Al-Turki v. Tomsic et al

Filing 93

ORDER Concerning 89 Recommendation ofUnited States Magistrate Judge: Granting in part and Denying in part 13 Motion to Dismiss as indicated in the attached Order; Granting in part and Denying in part 22 Motion to Dismiss as indicated in the attached Order; Granting 56 Motion to Dismiss. Signed by Judge Robert E. Blackburn on 3/25/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15–cv–00524–REB–KLM
HOMAIDAN AL-TURKI;
Plaintiff,
v.
ANN TOMSIC, individually and in her official capacity as Chief Deputy District Attorney,
GEORGE BRAUCHLER, individually and in his official capacity as District Attorney,
JON BIBIK, Special Agent, in his individual capacity,
ROBERT GOFFI, Chief Division Counsel, in his individual capacity,
PAUL HOLLENBECK, in his individual capacity, and
JOHN DOES 1-10, in their individual and/or official capacities;
Defendants.

ORDER CONCERNING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion To Dismiss From
Defendants Ann Tomsic and George Brauchler [#13]1 filed May 11, 2015; (2)
Defendant Paul Hollenbeck’s Motion To Dismiss [#22] filed May 18, 2015; (3) the
Motion To Dismiss of Defendants Jon Bibik and Robert Goffi [#56] filed August 14,
2015; (4) the related Recommendation of the United States Magistrate Judge [#89]
filed February, 25, 2016. On March 15, 2016, the plaintiff filed Objections to the
Recommendations of the United States Magistrate Judge Mix [#90]. I sustain the
objections in part and overrule the objections in part. I respectfully reject the
1

“[#13]” 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.

recommendation in part and approve and adopt the recommendation in part.
I. STANDARD OF REVIEW
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
February 25, 2016, recommendation [#89] to which the plaintiff objects. I have
considered carefully the recommendations, the objections, and the applicable case law.
II. ANALYSIS
The plaintiff, Homaidan Al-Turki, is currently incarcerated in Beaumont, Texas.
At all times relevant to his claims, he was incarcerated by the Colorado Department of
Corrections. Mr. Al-Turki alleges several different claims against the five named
defendants, employees of the federal and state governments, as well as ten John and
Jane Doe defendants. In his amended complaint [#28], Mr. Al-Turki alleges that the
defendants defamed and stigmatized him “by inventing and disseminating false
allegations that Plaintiff is a terrorist, is associated with terrorists, and/or poses a
national security concern.” Complaint [#28], p. 2. He further contends that in
disseminating these false statements, the defendants violated his right to due process
of law.
Mr. Al-Turki is a citizen of the Kingdom of Saudi Arabia. He sustained criminal
convictions in the District court of Arapahoe County, Colorado, and was sentenced to a
prison term of eight years to life. He remains incarcerated on that sentence. While in
prison, he initiated a prisoner transfer application under an international prisoner
transfer treaty. When a foreign national is incarcerated in a state prison, he may obtain
approval of a proposed international transfer by the sentencing state. If the sentencing
state approves, the application is then sent to the Attorney General of the United States
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for approval or disapproval.
The plaintiff claims the defendants caused Tom Clements, the then Executive
Director of Colorado Department of Corrections (DOC), to change his decision to
approve the request of the plaintiff for a transfer to his home country, Saudi Arabia.
Allegedly, Mr. Clements initially approved the transfer request, but later changed his
decision and rejected the request. This change, Mr. Al-Turki alleges, was caused by
the false and defamatory statements made by some of the defendants about Mr. AlTurki. Based on these factual allegations, Mr. Al-Turki alleges violations of his right to
due process of law and conspiracies to violate his right to due process of law. In all, he
asserts eight separate claims. In their motions to dismiss, the defendants seek
dismissal of these claims under Fed. R. Civ. P. 12(b)(6). The magistrate judge
recommends that each claim be dismissed.
