Bertolo et al v. Colorado Department of Corrections et al

Filing 231

ORDER overruling 229 Plaintiff's objection, granting 174 Motion to Dismiss for Lack of Jurisdiction and 191 Motion to Dismiss for Failure to State a Claim, and adopting 228 Report and Recommendation. Defendants are awarded their costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. Judgment shall enter accordingly. Entered by Judge Raymond P. Moore on 3/30/2020. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 17-cv-00773-RM-KLM
JAMES MICHAEL BERTOLO,
Plaintiff,
v.
RICK RAEMISCH,
RANDY LIND,
MIKE ROMERO,
LAURA SHAIN,
LAURA BORREGO-GIBBS,
KRISTY STANSELL,
LEONARD WOODSON,
CAROL TRUJILLO,
SARA SWINGLE,
MATHEW HANSON,
CHRIS LOBANOV-ROSTOVSKY,
CHARLES TAPPE, and
RAE TIMMIE,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the Amended Recommendation of United States
Magistrate Judge Kristen L. Mix (“Recommendation”) (ECF No. 228) to grant two motions to
dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), in which Defendants move to dismiss
Plaintiff James Michael Bertolo’s lawsuit in its entirety and with prejudice (collectively, the
“Motions”) (ECF Nos. 174; 191). On March 4, 2020, Plaintiff filed a “Motion for District Judge
Review of a Magistrates Order and Objection of Any Dismissal” (“Objection”). (ECF No. 229).
On March 28, 2020, Defendants filed their response to Plaintiff’s Objection (“Response”). (ECF

No. 230.) For the reasons below, the Court overrules Plaintiff’s Objection, accepts the Magistrate
Judge’s Recommendation in its entirety, grants Defendants’ motions to dismiss, dismissing this
matter in its entirety.
I.

BACKGROUND
In adopting the Recommendation, the Court adopts and incorporates the Magistrate

Judge’s background section, to which no party objects, and reiterates the main points here. The
procedural history of this case is extensive for merely being in the pleading stages. Plaintiff is
currently incarcerated at the Sterling Correctional Facility and proceeds pro se in this matter.
(ECF No. 228, at 2.) Plaintiff initiated this lawsuit on March 23, 2017. (ECF No. 1.) He later
amended his complaint, asserting a class action (ECF No. 24), which was stricken by the Court.
(ECF No. 25.) Plaintiff was subsequently directed to file a Second Amended Complaint (ECF
No. 58), which he did on March 7, 2018. (ECF No. 61.) The Court then ordered Plaintiff to file a
Third Amended Complaint (ECF No. 68), which he did on June 22, 2018 this time naming
twenty-eight defendants. (ECF No. 76.) On July 18, 2018, the Court dismissed eighteen of the
claims in Plaintiff’s Third Amended Complaint, leaving only five claims remaining. (ECF No.
80.)
On November 7, 2018, Defendants filed a Motion to Dismiss the Third Amended
Complaint. (ECF No. 119.) Before the Court could rule on the motion, on January 7, 2019,
Plaintiff filed a Revised Third Amended Complaint, and the motion was thereafter denied as
moot. (ECF No. 136.) After granting the Plaintiff leave to file a Fourth Amended Complaint
(ECF No. 134), the Court entered an order directing the Clerk to re-file Plaintiff’ Revised Third
Amended Complaint as a separate docket entry entitled Plaintiff’s “Fourth Amended Complaint”
and to update the caption. (Id.)

