Vreeland v. Jacobson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 1:20-cv-02420-PAB-SKC
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
JARED POLIS, et al.,
Defendants.
ORDER
This matter is before the Court on Defendants’ Motion to Dismiss [Docket No. 79].
Plaintiff filed a response. Docket No. 103. The Court has jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
I. BACKGROUND
Plaintiff Delmart Vreeland initiated this case on August 12, 2020, asserting numerous
claims against sixteen defendants based on events dating back to the beginning of his
incarceration in the Colorado Department of Corrections (“CDOC”) in 2008. Docket No.
1. Plaintiff alleges that he has, at various times, acted as a confidential informant for the
CDOC Inspector General’s Office and other law enforcement agencies gathering
information about the criminal activities of other incarcerated persons and CDOC staff
members. Id. at 8, 9, 14-15, ¶¶ 5, 8-9, 34-36. In exchange for this information, plaintiff
alleges he was promised he could keep his computer tablet and would remain at
Arkansas Valley Correctional Facility (“AVCF”) until his parole. Id. at 38.
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In alleged retaliation for plaintiff exercising his right to file grievances and lawsuits,
including suits filed in this Court, certain defendants began taking adverse actions
against him. See id. at 8, 17, 19, 20-21, 25, 27, 28-29, ¶¶ 3, 44, 51-52, 55-58, 77, 89.
These acts included changing plaintiff’s date of parole eligibility, transferring him to
seven different facilities in seventy-two days, seizing plaintiff’s computer tablet and other
legal materials, placing plaintiff at facilities with prisoners who want to harm or kill
plaintiff, and transferring plaintiff to facilities with high rates of COVID-19. Id. at 28-29,
35.
Plaintiff names the following defendants: Jared Polis, governor of the State of
Colorado (“Governor Polis”); Philip J. Weiser, Attorney General of the State of Colorado
(“Weiser”); Cole Woodward, Assistant Attorney General (“Woodward”); William V. Allen,
Assistant Attorney General (“Allen”); Jennifer S. Huss, Assistant Attorney General
(“Jennifer Huss”); Robert C. Huss former Assistant Attorney General (“Robert Huss”);
Dean Williams, executive director Colorado Department of Corrections (“Williams”);
“The Current Inspector General of CDOC” (“Daigle”);1 Jay Kirby, the former inspector
general Colorado Department of Corrections (“Kirby”); Adrienne Jacobson, litigation
coordinator Colorado Department of Corrections (“Jacobson”);2 “Director of Offender
Services Colorado Department of Corrections” (“Dauffenbach”);3 Mary Carlson, time
1 Defendants identify the current Inspector General of the Colorado Department of
Corrections as Sherrie Daigle. Docket No. 79 at 1. Plaintiff uses “Daigle” in his
response to defendants’ motion. See, e.g., Docket No. 103 at 27. For clarity, the Court
will also use Daigle.
2 Defendants state that plaintiff misnames Adrienne Sanchez as Adrienne Jacobson.
Docket No. 79 at 1. The Court will use the name plaintiff uses in the complaint for
clarity.
3 Defendants identify the current Director of Offender Services for the Colorado
Department of Corrections as Scott Dauffenbach. Docket No. 79 at 1. Plaintiff accepts
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computation manager Colorado Department of Corrections (“Carlson”); Lauren Rivas,
therapist, Colorado Department of Corrections (“Rivas”); L. Maynes-Cortez, case
manager Colorado Department of Corrections FCF (“Maynes-Cortez”); “James Moore
(6360) Colorado Department of Corrections FCF” (“Moore”); and Officer Gillespie,
Colorado Department of Corrections FCF Property (“Gillespie”). Id. at 1. Plaintiff
asserts nine claims: Claim One, retaliation for engaging in protected conduct in violation
of the First Amendment; Claim Two, violation of Fourth Amendment; Claim Three,
“conspiracy with Eighth Amen[dmen]t violations;” Claim Four, deliberate indifference to
life safety and mental health; Claim Five, violation of duty to protect and & equal
treatment of law; Claim Six, violation of Eighth Amendment; Claim Seven, violation of
access to courts; Claim Eight, violation of Eighth Amendment failure to protect; and
Claim Nine, breach of contract.4 Id. at 28-38.
Defendants5 have moved for dismissal of plaintiff’s claims in their entirety based on
failure to state a claim, absolute immunity, and qualified immunity. Docket No. 79 at 3,
7-8, 16-17. Plaintiff filed a response. Docket No. 103.
II. STANDARDS OF REVIEW
A. Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege enough
this in his response. See, e.g., Docket No. 103 at 27.
4 The Court construes plaintiff’s filings liberally because he is not represented by
counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). 	However, the Court will not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110.
5 Lauren Rivas has not been served and does not join the motion of the other
defendants. Docket No. 79 at 2 n.1. The Court will use “defendants” to refer to all the
defendants except Lauren Rivas.
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factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, (2007)). If a complaint's allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Id. at 1191 (quotations omitted). Thus, even
though modern rules of pleading are somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008) (citation omitted).
B. Absolute Immunity
“An absolute immunity defeats a suit at the outset, so long as the official's actions
were within the scope of immunity.” Imbler v. Pachtman, 424 U.S. 409, 419 n.13
(1976). Defendant bears the burden of establishing that he is entitled to absolute
immunity. Benavidez v. Howard, 931 F.3d 1225, 1229 (10th Cir. 2019). The Tenth
Circuit has “recognized absolute immunity as extending to ‘government lawyers
involved in civil proceedings.’” Id. (quoting Robins v. Volkswagenwerk AG, 940 F.2d
1369, 1373 n.4 (10th Cir. 1991)). A court is to examine whether the action of the
defendant is within the claimed immunity, not whether the status or office of the
defendant confers immunity. PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1195 (10th
Cir. 2010).
C. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
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officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge does not have a heightened pleading standard. Currier v. Doran,
242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). When a defendant raises the defense of qualified immunity, a “plaintiff
carries a two-part burden to show: (1) that the defendant’s actions violated a federal
constitutional or statutory right, and, if so, (2) that the right was clearly established at the
time of the defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th
Cir. 2017) (internal quotation marks omitted). Thus, to survive a motion to dismiss
under Rule 12(b)(6) “where a qualified immunity defense is implicated, the plaintiff ‘must
allege facts sufficient to show (assuming they are true) that the defendants plausibly
violated their constitutional rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D.
Colo. 2017) (quoting Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d
1242, 1249 (10th Cir. 2008)).
III. ANALYSIS
Defendants move for dismissal of each claim in this case. Docket No. 79 at 3.
Defendants raise several arguments that individual defendants should be dismissed
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from this lawsuit, id. at 9-18, followed by arguments that individual claims or portions of
claims by plaintiff should be dismissed as to every defendant, id. at 18-45. For clarity,
the Court will address each argument in turn beginning with arguments that address
individual defendants and groups of defendants.
A. Governor Jared Polis
In his complaint, plaintiff alleges Governor Polis and several other defendants “were
all made aware . . . by letter, email, telephone and face to face conversations of
[plaintiff’s] work as [an] informant, law suits [sic], grievances,” and the retaliation he
allegedly experienced because of them. Docket No. 1 at 24-25, ¶ 74. He further
alleges Governor Polis and the other defendants “subjected Plaintiff to Eighth
Amendment violations when they caused or allowed Plaintiff. . . to be transferred to a
max security. . . prison and to be placed in the same housing unit as the very gang
members [sic] whom sworn to murder Plaintiff.” Id. at 33. Plaintiff argues Governor
Polis had a “duty to protect Plaintiff from the acts complained of in [his] complaint.” Id.
The Court agrees with Governor Polis that the complaint fails to plausibly allege his
personal participation.
Personal participation is an essential allegation in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To maintain a § 1983 claim, a plaintiff
must allege facts showing the defendant was “personally involved in the decisions
leading to Plaintiff’s mistreatment.” Escobar v. Reid, 668 F. Supp. 2d 1260, 1290 (D.
Colo. 2009). A plaintiff must establish an affirmative link between the alleged
constitutional violation and each defendant’s participation, control, or direction. Serna v.
Colo. Dept. of Corr., 455 F.3d 1146, 1152-53 (10th Cir. 2006). “Over time, the
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‘affirmative link’ language has evolved to require three elements: (1) personal
involvement, (2) sufficient causal connection, and (3) culpable state of mind.” Laurienti
v. Bicha, No. 14-cv-02592-NYW, 2016 WL 496047, at *12 (D. Colo. Feb. 9, 2016). “It is
particularly important that plaintiffs make clear exactly who is alleged to have done what
to whom, as distinguished from collective allegations.” Oakley v. Williams, No. 21-cv-
01763-CMA-NYW, 2022 WL 266766, at *14 (D. Colo. Jan. 28, 2022) (quoting Pahls v.
Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)), report and recommendation adopted,
No. 21-cv-01763-CMA-NYW, 2022 WL 540656 (D. Colo. Feb. 23, 2022).
As it is relevant to Governor Polis, plaintiff has only pled vague, conclusory, and
collective allegations against him. Although plaintiff alleges Governor Polis and the
other defendants were informed of the salient information by various communication
methods, there are no factual details (such as who contacted whom, when these
communications were made, and what specifically was said) to make these allegations
anything other than merely consistent with a theory of liability. See Docket No. 1 at 24-
25, ¶ 74. Plaintiff’s allegations regarding Governor Polis allowing or causing him to be
transferred fare no better because they, too, are collective allegations that make no
attempt to distinguish between the defendants. Id. at 33. Finally, plaintiff’s assertion
that Governor Polis had a duty to protect him, id., is simply a legal conclusion
masquerading as a fact.6 Thus, the Court will dismiss Governor Polis from this lawsuit.
6 Plaintiff has offered no legal theory as to how Governor Polis would have the authority
to prevent or cause a prison transfer. 	The authority to transfer incarcerated persons is
vested solely in the Executive Director of the Colorado Department of Corrections. Colo.
Rev. Stat. §§ 16-11-308(5); 17-1-105(1)(a).
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B. Attorney General Defendants
In addition to Colorado Attorney General Weiser, plaintiff names current and former
Assistant Attorneys General Cole Woodward, William Allen, Jennifer Huss, and Robert
Huss (collectively the “AG Defendants”) as defendants. Defendants argue, without
individually addressing each AG Defendant, that each AG Defendant is entitled to
absolute immunity for all of plaintiff’s claims against them and that plaintiff fails to allege
the personal participation of each AG Defendant.7 See Docket No. 79 at 13-19.
Plaintiff’s response takes issue with defendants’ articulation of plaintiff’s claims and
allegations, frequently stating defendants identify nonexistent allegations, but does not
individually address the personal participation of any of the AG Defendants. See
Docket No. 103 at 13-27.
1. Absolute Immunity
Defendants argue that the AG Defendants are entitled to absolute immunity for
actions that are considered advocacy including “[a]n attorney filing pleading with a
court . . ., presenting arguments about contested matters, [and] providing a client with
legal analysis and opinion regarding a client’s rights or obligations.” Docket No. 79 at
17. Plaintiff responds that defendants have not carried their burden of establishing
absolute immunity because defendants fail to specifically identify the actions taken by
each AG defendant that were protected actions. Docket No. 103 at 23.
Under the doctrine of prosecutorial immunity, government attorneys “are absolutely
7 Defendants also argue that plaintiff fails to state plausible claims in support of their
argument seeking to dismiss the AG Defendants. Docket No. 79 at 13-15. Because
these arguments address plaintiff’s claims broadly, the Court will address these
arguments and plaintiff’s responses in the portion of the order dealing with each claim.
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immune from civil liability for damages for acts undertaken . . . in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of [their] role
as [advocates] for the State.” Stein v. Disciplinary Bd. Of Sup. Ct. of N.M., 520 F.3d
1183, 1193 (10th Cir. 2008) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993)). While this doctrine was traditionally limited to the actions of government
prosecutors in criminal proceedings, see Mink v. Suthers, 482 F.3d 1244, 1258 (10th
Cir. 2007) (noting that, “[t]raditionally, the doctrine [of prosecutorial immunity] did not
apply to other public officials” and was “limited to suits for malicious prosecution and
defamation”), courts have extended it to “bar officials charged with the duties of
investigating, drawing up, and presenting cases involving attorney discipline,” see, e.g.,
Stein, 520 F.3d at 1193 (internal quotation marks omitted) (citing Clulow v. Oklahoma,
700 F.2d 1291, 1298 (10th Cir. 1983)), and government defense attorneys involved in
civil litigation. See, e.g., Benavidez v. Howard, 931 F.3d 1225, 1231-32 (10th Cir. 2019)
(holding that absolute immunity barred claims based on acts taken by government
defense counsel in civil case). The “determinative factor is advocacy.” Mink, 482 F.3d
at 1261 (internal quotation marks and citation omitted). Thus, “the more distant a
function is from the judicial process, the less likely absolute immunity will attach.” Id.
