Dodge v. Shoemaker, Civil Action No. 08-cv-00738-CBS-KLM

• Decision Date: 11 March 2010
• Docket Number: Civil Action No. 08-cv-00738-CBS-KLM,08-cv-01436-CBS.
• Citation: 695 F. Supp.2d 1127
• Parties: Maeghan DODGE, Plaintiff, v. Joan SHOEMAKER, Warden of Denver Women's Correctional Facility, in her individual and official capacities; William Bokros, Deputy Warden at the Denver Women's Correctional Facility, in his individual and official capacities; Robert Thiede, Jr., an investigator for the Department of Corrections, in his individual and official capacities; Debra Ahlin, a case manager for the Department of Corrections, in her individual and official capacities; and Mark Altholz, an employee of the Denver Reception and Diagnostic Center, in his individual and official capacities, Defendants.
• Court: U.S. District Court — District of Colorado

695 F. Supp.2d 1127

Maeghan DODGE, Plaintiff, v. Joan SHOEMAKER, Warden of Denver Women's Correctional Facility, in her individual and official capacities; William Bokros, Deputy Warden at the Denver Women's Correctional Facility, in his individual and official capacities; Robert Thiede, Jr., an investigator for the Department of Corrections, in his individual and official capacities; Debra Ahlin, a case manager

for the Department of Corrections, in her individual and official capacities; and Mark Altholz, an employee of the Denver Reception and Diagnostic Center, in his individual and official capacities, Defendants.

Civil Action No. 08-cv-00738-CBS-KLM, 08-cv-01436-CBS.

United States District Court, D. Colorado.

March 11, 2010.

Andrea L. Blanscet, Christopher Lynn Ingold, Irwin & Boesen, P.C., Denver, CO, Angelique Layton Anderson, Anderson Associates, Louisville, CO, for Plaintiff.

Christopher Wayne Alber, Colorado Attorney General's Office-Employment Law, Denver, CO, for Defendants.

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED VERIFIED COMPLAINT

CRAIG B. SHAFFER, United States Magistrate Judge.

THIS MATTER comes before the court on Defendants' Motion to Dismiss Plaintiff's Second Amended Verified Complaint (doc. #98), filed on March 31, 2009. Plaintiff Dodge filed her Response to Motion to Dismiss (doc. # 102) on April 27, 2009, and Defendants filed their Reply in Support of Defendants' Motion to Dismiss (doc. # 107) on May 15, 2009. The court heard oral argument on the pending motion during a hearing on December 15, 2009. I have carefully considered the pending motion and related briefs, the arguments of counsel, the entire court file and the applicable case law.

FACTUAL BACKGROUND

Ms. Dodge initiated this action on April 4, 2008 with the filing of her Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a Prisoner Complaint, together with attached exhibits.¹ Plaintiff's original pro se Complaint asserted due process, equal protection, and Eighth Amendment violations against Colorado Department of Corrections ("CDOC") employees Debra Ahlin, William Bokros and Joan Shoemaker. The claims alleged arose from actions that took place while Ms. Dodge was a prisoner at the Denver Women's Correctional Facility ("DWCF"). Plaintiff filed a pro se Amended Complaint (doc. # 10), along with attached exhibits on May 27, 2008, naming the same defendants and reasserting the same basic claims for relief. Counsel entered an appearance on behalf of Ms. Dodge on June 30, 2008.

On July 10, 2008, through counsel Ms. Dodge filed a Complaint in Case No. 08-cv-01436-RMP that asserted claims against nine specifically identified defendants, including Joan Shoemaker, Debra Ahlin, William Bokros, Robert Thiede, Jr., Mark Altholz, and James Fringer. This Complaint generally alleged that (1) "Defendants" had violated Plaintiff's Eighth Amendment rights by failing to protect Ms. Dodge from being sexually assaulted by Defendant Fringer; (2) that "Defendants" had engaged in a conspiracy to "impose further punishment upon plaintiff" to make her "stop claiming that she had been sexually assaulted;" (3) that "Defendants" impaired Plaintiff's First Amendment rights by charging her with criminal conduct in order "to prevent plaintiff from reporting that she was sexually assaulted;" and (4) that "Defendants engaged in a multitude of orchestrated efforts to impose punishment and retribution upon plaintiff without affording due process."

Meanwhile, in Case No. 08-cv-00738, Defendants Ahlin and Shoemaker moved on August 11, 2008 to dismiss Plaintiff's Amended Complaint pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6), and contemporaneously moved to stay discovery pending a decision on their motion to dismiss. Magistrate Judge Mix granted Defendants' Motion to Stay in an Order dated September 8, 2008 (doc. # 37), after concluding that "Defendants should not be subjected to suit until the qualified immunity issues are resolved." On September 17, 2008 with the consent of the parties, the O8-cv-00736 case was referred to this Magistrate Judge to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and D.C.COLO.LCivR 72.2.²

