Toevs v. Quinn et al

Filing 49

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 28 First MOTION to Dismiss Amended Complaint be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 1/31/2017. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02838-RBJ-NYW
JANOS TOEVS,
Plaintiff,
v.
JAMES QUINN, First Assistant Attorney General,
CYNTHIA COFFMAN, Attorney General for the State of Colorado,
KEITH NORDELL, Legal Counsel for the Colorado Department of Corrections,
ADRIENNE JACOBSON, Legal Counsel for the Colorado Department of Corrections,
THERESA REYNOLDS, Legal Assistant for the Colorado Department of Corrections,
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections,
TRAVIS TRANI, Warden of the Colorado State Penitentiary,
SEAN FOSTER, Associate Warden of the Colorado State Penitentiary,
CAROL SOARES, Associate Warden of the Colorado State Penitentiary,
FRANK ORTIZ, Litigation Coordinator of the Colorado State Penitentiary,
CHRIS BARR, Intelligence Lieutenant at the Colorado State Penitentiary,
DANIEL DENT, Intelligence Sergeant at the Colorado State Penitentiary,
RAEANNE WILL, Disciplinary Officer at the Colorado State Penitentiary, and
DALE BURKE, Hearing Officer at the Colorado State Penitentiary,
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This civil action comes before the court on Defendants’ “Motion to Dismiss or Motion
for Summary Judgment.” [#28, filed July 8, 2016]. The matter was referred to this Magistrate
Judge pursuant to the Order Referring Case and memorandum dated September 1, 2016. [#34].
This court has reviewed the Motion, the entire case file, the applicable law, and the comments
offered during the oral argument held January 12, 2017. Being fully apprised in the premises,

this court respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED
IN PART.
BACKGROUND
Given the wide-ranging nature of the Amended Complaint and the myriad arguments
presented in the briefing on the Motion to Dismiss, this court’s discussion of Plaintiff’s factual
allegations is extensive.
I.

Procedural History
Plaintiff Janos Toevs (“Plaintiff” or “Mr. Toevs”) is a prisoner in the custody of the

Colorado Department of Corrections (“CDOC”). On December 30, 2015, Mr. Toevs, through
his attorney Elisabeth Owen, filed a thirty-page Complaint naming various individuals affiliated
with the Colorado Attorney General’s office and the CDOC, and asserting eight claims for relief
arising from the confiscation and review of certain of his legal materials and the subsequent
charge and conviction for unlawful possession of other inmates’ legal materials. See [#1].
Those defendants filed a Motion to Dismiss on April 22, 2016, [#16], and in response Plaintiff
filed an Amended Complaint on May 16, 2016, which remains the operative pleading. See
[#19].
The Amended Complaint names the following individuals as Defendants: James Quinn,
Cynthia Coffman, Keith Nordell, Adrienne Jacobson, Theresa Reynolds, Rick Raemisch, Travis
Trani, Sean Foster, Carol Soares, Frank Ortiz, Chris Barr, Daniel Dent, Raenne Will, and Dale
Burke. Defendant Quinn is a First Assistant Attorney General for the State of Colorado and
Defendant Coffman is the Attorney General for the State of Colorado (collectively, the “AG
Defendants”). Defendants Nordell and Jacobson are identified as former and current Directors of

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the CDOC Office of Legal Services and Defendant Reynolds is the assistant to the Director of
the CDOC Office of Legal Services. [#19 at 2]. Defendant Raemisch is the Executive Director
of the CDOC. Defendant Trani is the Warden of the Colorado State Penitentiary (“CSP”), where
Plaintiff was incarcerated at the time relevant to the allegations in the Amended Complaint, and
Defendants Foster and Soares were the Associate Wardens of CSP during the time in question.1
Defendant Ortiz was a Litigation Coordinator at CSP during the time in question; Defendant Barr
was an Intelligence Lieutenant at CSP during the time in question; Defendant Dent was an
Intelligence Sergeant at CSP during the time in question; Defendant Will is the Disciplinary
Officer at CSP; and Defendant Burke was the Hearing Officer at CSP during the time in
question. [#19 at 2-3]. Defendants Coffman and Jacobson are sued in their official capacity
only. [#19 at ¶¶ 3, 5]. Defendants Raemisch, Dent, Will, and Burke are sued in their official and
individual capacities. [Id. at ¶¶ 7, 13, 14, 15]. Defendants Quinn, Nordell, Reynolds, Trani,
Foster, Soares, Ortiz, and Barr are sued in their individual capacity only. [Id. at ¶¶ 2, 4, 6, 8, 9,
10, 11, 12].
Plaintiff asserts nine claims in all and seven claims against Defendants as a group: (1)
Retaliation for Exercise of Protected Rights to Access the Court in Violation of the First
Amendment; (2) Conspiracy to Obstruct Justice in Violation of 42 U.S.C. § 1985; (3)
Deprivation of Property Without Due Process in Violation of the Fourteenth Amendment; (4)
Denial of Right to Counsel in Violation of the Sixth Amendment; (5) Breach of Attorney-Client
Privilege in Violation of First Amendment; (6) Denial of Right to Privacy in Violation of the

1

In March 2016, Defendant Foster was promoted to Warden of the Arkansas Valley Correctional
Facility, and Plaintiff was transferred there shortly after Defendant Foster’s promotion. [#19 at ¶
9].
3

Fourth Amendment; and (7) Denial of Right to Access the Courts in Violation of the First
Amendment. [#19 at 23-33]. He brings all but the second claim pursuant to 42 U.S.C. § 1983.
The Eighth Claim for Cruel and Unusual Punishment in Violation of the Eighth Amendment is
also brought pursuant to section 1983 and is asserted against Defendants Raemisch, Trani,
Foster, Barr, and Dent. The Ninth Claim for Malicious Prosecution in Violation of Colorado
Common Law is asserted against Defendants Quinn, Dent, Foster, Trani, and Raemisch. [Id. at
33-34].

The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).
II.

Factual Allegations
At the core of Mr. Toevs’s pleading lie allegations that CDOC employees and employees

of Colorado’s Attorney General are improperly confiscating and reading prisoners’ protected
legal materials, and that the lack of policy or directive prohibiting this conduct, or that a culture
that condones this conduct, results in chilling prisoners’ efforts to engage in constitutionally
protected behavior, particularly in seeking access to the courts. The following factual allegations
are taken as true for the purposes of this Motion.
A.

The Milyard Appeal and CLCP v. Herrera

In September 2012, Mr. Toevs filed a lawsuit pursuant to 42 U.S.C. § 1983 alleging in
relevant part that intelligence staff’s (“Intel”) mismanagement resulted in violence at the Sterling
Correctional Facility (“SCF”). [#19 at ¶ 19]. The complaint filed in that matter, Toevs v.
Milyard, et al., Civil Action No. 12-cv-02532-REB-MEH, asserted that Intel arbitrarily
implemented security threat group (“STG”) classification as retaliation against prisoners “who
spoke out against the policies and practices of SCF,” and “as a coercive force to silence prisoner

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speech.” [Id. at ¶¶ 20-22]. In November 2013, the Milyard court granted summary judgment for
defendants, for which Plaintiff sought review in the Tenth Circuit Court of Appeals, Case No.
13-1476. [Id. at ¶ 23].
Ms. Owen, Plaintiff’s attorney here, was simultaneously pursuing a lawsuit in El Paso
County District Court, captioned Colorado Prison Law Project v. Herrera, et al., Case No.
13CV300363 (“CPLP v. Herrera”), in large part to obtain intelligence files containing STG
classifications of certain of her clients. [#19 at ¶¶ 24, 25]. Plaintiff was aware of the lawsuit and
this specific objective, but was not a party to that action. [Id. at ¶ 25]. The CPLP v. Herrera
complaint alleged that Intel, including Defendants Barr and Dent, refused to provide intelligence
files to Ms. Owen in violation of the Colorado Criminal Justice Records Act. [Id. at ¶ 25]. All
the filings in CPLP v. Herrera were accessible to the public and no protective order was on file.
[Id. at ¶ 26]. During the pendency of CPLP v. Herrera, Plaintiff discussed with Ms. Owen the
prospect of her representing him in several matters, including a bid for clemency. Plaintiff
ultimately retained Ms. Owen to represent him in this endeavor. [Id. at ¶ 27].
In June 2013, Ms. Owen mailed to Plaintiff a copy of the CPLP v. Herrera complaint,
which he received through the CSP legal mail program as governed by CDOC Administrative
Regulation (“AR”) 300-38. AR 300-38 states:
Restricted Inspection Mail: All incoming and outgoing offender mail to or from a
specified class of persons and organizations, which DOC employees, contract
workers, and volunteers are prohibited from reading to protect confidentiality, but
are permitted to inspect for contraband in the offender’s presence.
…
The DOC shall ensure and facilitate offender access to counsel and assist
offenders in making confidential contact with attorneys and their authorized
representatives; such contact includes, but is not limited to uncensored

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correspondence. [4-4275] To be considered a confidential contact from an
attorney, their authorized representative, or legal aid organization, the incoming
mailing envelope must include the following:
a. Attorney’s first and last name;
b. Attorney’s registration, bar, or license number….;
c. Attorney’s complete business address;
d.Mailing envelope must be clearly marked
“CONFIDENTIAL.”

“PRIVILEGED”

or

[#19 at 5-6]. Plaintiff placed the CPLP v. Herrera complaint in his legal box, which, pursuant to
CDOC policy, may only be “searched in the presence of the offender,” and, even then, “attorneyclient privileged documents shall not be read, but only searched for contraband.” [Id. at ¶ 30].
Plaintiff used his legal box to store Ms. Owen’s other correspondence, the majority of which
pertained to his clemency bid. [Id. at ¶ 31]. All correspondence from Ms. Owen to Plaintiff was
clearly marked “Privileged and Confidential” and met all other requirements for protecting
confidentiality prescribed by the CDOC ARs. [Id. at ¶ 32].
B.

Search of Mr. Toevs’s Legal Box

In December 2013, while Plaintiff’s Milyard appeal was pending, unnamed CDOC
officers removed Plaintiff from the CSP incentive unit (where he was housed as a reward for
good behavior), relocated him to a “strip cell,” required him to disrobe, and performed a body
cavity search.2 [#19 at ¶¶ 34, 36]. Defendant Dent then carried Plaintiff’s legal box to the strip
cell where he searched the contents and “read every paper…word for word, line by line.” [Id. at
¶¶ 37, 38]. Defendant Barr joined him and “also began a word for word reading of each piece of

2

Strip cells, which are customarily used for “extreme punitive segregation cases,” are smaller
than normal prison cells and devoid of a mattress, pillow, bedding, or any other accommodation.
Rather, they provide a bare metal bunk and stainless steel toilet and sink. [#19 at ¶ 35].
6

paper in Toevs’ legal box.” [Id. at ¶ 39]. “CDOC ARs specifically prohibit CDOC staff from
reading documents in legal boxes.” [Id. at ¶ 38].
Among other materials stored in Plaintiff’s legal box, Defendants Dent and Barr read
letters between Plaintiff and numerous attorneys, including lawyers from the Civil Rights Clinic
at the University of Denver, the American Civil Liberties Union, and the Colorado Prison Law
Project. The CDOC officially recognizes these organizations as providing legal services to
prisoners, and that communications between prisoners and these organizations are entitled to
confidential and privileged treatment. [#19 at ¶ 40]. Defendants Dent and Barr also read letters
addressed from Ms. Owen to Plaintiff, which were contained in an envelope labeled with Ms.
Owen’s full name, attorney registration number, the words “privileged and confidential,” and the
words “legal mail” (the “Owen Letters”). [Id. at ¶ 43]. Finally, Defendants Dent and Barr read
the unfinished Tenth Circuit appellate brief that Plaintiff was in the process of finalizing. [Id. at
¶ 41]. Defendants Dent and Barr then removed the legal box and all its contents from the strip
cell. [Id. at ¶ 44].
On January 8, 2014, Defendant Dent returned to Plaintiff the legal box and most of its
contents, along with a shakedown slip identifying items that Dent and Barr had confiscated: “7
legal letters and 4 legal folders.” [#19 at ¶ 45 (quotations omitted)]. These 7 legal letters and 4
legal folders consisted of correspondence from Ms. Owen to Plaintiff and related enclosures.
These confiscated materials included the CPLP v. Herrera complaint and exhibits thereto, which
Ms. Owen had mailed to Plaintiff for the Milyard case. [Id. at ¶¶ 50, 51].
Defendants Dent and Barr forwarded the Owen Letters to Defendant Ortiz, who was
responsible, as CSP litigation coordinator, for providing information to the Office of the

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Attorney General about CDOC’s defense in any litigation brought against the Department or its
agents by a CSP prisoner. [#19 at ¶ 52]. Defendant Ortiz read the Owen Letters before
forwarding them to Defendants Nordell and Reynolds in the CDOC Office of Legal Services.
[Id. at ¶ 53]. Defendants Nordell and Reynolds in turn read the Owen Letters before sending
them to Defendant Quinn, the First Assistant Attorney General responsible for supervising the
Office of the Attorney General’s Corrections Unit, which is the unit that defends CDOC and its
agents in litigation brought by prisoners, including Plaintiff’s Milyard appeal. [Id. at ¶ 54].
Upon receipt, Defendant Quinn read the Owen Letters and advised Defendants Nordell,
Reynolds, Ortiz, Barr, and Dent that he would confiscate four of the items, which were exhibits
to the CPLP v. Herrera complaint, on the basis that Plaintiff had no “compelling interest” in
those documents and should not be in possession of them.
Meanwhile, unnamed CDOC officers had transferred Plaintiff to an intake cell after he
had spent approximately eight hours in the strip cell. [#19 at ¶ 56]. He remained in the intake
cell, also used for “extreme segregation cases,” for three days, allowed to wear only his
underwear, before he was transferred to a standard segregation cell, where he remained under
punitive segregation conditions until January 23, 2014. [Id. at ¶¶ 56, 57]. During this time he
was denied access to outdoor exercise. [Id. at ¶ 58].
After learning of these events, Ms. Owen contacted CSP on January 3, 2014 regarding
the decision to place Plaintiff into segregation and search his legal materials. [#19 at ¶ 60]. Ms.
Owen spoke first with Defendant Dent, who informed her that Plaintiff was under investigation
for “possession of other offenders’ legal work.” [Id.] Ms. Owen next spoke with Defendant
Foster, to whom she complained that his actions and those of his staff were not legal. [Id.].

