Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01270-ZLW-OES

ELIZABETH GARDESANI, Plaintiff, v. BILL OWENS, Governor, State of Colorado, sued in his individual capacity; JOE ORTIZ, Director, sued in his individual capacity; ROBERT D. ANDERSON, Security Officer, sued in his individual capacity; DEP. [sic] OF CORRECTIONS; JEAN SHOEMAKER, Warden, sued in his individual capacity, Defendants.

RECOMMENDATION FOR DISMISSAL Entered by O. Edward Schlatter, United States Magistrate Judge. Pending before the court is the Motion To Dismiss filed by defendants Owens, Ortiz, Shoemaker, and Dep. [sic] of Corrections on December 29, 2004. Under the Order of Reference to United States Magistrate Judge issued in this matter pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b), this motion has been referred to me for purposes of making a recommendation. The parties' rights to seek review or reconsideration of this Recommendation, by filing objections within ten days, are attached hereto, and are entitled "Advisement Under Fed. R. Civ. P. 72."

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 2 of 18

BACKGROUND Plaintiff is in the custody of the Colorado Department of Corrections (" CDOC" and ) currently is incarcerated at the Denver, Colorado, Women' Correctional Facility. Plaintiff s filed a pro se Prisoner Complaint alleging civil rights claims under 28 U.S.C. § 1983 on June 21, 2004, see Docket #3, which she promptly amended on July 16, 2004. The record reflects two Amended Complaints being filed by the plaintiff on July 16, 2004. See Dockets #6 and #7. A review of these documents reveals that the pleading at Docket #7 appears to be the most complete of the two by encompassing the sole claim set forth in the amended pleading at Docket #6 and setting forth additional allegations. The

defendants' dispositive motion addresses the allegations of the Amended Complaint at Docket #7. Accordingly, the court proceeds with the Amended Complaint at Docket #7 as the operative complaint in this action. As noted by the court previously, see Docket #9, plaintiff sets forth three claims. In Claims One and Two, plaintiff alleges that defendant Anderson violated her constitutional rights when he used the threat of retaliation against her in inducing her to engage in sexual activity with him. Plaintiff further asserts, in Claim Three, that defendants accused her of lying about defendant Anderson and retaliated against her by placing her in a maximum security facility. Plaintiff also appears to be attempting to raise claims under Colorado state law in this action. Plaintiff seeks monetary damages and continued medical treatment after her release. Plaintiff states in the amended pleading that she is in the process of exhausting her administrative remedies. 2

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 3 of 18

Defendants Owens, Oritz, CDOC and Shoemaker (" defendants" have filed their ) Motion To Dismiss, arguing that dismissal of plaintiff' lawsuit is warranted under s Fed.R.Civ.P. 12(b)(6) because she has failed to state a claim upon which relief can be granted. Specifically, the defendants contend that plaintiff has failed to exhaust her administrative remedies prior to filing this action, that her retaliation claim is precluded by the requirement of demonstration of a physical injury under Prison Litigation Reform Act (" PLRA" that defendants Owens, Ortiz and Shoemaker are entitled to qualified immunity ), because the plaintiff has failed to alleged their personal participation, and that the CDOC is not a " person"within the meaning of 42 U.S.C. § 1983. Plaintiff has responded, and these defendants have filed a reply. DISCUSSION I. DEFENDANTS'MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(6). A. Standard Of Review.

A dismissal for failure to state a claim under Rule 12(b)(6) is appropriate only when it is apparent that a plaintiff can prove no set of facts which would entitle her to relief. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In evaluating whether a dismissal under 12(b)(6) is appropriate, " well-pleaded factual allegations in the . . . all complaint are accepted as true and viewed in the light most favorable to the nonmoving party."Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The issue in reviewing the sufficiency of plaintiff' Complaint is not whether plaintiff s will prevail, but whether plaintiff is entitled to offer evidence to support her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), (overruled on other grounds by Harlow v. 3

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 4 of 18

Fitzgerald, 457 U.S. 800 (1982)). Although a plaintiff does not need to state each element of her claim precisely, she must plead minimal factual allegations on those material elements that must be proved. See Fed.R.Civ.P. 8(a); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Conclusory allegations without supporting facts are insufficient to state a claim on which relief can be based, and the court may not construct a legal theory for the plaintiff that assumes facts which have not been pled. See Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); see, also, Hall, 935 F.2d at 1109-10, 1113 (finding mere words insufficient to state a claim without facts to support allegations of deliberate conduct). A federal court must construe a pro se plaintiff' " s pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff' complaint or construct s a legal theory on plaintiff' behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th s Cir. 1997) (quotations and citations omitted); see, also, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (when a plaintiff is proceeding without counsel, the court must construe his pleadings and other filings liberally); Hall, 935 F.2d at 1110. B. Failure To Exhaust Administrative Remedies.

