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Rockette v. Ramirez

United States District Court, District of Colorado

January 27, 2015

RAMIREZ, Lt., Defendant.


R. Brooke Jackson, United States District Judge

This case comes before the Court on the defendant’s Motion to Dismiss Amended Complaint [ECF No. 35]. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons the motion is granted.


This case is brought by Tarico Rockette, Sr., an inmate currently housed at the Limon Correctional Facility of the Colorado Department of Corrections. The events giving rise to this lawsuit, however, occurred while Mr. Rockette was incarcerated at the Fremont Correctional Facility, also in Colorado. For purposes of this motion, the Court takes as true all well-pleaded allegations made on the face of the Complaint.

On January 14, 2013 Mr. Rockette was watching television in his pod, a housing unit in the prison. The defendant, Lieutenant Ramirez, told Mr. Rockette to turn down the volume, which he claims he did. Later that night Lt. Ramirez pulled Mr. Rockette out of his cell because of the loud volume, at which point she “became extremely disrespectful and aggressive.” Amended Complaint [ECF No. 7] at 4.[1] Mr. Rockette alleges that when he didn’t “feed into her negativity she told me to turn around to be handcuffed.” Id. However, instead of cuffing him Lt. Ramirez ordered Mr. Rockette to go outside and place his hands on a vending machine “to be shake-down.” Id. Lt. Ramirez then “snatched” Mr. Rockette’s beanie off of his head, pulling his hair and snapping his neck backwards, allegedly giving him whiplash. Id. At this point the two returned to Mr. Rockette’s pod, and Lt. Ramirez “threw my beanie in my face in an assaultive manner.” Id. at 5.

Mr. Rockette claims that he has suffered injuries as a result of Lt. Ramirez’s conduct. In particular he alleges that he has been taking pain killers related to his beanie being snatched from his head, presumably for the neck pain. Id. at 8, 10. He adds that he had x-rays taken of his neck but gives no indication as to what injuries, if any, were established by them. See Id. Mr. Rockette brings two claims for relief under 42 U.S.C. § 1983, asserting violations of his equal protection and due process rights. The defendant moves to dismiss all claims against her pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).


Rule 12(b)(1) concerns whether the Court has jurisdiction to hear the case before it. “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). “Jurisdiction is a threshold question that a federal court must address before reaching the merits of a statutory question, even if the merits question is more easily resolved and the party prevailing on the merits would be the same as the party that would prevail if jurisdiction were denied.” Id. “[S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction.” F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya, 296 F.3d at 955 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter jurisdiction may be challenged by a party or raised sua sponte by the Court at any point in the proceeding. Fed.R.Civ.P. 12(h)(3); Harris v. Illinois-California Exp., Inc., 687 F.2d 1361, 1366 (10th Cir. 1982).

In reviewing a 12(b)(6) motion to dismiss, the Court must accept the well-pleaded allegations of the complaint as true and construe them in the plaintiff’s favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are purely conclusory need not be assumed to be true. Id. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

To plead a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that the defendant, acting under color of state law, deprived him of a right secured by the United States Constitution or its laws. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “A defendant may not be held liable under § 1983 unless he or she subjected a citizen to the deprivation, or caused a citizen to be subjected to the deprivation.” Lippoldt v. Cole, 468 F.3d 1204, 1219 (10th Cir. 2006) (alterations and citation omitted).

Because Mr. Rockette is appearing pro se, the Court “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 Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court may not act as the advocate of the pro se litigant, nor should it “supply additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).



Lt. Ramirez argues that any claims asserted against her in her official capacity are barred by the Eleventh Amendment. The Court agrees. The Eleventh Amendment sovereign immunity doctrine provides that state officials acting in their official capacities cannot be sued for retroactive monetary relief. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102– 03, 105–06 (1984). Because Mr. Rockette seeks only monetary (and not ...

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