Free Objection to Report and Recommendations - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff,
v.

JOHN HYATT, et. al. Defendants.

DEFENDANTS' OBJECTION TO ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (collectively, "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., pursuant to Fed. R. Civ. P. 72(b), hereby submit this Objection to Order and Recommendation of United States Magistrate Judge, as follows: I. INTRODUCTION AND PROCEDURAL HISTORY On July 11, 2001, Plaintiff filed a pro se Prisoner's Civil Rights Complaint alleging two 42 U.S.C. §1983 claims for relief against the Defendants, who are each employees

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 2 of 12

Colorado Department of Corrections ("DOC"). 1 Plaintiff alleged that on July 15, 1999, a fellow inmate tried to serve a lawsuit Plaintiff had filed in state court on Defendants Hyatt and Fahey. [See Doc.3 at Section D]. 2 Plaintiff claimed that after receiving the suit, Captain Hyatt and Lieutenant Fahey called Plaintiff to an office where they subjected him to verbal abuse and threatened to "find something" with which to charge Plaintiff. [See id.] Plaintiff claims that on July 20, 1999, other correctional officers came to his cell and conducted an unusually thorough search of his cell, including his legal papers, and found contraband on him and his cellmate. [See id.] Plaintiff claims he was charged with a prison disciplinary violation as a result, but his cellmate was not charged. [See id.] Plaintiff contends he had a disciplinary hearing on the charge, but he did not have a full and fair opportunity to present his defense. At the conclusion of the hearing, he received a disciplinary conviction. [See id.] Plaintiff alleges that following his

conviction, Captain Hyatt and other staff began a campaign of "harassment, retaliation, and wrongful disciplinary charges" against him, including destroying his property, hindering his access to grievance procedures, making false allegations against him, housing him with an inmate he did not get along with, and improperly conducting disciplinary proceedings against him. [See id.]

Neither Chad Nelson nor the Defendant described as "Unknown Property Officer" were ever served in this matter, and neither party has appeared in this case. [See Doc.30, at p.3 n.2]. For ease of reference, the Defendants cite to this Court's docket sheet numbers to assist the Court's review of the extensive procedural history of this matter.
2

1

2

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 3 of 12

Plaintiff's first claim for relief alleged the Defendants violated Plaintiff's First Amendment rights by retaliating against Plaintiff for filing a lawsuit and for filing grievances. [See id. at Section D, Claim I]. 3 Plaintiff's second claim for relief alleged a conspiracy to interfere with the grievance process by Defendants Fahey, Fulton, Carr, Hyatt, and Harlan. [See id. at Section D, Claim II]. As relief, Plaintiff sought an

injunction from placement in segregation and from further harassment or retaliation; nominal and punitive damages; and compensatory damages for his alleged loss of property and placement in segregation. [See id. at Section G]. On November 19, 2001, Defendants filed a Motion to Dismiss Plaintiff's Complaint. [ ee Doc.19 (the "Original Motion to Dismiss")]. The Original Motion to S Dismiss sought dismissal of Plaintiff's claims on several grounds. First, Plaintiff's claims for compensatory damages were precluded under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e), because he alleged no physical injury. [See id. at p.45]. Second, Plaintiff failed to allege facts sufficient to support a claim for punitive

damages. [See id. at p.5-7]. Third, Plaintiff failed to state any claim for either retaliation or conspiracy, and in any event the Defendants were entitled to qualified immunity from Plaintiff's 42 U.S.C. §1983 claims. [See id. at p.8-13, 15-16]. Finally, Plaintiff's claims failed as collateral attacks on his prison disciplinary convictions under Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny. [See id. at p.17-18].

Although this claim is entitled "First Amendment Right of Access to Courts," [see id.], Plaintiff later disclaimed any intent to bring a claim for denial of access to the courts and stated his First Claim for Relief was solely a retaliation claim. [See Answer to Motion to Dismiss, Doc.25, at p.1]. 3

3

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 4 of 12

On December 24, 2001, Plaintiff filed a Motion to Amend his Complaint, attaching a copy of the proposed Amended Complaint, containing in substance the same allegations as the original Complaint. [See Doc.24]. On the same date, Plaintiff filed a response to the Original Motion to Dismiss. [ ee Doc. 25]. On January 3, 2002, S

Defendants filed a reply in support of the Original Motion to Dismiss and a response to Plaintiff's Motion to Amend. [See Doc.27 and 28]. On March 3, 2003, United States Magistrate Judge Craig B. Shaffer issued a Recommendation of United States Magistrate Judge (the "First Dismissal

Recommendation"), which recommended denying Plaintiff's Motion to Amend Complaint and granting Defendants' Original Motion to Dismiss. [See Doc.30]. With respect to the damages claims, Magistrate Judge Shaffer found Plaintiff's compensatory damages claims should be dismissed pursuant to the PLRA in light of Plaintiff's concession that he had no physical injuries, [see id. at p.4], and Plaintiff did not allege facts supporting a punitive damages award. [See id. at p.5]. Magistrate Judge Shaffer found that