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The Fourth Amended Complaint, filed on January 17, 2019, is the operative complaint
Defendants move to dismiss. The Fourth Amended Complaint is forty-eight pages and brings
twenty-two claims1 against twenty-four defendants. (ECF No. 137.)
The Magistrate Judge recommended granting both motions to dismiss for eleven different
reasons. Each motion independently asserts dismissal is warranted under both Fed. R. Civ. P.
12(b)(1) and 12(b)(6).
Motion to Dismiss (ECF No. 174). Defendants move to dismiss the majority of
Plaintiff’s Fourth Amended Complaint because: (1) many of the claims are “minimally
refashioned versions of claims the Court has previously dismissed”; (2) Defendants are protected
from being sued in their official capacity under the Eleventh Amendment; (3) some of Plaintiff’s
claim are moot; and (4) despite given many opportunities to do so, Plaintiff has failed to state
any plausible claim for relief. (ECF No. 228, at 4.)
Lobanov-Rostovsky Motion (ECF No. 191). Defendants seek to dismiss claims Thirtyfive and Thirty-Six against Defendant Chris Lobanov-Rostovsky related to Lobanov-Rostovky’s
role on the Sex Offender Management Board (“SOMB”) and the SOMB’s restrictions imposed
on Plaintiff as a result of Plaintiff’s sex offender treatment contract under the Sex Offender
Treatment and Management Program (“SOTMP”) on the grounds that these claims should be
dismissed pursuant to the Eleventh Amendment and Plaintiff has failed to state a claim upon
which relief could be granted. (ECF No. 228, at 4.)
Despite the Magistrate Judge’s thorough analysis of each of Plaintiff’s claims, Plaintiff’s
Objection is only two pages. (ECF No. 229.) Plaintiff argues, generally, that a contract is a
binding agreement from which Defendants cannot be shielded based on immunity, “[b]ecause a

1

These claims include the five remaining after the majority were dismissed pursuant to the June 18, 2018
Order (ECF No. 80) plus seventeen more.
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contract can infringe on plaintiffs [sic] constitutional rights giving jurisdiction of this court
authority to intervene . . .” (ECF No. 229, at 1–2.) Finally, Plaintiff seemingly attempts to
reserve every possible right without pointing to a legal basis for doing so:
“Plaintiff [. . .] preserves his rights procedurally available to him and alerts this
court that his failure to sate other reasons for review is not excused from the
District judges review of the magistrate order and all defenses and procedural
arguments are considered as intended to be in objection to all the magistrates
reasons for dismissal.”
(ECF No. 229, at 2.)
Defendants responded stating while it is not difficult to construe Plaintiff’s filing as an
objection, it is difficult to determine to what recommendation Plaintiff is objecting. (ECF No. 2–
3.) Because Plaintiff routinely references a “contract” or multiple “contracts,” Defendants
limited their Response to those recommendations that involve the validity of various contracts
and their constitutional effects, arguing that: (1) an agreement that Plaintiff strictly adhere to a
fully kosher diet does not violate his First Amendment rights to freely exercise his religion or his
equal protection rights; and (2) Plaintiff fails to allege any constitutional violations related to the
SOTMP. (ECF No. 230.)
II.

LEGAL STANDARDS
A. Review of the Magistrate Judge’s Recommendation
Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of the
Magistrate Judge’s Recommendation that is properly objected to. An objection is proper only if
it is sufficiently specific “to focus the district court’s attention on the factual and legal issues that
are truly in dispute.” U.S. v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).
In the absence of a timely and specific objection, “the district court may review a magistrate’s
report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th

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Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection
is filed, the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.”). And, where a claim is dismissed on two or more
independent grounds, the plaintiff must contest each of those grounds. See Lebahn v. Nat’l
Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). If the plaintiff fails to
do so, the court may affirm on the ground which the plaintiff failed to challenge. Id.
B. Fed. R. Civ. P. 12(b)(1)
The determination of a court’s jurisdiction over the subject is a threshold question of law.
Madsen v. U.S. ex rel. U.S. Army Corps of Engineer, 841 F.2d 1011, 1012 (10th Cir. 1987).
Motions to dismiss under Rule 12(b)(1) are, generally, either a facial attack on the complaint’s
allegations as to the existence of subject matter jurisdiction or a factual attack which goes
beyond the allegations and challenges the facts on which subject matter jurisdiction is based.
Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack
challenging the sufficiency of the complaint requires the court to accept the allegations of the
complaint as true. Stuart, 271 F.3d at 1225; Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.
1995) (internal citation omitted). A factual attack affords the district court “wide discretion to
allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Stuart, 271 F.3d at 1225 (internal quotation marks omitted). Such reference
to evidence outside the pleadings does not convert the Rule 12(b)(1) motion to a Rule 56 motion
for summary judgment. Stuart, 271 F.3d at 1225.
C. Fed. R. Civ. P. 12(b)(6)
In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all
well-pleaded factual allegations in the complaint, view those allegations in the light most

