United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
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.
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.
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].
Federal Rule of Civil Procedure 12(b)(1)
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)).
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).
Federal Rule of Civil Procedure 12(b)(6)
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).
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).
Pro Se Litigants
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 ...