United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
civil action comes before the court on Defendants'
“Motion to Dismiss or Motion for Summary
Judgment.” [#28, filed July 8, 2016]. The matter was
referred to this Magistrate Judge pursuant to the Order
Referring Case and memorandum dated September 1, 2016. [#34].
This court has reviewed the Motion, the entire case file, the
applicable law, and the comments offered during the oral
argument held January 12, 2017. Being fully apprised in the
premises, this court respectfully RECOMMENDS that the Motion
be GRANTED IN PART and DENIED IN PART.
the wide-ranging nature of the Amended Complaint and the
myriad arguments presented in the briefing on the Motion to
Dismiss, this court's discussion of Plaintiff's
factual allegations is extensive.
Janos Toevs (“Plaintiff” or “Mr.
Toevs”) is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”). On December
30, 2015, Mr. Toevs, through his attorney Elisabeth Owen,
filed a thirty-page Complaint naming various individuals
affiliated with the Colorado Attorney General's office
and the CDOC, and asserting eight claims for relief arising
from the confiscation and review of certain of his legal
materials and the subsequent charge and conviction for
unlawful possession of other inmates' legal materials.
See [#1]. Those defendants filed a Motion to Dismiss
on April 22, 2016, [#16], and in response Plaintiff filed an
Amended Complaint on May 16, 2016, which remains the
operative pleading. See [#19].
Amended Complaint names the following individuals as
Defendants: James Quinn, Cynthia Coffman, Keith Nordell,
Adrienne Jacobson, Theresa Reynolds, Rick Raemisch, Travis
Trani, Sean Foster, Carol Soares, Frank Ortiz, Chris Barr,
Daniel Dent, Raenne Will, and Dale Burke. Defendant Quinn is
a First Assistant Attorney General for the State of Colorado
and Defendant Coffman is the Attorney General for the State
of Colorado (collectively, the “AG Defendants”).
Defendants Nordell and Jacobson are identified as former and
current Directors of the CDOC Office of Legal Services and
Defendant Reynolds is the assistant to the Director of the
CDOC Office of Legal Services. [#19 at 2]. Defendant Raemisch
is the Executive Director of the CDOC. Defendant Trani is the
Warden of the Colorado State Penitentiary
(“CSP”), where Plaintiff was incarcerated at the
time relevant to the allegations in the Amended Complaint,
and Defendants Foster and Soares were the Associate Wardens
of CSP during the time in question.Defendant Ortiz was a
Litigation Coordinator at CSP during the time in question;
Defendant Barr was an Intelligence Lieutenant at CSP during
the time in question; Defendant Dent was an Intelligence
Sergeant at CSP during the time in question; Defendant Will
is the Disciplinary Officer at CSP; and Defendant Burke was
the Hearing Officer at CSP during the time in question. [#19
at 2-3]. Defendants Coffman and Jacobson are sued in their
official capacity only. [#19 at ¶¶ 3, 5].
Defendants Raemisch, Dent, Will, and Burke are sued in their
official and individual capacities. [Id. at
¶¶ 7, 13, 14, 15]. Defendants Quinn, Nordell,
Reynolds, Trani, Foster, Soares, Ortiz, and Barr are sued in
their individual capacity only. [Id. at ¶¶
2, 4, 6, 8, 9, 10, 11, 12].
asserts nine claims in all and seven claims against
Defendants as a group: (1) Retaliation for Exercise of
Protected Rights to Access the Court in Violation of the
First Amendment; (2) Conspiracy to Obstruct Justice in
Violation of 42 U.S.C. § 1985; (3) Deprivation of
Property Without Due Process in Violation of the Fourteenth
Amendment; (4) Denial of Right to Counsel in Violation of the
Sixth Amendment; (5) Breach of Attorney-Client Privilege in
Violation of First Amendment; (6) Denial of Right to Privacy
in Violation of the Fourth Amendment; and (7) Denial of Right
to Access the Courts in Violation of the First Amendment.