Defendants argue that plaintiff has failed to exhaust her administrative remedies with regard to claims she seeks to bring against them. The Tenth Circuit has determined that the exhaustion provisions of 42 U.S.C. § 1997e(a) are not jurisdictional. See Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208-09 (10th Cir. 2003). The appellate court has declared that a complaint " that fails to allege the requisite exhaustion of 4

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 5 of 18

remedies is tantamount to one that fails to state a claim upon which relief may be granted." Id. at 1210 (citing Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998)). In this circuit, the exhaustion requirement is not an affirmative defense, but instead, must be sufficiently pled and/or documented by an inmate in her Complaint and failure to do so is the same as failing to state a claim upon which relief may be granted. Steele, 355 F.3d at 1209-10. Accordingly, Rule 12(b)(6) governs review of the issue of exhaustion, and the plaintiff must sufficiently plead or document the exhaustion of her administrative remedies with regard to any claims she seeks to bring before this court. Generally, when viewing a Rule 12(b)(6) motion, the court may not consider evidence outside the pleadings unless it converts the motion to one for summary judgment under Fed.R.Civ.P. 56, with notice to the parties. See Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995). However, documents referred to in a complaint and central to its claims are not considered to be outside the pleadings. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir. 1999). The court is not required to consider them, but may do so in its discretion. Id. In this case, the issue of exhaustion is central to the claims presented by the plaintiff, and therefore, it is appropriate that the court consider any relevant documentation or information provided outside of the pleadings without converting the motion to one for summary judgment. Plaintiff' claims are governed by the Prison Litigation Reform Act (" s PLRA" which ), covers claims brought " with respect to prison conditions under section 1983 of this title, . . . , by a prisoner confined in jail, prison, or other correctional facility." See 42 U.S.C. § 1997e(a) (emphasis added). This exhaustion requirement is mandatory. See Porter v. 5

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 6 of 18

[a]ll available' remedies must now be exhausted; those Nussle, 534 U.S. 516, 524 (2002) (" ` remedies need not meet federal standards, nor must they be plain, speedy, and effective." The Supreme Court has stated: " ). [W]e stress the point . . . that we will not read futility or other exceptions into [the PLRA' statutory exhaustion requirement." Booth v. s] Churner, 532 U.S. 731, 741, n. 6 (2001). With regard to claims arising out of conditions of confinement, the Tenth Circuit has emphatically stated, " [T]he substantive meaning of § 1997e(a) is clear: resort to a prison grievance process must precede resort to a court."Steele, 355 F.3d 1207; see, also, Brice v. Day, 604 F.2d 664, 666-67 (10th Cir. 1979), abrogated on other grounds by McCarthy v. Madigan 503 U.S. 140 (1992) (holding that inmate must follow the grievance procedure prior to filing suit in federal court in order to possibly resolve issues, reduce court intrusion into prison administrations, and provide some fact-finding so that if the matter reaches the court system, the court will have a starting place for understanding and resolving the matter). In this case, plaintiff concedes in her Amended Complaint that she did not complete exhaustion of her administrative remedies prior to filing her action in this court. See AMENDED COMPLAINT, Docket #7, p. 7. The record establishes that plaintiff filed this action on June 21, 2004, see Docket #3, however, grievance documents provided by the plaintiff establish that she did not complete Step III of the CDOC grievance process until August 5, 2004, see RESPONSE TO ORDER TO SHOW CAUSE, Docket #10. While plaintiff is proceeding in this action pro se and is therefore entitled to certain deference from the court, I take judicial notice of the fact that plaintiff has previously been made aware of the 6

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 7 of 18

administrative exhaustion requirements for prisoner litigation, and governing case law, as the plaintiff in Civil Action No. 03-cv-00076-ZLW-OES. Plaintiff must have met the exhaustion requirements at the time of filing and cannot cure a failure to exhaust by pursuing administrative remedies while the action is pending. See 41 U.S.C. § 1997e(a); Booth, 532 U.S. at 741; Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 114041 (10th Cir. 2005); Neal v. Goord, 267 F.3d 116, 121-23 (2nd Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002); see, also, Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002); Johnson v. Jones, 340 F.3d 624 (8th Cir. 2003) (inmate must exhaust administrative remedies before filing suit in federal court). Plaintiff failed to do so, and dismissal of her lawsuit is therefore appropriate. Additionally, from the grievance documents supplied by the plaintiff, it is obvious that she has only attempted to exhaust the bare allegations of sexual misconduct by defendant Anderson through the administrative remedy process. Courts have differed on what specific information an inmate must include in a grievance to satisfy the exhaustion requirement. See Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003); Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); Smelzer v. Hook, 235 F.Supp.2d 736 (W.D.Mich. 2002); and Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). These courts differ on the degree of specificity that they require for purposes of exhaustion. However, the Eleventh Circuit determined in Brown v. Sikes that a prisoner is not barred from bringing suit against persons whom he did not name in his administrative grievance. The court wrote: Instead, we conclude that while § 1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process, it does not require that he do more than that. 7