(internal quotation marks and citation omitted). The Tenth Circuit summarized “the rule
of absolute immunity as applied to government attorneys” as follows:
A government attorney’s administrative duties and those investigatory
functions that do not closely relate to an advocate’s preparation for judicial
proceedings are not entitled to absolute immunity. Rather, absolute
immunity shields those acts undertaken by a government attorney in
preparation for judicial proceedings and which occur in the course of his or
her role as an advocate for the government.
Benavidez, 931 F.3d at 1231 (citing Buckley, 509 U.S. at 273; Mink, 482 F.3d at 1261).
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The parties correctly identify that the Court should examine “the nature of the function
performed, not the identity of the actor who performed it.” Id. at 1230 (quoting Buckley,
509 U.S. at 268). The Tenth Circuit has ruled that “[p]ublic officials who seek absolute
immunity, i.e., an absolute exemption from personal liability for allegedly
unconstitutional conduct, bear the burden of showing that public policy requires an
exemption.” Id. at 1229.
Plaintiff argues defendants must justify each individual action alleged in the
complaint, separated to address each of plaintiff’s claims individually. Docket No. 103
at 22. Defendants do not address each defendant’s actions individually and instead
identify actions that they argue qualify for absolute immunity. See Docket No. 79 at 17.
Plaintiff argues that absolute immunity does not apply here because defendants’
argument “made in generic terms” fails to “address each claim made against each
attorney and to specifically state how the specific conduct complained of was covered
by absolute immunity.” Docket No. 103 at 22-24. In support, plaintiff cites an order
from Magistrate Judge Crews in one of plaintiff’s other cases that ruled that spreading
word to CDOC officials to stop assistance to plaintiff and preventing plaintiff’s transfer
between facilities were not actions taken in preparation for a judicial proceeding and
were not entitled to absolute immunity. Id. at 23 (citing Vreeland v. Huss, No. 18-cv-
00303-PAB-SKC, 2021 WL 954726, at *5 (D. Colo. Feb. 15, 2021), report and
recommendation accepted, 2021 WL 1171670, at *9 (D. Colo. March 29, 2021)). Huss,
however, accepted that defendant was shielded by absolute immunity “for his conduct in
advising his client not to settle.” 2021 WL 1171670, at *3 n.1. Plaintiff argues that
defendants’ failure to identify claims and actions that absolute immunity applies to
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dooms defendants’ arguments in this case. Docket No. 103 at 23. The Court
disagrees.
Much of the complaint alleges that defendants took action in tandem, without
explaining which defendant took which action. See, e.g., Docket No. 1 at 28-29.
Although defendants have the burden of establishing absolute immunity based on
specific actions, defendants cannot be more specific than the complaint in identifying
actions each defendant allegedly took. Like in Huss, absolute immunity is not granted
broadly to actors and instead applied to specific actions. Here, defendants identify
specific actions that support absolute immunity. See Docket No. 79 at 17, 12. The
Court does not agree with plaintiff that the burden of establishing absolute immunity
requires defendants to examine each defendant’s action individually as such action
relates to each claim, given that some actions are alleged as being taken by groups of
defendants and the same action is involved in multiple claims. The Court will separately
address the actions each individual defendant is alleged to have taken considering
individual and group allegations to examine the specific actions defendants identify, but
decline to deny absolute immunity broadly on the basis of a lack of specificity from
defendants as plaintiff requests.
2. Personal Participation
Defendants argue each AG Defendant is entitled to qualified immunity on plaintiff’s
claims because plaintiff fails to allege each of the AG Defendants’ personal participation
in any violation of plaintiffs’ constitutional rights. Docket No. 79 at 11-13. Arguments
that an individual defendant was not personally involved in the violation of a plaintiff’s
rights are properly considered under the first prong of a qualified immunity analysis.
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See Buck v. City of Albuquerque, 549 F.3d 1269, 1279 (10th Cir. 2008). Although
neither plaintiff nor defendants perform a separate personal participation analysis for
each defendant, the Court will address the personal participation of each defendant
separately because “defendants’ entitlement to qualified immunity, turn[s] on an
individual assessment of each defendant's conduct and culpability.” Pahls, 718 F.3d at
1233. Additionally, for the purpose of assessing personal participation, the Court
assumes plaintiff alleges a cognizable constitutional violation.
3. Cole Woodward
Plaintiff brings Claims One, Four, and Seven against AG Defendant Woodward for
retaliation, deliberate indifference, and denial of access to the courts, all in violation of
plaintiff’s constitutional rights. Docket No. 1 at 28-29, 32-34, 35-37. Defendants argue
plaintiff’s claims against Woodward fail because plaintiff fails to allege Woodward’s
personal participation and because he is entitled to absolute immunity. Docket No. 79
at 13.
Plaintiff alleges Woodward “[w]as acting as Assistant A.G. when he violated Plaintiff’s
rights.” Docket No. 1 at 3. Plaintiff makes the following allegations involving
Woodward: certain defendants were “informed” of “lawsuits, grievances, retaliation,
altered parole date, [and] lies to the federal court by Defendants C. and J. Huss,
Woodward, Allen, and Jacobson,” id. at 24, ¶ 74; in response to the Court’s order in a
different case, “Defendants Weiser, Woodward, Jacobson, and Maynes-Cortez asserted
to the court in pleadings and sworn affidavits that Plaintiff was basically lying and that
he had access to law library [sic] and all of his legal materials,” id. at 25, ¶ 78;
Defendants Weiser, Woodward, Williams, and Jacobson provided the Court with a
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signed affidavit from an unidentified CDOC associate warden that included lies. Id. at
26, ¶ 86.8 None of the allegations involving Woodward allege he took any action as an
individual; each action is alleged to have been taken by a group of defendants including
Woodward.
Claim One, plaintiff’s retaliation claim, alleges “Defendant[s] Weiser, Woodward,
Williams, Jacobson and Gillespie retaliated against Plaintiff for engagin[g] in protected
conduct when they used a non stop [sic] 72 days 7 prison transfer status to review and
seize all of Plaintiff’s legal materials, law books, case files[,] and tablet computer, and
when they presented to the U.S. District Court . . . a pleading containing known
intentional lies asserting they did not know where any law books, or case files were
located.” Id. at 28. The retaliation claim does not specify which defendants are alleged
to have participated in the transfer and seizure plaintiff alleges and which defendants
submitted a pleading with lies. In the specific allegations surrounding plaintiff’s transfer
and seizure, plaintiff does not mention Woodward. See id. at 10-11, 17, ¶¶ 13-21, 42-
43. It appears Woodward is involved in plaintiff’s first claim based only on the allegation
that he submitted lies to the Court about plaintiff’s legal materials.
Defendants argue that “filing [a] pleading with a court” such as an affidavit is an
action protected by absolute immunity. Docket No. 79 at 12, 17, ¶ 4. The Court agrees.
The Tenth Circuit has ruled that “government defense attorney who, in the course of a
8 Plaintiff argues defendants mischaracterize this allegation because “nowhere in the
complaint does Plaintiff allege that anyone submitted any affidavit by any ‘warden’ to
anything.” Docket No. 103 at 18. The complaint alleges Woodward, among others,
responded to the Court by “sworn affidavit supplied by a CSP Associate Warden.”
Docket No. 1 at 26, ¶ 86. The basis for plaintiff’s argument that defendants improperly
characterize this statement of fact is unclear.
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civil adjudication, prepares a motion and arranges for the presentation of evidence on
the court record by way of affidavit in support of the motion, is absolutely immune from a
collateral § 1983 suit for damages based on the filing of such motion and affidavit.”
Benavidez, 931 F.3d at 1232. Plaintiff’s response emphasizes that “the defense failed
to explain how lying in sworn declarations . . . [is] covered by immunity of any kind,”
Docket No. 103 at 23, but an absolute immunity analysis “concentrates ‘on the conduct
for which immunity is claimed, not on the harm that the conduct may have caused or the
question whether it was lawful.’” Benavidez, 931 F.3d at 1232 (quoting Buckley, 509
U.S. at 271). Even if an affidavit contains lies, submitting an affidavit to the Court is
protected by absolute immunity. The Court finds Woodward is entitled to absolute
immunity on plaintiff’s retaliation claim and will grant defendants’ motion to dismiss
defendant Woodward on Claim One.
Claim Four, plaintiff’s deliberate indifference claim, alleges “Defendant[s] Polis,
Weiser, Woodward, Allen, J. Huss, R. Huss, Williams, [Daigle], Kirby, Jacobson,
[Dauffenbach], all had personal knowledge of Plaintiff’s acting as confidential informant”
and that each of those defendants subjected plaintiff to Eighth Amendment violations
“when they caused and or allowed” plaintiff to be transferred to a housing unit with gang
members who planned to murder plaintiff. Docket No. 1 at 33. It is unclear if absolute
immunity applies to Woodward for this claim because it is unclear what actions plaintiff
alleges Woodward took. Plaintiff alleges Woodward had a duty to plaintiff and knew he
was acting as a confidential informant, but plaintiff does not explain what action
Woodward took to allow or cause his transfer between facilities. Plaintiff’s fourth claim
against defendant Woodward is more appropriately addressed under qualified immunity
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analysis.
Where, as here, a violation is based on a government employee’s direction of other
employees, a plaintiff must establish an affirmative link between the alleged
constitutional violation and the defendant’s participation, control, or direction. Serna,
455 F.3d at 1152-53. Plaintiff “fails to isolate the allegedly unconstitutional acts” taken
by Woodward in relation to his deliberate indifference claim. Robbins, 519 F.3d at
1250. Because there are no allegations that Woodward took any actions to violate
plaintiff’s rights or support for the allegation that he caused plaintiff to be deprived of his
constitutional rights without directly participating in a violation, see Buck, 549 F.3d at
1279, Woodward is entitled to qualified immunity on plaintiff’s deliberate indifference
claim, and the Court will grant the portion of defendants’ motion that requests dismissal
of defendant Woodward from Claim Four of plaintiff’s complaint.
Plaintiff’s seventh claim for violation of access to courts alleges several defendants,
including Woodward, have hindered plaintiff’s valid claims by lying to the Court about
plaintiff’s access to law books and legal case files and about the reasons for plaintiff’s
transfer to a max security prison. Docket No. 1 at 36. In this claim, plaintiff alleges
specific submissions by Woodward and other defendants to the Court contained lies.
See id. This claim, like plaintiff’s retaliation claim, is also predicated on defendants
submitting court filings. Accordingly, for the same reasons that Woodward is entitled to
absolute immunity for plaintiff’s retaliation claim, he is entitled to absolute immunity for
plaintiff’s access to courts claim. Because each individual claim against Woodward is
dismissed, the Court will grant the portion of defendants’ motion to dismiss that seeks
dismissal of defendant Cole Woodward from this case.
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4. William Allen
Plaintiff brings Claims Four and Seven against AG Defendant Allen for deliberate
indifference and denial of access to the courts in violation of plaintiff’s constitutional
rights. Docket No. 1 at 32-34, 35-37. Plaintiff alleges Allen “[w]as acting as Assistant
A.G. when he violated Plaintiff’s rights.” Id. at 4. Plaintiff alleges defendants Weiser,
Allen, and Jacobson falsely asserted that plaintiff was ordered to undergo Sex Offender
Treatment in a court filing and that they used the theory to reject plaintiff’s offer of
settlement in a separate case.9 Id. at 18, ¶ 48.
Claim Four, plaintiff’s deliberate indifference claim against Allen, is predicated on
defendants allowing plaintiff to be placed in a housing unit with gang members who
intended to murder plaintiff. Id. at 33. Plaintiff does not allege Allen knew his transfers
between facilities were happening, that he ordered the transfers, or that he had any
power to stop them. See id. Plaintiff alleges he was told that defendants Daigle,
Dauffenbach, and Jacobson caused plaintiff’s transfer, without connecting those three
defendants to Allen. Id. at 20-21, ¶ 57. Plaintiff only alleges Allen “had personal
knowledge of Plaintiff’s acting as confidential informant.” Id. at 33. Plaintiff’s failure to
connect Allen in any way to the constitutional violation alleged in his Fourth Amendment
claim is insufficient to put Allen on notice of what he personally is alleged to have done
to violate plaintiff’s rights. Allen is entitled to qualified immunity on plaintiff’s deliberate
9 Plaintiff alleges he sought sanctions, prosecuted Allen in federal court, and filed an
official complaint against Allen with defendants Daigle and Kirby for “felony perjury.”
Docket No. 1 at 18, ¶ 50. The complaint alleges further “[o]ne week later Plaintiff was
told to either drop his attempt to prosecute Allen and Jacobson [sic], to drop and stop
his constant grievances and lawsuits, or face severe consequences.” Id. at 19, ¶ 51.
