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Toevs v. Quinn

United States District Court, D. Colorado

March 21, 2017

JANOS TOEVS, Plaintiff,
v.
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.

          ORDER

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on defendants' motion to dismiss or for summary judgment, ECF No. 28, and the Recommendation of Magistrate Judge Nina Y. Wang, ECF No. 49. Magistrate Judge Wang recommends that this Court grant in part and deny in part defendants' motion. Id. at 2. Her recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). For the reasons below, the Court ADOPTS IN PART and REJECTS IN PART Magistrate Judge Wang's Recommendation.

         I. BACKGROUND

         Magistrate Judge Wang provided a detailed summary of the procedural and factual background of this case in her Recommendation. See ECF No. 49 at 2-13. In brief, plaintiff Janos Toevs, a prisoner in the custody of the Colorado Department of Corrections (“CDOC”), alleges that various CDOC officials, as well as employees of the Colorado Attorney General's office, read and confiscated his legal materials, and then convicted him of “unlawful possession” of other inmates' legal materials. See id.; Amended Compl., ECF No. 19, at ¶¶1-128. Mr. Toevs' “legal materials” allegedly included, among other things, letters from his attorneys (including his attorney in this action and in others, Ms. Elisabeth Owen), an unfinished appellate brief in a pending case Mr. Toevs had filed against certain prison officials (“the Milyard litigation”), as well as a complaint and attached exhibits from a related but separate pending case against certain prison officials that Ms. Owen had been working on, but to which plaintiff was not a party (“the Herrera complaint”). ECF No. 19 at ¶¶40-51.

         Based on defendants' alleged tampering with his legal materials and plaintiff's resulting prosecution, Mr. Toevs asserts nine claims for relief, the first seven of which are asserted against all defendants. ECF No. 49 at 3-4; ECF No. 19 at ¶¶123-85. In order, his claims include the following:

(1) retaliation 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 the First Amendment;
(6) denial of right to privacy in violation of the Fourth Amendment;
(7) denial of right to access the courts in violation of the First Amendment;
(8) cruel and unusual punishment in violation of the Eighth Amendment; and
(9) malicious prosecution in violation of Colorado common law.

Id. Claims 1 and 3-8 are brought under 42 U.S.C. §1983. ECF No. 49 at 4. Claim 8 is brought only against defendants Raemisch, Trani, Foster, Barr, and Dent. Id.; ECF No. 19 at ¶¶175-79. Claim 9 is brought only against defendants Quinn, Dent, Foster, Trani, and Raemisch.[1] ECF No. 49 at 4; ECF No. 19 at ¶¶180-85.

         On July 8, 2016, defendants filed a motion to dismiss or for summary judgment on all nine of Mr. Toevs' claims. ECF No. 28. After reviewing the parties' briefings and holding oral arguments on defendants' motion, Magistrate Judge Wang recommended the following:

(1) that Claim 1 proceed only against defendants Barr, Dent, and Will in their respective individual capacities and that the remainder of Claim 1 be dismissed;
(2) that summary judgment be granted in defendants' favor on Claim 2 and that Claim 2 be dismissed for failure to exhaust administrative remedies;[2]
(3) that Claim 3 proceed only against defendants Barr, Dent, and Quinn, and that the remainder of Claim 3 be dismissed for failing to state a claim;
(4) that Claim 4 be dismissed for failing to state a claim;
(5) that Claim 5 proceed only against defendants Barr and Dent in their individual capacities, and that the remainder of Claim 5 be dismissed for failing to state a claim;
(6) that Claim 6 be dismissed for failing to state a claim;
(7) that summary judgment be granted in favor of defendants on Claim 7, and that Claim 7 be dismissed for failure to exhaust administrative remedies;
(8) that summary judgment also be granted in defendants' favor on Claim 8, and that Claim 8 similarly be dismissed for failure to exhaust administrative remedies; and
(9) that Claim 9 be dismissed because the named defendants are entitled to immunity.

ECF No. 49 at 61.

         Only Mr. Toevs objected to Magistrate Judge Wang's Recommendation. See ECF No. 50. Specifically, he objects to two of her recommendations. See Id. at 3. First, he contends that Magistrate Judge Wang applied the wrong legal standard in recommending that Claim Five be dismissed against certain defendants. Id. at 4-7. Second, he argues that Magistrate Judge Wang similarly erred with respect to her recommendation that Claim Six be dismissed in its entirety. Id. at 7-9. Defendants refute plaintiff's objections, but otherwise agree with plaintiff that the remainder of Magistrate Judge Wang's recommendation should be adopted in full. ECF No. 51 at 1; ECF No. 50, at 3 n.1. Mr. Toevs did not file a reply to defendants' response. Accordingly, Magistrate Judge Wang's Recommendation is ripe for this Court's review.

         II. STANDARD OF REVIEW

         A. Magistrate ...


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