8

Defendant Foster responded that Defendant Ortiz had taken possession of Plaintiff’s legal
materials and given them to Defendant Quinn and the Office of Legal Services, Quinn was
overseeing the “investigation,” and Foster and his staff were awaiting instructions from Quinn.
[Id.] Ms. Owen again contacted Defendants Foster and Ortiz, as well as Defendants Trani and
Quinn, by email to complain that they were violating Plaintiff’s clearly established constitutional
rights and to demand they return Plaintiff’s legal material. [Id. at ¶ 61]. Defendant Foster
responded to Ms. Owen’s e-mails as follows:
Ms. Owen, the Attorney General’s Office is fully aware of all aspects of our
investigation. Mr. Toeves [sic] will remain on removal from population status and
we will follow the AGs direction pertaining to his legal material. Mr. Ortiz will
review the other details of your request. No one’s rights have been violated.
[#19 at ¶ 62].
On January 7, 2014, Defendant Dent transmitted the following email to Defendant Trani:
During a [telephone] call Toevs informed the called parties that Owen had sent
him a printed copy of an NPR story. The NRP information regarding copyright
protection can be found here: http://www.npr.org/about-npr/17896898/terms-ofuse[.] I am not certain the NPR story is part of the materials that were confiscated,
but it is very likely. I have monitored all of Toevs calls going back to 9/1/13. I
will complete a supplement to the threat assessment tomorrow that includes all
pertinent information from those calls.
[#19 at ¶ 63]. Within hours, Defendant Trani responded and directed Defendant Dent to forward
the information to Defendant Quinn. [Id. at ¶ 64].
On January 15, 2014, Ms. Owen sent an email to Defendant Quinn demanding he return,
or facilitate the return, of Plaintiff’s legal materials and instruct his clients to drop the
“Unauthorized Possession” charge she believed CDOC had brought against Plaintiff. [#19 at ¶
65]. CDOC had not charged Plaintiff at that time. As of the date Plaintiff initiated this action,
Quinn had not responded to Ms. Owen’s January 15, 2014 email. [Id. at ¶ 69]. Later in the day

9

on January 15, 2014, Defendant Will served Plaintiff with a write-up for Unauthorized
Possession. [Id. at ¶ 68]. The notice advising Plaintiff of the charge against him read as follows:
On January 8, 2014 at approximately 1442 hours Sgt. Dent completed an
investigation of potentially questionable “legal” materials found in the possession
of Offender Toevs, Janos #63992 E7/14 CSP. Offender Toevs was placed on RFP
or Removal From Population status pending an investigation by CSP Intel based
on information that they received. As part of the investigation, a property search
was conducted in full view of the offender. Several questionable legal items were
found in the offender’s legal box. The items were scanned, not read for content,
and delivered to the Facility Legal Liaison for further review. Upon further
review by the Office of Legal Services and the Office of the Attorney General,
four items were deemed as contraband. Offender Toevs was found to possess four
items, labeled: exhibit 5, exhibit 6, exhibit 7 and exhibit 8, that were identified by
the Office of the Attorney General as [i]tems Offender Toevs did not have
authorization to possess. Two of these items specifically verify that the Colorado
Department of Corrections (CDOC) is tracking the Security Threat Group (STG)
status of specific offenders. To provide STG information about offenders to
another offender creates a potential threat to the safety and security of CDOC
[e]mployees, [o]ffenders[,] and facilities. Offender Toevs is not included in this
list of offenders and has no compelling reason to possess the exhibits. According
to AR 750-01 titled Legal Access, “Offenders may provide assistance to one
another; however, time, place, and manner will be regulated. When legal
documents are being prepared, exchanged inside or outside the law library, all
involved offenders must be present. Offenders are required to return all
documents to their owner before parting company. Offenders are allowed to
maintain only their own legal work in their personal possession or in their cells.”
The 4 exhibits were entered into evidence. Offender Toevs was not authorized to
possess the 4 exhibits of documentation as the items were deemed contraband.
[#19 at ¶ 70].
CDOC held a hearing on the Unauthorized Possession charge on January 17, 2014.
Defendant Will prosecuted the case and Defendant Burke adjudicated the matter. [Id. at ¶ 73].
Plaintiff pled not guilty to Unauthorized Possession and testified that Ms. Owen “had properly
sent him the documents he was charged with possessing without authorization.” [Id. at ¶ 74].
For the prosecution, Defendant Will reasserted that Plaintiff had violated AR 750-01:

10

Offenders may provide assistance to one another; however the time, place, and
manner will be regulated. When legal documents are being prepared, exchanged
inside or outside the law library, all involved offenders must be present. Offenders
are required to return all documents to their owner before parting company.
Offenders are allowed only to maintain their own legal work in their personal
possession or their cells.
[Id. at ¶ 76]. Plaintiff maintained there was no evidence that he was in possession of another
offender’s legal work. [Id. at ¶ 77]. Defendant Burke accepted as true that Plaintiff received the
documents at issue from his attorney, but nonetheless found Plaintiff guilty of Unauthorized
Possession, stating, “Report by Sgt. Dent stating Toevs possessed legal papers that the State
Office of the Attorney General said he was not authorized to possess, copy of these papers.” [Id.
at ¶¶ 80, 82]. Neither Defendant Burke nor Will identified the CPLP v. Herrera complaint and
exhibits thereto as confidential during the course of the hearing. [Id. at ¶ 81]. Defendant Burke
sentenced Plaintiff to thirty days’ loss of good time, which did not take into consideration the
twenty-four days that Plaintiff had already spent in segregation, which he asserts was, at the
time, nine days longer than the Code of Penal Discipline sanctions for punitive segregation. [Id.
at ¶ 83]. As a result of the conviction, Defendant Trani removed Plaintiff from his incentive pod
status and Plaintiff lost his eligibility, for two years, to petition the governor for commutation of
his life sentence. The loss of eligibility “render[ed] the previous twelve years of Toevs’ display
of good behavior irrelevant for purposes of his clemency bid.” [Id. at ¶ 88]. On January 22,
2014, Plaintiff appealed the conviction pursuant to CDOC regulations. Defendant Soares upheld
the conviction on February 19, 2014. [Id. at ¶ 90].
Plaintiff thereafter retained Ms. Owen to appeal the conviction to the Fremont County
District Court, naming Trani and Raemisch as defendants.

[#19 at ¶ 91 (citing Case No.

14CV30069)]. The district court affirmed the conviction and Plaintiff appealed that decision to

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the Colorado Court of Appeals. On January 14, 2016, the Colorado Court of Appeals found in
relevant part that “[n]o direct evidence was presented at the disciplinary hearing that the AG
actually deemed the documents contraband and, if so, why,” and reversed the district court’s
finding “that there was some evidence to support CDOC’s Unauthorized Possession conviction,”
and remanded the matter to the district court with instructions to reverse Toevs’s disciplinary
conviction.

[Id. at ¶¶ 97, 98 (quotation marks omitted)].

Defendant Trani subsequently

expunged the conviction from Plaintiff’s CDOC record. [Id. at ¶ 99]. However, no one has
returned Plaintiff to his incentive pod status or returned to him the confiscated CPLP v. Herrera
complaint and exhibits. [Id. at ¶¶ 101, 102].
III.

Conspiracy Allegations
Plaintiff alleges that he intended to argue to the Tenth Circuit that “CDOC’s

characterization of the grievance process in Toevs v. Milyard was intentionally fraudulent—a
fact not only known to, but actually enabled by, the AG’s Office,” thereby accusing CDOC
officials of perjury and the AG’s Office of “repeated Rule 11 violations.” [#19 at ¶¶ 106, 107].
Plaintiff intended to use the CPLP v. Herrera exhibits to support the allegation that “CDOC
officials conspire with the AG’s Office to intentionally deceive the courts by misrepresenting the
factual circumstances of prison life—including what is and is not an available remedy.” [Id. at ¶
108]. For example, Plaintiff alleges, “[a]s a matter of policy and practice, CDOC makes its
grievance process completely unavailable to prisoners, frustrating their ability to exhaust their
administrative remedies as required by the Prison Litigation Reform Act, thereby setting up the
AG’s arguments in litigation that a prisoner has failed to exhaust.” [Id. at ¶ 120].

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Defendants filed the pending Motion on July 8, 2016.

[#28].

Following multiple

requests for extensions of time from both sides, the Parties completed briefing on October 12,
2016. See [#33; #40]. This court set a Motion Hearing to be held December 6, 2016, and later
reset the hearing to January 12, 2017 at Plaintiff’s request. See [#41, 44]. On that date, this
court heard oral argument from both counsel and took the matter under advisement. See [#46].
LEGAL STANDARDS
I.

Fed. R. Civ. P. 56
Defendants argue that the court should dismiss Plaintiff’s Amended Complaint and enter

summary judgment in their favor because Plaintiff failed to exhaust the available administrative
remedies. [#28 at 11]. A prisoner’s failure to exhaust administrative remedies is an affirmative
defense that the defendant must raise, and thus the question of exhaustion is not amenable to
disposition on a Rule 12(b)(6) motion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Therefore,
I will consider the issue of exhaustion pursuant to Rule 56, and otherwise apply Rule 12(b)
standards to Defendants’ other arguments.
Summary judgment is appropriate only if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter–Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge’s function’ at summary judgment is
not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.’” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v.
Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient disagreement to require submission

13

to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson,
477 U.S. at 248–49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v.
U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an
element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable party could return a verdict for either party.
Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz.
v. Cities Service Com, 391 U.S. 253, 289 (1968)).
“The movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler
v. Wal–Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998) (citing Celotex, 477 U.S. at
323). The movant can achieve this by pointing the court to a lack of evidence for the nonmovant
on an essential element of the nonmovant’s claim. Id. at 671. Once the movant meets this initial
burden, the nonmovant assumes the burden to put forth sufficient evidence to demonstrate the
essential elements of the claim such that a reasonable jury could find in its favor. See Anderson,
477 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165
F.3d 1321, 1326 (10th Cir. 1999).

Conclusory statements based merely on speculation,

conjecture, or subjective belief are not competent summary judgment evidence. See Bones v.
Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party’s evidence must
be more than “mere reargument of [her] case or a denial of an opponent’s allegation,” or it will
be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at

14

356 (3d ed.1998). See also Sartori v. Susan C. Little & Assocs., P.A., 571 F. App’x 677, 680
(10th Cir. 2014).
II.

Fed. R. Civ. P. 12(b)(1)
Defendants also argue under various theories of immunity that the court is divested of

subject matter jurisdiction over the claims asserted against them. Federal courts, as courts of
limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of
Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a
complaint for lack of subject matter jurisdiction. The determination of a court’s jurisdiction over
subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers,
841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
III.

Fed. R. Civ. P. 12(b)(6)
Finally, Defendants argue that Plaintiff fails to state a cognizable claim. Under Rule

12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must
“accept as true all well-pleaded factual allegations…and view these allegations in the light most
favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely
on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

15

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). Plausibility refers “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.’” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). “The burden is on the
plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest’ that he or
she is entitled to relief.” Id. The ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d
1149, 1160 (10th Cir. 2007).
ANALYSIS
I.

Exhaustion of Administrative Remedies
A.

Applicable Law and Regulations

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e et seq., bars prisoner
suits regarding prison conditions if the prisoner has failed to exhaust the prison’s administrative
remedies. 42 U.S.C. § 1997e(a). See Jones, 549 U.S. at 204. Exhaustion of administrative
remedies is mandatory under the PLRA and “unexhausted claims cannot be brought in
court.” Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010). “An inmate who begins the
grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA
for failure to exhaust his administrative remedies. The doctrine of substantial compliance does
not apply.”

Thomas, 609 F.3d at 1118 (citation, quotations, and brackets omitted).

16

Exhaustion of administrative remedies under the PLRA is a question of law for the court to
decide. Saleh v. Wiley, No. 09–cv–02563–PAB–KLM, 2012 WL 4356219, at *1 (D. Colo. Sept.
24, 2012) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).
The requirements necessary for exhaustion are set forth in each prison system’s grievance
procedure, and the prisoner must follow the specified process to properly exhaust his remedies.
Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citation omitted). The CDOC process for
exhausting administrative remedies is set out in AR 850-04. See [#28 at 11; #33-2]. Prisoners
shall utilize the grievance procedure “for a broad range of complaints including, but not limited
to: policies and conditions within the facility that affect the offender personally; actions by
employees and offenders; incidents occurring within the facility that affect the offender
personally and for resolving offender issues relating to health care concerns.” [#33-2 at 4]
(emphasis omitted). Pursuant to this Regulation, and as is relevant here, the prisoner must file a
Step 1 Grievance within thirty calendar days from the date he knew or should have known of the
facts giving rise to the grievance. [#28-1 at ¶ 6; #33-2 at 3]. The prisoner must include the
following detail:
Each grievance shall address only one problem or complaint and include a
description of the relief requested. Problems that arise from the same incident or
set of facts shall be grieved in one grievance, even though it may involve multiple
DOC employees, contract workers, or volunteers… The grievance shall clearly
state the basis for the grievance and the relief requested in the space provided on
the form.
[#33-2 at 5]. CDOC officials are required to respond to the Step 1 Grievance within twenty-five
calendar days of receiving it. [Id. at 8]. If dissatisfied with the response, the prisoner must file a
Step 2 Grievance within five days of receiving the response. [#28-1 at ¶ 8]. CDOC officials
then must respond within twenty-five calendar days of receiving the Step 2 Grievance. [#33-2 at

17

8]. If the prisoner is dissatisfied with the Step 2 response, he must then file a Step 3 Grievance
within five days. [#28-1 at ¶ 9]. The Step 3 Grievance is the final step in the CDOC grievance
process, and the grievance process does not conclude until the prisoner has completed all three
steps. [#28-1 at ¶ 10]. The Regulation specifies that, “[i]n the event the time limit concerning
any step of the process expires without a response, the offender may proceed to the next step
within five calendar days of the date the response was due.” [#33-2 at 8].
B.

