United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendants'
Consolidated Motion to Dismiss the Amended
Complaint [#54] (the “Motion”). Plaintiff
filed a Response [#62] in opposition to the Motion, and
Defendants filed a Reply [#63]. The Motion has been referred
to the undersigned for recommendation pursuant to 28 U.S.C.
§ 636(b) and D.C.COLO.LCivR 72.1(c). See [#55].
Having reviewed the entire case file and being sufficiently
advised, the Court respectfully RECOMMENDS
that the Motion [#54] be GRANTED.
Summary of the Case
times relevant to this lawsuit, Plaintiff has been a prisoner
in the custody of the United State Bureau of Prisons
(“BOP”). Am. Compl. [#46] ¶ 4. As
of the filing of the Amended Complaint on April 19, 2018,
Plaintiff was incarcerated at United States Penitentiary-ADX
in Florence, Colorado (“USP-Florence”).
Id. Defendants in this matter consist of eight
government officials who have purportedly legally injured
Plaintiff in various ways. Id. ¶¶ 5-12.
Defendant John Oliver (“Oliver”) was the Warden
at USP-Florence. Id. ¶ 5. Defendant Stephan
Julian (“Julian”) was the Associate Warden at
USP-Florence. Id. ¶ 8. Defendant David Rhodes
(“Rhodes”) was a Special Investigations
Supervisor (“S.I.S.”) at USP-Florence.
Id. ¶ 12. Defendant Debra Payne
(“Payne”) was a Special Investigations Agent
Lieutenant at USP-Florence. Id. ¶ 6. Defendant
Daniel Armendariz (“Armendariz”) was on the
Special Investigations Staff at USP-Florence and was directly
supervised by Defendant Payne. Id. ¶ 7.
Defendant Martin S. Martinez (“Martinez”) was an
Agent with the Federal Bureau of Investigation
(“F.B.I.”) in San Antonio, Texas. Id.
¶ 9. Defendant Ian Connors (“Connors”) was
the Administrator of National Inmate Appeals. Id.
¶ 10. Defendant Edward Ray Pierce (“Pierce”)
was a S.I.S. at the United States Penitentiary in
Leavenworth, Kansas. Id. ¶ 11. All eight
Defendants are sued in their individual capacities only.
Id. ¶ 13.
has been incarcerated for over twenty-three years.
Id. at 1. Defendants “identify him as the
founder and president of a prison gang called the Texas
Mexican Mafia or ‘Mexikanemi, '” which,
according to Plaintiff, has caused Defendants to
“target, treat, and injure” Plaintiff more than
other inmates at USP-Florence. Id. ¶ 17.
Plaintiff states that he is a “class of one, ”
or, alternatively, that he “belongs to a class of
inmates targeted because of their perceived membership with a
disfavored organization from before their conviction and
custodial sentence . . . .” Id. ¶ 19.
here asserts seven “claims” relating to various
aspects of his incarceration, but those claims are grouped
around events rather than clearly stating each of his causes
of action. See Id. ¶¶ 23-115. Oddly, and
as Defendants point out, see Motion [#54] at 25,
Plaintiff's original Complaint [#1] much more clearly
presents the causes of action he is asserting in connection
with each event than is demonstrated by the Amended Complaint
[#46]. The Response [#62] does little to provide additional
clarity regarding the asserted causes of action. The Court
notes that Plaintiff is represented by counsel, and therefore
the Amended Complaint, as a formal pleading drafted by a
lawyer, is held to a more stringent standard by the Court
than the liberal construction given to a pro se
litigant's pleadings. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Thus, the Court does not infer
or address any claims that are not explicitly made in the
Amended Complaint [#46]. The claims at issue, therefore, are
(1) “Complaint -1- Administrative Remedy Case No.
818050”: violations of the First, Fifth, and Eighth
Amendments and 42 U.S.C. § 1985, asserted against
Defendants Pierce, Oliver, and Julian (“Claim
One”). Am. Compl. [#46] ¶¶ 23-53.
(2) “Complaint -2- Administrative Remedy Case No.
