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Toevs v. Quinn

United States District Court, D. Colorado

January 31, 2017

JANOS TOEVS, Plaintiff,
JAMES QUINN, First Assistant Attorney General, CYNTHIA COFFMAN, Attorney General for the State of Colorado, KEITH NORDELL, Legal Counsel for the Colorado Department of Corrections, ADRIENNE JACOBSON, Legal Counsel for the Colorado Department of Corrections, THERESA REYNOLDS, Legal Assistant for the Colorado Department of Corrections, RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, TRAVIS TRANI, Warden of the Colorado State Penitentiary, SEAN FOSTER, Associate Warden of the Colorado State Penitentiary, CAROL SOARES, Associate Warden of the Colorado State Penitentiary, FRANK ORTIZ, Litigation Coordinator of the Colorado State Penitentiary, CHRIS BARR, Intelligence Lieutenant at the Colorado State Penitentiary, DANIEL DENT, Intelligence Sergeant at the Colorado State Penitentiary, RAEANNE WILL, Disciplinary Officer at the Colorado State Penitentiary, and DALE BURKE, Hearing Officer at the Colorado State Penitentiary, Defendants.


          Nina Y. Wang United States Magistrate Judge.

         This 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.


         Given 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.

         I. Procedural History

         Plaintiff 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].

         The 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.[1]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].

         Plaintiff 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).

         II. Factual Allegations

         At the 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 this Motion.

         A. The Milyard Appeal and CLCP v. Herrera

         In 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].

         Ms. 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].

         In June 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 number….;
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].

         B. Search of Mr. Toevs's Legal Box

         In 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.[2] [#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].

         Among 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].

         On 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].

         Defendants 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.

         Meanwhile, 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].

         After 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 follows:

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].

         On 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 here:[.] 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].

         On 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].

         CDOC 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 their cells.

[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].

         Plaintiff 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].

         III. Conspiracy Allegations

         Plaintiff 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 ¶ 120].

         Defendants 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].


         I. Fed.R.Civ.P. 56

         Defendants 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.

         Summary 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 (1968)).

         “The 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 Cir. 2014).

         II. Fed.R.Civ.P. 12(b)(1)

         Defendants 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).

         III. Fed.R.Civ.P. 12(b)(6)

         Finally, 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).

         “To 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).


         I. Exhaustion of ...

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