FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 7, 2007
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
R OD O LFO RIV ER A,
Plaintiff-Appellant,
v. No. 06-1485
(D.C. No. 05-cv-01714-EW N-M JW )
TRAVIS CO RM ANEY , U.S. (D . Colo.)
Probation Officer; KU RT RU NG E,
Probation O fficer; C HA D
CHADDICK, Parole Officer Division
of Adult Parole and Community
Corrections; LARRY STUART, Parole
Officer Division of Adult Parole and
Community Corrections; W ESLEY
W ARD, Pathw ays Director;
RICHARD HERRANEN, Former
Pathw ays Director; ROSEM ARY J.
KJELDGAARD, Pathw ays Counselor;
DIRECTOR OF SUM M IT
C OU N SELIN G ; M A RIO N A V OY,
Summit Counseling; HARVEY J.
HODGE, PhD , Center of Family and
M arital Treatment; Y V O N NE
SLETTA, Evaluator Center of Family
and M arital Treatment,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
(continued...)
Before H EN RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.
Plaintiff-appellant Rodolfo Rivera, proceeding pro se, appeals from the
district court’s dismissal of his civil rights complaint filed under 42 U.S.C.
§ 1983 for lack of subject matter jurisdiction, for failure to state a claim, and
based on the applicable statute of limitations. W e exercise jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
The magistrate judge thoroughly review ed the facts asserted in
M r. Rivera’s amended complaint. See R., Doc. 66, at 2-5 (reviewing id., Doc. 4).
W e merely summarize those assertions here. On September 3, 1999, M r. Rivera
was convicted in state court of robbery, assault, and criminal first degree trespass.
He maintained his innocence. He was sentenced to thirty days in jail, probation,
and thirty-six weeks of counseling. After he attended the first eighteen weeks of
classes, counselor Rosemary J. Kjeldgaard discharged him because he would not
admit guilt and wrote an allegedly derogatory report to the state trial court and the
*
(...continued)
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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probation department. M r. Rivera then attended another eighteen weeks of
classes at another counseling center, but counselor M arion Avoy refused to pass
him because he w ould not admit guilt, and she w rote an allegedly derogatory
report to the state trial court and the probation department. M r. Rivera alleged
that probation officers Travis Cormaney and Kurt Runge then imposed a
requirement that he attend another eighteen weeks of counseling classes.
Probation revocation proceedings were also initiated. The state trial court asked
M r. Rivera to obtain another evaluation, and counselors Yvonne Sletta and
Harvey J. Hodge wrote an allegedly derogatory report to the trial court because he
would not admit guilt. On June 25, 2001, the state trial court revoked
M r. Rivera’s probation and resentenced him to two years in prison. M r. Rivera
was released on Friday, November 29, 2002, with instructions to call his parole
officer as soon as he arrived in Colorado Springs. He asserted that he tried to
call, but got an answering machine with no option for the officer he had been
directed to call. He went to the parole office in person on the following M onday
and was arrested by parole officers Chad Chaddick and Larry Stuart. He was
released after a few days. The Colorado Court of Appeals overturned the
revocation of M r. Rivera’s probation in December 2003, and his sentence was
vacated by the state trial court in April 2004.
M r. Rivera, proceeding pro se, filed his initial civil rights complaint on
September 2, 2005, id., Doc. 3, and filed an amended complaint on September 16,
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2005, id., Doc. 4. He sued numerous defendants (probation officers, counselors,
and parole officers), asserting that he had been subjected to double jeopardy by
their involvement with the June 25, 2001, revocation of his probation, which
resulted in his being illegally resentenced to a two-year prison term, see id. at 6
¶28, or by their involvement with his D ecember 2, 2002, arrest for a parole
violation shortly after his release from prison, see id. at 7 ¶¶32-33. Defendants
moved to dismiss M r. Rivera’s amended complaint on various grounds.
The magistrate judge first considered the motion of defendants Travis
Cormaney and Kurt Runge, both probation officers, and Chad Chaddick and Larry
Stuart, both parole officers. The magistrate judge determined that M r. Rivera’s
official capacity claims against these defendants w ere barred by the Eleventh
Amendment, and it therefore lacked subject matter jurisdiction over them. R.,
Doc. 66, at 7. The magistrate judge further determined that defendants Cormaney
and Runge were entitled to absolute judicial immunity because their
recommendations concerning the revocation of M r. Rivera’s probation were made
to the state trial court and were integrally related to the judicial function. Id.
at 8-9. The magistrate judge determined that defendants Chaddick and Stuart
were entitled to qualified immunity because they had “probable cause to arrest
and hold [M r. Rivera] for a parole violation based upon his failure to report to
parole in a timely manner as directed.” Id. at 10. In the alternative, the
magistrate judge determined that the claims M r. Rivera asserted in his September
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2005 complaint challenging his arrest by defendants Chaddick and Stuart on
December 2, 2002, were barred by the applicable two-year statute of limitations.
