Esquibel v. Raemisch et al

Filing 69

ORDER that the Recommendation of United States Magistrate Judge 43 is Approved and Adopted as an Order of this court AND that the Recommendation of United States Magistrate Judge 67 is Approved and Adopted as an Order of this court AND that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) 21 filed by defendants. Signed by Judge Robert E. Blackburn on 3/17/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00408-REB-KLM
MARK A. ESQUIBEL,
Plaintiff,
v.
RICK RAEMISCH, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
ROGER WERHOLTZ, individually and in his official capacity as Executive Director of
the
Colorado Department of Corrections,
TONY CAROCHI, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
TOM CLEMENTS, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
JOE ORTIZ, individually and in his official capacity as Executive Director of the
Colorado
Department of Corrections,
JOHN SUTHERS, individually and in his official capacity as Executive Director of the
Colorado Department of Corrections,
MARY CARLSON, individually and in her official capacity as Time Computation
Manager
of Colorado Department of Corrections, and
JOHN DOE, individually and in his/her official capacity as Executive Director of the
Colorado Department of Corrections,
Defendants.

ORDER ADOPTING RECOMMENDATIONS OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion to Dismiss Pursuant
to Fed. R. Civ. P. 12(b)(1) and (6) [#21]1 filed by defendants Rick Raemisch and Mary

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“[#21]” 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.

Carlson on May 21, 2015; and (2) the Recommendation of United States Magistrate
Judge [#43] filed September 17, 2015; and (3) the Recommendation of United States
Magistrate Judge [#67] filed February 8, 2016. No objections to the recommendations
were filed. Therefore, I review the recommendations for plain error only.2 See
Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122
(10th Cir. 2005). Finding no error, much less plain error, in the recommendations, I find
and conclude that recommendations should be approved and adopted.
The plaintiff, Mark Esquibel, is a prisoner incarcerated by the Colorado
Department of Corrections (DOC). Mr. Esquibel claims in his complaint [#1] that the
DOC does not calculate correctly his mandatory release date. As detailed in the first
recommendation [#43], Mr. Esquibel never arranged to have several defendants served
with a summons and complaint. On this basis, Mr. Esquibel consents to the dismissal
of all defendants save Rick Raemisch and Mary Carlson. Appropriately, the magistrate
judge recommends that the claims against these defendants be dismissed.
In the motion to dismiss [#21], the remaining two defendants argue that this case
must be dismissed as to the claims asserted against them in their official capacities
based on Eleventh Amendment immunity. In addition, under the doctrine established in
Heck v. Humphrey, 512 U.S. 477 (1994), the defendants seek dismissal of the claims
asserted against them in their individual capacities. For the reasons stated by the
magistrate judge, dismissal on these bases is proper. Finally, the magistrate judge

2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his
pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076
(10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S.
519, 520-21 (1972)).

2

notes that the relief sought by Mr. Esquibel may be sought only in an action for habeas
corpus and not by filing a civil rights claim under 28 U.S.C. § 1983. On this basis also,
the magistrate judge recommends, correctly, that this case be dismissed. I concur with
the analysis and conclusions detailed by the magistrate judge.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#43] filed
February 24, 2016, is approved and adopted as an order of this court;
2. That the Recommendation of United States Magistrate Judge [#67] filed
February 8, 2016, is approved and adopted as an order of this court;
3. That the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6)
[#21] filed by defendants Rick Raemisch and Mary Carlson on May 21, 2015, is granted;
4. That all claims against all defendants are dismissed;
5. That judgment shall enter in favor of the defendants and against the plaintiff;
6. That defendants are awarded their costs to be taxed by the clerk of the court
in the time and manner prescribed in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR
54.1; and
7. That this case is closed.
Dated March 17, 2016, at Denver, Colorado.
BY THE COURT:

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