United States District Court, D. Colorado
ORDER OVERRULING PLAINTIFF'S OBJECTION, ADOPTING
IN PART AND REJECTING IN PART THE NOVEMBER 7, 2016
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE GRANTING
IN PART AND DENYING IN PART DEFENDANT'S MOTION TO
William J. Martínez Judge
Thomas Dean Tillery brings this 42 U.S.C. § 1983 case
pro se against Defendants Rick Raemisch, John
Chapdelaine, James Falk, Robert Dick, and Leonard Woodson III
(“Defendants”), claiming violation of his
Fourteenth Amendment rights. This matter is before the Court
on the November 7, 2016 Recommendation by U.S. Magistrate
Judge Scott T. Varholak (“Recommendation, ” ECF
No. 27) that Defendants' Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (“Motion, ”
ECF No. 19) be granted in part and denied in part. Plaintiff
filed an objection to the Recommendation. (“Objection,
” ECF No. 28.) No response was filed by Defendants. For
the reasons set forth below, Plaintiff's Objection is
overruled, the Magistrate Judge's Recommendation is
adopted in part and rejected in part, and the Defendants'
Motion is granted in part and denied in part.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any part of
the magistrate judge's [recommendation] that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). In
conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Id. Here, Plaintiff filed a
timely objection to the Magistrate Judge's
Recommendation. See Fed. R. Civ. P. 72(b)(2).
Therefore, this Court reviews the issues before it de
Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a case by asserting that the court lacks
subject-matter jurisdiction over the claims in the operative
complaint. See Fed. R. Civ. P. 12(b)(1). Rule
12(b)(1) motions generally take one of two forms: a facial
attack or a factual attack. When reviewing a facial attack on
a complaint pursuant to Rule 12(b)(1), the Court accepts the
allegations of the complaint as true. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a factual attack on a complaint supported by
affidavits and other documents, the Court makes its own
factual findings and need not convert the motion to one
brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure. Id. at 1003.
Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss a claim for “failure to state a claim
upon which relief can be granted.” Fed R. Civ. P.
12(b)(6). In evaluating such a motion, a court must
“assume the truth of the plaintiff's well-pleaded
factual allegations and view them in the light most favorable
to the plaintiff.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
addition, Plaintiff is proceeding pro se; thus, the
Court must liberally construe his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v.
United States Gov't, 472 F.3d 1242, 1243 (10th Cir.
2007). The Court, however, cannot act as advocate for
Plaintiff, who must still comply with the fundamental
requirements of the Federal Rules of Civil Procedure. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);
see also Ledbetter v. City of Topeka, Kan., 318 F.3d
1183, 1188 (10th Cir. 2003).
party objects to the recitation of facts set forth by the
Magistrate Judge in the November 7, 2016 Recommendation. (ECF
No. 27 at 1-5.) Accordingly, the Court adopts and
incorporates Sections I and II of that Recommendation as if
set forth herein. Briefly, Plaintiff is a prisoner and has
been incarcerated at the Sterling Correctional Facility
(“SCF”) at all times relevant to this litigation.
(ECF No. 6 at 2.) Defendants are employees of the Colorado
Department of Corrections (“CDOC”).
(Id.) Plaintiff was convicted on April 20, 2006, and
was ultimately re-sentenced to two indeterminate eight-year
to life sentences, running consecutively. (Id. at 6,
¶ 8.) Thus, absent other factors, Plaintiff could be
eligible for parole in 2022. Plaintiff alleges that as a
convicted sex offender he must progress through a sex
offender treatment and monitoring program
(“SOTMP”), and that participation in the program
“is an absolute prerequisite for release to parole in
Colorado.” (Id. at 5, ¶ 3 (citing Colo.
Rev. Stat. § 18-1.3-1006(1)(a)).) Plaintiff alleges that
CDOC has him incarcerated in a facility, SCF, that does not
offer the treatment program, and that CDOC “will not
transfer prisoners to other facilities for the purpose of
obtaining treatment.” (Id. at 6, 8,
¶¶ 9, 10, 19 (emphasis in the original).) Plaintiff
also alleges that he has requested a transfer for purposes of
obtaining treatment, and has exhausted all of his
administrative remedies. (Id. at 18, 38.) Plaintiff
alleges due process violations because the CDOC's
arbitrary “denial of access to [the SOTMP] program has
imposed an atypical and significant hardship” on him in
relation to the ordinary incidents of prison life “by
rendering [him] ineligible for parole.”
(Id. at 8, ¶ 22 (emphasis in the original).)
Magistrate Judge recommended that Defendants' Motion be
granted in part and denied in part. (ECF No. 27 at 1.)
