United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (DOCKET NO. 54)
Michael J. Watanabe United States Magistrate Judge
case is before this Court pursuant to an Order of Reference
to Magistrate Judge issued by Judge Christine M. Arguello on
March 22, 2017. (Docket No. 12.) Now before the Court is
Defendants Genie Connaghan, Maggie M. McElderry, and Rick
Raemisch's (collectively “Defendants”) Motion
to Dismiss. (Docket No. 54.) Plaintiff Thomas Neilsen
(“Plaintiff”) filed a response. (Docket No. 56.)
No reply was filed. The Court has taken judicial notice of
the Court's file and has considered the applicable
Federal Rules of Civil Procedure and case law. The Court now
being fully informed makes the following findings of fact,
conclusions of law, and recommendation.
otherwise noted, the allegations below are taken from the
Amended Complaint for Declaratory and Injunctive Relief
(“Amended Complaint”) (Docket No. 48), and
described in the light most favorable to Plaintiff.
this lawsuit was commenced, Plaintiff was incarcerated in the
Colorado Department of Corrections' (“CDOC”)
Crowley County Correctional Facility (“CCCF”). He
had been sentenced to four years in prison after pleading
guilty to one count of sexual assault on a child and having
judgment enter on one deferred count after he sought to
withdraw his plea. He was compliant with CCCF requirements
during his sentence, and scored “very low”on the
Colorado Actuarial Risk Assessment. After being denied
discretionary parole, Plaintiff's mandatory release date
onto parole was June 20, 2017.
January 2017, the Colorado Parole Board (“Parole
Board”) approved Plaintiff's proposed parole plan.
The Parole Board deemed Plaintiff's wife an adequate
sponsor, the home the two owned adequate housing, and the
business they operated an adequate work opportunity.
these conditions were established, Defendant Connaghan,
Plaintiff's parole officer, interviewed Plaintiff's
wife. After the interview, Defendant Connaghan determined
that Plaintiff's wife was not “supportive” of
the parole plan because she “declined to express a
belief that her husband is not guilty of the offenses.”
On March 2, 2017, Defendant McElderry, a CCCF facility parole
officer, informed Plaintiff that he would not be permitted to
parole to his home or live with his wife due to Defendant
Connaghan's findings. Plaintiff was told he would have to
either parole to a community corrections facility, in which
case he could not work at his business, or be homeless, which
likewise would violate the conditions of release.
19, 2017, Defendant McElderry formally presented these
conditions to Plaintiff for his signature, and told him that
he would not be released if he did not agree to them.
Plaintiff declined to sign the conditions. As he was
preparing for his mandatory release the next day, Plaintiff
was taken into custody and charged with violating the
conditions of his parole.
asserts claims for declaratory and injunctive relief under 42
U.S.C. § 1983 for violations of his First and Fourteenth
Amendment rights. He argues that Defendants have arbitrarily,
irrationally, and unconstitutionally interfered with his
right to intimate and familial association. He seeks a
declaration that the Defendants in their official capacities
violated these constitutionally protected rights. He also
seeks an injunction against Defendants Raemisch and McElderry
prohibiting them from refusing to comply with the mandatory
parole statute simply because Plaintiff asserts his
constitutional rights. Finally, he requests an injunction
against Defendants Connaghan and McElderry prohibiting them
from violating the approved parole plan and from imposing
additional unauthorized and unconstitutional parole
now seek to dismiss Plaintiff's Amended Complaint for
lack of subject matter jurisdiction and for failure to state
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
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). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the case at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim Upon Which ...