811066”: violations of the First Amendment and 42
U.S.C. § 1985, asserted against Defendants Rhodes,
Payne, and Armendariz (“Claim Two”). Id.
(3) “Complaint -3- Administrative Remedy Case No.
818852”: violations of the Fourteenth Amendment and 42
U.S.C. § 1985, asserted against Defendants Payne,
Rhodes, Armendariz, and Oliver (“Claim Three”).
Id. ¶¶ 60-78.
(4) “Complaint -4- Administrative Remedy Nos. 819653
& 834276”: violation of the First Amendment,
asserted against Defendants Payne, Rhodes, and Armendariz
(“Claim Four”). Id. ¶¶ 79-82.
(5) “Complaint -5- Administrative Remedy Case Nos.
837376 and 831631”: violations of the Fifth Amendment
and 42 U.S.C. § 1985, asserted against Defendants Payne,
Armendariz, Julian, Rhodes, and Martinez (“Claim
Five”). Id. ¶¶ 83-92.
(6) “Complaint -6- Administrative Remedy Case No.
865846”: violations of the First, Sixth, and Eighth
Amendments, asserted against Defendants Payne and Armendariz
(“Claim Six”). Id. ¶¶ 93-111.
(7) “Complaint -7- In violation of the First and Fifth
Amendments, and 42 U.S.C. § 1985”: violations of
the First and Fifth Amendments and 42 U.S.C. § 1985,
asserted against Defendant Connors (“Claim
Seven”). Id. ¶¶
this lawsuit, Plaintiff seeks “[c]ompensatory damages
in the amount of $250, 000 from each Defendant;” and
“[p]unitive damages in the amount of $250, 000 from
each Defendant.” Id. ¶ 120. In the
present Motion [#54], Defendants seek dismissal of all of
Standards of Review
Rule of Civil Procedure 12(b)(2) provides that a defendant
may move to dismiss a complaint for “lack of personal
jurisdiction.” “The district court is given
discretion in determining the procedure to employ in
considering a motion to dismiss for lack of personal
jurisdiction.” Fed. Deposit Ins. Corp. v. Oaklawn
Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (internal
quotations and citation omitted). A plaintiff bears the
burden of establishing personal jurisdiction, although at the
preliminary stages of the litigation this burden is light.
Intercon, Inc. v. Bell Atl. Internet Solutions,
Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). Where a
district court does not hold an evidentiary hearing before
dismissing the case, the plaintiff “must only make a
prima facie showing of personal jurisdiction.”
Melea, Ltd. v. Jawer SC, 511 F.3d 1060, 1065 (10th
Cir. 2007). “The plaintiff may meet this burden
‘by demonstrating, via affidavit or other written
materials, facts that if true would support jurisdiction over
the defendant.'” Id. (quoting TH
Agric. & Nutrition, LLC v. Ace European Grp. Ltd.,
488 F.3d 1282, 1286 (10th Cir. 2007)). In deciding a motion
to dismiss under Fed.R.Civ.P. 12(b)(2), courts accept
“as true all well-pled . . . facts alleged in [the]
complaint.” Dudnikov v. Chalk & Vermillion Fine
Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must
plead sufficient facts, taken as true, to provide
‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.”
(quoting Twombly, 550 U.S. at 570)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][
]that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second
brackets added; citation and internal quotation marks
seek dismissal of all claims asserted against Defendants
Connors, Martinez, and Pierce based on lack of personal
jurisdiction. Motion [#54] at 86. Defendants argue
that Plaintiff has not made a prima facie showing of general
jurisdiction (“Plaintiff does not allege that these
Defendants live, work, own property, or pay taxes in
Colorado”) or specific jurisdiction (“the
Complaint makes no allegation that any of these Defendants
had the requisite minimum contacts with Colorado”).
determine whether the court has personal jurisdiction over a
defendant, “the court must determine (1) whether the
applicable statute potentially confers jurisdiction by
authorizing service of process on the defendant and (2)
whether the exercise of jurisdiction comports with due
process.” Niemi v. Lasshofer, 770 F.3d 1331,
1348 (10th Cir. 2014) (quoting Trujillo v. Williams,
465 F.3d 1210, 1217 (10th Cir. 2006)). “Because
Colorado's long-arm statute ‘confers the maximum
jurisdiction permissible consistent with the Due Process
Clause . . . the first, statutory, inquiry effectively
collapses into the second, constitutional,
analysis.'” Dudnikov, 514 F.3d at 1070.