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 8 of 18

Id. at 1207-08; see, also, Strong, 297 F.3d at 649 (" When the administrative rulebook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." but, see, Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001) (Section ); 1997e(a) requires an inmate to name in his or her grievance each individual whom the inmate intends to sue).

Research fails to reveal a Tenth Circuit ruling on this particular question. However, I am persuaded that the Tenth Circuit would follow the line of reasoning that is found in such cases as Brown v. Sikes, and that the Tenth Circuit would not bar a prisoner' lawsuit s for the sole reason that the prisoner failed to specifically identify the constitutional right he alleges to have been violated or name the party against whom he is complaining. The Supreme Court has noted that a major purpose of the exhaustion requirement is to give prison administrators prompt notice of problems, so that they may be corrected internally in the first instance, and so that an administrative record may be developed prior to suit. See Porter, 534 U.S. at 524-25. The purposes that are outlined by the Supreme Court in Porter are furthered by the principles of notice pleading. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (nature of the claim need only be sketched). The test provided by the Eleventh Circuit in Brown v. Sikes provides sufficient guidance to steer prisoners as well as prison administrators through the procedures of exhaustion. The court held there: We hold that 42 U.S.C. § 1997e(a) requires a prisoner to provide in his administrative grievance as much relevant information about his claims, including the identity of those 8

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 9 of 18

directly involved in the alleged deprivations as the prisoner reasonably can provide. It does not require him to provide information he cannot reasonably obtain, nor does it require him to inform those who will pass on his grievance of the identity of the warden or prison commissioner. Brown v. Sikes, 212 F.3d at 1210; see also Irvin v. Zamora, 161 F.Supp.2d at 1134 (finding that " plaintiff' grievances did present the relevant factual circumstances giving rise to a s potential claim and did request the identities of the individuals directly responsible for spraying the insecticide" ). Applying these legal principles to the facts presented in this case, I conclude that plaintiff has not sufficiently exhausted her claims against any of the defendants named in this lawsuit within the administrative remedy procedures available to her. Without

describing in the grievance the nature of the constitutional violations for which she now seeks relief from this court, or even that she felt any such violations did occur, and facts or allegations to tie any individuals to the violations, plaintiff failed to place the prison on notice of her claims and therefore, she cannot proceed on such claims before this court. Accordingly, plaintiff' claims are unexhausted. s Moreover, a prisoner " may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them and since he may now be time barred from pursuing them, they are exhausted by default." Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002). If plaintiff should now attempt to rectify her failure to fully exhaust her administrative remedies by submitting grievances in this regard, they would most likely be barred as untimely. The Tenth Circuit has held that " prison procedure [a] that is procedurally barred and thus is unavailable to a prisoner is not thereby considered 9

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 10 of 18

exhausted. Regardless of whether a prisoner goes through the formality of submitting a time-barred grievance, he may not successfully argue that he had exhausted his administrative remedies. . . ."Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004). As the federal appellate court has concluded, " [a]llowing prisoners to proceed to federal court simply because they have filed a time-barred grievance would frustrate the PLRA' policy goals. Id. s" Accordingly, plaintiff has not exhausted her administrative remedies with regard to the claims contained in the Amended Complaint she has filed with this court. Even if the court were to very liberally construe the grievance filed by the plaintiff with regard to defendant Anderson as constituting exhaustion of the claims she is attempting to raise against him in this action, it would not preclude dismissal of this case. In Ross, the Tenth Circuit applied a total exhaustion rule, stating that if a prisoner files a complaint which contains one or more unexhausted claims, " district court ordinarily must dismiss the the entire action without prejudice." Ross, 365 F.3d at 1190. Plaintiff has clearly made no attempt to exhaust the claims she makes against defendants Owens, Ortiz, Shoemaker, or the CDOC. Accordingly, dismissal of this action, without prejudice, for failure to exhaust administrative remedies as directed by Ross is warranted. C. Alternative Grounds For Dismissal Of Claims Against Defendants Owens, Ortiz, Shoemaker, and the CDOC.

