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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01945-RBJ-KLM

THOMAS SMITH,

Plaintiff,

v.

COLORADO DEPARTMENT OF CORRECTIONS,

STERLING CORRECTIONAL FACILITY,

ARASTIDE [sic] W. ZAVARAS,

KEVIN MILYARD, Warden at Sterling Correctional Facility,

JANICE JONES, Colorado Department of Corrections Sargent [sic], and

JESSE LOVELACE, Colorado Department of Corrections Officer,

Defendants.

_____________________________________________________________________

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants’ Motion to Dismiss [Docket No. 10;

Filed September 16, 2011] and Plaintiff’s Motion to Amend the Complaint and File

Plaintiff’s Amended Complaint [Docket No. 16; Filed October 7, 2011]. The Motions are

referred to this Court for disposition [Docket No. 34; Entered May 4, 2012].

I. Motion to Amend the Complaint

Pursuant to Fed. R. Civ. P. 15(a)(1), “[a] party may amend its pleading once as a

matter of course” within 21 days after service of a Rule 12(b) motion. Plaintiff submitted

his Amended Complaint within 21 days after service of Defendants’ Rule 12(b) motion;

thus he is entitled to amendment as a matter of course. Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend the Complaint and File

Plaintiff’s Amended Complaint [#16] is GRANTED. The Clerk of Court is directed to enter

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the Amended Complaint located at Docket No. 16, pp. 2-15, effective as of the date of this

Order and Recommendation.

IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond to

Plaintiff’s Amended Complaint on or before June 5, 2012.

II. Motion to Dismiss

Regarding Defendants’ Motion to Dismiss, the filing of an amended complaint does

not always moot a motion to dismiss. “If some of the defects raised in the original motion

[to dismiss] remain in the new pleading, the court simply may consider the motion [to

dismiss] as being addressed to the amended pleading. To hold otherwise would be to exalt

form over substance.” 6 Arthur R. Miller and Mary Kay Kane, Fed. Prac. & Proc. Civ. §

1476 (3d ed.) (citation omitted); but cf. Schwartz v. Booker, No. 09-cv-00915-WJM-KMT,

2011 WL 2560016, at *2 (D. Colo. June 28, 2011) (finding that the amended complaint

superceded the original complaint, thus mooting the motion to dismiss filed in response to

the original complaint pursuant to Fed. R. Civ. P. 12(b)(6)). As further explained below,

Defendants’ Motion to Dismiss is premised on jurisdictional challenges to Plaintiff’s

Complaint pursuant to Fed. R. Civ. P. 12(b)(1). The same challenges remain applicable

to Plaintiff’s Amended Complaint. 

A. Procedural History

In his original Complaint, Plaintiff brought one claim for relief pursuant to 42 U.S.C.

§ 1983, against the Colorado Department of Corrections (“CDOC”), Sterling Correctional

Facility (“SCF”), Defendants Zavaras and Milyard in their official capacities only, and

Defendants Jones and Lovelace in their individual and official capacities. [#1] at 5. Plaintiff

requested monetary damages as relief. Id. at 12.

Defendants responded to the original Complaint with an Answer [#9] and the Motion

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to Dismiss at issue [#10]. Defendants ask the Court to dismiss Defendants CDOC, SCF,

Zavaras, and Milyard, as well as the official capacity claims against Defendants Jones and

Lovelace, on the basis that the Eleventh Amendment precludes Plaintiff’s claim for money

damages. See [#10]. 

Plaintiff responded to the Motion to Dismiss on October 7, 2011, contemporaneously

with his Motion to Amend. See [#15]. Plaintiff contends that the Amended Complaint cures

the deficiencies raised by the Motion to Dismiss. See id. The Amended Complaint, also

brought pursuant to 42 U.S.C. § 1983, identifies the same Defendants, but clarifies the

request for relief. See [#16] at 13-14. Plaintiff now seeks injunctive relief from “the state

entity Defendants” and Defendants Jones and Lovelace in their official capacities, and

money damages from only Defendants Jones and Lovelace, in their individual capacities.

Id. Defendants Zavaras and Milyard are not mentioned in the request for relief. See id.

Defendants assert that the Amended Complaint does not cure the deficiencies

identified in the Motion to Dismiss. See Reply in support of Motion to Dismiss, [#17];

Response to Motion to Amend, [#18]. Defendants emphasize that the Eleventh

Amendment precludes Plaintiff from suing Defendants CDOC, SCF, and the individuallynamed Defendants in their official capacities pursuant to 42 U.S.C. § 1983. [#17] at 2.

