Free Motion to Dismiss - District Court of Colorado - Colorado

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

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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' MOTION TO DISMISS PLAINTIFF'S COMPLAINT

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 (hereinafter 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. 12(b)(6), hereby submit this Motion to Dismiss Plaintiff's Complaint, as follows:1 1. This Court has previously dismissed all of the Plaintiff's claims against the

Defendants on their merits. [See Recommendation of United States Magistrate Judge,

Counsel for the Defendants are aware of this Court's practice standards for civil actions governing motions to dismiss. See REB Civ. Practice Standard V.H.2. However, the nature of the Defendants' argument in the instant motion--that this Court has already ruled on the merits of Plaintiffs' claims--does not lend itself to following this Court's practice standard. As a result, counsel for the Defendants has not done so in the instant motion.

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3/3/03, Doc. 30; Order, 3/25/03, Doc. 32; Judgment, 3/27/03, Doc. 33]. 2 Plaintiff appealed this Court's dismissal to the United States Court of Appeals for the Tenth Circuit. [Notice of Appeal, 4/24/03, Doc. 34]. The Tenth Circuit remanded the matter to this Court for further proceedings to determine whether this Court possessed jurisdiction over the Plaintiff's claims pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), but did not disturb this Court's conclusion the Plaintiff's claims failed on their merits. [ ee S

Order and Judgment, 1/26/05, Doc. 56]. Following remand, the parties briefed the jurisdictional issue. On January 3, 2006, United States Magistrate Judge Craig B.

Shaffer issued a Recommendation of United States Magistrate Judge concluding that this Court possessed jurisdiction over the Plaintiff's claims under Heck. [See Doc. 71]. This Court accepted and adopted the Recommendation in an Order dated February 8, 2006. [See Doc. 75]. 2. Now, Defendants respectfully renew their arguments concerning the Pursuant to Fed. R. Civ. P. 10(c), Defendants

merits of the Plaintiff's claims.

incorporate herein by reference all of their arguments and authorities previously presented to this Court on the merits of the Plaintiff's claims. [See Defendants' Motion to Dismiss, 11/19/01, Doc. 19; Defendants' Reply Brief, 1/3/02, Doc. 27]. This Court's prior determination to grant the Defendants' Motion to Dismiss on the merits of the Plaintiff's claims is the law of the case. See, e.g., Kennedy v. Lubar, 273 F.3d 1293, 1298-1300 (10th Cir. 2001); Pittsburg & Midway Coal Min. Co., 52 F.3d 1531, 1536 n.

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

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4 (10th Cir. 1995). Nothing about the procedural history of this matter since this Court's prior determination demonstrates any basis for this Court to reconsider its earlier dismissal. A review of the procedural history of this matter in its entirety demonstrates unequivocally that this Court has already ruled that the Plaintiff's claims fail on their merits in light of the arguments raised by the Defendants. This Court must reaffirm its earlier dismissal of the Plaintiff's claims. 3. On July 11, 2001, Plaintiff Leonard Baldauf, an inmate incarcerated by the

Colorado Department of Corrections ("DOC"), filed his Complaint alleging claims against the Defendants pursuant to 42 U.S.C. §1983 for violations of his constitutional rights. [See Doc. 3]. On November 19, 2001, all of the Defendants, except for Chad Nelson who was never served with the Plaintiff's Complaint, filed a Motion to Dismiss. [See Doc. 19]. On March 3, 2003, United States Magistrate Judge Craig B. Shaffer issued a Recommendation of United States Magistrate Judge which recommended denying Plaintiff's Motion to Amend Complaint and granting the Defendants' Motion to Dismiss. [See Doc. 30]. The Recommendation made the following determinations on the merits of the Plaintiff's claims: (1) the physical injury requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e) barred the Plaintiff's claim for compensatory damages, [Recommendation, at 4, Doc. 30]; (2) Plaintiff stated no cognizable claim for punitive damages, [Recommendation, at 5, Doc. 30]; (3) Plaintiff's First Amendment retaliation claim failed on its merits, [Recommendation, at 5-6, Doc. 30]; (4) Plaintiff's official capacity claims were barred by the Eleventh Amendment, [Recommendation, at 7-9, Doc. 30]; (5) Defendants Neet, Masterson, Tappe, Martinez, Roberts, Zalman,