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favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135–36 (10th Cir. 2014); Mink
v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory
v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff
must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555–556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs’
entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14 (italics in original). “In
determining the plausibility of a claim, we look to the elements of the particular cause of action,
keeping in mind that the Rule 12(b)(6) standard does not require a plaintiff to set forth a prima
facie case for each element.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir.
2017) (citation, internal quotation marks, and alteration omitted). “[P]lausibility 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 plaintiff[] [has] not nudged [his] claims across the line
from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(internal quotation marks omitted).
D. Plaintiff’s Pro Se Status
The Court is mindful that Plaintiff proceeds pro se; therefore, the Court reviews his
filings liberally and holds them to a less stringent standard than those drafted by attorneys. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243
(10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Chrisco v. Scoleri, No.
17-cv-00810-MEH, 2018 WL 4742540, at *1 (D. Colo. Oct. 2, 2018). However, it is also true
that “a pro se litigant’s conclusory allegation without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Jemaneh v. The Univ. of Wyo., 82 F.

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Supp. 3d 1281, 1292 (D. Colo. 2015), aff’d, 622 Fed. Appx. 765 (10th Cir. 2015). And the Court
may not “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir.
1997); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may
not construct arguments or theories for the plaintiff the absence of any discussion of those issues)
(citations omitted). It follows that the Court should not act as an advocate for pro se litigants.
Chrisco, 2018 WL 4742540, *1 (citing Hall, 935 F.2d at 1110). Finally, pro se litigants must
follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994).
III.

ANALYSIS
A. Matters to which there are no Objections
The Magistrate Judge recommended the following:
(1) to grant both the Motion to Dismiss (ECF No. 174) and the Lobanov-Rostovsky Motion
to Dismiss (ECF No. 191), in full, and dismiss Plaintiff’s Fourth Amended Complaint
(ECF No. 137) in its entirety. Specifically:
a.

the Motions (ECF No. 174; 191) be GRANTED to the extent Plaintiff seeks
monetary relief against the individual Defendants in their official capacities, and that
such claims be dismissed WITHOUT PREJUDICE for lack of subject matter
jurisdiction;

b. the Lobanov-Rostovsky Motion (ECF No. 191) be GRANTED as to the declaratory
and injunctive claims against Defendant Lobanov-Rostovsky in his official capacity,
and that these claims be dismissed WITHOUT PREJUDICE for lack of subject matter
jurisdiction;

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c. that the Motion to Dismiss (ECF No. 174) be GRANTED as to the due process claims
involving the SOTMP, and that this portion of Claims Seven, Eleven, Thirty-One,
Thirty-Two, and Thirty-Three be DISMISSED WITH PREJUDICE for failure to
state a claim;
d. that Defendant Lobanov-Rostovsky be DISMISSED from this case as he is not sued
in his individual capacity;
e. that to the extent Plaintiff’s claims seek injunctive or declaratory relief relating to
conditions of confinement at facilities where Plaintiff was previously incarcerated
(other than SCF), these claims be DISMISSED WITH PREJUDICE as moot;
f. that the Lobanov-Rostovksy Motion (ECF No. 191) be GRANTED as to Claims
Thirty-Five and Thirty-Six, that these claims be DISMISSED WITH PREJUDICE for
failure to state a claim;
g. that the Motion to Dismiss (ECF No. 174) be GRANTED as to Plaintiff’s Equal
Protection claim in Claim Three, and that this portion of Claim Three be DISMISSED
WITH PREJUDICE for failure to state a claim or show personal participation by the
Defendants;
h. that the Motion to Dismiss (ECF No. 174) be GRANTED as to the First Amendment
retaliation claims asserted in Claims Seven and Eleven, and that this portion of
Claims Seven and Eleven be DISMISSED WITH PREJUDICE for failure to state a
claim;
i. that the Motion to Dismiss (ECF No. 174) be GRANTED as to the Eighth
Amendment claims asserted in Claims Three, Seven, Eleven, Thirty-One, ThirtyTwo, Thirty-Three, Thirty-Four, and Fifty-Two, and that this portion of those claims

