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Thoele v. Werholtz

United States District Court, D. Colorado

September 30, 2014

ROGER WERHOLTZ, Interim Executive Director of the Colorado Department of Corrections, in his official capacity, JEFFREY WELLS, Community Parole Officer, in his individual and official capacities, JIM KELLER, Colorado Department of Corrections Parole Team Leader, in his individual and official capacities, LIESL SCHUMACHER, Colorado Department of Corrections Parole Supervisor, in his individual and official capacities, and JOHN OREY, Colorado Department of Corrections Parole Supervisor, in his individual and official capacities, Defendants.


RAYMOND P. MOORE, District Judge.

THIS MATTER is before the Court on Defendant Jeffrey Wells' Motion to Dismiss (ECF No. 61) and on the remaining Defendants' Motion to Dismiss (ECF No. 63), each of which was previously ordered converted into a summary judgment motion upon motion of the Plaintiffs[1] (ECF No. 77). Plaintiff Jerrod Thoele ("Plaintiff") brings this action against Roger Werholtz, Interim Executive Director of the Colorado Department of Corrections; Jeffrey Wells, Community Parole Officer; Jim Keller, Parole Team Leader; Liesl Schumacher, Parole Supervisor; and John Orey, Parole Supervisor, (collectively, "Defendants"), alleging violations of 42 U.S.C. § 1983.


Plaintiffs seek relief under 42 U.S.C. § 1983 for violations of constitutional rights under the Fourth and Fourteenth Amendments. Plaintiffs allege that as a result of Defendant Wells' falsification of hold dates, complaints were improperly served or filed against parolees. According to Plaintiffs, the Parole Board would treat those complaints as valid, and the Board would schedule Parole Hearings more than thirty days after the arrests in question. (ECF No. 14, Am. Compl., at 5.) Defendants Keller, Schumacher, Orey, and Werholtz are Defendant Wells' supervisors. ( Id. at 4.) Defendants have filed motions to dismiss under 12(b)(6) and, as will be explained below, under 12(b)(1).

In considering a motion under Rule 12(b)(6), a court must determine whether the allegations in the complaint are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). All well-pleaded allegations of the Complaint must be accepted as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). Mere conclusory statements or legal conclusions masquerading as factual contentions will not suffice to defeat a motion to dismiss. See also Ruiz v. McDonnell, 299 F.3d 1172, 1181 (10th Cir. 2002) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."). A court must review the Complaint to determine whether it "contains enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[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." Dias v. City and Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 550 U.S. at 556). "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." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint sua sponte "when it is patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Rule 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, but only a determination that the court lacks authority to adjudicate the matter. 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). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974).


A significant discussion of the procedural history is warranted in this case. That history is difficult, and I will attempt to clarify it here.

The original Complaint was filed on April 8, 2012 on behalf of Plaintiffs John Morgan, Dustin Cook, Paul Stark, and Jerrod Thoele, against Defendant Tom Clements (who was then Executive Director of the CDOC), Jeffrey Wells, Jim Keller, Liesl Schumacher, John Orey, and James J. Fitzpatrick. (ECF No. 1.) James J. Fitzpatrick was dismissed from the action on Plaintiffs' motion. (ECF No. 35.) Defendant Clements is deceased, and the case caption was changed to reflect the Interim Executive Direction of the Colorado Department of Corrections, Defendant Roger Werholtz. (ECF No. 110.)

On June 11, 2012, Defendants (excepting Fitzpatrick) filed a Motion to Dismiss the Complaint alleging, among other things, Eleventh Amendment immunity, qualified immunity, pleading deficiencies, and statute of limitations. (ECF No. 11.) On July 2, 2012, Plaintiffs filed an Amended Complaint, and simultaneously filed a Response to Defendants' Motion to Dismiss. (ECF Nos. 14, 15). In turn, Defendants (again excepting Fitzpatrick) then filed a Partial Motion to Dismiss Plaintiffs' Amended Complaint on July 16, 2012, basing this motion on some of the same arguments as were put forth in their previous Motion to Dismiss, but omitting qualified immunity and adding an argument based on Heck v. Humphrey, 512 U.S. 477 (1994) (hereinafter " Heck v. Humphrey "). (ECF No. 19.)

Throughout these stages, the Colorado Attorney General's Office appeared on behalf of all Defendants except for James J. Fitzpatrick. (ECF No. 10.) As noted earlier, Mr. Fitzpatrick was subsequently dismissed from the case on an unopposed motion by Plaintiffs. (ECF Nos. 34, 35.)