See id. at 4-5, 10-13.
The magistrate judge next considered the motion of defendant Yvonne
Sletta, a private counselor who evaluated M r. Rivera and wrote a report to the
state trial court recommending jail time because M r. Rivera would not admit
guilt. The magistrate judge determined that M r. Rivera did not assert that
M s. Sletta was a state actor for purposes of 42 U.S.C. § 1983 and did not assert
any facts tending to show that she acted in agreement and concerted action with a
state actor. Id. at 14. Further, the magistrate judge noted that the trial court
revoked M r. Rivera’s probation, not M s. Sletta. Id. at 14-15. The magistrate
judge further determined that M r. Rivera’s claims against M s. Sletta were barred
by the applicable two-year statute of limitations because she w rote her report
sometime before the June 25, 2001, revocation of his probation, which w as more
than tw o years before M r. Rivera filed suit in September 2005. See id. at 3-4, 15.
The magistrate judge then considered the motion of defendant Rosemary J.
Kjeldgaard, a private counselor who discharged M r. Rivera from counseling
classes because he would not admit guilt and who wrote a derogatory report to the
state trial court and the probation department. The magistrate judge indicated that
M s. Kjeldgaard was not a state actor for purposes of 42 U.S.C. § 1983 and
determined that M r. Rivera failed to assert any facts tending to show that she
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acted in agreement or concerted action with a state actor. Id. at 15-17. Further,
the magistrate judge noted that the trial court revoked M r. Rivera’s probation, not
M s. Kjeldgaard. Id. at 16. The magistrate judge further determined that
M r. Rivera’s claims against M s. Kjeldgaard were barred by the applicable
two-year statute of limitations because she wrote her report sometime before the
June 25, 2001, revocation of his probation, which w as more than two years before
M r. R ivera filed suit in September 2005. See id. at 3-4, 16-17. The magistrate
judge concluded that the motions to dismiss filed by defendants Cormaney,
Runge, Chaddick, Stuart, Sletta, and Kjeldgaard should be granted.
The magistrate judge determined that the remaining five defendants were
not state actors and that M r. Rivera did not assert any facts tending to show that
any of them acted in agreement and concerted action with a state actor. Id. at 17.
Because M r. Rivera was proceeding in forma pauperis, the magistrate judge
recommended that his claims against these five defendants be dismissed for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). R., Doc. 66, at 17.
The magistrate judge further concluded that the amended complaint should be
dismissed with prejudice as to all of the defendants. Id. at 18.
M r. Rivera filed objections to the magistrate judge’s recommendation. Id.,
Doc. 70. The district court, noting that its review was de novo, accepted the
magistrate judge’s recommendation and dismissed the amended complaint with
prejudice. Id., Doc. 76. M r. Rivera filed this appeal.
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II. DISCUSSION
W hen we review a dismissal, “the standard of review is de novo whether w e
treat the appeal as seeking review of a [Fed. R. Civ. P.] Rule 12(b)(1) or 12(b)(6)
dismissal.” Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir.
2004) (per curiam). In addition, “the proper standard for evaluating dismissal in a
qualified immunity case is the normal standard we apply to dismissals generally.”
M oya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006). W e also review a
dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo. See Trujillo v. Williams,
465 F.3d 1210, 1215-16 (10th Cir. 2006). “W e must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most
favorable to the plaintiff.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, ____
(10th Cir. 2007). “‘W e look for plausibility in th[e] complaint.’” Id. (quoting
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1970 (2007)). W e need not
accept conclusory allegations. See M oya, 465 F.3d at 455.
M r. Rivera argues on appeal that: (1) the district court did not conduct a
de novo review of the magistrate judge’s recommendation; (2) the magistrate
judge misstated the facts of the case and misapplied the law ; (3) the magistrate
judge adopted the defendants’ version of the facts to support his determinations
that certain defendants were not state actors or that claims against them were
barred by the statute of limitations, or that defendants Chaddick and Stuart were
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entitled to immunity; and (4) the district court did not lack subject matter
jurisdiction and M r. Rivera stated a claim upon which relief could be granted.
W e reject M r. Rivera’s conclusory argument that the district court did not
perform a de novo review of the magistrate judge’s recommendation. The district
court stated that it did so. R., Doc. 76, at 2. “W e assume that the district court
performed its review function properly in the absence of evidence to the
contrary.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). M r. Rivera
presented no such evidence.
W e also reject M r. Rivera’s argument that the magistrate judge misstated
the facts and misapplied the law. Based on our review, the magistrate judge set
out the facts as asserted by M r. Rivera in his amended complaint. In his brief on
appeal, M r. Rivera only clearly challenges one fact, and it appears in one of the
motions to dismiss, not in the magistrate judge’s recommendation. He argues that
he was only required to call his parole officer when he was released from prison
on Friday, November 29, 2002, not to report to his parole officer, as asserted by
defendants Cormaney, Runge, Chaddick, and Stuart in their motion to dismiss.
