Mares v. Pueblo County Detention Center et al

Filing 54

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that the 34 MOTION to Dismiss filed by Fran Lepage be GRANTED. By Magistrate Judge Nina Y. Wang on 8/31/2017. (Attachments: unpublished case law) (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-03082-RBJ-NYW
LEONARD MARES,
Plaintiff,
v.
FRAN LEPAGE,
Defendant.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This civil action comes before the court on Defendant Fran LePage’s Motion to Dismiss.
[#34, filed April 10, 2017]. The Motion was referred to the undersigned pursuant to the Order
Referring Case dated February 7, 2017 [#13] and the memorandum dated April 11, 2017 [#35].
This court has reviewed the Motion and associated briefing, the case record, and the applicable
case law, and for the reasons set forth below respectfully RECOMMENDS that the Motion to
Dismiss be GRANTED.
BACKGROUND
Mr. Mares is in the custody of the Colorado Department of Corrections (“CDOC”) and is
currently incarcerated at the Crowley County Correctional Facility. See [#52, #53]. Mr. Mares
initiated this action on December 14, 2016, by filing a pro se Prisoner Complaint pursuant to 42
U.S.C. § 1983 asserting violations of his First and Eighth Amendment rights. See generally [#1].
At that time, he was detained at the Pueblo County Detention Center. See id. The court granted
Mr. Mares leave to proceed in forma pauperis under 28 U.S.C. § 1915, [#8], and ordered him to

file an amended pleading. [#9]. On January 19, 2017, Mr. Mares filed an Amended Complaint
again asserting that defendants subjected him to cruel and unusual punishment in violation of his
Eighth Amendment rights, and that Defendant LePage wrongfully denied his request to change
his religion to Judaism and to receive kosher diet trays in violation of his rights under the First
Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”). [#10].
Plaintiff also alleged that Defendant LePage interfered with his constitutional right to access the
courts, and a different CDOC officer refused to provide him with grievance forms. [Id.] In his
Amended Complaint, Mr. Mares seeks both damages in the amount of $300,000 and injunctive
relief from Defendant LePage [id. at 18], which this court interprets as Plaintiff proceeding
against LePage in her individual and official capacities. On February 6, 2017, following the
screening process undertaken pursuant to § 1915(e)(2), the court dismissed all claims other than
those asserting violations of the First Amendment and RLUIPA and dismissed all defendants
other than Defendant LePage.

The court noted that the Eleventh Amendment precluded

Plaintiff’s claim for damages as to any defendant sued in his or her official capacity, but did not
preclude Plaintiff’s claim for injunctive relief. [#12 at 5 (citing Verizon Maryland v. Public
Service Commission of Maryland, 535 U.S. 635, 645 (2002)]. The court then assigned the case
to the Honorable R. Brooke Jackson and the undersigned Magistrate Judge. See id.
On April 10, 2017, Defendant LePage filed the pending Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. See [#34]. Plaintiff filed a Response on May 3, 2017, [#39], and Defendant filed a
Reply on May 17, 2017. [#42]. On May 2, 2017, this court held a Status Conference at which it
set certain pre-trial dates and deadlines. See [#38]. Plaintiff thereafter filed a motion for
appointment of counsel, which this court denied. See [#40, #44, #45]. On June 19, 2017, Mr.

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Mares notified the court that he had been sentenced on June 2, 2017, and had been moved from
the Pueblo County Detention Center. [#47]. On August 17, 2017, the court received notice that
CDOC had moved Mr. Mares to the Crowley County Correctional Facility. [#53].
STANDARD OF REVIEW
I.

Federal Rule of Civil Procedure 12(b)(1)
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 must dismiss a complaint if it lacks of subject matter jurisdiction.
“Federal courts ‘have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party,’ and thus a court may sua sponte raise
the question of whether there is subject matter jurisdiction ‘at any stage in the litigation.’” 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1240, 1244, 163 L.Ed.2d 1097 (2006)).
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). Mootness is an issue of subject
matter jurisdiction. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th
Cir. 2011).

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II.