As noted by the appellate court in Ross, if an inmate' claim is frivolous, malicious, s fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the district court can dismiss the underlying

10

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 11 of 18

claim without first requiring administrative exhaustion. Ross, 365 F.3d at 1190 n.13 (quoting 42 U.S.C. § 1997e(c)(2)). Plaintiff' Amended Complaint clearly fails to state a s claim upon which relief can be granted against defendants Owens, Ortiz, Shoemaker, and the CDOC, and therefore, should be dismissed without first requiring administrative exhaustion. 1. PLRA' requirement of a physical injury. s

Plaintiff' claims are governed by the PLRA which provides, in pertinent part," s no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). By its plain language, § 1997e(e) requires a prisoner to allege a physical injury to bring a claim for " mental or emotional injury." The Tenth Circuit has held that this requirement clearly applies to claims for compensatory damages, but does not affect claims for nominal damages1, punitive damages, and declaratory or injunctive relief. See Searles v. Van Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001) (nominal and punitive damages); Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 808 (10th Cir. 1999) (declaratory and injunctive relief). In her Amended Complaint, plaintiff requests compensatory damages for emotional distress, along with the potential injunctive relief of psychological treatment and provision of medication following her release from prison. With regard to plaintiff' allegations of retaliation and failure to supervise or train, s

In Colorado, as a matter of law, nominal damages are one dollar. Colo. Inv. Servs., Inc. v. Hager , 685 P.2d 1371, 1375 (Colo.Ct.App. 1984).
1

11

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 12 of 18

the plaintiff' pleadings contain no well-pled facts of physical injuries under which to s sustain her request for compensatory damages against the defendants and their motion in this regard should be granted. 2. Personal participation.

" Personal participation is an essential allegation in a § 1983 action." Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Massey v. Wilson, 484 F. Supp. 1332 (D. Colo. 1980). A supervisor may not be held liable in a civil rights action merely because of his or her supervisory position. Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986); Mckee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). Conclusory allegations of personal participation are insufficient to warrant liability. Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986); Wise v. Bravo, 666 F.2d 1328, 1332-23 (10th Cir. 1981). A supervisor may be subject to liability under § 1983 if the plaintiff alleges and proves that there is an "affirmative link" between the supervisor's action or failure to act and the alleged constitutional violation. McClelland v Facteau, 610 F.2d 693, 696 (10th Cir. 1979). Such an affirmative link can be established by showing that the supervisory authority had some policy or custom which caused the alleged violation, or that the supervisor's failure to establish procedures or to train and supervise personnel led to the violation. Id. When a supervisor has notice of misconduct, and fails to take action to correct the misconduct, the supervisor may be liable for civil rights violations which result. McClelland, 610 F.2d at 697-98. Here, plaintiff alleges no facts to demonstrate a connection between defendants 12

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 13 of 18

Owens, Ortiz or Shoemaker and the alleged constitutional violations or state tort claims. In essence, plaintiff seems to claim that if the violations occurred, it has to be attributable to these defendants because they were " charge." Plaintiff does not point to any in particular policy or training practice, or lack thereof, which she claims led to the alleged wrongs. Plaintiff appears to argues that these defendants knew or should have known of the violations, based on their administrative positions, but fails to demonstrate how or why. While these defendants may have had access to information in this regard, based upon the positions in which they are employed, this fact alone cannot establish that they personally participated in the events which form the basis of plaintiff' claims. s Plaintiff' allegations are wholly conclusory. The plaintiff has failed to allege wells pled facts or facts from which it can be inferred concerning the personal participation of defendants Owens, Oritz, or Shoemaker. Even under the liberal pleading standards applied to pro se litigants, " conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall, 935 F.2d at 1110. Without an affirmative link to tie these defendants to the violations alleged by the plaintiff, these defendants cannot be held liable and the claims against them should be dismissed. 3. Qualified Immunity.

Public officials performing discretionary functions are accorded qualified immunity from liability. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In order for officials to lose their qualified immunity, their conduct must violate " clearly established statutory or constitutional rights of which a reasonable person would have known."Id. Accordingly, these individual defendants are entitled to qualified immunity if the plaintiff fails to establish 13

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 14 of 18

a claim for violation of a constitutional right. Even viewing the facts contained in the Amended Complaint in a light most favorable to the plaintiff, she has failed to demonstrate a viable claim for violation of a constitutionally protected right by defendants Owens, Oritz or Shoemaker, and therefore, these individual defendants in this case are entitled to qualified immunity. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (failure to make out a violation of a clearly established constitutional right is a failure to satisfy necessary threshold inquiry in determination of qualified immunity claim). 4. Claims against the CDOC.

