Esquibel v. Raemisch

• Decision Date: 08 February 2016
• Docket Number: Civil Action No. 15-cv-00408-REB-KLM
• Parties: MARK A. ESQUIBEL, Plaintiff, v. RICK RAEMISCH, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, ROGER WERHOLTZ, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, TONY CAROCHI, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, TOM CLEMENTS, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, JOE ORTIZ, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, JOHN SUTHERS, individually and in his official capacity as Executive Director of the Colorado Department of Corrections, MARY CARLSON, individually and in her official capacity as Time Computation Manager of Colorado Department of Corrections, and JOHN DOE, individually and in his/her official capacity as Executive Director of the Colorado Department of Corrections, Defendants.
• Court: U.S. District Court — District of Colorado

MARK A. ESQUIBEL, Plaintiff, v. RICK RAEMISCH, individually and in his official capacity as Executive Director of the

Colorado Department of Corrections,

ROGER WERHOLTZ, individually and in his official capacity as Executive Director of the

Colorado Department of Corrections,

TONY CAROCHI, individually and in his official capacity as Executive Director of the

Colorado Department of Corrections,

TOM CLEMENTS, individually and in his official capacity as Executive Director of the

Colorado Department of Corrections,

JOE ORTIZ, individually and in his official capacity as Executive Director of the Colorado

Department of Corrections,

JOHN SUTHERS, individually and in his official capacity as Executive Director of the

Colorado Department of Corrections,

MARY CARLSON, individually and in her official capacity as Time Computation Manager

of Colorado Department of Corrections, and

JOHN DOE, individually and in his/her official capacity as Executive Director of the

Colorado Department of Corrections, Defendants.

Civil Action No. 15-cv-00408-REB-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 8, 2016

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) [#21],¹ filed by Defendants Rick Raemisch ("Raemisch") and MaryCarlson ("Carlson").² Plaintiff filed a Response [#29] in opposition to the Motion [#21]. Defendants did not file a Reply. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#21] has been referred to the undersigned for recommendation. See [#27]. The Court has reviewed the Motion, Response, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that Motion [#21] be GRANTED.

I. Summary of the Case

Plaintiff, who proceeds pro se³ and in forma pauperis, is in the custody of the Colorado Department of Corrections ("CDOC") and currently is incarcerated at the Crowley County Correctional Facility in Olney Springs, Colorado. Compl. [#1] at 2.

Plaintiff states that this case involves CDOC's calculation of his mandatory release date ("MRD"). Id. at 5. Plaintiff contends that under Colorado law the correct method of calculating a MRD is to take the number of years an offender is sentenced, subtract the time actually served, and then further reduce the ultimate sentence by any presentence credit, earned time, and good time the offender has accumulated. Id. Plaintiff further contends that CDOC is correct that it has discretion to award good time or earned time or deduct presentence confinement credit for jail time, but once an inmate accumulates earned or good time or presentence confinement time, "it must be actually applied to hisrelease dates." Id. Plaintiff also contends that he "was possibly denied discretionary parole" when he reached his parole eligibility date because his MRD was perceived to be too far in the future. Id. at 6. Thus, he avers, the miscalculation of the MRD results in miscalculation of the statutory discharge date, i.e., the date of parole termination. Id. at 5, 6. Finally, Plaintiff contends that the date of his parole termination is being calculated in the same manner that Randel Ankeney's ("Ankeney") parole termination date was calculated, based on the Colorado Court of Appeals' holding in Ankeney v. Raemisch, No. 2012CA1930, 2013 WL 4495117 (Colo. App. Aug. 22, 2013). Id.

In each claim, Plaintiff asserts that his Fourth, Fourteenth, and Eighth Amendment constitutional rights are being violated because he served a sentence beyond what he should have served and because Defendants miscalculated his statutory discharge date. Plaintiff also asserts that he has a "vested liberty interest in all of the good time and earned time which has been awarded to him under statute" and that once the time has been awarded, "it must be applied as such." Id. at 10. Plaintiff seeks declaratory and injunctive relief as well as monetary damages. Id. at 17-18.

Defendants move to dismiss Plaintiff's Complaint [#1] on the basis of Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Motion [#21]. The Court addresses the specifics of Defendants' arguments regarding dismissal in the Analysis section below.

II. Standard of Review

A. Fed. R. Civ. P. 12(b)(1)

Subject matter jurisdiction may be challenged by a party or raised sua sponte by the court at any point in the proceeding. E.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19, (1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed.R. Civ. P. 12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint supported by affidavits or other documents, the Court makes its own factual findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 1003.

Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case before it. Dismissal of a federal claim for lack of subject-matter jurisdiction "is proper only when the claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Because "federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

B. Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficientfacts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). That said, "[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;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik, 671 F.3d at 1192 .

"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "Where a complaint pleads factsthat are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (citation omitted).

III. Analysis

Defendants primarily rely on a recent Colorado Supreme Court opinion to support their request to dismiss Plaintiff's lawsuit. See Motion [#21] at 2. On March 16, 2015, the Colorado Supreme Court issued an opinion in Ankeney v. Raemisch, 344 P.3d 847 (Colo. 2015) (en banc), that reversed a decision of the Colorado Court of Appeals (relied upon by Plaintiff) and the Fremont District Court and held that inmates, such as Mr. Ankeney, are not entitled to have their sentences calculated in the manner advocated by Mr. Ankeney. The Colorado Supreme Court found that for inmates whose crimes were committed after July 1, 1993, good time credits awarded pursuant to Colo. Rev. Stat. § 17-22.5-301, and earned time credits awarded pursuant to § 17-22.5-302(1), "do not constitute the service of an inmate's sentence but rather have significance only for calculating his eligibility for release to parole." Ankeney, 344 P.3d at 852 (citing Jones v. Martinez, 799 P.2d 385, 387 (Colo. 1990); Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990); Bynum v. Kautzky, 784 P.2d 735, 738-39 (Colo. 1989); Renneke v. Kautzky, 782 P.2d 343, 345 (Colo. 1989)).

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