Opinion
23CA1285
05-23-2024
Philip E. Stetzel, Plaintiff-Appellant, v. Siobhan Burtlow, Warden of the Fremont Correctional Facility; Edward Sutton; Joshua Martinez; Kara Dashner-Owens; Israel Armijo; Correctional Officer Casarez; and Correctional Officer M. Nordin, Defendants-Appellees.
Philip E. Stetzel, Pro Se Philip J. Weiser, Attorney General, Christopher Van Hall, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Fremont County District Court No. 23CV1031 Honorable Lynette M. Wenner, Judge
JUDGMENT AFFIRMED
Philip E. Stetzel, Pro Se
Philip J. Weiser, Attorney General, Christopher Van Hall, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
OPINION
SCHOCK, JUDGE
¶ 1 Plaintiff, Philip E. Stetzel, appeals the dismissal of his complaint against several employees of the Colorado Department of Corrections (DOC) under the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to -120, C.R.S. 2023. We affirm.
I. Background
¶ 2 Stetzel is a prisoner who was incarcerated at the Fremont Correctional Facility at the time of the events giving rise to this lawsuit. According to the allegations in the complaint, Stetzel was assaulted by another inmate and placed in a segregated housing unit pending disciplinary proceedings. His property was packed and sent to a storage unit until those proceedings were completed.
Defendants do not dispute the facts alleged in the complaint for purposes of the district court's ruling and this appeal.
¶ 3 Stetzel was found "not guilty" at the disciplinary hearing and returned to his previous cell. But when he received his property back from storage, several of his belongings were missing, including a pair of medical shoes that he needed for work. Stetzel reported the missing property, but prison staff could not locate it.
¶ 4 Over the next several months, Stetzel repeatedly contacted prison staff in an attempt to locate the missing property. He also filed two grievances, one concerning the missing property and one seeking replacement of tennis shoes that had been "prematurely worn-out" as a result of the lost medical shoes. The second grievance was granted. A few days later, Stetzel received replacement medical shoes. But he claims that he is still missing various items with a total value of $133.58. He also asserts that he did not receive the replacement tennis shoes he was awarded as a result of his second grievance.
¶ 5 Stetzel filed a prior action against defendants, asserting claims under C.R.C.P. 106 and other legal theories, including deliberate indifference, abuse of discretion, and theft. On the defendants' motion, a magistrate dismissed the complaint under C.R.C.P. 12(b)(5) and 12(b)(1). Stetzel appealed, but the appeal was dismissed for lack of jurisdiction because he had not filed a petition for review in the district court under C.R.M. 7(a). See Stetzel v. Williams, (Colo.App. No. 23CA0054, Apr. 7, 2023) (unpublished order).
We may take judicial notice of the contents of court records in a related case. People v. Sa'ra, 117 P.3d 51, 56 (Colo.App. 2004).
¶ 6 Stetzel then filed the complaint in this case, asserting a single claim of "negligence" against the same defendants based on substantially the same factual allegations as those in his previous complaint. Stetzel alleged that defendants were "negligent in the performance" of their duties and that such negligence resulted in the loss of his property. He also asserted that defendants had failed to follow required procedures and wrongfully deprived him of his property in violation of Colorado's theft statute and the Fourteenth Amendment of the United States Constitution. He sought replacement of the items or reimbursement for their value.
¶ 7 The district court dismissed the complaint sua sponte, concluding that Stetzel's claim was a "simple negligence" claim that was barred by the CGIA, section 24-10-106(1.5)(a), C.R.S. 2023, because Stetzel had been convicted of a crime and incarcerated in a correctional facility. The order said that the dismissal was "for failure to state a cause of action upon which relief may be granted."
¶ 8 Stetzel filed a petition for reconsideration, in which he argued that he had also asserted a 42 U.S.C. § 1983 claim for violation of the Due Process Clause of the Fourteenth Amendment that was not barred by immunity. The district court denied the petition.
II. Analysis
¶ 9 Stetzel contends that the district court erred by dismissing his complaint because (1) defendants are not entitled to immunity and (2) he asserted a § 1983 due process claim that is not subject to the CGIA. We conclude that the complaint was properly dismissed.
A. CGIA
¶ 10 Governmental immunity under the CGIA is an issue of subject matter jurisdiction, which we review in accordance with C.R.C.P. 12(b)(1). Cisneros v. Elder, 2022 CO 13M, ¶ 20. When, as in this case, the relevant facts are undisputed and the issue presents only a question of law, we review the district court's ruling de novo. Id.
¶ 11 Under the CGIA, public employees are generally "immune from liability" for "any claim for injury . . . which lies in tort or could lie in tort" that "arises out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing such injury was willful and wanton." § 24-10-118(2)(a), C.R.S. 2023; see also Martinez v. Est. of Bleck, 2016 CO 58, ¶ 15. There is an exception to this immunity for injuries resulting from the operation of a correctional facility by a public entity. § 24-10-106(1)(b); § 24-10-118(2)(a). But that exception does not apply to "claimants who have been convicted of a crime and incarcerated in a correctional facility . . . pursuant to such conviction." § 24-10-106(1.5)(a).
¶ 12 Although the district court incorrectly characterized the dismissal of Stetzel's complaint as based on failure to state a claim rather than lack of subject matter jurisdiction, it correctly determined that Stetzel's negligence claim is barred by the CGIA.