The Parties’ Arguments

Defendants argue that Plaintiff did not file a Step 3 Grievance concerning any of the
claims asserted in his Amended Complaint and thus he failed to exhaust his administrative
remedies as to all claims prior to filing this lawsuit. [#28 at 11-12; #28-1]. Plaintiff contends to
the contrary that he filed Step 1, 2, and 3 Grievances regarding the conduct giving rise to the
claims asserted here. He also contends that the CDOC failed to timely respond to his Step 1
Grievance, which relieved him of the obligation of filing Step 2 and 3 Grievances, but that in an
abundance of caution he filed Step 2 and 3 Grievances. [#33 at 5-6].
In support of their argument, Defendants attached the declaration of Anthony DeCesaro,
who serves as a CDOC Step 3 Grievance Officer. [#28-1]. Mr. DeCesaro attests that he
investigates and answers inmates’ Step 3 Grievances and is the custodian for those grievances.
[Id. at ¶ 2]. Upon review of the CDOC’s grievance records, Mr. DeCesaro attests that Plaintiff
did not file a Step 3 Grievance in 2013 or 2014 relating to allegations that he was improperly
denied the opportunity to exercise outdoors or that CDOC officers violated his First, Eighth, and
Fourteenth Amendment rights by infringing his right to privacy, right to counsel, right to access

18

the courts, and in obstructing justice. [Id. at ¶¶ 13, 14]. Mr. DeCesaro attests that Plaintiff “has
not filed a Step 3 grievance of any kind after they year [sic] 2012.” [Id. at ¶ 14].
In support of his Response, Plaintiff attached his declaration, which references his Step 1
Grievance. That grievance reads as follows:
On 12-30-13 I was RFP’d. My legal materials, confidential attorney mail and
work product[,] were read and confiscated. On 1-8-14 I was informed the AG said
I couldn’t possess items clearly and specifically allowed by DOC ARs. On 1-1514 I was informed in addition to Intel and the AG, Legal Services and the Legal
Liason [sic] had read the aforementioned material. All of my legal work was not
returned. These actions constitute a violation of attorney/client privilege,
retaliation for accessing the courts and a violation of due process in violation of
my 1st and 14th Amendment rights. My being RFP constitutes false
imprisonment. Being RFP like this and taking my legal material constitute
outrageous conduct on behalf of DOC and the AG. I request DOC policies be
rewritten to prevent anything like this in the future. I further request I never be
subjected to this treatment again.
[#33-1 at 4, ¶ 16 and at 17].3 Plaintiff’s declaration also references Defendant Barr’s response to
the Step 1 Grievance, which states:
Your legal work was not read, it was scanned for content. Your legal box was
searched in your presence. You were RFP’d pending investigation for a
conversation visiting staff overheard in the visiting room which constituted a
serious breach of security. The Department of Corrections can and will react to
potential security concerns. As for what the Attorney General says you can or
cannot have, you will have to address that with them.
[#33-1 at 5, ¶ 17 and at 17]. Plaintiff attests that although he submitted the Step 1 Grievance on
February 4, 2014, he did not receive Defendant Barr’s response until March 12, 2014. [#33-1 at
5, ¶ 18 and at 17]. Once he received the response, he filed a Step 2 Grievance. [#33-1 at 5, ¶
18]. He did not receive a response to his Step 2 Grievance, but nonetheless filed a Step 3
Grievance. [Id.] Plaintiff attests that, because CDOC did not respond to the Step 2 and 3
3

Counsel indicated during oral argument that “RFP’d” is an acronym for “removed from
population.”
19

Grievances, he cannot produce copies of those grievances, because such copies are available
only as attached to CDOC responses. [#33-1 at ¶ 19]. Plaintiff also argues, in response to Mr.
DeCesaro’s declaration, that he has filed multiple Step 3 Grievances since 2012 and that Mr.
DeCesaro’s report that CDOC records contain no Step 3 grievances since 2012 signed by
Plaintiff “may read to a jury as evidence that Mr. Toevs has filed none [or] it may, on the other
hand, demonstrate that CDOC has been ‘losing’ Mr. Toevs’ step three grievances since 2012 in
order to prevent him from ever winning a lawsuit again.” [#33 at 6].4 Finally, Plaintiff contends
that the CDOC grievance procedure does not apply to the Office of the Attorney General, and
thus Defendants Coffman and Quinn are not entitled to summary judgment on the exhaustion
issue, and that his ninth claim for Malicious Prosecution in violation of Colorado common law is
not subject to the PLRA. [#33 at 6-7].
C.

Factual Findings and Conclusions of Law

In light of Defendants’ two-pronged argument that the Step 1 Grievance does not assert
allegations related to the claims at issue here and Plaintiff failed to file Step 2 and 3 Grievances,
I first consider whether the Step 1 Grievance provided enough information to provide sufficient
notice to Defendants of Plaintiff’s allegations giving rise to his nine claims for relief. My
analysis begins with CDOC’s grievance procedure, which requires prisoners to “clearly state the
basis for the grievance and the relief requested.” [#33-2 at 5, § IV.D.9(b)]. I note, however, that
the regulations do not require prisoners to specifically identify the wrongdoers. Green v. Federal
Bureau of Prisons, No. 07–cv–1011–DME–MEH, 2009 WL 150650, at *7 (D. Colo. Jan. 21,
4

In 2011, Plaintiff proceeding pro se prevailed in a lawsuit against the CDOC that resulted in the
Department revising its solitary confinement process. [#33 at 6; #33-1 at ¶ 9; #33-3 at 12-13;
#33-4 (AR 650-03) at §§ III.L, IV.G.5, IV.J.4; #33-5]. See also Toevs v. Reid, 685 F.3d 903,
911-15 (10th Cir. 2012).
20

2009) (quoting Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006) (recognizing that
inmates typically file their grievances pro se and subject to page and time limitations), overruled
in part on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246–47 (10th
Cir. 2008).5
It is indisputable that Plaintiff’s Step 1 Grievance relates to the events described in the
Amended Complaint, the first of which occurred in December 2013 when Defendants Barr and
Dent searched Plaintiff’s legal box and confiscated certain materials. Moreover, Plaintiff clearly
stated his belief that the search and confiscation constituted a violation of his attorney/client
privilege, unlawful retaliation in violation of his First Amendment rights, and deprivation of
property without due process in violation of his Fourteenth Amendment rights. [#33-1 at 5, ¶ 17
and at 17]. I further find that the allegations contained in the Step 1 Grievance provide sufficient
notice to Defendants that Plaintiff believed those involved in the reading and confiscation of his
legal materials had interfered with his right to counsel as protected by the Sixth Amendment and
violated his right to privacy as protected by the Fourth Amendment. Indeed, Plaintiff grieved
that “confidential attorney mail” was among the materials read and confiscated, and alleges in
his pleading that Defendants read communications between him and his attorney that were
marked as privileged and confidential. See, e.g., [#19 at ¶¶ 31, 32]. He also alleges:
[b]y implementing administrative regulations that prohibit prison staff from
reading mail to prisoners from lawyers, and by permitting prisoners to keep such
mail in legal boxes specifically used to contain and identify confidential legal
materials, CDOC created a reasonable expectation of privacy in the content of

5

The Green and Kikumura courts examined exhaustion as required by the Bureau of Prisons;
however, the PLRA regulations apply with equal force to the CDOC exhaustion procedure,
which likewise imposes page and time limitations for filing grievances. See [#33-2 at §§
IV.D.9(b) and F(1)].
21

properly marked communications between prisoners and their lawyers stored in
prisoners’ legal boxes.
[#19 at ¶ 164]. See Rainge-El v. Moschetti, No. 05–cv–01831–PSF–CBS, 2006 WL 1876632, at
*3 (D. Colo. Jul. 5, 20016) (“Recognizing that administrative grievances are written pro se by
prisoners who may have limited skills in writing, with little or no expertise or access to experts in
the law, this Court must give the language used by these inmates a liberal construction as it
would with any pro se pleading in federal court”) (citations omitted). Finally, Plaintiff states
unequivocally that he wants CDOC to revise its policies so that he is not subjected to similar
treatment in the future. This constitutes much of the same relief he now seeks. See [#19 at 35].
I find that the Step 1 Grievance adequately informed Defendants of the allegations that now
underpin Claims One, Three, Four, Five, and Six.6 See Rainge-El, 2006 WL 1876632, at *2
(citing Sulton v. Wright, 265 F. Supp. 2d 292, 298 (S.D.N.Y. 2003) (finding compliance with the
PLRA, “[s]o long as the prisoner’s grievance ‘present[s] the relevant factual circumstances
giving rise to a potential claim…sufficient under the circumstances to put the prison on notice of
potential claims and to fulfill the basic purposes of the exhaustion requirement...’”)). Moreover,
Defendant Barr’s response to the Grievance indicates an understanding of Plaintiff’s contentions.
Id. at *3.
However, I find that the Step 1 Grievance did not provide sufficient notice to Defendants
with respect to the Second, Seventh, and Eighth Claims. The Grievance makes no mention of
any pending lawsuit, nor does it include allegations that Defendants, by reading and/or

6

These claims assert, respectively, Retaliation in Violation of the First Amendment, Deprivation
of Property Without Due Process in Violation of the Fourteenth Amendment, Denial of Right to
Counsel in Violation of the Sixth Amendment, Breach of Attorney-Client Privilege in Violation
of First Amendment, and Denial of Right to Privacy in Violation of the Fourth Amendment.
22

confiscating the legal materials, interfered with a civil action to which Plaintiff was a party or
prevented Plaintiff from pursuing a lawsuit. Yet, in support of his Second Claim for Conspiracy
to Obstruct Justice in Violation of 42 U.S.C. § 1985, Plaintiff alleges that “[o]bstructing justice
includes intimidating a party in any court of the United States,” and that Defendants “conspired
and worked in concert to obstruct justice by intimidating Toevs when he was a party in a court of
the United States.” [#19 at ¶¶ 129-134]. In support of his Seventh Claim for Denial of Right to
Access the Courts in Violation of the First Amendment, Plaintiff alleges that “taking of a
prisoner’s legal papers is a constitutional violation when it infringes on his right to access the
courts” and “[t]he right to access the courts is violated when prison officials deprive a prisoner
the ability to prepare his court pleadings.” [#19 at ¶¶ 168-172]. The Grievance did not put
Defendants on notice of these potential claims. Cf. Soto v. Warden of Salinas Valley State
Prison, No. 15-02024 BLF (PR), 2016 WL 3661384, at *6 (N.D. Cal. Jul. 1, 2016) (plaintiff
failed to exhaust his administrative remedies where his grievances, even when construed
liberally, did not discuss or mention any claim of conspiracy). Additionally, while Plaintiff
described his removal from population as “false imprisonment” and asserts that the CDOC and
AG are liable for outrageous conduct due to the confiscation of his legal materials, the Step 1
Grievance does not include allegations regarding the denial of outdoor recreation while he was
segregated from general population, which is the basis of his Eighth Claim.