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Harlen and Claar lacked any personal participation or any supervisory liability for any alleged retaliation, [Recommendation, at 9-10, Doc. 30]; (6) Plaintiff stated no cognizable conspiracy claim, [Recommendation, at 10-12, Doc . 30]; and (7) the Defendants were entitled to qualified immunity from the Plaintiff's claims because the Plaintiff failed to sufficiently allege any violation of any constitutional right, [Recommendation, at 12, Doc. 30]. Finally, the Magistrate Judge recommended

denying Plaintiff's Motion to Amend on the basis that there was no material difference between the Complaint and the proposed Amended Complaint and the proposed Amended Complaint failed to cure the legal defects identified in the Recommendation. [See Recommendation, at 12-13, Doc. 30]. 4. Plaintiff filed an Objection to the Magistrate Judge's Recommendation on

March 17, 2003. [See Doc. 31]. On March 25, 2003, this Court accepted and adopted the Magistrate Judge's Recommendation and denied the Plaintiff's Motion to Amend Complaint and granted the Defendants' Motion to Dismiss. [See Doc. 32]. Judgment entered in favor of the Defendants on March 27, 2003. [See Doc. 33]. Plaintiff filed a Notice of Appeal on April 24, 2003. [See Doc. 34]. After briefing and oral argument, on January 26, 2005, the United States Court of Appeals for the Tenth Circuit issued an Order and Judgment on the Plaintiff's appeal. The Tenth Circuit's Order and Judgment, in pertinent part, states as fo llows: As the parties agree, the threshold issue before us is whether the Heck doctrine, see Heck v. Humphrey, 512 U.S. 477 (1994), bars jurisdiction in this case. Whether Heck applies depends on whether deprivation of good-time or earned-time credits necessarily affects the duration of a Colorado prisoner's confinement. The record is inadequate to resolve this matter, and both counsel at oral argument sought remand to the district 4

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court for development of the record. Accordingly, we REMAND to the district court for further proceedings concerning whether, under the Heck doctrine, the district court has jurisdiction to hear Mr. Baldauf's claims. If the court determines that it has jurisdiction, it should decide the merits, conducting any further proceedings that it deems necessary. [See Order and Judgment, at 2]. Nothing contained in the Tenth Circuit's Order and Judgment addresses in any respect this Court's dismissal of the Plaintiff's claims on their merits. [See Order and Judgment]. 5. On remand to this Court by the Tenth Circuit, a status conference was The Magistrate Judge

held before Magistrate Judge Shaffer on August 10, 2005.

directed the parties to submit jurisdictional briefs on the Heck issue raised by the Tenth Circuit's remand. Defendants filed their Jurisdictional Brief on September 12, 2005, [see Doc.65], and Plaintiff filed his Brief on Jurisdiction on September 14, 2005. [See Doc.68]. Each party filed a response to the opposing party's jurisdictional brief. [See Docs. 69, 70]. On January 3, 2006, Magistrate Judge Shaffer issued his

Recommendation of United States Magistrate Judge recommending this Court determine Plaintiff's claims are not barred by the Heck doctrine and this Court therefore has subject matter jurisdiction to review such claims. [See Doc. 71]. Both parties filed Objections to the Magistrate Judge's Recommendation. [See Docs. 72 and 73]. This Court accepted and adopted the Magistrate Judge's Recommendation in its Order dated February 8, 2006. [See Doc. 75]. 6. The above procedural history demonstrates the propriety of this Court

again dismissing the Plaintiff's claims on their merits pursuant to the rationale of the March 3, 2003, Recommendation of United States Magistrate Judge, and the March 25,

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2003, Order of this Court. [See Doc. 30; Doc. 32]. Nothing has changed since that time. Plaintiff's Complaint and Amended Complaint still fail to state any cognizable claim on their merits. Nothing about the subsequent procedural history of this matter either before the Tenth Circuit or this Court on the Heck jurisdictional issue impacted this Court's previous dismissal of the Plaintiff's claims on their merits. No basis exists for this Court not to apply the same legal analysis and reach the same conclusion this Court did previously now. 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 Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court dismiss the Plaintiff's claims against them, and for all other and further relief as this Court deems just and appropriate. Dated this 17th day of February, 2006. Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 17th day of February, 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 (via U.S. Mail) Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 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
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