¶ 13 First, defendants are public employees of the DOC and the alleged acts and omissions occurred during and within the scope of their employment. § 24-10-118(2)(a). The complaint alleges that defendants were "negligent in the performance of duties outlined in" DOC regulations and the facility's procedures and policies.
¶ 14 Second, Stetzel's negligence claim lies or could lie in tort. Id.; see also L.J. v. Carricato, 2018 COA 3, ¶ 22 (holding that claims lie or could lie in tort when they are "rooted in the tort of negligence").
Stetzel also asserts that defendants failed to follow various regulations, violated section 18-4-401, C.R.S. 2023, and "exhibited deliberate indifference and abuse of discretion." But the essence of his claim is one for damages resulting from the loss of property. Such a claim lies or could lie in tort. See City & Cnty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 765 (Colo. 1992) ("A claim for damages resulting from detention of property may lie in tort."); Foster v. Bd. of Governors of Colo. State Univ. Sys., 2014 COA 18, ¶ 22 (looking to whether "essence" of injury is tortious in nature).
¶ 15 Third, although Stetzel's claim arises from the operation of a correctional facility, he does not dispute that he has been convicted of a crime and is incarcerated pursuant to that conviction. § 24-10-106(1.5)(a).
¶ 16 Fourth, Stetzel did not allege, and does not argue on appeal, that defendants' actions or omissions were willful and wanton. § 24-10-118(2)(a); see also § 24-10-110(5)(a), C.R.S. 2023 ("In any action in which allegations are made that an act or omission of a public employee was willful and wanton, the specific factual basis of such allegations shall be stated in the complaint."). And indeed, his characterization of defendants' conduct as negligent would be inconsistent with any such assertion. See Martinez, ¶ 32 ("[W]illful and wanton conduct is not merely negligent ...."); Duke v. Gunnison Cnty. Sheriff's Off., 2019 COA 170, ¶ 31 ("For willful and wanton conduct to subject a public employee to liability for a tort claim, the conduct must be more than merely negligent ....").
¶ 17 Stetzel does not dispute any of these points. Instead, invoking the doctrine of qualified immunity, Stetzel argues only that the laws he cites are "clearly established" and "required to be known." See Churchill v. Univ. of Colo., 2012 CO 54, ¶ 39 ("Qualified immunity applies to a public official's conduct when she takes a discretionary action that a reasonable person would not know violates a clearly established constitutional right of the plaintiff."). But qualified immunity - a federal defense to statutory and constitutional claims - is distinct from the sovereign immunity conferred by the CGIA. See Martinez, ¶¶ 4, 19, 25 n.5. Unlike qualified immunity, there is no exception to the CGIA for violations of clearly established law.
¶ 18 Because Stetzel's negligence claim lies or could lie in tort and arises out of defendants' acts during and within the scope of their employment, defendants are immune under the CGIA and the district court lacked subject matter jurisdiction over the claim.
B. Fourteenth Amendment Due Process Claim
¶ 19 Stetzel contends that he also asserted a claim for violation of the Fourteenth Amendment, which we understand to be premised on an alleged violation of due process. To the extent he asserted such a claim under 42 U.S.C. § 1983, it would not be subject to the CGIA. See Mucci v. Falcon Sch. Dist. No. 49, 655 P.2d 422, 424 (Colo.App. 1982); Felder v. Casey, 487 U.S. 131, 139 (1988).
¶ 20 It is unclear whether Stetzel asserted a due process claim in his complaint. His sole claim was labeled "negligence," and contrary to his assertion on appeal, he did not cite § 1983. But he did allege that defendants "wrongfully deprived him of property in violation of . . . the 14th Amendment." Thus, broadly construing Stetzel's pro se complaint, see People v. Cali, 2020 CO 20, ¶ 34, we will assume that he intended to assert a due process claim.
¶ 21 Even if he did, however, the district court correctly concluded that he failed to state a claim upon which relief can be granted. The Due Process Clause protects against "deliberate decisions of governmental officials to deprive a person of life, liberty, or property" without constitutionally sufficient procedural safeguards. Wark v. Bd. of Cnty. Comm'rs, 47 P.3d 711, 716 (Colo.App. 2002) (emphasis added); see also Woo v. El Paso Cnty. Sheriff's Off., 2022 CO 56, ¶ 22; U.S. Const. amend. XIV, § 1. The word "deprive" "connote[s] more than a negligent act." Daniels v. Williams, 474 U.S. 327, 330 (1986). Thus, "mere negligence or recklessness is insufficient" to sustain a § 1983 due process claim. Sebastian v. Douglas County, 2013 COA 132, ¶ 20 (citation omitted), aff'd, 2016 CO 13; see also Daniels, 474 U.S. at 328 ("[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.").
¶ 22 In his complaint, Stetzel alleges that defendants were negligent and that their negligence resulted in the loss of his property. He does not allege that they intended to deprive him of his property or that they made a deliberate decision to do so. See Wark, 47 P.3d at 716. Although Stetzel alleges that defendants "intentionally neglected to investigate [the] matter" or to "respond in a meaningful manner" to his requests for a remedy, such procedural safeguards are constitutionally required only when there has been a deprivation of a protected property interest. See Nakauchi v. Cowart, 2022 COA 77, ¶ 36. "[M]islaying an inmate's property" as a result of a "lack of due care" is not "a deprivation within the meaning of the Fourteenth Amendment." Daniels, 474 U.S. at 332.
III. Disposition
¶ 23 The judgment is affirmed.
JUDGE J. JONES and JUDGE WELLING concur.