As the magistrate judge correctly notes, in order to survive a Rule 12(b)(6)
motion, the complaint must “plead sufficient facts, taken as true, to provide plausible
grounds that discovery will reveal evidence to support plaintiff’s allegations.” Shero v.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). A claim is facially plausible
when “the plaintiff pleads the factual content 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, 677 (2009).
A. Claims Against State Officials
1. Individual Capacity Claims - The magistrate judge found that the claims
against the defendants who are officials of the state of Colorado (defendants Ann
Tomsic, George Brauchler, and Paul Hollenbeck) in their individual capacities should be
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dismissed. I agree. Prospective injunctive relief is the only remedy sought by the
plaintiff. Under 42 U.S.C. § 1983, such relief is not available against officials of the
state of Colorado in their individual capacities. Thus, the individual capacity claims for
prospective injunctive relief against Ann Tomsic, George Brauchler, and Paul
Hollenbeck must be dismissed.
2. Official Capacity - Stigma-Plus Claims - Mr. Al-Turki alleges various 14th
Amendment due process claims against the state defendants. He labels his First
Cause of Action as a “stigma-plus” due process claim against defendants Mr. Brauchler
and Ms. Tomsic. Complaint [#28], p. 24. He labels his Third Cause of Action as a claim
of conspiracy to violate his due process rights based on his “stigma-plus” due process
claim. The Third Cause of Action is asserted against defendants Mr. Brauchler, Ms.
Tomsic, Mr. Hollenbeck, and the John and Jane Doe defendants. Complaint [#28], p.
27.
The stigma-plus standard requires a plaintiff to show (1) government defamation,
and (2) an alteration of legal status. Martin Marietta Materials, Inc. v. Kansas
Department of Transportation, 810 F.3d 1161, 1184 (10th Cir. 2016); see also Nat’l
Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 161 (2011) (stigma, standing
alone, does not significantly alter a person’s legal status so as to justify the invocation of
procedural safeguards). In Paul v. Davis, the Supreme Court of the United States
noted that “any harm or injury to that interest [in personal reputation], even where as
here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or
‘property’ recognized by the state or federal law. . . .” Paul v. Davis, 424 U.S. 693, 712
(1976).
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To satisfy the second prong, an alteration of legal status, the plaintiff must show
a significant alternation of his legal status resulting from the government defamation.
Paul v. Davis, 424 U.S. 693, 711 (1976). The Paul court noted state granted drivers
licenses and parole privileges as forms of status recognized by a state which, when
extinguished or altered significantly, trigger a due process requirement. Id.
In Paul, two local police departments distributed flyers to merchants purporting to
list persons known to be active shoplifters. The flyers included photographs and names
of many people. Photographs of the plaintiff with his name were shown in the flyer. The
plaintiff had been charged with shoplifting before the flyer was distributed, but never
convicted of shoplifting. The plaintiff claimed his designation as an active shoplifter
“would inhibit him from entering business establishments for fear of being suspected of
shoplifting and possibly apprehended, and would seriously impair his future employment
opportunities.” Id. at 697. Examining the plus aspect of a stigma-plus claim, the Paul
Court held that “Respondent in this case cannot assert denial of any right vouchsafed to
him by the State and thereby protected under the Fourteenth Amendment. That being
the case, petitioners' defamatory publications, however seriously they may have harmed
respondent's reputation, did not deprive him of any ‘liberty’ or ‘property’ interests
protected by the Due Process Clause.” Id. at 712. The Court indicated that the plus
aspect of a stigma-plus claim must involve the deprivation of a right the plaintiff
previously held under state law. Id. at 708 (referring to the right to purchase or obtain
liquor in common with the rest of the citizenry at issue in Wisconsin v. Constantineau,
400 U.S. 433, 436 (1971)).
In Hall v. Marshall, the plaintiff asserted a stigma-plus claim, alleging that state
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defamation caused him to be denied parole. 479 F.Supp.2d 304, 314 (E.D.N.Y. 2007).
