Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Janny v. Gamez

United States District Court, D. Colorado

September 20, 2018

MARK JANNY, Plaintiff,


          S. Kato Crews Magistrate Judge

         Magistrate 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.


         Plaintiff 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.]

         In his 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.]

         Despite 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 ¶8.]

         Upon 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.]

         On 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.]

         During 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.]

         On 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.]

         After 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.


         A. Fed.R.Civ.P. 12(b)(6)

         Under 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).

         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, 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).

         The 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)).

         B. Pro Se Parties

         The 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).

         Moreover, 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. 1994).

         C. Qualified Immunity

         The 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. 2007).

         When 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).

         Regarding 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. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.