOMB Board Member, Mimi Scheuermann, in her official capacity as SOMB Board Member, Doug Stephens, in his official capacity as SOMB Board Member and John and Jane Does 1-20 in their personal capacities, Defendants: Ingrid Carlson Barrier, Colorado Attorney General's Office, Denver, CO.

For Rick Raemisch, in his official capacity as the Executive Director of the Colorado Department of Corrections, Defendant: Christopher Wayne Alber, James Xavier Quinn, Colorado Attorney General's Office, Denver, CO.

For Andrea Bennett-Baily, Sheila Montoya, official Capacity, Defendants: William V. Allen, Colorado Attorney General's Office, Denver, CO.

For Glenn Niebling, Defendant: Gillian Dale, Michael W. Jones, Hall & Evans, LLC-Denver, Denver, CO.

For James Vining, Defendant: David Ben Gelman, LEAD ATTORNEY, Anthony Alfonso Austin, Joshua Ivan Berry, Fennemore Craig, P.C.-Denver, Denver, CO.

For Rae (I) Timme, Defendant: Christopher Wayne Alber, Colorado Attorney General's Office, Denver, CO.

Page 1168

ORDER GRANTING MOTIONS TO DISMISS FILED BY DEFENDANTS NIEBLING AND VINING

William J. Martínez, United States District Judge.

Plaintiff Richard Burns and his family members (" Plaintiffs" ) bring this civil action under 42 U.S.C. § 1983 against multiple Defendants who are involved with the management and treatment of sex offenders in the state of Colorado, including Dr. Glenn E. Niebling and James Vining (" Defendants" ).[1] (ECF No. 81.) This matter is before the Court on Defendant Niebling's Motion to Dismiss (ECF No. 103) and Defendant Vining's Motion to Dismiss (ECF No. 112) (together " Motions" ). For the reasons set forth below, the Motions are granted.

I. LEGAL STANDARD

Defendants move to dismiss the claims against them in accordance with Federal Rule of Civil Procedure 12(b)(6), which permits a defendant to move to dismiss a claim in a complaint for " failure to state a claim upon which relief can be granted." In evaluating such a motion, a court must " assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is " whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss " is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). " Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'"

Page 1169

Id. (quoting Twombly, 550 U.S. at 556).

II. BACKGROUND

The relevant facts[2] taken as true based on the allegations in the operative complaint, are as follows.

Plaintiff Richard Burns is a 39-year-old survivor of child sex abuse and incest. (Sec. Am. Compl. (" SAC" ) (ECF No. 81) ΒΆ 30.) Mr. Burns is married and has four minor children; his wife and children ...


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