The Hall court held that, even though New York inmates have no liberty interest in
being granted parole, “the denial of parole certainly qualifies as a ‘material
state-imposed burden or state-imposed alteration of [Hall's] status or rights.’” Id. The
allegation that Hall had been denied parole was, the court held, was sufficient to allege
the plus aspect of a stigma-plus claim.
The change in status on which Mr. Al-Turki relies to support his stigma-plus
claims is the decision of the Executive Director of the Colorado Department of
Corrections to withdraw his approval of the transfer application of Mr. Al-Turki and to
change his decision to disapproval of the transfer application. This change made Mr.
Al-Turki legally ineligible to further pursue his application for an international prisoner
transfer to his home country. This change, Mr. Al-Turki alleges, was caused by the
state defamation committed by some of the defendants. The magistrate judge
concludes that this alteration of the status of the plaintiff is not a significant alteration of
the legal status of the plaintiff. As a result, the magistrate judge concludes that Mr. AlTurki has not alleged facts sufficient to support a stigma-plus claim.
In his objections, Mr. Al-Turki argues that the change from approval of his
transfer application to its disapproval constitutes a significant change in his legal status,
for purposes of his stigma-plus claim. Mr. Al-Turki notes that under Department of
Corrections Administrative Regulation 550-05, once the executive director approves a
transfer application, “the Office of Offender Services shall forward a completed
application packet to the United States’ Department of Justice.” Mr. Al-Turki alleges
that after the executive director approved the application of Mr. Al-Turki, his application
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was not forwarded to the department of justice as required by the regulation. Rather,
the defendants, Mr. Al-Turki alleges, began to spread false information about Mr. AlTurki and to delay the submission of his application to the department of justice. The
falsehoods, he alleges, later caused the executive director to withdraw his approval of
the application.
Respectfully, I must disagree with the magistrate judge on this point. Assuming
the allegations in the complaint to be true, as I must, I find that the allegations of Mr. AlTurki are sufficient to plausibly allege that the change from approval to disapproval of
his application was a significant change in his legal status. No doubt, Mr. Al-Turki does
not have an absolute right to be transferred to Saudi Arabia. However, he alleges that
the actions of the defendants removed any possibility that he could get his transfer
application approved at all of the necessary levels. Prior to the alleged falsehoods, Mr.
Al-Turki alleges, he had an opportunity to gain approval of his transfer application. After
the falsehoods, he alleges, he had no opportunity to gain such approval. In the
circumstances of Mr. Al-Turki, that constitutes a significant change in his legal status.
Mr. Al-Turki has alleged both government defamation by defendants Mr.
Brauchler and Ms. Tomsic and a resulting significant alteration of his legal status. Thus,
I find that the allegations in the complaint are sufficient to state a stigma-plus claim
against Mr. Brauchler and Ms. Tomsic. Thus, the motion to dismiss must be denied as
to the First Cause of Action.
In the Fourth Cause of Action, Mr. Al-Turki alleges a conspiracy involving Ms.
Tomsic, Mr. Brauchler, and Mr. Hollenbeck to deprive Mr. Al-Turki of his rights, as
alleged in the First Cause of Action. The allegations in the complaint are sufficient to
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allege conspiracy and an underlying violation of a constitutional right of Mr. Al-Turki.
Thus, the motion to dismiss must be denied as to the Fourth Cause of Action.
3. Official Capacity - Extreme Stigmatization Claims - Mr. Al-Turki labels his Fifth
Cause of Action as a due process claim based on extreme stigmatization and
defamation. Complaint [#28], p. 30. He labels his Seventh Cause of Action as a claim
of conspiracy to violate his due process rights based on his “extreme stigmatization”
due process claim, as alleged in his Fifth Cause of Action. The Seventh Cause of
Action is asserted against Mr. Brauchler and Ms. Tomsic. Complaint [#28], p. 32.
As the magistrate judge notes, there is no applicable law which refers to a due
process claim based on extreme stigmatization. Further, the Tenth Circuit has held that
“stigmatization or reputational damage alone, no matter how egregious, is not sufficient
to support a §1983 cause of action.” McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.