The complaint does not indicate who made this threat or that Allen had any connection
to whoever made the threat. See id.
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indifference claim based on plaintiff’s failure to allege any facts in support of Allen’s
participation in the deprivation of plaintiff’s constitutional rights.
Claim Seven, plaintiff’s access to courts claim, alleges that Allen submitted false
information to the Court stating plaintiff was ordered to undergo sex offender treatment.
Id. at 36. Plaintiff alleges he filed a motion requesting an injunction ordering CDOC to
correct his offender classification code and to transfer plaintiff to a new facility, id. at 17-
18, ¶ 47; Weiser, Allen, and Jacobson submitted a response to plaintiff’s motion for an
injunction that incorrectly stated Jacobson knew plaintiff was ordered to undergo sex
offender treatment, admitted that “they used this same theory in order to reject the offer
to settle” in a different case, and attached an affidavit by Jacobson swearing that
Jacobson was in possession of an order stating plaintiff was to undergo sex offender
therapy. Id. at 18, ¶ 48.
The submission of filings in a case by a government attorney is an action protected
by absolute immunity. Benavidez, 931 F.3d at 1232. Advising a client to settle is an
action protected by absolute immunity. Huss, 2021 WL 1171670, at *3 n.1. Plaintiff
does not allege Allen took any action beyond advising a client to settle and filing
documents. See Docket No. 1 at 35-37. Allen is entitled to absolute immunity for Claim
Seven, plaintiff’s access to courts claim. Because each individual claim against Allen is
dismissed, the Court will grant the portion of defendants motion that seeks dismissal of
Allen from this case.
5. Philip Weiser
Plaintiff brings claims for retaliation in Claim One, deliberate indifference in Claim
Four, and violation of access to courts in Claim Seven against Weiser. Id. at 28-29, 32-
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34, 35-37. Plaintiff alleges that Weiser was the Attorney General of Colorado at the
time plaintiff filed his complaint. Id. at 3. The complaint makes the following allegations
surrounding Weiser: Weiser submitted a response to a motion plaintiff made in a
separate case with information that Weiser knew was false, id. at 18, ¶ 48; in February
2020, Weiser was made aware of plaintiff’s service as an informant and his transfer
between facilities, and Weiser, among others, stated “they would make it right,” id. at
24-25, ¶ 74; the same group of defendants, including Weiser, “took no action at all and
allowed Plaintiff to sit in a 24 hour lockdown room” from February 2020 until April 2020,
id. at 25, ¶ 75; in response to an order from this Court, Weiser asserted plaintiff was
lying and that he had access to a law library and legal materials, impeding plaintiff’s
legal claims, id., ¶¶ 78-79; in response to plaintiff’s motion for a protective order, Weiser
filed an opposition to plaintiff’s motion that included lies and an affidavit containing lies,
id. at 26, ¶ 86; and “Defendant[s] Polis and Weiser designed a scheme to grant early
release to prisoners. Polis and Weiser refused any release to any non-violent sex
offender and singled them out.” Id. at 27, ¶ 90.
Claim One, plaintiff’s retaliation claim, alleges Weiser, among others, retaliated
against plaintiff by using a transfer to seize plaintiff’s legal materials and by filing a
pleading containing lies in this Court. Id. at 28. Plaintiff’s allegations about filing legal
materials are no different from the allegations that Woodward and Allen filed documents
with intentional lies; plaintiff identifies action taken in advocacy as part of the judicial
process, and the Court finds Weiser is entitled to absolute immunity for the same
reasons. To the extent plaintiff’s allegations in his retaliation claim address a failure to
prevent his transfer between facilities, the Court finds qualified immunity applies. Like
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the allegations against Woodward, plaintiff does not allege Weiser caused his transfer
or that Weiser set in motion events that caused his transfer. Plaintiff alleges Weiser
was informed of plaintiff’s transfers after the fact, id. at 24, ¶ 73, and that he was part of
a group of defendants that promised to make it right, id. at 24-25, ¶ 74, but knowledge
of the transfers after they took place is not the same as alleging Weiser caused the
transfers or allowed them. Plaintiff has not sufficiently alleged Weiser’s personal
participation in plaintiff’s transfer between facilities. The Court will dismiss Claim One of
plaintiff’s complaint against Weiser.
Claim Four, plaintiff’s deliberate indifference claim, alleges Weiser had personal
knowledge that plaintiff was acting as a confidential informant for “HIM” or “HIS
OFFICE,” that he had a duty to provide reasonable safety for plaintiff, that he allowed
plaintiff “to be subjected to the transfers and conduct of all other Defendants” that
plaintiff alleges in the complaint, and that he caused plaintiff “emotional distress,
seizures, injury to face and head, blood pressure, fear and worry” based on a failure to
act. Docket No. 1 at 33-34. Nothing in this claim states how Weiser could have acted
to prevent harm to plaintiff caused by the transfers. As with allegations regarding
Governor Polis, plaintiff provides no facts showing how Weiser played any role in
plaintiff’s transfer. Plaintiff claims that, after Weiser promised to “make it right,” Weiser
took no action and allowed plaintiff to sit in a 24 hour lockdown room for two months.
Id. at 25, ¶ 75. However, without advance knowledge of plaintiff’s transfer, plaintiff does
not explain or allege how Weiser caused his transfers or could have reversed his
transfer. Id. at 24-25, ¶¶ 74-76. Based on plaintiff’s failure to show Weiser’s personal
participation in plaintiff’s deliberate indifference claim, the Court will grant dismiss Count
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Four against Weiser with prejudice.
Claim Seven, plaintiff’s claim for violation of access to the courts, only alleges that
Weiser, among others, lied to the Court repeatedly. Id. at 36. None of plaintiff’s
allegations state Weiser took any action alone or outside of the action Woodward and
Allen are alleged to have taken. See id. Weiser, like Woodward and Allen, is entitled to
absolute immunity for any filings he submitted in a judicial proceeding and for advising a
client on a settlement. Because plaintiff does not allege any actions Weiser took in
violation of his right to access courts that would not be covered by absolute immunity,
the Court will dismiss Claim Seven against Weiser. Each individual claim having been
dismissed, the Court will grant the portion of plaintiff’s motion seeking dismissal of
Weiser from this case.
6. Jennifer Huss
Plaintiff brings Claim One for retaliation, Claim Three for Conspiracy, Claim Four for
deliberate indifference, and Claim Six for violation of Eighth Amendment against
Jennifer Huss.10 Id. at 28-29, 30-35. The complaint alleges Jennifer Huss “[w]as acting
as Assistant A.G. when she violated plaintiff’s rights.” Id. at 4. Plaintiff alleges that
Jennifer Huss previously placed calls and sent emails that prevented plaintiff’s transfer
to a lower-level facility to prevent plaintiff from entering into a settlement agreement with
the Attorney General’s Office, id. at 17, ¶¶ 42-45; on December 26, 2019, Jennifer Huss
10 Plaintiff brings Claim Six for deliberate indifference against “S. Huss” based on
being exposed to COVID-19 as result of his “retaliatory transfer.” Docket No. 1 at 35.
Defendants assume this refers to Jennifer Huss, see Docket No. 79 at 13, and plaintiff
does not respond to that assertion in response to defendants’ motion. See Docket No.
103 at 50. The Court will assume defendants are correct and that Claim Six is made
against Jennifer Huss.
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conspired with her husband Robert Huss, Jacobson, and Carlson to harm plaintiff by
changing his parole eligibility date from 2044 to 2144, id. at 19, ¶ 52; and that Jennifer
Huss was aware that people who wanted plaintiff dead for informing on them were
housed at Crowley, Limon, Sterling, Fremont, Buena Vista, and CSP. Id. at 20, ¶ 54.
Defendants do not argue that absolute immunity applies to the actions Jennifer Huss is
alleged to have taken, see Docket No. 79 at 12, 17, and the Court will decline to
evaluate whether she is entitled to absolute immunity. Instead, the Court will evaluate
defendants’ argument that plaintiff fails to allege specific facts that support Jennifer
Huss’ personal participation in plaintiffs’ claims.
Claim One for retaliation alleges Jennifer Huss retaliated against plaintiff for
grievances, lawsuits, and complaints to law enforcement officials that plaintiff filed
against Jennifer Huss, that Jennifer Huss caused his transfer to seven facilities in
seventy-two days, and that Jennifer Huss retaliated against plaintiff for his lawsuit
against her by altering plaintiff’s parole eligibility date. Docket No. 1 at 28-29. The
Court previously ruled that allegations that Jennifer Huss called CDOC officials to
prevent plaintiff’s transfer to a lower-level facility sufficiently alleged a First Amendment
retaliation claim. See Huss, 2021 WL 1171670, at *4. In this case, plaintiff mentions
the phone calls placed to prevent his transfer to a lower-level facility that formed the
basis of the claim in Huss, Docket No. 1 at 17, ¶¶ 41-45, but bases his retaliation claim
on a different incident, namely, his transfer out of AVCF in February 2020 and the six
transfers that followed. Id. at 20-26, 28-29, ¶¶ 55-80. Plaintiff alleges Jennifer Huss
conspired with Robert Huss, Jacobson, and Carlson “to harm Plaintiff for engaging in
protected conduct” by altering his parole eligibility date (“PED”) and separately alleges
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he was told Daigle, Dauffenbach, and Jacobson overrode the stop to his transfer out of
AVCF and ordered that he be sent to Limon Correctional Facility “LCF.” Id. at 19-21,
¶¶ 52, 57. Plaintiff does not connect to his seventy-two day transfer beginning in
February 2020 to the previous impediment of his transfer to a lower-level facility or the
conspiracy to alter his parole eligibility date (“PED”) that is at issue in his retaliation
claim.
Defendants argue plaintiff implausibly alleges that Jennifer Huss had a role in
plaintiff’s transfer, analogizing to Jenner v. Brightwell, 14-cv-00916-RBJ-KMT, 2016 WL
1248663, at *4–5 (D. Colo. Mar. 29, 2016). Docket No. 79 at 15. In Jenner, a prisoner
alleged that defendant, an assistant attorney general, played a role in an allegedly
retaliatory transfer between facilities because she knew plaintiff was going to be
transferred and she filed a motion to dismiss relying on plaintiff’s transfer on the same
day his transfer was processed, after it had previously been delayed. 2016 WL
1248663, at *1. The court found that knowledge of the transfer and temporal proximity
of a filed motion were insufficient to allege an attorney general participated in a transfer
because neither plausibly alleged the defendant’s personal involvement. Id. at *5.
Defendants argue that plaintiff similarly fails to connect Jennifer Huss to his transfers
beginning in February 2020. Docket No. 79 at 20. Plaintiff responds that the complaint
must be taken as a whole to understand plaintiff’s claims. Docket No. 103 at 28.
Plaintiff alleges Jennifer Huss “caused” the transfers, Docket No. 1 at 28, but beyond
alleging that she previously engaged in a campaign to prevent his transfer to a lower-
level facility and agreed to alter his PED in 2019, plaintiff does not allege that Jennifer
Huss took retaliatory actions after 2019. Even considering the complaint as a whole,
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there are no allegations connecting Jennifer Huss to plaintiff’s transfers. In Claim
Three, plaintiff’s conspiracy claim, plaintiff alleges Jennifer Huss, among other
defendants, “designed a scheme to transfer Plaintiff away from AVCF,” that these
defendants “discussed on telephone and email the seizure of all of Plaintiff’s legal
materials,” threatened plaintiff’s witnesses who are CDOC employees, and “knowingly
ordered Plaintiff to be transferred from AVCF to Limon,” but these assertions are not
supported by specific facts. Id. at 30-31. Plaintiff’s factual allegations on his transfers in
February 2020 do not mention Jennifer Huss, id. at 20-21, ¶¶ 55-58, his allegations
regarding emails Jennifer Huss sent do not involve his February 2020 transfers, id. at
17, ¶¶ 42-44, and his allegations on the seizure of his legal materials only specify that
Gillespie was involved, id. at 25, ¶ 76, who Jennifer Huss was not alleged to have
conspired with. Id. at 19, ¶ 52.
Plaintiff has not alleged that Jennifer Huss participated in his transfers beginning in
February 2020. Plaintiff may not rely on allegations of the conduct by other defendants
or groups of defendants to allege a claim against Jennifer Huss. Although the
“occasional use of collective references to ‘the Defendants’ . . . does not automatically
defeat” a § 1983 claim, Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir. 2022), in order
to survive a motion to dismiss, “plaintiff must ‘make clear exactly who is alleged to have
done what to whom, to provide each individual with fair notice as to the basis of the
claims against him or her, as distinguished from collective allegations against the
state.’” Id. (quoting Robbins, 519 F.3d at 1250). Plaintiff has not alleged that Jennifer
Huss’ actions to prevent a previous transfer to a lower-level facility are connected to his
transfer in February 2020 or alleged any actions Jennifer Huss took that caused
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plaintiff’s transfers. The Court will dismiss this portion of plaintiff’s retaliation claim
against Jennifer Huss.
