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Tillery v. Raemisch

United States District Court, D. Colorado

January 18, 2017

RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, JOHN CHAPDELAINE, Warden of the Sterling Correctional Facility, JAMES FALK, Warden of the Limon Correctional Facility, ROBERT DICK, Manager II of the Sterling Correctional Facility, and LEONARD WOODSON, III, Director of SOTMP, Defendants.


          William J. Martínez Judge

         Plaintiff 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.


         When a 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 novo.

         Under 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.

         Under 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).

         In 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).


         Neither 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).)

         III. ANALYSIS

         The 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.

         A. Ripeness

         This action raises a threshold question of ripeness because Plaintiff has filed this action well in advance of his parole eligibility date.[1] “[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).

         The 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 action.”).

         The 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”).

         The 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.

         B. Eleventh ...

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