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be DISMISSED WITH PREJUDICE for failure to state a claim;
j. that the Motion to Dismiss (ECF No. 174) be GRANTED as to the
ADA/Rehabilitation Act Claims asserted in Claim Fifty-Two, and that this portion of
Claim Fifty-Two be DISMISSED WITH PREJUDICE for failure to state a claim;
k. that the Motion to Dismiss (ECF No. 174) be GRANTED as to Claim Fifty (related to
Incentive Donations Procedures), and that this claim be DISMISSED WITH
PREJUDICE for failure to state a claim;
l. that to the extent Plaintiff is asserting any other alleged constitutional violation or
claims, they be DISMISSED WITH PREJUDICE;
m. the Plaintiff has not stated any constitutional violations, that Defendants be
GRANTED qualified immunity on the constitutional claims to the extent they are
sued in their individual capacities; and
n. that leave to amend the complaint be DENIED.
The Court has considered the recommendations and, after finding no clear errors, ACCEPTS all
such recommendations. See Summers, 927 F.2d at 1167.
B. Matters to which an Objection has been made
Plaintiff’s Objection does not indicate to which portion of the Recommendation he
objects. However, there is a common theme that runs throughout – Plaintiff objects on the
grounds that “the court cannot find immunity for the state agents who operate by contract . . .”
(ECF No. 229, at 1.) In essence, Plaintiff argues that (1) his constitutional rights have been
violated by the use of contract and (2) at least one contract has been breached. (Id. at 1–2.) In
response to Plaintiff’s Objection, Defendants address two sections they believe Plaintiff
implicated in his Objection: (1) the section addressing his Kosher Meal Contract; and (2) the

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section related to alleged constitutional violations resulting from the SOTMP agreement and
SOMB restrictions. (ECF No. 230, at 4–7.)
1. Plaintiff’s Kosher Meal Contract
Plaintiff alleged in his Fourth Amended Complaint that his First Amendment right to
religious freedom or his equal protection rights were violated “because he was required to enter a
written agreement in order to receive kosher diet meals for his religious beliefs,” which could be
terminated if he consumes non-Kosher food. (ECF No. 228, at 43–44.)
The Magistrate Judge explained the law underlying the prison’s ability to terminate an
inmate’s participation in a religious diet program, concluding that it does not violate the inmate’s
religious freedom. (ECF No. 228, at 45 (citing Gibson v. Zavaras, No. 09-cv-02328-WYDKLM, 2010 WL 2543584, at *4 (D. Colo. Jan. 22, 2010)).) Specifically, to establish a free
exercise claim, a plaintiff “must first show that a prison regulation ‘substantially burdened . . .
sincerely-held religious beliefs.’” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citing
Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007)). The Tenth Circuit has provided three broad
ways government action may impose a substantial burden on religious exercise:
(1) Requir[ing] participation in an activity prohibited by a sincerely held religious
belief, or (2) prevent[ing] participation in conduct motivated by a sincerely held
religious belief, or (3) plac[ing] substantial pressure on an adherent either not to
engage in conduct motivated by a sincerely held religious belief or to engage in
conduct contrary to a sincerely held religious belief.”
Strope v. Williams, 381 Fed. App’x 878, 881 (10th Cir. 2010). However, due to prison officials’
ability to question the authenticity of a prisoner’s religiosity through implementation of programs
and policies, “a policy that terminates an inmate’s participation in a religious diet program when
he violates the diet requirement does not deny his right to religious freedom.” Gibson, 2010 WL
2543584, at *3–4 (citing cases); see also Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005);

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Gatrell v. Ashcroft, 191 F. Supp. 2d 23, 35 (D.D.C. 2002); Jackson v. Mann, 196 F.3d 316, 320
(2d Cir. 1999).
The Magistrate Judge also found the Plaintiff failed to show he was required to
participate in activity prohibited by his faith or prohibited from participating in conduct
motivated by a religious belief, nor did he sufficiently allege substantial pressure. (ECF
No. 228, at 45.)
Aside from vague references to hiding behind contracts as a method for undercutting
Plaintiff’s alleged constitutional rights, Plaintiff fails to provide sufficient legal or factual bases
for his objection to the Magistrate Judge’s reasoning. See Robey-Harcourt v. BenCorp Fin. Co.,
326 F.3d 1140, 1143 (10th Cir. 2003) (“Parties must support their arguments with legal
authority.”); Rios v. Ziglar, 398 F.3d 1201, 1206 n.3 (10th Cir. 2005) (same); Bronson v.
Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (cursory arguments, without supporting analysis
and case law, are waived); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015)
(court may decline to consider argument which is unsupported and inadequately briefed).
Consequently, the Court finds no clear errors and ACCEPTS the recommendation that the
Motion to Dismiss (ECF No. 174) be GRANTED as to Claim Forty-One (related to Plaintiff’s
Kosher Meal Contract), and that this claim be DISMISSED WITH PREJUDICE for failure to
state a claim. (ECF No. 228, at 57); see also Summers, 927 F.2d at 1167.
2. Constitutionality of the SOTMP and Contract Issues
With respect to the SOTMP agreement and the SOMB restrictions, the Magistrate Judge
recommended the following:
(1) that to the extent Plaintiff has reasserted claims such as the facial validity of the
SOTMP and the other claims referenced in Section III.B, of the Recommendation,

