Ellis v. Retting et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 23-cv-03425-PAB-CYC
MARK S. ELLIS,
Plaintiff,
v.
AMANDA RETTING,
XAVIERA TURNER,
KRISTI STANSELL,
KYLE JONES,
JUSTIN ENSINGER, and
DOES 1–50,
Defendants.
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Recommendation of Chief United
States Magistrate Judge [Docket No. 60]. The chief magistrate judge recommends that
the Court grant in part and deny in part defendants’ motion to dismiss plaintiff’s first
amended complaint. Id. at 18. Plaintiff Mark Ellis filed objections to the
recommendation on December 6, 2024. 1 Docket No. 65. Defendants responded on
December 20, 2024. 2 Docket No. 68.
1 Mr. Ellis’s filing is titled Plaintiff’s Response to Recommended Disposition with
Respect to Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6). Docket No. 65
at 1. In his response to the recommendation, Mr. Ellis discusses parts of the
recommendation he agrees with, as well as parts he objects to. See id. at 1–12. The
Court will address only Mr. Ellis’s objections.
2 On November 25, 2024, the Court extended the deadline for defendants to
object to the recommendation until December 10, 2024. Docket No. 64. Defendants
have not filed an objection to the magistrate judge’s recommendation.
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I. BACKGROUND
Plaintiff Mark Ellis is an inmate at the Colorado Territorial Correctional Facility
(“CTCF”) in Cañon City, Colorado, which is part of the Colorado Department of
Corrections (“CDOC”). Docket No. 4 at 6, ¶ 1. On August 26, 2002, Mr. Ellis was
convicted of sexual assault on a child. Id., ¶ 3. In May 2021, Mr. Ellis was admitted to
the Sex Offender Treatment and Monitoring Program (“SOTMP”). Id. at 5. On May 2,
2022, Mr. Ellis was terminated from SOTMP without completing the program’s
requirements. Id. Mr. Ellis’s parole application has been “tabled” until Mr. Ellis
completes SOTMP. Id. at 7, ¶ 20. On December 26, 2023, Mr. Ellis filed suit in this
case based on his termination from SOTMP. Docket No. 1 at 5–6.
On January 12, 2024, Mr. Ellis filed an amended complaint in which he brings
five claims for relief against five named defendants and fifty Doe defendants. Docket
No. 4 at 1, 25–29, ¶¶ 203–55. Each of Mr. Ellis’s claims is brought against defendants
Amanda Retting, the SOTMP director; Xaviera Turner, a SOTMP therapeutic treatment
team member; Kristi Stansell, the supervisor of SOTMP at CTFC; Kyle Jones, the
SOTMP coordinator; and Justin Ensinger, a SOTMP therapeutic treatment team
member and supervisor. Id. at 6–7, ¶¶ 10–14. Mr. Ellis’s first claim is for violations of
his First Amendment rights. Id. at 25. Mr. Ellis alleges that his First Amendment rights
were violated because his termination from SOTMP was based on his religious beliefs.
Id. at 26, ¶ 211. He also alleges that defendants retaliated against him for filing
grievances concerning his termination from SOTMP in violation of his free speech
rights. Id. at 25, ¶ 205. Mr. Ellis’s second claim is for violations of his Due Process
rights under the Sixth and Fourteenth Amendments based on his termination from
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SOTMP. Id. at 26–27, ¶¶ 214–25. Mr. Ellis’s third claim is for violations of his right to
be free from cruel and unusual punishment under the Eighth and Fourteenth
Amendments based on defendants’ alleged deliberate indifference to Mr. Ellis’s medical
and psychological needs. Id. at 27–28, ¶¶ 226–41. Mr. Ellis’s fourth claim alleges a
civil conspiracy to deprive Mr. Ellis of his rights under the Equal Protection Clause of the
Fourteenth Amendment based on defendants “depriving him of SOTMP treatment.” Id.
at 28–29, ¶¶ 242–48. Mr. Ellis’s fifth claim is for violations of the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) based on defendants’ implementation of
anti-religious policies that he claims contributed to his termination from SOTMP. Id. at
29, ¶¶ 249–55.
In the amended complaint, Mr. Ellis seeks the following relief: (1) an injunction
against defendants moving Mr. Ellis to a prison outside the state of Colorado or placing
him in “Administrative Segregation,” (2) an order reinstating Mr. Ellis in SOTMP, (3) an
order requiring defendants to accept certain parts of Mr. Ellis’s “Risk Management Plan”
and placing Mr. Ellis on “maintenance status”; (4) an order directing defendants to
inform the parole board that Mr. Ellis has completed SOTMP; and (5) compensatory
damages, punitive damages, and attorney’s fees. Id. at 29–30, ¶ 256.
