United States District Court, D. Colorado
ARLENE ROSETTA-RANGEL, BRIAN O'CONNELL, and GREGORY RUTSCHMAN, Plaintiffs,
STATE OF COLORADO, RICK RAEMISCH, ROGER WERHOLTZ, TONY CAROCHI, TOM CLEMENTS, by and through his ESTATE, ARISTEDES ZAVARIS, JOE ORTIZ, and JOHN SUTHERS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG, Magistrate Judge.
matter comes before the court on Defendants' Motion to
Dismiss the Amended Complaint (Doc. 11) Pursuant to
Fed.R.Civ.P. 12(b)(1) and (6) ("Motion to Dismiss")
[#25, filed June 22, 2015], which was referred to this
Magistrate Judge pursuant to 28 U.S.C. Â§ 636(b)(1), the
Orders of Reference dated April 2, 2015 [#10] and July 13,
2015 [#37], and the Memorandum dated June 26, 2016 [#31]. For
the reasons set out below, this court respectfully RECOMMENDS
that the Motion to Dismiss be GRANTED.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Rosetta-Rangel, Brian O'Connell and Gregory Rutschman
(collectively, "Plaintiffs") filed the initial
Complaint in this case on March 13, 2015. [#1]. Plaintiffs
then filed an Amended Complaint on April 2, 2015. [#11]. The
Amended Complaint avers that the Plaintiffs are or were
inmates incarcerated within the Colorado Department of
Corrections ("CDOC"). [#11 at Â¶ 12]. Plaintiff
Arlene Rosetta-Rangel currently lives in Littleton, Colorado.
[#11 at Â¶ 1]. Plaintiffs Brian O'Connell and Gregory
Rutschman were inmates within the CDOC at the time the
Amended Complaint was filed. [#11 at Â¶Â¶ 2-3].
allegations in the Amended Complaint, which are to be
considered true for the purposes of considering the instant
Motion to Dismiss, include the following. Under Colorado law,
almost all inmates of the CDOC are entitled to be credited
days off of their sentences. [#11 at Â¶ 22]. This time
includes presentence confinement time which an inmate serves
while awaiting trial or after trial while awaiting
sentencing. [ Id. at Â¶ 23]. The CDOC has a Time
Computation ("Time Comp") department which monitors
and applies "good time" and "earned time"
to each inmate's sentence. [ Id. at Â¶ 30]. While
incarcerated, inmates are not allowed to contact Time Comp. [
Id. ]. The Colorado District Courts, supported by
the inaccurate and insufficient information and tracking by
the Time Comp department, do not credit inmates with
Presentence Confinement Good Time and the time they serve in
county jails. [ Id. at Â¶ 32].
Amended Complaint includes four claims for relief. The first
claim alleges "willful and wanton neglect, or
misconduct, by a public officer to perform his duties to such
a degree as to amount to an abuse of the public's trust
in the office holder." [#11 at 7]. In this claim,
Plaintiffs allege that the CDOC has a duty to inmates to
release them at the appropriate time, as clearly established
by Colorado law, CDOC could foresee that its conduct would
breach this duty, and it summarily denied and willfully and
wantonly neglected to perform this duty. [#11 at Â¶Â¶ 33-40].
The harm Plaintiffs allege from this breach include that
inmates who are unable to be released at the appropriate time
lose days of their lives and are unable to enjoy the liberty
of freedom. [#11 at Â¶ 39]. Plaintiffs further allege that the
breach by CDOC "causes inmates to miss funerals of loved
ones, marriages of their children, civil court dates, and due
to a lengthier than is mandated, the loss of parental rights,
among many other demonstrable losses incurred due to
CDOC's malfeasance." [#11 at Â¶ 40].
second claim alleges violation of the Fourth Amendment's
prohibition on unlawful seizures under 42 U.S.C. Â§ 1983. [#11
at 8]. Plaintiffs allege that some of the named Plaintiffs
are being held by the CDOC beyond their Mandatory Release
Dates ("MRD") and that others that are not being
held past their MRD are nevertheless entitled to the
application of Presentence Confinement Good Time and their
day-for-day time spent in county jail. [#11 at Â¶ 42].
Plaintiffs allege that Defendants, acting under color of law,
intentionally deprived Plaintiffs of their right to freedom
from unlawful seizure under the Fourth Amendment by
unlawfully holding Plaintiffs beyond their MRDs and Statutory
Release Dates ("SRD") without probable cause or
reasonable suspicion to believe they had committed any
offense which would have permitted this additional
incarceration. [#11 at Â¶Â¶ 44-45].
third claim alleges Defendants violated Plaintiffs'
Eighth Amendment rights to be free from cruel and unusual
punishment by holding and retaining Plaintiffs beyond their
MRDs and/or SRDs. [#11 at 11]. Plaintiffs' fourth claim
alleges Defendants deprived them of procedural and
substantive due process under the Fourteenth Amendment by
holding them beyond the time that they should have been held
if the Defendants had properly calculated their release
dates. [#11 at 13-14].
STANDARD OF REVIEW
Fed.R.Civ.P. 12(b)(1), a court may dismiss a complaint for
"lack of subject matter jurisdiction." When a court
dismisses a case under Rule 12(b)(1), this is not a
determination on the merits of the case, but only a decision
that the court lacks the authority to adjudicate the action.
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 that lacks
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). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. See Basso, 495 F.2d at 909.
Accordingly, Plaintiffs in this case bears the burden of
establishing that this Court has jurisdiction to hear their
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: a facial attack or a factual attack. Stuart v.
Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.
2001); Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). "In reviewing a facial attack on the
complaint, a district court must accept the allegations in
the complaint as true." Holt, 46 F.3d at 1002.
However, mere conclusory allegations of jurisdiction are
insufficient. Groundhog v. Keeler, 442 F.2d 674, 677
(10th Cir. 1971). Nevertheless, "a court is required to
convert a Rule 12(b)(1) motion to dismiss into a Rule
12(b)(6) motion or a Rule 56 summary judgment motion when
resolution of the jurisdictional question is intertwined with
the merits of the case." Id. As explained in
the Holt case, "the jurisdictional question is
intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides
the substantive claim in the case." Holt, 46
F.3d at 1002.
Rule 12(b)(6), a court may dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). In deciding such a
motion, the court must "accept as true all well pleaded
factual allegations... and view these allegations in the
light most favorable to the plaintiff." Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). However, a plaintiff may not rely on mere labels
or conclusions, "and a formulaic recitation of the
elements of a cause of action will not do." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). As the Tenth Circuit explained in
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007), "the mere metaphysical
possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual
support for these claims." The plaintiff must frame a
complaint with enough factual matter, when taken as true, to
suggest that he or she is entitled to relief. Robbins v.
Oklahoma,519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 556). The ultimate duty of the
court is to "determine whether the complaint