Janny v. Gamez

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the September 20, 2018, recommendation of Magistrate Judge S. Kato Crews (ECF No. 110) to grant Defendants' motions to dismiss several claims in this case.^[1] Plaintiff objected to the recommendation (ECF No. 132), Defendants Carmack and Konstanty (“Program Defendants”) filed a response (ECF No. 133), and Plaintiff filed a reply (ECF No. 145). Plaintiff is an atheist, and he asserts claims under 42 U.S.C. § 1983 for violations of his constitutional rights stemming from his placement in a Christianity-based program as a condition of his parole. The Program Defendants were directors of the program. In their motion to dismiss they argued that their conduct of running a Christianity-based program at a homeless shelter does not constitute state action. Defendants Gamez and Diaz de Leon (“State Defendants”) were Plaintiff's probation officer and supervisor, respectively. They moved to dismiss Plaintiff's claims under the Fourth and Fourteenth Amendments for failure to state a claim. In addition, Defendant Diaz de Leon moved to dismiss all the claims against her because Plaintiff failed to allege personal participation on her part. For the reasons given below, the Court sustains Plaintiff's objection, accepts in part and rejects in part the recommendation, denies the Program Defendants' motion to dismiss, and grants the State Defendants' motion to dismiss in part.

         I. LEGAL STANDARDS

         When a magistrate judge issues a recommendation on a dispositive matter, the district court judge must “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quotation omitted). The district judge need not, however, consider arguments not raised before the magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs' entitlement to relief plausible.” Id. at 569 n.14. “In determining the plausibility of a claim, we look to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard does not require a plaintiff to set forth a prima facie case for each element.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quotation and alteration omitted).

         Plaintiff proceeds pro se; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as Plaintiff's advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         II. BACKGROUND

         Plaintiff did not object to the magistrate judge's statement of the factual and procedural background of this case, and the Court accepts and adopts it here. While on parole, Plaintiff was arrested for a parole violation. Although that complaint was ultimately dismissed, Defendant Gamez directed Plaintiff to stay at the Denver Rescue Mission in Fort Collins, wear an electronic monitoring device, and abide by the house rules implemented by the Program Defendants. Those rules required participation in Bible studies, daily prayer, daily chapel, church, and religious counseling. Upon his arrival at the Rescue Mission, Plaintiff stated his objection to having to participate in these activities because he is an atheist. Defendant Carmack directed Plaintiff not to talk about those beliefs. Concerned that Plaintiff might not be a good fit for the Christianity-based program, Defendant Carmack called Defendant Gamez, who assured him that Plaintiff would abide by the rules.

         Defendant Carmack and Plaintiff met with Defendant Gamez in his office the following day, and Defendant Gamez confirmed that Plaintiff was required to abide by the rules. At Defendant Carmack's request, Defendant Gamez changed Plaintiff's curfew, which Plaintiff alleges prevented him from getting a job. Days later, Plaintiff refused to attend church services and was kicked out of the program. Plaintiff reported to the parole office the following day, and his parole was revoked.

         Plaintiff asserts four claims for relief. Claim One is based on the theory that being forced to choose between a religious program or jail violated his Fourth Amendment rights. Claims Two and Three are based on the theory that his placement in the program violated his First Amendment rights under both the Establishment and Free-Exercise Clauses. Claim Four is based on the theory that other participants in the program and the Denver Rescue Mission were permitted to do things he was not because he is an atheist, violating his right to equal protection under the Fourteenth Amendment.

         The Program Defendants filed a motion to dismiss (ECF No. 97) and the State Defendants filed a motion to dismiss in part (ECF No. 99). The magistrate judge recommends granting both motions. (ECF No. 110.) With respect to the Program Defendants, the magistrate judge determined that Plaintiff's allegations did not establish that they were acting under color of state law. The magistrate judge applied the four tests used in the United States Court of Appeals for the Tenth Circuit-the nexus test, the symbiotic-relationship test, the joint-action test, and the public-functions test-and determined that the Program Defendants did not qualify as state actors under any of them. Plaintiff has objected to only the magistrate judge's application of the joint-action test.

         No party objected to the magistrate judge's determinations that Plaintiff's conclusory allegations failed to state a claim with respect to Claims One and Four and that Plaintiff failed to allege sufficient personal participation by Defendant Diaz de Leon.

         III. ...