On December 11, 2008, Plaintiff filed on her own behalf a Motion for Leave to Amend Pursuant to Rule 15(c) and 19(a) (doc. # 62), and a proposed Amended Prisoner Complaint. The proposed pleading named as defendants Joseph Ortiz, Joan Shoemaker, Debra Ahlin and William Bokros, and alleged violations of the First Amendment and the Due Process Clause. Plaintiff's counsel filed his own First Motion to Amend Complaint (doc. # 64) on December 12, 2008. That proposed pleading named Debra Ahlin, William Bokros and Joan Shoemaker as defendants and asserted claims for conspiracy under 42 U.S.C. § 1985, cruel and unusual punishment, and unlawful interference with Plaintiff's right to petition the government. At a hearing on January 8, 2009, I denied Ms. Dodge's own motion to amend, finding that the submission was improper given that she was represented by counsel at the time of filing. Cf. Lee v. Imperial Lending, LLC, 2007 WL 3090800 (D.Colo.2007) ("Parties represented by counsel may not file papers pro se"); Durham v. Lappin, 2006 WL 2724091 (D.Colo.2006) ("the Court will not entertain pro se motions by a party who is represented by counsel"). During the same hearing, I allowed Plaintiff's counsel to withdraw his submission with leave to refile.

On February 3, 2009, Ms. Dodge through her new counsel filed a Motion to Perfect Pleadings and File Amended Complaint (doc. # 81). Plaintiff's counsel stated that "in order to proceed with a consolidated case," Ms. Dodge wished to "perfect the pleadings and to consolidate the pleadings into one complaint with all the causes of action together to simplify the administration of these cases." Counsel suggested that "merging the two cases and providing one complaint with consolidated causes of action will provide a clear picture of the nature of the case and the alleged violations." Plaintiff's counsel attached to this motion a proposed Second Amended Verified Complaint that included ten named defendants, as well multiple Joan and John Does. On February 4, 2009, I granted leave for Ms. Dodge's first lawyer to withdraw for this case, recognized the appearance of Plaintiff's new counsel and allowed Plaintiff to file yet another motion for leave to amend her Complaint.

Plaintiff's counsel filed a new Motion to Perfect Pleadings and File Second Amended Complaint (doc. # 87) on February 13, 2009. The court accepted Plaintiff's Second Amended Verified Complaint (doc. # 93) for filing on March 17, 2009. The Second Amended Verified Complaint asserts four claims for relief and names as defendants Warden Shoemaker, Deputy Warden Bokros, Case Manager Ahlin, Investigator Thiede and Department of Corrections employee Altholz.³

In her "Factual Allegations," Ms. Dodge avers that she was raped by Lieutenant Fringer on April 10, 2005, while incarcerated in the Denver Women's Correctional Facility. See Second Amended Verified Complaint, at ¶ 13. Plaintiff claims that she sent separate letters to Warden Shoemaker and Investigator Thiede on April 10, 2005, stating that she had been raped and requesting assistance. Id. at ¶¶ 14 and 15. On April 15, 2005, Ms. Dodge filed a grievance claiming that she had been raped, and on April 21, 2005, she was interviewed by Defendant Altholz. Id. at ¶¶ 19 and 20. According to Plaintiff, Defendant Altholz told her that she needed to withdraw her grievance against Lieutenant Fringer and warned that she would be placed in administrative segregation if she persisted with the grievance. Id. at ¶ 21. On May 5, 2005, Plaintiff was placed in administrative segregation, where she remained until May 6, 2006. Id. at ¶¶ 23, 43 and 49. The Second Amended Verified Complaint alleges that on October 13, 2005, Defendant Thiede warned Ms. Dodge that

we'll prosecute you to the max. I was a sheriff. I have friends. I will handpick the DA and the judge. You won't take down my Lieutenant.

Id. at ¶ 39.

Plaintiff alleges that from her initial placement in administrative segregation on May 5, 2005 through May 2006, Defendant Ahlin signed off on monthly review forms continuing Ms. Dodge's retention in administrative segregation. Id. ¶ 43. She further alleges that from June 10, 2005 through December 14, 2005, Defendant Bokros repeatedly signed administrative segregation review forms approving the decisions of Ms. Ahlin and her fellow classification committee members. Id. at ¶ 45.

On March 16, 2006, Ms. Dodge was named as a defendant in criminal case 06CR1728 filed in Denver County Court (hereinafter "the state criminal case"), charging her with "unlawfully and feloniously attempting to influence Deputy Warden William Bokros and Case Manager Supervisor Debra Ahlin ... by means of deceit or threat of violence or economic reprisal." Id. at ¶¶ 51-52. According to the Second Amended Verified Complaint,

On or about May 3, 2006, Ms. Dodge was arraigned in Denver District Court on case 06CR1728. At that time, Ms. Dodge was presented with the formal charges and became aware that William Bokros and Debra Ahlin, two individuals who had signed off on the Administrative Segregation retention monthly review forms were listed as victims of Ms. Dodge during the period they were reviewing Ms. Dodge's placement in Administrative Segregation.

Id. at ¶ 54. Ms. Dodge claims that she "filed a step 1, step 2 and step 3 grievance asserting that victims of an alleged crime by an inmate should not have reviewing authority over the inmate's placement in Administrative Segregation." Id. at ¶ 55. The Second Amended Verified Complaint contains four claims for relief alleging violations of the Eighth Amendment, the Due Process Clause, and First Amendment, as well as a conspiracy.

Defendants...