Free Response to Objection to Report and Recommendation - District Court of Colorado - Colorado

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

Document 100

Filed 08/28/2006

Page 1 of 6

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' RESPONSE TO PLAINTIFF'S OBJECTION TO 8/1/06 RECOMMENDATION

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 R ichard 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 response to Plaintiff's Objection to 8/1/2006 Recommendation (the "Plaintiff's Objection"), as follows: 1. The extended procedural history of this matter is explained in Defendants'

Objection to Order and Recommendation of United States Magistrate Judge (the "Defendants' Objection"), [Doc.97, at p.1-7], and is therefore not repeated here. 2. Plaintiff's Objection objects to the Order and Recommendation of United

States Magistrate Judge of August 1, 2006 (the "Second Dismissal Recommendation"), [Doc.92], to the extent it recommends dismissal of Plaintiff's claims for compensatory

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

Document 100

Filed 08/28/2006

Page 2 of 6

and punitive damages, of the conspiracy claim, and of the retaliation claim as brought against Defendants Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Romero, Harlan, and Claar. In support of these claims, Plaintiff's Objection does nothing more than repeat the arguments Plaintiff previously made in response to Defendants' original Motion to Dismiss Plaintiff's Complaint, [see Doc.25], and in his objection to the Recommendation of United States Magistrate Judge on the original Motion to Dismiss. [See Doc.31]. Because each of these arguments has already been considered and rejected by this Court, and because Plaintiff offers no reason why this Court should disregard its own prior ruling in contradiction to the law of the case doctrine,1 Plaintiff's Objection must be rejected in its entirety. 3. Plaintiff also argues repeatedly that in the event his Complaint is found to

be deficient in some regard, the appropriate remedy would be to permit him to amend the Complaint rather than dismissing it. [See Plaintiff's Objection, at p.1, 3, 4, 5, 6, 7]. Plaintiff complains that a pro se prisoner should not be expected to state legitimate claims for relief in an initial complaint, and claims he was not provided with any opportunity to amend after the deficiencies in his Complaint were identified. [See id. at p.4]. Given the liberal review accorded to all pro se complaints, it is not unreasonable to expect a complaint to state a viable claim for relief or be subject to dismissal. Regardless, Plaintiff incorrectly asserts he had no opportunity to correct the deficiencies in his Complaint.

The law of the case doctrine, and the reasons why this case must be dismissed in its entirety as opposed to just partially as recommended by the Magistrate Judge, are also discussed in detail in Defendants' Objection. [See Doc.97]. 2

1

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

Document 100

Filed 08/28/2006

Page 3 of 6

4.

To the contrary, following the submission of Defendants' original Motion to

Dismiss, which explicitly pointed out the deficiencies in Plaintiff's Complaint, Plaintiff filed a Motion to Amend along with a proposed Amended Complaint which purported to address these deficiencies, [see Doc.24], and which Plaintiff continues to rely on as curing all defects identified by the Magistrate Judge. [See Plaintiff's Objection, at p.3]. The March 3, 2003, Recommendation of United States Magistrate Judge (the "First Dismissal Recommendation"), ruling on the original Motion to Dismiss, considered the proposed Amended Complaint and expressly determined there was no material difference between the original Complaint and the proposed Amended Complaint, and therefore recommended denial of Plaintiff's Motion to Amend. [See Doc.30, at p.13]. This Court adopted the First Dismissal Recommendation in its entirety, and as a result this Court has already determined amendment of the Complaint by the Plaintiff would be futile. Plaintiff offers no reason why this Court should reconsider this decision, and

pursuant to the law of the case doctrine this ruling controls Plaintiff's belated efforts to again amend his Complaint. 5. The only new argument contained in the Plaintiffs' Objection, not

previously addressed by this Court, is his assertion that the Tenth Circuit overruled this Court's prior rulings on the original Motion to Dismiss. [See Plaintiff's Objection, at p.5]. In reality, the Tenth Circuit did not overrule any decision by this Court, jurisdictional or otherwise, but instead determined only that the record was inadequate to resolve the jurisdictional issue, and remanded for further proceedings on that threshold issue. [See Order and Judgment, 1/26/05, Doc. 56]. Had the Tenth Circuit intended to overturn this

3

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

Document 100

Filed 08/28/2006

Page 4 of 6

Court's prior ruling on the merits of Plaintiff's claims, it would have said so, and Plaintiff's efforts to create a non-existent ruling by implication must be rejected. No basis whatsoever exists to construe the Tenth Circuit's decision as reviewing this Court's dismissal of the Plaintiff's claims on their merits. 6. Each of the claims recommended for dismissal, to which Plaintiff now

objects, have previously been rejected by this Court, and Plaintiff offers no persuasive reason for this Court to disregard its own prior ruling, in clear violation of the law of the case doctrine, or to permit him to file an another amended complaint, also explicitly rejected by this Court. Plaintiff's Objection must be overruled in its entirety, and the Second Dismissal Recommendation should be accepted to the extent it recommends dismissal of Plaintiff's claims for compensatory and punitive damages, of the conspiracy claim, and of the retaliation claim as brought against Defendants Neet, Masterson, Tappe, Martinez, Roberts, Zalman, Romero, Harlan, and Claar. 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 that this Court overrule Plaintiff's Objection, accept the Second Dismissal to the extent it recommends partial dismissal of Plaintiff's Complaint, reject the Second Dismissal Recommendation to the extent it recommends partial denial of the renewed Motion to Dismiss, enter an order dismissing all of the Plaintiff's claims

4

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

Document 100

Filed 08/28/2006

Page 5 of 6

against the Defendants in their entirety, and enter all such additional relief as this Court deems just and appropriate. Dated this 28th day of August, 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 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 ARCHULETA, NARD CLAAR, AND RICHARD HARLAN

5

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

Document 100

Filed 08/28/2006

Page 6 of 6

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 28th 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/ Loree Trout, Secretary Andrew D. Ringel, Esq. 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 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
H:\Users\RINGELA\colorado\Baldauf\gnplead\response to objection.doc

6