Claim One alleges another theory of retaliation, namely, that Jennifer Huss retaliated
against plaintiff by altering his parole eligibility date. Docket No. 1 at 28. The
allegations in the complaint surrounding a change to plaintiff’s PED are: in 2014, CDOC
corrected an error in plaintiff’s sentence making his PED 2026, id. at 8; “in 2016,
Plaintiff’s parole release date was 2024,” id. at 13, ¶ 29; on December 26, 2019,
Jennifer Huss conspired with Robert Huss, Jacobson, and Carlson and illegally altered
plaintiff’s PED from 2024 to 2144, id. at 19, ¶ 52; law enforcement agreed plaintiff’s
PED was illegally altered, id.; and “Defendant[s] J. Huss and M. Carlson retaliated
against Plaintiff for engaging in protected conduct, and for suing Carlson, J. Huss, and
her husband, [Robert] Huss, and illegally, without notice or due process, altered
Plaintiff’s parole eligibility date from 2024 to 2144, adding 119 years to the PED, and
even adding the years already served as if they had never been served.” Id. at 28.
None of these allegations explain what steps Jennifer Huss took to alter plaintiff’s PED
outside of conspiring with other defendants. Even if Jennifer Huss shared a
conspiratorial objective of altering plaintiff’s parole date, there are no specific factual
allegations supporting her personal participation in changing plaintiff’s PED; plaintiff
does not plead any allegations of Jennifer Huss’ “‘concerted action’ taken ‘to advance
th[e] goal’” of the conspiracy. Bledsoe, 53 F.4th at 609 (quoting Janny v. Gamez, 8
F.4th 883, 919 (10th Cir. 2021) (quoting Sigmon v. CommunityCare HMO, Inc., 234
F.3d 1121, 1126 (10th Cir. 2000))). The Court will grant defendants’ motion and dismiss
the portion of Claim One against Jennifer Huss that is predicated on altering plaintiff’s
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PED.
Claim Three alleges Jennifer Huss conspired to cause plaintiff’s transfers between
facilities. Docket No. 1 at 30-32. The allegations in Claim Three surrounding Jennifer
Huss’ actions causing plaintiff’s transfer are not different from Claim One, except that
plaintiff alleges that his transfers resulted in cruel and unusual punishment. Id. at 31.
The Court will dismiss Claim Three against Jennifer Huss on the basis of qualified
immunity for the same reasons as Claim One, namely, that none of the actions plaintiff
alleges she took are connected to his transfers in 2020.
Claim Four alleges Jennifer Huss violated plaintiff’s Eighth Amendment rights by
causing him to be transferred to a housing unit with gang members plaintiff had
informed on. Id. at 32-33. Plaintiff alleges a failure to prevent this transfer constituted
deliberate indifference by exposing him to risk of harm. Id. at 34. In this claim, plaintiff
alleges Jennifer Huss has “a duty owed to Plaintiff as [a] state law enforcement official[]”
and that she “engaged in conduct that actually placed Plai[n]tiff in extreme danger just
because Plaintiff has sued [her]” and that Jennifer Huss knew “Plaintiff’s life was in
danger” because he acted as an informant and was being transferred to a unit with
gang members who swore to murder plaintiff. Id. at 33-34. Plaintiff identifies several
defendants who were informed of plaintiff’s transfers beginning in February 2020, but
does not include Jennifer Huss in that group. Id. at 24, ¶ 74. His only allegation linking
Jennifer Huss to his deliberate indifference claim is his claim that she caused his
transfer. Id. at 33-34. For the reasons discussed above, plaintiff has not sufficiently
alleged Jennifer Huss’ personal participation in his transfer between facilities. Because
Claim Four alleges Jennifer Huss participated by causing plaintiff to be transferred, the
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Court will dismiss Claim Four against Jennifer Huss based on a failure to allege her
personal participation in the alleged constitutional violation.
Claim Six alleges that plaintiff was “exposed to infectious disease by CDOC agents”
and that Jennifer Huss caused this exposure because it would not have happened but
for plaintiff’s transfer out of AVCF. Id. at 35. This claim will also be dismissed against
Jennifer Huss based on plaintiff’s failure to allege Jennifer Huss’ participation in his
transfer out of AVCF. As each individual claim is dismissed, the Court will grant the
portion of defendants’ motion seeking to dismiss Jennifer Huss.
7. Robert Huss
Plaintiff brings Claim Three for conspiracy with Eighth Amendment violations, Claim
Four for deliberate indifference, and Claim Seven for violation of access to courts
against Robert Huss. Docket No. 1 at 30-34, 35-37. The complaint alleges Robert
Huss “[w]as acting as assistant A.G. when he violated Plaintiff’s rights.” Id. at 4.
Plaintiff alleges Robert Huss made telephone calls and sent emails to prevent CDOC
from accepting a settlement offer from plaintiff, id. at 17, ¶ 42; stated at a hearing that
he withheld names, evidence, and information from the Court and plaintiff to prevent
plaintiff from suing his wife Jennifer Huss, id., ¶ 43; made phone calls that caused
CDOC to refuse to transfer plaintiff to a lower-level facility or to correct his offender
code, id., ¶ 44; conspired in December 2019 to harm plaintiff for engaging in the
protected conduct of refusing to drop cases, grievances, and criminal complaints by
altering his parole eligibility date. Id. at 19, ¶ 52.
Claim Three, plaintiff’s claim for conspiracy with Eighth Amendment violations,
alleges that Jennifer Huss, Robert Huss, Daigle, Jacobson, and Dauffenbach discussed
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a plan to transfer plaintiff away from AVCF to a facility where plaintiff’s life would be in
danger in order to stop plaintiff from receiving help in his prosecution of state actors, id.
at 30-32; discussed a plan to seize plaintiff’s legal materials, threatened plaintiff’s
witnesses in other cases with termination from their CDOC jobs and a loss of their
pension if they contacted plaintiff, ordered that plaintiff be transferred to a housing unit
with gang members who defendants were aware wanted plaintiff dead, told CDOC and
State of Colorado agents not to discuss the dangers inherent in transferring plaintiff and
threatened to fire them if they helped plaintiff, and altered paperwork to attempt to
transfer plaintiff to a facility plaintiff had previously been removed from due to risk of his
death by gang members. Id. None of these allegations specify which of the Claim
Three defendants took the alleged actions. See id.
Defendants argue Robert Huss is entitled to qualified immunity and absolute
immunity. Docket No. 79 at 15-18. Regarding plaintiff’s conspiracy claim, none of the
allegations involving Robert Huss allege he took any actions related to his work in a
judicial proceeding. Although defendants claim the AG Defendants are entitled to “full
and absolute immunity from Plaintiff’s claims,” defendants’ arguments regarding
absolute immunity do not address any of the actions described in Claim Three and only
explicitly cite Claims One and Seven. See id. at 16-17. Defendants fail to identify any
actions taken by Robert Huss that would be subject to absolute immunity, and the Court
will decline to grant defendants’ motion on this basis.
Defendants also argue plaintiff fails to allege Robert Huss’ personal participation in
any constitutional violations. Id. at 13. Plaintiff’s allegations that Robert Huss
previously made phone calls threatening CDOC employees in order to prevent plaintiff’s
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transfer to a lower-level facility, Docket No. 1 at 17, ¶ 42, are not sufficient to allege that
Robert Huss caused an alleged constitutional violation, namely, plaintiff’s transfer to a
different facility in February 2020. Plaintiff does not allege that Robert Huss took any
actions after altering plaintiff’s PED. Plaintiff does not allege Robert Huss was
connected to Gillespie who is alleged to have seized plaintiff’s legal materials, id. at 25,
¶ 76, or that Robert Huss is one of the persons who was identified as overriding the
stop on plaintiff’s transfer. Id. at 20-21, ¶ 57. There are no specific factual allegations
supporting a continuing conspiracy that included plaintiff’s transfer in February 2020.
The Court will dismiss Claim Three, plaintiff’s conspiracy claim, against Robert Huss
based on a failure to allege his personal participation in plaintiff’s transfers beginning in
February 2020.
Claim Four alleges Robert Huss knew plaintiff acted as a confidential informant and
caused him to be transferred to a housing unit endangering plaintiff. Id. at 33. Plaintiff
does not allege that Robert Huss caused his transfer through his acts as a government
attorney, and defendants do not identify any actions by Robert Huss that would be
covered by absolute immunity. See Docket No. 79 at 16-17. The Court will decline to
dismiss Claim Four against Robert Huss on the basis of absolute immunity. The Court,
however, will dismiss Claim Four based on a failure to allege Robert Huss’ personal
participation. Plaintiff has not alleged that Robert Huss caused his transfer in February
2020 or that Robert Huss was among the defendants who were informed of his
transfers in 2020. Beyond alleging Robert Huss caused his transfers, Docket No. 1 at
33, plaintiff does not make any allegations linking Robert Huss to his deliberate
indifference claim.
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Claim Seven, for violation of access to courts, alleges Robert Huss submitted a
pleading and affidavit he knew contained lies in a different case against plaintiff. Id. at
36. This is the same filing that the Court has ruled is covered by absolute immunity for
defendants Weiser and Allen. The complaint does not argue that Robert Huss took any
additional actions or that the action he took was different than Weiser and Jacobson’s
actions. See id. (“Weiser, Allen, R. Huss, and Jacobson lied to the Court.”). Robert
Huss is entitled to absolute immunity for submitting a court filing. Because that is the
only action Robert Huss is alleged to have taken that applies to Claim Seven, the Court
will dismiss Claim Seven as it applies to Robert Huss on the basis of absolute immunity.
As each individual claim is dismissed, the Court will grant the portion of defendants’
motion seeking to dismiss Robert Huss.
The Court will dismiss all of plaintiff’s claims against the AG Defendants on the basis
of absolute immunity or qualified immunity for a failure to allege the defendant’s
personal participation, namely, Claims One, Four, and Seven against Woodward;
Claims Four and Seven against Allen; Claims One, Four, and Seven against Weiser;
Claims One, Three, Four, and Six against Jennifer Huss; and Claims Three, Four, and
Seven against Robert Huss.
C. Lauren Rivas
Defendant Rivas has not been served in this case. The CDOC provided a last known
address for Rivas to plaintiff, and the United States Marshals attempted service upon
her, but this attempt was unsuccessful. Docket No. 77 at 1-2. The Court granted
plaintiff additional time to find and properly serve Rivas, id. at 2, but plaintiff has not
done so. Therefore, the claims against Rivas will be dismissed without prejudice
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pursuant to Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be
made within a specified time.”).
D. Collateral Estoppel
In his complaint, plaintiff contends various of the defendants altered his PED by
adding 119 years and failed to transfer him to lower-level security facilities. Docket No.
1 at 28. These issues have already been decided by two Colorado courts and plaintiff is
precluded from bringing claims on that basis in this case.
Under the doctrine of issue preclusion, “when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between
the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).
“[I]ssue preclusion bars a party from relitigating an issue once it has suffered an
adverse determination on the issue, even if the issue arises when the party is pursuing
or defending against a different claim.” Park Lake Res. Ltd. Liab. v. U.S. Dep’t of Agr.,
378 F.3d 1132, 1136 (10th Cir. 2004) (citation omitted). The doctrine of issue
preclusion is designed to prevent parties from wasting litigants’ resources and
adjudicators’ time, and to discourage parties who lose to shop around for a different
tribunal. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 140 (2015).
In general, issue preclusion applies when: (1) the issue previously decided is
identical with the one presented in the action in question; (2) the prior action has been
finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was
a party to, or in privity with a party to, the prior adjudication; and (4) the party against
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whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior
action. Park Lake, 378 F.3d at 1136.
In Vreeland v. Colorado Dept. of Corr., 2019CV31834 (El Paso County Dist. Ct. July
28, 2020), plaintiff argued (as he does here) that his PED had been altered to add 119
years. The El Paso County District Court noted plaintiff’s PED was originally calculated
using the “governing sentence method,” whereby the CDOC only considered the
longest (governing) sentence. Docket No. 79-1 at 5-6. The court noted that in Diehl v.
Weiser, 444 P.3d 313 (Colo. 2019) and Exec. Dir. of Colo. Dept. of Corr. v. Fetzer, 396
P.3d 1108 (Colo. 2017), the Colorado Supreme Court concluded such a calculation was
erroneous and the CDOC was required to use the “one continuous sentence” rule and
treat separate, consecutive sentences as one sentence. Docket No. 79-1 at 5. The
court concluded that plaintiff’s PED had not been miscalculated and further noted
plaintiff was not yet eligible for transfers to lower-level prisons. Id. at 5-6. Similarly, in
Vreeland v. RSA, Inc., 2019CV85 (Jefferson County Dist. Ct. May 28, 2020), the
Douglas County District Court concluded that, based on plaintiff’s PED, he was not
eligible for a lower-level transfer. Docket No. 79-2 at 4.
