United States District Court, D. Colorado
ORDER ADOPTING AND AFFIRMING OCTOBER 31, 2016
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
matter is before the Court on review of Defendants'
Motions to Dismiss Plaintiff's Amended Complaint under
Federal Rules of Procedure 12(b)(1) and 12(b)(6). (Doc. #
17.) This Court referred the motion to United States
Magistrate Judge Kathleen M. Tafoya for review. On October
31, 2016, Magistrate Judge Tafoya issued her Recommendation
that this Court grant Defendant's Motion to Dismiss the
Amended Complaint (Doc. # 17) and dismiss the case in its
entirety (Doc. # 32).
Recommendation advised the parties that specific written
objections were due within fourteen days after being served
with a copy of the Recommendation. (Doc. # 32 at 14-15.)
Plaintiff filed a partial objection to the Recommendation on
November 14, 2016. (Doc. # 32.) Plaintiff objects to
Magistrate Judge Tafoya's Recommendation that the Court
dismiss four of Plaintiff's claims: (1) retaliation
for exercise of his First Amendment rights; (2) Fourteenth
Amendment violations; (3) violation of a Sixth Amendment
right to court access; and(4) retaliation under 28 C.F.R.
§ 135.134(a), (b). Plaintiff also objects to Magistrate
Judge Tafoya's finding that Defendants Claussen and Scott
are entitled to Eleventh Amendment immunity and Qualified
Immunity for his claim brought pursuant to the American's
with Disabilities Act (ADA). Plaintiff did not object to
Judge Tafoya's Recommendation that the Court dismiss
Plaintiff's fifth and sixth claims, or the Recommendation
that Defendants Claussen and Scott are entitled to Eleventh
Amendment immunity and Qualified Immunity for the
Judge Tafoya's Recommendation provides an extensive
recitation of the factual and procedural background of this
case. The Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b). Additional facts will be set forth below as necessary
to address Plaintiff's objections.
STANDARDS OF REVIEW
absence of objection, “the district court may review a
magistrate [judge's] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991) (citing Thomas v. Arn, 474
U.S. 140, 150 (1985) (stating that “[i]t does not
appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither
party objects to those findings.”)). However,
Fed.R.Civ.P. 72(b)(3) requires that the district judge
conduct a de novo review of any part of the
recommendation that has been properly objected to. In
conducting the review, a “district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id. Any arguments
raised for the first time in objections are deemed waivable
and need not be considered by the district court.
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
reviewing a motion to dismiss under Federal Rule of Procedure
12(b)(1), the court must accept the allegations in the
complaint as true but has discretion to review additional
evidence submitted by parties without transforming the motion
into a motion of summary judgment. Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).
reviewing a motion to dismiss under Federal Rule of Procedure
12(b)(6), the court must accept all well-pleaded allegations
in the complaint as true and must construe them in the light
most favorable to the plaintiff. Thomas v. Kaven,
765 F.3d 1183, 1190 (10th Cir. 2014). To survive dismissal,
“a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“The plausibility standard is not akin to a probability
requirement but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678.
Court has reviewed all relevant pleadings and legal authority
concerning Defendants' Motion (Doc. # 17) and the
Recommendation (Doc. # 32.) Based on this review, the Court
concludes-with regard to all portions of the Recommendation
to which no objection has been lodged-that Magistrate Judge
Tafoya's thorough and comprehensive analysis and
recommendations are correct. “[T]here is no clear error
on the face of the record.” Fed.R.Civ.P. 72 advisory
committee's note. The Court therefore adopts those
recommendations without further analysis.
with respect to Magistrate Judge Tafoya's Recommendation
that the Court dismiss Plaintiff's first, second, third,
and fourth claims, as well as Magistrate Judge Tafoya's
finding that Defendants Claussen and Scott are entitled to
Eleventh Amendment immunity and Qualified Immunity on the
claim brought pursuant to the ADA, the Court provides the
following findings, analysis, and conclusions. See
Fed. R. Civ. P. 72(b)(3) (requiring that the district judge
conduct a de novo review of any part of the recommendation to
which a party has properly objected).
ELEVENTH AMENDMENT IMMUNITY
alleges violations of his constitutional rights as well as a
statutory claim, based on the Defendants' actions in
their official capacities at Sterling Correctional Facility
(“SCF”) in the Colorado Department of Corrections
(“CDOC”). (Doc. #7.) Defendants move to dismiss
the claims as barred by the Eleventh Amendment. (Doc. # 17 at
Eleventh Amendment bars action for damages against a state in
federal court unless that state waives its sovereign
immunity. See U.S. Const. amend. XI; Edelman v.
Jordan, 415 U.S. 651, 663 (1974). In Ex parte
Young, 209 U.S. 123 (1908), the Supreme Court recognized
an exception to Eleventh Amendment immunity under which a
state officer may be enjoined from “taking any steps
towards the enforcement of an unconstitutional enactment, to
the injury of complainant.” 209 U.S. at 159. The Ex
parte Young exception, however, is narrow and applies
only to prospective relief and may not be used to obtain a
declaration that a state officer has violated a
plaintiff's federal rights in the past. Buchwald v.
Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495
(10th Cir. 1998).
against a state official in his or her official capacity is
not a suit against the official; rather, it is a suit against
the official's office and, therefore, is no different
from a suit against the state. See, e.g.,
Kentucky v. Graham, 473 U.S. 159, 165-166 (1985).
The Eleventh Amendment is not abrogated by 42 U.S.C. §
1983, nor does § 1983 provide a jurisdictional basis for
a suite against a state official acting in his or her
official capacity. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989).
Judge Tafoya held that Plaintiff could proceed only with
claims seeking prospective relief and denied Plaintiff's
requests for monetary damages and retrospective relief due to
a lack of subject matter jurisdiction. (Doc. # 32 at 7.)
Plaintiff objects to Magistrate Judge Tafoya's ruling as
it relates to Plaintiff's ADA claim, but does not object
to the ruling regarding his constitutional claims. (Doc # 33
at 2.) Plaintiff is correct that “[i]nsofar as Title II
creates a private cause of action for damages against the
States for conduct that actually violates the
Fourteenth Amendment, Title II validly abrogates state
sovereign immunity.” United States v. Georgia,
546 U.S. 151, 159, 126 S.Ct. 877, 882, 163 L.Ed.2d 650 (2006)
(emphasis original). However, Plaintiff did not raise this
argument in briefing prior to his Objections, thus the Court
need not consider it. Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996) ("[I]ssues raised for the
first time in objections to the magistrate judge's
recommendation are deemed waived.").
the Court were to engage in addressing the procedurally
inappropriate argument, the Court would find that Plaintiff
does not have a viable cause of action pursuant to the ADA.
Magistrate Judge Tafoya's Recommendation to dismiss
Plaintiff's claims requesting monetary damages ...