Federal Rule of Civil Procedure 12(b)(6)
Defendant LePage argues that Mr. Mares 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).
“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).
III.

Pro Se Litigants
Mr. Mares is appearing pro se, and thus the court “review[s] his pleadings and other

papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”

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Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a
defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton,
587 F.3d 1063, 1067 (10th Cir. 2009) (“[Court’s] role is not to act as [pro se litigant’s]
advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“the court will
not construct arguments or theories for the plaintiff in the absence of any discussion of those
issues”) (internal citation omitted).
ANALYSIS
Plaintiff alleges that he “kited the head of programs, Fran LePage, to change his religion
to Jewish,” that he “was denied his change of religion, [due] to the fact that the Pueblo County
Detention Center has it[s] own rules on what religion you can be and how long you have to be a
religion.” [#10 at 9]. Plaintiff asserts that “all people have the same 1st amendment [right] to
change their religion at any given time,” and the “Pueblo County Jail has no authority to tell you
what religion you can be and how long you have to be that religion.” [Id. at 15].
Section 1983 of Title 42 of the United States Code allows an injured person to seek
damages for the violation of his or her federal rights against a person acting under color of state
law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988). To assert a claim
under section 1983, Plaintiff must 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). “A defendant cannot be liable under §
1983 unless personally involved in the deprivation.” Olsen v. Stotts, 9 F.3d 1475, 1477 (10th
Cir. 1993) (citation omitted). The complaint must allege an affirmative link between the alleged

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constitutional violation and the specific individual’s participation in that violation. Stidham v.
Peace Officer Standards and Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001).
I.

Mootness
The court first considers whether it has subject matter jurisdiction to consider the merits

of this action. During the pendency of this lawsuit, Mr. Mares was sentenced in the State of
Colorado, remanded to CDOC custody, and transferred away from Pueblo County Detention
Center. [See #47]. Defendant LePage finished briefing her Motion to Dismiss approximately
two weeks prior to Plaintiff’s sentencing, and thus the Motion does not raise or address the
applicability of mootness to Plaintiff’s remaining claims. However, mootness implicates subject
matter jurisdiction, and a court lacking jurisdiction “must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking.” Basso, 495 F.2d at 909.
Accordingly, I consider sua sponte whether any of Plaintiff’s contentions are moot.
Article III of the Constitution limits the jurisdiction of federal courts to considering only
actual cases or controversies. Kan. Jud. Review v. Stout, 562 F.3d 1240, 1245 (10th Cir. 2009).
“[A]n actual controversy must be extant at all stages of review, not merely at the time the
complaint is filed.”

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010)

(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). The paradigmatic
inquiry is “whether granting a present determination of the issues offered will have some effect
in the real world,” or whether it is now impossible for a court to grant effective relief. Id. (citing
Kan. Jud. Review, 562 F.3d at 1246). See also Lucero v. Bureau of Collection Recovery, Inc.,
639 F.3d 1239, 1242 (10th Cir. 2011) (holding a claim for injunctive relief is moot when (1) the
issues presented are no longer “live,” or (2) the parties lack a legally cognizable interest in the
outcome). With respect to a request for injunctive relief, the plaintiff’s “susceptibility to

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continuing injury is of particular importance—‘[p]ast exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any
continuing, present adverse effects.’” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011)
(quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). A prisoner’s claim for injunctive
relief is moot if he or she is no longer subjected to the conditions complained of in the pleading.
Id. at 1028 (citing Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)).
Mr. Mares’ claim for prospective injunctive relief appears to be moot for two separate
reasons. First, Mr. Mares is no longer at the Pueblo County Detention Center, and therefore, no
longer subject to its rules regarding the designation of a particular religion and the provision of
kosher meals. See Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding that once
prisoner was released from the prison system, neither declaratory nor injunctive relief would
have any effect on defendants’ behavior); Love v. Summit County, 776 F.2d 908, 910 n. 4, 912
(10th Cir. 1985) (indicating that the general rule applies to a transfer between prisons). And Mr.
Mares has not named as a defendant any CDOC official who has final policymaking authority
for CDOC. Cf. Abdulhaseeb, 600 F.3d at 1311 (holding that RLUIPA claims were not moot
despite prisoner’s transfer between state correctional facilities because prisoner remained in state
custody, subject to the state’s correctional policies, and he had named as a defendant the director
of the department of corrections who had authority to effect change in the department’s policies).
There is also no evidence in the record to suggest that Mr. Mares will be detained at Pueblo
County Detention Center in the future.

