Morgan et al v. Clements et al

Filing 99

ORDER granting in part and denying in part 19 CDOC Defendants' Partial Motion To Dismiss Amended Complaint. By Judge Robert E. Blackburn on 3/18/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-00936-REB-KMT
JOHN MORGAN,
DUSTIN COOK,
PAUL STARK, and
JERROD THOELE,
Plaintiffs,
v.
TOM CLEMENTS, Executive Director of the Colorado Department of Corrections, in his
official capacity,
JEFFREY WELLS, Community Parole Officer, in his individual and official capacities,
JIM KELLER, Colorado Department of Corrections Parole Team Leader, in his
individual and official capacities,
LIESL SCHUMACHER, Colorado Department of Corrections Parole Supervisor, in his
individual and official capacities, and
JOHN OREY, Colorado Department of Corrections Parole Supervisor, in his individual
and official capacities,
Defendants.
ORDER RE: MOTION TO DISMISS
Blackburn, J.
This matter is before me on the CDOC Defendants’ Partial Motion To Dismiss
Amended Complaint [#19]1 filed July 16, 2012. The plaintiffs filed a response [#30],
and the defendants filed a reply [#33]. I grant the motion in part and deny it in part.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 133 (federal question).

1
“[#19]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

II. STANDARD OF REVIEW
In considering a motion under Fed. R. Civ. P. 12(b)(6), I must determine whether
the allegations in the complaint are sufficient to state a claim within the meaning of Fed.
R. Civ. P. 8(a). I must accept all well-pleaded allegations of the complaint as true.
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). “However,
conclusory allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots
Association, 987 F.2d 278, 284 (5th Cir. 1993); see also Burnett v. Mortgage Elec.
Registration Sys., Inc., ___ F.3d ___, ____, 2013 WL 386283, *2 - *3 (10th Cir.
2013); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (“All well-pleaded facts,
as distinguished from conclusory allegations, must be taken as true.”), cert. denied,
538 U.S. 999 (2003). I review the challenged portion of a complaint to determine
whether it “‘contains enough facts to state a claim to relief that is plausible on its face.’”
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Burnett., ___ F.3d ____, 2013 WL 386283, *2
- *3. “Thus, the mere metaphysical possibility that some plaintiff could prove some set
of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims." Schneider, 493 F.3d at 1177 (emphases in original).2
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Twombly rejected and supplanted the “no set of facts” language of Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Tenth Circuit clarified the meaning of the “plausibility”
standard:
“plausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.” The allegations

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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 a recovery is very remote and unlikely.“ Dias v. City and County of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127 S.Ct. at 1965) (internal
quotation marks omitted).
A motion to dismiss based on Eleventh Amendment immunity is viewed as a
motion to dismiss for lack of jurisdiction over the subject matter under Fed. R. Civ. P.
12(b)(1). A Rule 12(b)(1) dismissal is not a judgment on the merits, but a determination
that the court lacks authority to adjudicate the matter. See Castaneda v. I.N.S., 23 F.3d
1576, 1580 (10th Cir. 1994).
III. ALLEGATIONS
The operative pleading is the plaintiffs’ Amended Complaint and Jury Demand
[#14] filed July 2, 2012. At the times described in the complaint, the plaintiffs were
parolees in the custody of the Colorado Department of Corrections. The plaintiffs claim
they were imprisoned unlawfully after being arrested for parole violations. Specifically,
the plaintiffs allege that defendant Jeff Wells, a Community Parole Officer, failed to file
and serve timely parole violation complaints against plaintiffs after the plaintiffs were
arrested. Both the relevant statutes of the state of Colorado and the regulations of the

must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual grounds of the
claim against them. “Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which
the claim rests.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974;
internal citations and footnote omitted).

