Blackburn v. Executive Director of CDOC et al

24-IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00865-CNS-NRN
ROGER SCOTT BLACKBURN,
Plaintiff,
v.
EXECUTIVE DIRECTOR OF CDOC,
WARDEN OF STERLING CORRECTIONAL FACILITY,
JOHN CHAPDELAINE, Assistant Warden,
SMITHGALL, Lt., and
STERLING CORRECT. MED., et. al.,
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANTS RANDALL SMITHGALL’S AND JOHN CHAPDELAINE’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT (ECF No. 119)
N. REID NEUREITER
United States Magistrate Judge
This 42 U.S.C. § 1983 case is before the Court pursuant to an Order, ECF No.
120, issued by Judge Charlotte N. Sweeney referring Defendants Randall Smithgall and
John Chapdelaine’s (“Defendants”) Motion to Dismiss Second Amended Complaint
(“Motion to Dismiss”), ECF No. 119. Plaintiff Roger Blackburn did not file a response.
The Court has taken notice of the Court’s file and considered the applicable
federal and state statutes and case law. As set forth below, the Court RECOMMENDS
that Defendants’ Motion to Dismiss, ECF No. 119, be GRANTED.
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I. BACKGROUND1
The Court set forth the relevant factual and procedural history of this case in its
Report and Recommendation on Defendants’ Motion to Dismiss Amended Complaint
(“R&R”), ECF No. 101, which was adopted by Judge Sweeney on May 14, 2025, ECF
No. 111, and will repeat it here only as necessary.
Plaintiff alleged in his Amended Complaint, ECF Nos. 18 and 18-1, that during
the summer of 2008, while he was in the custody of the Colorado Department of
Corrections (“CDOC”) and housed at Sterling Correctional Facility (“SCF”), he was
drugged and sexually assaulted by another inmate. Plaintiff claimed that after he
reported the assault, he was punished and retaliated against by Defendant Smithgall,
the investigating CDOC employee.2 Plaintiff made no allegations as to Defendant
Chapdelaine.
The Court recommended that the Amended Complaint be dismissed. ECF No.
101. The Court reasoned that Plaintiff’s official capacity claims failed because the
CDOC was entitled to Eleventh Amendment immunity for any claims for monetary
damages, and Plaintiff’s requested injunctive relief—“that the case be reopened by
Federal Authorities for investigation and indictment of the individual that Assaulted the
Plaintiff, and that Federal Criminal charges be brought against the person”—was
outside the Court’s authority to grant. Id. at 5–7. The Court then explained that Plaintiff’s
individual liability claims against Defendants were plainly barred by the applicable two-
year statute of limitations. Id. at 7–10.
1 Any citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
2 At some point, Plaintiff was released from custody and now lives in Honduras.
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Judge Sweeney agreed with the R&R’s analysis, but permitted Plaintiff to file a
Second Amended Complaint. She concluded, however, as follows.
The Court provides one final notice to Mr. Blackburn. He has received the
benefit of two federal judges’ analyses of the allegations in his Amended
Complaint, and the benefit of Defendants’ arguments as to why dismissal of
his claims is proper. Should Mr. Blackburn file a Second Amended
Complaint based on the same or substantially similar allegations, the Court
is unlikely to change its current conclusion that his claims are time-barred
or barred under the Eleventh Amendment. And, after giving Mr. Blackburn
the benefit of an amendment this time, his failure to cure any statute-of-
limitations issues would result in the dismissal with prejudice of his claims,
and thus his case would be closed.
ECF No. 111 at 5.
Plaintiff filed a document he purports to be the Second Amended Complaint
(“SAC”) on July 11, 2025. ECF No. 115. However, the SAC does not contain factual
allegations or claims for relief. Instead, Plaintiff merely rehashes his arguments for why
his Amended Complaint should not have been dismissed.
Defendants filed the subject Motion to Dismiss on August 15, 2025, citing Rules 8
and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 119.
II. LEGAL STANDARDS
a. Rule 8
Rule 8(a)(2) provides that a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
8(d)(1) additionally provides that “[e]ach allegation must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d)(1). Under these Rules, claims must be presented clearly and
concisely in a manageable format that allows a court and a defendant to know what
claims are being asserted, and enables a defendant to respond to the claims. New
Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). To fulfill
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his or her obligations under Rule 8 and state a claim in federal court, a plaintiff must
explain what each defendant did to him, when the defendant did it, how the defendant’s
action harmed him, and what specific legal right he believes the defendant violated.