“Requiring

exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of
their responsibilities before being haled into court.” Jones, 549 U.S. at 204. The Step 1
Grievance did not provide sufficient detail to allow Defendants to address Plaintiff’s complaint

23

that their actions had prevented him from accessing the courts, resulted in the obstruction of
justice, and subjected him to cruel and unusual punishment.
Next, with respect to Plaintiff’s Ninth Claim for Malicious Prosecution, Plaintiff asserts
this claim pursuant to Colorado state law rather than § 1983. Therefore, I agree with Plaintiff
that the claim falls outside of the PLRA, which requires inmates to exhaust available remedies
prior to filing an action under § 1983. See Torres v. Corrections Corporation of America, 372 F.
Supp. 2d 1258, 1263 (N.D. Okla. 2005) (holding plaintiff’s state law claim of negligence did not
fall “within the ambit of 42 U.S.C. § 1997e(a)”)). See also Mitchell v. Brown & Williamson
Tobacco Corp, 294 F.3d 1309, 1315-16 (11th Cir. 2002) (holding the PLRA does not apply to
actions removed from state court that are unrelated to prison conditions); McDaniel v. Meisner,
617 F. App’x 553, n.3 (7th Cir. 2015) (“We note that the exhaustion requirements of the Prison
Litigation Reform Act do not apply to state-law claims.”) But see Arnold v. Sainvil, NO. 1520973-CIV-GAYLES/WHITE, 2016 WL 1211013, at *3 (S.D. Fla. Mar. 29, 2016) (declining to
address whether the PLRA applies to supplemental state law claims brought in federal court,
noting that the law is unclear).
Finally, I respectfully disagree with Plaintiff that he is not required to exhaust his
administrative remedies as to Defendants Coffman and Quinn. The PLRA provides that “[n]o
action shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The plain
language of the statute demonstrates that its application is triggered by the confinement of the
plaintiff and the type of claim asserted, as opposed to the type of defendant against whom the

24

claim is asserted. Cf. Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005) (holding
it is the plaintiff’s status at the time he filed the lawsuit that is determinative as to whether the §
1997e(a) exhaustion requirement applies); Bias v. Cornell Corrections, Inc., 159 F. App’x 868,
870-71 (10th Cir. 2005) (holding the PLRA’s requirement of exhaustion of administrative
remedies applies to prisoners in privately-run prisons). Accordingly, I find that Claims Two and
Seven do not fall outside of the PLRA ambit with respect to Defendants Coffman and Quinn.7
In light of these findings, I respectfully recommend that the Motion, converted into one
for summary judgment, be GRANTED as to the Second, Seventh, and Eighth Claims and that the
court dismiss those claims without prejudice. See Fields v. Okla. State Penitentiary, 511 F.3d
1109, 1113 (10th Cir. 2007) (noting dismissal of unexhausted claims on summary judgment
should be without prejudice).
Having found that the Step 1 Grievance placed Defendants on adequate notice of the
allegations that now give rise to the First, Third, Fourth, Fifth, and Sixth Claims, I consider
Defendants’ second argument that Plaintiff failed to complete the CDOC exhaustion process. A
prisoner is only required to exhaust those remedies that are “available” to him, see 42 U.S.C. §
1997e(a), but “an inmate who begins the grievance process but does not complete it is barred
from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.”
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Mr. Toevs attests that he filed both a
Step 2 and Step 3 grievance, and states that “[b]ecause CDOC has not responded to any of my
step two or three grievances for the past four years, I have no copies of those grievances.” [#33-

7

Claim Eight does not implicate Defendants Coffman or Quinn. To the extent Plaintiff’s Step 1
Grievance sufficiently placed the CDOC Defendants on notice as to Claims One, Three, Four,
Five, and Six, it served to place Defendants Coffman and Quinn on notice as well.
25

1 at ¶ 19]. In Reply, Defendants offer no evidence to the contrary that Mr. Toevs would have
access to copies of his grievances even if CDOC failed to respond. They argue instead that
“Toevs was also required to file step two and three grievance even if CDOC did not respond to
his step one grievance.” [#40 at 1]. This is not responsive to Plaintiff’s contention, as there is no
dispute that CDOC responded to his Step 1 grievance; the issue, rather, is whether CDOC has
been intentionally misfiling or losing Mr. Toevs’s Step 2 and 3 grievances to prevent him from
administratively exhausting his remedies.
Given the current asymmetry of information, I conclude that Plaintiff, at this stage, has
carried his burden of demonstrating that a genuine issue of material fact exists as to whether he
filed Step 2 and 3 Grievances following the CDOC’s response to his Step 1 Grievance.8 In so
deciding, however, this court does not conclude that the issue must necessarily reach trial; rather,
the exhaustion of administrative remedies may be subject to a further dispositive motion once
some discovery has occurred. To hold otherwise might create a loophole in the requirement to
exhaust administrative remedies, which result is neither intended by this court nor permitted by
8

Plaintiff also argues that the CDOC’s failure to timely respond to his Step 1 Grievance
“abrogated his obligation to file any further grievances,” but he cites to no case law, and his
attorney was unable to cite to any authority during oral argument, to support this contention.
[#33 at 5]. The Tenth Circuit has held that “when prison officials fail to timely respond to a
grievance, the prisoner has exhausted ‘available’ administrative remedies under the
PLRA.” Whitington v. Ortiz, 472 F.3d 804, 807–08 (10th Cir. 2007) (citing Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)). However, courts have since interpreted this
holding to apply only when officials fail to respond to a grievance at the final stage of the
grievance process, observing that failure to respond to a grievance at an intermediate level of the
grievance process does not render further administrative remedies unavailable. Hollis v. Davis,
No. 13–CV–0590–CVE–FHM, 2015 WL 1137551, at *7 (N.D. Okla. Mar. 12, 2015)
(citing Adams v. Fochee, No. 12–cv–01076–PAB–CBS, 2013 WL 3093479, at *2 (D. Colo. June
18, 2013); Rouse v. Baca, No. CV 11–0433 MV/CG, 2012 WL 4498866, at *4–5 (D.N.M. Sept.
25, 2012)). And subsequent, unpublished Tenth Circuit opinions support this interpretation. See
Gomez v. Lopez, 581 F. App’x 724, 725 (10th Cir. 2014); Hemphill v. Jones, 343 F. App’x 329,
331–32 (10th Cir. 2009).
26

Tenth Circuit law. See Jernigan, 304 F.3d at 1032-33. Thus, I respectfully recommend that the
Motion, converted into one for summary judgment, be GRANTED IN PART, as to the Second,
Seventh, and Eighth Claims, and DENIED IN PART, as to the First, Third, Fourth, Fifth, Sixth,
and Ninth Claims.
II.

Immunities
A.

Eleventh Amendment

Of the remaining causes of action, the First, Third, Fourth, Fifth, and Sixth Claims
include claims against Defendants in their official capacity. Defendants argue that those who are
sued in their official capacity—Coffman, Jacobson, Raemisch, Will, Dent, and Burke—are
entitled to Eleventh Amendment immunity.9 [#28 at 16-17]. An official-capacity suit is, for all
intents and purposes, to be treated as a suit against the entity, in this case the state. Hafer v.
Melo, 502 U.S. 21, 25 (1991). The Eleventh Amendment bars suits against a state by its own
citizens, and generally immunizes state defendants sued in their official capacities from liability
for damages and retroactive equitable relief. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir.
1995). Relying on the bar to suit, Defendants argue that “this Court lacks jurisdiction over any
claims for damages against these State Defendants in their official capacities and these claims
must be dismissed.” [#28 at 17]. Their argument is inapposite, however, as Plaintiff seeks only

9

I note that the relief sought as to Defendants Jacobson, Dent, Will, and Burke sued in their
official capacity is duplicative of the relief sought as to Defendant Raemisch sued in his official
capacity. Defendants Jacobson, Dent, Will, and Burke are CDOC employees and Defendant
Raemisch is the CDOC executive director. See [#19 at ¶¶ 5, 7, 13, 14, 15]. Counsel for Plaintiff
agreed during the Motion Hearing that the relief sought with respect to Dent, Will, and Burke
sued in their official capacity may be obtained from Raemisch sued in his official capacity, and I
see no reason why the same is not true for Jacobson. Accordingly, I respectfully recommend that
the court dismiss Defendants Jacobson, Dent, Will, and Burke in their official capacity from this
lawsuit.
27

prospective injunctive and declaratory relief with respect to Defendants sued in their official
capacity. See [#19 at ¶¶ 128, 136, 148, 153, 161, 167, 174, 179; #33 at 9; #48 at 3:15-20].
It is well-settled that an exception to the Eleventh Amendment’s general bar is a suit in
which a plaintiff seeks to prospectively enjoin a state official from violating federal law. Johns,
57 F.3d at 1552 (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)). See also Rounds v.
Clements, 495 F. App’x 938, (10th Cir. 2012) (noting “Ex parte Young permits suit against state
employees for prospective relief whether the employee happens to be sued in his individual or
official capacity”) (citation omitted). The Ex parte Young exception “enables federal courts to
end continuing violations of federal law by state officials…so as to permit the federal courts to
vindicate federal rights and hold state officials responsible to the supreme authority of the
United States.” Johns, 57 F.3d at 1552 (citations and internal quotation marks omitted); Harris
v. Owens, 264 F.3d 1282, 1289 (10th Cir. 2001) (“A suit within the Ex parte Young doctrine is
not considered a suit against the state; rather, it is a suit against individual state officers who are
stripped of their official character”) (citation omitted). To determine whether a suit falls within
the Ex parte Young exception, the court “need only conduct a straightforward inquiry into
whether the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645
(2002); Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). In doing so,
the court takes care not to conflate this analysis with one under Rule 12(b)(6). See, e.g., Harris,
264 F.3d at 1289 (“whether the suit states a claim upon which relief can be granted is neither
logically antecedent to nor coincident in scope with the Eleventh Amendment inquiry”).

28

As an initial matter, Defendants do not argue that Mr. Toevs fails to allege an ongoing
violation of federal law. See [#28 at 16-17; #40]. Indeed, the issue was first raised by the court
in a colloquy with counsel for Defendants when counsel contended that Plaintiff’s official
capacity claims were flawed because he had not pled a “policy or custom.”10 See [#48 at 40:2042:25]. Although framed as an issue of subject matter jurisdiction, the United States Supreme
Court has observed that courts need not raise the question of Eleventh Amendment immunity sua
sponte. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring)
(citing Patsy v. Board of Regents of Fla., 457 U.S. 496, 515, n.19 (1982)); U.S. ex rel. Burlbaw
v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (observing that “a court may raise the issue of
Eleventh–Amendment immunity sua sponte but, unlike subject-matter jurisdiction, it is not
obligated to do so”) (citations omitted).
As to Plaintiff’s allegations, counsel for Plaintiff characterized the ongoing violation
during oral argument as “the absence of clear direction to Colorado Department of Corrections
and attorney general, in policy or elsewhere, that tells them that they cannot read a prisoner’s
legal mail, thereby chilling Mr. Toevs’ communications with counsel and it is that chilling effect
which is ongoing every day that we seek to remedy with prospective relief in this case.” [#48 a
49:20-50:1]. But the violation as described during oral argument is not pled in the Amended
Complaint, and, rather, is directly contradicted by the allegations that are pled. For instance,
Plaintiff alleges that CDOC AR 300-38 provides that “[t]he DOC shall ensure and facilitate
offender access to counsel and assist offenders in making confidential contact with attorneys

10

The Tenth Circuit has rejected the argument that a plaintiff must prove that some “policy or
custom” played a role in the alleged violation of federal law for Eleventh Amendment immunity
to be waived under Ex parte Young. See Rounds, 495 F. App’x at 941.
29

and their authorized representatives; such contact includes, but is not limited to uncensored
correspondence. [4-4275].” [#19 at ¶ 29 (emphasis in original)]. Plaintiff further alleges that
“CDOC policy provides [Plaintiff’s legal box] may only be ‘searched in the presence of the
offender,’ and even then, ‘attorney-client privileged documents shall not be read, but only
searched for contraband.” [Id. at ¶ 30]. He also alleges that “CDOC ARs specifically prohibit
CDOC staff from reading documents in legal boxes,” [id. at ¶ 38]; Defendants have persisted in
their continued refusal to comply with CDOC AR 300-36, [id. at ¶ 143]; and CDOC
“implement[ed] administrative regulations that prohibit prison staff from reading mail to
prisoners from lawyers, and “permitt[ed] prisoners to keep such mail in legal boxes specifically
used to contain and identify confidential legal material.” [Id. at ¶¶ 163, 164].
Nevertheless, Plaintiff alleges no one has returned him to an incentive unit and “no one
has given him back the CPLP v. Herrera documents CDOC took from him.” [Id. at ¶¶ 101,
102]. He further alleges that he “lost his eligibility to petition the governor for commutation of
his sentence for two years, rendering the previous twelve years of [his] display of good behavior
irrelevant for purposes of his clemency bid,” and that “no one has done anything to remedy any
other wrong that [he] suffered as a consequence of his wrongful conviction of Unauthorized
Possession in early 2014.” [Id. at ¶ 103]. Based on these allegations and Defendants’ failure to
raise and substantively brief the issue, this court finds upon a straightforward inquiry into the
Amended Complaint that the pleading alleges an ongoing violation of federal law, and Mr. Toevs
seeks relief properly characterized as prospective. See Rounds, 495 F. App’x 940. Accordingly,

30

this court respectfully declines at this juncture to recommend dismissal of Plaintiff’s official
capacity claims on Eleventh Amendment immunity grounds.11
B.

