1

 “[#33]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s electronic case filing and management system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Case No. 11-cv-02663-REB-MEH

DEMPSEY ALEXANDER KENNEDY, and

CRYSTAL PHIFER,

Plaintiffs,

v.

CORRECTIONS CORPORATION OF AMERICA, a Tennessee corporation, and

TAMMY MOSNESS, an individual,

Defendants.

Defendant.

ORDER DENYING MOTION TO DISMISS

Blackburn, J.

The matter before is CCA Defendants’ Motion To Dismiss Amended

Complaint [#33],1

 filed May 1, 2012. I deny the motion. 

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal

question) & 1367 (pendant state law claims).

II. STANDARD OF REVIEW

 When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), I must

determine whether the allegations of the complaint are sufficient to state a claim within

the meaning of Fed. R. Civ. P. 8(a). For many years, “courts followed the axiom that

dismissal is only appropriate where ‘it appears beyond doubt that the plaintiff can prove

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no set of facts in support of his claim which would entitle him to relief.’” Kansas Penn

Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley v.

Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Noting that this

standard “has been questioned, criticized, and explained away long enough,” the

Supreme Court supplanted it in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562,

127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). Pursuant to the dictates of Twombly, I

now review the complaint to determine whether it “‘contains 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 Twombly, 127 S.Ct. at 1974). “This

pleading requirement serves two purposes: to ensure that a defendant is placed on

notice of his or her alleged misconduct sufficient to prepare an appropriate defense, and

to avoid ginning up the costly machinery associated with our civil discovery regime on

the basis of a largely groundless claim.” Kansas Penn Gaming, 656 F.3d at 1215

(citation and internal quotation marks omitted).

As previously, I must accept all well-pleaded factual allegations of the complaint

as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). 

Contrastingly, mere “labels and conclusions or a formulaic recitation of the elements of

a cause of action” will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal,

556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal

quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48

(10th Cir. 2008) (“Without some factual allegation in the complaint, it is hard to see how

a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of

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the claim, but also ‘grounds' on which the claim rests.”) (quoting Twombly, 127 S.Ct. at

1974) (internal citations and footnote omitted). Moreover, to meet the plausibility

standard, the complaint must suggest “more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493

F.3d at 1177 (“[T]he mere metaphysical possibility that some plaintiff could prove some

set of facts in support of the pleaded claims is insufficient; the complaint must give the

court reason to believe that this plaintiff has a reasonable likelihood of mustering factual

support for these claims.") (emphases in original). For this reason, the complaint must

allege facts sufficient to “raise a right to relief above the speculative level.” Kansas

Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard

will not be met where the allegations of the complaint are “so general that they

encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d at 1248. 

Instead “[t]he allegations must be enough that, if assumed to be true, the plaintiff

plausibly (not just speculatively) has a claim for relief.” Id.

The nature and specificity of the allegations required to state a plausible claim

will vary based on context and will “require[] the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 129 S.Ct. at 1950; see also Kansas Penn

Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and “a

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of

those facts is improbable, and that a recovery is very remote and unlikely.“ Dias v. City

and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127

S.Ct. at 1965) (internal quotation marks omitted).

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 Plaintiffs are now married. (Am. Compl. ¶ 1 at 1.)

4

III. ANALYSIS

At all times relevant to this lawsuit, plaintiff Dempsey Alexander Kennedy was an

inmate at the Kit Carson Correctional Center (“KCCC”). On September 22, 2009, two

pieces of mail addressed to Mr. Kennedy were received by the KCCC mailroom and,

pursuant to prison regulations, opened for inspection. The envelopes bore the logo of

an Aurora branch of TCF Bank, and one also displayed a stamp showing plaintiff

Crystal Phifer’s name. (See Am. Compl., ¶ 12 at 2 & Exh. A.) Ms. Phifer, a branch

manager for TCF Bank, was “romantically involved” with Mr. Kennedy.2 

The envelopes contained nude photographs, which were not contraband under

applicable Department of Corrections regulations. Nevertheless, noting the use of a

business envelope, the mailroom clerk asked defendant Tammy Mosness, the facility

investigator, to review the correspondence. Unsure why a bank employee would be

sending nude photographs to an inmate or whether Mr. Phifer had permission to do so,

Ms. Mosness obtained the phone number for the Aurora, Colorado, branch bank and

called Ms. Phifer’s supervisor, Kay Anderson. At Ms. Anderson’s request, Ms. Mosness

copied the contents of the correspondence from Ms. Phifer to Mr. Kennedy and

forwarded it to Ms. Anderson. The original correspondence was forwarded to Mr.

Kennedy that same day, albeit without any indication that it had been copied and sent to

Ms. Anderson.

The following day, Ms. Phifer was terminated from her job at TCF Bank. This

lawsuit followed. Herein, plaintiffs allege violations of their First Amendment rights of

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3

 Of course, this theory applies only to plaintiffs’ state law claims, as there is no respondeat

superior liability for violations of constitutional rights pursued under section 1983. Trujillo v. Williams,

465 F.3d 1210, 1228 (10th Cir. 2006); see also Smedley v. Correctional Corporation of America, 175

Fed. Appx. 943, 946 (10th Cir. Dec. 20, 2005) (“[A] private actor such as CCA ‘cannot be held liable solely

because it employs a tortfeasor – or, in other words . . . cannot be held liable under § 1983 on a

respondeat superior theory.’”) (citation omitted).