[#19 at 23-33]. He brings all but the second claim pursuant
to 42 U.S.C. § 1983. The Eighth Claim for Cruel and
Unusual Punishment in Violation of the Eighth Amendment is
also brought pursuant to section 1983 and is asserted against
Defendants Raemisch, Trani, Foster, Barr, and Dent. The Ninth
Claim for Malicious Prosecution in Violation of Colorado
Common Law is asserted against Defendants Quinn, Dent,
Foster, Trani, and Raemisch. [Id. at 33-34]. The
court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331, and supplemental jurisdiction pursuant to 28
U.S.C. § 1367(a).
core of Mr. Toevs's pleading lie allegations that CDOC
employees and employees of Colorado's Attorney General
are improperly confiscating and reading prisoners'
protected legal materials, and that the lack of policy or
directive prohibiting this conduct, or that a culture that
condones this conduct, results in chilling prisoners'
efforts to engage in constitutionally protected behavior,
particularly in seeking access to the courts. The following
factual allegations are taken as true for the purposes of
The Milyard Appeal and CLCP v.
September 2012, Mr. Toevs filed a lawsuit pursuant to 42
U.S.C. § 1983 alleging in relevant part that
intelligence staff's (“Intel”) mismanagement
resulted in violence at the Sterling Correctional Facility
(“SCF”). [#19 at ¶ 19]. The complaint filed
in that matter, Toevs v. Milyard, et al., Civil
Action No. 12-cv-02532-REB-MEH, asserted that Intel
arbitrarily implemented security threat group
(“STG”) classification as retaliation against
prisoners “who spoke out against the policies and
practices of SCF, ” and “as a coercive force to
silence prisoner speech.” [Id. at ¶¶
20-22]. In November 2013, the Milyard court granted
summary judgment for defendants, for which Plaintiff sought
review in the Tenth Circuit Court of Appeals, Case No.
13-1476. [Id. at ¶ 23].
Owen, Plaintiff's attorney here, was simultaneously
pursuing a lawsuit in El Paso County District Court,
captioned Colorado Prison Law Project v. Herrera, et
al., Case No. 13CV300363 (“CPLP v.
Herrera”), in large part to obtain intelligence
files containing STG classifications of certain of her
clients. [#19 at ¶¶ 24, 25]. Plaintiff was aware of
the lawsuit and this specific objective, but was not a party
to that action. [Id. at ¶ 25]. The CPLP v.
Herrera complaint alleged that Intel, including
Defendants Barr and Dent, refused to provide intelligence
files to Ms. Owen in violation of the Colorado Criminal
Justice Records Act. [Id. at ¶ 25]. All the
filings in CPLP v. Herrera were accessible to the
public and no protective order was on file. [Id. at
¶ 26]. During the pendency of CPLP v. Herrera,
Plaintiff discussed with Ms. Owen the prospect of her
representing him in several matters, including a bid for
clemency. Plaintiff ultimately retained Ms. Owen to represent
him in this endeavor. [Id. at ¶ 27].
2013, Ms. Owen mailed to Plaintiff a copy of the CPLP v.
Herrera complaint, which he received through the CSP
legal mail program as governed by CDOC Administrative
Regulation (“AR”) 300-38. AR 300-38 states:
Restricted Inspection Mail: All incoming and
outgoing offender mail to or from a specified class of
persons and organizations, which DOC employees, contract
workers, and volunteers are prohibited from reading to
protect confidentiality, but are permitted to inspect for
contraband in the offender's presence.
The DOC shall ensure and facilitate offender access to
counsel and assist offenders in making confidential contact
with attorneys and their authorized representatives; such
contact includes, but is not limited to uncensored
correspondence. [4-4275] To be considered a confidential
contact from an attorney, their authorized representative, or
legal aid organization, the incoming mailing envelope must
include the following:
a. Attorney's first and last name;
b. Attorney's registration, bar, or license
c. Attorney's complete business address;
d. Mailing envelope must be clearly marked
“PRIVILEGED” or “CONFIDENTIAL.”