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Colorado Department of Corrections (DOC) require that a parolee be served with a
parole violation complaint or released within ten working days of the date of his arrest
for a parole violation. According to the complaint, an arrest date also is known as his
hold date. In addition, a parolee must be given a parole hearing within 30 days of his
arrest or hold date. According to the plaintiffs, Mr. Wells repeatedly failed to file
complaints against parolees within ten days of their arrest and repeatedly arranged for
parole hearings to be conducted more than 30 days after an arrest. The plaintiffs say
Mr. Wells falsified documents by modifying the hold dates listed in parole violation
complaints to be able to file complaints against parolees more than ten days after their
arrests and to conduct parole violation hearings more than 30 days after their arrests.
Each of the plaintiffs claims he was held in custody unlawfully based on Wells’s
actions. Plaintiff John Morgan alleges he was held unlawfully form October 15, 2009, to
May 14, 2010. Plaintiff Dustin Cook alleges he was held unlawfully from November 29,
2009, to April 28, 2010. Plaintiff Paul Stark alleges he was held unlawfully for 45 days,
ending on September 24, 2009. Plaintiff Jerrod Thoele alleges he was held unlawfully
for seven days, ending on February 18, 2011.
The plaintiffs also assert claims against defendants Jim Keller, Liesl
Schumacher, and John Orey, all of whom held supervisory authority over Mr. Wells.
The plaintiffs allege that these three defendants were aware that Mr. Wells was holding
parolees unlawfully, but they did nothing to remedy the problem. According to the
plaintiffs, defendants Tom Clements and James Fitzpatrick both had supervisory
authority over Mr. Wells and failed to provide adequate training and supervision of Mr.
Wells and others related to the processing of parole violation complaints.
Under 42 U.S.C. § 1983, the plaintiffs assert five claims for alleged violations of
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their constitutional rights: (1) false imprisonment in violation of the Fourth and
Fourteenth Amendments, against all defendants; (2) deprivation of liberty without due
process in violation of the Fourteenth Amendment, against all defendants; (3) failure to
train, supervise, discipline, and/or monitor, in violation of the Fourth and Fourteenth
Amendments, against the defendants who were Mr. Well’s supervisors in their individual
and official capacities; (4) fundamental unfairness of plaintiffs’ parole revocations, in
violation of procedural and substantive due process rights under the Fourteenth
Amendment, against all defendants; and (5) manufacture of inculpatory evidence in
violation of the Fourteenth Amendment, against all defendants. The defendants move
for dismissal of some aspects of these claims.
IV. ANALYSIS
A. Eleventh Amendment
The defendants argue that any claims against the defendants in their official
capacity are barred by Eleventh Amendment immunity. Specifically, the defendants
challenge claims for retroactive declaratory relief and for compensatory and punitive
damages against the defendants in their official capacities.
There is no question that the Eleventh Amendment bars the plaintiffs’ claims for
monetary damages to the extent those claims are asserted against the individual
defendants in their official capacities. The Eleventh Amendment prohibits litigants from
bringing suit against the state in federal court unless the state waives that immunity or
Congress acts pursuant to its authority under the Fourteenth Amendment to override it.
Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989) (citing Welch v. Texas
Department of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987)
(plurality opinion)). “[A] suit against a state official in his or her official capacity is not a
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suit against the official but rather is a suit against the official's office . . . is no different
from a suit against the State itself,” id., 109 S.Ct. at 2312 (internal citations omitted),
and is thus barred by the Eleventh Amendment. This same immunity extends not only
to states and state officials per se, but further to “arms of the state” and their
employees. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). "[T]he
DOC is an arm of the state and should be entitled to absolute [Eleventh Amendment]
immunity." See Eastwood v. Department of Corrections of State of Oklahoma, 846
F.2d 627, 631 (10th Cir. 1988).
The plaintiffs’ claims for compensatory and punitive damages against the
defendants in their official capacities are barred by the Eleventh Amendment and must
be dismissed. The plaintiffs’ claims for declaratory relief remain viable because
declaratory relief may be relevant to the plaintiffs’ claims for damages against the
defendants in their individual capacities. However, to the extent the plaintiffs’ claims for
declaratory relief are relevant only to the plaintiffs’ claims for damages against the
defendants in their official capacities, the claims for declaratory relief must be
dismissed.
B. Heck v. Humphrey
The defendants contend Mr. Morgan and Mr. Cook’s claims arising from the
revocations of their parole are barred by Heck v. Humphrey, 512 U.S. 477 (1997).
“When a state prisoner seeks damages [or other forms of redress] in a § 1983 suit, the
district court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” Id. at 487.
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[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a §1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.