Second, it appears that even before his transfer,

Defendant LePage granted Mr. Mares’s request to change his religious designation to “Jewish,”
and may have authorized Mr. Mares to receive a kosher diet. [#39 at 4-5]. In either case, an

7

order enjoining Defendant LePage would have no real world effect and thus any official capacity
claim seeking prospective injunctive relief is moot.
However, Plaintiff’s claim for damages against Defendant LePage in her individual
capacity is not moot because a judgment for damages may “alter the defendants’ behavior by
forcing them to pay an amount of money they otherwise would not have paid.” Wirsching v.
Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004). Thus this court addresses next Defendant
LePage’s argument that Plaintiff fails to state a cognizable claim for a violation of his First
Amendment rights to free exercise of his religion.
II.

First Amendment Violation
The First Amendment to the United States Constitution provides, in pertinent part, that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof . . . .” U.S. Const. amend. I. “Inmates…retain protections afforded by the First
Amendment, including its directive that no law shall prohibit the free exercise of religion.”
O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). The Tenth Circuit
“recognizes that prisoners have a constitutional right to a diet conforming to their religious
beliefs.” Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (reversing dismissal of First
Amendment claims stemming from a denial of Jewish inmates’ request for a kosher diet). These
constitutional protections are not without reasonable limitations, and “a prison regulation
imping[ing] on inmates’ constitutional rights ... is valid if it is reasonably related to legitimate
penological interests.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting O’Lone,
482 U.S. at 348-49). This law applies equally to pre-trial detainees. See, e.g., Mayo v. County of
York, 656 F. App’x 593, 596 (3d Cir. 2016); Flower v. Mullet, No. CIV-16-30-C, 2016 WL

8

3960910, at *3 (W.D. Okla. Jun. 27, 2016); Robinson v. Roper, No. CV 06-3817-TJH (PJW),
2010 WL 1407851, at *3 (C.D. Cal. Feb. 17, 2010).
The Tenth Circuit has adopted a two-step inquiry for district courts considering whether a
prisoner-plaintiff has stated a constitutional violation based on a free exercise claim. The
plaintiff must first show that “a prison regulation substantially burdened his sincerely-held
religious beliefs.”

Kay, 500 F.3d at 1218 (internal quotation marks and ellipsis omitted).

Prison-official defendants may then “identify the legitimate penological interests that justified
the impinging conduct,” at which point the court must apply a balancing test to determine the
reasonableness of the regulation. Id. at 1218–19 (brackets omitted). Only the first of the two
inquiries is relevant at the motion-to-dismiss stage. Williams v. Wilkinson, 645 F. App’x 692,
704 (10th Cir. 2016) (citing Kay, 500 F.3d at 1219). With respect to the first inquiry, Plaintiff
“must assert conscious or intentional interference with his free exercise rights to state a valid
claim under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
Defendant LePage argues that the allegations supporting this claim are vague and
conclusory, and that Plaintiff fails to allege “that his Jewish religious beliefs are sincere or how
the Detention Center’s limits on switching religions impermissibly burdens his ability to practice
his chosen religion.” [#34 at 5]. Additionally, Defendant LePage argues the allegations fall
short of establishing the personal participation necessary to state a claim under § 1983,
contending that Plaintiff acknowledges she denied his request “pursuant to restrictions put in
place by the Detention Center,” and that he does not argue she is responsible for the

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“promulgation, creation, [or] implementation…[of] the restrictions or policies relating to
religious diet changes.” [Id. at 6].1
Mr. Mares does not address Defendant LePage’s specific contentions in his response.
See [#39].