The Eleventh Amendment to the United States Constitution bars suits against the State of Colorado. The CDOC, as a state government entity, is considered an arm of the state for Eleventh Amendment purposes. See Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1991), overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996), (applying the Eleventh Amendment to the CDOC). Therefore, the CDOC is not a " person"for the purposes of § 1983 actions. See Will v. Michigan Dep'of State Police, 491 U.S. 58, 70-71 t (1989). Accordingly, dismissal of the plaintiff' claims against the CDOC is appropriate. s D. Potential State Law Claims.

Although supplemental jurisdiction to hear any state law based claims raised by the plaintiff, the exercise of such jurisdiction is discretionary. Gold v. Local 7 United Food & Comm. Workers Union, 159 F.3d 1307, 1310 (10th Cir. 1998) overruled on other grounds by Styskal v. Weld County Comm' 365 F.3d 855 (10th Cir. 2004). District courts are rs, authorized, by statute, to decline supplemental jurisdiction over a state law claim if: 14

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 15 of 18

1. 2. 3. 4.

The claim raises a novel or complex issue of state law, The claim substantially predominates over the claim or claims over which the district court has original jurisdiction, The district court has dismissed all claims over which it has original jurisdiction, or In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c). Section 1367 " reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, ` federal court should consider and weigh each case, and at a every stage of the litigation, the values of judicial economy, convenience, fairness and comity.' Gold, 159 F.3d at 1310 (citations omitted). " It appears that no substantive or procedural bar prevents the plaintiff from litigating her state law claims in state court, and therefore, fairness would weigh in favor of declining jurisdiction. There are no apparent issues of federal policy; these claims would be purely state law based claims that will be resolved by the application of state law. The notion of " comity"involves the " proper respect for state functions." Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 9-12 (1987). Federal courts should avoid making decisions of state law when few or no federal issues remain, and no affirmative need for federal jurisdiction exists. See, e.g., United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (" needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law" It is particularly appropriate in this case that a state court is ). given the opportunity to interpret the application of its own laws with regard to issues arising from the conditions of confinement of a state prisoner in a state correctional facility, 15

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 16 of 18

and to resolve any unsettled questions concerning those laws, together with any issues of time bars to the claims and potential tolling under state law. Further, the pleadings before this court implicate no constitutional concerns in these state law claims. The state claims are fact intensive as to the circumstances and actions surrounding the claims for purposes of the application of state limitations and tolling laws. In light of the above factors, the only conclusion that can be drawn is that the considerations of plaintiff' potential state law claims weigh heavily in favor of state s adjudication. The Amended Complaint establishes, on its face, that this court should decline to exercise supplemental jurisdiction over any state law claims potentially raised by the plaintiff. Therefore, this court should not retain jurisdiction over any such claims. See Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988) (elimination of all federal claims gives the district court " powerful reason to choose not to continue to exercise a jurisdiction" the court' decision to dismiss is discretionary). ; s

CONCLUSION Based upon the above analysis, and the Amended Complaint on file herein, I do hereby RECOMMEND that defendants' Motions To Dismiss [Filed December 29, 2004; Docket #23] be GRANTED and this action be dismissed in its entirety as follows: 1. Sua sponte and without prejudice as to defendant Anderson based upon plaintiff' failure to exhaust her administrative remedies. See s Whitney, 113 F.3d at 1173 (while dismissal pursuant to Rule 12(b)(6) usually arises out of a motion made by a party or parties to a case, the Tenth Circuit " has held that a district court may dismiss sua sponte a pro se complaint for failure to state a claim." see, also, ); Yousef v. Reno, 254 F.3d 1214, 1216 n. 1 & 1218 n. 2 (10th Cir. 2001) 16

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 17 of 18

(any dismissal for failure to exhaust must be without prejudice). 2. With prejudice as to defendants Owens, Ortiz, CDOC, and Shoemaker under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

Dated at Denver, Colorado, this 8th day of August, 2005. BY THE COURT:

s/O. Edward Schlatter O. Edward Schlatter United States Magistrate Judge

17

Case 1:04-cv-01270-ZLW-OES

Document 39

Filed 08/11/2005

Page 18 of 18

ADVISEMENT UNDER FED. R. CIV. P. 72 Be advised that all parties shall have ten (10) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED. R. CIV. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within ten (10) days after being served with a copy may bar the aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir. 1986).

18