Rockette Sr. v. Ramirez

Filing 40

ORDER granting 35 Motion to Dismiss by Judge R. Brooke Jackson on 1/27/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-02178-RBJ-MJW
TARICO ROCKETTE SR.,
Plaintiff,
v.
RAMIREZ, Lt.,
Defendant.

ORDER

This case comes before the Court on the defendant’s Motion to Dismiss Amended
Complaint [ECF No. 35]. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. For
the following reasons the motion is granted.
BACKGROUND
This case is brought by Tarico Rockette, Sr., an inmate currently housed at the Limon
Correctional Facility of the Colorado Department of Corrections. The events giving rise to this
lawsuit, however, occurred while Mr. Rockette was incarcerated at the Fremont Correctional
Facility, also in Colorado. For purposes of this motion, the Court takes as true all well-pleaded
allegations made on the face of the Complaint.
On January 14, 2013 Mr. Rockette was watching television in his pod, a housing unit in
the prison. The defendant, Lieutenant Ramirez, told Mr. Rockette to turn down the volume,
which he claims he did. Later that night Lt. Ramirez pulled Mr. Rockette out of his cell because
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of the loud volume, at which point she “became extremely disrespectful and aggressive.”
Amended Complaint [ECF No. 7] at 4. 1 Mr. Rockette alleges that when he didn’t “feed into her
negativity she told me to turn around to be handcuffed.” Id. However, instead of cuffing him Lt.
Ramirez ordered Mr. Rockette to go outside and place his hands on a vending machine “to be
shake-down.” Id. Lt. Ramirez then “snatched” Mr. Rockette’s beanie off of his head, pulling his
hair and snapping his neck backwards, allegedly giving him whiplash. Id. At this point the two
returned to Mr. Rockette’s pod, and Lt. Ramirez “threw my beanie in my face in an assaultive
manner.” Id. at 5.
Mr. Rockette claims that he has suffered injuries as a result of Lt. Ramirez’s conduct. In
particular he alleges that he has been taking pain killers related to his beanie being snatched from
his head, presumably for the neck pain. Id. at 8, 10. He adds that he had x-rays taken of his neck
but gives no indication as to what injuries, if any, were established by them. See id. Mr.
Rockette brings two claims for relief under 42 U.S.C. § 1983, asserting violations of his equal
protection and due process rights. The defendant moves to dismiss all claims against her
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
STANDARD OF REVIEW
Rule 12(b)(1) concerns whether the Court has jurisdiction to hear the case before it.
“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to
exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). “Jurisdiction is a
threshold question that a federal court must address before reaching the merits of a statutory
question, even if the merits question is more easily resolved and the party prevailing on the
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Because Mr. Rockette’s complaint is not consecutively paginated, the Court refers to the page numbers
assigned by the Court’s electronic case filing system.

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merits would be the same as the party that would prevail if jurisdiction were denied.” Id.
“[S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts
resolved against federal jurisdiction.” 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.” Montoya, 296 F.3d at 955 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994)). Subject matter jurisdiction may be challenged by a party or raised sua
sponte by the Court at any point in the proceeding. Fed. R. Civ. P. 12(h)(3); Harris v. IllinoisCalifornia Exp., Inc., 687 F.2d 1361, 1366 (10th Cir. 1982).
In reviewing a 12(b)(6) motion to dismiss, the Court must accept the well-pleaded
allegations of the complaint as true and construe them in the plaintiff’s favor. However, the facts
alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim 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). Allegations that are purely conclusory
need not be assumed to be true. Id. at 681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008).
To plead a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that the
defendant, acting under color of state law, deprived him of a right secured by the United States
Constitution or its laws. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “A
defendant may not be held liable under § 1983 unless he or she subjected a citizen to the
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deprivation, or caused a citizen to be subjected to the deprivation.” Lippoldt v. Cole, 468 F.3d
1204, 1219 (10th Cir. 2006) (alterations and citation omitted).
Because Mr. Rockette is appearing pro se, the Court “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court
may not act as the advocate of the pro se litigant, nor should it “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
ANALYSIS
I. SUBJECT MATTER JURISDICTION
Lt. Ramirez argues that any claims asserted against her in her official capacity are barred
by the Eleventh Amendment. The Court agrees. The Eleventh Amendment sovereign immunity
doctrine provides that state officials acting in their official capacities cannot be sued for
retroactive monetary relief. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102–
03, 105–06 (1984). Because Mr. Rockette seeks only monetary (and not injunctive) relief, the
Court lacks jurisdiction to hear any claim against Lt. Ramirez in her official capacity.
II. SUFFICIENT PLEADING
The defendant contends that insofar as she is sued in her individual capacity Mr. Rockette
fails to state a claim upon which relief can be granted. The Court agrees for the reasons set forth
below.

