United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
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. 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.
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
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.”).
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).
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).
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.
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.
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.
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.
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.