The issues decided in these cases are identical to the issues plaintiff raises in the
claims in this matter, to wit, whether his PED was erroneously altered and whether he
was eligible for transfer to a lower-level security institution. In his response, plaintiff
argues that the Court may not take judicial notice of these orders without converting the
present motion to one for summary judgment. Docket No. 103 at 39. That is not
correct. The Court may properly consider facts subject to judicial notice, state court
pleadings, and matters of public record, which include these state court orders. Pace v.
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Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008) (affirming the district court’s conclusion
it could “take judicial notice of all the materials in the state court’s file.”).
Here, there is no dispute plaintiff was a party to both state court actions and both are
final determinations because plaintiff failed to timely appeal either of the relevant orders.
Although plaintiff contends both cases are awaiting review on motions for
reconsideration, Docket No. 103 at 39, the state court dockets in each case tell a
different story. In Vreeland v. Colorado Dept. of Corr., plaintiff’s motions for relief from
judgment, to reconsider, and to enlarge time to file a notice of appeal were denied on
June 29, 2021. In Vreeland v. RSA, Inc., plaintiff did not file any post-judgment motions.
Plaintiff’s conclusory assertion that the briefing on these motions was inadequate is not
persuasive. See id. Consequently, the Court finds plaintiff is precluded from arguing
either his PED was unlawfully altered or he was eligible to move to lower-level
institutions.
E. First Amendment Retaliation (Claim One)
Plaintiff’s retaliation claim is comprised of five different subclaims of retaliatory
conduct. Docket No. 1 at 28-29. The complaint alleges the following instances of
retaliation: (1) plaintiff’s transfer between seven prisons in seventy-two days, (2) the
alteration of plaintiff’s PED, (3) the seizure of plaintiff’s legal materials, law books, case
files, and tablet computer, (4) plaintiff’s transfer to a level 5 maximum security prison,
and (5) the theft and disclosure of plaintiff’s medical, mental health, and institutional
files. Id. Plaintiff’s claim is brought against Jennifer Huss, Daigle, Jacobson,
Dauffenbach, Carlson, Weiser, Woodward, Williams, Gillespie, and Rivas.11 Id. at 28-
11 The Court will decline to discuss plaintiff’s claims as they relate to Polis, Rivas, and
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29.
“It is well-settled that prison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the courts.” Requena v.
Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (citation omitted). The elements
necessary for a retaliation claim where the governmental defendant is not the plaintiff’s
employer are: (1) the plaintiff was engaged in constitutionally protected activity; (2) the
defendant’s actions caused the plaintiff 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. See Worrell v. Henry, 219 F.3d 1197, 1212 (10th
Cir. 2000). “[W]hen the plaintiff alleges that the defendant’s action was taken in
retaliation for protected speech, our standard for evaluating that chilling effect on
speech is objective, rather than subjective . . . a trivial or de minimis injury will not
support a retaliatory prosecution claim.” Eaton v. Meneley, 379 F.3d 949, 954-55 (10th
Cir. 2004) (internal quotation and citation omitted).
As an initial matter, because plaintiff is precluded from relitigating his claim that his
PED was wrongfully changed, and that he was assigned the wrong security level, those
actions fail to support his retaliation claim. Plaintiff argues that, for subclaim two, his
change in sentence was illegal and without notice or due process, but does not argue
that the change is an adverse action even if it was not an unlawful change. See Docket
No. 103 at 40. The same is true of plaintiff’s claim that he was given an improper
the AG Defendants given its previous rulings, but will include discussion of the
allegations that relate to them in the interest of completeness in describing plaintiff’s
claims as alleged against the remaining defendants.
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security designation. See Docket No. 1 at 28-29. Subclaim four alleges defendants
Williams, Jacobson, and Dauffenbach retaliated against plaintiff by causing him to be
transferred from AVCF and incorrectly moved him to a maximum security prison. Id.
Outside of alleging plaintiff’s security classification is incorrect, plaintiff’s fourth subclaim
does not allege any injuries, identify any protected conduct, or name any defendants
that are not included in another subclaim, see id., and so the Court will dismiss this
subclaim. Subclaim two and subclaim four challenging plaintiff’s PED and security level
will be dismissed as precluded.
1. 	Transfer of Facilities
Plaintiff’s first subclaim alleges that defendants Jennifer Huss, Daigle, Jacobson, and
Dauffenbach retaliated against plaintiff for his filing of grievances, lawsuits, and
complaints to law enforcement against Jennifer Huss, Jacobson, and Carlson by
causing plaintiff to be transferred to seven facilities over the course of seventy-two days.
Id. at 28.
The complaint alleges the following facts about plaintiff’s transfers: that Daigle,
Jacobson, Robert Huss, and Jennifer Huss knew that persons who wanted plaintiff dead
for informing on them were housed at “Crowley, Limon, Sterling, Fremont, Buena Vista,
and CSP,” id. at 20, ¶ 54; in January 2020, an unidentified CDOC correctional officer at
AVCF told plaintiff he needed to stop his lawsuits and complaints or he would end up
dead soon, id., ¶ 55; plaintiff reported this threat to Daigle’s office, id.; on February 3,
2020, an unidentified person ordered plaintiff to pack his property for an impending
transfer to a different facility, id., ¶ 56; plaintiff called an investigator in Daigle’s office
who told plaintiff that his transfer would be stopped, but that he needed to comply with
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orders, id.; plaintiff was told his move was cancelled thirty minutes later, id.; one hour
later, an unidentified person told plaintiff that Daigle, Dauffenbach, and Jacobson had
overridden the stop to plaintiff’s transfer and ordered that plaintiff be sent to LCF, id. at
20-21, ¶ 57. A series of transfers began that lasted three days and required plaintiff to
stand outside in the snow for several hours until he ultimately arrived at LCF on
February 5, 2020, id. at 21, ¶¶ 58-61; on February 6, 2020, an unnamed person told
plaintiff he was being returned to AVCF for his safety, id. at 22, ¶ 64; plaintiff remained
in segregation at LCF until February 19, 2020 when he was sent back to “DRDC,” id.,
¶ 65; on February 20, 2020, an unidentified person told plaintiff he was not going back
to AVCF because someone at CDOC headquarters had altered plaintiff’s transfer
documents to send him to “FCF,” id.; as plaintiff departed DRDC, an unidentified person
informed plaintiff that the FCF administration would immediately transfer plaintiff to
AVCF, id. at 24, ¶ 72; on the way to FCF, a “CDOC official of upper rank” told plaintiff
that an inspector general investigator had discovered that someone was trying to harm
plaintiff, id. at 22-23, ¶ 67; upon his arrival at FCF on February 20, 2020, plaintiff was
told FCF was not aware of any safety issues and that plaintiff would be placed in the
general population, id. at 24, ¶ 72; defendants Polis, Weiser, Williams, Daigle,
Dauffenbach, Maynes-Cortez, and Moore were informed plaintiff had been transferred
and was in danger, id. at 24-25, ¶ 74; these defendants “asserted they would make it
right,” but then took no action, id., ¶¶ 74-75; on April 13, 2020, plaintiff was sent to
“CSP” where he remained until his complaint was filed. Id. at 26-27, ¶¶ 80, 87.
There is no question that plaintiff’s conduct of filing grievances and lawsuits is
protected under the First Amendment. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.
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2010) (filing grievances is a constitutionally protected activity); Green v. Johnson, 977
F.2d 1383, 1389-91 (10th Cir. 1992) (inmate’s allegation that guards destroyed his legal
materials in retaliation for filing lawsuits and grievances stated a cognizable First
Amendment claim). A transfer can be considered an adverse action in regard to the
second element of a retaliation claim. See Frazier v. DuBois, 922 F.2d 560, 561-62
(10th Cir. 1990) (“While a prisoner enjoys no constitutional right to remain in a particular
institution and generally is not entitled to due process protections prior to such a
transfer, prison officials do not have the discretion to punish an inmate for exercising his
first amendment rights by transferring him to a different institution.” (quoting Murphy v.
Missouri Dept. of Correction, 769 F.2d 502, 503 (8th Cir. 1985))).
Defendants argue that plaintiff fails to plausibly allege each defendant’s connection to
all of his transfers or to allege that each defendant acted with a retaliatory motive.12
Docket No. 79 at 19-20. Defendants argue that plaintiff only links Daigle, Dauffenbach,
and Jacobson to one transfer to LCF on February 3, 2020. Id. Defendants also argue
that plaintiff fails to allege defendants caused plaintiff’s transfer. Id. at 20. Plaintiff
responds that his complaint alleges that he was placed in transfer status, that his
transfer was stopped, and that “defendants used their positions of authority to override
the stop to the transfer,” causing plaintiff to be moved to a prison where plaintiff was in
danger. Docket No. 103 at 29.
12 Defendants do not specify whether they challenge plaintiff’s allegations as
unconnected to each defendant as a failure to allege facts sufficient for § 1983 liability
under Fed. R. Civ. P. 12(b)(6) or as a qualified immunity personal participation defense
to violation of a clearly established right. See Docket No. 79 at 19-20. The Tenth
Circuit has opined that the two arguments “travel hand-in-hand, and when they do, we
consider their substantive components together.” Pahls, 718 F.3d at 1227.
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“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997).
Claims brought under § 1983 require that “liability be predicated on a violation traceable
to a defendant-official’s ‘own individual actions.’” Pahls, 718 F.3d at 1225 (quoting Iqbal,
556 U.S. at 676). “When various officials have taken different actions with respect to a
plaintiff, the plaintiff’s facile, passive-voice showing that his rights ‘were violated’ will not
suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated
contention that ‘defendants’ infringed his rights.” Id. at 1225-26. The Court will evaluate
Daigle, Dauffenbach, and Jacobson’s alleged involvement in plaintiff’s transfers.
Plaintiff alleges Daigle knew plaintiff would be in danger at LCF and that he was
informed Daigle caused his transfer to LCF. Docket No. 1 at 20-21, ¶¶ 54, 57. Plaintiff,
however, provides no allegations that Daigle acted with retaliatory intent. Plaintiff does
not allege Daigle joined the group of defendants who sought to retaliate against plaintiff
for his protected conduct. See id. at 19, ¶ 52. “[I]t is imperative that plaintiff's pleading
be factual and not conclusory. 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.” Frazier, 922 F.2d at 562 n.1. Because
plaintiff does not allege that Daigle was motivated by plaintiff’s protected conduct,
plaintiff fails to state a retaliation claim against Daigle. Similarly, plaintiff does not make
any allegations regarding Dauffenbach’s intent. Plaintiff does not allege that
Dauffenbach agreed to retaliate against plaintiff. Docket No. 1 at 19, ¶ 52. He only
alleges that Dauffenbach knew plaintiff would be in danger at LCF and that he was told
Dauffenbach caused his transfer. Id. at 20-21, ¶¶ 54, 57. Without any specific facts
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evidencing retaliatory motive, plaintiff fails to state a claim against Dauffenbach.
Plaintiff alleges that Jacobson conspired to harm plaintiff and to prevent him from
engaging in protected conduct because plaintiff refused to drop complaints, id. at 19,
¶ 52; that Jacobson knew plaintiff would be in danger at LCF, id. at 20, ¶ 54; and that
Jacobson caused plaintiff’s transfer to LCF. Id. at 20-21, ¶ 57. Unlike the other
defendants identified in this claim, Jacobson is alleged to have caused the violation and
to have had a retaliatory motive. Defendants argue Jacobson is only linked to plaintiff’s
first transfer and not subsequent transfers or decisions, Docket No. 79 at 20, but do not
explain why a single transfer would not be sufficient to state a claim. Because plaintiff
makes specific factual allegations on Jacobson’s participation in subclaim one of his
retaliation claim, the Court will decline to dismiss this subclaim against Jacobson.
2. 	Illegal Seizure
In subclaim three,13 plaintiff alleges that Williams, Jacobson, and Gillespie retaliated
against plaintiff by seizing all his legal materials. Docket No. 1 at 28. Defendants argue
that plaintiff fails to identify what actions each defendant except Gillespie took, and that
plaintiff fails to allege how his speech was chilled by the seizure of his legal materials.
Docket No. 79 at 23-24. Plaintiff responds that “[a]t minimum the claim asserts that
Gillespie seized legal materials and [a] tablet,” and Willliams and Jacobson lied to the
Court. Docket No. 103 at 36. Temporal proximity between a challenged action and
protected activity is not sufficient to allege a retaliatory motive. Leek v. Miller, 698 F.
App’x 922, 926 (10th Cir. 2017) (unpublished). To establish the third element of a First
13 As discussed above, Weiser and Woodward have been dismissed from Claim
One. This also dismisses the portion of plaintiff’s subclaim that relates to filing false
pleadings about the seizure of plaintiff’s legal materials.
