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Neilsen v. Connaghan

United States District Court, D. Colorado

February 14, 2018

GENIE CONNAGHAN, in her official capacity as Thomas Neilsen's parole officer, MAGGIE M. MCELDERRY, in her official capacity as DOC facility parole officer, and RICK RAEMISCH, in his official capacity as Executive Director of the DOC, Defendants.


          Michael J. Watanabe United States Magistrate Judge

         This 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.

         I. BACKGROUND

         Unless 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.

         When 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.

         In 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.

         After 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.

         On June 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.

         Plaintiff 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 conditions.

         Defendants now seek to dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim.


         a. Lack of Subject Matter Jurisdiction

         Federal 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)

         A Rule 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.

         b. Failure to State a Claim Upon Which ...

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