Opinion
Civil Action 1:23-cv-00178-CNS-SBP
02-29-2024
BRADFORD WAYNE SNEDEKER, SR., Plaintiff, v. STATE OF COLORADO, ANJALI NANDI, DENISE MERTZ, ANGELA CAMPBELL, JENNIFER BAUMGARDNER, DOUGLAS WILSON, MEGAN RING, APRIL COLEMAN, NELISSA MILFELD, HILARY BERNAND, FRANK WIEGLE, NICOLE COLLINS, MATT MCCONNELL, SCOTT MCOMAS, BEN COLLETT, MARC MALAVITZ, GREG FRIEDMAN, STANLEY GARRETT, MICHAEL DOUGHERTY, SEAN FINN, MS. JEAN, MS. VAN NICE, JACK PETERS, CHRISTINE RINKE, JANE WALSH, MARK HUSMANN, JUDGE DOLORES MALLARD, JUDGE PATRICK BUTLER, JUDGE PATRIC FRANCIS MULIVAHILL, JUDGE BAKKE, JUDGE MONTGOMERY, JIM TANNER, STERLING CORRECTIONAL FACILITY, CROWLEY COUNTY CORRECTIONAL FACILITY, CORE CIVIC, CURTIS JOHNSON, DEBBIE CROSSER, MARIO CANO, AMIE TATE, and MERIDETH MCGRATH, Defendants.
RECOMMENDATION ON SEVERAL MOTIONS
Susan Prose United States Magistrate Judge
This matter comes before this court on several motions referred to this court in this case filed by the pro se Plaintiff Bradford W. Snedeker, Sr. (“Plaintiff” or “Mr. Snedeker”). Because the procedural history has become tangled, this court first identifies the pending motions that are addressed in this Recommendation. Two other referred motions will be addressed by separate order.
1. ECF No. 36. Boulder County Sheriff Curtis Johnson (“the Sheriff”) moves to dismiss Mr. Snedeker's first amended complaint (the “FAC,” ECF No. 6). In his response, Mr. Snedeker conceded that he failed to adequately plead facts to support his claim against the Sheriff, and that he anticipated seeking leave to amend the FAC to correct those deficiencies. ECF No. 44 at 2-3. Mr. Snedeker opposed the Sheriff's other arguments for dismissal (the Colorado Governmental Immunity Act, the Rooker-Feldman doctrine, and qualified immunity). Id. at 3-7. For reasons that will be discussed below, the court recommends treating this motion as directed to Mr. Snedeker's Second Amended Complaint (“SAC,” ECF No. 51-1), which is the subject of a pending motion seeking leave to file the SAC.
2. ECF No. 37. Defendants Mark Husmann, Christine Rinke, and Adrian Van Nice move to quash service and to dismiss for insufficient service of process. Mr. Snedeker responded and conceded that he failed to properly serve the FAC on these Defendants. ECF No. 45 at 3. In the meanwhile, however, Mr. Snedeker reattempted service on these Defendants (whether of the FAC or the proposed SAC is unclear). These Defendants join (with other Defendants) in another motion to quash service and to dismiss. ECF No. 95. In light of the superseding motion at ECF No. 95, this court RECOMMENDS terminating ECF No. 37 as moot.
3. ECF No. 39. CoreCivic and Crowley County Correctional Facility (“Crowley”) move to dismiss the FAC under Rule 12(b)(6). Mr. Snedeker responded and conceded that the FAC fails “to state the facts relevant and specific to Defendants and failed to properly allege causes of action against each of them sufficient to survive a motion to dismiss.” ECF No. 43 at 12. For reasons that will be discussed below, the court recommends treating this motion as directed to the SAC.
4. ECF No. 51. Mr. Snedeker moves for leave to file the proposed SAC. The Sheriff opposes this motion on several grounds. ECF No. 96. Mr. Snedeker replied. ECF No. 105. This court will address this motion first (below), recommending that it be granted in part and denied in part, and then the court will turn to the motions to dismiss that the court recommends treating as directed to the SAC.
5. ECF No. 95. The “Boulder County Defendants” (Michael Dougherty, Sean Finn, Stanley Garnett, Mark Husmann, Jack Peters, Christine Rinke, Ms. Van Nice, and Jane Walsh) move to quash service and to dismiss for insufficient service of process under Rule 12(b)(5). Mr. Snedeker opposes. ECF No. 103 (filed Nov. 20, 2023). The Boulder County Defendants did not file a reply. The court RECOMMENDS terminating ECF No. 95 as moot, in light of the court's recommendation to dismiss all claims against these Defendants for lack of subject matter jurisdiction.
6. ECF No. 99. Defendants Judge Bakke, April Coleman, Nicole Collins, Denise Mertz, and the State of Colorado (collectively referred to as the “State Defendants”) move to dismiss under Rules 12(b)(1), (5) and (6). Judge Bakke is a judicial officer in the 20th Judicial District, Boulder County. Ms. Coleman and Ms. Collins are attorneys in the Office of the State Public Defender. Ms. Mertz works in the Boulder County Probation Department. Mr. Snedeker responded to this motion. ECF No. 104. The State Defendants replied. ECF No. 108.
7. ECF No. 101. Defendant Sterling Correctional Facility's (“Sterling”) motion to quash service and to dismiss pursuant to Rule 12(b)(5) (Nov. 9, 2023). Mr. Snedeker opposes. ECF No. 106 (Nov. 24, 2023). Sterling replied. ECF No. 109 (Dec. 8, 2023). As will be seen, this court recommends dismissing all claims in the SAC against Sterling. As such, the court RECOMMENDS terminating ECF No. 101 as moot.
The undersigned magistrate judge addresses these motions pursuant to the order referring case (ECF No. 13), the several memoranda referring the motions, and 28 U.S.C. § 636(b).
I. Factual Background
Mr. Snedeker filed his original complaint on January 20, 2023. ECF No. 1. He filed the FAC on February 3, 2023. ECF No. 6. This action was originally assigned for initial review under 28 U.S.C. § 1915, but Mr. Snedeker later paid the filing fee. ECF No. 9 (March 22, 2023).
A. Mr. Snedeker's Allegations
In the FAC, Mr. Snedeker names as Defendants each of the numerous persons identified in the caption above. The FAC spans 19 pages and alleges facts concerning Mr. Snedeker's prosecution, conviction, sentencing, probation, and resentencing in Colorado state courts. It appears that Mr. Snedeker alleges he was convicted of securities fraud “on or about April 18, 2015.” FAC ¶ 7. On July 29, 2015, Mr. Snedeker was sentenced on those offenses to four years of incarceration (on one count) and 20 years of probation (on another count), to be served consecutively. Id. ¶ 9. He served his four-year sentence in Crowley and was released in May 2016, having earned good-time credit, to a halfway house called “Fort Collins. SAC ¶ 167. He lived seven months in the Fort Collins halfway house until the summer of 2017 when he was placed on parole. He exited parole in June 2018. Id. ¶ 171. He then went home to live with his family and was working, when “he was suddenly arrested again on false charges, and entered the Boulder County jail on June 13, 2019.” Id. ¶ 173.
At this point, the SAC sets the facts out more clearly than the FAC. As will be seen below, the court recommends granting the motion for leave to file the SAC in part.
Mr. Snedeker alleges poor conditions or treatment at Fort Collins, but he does not name Fort Collins as a Defendant or allege that CoreCivic owned or operated it.
In June 2019, Mr. Snedeker alleges that several individuals in the Boulder County Probation department falsely accused him of violating his sentence of probation. Id. ¶¶ 184-87. Mr. Snedeker posted bond in July 2019. Id. ¶ 188. However, in the meanwhile, the Colorado Supreme Court issued Allman v. People, 451 P.3d 826, 833-35 (Colo. 2019), which held that sentencing a defendant to incarceration on one count and probation on another is not permissible. SAC ¶ 175. The prosecutor on Mr. Snedeker's revocation proceeding agreed that resentencing (on the 2015 conviction) was appropriate and the revocation proceeding was dismissed. Mr. Snedeker alleges that in February 2021, he was resentenced to the same twenty-year probation sentence (with credit for the four years he had served), and in addition was sentenced to four more years of incarceration-apparently on another state court conviction in which he had originally been sentenced to fifteen years of probation. Id. ¶¶ 195-96. He went back to prison on February 11, 2021. Id. ¶ 198.
This sentence was upheld by the Colorado Court of Appeals. People v. Snedeker, 535 P.3d 128, 132 (Colo.App. 2023) (concluding that “the district court legally resentenced Snedeker to twenty years of probation with four years of credit for time served”).
Mr. Snedeker served the second four-year sentence in Sterling and was released in December 2022 on good-time credit. Id. ¶ 208. He was then sent to Longmont Community Treatment Center, a halfway house operated by Defendant CoreCivic. Id. He stayed there until February 24, 2023 (i.e., until shortly after he filed the FAC). Id. ¶ 216. At that time, Mr. Snedeker was again arrested (falsely, according to him) and charged with new offenses. Id. ¶¶ 216-47. The State Defendants note that there are two new criminal proceedings pending against Mr. Snedeker, both filed in 2023. Mr. Snedeker also alleges that his appeal of the 2021 resentencing (or revocation of his probationary sentence) was pending at the time he filed the proposed SAC. Id. ¶ 189.
In the FAC, Mr. Snedeker brought four claims “against All Defendants:” Count One under 42 U.S.C. § 1983, for violations of the Fifth and Fourteenth Amendments; Count Two for fraud; Count Three for negligence; and Count Four for defamation. In his request for relief on those claims,
Plaintiff prays as follows:
(a) For an order that states Plaintiff was wrongfully and unjustly convicted of a securities violation;
(b) For a declaratory judgment that Defendants' conduct as alleged herein violated Plaintiff s rights under the United States Constitution and Federal Law;
(c) For Compensatory Damages in the amount of $25,000,000.00;
(d) For costs of suit and attorney's fees;
(e) For such other and further relief as the Court deems just and proper.
FAC at 5.
