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Clark v. Raemisch

United States District Court, D. Colorado

April 7, 2016

RICK RAEMISCH, in his official and individual capacities, ANGEL MEDINA, in his individual capacity, LOU ARCHULETA, in his individual capacity, TINO HERRERA, in his individual capacity, LARRY TURNER, in his individual capacity, TRAVIS TRANI, in his individual capacity, DENNIS BURBANK, in his individual capacity, CHRIS BARR, in his individual capacity, JAMES OLSON, in his individual capacity, CORRECTIONS CORPORATIONS OF AMERICA, a Maryland Corporation, TODD THOMAS, in his individual capacity, BEN GRIEGO, in his individual capacity, JODY BRADLEY, in his individual capacity, NICK PASTELLA, in his individual capacity, and NICK CARRIER, in his individual capacity, Defendants,



This matter is before the Court on defendants’ motions to dismiss [ECF Nos. 54 and 55] and the recommendation of Magistrate Judge Michael J. Watanabe that the motions be granted in part and denied in part [ECF No. 88]. The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

The recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the recommendation. ECF No. 88 at 21. In Judge R. Brooke Jackson response to plaintiff’s request, this Court extended the objections deadline to March 28, 2016. ECF Nos. 89, 90. The Corrections Corporation of America-related defendants and plaintiff filed timely objections. ECF Nos. 91, 92. The Colorado Department of Corrections-related defendants did not file objections. The Court has reviewed all of the relevant pleadings and Magistrate Judge Watanabe’s recommendation. Following my review, I adopt in part and reject in part the Magistrate Judge’s recommendation.


This case arises out of Plaintiff Willie Clark’s time in prison in Colorado and Arizona. He is currently housed at a correctional facility in Las Cruces, New Mexico. ECF No. 23 at 1. Clark is serving life without parole after being convicted of two murders in Colorado. Id. at ¶ 20-23.

Plaintiff names a number of defendants. At all relevant times, Rick Raemisch served as the executive director of the Colorado Department of Corrections (CDOC); Angel Medina and Lou Archuleta were Directors of Offender Services at CDOC; Tino Herrera was a criminal investigator at the CDOC Office of the Inspector General; Larry Turner was Director of the CDOC Interstate Compact Office; Travis Trani was Warden of the Colorado State Penitentiary (CSP); Dennis Burbank was the Administrative Services Manager of CSP; Chris Barr was one of CDOC’s intelligence lieutenants at CSP; and James Olson was the head case manager at CSP. Id. at ¶¶ 5-13. The Court will refer to these defendants collectively as “CDOC defendants.” Plaintiff also names defendants connected to the Saguaro Correctional Center (SCC), located in Eloy, Arizona. At all relevant times, the Corrections Corporation of America (CCA) owned and operated SCC; Todd Thomas was warden of SCC; Ben Griego was an Associate Warden of SCC and also the former Director of Offender Services for CDOC; Jody Bradley was an Associate Warden of SCC; Nick Pastella was Chief of Security at SCC; and Nick Carrier was Chief of Unit Management at SCC. Id. at ¶¶ 14-19. The Court will refer to these defendants collectively as “CCA defendants.”

CDOC took custody over Clark in May 2010. Id. at ¶ 23. CDOC promptly assigned Clark to administrative segregation (“ad-seg”). Id. at ¶ 24. CDOC explained its rationale for this assignment, noting his two convictions for violent crimes. Id. CDOC stated that Clark’s “presence in [g]eneral [p]opulation would be unsafe for both staff and offenders” because of “the current notoriety of his conviction, length of sentence, and the severity of his crimes[.]” Id. Therefore, CDOC placed Clark in Colorado’s “supermax” facility-the CSP-located in Canon City, Colorado. Id. at ¶¶ 25-26. Plaintiff alleges that, despite prison officials’ noting Clark’s “appropriate, ” “respectful, ” and “compliant” behavior, CDOC kept Clark in ad-seg “indefinitely and unjustifiably[.]” Id. at ¶¶ 27-28. On September 23, 2010, CDOC transferred Clark to another supermax prison in Canon City-the Centennial Correctional Facility-South (CCF-South). Id. at ¶ 29. Plaintiff claims that this facility imposes “even more isolating and restrictive” conditions on prisoners. Id. at ¶ 30.

Directly after his initial assignment to ad-seg in May 2010, Clark began to protest the conditions of his confinement. Id. at ¶ 31. He started to file grievances, and he also hired an attorney. His attorney requested that CDOC place Clark in a general population facility with “less psychologically and physically damaging” conditions. Id. at ¶¶ 31-35. A prison official explained to Clark’s lawyer that the “true reason” for Clark’s ad-seg classification was that individuals present at Clark’s trial in Denver County believed that Clark was a flight risk. Id. at ¶ 36. Clark’s attorney’s relayed this information to Clark, which upset prison officials. Id. at ¶ 39. Prison officials, including defendant Barr, met with Clark to discuss his alleged escape risk. Id. at ¶ 37. In April 2012, CDOC transferred Clark to a general population facility. Id. at ¶¶ 40- 48.