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). “After
all, these are, very basically put, the elements that enable the legal system to get
weaving—permitting the defendant sufficient notice to begin preparing its defense and
the court sufficient clarity to adjudicate the merits.” Id. A decision to dismiss a complaint
pursuant to Rule 8 is within the trial court’s sound discretion. See Windsor v. Colo. Dep’t
of Corr., 9 F. App’x 967, 969 (10th Cir. 2001).
b. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted). “A court
reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are
true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pleaded facts which allow “the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
Iqbal evaluation requires two prongs of analysis. First, the court identifies “the
allegations in the complaint that are not entitled to the assumption of truth,” that is,
those allegations which are legal conclusions, bare assertions, or merely conclusory. Id.
at 679–81. Second, the court considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679. To obtain dismissal
at the Rule 12(b)(6) stage based on the statute of limitations, the allegations on the face
of the complaint surrounding the date of accrual must “make clear that the right sued
upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671
(10th Cir. 2016) (quotation marks omitted).
c. Pro Se Plaintiff
The Court must construe Plaintiff’s filings liberally because he is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall, 935 F.2d at
1110. However, the Court should not be an advocate for a pro se litigant. See Hall, 935
F.2d at 1110.
III. ANALYSIS
The Court recommends that Plaintiff’s SAC be dismissed for two reasons.
First, the filing fails to satisfy the barest pleading requirements of Rule 8. The twin
purposes of a complaint are to give the opposing party fair notice of the basis for the
claims against it so that it may respond, and to allow the Court to conclude that the
allegations, if proven, show that the plaintiff is entitled to relief. See Monument Builders
of Greater Kan. City, Inc. v. Am. Cemetery Ass’n, 891 F.2d 1473, 1480 (10th Cir. 1989).
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The requirements of Rule 8 are designed to meet these purposes. See TV Commc’ns
Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d
1022 (10th Cir. 1992). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that
is permissible, if the complaint concisely states facts upon which relief can be granted
upon any legally sustainable basis.” New Home Appliance Ctr., Inc., 250 F.2d at 883.
Here, even liberally construed, the SAC is not a pleading to which Defendants can
respond. It is instead a second objection to the R&R or a motion to reconsider Judge
Sweeney’s order of dismissal. See ECF No. 115 at 4 (“With all due respect to the court,
none of the plaintiff’s arguments in regard to his constitutional rights have been
addressed. It is as if they have simply been overlooked.”). The filing contains legal
argument rather than factual allegations or claims for relief. Thus, dismissal is
appropriate under Rule 8.3
Second, Judge Sweeney explained to Plaintiff why his claims are time-barred
and explicitly warned him that his failure to cure any statute-of-limitation issues would
result in the dismissal of his claims with prejudice. In his SAC, Plaintiff states that he
“just recently found out that this case was never turned over to the Logan County
District Attorney's Office. The case was concealed by the Sterling Correctional Facility
Staff and covered up. All considered, under this new evidence, the Statute of Limitations
is null and void under C.R.S. § 13-80-108.” Id. at 2. But the Court considered and
rejected this argument in its R&R. See ECF No. 101 at 9–10 (“Here, Mr. Blackburn’s
constitutional injuries do not turn on whether the sexual assault was reported to the
3 The Court also notes that the SAC does not comply with D.C.COLO.LCivR
15.1. Plaintiff must abide by the same rules as all other litigants, despite his pro se
status.
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state authorities; it is not a ‘material existing fact’ and its concealment did cause Mr.
Blackburn damages. Instead, the constitutional violations stem from Mr. Blackburn not
receiving an adequate medical examination following his rape and the fact that he was
retaliated against when he reported the incident.”). Judge Sweeney concurred. See
ECF No. 111 at 4 (“[T]o the extent Mr. Blackburn appears to seek equitable tolling of the
statute of limitations, . . . the Court is not persuaded Mr. Blackburn is entitled to the
equitable tolling of his claims, nor does the discovery rule apply to them[.]”). Plaintiff
ignored Judge Sweeney’s admonition to not file an amended pleading based on
allegations that have already been rejected. Therefore, his claims should be dismissed
with prejudice.
IV. CONCLUSION
For the reasons set forth above, it is hereby RECOMMENDED that Defendants
Randall Smithgall and John Chapdelaine’s Motion to Dismiss Second Amended
Complaint, ECF No. 119, be GRANTED, and that Plaintiff’s Second Amended
Complaint, ECF No. 115, be DISMISSED WITH PREJUDICE.
It is further ORDERED that this Report and Recommendation be emailed to Mr.
Blackburn at roger.blackburn@rocketmail.com.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
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and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148–53
(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).
Dated at Denver, Colorado this 28th day of October, 2025.
_______________________
N. Reid Neureiter
United States Magistrate Judge
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