United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendants' Motion
to Dismiss Amended Complaint [#22] (the
“Motion”). Plaintiff, who proceeds in this matter
pro se,  filed a Response [#29] in opposition to
the Motion, and Defendants did not file a reply. The parties
have consented to proceed before the undersigned for all
proceedings pursuant to 28 U.S.C. § 636(c) and
D.C.COLO.LCivR 72.2(d). See [#17, #25, #27]. The
Court has reviewed the entire case file and the applicable
law and is sufficiently advised in the premises. For the
reasons set forth below, the Motion [#22] is
is currently an inmate in the custody of the Colorado
Department of Corrections (“CDOC”), but for all
times relevant to this case was a parolee in Denver, Colorado
and resided at the Denver Rescue Mission and Crossroads
Shelter. Am. Compl. [#9] at 5; see Notice of
Change of Address [#21]. Defendants Jacqueline Brown
(“Brown”) and John Cribari
(“Cribari”) appear to have been Plaintiff's
parole officers and Defendant Rick Raemisch
(“Raemisch”) is the former Executive Director of
the CDOC. The circumstances of Plaintiff's parole form
the basis for Plaintiff's claims.
facts alleged in the Amended Complaint [#9] are sparse. While
on parole, Plaintiff alleges that her Community Parole
Officer, Defendant Brown, “force[ed] her to reside at
the Denver Rescue Mission and Crossroads Shelter.”
Am. Compl. [#9] at 5. While staying at these
locations, Plaintiff claims that she was “threatened
and almost robbed” and subjected to “serious harm
or injury”. Id. Plaintiff returned to
Defendant Brown and “pleaded for a transfer, ”
which Defendant Brown “vehemently refused”.
Id. Further, Plaintiff alleges that Defendant
Cribari, a supervising Community Parole Officer,
“failed to intervene” in her situation and that
her circumstances were the result of a policy approved by
Defendant Raemisch that leaves parolees homeless.
Id. at 5-6.
initiated this lawsuit on August 10, 2018, see
Compl. [#1], and filed an Amended Complaint [#9] on
October 1, 2018. On its face, the Amended Complaint asserts
three separate claims. “Claim One” was dismissed
as legally frivolous by the Court on October 11,
2018. Order to Dismiss in Part and to Draw
in Part [#11]. Accordingly, only “Claim Two”
and “Claim Three” remain.
“Claim Two, ” Plaintiff alleges that Defendant
Brown's actions violated Plaintiff's Fourteenth
Amendment rights “which tie[ ] into the cruel and
unusual punishment clause of the Eighth Amendment.”
Am. Compl. [#9] at 5. Plaintiff further asserts in
“Claim Two” that Defendant Cribari, in “a
supervisory capacity and direct capacity, ” failed to
intervene and protect Plaintiff from serious harm and injury;
and was “deliberately indifferent to the conditions of
confinement [P]laintiff was being forced to reside in.”
“Claim Three, ” Plaintiff alleges that Defendant
Raemisch permitted “a well-known policy of paroling
offenders homeless [sic], especially at risk mental health
offenders like [P]laintiff . . . without proper assistance,
supervision and guidance[.]” Id. at 6.
Plaintiff asserts that “[t]his violates [her]
Fourteenth Amendment rights based upon the equal protection
clause and [ ] procedural due process.” Id.
“Claim Three” further alleges that Defendant
Cribari violated Plaintiff's Fourteenth Amendment rights
to equal protection and procedural due process by failing to
“properly train his subordinates, ” “act
and intervene in appropriate situations, ” and
“properly ensure at risk mental health offenders like
[P]laintiff[ ] were assisted and supervised in accordance
with proper parole standards[.]” Id. at 6-7.
on the foregoing, and liberally construing the Amended
Complaint [#9], Plaintiff appears to assert the following
claims: (1) violation of the Eighth Amendment based on
Defendants Brown and Cribari's deliberate indifference to
Plaintiff's safety; (2) violation of Fourteenth Amendment
substantive due process against Defendants Brown and Cribari;
(3) violation of Fourteenth Amendment equal protection
against Defendants Raemisch and Cribari; and (4) violation of
Fourteenth Amendment procedural due process against
Defendants Raemisch and Cribari.