On November 12, 2024, Chief Magistrate Judge Michael Hegarty issued a
recommendation that defendants’ motion to dismiss be granted in part and denied in
part. Docket No. 60 at 18. Chief Magistrate Judge Hegarty found that the amended
complaint plausibly states Mr. Ellis’s first, third, fourth, and fifth claims for relief. Id. at
6–15. Pursuant to his obligation to construe Mr. Ellis’s complaint liberally, Chief
Magistrate Judge Hegarty construed Mr. Ellis’s second claim as being brought under
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the Fifth and Fourteenth Amendments, despite the complaint stating that the claim is
brought under the “6 th and 14th Amendments.” Id. at 10 (citing Docket No. 4 at 26). The
recommendation finds that Mr. Ellis plausibly states a Due Process claim under the Fifth
and Fourteenth Amendments and recommends denying that part of defendants’ motion
seeking to dismiss Mr. Ellis’s second claim. Id. at 10–14. However, to the extent that
Mr. Ellis does bring a claim under the Sixth Amendment, Chief Magistrate Judge
Hegarty recommends that the claim be dismissed. Id. at 10 (“I agree with Defendants
that ‘the Sixth Amendment by its terms applies only to criminal proceedings,’ and is
therefore inapplicable here.” (quoting Ferguson v. N.M. Corr. Dep’t, 38 F. App’x 561,
563 (10th Cir. 2002) (unpublished)). Because Chief Magistrate Judge Hegarty found
that Mr. Ellis has plausibly alleged his constitutional claims, Chief Magistrate Judge
Hegarty recommends rejecting defendants’ assertion of qualified immunity. Id. at 17.
The recommendation considers defendants’ arguments regarding the scope of
damages Mr. Ellis can recover. See id. at 15–17. In the motion to dismiss, defendants
argue that, under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), Mr.
Ellis must allege physical injury in order to recover compensatory damages. Docket No.
35 at 18. They claim that Mr. Ellis’s amended complaint lacks allegations of physical
injury and that he cannot recover compensatory damages for the emotional and
psychological harm alleged in the complaint. Id. at 28–31. Chief Magistrate Judge
Hegarty agrees, stating that, although the “PLRA permits recovery of nominal damages,
declaratory and injunctive relief, and punitive damages,” Docket No. 60 at 16 (citing
Searles v. Van Bebber, 251 F.3d 869, 881 (10th Cir. 2001); Perkins v. Kansas Dep’t of
Corr., 165 F.3d 803 (10th Cir. 1999)), “to the extent Plaintiff brings a request for
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compensatory damages, I recommend the Motion be granted to dismiss such requests
based on an absence of physical injury as defined by the PLRA.” Id. (footnote omitted).
Defendants also argue that Mr. Ellis’s claims for monetary damages against
defendants in their official capacities should be dismissed because Colorado has not
waived its sovereign immunity. Docket No. 35 at 31–32. Chief Magistrate Judge
Hegarty recommends that Mr. Ellis’s claims for monetary damages against defendants
in their official capacities be dismissed because such damages are prohibited by the
Eleventh Amendment. Docket No. 60 at 16–17.
Mr. Ellis objected to the recommendation on December 6, 2024, Docket No. 65,
and defendants responded on December 20, 2024. Docket No. 68.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough 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)). “The ‘plausibility’ standard
requires that relief must plausibly follow from the facts alleged, not that the facts
themselves be plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F. Supp. 3d 1163,
1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)).
Generally, “[s]pecific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at
555) (alterations omitted). However, a plaintiff still must provide “supporting factual
averments” with her allegations. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir.
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2009) (“[C]onclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” (citation omitted)). Otherwise, a court need
not accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d
1227, 1232 (10th Cir. 2002). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it
has not shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). 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. Khalik, 671 F.3d 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, 534 F.3d at 1286 (alterations omitted).