Thus, Defendants ask the Court to dismiss CDOC, SCF, and Defendants Zavaras and

Milyard (on entry of the Amended Complaint). Id. at 3. Defendants further note that

Defendants Zavaras and Milyard are not longer employed by the CDOC in the official

capacities identified by Plaintiff (i.e., as Executive Director of the CDOC and Warden of

SCF, respectively). [#18] at 2.

In his Reply in support of his Motion to Amend, Plaintiff concedes dismissal of

Defendants Zavaras and Milyard, but indicates his intent to sue the current Executive

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Director of the CDOC and Warden of SCF in their official capacities. [#21] at 1-2. Plaintiff

states that he would file a Second Amended Complaint seeking injunctive relief against the

entity Defendants and the individually-named Defendants in their official capacities, and

money damages against Defendants Jones and Lovelace in their individual capacities. Id.

at 2-3.

B. Analysis

1. Defendants CDOC and SCF

“It is well established that under the Eleventh Amendment, sovereign immunity

prohibits federal courts from entertaining suits against states brought by their own citizens

or citizens of another state without their consent.” Hunt v. Colo. Dep’t of Corr., 271 F.

App’x 778, 780 (10th Cir. 2008) (citation omitted). The Eleventh Amendment protections

extend “to state agencies functioning as an arm of the state.” Id. (citation omitted).

Eleventh Amendment immunity may be waived, by an Act of Congress, or by a state,

“through a clear expression of its intent to waive.” Id. at 780-81. 42 U.S.C. § 1983 did not

abrogate Eleventh Amendment immunity, and the State of Colorado has not waived its

immunity on behalf of the CDOC. See id. at 781 (citations omitted). Thus, Plaintiff’s

Section 1983 claim against Defendants CDOC and SCF is barred as a matter of law. The

Court recommends that Defendants’ Motion to Dismiss be granted to the extent that

Defendants CDOC and SCF should be dropped as defendants to this lawsuit for lack of

subject matter jurisdiction.

2. Defendants Zavaras, Milyard, Jones, and Lovelace in Their

Official Capacities

“Suits against state officials in their official capacity should be treated as suits

against the state.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473

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 Defendants do not challenge Plaintiff’s claim for money damages against Defendants

Lovelace and Jones in their individual capacities on jurisdictional grounds. See [#10].

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U.S. 159, 166 (1985)); see also Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994)

(stating that state officers sued in their official capacity are not “persons” subject to suit

under 42 U.S.C. § 1983). Thus, pursuant to the Eleventh Amendment, the Court lacks

subject-matter jurisdiction to adjudicate an action brought by a citizen of Colorado against

the state of Colorado, its agencies, or its officials in their official capacities. Johns v.

Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). However, the doctrine of sovereign immunity

does not bar “a suit brought in federal court seeking to prospectively enjoin a state official

from violating federal law.” Id. (citing Ex parte Young, 209 U.S. 123, 159-60 (1980)).

Therefore, although Plaintiff may not sue the individually-named Defendants in their official

capacities for money damages or for injunctive relief for prior acts, Plaintiff may sue the

individually-named Defendants in their official capacities for prospective injunctive relief

only.1

 See Hunt, 271 F. App’x at 781. The Court thus recommends that Defendants’

Motion to Dismiss be granted to the extent that Plaintiff’s request for non-prospective

injunctive relief (i.e., a declaratory judgment regarding past alleged wrongs) be dismissed

without prejudice for lack of subject matter jurisdiction.

III. Conclusion

Accordingly, 

IT IS RESPECTFULLY RECOMMENDED that Defendants’ Motion to Dismiss [#10]

be GRANTED IN PART and DENIED IN PART;

IT IS FURTHER RECOMMENDED that Plaintiff’s claim against Defendants CDOC,

SCF, Milyard, and Zavaras be DISMISSED WITHOUT PREJUDICE for lack of subject

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 Plaintiff concedes dismissal of Defendants Zavaras and Milyard. See [#21] at 1-2.

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matter jurisdiction, and these Defendants be DROPPED from this lawsuit;2 and

IT IS FURTHER RECOMMENDED that Plaintiff’s claim for declaratory judgment,

Am. Compl., [#16] at 13, be DISMISSED WITHOUT PREJUDICE for lack of subject matter

jurisdiction.

IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall

have fourteen (14) days after service of this Recommendation to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party's failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73

F.3d 1057, 1060 (10th Cir. 1996).

Dated: May 14, 2012

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