[#19 at 5-6]. Plaintiff placed the CPLP v. Herrera
complaint in his legal box, which, pursuant to CDOC policy,
may only be “searched in the presence of the offender,
” and, even then, “attorney-client privileged
documents shall not be read, but only searched for
contraband.” [Id. at ¶ 30]. Plaintiff
used his legal box to store Ms. Owen's other
correspondence, the majority of which pertained to his
clemency bid. [Id. at ¶ 31]. All correspondence
from Ms. Owen to Plaintiff was clearly marked
“Privileged and Confidential” and met all other
requirements for protecting confidentiality prescribed by the
CDOC ARs. [Id. at ¶ 32].
Search of Mr. Toevs's Legal Box
December 2013, while Plaintiff's Milyard appeal
was pending, unnamed CDOC officers removed Plaintiff from the
CSP incentive unit (where he was housed as a reward for good
behavior), relocated him to a “strip cell, ”
required him to disrobe, and performed a body cavity
search. [#19 at ¶¶ 34, 36]. Defendant
Dent then carried Plaintiff's legal box to the strip cell
where he searched the contents and “read every
paper…word for word, line by line.”
[Id. at ¶¶ 37, 38]. Defendant Barr joined
him and “also began a word for word reading of each
piece of paper in Toevs' legal box.” [Id.
at ¶ 39]. “CDOC ARs specifically prohibit CDOC
staff from reading documents in legal boxes.”
[Id. at ¶ 38].
other materials stored in Plaintiff's legal box,
Defendants Dent and Barr read letters between Plaintiff and
numerous attorneys, including lawyers from the Civil Rights
Clinic at the University of Denver, the American Civil
Liberties Union, and the Colorado Prison Law Project. The
CDOC officially recognizes these organizations as providing
legal services to prisoners, and that communications between
prisoners and these organizations are entitled to
confidential and privileged treatment. [#19 at ¶ 40].
Defendants Dent and Barr also read letters addressed from Ms.
Owen to Plaintiff, which were contained in an envelope
labeled with Ms. Owen's full name, attorney registration
number, the words “privileged and confidential, ”
and the words “legal mail” (the “Owen
Letters”). [Id. at ¶ 43]. Finally,
Defendants Dent and Barr read the unfinished Tenth Circuit
appellate brief that Plaintiff was in the process of
finalizing. [Id. at ¶ 41]. Defendants Dent and
Barr then removed the legal box and all its contents from the
strip cell. [Id. at ¶ 44].
January 8, 2014, Defendant Dent returned to Plaintiff the
legal box and most of its contents, along with a shakedown
slip identifying items that Dent and Barr had confiscated:
“7 legal letters and 4 legal folders.” [#19 at
¶ 45 (quotations omitted)]. These 7 legal letters and 4
legal folders consisted of correspondence from Ms. Owen to
Plaintiff and related enclosures. These confiscated materials
included the CPLP v. Herrera complaint and exhibits
thereto, which Ms. Owen had mailed to Plaintiff for the
Milyard case. [Id. at ¶¶ 50, 51].
Dent and Barr forwarded the Owen Letters to Defendant Ortiz,
who was responsible, as CSP litigation coordinator, for
providing information to the Office of the Attorney General
about CDOC's defense in any litigation brought against
the Department or its agents by a CSP prisoner. [#19 at
¶ 52]. Defendant Ortiz read the Owen Letters before
forwarding them to Defendants Nordell and Reynolds in the
CDOC Office of Legal Services. [Id. at ¶ 53].
Defendants Nordell and Reynolds in turn read the Owen Letters
before sending them to Defendant Quinn, the First Assistant
Attorney General responsible for supervising the Office of
the Attorney General's Corrections Unit, which is the
unit that defends CDOC and its agents in litigation brought
by prisoners, including Plaintiff's Milyard
appeal. [Id. at ¶ 54]. Upon receipt, Defendant
Quinn read the Owen Letters and advised Defendants Nordell,
Reynolds, Ortiz, Barr, and Dent that he would confiscate four
of the items, which were exhibits to the CPLP v.
