United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
seeks to dismiss this case, which alleges claims based on the
Federal and Colorado constitutions and state tort law.
Plaintiff did not file a response to Defendant's motion.
I recommend finding that Plaintiff fails to allege a due
process claim against Defendant in his official or individual
capacity. I then recommend declining to exercise supplemental
jurisdiction over Plaintiff's remaining state law claims.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in his Amended Complaint,
which I take as true for analysis under Fed.R.Civ.P. 12(b)(1)
pursuant to Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
is incarcerated at the Buena Vista Correctional Facility
(“BVCF”), which is part of the Colorado
Department of Corrections (“CDOC”). Am. Compl. 4,
ECF No. 6. After a disciplinary hearing at the BVCF on March
20, 2017, Defendant found Plaintiff guilty of fighting and
possession of dangerous contraband. Id. Defendant
imposed $341.00 in restitution due to “staff exposure
to blood and replacement of O.C.” Id. at 4-5.
Defendant did not state that he was imposing restitution on
the record; however, he included the sanction in the
post-hearing “write-up.” Id. at 4.
on these factual allegations, Plaintiff filed his Amended
Complaint on December 26, 2017. Am. Compl., ECF No. 6.
Plaintiff's first cause of action alleges Defendant
violated his right to procedural due process by not
explaining the restitution at the disciplinary hearing.
Id. at 4. Additionally, Plaintiff claims
Defendant's conduct violated CDOC procedure. Id.
Plaintiff's first claim also asserts a violation of
Article II, Section 16 of the Colorado Constitution.
Id. In his second cause of action, Plaintiff alleges
Defendant is liable for theft and fraud. Id. at 5.
March 30, 2018, Defendant filed the present Motion to
Dismiss, ECF No. 15. Defendant contends Plaintiff's first
cause of action fails to state a claim, because no clearly
established law grants prisoners a right to have disciplinary
sanctions stated orally on the record. Id. at 5-6.
Further, Defendant argues the CDOC policy does not create a
due process right, any procedural error was harmless in light
of the written decision, and Plaintiff has an alternative
remedy available under state law. Id. at 6-11.
Regarding Plaintiff's second claim, Defendant asserts the
Court should decline to exercise supplemental jurisdiction
and the Colorado Governmental Immunity Act bars this claims.
Id. at 11-15.
April 3, 2018 Scheduling Conference, I granted Plaintiff
until May 1, 2018 to file a response brief. ECF No. 17.
Plaintiff failed to respond to Defendant's motion.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
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.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma,519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins,656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a ...