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A. Equal Protection.
“The equal protection clause is triggered when the government treats someone differently
than another who is similarly situated.” Buckley Const., Inc. v. Shawnee Civic & Cultural Dev.
Auth., 933 F.2d 853, 859 (10th Cir. 1991). “In order to assert a viable equal protection claim,
plaintiffs must first make a threshold showing that they were treated differently from others who
were similarly situated to them.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998).
Mr. Rockette claims that his right of safety was violated by Lt. Ramirez and that as a
result he was denied his right to equal protection under the law. Amended Complaint at 8.
However, Mr. Rockette fails to allege that he was treated differently from his fellow inmates. In
his response brief he claims that Lt. Ramirez’s actions standing alone show that he was treated
differently from others, that the assault itself establishes differential treatment. The Court
disagrees. In order to make out an equal protection claim it is essential that the plaintiff plead
that there were others similarly situated – in this case perhaps other inmates who played their
televisions at high volumes – who were treated differently than the plaintiff. No such allegations
are found on the face of the complaint. This claim must therefore be dismissed.
B. Due Process.
The Due Process Clause of the Fourteenth Amendment protects against state deprivations
of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. To assert a
due process violation, a plaintiff must show that he possessed a protected interest under the Due
Process Clause and that he was not afforded an appropriate level of process before being
deprived of that interest. See Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.
1994). Typically the Court would begin by determining whether the plaintiff sufficiently pled a
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deprivation of a constitutionally protected interest. However, the defendant puts forward no
argument in support of dismissal on this ground, instead simply stating that the plaintiff “does
not assert a liberty interest that would give rise to a procedural due process claim.” [ECF No. 35
at 6]. 2 That is not enough. The Court therefore moves along to the second question, whether
Mr. Rockette was afforded an appropriate level of process. Because it is unclear whether Mr.
Rockette asserts a procedural or substantive due process claim, the Court analyzes his cause of
action under both legal frameworks.
1. Procedural Due Process
The Court reads Mr. Rockette’s complaint as alleging that Lt. Ramirez took an
unauthorized and intentional action against him resulting in a deprivation of his constitutionally
protected liberty rights. In such a case there are no pre-deprivation procedures available before
being subjected to the unconstitutional conduct. However, that does not mean that Mr. Rockette
was denied due process under the law. “[D]ue process [does] not require predeprivation hearings
where there is a need for quick action or where the deprivation is the result of a random and
unauthorized act.” Urban v. Tularosa, 161 F.3d 19, at *6 (10th Cir. 1998) (unpublished). In
such cases the question becomes whether a meaningful post-deprivation remedy for the loss is
available under state law. See id; Hudson v. Palmer, 468 U.S. 517, 533 (1984). 3 The Court
finds that there was.

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Furthermore, the defendant’s reliance on Hewitt v. Helms, 459 U.S. 460 (1983), is misplaced. See
Sandin v. Conner, 515 U.S. 472 (1995) (receding from the reasoning followed in Hewitt).

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Though many cases concern unauthorized and intentional deprivations of property the same analysis
applies to liberty interests. See Zinermon v. Burch, 494 U.S. 113, 136 (1990) (analyzing an alleged
deprivation of liberty by first considering whether the deprivation was unpredictable such that only postdeprivation remedies were available).

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Mr. Rockette could have followed the requirements of the Colorado Governmental
Immunity Act and filed a state tort action against Lt. Ramirez. There is no indication that he has
done so. Frankly, as discussed below, it seems that Mr. Rockette is trying to file such a claim in
this case. In any event, Mr. Rockette has not alleged that this post-deprivation remedy was
unavailable to him. Therefore, insofar as he makes out a procedural due process claim it must be
dismissed for failure to state a claim upon which relief can be granted.
2. Substantive Due Process
“Substantive due process protects fundamental liberty interests and protects against the
exercise of government authority that ‘shocks the conscience.’” Koessel v. Sublette Cnty.
Sheriff’s Dep’t, 717 F.3d 736, 749 (10th Cir. 2013) (quoting Seegmiller v. LaVerkin City, 528
F.3d 762, 767 (10th Cir. 2008)). “Substantive due process prohibits ‘only the most egregious
official conduct.’” Id. at 750 (quoting Seegmiller, 528 F.3d at 767). “Even most intentionally
inflicted injuries caused by misuse of government authority will not meet this standard.” Id.
(citations omitted). The Court finds that while Mr. Rockette has alleged an injury intentionally
inflicted by a misuse of government authority, the claims put forward in his complaint do not
shock the conscience. Therefore, insofar as Mr. Rockette makes out a substantive due process
claim it is hereby dismissed.
C. Additional Claims.
Mr. Rockette does not explicitly state a cause of action alleging violations of his rights
under the Eighth Amendment or under state tort law. However, in the request for relief Mr.
Rockette writes: “The physical abuse of myself by defendant Lt. Ramirez violated my rights

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under the Eighth Amendment to the United States Constitution, and constituted an assault and
battery under state law.” Amended Complaint at 13.
Giving Mr. Rockette as an unrepresented litigant the full benefit of liberal construction of
his pleadings, the Court could construe the request in the ad damnum section as an effort to
assert two additional claims. The Court does not. However, even if it did, the Court is not
persuaded. First, “[t]he Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” Hudson v.
McMillian, 503 U.S. 1, 9–10 (1992) (citations omitted). In this Court’s judgment, accepting the
plaintiff’s allegations as true, this was a relatively de minimis use of force. The Eighth
Amendment is, and should be, reserved for serious inflictions of cruel and unusual punishment
on inmates. Second, with respect to the state tort claim, the Court agrees with the defendant that
such a claim would have been time barred by the time this action was filed.
The Court has assumed the truth of Mr. Rockette’s factual pleadings for purposes of this
motion. Whether his description of the incident is in fact entirely correct is beyond my
knowledge. If it were entirely correct, then it would seem that the officer might have overreacted
somewhat. And, if so, Mr. Rockette’s frustration would be understandable. But not all
wrongdoings by state officials rise to the level of constitutional violations.
ORDER
For the following reasons the defendant’s Motion to Dismiss Amended Complaint [ECF
No. 35] is GRANTED. The Court, however, declines to award costs pursuant to its powers
under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
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DATED this 27th day of January, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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