Due process requires both that the defendant
“purposefully established minimum contacts with the
forum State” and that the “assertion of personal
jurisdiction would comport with ‘fair play and
substantial justice.'” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476 (quoting Int'l Shoe
Co. v. Washington, 326 U.S. 310, 320 (1945)).
minimum contacts standard “may be satisfied by showing
general or specific jurisdiction.” Niemi, 770
F.3d at 1348 (quoting Emp'rs Mut. Cas. Co. v. Bartile
Roofs, Inc., 618 F.3d 1153, 1159-60 (10th Cir. 2010)).
General jurisdiction is based on an out-of-state
defendant's ‘continuous and systematic'
contacts with the forum state, and does not require that the
claim be related to those contacts. Specific jurisdiction, on
the other hand, is premised on something of a quid pro quo:
in exchange for ‘benefitting' from some purposive
conduct directed at the forum state, a party is deemed to
consent to the exercise of jurisdiction for claims related to
Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.
2011) (quoting Dudnikov, 514 F.3d at 1070). For
general jurisdiction, “[t]he paradigm forum for the
exercise . . . is the individual's domicile[.]”
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). For
specific jurisdiction, “the ‘minimum
contacts' standard requires, first, that the out-of-state
defendant must have ‘purposefully directed' [his]
activities at residents of the forum state, and second, that
the plaintiff's injuries must ‘arise out of'
defendant's forum-related activities.”
Dudnikov, 414 F.3d at 1071 (quoting Burger
King, 471 U.S. at 472). “In tort-based law suits .
. .‘purposeful direction' has three elements: (a)
an intentional action . . . that was (b) expressly aimed at
the forum state . . . with (c) knowledge that the brunt of
the injury would be felt in the forum state.”
Niemi, 770 F.3d at 1348.
does not argue that the court has general jurisdiction but
does argues that he has satisfied the three elements, as
articulated in Niemi, to assert specific
jurisdiction over Defendants Connors, Martinez, and Pierce.
As to element (a), Plaintiff states that “all of
Plaintiff's claims allege an intentional act . . . to
injure Plaintiff.” Response [#62] at 11. As to
element (b), Plaintiff states that “all of
Plaintiff's claims except his first occurred when he was
involuntarily committed to federal prison in Colorado.”
Id. Finally, as to element (c), “for the same
reasons as [element] (b), Plaintiff is confined to the forum
state and thus these injuries would be fully felt by
Plaintiff while being unable to leave the forum state.”
Connors is the Administrator of National Inmate Appeals in
Washington, D.C. Am. Compl. [#46] ¶ 10. One
claim is asserted against Defendant Connors (Claim Seven),
which alleges violations of the First and Fifth Amendments
and 42 U.S.C. § 1985 (Conspiracy to Interfere with Civil
Rights). See Id. ¶¶ 112-115. Plaintiff
alleges that Defendant Connors unfaithfully investigated
Plaintiff's complaints and discouraged Plaintiff from
using the administrative complaint system with the
foreseeable consequence that Plaintiff will continue to be
injured by Defendants. Id. Further, Plaintiff
alleges that Defendant Connors “[provided] responses of
pro forma denials, intentionally inadequate investigations,
each full of lies and cover-ups by [Defendant Connors], or
promulgated, endorsed, or ratified by him.”
argue that the Court lacks personal jurisdiction over federal
prison officials who have “regional and national
supervisory responsibilities over facilities within a forum
state.” Motion [#54] at 85 (quoting Hill
v. Pugh, 75 Fed.Appx. 715, 719 (10th Cir. 2003)). In
Hill v. Pugh, the Tenth Circuit Court of Appeals
affirmed the district court's dismissal of claims against
two BOP officials who had national supervisory
responsibilities over USP-Florence. 75 Fed.Appx. at 719. The
Tenth Court found that the alleged conduct, i.e., that the
BOP officials received administrative grievances and letters
warning of the potential detrimental effects of ADX placement
from the plaintiff and his attorney, fell “far short of
the purposeful availment necessary to establish
McMillan v. Wiley, 813 F.Supp.2d 1238, 1246 (D.