Rather, he appears to represent that Defendant LePage ultimately changed his

religious designation to Jewish. [#39 at 4-5 (“Fran LePage deprived Mr. Mares his change of
religion and kosher diet until Mr. Mares kited Fran LePage with a case number on this civil suit
against Fran LePage that is when she granted the change of religion…if Fran LePage did not
violate[] Mr. Mares’s rights, why would she approve Mr. Mares change of religion [sic] after the
fact Mr. Mares gave her a case number that she is being sued.”)]. He further asserts that
Defendant LePage subsequently violated his “rights of kosher dietary laws by serving nonkosher food items,” and he contends that he has “kited several times to Programs, who is Fran
LePage, asking for Jewish Services and a Torah … a torah that he has asked for several times on
a kite.” [Id.]

Defendant LePage reasserts her arguments on Reply, and additionally contends

the claim fails because Plaintiff does “not explain why the non-kosher diet prevents [him] from
practicing his religion or how the denial of a kosher tray otherwise coerces him into taking action
that is contrary to his religious beliefs.” [#42 at 2]. Defendant does not clarify whether she
granted Plaintiff’s request to change religions prior to his departure from Pueblo County
Detention Center. See id.
Ordinarily, a court will not permit a party to further amend his operative pleading through
a response to a dispositive motion. See In re Qwest Communications Int'l., Inc., 396 F. Supp. 2d

1

Defendant LePage does not assert qualified immunity as a defense and this court does not sua
sponte consider it. See Williams, 645 F. App’x at 696 n.5 (noting it is premature to consider how
such a defense might affect a plaintiff’s claims when the defendants did not raise the defense
during briefing of a Rule 12(b)(6) motion).
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1178, 1203 (D. Colo. 2004). In treating Mr. Mares’s papers liberally, this court has considered
the allegations he raises for the first time in his Response to the Motion to Dismiss, which
include allegations that Defendant LePage failed to provide Plaintiff with a Torah, failed to
contact a rabbi as requested by Plaintiff, and failed to prevent the service of non-kosher foods to
Plaintiff. Even considering these new assertions, and viewing the facts in a light most favorable
to Mr. Mares Plaintiff, I find that he fails to allege sufficient facts to sustain a First Amendment
violation.
As an initial matter, I disagree with Defendant that Plaintiff is required to plead how a
kosher diet is necessary to the practice of his religion. See Williams, 645 F. App’x at 704 (“Mr.
Williams’ First Amendment claim, like his RLUIPA claim, is not dependent on an allegation that
a kosher diet is necessary to the practice of Islam”) (citing Kay, 500 F.3d at 1219-20). Rather, “a
prisoner’s belief in religious dietary practices is constitutionally protected if the belief is
‘genuine and sincere,’” … and, “as with a RLUIPA claim, investigation into ‘the sincerity of [a
First Amendment claimant’s] beliefs [is] premature at this stage of the claim.” Id. However,
Plaintiff is required to plead that he has a sincerely-held religious belief, and that the prison
regulation at issue substantially burdens that belief. Kay, 500 F.3d at 1218. Liberally viewed,
Plaintiff’s allegations represent that Defendant LePage acted pursuant to a Pueblo County
Detention Center policy in denying his request to change his religious designation to Judiasm
and in denying his request for kosher meals.2 This court is willing, through the application of a

