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Ybanez v. Raemisch

United States District Court, D. Colorado

February 25, 2016

RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections (CDOC), LOU ARCHULETA, in his official capacity as Director of Prisons for CDOC, BERNADETTE SCOTT, in her official capacity as Lieutenant of the SCF Mail Room and in her individual capacity, SCF MAIL ROOM EMPLOYEE


CRAIG B. SHAFFER, Magistrate Judge.

This matter comes before the court on the "State Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint" (Doc. 80), filed on August 11, 2015, by Defendants Rick Raemisch, Lou Archuleta, Bernadette Scott, Michelle Nycz-Halligan, Iris Christians, Edward Smith, Randy Olguin, William Brunell, Angel Medina, Robert Hradecky, John Chapdelaine, Deon Jimenez, Claudia Ochoa, Robert Ryles, and Pamela Plough (collectively "CDOC Defendants"). Plaintiffs filed their Response (Doc. 85) on August 31, 2015. The CDOC Defendants did not file a Reply.

Also before the court is "Defendant Michael Miller's Motion to Dismiss" (Doc. 81), filed on August 17, 2015. Plaintiffs filed their Response (Doc. 86) on September 10, 2015, and Defendant Miller filed his Reply (Doc. 88) on September 24, 2015. These Motions were referred to the Magistrate Judge by Memorandum (Doc. 95) on November 12, 2015. This court has carefully considered the Motions, the related briefing, the entire case file, and applicable case law. For the following reasons, the court recommends that the CDOC Defendants' Motion be granted in part and denied in part. The court further recommends that Defendant Miller's Motion be granted.


Plaintiffs Nathan Ybanez, Simon Sue, Sam Lincoln, Atorrus Rainer, Greg Rivas, and Patrick Suchaiya, inmates who are proceeding pro se, bring this action pursuant to 42 U.S.C. § 1983 against various employees of the Colorado Department of Corrections ("CDOC"). They also assert a claim against Warden Michael Miller, who is employed by a privately run facility that is owned and operated by Corrections Corporation of America. (Doc. 55 at 22, ¶ 47). Plaintiffs allege numerous violations under the First and Fourteenth Amendments arising from Defendants alleged censorship and seizure of magazines and personal mail deemed to be "sexually explicit." All of the alleged incidents of censorship took place while Plaintiffs were housed at the Sterling Correctional Facility ("SCF").[1]

According to the allegations in the Third Amended Prisoner Complaint ("Complaint") (Doc. 55), the CDOC was previously subject to a settlement agreement that prohibited it from censoring sexually explicit materials unless it fit within the following categories:

Materials that clearly depict or describe bestiality, pedophilia, sadism, masochism, necrophilia, discharge of bodily fluid, oral, anal or vaginal penetration by animate or inanimate objects, or oral sex.

(the "original policy") (Doc. 55 at 6-7; see also Exhibit 1, Doc. 55 at 35[2]). The original policy, codified as AR 300-26, also specifically provided that materials could not be rejected solely because "its content is religious, philosophical, political, social, or sexual, or because of its religious, philosophical, political, or social views, its sexual content, or because it is unpopular, repugnant, or critical of the [CDOC] or other government authority" ("content-based categories") ( Exhibit 1, Doc. 55 at 36) (emphasis added).

However, following the expiration of the settlement agreement, the CDOC amended AR 300-26 ("June 2012 policy"). Among the many changes to the policy, the definition of "sexually explicit" material was amended to include nudity. (Doc. 55 at 7, see also Exhibit 2, Doc. 55 at 53). In addition, "sexual content" was specifically removed from the list of content-based categories. ( Exhibit 2, Doc. 55 at 55). The policy was amended again in November 2012 ("November 2012 policy"). This version retained the new definition of "sexually explicit, " but it also provided for certain categories of exceptions that could be permitted: "A publication may be allowed which would otherwise fall within the definition of sexually explicit if [] the publication has literary, educational, scientific, artistic or historic value."[3] ( Exhibit 3, Doc. 55 at 71). Plaintiffs allege that this list of exceptions is nominal, and that in practice, exceptions are never actually permitted. (Doc. 55 at 11, ¶ 12). The November 2012 policy also allegedly "made any sexually explicit materials which had previously been processed into the prison system [into] contraband." (Doc. 55 at 7).

Following the enactment of these amended versions of AR 300-26, Defendants allegedly withheld numerous publications and items of personal mail that did not meet the definition of "sexually explicit, " or that fell within one of the exceptions. In addition, Defendants seized, and declared as contraband, a number of items that had been permitted under the original policy. Plaintiffs claim that many of these items were withheld or seized from them without any notice or any opportunity to appeal the decisions. Plaintiffs seek recovery in the form of injunctive relief and monetary damages.


A. Fed.R.Civ.P. 12(b)(1)

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint's allegations or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.

When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

B. Fed.R.Civ.P. 12(b)(6)

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), 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, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ...

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