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Toevs v. Quinn
United States District Court, D. Colorado
March 21, 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.
Brooke Jackson United States District Judge.
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.
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
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
(1) retaliation in violation of the First Amendment;
(2) conspiracy to obstruct justice in violation of 42 U.S.C.
(3) deprivation of property without due process in violation
of the Fourteenth Amendment;
(4) denial of right to counsel in violation of the Sixth
(5) breach of attorney-client privilege in violation of the
(6) denial of right to privacy in violation of the Fourth
(7) denial of right to access the courts in violation of the
(8) cruel and unusual punishment in violation of the Eighth
(9) malicious prosecution in violation of Colorado common
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. ECF No. 49 at 4; ECF No. 19 at
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;
(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.
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
STANDARD OF REVIEW