Absolute Immunity

Defendants Coffman and Quinn also argue that they are entitled to absolute or quasijudicial immunity. [#28 at 14-15]. Plaintiff responds that absolute immunity is not applicable to
either Defendant Quinn, because the allegations directed at him do not involve his participation
in a judicial proceeding, or to Defendant Coffman, because she is sued only in her official
capacity. [#33 at 7-8].
1. Applicable Law
Absolute prosecutorial immunity is a complete bar to a suit for damages under 42 U.S.C.
§ 1983. Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976). However, absolute immunity
“extends only so far as is necessary to protect the judicial process.” Thomas v. Kaven, 765 F.3d
1183, 1193 (10th Cir. 2014) (citing Burns v. Reed, 500 U.S. 478, 486–87 (1991)). “The rationale
for according absolute immunity in the civil rights context is to incorporate traditional common
law immunities and to allow functionaries in the judicial system the latitude to perform their
tasks absent the threat of retaliatory § 1983 litigation.” Snell v. Tunnell, 920 F.2d 673, 686-87
(10th Cir. 1990). Whether absolute immunity is available is generally a question of law, and the
party asserting the defense has the burden of demonstrating its applicability. See Burns, 500
U.S. at 486 (“the official seeking absolute immunity bears the burden of showing that such

11

This court does not pass on whether Plaintiff’s claims that seek prospective injunctive relief
are cognizable, or the appropriateness of the relief requested. The court further notes that the
Tenth Circuit has held that Eleventh Amendment immunity may be raised at any time, even on
appeal, U.S. ex rel. Burlbaw, 548 F.3d at 942, and that further argument with respect to Eleventh
Amendment immunity may be appropriate if properly raised by Defendants at a later time. Id.
31

immunity is justified for the function in question”) (citations omitted). See also Forrester v.
White, 484 U.S. 219, 224 (1988) (Officials who “seek exemption from personal liability” on the
basis of absolute immunity bear “the burden of showing that such an exemption is justified by
overriding considerations of public policy”); Buckley v. Board of County Com’rs of County of El
Paso, No. Civ. 04CV02465LTBPAC, 2005 WL 2359475, at *6 (D. Colo. Sept. 19, 2005).
The defense of absolute immunity from civil rights suits is well-established in several
contexts. For instance, “[a] prosecutor is absolutely immune for activities which are intimately
associated with the judicial process, such as initiating and pursuing a criminal
prosecution.” Snell, 920 F.2d at 686 (quoting Imbler, 424 U.S. at 430). Prosecutorial immunity
applies equally to “state attorneys and agency officials who perform functions analogous to those
of a prosecutor in initiating and pursuing civil and administrative enforcement proceedings.”
Buckley v. Board of County Com’rs of County of El Paso, 2005 WL 2359475, at *6 (quoting
Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991) (holding that prosecutors
are “absolutely immune from liability for allegedly failing to conduct an adequate, independent
investigation of matters referred to them for prosecution.”) (quotation omitted)). See also Robins
v. Volkswagenwerk AG, 940 F.2d 1369, 1372 (10th Cir. 1991).
However, the same limitations that apply to granting absolute immunity to prosecutors
also apply to other government officials, and, traditionally, immunity “does not extend to a
prosecutor’s actions which may be classified as administrative or investigative.” Imbler, 424
U.S. at 430–31; Harlow v. Fitzgerald, 457 U.S. 800, 811 n.16 (1982)).12 The Supreme Court has

12

See also Thomas, 765 F.3d at 1191 (“the Supreme Court has made clear that absolute
immunity is not available for those aspects of the prosecutor’s responsibility that cast him in the
role of an administrator or investigative officer rather than that of advocate”) (quoting Imbler,
32

been “quite sparing” in recognizing absolute immunity, and generally evaluates entitlement to
absolute immunity according to the local official’s function, rather than his or her identity.
Buckley, 509 U.S. at 269. See also Dillard v. Gregory, No. 11–cv–01928–RBJ–BNB, 2012 WL
5056932, at *5 (D. Colo. Oct. 18, 2012) (“Absolute immunity ‘is justified and defined by
the functions it protects and serves, not by the person to whom it attaches’”) (quoting Forrester
v. White, 484 U.S. 219, 227 (1988) (emphasis in original)).
2. Defendant Quinn
In light of the foregoing law, this court assesses the actual function Defendant Quinn
served while engaging in the acts as alleged. See, e.g., Mink v. Suthers, 482 F.3d 1244, 1261-62
(10th Cir. 2007). Plaintiff alleges that Defendant Quinn read the Owen Letters, confiscated four
documents found therein, i.e., the exhibits to the CPLP v. Herrerra complaint, and instructed
Defendants Nordell, Reynolds, Foster, Ortiz, Barr, and Dent that Plaintiff had no “compelling
interest” in these documents and could not keep them in his possession. [#19 at ¶¶ 54, 55].
Defendant Dent subsequently informed Ms. Owen that Plaintiff was under investigation for
“possession of other offenders’ legal work,” and Defendant Foster told Ms. Owen that Defendant

424 U.S. at 430-31) (internal quotations omitted). “The more distant a function is from the
judicial process, the less likely absolute immunity will attach.” Snell, 920 F.2d at 687
(citing Malley v. Briggs, 475 U.S. 335, 340–41 (1986) (reaffirming that an officer applying for a
warrant is not absolutely immune from suit, just as a complaining witness would not be entitled
to such immunity, and reasoning that “applying for a warrant ‘while a vital part of the
administration of criminal justice, is further removed from the judicial phase of criminal
proceedings than the act of a prosecutor in seeking an indictment.’”). See also Scott v. Hern, 216
F.3d 897, 908 (10th Cir. 2000). For instance, prosecutors are not entitled to absolute immunity
for advice they have provided police or when they gather evidence prior to the initiation of an
indictment. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 274-75 (1993). In assessing which
acts are entitled to absolute immunity, the “determinative factor is advocacy because that is the
prosecutor’s main function and the one most akin to his quasi-judicial role.” Snell, 920 F.2d at
693 (citation and internal quotation omitted).
33

Quinn was overseeing the investigation. [Id. at ¶ 60]. When Ms. Owen emailed Defendants
Foster, Ortiz, and Quinn to complain that their actions were in violation of federal law,
Defendant Foster responded that “the Attorney General’s Office is fully aware of all aspects of
our investigation. Mr. Toeves [sic] will remain on removal from population status and we will
follow the AGs direction pertaining to his legal material.” [Id. at ¶¶ 61, 62]. Ms. Owen then
emailed Defendant Quinn on January 15, 2014, demanding the return of Plaintiff’s legal material
and asking that Quinn direct his clients to drop the “Unauthorized Possession” charge she
mistakenly believed they had brought against Plaintiff. [Id. at ¶¶ 65, 66]. Five hours later that
same day CDOC served Plaintiff with the Unauthorized Possession charge. As of the date of the
Amended Complaint, Defendant Quinn had not responded to Ms. Owen’s email. [Id. at ¶¶ 68,
69].
In sum, the allegations regarding Defendant Quinn do not implicate him in a judicial
process, such as defending a civil action against Plaintiff. Rather, they indicate that he acted in
an investigatory and advisory manner.

The allegations of specific conduct attributable to

Defendant Quinn are confined to his confiscating, reading, and withholding Plaintiff’s legal
materials and his involvement in the decision to charge Plaintiff with Unauthorized Possession.
Indeed, as Plaintiff argues, the allegations indicate that Defendant Quinn acted more akin to the
function of a CDOC official than an agency attorney. He allegedly assisted many of the CDOC
Defendants in their investigation of Plaintiff and purportedly gave advice as to whether Plaintiff
had violated CDOC administrative regulations. Cf. Rex v. Teeples, 753 F.2d 840, 844 (10th
Cir.), cert. denied, 474 U.S. 967 (1985) (“a prosecutor who interrogates a suspect in the first
instance is fulfilling an investigative, rather than a prosecutorial, function.”). By contrast,

34

Plaintiff does not allege that Defendant Quinn took action in conjunction with the presentation of
evidence in a court adjudication. Cf. Butz v. Economou, 438 U.S. 512, 517 (1978) (“an agency
attorney who arranges for the presentation of evidence on the record in the course of an
adjudication is absolutely immune from suits based on the introduction of such evidence.”).
Thus, the case Defendants rely on in their Motion, Cessar v. CO Dept. of Corrections, in which a
pro se prisoner moved to amend his pleading to add the defending attorney general as a
defendant, is inapposite. Civil No. 08–cv–00283–REB–KLM, 2009 WL 982151, at *5 (D. Colo.
Apr. 13, 2009) (“Plaintiff seeks to add ten more named defendants, including the attorney for the
government in this case…Defendants’ counsel clearly is entitled to absolute immunity from
plaintiff's purported civil conspiracy claim against him for his conduct in this case.”). As is Van
Deelen v. City of Kan. City, in which Judge Vratil framed the question before her as “whether the
doctrine of absolute prosecutorial or ‘quasi-judicial’ immunity protects city attorneys
from Section 1983 damages claims which arise from their defense of a municipality and
municipal employees in a state civil action.” No. Civ.A. 05–2028, 2005 WL 3050151, at *26 (D.
Kan. Nov. 14, 2005). In reviewing the Amended Complaint, the allegations against Quinn do
not arise from his defense of CDOC in a state civil action.13

13

Cf. also Barrett v. United States, 798 F.2d 565, 569-70, 573 (2d Cir. 1986) (determining that
assistant attorney general defending a wrongful death action was entitled to absolute immunity
from claims that he concealed facts concerning federal involvement in the death, and finding by
contrast that the federal attorneys, who did not represent the State and attempted to minimize the
exposure of the federal government through concealment, were not entitled to absolute immunity
because their activities were too far removed from the judicial process) (cited with approval by
Robinson, 940 F.2d at 1372-73 n.4); Murphy v. Morris, 849 F.2d 1101, 1105 (8th Cir. 1988)
(holding an assistant attorney general defending a prisoner civil rights action was entitled to
absolute immunity on claims that he introduced improperly obtained impeachment evidence at
trial, but concluding absolute immunity did not attach to the act of obtaining the evidence from
35

A case closer to the point is Buckley v. Board of County Com’rs of County of El Paso, in
which Judge Babcock found upon consideration of a Rule 12(b)(6) motion that defendants had
not demonstrated entitlement to absolute immunity, noting that plaintiffs had alleged “not only
that defendants initiated an action against them that is without foundation, but that [defendants]
initiated this action deliberately based on false information and outside of the normal
administrative process.” 2005 WL 2359475, at *7 (“I cannot say that plaintiffs can prove no set
of facts that would show [defendants] acted outside of their appropriate roles, or that their actions
were investigative rather than quasi-judicial.”). I similarly find that Defendant Quinn has not
carried his burden at this juncture.14
Finally, considering the rationale behind absolute immunity—to protect the judicial
process from interference—Defendant Quinn has not demonstrated that extending the exception
in this context is appropriate or justified. For instance, qualified immunity adequately serves to
protect government officials in the exercise of their duties. See Thomas, 765 F.3d at 1193
(finding defendants’ request for absolute immunity “an unwarranted expansion” of that
protection, and observing that “qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties.”). Cf. Burns, 500 U.S. at 495 (“Indeed, it is
incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the
police, but to allow police officers only qualified immunity for following the advice.”).
Additionally, while Defendant Quinn does not argue that the January 17, 2014 disciplinary
the prison mail system, an investigative activity) (cited with approval by Robinson, 940 F.2d at
1372-73 n.4).
14
Indeed, in the Motion to Dismiss and at oral argument, Defendants conceded that the AG
Defendants not only represent the CDOC in litigation but also advise the CDOC during the
investigative phase on matters that have not yet culminated in legal action. See, e.g., [#28 at 17;
#19 at ¶ 62].
36

hearing was a judicial process, even if he did, Defendant Will prosecuted the case and Defendant
Burke adjudicated the matter. [#19 at ¶ 73]. Simply put, no allegation implicates Defendant
Quinn’s participation in a judicial proceeding such that, by declining to extend absolute
immunity, the court risks subjecting the judicial process to interference, harassment, or
intimidation. See Burns, 500 U.S. at 494-95 (“the concern with litigation in our immunity cases
is not merely a generalized concern with interference with an official’s duties, but rather is a
concern with interference with the conduct closely related to the judicial process.”) (citations
omitted).
3. Defendant Coffman
The absolute immunity assessment for Defendant Coffman is more straightforward. As
discussed above, she is sued in her official capacity only and an official-capacity suit is treated as
a suit against the entity. Hafer, 502 U.S. at 25. Unlike various government officials sued in their
individual capacity, local governing bodies are not entitled to the traditional common law
immunities for § 1983 claims, and thus government officials sued in their official capacity are
not entitled to absolute immunity from suit under § 1983. Moss v. Kopp, 559 F.3d 1155, 1168
(10th Cir. 2009) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 165–66 (1993)).
Accordingly, I find that neither Defendant Quinn nor Defendant Coffman is entitled to
absolute immunity based on the allegations asserted in the Amended Complaint.

37

C.

Colorado Governmental Immunity Act

Plaintiff’s Claim Nine asserts liability for malicious prosecution against Defendants
Trani, Soares, Raemisch, Quinn, Dent, and Foster, on the basis that they “contributed to bringing
and upholding the COPD charge of Unauthorized Possession” against him. [#19 at ¶ 180].
Defendants argue they are entitled to immunity against this claim under the Colorado
Governmental Immunity Act (“CGIA”), which bars actions in tort against public employees and
entities, subject to certain provisions waiving immunity. Medina v. State, 35 P.3d 443, 453
(Colo. 2001). Plaintiff contends in response that immunity does not apply because he has
alleged these Defendants acted in a willful and wanton manner. [#33 at 21-22]. Plaintiff pleads
he has complied with Colo. Rev. Stat. § 24-10-109.
The CGIA provides:
[a] public employee shall be immune from liability in any claim for injury ...
which lies in tort or could lie in tort regardless of whether that may be the type of
action or the form of relief chosen by a claimant and which arises out of an act or
omission of such employee occurring during the performance of his duties and
within the scope of his employment unless the act or omission causing injury was
willful and wanton...
C.R.S.A. § 24-10-118(2)(a). The CGIA covers “all the circumstances under which the state, any
of its political subdivisions, or the public employees of such public entities may be liable in
actions which lie in tort.” Colo. Rev. Stat. § 24-10-102. The term “public entity” is defined as
“the state, county, city and county, municipality, school district…and every other kind of district,
agency, instrumentality, or political subdivision thereof organized pursuant to law.” Id. at §
103(5). “Public employee” is defined as “an officer, employee, servant, or authorized volunteer
of the public entity.” Id. at § 103(4). “Governmental immunity raises a jurisdictional
issue.” Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. 2000).

38

It is undisputed that this claim arises in tort and under state law, see Graham v. State, 956
P.2d 556, 560 (Colo. 1998) (conspiracy and malicious prosecution claims would lie in tort and
would therefore be barred by the CGIA), and that the allegations concern Defendants’ conduct
within the scope of their employment. Thus, the CGIA confers immunity to Defendants, unless
their conduct was willful and wanton. See Middleton v. Hartman, 45 P.3d 721, 728 (Colo. 2002)
(“the state is not liable for its employees’ willful and wanton conduct”); Gray v. University of
Colorado Hosp. Authority, 284 P.3d 191, 197 (Colo. App. 2012) (“the sovereign immunity of
public entities is not waived if their employees’ acts or omissions are willful and wanton.”). The
Colorado Supreme Court has recently held that the willful and wanton inquiry under the CGIA is
inextricably tied to the question of whether the court has subject matter jurisdiction. Martinez v.
Estate of Bleck, 379 P.3d 315, 322 (Colo. 2016). In particular, the trial court should not proceed
with a tort claim until it satisfies itself that defendants acted willfully and wantonly, thereby
confirming that those defendants are not entitled to sovereign immunity. Id. (holding that “the
trial court erred when it failed to determine whether [defendant’s] conduct was willful and
wanton. Instead, it determined that [plaintiff] had sufficiently pled that [defendant] acted in a
willful and wanton manner, and that the ultimate determination of whether he in fact acted
willfully and wantonly had to be left to trial.”). On the record before it, this court cannot
conclude that Defendants Quinn and Dent acted in a willful and wanton manner. Therefore, I
respectfully recommend that Plaintiff’s malicious prosecution claim be dismissed without
prejudice on the basis of immunity.15

15

In so finding, this court makes two observations. First, in reviewing the Amended Complaint,
this court notes that Plaintiff fails to plead a cognizable malicious prosecution claim as to Trani,
Soares, Raemisch, and Foster due to insufficient allegations regarding their personal
39

III.