1981). To justify relief under the Fourteenth Amendment via §1983, allegations of
reputational damage “must be entangled with some other tangible interest.” Id. Without
such an entanglement, stigmatization or damage to reputation “is properly vindicated
through state tort actions.” Id.
The magistrate judge concludes that the allegations in the Fifth and Seventh
Causes of Action do not state a claim on which relief can be granted. I concur. Mr. AlTurki may not assert a due process claim based solely on alleged stigma suffered as a
result of alleged false statements made about him by the defendants. Thus, the motion
to dismiss must be granted as to the Fifth and Seventh Causes of Action. As
recommended by the magistrate judge, the extreme stigmatization claims will be
dismissed with prejudice. As to these claims, Mr. Al-Turki has not pled claims that are
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facially plausible. Mr. Al-Turki cannot plead a valid due process claim relying solely in
stigma caused by false statements made by government actors. McGhee v. Draper,
639 F.2d 639, 643 (10th Cir. 1981).
B. Claims Against Federal Officials
Mr. Al-Turki asserts similar due process claims against two defendants who are
federal officials – defendants John Bibik and Robert Goffi. Mr. Al-Turki alleges that Mr.
Bibik is an agent with the Federal Bureau of Investigation and Mr. Goffi an attorney with
the Federal Bureau of Investigation. The Second Cause of Action is a stigma-plus due
process claim. The Fourth Cause of Action is a claim of conspiracy to violate his due
process rights based on the “stigma-plus” due process claim alleged in his Second
Cause of Action. His Sixth Cause of Action is an extreme stigmatization due process
claim. His Eighth Cause of Action is a claim of conspiracy to violate his due process
rights based on the extreme stigmatization due process claim alleged in his Sixth Cause
of Action. The Second, Fourth, Sixth, and Eighth Causes of Action all are asserted
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
The magistrate judge recommends that the motion to dismiss be granted as to
the claims against Mr. Bibik and Mr. Goffi because those claims may not be asserted
under Bivens. I agree. Bivens creates a cause of action against federal officials only
in their individual capacities and only for money damages. Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1231 (2005); Farmer v. Perrill, 275 F.3d 958, 963 (10th
Cir.2001). Mr. Al-Turki seeks only injunctive relief. The allegations in his Second,
Fourth, Sixth, and Eighth Causes of Action do not state claims under Bivens on which
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relief can be granted. Thus, the motion to dismiss must be granted as to each of these
claims.
In addition, even if Bivens were a proper vehicle for such claims, the allegations
in support of the extreme stigmatization claims in the Sixth and Eighth Causes of action
are not sufficient to state a due process claim. Thus, I adopt the recommendation of the
magistrate judge that the motions to dismiss be granted as to the Second, Fourth, Sixth,
and Eighth Causes of Action.
C. Claims Against John and Jane Doe Defendants
The magistrate judge recommends that the claims against the defendants named
as “John and Jane Does 1 through 10" be dismissed. I agree with this
recommendation, but on a different basis. In the complaint, Mr. Al-Turki makes
generalized allegations about the John and Jane Doe defendants, but he provides no
specifics about the positions they held or the roles they played in making the allegedly
false statements about Mr. Al-Turki or how these defendants played a role in causing
the application for transfer to be denied. As pled currently, the allegations against these
defendants do not state a claim on which relief can be granted.
D. Dismissal With Prejudice
The magistrate judge recommends that the claims of Mr. Al-Turki be dismissed
with prejudice. For the reasons noted in Section II, A, 3, above, the extreme
stigmatization claims against Mr. Brauchler and Ms. Tomsic in the Fifth and Seventh
Causes of Action must be dismissed with prejudice. The same is true of the extreme
stigmatization claims against Mr. Bibik and Mr. Goffi in the Sixth and Eighth Causes of
Action.
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After the recommendation was filed, and in response to the recommendation, Mr.
