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Shields v. Duncan

United States District Court, D. Colorado

November 28, 2017

JONATHAN SHIELDS, STEVEN CHRISTIANSEN, ERIC PETERSEN, WESLEY SPECHT, and JESSICA SPECHT, Plaintiffs,
v.
JENNIFER DUNCAN, in her individual capacity as Jonathan Shields' parole officer, THERESA DAWES, in her individual capacity as Steven Christiansen's parole officer, SHEFALI PHILLIPS, in her official capacity as Eric Petersen's parole officer, RICK RAEMICSH, in an official capacity as Executive Director of the Colorado DOC, MARCELO KOPCOW, in an official capacity as SOMB Board Member, ERIN JEMISON, in an official capacity as SOMB Board Chair, MARY BAYDARIAN, in an official capacity as SOMB Board Member, CARL BLAKE, in an official capacity as SOMB Board Member, ALLISON BOYD, in an official capacity as SOMB Board Member, A. MERVYN DAVIES, in an official capacity as SOMB Board Member, CHERYL DAVIES, in an official capacity as SOMB Board Member, JESSICA CURTIS, in an official capacity as SOMB Board Member, AMY FITCH, in an official capacity as SOMB Board Member, JEFF GEIST, in an official capacity as SOMB Board Member, MISSY GURSKY, in an official capacity as SOMB Board Member, PEGGY HEIL, in an official capacity as SOMB Board Member, WILLIAM HILDEBRAND, in an official capacity as SOMB Board Member, NANCY JOHNSON, in an official capacity as SOMB Board Member, JEFF JENKS, in an official capacity as SOMB Board Member, DIANNA LWYER-BROOK, in an official capacity as SOMB Board Member, TOM LEVERSEE, in an official capacity as SOMB Board Member, RICHARD BEDNARSKI, in an official capacity as SOMB Board Member, JOHN ODENHEIMER, in an official capacity as SOMB Board Member, JESSICA MEZA, in an official capacity as SOMB Board Member, ANGEL WEANT, in an official capacity as SOMB Board Member, MIMI SCHEUERMANN, in an official capacity as SOMB Board Member, DOUG STEPHENS, in an official capacity as SOMB Board Member, BRANDON SHAFFER, in an official capacity as Colorado Parole Board Member, REBECCA OAKES, in an official capacity as Colorado Parole Board Member, DENISE BALAZIC, in an official capacity as Colorado Parole Board Member, JOE MORALES, in an official capacity as Colorado Parole Board Member, [1] JOHN O'DELL, in an official capacity as Colorado Parole Board Member, ALFREDO PENA, in an official capacity as Colorado Parole Board Member, and MARJORIE LEWIS, in an official capacity as Colorado Parole Board Member, Defendants.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the “Recommendation of United States Magistrate Judge (the “Recommendation” or “Rec.”) (ECF No. 219) and “Plaintiff Eric Petersen's Objections to the Magistrate's Recommendation to Grant Defendant's Motion to Dismiss” (the “Objection”) (ECF No. 222). No other party has filed any objection to the Recommendation; and no party has filed any response to Mr. Petersen's Objection. See Dkt. As to Mr. Petersen, the Magistrate Judge recommended his First Claim for Relief (and his only claim) be dismissed as barred by the statute of limitations. Upon consideration of the Recommendation, Objection, relevant parts of the record, and the applicable statutes and case law, and being otherwise fully advised, the Objection is OVERRULED.

         I. BACKGROUND

         Generally, Plaintiffs' claims relate to restrictions and conditions Defendants allegedly imposed based on or due to Plaintiffs' (or, in the case of Jessica Specht, their spouse's) designations as sex offenders or convictions for sex offenses. No party objects to the Background, which includes a Statement of Facts and Procedural History. Finding no clear error, the Court accepts the Background and incorporates the same by reference.

         II. LEGAL STANDARD

         A. Review of a Magistrate Judge's Report and Recommendation

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and specific enough to enable the “‘district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.'” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). The district judge need not, however, consider arguments not raised before the magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         B. Motions to Dismiss

         1. Lack of Subject Matter Jurisdiction - Rule 12(b)(1)

         Motions to dismiss under Rule 12(b)(1) are, generally, either a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction or a factual attack which goes beyond the allegations and challenges the facts on which subject matter jurisdiction is based. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack challenging the sufficiency of the complaint - such as the one made here by Defendants - requires the court to accept the allegations of the complaint as true. Stuart, 271 F.3d at 1225; Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (internal citation omitted).

         2. Failure to State a Claim - Rule 12(b)(6)

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs' entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14 (italics in original). “In determining the plausibility of a claim, we look to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard does not require a plaintiff to set forth a prima facie case for each element.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (alteration, citation, and internal quotation marks omitted).

         III. ANALYSIS

         A. Recommendations to which there are no objections.

         As the case currently stands, the following two claims[2] are at issue: (1) First Claim for Declaratory and Injunctive Relief by Plaintiffs Shields, [3] Petersen, and the Spechts; and (2) Second Claim for Compensatory and Punitive Damages by Plaintiffs Shields and Christiansen. As to such claims, upon Motion ...


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