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff’s pro se status, the Court
construes his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
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III. ANALYSIS
Mr. Ellis makes two objections. See Docket No. 65 at 8–12. First, Mr. Ellis
objects to Chief Magistrate Judge Hegarty’s determination that he has failed to allege
physical injury to support his recovery of compensatory damages under the PLRA. Id.
at 8. Mr. Ellis states that, although Mr. “Ellis reluctantly agrees that precedent decisions
have held that the PLRA prohibits compensatory damages for psychological and
emotional harms,” Mr. “Ellis continues to assert that he has suffered severe physical
injuries as a result of the Defendants’ actions and failures to act.” Id. Mr. Ellis does not
identify which allegations in the first amended complaint he believes demonstrate that
he has suffered severe physical injury. Reviewing the first amended complaint, the
Court agrees with Chief Magistrate Judge Hegarty that the “list of injuries Plaintiff pleads
all appear to be physical manifestations of emotional harm.” Docket No. 60 at 15–16
(citing Docket No. 4 at 23, ¶ 194; Hall v. Elbe, No. 18-cv-01056-PAB-NRN, 2022 WL
16855691, at *13 (D. Colo. Nov. 9, 2022) (“While plaintiff argues that he suffered
‘physical injuries,’ he defines such injuries as the physical manifestations of his mental
health disorders. . . . These allegations are insufficient to withstand the ‘physical injury’
requirement of Section 1997e(e).”)); see also Docket No. 4 at 23, ¶ 194 (“(a) insomnia;
(b) severe headaches”). Mr. Ellis has not shown that Chief Magistrate Judge Hegarty
erred in concluding that Mr. Ellis cannot recover compensatory damages under the
PLRA.
Mr. Ellis argues that “the PLRA does not prohibit all forms of damages for
constitutional violations meted out by Defendants in a[ ]carceral environment” and that
Chief Magistrate Judge Hegarty’s determination that he cannot recover compensatory
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damages should not result in the dismissal of his claims. Docket No. 65 at 8–10. Chief
Magistrate Judge Hegarty does not recommend dismissing any of Mr. Ellis’s claims, and
the recommendation notes that Mr. Ellis may seek “nominal damages, declaratory and
injunctive relief, and punitive damages.” Docket No. 60 at 16. Therefore, the Court
overrules Mr. Ellis’s first objection.
Second, Mr. Ellis objects to Chief Magistrate Judge Hegarty’s determination that
Mr. Ellis cannot recover monetary damages against defendants in their official
capacities. Docket No. 65 at 10–12. Mr. Ellis claims that defendants’ violations of his
constitutional and statutory rights were willful and wanton. Id. at 10. He contends that,
under the Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24-10-118(2)(a),
defendants’ wanton conduct waives sovereign immunity. Id. at 10–11. Mr. Ellis raises
the issue of whether the Colorado Governmental Immunity Act waives sovereign
immunity for the first time in his objection. As such, Mr. Ellis has waived this argument.
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time
in objections to the magistrate judge’s recommendation are deemed waived.”); see also
Maurer v. Idaho Dep’t of Corr., 799 F. App’x 612, 614 n.1 (10th Cir. 2020)
(unpublished). Even if the Court were to consider Mr. Ellis’s argument, the Court would
overrule the objection. The Tenth Circuit has held that the Colorado Governmental
Immunity Act does not waive the state’s Eleventh Amendment immunity in federal court.
Griess v. State of Colo., 841 F.2d 1042, 1044 (10th Cir. 1988) (“we agree with the
district court’s conclusion that the GIA, particularly Colo. Rev. Stat. §§ 24–10–104 and
106, does not effect a waiver of the state’s constitutional immunity to suit in federal
court”); see also Est. of Ceballos v. Husk, 919 F.3d 1204, 1222 n.7 (10th Cir. 2019)
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(“this court [has] held that Colorado’s enactment of the CGIA immunity provision . . . did
not waive the State’s Eleventh Amendment immunity from suit in federal court on a
federal § 1983 claim”); Quintana v. Dodge, 2024 WL 1048959, at *1 (10th Cir. Mar. 11,
2024) (unpublished) (Colo. Rev. Stat. § 24-10-118 protects the state’s employees from
civil liability for state torts committed in the course of employment). Therefore, the Court
overrules Mr. Ellis’s second objection and accepts the recommendation.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of Chief United States Magistrate Judge
[Docket No. 60] is ACCEPTED. It is further
ORDERED that the objections in Plaintiff’s Response to Recommended
Disposition with Respect to Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(6)
[Docket No. 65] are OVERRULED. It is further
ORDERED that Defendants’ Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Fed. R. Civ. P. 12(B)(6) [Docket No. 35] is GRANTED in part
and DENIED in part. It is further
ORDERED that claim three is DISMISSED with prejudice to the extent claim
three asserts a Sixth Amendment violation. It is further
ORDERED that plaintiff’s request for compensatory damages is DENIED. It is
further
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ORDERED that plaintiff’s request for monetary relief from defendants in their
official capacities is DENIED.
DATED January 21, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
____	__________	__	__	__________	____ ______	_______ __________________________________________________________
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