On December 7, 2012, the Colorado Attorney General filed an Unopposed Motion for Substitution of Counsel, citing a conflict of interest. Private counsel was brought in to represent Defendant Wells individually, and separate private counsel was retained for Defendants Clements (now Werholtz), Keller, Schumacher, and Orey (referred to hereinafter as the "Supervisory Defendants"). (ECF No. 41.)

On December 14, 2012, after the change of counsel, Defendants moved to withdraw without prejudice their Partial Motion to Dismiss the Amended Complaint, and sought leave to re-file separate motions to dismiss, "primarily to assert the additional defense of qualified immunity." (ECF No. 53.) This motion explained that "[a]lthough qualified immunity was raised in prior counsel's motion to dismiss the original complaint... it was not asserted as a ground for dismissal in Defendants' Partial Motion to Dismiss Amended Complaint." (ECF No. 53 at 3.) The motion stated that "Defendants may also drop or add other defenses to the motion." ( Id. ) That motion was granted by Magistrate Judge Tafoya on December 18, 2012. (ECF No. 56.)

What the Defendants intended to do in filing this and the subsequent new motions is less than clear. At the oral hearing before Magistrate Judge Tafoya, the Defendants spoke primarily in terms of additional defenses they wished to add. Notwithstanding that rationale, the motions to dismiss they ultimately filed did not re-assert all of the original defenses. Specifically, Eleventh Amendment immunity was not carried forward. And the Heck v. Humphrey defense was raised only by Defendant Wells. In January of 2012, Defendant Wells filed a Motion to Dismiss the Amended Complaint, and the Supervisory Defendants filed a separate Motion to Dismiss the Amended Complaint. (ECF Nos. 61, 63.) Defendant Wells' Motion to Dismiss asserted the defense of qualified immunity and also argued that the claims brought by Morgan, Cook and Stark were barred by the statute of limitations. (ECF No. 61.) In his motion, Defendant Wells only briefly referenced Heck v. Humphrey (ECF No. 61 at 13.) The Supervisory Defendants' Motion to Dismiss asserted the following arguments: (1) that Colorado law does not require that a parolee be served with the complaint within ten days of his arrest, so Plaintiffs have no cause of action based on state law; (2) that Plaintiffs' constitutional rights were not violated; (3) that Plaintiffs' allegations are insufficient to demonstrate personal participation on the part of the Supervisory Defendants; (4) that the Supervisory Defendants are entitled to qualified immunity; (5) that Plaintiffs have no claim for false imprisonment because they are not entitled to parole; (6) that Plaintiffs' claim for declaratory relief should be deemed moot; (7) that Plaintiffs' claims for money damages are barred under the Prison Litigation Reform Act because they have not alleged physical injury; (8) that the allegations fail to justify punitive damages; and (9) that the claims of Plaintiffs Morgan, Cook and Stark are barred by the statute of limitations. (ECF No. 63.)

On February 1, 2013, Plaintiffs filed a Motion to Convert the Motions to Dismiss to Motions for Summary Judgment (ECF No. 71). The District Judge previously assigned to this case granted that motion on February 4, 2013, before a response from Defendants was filed. (ECF No. 77). The Defendants filed a motion to reconsider the conversion order on February 15, 2013. (ECF No. 90.)

Without ruling on the motion to reconsider, on March 18, 2013 the prior District Judge issued an order (the "Prior Order"), granting in part and denying in part the Defendants' Partial Motion to Dismiss (ECF No. 19), and dismissing several of Plaintiffs' claims. To be clear, the motion ruled upon and substantially granted was the motion to dismiss that had been withdrawn on December 18, 2002-not the latter motions filed at ECF Nos. 61 and 63 which had been converted into summary judgment motions on February 4, 2013. The Prior Order dismissed: (a) all Plaintiffs' claims for compensatory and punitive damages (and related claims for declaratory relief) against Defendants in their official capacities as barred by the Eleventh Amendment; (2) Plaintiffs Morgan and Cook's claims as barred by Heck v. Humphrey ; and (3) all of Plaintiff Stark's claims as time-barred. (ECF No. 99). Thus, Plaintiffs Morgan, Cook and Stark were dismissed from the case. No mention was made in the Prior Order of the motions filed at ECF Nos. 61 and 63.

On April 26, 2013, Plaintiffs filed a motion for reconsideration of the Prior Order (ECF No. 103), arguing that the Court should reconsider because the Court had ruled on a motion (ECF No. 19) that had been withdrawn. Thereafter, this case was reassigned to the current District Judge. A status conference was held on May 28, 2013, during which the Court granted Plaintiff's Motion for Reconsideration (ECF No. 115). This Court, at that time, denied the motion to reconsider the conversion of the dismissal ...

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