4

 Indeed, one of the envelopes received at KCCC, which is appended to the Amended Complaint,

bears a stamp with Ms. Phifer’s name quite clearly displayed underneath the TCF Bank logo. (See Am.

Compl., Exh. A.) 

5

freedom of speech and association, as well as state law claims of tortious interference

with contract and negligent training. They claim that the corporate defendant,

Corrections Corporation of America (“CCA”) is liable for the acts of its employee, Ms.

Mosness, under the doctrine of respondeat superior.

3

 

Defendants’ motion to dismiss is based on their insistence that plaintiffs’ claims

all require proof that the communications in question were disclosed to a third party. 

From this premise, defendants conclude that plaintiffs fail to state viable causes of

action because TCF Bank was not a third party with respect to the communications sent

to Mr. Kennedy. This argument ignores the allegations of plaintiffs’ Amended

Complaint, which quite clearly asserts that Ms. Mosness knew Ms. Phifer to be the

person who sent the correspondence to Mr. Kennedy. (See Am. Compl. ¶ 12 at 2 & ¶

17 at 3.)4

 While Ms. Mosness is alleged to have had some question whether Ms. Phifer

was authorized to use TCF stationery for personal correspondence, nothing in the

Amended Complaint suggests that she had any reasonable belief that the

correspondence was business-related or that the bank qua bank was the sender. 

Indeed, plaintiffs allege that Ms. Mosness sought out and spoke with Ms. Phifer’s

supervisor, further supporting the reasonable inference that she knew Ms. Phifer

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 Defendants’ suggestions that “the envelope clearly indicates that the correspondence was from

TCF Bank with no indication that the correspondence was personal in nature or otherwise not a

transaction involving TCF Bank” and that “[t]he correspondence was only disclosed to TCF Bank officials

since [it] concerned activities of TCF Bank” are patently ludicrous. (Def. Reply at 4 [#35], filed May 25,

2012.) Once Ms. Mosness opened the envelope, it was obvious that the contents were not business

related, and it does not require a particular pleading to conclude that the business activities of any bank do

not involve the transmission of nude photographs to anyone. 

6

 Moreover, as the district court in Nakao noted, “[w]hat distinguishes personal from official letters

is the content of the documents, not such an irrelevancy as the letterhead.” Nakao, 635 F.Supp. at 1365

n.9.

6

specifically to be the source of the correspondence. (See id., ¶¶ 18-19 at 3.)5

 

Defendants also maintain that Ms. Mosness’s disclosure to TCF Bank did not

interfere with Ms. Phifer’s First Amendment right to communicate with Mr. Kennedy,

since he ultimately received the correspondence. However, the relevant question is

whether Ms. Mosness’s actions in disclosing the contents of the correspondence to Ms.

Phifer’s employer would have a chilling effect on plaintiffs’ First Amendment rights. 

Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972)

(“[C]onstitutional violations may arise from the deterrent, or ‘chilling,’ effect of

governmental regulations that fall short of a direct prohibition against the exercise of

First Amendment rights.”). Certainly, the constitutional rights of private citizens who

correspond with incarcerated individuals may be circumscribed by regulations

reasonably related to legitimate penological interests. See Turner v. Safely, 482 U.S.

78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Prison officials’ rights to intercept

and examine incoming mail, however, does not necessarily extend to publicizing private

correspondence to a third party. See Trudeau v. Wyrick, 713 F.2d 1360, 1366 (8th Cir.

1983); Nakao v. Rushen, 635 F.Supp. 1362, 1365 & n.6 (N.D. Cal. 1986).6

 See also

Jolivet v. Deland, 966 F.2d 573, 576 (10th Cir. 1992) (judgment entered on behalf of

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7

 Defendants assert no claim to qualified immunity on behalf of Ms. Mosness, and I therefore do

not address the matter.

7

prisoner against Department of Corrections investigator who revealed personal

correspondence between plaintiff and his girlfriend to another prisoner; plaintiff “had a

reasonable expectation that [his] innocent letters w[ould] not be used to general

investigative purposes”) (citation and internal quotation marks omitted). Cf. Gassler v.

Wood, 14 F.3d 406, 409 (8th Cir. 1994) (disclosure of prisoners’ correspondence to

chief investigator of criminal charges against them not a violation of First Amendment

where investigator shared same security objectives as justified prison officials’ right to

examine mail in first instance; noting, however, that if prison officials had shared

correspondence with “unauthorized persons . . . the situation might be different”).

For these reasons, I find and conclude that plaintiffs have stated viable claims on

which relief may be granted, and that defendants’ motion to dismiss accordingly must

be denied.7

IV. ORDERS

THEREFORE, IT IS ORDERED that CCA Defendants’ Motion To Dismiss

Amended Complaint [#33], filed May 1, 2012, is DENIED.

Dated November 20, 2012, at Denver, Colorado.

BY THE COURT:

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