Specific Claims
This court now turns to Defendants’ contention that Plaintiff fails to plead a cognizable

claim with respect to what remains, i.e., the First, Third, Fourth, Fifth and Sixth Claims. Plaintiff
asserts all of these claims pursuant to 42 U.S.C. § 1983, which requires him to show (1) that he
had a right secured by the Constitution and laws of the United States that was violated (2) by a
person who acted under color of state law. Hall v. Witteman, 584 F.3d 859, 864 (10th Cir.
2009). An individual cannot be held liable under § 1983 unless he or she personally participated
in the deprivation. Olsen v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (citation omitted).
Additionally, the complaint must allege an affirmative link between the alleged constitutional
violation and the specific individual’s participation. Stidham v. Peace Officer Standards and
Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001).
A.

Qualified Immunity

At the end of the Motion to Dismiss, Defendants assert general entitlement to qualified
immunity; however, they do not specify which Defendant is entitled to the defense or as to which
claim. See [#28 at 42-43 (“Assuming arguendo that Toevs demonstrated a violation of his
constitutional rights, Defendants are nevertheless entitled to qualified immunity because their
action did not violate clearly established law.”)]. In his Response, Plaintiff correctly notes that
no Defendant sued in his or her official capacity may assert qualified immunity, and that for
those sued in their individual capacity, asserting qualified immunity “with nothing more should

participation in prosecuting Mr. Toevs and/or with respect to the malice component. Second,
this court notes that, to the extent discovery yields sufficient evidence to establish willful and
wanton conduct as to Quinn and/or Dent, Plaintiff may seek leave to amend his operative
pleading to assert additional allegations to support this claim.
40

not be considered sufficient to shift the burden to [Plaintiff].” [#33 at 23]. Defendants do not
address qualified immunity in their Reply. See generally [#40].
The doctrine of qualified immunity “shields government officials performing
discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct
violates clearly established statutory or constitutional rights of which a reasonable person would
have known.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Baptiste v. J.C.
Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (internal quotation marks omitted). Qualified
immunity is an affirmative defense to § 1983 liability (see Adkins v. Rodriguez, 59 F.3d 1034,
1036 (10th Cir. 1995)); once a defendant asserts the defense, the plaintiff must demonstrate that
qualified immunity is not proper by showing that “(1) the defendant’s conduct violated a
constitutional right and (2) the law governing the conduct was clearly established at the time of
the alleged violation.” DeSpain, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255).
The general assertion of qualified immunity by Defendants, with no specificity as to the
two prongs listed above or recognition that the defense operates to shield only those alleged to
have acted in their individual capacity, is insufficient to shift the burden to Plaintiff to
demonstrate in response to a Rule 12(b)(6) motion that the immunity does not apply. Defendants
may raise the defense in a motion for summary judgment, if appropriate.
I now turn to the following two issues: (1) whether Plaintiff has sufficiently pled a
cognizable claim generally, and (2) which Defendants should be dismissed from such claims for

41

lack of personal participation or otherwise.16 I take these considerations out of order from how
the Parties argued them, because personal participation is irrelevant absent a cognizable claim.
1.

First Claim for Retaliation

Defendants argue that Plaintiff fails to state a claim for retaliation because he was not
prevented while in segregation from filing his opening brief in the Tenth Circuit appeal, he
ultimately did not use the CPLP v. Herrera complaint and associated exhibits in either his
opening or reply briefs in the Tenth Circuit appeal, and he has no constitutional right in the
possession of the CPLP v. Herrera complaint and associated exhibits because they are
contraband. [#28 at 24-25]. Plaintiff disagrees that his pleading contains any deficiency. [#33
at 9-10].
“Prison officials may not retaliate against or harass an inmate because of the inmate’s
exercise of his [constitutional rights.]” Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.

16

Plaintiff alleges that the CDOC and the AG’s Office have engaged in a pattern of conduct to
moot prisoners’ claims and thereby impede their access to the courts. See [#19 at ¶¶ 109-120].
By way of example, Plaintiff refers to the AG Office’s defense of his disciplinary conviction,
defense of Defendant Quinn’s involvement in the charge that led to the conviction, and other
civil actions in which non-party assistant attorney generals defended CDOC officials. See [#19
at ¶¶ 110-114]. There is currently no cause of action for conspiracy before this court; and, to the
extent Plaintiff would rely on these allegations to implicate any Defendant for whom he does not
otherwise assert allegations of personal participation, this court finds that such a theory of
liability is simply not available. See Kirby v. Dallas County Adult Probation Department, 359 F.
App’x 27, 34 (10th Cir. 2009) (quoting Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (to
state a valid conspiracy claim, “a plaintiff is required to ‘allege specific facts showing agreement
and concerted action’”). But see Millhouse v. Carlson, 652 F.2d 371, 372 (3d Cir. 1981)
(reversing district court decision and holding pro se prisoner stated a claim for relief on theory
that prison officials had subjected him to conspiratorially planned series of disciplinary actions
as retaliation for initiating a civil rights suit against prison officials). Plaintiff has not alleged
specific facts of agreement between any individuals within the CDOC and the AG’s Office.
Thus, in addressing the sufficiency of Plaintiff’s pleading, I examine the actions of each
Defendant (sued in his or her individual capacity) as alleged so as to determine whether personal
participation is present.
42

1990). “Retaliation, though it is not expressly referred to in the Constitution, is nonetheless
actionable because retaliatory actions may tend to chill individuals’ exercise of constitutional
rights.”

Poole v. Cnty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (quoting Dawes v.

Walker, 239 F.3d 489, 491 (2d Cir. 2001)). See also Wolford v. Lasater, 78 F.3d 484, 488 (10th
Cir. 1996) (“[G]overnment action which chills constitutionally protected speech or expression
contravenes the First Amendment.”). To state a claim for retaliation, a plaintiff must allege the
following: (1) he was engaged in constitutionally protected activity; (2) the defendant’s actions
caused him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the defendant’s adverse action was substantially motivated as a
response to the plaintiff’s exercise of constitutionally protected conduct. Shero v. City of Grove,
Okla., 510 F.3d 1196, 1203 (10th Cir. 2007) (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th
Cir. 2000)).

This standard requires a plaintiff to provide circumstantial evidence of a

“chronology of events” supporting an inference of retaliation. Maschner, 899 F.2d at 949.
Retaliatory acts under § 1983 include acts that would otherwise be permissible if they were not
conducted in retaliation. Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 847 (10th Cir.
2005) (citing DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990))
Constitutionally Protected Activity. Plaintiff alleges that he was involved in litigation,
i.e., Toevs v. Milyard, engaging the services and advice of Ms. Owen, and obtaining legal
materials for use in his legal proceedings. [#19 at ¶¶ 18-32, 40; #33 at 9]. Prisoners have a
constitutional right of access to the courts, Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir.
1992),

and

thus

a prisoner who

files

a lawsuit

against

prison

officials

has

engaged in constitutionally-protected activity. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.

43

2010); Smith, 899 F.2d at 947.

A prisoner also has a constitutionally protected right to

correspond with his attorney “concerning either the legality of his conviction or the conditions of
his incarceration.” LeVier v. Woodson, 443 F.2d 360, 361 (10th Cir. 1971). See also Vreeland v.
Raemisch, No. 12–cv–01921–PAB–KMT, 2013 WL 5462299, at *6 (D. Colo. Sept. 30, 2013).17
And, “prison officials may not affirmatively hinder a prisoner’s efforts to construct a
nonfrivolous appeal or claim.” Green, 977 F.2d at 1389-90 (“Any deliberate impediment to
access [to the courts], even a delay of access, may constitute a constitutional
deprivation…[t]herefore, if true, plaintiff’s allegations concerning the improper destruction of
his legal materials and his denial of access to the law library would form the basis for a
cognizable claim for a violation of plaintiff's [constitutional rights]”) (citation omitted). I find
Plaintiff has satisfied the first element of the claim.
Adverse Action. Next, Plaintiff alleges he suffered adverse action as a result of the
protected activity, including his placement in segregation, the seizure of his legal documents,
removal from the incentive pod, and, ultimately, disqualification from clemency eligibility. [#19
at ¶ 126; #33 at 9-10]. This suffices to establish the second element of the claim. See Maschner,
899 F.2d at 947-48 (citing Harris v. Fleming, 839 F.2d 1232, 1236–38 (7th Cir. 1988) for the
proposition that “allegations of retaliation, combined with evidence of termination from prison
employment and cell transfers following successful lawsuits,” is sufficient to create jury
question).

17

At a minimum, the Owen Letters, which were read and confiscated, included correspondence
between Plaintiff and his attorney regarding conditions of his confinement, specifically the
arbitrary implementation of STG designations, which Plaintiff alleged in Toevs v. Milyard, and
which the CPLP v. Herrera complaint alleged, were used by prisoner officers to silence prisoner
speech. See, e.g., [#19 at ¶¶ 19, 22, 24-25].
44

Substantial Motivation in Response. Finally, the timeline of events supports an inference
of retaliation as to certain Defendants.

The CPLP v. Herrera complaint targeted STG

classifications of some of Ms. Owen’s clients, and alleged that Intel, including Defendants Barr
and Dent, “were refusing to provide intel files…in violation of the Colorado Criminal Justice
Records Act.” [#19 at ¶ 25]. At approximately the same time as Ms. Owen filed CPLP v.
Herrera, Plaintiff initiated the Milyard litigation, alleging in part that prison officers were
retaliating against prisoners who spoke out against the policies and practices of a CDOC facility,
Sterling Correctional facility, where Plaintiff was confined prior to CSP. [#19 at ¶¶ 21, 22, 24,
25]. Ms. Owen mailed a copy of the CPLP v. Herrera complaint to Plaintiff in June 2013, and
Plaintiff alleges he anticipated using the CPLP v. Herrera complaint (and the allegations
contained therein) in his efforts in Milyard. [#19 at ¶¶ 28, 51, 125]. Plaintiff appealed Milyard
to the Tenth Circuit in November 2013. [Id. at ¶ 23]. On December 30, 2013, CSP officers
removed Plaintiff from general population and took him to a strip cell, where he watched
Defendants Dent and Barr search and confiscate the contents of his legal box. [Id. at ¶ 34].
Among the items read and removed were letters between Plaintiff and attorneys from the Civil
Rights Clinic at the University of Denver, the American Civil Liberties Union, and the Colorado
Prison Law Project, Plaintiff’s unfinished appellate brief, and the CPLP v. Herrera complaint.
[Id. at ¶¶ 40, 41, 43]. On January 15, 2014, Defendant Will served Plaintiff with a written
charge for Unauthorized Possession. [Id. at ¶ 68]. The notice advising Plaintiff of the charge
identified Dent as the initiating CDOC employee and Will as the reviewing supervisor. [Id. at ¶
71]. Defendant Will prosecuted the Unauthorized Possession charge during a CDOC hearing
held January 17, 2014. [Id. at ¶ 73]. Cf. Baldauf v. Hyatt, No. 01–cv–01315–REB–CBS, 2008

45

WL 280839 at *10 (D. Colo. 2008) (entering summary judgment for defendant on retaliation
claim where evidence showed that defendant was “merely the reviewing supervisor” who neither
reviewed nor filed the COPD charge against plaintiff). Plaintiff then remained under punitive
segregation conditions until January 23, 2014. [Id. at ¶ 57].
While temporal proximity alone is insufficient to establish a prima facie case of
retaliation, Strope v. Cummings, 381 F. App’x 878, 883 (10th Cir. 2010), I find that Plaintiff has
alleged specific facts of retaliation, which when coupled with the temporal proximity of events,
are sufficient to overcome the Rule 12(b)(6) challenge as to Defendants Dent, Barr, and Will. In
other words, Plaintiff pleads facts that, if proven, “support an inference by a fair-minded jury that
defendants took [adverse] action against [him] based at least in part on improper motives.”
Maschner, 899 F.2d at 948-49 (“Smith’s appearance in court, a protected activity, and the
prison’s disciplinary action, taken immediately upon his return from court, were indisputably in
close temporal proximity”). See also McDonald v. Hal, 610 F.2d 16, 18 (1st Cir. 1979) (finding
circumstantial evidence of retaliation sufficient to withstand motion to dismiss: “[plaintiff] in his
complaint did aver a chronology of events which may be read as providing some support for an
inference of retaliation”) (cited with approval by Maschner, 899 F.2d at 949); Quintana v.
Edmond, No. 06–cv–01187–WDM–KLM, 2008 WL 3539265, at *3 (D. Colo. 2008) (“I
conclude that the instruction from the Tenth Circuit [in Maschner] is that where an inmate
presents evidence that could establish that the adverse action was motivated at least in part by an
improper motive, this is sufficient to create an issue of fact as to whether retaliatory animus was

46

the ‘but for’ cause of the decision”) (emphasis in original).18 Mr. Toevs alleges that Barr and
Dent were defendants in CLCP v. Herrera [#19 at ¶ 25]; a subset of the materials that Dent and
Barr seized and read were legal communications between Ms. Owen and Mr. Toevs, [id. at 43];
Dent monitored all of Mr. Toevs’ calls since September 2013 [id. at ¶ 63]; and, within five hours
of Ms. Owen’s premature demand that a charge of Unauthorized Possession be dropped,
Defendant Will served Plaintiff with a write-up for Unauthorized Possession. [Id. at ¶¶ 66-68].
Drawing all inferences in favor of Plaintiff, I concluded that these allegations are sufficient to
state a claim for a pattern of retaliatory conduct by members of Intel against Mr. Toevs for
speaking out against the policies and practices of SCF.
However, I find that Plaintiff has not alleged adverse actions or sufficient facts to infer a
retaliatory motive on the part of the remaining Defendants, i.e., Foster, Ortiz, Burke, Quinn,
Nordell, and Reynolds.