2

This court acknowledges that it is giving quite a liberal construction to Plaintiff’s allegations,
considering Mr. Mares never actually states that Fran LePage denied his request, only that he
submitted the request to her and the request was subsequently denied. However, the court during
its initial screening used the same liberal characterization of Plaintiff’s allegation. See [#12 at 9
(“Plaintiff contends in his third claim that Defendant Lapage violated his rights…by denying
Plaintiff’s request to change his religion to Jewish and to receive kosher diet trays.”)].
Accordingly, this court will not deviate.
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liberal construction, to infer that Plaintiff’s religion is Judaism, but observes that Plaintiff never
actually pleads that he is Jewish. Nor does he describe the nature of his faith or how his inability
to obtain kosher meals burdens his faith. Cf. Nichols v. Federal Bureau of Prisons, No. 09–cv–
00558–CMA–CBS, 2010 WL 3219998, at *9-10 (D. Colo. Aug. 12, 2010) (dismissing First
Amendment claim and noting in part “Plaintiff does not state that Christianity requires him to
consume only un-refined whole grains and living foods, and he does not contend that his meals
are bereft of any such foods,” and “has not alleged that he faces the Hobson choice present
in Abdulhaseeb v. Calbone or that Defendants have infrequently provided him with the foods
that are purportedly integral to Plaintiff's religious practice, as was the case in Vashone–Caruso
v. Zenon [No.95-1578, 2005 WL 5957978 (D. Colo. Jul. 25, 2005)]”). Indeed, it is common
knowledge that only a subset of individuals who subscribe to Judaism keep kosher. Had Mr.
Mares included factual allegations in his Amended Complaint regarding his religious convictions
and adherence to a kosher diet, the court would take those allegations as true and refrain from a
credibility assessment as to whether Plaintiff’s belief is sincerely held. However, with no
allegations regarding his faith and how the inability to keep a kosher diet impacts his ability to
worship, Plaintiff pleads only a desire to change his religion and maintain a different diet. The
court concludes that the allegations as pled are insufficient to state a cognizable First
Amendment violation.3

3

Additionally, there may be an issue with the relief Mr. Mares seeks. Mr. Mares prays for
“$300,000 in damages” from Ms. LePage [#10 at 18], but does not specify whether those are
compensatory or punitive damages. The Prison Litigation Reform Act provides in pertinent part
that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act [].” 42 U.S.C. § 1997e(e). See
Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir 2001) (applying section 1997e(e) to the
plaintiff’s First Amendment claim for free exercise of religion). Section 1997e(e) does not bar
recovery of punitive damages or declaratory or injunctive relief, but it does bar recovery of
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III.

Religious Land Use and Institutionalized Persons Act
Turning to the sole remaining claim, the court notes that RLUIPA “protects

institutionalized persons who are unable freely to attend to their religious needs and are therefore
dependent on the government's permission and accommodation for exercise of their religion.”
Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). The statute limits the burdens that a government
may place on a prisoner’s free exercise rights:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, as defined in section 1997 of this
title, even if the burden results from a rule of general applicability, unless
the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a). See also Stewart v. Beach, 701 F.3d 1322, 1333 (10th Cir. 2012).
RLUIPA provides a cause of action against a government, and defines “government” in relevant
part as “(i) a State, county, municipality, or other governmental entity created under the authority
of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in
clause (i); and (iii) any other person acting under color of State law.” 42 U.S.C. § 2000cc–
5(4)(A)(i)–(iii). RLUIPA does not, however, provide a cause of action for individual-capacity
claims. Stewart, 701 F.3d at 1335. See also Williams v. Miller, --- F. App’x ----, 2017 WL
2438128, at *1 n.5 (10th Cir. Jun. 6, 2017).
The court dismissed during the initial screening the claims for damages against any other
defendant named in his or her official capacity, and this court concluded above that any claim

compensatory damages for failure to allege physical injury. See id. The court notes that Plaintiff
does not allege that he suffered physical harm as a result of the alleged First Amendment
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against Defendant LePage in her official capacity is moot. Accordingly, all that remains is a
claim for damages under RLUIPA asserted against Defendant LePage in her individual capacity,
and such a claim is clearly not cognizable under Tenth Circuit case law.
CONCLUSION
For the foregoing reasons, this court RECOMMENDS that
1. Defendant Fran LePage’s Motion to Dismiss [#34] be GRANTED; and
2. The Amended Complaint be DISMISSED without prejudice. 4

DATED: August 31, 2017

BY THE COURT:
s/Nina Y. Wang
United States Magistrate Judge

violation, and therefore, compensatory damages would not be available to him. Of course,
nominal damages remain available to vindicate a First Amendment violation. Id. at 869.
4

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
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).
14