United States District Court, D. Colorado
ORDER ON DEFENDANTS' MOTIONS TO DISMISS [ECF. #97
& ECF. #99]
Kato Crews Magistrate Judge
Judge S. Kato Crews This matter is before the Court on
Defendant Carmack and Defendant Konstanty's Motion to
Dismiss Plaintiff's Fourth Amended Complaint [ECF. #97],
filed on December 7, 2017. Also before the Court is
Defendants Gamez and Diaz de Leon's Fourth Motion to
Dismiss in Part [ECF. #99], filed on December 7, 2017.
Pursuant to the Order of Reference dated April 4, 2017, this
civil action was referred to the Magistrate Judge “for
all purposes” pursuant to D.C.COLO.LCivR 72.2(d) and 28
U.S.C. § 636(c). [ECF. #36.] The Court has reviewed the
Motions and related briefing, and the applicable law. Now
being fully informed, the Court GRANTS both Motions.
& PROCEDURAL BACKGROUND
Mark Janny, a pro se prisoner, filed this lawsuit
pursuant to 42 U.S.C. § 1983 claiming that Defendants
John Gamez and Lorraine Diaz de Leon (the “State
Defendants”), and Jim Carmack and Tom Konstanty (the
“Rescue Mission Defendants”) violated his Fourth
Amendment right against false imprisonment, his Fourteenth
Amendment right to equal protection, and his First Amendment
religious rights. [See generally ECF. #95.]
Plaintiff seeks declaratory relief and monetary damages in an
unspecified amount. [Id. at p.23.]
Fourth Amended Prisoner Complaint (“Fourth
Complaint”), Plaintiff alleges the following, which the
Court takes as true for purposes of deciding the Motions: in
December 2014, Plaintiff was released from the Colorado
Department of Corrections and placed on parole. [Id.
at ¶2.] On December 30, 2014, Plaintiff was arrested for
a parole violation; however, the complaint was ultimately
dismissed because Plaintiff was held in custody for more than
30 days. [Id. at ¶¶3-4.] According to
Plaintiff, the parole board ordered that Plaintiff be
released back to his parole “as it was prior to [his]
arrest.” [Id. at ¶4.]
this order, Defendant Gamez, with Defendant Diaz de
Leon's permission, gave Plaintiff a parole directive
requiring him to stay at The Denver Rescue Mission in Fort
Collins (“Rescue Mission”), and wear an
electronic monitoring device. [Id. at
¶¶7-11.] Defendant Gamez told Plaintiff that
Plaintiff would be placed at the Rescue Mission (as opposed
to a friend's home) because Plaintiff “needed more
supervision and could not be trusted.” [Id. at
¶7.] Defendant Gamez also directed Plaintiff to follow
all of the Rescue Mission's “house rules.”
[Id.] Plaintiff alleges the “house
rules” applied only to The Program, a “Christian
faith based community placement.” [Id.] The
house rules allegedly included twice-weekly bible studies,
daily prayer, daily chapel, church, and one-on-one religious
counseling. [Id. at ¶20.] Although Plaintiff is
an atheist, and informed Defendant Gamez of this fact,
Defendant Gamez would not consider other non-religious
placements. [Id. at ¶¶7, 21, 26.] Further,
Defendant Gamez told Plaintiff that if he refused this
placement, the only other option was jail. [Id. at
his arrival at the Rescue Mission on February 3, 2015,
Plaintiff told Defendant Carmack that he was an atheist.
[Id. at ¶24.] Defendant Carmack allegedly told
Plaintiff that he was not permitted to talk about those
beliefs while he was at the Rescue Mission. [Id.]
After Plaintiff told Defendant Carmack that he did not want
to be in The Program, Defendant Carmack stated that perhaps
Plaintiff should be in jail and called Defendant Gamez to
discuss. [Id. at ¶¶25-26.] Defendant
Carmack later informed Plaintiff that it had been decided
that he would stay in The Program despite being an atheist.
[Id. at ¶26.] Defendant Carmack also said that
Defendant Gamez assured him Plaintiff would abide by all of
the rules. [Id.] In addition, Defendant Carmack
informed Plaintiff that he was a “guinea pig” and
that Plaintiff had been accepted into The Program as a favor
to Defendant Gamez. [Id. at ¶28.]
February 4, 2015, Defendant Carmack took Plaintiff to
Defendant Gamez's office for an impromptu meeting.
[Id. at ¶29.] During the meeting, Defendant
Carmack complained about Plaintiff's attitude, his being
an atheist, and Defendant Carmack's concerns that
Plaintiff would not participate with a good attitude.
[Id.] Defendant Carmack had Defendant Gamez affirm
that Plaintiff would follow the rules or have his parole
violated. [Id.] In addition, Defendant Carmack had
Defendant Gamez change Plaintiff's curfew, which
prevented Plaintiff from getting a job. [Id.]
his stay at the Rescue Mission, Plaintiff was forced to
attend two Christian bible studies with Defendant Konstanty,
who acknowledged that Plaintiff did not want to be there.