Herrera complaint, on the basis that Plaintiff had no
“compelling interest” in those documents and
should not be in possession of them.
unnamed CDOC officers had transferred Plaintiff to an intake
cell after he had spent approximately eight hours in the
strip cell. [#19 at ¶ 56]. He remained in the intake
cell, also used for “extreme segregation cases, ”
for three days, allowed to wear only his underwear, before he
was transferred to a standard segregation cell, where he
remained under punitive segregation conditions until January
23, 2014. [Id. at ¶¶ 56, 57]. During this
time he was denied access to outdoor exercise. [Id.
at ¶ 58].
learning of these events, Ms. Owen contacted CSP on January
3, 2014 regarding the decision to place Plaintiff into
segregation and search his legal materials. [#19 at ¶
60]. Ms. Owen spoke first with Defendant Dent, who informed
her that Plaintiff was under investigation for
“possession of other offenders' legal work.”
[Id.] Ms. Owen next spoke with Defendant Foster, to
whom she complained that his actions and those of his staff
were not legal. [Id.]. Defendant Foster responded
that Defendant Ortiz had taken possession of Plaintiff's
legal materials and given them to Defendant Quinn and the
Office of Legal Services, Quinn was overseeing the
“investigation, ” and Foster and his staff were
awaiting instructions from Quinn. [Id.] Ms. Owen
again contacted Defendants Foster and Ortiz, as well as
Defendants Trani and Quinn, by email to complain that they
were violating Plaintiff's clearly established
constitutional rights and to demand they return
Plaintiff's legal material. [Id. at ¶ 61].
Defendant Foster responded to Ms. Owen's e-mails as
Ms. Owen, the Attorney General's Office is fully aware of
all aspects of our investigation. Mr. Toeves [sic] will
remain on removal from population status and we will follow
the AGs direction pertaining to his legal material. Mr. Ortiz
will review the other details of your request. No one's
rights have been violated.
[#19 at ¶ 62].
January 7, 2014, Defendant Dent transmitted the following
email to Defendant Trani:
During a [telephone] call Toevs informed the called parties
that Owen had sent him a printed copy of an NPR story. The
NRP information regarding copyright protection can be found
I am not certain the NPR story is part of the materials that
were confiscated, but it is very likely. I have monitored all
of Toevs calls going back to 9/1/13. I will complete a
supplement to the threat assessment tomorrow that includes
all pertinent information from those calls.
[#19 at ¶ 63]. Within hours, Defendant Trani responded
and directed Defendant Dent to forward the information to
Defendant Quinn. [Id. at ¶ 64].
January 15, 2014, Ms. Owen sent an email to Defendant Quinn
demanding he return, or facilitate the return, of
Plaintiff's legal materials and instruct his clients to
drop the “Unauthorized Possession” charge she
believed CDOC had brought against Plaintiff. [#19 at ¶
65]. CDOC had not charged Plaintiff at that time. As of the
date Plaintiff initiated this action, Quinn had not responded
to Ms. Owen's January 15, 2014 email. [Id. at
¶ 69]. Later in the day on January 15, 2014, Defendant
Will served Plaintiff with a write-up for Unauthorized
Possession. [Id. at ¶ 68]. The notice advising
Plaintiff of the charge against him read as follows:
On January 8, 2014 at approximately 1442 hours Sgt. Dent
completed an investigation of potentially questionable
“legal” materials found in the possession of
Offender Toevs, Janos #63992 E7/14 CSP. Offender Toevs was
placed on RFP or Removal From Population status pending an
investigation by CSP Intel based on information that they
received. As part of the investigation, a property search was
conducted in full view of the offender. Several questionable
legal items were found in the offender's legal box. The
items were scanned, not read for content, and delivered to
the Facility Legal Liaison for further review. Upon further
review by the Office of Legal Services and the Office of the
Attorney General, four items were deemed as contraband.
