Morris v. Atha

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         Defendant 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.

         BACKGROUND

         I. Facts

         The 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 (2009).

         Plaintiff 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.

         II. Procedural History

         Based 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.

         On 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.

         At an 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.

         LEGAL STANDARDS

         I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “To 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.

         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.'” 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 ...