brings her claims against all Defendants in their individual
and official capacities. Id. at 2-3. For relief,
Plaintiff seeks the following: (1) actual damages in the
amount of $12, 500; (2) punitive damages in the amount of $1,
000, 000; (3) compensatory damages for emotional pain and
suffering in the amount of $250, 000; and (4) injunctive
relief in the form of a Court order requiring the CDOC and
Defendant Raemisch “to conduct an audit of the parole
department, policies, and procedures, employee conduct, and
training and report this audit to this Court with proposed
changes, along with a proposed structured and training regime
for supervising at risk mental health offenders, like
[P]laintiff, to be approved and implemented by this
Court.” Id. at 10.
filed the present Motion [#22] on January 16, 2019, in which
they seek to dismiss Plaintiff's remaining claims
pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). In short,
Defendants argue that: (1) the Eleventh Amendment bars
Plaintiff's claims for money damages against Defendants
in their official capacities; (2) Plaintiff fails to state a
claim under either the Eighth or Fourteenth Amendments; (3)
Defendants are entitled to qualified immunity with respect to
Plaintiff's Eighth Amendment claims; and (4) Plaintiff
fails to state a claim for injunctive relief or compensatory
damages. See Motion [#22] 4-13.
Federal Rule of Civil Procedure 12(b)(1)
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject-matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
Federal Rule of Civil Procedure 12(b)(6)
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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, 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)).
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. (alteration 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, 556 U.S. at 679 (first
alteration in original) (citation and internal quotation
Rule 8, a plaintiff must provide a ‘short and plain
statement of the claim showing that the pleader is entitled
to relief.'” Tuttamore v. Lappin, 429
Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P.
8(a)(2)). As with Rule 12(b)(6), “to overcome a motion
to dismiss, a plaintiff's allegations must move from
conceivable to plausible.” Id. Indeed,
“Rule 8(a)'s mandate . . . has been incorporated
into the 12(b)(6) inquiry.” United States ex rel.
Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th
Cir. 2010). Rule 8 enables “the court and the
defendants to know what claims are being asserted and to
determine how to respond to those claims.”
Tuttamore, 429 Fed.Appx. at 689.
doctrine of qualified immunity protects 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.” Herrera v. City of Alburquerque, 589
F.3d 1064, 1070 (10th Cir. 2009) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). When qualified
immunity is asserted, a Plaintiff must show that: “(1)
the defendant violated a constitutional right and (2) the
constitutional right was clearly established.”
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009) (citing Pearson, 555 U.S. at 231). “The
determination of whether a violation occurred under the first
prong of the qualified immunity analysis turns on the
substantive law regarding that right.” Davis v.
City of Aurora, 705 F.Supp.2d 1243, 1255 (D. Colo.
2010). “With regard to the second [prong], the
relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful under the
circumstances presented.” Herrera, 589 F.3d at
1070 (quoting Fogarty v. Gallegos, 523 F.3d 1147,
1155 (10th Cir. 2008)). Judges are permitted to use their
sound discretion in deciding which of the prongs should be
addressed first. Davis, 705 F.Supp.2d at 1255
(citing Pearson, 555 U.S. at 231).
Subject Matter Jurisdiction
Court first addresses Defendants' argument that the
Eleventh Amendment bars Plaintiff's claims for monetary
damages against Defendants in their official capacities.
See Motion [#22] at 4-5. The Eleventh Amendment bars
recovery of monetary damages from individual state Defendants
sued in their official capacities. Dreismeier v.
Fauvel, No. 12-cv-01131-KLM, 2013 WL 1365766, at *3 (D.
Colo. Apr. 3, 2013). To the extent that Plaintiff sues
Defendants in their official capacities, “[s]uits
against state officials in their official capacit[ies] should
be treated as suits against the state.” Hafer v.
Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v.
Graham, 473 U.S. 159, 166 (1985)); see also Duncan
v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (stating
that state officers sued in their official capacity are not
“persons” subject to suit under 42 U.S.C. §
1983). Thus, pursuant to the Eleventh Amendment, the Court
lacks subject matter jurisdiction to adjudicate an action
brought by a citizen of a state against the state itself, its
agencies, or its officials in their official capacities for
monetary relief. See Johns v. Stewart, 57 F.3d 1544,
1552 (10th Cir. 1995).
Eleventh Amendment immunity bars claims against individuals
sued in their official capacities “for money damages
and relief for prior acts.” See Hunt v. Colo.
Dep't of Corr., 271 Fed. App'x. 778, 781 (10th
Cir. 2008). Here, all Defendants are state officers with the
Colorado Department of Corrections. Accordingly, the Motion
[#22] is granted to the extent that
Plaintiff's claims seeking monetary relief against
Defendants Brown, Cribari, and Raemisch in their official
capacities are dismissed without prejudice
for lack of subject matter jurisdiction. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1216 ...