Specifically, the Magistrate Judge recommended that
Defendants' motion be granted to the extent it seeks
“dismissal of all claims for monetary relief” and
“dismissal of all claims against Defendant Falk,
” but denied to the extent it seeks “dismissal of
claims for prospective injunctive and declaratory relief
against Defendants Raemisch, Chapdelaine, Dick, and
Woodson.” (Id. at 16.) The Magistrate Judge
made several findings to reach that recommendation. Plaintiff
has specifically objected to the finding that he is not
seeking monetary damages. (ECF No. 28 at 2.) Where Plaintiff
does not object to the Magistrate Judge's findings, the
Court reviews those findings under a “clearly
erroneous” standard of review. The Court will now
address the Magistrate Judge's findings and
Plaintiff's objection in turn.
action raises a threshold question of ripeness because
Plaintiff has filed this action well in advance of his parole
eligibility date. “[F]or a claim to be justiciable
under Article III, it must present a live controversy, ripe
for determination, advanced in a clean-cut and concrete
form.” Kan. Judicial Review v. Stout, 519 F.3d
1107, 1116 (10th Cir. 2008). Although neither party has
raised whether the absence of ripeness deprives this court of
jurisdiction, every federal court has an independent duty to
examine its jurisdiction at every stage of the litigation.
See Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 95 (1998); Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988); see also Roe No. 2
v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001)
(acknowledging that the ripeness doctrine has both
constitutional and prudential components).
ripeness requirement is meant “‘to prevent
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.'”
New Mexicans for Bill Richardson v. Gonzales, 64
F.3d 1495, 1498-99 (10th Cir. 1995) (quoting Abbott Labs.
v. Gardner, 387 U.S. 136, 148 (1967)). The main focus in
determining if an issue is fit for judicial review is
“whether the case involves uncertain or contingent
future events that may not occur as anticipated, or indeed
may not occur at all.” Id.; see also
Erwin Chemerinsky, Federal Jurisdiction 117 (Vicki Been
et al. eds., 5th ed. 2007) (citing Abbott
Labs., 387 U.S. at 148) (“The ripeness doctrine
seeks to separate matters that are premature for review
because the injury is speculative and may never occur, from
those cases that are appropriate for federal court
Court is concerned as to “whether the harm asserted [by
Plaintiff ]has matured sufficiently to warrant judicial
intervention.” Warth v. Seldin, 422 U.S. 490,
499 n.10 (1975). Instructive on the ripeness issue is the
Ninth Circuit's decision in Neal v. Shimoda, 131
F.3d 818 (9th Cir. 1997). In Neal, appellants sought
reversal of the lower court's conclusion “that the
inmates' ex post facto challenge to the [Sex Offender
Treatment Program] was not ripe because neither inmate was
eligible for parole under the terms of their sentences at the
time the challenges were brought. Therefore, neither inmate
had suffered any harm by the speculative possibility that he
might be denied parole eligibility sometime in the
future.” Id. at 324. The Ninth Circuit
disagreed with the lower court and found that the ex post
facto claim was ripe for review. Id. at 825.
The Ninth Circuit stated that “this is not a case that
involves contingent future events that may not occur as
anticipated, or indeed may not occur at all . . . [because
plaintiffs] have already been labeled as sex offenders, and
it is guaranteed that they will not become eligible for
parole if they do not successfully complete the required
treatment program.” Id.; but see Vega v.
Lantz, 2008 WL 3992651, at *10 (D. Conn. Aug. 25, 2008)
(plaintiff filed a lawsuit forty years prior to when he could
be considered for parole; the court noted that his
“challenges of the conditions on his parole eligibility
and the effect of his Sex Offense Treatment Needs score on
his parole eligibility are so far in the future, and
susceptible to possible changes, that they are not ripe for
review at this time”).
holding in Neal is quite applicable to the facts
alleged here. First, at the motion to dismiss stage the Court
must assume the veracity of the factual allegations in
Plaintiff's amended complaint. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Plaintiff in the
present case has alleged that he has been labeled a sex
offender and without demonstrating participation in SOTMP to
the parole board he will be deemed ineligible for
parole-identical to the inmates in Neal. Further,
Plaintiff alleges that the CDOC will never transfer him, or
other inmates like himself at SCF, for purposes of treatment.
(ECF No. 6 at 6, 8, ¶ ¶ 10, 19.) Although a nearly
threadbare allegation, the Court notes that Defendants have
never challenged this, or raised ripeness issues suggesting
Plaintiff's allegation is factually unsupported. (See
generally ECF No. 19.) Therefore, accepting
Plaintiff's factual allegations as true, the Court finds
that this is not a case that involves “contingent
future events.” See Neal, 131 F.3d at 825.
Rather, Plaintiff's denial of parole in 2022 is a
definite event that will likely occur as anticipated. Thus,
the Court holds that in these circumstances Plaintiff's
claims are ripe for review at this time.