Plaintiff's official capacity claims, if any, were barred by the Eleventh Amendment. [See id. at p.7-9]. With respect to the merits of Plaintiff's two claims for relief, Magistrate Judge Shaffer found Plaintiff failed to state a claim for retaliation against the Defendants because he had not alleged any connection between the service of the lawsuit on Defendants Hyatt and Fahey and any of the claimed retaliatory actions, nor did he allege that the claimed retaliatory actions would not have occurred but for the retaliatory motive. [See id. at p.5-6]. Magistrate Judge Shaffer further concluded the retaliation

4

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 5 of 12

claim failed for lack of personal participation with respect to Defendants Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Harlan, and Claar, [see id. at 9-10], and in any event was barred because it sought to invalidate Plaintiff's disciplinary convictions under the doctrine of Heck v. Humphrey. [See id. at 6-7]. Magistrate

Judge Shaffer also found Plaintiff's Complaint failed to state any claim for conspiracy, because Plaintiff failed to allege facts showing any understanding, agreement or concerted action necessary to state a claim for conspiracy under 42 U.S.C. §1983. [See id. at p.10-12]. Finally, with respect to both claims, Magistrate Judge Shaffer found that because Plaintiff failed to sufficiently allege the deprivation of any constitutional right, the Defendants were entitled to qualified immunity. [See id. at p.12]. As for Plaintiff's Motion to Amend, Magistrate Judge Shaffer found no material difference between the proposed amendments and the original Complaint, and therefore recommended denial of the proposed amendment. [See id. at p.13]. Plaintiff objected to the First Dismissal Recommendation on March 17, 2003. [See Doc.31]. On March 25, 2003, this Court issued an Order Adopting

Recommendation [#30] of United States Magistrate Judge. [See Doc. 32]. This Court found the First Dismissal Recommendation to be "detailed and well reasoned," and concluded that "the arguments advanced, authorities cited, and the findings of fact, conclusions of law, and recommendations proposed by the Magistrate Judge should be approved and adopted." [Id. at p.2]. This Court therefore granted the Original Motion to Dismiss and dismissed the action in its entirety. [See id.] Plaintiff filed a timely Notice of Appeal on April 24, 2003. [See Doc. 34].

5

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 6 of 12

Following briefing and oral argument on the appeal, on January 26, 2005, the United States Court of Appeals for the Tenth Circuit issued an Order and Judgment. The Tenth Circuit noted the threshold issue before it was whether the Heck v. Humphrey doctrine barred jurisdiction in the case, but held the record was insufficient to address the issue on appeal. The Tenth Circuit therefore remanded the case to this Court for further consideration of the applicability of this doctrine. Judgment, at 2]. On remand to this Court, the parties submitted jurisdictional briefs at the direction of Magistrate Judge Shaffer. Following briefing on this issue, on January 3, 2006, Magistrate Judge Shaffer issued his Recommendation of United States Magistrate Judge (the "Jurisdictional Recommendation"), recommending this Court determine Plaintiff's claims were not barred by the Heck v. Humphrey doctrine and the Court therefore had jurisdiction to review such claims. [See Doc.71]. Both sides filed [See Order and

objections to the Jurisdictional Recommendation. [See Doc. 72, 73]. On February 8, 2006, this Court issued an Order Adopting Recommendation of United States Magistrate Judge, overruling all objections, and finding Plaintiff's Complaint was not barred by the Heck v. Humphrey doctrine. [See Doc.75]. On February 17, 2006, the Defendants filed a second Motion to Dismiss Plaintiff's Complaint. [See Doc.76 (the "Renewed Motion to Dismiss")]. The Renewed Motion to Dismiss noted that while the jurisdictional issue of the applicability of the Heck v. Humphrey doctrine had been resolved in favor of jurisdiction, this ruling did nothing to upset this Court's prior determination that each of Plaintiff's two claims were also

6

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 7 of 12

subject to dismissal on their merits. [See id. at ¶2-3]. The Renewed Motion to Dismiss incorporated by reference all arguments and authorities presented in the briefing on the Original Motion to Dismiss, and noted this Court's prior determination on the merits of Plaintiff's claims constitutes the law of the case. [See id. at ¶3]. Plaintiff filed a

response to the Renewed Motion to Dismiss on April 13, 2006, [ ee Doc.90], and s Defendants filed a reply in support of the motion on April 19, 2006. [See Doc.91]. On August 1, 2006, Magistrate Judge Shaffer issued and Order and Recommendation of United States Magistrate Judge (the "Second Dismissal Recommendation"), recommending that the Renewed Motion to Dismiss be granted in part and denied in part. [Doc.92]. Because Magistrate Judge Shaffer offered no basis for attempting to revise this Court's prior ruling on the merits of Plaintiff's claims, Defendants respectfully request that this Court reject the Second Dismissal Recommendation to the extent it recommends partial denial of the Renewed Motion to Dismiss, and enter an order dismissing Plaintiff's Complaint in its entirety. II. STANDARD OF REVIEW Pursuant to 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b), a District Court reviewing a magistrate judge's recommendation must make a de novo determination as to any portion of the recommendation to which a party has filed a specific written objection. See also Malik v. Arapahoe County Dep't of Social Servs., 987 F. Supp. 868, 871 (D. Colo. 1997). This Court may accept, reject, or modify the

recommendation, in whole or in part, and may also receive additional evidence or remand the matter to the Magistrate Judge with instructions. See 28 U.S.C. §636(b)(1);