According to the Amended Complaint, Defendants Foster, Ortiz,

18

With respect to Defendants’ specific arguments, I find they view Plaintiff’s allegations too
narrowly. First, contrary to Defendants’ characterization, possession of the CPLP v. Herrera
complaint and associated exhibits is not the protected interest Plaintiff asserts. See [#28 at 23].
As this court reads the Amended Complaint, Plaintiff asserts a protected interest in pursuing the
Milyard appeal, generally researching and preparing lawsuits, and communicating with his
attorney about ongoing and future lawsuits. Indeed, Defendants’ description of the CPLP v.
Herrera complaint and exhibits thereto as “contraband” and contention that Plaintiff had no
constitutional interest in possessing them serves as a wobbly argument considering the Court of
Appeals specifically held that the materials either were not contraband, or CDOC had failed to
explain why they were contraband. See [#28 at 25; #19 at ¶ 98]. Next, Defendants’ confiscation
of the CPLP v. Herrera complaint and exhibits is but one example of the adverse action that
Plaintiff alleges. He also alleges that, as a result of his protected activity, Defendants removed
him from general population and placed him in segregation, seized his legal correspondence and
other materials in addition to the CPLP v. Herrera pleadings, [see #19 at ¶¶ 43-45, 50-51], and
removed him from the incentive pod. Ultimately, he was disqualified from seeking clemency for
two years, and to date no one has returned him to the incentive unit. [Id. at ¶¶ 88, 101].
Defendants simply place too much emphasis on the CPLP v. Herrara materials. Finally, to the
extent Defendants suggest Plaintiff fails to satisfy the third element of the claim because a
“logical, non-retaliatory reason for CDOC’s acts exist,” this is an argument better suited for
summary judgment, when the court may consider testimony or other evidence supporting such.
47

Nordell, and Reynolds simply read the legal materials that Barr and Dent confiscated. See [#19
at ¶¶ 52, 53, 54]. It is not immediately clear to this court that such action constitutes adverse
action. But even if it did, there are no allegations that these Defendants were motivated to read
the confiscated materials as a result of Plaintiff’s litigation activities or correspondence with Ms.
Owen. Indeed, Defendant Foster told Ms. Owen that Defendant Quinn was overseeing the
investigation of Plaintiff, and that he and his staff were “awaiting instructions from Quinn about
what to do next.” [Id. at ¶ 60]. The allegations demonstrate that Defendants Foster, Ortiz,
Nordell, and Reynolds intended only to follow Quinn’s legal advice. Defendant Burke merely
presided over the disciplinary hearing, [id. at ¶¶ 73, 75, 80]; and, while a disciplinary conviction
likely constitutes adverse action, Plaintiff alleges that Burke relied on Defendant Quinn’s advice
in rendering his judgment, as opposed to suggesting that Burke acted from some retaliatory
animus. See [id. at ¶ 82]. Finally, whereas the CPLP v. Herrera complaint actually named
Defendants Barr and Dent, Plaintiff does not allege that any of the other Defendants were named
or mentioned in CPLP v. Herrera or Toevs v. Milyard, or knew of the allegations asserted in
either lawsuit. Frazier v. Dubois, 922 F.2d 560 562, n.1 (10th Cir. 1990) (“Mere allegations of
constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing
retaliation because of the exercise of the prisoner’s constitutional rights.”) (emphasis in original).
See also Perrian v. Coons, No. 13–cv–02951–KLM, 2015 WL 1539022, at *17-18 (D. Colo.
Mar. 31, 2015) (finding plaintiff’s retaliation claim failed at the third element for several
defendants due to plaintiff’s failure to allege defendants acted with retaliatory motive). With
respect to Defendant Quinn, Plaintiff alleges that Quinn read the Owen Letters and confiscated
four documents found therein, which were the exhibits to the CPLP v. Herrera complaint, and

48

instructed Defendants Nordell, Reynolds, Foster, Ortiz, Barr, and Dent that Plaintiff did not have
a compelling interest in possessing those documents and that he could not have them. [#19 at ¶
55]. Plaintiff does not allege that Defendant Quinn ordered, or even advised, Defendant Will to
charge him with Unauthorized Possession.19 Nor does Plaintiff allege that Quinn, or the AG’s
Office in general, is implicated in the CPLP v. Herrera complaint or Toevs v. Milyard lawsuit.
Accordingly, I recommend that this claim be dismissed as to all Defendants sued in their
individual capacity other than Defendants Barr, Dent, and Will.
2.

Third Claim for Deprivation of Property

Plaintiff asserts a claim for deprivation of property without due process in violation of the
Fourteenth Amendment, based on Defendants’ confiscation and retention of the exhibits attached
to the CPLP v. Herrera complaint, which he received as correspondence from Ms. Owen and
where were incorporated in the Owen Letters. [#19 at 28]. Defendants argue that Plaintiff fails
to state a claim for violation of his Due Process rights because “he was provided meaningful
post-deprivation due process.” [#28 at 29]. Plaintiff responds that he was entitled to a predeprivation hearing if Defendants confiscated his legal materials pursuant to CDOC policy, but
concedes that “an adequate postdeprivation remedy” was sufficient if Defendants agree that their
conduct constitutes a “random and unauthorized act.” [#33 at 14]. And, Plaintiff argues, to the
extent a post-deprivation hearing is all the process to which he is entitled, “Defendants have not
satisfied their burden of showing that the grievance and C.R.C.P. 106 processes satisfy due
process.” [Id.]

19

While Plaintiff alleges that “the AG’s Office has vigorously defended Quinn’s conduct in
directing CDOC to punish Toevs,” this statement is not borne out by the allegations in the
Amended Complaint. [#19 at ¶ 111].
49

The Due Process Clause guarantees fair procedure, among other things. A plaintiff may
assert a § 1983 action for the deprivation by state action of a constitutionally protected interest in
life, liberty, or property without due process of law. Parratt v. Taylor, 451 U.S. 527, 537
(1981); Carey v. Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process rules are meant to
protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life,
liberty, or property”). A violation of procedural due process, as opposed to substantive due
process, is actionable under § 1983 only when the state fails to provide due process. “Therefore,
to determine whether a constitutional violation has occurred, it is necessary to ask what process
the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S.
113, 126 (1990).
The Supreme Court describes due process as “a flexible concept that varies with the
particular situation,” and weighs the following factors to “determine what procedural protections
the Constitution requires in a particular case”:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Zinermon, 494 U.S. at 127 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Application of this test usually finds that the Constitution requires the state to provide some kind
of hearing before it deprives a person of property. Id. at 127 (citations omitted). However, a
common-law tort remedy for erroneous deprivation or a post-deprivation hearing satisfies due
process in other instances, such as when the state is responsible for the negligent loss of a
prisoner’s property—the state cannot be required to provide pre-deprivation safeguards because

50

the state could not predict precisely when such a loss would occur. Zinermon, 494 U.S. at 129
(citing Parratt, 451 U.S. at 541). The same is true for where a state prison guard intentionally
deprives a prisoner of his property acting not pursuant to established state procedure, but in
furtherance of a personal vendetta against the prisoner. Id. at 130 (citing Hudson v. Palmer, 468
U.S. 517, 521, n.2, 532, 533 (1984) (“The state can no more anticipate and control in advance the
random and unauthorized intentional conduct of its employees than it can anticipate similar
negligent conduct.”).
Plaintiff alleges that Defendants confiscated the CPLP v. Herrera exhibits without
sufficient process. He further alleges that the deprivation “was not effected through random and
unauthorized conduct of a state employee,” but “as part of an ongoing, state sanction, AG’s
Office-defended activity.” [#19 at ¶ 141]. Plaintiff alleges in the alternative that any postdeprivation hearing was “meaningless,” because the CPLP v. Herrera exhibits were never
returned to him. [Id. at ¶¶ 142, 143, 144]. Based on the allegations contained in the Amended
Complaint, I cannot conclude that Plaintiff can prove no set of facts that would show certain
Defendants acted to deprive him of his property without due process and that the process he
received was insufficient.
Rather, considering Plaintiff’s allegations, the operative question is whether he was
entitled to a pre-deprivation hearing or only a post-deprivation hearing. The state generally must
provide a pre-deprivation hearing before taking property where it is feasible to do so, regardless
of the adequacy of a post-deprivation tort remedy to compensate for the taking. Zinermon, 494
U.S. at 132 (citation omitted). However, post-deprivation remedies “might satisfy due process”
where a pre-deprivation hearing is “unduly burdensome in proportion to the [] interest at stake,”

51

in addition to where the state cannot anticipate and thus cannot prevent a random deprivation.
Id. Therefore, determining the process due to Plaintiff requires understanding whether
Defendants acted pursuant to a state policy or ultra vires. If they acted pursuant to state
procedure, and the state was in a position to provide for pre-deprivation process, the court must
consider whether such process was out of proportion to the interest at stake. Zinermon, 494 U.S.
at 130 (citing Hudson, 468 U.S. at 534). If Defendants’ actions were random or unauthorized,
the state was likely not in a position to provide pre-deprivation process, in which case, the court
would assess whether CDOC’s administrative grievance procedure and/or the review process
afforded under C.R.C.P. 106 adequately satisfies Plaintiff’s due process rights. See Mathews,
424 U.S. at 335.
Neither of these inquiries is amenable to a Rule 12(b)(6) review. Even if Defendants are
correct that, under Durre v. Dempsey, 869 F.2d 543 (10th Cir. 1989), Plaintiff was only entitled
to post-deprivation process regardless of the scenario, Plaintiff alleges that despite the outcome
of the C.R.C.P. 106 review, CDOC only expunged the conviction from his record, and failed to
return either the exhibits to him or him to an incentive status.

Cf. Freeman v. Dept. of

Corrections, 949 F.2d 360 (10th Cir. 1991) (distinguishing Durre and finding Rule 12(b)(6)
dismissal inappropriate on basis that prisoner alleged he could not access state’s post-deprivation
process and/or that process was inadequate). Accordingly, I find that Plaintiff has adequately
alleged that the process available to him was inadequate and recommend that the court deny the
Motion as to this claim with respect to Defendants Barr, Dent, and Quinn, against whom I find
Plaintiff asserts allegations of personal participation in the deprivation of his property. Plaintiff
implicates Barr and Dent as the officers who initiated the search and originally removed the

52

materials, and Quinn as the individual who apparently had the final say that Plaintiff was not
authorized to possess those materials and never returned those materials even after the Court of
Appeals reversed the district court. Conversely, I recommend that this claim be dismissed as to
Defendants Nordell, Reynolds, Foster, Ortiz, Will, and Burke, as the allegations aver only that
they read the confiscated legal materials and/or awaited advice as to whether Plaintiff was
entitled to keep those materials in his possession, and, as to Defendants Will and Burke, who
prosecuted and convicted Plaintiff for and of the charge.
3.

Fourth Claim for Denial of Right to Counsel

Plaintiff asserts that Defendants violated his Sixth Amendment right to counsel by
reading the privileged and confidential correspondence between him and Ms. Owen. [#19 at 2930]. Defendants argue Plaintiff fails to state a claim because he has no right to “full and
unfettered contact” with his attorney, and that they read the Owen Letters and other
correspondence pursuant to a legitimate penological interest in preventing the circulation of
contraband. [#28 at 31-32].
The Sixth Amendment states in relevant part that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial…and to have the Assistance of Counsel
for his defence.” U.S. Const. amend. VI. In McNeil v. Wisconsin, the Supreme Court explained
that the right to counsel protected by the Sixth Amendment “is offense specific,” and “does not
attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary hearing, indictment,
information,” and thus, the right “cannot be invoked once for all future prosecutions.” 501 U.S.
171, 175 (1991). See also Texas v. Cobb, 532 U.S. 162 (2001); Davis v. United States, 512 U.S.

53

452, 456-57 (1994) (“[t]he Sixth Amendment right to counsel attaches only at the initiation of
adversary criminal proceedings”); Al–Owhali v. Mukasey, No. 07–CV–02214–LTB–BNB, 2010
WL 5651033, at *11–12 (D. Colo. June 17, 2010), report and recommendation adopted in part
sub nom, Al–Owhali v. Holder, 07–CV–02214–LTB–BNB, 2011 WL 288523 (D. Colo. Jan. 27,
2011), aff'd, 687 F.3d 1236 (10th Cir. 2012). The Sixth Amendment does not attach to civil
cases. Turner v. Rogers, 564 U.S. 431, 441 (2011).
Plaintiff does not allege that he had been charged with breaking the law or was otherwise
involved in a criminal proceeding at the time Defendants read the correspondence between him
and his attorney. It would appear then, that regardless of what purpose motivated Defendants in
reading and confiscating Plaintiff’s legal materials, there can be no Sixth Amendment violation
because the protections contained in that Amendment were not applicable at the time of the
alleged violation. See Wolff v. McDonnell, 418 U.S. 539, 576 (1974). Therefore, this court
respectfully recommends dismissal of the Fourth Claim.
4.