In the SAC, Mr. Snedeker proposes to add two Defendants (his sister-in-law, Ms. Paswaters, and Boulder County) and to add nine claims against all Defendants for a total of twelve claims: (1) a civil claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (2) an omnibus claim under § 1983 for malicious prosecution and arrest, imprisonment on “a false violation,” unconstitutional conditions of confinement, due process violations in permitting an allegedly inebriated judge to conduct his trial and sentencing, and other “unjust behavior in the way Plaintiff was treated during his investigation, incarceration, parole, and probation,” all in violation of the Fifth, Eighth and Fourteenth Amendments; (3) a claim labeled “Abuse of Public Office and Official Oppression by all Defendants except Paswaters, C.R.S. § 18-8-403”; (4) a claim for “Abuse of Process by Paswaters and all Attorney and Judicial Defendants”; (5) a civil conspiracy claim; (6) a fraudulent misrepresentation claim; (7) a claim alleging a violation of the Colorado Organized Crime Act (“COCCA”), Colo. Rev. Stat. § 18-17-101; (8) a claim for damages under 28 U.S.C. § 1495 for unjust conviction and imprisonment for an offense against the United States; (9) a claim for intentional infliction of emotional distress; (10) a negligence claim; (11) a defamation claim; and (12) a claim for punitive damages. SAC at pp. 43-61, ¶¶ 262-385. The relief Mr. Snedeker seeks includes damages of $100 million dollars (see, e.g., id. ¶¶ 261, 275, 304), and an “order stating that Plaintiff was unlawfully and unjustly convicted of securities violations in Colorado.” Id. at 61.
B. Procedural History in this Court
1. Early History Relating to Service of Process on Defendants
On March 30, 2023, Magistrate Judge Hegarty denied Mr. Snedeker's motion to stay this case “based on proceedings pending in state court.” He reminded Mr. Snedeker of the 90-day deadline under Federal Rule of Civil Procedure 4(m) for service of the complaint on Defendants. ECF No. 14.
On March 31, 2023, the Clerk of Court issued a letter to Mr. Snedeker providing a summons for him to serve on the Defendants. ECF No. 16. The letter included a copy of Federal Rule of Civil Procedure 4. ECF No. 16-3.
By mid-June 2023, several defendants filed motions to dismiss (on several legal theories) and motions to quash the summonses and to dismiss for insufficient service of process. ECF Nos. 36, 37, 39. On the same day that Mr. Snedeker filed responses in opposition to those motions, he filed a combined response to this court's order to show cause (issued in the meanwhile) concerning service on many Defendants and his motion to amend the FAC. ECF No. 42. This court noted that responses and motions cannot be combined in one document and denied the motion to amend without prejudice to refiling the motion with a version of the proposed amended complaint reflecting underlines and strike-throughs of altered text, as required under D.C.COLO.LCivR 15.1(b). ECF No. 48 (July 20, 2023 minute order). The same day, this court also granted Mr. Snedeker an extension of time to serve the remaining Defendants, to October 19, 2023. ECF No. 47.
2. Mr. Snedeker's Motion for Leave to File the SAC
Three months later, on the deadline to serve all remaining Defendants, Mr. Snedeker filed a new motion to amend the FAC. ECF No. 51 (October 19, 2023). He attached the proposed SAC, but it does not show the alterations in the text as required by Local Rule 15.1(b). ECF No. 51-1. In the motion, Mr. Snedeker stated that he seeks to add two defendants and nine claims for relief. He said that “[o]nce [the motion to amend is] granted, he will serve copies upon all Defendants named therein (with the exception of those who have already filed documentation on Pacer), by a process server, in accordance with Rule 4.” ECF No. 51 at 2.
As noted above, the Sheriff opposes Mr. Snedeker's motion to file the SAC. ECF No. 96. Mr. Snedeker has filed a reply. ECF No. 105. In his reply, Mr. Snedeker asks the court to order Defendants to privately retain attorneys at their own expense instead of being represented by the State Attorney General's office or other counsel retained for them by their agency. This request is denied as frivolous. Mr. Snedeker does not cite any supporting legal authority, and this court is not aware of any law under which such relief would be appropriate.
3. Further History Relating to Service of Process
However, Mr. Snedeker did not await even his own filing of the motion to amend-let alone the court's ruling on that motion-before serving the proposed SAC. See, e.g., ECF No. 57 (summons returned executed to Jim Tanner as of October 18, 2023, but not indicating which pleading was served with the summons); ECF No. 93 (Mr. Tanner's motion stating that he was served the proposed SAC the day before Mr. Snedeker filed the motion to amend). On the October 19, 2023 deadline for serving all Defendants, Mr. Snedeker filed numerous returns of service (some executed, others unexecuted), all reflecting attempts to serve various Defendants either the day before or that day. ECF Nos. 53-89. It is unclear from those returns whether Mr. Snedeker purports to have served the FAC or proposed SAC.
The next day, October 20, 2023, Mr. Snedeker filed a motion to deem service complete to all Defendants, and specifically on the five individuals whom Mr. Snedeker asserts were intentionally “dodging” service. ECF No. 91. On November 7, 2023, Mr. Tanner filed a motion to extend the deadline to answer the SAC. ECF No. 93. This court will address these two motions by separate order.
Also on November 7, 2023, several Defendants filed a motion to quash service and to dismiss for lack of service. ECF No. 95. On November 8, 2023, the State Defendants likewise moved to dismiss under several theories. ECF No. 99. On November 9, 2023, the Sterling
Correctional Facility moved to dismiss for lack of service. ECF No. 101.
II. Legal Standards
A. Motions to Amend Pleadings
In this case, the court has not yet entered a scheduling order with a deadline for amending pleadings. Accordingly, the standard for Mr. Snedeker's motion to amend is set forth in Federal Rule of Civil Procedure 15(a).
Under Rule 15(a), “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The court has discretion whether to allow an amendment. Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1217 (10th Cir. 2022), cert. denied sub nom. San Juan Cnty. v. Chilcoat, 143 S.Ct. 1748 (2023)). The court exercises that discretion in accord with the Supreme
Court's long-standing guidance:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.”Foman v. Davis, 371 U.S. 178, 182 (1962); see also, e.g., Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1101-02 (10th Cir. 2019) (same); Crocs, Inc. v. Joybees, Inc., No. 21-cv-02859-GPG-SBP, 2023 WL 8851822, at *5 (D. Colo. Oct. 6, 2023) (“Hence, grounds for denying a motion to amend after the scheduling order deadline include a lack of diligence (lack of good cause), undue delay, bad faith, dilatory motive, repeated failure to cure, and undue prejudice.”). The party contesting the motion to amend has the burden of proving that the amendment should be refused on one of these bases.” Openwater Safety IV, LLC v. Great Lakes Ins. SE, 435 F.Supp.3d 1142, 1151 (D. Colo. 2020).
Moreover, “[d]enying a motion to amend based on futility is uncommon in this District and usually involves claims that are facially unsupported in the proposed amendment.” Crocs, 2023 WL 8851822, at *8 (citing Tatten v. Bank of Am. Corp., 912 F.Supp.2d 1032, 1044 (D. Colo. 2012) (finding a pro se plaintiff's proposed amendment to bring tort claims against Bank of America's chief executive officer futile because “[t]here is absolutely no factual support for the proposition that Defendant Moynihan ‘approved of, sanctioned, directed, actively participated in, or cooperated in' any of the alleged wrongdoing”)). It is thus relatively rare that the court recommends denying a proposed amendment as futile. Id.
In addition, Local Rule 15.1 requires (unless the plaintiff is a pro se prisoner) that a plaintiff attach to an opposed motion to amend a red-lined version of the proposed amended pleading. D.C.COLO.LCivR 15.1(b). Mr. Snedeker does not assert that he is a prisoner and, in his motion to amend, recognizes that this local rule applies here. It reads:
A party who files an opposed motion for leave to amend or supplement a pleading shall attach as an exhibit a copy of the proposed amended or supplemental pleading which strikes through (e.g., strikes through) the text to be deleted and underlines
(e.g., underlines) the text to be added. Unless otherwise ordered, the proposed amended or supplemental pleading shall not incorporate by reference any part of the preceding pleading, including exhibits. Unless otherwise ordered, if a motion for leave to amend or supplement a pleading is granted, the moving party shall file and serve the amended or supplemental pleading on all parties under Fed.R.Civ.P. 5 no later than 14 days after the filing of the order granting leave to amend or supplement.
Id. B. Rule 12(b)(1) Motions
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), rendering them “duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Importantly, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack, the court takes the allegations in the complaint as true; for a factual attack the court may not presume the truthfulness of the complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)). The burden of establishing jurisdiction always rests with the party asserting jurisdiction-here, Mr. Snedeker. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
C. Rule 12(b)(6) Motions
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks 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.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a Rule 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint,” and that the allegations must be sufficient to nudge a plaintiff's claims “across the line from conceivable to plausible”).
D. Motions to Quash Service or Dismiss for Insufficient Service of Process
“[A] motion made under Rule 12(b)(5) challenges the mode or lack of delivery of a summons and complaint.” Richardson v. Carl's Jr., No. 21-cv-01332-DDD-NYW, 2021 WL 5494261, at *2 (D. Colo. Nov. 23, 2021) (internal quotation marks omitted, citing Gallan v. Bloom Business Jets, LLC, 480 F.Supp.3d 1173, 1178 (D. Colo. 2020)). “The court may dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process.” Meyers v. Pfizer, Inc., No. 13-cv-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. Apr. 21, 2014), report and recommendation adopted, 2014 WL 2490158 (D. Colo. June 2, 2014), aff'd, 581 Fed.Appx. 708 (10th Cir. 2014). “Without proof of service, the Court lacks personal jurisdiction over the Defendant.” Id. (citing Okla. Radio Assocs. v. FDIC, 969 F.2d 940 943 (10th Cir. 1992)); see also Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir. 2008) (same). That is, “[p]roper service is a jurisdictional prerequisite to litigation.” Richardson, 2021 WL 5494261, at *2.
However, instead of dismissing the plaintiff's claims against an improperly served defendant, the court may instead quash service and allow the plaintiff to attempt re-serving the defendant. “Motions under Federal Rule of Civil Procedure 12(b)(5) offer the district court a course of action-quashing the process without dismissing the action-other than simply dismissing the case when the defendant's defense or objection is sustained.” 5B C. Wright & A. Miller, Federal Practice and Procedure Civ. § 1354 (4th ed.) (cleaned up). “[W]hen a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.” Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir. 1983) (citing Wright & Miller § 1354).
The plaintiff “bears the burden of making a prima facie case that [he] has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant.” Lopez v. Colorado, No. 19-cv-00684-WJM-MEH, 2020 WL 2309558, at *19 (D. Colo. Jan. 7, 2020) (quoting Allen v. United Props. & Const., Inc., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008)). A “[p]laintiff must demonstrate that the procedure employed by [him or her] to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure.” Meyers, 2014 WL 1598723 at *2 (citation omitted). “The parties may submit affidavits and other documentary evidence for the Court's consideration, and the plaintiff is entitled to the benefit of any factual doubt.” Richardson, 2021 WL 5494261, at *2. “Examples of insufficient service include serving the wrong person or serving an individual not authorized to accept service for a defendant.” Id., at *4 (citing Allen v. United Properties and Const., Inc., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008).
E. Pro Se Litigants
In applying the above principles, this court is mindful that Mr. Snedeker proceeds pro se and thus affords his filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to Mr. Snedeker as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); see also Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.'”) (citation omitted).
III. Analysis
A. Mr. Snedeker's Motion for Leave to Amend the FAC
For the reasons that follow, this court recommends granting in part and denying in part Mr. Snedeker's motion for leave to file the proposed SAC.
1. Noncompliance with Local Rule 15.1 and this Court's Order
This court recommends denying the motion in part to the extent it would result in any of the SAC's claims relating back under Federal Rule of Civil Procedure 15(c) to the date that Mr. Snedeker filed either the original complaint or the FAC. In an order of July 20, 2023, this court specifically required Mr. Snedeker to comply with Local Rule 15.1's requirement of attaching a version of the proposed SAC highlighting the altered language with underlines and strikethroughs. ECF No. 48. Mr. Snedeker admits this, but argues that he has “so substantially amended his Complaint [i.e., the FAC] that this would make for difficult reading.” ECF No. 51 at 2. He “requests this Court to read his Second Amended Complaint as if reading this case for the first time. He has not stricken anything, only added to it.” Id.
Mr. Snedeker does not show good cause for ignoring both Local Rule 15.1 and the order that specifically required him to comply with it. Once a court reviews the red-lined version and grants a plaintiff's motion to amend, the court requires the plaintiff to file a clean version of the amended pleading. Mr. Snedeker's failure to provide a red-lined version-twice-has substantially hindered this court's review of his motion to amend and the proposed SAC. However, to avoid the further delay that would attend the issuance of a third order requiring Ms. Snedeker to comply with Local Rule 15.1, this court recommends that all claims in the proposed SAC be treated for purposes of the pertinent statutes of limitations as Mr. Snedeker requests: “as if reading this case for the first time.” This means that none of the claims in the SAC will relate back to the filing of either the original complaint or the FAC under Rule 15(c), and the court will treat all claims in the SAC as filed October 19, 2023, for purposes of the statute of limitations.
The Sheriff also notes that Mr. Snedeker failed to confer on the motion to amend, as required under Local Rule 7.1. Even when the court gives leave to file a motion, the conferral requirement of Local Rule 7.1 still applies. Future motions filed without certifying conferral may be summarily denied.
2. The Proposed Third Claim
This court recommends denying the motion to amend as to the Third Claim because amendment would be futile. Mr. Snedeker lacks standing to bring this claim, as the “abuse of office” statute defines a criminal offense only and does not provide a right of action to private persons. Colo. Rev. Stat. § 18-8-403. Private persons do not have standing to enforce criminal laws. See, e.g., Person v. Jones, No. 23-6135, 2024 WL 20838, at *2 (10th Cir. Jan. 2, 2024) (citing Diamond v. Charles, 476 U.S. 54, 64 (1986)). Indeed, Mr. Snedeker appears to recognize that he does not have standing to bring this claim and is “warning [all Defendants except Ms. Paswaters] that their acts and omissions . . . while coming under his Section 1983 Claim for Relief, are also indictable offenses for which they should be prosecuted to the fullest extent of the law.” SAC ¶ 308. Yet, he brings this purported “warning” as a claim for relief seeking $100 million in damages. This court thus recommends denying the motion to amend as to the Third Claim.
This court further directs Mr. Snedeker's attention to Rule 11(b), under which an “unrepresented party certifies that to the best of the person's knowledge” a pleading “is not being presented for any improper purpose, such as to harass.” Fed.R.Civ.P. 11(b)(1). Mr. Snedeker is respectfully notified that this court may exercise its discretion to recommend sanctions if he again files a criminal claim in this case.
If the RICO and COCCA claims were not otherwise barred (as discussed in Section B, below), this court would also recommend denying the motion to amend as to these claims, against all Defendants, as futile for the reasons stated in Section III.D below as to Ms. Paswaters, and as an impermissible “group” pleading that fails to give notice of each individual's role in these complex claims. Cf Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008) (describing § 1983 claims against multiple government actors as complex and therefore having a “greater likelihood of failures in notice and plausibility,” and recognizing that in such circumstances “it is particularly important . . . that the complaint 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”) (emphasis in original).
This court otherwise recommends granting the motion to amend, except to the extent noted above. While the Sheriff argues the other proposed claims would be futile as well, and that Mr. Snedeker unduly delayed in raising them, the court finds the more appropriate course is to accept the rest of the SAC and treat the Sheriff's (and the State Defendants') motions to dismiss as directed to the new pleading. This court is not persuaded that Mr. Snedeker unduly delayed and filed the proposed SAC only to avoid the Sheriff's meritorious arguments. Although nine months elapsed between Mr. Snedeker's original complaint and the present motion to amend (and three months passed between the court's order giving Mr. Snedeker leave to refile and when he actually did so), this case remains in the earliest phase. This court does not find the delay to be so lengthy as to warrant denying the motion to amend on that basis.
3. The Proposed Eighth Claim
Mr. Snedeker's Eighth Claim is for damages under 28 U.S.C. § 1495. This statute provides: “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.” This statute “does not apply to [Mr. Snedeker]'s conviction, as he was not convicted of an ‘offense against the United States.'” McDowell v. Rio Rancho Police Dep't, No. 1:20-cv-00153 RB/KK, 2022 WL 168430, at *10 (D.N.M. Jan. 19, 2022). The Eighth Claim therefore fails to state a claim. Id. Accordingly, the court recommends granting the motion to amend in part, consistent with the foregoing.
Even if Mr. Snedeker had been unjustly convicted of an offense against the United States, by the express terms of Section 1495, this court would not have jurisdiction over such a claim.
* * *
The court now turns to the claims Mr. Snedeker raises in the SAC, and explains why they are marked by jurisdictional and pleading defects.
B. Subject Matter Jurisdiction
This court recommends treating the motions to dismiss the FAC as directed to the SAC because the alleged defects remain in the new pleading. See, e.g., Bird v. Easton, 859 Fed.Appx. 299, 302 (10th Cir. 2021) (finding no error in district court taking this approach, citing 6 Charles Alan Wright, et al., Federal Practice & Procedure § 1476 (3d ed.)); Nava v. Goal Academy, No. 23-cv-00052-MDB, 2023 WL 2479949, at *1 (D. Colo. Mar. 13, 2023) (noting that, while not a requirement, district courts may treat a pending motion to dismiss as either mooted by, or directed to, the new pleading).
The court begins, as it must, by determining whether it has subject matter jurisdiction. See Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 542, 544 n.5, 555 (10th Cir. 2016) (remanding case to district court to dismiss for lack of jurisdiction where district court proceeded to assess the merits of a case based on “some generous assumptions” about jurisdiction, and emphasizing that a ruling based on incorrect assumptions about jurisdiction “is no ruling at all”). See also Rivers v. Colorado, No. 22-cv-2922-WJM-STV, 2023 WL 5310145, at *4 (D. Colo.
Aug. 17, 2023), appeal pending (overruling objection to magistrate judge's sua sponte recommendation to dismiss suit based on the Rooker-Feldman doctrine). As follows, the court finds that it lacks subject matter jurisdiction over most of Mr. Snedeker's claims under the Rooker-Feldman doctrine.
1. The Rooker-Feldman Doctrine
The court recommends finding that subject matter jurisdiction is lacking over the great majority of Mr. Snedeker's claims under the Rooker-Feldman doctrine. “The Rooker-Feldman doctrine is derived from 28 U.S.C. § 1257(a), [which] provides that only the Supreme Court has jurisdiction to hear appeals from final state court judgments,” Suasnavas v. Stover, 196 Fed.Appx. 647, 652 n.3 (10th Cir. 2006) (internal quotation omitted), and gets its name from two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “The Rooker-Feldman doctrine establishes, as a matter of subject-matter jurisdiction, that only the United States Supreme Court has appellate authority to review a state-court decision.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074-75 (10th Cir. 2004) (footnote omitted).
The doctrine “precludes a losing party in state court who complains of injury caused by the state-court judgment from bringing a case seeking review and rejection of that judgment in federal court.”Miller v. Deutsche Bank Nat'l Trust Co., 666 F.3d 1255, 1261 (10th Cir. 2012). The doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
“‘The type of judicial action barred by Rooker-Feldman [] consists of a review of the proceedings already conducted by the ‘lower' tribunal to determine whether it reached its result in accordance with law.'” PJex rel Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010) (quoting Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir. 2006)). “Rooker-Feldman does not bar federal-court claims that would be identical even had there been no state-court judgment; that is, claims that do not rest on any allegation concerning the state-court proceedings or judgment.” Id. (quoting Bolden, 441 F.3d at 1145). The doctrine applies where the relief sought requires the federal court to review and reject the state court judgment. See id. (citing Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007)); cf. Mo's Express, LLC v. Sopkin, 441 F.3d 1229, 1238 (10th Cir. 2006) (declining to apply Rooker-Feldman where the federal suit would not undo the state court judgment).
The Rooker-Feldman doctrine bars not only claims seeking direct review of state court judgments, but also claims “inextricably intertwined with” an underlying state court judgment. Feldman, 460 U.S. at 482 n.16, 486; Mothershedv. Okla. ex rel. Okla. Bar Ass'n, 390 Fed.Appx. 779, 780 (10th Cir. 2010). A federal claim is “inextricably intertwined” with a state court judgment when a plaintiff “can only succeed if [the federal court] conclude[s] the state got it wrong and effectively reverse[s] its decision or void[s] its ruling.” Ziankovich v. Members of Colo. Supreme Court, No. 20-1314, 2021 WL 4047000, at *4 (10th Cir. Aug. 10, 2021) (unpublished) (citing Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir. 2006), and Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012) (explaining that “[t]he essential point [of the inextricably intertwined test is that] barred claims are those complaining of injuries caused by state-court judgments,” meaning that “an element of the claim must be that the state court wrongfully entered its judgment” (cleaned up)). “A claim is inextricably intertwined if the statecourt judgment caused, actually and proximately, the injury for which the federal-court plaintiff seeks redress.” Tal, 453 F.3d at 1256 (internal quotations omitted).
The doctrine applies “after the state proceedings ended.” Exxon Mobil, 544 U.S. at 291. “[I]f a lower state court issues a judgment and the losing party allows the time for appeal to expire, then the state proceedings have ended.” Bear v. Patton, 451 F.3d 639, 642 (10th Cir. 2006) (internal quotation marks omitted). This is true whether or not other procedures remain pending in the case. Id. (“Although the state proceedings have not ‘ended' in a general sense because the accounting and distribution of the proceeds of the sheriff's sale remain, a final judgment on Count II that was no longer appealable would have invoked Rooker-Feldman's jurisdictional bar[.]”). See also Wideman v. Colorado, No. 06-cv-001423-WDM-CBS, 2007 WL 757639, at *2 (D. Colo. Mar. 8, 2007) (citing Bear in finding that the Rooker-Feldman doctrine applied despite state court retaining jurisdiction over paternity and child custody cases until the child would become an adult); Green v. Cnty. Ct. of City and Cnty. of Denver, No. 10-cv-02876-BNB, 2011 WL 290645, at *2 (D. Colo. Jan. 26, 2011) (noting the plaintiff's appeal from state court judgment had been dismissed and holding that claims challenging plaintiff's treatment during proceedings in Denver County Court were barred by Rooker-Feldman: plaintiff's “claims for damages are inextricably intertwined with the state court judgment because in order for [plaintiff] to prevail in this action the Court would be required to review and reject the state court judgment”).
In this case, all of Mr. Snedeker's claims against all Defendants in both their individual and official capacities-except, as further explained below, the portions of his claims concerning (a) conditions of confinement and (b) the ongoing 2023 criminal charges against him- impermissibly ask the court to find his state court judgment of conviction unlawful and would otherwise require the court to overturn or invalidate that judgment.
Several named Defendants-public entities (e.g., Boulder County), public employees, and Ms. Paswaters-have not yet been served, have not appeared, or have moved to dismiss only for insufficient service of process. These Defendants have not yet argued for dismissal for lack of subject matter jurisdiction. Nevertheless, this court is obliged to satisfy itself that jurisdiction exists as to all Defendants. This court accordingly makes this recommendation as to all Defendants.
Mr. Snedeker's claims are similar to those in Bradshaw v. Gatterman, 658 Fed.Appx. 359 (10th Cir. 2016). The plaintiff in that case brought claims against “the state judge, his attorneys, his siblings and various other parties [who allegedly] conspired to deprive him of his rights during . . . state court proceedings” that had concluded. Id. at 361. He alleged causes of action for violations of RICO, RICO conspiracy, constitutional violations under 42 U.S.C. §§ 1981 and 1983, abuse of process, and tortious interference. Id. The Tenth Circuit affirmed dismissal of all the claims for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. Id. at 362. See also Tso v. Murray, No. 17-cv-02523-PAB-STV, 2018 WL 6629656, at *5-6 (D. Colo. Dec. 18, 2018) (Rooker-Feldman doctrine barred RICO claim that would require the court to “issue an injunction that has the practical effect of ‘setting aside' the state court's judgment” (cleaned up)); Saxena v. Jackson, No. 1:23-cv-00213-DDD-SBP, 2024 WL 687034, at *7 (D. Colo. Jan. 16, 2024) (claims asserting malicious prosecution were barred under Rooker-Feldman because they were intertwined with the underlying conviction, collecting cases), recommendation adopted, 1:23-cv-00213-DDD-SBP, slip op. (D. Colo. Feb. 14, 2024).
While Defendants make no argument on this point, Heck v. Humphrey, 512 U.S. 477 (1994), would also require dismissal without prejudice of Mr. Snedeker's § 1983 claim for malicious prosecution because his state court conviction still stands. Under Heck, if a judgment for damages necessarily would imply the invalidity of a criminal conviction or sentence, the action does not arise until the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas writ. Id. at 486-87; see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (civil rights action “is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the plaintiff's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration”).
Here, most of Mr. Snedeker's claims allege that he was falsely prosecuted, arrested, convicted, sentenced, incarcerated, resentenced, and reincarcerated. He alleges fraud, deceit, and conspiracy throughout that process. But his 2015 state court judgment of conviction still stands, as his pleading expressly recognizes in requesting an order finding that his conviction was unlawful. SAC at 61; see also People v. Snedeker, 535 P.3d 128, 132 (Colo.App. 2023). While “new allegations of fraud might create grounds for appeal, . . . that appeal should be brought in the state courts”-not in this one. Bradshaw, 658 F.3d at 362 (quoting Tal, 453 F.2d at 1256).In short, for the same reasons discussed in Bradshaw, the Rooker-Feldman doctrine bars all of Mr. Snedeker's claims against all Defendants (both individual and official capacity claims) except those concerning (a) the ongoing 2023 criminal proceedings and (b) the conditions-of-confinement claims against Sheriff Johnson, CoreCivic, Crowley, and Sterling.
Mr. Snedeker alleges he has a pending state court appeal, but it concerns only his later resentencing to another 20 year term of probation. His appeal on the original 2015 conviction has concluded.
Although the Sheriff argues the Rooker-Feldman doctrine applies to all claims that Mr. Snedeker alleges against the Sheriff, the court would be able to rule on Mr. Snedeker's assertions of unsanitary cell conditions and inadequate medical care without invalidating the conviction that ultimately led him to be in the Sheriff's custody on his revocation proceeding.
2. The Colorado Government Immunity Act
In addition, this court also finds that subject matter jurisdiction is lacking over all state law claims against all of the public entity and public employee Defendants whose conduct falls within the scope of the Colorado Governmental Immunity Act (“CGIA”). Pursuant to the CGIA, public employees are generally immune from liability in all claims for injury that lie[] in tort or could lie[] in tort.” Colo. Rev. Stat. 24-10-118(2).
All Defendants are clearly public entities or public employees within the meaning of the CGIA, except perhaps CoreCivic, Crowley, or Ms. Paswaters-each of whom Mr. Snedeker alleges are private persons acting under color of state law. Because of the procedural posture of this case, there is no briefing on the question of whether these three Defendants would come within the scope of the CGIA. See, e.g., Martinez v. CSG Redevelopment Partners LLLP, 469 P.3d 491, 494-96 (Colo.App. 2019), cert. granted sub nom. Martinez v. People, 2020 WL 1526925 (Colo. Mar. 20, 2020). It is unnecessary to decide that question here because all claims against these Defendants are barred by the Rooker-Feldman doctrine or Younger abstention, or otherwise fail to state a claim.
There are two exceptions to this waiver of sovereign immunity: (1) where the injury “result[s] from the circumstances specified in [Colo. Rev. Stat.] section 24-10-106(1),” or (2) where the employee's conduct is willful and wanton. Colo. Rev. Stat. § 24-10-118(2)(a). The discrete statutory exceptions to immunity set forth in § 24-10-106(1) do not apply here, and the court need not consider whether Mr. Snedeker's allegations plausibly raise the inference of willful and wanton behavior because his tort claims are barred for failure to comply the CGIA's notice requirement.
Mr. Snedeker does not allege that he has complied with the notice provision of the CGIA, including that he give notice in writing within 182 days after the date of the discovery of the injury as a prerequisite to filing suit. See Colo. Rev. Stat. § 24-10-109(1). “Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal.” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003) (collecting cases); Tafoya v. Limon Corr. Facility, No. 20-cv-0768-WJM-NRN, 2020 WL 6565230, at *3 (D. Colo. Nov. 9, 2020) (“[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.”) (quotation omitted). The notice must contain several pieces of information, including “[a] statement of the amount of monetary damages that is being requested.” Colo. Rev. Stat. § 24-10-109(2)(e). Compliance with the CGIA's notice provision is a “jurisdictional prerequisite” for any tort claims or claims that “could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant” against a public employee. Colo. Rev. Stat. § 24-10-109(1); see also Colo. Rev. Stat. §§ 24-10-118(1), (1)(a). “The statutory notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction.” Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003).
Section 24-10-109(1) states in full:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
Here, Mr. Snedeker's claims against the Sheriff and the State Defendants under Colorado law are subject to the CGIA because these Defendants are “public employees” within the meaning of the CGIA, see Colo. Rev. Stat. § 24-10-103(4)(a), and his proposed claims against these Defendants are either torts or “lie in tort”: he attempts to sue the Defendants under two Colorado statutes (Colo. Rev. Stat. §§ 18-8-403, and 18-17-101, the Third Claim and Seventh Claim, respectively), and under the Colorado common law of torts: civil conspiracy (Fifth Claim), fraudulent misrepresentation (Sixth Claim), intentional infliction of emotional distress (Ninth Claim), negligence (Tenth Claim), defamation (Eleventh Claim), and a claim for punitive damages premised in part on those torts (Twelfth Claim). See ECF No. 51-1 passim.
In his response to the Sheriff's motion to dismiss, Mr. Snedeker asserts that he could and would correct his failure to plead compliance with the CGIA. ECF No. 44 at 2. However, he did not do so. The SAC does not allege any facts plausibly suggesting that Mr. Snedeker complied with the statutory notice provisions as to any of the public entities and public employees. “When a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of ‘fact' that the plaintiff failed to comply with the notice provisions. This lack of compliance, then, is a jurisdictional issue.” Aspen Orthopaedics, 353 F.3d at 840. Accordingly, because Mr. Snedeker has failed to comply with the CGIA notice provision, the court lacks subject-matter jurisdiction over his tort claims and recommends that all state law claims against all Defendants who are public entities or public employees be dismissed without prejudice for lack of subject matter jurisdiction. See, e.g., Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2019 (dismissal for lack of subject matter jurisdiction is generally without prejudice).
3. Eleventh Amendment Immunity and Younger Abstention
The court also lacks subject matter jurisdiction over all claims against the State Defendants, Boulder County, and all public employee Defendants (except the Sheriff) in their official capacities because these claims are barred by the Eleventh Amendment to the United States Constitution.
The SAC does not specify whether Mr. Snedeker sues the public employee Defendants in their official or individual capacities. In a response brief, Mr. Snedeker asserts that he sues the State Defendants in both their individual and official capacities. ECF No. 104 at 8. This court liberally construes that Mr. Snedeker is bringing both individual and official capacity claims against all public employee Defendants (except for the Sheriff who is sued in his individual capacity). Not all of the Defendants have yet appeared or moved to dismiss for lack of subject matter jurisdiction, but again, this court has an obligation to address a lack of subject matter jurisdiction sua sponte.
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has been interpreted to bar any action brought against a state in federal court, including suits initiated by a state's own citizens. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). Eleventh Amendment immunity extends to states and state entities deemed “arm[s] of the state[.]” Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 (1977)). Absent a waiver, states and their agencies are entitled to Eleventh Amendment immunity, regardless of the type of relief sought. Id. at 1252-53 (citing Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765-66 (2002)); see also Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (recognizing that Colorado has not statutorily waived its Eleventh Amendment immunity).
The law is well-established that district attorney's offices in Colorado are state agencies entitled to Eleventh Amendment immunity. Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989) (holding that Eleventh Amendment immunity extends to the office of the District Attorney in Colorado); Carbajal v. McCann, 808 Fed.Appx. 620, 638 (10th Cir. 2020) (“Our binding precedent holds that district attorneys' offices in Colorado enjoy Eleventh Amendment immunity.”). The same is true of state public defenders (see, e.g., Kirchner v. Marshall, No. 20-cv-00114-MEH, 2020 WL 4582714, at *10 (D. Colo. Aug. 10, 2020); Schmier v. Colo. Springs Police Dep't, No. 10-cv-02297-BNB, 2010 WL 4340441, at *2 (D. Colo. Oct. 26, 2010)), and the state judicial branch and its probation employees. See, e.g., Lawrence v. Blackman, No. 14-cv-0034-RM-KMT, 2014 WL 7202857, at *4 (D. Colo. Dec. 17, 2014) (collecting cases and citing Colo. Rev. Stat. § 16-11-208, identifying probation officers as part of the state's judicial branch).
Nearly fifteen years ago, one opinion in this District construed Davidson as holding that district attorneys are not state officers for purposes of the sovereign immunity analysis. Masters v. Gilmore, 663 F.Supp.2d 1027, 1054 (D. Colo. Oct. 5, 2009). Since then, the Tenth Circuit has repeatedly rejected this reading of Davidson. As that court put it: “Davidson held no such thing. The decision held only that the state's judicial districts (not District Attorneys assigned to them) are political subdivisions of the state.” Van de Weghe v. Chambers, 569 Fed.Appx. 617, 621 (10th Cir. 2014) (discussing Colorado law and concluding that Davidson did not “throw Rozek overboard”) (emphasis in original); see also Carbajal, 808 Fed.Appx. at 638 (recognizing that, “in Davidson, the court did not question its prior decisions uniformly describing a Colorado district attorney as a ‘state public officer,'” and emphasizing that “[o]ur binding precedent holds that district attorneys' offices in Colorado enjoy Eleventh Amendment immunity”).
Except to the extent distinguished in Ex Parte Young, 209 U.S. 123 (1908) (as will be discussed below), official capacity claims against individual employees of an agency are the same as a claim against the agency. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (official capacity claim is “to be treated as a suit against the entity”); see, e.g., Settles v. Shrader, No. 1:20-cv-02064-DDD-STV, 2022 WL 20518221, at *3 (D. Colo. Nov. 4, 2022) (adopting recommendation). See also Hill v. Kemp, 478 F.3d 1236, 1256-59 (10th Cir. 2007) (discussing the Eleventh Amendment with respect to claims brought against state officials in their official capacities). And the Supreme Court of the United States has made clear that Congress did not abrogate state sovereign immunity through its promulgation of 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979). Neither does the civil RICO statute abrogate state Eleventh Amendment immunity. See, e.g., Turlington v. Connor, No. 21-CV-0142-CVE-CDL, 2021 WL 6051067, at *4 (N.D. Okla. Dec. 21, 2021), aff'd, No. 22-5001, 2022 WL 4857025 (10th Cir. Oct. 4, 2022) (collecting cases).
This precedent compels this court to conclude that the State Defendants, Boulder County, and all public employee Defendants (except the Sheriff), in their official capacities, “are state agencies entitled to sovereign immunity under the Eleventh Amendment against claims for monetary damages and retrospective injunctive and/or declaratory relief.” San Agustin v. El Paso Cnty., No. 18-cv-02646-MEH, 2019 WL 4059167, at *10 (D. Colo. Aug. 28, 2019); accord Van De Weghe, 569 Fed.Appx. at 620-21 (affirming the district court's finding that the district attorney sued in her official capacity was entitled to Eleventh Amendment immunity as an “arm of the state”); Colo. Springs Fellowship Church v. City of Colo. Springs, No. 21-cv-1368-WJM-MEH, 2022 WL 344895, at *5 (D. Colo. Feb. 4, 2022) (dismissing § 1983 claims asserted against a Colorado district attorney's office as barred by the Eleventh Amendment).
Mr. Snedeker argues that the exception set forth in Ex Parte Young, 209 U.S. 123 (1908), applies here, because he alleges the State Defendants (and other Defendants) are acting in violation of federal law-namely, the civil RICO statute and the federal Constitution under § 1983. Under the Ex Parte Young exception, there is “federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law.” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 73 (1996) (internal quotation marks omitted). Unlike in his earlier pleadings, Mr. Snedeker does seek injunctive relief in the SAC, which the court assumes here would be prospective. SAC ¶¶ 2-3. See Hill, 478 F.3d at 1259 (analyzing whether an injunctive claim “seeks relief properly characterized as prospective”) (citing Verizon Md. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)).
However, the only ongoing conduct that Mr. Snedeker alleges is in connection with the pending 2023 criminal prosecutions. As for that conduct, the State Defendants correctly argue that Younger abstention applies. ECF No. 99 at 7-8. “Absent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings under Younger v. Harris .” Hodson v. Reams, 823 Fed.Appx. 659, 660 n.2 (10th Cir. 2020) (citing 401 U.S. 37, 91 (1971)). Younger is a jurisdictional issue. See D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 12223, 1228 (10th Cir. 2004) (“Younger abstention is jurisdictional”).
Although the Tenth Circuit recently has observed that it is unclear whether Younger abstention implicates a federal court's subject matter jurisdiction, see Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 523 n.32 (10th Cir. 2023), until the Supreme Court or the Tenth Circuit en banc decides otherwise, this court remains bound to follow the Tenth Circuit's prior holding that Younger is a jurisdictional issue. Peters v. United States, No. 23-cv-03014-NYW-SKC, 2024 WL 83333, at *4 (D. Colo. Jan. 8, 2024) (“this Court is unaware of any Supreme Court or en banc decision of the Tenth Circuit that expressly overrules D.L., and thus, this court is bound by it”), appeal pending.
“Younger abstention applies when ‘(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests.'” Id. (quoting Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001)). Here, all three Younger requirements are met. First, there unquestionably were ongoing state court proceedings when Mr. Snedeker filed this lawsuit and when he filed the amended version of his complaint. See ECF No. 99 at 7-8 (referencing State v. Bradford Wayne Snedeker, Sr., Nos. 23CR304 and 23CR306). Next, the state court provides an adequate forum for him to raise his claims. See Goings v. Sumner Cnty. Dist. Attorney's Office, 571 Fed.Appx. 634, 638 (10th Cir. 2014) (“The focus for this prong of Younger is whether the claims could have been raised in the pending state proceedings.”) (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999) (cleaned up, emphasis in original). Mr. Snedeker has not attempted to explain why he cannot raise his challenges to the supposed flaws in the prosecutions in the state court. And the third condition is easily satisfied as well. The State of Colorado “has a vital interest in prosecuting individuals believed to have committed crimes against other persons”- including, as relevant here, a crime allegedly perpetrated by a person previously convicted of securities fraud. See Goings, 571 Fed.Appx. at 638; see also Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006) (recognizing the “strong interest” of states in enforcing their criminal laws and other statutes).
Mr. Snedeker's allegations do not allow this court to conclude that his claims fall within the extremely limited exceptions to Younger, which provide a “‘very narrow gate for federal intervention.'” Phelps v. Hamilton, 59 F.3d 1048, 1064 (10th Cir. 1995) (quoting Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir. 1993)). Federal courts may “enjoin a pending state criminal prosecution provided that the prosecution was (1) commenced in bad faith or to harass; (2) based on a flagrantly and patently unconstitutional statute; or (3) related to any other such extraordinary circumstance creating a threat of irreparable injury both great and immediate.” Peters, 2024 WL 83333, at *4 (citing Phelps, 59 F.3d at 1064); see also Perez v. Ledesma, 401 U.S. 82, 85 (1970) (in a companion case to Younger, recognizing that a federal plaintiff may overcome the presumption of abstention “in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown”). Mr. Snedeker argues that his claims fall within the first exception. As he puts it: “The State Defendants are certainly acting in bad faith and have harassed not only Plaintiff but his entire family as well.” ECF No. 104 at 13.
In considering whether a prosecution was commenced in bad faith, this court evaluates whether the prosecution was “(1) frivolous or undertaken with no reasonably objective hope of success, (2) motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights, and (3) conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions.” Phelps, 59 F.3d at 1065 (cleaned up). When it comes to asserting bad faith in the face of Younger, a plaintiff “has a heavy burden of proof in order to overcome the bar of Younger abstention. Under Younger, intervention cannot be predicated on mere allegations; rather, the federal plaintiff must prove bad faith or harassment before intervention is warranted.” Id. at 1066 (emphasis added); Phelps v. Hamilton, 122 F.3d 885, 888 (10th Cir. 1997) (“According to our decision in Phelps I, . . . it is the plaintiff's ‘heavy burden' to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment.”).
The court respectfully finds that Mr. Snedeker has not met his heavy burden to prove bad faith or harassment in connection with the prosecutions. To be sure, he disagrees with the decisions to prosecute him, but his contrary view of the matters in no way establishes that the prosecutions are “frivolous or undertaken with no reasonably objective hope of success,” somehow “unjustified,” or an “oppressive use” of the prosecutorial process. Phelps, 59 F.3d at 1065. Clearly, multiple officers of the courts of Colorado have undertaken the significant task of investigating and filing these cases, which remain pending-negating any suggestion that the prosecutions were commenced with no hope of success.
The court is not persuaded to view the matter differently by the fact that an attorney for Mr. Snedeker's alleged victim in the 23CR304 case-his sister, apparently-prepared a “Request to Modify Protection Order” in that matter. See ECF 104-1. Mr. Snedeker does not confirm that the “Request to Modify,” which bears no court filing stamp, was ever docketed or, if it was, how the court disposed of it. The court notes that the “Request to Modify” acknowledges “that certain provisions of the protection order [in the criminal case] must remain in place,” Id. at 3 ¶ 17 (emphasis added), further undermining any suggestion that the prosecution was commenced in bad faith and for the purpose of harassment or was frivolous or unjustified. See Phelps, 59 F.3d at 1064-65. Neither is this information sufficient to allow Mr. Snedeker to show that the state prosecutions were motivated by a suspect classification (he claims no membership in a suspect class) or in retaliation for the exercise of his constitutional rights. No exception to Younger abstention applies in this case.
The underlying charges seem to hinge on the allegation that Mr. Snedeker's sister is the victim of elder abuse. See ECF No. 104 at 3 (Snedeker describing “false charges” as “the crime of ‘abusing' [Snedeker's] elder sister by asking her for money”).
Other aspects of the “Request to Modify” suggest reasons to question its authenticity. For example, Mr. Snedeker is described as the “Accused” in the case caption, see ECF No. 104-1 at 1, which is not a typical designation for a “defendant” in a criminal proceeding in a Colorado state court.
Mr. Snedeker, of course, is presumed innocent of the criminal charges and this court's finding that Younger abstention applies reflects no judgment concerning his guilt or innocence.
Mr. Snedeker resists the bar of Younger abstention by arguing that he is only seeking to enjoin Defendants' “participation in an illegal RICO enterprise and their bias due to said participation”; that this case is not a “criminal proceeding, nor is it a state civil enforcement case (i.e., where the State is the Plaintiff)”; and that he is seeking damages from the State Defendants' “violations of two federal statutes-the RICO Act, as well as Section 1983, as well as multiple concomitant torts.” ECF No. 104 at 11-12. But that misunderstands the Younger doctrine, which precludes federal courts from hearing any type of case that would interfere with ongoing state criminal proceedings. Because Mr. Snedeker's claims for prospective injunctive relief would require this court to interfere with the ongoing state criminal prosecutions, Younger abstention applies to those claims.
Younger would also apply to the claims against the public employees (other than the Sheriff) for damages from the ongoing criminal proceedings, see, e.g., Graff, 65 F.4th at 523, if the Eleventh Amendment did not already require dismissal of those claims.
Having carefully reviewed the parties' filings and relevant case law, this court respectfully finds that Mr. Snedeker has failed to make the requisite showing of bad faith, harassment, or other unusual circumstances sufficient to meet his heavy burden to overcome the bar of Younger abstention. The fact that he must defend against the underlying criminal prosecutions establishes no injury of sufficient magnitude to overcome Younger. See Winn v. Cook, 945 F.3d 1253, 1259 (10th Cir. 2019) (“[A]n error by the state court does not create an irreparable injury simply because the defendant must proceed through the tainted trial before obtaining relief-relief that may well entail a second trial.”). Therefore, all of Mr. Snedeker's claims against the State Defendants, Boulder County, and the public employee Defendants in their individual and official capacities are subject to dismissal without prejudice-either under Younger abstention or the Eleventh Amendment. See Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (“Because Eleventh Amendment immunity is jurisdictional, th[e] dismissal should [be] without prejudice.”); Graff, 65 F.4th at 523 n.32 (“dismissal without prejudice is the proper result whether or not Younger abstention affects a federal court's subject matter jurisdiction”).
* * *
To sum up, this court recommends that all claims against all Defendants be dismissed without prejudice for lack of jurisdiction under the Rooker-Feldman doctrine, the CGIA, the Eleventh Amendment, or Younger abstention-except the Eighth Amendment claims against the Sheriff, CoreCivic, Crowley, and Sterling, and the claim against Ms. Paswaters concerning the ongoing 2023 criminal proceedings, which are separately addressed below
In light of its conclusion that jurisdiction is lacking, the court does not reach the question of whether any Defendant-including, particularly, the defendant judges-also may have immunity from suit. See, e.g., Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (“Judges are absolutely immune from civil liability for judicial acts, unless committed in the clear absence of all jurisdiction. A judge does not act in the clear absence of all jurisdiction even if the action he took was in error, was done maliciously, or was in excess of his authority. Moreover, a judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.”) (cleaned up).
C. The Eighth Amendment Claims Against the Correctional Defendants
The court now turns to the two pending motions to dismiss Mr. Snedeker's Eighth Amendment claims. ECF Nos. 36, 39.
1. Legal Principles Conditions-of-confinement claims.
An Eighth Amendment conditions-of-confinement claim rests on two elements. “First, the alleged conditions must be sufficiently serious-that is, they must ‘deprive an inmate of the minimal civilized measure of life's necessities' or ‘subject an inmate to a substantial risk of serious harm.'” Thompson v. Lengerich, No. 22-1128, 2023 WL 2028961, at *3 (10th Cir. Feb. 16, 2023) (quoting Brooks v. Colo. Dep't of Corr., 12 F.4th 1160, 1173 (10th Cir. 2021)) (internal quotation marks omitted). “[T]he Eighth Amendment guarantees that inmates ‘receive adequate food, clothing, shelter, and medical care' and are safe in their confinement.” Guzman Loera v. True, No. 21-cv-02794-NYW-MEH, 2023 WL 2528629, at *6 (D. Colo. Mar. 15, 2023) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
“Conditions-of-confinement claims have two prongs: (1) an objective prong, under which the alleged injury must be sufficiently serious, and (2) a subjective prong, under which the prison official who imposed the condition must have done so with deliberate indifference.” Guzman Loera, 2023 WL 2528629, at *6 (quoting Redmond v. Crowther, 882 F.3d 927, 936 n.3 (10th Cir. 2018)). As to the first prong:
The Eighth Amendment “does not mandate comfortable prisons,” and conditions imposed may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981). See also Farmer, 511 U.S. 825, 832 (acknowledging that the Eighth Amendment prohibits cruel and unusual “punishments,” not cruel and unusual “conditions”). “[A] prisoner must show that conditions were more than uncomfortable, and instead rose to the level of ‘conditions posing a substantial risk of serious harm' to inmate health or safety.” Despain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001). Rodriguez v. Wiley, No. 08-cv-02505-PAB-CBS, 2010 WL 1348017, at *14 (D. Colo. Feb. 25, 2010) (cleaned up), report and recommendation adopted, 2010 WL 1348021 (D. Colo. Mar. 31, 2010).
Under the second prong of a conditions-of-confinement claim, the allegations must plausibly establish that the prison official acted with deliberate indifference to the inmate's health or safety. Farmer, 511 U.S. at 834. An official will not be liable unless he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference” Id. at 837 (emphasis added).
The elements are similar for deliberate-indifference-to-medical-care claims under the Eighth Amendment:
Like a conditions-of-confinement claim, to establish a constitutional liability based on medical deliberate indifference, a plaintiff must make both an objective and a subjective showing. The objective component requires the plaintiff to allege objective facts [] that demonstrate that the constitutional deprivation was sufficiently serious. The subjective component requires the plaintiff to sufficiently allege the defendant's culpable state of mind, i.e., that the defendant knew of and disregarded a substantial risk of harm to the plaintiff. Under this standard, the official 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.Guzman Loera, 2023 WL 2528629, at *10 (cleaned up, citing Farmer, 511 U.S. at 834; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000); and Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)). A medical need is “sufficiently serious” if it “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. at *11 (quoting Sealock, 218 F.3d at 1209).
Because Mr. Snedeker is not in custody, any claim for injunctive relief based on allegedly unconstitutional conditions of confinement would be moot. Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011) (“Because a prisoner's . . . release signals the end of the alleged deprivation of his constitutional rights, an entry of equitable relief in his favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him.”); Nasious v. Colorado, 495 Fed.Appx. 899, 903 (10th Cir. 2012) (“[I]t is well-settled that a prisoner's transfer out of a prison moots his requests for . . . injunctive relief against staff at that prison.”). To recover the money damages that he seeks for a violation of § 1983, Mr. Snedeker must allege some “corresponding injury” attendant on the alleged constitutional deprivation. See, e.g., Requena v. Roberts, 893 F.3d 1195, 1208 (10th Cir. 2018); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (recognizing that “the abstract value of a constitutional right may not form the basis for § 1983 damages,” and that the purpose of such damages is to compensate for actual injuries caused by the deprivation of constitutional rights).
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 officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity is “an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial.” Id. (emphasis added); see also Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”).
“Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Rivas-Villegas v. Coresluna, 595 U.S. 1, 142 S.Ct. 4, 7 (2021) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)) (internal quotation marks omitted); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (under the doctrine, “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”). 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. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)).
Always, “the onus is on the plaintiff to demonstrate (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Surat v. Klamser, 52 F.4th 1261, 1270 (10th Cir. 2022) (quotation omitted). Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (same). The court has “discretion to decide the order in which to engage the two prongs of the qualified immunity standard.” Andersen v. DelCore, 79 F. 4th 1153, 1163 (10th Cir. 2023) (cleaned up). “The record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.'” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). If the court “conclude[s] that the plaintiff has not met his burden as to either part of the two prong inquiry, [the court] must grant qualified immunity to the defendant.” Id. (citing Medina, 252 F.3d at 1128) (emphasis added).
An official's conduct violates clearly established law when, at the time of the challenged conduct, “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (cleaned up) (emphasis added). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'”Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision “on point,” or the “weight of authority from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotation omitted).
And the Supreme Court has “repeatedly told courts not to define clearly established law at a high level of generality since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1106 (10th Cir. 2014) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). While a plaintiff is not required to cite a case with “identical facts” to demonstrate a clearly established right, Kapinski v. City of Albuquerque, 964 F.3d 900, 910 (10th Cir. 2020), clearly established law must place the constitutional issue “beyond debate.” Mullenix, 577 U.S. at 16 (quotation omitted). It is the plaintiff's obligation to cite to cases that satisfy the burden of demonstrating the asserted law is clearly established. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of citing to us what he thinks constitutes clearly established law.”).
2. The Sheriff
The Sheriff moves to dismiss Mr. Snedeker's § 1983 claim concerning the conditions of his confinement in the Boulder County Jail in 2015, SAC ¶¶ 149-156, which is brought against the Sheriff in his individual capacity. The Sheriff argues that Mr. Snedeker fails to allege nonconclusory facts sufficient to plausibly plead a conditions-of-confinement claim, thus entitling the Sheriff to qualified immunity.
As noted above, Mr. Snedeker alleges that he was also in the Boulder County Jail for at least June 13, 2019, through June 27, 2019, (SAC ¶¶ 173-74), his allegations of the conditions of confinement in the jail are only within his discussion of his “First Incarceration,” (SAC at 29, heading before ¶ 149), which was in 2015. Id. ¶¶ 128, 137 (sentencing hearings on May 5, 2015, and July 29, 2015), ¶ 157 (“After his unlawful conviction, in 2015”).
Mr. Snedeker was allegedly subjected to unconstitutional conditions of confinement when he was incarcerated in the Boulder County Jail in 2015. SAC ¶¶ 149-156. During that time, he was one of three confined inmates in a two-person cell, which “blocked the emergency exit. Id. ¶ 151. But Mr. Snedeker does not contend that he suffered any injury because of his alleged inability to access the emergency exit, and “[allegations that government actors fail to follow their own regulations-or the regulations of other entities-cannot be the basis for a constitutional claim.” Bowman v. Sawyer, No. 19-cv-01411-WJM-KMT, 2020 WL 7249089, at *9 (D. Colo. Aug. 31, 2020) (citing Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (alleged failure to follow prison regulations fails to allege the violation of a constitutional right, as such regulations are “primarily designed to guide correctional officials in the administration of a prison. [They are] not designed to confer rights on inmates.”), report and recommendation adopted, 2020 WL 6390992 (D. Colo. Nov. 2, 2020). Accord, e.g., McMinn v. Dodson, No. 11 cv-01511-PAB-KMT, 2012 WL 4050308, at *2 (D. Colo. Sept. 14, 2012) (“fail[ure] to follow various safety codes fails to state a claim under the Eighth Amendment”) (citing French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985)); Smith v. Smith, No. 20-cv-02931-LTB-GPG, 2020 WL 13846653, at *3 (D. Colo. Dec. 10, 2020) (“the Eighth Amendment does not ‘constitutionalize' the fire code”), report and recommendation adopted, 2021 WL 11699244 (D. Colo. Jan. 8, 2021). Cf. Robards v. Stephan, 977 F.2d 596 (10th Cir. 1992) (“Workplace safety codes promulgated by state and federal governments do not establish constitutional standards.”). Hence, the allegation that an exit in the prison was somehow blocked-invoking the specter of a possible injury-does not plausibly establish a violation of Mr. Snedeker's constitutional rights.
In Mr. Snedeker's next group of allegations concerning conditions in the Boulder County Jail, he contends that he was denied distilled water and cleaning solution for his “CPAP” (continuous positive airway pressure) machine; he was not given medicine for a toenail fungus; he was not given a cracker to take with his nighttime medication; and the facility had an “extreme mold infestation” in its showers and no shower-shoe protocol. SAC ¶¶ 155-56. The court agrees with the Sheriff that these allegations do not plausibly suggest a deprivation of constitutional magnitude.
Mr. Snedeker has not pleaded the existence of an objectively serious medical need or other objective deprivation of a basic human necessity. He does not allege that he was unable to use his CPAP machine, that his toenail fungus was so significant as to have been diagnosed as requiring treatment by a prison medical professional, or that he was unable to ingest his nighttime medication because he was not given a cracker. See Guzman Loera, 2023 WL 2528629, at *11 (“Absent supporting factual allegations establishing the seriousness of this medical need, the Court cannot conclude that the mere existence of a toenail fungus is sufficient to meet the objective prong on his Eighth Amendment claim.”) (collecting cases).
And even if Mr. Snedeker were unable to use his CPAP machine or to take a certain unidentified nighttime medication for a time, “a delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm, which requires “a showing of a lifelong handicap, permanent loss, or considerable pain.” Guzman Loera, 2023 WL 2528629, at *11 n.9 (citing McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (internal quotation marks omitted). Mr. Snedeker's allegations do not satisfy this standard. See Richardson v. Hickenloper [sic], No. 11-cv-01601-REB-MJW, 2012 WL 833876, at *8 (D. Colo. Feb. 10, 2012) (allegations of inadequate food unaccompanied by allegations of lacking enough food to sustain nutrition, and alleged mold in showers without evidence of disease or illness, were insufficient to plead the objective element of an Eighth Amendment claim) (citing Shrader v. White, 761 F.2d 975 (4th Cir. 1985) (mold in showers where there was no evidence of disease or illness is not an unconstitutional condition of confinement); Cox v. Grady Cnty. Det. Ctr., No. CIV-07-875-M, 2008 WL 1925052 (W. D. Okla. Apr. 29, 2008) (inmate's “bare allegation of mold in the showers does not create a reasonable inference regarding the sort of threat to his mental or physical well being which is necessary for violation of the Eighth Amendment”), report and recommendation adopted, 2012 WL 833852 (D. Colo. Mar. 13, 2012)).
Mr. Snedeker's final allegation about the conditions in the Boulder County Jail concerns what he calls a “boat”-apparently a type of bed or cot in which the third man in his cell would sleep. SAC ¶¶ 152-154. According to Mr. Snedeker, the person in the boat (he does not allege that he was ever assigned to sleep in the boat) would be subjected to “flooding” from the nearby toilet by misbehaving inmates and “[e]ach time a cell mate used the toilet, the urine spray would affect the person in the boat.” See id.
Assuming without deciding that these allegations may satisfy the objective element of an Eighth Amendment claim, Mr. Snedeker has failed to allege the subjective element with respect to the “boat” condition. He does not plead facts which plausibly suggest that the Sheriff possessed subjective awareness of facts indicating that Mr. Snedeker faced “a substantial risk of serious harm” with respect to the use of the “boat” in Mr. Snedeker's cell, or that the Sheriff actually drew the inference that Mr. Snedeker was at risk. Farmer, 511 U.S. at 834, 837. See also Cary v. Hickenlooper, 674 Fed.Appx. 777, 780 (10th Cir. 2016) (affirming dismissal of inmate's deliberate indifference claim because the complaint “contain[ed] only conclusory and generalized allegations concerning the defendants' knowledge of the alleged” harm). Having failed to plead the subjective element, Mr. Snedeker has failed to plead a constitutional violation.
Mr. Snedeker's failure to plead a constitutional violation at all-much less the violation of a constitutional right that was clearly established at the time of the alleged violation, see Mullenix, 577 U.S. at 16-means that Mr. Snedeker has not met his “heavy two-part burden” to overcome the Sheriff's invocation of qualified immunity. Felders, 755 F.3d at 877-78. Mr. Snedeker points to no Tenth Circuit or Supreme Court case that would have put every reasonable official in the Sheriff's position on notice, beyond debate, that any of the matters of which he complains-the three-person configuration of his cell, cleaning fluids for his CPAP machine, toenail fungus, his desire for a nighttime cracker to be taken with his pills, the condition of the jail's showers, and his “boat” bed-violated his constitutional rights. To the contrary, the case law holds that these matters are not of constitutional significance.
Finally, Mr. Snedeker has alleged no facts attempting to personally connect the Sheriff with any of the alleged violations. He alleges conclusorily that the Sheriff “ensured that three inmates were placed in a cell made for only two people,” (SAC ¶ 152) but the well-pleaded facts do not personally attribute any actions to the Sheriff, nor does Mr. Snedeker allege that there were policies or procedures in place that would lead to the supposed constitutional injury and that the Sheriff knew or should have known about the alleged policies or procedures and their likely consequence. See Doe v. Woodard, 912 F.3d 1278, 1290 (10th Cir. 2019) (plaintiff must show that the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of his constitutional rights).
To the extent Mr. Snedeker relies on the Sheriff's “[supervisory responsibilities or abstract authority over subordinates alone,” that “is not enough to show personal participation.” Weiss v. Vasquez, No. 21-cv-01533-CNS-NRN, 2022 WL 5241885, at *4 (D. Colo. Oct. 6, 2022). Because Mr. Snedeker has failed to allege the Sheriff's personal participation in the alleged constitutional violation, the Sheriff is entitled to qualified immunity on this basis as well. See, e.g., Pahls v. Thomas, 718 F.3d 1210, (10th Cir. 2013) (“[A]lthough the requirement of personal participation, including the question of supervisory liability, is a component of liability under § 1983 and Bivens, we also incorporate it into our qualified-immunity analysis, where we ask whether a clearly established constitutional right has been violated.”) (citations omitted); Armijo v. Reigenborn, No. 22-cv-01847-SKC, 2023 WL 8622709, at *5 (D. Colo. Dec. 13, 2023) (sheriff entitled to qualified immunity where there was no evidence “the Sheriff personally engaged in conduct which violated Plaintiff's constitutional rights”) (citations omitted).
At bottom, Mr. Snedeker fails to allege that he sustained a deprivation of the “minimal civilized measure of life's necessities” or that he suffered any injury beyond mere discomfort. See Hudson v. MacMillian, 503 U.S. 1, 9 (1992) (“extreme deprivations are required to make out a conditions-of-confinement claim,” and “routine discomfort” does not suffice); Whitington v. Ortiz, 307 Fed.Appx. 179, 187 (10th Cir. 2009) (“Mere discomfort or temporary adverse conditions which pose no risk to health or safety do not implicate the Eighth Amendment.”) (citing Hudson).
The court therefore respectfully recommends that the Sheriff be granted qualified immunity and the claim against him be dismissed with prejudice. See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010 (instructing district court to dismiss based on qualified immunity “with prejudice”); Lybrook v. Members of the Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir. 2000) (affirming district court order granting motion to dismiss with prejudice on qualified immunity grounds); Vreeland v. Olson, No. 20-cv-02330-PAB-SKC, 2021 WL 4237269, at *5 n.7 (D. Colo. Sept. 16, 2021) (“The Court will dismiss the claim against Olson and Reed [brought by a pro se plaintiff] with prejudice because they are entitled to qualified immunity); McCrary v. Jones, No. CIV-13-573-M, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to qualified immunity).
In light of the court's conclusion, it does not address the Sheriff's argument that the claim against him is also time-barred. See ECF No. 36 at 6.
3. CoreCivic and Crowley
CoreCivic and Crowley argue that Crowley, a private detention facility (SAC ¶ 157) owned and operated by CoreCivic pursuant to a contract with the Colorado Department of Corrections, is not a “person” within the meaning of § 1983 because Crowley is not a separate legal entity from its owner, CoreCivic. ECF No. 39 at 6. The court agrees. Aston v. Cunningham, 216 F.3d 1086, n.3 (10th Cir. 2000) (Table) (“a detention facility is not a person or legally created entity capable of being sued”); see also Cruz v. McKenzie, No. 21-cv-01276-RM-NRN, 2022 WL 3234763, at *6 (D. Colo. July 12, 2022) (holding that Adams County Detention Facility is not subject to suit under § 1983, citing Cordova v. Pesterfield, No. 15-cv-00135-GPG, 2015 WL 855805, at *3 (D. Colo. Feb. 26, 2015) (“Adams County Detention Facility is not an entity separate from Adams County, Colorado, and therefore, is not a person subject to suit under § 1983”). While those cases involve government-run facilities, the same reasoning applies in the private facility context as well: the prison facility is not in itself a legal entity. In his response, Mr. Snedeker does not dispute that CoreCivic owns and operates Crowley. ECF No. 43. The court therefore recommends that Mr. Snedeker's claims against Crowley be dismissed.
Mr. Snedeker seeks to hold CoreCivic liable under § 1983 based on the actions of employees at Crowley and Longmont Community Treatment Center (“Longmont”), a halfway house where Mr. Snedeker was assigned for a time. Id. ¶¶ 42, 160-165, 209-216. But a private entity such as CoreCivic cannot be held liable under § 1983 solely based on the actions of its employees. To state a claim upon which relief may be granted under § 1983 against CoreCivic, Mr. Snedeker must plausibly allege facts to support an “entity” or Monell claim-so named for Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). See Smedley v. Corr. Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir. 2005) (“it is now well settled that Monell also extends to private defendants sued under § 1983”) (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (collecting circuit court cases)). Specifically as to such claims against private entity, Mr. Snedeker must allege that CoreCivic “directly caused the constitutional violation by instituting an ‘official municipal policy of some nature,' that was the ‘direct cause' or ‘moving force” behind the constitutional violations.” Smedley, 175 Fed.Appx. at 946 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 580-85 (1986)). “In later cases, the Supreme Court required a plaintiff to show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (citing Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
Here, although Mr. Snedeker's response to CoreCivic and Crowley's motion stated that he would cure the deficiencies in his claims, the SAC alleges no serious medical need or deprivation of a basic human need that is more than de minimis. At most, Mr. Snedeker's allegations plausibly indicate some inconveniences, some verbal threats from other inmates, and alleged safety or ADA violations in the facilities-but Mr. Snedeker does not bring a claim under the Americans with Disabilities Act, and he does not allege any supporting facts that would give context to the alleged threats against him, i.e., when the threats occurred, who made them, and what was said to him. SAC ¶ 164.
Mr. Snedeker also does not allege that any of these verbal threats were carried out. Requena, 893 F.3d at 1211 (“[V]erbal threats and name calling usually are not actionable under § 1983,” quoting McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)). Neither does he allege that the purported violations of the ADA or other safety protocols had any effect on him. Id. ¶¶ 160-164 (asserting that Crowley had an “extreme mold infestation” and that he lacked shower shoes), Id. ¶¶ 208-215 (CoreCivic's Longmont halfway house required him to bicycle to work despite having bad knees, a bad back, and advanced age; he lacked shower shoes; and the facility lacked ADA-compliant facilities).
The allegation of a “sight corridor [at Longmont] wherein anyone could see others while they were being body searched or providing urine specimens.” SAC ¶ 210, likewise does not suffice to plead an Eighth Amendment violation. Notably, Mr. Snedeker does not allege that he was required to give a urine specimen or submit to a body search in the “sight corridor.” Allegations connecting these conditions to Mr. Snedeker's experience at Longmont are required. Swoboda v. Dubach, 992 F.2d 286, 289-90 (10th Cir. 1993) (“general observations or complaints on behalf of other prisoners that stated no specific facts connecting the allegedly unconstitutional conditions with his own experiences or indicating how the conditions caused him injury are little more than conclusory allegations, which are insufficient to state a claim for relief,” and the plaintiff lacked “standing to bring claims on behalf of others”).
Mr. Snedeker finally alleges that unidentified “staff” at Crowley denied him a bottom bunk despite “Crowley” knowing that he had a medical condition making it a necessity. He further alleges that, after he injured himself falling from the top bunk, “individuals” at Crowley still did not give him a bottom bunk. SAC ¶¶ 160-62. Even assuming that these allegations are not merely conclusory as to the point that a bottom bunk would constitute an objectively serious medical need under these circumstances, see, e.g., Fowler v. Hodge, 94 Fed.Appx. 710, 712-13 (10th Cir. 2004), the allegations plainly do not suffice to allege the second element. Mr. Snedeker must allege facts plausibly indicating who at Crowley knew the medical condition and denied his bottom bunk request (or provide facts that would describe this official so that he or she could be identified). He has not done so.
In sum, even if Mr. Snedeker's complaints could be construed as sufficiently serious to rise to the level of constitutional violations, he has failed to allege the subjective element of a deliberate-indifference-to-medical-needs claim. Nor does he allege any facts demonstrating the existence of a policy, custom or practice of CoreCivic that directly caused, or was the moving force behind, a constitutional violation. Accordingly, this court recommends dismissing the Eighth Amendment claim against CoreCivic without prejudice.
4. Sterling
The same deficiencies noted as to the Eighth Amendment claims against the Sheriff and CoreCivic also apply to the Eighth Amendment claim against Sterling. Here, again, Mr. Snedeker alleges facts suggesting that there may have been a lack of compliance with safety regulations and that he faced minor inconveniences. As the court has discussed above, those matters do not rise to the level of Eighth Amendment violations. Having failed to plead a constitutional violation, Mr. Senedker necessarily also has not alleged facts plausibly indicating the existence of a policy, practice or custom at Sterling that directly caused-or was the moving force behind-a constitutional violation.
Mr. Snedeker alleges that, at Sterling, his medication was dispensed to him without a paper cup to drink for water (forcing him to use drinking fountains that were allegedly unclean or inconvenient), the COVID-19 protocols were inadequate, all laundry was washed together, there was no shower-shoe protocol, and the showers had an “extreme mold” infestation. SAC ¶¶ 199207.
Although Sterling has not yet filed a motion to dismiss the SAC under Rule 12(b)(6), “[a] district court may dismiss a case sua sponte under Federal Rule Civil Procedure 12(b) when it is patently obvious that the plaintiff could not prevail on the facts alleged.” Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir. 2007). The court finds that Mr. Snedeker could not prevail on the facts alleged against Sterling, and therefore respectfully recommends that the Eighth Amendment claim against that entity be dismissed without prejudice.
D. The Claims Against Ms. Paswaters Concerning the Ongoing Criminal Prosecutions
Mr. Snedeker also brings all of his claims (except the Third Claim) against Ms. Paswaters. For the reasons explained above, all claims that purport to invalidate Mr. Snedeker's state court conviction are jurisdictionally barred by Rooker-Feldman. But to the extent the RICO and § 1983 malicious prosecution claims against Ms. Paswaters may be construed as challenging Mr. Snedeker's ongoing criminal case-and even if Younger abstention may not apply because Ms. Paswaters is a private person-the court finds it “patently obvious” that Mr. Snedeker has alleged no plausible claim for relief against Ms. Paswaters under RICO or the Fourth Amendment. See Andrews, 483 F.3d at 1074.
First, Mr. Snedeker's RICO claim fails to meet the Rule 12(b)(6) standard, lacking as it does supporting factual specifics, including the identification of Ms. Paswaters' particular role in the alleged enterprise. He asserts that all “Defendants,” generally, engaged in predicate acts of bribery, theft, mail fraud (including e-mail fraud), wire fraud, obstruction ofjustice, interference with commerce, robbery, or extortion. SAC ¶¶ 14, 16, 255, 256, 270. But he alleges no facts in support of these wholly conclusory allegations. “[B]ecause Fed.R.Civ.P. 9(b) requires a plaintiff to plead mail and wire fraud with particularity, the plaintiff[] must set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.” George v. Urb. Settlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016) (emphasis added) (quotation marks and citations omitted). The same is true of the other predicate acts sounding in fraud (bribery, robbery, and extortion). Here, Mr. Snedeker alleges merely that Ms. Paswaters was the “hub” of a multi-spoked RICO conspiracy to have Mr. Snedeker falsely prosecuted, which she has allegedly brought about through a sexual relationship with the District Attorney. These broad statements do not suffice to plead her role in the predicate acts with particularity.
Second, it is clear that Mr. Snedeker cannot prevail on a § 1983 claim against Ms. Paswaters. To state a claim under § 1983, a plaintiff must meet two threshold requirements. He must allege (1) that the misconduct was committed by a person acting under color of state law, and (2) that as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). In evaluating a claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393-394 (1989). The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right. Id.
Mr. Snedeker invokes the protections of the Fourth Amendment, enforced against the states through the Fourteenth Amendment, which protects individuals from malicious prosecution. See Sanchez v. Hartley, 810 F.3d 750, 755 (10th Cir. 2016) (stating that the Tenth Circuit has “repeatedly recognized a cause of action under § 1983 for malicious prosecution under the Fourth Amendment”). He further contends that Ms. Paswaters knowingly caused the District Attorney to investigate, arrest, and prosecute him. One element of a malicious prosecution claim under § 1983 is that “ the original action terminated in favor of the plaintiff” Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis in original) (citing Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). Here, the ongoing criminal proceedings by definition have not terminated in Mr. Snedeker's favor. But even if Mr. Snedeker could allege favorable termination, he cannot allege that Ms. Paswaters was acting under color of state law. “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotations omitted). Mr. Snedeker asserts that Ms. Paswaters was acting within the context of a close, personal relationship with the District Attorney-obviously private conduct that does not satisfy the under-color-of-state-law element.
Again, the portion of Mr. Snedeker's § 1983 claim against Ms. Paswaters with respect to all of the completed criminal proceedings is barred by the Rooker-Feldman doctrine, just as with all other Defendants. The analysis in this section concerns only the portion of his claims against Ms. Paswaters concerning the ongoing criminal proceedings.
For these reasons, the court recommends dismissing the federal claims against Ms. Paswaters without prejudice. Because the federal claims are subject to dismissal, the court further recommends declining to exercise supplemental jurisdiction over the state law claims against Ms. Paswaters. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over which it has original jurisdiction[.]” “Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” Strain v. Regalado, 977 F.3d 984, 997 (10th Cir. 2020) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).
Those state law claims are for abuse of process, civil conspiracy, fraudulent misrepresentation, violation of COCCA, intentional infliction of emotional distress, negligence, defamation, and punitive damages.
E. The Punitive Damages Claim
This leaves Mr. Snedeker's claim for punitive damages. Because this court recommends dismissing all claims, there are no claims to support a punitive damages request. Therefore, the court recommends dismissing this claim without prejudice.
IV. Conclusion
Consistent with the foregoing, this court respectfully RECOMMENDS the following disposition of motions and the proposed claims in the SAC:
• Plaintiff's motion ECF No. 51 for leave to file the SAC should be granted in part and denied in part;
• All claims in the SAC (except the Eighth Amendment claims against the Sheriff, CoreCivic, Crowley, Sterling, and the claims against Ms. Paswaters concerning the ongoing 2023 criminal proceedings against Mr. Snedeker) should be dismissed without prejudice for lack of subject matter jurisdiction;
• The Sheriff's motion to dismiss, ECF No. 36, should be treated as directed to the SAC and granted, and the Eighth Amendment claim against the Sheriff dismissed with prejudice because the Sheriff is entitled to qualified immunity;
• Core Civic and Crowley's motion to dismiss, ECF No. 39, should likewise be treated as directed to the SAC and granted, and the Eighth Amendment claims against these entities should be dismissed without prejudice;
• The Eighth Amendment claim against Sterling should be dismissed without prejudice;
• The State Defendants' Motion, ECF No. 99, to dismiss should be granted;
• The claims against Ms. Paswaters concerning the ongoing 2023 criminal proceedings should be dismissed without prejudice;
• The punitive damages claim should be dismissed without prejudice;
• The Motions (ECF Nos. 37, 95, and 101) to quash service or to dismiss under Rule 12(b)(5), should be terminated as moot.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).