In June 2012 Clark was involved in an altercation with other inmates, which quickly escalated and resulted in an inmate attacking him. Prison officials utilized pepper spray against the other inmates to “break up the altercation, ” but according to plaintiff they “violently restrained” Clark. Id. at ¶¶ 49-55. CDOC immediately moved him back to CCF-South charged him with disciplinary actions, and placed him on a restricted status. Id. at ¶¶ 56-59. The prison held a hearing to determine whether another ad-seg classification was a justified and concluded that it was. Id. at ¶¶ 60-72.

Clark initiated a proceeding in the Fremont County District Court to challenge his ad-seg classification. Id. at ¶ 73. During the pendency of this case, Clark participated in a “step-down” program. The step-down program is designed to transition inmates from a high-security facility back into a general population facility. CCF-South closed while Clark was housed there, so he was moved back to CSP. Id. at ¶ 74 n.1. Clark successfully completed this program, but his ad-seg status did not change, and he remained at CSP. Id. at ¶¶ 74-83.

In September 2013 CDOC transferred Clark to SCC. Id. at ¶ 84. Clark’s transfer disrupted his communications with a newspaper reporter based in Denver who was writing a “lengthy feature story” about Clark’s “confinement in CDOC.” Id. at ¶¶ 87-91. Plaintiff alleges that after his transfer, CDOC “refused to provide information” to the reporter about where it had transferred Clark. Id. at ¶ 89. Additionally, the transfer violated CDOC’s procedures for out-of-state transfers and was “effectuated with unprecedented speed[.]” Id. at ¶ 95.

Shortly after his transfer, on October 2013, Fremont County District Court Stephen Groome vacated CDOC’s decision to place Clark in ad-seg. Id. at ¶ 97. Despite this order, defendants Thomas, Griego, Bradley, Pastella, and Carrier (as agents of CCA) placed Clark in ad-seg at SCC. Id. at ¶ 98. Thomas and Griego told Clark his transfer to SCC “was a favor to CDOC, ” and he would remain there for six to nine months on a “courtesy hold.” Id. at ¶ 100. The ad-seg conditions at SCC are said to be “perhaps even more isolating and psychologically damaging” than those in CDOC. Id. at ¶ 99.

Throughout Clark’s time in Colorado and Arizona correctional facilities, he claims that prison officials interfered with his legal matters and his interactions with his lawyer. For example, officials eavesdropped on his phone calls, opened legal correspondence, attempted to prevent his attorney from calling him, and housed him in cells with informants who “searched through” and read his confidential legal materials. Id. at ¶¶ 64, 92-94, 101-05, 114-15, 116-37. Additionally, officials threatened adverse actions if he continued seeking the assistance of legal counsel and advocating for his rights. Id. at ¶¶ 103-105. Specifically, Thomas threatened to send someone to physically harm Clark if he kept filing grievances and advocating for “redress of his rights.” Id. at ¶ 106. Clark’s attorney did not make any further contact with CCA officials out of fear for Clark’s safety. Id. at ¶ 107. Thomas and Greigo used derogatory language when speaking with Clark about his attorney and told him that she was being disbarred, which was not true. Id. at ¶ 109. Additionally, Griego informed Clark’s attorney that Clark would not remain in ad-seg if “he would just ‘lay low’ and stop complaining.” Id. at ¶ 120.

In July 2014 after “two more months of tortuous treatment, ” Clark was transferred from SCC to the prison in New Mexico where he is housed today. Id. at ¶ 125. On June 5, 2014, Clark filed this suit, alleging that CDOC defendants and CCA defendants retaliated against him for exercising his First Amendment rights. ECF No. 1. He filed his Amended Complaint, the operative pleading, on November 26, 2014. ECF No. 23. He brings three claims for relief:

1. Claim One for retaliation in violation of the First Amendment against all defendants;
2. Claim Two for conspiracy to retaliate in violation of the First Amendment asserted against defendants Raemisch, Archuleta, Trani, CCA, Thomas, and Griego; and
3. Claim Three for false imprisonment against defendants CCA, Thomas, Griego, Bradley, Pastella, and Carrier.

ECF No. 23 at 28-30. Plaintiff seeks declaratory and prospective relief, an order mandating his return to general population in the custody of another entity other than CDOC, and different types of damages. Id. at 30-31.

All defendants have moved to dismiss. CCA defendants move to dismiss for lack of personal jurisdiction and failure to state a claim. ECF No. 54. CDOC defendants move to dismiss for lack of subject matter jurisdiction and failure to state a claim. ECF No. 55.



Following the issuance of a magistrate judge’s recommendation on a dispositive matter, the district court judge must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3).

A. Subject Matter Jurisdiction - Fed.R.Civ.P. 12(b)(1).

A court may dismiss a complaint for lack of subject matter jurisdiction. Rule 12(b)(1) motions may come in two forms: either “a facial attack on the complaint’s allegations as to subject matter jurisdiction [that] questions the sufficiency of the complaint” or “a factual attack” on the facts upon which subject matter jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

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). Where resolution of the jurisdictional question “is intertwined with the merits of the case, ” the court must convert the Rule 12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion. Id.; Fed.R.Civ.P. 12(d). “The burden of establishing subject-matter jurisdiction is on the party asserting ...

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