Al-Turki filed a motion [#91] to amend his complaint. In that motion, he contends he can
allege plausible claims against Mr. Bibik and Mr. Goffi, the federal defendants, without
using Bivens as a vehicle. Without deciding whether or not that is true, I conclude that
magistrate judge should be given an opportunity to rule on the motion to amend before
the other Bivens claims are dismissed with prejudice. Thus, the Bivens claims which
do not rely on an extreme stigmatization theory, the Second and Fourth Causes of
Action, will be dismissed without prejudice.
III. CONCLUSION
Respectfully, I reject the recommendation to the extent the magistrate judge
concludes that Mr. Al-Turki has not adequately pled his stigma-plus due process claims
against the state defendants in the First and Third Causes of Action. The motions to
dismiss of Mr. Brauchler, Ms. Tomsic, and Mr. Hollenbeck are denied as to those
claims. In addition, I respectfully reject the recommendation to the extent the magistrate
judge recommends that the stigma-plus Bivens claims against Mr. Bibik and Mr. Goffi in
the Second and Fourth Causes of Action, be dismissed with prejudice. Rather, I
dismiss those claims without prejudice to permit the magistrate judge the opportunity to
assess the related motion to amend the complaint.
Otherwise, I find that the analysis and conclusions of the magistrate judge are
detailed and well-reasoned. Accordingly. the motions to dismiss are granted as to the
extreme stigmatization claims against all defendants. The extreme stigmatization
claims in the Fifth, Sixth, Seventh, and Eighth Causes of Action are dismissed with
prejudice.
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THEREFORE, IT IS ORDERED as follows:
1. That respectfully, the Recommendation of United States Magistrate Judge
[#89] filed February 25, 2016, is rejected to the extent the magistrate judge
recommends that the motions to dismiss be granted as to the First and Third Causes of
Action – the stigma-plus due process claims against the state defendants;
2. That respectfully, the Recommendation of United States Magistrate Judge
[#89] filed February 25, 2016, is rejected to the extent the magistrate judge
recommends that the Second and Fourth Causes of Action be dismissed with prejudice
rather than without prejudice;
3. That otherwise, I approve and adopt the Recommendation of United States
Magistrate Judge [#89] filed February 25, 2016, as an order of this court;
4. That as to the First and Third Causes of Action – the stigma-plus due process
claims against the state defendants – I sustain the objections [#90] of the plaintiff to the
extent the plaintiff contends he adequately pled a significant change in his legal status in
support of those claims;
5. That otherwise, I overrule the objections [#90] of the plaintiff;
6. That under Fed. R. Civ. P. 12(b)(6), the Motion To Dismiss From
Defendants Ann Tomsic and George Brauchler [#13] filed May 11, 2015, is denied
as to the First and Third Causes of Action;
7. That under Fed. R. Civ. P. 12(b)(6), Defendant Paul Hollenbeck’s Motion
To Dismiss [#22] filed May 18, 2015, is denied as to the Third Cause of Action2;
8. That otherwise under Fed. R. Civ. P. 12(b)(6), the Motion To Dismiss From
2

Mr. Hollenbeck is not named as a defendant in the First Cause of Action.

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Defendants Ann Tomsic and George Brauchler [#13] filed May 11, 2015, is granted;
9. That otherwise under Fed. R. Civ. P. 12(b)(6), Defendant Paul Hollenbeck’s
Motion To Dismiss [#22] filed May 18, 2015, is granted;
10. That the Fifth and Seventh Causes of Action alleged in the complaint [#28]
are dismissed with prejudice;
11. That all claims alleged against defendants George Brauchler, Ann Tomsic,
and Paul Hollenbeck in their individual capacities are dismissed with prejudice;
12. That under Fed. R. Civ. P. 12(b)(6), the Motion To Dismiss of Defendants
Jon Bibik and Robert Goffi [#56] filed August 14, 2015, is granted;
13. That the Second and Fourth Causes of Action are dismissed without
prejudice; and
14. That the Sixth and Eighth Causes of Action are dismissed with prejudice
Dated March 25, 2016, at Denver, Colorado.
BY THE COURT:

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