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Mares v. Lepage

United States District Court, D. Colorado

August 31, 2017

FRAN LEPAGE, Defendant.



         This civil action comes before the court on Defendant Fran LePage's Motion to Dismiss. [#34, filed April 10, 2017]. The Motion was referred to the undersigned pursuant to the Order Referring Case dated February 7, 2017 [#13] and the memorandum dated April 11, 2017 [#35]. This court has reviewed the Motion and associated briefing, the case record, and the applicable case law, and for the reasons set forth below respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.


         Mr. Mares is in the custody of the Colorado Department of Corrections (“CDOC”) and is currently incarcerated at the Crowley County Correctional Facility. See [#52, #53]. Mr. Mares initiated this action on December 14, 2016, by filing a pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983 asserting violations of his First and Eighth Amendment rights. See generally [#1]. At that time, he was detained at the Pueblo County Detention Center. See Id. The court granted Mr. Mares leave to proceed in forma pauperis under 28 U.S.C. § 1915, [#8], and ordered him to file an amended pleading. [#9]. On January 19, 2017, Mr. Mares filed an Amended Complaint again asserting that defendants subjected him to cruel and unusual punishment in violation of his Eighth Amendment rights, and that Defendant LePage wrongfully denied his request to change his religion to Judaism and to receive kosher diet trays in violation of his rights under the First Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”). [#10]. Plaintiff also alleged that Defendant LePage interfered with his constitutional right to access the courts, and a different CDOC officer refused to provide him with grievance forms. [Id.] In his Amended Complaint, Mr. Mares seeks both damages in the amount of $300, 000 and injunctive relief from Defendant LePage [id. at 18], which this court interprets as Plaintiff proceeding against LePage in her individual and official capacities. On February 6, 2017, following the screening process undertaken pursuant to § 1915(e)(2), the court dismissed all claims other than those asserting violations of the First Amendment and RLUIPA and dismissed all defendants other than Defendant LePage. The court noted that the Eleventh Amendment precluded Plaintiff's claim for damages as to any defendant sued in his or her official capacity, but did not preclude Plaintiff's claim for injunctive relief. [#12 at 5 (citing Verizon Maryland v. Public Service Commission of Maryland, 535 U.S. 635, 645 (2002)]. The court then assigned the case to the Honorable R. Brooke Jackson and the undersigned Magistrate Judge. See id.

         On April 10, 2017, Defendant LePage filed the pending Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See [#34]. Plaintiff filed a Response on May 3, 2017, [#39], and Defendant filed a Reply on May 17, 2017. [#42]. On May 2, 2017, this court held a Status Conference at which it set certain pre-trial dates and deadlines. See [#38]. Plaintiff thereafter filed a motion for appointment of counsel, which this court denied. See [#40, #44, #45]. On June 19, 2017, Mr. Mares notified the court that he had been sentenced on June 2, 2017, and had been moved from the Pueblo County Detention Center. [#47]. On August 17, 2017, the court received notice that CDOC had moved Mr. Mares to the Crowley County Correctional Facility. [#53].


         I. Federal Rule of Civil Procedure 12(b)(1)

         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 must dismiss a complaint if it lacks of subject matter jurisdiction. “Federal courts ‘have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party, ' and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction ‘at any stage in the litigation.'” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1240, 1244, 163 L.Ed.2d 1097 (2006)).

         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). Mootness is an issue of subject matter jurisdiction. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011).

         II. Federal Rule of Civil Procedure 12(b)(6)

         Defendant LePage argues that Mr. Mares 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).

         III. Pro Se Litigants

         Mr. Mares is appearing pro se, and thus the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[Court's] role is not to act as [pro se litigant's] advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 ...

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