Offender Toevs was found to possess four items, labeled:
exhibit 5, exhibit 6, exhibit 7 and exhibit 8, that were
identified by the Office of the Attorney General as [i]tems
Offender Toevs did not have authorization to possess. Two of
these items specifically verify that the Colorado Department
of Corrections (CDOC) is tracking the Security Threat Group
(STG) status of specific offenders. To provide STG
information about offenders to another offender creates a
potential threat to the safety and security of CDOC
[e]mployees, [o]ffenders[, ] and facilities. Offender Toevs
is not included in this list of offenders and has no
compelling reason to possess the exhibits. According to AR
750-01 titled Legal Access, “Offenders may provide
assistance to one another; however, time, place, and manner
will be regulated. When legal documents are being prepared,
exchanged inside or outside the law library, all involved
offenders must be present. Offenders are required to return
all documents to their owner before parting company.
Offenders are allowed to maintain only their own legal work
in their personal possession or in their cells.” The 4
exhibits were entered into evidence. Offender Toevs was not
authorized to possess the 4 exhibits of documentation as the
items were deemed contraband.
[#19 at ¶ 70].
held a hearing on the Unauthorized Possession charge on
January 17, 2014. Defendant Will prosecuted the case and
Defendant Burke adjudicated the matter. [Id. at
¶ 73]. Plaintiff pled not guilty to Unauthorized
Possession and testified that Ms. Owen “had properly
sent him the documents he was charged with possessing without
authorization.” [Id. at ¶ 74]. For the
prosecution, Defendant Will reasserted that Plaintiff had
violated AR 750-01:
Offenders may provide assistance to one another; however the
time, place, and manner will be regulated. When legal
documents are being prepared, exchanged inside or outside the
law library, all involved offenders must be present.
Offenders are required to return all documents to their owner
before parting company. Offenders are allowed only to
maintain their own legal work in their personal possession or
[Id. at ¶ 76]. Plaintiff maintained there was
no evidence that he was in possession of another
offender's legal work. [Id. at ¶ 77].
Defendant Burke accepted as true that Plaintiff received the
documents at issue from his attorney, but nonetheless found
Plaintiff guilty of Unauthorized Possession, stating,
“Report by Sgt. Dent stating Toevs possessed legal
papers that the State Office of the Attorney General said he
was not authorized to possess, copy of these papers.”
[Id. at ¶¶ 80, 82]. Neither Defendant
Burke nor Will identified the CPLP v. Herrera
complaint and exhibits thereto as confidential during the
course of the hearing. [Id. at ¶ 81]. Defendant
Burke sentenced Plaintiff to thirty days' loss of good
time, which did not take into consideration the twenty-four
days that Plaintiff had already spent in segregation, which
he asserts was, at the time, nine days longer than the Code
of Penal Discipline sanctions for punitive segregation.
[Id. at ¶ 83]. As a result of the conviction,
Defendant Trani removed Plaintiff from his incentive pod
status and Plaintiff lost his eligibility, for two years, to
petition the governor for commutation of his life sentence.
The loss of eligibility “render[ed] the previous twelve
years of Toevs' display of good behavior irrelevant for
purposes of his clemency bid.” [Id. at ¶
88]. On January 22, 2014, Plaintiff appealed the conviction
pursuant to CDOC regulations. Defendant Soares upheld the
conviction on February 19, 2014. [Id. at ¶ 90].
thereafter retained Ms. Owen to appeal the conviction to the
Fremont County District Court, naming Trani and Raemisch as
defendants. [#19 at ¶ 91 (citing Case No. 14CV30069)].
The district court affirmed the conviction and Plaintiff
appealed that decision to the Colorado Court of Appeals. On
January 14, 2016, the Colorado Court of Appeals found in
relevant part that “[n]o direct evidence was presented
at the disciplinary hearing that the AG actually deemed the
documents contraband and, if so, why, ” and reversed
the district court's finding “that there was some
evidence to support CDOC's Unauthorized Possession
conviction, ” and remanded the matter to the district
court with instructions to reverse Toevs's disciplinary
conviction. [Id. at ¶¶ 97, 98 (quotation
marks omitted)]. Defendant Trani subsequently expunged the
conviction from Plaintiff's CDOC record. [Id. at
¶ 99]. However, no one has returned Plaintiff to his
incentive pod status or returned to him the confiscated
CPLP v. Herrera complaint and exhibits.