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Amendment retaliation claim, a plaintiff must “establish that ‘but for the retaliatory
motive, the incidents to which he refers . . . would not have taken place.’” Id. (quoting
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)).
The complaint alleges that, on February 20, 2020, plaintiff discovered his legal
materials had been seized “mostly by defendant Gillespie whom admitted he had turned
on Plaintiff’s tablet computer and searched the files thereon and reviewed the files for
content,” Docket No. 1 at 25, ¶ 76; Jacobson, among others, “asserted to the Court in
pleadings and sworn affidavits that Plaintiff was basically lying and that he had access
to law library and all of his legal materials,” id., ¶ 78; Williams, among others, lied to the
Court stating that plaintiff’s tablet was seized as a banned item and that he did not know
where plaintiff’s legal materials were, id. at 36; Willams responded to plaintiff’s request
for a protective order against retaliatory transfers and work orders with an affidavit
supplied by “a CSP Associate Warden.” Id. at 26, ¶ 86.
Regarding the seizure, plaintiff does not allege actions taken by any of the
defendants except Gillespie. See id. at 25, ¶ 76. Gillespie seized plaintiff’s belongings
and admitted to turning on plaintiff’s tablet and looking through plaintiff’s files. Id.
Plaintiff does not allege that Gillespie took plaintiff’s belongings for a retaliatory purpose
or that the seizure was in retaliation for any specific protected conduct. See id. at 25,
28, ¶ 76. Plaintiff does not identify whether his tablet was seized in retaliation for filing
cases or grievances. Id. at 28. Plaintiff fails to link a specific act of protected conduct,
or several acts of protected conduct, with the seizure of his tablet. Additionally, plaintiff
fails to state what actions any defendant other than Gillespie took to seize his tablet and
review his legal materials. Without a link between protected conduct and the
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challenged action, plaintiff cannot establish a retaliatory motive.
Regarding the court filings, plaintiff claims that, when he challenged the seizure of his
tablet, defendants provided false testimony in court. Id. at 28. Plaintiff states that the
statements were made in response to a court order, but does not allege which
defendants said what, alleging only that Weiser, Woodward, Maynes-Cortez, and
Jacobson “asserted to the court in pleadings and sworn affidavits that Plaintiff was
basically lying and that he had access to [the] law library and all of his legal materials.”
Id. at 25, ¶ 78. Plaintiff does not allege that Gillespie testified as to anything and fails to
specify what Willams and Jacobson testified to. At one point plaintiff states Williams
participated in supplying a specific affidavit, but that affidavit did not relate to the seizure
of plaintiff’s materials. See id. at 26, ¶ 86. Plaintiff fails to establish a retaliatory motive
because there is no link between defendants’ actions and any protected conduct that
plausibly alleges retaliation. Plaintiff’s claim for retaliation based on the seizure of his
legal materials and provision of false testimony fails to plausibly allege specific
protected conduct and individual actions by the defendants in retaliation for plaintiff’s
conduct. Because he has not plausibly alleged that his protected speech was the “but
for” cause of any challenged incident, the Court will grant defendants’ motion and
dismiss plaintiffs’ third subclaim.
3. 	Plaintiff’s Files
Finally, in subclaim five, plaintiff alleges that Carlson and Rivas stole files from
plaintiff and agreed to testify against him as retaliation for filing a lawsuit against either
defendant Carlson or Rivas. See id. at 29. Plaintiff does not allege what case either
defendant decided to testify in or what case plaintiff filed against either. Id. Plaintiff
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states that Carlson and Rivas stole medical files, mental health files, and institutional
files without explaining which files each defendant took or when they were taken. Id. In
his next claim, plaintiff alleges that defendant Rivas stole his medical files and that
defendant Carlson stole records on plaintiff’s time computation and criminal sentencing.
Id. at 29-30. He does not differentiate between Rivas and Carlson or allege individual
action on Carlson’s part in his retaliation claim. Id. at 28. Plaintiff has failed to establish
what protected conduct Carlson was retaliating against as plaintiff does not identify any
lawsuit or even who he was suing in a lawsuit. Id. As plaintiff has not plausibly alleged
retaliation for specific conduct with supporting factual allegations, this subclaim fails.
Based on the discussion above, the Court will dismiss Claim One, except the portion of
plaintiff’s first subclaim that is brought against Jacobson.
F. Fourth Amendment (Claim Two)
In plaintiff’s second claim, plaintiff contends Mary Carlson14 used her position as a
CDOC employee to “steal . . . copies of Plaintiff[’s] time computation and [allegedly
sealed] criminal sentencing information,” and to provide it to Lauren Rivas and a private
company in violation of the Fourth Amendment. Id. at 30. Plaintiff, however, lacks any
“reasonable expectation of privacy” in public records and court documents. Daniels v.
Arapahoe Cnty. Dist. Ct., 376 F. App’x 851, 855 (10th Cir. 2010) (unpublished) (citing
Rodgers v. Hyatt, 697 F.2d 899, 903 (10th Cir. 1983)). Plaintiff argues that he still has a
privacy expectation because the records were sealed. Docket No. 103 at 42. Plaintiff,
however, provides no cases or argument in support of his claim that he has a
14 Plaintiff’s second claim is also brought against Rivas, who has been dismissed for
the reasons stated above.
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cognizable interest in court records. In his response, plaintiff attempts to augment the
allegations in his claim by adding additional allegations regarding the files Carlson
allegedly stole and why they are entitled to privacy. See id. at 40-42. He may not do so
in his response. See In re Qwest Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D.
Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new
facts in their response to a motion to dismiss.”). Having evaluated only the allegations
in plaintiff’s complaint (Carlson took sentencing and time computation information), the
Court concludes plaintiff has failed to allege a cognizable claim under the Fourth
Amendment and will dismiss Claim Two.
G. Conspiracy (Claim Three)
In Claim Three, plaintiff contends that Daigle, Jacobson, and Dauffenbach15
conspired to transfer plaintiff away from AVCF to hinder his ability to pursue his litigation
and to place him at facilities with inmates who wished him harm.16 Docket No. 1 at 30-
32.
To state a valid claim for conspiracy under § 1983, plaintiff “must allege specific facts
showing an agreement and concerted action among the defendants.” Tonkovich v.
Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998); see also Abercrombie v.
City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (a plaintiff must establish “by
direct or circumstantial evidence, a meeting of minds or agreement among the
defendants”). In addition, plaintiff must show that the conspiracy’s goal was to deprive
15 Plaintiff also asserts this claim against Jennifer and Robert Huss, who the Court has
already dismissed.
16 This claim also makes allegations regarding alleged Eighth Amendment violations,
which are addressed in Section III.H.
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him of a right secured by the Constitution. See, e.g., Dixon v. City of Lawton, 898 F.2d
1443, 1449 (10th Cir. 1990) (“to recover under a § 1983 conspiracy theory, a plaintiff
must plead and prove not only a conspiracy, but also an actual deprivation of rights”).
Moreover, “[c]onclusory allegations of conspiracy are insufficient to state a valid § 1983
claim.” Tonkovich, 159 F.3d at 533. Consequently, to establish a prima facie
conspiracy claim under § 1983, plaintiff must allege facts that demonstrate: (1) an
agreement to deprive plaintiff of a constitutional or statutory right; (2) concerted action
by movants; and (3) an actual deprivation of rights. Dixon, 898 F.2d at 1449.
Plaintiff has not satisfied this bar with respect to the first element of a conspiracy
claim because he has not alleged specific facts that suggest there was an agreement
between any of these defendants to deprive plaintiff of his rights, and the Court cannot
assume plaintiff can prove facts that have not been alleged. See, e.g., Whitney v. State
of New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (ruling that courts may not
“supply additional factual allegations to round out a plaintiff’s complaint”). Rather,
plaintiff alleges that “[t]hese Defendants designed a scheme to transfer Plaintiff away
from AVCF, and to a facility where Plaintiff’s life would be in danger,” and to impede his
litigation. Docket No. 1 at 31. The only alleged detail regarding the formation of this
plan is that it took place “by telephone and [] email accounts.” Id. at 30. But without
more details (i.e., dates, times, parties to the conversations, what was said) these
allegations are conclusory and do not establish a meeting of the minds between these
defendants. In addition, much like his other claims, plaintiff names the defendants
individually, but the remaining allegations are pled collectively without any particulars to
allow each defendant reasonable notice of what he or she is accused of doing. See id.
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at 30-32; Pahls, 718 F.3d at 1225-26 (“When various officials have taken different
actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his
rights ‘were violated’ will not suffice.”).
Additionally, plaintiff fails to allege the third element of a conspiracy claim, namely, an
actual deprivation of rights. Plaintiff alleges that defendants designed a scheme to
prevent plaintiff’s lawsuits and criminal prosecutions, but alleges the constitutional
deprivation he faced was an Eighth Amendment violation because he was placed in
extreme danger. Docket No. 1 at 30-32. Plaintiff does not allege that defendants
agreed to deprive plaintiff of his Eighth Amendment rights, as opposed to agreeing to
prevent plaintiff from pursuing civil actions and criminal prosecutions, see id., and does
not explain why his claim constitutes an actual deprivation of his rights based on
defendants’ agreement where the harm he faced is distinct from the harm defendants
agreed to cause. See Docket No. 103 at 42-47. Based on plaintiff’s failure to allege an
agreement between defendants resulting in an actual deprivation of rights, the Court will
dismiss Claim Three.
H. Eighth Amendment (Claims Four, Six, Eight)
Plaintiff asserts three claims pursuant to the Eighth Amendment. Docket No. 1 at 32-
34, 35, 37-38. He contends, in Claim Four, that Williams, Daigle, Kirby, Jacobson, and
Dauffenbach knew plaintiff worked as a confidential informant and failed to protect him
when they allowed or caused him to be transferred to a prison where individuals he
informed against were living. Id. at 33-34. In Claim Six, plaintiff contends that Williams,
Daigle, Jacobson, and Dauffenbach were deliberately indifferent to a serious medical
need when they “caused Plaintiff to be exposed to COVID-19 at [Colorado State
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Penitentiary].”17 Id. at 35. In Claim Eight, plaintiff alleges that Moore failed to protect
plaintiff when he issued a state document asserting plaintiff had no known safety issues
at any CDOC prison and he could be moved to any of them. Id. at 37-38.
“The Eighth Amendment’s prohibition of cruel and unusual punishment imposes a
duty on prison officials to provide humane conditions of confinement, including
adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from
bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (citation omitted).
And it prohibits “unnecessary and wanton infliction of pain,” including “deliberate
indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97,
104 (1976) (citation omitted). Prison officials violate the Eighth Amendment “only if the
deprivation to which the prisoner has been subjected is ‘objectively sufficiently serious’
and only if the prison official has a ‘sufficiently culpable state of mind.’” Grissom v.
Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)).
1. Failure to Protect
The duties under the Eighth Amendment include a duty “to protect prisoners from
violence at the hands of other prisoners.” Farmer, 511 U.S. at 833. “[T]o establish a
cognizable Eighth Amendment claim for failure to protect, a plaintiff ‘must show that he
is incarcerated under conditions posing a substantial risk of serious harm,’ the objective
component, and that the prison official was deliberately indifferent to his safety, the
subjective component.” Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)
17 AG Defendants are also named in this claim, but have been dismissed for the
reasons stated above.
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(quoting Farmer, 511 U.S. at 834)).
Claim Four alleges plaintiff acted as an informant for law enforcement and “was
guaranteed safety via housing at a specific facility in a specific unit and room,” Docket
No. 1 at 32; any prisoner, prison official, or law enforcement official would realize it is
dangerous to act as an informant, id.; and plaintiff was subjected to Eighth Amendment
violations when “Plaintiff; whom has 2 points, is a true minimum security level prisoner,
and whom was an active confidential informant [was] transferred to a max security Level
4 and 5 prison and to be placed in the same housing unit as the very gang members
whom sworn to murder Plaintiff as Plaintiff informed on the gang members in order to
save the life of a female CDOC employee at AVCF.” Id. at 33.
Although Claim Four does not itself explain which transfers plaintiff alleges placed
him in danger based on his work as an informant, the complaint generally identifies two
such transfers. First, plaintiff alleges that on February 5, 2020 plaintiff was transferred
to LCF and “LCF staff attempted to place Plaintiff into the same cell as the gang
members Plaintiff had informed on and whom asserted they wanted Plaintiff dead,” but
plaintiff was immediately placed in a single room in segregation instead. Id. at 21,
¶¶ 60-61. Second, plaintiff alleges that, on February 20, 2020, plaintiff was transferred
to FCF, a “facility wherein law enforcement had specifically lied to a gang member and
stated Plaintiff had informed [law enforcement that] the gang member J.L. was planning
a hit on a district attorney, and then allowed J.L. to go back to the yard and tell the
entire prison population this Plaintiff was a rat and informant.” Id. at 22, ¶ 65.