Aplt. Opening Br. at 10. The magistrate judge, however, correctly stated that
M r. Rivera asserted that he “was directed by his case manager to call his parole
officer upon his arrival in Colorado Springs[.]” R. Doc. 66, at 10. Although
M r. R ivera explained that he got an answering machine when he called, id.,
Doc. 4, at 7 ¶32, he did not assert that he spoke to a parole officer that day.
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Rather, he admitted that he did not speak to a parole officer until the following
M onday, when he appeared at the parole office in person. Id., ¶33. Thus,
M r. Rivera has not demonstrated that there is any error in the magistrate judge’s
conclusion that defendants Chaddick and Stuart had “probable cause to arrest and
hold the plaintiff for a parole violation based upon his failure to report to parole
in a timely manner as directed.” Id., Doc. 66, at 10. W e think it is irrelevant that
the magistrate judge used the word “report” instead of repeating the word “call”
when he stated his conclusion.
M r. Rivera also argues that defendants Chaddick and Stuart, the parole
officers who arrested him shortly after he was released from prison, were not
entitled to absolute immunity. Aplt. Opening Br. at 9-10. His reliance on Swift v.
California, 384 F.3d 1184 (9th Cir. 2004), is misplaced. The Ninth Circuit did
state in that case that “parole officers may claim absolute immunity [only] for
those actions relating to their responsibility to determine whether to revoke
parole[.]” Id. at 1189 (quotation omitted). The magistrate judge held, however,
that defendants Chaddick and Stuart were entitled only to qualified immunity, not
absolute immunity. See R., Doc. 66, at 9-10. M r. Rivera has not even argued that
defendants Chaddick and Stuart were not entitled to qualified immunity, and,
because he admitted that he did not speak to his parole officer on November 29,
2002, as he asserted he had been directed to do, he cannot show that defendants
Chaddick and Stuart were not entitled to qualified immunity for arresting him
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when he appeared in person at the parole office on the following M onday. The
dismissal of his claims against defendants Chaddick and Stuart was therefore
proper. W e do not read M r. Rivera’s opening brief to challenge the magistrate
judge’s holding that his claims against defendants Cormaney, Runge, Chaddick,
and Stuart in their official capacities were barred by the Eleventh Amendment.
W e also do not read M r. Rivera’s opening brief to challenge the magistrate
judge’s conclusion that defendants Cormaney and Runge were entitled to absolute
immunity. Therefore, these conclusions are affirmed without discussion. W e
need not discuss any other arguments directed at defendants Cormaney, Runge,
Chaddick, and Stuart.
M r. Rivera argues that the magistrate judge erred in concluding that
defendants Sletta, Kjeldgaard, Hodge, and Avoy are not state actors, arguing that
he asserted “joint action between the concerned Domestic Violence staff and the
state.” Aplt. Opening Br. at 8-9. His assertions against the defendants are
conclusory, at best. Further, he did not assert any specific facts from which it
could be inferred that the state trial court did not make an independent decision to
revoke his probation due to defendants’ influence. See Gallagher v. “Neil Young
Freedom Concert”, 49 F.3d 1442, 1454 (10th Cir. 1995). M r. Rivera’s argument
that these defendants are state actors is without merit.
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M r. Rivera makes no specific argument with respect to the remaining
defendants. Accordingly, we affirm the dismissal of his claims against them
without discussion.
M s. Sletta filed a motion to dismiss the appeal, asserting that M r. Rivera’s
notice of appeal was untimely. W e disagree. The district court entered its Order
Accepting M agistrate Judge’s Recommendation on September 25, 2006, R.,
Doc. 76, but never entered a judgment on a separate document, as required by
Fed. R. Civ. P. 58. Under Rule 58(b)(2)(B), judgment was deemed entered 150
days after the entry of the district court’s order. M r. Rivera filed his notice of
appeal on October 27, 2006, R., Doc. 77— before his time to appeal had even
begun to run— and it was therefore timely. M s. Sletta’s motion to dismiss the
appeal is denied.
M r. Rivera has moved for leave to proceed in forma pauperis on appeal.
Because he was released from prison on November 29, 2002, and was not
incarcerated at the time he filed this appeal, the provisions of the Prison
Litigation Reform Act do not apply to this appeal. See 28 U.S.C. § 1915(a), (b),
(h). M r. Rivera therefore must demonstrate “a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised on appeal.” DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Under this standard, the motion is
granted.
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III. CONCLUSION
Appellee Sletta’s motion to dismiss the appeal is denied. Appellant’s
motion to proceed on appeal in forma pauperis is granted. The judgment of the
district court is A FFIR ME D.
Entered for the Court
Robert H. Henry
Circuit Judge
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