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that Plaintiff failed to correct the deficiencies as to, those claims be DISMISSED
WITH PREJUDICE for failure to state a claim; and
(2) that the Motion to Dismiss (ECF No. 174) be GRANTED as to any First Amendment
free speech violations in connection with SOTMP treatment, and that these claims be
DISMISSED WITH PREJUDICE for failure to state a claim.
(ECF No. 228, at 55–56.) These recommendations were made on four bases: (1) Plaintiff’s
constitutional challenge to the SOTMP agreement was previously dismissed because the law is
clear that SOTMP treatment is constitutional (ECF No. 228, at 12–14); (2) any First Amendment
free speech restrictions associated with SOTMP treatment are reasonably related to a legitimate
penological interest (ECF No. 228, at 22–24); (3) provisions that restrict Plaintiff’s First
Amendment right to free association by limiting his dating and romantic relationships do not
violate Plaintiff’s constitutional right to free association (ECF No. 228, at 24–25); and (4) sex
offender treatment generally does not violate the Eighth Amendment (ECF No. 228, at 25–26).
To the extent evaluating Defendants’ Response would be helpful to determine to which
recommendations Plaintiff objects, Defendants associate the terms “contract” or “contracts”
with: (1) the constitutionality of the SOTMP agreement; (2) the SOMB standards limiting
Plaintiff’s association with minors and placing restrictions on Plaintiff’s romantic relationship
were unconstitutional; and (3) that portions of the SOTMP agreement should be severed insofar
as they are preempted by state or federal law or constitute constitutional violations. (ECF No.
230, at 5–6.) Because Plaintiff’s Objection was so vague and failed to identify to which specific
portion of the Recommendation, if any, Plaintiff is objecting, the Court finds it useful to evaluate
Plaintiff’s Objection through the lens of Defendants’ Response. For that reason, the Court will
address the three segments of the Recommendation – relating specifically to the SOTMP

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agreement and SOMB restrictions – to which Defendants recognized Plaintiff at least plausibly
objected.
First, the Magistrate Judge found that Plaintiff’s challenge to the facial constitutionality
of the SOTMP was previously dismissed by Magistrate Judge Gordon P. Gallagher on July 18,
2018 where he found the treatment under the SOTMP “already has been determined to be
constitutional and in furtherance of a legitimate penological interest.” (See ECF No. 80, at 5–6.)
On that basis alone, the Magistrate Judge found it appropriate to dismiss Claims Eleven, ThirtyOne, Thirty-Two, and Thirty-Three to the extent these claims attempt to reassert that same
challenge without correcting the deficiencies noted in Magistrate Judge Gallagher’s July 18,
2018 Order. (ECF No. 228, at 13.) Plaintiff does not provide the Court with any basis, factual or
legal, for concluding the SOTMP is unconstitutional. Therefore, the Court finds no reason to
deviate from the Magistrate Judge’s Recommendation on this issue and adopts the same.
Second, with respect to relationship limitations imposed by the SOMB, the Magistrate
Judge held the restrictions did not impose a greater restraint than necessary and did not violate
Plaintiff’s right to free association under the First Amendment. (ECF No. 228, at 25.) Indeed,
“[c]outs have consistently upheld imposition of conditions of probation that restrict a defendant’s
freedom of speech and association when those condition bear a reasonable relationship to the
goals of probation. U.S. v. Behren, 65 F. Supp. 3d 1140, 1157–58 (D. Colo. 2014) (quoting U.S.
v. Turner, 44 F.3d 900, 903 (10th Cir. 1995)). The Magistrate Judge’s determination is supported
where this district has upheld similar restrictions on dating and contact with minors. See id. at
1157–58 (dating restrictions), 1160–61 (no contact with minors).
Similarly, the Magistrate Judge rejected Plaintiff’s conclusory allegations that the SOMB
restrictions violated his Eighth Amendment rights. (ECF No. 228, at 26.) Even if some

