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Wilson v. Jenks

United States District Court, D. Colorado

November 20, 2014

STEVEN R. WILSON, Plaintiff,
v.
JEFF L. JENKS, Polygrapher, for Amich and Jenks, Inc. and member of the Colorado Sex Offender Management Board, (" SOMB"), THOMAS W. SHEELY, Polygrapher, Employee of Amich and Jenks, Inc., CHRISTINA MARQUEZ, Treatment Provider for the Arrowhead Correctional Center (" ACC"), Sex Offender Treatment and Monitoring Program, (" SOTMP"), BURL MCCULLAR, Treatment Provider for the ACC SOTMP, LEONARD WOODSON, Treatment Provider for the ACC SOTMP, S. MICHAEL DUNLAP, Treatment Provider for the ACC SOTMP, PHASE II SOTMP TREATMENT TEAM, and RICK RAEMISCH, Executive Director of the Colorado Department of Corrections (CDOC), Defendants

Steven R. Wilson, Plaintiff, Pro se, Las Animas, CO.

For Jeff L. Jenks, Polygrapher for Amich and Jenks, Inc. and Member of the Colorado Sex Offender Management Board, (" SOMB"), Thomas W. Sheely Polygrapher for Amich and Jenks Inc., Defendants: Katharine Anne Jensen, Robert James Zavaglia, Jr., Treece Alfrey Musat, P.C., Denver, CO.

For Christina Marquez, Treatment Provider for the Arrowhead Corr. Center (" ACC"), Sex Offender Treatment and Monitoring Program (" SOTMP"), Burl McCullar, Treatment Provider for the ACC SOTMP, Leonard Woodson, Treatment Provider for the ACC SOTMP, S. Michael Dunlap, Treatment Provider for the ACC SOTMP, Rick Raemisch, Executive Director of the Colorado Department of Corrections, (CDOC), Defendants: Christopher Wayne Alber, Colorado Attorney General's Office, Denver, CO.

ORDER

RAYMOND P. MOORE, United States District Judge.

This matter is before the Court on Magistrate Judge Kathleen M. Tafoya's Recommendation (" Recommendation") (ECF No. 88) regarding Defendants Christina Marquez, Burl McCullar, Leonard Woodson, S. Michael Dunlap, and Rick Raemisch's (" CDOC Defendants") motion to dismiss (ECF No. 65) as well as regarding Defendants Jeff L. Jenks and Thomas W. Sheely's (collectively, " Jenks Defendants") motion to dismiss (ECF No. 74). Both motions to dismiss pertain to Plaintiff Steven R. Wilson's Second Amended Prisoner Complaint (ECF No. 48). Also before the Court are Plaintiff's objections to the Recommendation (ECF No. 91).

For the reasons stated below, the Court OVERRULES Plaintiff's objections, ADOPTS the Recommendation as modified herein, and GRANTS both the CDOC Defendants' motion to dismiss and the Jenks Defendants' motion to dismiss.

I. LEGAL STANDARDS

A. Review of the Magistrate Judge's Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge " determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, " [t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the " district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). In the absence of a timely and specific objection, " the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

B. Standard for Dismissal for Lack of Subject Matter Jurisdiction

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack of subject matter jurisdiction may be brought in two forms: " facial" or " factual." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A " facial attack" as to subject matter jurisdiction challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must accept the allegations in the complaint as true. Id. A " factual attack" as to subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing such a challenge, the Court has discretion to consider documents outside complaint. Id. at 1003. If undertaking a review of subject matter jurisdiction predicated upon a factual attack of the complaint, " a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion." Id.

Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the burden of establishing subject matter jurisdiction. Port City Props. v. Union Pacific R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted).

" State sovereign immunity is more than immunity from liability--it actually deprives federal courts of subject-matter jurisdiction." Wood v. Milyard, 414 F.App'x 103, 105 (10th Cir. 2011) (unpublished) (citing Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)).

C. Pro Se Status

Plaintiff is proceeding pro se . The Court, therefore, reviews his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). 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). 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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for a plaintiff in the absence of any discussion of those issues) ...


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