Fifth Claim for Breach of Attorney/Client Privilege

Plaintiff asserts that Defendants breached the attorney-client privilege he enjoys with Ms.
Owen, in violation of his First Amendment rights, by reading the Owen Letters. [#19 at 30-31].
Defendants argue they searched Plaintiff’s legal mail “for both contraband and plans of criminal
activity,” and that no constitutional violation resulted because their search was “reasonably
related to valid penological interests of security, safety and maintenance of orderly prisons.”
[#28 at 34]. Defendants argue in the alternative that the Owen Letters are not protected by the
attorney-client privilege because the “documents at issue…were copies of legal materials for
another inmate’s case.” [Id. at 35].

Plaintiff responds that whether Defendants read his legal

54

mail in furtherance of a valid penological interest is a question of fact. [#33 at 16-17]. Plaintiff
further responds that the claim does not rise and fall on whether the exhibits to the CPLP v.
Herrera complaint were protected by the privilege; rather, only through their review of the Owen
Letters, privileged correspondence, did Defendants discover and then confiscate the exhibits. [Id.
at 17].
The First Amendment, as incorporated by the Fourteenth Amendment, prohibits states
from “abridging the freedom of speech.” U.S. Const. amend. I. Mail is one medium of free
speech protected by the First Amendment.

See City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 427 (1993). Established law provides that a prisoner’s legal mail may be
opened by prison officials only in the presence of the prisoner, and prison officials may require
legal mail to be marked in a certain way so as to enable them to identify it as such. Wolff , 418
U.S. at 575–77. Mr. Toevs asserts that Defendants’ actions had a chilling effect on his speech.
See [#33 at 16]. Both sides analyze this Fifth Claim as one alleging that Defendants’ actions
interfered with Mr. Toevs’ free speech rights under the First Amendment. See Al-Amin v. Smith,
511 F.3d 1317, 1334 (11th Cir. 2008) (“[t]his is not a case where defendants censored inmates’
mail or refused to deliver mail. Instead, defendants opened Al–Amin's attorney mail outside his
presence before delivering it to him. The issue thus is whether defendants’ [conduct] sufficiently
chills, inhibits, or interferes with Al–Amin’s ability to speak, protest, and complain openly to his
attorney so as to infringe his right to free speech”). See also Jones, 461 F.3d at 359 (reasoning
that the practice of opening attorney mail outside the inmate’s presence “deprives the expression
of confidentiality and chills the inmates’ protected expression, regardless of the state’s goodfaith protestations that it does not, and will not, read the content of the communications.”).

55

CDOC AR 300-38 provides:
Restricted Inspection Mail: All incoming and outgoing offender mail to or from a
specified class of persons and organizations, which DOC employees, contract
workers, and volunteers are prohibited from reading to protect confidentiality, but
are permitted to inspect for contraband in the offender’s presence.
…
The DOC shall ensure and facilitate offender access to counsel and assist
offenders in making confidential contact with attorneys and their authorized
representatives; such contact includes, but is not limited to uncensored
correspondence. [4-4275] To be considered a confidential contact from an
attorney, their authorized representative, or legal aid organization, the incoming
mailing envelope must include the following:
a. Attorney’s first and last name;
b. Attorney’s registration, bar, or license number….;
c. Attorney’s complete business address;
d. Mailing envelope must be clearly marked
“CONFIDENTIAL.”

“PRIVILEGED”

or

[#19 at ¶ 29].
Plaintiff alleges that all correspondence from Ms. Owen to him “was clearly marked
‘Privileged and Confidential’ and met all other requirements for protecting confidentiality
prescribed by the CDOC ARs,” and that he stored all correspondence from Ms. Owen in his legal
box, and that the majority of that correspondence related to her representation of him in his
clemency bid. [#19 at ¶¶ 31, 32]. Plaintiff also alleges that Defendants Barr and Dent read
“word for word…each piece of paper in Toevs’ legal box,” and that Defendants Ortiz, Nordell,
Reynolds, and Quinn read the Owen Letters. [#19 at ¶¶ 39, 53, 54]. Ultimately, all materials
were returned except for the CPLP v. Herrera exhibits.
This claim is clearly not about Defendants’ confiscation of the exhibits.

Rather it

concerns Defendants’ alleged review of the substance of Plaintiff’s correspondence with his
attorney, correspondence that Plaintiff alleges he labeled according to CDOC ARs so that CDOC

56

employees would identify it as mail that they are “prohibited from reading [so as] to protect
confidentiality, but are permitted to inspect for contraband in the offender’s presence.” [#19 at ¶
29]. “While the inadvertent, negligent opening of legal mail does not violate the Constitution,
the courts have not hesitated to find a violation where the mail has been read or where a policy of
opening mail outside inmates’ presence has been shown.” Hinderliter, 814 F. Supp. at 68
(finding triable issue of fact where prisoner alleged officials undertook retaliatory conduct based
on information which he asserts only could have been obtained from reading his legal mail). See
also Reneer v. Sewell, 975 F.2d 258 (6th Cir. 1992) (holding summary judgment not appropriate
where fact issue exists as to whether inmate’s legal mail was actually read and whether action
was retaliatory); Proudfoot v. Williams, 803 F. Supp. 1048 (E.D. Pa. 1992) (finding officer
violated inmate’s right of access to the courts when he opened inmate’s legal mail and appeared
to read it). Similarly, Plaintiff alleges Defendants retaliated against him for pursuing Toevs v.
Milyard and communicating with Ms. Owen by reading correspondence between him and Ms.
Owen, which resulted in officials removing him from incentive to segregation status and a
disciplinary conviction, and rendered him ineligible for a clemency bid.
However, I do not find that all Defendants are implicated in the alleged violation. As an
initial matter, Plaintiff alleges that only Defendants Barr, Dent, Quinn, Nordell, Reynolds, and
Ortiz read the contents of his legal box and/or the Owen Letters. Therefore, this claim should be
dismissed as to Defendants Will, Burke, and Foster. In addition, although Defendants do not
raise this argument, the Third Circuit and the Second Circuit and district courts therein have held
that “an isolated incident of mail tampering is usually insufficient to establish a constitutional
violation,” and “the inmate must show that prison officials ‘regularly and unjustifiably interfered

57

with the incoming legal mail.’” Davis, 320 F.3d at 351 (citations omitted). And, the Second
Circuit and courts therein “have generally required specific allegations of invidious intent or of
actual harm where the incidents of tampering are few and thus the implication of an actionable
violation is not obvious on its face.” Id. (citations omitted). This court could find no Tenth
Circuit case law adopting or rejecting this logic, but district courts within the Circuit cite these
cases favorably. See, e.g., Hale v. Ashcroft, No. 06–cv–00541–REB–KLM, 2008 WL 4426128,
at *10-11 (D. Colo. Sept. 24, 2008); Chambers v. Badsky, No. 13–3114–SAC, 2014 WL
4261345, at *6 (D. Kan. Aug. 28, 2014). I find that Plaintiff alleges only one instance in which
Defendants read his legal mail, and thus he cannot move forward with his claim without also
alleging some type of intent. As with the retaliation claim discussed above, I find Plaintiff
supplies sufficient factual allegations that Defendants Barr and Dent acted with retaliatory
motives in reading his legal mail, nut fails to meet this pleading burden with respect to
Defendants Ortiz, Quinn, Nordell, and Reynolds. Accordingly, while the conduct of these
Defendants may have violated AR 300-38, and “the opening and reading of an inmate’s legal
mail without cause…cannot be condoned,” Chambers, 2014 WL 4261345, at *6, Plaintiff has
not alleged the requisite intent to plead a constitutional violation.20 Therefore, I recommend that

20

This court notes an order from a court in this District declining to adopt the recommendation
of the magistrate judge that a motion to dismiss be granted based on the reasoning of Davis v.
Goord and its progeny, observing that the defendants had not raised the argument in their
motion. See Ybanez v. Scott, No. 14–cv–01059–MSK–MJW, 2015 WL 1258290, at *4-5 (D.
Colo. Mar. 17, 2015) (“the Defendants’ motion did not raise the argument that a single instance
of negligent application of AR 750–01 could not state a claim, and thus, it was inappropriate for
the Magistrate Judge to reach that question”). This court is mindful of not making arguments for
pro se litigants and represented parties alike, but nonetheless believes that in a lawsuit such as
this one, which involves many defendants, claims, and theories of liability, and which has been
pending already for no insignificant period of time, it acts in the interest of effective case
58

the court dismiss this action as to all Defendants acting in their individual capacity other than
Defendants Barr and Dent.21
5.

Sixth Claim for Denial of Right to Privacy

Plaintiff asserts he has a reasonable expectation of privacy under law “in the content of
lawyer-client correspondence.” [#19 at ¶ 162]. Plaintiff further asserts that the CDOC, by
implementing administrative regulations, has created this expectation of privacy in properly
marked legal mail, and he alleges that Defendants violated his right to privacy in violation of the
Fourth Amendment. [Id. at ¶¶ 163-165]. Defendants argue that Plaintiff’s “Fourth Amendment
privacy rights have not been violated because the search and seizure of his mail was permitted to
comply with the institutional needs and objectives of the prison facility.”

[#28 at 36].

Defendants also argue that the “seized documents” were contraband, and thus Plaintiff had no
legitimate expectation of privacy in them. [Id. at 37].

management and judicial economy to winnow the Amended Complaint to a form best suited for
entering discovery.
21

With respect to Defendants’ arguments, this court does not read the Amended Complaint to
assert a challenge to AR 300-38 as promulgated. To the extent this court misapprehends the
claim, and Plaintiff does challenge the reasonableness of AR 300-38, the court would still need
undergo an analysis of factors as enunciated in Turner v. Safley, 482 U.S. 78, 89 (1987)
(identifying factors relevant to whether a prison regulation is reasonably related to legitimate
penological interests). Such an analysis is better suited for a motion for summary judgment.
See Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (Turner “requires courts, on a
case-by-case basis, to look closely at the facts of a particular case and the specific regulations
and interests of the prison system in determining whether prisoner’s constitutional rights may be
curtailed.”). Indeed, in arguing they were motivated by a legitimate penological interest to read
the Owen Letters and other contents of his Plaintiff’s legal box, Defendants introduce questions
of fact and invite the court to undertake a review of matters that are clearly outside the pleadings.
See Brown v. Williams, 36 F. App’x 361, 363 (10th Cir. 2002) (“Prison officials may open an
inmate’s incoming legal mail to search for contraband in the presence of the inmate”) (citation
omitted).
59

The Fourth Amendment, which ensures a person’s right “to be secure in their persons,
houses, papers, and effects” from unreasonable searches and seizures, does not establish a right
to privacy in prisoners’ cells. U.S. Constitution amend. IV; Hayes v. Marriott, 70 F.3d 1144,
1146 (10th Cir. 1995). See Frazier v. Zavaras, No. 10–cv–02534–CMA–KMT, 2011 WL
4537001, at *5 (D. Colo. Sept. 30, 2011) (dismissing prisoner’s Fourth Amendment claim based
in part on prison officials removing legal material from his cell, noting the Tenth Circuit has
“foreclosed any fourth amendment challenge to the search of a prison cell”) (quoting Dunn v.
White, 880 F.2d 1188, 1191 (10th Cir. 1989)). See also Herd v. Hartley, No. 1:12–cv–01674–
AWI–BAM (PC), 2014 WL 1333995, at *3 (E.D. Cal. Apr. 3, 2014) (“The issue of whether a
prison official can open legal materials outside of an inmate’s presence is more appropriately
considered under the First Amendment”) reversed and remanded by Herd v. Hartley, 617 F.
App’x 825 (9th Cir. 2015) (determining plaintiff’s allegations stated a First Amendment claim
that required an answer). Additionally, a prison official’s “failure to adhere to administrative
regulations does not equate to a constitutional violation.” Malik v. Kindt, 76 F.3d 393, 1996 WL
41828, at *2 (10th Cir. Feb. 2, 1996) (rejecting federal prisoner’s claim based on Code of Federal
Regulations).22 I recommend that the court grant the Motion as to this claim, as Mr. Toevs’s
concerns are better addressed under his Fifth Claim for violation of the First Amendment.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
22

Plaintiff cites United States v. Gordon, 168 F.3d 1222 (10th Cir. 1999) in his Response.
However, in Gordon, the Tenth Circuit dealt in relevant part with “unprivileged incoming and
outgoing prison mail,” and thus did not reach the question of Fourth Amendment protection as to
privileged legal mail. Furthermore, the court suggested that letters that enter the mail system
may not enjoy Fourth Amendment protection because the Amendment does not protect items
“knowingly exposed to the public.” Id. at 1228.
60

(1)

The Motion be reviewed as a Motion for Summary Judgment for the sole purpose

of determining whether Plaintiff has exhausted his administrative remedies, and that summary
judgment be GRANTED as to Claims Two, Seven, and Eight, on the basis of failure to exhaust,
and DENIED as to Claims One, Three, Four, Five, Six, and Nine, without prejudice;
(2)

The Motion be GRANTED for failure to state a claim as to Claims Four, Six, and

Nine and DENIED as to Claims One, Three, and Five;
(3)

Claim One proceed as to Defendants Barr, Dent, and Will in their respective

individual capacities;
(4)

Claim Three proceed as to Defendants Barr, Dent, Will and Quinn, in their

respective individual capacities;
(5)

Claim Five proceed as to Defendants Barr and Dent, in their respective individual

capacities; and
(6)

All claims as to all other Defendants be DISMISSED.23

23

Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the District Judge of the Magistrate Judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
61

DATED: January 31, 2017

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
62