Montoya v. Newman et al

Filing 53

ORDER adopting 39 Recommendation of United States Magistrate Judge. The Amended Partial Motion to Dismiss Pursuant to C. R. C. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [# 17 ] is GRANTED IN PART. Plaintiff's First Claim for Relief as alleged in his complaint [# 7 ] is DISMISSED. Otherwise, Amended Partial Motion to Dismiss Pursuant to C. R. C. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [# 17 ] is denied. By Judge Robert E. Blackburn on 9/11/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-2362-REB-KLM
RAYMOND MONTOYA,
Plaintiff,
v.
BRUCE NEWMAN, in his official capacity as the Sheriff of Huerfano County Jail;
LARRY GARBISO;
DOE #1-2, detention officer at Huerfano County Jail;
DOE #1-2, medical staff member at Huerfano County Jail; and
DR. NEECE,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Amended Partial Motion to
Dismiss Pursuant to C. R. C. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#17]1 filed
September 12, 2012; and (2) the corresponding Recommendation of United States
Magistrate Judge [#39] filed May 23, 2013. The defendants filed objections [#40 &
#41]2 to the recommendation. I overrule the objections, approve and adopt the
recommendation, and grant the motion to dismiss in part and deny it in part.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the

1

“[#53]” 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.
2

[#40] and [#41] appear to contain essentially the same material.

recommendation to which the defendants object. I have considered carefully the
recommendation, the objections, and the applicable case law.
In the motion to dismiss, the defendants argue that the Colorado Governmental
Immunity Act (CGIA) bars the plaintiff’s negligence claim against the defendants.
According to the defendants, this court does not have jurisdiction over the plaintiff’s
state law negligence claim because the defendants are entitled to immunity under the
CGIA. The plaintiffs seek dismissal of the plaintiff’s negligence claim under FED. R. CIV.
P. 12(b)(1).
The plaintiff, Raymond Montoya, asserts claims based on events which allegedly
took place while he was incarcerated in the Huerfano County Jail. Exhibits cited by the
defendants indicate that Mr. Montoya was arrested for a probation violation on March 3,
2011. Motion To Dismiss [#1-10], CM/ECF p. 9 (Exhibit A).3 At the request of the
probation officer, and on order of the court, Mr. Montoya was released on March 10,
2011. Id., CM/ECF p. 11 (Exhibit B). Nothing in the record indicates that Mr. Montoya
ever appeared before the court concerning the probation violation or that he ever was
found by the court to have violated the terms of his probation. The report to the court
filed by the probation officer indicates that the probation officer ordered Mr. Montoya’s
release, in view of Mr. Montoya’s agreement to participate in an inpatient residential
treatment program. Exhibit A. The probation officer indicated in his report that “(n)o
further action will be requested with regard to [Mr. Montoya’s] arrest at this time.”

3

The defendants present a factual challenge to the court’s jurisdiction under FED. R. CIV. P.
12(b)(1). In this circumstance, I may consider the exhibits presented by the defendants to resolve
disputed jurisdictional facts under Rule 12(b)(1). Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.),
cert. denied, 484 U.S. 986 (1987).

2

Exhibit A. On March 10, 2011, the court approved the release of Mr. Montoya who was
released that same day. Exhibit B. Mr. Montoya’s claims in this case are based on
events that allegedly occurred while he was in the Huerfano County Jail from March 3 to
March 10, 2011.
As discussed in the recommendation, a waiver of sovereign immunity under
§24-10-106(1), C.R.S., “does not apply to claimants who have been convicted of a
crime and incarcerated in a correctional facility or jail pursuant to such conviction.”
§24-10-106(1.5)(a), C.R.S. However, a waiver of sovereign immunity under
§24-10-106(1), C.R.S., “does apply to claimants who are incarcerated but not yet
convicted of the crime for which such claimants are being incarcerated.”
§24-10-106(1.5)(b), C.R.S. The magistrate judge concluded that §24-10-106(1.5)(b),
C.R.S. is applicable here because, at the time of the events in question, Mr. Montoya
was incarcerated based on an alleged probation violation but had not yet been found by
the court to have violated the terms of his probation.
I agree with the analysis and conclusions of the magistrate judge. The record
demonstrates that Mr. Montoya was incarcerated in the Huerfano County Jail based on
an alleged probation violation. During this incarceration Mr. Montoya was not formally
found guilty of a probation violation or otherwise adjudicated to have violated a condition
of his probation. This situation is closely analogous to pretrial incarceration while a
criminal charge is pending.4 Ultimately, Mr. Montoya was released from the jail, and no
4

As noted by the magistrate judge, §16-11-205(3), C.R.S., provides that a probationer arrested
based on a suspected probation violation “shall have all of the rights afforded by the provisions of this
code to persons incarcerated before trial of criminal charges . . . .” Section16-11-205(3) equates an
arrested probationer to a person who is incarcerated before trial. Although not controlling in this case, this
statute is persuasive when determining the status of an individual incarcerated because of an alleged
probation violation.

3

adjudication was entered concerning the alleged probation violation. I reject the
defendants’ contention that Mr. Montoya was incarcerated on his underlying conviction,
the conviction for which Mr. Montoya received a sentence to probation. The evidence in
the record indicates that, absent the alleged probation violation, Mr. Montoya would not
have been incarcerated during the time period in question. For the purpose of
determining whether §24-10-106(1.5)(a) or (b), C.R.S., is applicable, the status of the
alleged probation violation is the relevant consideration.
The magistrate judge recommends also that the plaintiff’s first claim for relief be
dismissed under FED. R. CIV. P. 12(b)(6). The plaintiff did not file objections to this part
of the recommendation. Thus, I review this part of the recommendation for plain error
only. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d
1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in this part of the
recommendation, I find and conclude that this part of the recommendation should be
approved and adopted as an order of this court.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#39] filed
May 23, 2013, is APPROVED and ADOPTED as an order of this court;
2. That the Amended Partial Motion to Dismiss Pursuant to C. R. C. P.
12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#17] filed September 12, 2012, is GRANTED IN
PART;
3. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s First Claim for Relief as
alleged in his complaint [#7] is DISMISSED; and
4. That otherwise, the Amended Partial Motion to Dismiss Pursuant to C. R.
4

C. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#17] filed September 12, 2012, is DENIED.
Dated September 11, 2013, at Denver, Colorado.
BY THE COURT:

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