[Id. at ¶¶ 101, 102].
alleges that he intended to argue to the Tenth Circuit that
“CDOC's characterization of the grievance process
in Toevs v. Milyard was intentionally fraudulent-a
fact not only known to, but actually enabled by, the AG's
Office, ” thereby accusing CDOC officials of perjury
and the AG's Office of “repeated Rule 11
violations.” [#19 at ¶¶ 106, 107]. Plaintiff
intended to use the CPLP v. Herrera exhibits to
support the allegation that “CDOC officials conspire
with the AG's Office to intentionally deceive the courts
by misrepresenting the factual circumstances of prison
life-including what is and is not an available remedy.”
[Id. at ¶ 108]. For example, Plaintiff alleges,
“[a]s a matter of policy and practice, CDOC makes its
grievance process completely unavailable to prisoners,
frustrating their ability to exhaust their administrative
remedies as required by the Prison Litigation Reform Act,
thereby setting up the AG's arguments in litigation that
a prisoner has failed to exhaust.” [Id. at
filed the pending Motion on July 8, 2016. [#28]. Following
multiple requests for extensions of time from both sides, the
Parties completed briefing on October 12, 2016. See
[#33; #40]. This court set a Motion Hearing to be held
December 6, 2016, and later reset the hearing to January 12,
2017 at Plaintiff's request. See [#41, 44]. On
that date, this court heard oral argument from both counsel
and took the matter under advisement. See [#46].
argue that the court should dismiss Plaintiff's Amended
Complaint and enter summary judgment in their favor because
Plaintiff failed to exhaust the available administrative
remedies. [#28 at 11]. A prisoner's failure to exhaust
administrative remedies is an affirmative defense that the
defendant must raise, and thus the question of exhaustion is
not amenable to disposition on a Rule 12(b)(6) motion.
See Jones v. Bock, 549 U.S. 199, 216 (2007).
Therefore, I will consider the issue of exhaustion pursuant
to Rule 56, and otherwise apply Rule 12(b) standards to
Defendants' other arguments.
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249 (1986)). Whether there is a genuine dispute as
to a material fact depends upon whether the evidence presents
a sufficient disagreement to require submission to a jury or
conversely, is so one-sided that one party must prevail as a
matter of law. Anderson, 477 U.S. at 248-49;
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. U.S. Postal Service, 812
F.2d 621, 623 (10th Cir. 1987). A fact is
“material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable party could return a verdict for
either party. Anderson, 477 U.S. at 248.
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing First Nat.
Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289
movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71
(10th Cir. 1998) (citing Celotex, 477 U.S. at 323).
The movant can achieve this by pointing the court to a lack
of evidence for the nonmovant on an essential element of the
nonmovant's claim. Id. at 671. Once the movant
meets this initial burden, the nonmovant assumes the burden
to put forth sufficient evidence to demonstrate the essential
elements of the claim such that a reasonable jury could find
in its favor. See Anderson, 477 U.S. at 248;
Simms v. Okla. ex rel. Dep't of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999). Conclusory statements based merely on speculation,
conjecture, or subjective belief are not competent summary
judgment evidence. See Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving
party's evidence must be more than “mere reargument
of [her] case or a denial of an opponent's allegation,
” or it will be disregarded. See 10B Charles
Alan Wright, et al., Federal Practice and Procedure §
2738 at 356 (3d ed.1998). See also Sartori v. Susan C.
Little & Assocs., P.A., 571 F. App'x 677, 680 (10th
also argue under various theories of immunity that the court
is divested of subject matter jurisdiction over the claims
asserted against them. 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.
U.S. Army, Corps of Engineers, 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).
Defendants argue that Plaintiff fails to state a cognizable
claim. Under 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 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 (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).
survive a motion to dismiss, 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). Plausibility
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (citation omitted). “The
burden is on the plaintiff to frame ‘a complaint with
enough factual matter (taken as true) to suggest' that he
or she is entitled to relief.” Id. The
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Exhaustion of ...