Heck, 512 U.S. at 486-87. “Heck also bars proceedings challenging the fact or duration
of parole.” Hudson v. Mason, 445 F. App’x 139, 140 (10th Cir. 2011) (internal
quotations omitted) (affirming dismissal of civil rights action stemming from parole
revocation when the parole revocation decision was not invalidated).
Mr. Morgan and Mr. Cook both allege that the end result of the filing of parole
violation complaints against them was the revocation of their parole. ¶¶ 51, 62. Mr.
Morgan and Mr. Cook do not allege that their parole revocations have been invalidated.
The plaintiffs argue, however that the actions of the DOC’s Office of the Inspector
General constitute a determination by an authorized tribunal that Mr. Morgan and Mr.
Cook’s parole revocations were invalid. In the complaint, the plaintiffs allege that the
Office of the Inspector General investigated discovered that Mr. Wells repeatedly held
parolees after they had been arrested longer than permitted by Colorado statute and
DOC regulations. ¶ 17. The plaintiffs do not allege any other determinations by the
Inspector General. This alleged determination does not address specifically Mr. Morgan
or Mr. Cook, and does not constitute a declaration that the parole revocations imposed
on Mr. Morgan and Mr. Cook’s were invalid.
Judgment in favor of Mr. Morgan or Mr. Cook on any of the five claims they
assert in the complaint necessarily would imply the invalidity of the parole revocation
decisions they describe in the complaint. These revocations have not been declared to
be invalid. Therefore, the claims of Mr. Morgan and Mr. Cook are barred by Heck, and
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the motion to dismiss must be granted as to these claims.
C. Statute of Limitations
The defendants argue that the claims of Mr. Morgan, Mr. Cook, and Mr. Stark are
barred by the applicable two year statute of limitations. The lynchpin to this issue is a
determination of the date on which the claims accrued. The initial complaint in this case
was filed on April 8, 2012. Absent tolling, any claim that accrued before April 8, 2010, is
barred by the statute of limitations.
Resolution of the statute of limitations issues requires a clear categorization of
the nature of the plaintiffs’ claims. In their First Claim for Relief, the plaintiffs assert a
constitutional claim in the nature of false imprisonment. In their Second Claim for
Relief, the plaintiffs assert a constitutional claim for deprivation of liberty without due
process, a claim often analogized to a claim for malicious prosecution. I will refer to
these claims by their simplest labels, false imprisonment and malicious prosecution.
These two claims accrue at different times.
In Mondragón v. Thompson, the plaintiff, Christopher Mondragón, alleged that
the defendant concocted and forged a warrant for Mondragón’s arrest. Based on the
warrant, Mondragón was jailed for approximately three months. Addressing
Mondragón’s claims, the Tenth Circuit concluded:
(A) plaintiff who claims that the government has unconstitutionally
imprisoned him has at least two potential constitutional claims. ”The initial
seizure is governed by the Fourth Amendment, but at some point after
arrest, and certainly by the time of trial, constitutional analysis shifts to the
Due Process Clause.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 - 86
(10th Cir.2004). If he has been imprisoned without legal process he has a
claim under the Fourth Amendment analogous to a tort claim for false
arrest or false imprisonment. If he has been imprisoned pursuant to legal
but wrongful process, he has a claim under the procedural component of
the Fourteenth Amendment's Due Process Clause analogous to a tort
claim for malicious prosecution. These torts are only analogies because
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§ 1983 suits ultimately rest on the Constitution, not on state (or federal)
common law. Pierce, 359 F.3d at 1285 - 88.
Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (footnote omitted). A
constitutional claim in the nature of false imprisonment accrues when the plaintiff is
released from the imprisonment or when legal process is instituted justifying the
imprisonment. Id. at 1083. (10th Cir. 2008). A constitutional claim in the nature of
malicious prosecution arises and accrues only when “the original action, whatever form
it has taken, has been terminated in favor of the plaintiff.” Id. (internal quotation
omitted).
In the case of an alleged parole violation, a complaint alleging the violation is
legal process which justifies an imprisonment. In Mr. Morgan’s case, a series of parole
violation complaints were initiated in September and October of 2009. ¶¶ 36 - 48.3 Mr.
Morgan was released from custody tied to the parole violation complaint on May 14,
2010. ¶ 52. In Mr. Cook’s case, a parole violation complaint was filed on November 9,
2009. ¶ 57. Mr. Cook was released from custody tied to the parole violation complaint
on April 28, 2010. ¶ 62. In Mr. Stark’s case, a parole violation complaint was filed on
August 17, 2009. ¶ 70. Mr. Stark was released from custody tied to the parole violation
complaint on September 24, 2009. ¶ 75.
In each of these three cases, legal process to justify the imprisonment was
instituted more than two years before the complaint was filed in this case. Absent
tolling, the plaintiffs’ false arrest claims are time barred.
Mr. Morgan and Mr. Cook were released from the allegedly improper
imprisonment less than two years before they filed their complaint in this case. Thus,