[Id. at ¶31.] In addition, Plaintiff was
required to attend daily prayers, chapel, and perform forced
labor. [Id. at ¶32.] On one occasion, Defendant
Carmack tried to convert Plaintiff to Christianity.
[Id. at ¶33.] Defendant Carmack also told
Plaintiff that if he broke any more rules, he would be kicked
out of The Program. [Id. at ¶34.]
February 8, 2015, Plaintiff refused to attend church services
or chapel and, thereafter, Defendant Carmack asked Plaintiff
to leave The Program. [Id.] Because it was a Sunday
and the parole office was not open, Plaintiff went to a
friend's home. [Id. at ¶45.] The following
day, Plaintiff went to the parole office, but Defendant Gamez
had already issued a warrant for Plaintiff's arrest.
[Id. at 46.] Thereafter, Plaintiff's parole was
revoked for absconding. [Id. at ¶48.]
several amendments, Plaintiff was permitted to amend his
complaint a fourth (and final) time. [ECF. #93.] On December
7, 2017, the Defendants filed their Motions to Dismiss [ECF.
#97; ECF. #99], which were followed by Plaintiff's
Responses [ECF. #103; ECF. #104] on January 16, 2018.
Defendants Carmack and Konstanty filed a Reply [ECF. #105] on
January 30, 2018.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” See
Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule
12(b)(6), the Court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court
is not, however, “bound to accept as true a legal
conclusion couched as a factual allegation.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In addition, this Court may consider exhibits
attached to the complaint without converting the motion into
one for summary judgment pursuant to Rule 56. See Hall v.
Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).
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, 556 U.S. at 678 (internal quotation marks
omitted). A claim is plausible when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This standard
requires more than the sheer possibility that a defendant has
acted unlawfully. Id. Facts that are “merely
consistent” with a defendant's liability are
insufficient. Id. “[T]o state a claim in
federal court, a complaint must explain what each defendant
did to him or her; when the defendant did it; how the
defendant's actions harmed him or her; and what specific
legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
ultimate duty of the Court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“Nevertheless, the standard remains a liberal one, and
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that recovery is very remote and
unlikely.'” Morgan v. Clements, No. 12-
cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18,
2013) (quoting Dias v. City & County of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009)).
Pro Se Parties
Court is cognizant of the fact that Plaintiff is not an
attorney; consequently, his pleadings and other papers have
been construed liberally and held to a less stringent
standard than formal pleadings drafted by a lawyer. See
Hall, 935 F.2d at 1110 (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)). Therefore,
“if the court can reasonably read the pleadings to
state a claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
authority, his confusion of legal theories, his poor syntax
and sentence construction, or his unfamiliarity with pleading
requirements.” Id. However, this Court cannot
act as a pro se litigant's advocate.
Id. It is the responsibility of the pro se
plaintiff to provide a simple and concise statement of his
claims and the specific conduct that gives rise to each
asserted claim. See Willis v. MCI Telecomms., 3
F.Supp.2d 673, 675 (E.D. N.C. 1998).
the Court may not “supply additional factual
allegations to round out a plaintiff's complaint.”
Whitney v. State of New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion
to dismiss by alluding to facts that have not been alleged,
or by suggesting violations that have not been pleaded.
Associated Gen. Contractors of Cal. Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). In the
end, pro se parties must “follow the same
rules of procedure that govern other litigants.”
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
State Defendants have raised the qualified immunity defense
to Plaintiff's false imprisonment and equal protection
claims. Qualified immunity shields “government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quotation omitted). Qualified immunity is
“immunity from suit rather than a mere defense to
liability [and] it is effectively lost if a case is
erroneously permitted to go to trial.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Whether defendants
are entitled to qualified immunity is a legal question.
Wilder v. Turner, 490 F.3d 810, 813 (10th Cir.
the qualified immunity defense is raised, the plaintiff bears
the burden of showing, with particularity, facts and law
establishing the inference that the defendant violated a
clearly established federal constitutional or statutory
right. Walter v. Morton, 33 F.3d 1240, 1242 (10th
Cir. 1994). If the plaintiff fails to establish either (a) a
violation of a federal constitutional or statutory right, or
(b) that the claimed right was clearly established, the
defendant is entitled to qualified immunity.
Pearson, 555 U.S. at 236. The court has the
discretion to consider these prongs in any order it chooses.
Leverington v. City of Colorado Springs, 643 F.3d
719, 732 (10th Cir. 2011).
the first prong, if no federal constitutional or statutory
right would have been violated even assuming the truth of the
plaintiff's allegations, then the court's inquiry is
at an end. Saucier v. Katz, 533 U.S. 194, 201
(2001). Regarding the second prong, whether an alleged
constitutional right was “clearly established”
must be considered “in light of the specific context of
the case, not as a broad general proposition.”
Id. An official's conduct “violates
clearly established law when, at the time of the challenged
conduct, ‘the contours of a right are sufficiently
clear' that every ‘reasonable official would have
understood that what he is doing is violating that
right.'” Ashcroft v. al-Kidd, 563 U.S.