Colo. 2011), the Court found that despite the plaintiff
alleging that the defendants “had direct knowledge of
and approved the transformation of [p]laintiff's ADX
housing unit into a solitary confinement ‘control'
unit” that “such ‘attempts to make out a
case for personal jurisdiction over these defendants by
arguing that each of them authorized or implemented [actions]
knowing that the effects of these [actions] would be felt by
[plaintiff] in Colorado' are insufficient to establish
minimum contacts.” Id. (citing Hale v.
Ashcroft, No. 06-cv-00541-REB-KLM, 2007 WL 2350150, at
*3 (D. Colo. Aug. 15, 2007); Trierweiler v. Croxton &
Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir.
because Plaintiff has not demonstrated that Defendant
Connors's actions which were taken in Washington, D.C.,
establish minimum contacts with Colorado, the Court finds
that Plaintiff's Claim Seven against Defendant Connors
should be dismissed without prejudice for
lack of personal jurisdiction. See Hollander v. Sandoz
Pharm. Corp., 289 F.3d 1193, 1216 (10th Cir. 2002)
(stating that dismissals for lack of personal jurisdiction
must be without prejudice).
Martinez, at the pertinent time of the allegations, was an
FBI Agent in San Antonio, Texas. Am. Compl. [#46]
¶ 9. Defendants state that Defendant Martinez was served
in Texas. Motion [#54] at 86 (citing
Summons [#17]). Plaintiff asserts only one claim
against Defendant Martinez, i.e, Claim Five, asserting
violations of the First and Fifth Amendments and 42 U.S.C.
§ 1985. Am. Compl. [#46] ¶¶ 83-92. In
Claim Five, Plaintiff alleges that a hold was placed on a
$400 deposit to Plaintiff's inmate deposit fund due to
“fraudulent information manipulated” by Defendant
Martinez (and the other four Defendants named under this
claim). Id. ¶ 87. Furthermore, Plaintiff
alleges that Defendant Martinez (and the other four
Defendants named under this claim) “used the known lie
of money laundering . . . to oppress, punish, and
persecute” Plaintiff. Id. ¶ 90. Finally,
Plaintiff alleges that “[Defendants acted] in collusion
and agreement with [Defendant Martinez and others]”
through fabricated, manipulated, and falsified information to
accuse Plaintiff of money laundering through Plaintiff's
BOP commissary account. Id. ¶ 84.
argue that Plaintiff has not established personal
jurisdiction over Defendant Martinez, but they do not point
to case law which discusses the exercise of personal
jurisdiction over a law enforcement official as opposed to a
prison official. Motion [#54] at 83-86. Nonetheless,
the Court agrees with Defendants' position that the
Amended Complaint [#46] fails to allege any meaningful
contacts by Defendant Martinez with the State of Colorado. In
short, the Court finds that the Amended Complaint [#46] does
not demonstrate how Defendant Martinez “purposefully
availed” himself of the laws of Colorado.
Supreme Court in Walden v. Fiore, 571 U.S. 277, 288
(2014), held that a police officer from Georgia lacked
minimal contacts with the State of Nevada to support the
exercise of personal jurisdiction, even if the officer knew
that his allegedly tortious conduct in Georgia would delay
return of funds to persons with connections to Nevada. In
Walden, the Court found that “[the police
officer] never traveled to, conducted activities within,
contacted anyone in, or sent anything or anyone to
Nevada.” Similarly, here, apart from the few, mostly
conclusory allegations stated above, the Court is not
presented with allegations to show that Defendant Martinez
traveled to, conducted activities in, contacted anyone
within, or sent anything to the State of Colorado. Under this
precedent, the Court finds that Plaintiff has not shown that
the Court can properly exercise personal jurisdiction over
the Court recommends that Claim Five be
dismissed without prejudice to the extent it
is asserted against Defendant ...