3

I refer to the complaint by paragraph number.

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their malicious prosecution claims were timely filed.4
On the other hand, Mr. Stark was released from the allegedly improper
imprisonment more than two years before the complaint was filed in this case. Absent
tolling, Mr. Stark’s malicious prosecution claim is not timely.
Mr. Stark claims he is entitled to equitable tolling of the statute of limitations
because he did not become aware of the Inspector General’s investigation or
conclusions concerning the conduct of Mr. Wells and other defendants until February
2012. When a claim is untimely on its face, the plaintiff bears a heavy burden of
demonstrating a viable basis for tolling. McDaniel v. Denver Lending Group, Inc.,
2009 WL 1873581 at *15 (D. Colo. June 30, 2009). Equitable tolling is limited to “rare
and exceptional circumstances.” Garcia v. Shanks, 351 F.3d 468, 473 n.2 (10th Cir.
2003). Tolling is available only “when [a plaintiff] diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary circumstances
beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
Mr. Stark alleges that the two parole complaints filed against him were dismissed
or rejected by the parole board because the applicable time requirements were not
satisfied with regard to those complaints. ¶¶ 66, 74. With those two dismissals, Mr.
Stark reasonably was on notice that he had been held in jail based on procedurally
improper complaints. That is the basis of his claims in this case. The elements of Mr.
Stark’s claims facially were satisfied when the two complaints were dismissed, and the
bases for the dismissals was not concealed from Mr. Stark. There is no indication in the
complaint that the Inspector General’s investigation revealed to Mr. Stark for the first

4
Even if timely, the claims of Mr. Morgan and Mr. Cook are subject to dismissal under Heck v.
Humphrey, 512 U.S. 477 (1997).

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time new information vital to Mr. Stark’s claims. A cause of action accrues even though
the plaintiff may not be aware of all of the evidence relevant to his or her claim. Baker v.
Bd. of Regents of State of Kan., 991 F.2d 628, 632 (10th Cir. 1993). Mr. Stark is not
entitled to equitable tolling of the limitations period.
The false arrest claims of Mr. Morgan, Mr. Cook, and Mr. Stark are time barred.
The malicious prosecution claims of Mr. Morgan and Mr. Cook are not time barred, but
they are barred under Heck v. Humphrey, 512 U.S. 477 (1997). The malicious
prosecution claim of Mr. Stark is time barred. I note further that the Third, Fourth, and
Fifth Claims for Relief of Mr. Stark are based on essentially the same facts as his First
and Second Claims for relief. Therefore, I conclude that Mr. Stark’s Third, Fourth, and
Fifth Claims for Relief also are time barred.
D. Punitive Damages & Manufacture of Inculpatory Evidence
Having reviewed the complaint and the arguments of the parties, I conclude that
the allegations in the complaint are sufficient to state claims for punitive damages and
for manufacture of inculpatory evidence. The motion to dismiss is denied as to these
claims.
V. CONCLUSION & ORDERS
The plaintiffs’ claims for compensatory and punitive damages against the
defendants in their official capacities are barred by the Eleventh Amendment and must
be dismissed. To the extent the plaintiffs’ claims for declaratory relief are relevant only
to the plaintiffs’ claims for damages against the defendants in their official capacities,
the claims for declaratory relief must be dismissed. Otherwise, the claims for
declaratory relief are not subject to dismissal. The claims of Mr. Morgan and Mr. Cook
are barred by Heck, and these claims must be dismissed. Mr. Stark’s claims are time
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barred and must be dismissed. Otherwise, the motion to dismiss is denied.
THEREFORE, IT IS ORDERED as follows:
1. That the CDOC Defendants’ Partial Motion To Dismiss Amended
Complaint [#19] filed July 16, 2012, is GRANTED in part as to the claims specified
below;
2. That under FED. R. CIV. P. 12(b)(1), the plaintiffs’ claims for compensatory and
punitive damages against the defendants in their official capacities, and any related
claims for declaratory relief, are DISMISSED;
3. That under FED. R. CIV. P. 12(b)(6), the claims of plaintiffs John Morgan and
Dustin Cook are DISMISSED because they are barred under Heck v. Humphrey, 512
U.S. 477 (1997);
4. That under FED. R. CIV. P. 12(b)(6), the claims of plaintiff Paul Stark are
DISMISSED because they are time-barred;
5. That plaintiffs John Morgan, Dustin Cook, and Paul Stark are DROPPED as
plaintiffs in this action, and the caption shall be AMENDED accordingly;
6. That otherwise, the CDOC Defendants’ Partial Motion To Dismiss
Amended Complaint [#19] filed July 16, 2012, is DENIED.
Dated March 18, 2013, at Denver, Colorado.
BY THE COURT:

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