7

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 8 of 12

Fed. R. Civ. P. 72(b). Failure to object to a factual finding or legal conclusion in a magistrate judge's report results in a waiver of the right to appeal the particular issue to both the district court and the court of appeals. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Carpenter v. Williams, 205 F.3d 1249, 1253 (10th Cir. 2000). III. ARGUMENT "The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198 (1950). The rule of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983) (citing 1B J. Moore & T. Currier, Moore's Federal Practice ¶0.404 (1982)). "The rule is one of expedition, designed to bring about a quick resolution of disputes by preventing continued reargument of issues already decided." Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981). Unlike res judicata, however, the law of the case doctrine is a more flexible rule permitting modification of prior rulings under certain circumstances. See id.

Specifically, "[c]ourts have generally permitted a modification of the law of the case when substantially different, new evidence has been introduced, subsequent, contradictory controlling authority exists, or the original order is clearly erroneous." Id. (citing Fuhrman v. United States Steel Corp., 479 F.2d 489, 494 (6th Cir.)). As explained in detail above, the First Dismissal Recommendation, adopted in its entirety by this Court, did not deal solely with the jurisdictional issue of Heck v.

8

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 9 of 12

Humphrey, but also determined that each of Plaintiff's two claims were subject to dismissal on their merits, and that the Defendants were protected by qualified immunity from Plaintiff's claims. By contrast, the Second Dismissal Recommendation now

asserts that "upon further review of the Magistrate Judge's prior recommendation to grant the Defendants' Motion to Dismiss, the Magistrate Judge has determined that modification to the prior recommendation is required." [Doc.92]. The Second Dismissal Recommendation recommends dismissal of Plaintiff's claims for compensatory and punitive damages, of the conspiracy claim, of any official capacity claims, and of the retaliation claim as brought against Defendants Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Romero, Harlan, and Claar, based upon the same reasoning contained in the First Dismissal Recommendation. [See id. at p.610, 13-15, 18-19; compare First Dismissal Recommendation, Doc.30, at p.4-6, 7-12]. However, the Second Dismissal Recommendation recommends denial of the retaliation claim as brought against Defendants Fahey, Hyatt, Nelson, Fulton, Carreras, Davis, Maestas, Garcia, and Archuleta, now asserting for the first time, in direct contrast to the First Dismissal Recommendation, that Plaintiff's Complaint sufficiently alleges that these Defendants actions were taken in retaliation for activities protected by the First Amendment. [See id. at p.10-13; compare First Dismissal Recommendation, Doc.30, at p.5-6]]. The Second Dismissal Recommendation also alters the Magistrate Judge's prior finding on qualified immunity, now stating there should be no qualified immunity with respect to Plaintiff's first claim against these Defendants.

9

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 10 of 12

The Second Dismissal Recommendation offers no explanation for its about-face on the merits of Plaintiff's retaliation claim as brought against Defendants Fahey, Hyatt, Nelson, Fulton, Carreras, Davis, Maestas, Garcia, and Archuleta, or on the issue of qualified immunity with respect to this claim. The Second Dismissal nowhere addresses the issue of law of the case, specifically raised in the Renewed Motion to Dismiss, and does not explain why this doctrine should not control this ruling. The Second Dismissal Recommendation is based upon the same facts alleged in the Complaint and considered in the First Dismissal Recommendation, and no new allegations have been introduced that might have supported Plaintiff's retaliation claim against these Defendants. See Major, 647 F.2d at 112. Likewise, neither Plaintiff nor the Magistrate Judge cited to any intervening authority to alter the legal conclusions contained in the First Dismissal Recommendation and adopted by this Court in its Order of dismissal. See id. Finally, this Court's prior ruling, as described in the First Dismissal

Recommendation, is not clearly erroneous. See id. Therefore, there was no basis for the Magistrate Judge to disregard the law of this case and attempt to alter a ruling already decided and entered by this Court. In light of these realities, this Court must reject the Magistrate Judge's attempt to disregard this Court's prior ruling and re-write this Court's Order of Dismissal in disregard of the law of the case doctrine and the propriety of this Court's earlier ruling. WHEREFORE, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken

10

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 11 of 12

Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request that this Court reject the Second Dismissal Recommendation to the extent it recommends partial denial of the Renewed Motion to Dismiss, enter and order dismissing all of the Plaintiff's claims against the Defendants in their entirety, and enter all such additional relief as this Court deems just and appropriate. Dated this 16th day of August, 2006. Respectfully submitted,

s/ Gillian Dale Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: (303) 628-3300 Fax: (303) 293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN

11

Case 1:01-cv-01315-REB-CBS

Document 97

Filed 08/16/2006

Page 12 of 12

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 16th day of August, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/ Lila Christy, Secretary Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] ATTORNEYS FOR DEFENDANTS

12