United States District Court, D. Colorado
WYATT T. HANDY, JR., and ASHLEE M. HANDY, Plaintiffs,
LUENZA, Mailroom Clerk #13083, and UNKNOWN MAILROOM CLERK, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
the Court is the named Defendant's Motion to Dismiss
Plaintiffs' State Tort Claims filed pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [filed March 3, 2017;
ECF No. 40]. The motion is fully briefed, and the Court
finds that oral argument will not assist in the adjudication
of the motion. Based on the record and for the reasons that
follow, the Court respectfully recommends that the Honorable
Wiley Y. Daniel grant in part and deny in
part the Defendant's motion.
(“Mr. Handy” and “Mrs. Handy”)
initiated this lawsuit on August 19, 2016, then filed the
operative Amended Complaint on September 12, 2016 in
accordance with Magistrate Judge Gallagher's order during
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by the Plaintiffs in the Amended Complaint
concerning Defendant “Luenza, ” correctly
identified as Laura Vezina (“Vezina”), which are
taken as true for analysis under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
November 24, 2014, Mr. Handy sent mail to the Arapahoe County
Detention Facility (“ACDF”) for his wife, Mrs.
Handy. The next day, Defendant Vezina rejected the mail based
on “sexually explicit materials” and
“references to gang related communications or
activities.” The letter contained information
“related to a sexual assault on Mrs. Handy by gang
members, and Mr. and Mrs. Handy[‘s] attempt[ ] to
determine who the gang members where [sic], to report the
crime to authorities.” On August 7, 2015, Mr. Handy
sent mail to the ACDF for his wife, Mrs. Handy. Four days
later, on August 11, 2015, Defendant Vezina rejected the mail
based on Plaintiff's enclosure of a “thinking of
you” card that was a “multi-layered glued”
card. Mr. Handy obtained the card while incarcerated by the
Colorado Department of Corrections (“CDOC”), and
such cards were sold at the canteen and given to inmates by
September 14, 2015, Mr. Handy set mail to the ACDF for his
wife, Mrs. Handy. Two days later, on September 16, 2015,
Defendant Vezina rejected the mail because “the mail
contain[ed] threats of physical harm against a person.”
The letter “related to contacting authorities due to
the physical abuse” to which Mrs. Handy was subjected.
on these factual allegations, Plaintiffs claim Defendant
Luenza violated their First and Fourteenth Amended (due
process) rights and committed negligence and negligence per
se. Am. Compl., ECF No. 7. Plaintiffs request
“appropriate declaratory and other injunctive relief,
” compensatory damages, and punitive damages.
Id. at 10.
Vezina filed the present motion arguing the Plaintiffs fail
to state plausible claims for negligence (Claim Three) and
negligence per se (Claim Four). In addition, Vezina contends
any negligence claim brought on behalf of Mrs. Handy is
barred by the Colorado Governmental Immunity Act for her
failure to file a notice of claim (“NOC”).
counter that they have alleged sufficient facts to
demonstrate a duty on the part of Vezina to “not
fabricate reasons to reject mail, ” which arises under
the First Amendment and ACDF's mailroom policy. Resp. 4.
In addition, they argue Vezina cites no legal authority for
her position that a NOC must be filed for each injured
individual. Plaintiffs contend that, under Colorado law, the
notices filed by Mr. Handy provided Vezina sufficient notice
as to the claims of both Mr. and Mrs. Handy.
replies that neither the First Amendment nor the ACDF
mailroom policy set forth or create any duty or standard of
care owed to Plaintiffs. Further, Vezina contends that the
law on which Plaintiffs rely to demonstrate sufficient notice
is factually and legally distinguishable and, thus, not
seeks dismissal for this Court's lack of subject matter
jurisdiction over certain claims pursuant to Fed.R.Civ.P.
12(b)(1) and for Plaintiffs' failure to state claims for
relief pursuant to Fed.R.Civ.P. 12(b)(6).
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.” Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a
plaintiff's case, but only a determination that the court
lacks authority to adjudicate the matter. See Castaneda
v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing
federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do
so). A court lacking jurisdiction “must dismiss the
cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” Full Life
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.
2013). A Rule 12(b)(1) motion to dismiss must be determined
from the allegations of fact in the complaint, without regard
to mere conclusory allegations of jurisdiction. Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden