Opinion
Civil Action 21-cv-01226-WJM-NRN
12-10-2021
WALDO MACKEY, Plaintiff, v. KRISTEN HILKEY, DAVIS TALLEY, CHAD DILWORTH, DARLENE ALCALA, JASON GUIDRY, BRANDON MATHEWS, DARIC HARVEY, and ANY UNKNOWN DEFENDANTS FROM COLORADO BOARD OF PAROLE, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO RULES 12(B)(1) & 12(B)(6) (DKT. #29)
N. REID NEUREITER, United States Magistrate Judge
Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(1) and 12(b)(6) (“Motion to Dismiss”) (Dkt. #29), referred to the Court by Judge William J. Martinez on September 10, 2021. (Dkt. #30.) Mr. Mackey responded to the Motion to Dismiss on September 29, 2021 (Dkt. #31) and Defendants replied on October 15, 2021. (Dkt. #15.) The Court heard oral argument on October 19, 2021. (See Dkt. #37.)
In Mr. Mackey's “Request Stay of Decision on Defendants Motion to Dismiss to File Surreply, ” Mr. Mackey argues that Defendants' reply brief is a second motion to dismiss and therefore impermissible under Fed.R.Civ.P. 12(g). Mr. Mackey's understanding is mistaken. This document is not a second, subsequent motion to dismiss but instead a reply in support of the original motion and it was timely filed under D.C.COLO.LCivR 7.1(d) (“The moving party may file a reply no later than 14 days after the date of service of the response ....”).
During oral argument, Mr. Mackey moved to strike Defendants' reply brief. The Court denied that motion. (See Dkt. #37.) On November 5, 2021, Mr. Mackey filed a sur-reply without initially seeking leave from the Court. (Dkt. #38.) The sur-reply again argues that the Court should strike the “second motion to dismiss”-i.e., Defendants' reply brief. On November 9, 2021, Mr. Mackey filed his Request to Stay of Decision on Defendants Motion to Dismiss to File Surreply, which the Court construed, in part, as a motion for leave to file the surreply. (Dkt. #39.) The Court granted that the motion on December 9, 2021. (See Dkt. #41.)
The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is hereby RECOMMENDED that the Motion to Dismiss be GRANTED.
All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
Unless otherwise stated, all factual allegations are taken from Mr. Mackey's Amended Prisoner Complaint and its exhibits, filed on June 17, 2021, and are presumed to be true. (Dkt. #14.)
In 2017, Mr. Mackey was the plaintiff in lawsuit against Colorado Department of Corrections (“CDOC”) defendants for violations of his First and Fourteenth Amendment rights. He obtained a favorable jury verdict against the CDOC and was awarded $180,000. The Court takes judicial notice that, in his prior lawsuit, judgment was entered in favor of Mr. Mackey on September 19, 2019. See Final Judgment, Mackey v. Hilkey, 17-cv-01314-CMA-STV, Dkt. #281. To avoid an appeal, Mr. Mackey entered into a settlement agreement for $100,000 on March 1, 2021. The parties stipulated to the dismissal of that case on June 21, 2021. See Stipulation of Dismissal with Prejudice and Notice of Satisfaction of Judgment, Mackey v. Hilkey, 17-cv-01314-CMA-NRN, Dkt. #336.
The crux of Mr. Mackey's present suit is that, on April 1, 2021, the state parole board (“Parole Board”) denied his parole application and deferred him for three years, allegedly in retaliation for his 2017 lawsuit. He claims that his first five parole hearings from 2014 through 2018 were generally positive and showed that he was making progress towards parole. He notes, and the Parole Board's deferral forms show, that he was scored “very low” on the Colorado Actuarial Risk Assessment Scale (“CARAS”) from 2014-2016.3 Mr. Mackey also argues that from 2014 through 2018, the Parole Board did not mark the box on his deferral form indicating that he was a public risk.
The deferral forms from 2017 and 2018 do not provide a CARAS score and Mr. Mackey does not allege what score he received during those years, if any. (See Dkt. #14-1 at 19-20.)
At his third hearing, which occurred in January 2016 (before he filed suit), the Parole Board noted that it was “highly recommended and EXPECTED that [Mr. Mackey] he [sic] be given opportunity for SO trtmnt-moved up on the waitlist.” (Dkt. #14-1 at 18.) At his fifth parole and sixth parole hearings (held in January 2017 and 2018, respectively), the Parole Board recommended that Mr. Mackey transition through community corrections. (Dkt. #14 at ¶¶ 7-8; Dkt. #14-1 at 19-20.) According to Mr. Mackey, this demonstrates his progress towards parole.
The Court understands “SO trtmnt” to mean “sex offender treatment.”
Mr. Mackey acknowledges that he was not eligible for parole in 2014-2019 because he had not completed the Sex Offender Treatment and Monitoring Program (“SOTMP”), which is required for sex offenders to be granted parole.
At his sixth parole hearing in January 2019, Mr. Mackey alleges that the Parole Board became “perturbed” because he “did not discuss his case the way that the board wanted him to.” (Dkt. #14 at ¶ 9.) The Parole Board noted that Mr. Mackey “[w]as very inconvenienced having to talk about his multiple murders during the application hearing.” (Id.; Dkt. #14-1 at 21). Further, Mr. Mackey alleges, the Parole Board “checked every possible reason to deny parole including a ‘public risk' and for the very first time, ‘Untreated Criminogenic Needs/Insufficient Treatment Dosage.'” (Dkt. #14 at ¶ 9.) According to Mr. Mackey, neither his therapist nor his mental health records stated that he had any untreated criminogenic needs.
Mr. Mackey then entered the SOTMP on March 16, 2020 and completed the program on October 29, 2020. According to Mr. Mackey, he met all seven criteria under Colo. Admin Reg. § 700-19 to receive a recommendation for release to parole from the SOTMP team, and his therapist did recommend parole. However, despite successfully completing the SOTMP program, the Parole Board still checked the boxes for every risk consideration and again marked that he had untreated criminogenic needs after this January 2021 parole hearing. (See Dkt. #14-1 at 22.) The Parole Board failed to acknowledge that Mr. Mackey had met the seven criteria, even though they used those criteria when evaluating other members of Mr. Mackey's SOTMP group. Additionally, Mr. Mackey alleges that the Parole Board falsely found that he did not have a parole plan or sponsor. According to Mr. Mackey, no other member of his SOTMP group was “singled out” when he had an approved sponsor and parole plan.
The Parole Board ultimately denied Mr. Mackey parole on April 1, 2021 and deferred his application for parole for three years. Mr. Mackey alleges that no one else in his SOTMP group was deferred for three years, evidencing that the Parole Board was acting in retaliation.
Based on this conduct, Mr. Mackey brings claims for conspiracy to retaliate in violation of his First Amendment rights and violation of the Equal Protection Act. The Court also construes his complaint to include a First Amendment retaliation claim. Mr. Mackey does not seek damages for his claims; instead, he seeks declaratory judgment declaring that his rights were violating and an injunction requiring Ms. Hilkey, the Parole Board Chair, to schedule a new hearing. Defendants seek dismissal on all of Mr. Mackey's claims.
LEGAL STANDARDS
Mr. Mackey is proceeding pro se. The Court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
I. Lack of Subject Matter Jurisdiction
Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. Dismissal for lack of subject-matter jurisdiction “is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)).
“[F]ederal courts are courts of limited jurisdiction, ” so the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
II. Failure to State a Claim Upon Which Relief Can be Granted
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled allegations as true, purely conclusory statements are not entitled to this presumption. Id. at 678, 681. So long as the plaintiff pleads sufficient factual allegations such that the right to relief crosses “the line from conceivable to plausible, ” he has met the threshold pleading standard. Twombly, 550 U.S. at 556, 570.
ANALYSIS
I. Dismissal under Rule 12(b)(1) for Lack of Jurisdiction
Defendants first argue that, because Mr. Mackey seeks declaratory relief for a past constitutional violations, his requests for declaratory judgment are moot and, therefore, the Court lacks subject matter jurisdiction over such claims.
The Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, “validly confer[s] jurisdiction on federal courts to issue declaratory judgments in appropriate cases.” Calderon v. Ashmus, 523 U.S. 740, 745 (1998). The DJA explicitly incorporates the case or controversy requirement of Article II of the Constitution: “In a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)).
“Where a plaintiff seeks both an injunction and declaratory relief, the district court has a duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of an injunction.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (internal quotations omitted) (quoting Super Tire Eng'g Co. v. McCorckle, 416 U.S. 115, 121 (1974)). “It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Id. (citations omitted). Put differently, “where a plaintiff seeks a declaratory judgment against his opponent, he must assert a claim for relief that, if granted, would affect the behavior of the particular parties listed in his complaint.” Id. The crucial inquiry is “whether granting a present determination of the issues offered will have some effect in the real world, ” or whether it is now impossible for a court to grant effective relief. Abdulhaseeb, 600 F.3d at 1311 (citing Kan. Jud. Review v. Stout, 562 F.3d 1240, 1246 (10th. Cir. 2009)).
Mr. Mackey seeks a declaration that (i) the Parole Board Defendants violated his First Amendment rights by retaliating against him for filing his 2017 lawsuit; (ii) the Parole Board Defendants violated his equal protection rights, and (iii) that he met all seven criteria in SOTMP and had an approved parole plan. In effect, these requests for declaratory judgment seek a “retrospective opinion that Defendants wrongly harmed him, which is an impermissible use of a declaratory judgment.” Janny v. Palmer, No. 17-CV-02194-KLM, 2020 WL 2800784, at *4 (D. Colo. May 29, 2020) (citing Ashcroft v. Mattis, 431 U.S. 171, 172 (1977); Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997)). Accordingly, these requests for declaratory relief should be dismissed without prejudice for lack of subject matter jurisdiction. Defendants argue that these are the only requests for relief brought against Defendants Davis Talley, Chad Dilworth, Darlene Alcala, Jason Guidry, Brandon Mathews, and Daric Harvey, so they should be dismissed from this case entirely. The Court agrees. The claims against these defendants in their individual and official capacities should be dismissed.
Dismissal “must be without prejudice” because a court without jurisdiction lacks power “to make any determination of the merits of the underlying claim.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006).
However, Mr. Mackey also seeks a declaratory judgment and permanent injunction requiring Ms. Hilkey, the Parole Board Chair, to schedule another parole application hearing so that he can present the correct facts and the Parole Board can reach a decision by applying the correct analysis, rather than acting based on retaliatory motive and considering what Mr. Mackey claims is false information. Plainly, granting this request will have an effect in the real world and change the behavior of the Parole Board. Thus, the Court, at the very least, has jurisdiction to hear this claim against Ms. Hilkey in her official capacity. “[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.” Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 819 F.Supp.2d 1179, 1185 (D. Colo. 2011) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)), aff'd sub nom. Ebonie S. v. Pueblo Sch. Dist. 60, 695 F.3d 1051 (10th Cir. 2012).
The claim for declaratory and injunctive relief against Ms. Hilkey in her individual capacity, however, cannot stand:
[I]n a mootness inquiry in the declaratory judgment context, it is critically important to determine whether the plaintiff has named, as defendants, individuals or entities that are actually situated to have their future conduct toward the plaintiff altered by the court's declaration of rights. If the plaintiff has not named such individuals or entities, courts are likely to determine that they cannot accord the plaintiff effective declaratory relief and that the action is moot.Jordan v. Sosa, 654 F.3d 1012, 1026 (10th Cir. 2011). Mr. Mackey makes no allegations that Defendants have any power to undertake any action in their individual capacities. They are therefore not actually situated to have their conduct towards Mr. Mackey changed by the Court. To the extent Mr. Mackey seeks declaratory and injunctive relief against Ms. Hilkey individually, such claim must be dismissed. Thus, the sole claim that survives the Rule 12(b)(1) analysis is Mr. Mackey's official capacity claim against Ms. Hilkey which is, in essence, this is a claim against the Parole Board.
II. Dismissal under Rule 12(b)(6) for Failure to State a Claim
Though not raised by the parties, the Court notes, as a threshold matter, that the relief Mr. Mackey seeks falls appropriately within the scope of a civil rights action under 42 U.S.C. § 1983, rather than a habeas petition, because Mr. Mackey does not seek an injunction ordering his immediate or speedier release. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding that prisoner who sought “a new parole hearing at which. . . parole authorities may, in their discretion, decline to shorten his prison term” had properly proceeded under § 1983). Instead, at most, he seeks speedier setting of a new parole hearing. Thus, like in Wilkinson, success on his claim “means at most a new parole hearing at which [Colorado] parole authorities may, in their discretion, decline to shorten his prison term.” Id. (citations omitted). His claim therefore does not lie at the “core of habeas corpus” and may proceed. Id. (citations omitted); see also Ellibee v. Feleciano, 374 Fed.Appx. 789 (10th Cir. 2010) (holding that prisoner could proceed with § 1983 claim to the extent that success on his claim meant only a new eligibility review); Dimmick v. Bourdon, 769 Fed.Appx. 616, 620 (10th Cir. 2019) (allowing prisoner to proceed with § 1983 claim where prisoner sought new decision from parole board that would not label him a rapist or sex offender, rather than immediate release).
Having determined that Mr. Mackey's claims can appropriately proceed under § 1983, the Court turns next to whether Mr. Mackey has plausibly alleged his claims for retaliation, conspiracy to retaliate, and equal protection.
a. Retaliation
Defendants argue that Mr. Mackey has failed to allege sufficient facts to bring his retaliation claim from the conceivable to the plausible. The Court agrees.
The Tenth Circuit has recognized “actionable constitutional claims in inmates' allegations of denial of parole in retaliation for filing lawsuits.” Ellibee, 374 Fed.Appx. at 792. Indeed, “‘[p]rison officials may not retaliate against . . . an inmate because of the inmate's exercise of his right of access to the courts' and ‘[i]t is well established that prison officials may not unreasonably hamper inmates in gaining access to the courts.'” Id. (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). Similarly, the Parole Board may not retaliate against an inmate for exercising his right to access the courts.
To state a claim for retaliation, Mr. Mackey must plausibly allege (1) he was engaged in constitutionally protected activity, (2) Defendant's actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) Defendant's adverse action was substantially motivated as a response to Plaintiff's constitutionally protected activity. See Allen v. Avance, 491 Fed.Appx. 1, 6 (10th Cir. 2012). Under the third prong, Mr. Mackey must demonstrate that the “alleged retaliatory motives were the ‘but for' cause of the defendants' actions.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). “Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1991).
Mr. Mackey's Amended Prisoner Complaint fails to state a claim because he cannot show that the retaliation for filing his 2017 lawsuit was the “but for” cause of his parole denial. At the outset, the Court notes that the Parole Board considers various “progress in treatment” criteria for determining whether an adult sex offender may be released from incarceration. See Colo. Rev. Stat. § 16-11.7-103(4)(f). However, Colorado law expressly provides that “[t]he criteria shall not limit the decision-making authority of the court or the state board of parole.” Id. Thus, as Mr. Mackey acknowledges, he would not necessarily be granted parole simply because he met the seven criteria listed in Colo. Admin. Reg. § 700-19. See Conkleton v. Raemisch, 603 Fed.Appx. 713, 716 (10th Cir. 2015) (noting that “the parole board retains discretion to grant or deny parole regardless of whether prison officials certify that an inmate has met the treatment criteria”). If Mr. Mackey's own allegations reveal that justifiable, non-retaliatory explanations exist for the Parole Board to deny Mr. Mackey parole, then, by definition, he cannot plausibly allege that retaliatory motives were the “but for” cause of the denial. Given the wide discretion the Parole Board has, Mr. Mackey faces an uphill battle to demonstrate that but for the retaliation, he would have been granted parole.
According to Mr. Mackey's complaint, the Parole Board members first went from “positive to negative” at his sixth parole hearing after Mr. Mackey “did not discuss his case the way the board wanted him to.” (Dkt. #17 at ¶ 9.) In his own words, the Parole Board suddenly viewed him negatively “for no obvious reason except the member wanted Plaintiff to talk about some fictious convictions of ‘multiple murders' that Plaintiff knew nothing about because he had one conviction.” (Dkt. #14 at ¶¶ 10-11.) Indeed, the Parole Board noted on the deferral form that Mr. Mackey was “very inconvenienced having to talk about his multiple murders during the application hearing.” (Dkt. 14-1 at 21.)
The Motion to Dismiss provides some important background information concerning why Parole Board questioned Mr. Mackey about two murders. Defendants explain that Mr. Mackey was originally convicted of two first degree murders of the same victim. On appeal, a division of the Colorado Court of Appeals found that Mr. Mackey could not be convicted of two first degree murders. It therefore remanded the case to the trial court to amend the judgment of conviction and sentence to reflect a single first-degree murder conviction. Mr. Mackey's response brief does not refute this account.
Indeed, he further explains that, after appeal, the trial court issued a new mittimus with the conviction for only one first degree murder. (Dkt. #31 at 3.) Mr. Mackey also argues that the correct mittimus has been in his file for 30 years, “which proves that that comment was no mistake.” (Id.) He later argues that the Parole Board introduced this “false flagrant” information into his record in the 2019 parole hearing, and that it was subsequently used at the 2021 parole hearing as a basis for denying his parole. (Id. at 6.) However, when ruling on a motion to dismiss, the Court cannot rely on new arguments or facts raised in a response. Warad W., LLC v. Sorin CRM USA Inc., 119 F.Supp.3d 1294, 1305 (D. Colo. 2015) (“[W]hen deciding a Rule 12(b)(6) motion, this Court may not consider new allegations contained in a plaintiff's response.”); see also In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”).
Mr. Mackey has not plausibly alleged that retaliation for the 2017 lawsuit is the “but for” cause when another, non-retaliatory cause for denying parole exists. The Amended Prisoner Complaint is devoid of any allegations that Mr. Mackey corrected the Parole Board's mistaken belief and that, despite those corrections, they proceeded to include “false information” in his record. Indeed, Mr. Mackey concedes that the Parole Board never “cleared their error up.” (Dkt. #31 at 3.) Thus, though the Parole Board's belief that Mr. Mackey had committed multiple murders was mistaken, he has not plausibly alleged that it was retaliatory.
Further, the January 14, 2021 form from the Parole Board indicates, among other things, that Mr. Mackey had not submitted a parole plan. (Dkt. #14-1.) This is another valid, non-retaliatory basis for denying his parole. Though Mr. Mackey alleged in his Amended Prisoner Complaint that he submitted a parole plan, he later clarified at oral argument that he submitted the plan to his case manager, who failed to send it to the Parole Board. Regardless, Mr. Mackey argues in his response that the Parole Board knew that he had an approved parole plan because the Sex Offender Treatment Intervention and Progress Scale (SOTIPS), states he had an approved parole plan. The Court notes, however, that the SOTIPS indicates only that Mr. Mackey's wife is “his approved support person” and that they “have a home in Denver that is his parole plan.” (Dkt. #14-1 at 13-16.) The Court finds that this one sentence in the SOTIPS, without more, is insufficient to demonstrate that the Parole Board knew or should have known Mr. Mackey had an approved parole plan or that their failure to acknowledge it was retaliatory.
In light of Mr. Mackey's own allegations, Mr. Mackey has not plausibly alleged that his 2017 lawsuit was the “but for” cause of the Parole Board's denial of his application. He has therefore failed to state a claim for retaliation and this claim should be dismissed.
b. Equal Protection
The Equal Protection Clause prohibits discrimination by government action which either “burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” Vacco v. Quill, 521 U.S. 793, 799 (1997). As relevant here, a person's right to equal protection is violated when the government or its officials treat him or her differently than others who are similarly situated. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). To survive a motion to dismiss, Mr. Mackey must plausibly allege that others “similarly situated in all material respects” were treated differently. See Kan. Penn Gaming, LLC v. Collins, 565 F.2d 1210, 1217 (10th Cir. 2011). Dissimilar treatment of dissimilarly situated persons does not violate equal protection. Klinger v. Dep't of Corr., 31 F.3d 727, 730 (8th Cir. 1994) (citing Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir. 1994)).
Mr. Mackey does not allege membership in a class or a group, so he brings a “class of one” equal protection claim. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (recognizing equal protection claims brought by a “class of one”) (citations omitted). A “class of one” claim exists “where plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id. “Courts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one cases.” Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1213 (10th Cir. 2006) (citations omitted). Indeed, in a class of one case, the plaintiff must show “no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake.” Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on other grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008); see also Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002) (insisting that a plaintiff demonstrate that the compared properties are “prima facie identical in all relevant respects”). “If there is a there is a reasonable justification for the challenged action, we do not inquire into the government actor's actual motivations.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011).
In cases not involving judgments that are “subjective and individualized, ” the plaintiff will meet this burden easily ....But where the government actor enjoys a broader range of discretion, and may properly base a decision on a myriad of potentially relevant variables, it is more likely that there are “material distinctions between allegedly similarly situated parties, ” leading to “a ready supply of rational and not wholly arbitrary reasons for differential treatment.” In these cases, the plaintiff must account for a wide range of characteristics in identifying similarly situated individuals.Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1218 (10th Cir. 2011) (citing Jicarilla Apache Nation, 440 F.3d at 1213). Given the Parole Board's broad discretion and the numerous factors it may consider when granting or deny parole, Mr. Mackey must account for a wide range of characteristics in his comparators-the simple fact that they all completed the SOTMP program is insufficient.
The Court finds that Mr. Mackey's references to other SOTMP members fail to sufficiently identify similarly situated comparators for his “class-of-one” equal protection claim. As Defendants argue, there are a myriad of reasons the Parole Board, in its broad discretion, may grant one SOTMP group member parole but deny it to others, including (i) institutional conduct infractions (COPDs/Write-ups); (ii) public risk (concerns for public safety); (iii) severity/circumstances of offense; (iv) prior criminal history; (v) violence; and (vi) sexual violence-all of which are factors the parole board considers, as evidenced by the very deferral forms Mr. Mackey submitted as exhibits to his complaint. (See Dkt. #14-1 at 16-22.) These are all relevant considerations for the “class of one” claim.
Mr. Mackey has failed to sufficiently identify similarly situated comparators. Here, for example, there are no allegations concerning the severity or circumstances of the other SOTMP members offenses. Mr. Mackey argues that similarly situated does not mean similarly convicted. (See Dkt. #31 at 19.) The Court agrees that a blanket rule requiring identical convictions is inappropriate. However, the severity and circumstances of a prisoner's underlying crime is a relevant consideration in the Parole Board's determination and, thus, a relevant factor to be considered in the similarly situated analysis. Mr. Mackey committed murder in addition to a sexual offense. The Amended Complaint is devoid of any allegations that Mr. Mackey was treated differently than members of the SOTMP group who also murdered someone. The nature of Mr. Mackey's crime provides a rational basis for the Parole Board to treat Mr. Mackey differently from other SOTMP members. Neilson v. D'Angelis, 409 F.3d at 105; see also Robledo-Valdez v. Dick, No. 16-CV-00192-MSK-KLM, 2017 WL 1190560, at *7 (D. Colo. Mar. 31, 2017) (allegations in pro se prisoner's complaint were insufficient to state “class of one” equal protection claim where court was “left to speculate” as to offenses of other parolees, as well as other relevant factors).
Further, although Mr. Mackey's alleges that no one else in his SOTMP who had met all seven criteria was identified as having criminogenic needs, Mr. Mackey does not address whether the Parole Board also believed, mistakenly or not, that his comparators had committed other crimes for which they were not taking responsibility.
Because Mr. Mackey has not sufficiently alleged that individuals who were similarly situated to him in all material respects were treated differently, his equal protection claim fails. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009) (denying prisoner's equal protection claim where allegations were “too conclusory to permit a proper legal analysis” (citations omitted)); see also Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (upholding district court's dismissal of equal protection claim where prisoner could not show that distinction between himself and other inmates was not “reasonably related to some legitimate penological purpose” (citations omitted)).
c. Conspiracy
Because Mr. Mackey's underlying retaliation and equal protection claims fail, the conspiracy claim must also fail. See Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1449 (10th Cir. 1990) (“[W]e join those circuits which have recognized that to recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of rights”); see also Campos v. Cook County, 932 F.3d 972, 975 (7th Cir. 2019) (“[A] plaintiff cannot bring a § 1983 claim for conspiracy to deny a civil right unless the plaintiff states an underlying claim for denial of a right. Section 1983 claims are derivative; they cannot stand alone”).
CONCLUSION
WHEREFORE, in light of the foregoing, it is hereby RECOMMENDED that Defendants Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(1) and 12(b)(6) (Dkt. #29) be GRANTED and the case DISMISSED WITHOUT PREJUDICE.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).