Plaintiff’s allegations identifying the prisoners who wanted to murder him at LCF and
FCF, however, are cursory. There are no allegations specifying who these other
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incarcerated individuals are, even by initials, what specific threats they have made
against plaintiff, or whether they have caused harm to other individuals. Plaintiff alleges
he identified participants in a murder at AVCF in 2016 as part of his work as an
informant and that some of those persons were transferred to LCF, id. at 14-15, ¶ 36,
but he does not indicate how many people went to LCF, that the persons transferred
knew plaintiff informed on them, or any allegations specifying when these unidentified
persons swore to kill plaintiff. See id. at 14-16, ¶¶ 34-37. At FCF, plaintiff alleges that
in 2016 another inmate, J.L., was permitted to tell the entire prison population plaintiff
was informant, id. at 10, 22, ¶¶ 14, 65, but does not explain who of the entire population
in 2016 remained at FCF and wished to kill plaintiff in 2020 or when such people
threatened plaintiff. See id. at 22-23, ¶¶ 65-69. Plaintiff details many occasions where
he informed on other persons, see, e.g., at 10, 22, 24, but none of plaintiff’s allegations
are linked to his claim in this case with any level of specificity. He does not identify any
inmates that threatened him at any time, alleging only that it is dangerous to act as an
informant. See id. at 32. “Being subjected to the mere possibility of assault from
another inmate does not satisfy the objective component of an Eighth Amendment
violation.” Williams v. Daniels, No. 14-cv-00705-CBS, 2014 WL 5152359, at *3 (D.
Colo. Oct. 14, 2014); see, e.g., Grimsley v. MacKay, 93 F.3d 676, 681 (10th Cir. 1996)
(observing that inmate may demonstrate the existence of a substantial risk of serious
harm “where prison officials disregard repeated warnings of danger to a particular
prisoner and continually refuse to make the situation safer, for example by . . .
separating the prisoner from other inmates who previously have attacked him on
multiple occasions”); Harris v. Matthews, 417 F. App’x 758, 763 (10th Cir. 2011)
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(unpublished) (“an idle threat of impending physical harm that is not carried out will not
suffice to state an Eighth Amendment claim”). Without more detail, plaintiff’s allegations
do not adequately support the existence of a specific threat to his safety posed by
another inmate. Consequently, the Court will dismiss Claim Four.
Claim Eight alleges that defendant Moore “was directed to address grievances and
the safety of Plaintiff,” that Moore disregarded plaintiff’s safety, and that Moore “knew or
should have known that transferring Plaintiff to Limon, or Sterling, or Fremont, or Buena
Vista, or Crowley, would subject Plaintiff to significant risk of physical harm or to death
as a result of acting as informant.” Docket No. 1 at 37-38. Because this claim is based
on the same threat as Claim Four, namely, danger posed by other inmates to plaintiff
based on his work as an informant, plaintiff also fails to allege a sufficiently specific
threat for Claim Eight, and the Court will dismiss plaintiff’s second failure to protect
claim.
2. Deliberate Indifference to a Serious Medical Need
Like other claims under the Eighth Amendment, a claim for deliberate indifference
involves both an objective and a subjective component. Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005). Under the objective component, the prisoner must “produce
objective evidence that the deprivation at issue was in fact ‘sufficiently serious.’” Id.
(quoting Farmer, 511 U.S. at 834). Under the subjective component, the prisoner must
show the defendant had a state of mind “akin to recklessness in the criminal law, where,
to act recklessly, a person must consciously disregard a substantial risk of serious
harm.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at
837) (internal quotations and citation omitted). Pursuant to this standard, “the official
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must both be aware of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer,
511 U.S. at 837.
In Claim Six, plaintiff alleges that, upon his transfer to the Colorado State
Penitentiary on April 13, 2020, he was “infected with COVID-19, denied testing and
care, allowed to suffer, and has suffered actual permanent neurological injury.” Docket
No. 1 at 27, ¶¶ 87, 89. He contends that Williams, Daigle, Jacobson, and Dauffenbach
“caused Plaintiff to be exposed” because they allowed or caused him to be transferred
between prisons. Id. at 35. This is the extent of plaintiff’s allegations to support this
claim and is little more than a legal conclusion masquerading as a fact. Plaintiff has
made no attempt to allege how these defendants were aware of the risk and then
disregarded it. See id. This is fatal to plaintiff’s deliberate indifference claim. See
Farmer, 511 U.S. at 837 (“a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety”). The Court will
dismiss Claim Six.
I. Equal Protection (Claim Five)
Plaintiff contends that defendants Daigle and Kirby failed to protect him as required
by Colo. Rev. Stat. § 17-1-103.8, which obligates the Inspector General to investigate,
detect, and prevent crimes within or outside of the prisons. Colo. Rev. Stat.
§ 17-1-103.8(2)(a). He argues their failure to do so was in violation of his right to equal
protection under the laws. Docket No. 1 at 34-35.
As an initial matter, § 17-1-103.8 does not create a private cause of action.
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Rozenberg v. Knight, No. 12-cv-00431-WJM-CBS, 2012 WL 7827998, at *1 n.1 (D.
Colo. Nov. 19, 2012) (“Even if Defendants violated Colo. Rev. Stats. Title 16 or 17,
there is nothing to suggest that these statutes were intended to provide [the plaintiff] a
private claim for relief.”), report and recommendation adopted, No. 12-cv-0431-WJM,
2013 WL 1320779, (D. Colo. Mar. 29, 2013), aff’d, 542 F. App’x 711 (10th Cir. 2013)
(unpublished). Furthermore, to the extent an equal protection claim could be asserted
based on defendants’ failure to investigate, plaintiff has not properly alleged an
essential element of an equal protection violation, namely, differential treatment
compared to similarly situated individuals.
The Equal Protection Clause requires that no state “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. A class-of-one
equal protection claim requires a plaintiff to allege he “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff must establish that he is “similarly situated in every material respect” to the
other individuals. Rocha v. Zavaras, 443 F. App’x 316, 319 (10th Cir. Sept. 26, 2011)
(unpublished) (quoting Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216
(10th Cir. 2011)). Plaintiff must also show the difference in treatment was “irrational and
abusive” and “wholly unrelated to any legitimate state activity.” Kansas Penn Gaming,
656 F.3d at 1216 (citation omitted); Hennigh v. City of Shawnee, 155 F.3d 1249, 1257
(10th Cir. 1998) (“The allegation that a plaintiff was treated differently from those
similarly situated is an essential element of an equal protection action.”).
Plaintiff alleges “[p]risoners report crimes to the Inspector General’s Office almost
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daily, [and] the reports are transmitted to law enforcement as required.” Docket No. 1 at
35. Plaintiff alleges that, when he reports crimes, they are never sent to law
enforcement. Id. These bare allegations do not satisfy plaintiff’s burden to establish he
was treated differently from similarly situated individuals. Instead, the only detail the
Court is given is that these other individuals were also incarcerated. See id. To be
sure, plaintiff has not even stated these other individuals are in fact similar. See id.
Because plaintiff offers only a formulaic argument that “[he] has the same right to report
crimes and to seek justice as do any other prisoner,” id., the Court concludes he has
failed to allege a viable equal protection claim. Kansas Penn Gaming, 656 F.3d at 1220
(insufficient to simply allege that the comparators are in a “comparable” or “similar”
situation — “the claim must be supported by specific facts plausibly suggesting [the
comparators] are similar in all material respects”). The Court will dismiss Claim Five
because plaintiff has not demonstrated a private right of action is supported and
because plaintiff has failed to allege a plausible equal protection claim.
J. Access to Courts (Claim Seven)
In Claim Seven, plaintiff brings four subclaims alleging defendants took various
actions to impede him in litigating his cases and argues that, were it not for these
defendants, he would have been successful in his myriad litigation efforts. Docket No. 1
at 35-37. The complaint alleges the following instances of a violation of plaintiff’s
access to courts: (1) Weiser, Woodward, Allen, Jacobson, and Maynes-Cortez have
engaged in a pattern of lying to the Court to prevent merit-based resolution of plaintiff’s
claims, (2) Weiser, Woodward, Williams, and Jacobson lied to the Court in response to
a request for injunctive relief, (3) Weiser, Woodward, and Jacobson lied to the Court
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about the reasons behind plaintiff’s transfer from AVCF, and (4) Williams and Gillespie
seized plaintiff’s legal materials, law books, case files, and tablet computer.18 Id. at 36-
37.
It is well-established that prisoners have a constitutional right of access to the courts.
See Bounds v. Smith, 430 U.S. 817, 828 (1977); Love v. Summit County, 776 F.2d 908,
912 (10th Cir. 1985). Plaintiffs must allege specific facts that demonstrate an actual
injury in an ability to pursue a nonfrivolous legal claim or the defense of a criminal case.
See Lewis v. Casey, 518 U.S. 343, 349-55 (1996); Penrod v. Zavaras, 94 F.3d 1399,
1403 (10th Cir. 1996) (per curiam). An access-to-courts claim may involve either a
prison’s affirmative duty to assist prisoners in the preparation of initial legal papers or
conduct that unduly hinders litigation at any stage of the proceedings. See Vreeland v.
Schwartz, 613 F. App’ x 679, 683 (10th Cir. 2015) (unpublished). Regardless of the
type of claim being asserted, the underlying cause of action that allegedly was lost is an
element of such a claim that must “be described well enough to apply the ‘nonfrivolous’
test and to show that the ‘arguable’ nature of the underlying claim is more than hope.”
Christopher v. Harbury, 536 U.S. 403, 415-16 (2002).
In plaintiff’s first subclaim, he alleges that certain AG Defendants, “Jacobson, and
Maynes-Cortez have violated Plaintiff’s access to courts and have frustrated, impeded,
[and] hindered valid claims by engaging in a pattern of lying to the Court in sworn
affidavits, pleadings, and testimony designed to prevent fair merit based resolution of
claims, and to cover-up misconduct of defendants and state agents.” Docket No. 1 at
18 Having dismissed that AG Defendants, the Court will only discuss plaintiff’s
subclaims as they relate to the remaining defendants, namely, Jacobson, Maynes-
Cortez, Willams, and Gillespie.
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36. Plaintiff does not identify what “affidavits, pleadings, and testimony” this subclaim
refers to, what claims were impeded or how they were impeded, and fails to link court
filings to misconduct he alleges was being concealed. Without allegations of fact
supporting plaintiff’s vague allegation, the complaint cannot be said to give fair notice to
defendants, nor can the Court apply the nonfrivolous test to plaintiff’s first subclaim.
See Harbury, 536 U.S. at 416; see also McBride v. Deer, 240 F.3d 1287, 1290 (10th
Cir. 2001) (an actual injury was not sufficiently alleged because, among other reasons,
the plaintiff “did not explain that his legal claim was nonfrivolous”).
Additionally, plaintiff does not identify any specific actions Maynes-Cortez took. The
only claim against Maynes-Cortez is subclaim one in Claim Seven. Docket No. 1 at 36.
The complaint alleges Maynes-Cortez was informed of the facts constituting some of
the allegations in this complaint in February 2020, id. at 24-25, ¶ 74; that she, among
other defendants, acknowledged what she had been told and promised to make it right,
id.; when the court ordered Weiser to respond to plaintiff’s request for a stay in another
case, “Weiser, Woodward, Jacobson[,] and Maynes-Cortez asserted to the court in
pleadings and sworn affidavits that Plaintiff was basically lying and that he had access
to law library and all of his legal materials,” id. at 25, ¶ 78; and because of the submitted
lies, plaintiff had to submit pleadings without files he needed and “valid claims were
impeded and dismissed.” Id., ¶ 79. Plaintiff does not allege any specific action
Maynes-Cortez took at any time, identify what she submitted to the court with lies, or
explain what lies she specifically told the court. Without allegations of fact supporting
plaintiff’s vague allegation that Maynes-Cortez lied, even if subclaim one stated a claim,
plaintiff has not linked Maynes-Cortez to that subclaim and plaintiff’s claim against her
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fails.
In subclaim two, plaintiff alleges “Defendants Weiser, Woodward, Williams, and
Jacobson lied to the Court in Vreeland v. Vigil, supra, and in response to a rule 65
request for relief to have all legal materials and tablet computer returned, these
Defendants lied to the Court, knowingly, and asserted the tablet was seized as it was a[]
banned item that no prisoner possessed and that Plaintiff had managed to hide his from
CDOC staff for six years; also asserting they knew not where Plaintiff’s law books and
legal case files were located even though they were told where the materials were by
CDOC staff prior to a he[a]ring on 7/14/2020.” Id. at 36. After dismissing the AG
Defendants, plaintiff’s subclaim remains against defendants Williams and Jacobson.