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restrictions are “restrictive or even harsh,” these restrictions “are often the natural consequences
of crimes for which the prisoners were sentenced.” Quintana v. Doe, No. 09-cv-00946-CMAKLM, 2010 WL 2650047, at *7 (D. Colo. April 14, 2010) (citing Rhodes v. Chapman, 452 U.S.
337, 347 (1981)). Plaintiff has not alleged how these limits on his ability to associate with minors
and relationship limits are so objectively severe nor how these restrictions are not reasonably
related to a legitimate penological interest to “ensur[ing] the safety of the community and the
success of the offender in treatment.” Behren, 65 F. Supp. 3d at 1157; see also Allen v. Clements,
930 F. Supp. 2d 1252, 1263–64 (D. Colo. 2013).
Third, the Magistrate Judge recommended dismissal to the extent Plaintiff pleads a
breach of contract claim, because “contract claims are not constitutional claims that may be
brought pursuant to § 1983” and Plaintiff fails to identify on how the SOTMP agreement is
ambiguous or preempted. (ECF No. 228, at 9–10, 52 (citing Pioneer v. Gatza, No. 05-cv-02434CBS, 2006 WL 1547310, at *4 (D. Colo. June 2, 2006)).) The Court finds no error in the
Magistrate Judge’s Recommendation to the extent it addresses each of Plaintiff’s alleged
constitutional violations and finds each claim upon which Plaintiff brings his case to lack a legal
and factual basis. Given Plaintiff’s vague assertions that he’s suffered some constitutional
violation as a result of the contracts he entered into – or as a result of the breach of those
contracts, allegations which the Magistrate Judge also determined where not properly pled and
cannot properly be brought (ECF No. 228, at 9–10) – the Magistrate Judge dealt with those
issues, and it cannot be determined that Plaintiff properly objected to those portions of the
Recommendation. Therefore, the Court again finds no reason to deviate from the Magistrate
Judge’s Recommendation.
In short, despite the Magistrate Judge’s unequivocal findings, and related case law,

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Plaintiff does not provide any clear reasoning as to how the Magistrate Judge was incorrect.
Instead, Plaintiff argues that he believes his rights have been violated through the use of these
contracts, but he provides no legal or acceptable factual basis for bringing these claims in federal
court. See Robey-Harcourt, 326 F.3d at 1143 (“Parties must support their arguments with legal
authority.”); Rios, 398 F.3d at 1206 n.3 (same); Bronson, 500 F.3d at 1105 (cursory arguments,
without supporting analysis and case law, are waived); Birch, 812 F.3d at 1249 (court may
decline to consider argument which is unsupported and inadequately briefed). Because Plaintiff
has failed to provide a factual or legal bases on which this Court can conclude the Magistrate
Judge’s Recommendation is incorrect on the law, the facts, or both, the Court adopts the
Recommendation in its entirety.
IV.

CONCLUSION
Based on the foregoing, it is ORDERED
(1)

That the Court OVERRULES Plaintiff’s Objection (ECF No. 229);

(2)

That the Court ACCEPTS the Magistrate Judge’s Recommendation in its entirety
(ECF No. 228);

(3)

That Plaintiff’s claims seeking monetary relief against individual Defendants in
their official capacities are DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction;

(4)

That Plaintiff’s declaratory and injunctive relief claims against Defendant
Lobanov-Rostovksy are DISMISSED WITHOUT PREJUDICE;

(5)

That the remainder of Plaintiff’s Fourth Amended Complaint is DISMISSED
WITH PREJUDICE as provided herein;

(6)

That Plaintiff’s request to further amend the Fourth Amended Complaint is

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DENIED;
(7)

That Defendants are AWARDED their costs, to be taxed by the Clerk of the Court
pursuant to Fed. R. Civ. P.54(d)(1) and D.C.COLO.LCivR 54.1;

(8)

That the Clerk shall close the case.

DATED this 30th day of March, 2020.
BY THE COURT:

___________________________________
RAYMOND P. MOORE
United States District Judge

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