United States District Court, District of Colorado
Kathleen M Tafoya United States Magistrate Judge
This matter is before the court on Defendants Christopher Pagel and The Geo Group, Inc.’s (“GEO”) “Motion to Dismiss” (Doc. No. 49 [Mot. Dismiss], filed April 3, 2014). Plaintiff filed his response on April 28, 2014. (Doc. 51 [Resp. Mot. Dismiss]), and Defendants filed their reply on May 8, 2014 (Doc. No. 56 [Reply Mot. Dismiss]).
Also before the court is Plaintiff’s “Motion for Leave to File Amended Complaint” (Doc. No. 55 [Mot. Amend], filed May 5, 2014). Defendants filed their response on May 22, 2014 (Doc. No. 57 [Resp. Mot. Amend]), and Plaintiff filed his reply on June 6, 2014 (Doc. No. 59 [Reply Mot. Amend]). These motions are ripe for ruling.
Plaintiff initially filed this action in Alaska state court, alleging he was “incarcerated under an Alaska judgment at the Hudson Correctional Facility (hereinafter DHO)” in Hudson, Colorado. (See Doc. No. 1-2 at 2-3, ¶¶ 4-5.) HCF is a private correctional facility owned and operated by GEO. (Doc. No. 1-1 at 2, ¶ 3.) Defendant Pagel is employed by GEO and resides in Colorado. (Id., ¶ 3.) Defendants removed the action to the United States District Court for the District of Alaska on January 16, 2013, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). (Doc. No. 1-1.) On February 5, 2013, Defendants moved to dismiss the case for lack of personal jurisdiction or, in the alternative, transfer the case to the District of Colorado. (Doc. No. 1-22.) On April 10, 2013, the U.S. District Court for the District of Alaska issued a Transfer Order stating that Plaintiff’s “claims allege actions taken by the Colorado residents in Colorado.” (Id.) Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of the parties of witnesses, in the interest of justice, ” the court ordered this case to be transferred to the U.S. District Court for the District of Colorado. (Id. at 4.)
After transfer to this Court, United States Magistrate Judge Boyd N. Boland ordered Plaintiff to submit an amended complaint. (Doc. No. 6.) Plaintiff filed an Amended Prisoner Complaint on May 10, 2013. (Doc. No. 10.) The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A and dismissed it as legally frivolous. (Doc. No. 11.) Plaintiff appealed, and the Tenth Circuit Court of Appeals reversed the dismissal and remanded the case to the District of Colorado to address the state-law claims including the choice of law issue. (Doc. No. 22.) This court ordered Defendants to answer or otherwise respond to the Amended Prisoner Complaint and to address the state law claims that had not been dismissed. (Doc. No. 37.) Defendants then filed their Motion to Dismiss. (Doc. No. 49.)
STATEMENT OF THE CASE
Plaintiff alleges on June 21, 2012, when he was housed at HCF, he was “served with an incident report alleging that he had violated” a prison rule regarding the forging of a television request form that described Plaintiff’s institutional job status. (Doc. No. 10 at 5, ¶ 1.) Plaintiff alleges,
[a] prisoner attempting to obtain approval for a television was required to (1) obtain the signature of his institutional case manager, (2) obtain the signature of the educational coordinator stating that the prisoner has at least a GED level education, (3) obtain the signature of the unit manager stating that the prisoner is employed and which department the prisoner is employed at, and (4) lastly turn in the television request for the Alaska probation Officer to review, and to approve or deny said request.
(Id. at 5-6, ¶ 7.)
Plaintiff initially appeared for his disciplinary hearing on June 27, 2012, over which Defendant Pagel presided. (Id. at 5, ¶ 6.) At the time of that hearing, Plaintiff requested that the officer who wrote the incident report (T. Benavidez) and the probation officer who investigated the disciplinary report (J. Pass) be present as witnesses. (Id. at 6, ¶ 10.) Defendant Pagel agreed to postpone the hearing in order to have the witnesses available. (Id., ¶ 13.) At the rescheduled hearing on July 16, 2012, the hearing was again postponed, apparently in order to accommodate the schedule of Officer Pass. (Id., ¶ 14.) At that time, Defendant Pagel advised Plaintiff to provide written questions to be sent to Officer Pass by the end of the day. (Id. At 7, ¶ 15.) Defendant Pagel advised that the questions would be e-mailed to Officer Pass, and her answers would be read into the record at the hearing. (Id., ¶ 16.) Plaintiff informed Defendant Pagel that he believed this violated his “due process right to confront and cross-examine” his accuser. (Id., ¶ 17.)
On July 20, 2012, at the rescheduled disciplinary hearing, Defendant Pagel advised Plaintiff that Officer Pass had responded to the written questions, and the answers would be read into the record. (Id., ¶ 18.) Additionally, Plaintiff was advised that Officer Benavidez had taken a personal day and would participate in the hearing via telephone. (Id., ¶ 20.) The hearing was held, and Plaintiff was “found guilty of the alleged infraction and sanctioned to 30 days[’] punitive segregation.” (Id., ¶ 22.)
In Claim One, Plaintiff asserts Defendant Pagel violated the “state-based due process right to confront and cross-examine an adverse witness in person” causing a deprivation of “liberty and property for 30 days.” (Id., ¶ 23.) In Claim Two, Plaintiff asserts Defendant Pagel asked questions of Plaintiff’s staff advocate in such a manner as to “prompt” her to “submit adverse testimony” in violation of his state due process rights. (Id. at 9-10.) In Claims Four and Five, Plaintiff alleges “negligence per se” for the defendants’ alleged ...