Plaintiff does not identify what submissions he references and the allegations in the
complaint do not provide clarity. Regarding Williams, the complaint alleges that, at
some point after April 14, 2020, plaintiff “filed a motion to the court seeking protective
orders as to retaliatory transfers and orders to complete physical labor Plaintiff was
incapable of completing” and “Defendant Weiser, Woodward, Williams, and Jacobson
responded to the requested order by telling the court, with sworn affidavit supplied by a
CSP Associate Warden, that (i) Plaintiff never worked on the date he claims he was
injured; (ii) Plaintiff never sent in any request for medical care; and (iii) the requested
relief was already granted.” Id. at 26, ¶¶ 83-86. Regarding Jacobson, the complaint
alleges that she, among others, responded to court orders after February 20, 2020,
stating plaintiff was lying about access to his legal materials and that she, among
others, responded to a Court order with an affidavit supplied by an Associate Warden
about plaintiff’s injuries and medical care containing lies. Id. at 25-26, ¶¶ 78, 86.
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Subclaim two potentially addresses the representations in 2020 about plaintiff’s access
to legal materials, but plaintiff does not relate Williams to those filings and does not
identify how and in what capacity Jacobson participated in those filings. Plaintiff
mentions a specific case, Vreeland v. Vigil, but does not link defendants’ actions to non-
frivolous claims in that case. It is not possible to examine whether plaintiff identifies an
actual injury in a non-frivolous claim because plaintiff does not identify which of his
claims subclaim two addresses. The Court will dismiss subclaim two as impermissibly
vague.
Subclaim three alleges “Weiser, Woodward, and Jacobson lied to the court and
asserted a transfer from AVCF to a max security prison took place because Plaintiff had
been there longer than policy allows and that was a security threat, these [defendants]
knew this was a lie when they asserted it.” Id. at 36. Plaintiff alleges that, in order to
oppose a request for plaintiff to be transferred to a lower-level facility, Jacobson
provided an affidavit containing lies. Id. at 17-18, ¶¶ 47-48. Here, plaintiff’s claimed
injury is the impediment of him being transferred to a lower-level facility. For the
reasons discussed above, plaintiff is precluded from making an argument about any
transfer to a lower-level facility, and the Court will dismiss subclaim three.
In addition, plaintiff’s allegations on subclaims one, two, and three do not establish an
actual injury. Plaintiff alleges that, “[b]ut for the lie, Plaintiff would have received the
relief he sought on his valid claims.” Id. at 36. However, without allegations of fact
supporting these vaguely alleged claims, the complaint cannot be said to give fair notice
to defendants, nor can the Court apply the nonfrivolous test. Harbury, 536 U.S. at 416;
see also McBride, 240 F.3d at 1290 (an actual injury was not sufficiently alleged
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because, among other reasons, the plaintiff “did not explain that his legal claim was
nonfrivolous”).
In subclaim four, plaintiff alleges Williams and Gillespie violated plaintiff’s access to
courts when they seized his legal materials, books, files, and computer. Docket No. 1 at
37. He contends that, without these materials, he has been unable to continue any of
his litigation. Id. A claim for access to courts can be backward-looking “to a time when
specific litigation ended poorly, or could have commenced, or could have produced a
remedy subsequently unobtainable” or forward-looking “claims that systemic official
action frustrates a plaintiff . . . in preparing and filing suits at the present time.” Harbury,
536 U.S. at 413, 414. Plaintiff does not allege that the seizure of his materials created a
result that is no longer attainable and alleges instead that he “has zero ability to litigate”
his current cases. Docket No. 1 at 37. This raises a forward-looking claim. Defendants
argue this claim is moot as plaintiff has all his materials back and has stated he can
litigate his case. Docket No 79 at 41. Plaintiff has affirmed that he can litigate this case
as well as Vreeland v. Tiona 17-cv-01580-PAB-SKC, Vreeland v. Vigil, 18-cv-03165-
PAB-SKC, and Vreeland v. Huss, 18-cv-00303-PAB-SKC. Docket No. 142 at 1. As
“the essence of the access claim is that official action is presently denying an
opportunity to litigate,” Harbury, 536 U.S. at 413, plaintiff’s present ability to litigate his
cases makes this claim moot.19 Having dismissed each subclaim, the Court will dismiss
Claim Seven in its entirety.
19 To the extent plaintiff claims his ability to litigate state court cases is impeded,
Docket No. 1 at 37, plaintiff provides no details on the cases to allege that these cases
are nonfrivolous.
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K. Breach of Contract (Claim Nine)
Claim Nine, plaintiff’s claim for breach of contract, alleges “Defendant Kirby and
Inspector General’s Office entered into a contract with Plaintiff and agreed to allow
Plaintiff to remain at AVCF, . . . until release or lower level facility transfer,” and to allow
plaintiff to keep his tablet in exchange for plaintiff acting as an informant. Docket No. 1
at 38. Plaintiff alleges this contract was breached when plaintiff was transferred and
his tablet was seized. Id.
To state a claim for breach of contract under Colorado law,20 a plaintiff must
sufficiently plead the following elements: (1) the existence of a contract; (2)
performance by the plaintiff or some justification for nonperformance; (3) failure to
perform the contract by the defendant; and (4) resulting damages to the plaintiff. W.
Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). Defendants argue plaintiff
fails to allege the first and fourth elements of a breach of contract claim. Docket No. 79
at 43-45.
First, defendants argue plaintiff fails to allege Kirby had the capacity to enter
contracts on behalf of the CDOC or the State of Colorado, that the terms of the contract
are vague, and the Court can not infer mutual assent on the subject matter of the
agreement. Id. at 43-44. Plaintiff responds that the complaint alleges that Kirby
entered into the contract on behalf of the Inspector General’s Office and, if he did not
have the authority to do so, discovery will reveal that matter and plaintiff has still stated
20 The parties appear to agree that Colorado law applies to the breach of contract
claim in this case. The Court will operate under the same premise. Cf. Grynberg v.
Total S.A., 538 F.3d 1336, 1346 (10th Cir. 2008) (“Because the parties’ arguments
assume that Colorado law applies, we will proceed under the same assumption.”).
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a claim. Docket No. 103 at 56. Additionally, plaintiff argues that the agreement is not
too vague to specify the terms of the parties’ agreement. Id. at 56-57. “Whether a
contract exists is a question of fact to be determined in light of all the surrounding
circumstances.” Yaekle v. Andrews, 195 P.3d 1101, 1111 (Colo. 2008). The Court is
not persuaded at this stage that plaintiff fails to allege sufficient facts in support a claim
for breach of contract. The complaint alleges plaintiff spoke with Kirby in June 2016
twice and entered an agreement, Docket No. 1 at 11-16, ¶¶ 19-21, 26-37; plaintiff was
to work as a confidential informant and, in exchange, plaintiff was allowed to choose his
room at AVCF and to remain in that room and keep his tablet. Id. Plaintiff alleges
Kirby returned plaintiff’s tablet and plaintiff was in the room he selected. Id. at 13-14,
¶¶ 32-33, 35. To the extent defendants argue Kirby did not have authority to enter into
an agreement, Kirby’s ability to deliver on his promises at the beginning of the parties’
agreement is sufficient to allege he had authority to make the contract. Additionally,
defendants argue that the terms of the contract are vague because plaintiff “generally
alleges he would get his tablet back and be allowed to stay in certain housing in
exchange for acting as a confidential informant for the State,” Docket No. 79 at 44, but
plaintiff alleges a specific room he was to stay in for a specific amount of time and
alleges that his tablet was returned when he spoke to Kirby. Docket No. 1 at 12-16,
¶¶ 26-37. Plaintiff identifies specific factual details. The Court will decline to dismiss
Claim Nine.
Next, defendants argue plaintiff fails to allege he was damaged by the breach of
contract because he “was never subject to violence from the inmates against whom he
acted as a confidential informant” and any other claims of injury are de minimis.
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Docket No. 79 at 45. Plaintiff alleges that his injuries in Claim Nine are based on being
transferred seven times in seventy-two days and that his legal materials and tablet
were wrongfully seized. See Docket No. 1 at 38. Even if, as discussed above, the
alleged threats from other inmates do not rise to a constitutional level of injury for a
claim of deliberate indifference, defendants do not explain why the inconvenience of
transferring seven times is insufficient to state a claim for breach of contract.
Defendants’ assertion that plaintiff’s injuries are de minimis is unsupported by any legal
authority. Because defendants fail to identify any element of plaintiff’s claim that is not
pled sufficiently, the Court will decline to dismiss Claim Nine.
IV. CONCLUSION
A. Amendment and Discovery
Plaintiff requests, if the Court finds any portion of plaintiff’s claims should be
dismissed, that the Court “point out what part is insufficient and to then allow Plaintiff the
ability to amend.” Docket No. 103 at 57. Additionally, plaintiff states a “court may defer
ruling on a Rule 12(b)(6) motion to allow discovery to support the plaintiff’s pleadings”
and states trial courts should “defer ruling on the motion and give the plaintiff an
opportunity to take limited discovery narrowly targeted at obtaining the information
needed to satisfy Rule 8(a)(2).” Id. at 7. Plaintiff requests that the Court allow plaintiff
to conduct discovery before dismissing any claims. Id. at 57-58.
First, the Court will deny plaintiff’s request for discovery before the Court rules on the
motions to dismiss. Plaintiff provides no binding authority from the Tenth Circuit on that
subject. Moreover, far from requesting narrowly targeted discovery, plaintiff’s request
for discovery has no limitations in scope and does not suggest what information plaintiff
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could discover in support of his claims. Next, the Court will deny plaintiff’s request to
amend the complaint. Plaintiff did not choose to amend his complaint as of right in
response to defendants’ motion to dismiss or file a separate motion to amend his
complaint. See Fed. R. Civ. P. 15(a)(1)(A) (“A party may amend its pleading once as a
matter of course within . . . 21 days after service of a motion under Rule 12(b).”) The
Local Rules state that a “motion shall not be included in a response or reply to the
original motion. A motion shall be filed as a separate document.” D.C.COLO.LCivR
7.1(d). Plaintiff did not file an amended complaint in compliance with the Local Rules.
See D.C.COLOLCivR 15.1 Without any specific argument as to why plaintiff should be
allowed to amend his complaint without following the normal procedures for doing so,
the Court will not grant him leave to freely amend his complaint based on one
paragraph at the end of his opposition to defendants’ motion.
B. Prejudice
Neither party discusses which claims, if any, should be dismissed with prejudice.
Dismissal of a pro se complaint under Rule 12(b)(6) should ordinarily be without
prejudice. Gee, 627 F.3d at 1186. Dismissal with prejudice is proper only “where it is
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile
to give him an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th
Cir. 2001) (quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999)).
However, a “dismissal with prejudice is appropriate when the defendants are immune
from suit and further amendment of the plaintiff’s complaint would be futile.” Gabriel v.
El Paso Combined Cts., 842 F. App’x 231, 235 (10th Cir. 2021) (unpublished) (citing
McKinney v. Okla., Dep’t of Human Servs., 925 F.2d 363, 365-66 (10th Cir. 1991).
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Here, plaintiff’s claims are dismissed in part under Rule 12(b)(6) and in part because
some defendants are entitled to absolute immunity and qualified immunity. The Court
will dismiss plaintiff’s claims with prejudice to the extent they are precluded or barred by
absolute or qualified immunity. Because plaintiff is pro se and defendants make no
argument that plaintiff cannot cure the other deficiencies in his complaint, the Court will
dismiss the rest of plaintiff’s claims without prejudice.
C. Remaining Claims
The claims that remain in this case are: subclaim one of Claim One for retaliation in
violation of the First Amendment against defendant Jacobson and Claim Nine for
breach of contract against defendant Kirby.
For the foregoing reasons, it is
ORDERED that Defendants’ Motion to Dismiss [Docket No. 79] is GRANTED in part
and DENIED in part. It is further
ORDERED that plaintiff’s claims against defendants Philip J. Weiser, Attorney
General of the State of Colorado; Cole Woodward, Assistant Attorney General; William
V. Allen, Assistant Attorney General; Jennifer S. Huss, Assistant Attorney General;
Robert C. Huss former Assistant Attorney General are DISMISSED with prejudice. It
is further
ORDERED that subclaims two and four of plaintiff’s first claim and subclaim three of
plaintiff’s seventh claim are DISMISSED with prejudice. It is further
ORDERED that subclaims three and five of plaintiff’s first claim, subclaims one, two,
and four of plaintiff’s seventh claim, and plaintiff’s second, third, fourth, fifth, sixth, and
eighth claims are DISMISSED without prejudice. It is further
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ORDERED that subclaim one of plaintiff’s first claim is DISMISSED without
prejudice, except to the extent it is brought against defendant Adrienne Jacobson. It is
further
ORDERED that every defendant except Adrienne Jacobson and Jay Kirby are
dismissed from this case.
DATED September 21, 2023.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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