Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:01-cv-01197-LTB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 01-cv-01197-LTB-BNB PAUL F. RATHER, Plaintiff, v. JOHN SUTHERS, LEE HENDRIX, JOHN TALTON, MICHELLE NYCZ, LOU NORDINE, and STEVEN PONTIUS,7 Defendants. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter is before me on Plaintiff' Motion to File Amended/Supplemental s Prisoner Complaint (the " Motion" filed October 19, 2004. For the following reasons, I ), RECOMMEND that the Motion be DENIED. The plaintiff filed his initial complaint on June 28, 2001. Complaint Pursuant to 42 U.S.C. § 1983 . . . United Nations, filed June 28, 2001. He was ordered to amend his complaint to cure deficiencies. Order Directing Clerk to Commence Civil Action and Directing Plaintiffs to Cure Deficiencies, issued June 28, 2001. He filed his first amended complaint on August 17, 2001. Prisoner' Civil Rights Complaint, filed August 17, 2001. The defendants moved to dismiss the s first amended complaint. Motion to Dismiss or in the Alternative Motion for Summary Judgment, filed February 15, 2002. The first amended complaint was stricken for failure to comply with Fed.R.Civ.P. 8 and D.C.COLO.LCivR 10, and the defendants' motion to dismiss

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was denied without prejudice. Order, issued September 17, 2002. On April 7, 2003, the plaintiff filed a second amended complaint. Prisoner Complaint, filed April 7, 2003 (the " Second Amended Complaint" The plaintiff now seeks leave of court to file a third amended complaint. ). The proposed third amended complaint is brought pursuant to 42 U.S.C. § 1983 and seeks actual, nominal, and punitive damages and injunctive and declaratory relief. The Federal Rules of Civil Procedure provide that a party may amend a pleading by leave of court, and that leave shall be given freely when justice so requires. Fed.R.Civ.P. 15(a). Although the federal rules permit and require liberal construction and amendment of pleadings, the rules do not grant an unlimited right to amend. A motion to amend may be denied on the grounds of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). The additional claims proposed by the plaintiff are largely futile. For example, the plaintiff' proposed third amended complaint asserts a claim against the Colorado Department of s Corrections (the " DOC" The Eleventh Amendment bars all claims against the DOC. ). The Eleventh Amendment to the United States Constitution provides that " [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court has interpreted the Eleventh Amendment as barring federal courts from hearing suits against an unconsenting state brought by the state's own citizens as well as citizens of another state. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). The Eleventh Amendment also 2

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applies to state agencies which function as an arm of the state. Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir. 1971). A state may waive its Eleventh Amendment immunity, but only by a clear expression of its intent to waive. Brennan, 451 F.2d at 1290. Congress may also abrogate a state's Eleventh Amendment immunity, but must clearly express its intent to do so in the language of the abrogating statute. Thompson, 258 F.3d at 1246. Congress' enactment of 42 U.S.C. § 1983 did not abrogate Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979). The DOC is an agency of the State which has not waived its sovereign immunity. Drake v. City and County of Denver, 953 F. Supp. 1150, 1156 (D. Colo. 1997). The plaintiff' section s 1983 claim against the DOC, therefore, is barred by the Eleventh Amendment. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court recognized an exception to Eleventh Amendment immunity for officials acting within their official capacities. The Tenth Circuit has summarized the exception as follows: Ex parte Young recognizes an exception to Eleventh Amendment immunity under which a state officer may be enjoined from taking any steps towards the enforcement of an unconstitutional enactment, to the injury of complainant. The exception enables federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States. The Ex parte Young exception, however, is a narrow one. First, there must be an ongoing violation of federal law. Second, it applies only to prospective relief and may not be used to obtain a declaration that a state officer has violated a plaintiff's federal rights in the past. Finally, it has no application in suits against the States and their agencies, which are barred regardless of the relief sought.

Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487, 496 (10th Cir. 1998) (quotations and citations omitted) (emphasis added). Thus, the DOC does not fall under the Ex parte Young exception to Eleventh Amendment immunity, and the plaintiff' proposed claim s 3

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against the DOC is completely barred by the Eleventh Amendment immunity. The proposed third amended complaint seeks to add Anthony DeCesaro as a defendant. The proposed claim against DeCesaro is based solely on DeCesaro' denial of one of the s plaintiff' grievances. Proposed Third Amended Complaint, eighth consecutive page. Similarly, s the plaintiff seeks to add a claim against Joe Ortiz based on the following allegations: Defendant Ortiz was contacted by Plaintiff through a grievance (April 29, 2004), a letter (June 11, 2004); and a letter from the Governor' Office regarding Plaintiff being denied his religious s practices. No responses were provided, except forwarding the grievance to Defendant DeCesaro, and the letter to Defendant Parker, who simply denied the issues. Id. The allegations against DeCesaro and Ortiz are insufficient to establish that they personally participated in any alleged constitutional violation. McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983) (holding that an individual cannot be held liable in a section 1983 action unless he caused or participated in an alleged constitutional violation). The proposed third amended complaint seeks to reassert claims that already have been dismissed from this case. For example, Claims One, Two, and Three have been dismissed as to defendant Suthers based on the plaintiff' failure to allege Suthers' s personal participation. Recommendation of United States Magistrate Judge, issued September 21, 2004, pp. 8-9; Order, issued October 8, 2004. The plaintiff seeks to reassert Claims Two and Three against Suthers based on the same factual averments. Proposed Third Amended Complaint, eleventh and thirteenth consecutive page. The proposed third amended complaint also attempts to reassert the conspiracy claim against defendant Nycz previously dismissed for failure to state a claim upon which relief can be granted. Recommendation of United States Magistrate Judge, issued

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September 21, 2004, pp. 10-11; Order, issued October 8, 2004; Proposed Third Amended Complaint, seventeenth consecutive page. In addition, the proposed third amended complaint seeks actual damages, which already have been dismissed because they are prohibited by the Prison Litigation Reform Act (" PLRA" ). Recommendation of United States Magistrate Judge, issued September 21, 2004, pp. 4-5; Order, issued October 8, 2004; Proposed Third Amended Complaint, thirty-ninth consecutive page. The PLRA provides in pertinent part: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. 42 U.S.C. § 1997e(e). As with the Second Amended Complaint, the proposed third amended complaint does not allege physical injury. Finally, the plaintiff' proposed amendments come too late. The plaintiff filed his initial s complaint on June 28, 2001. The case is now more than four years old. Because of the plaintiff' s inability to submit a proper complaint prior to his submission of the Second Amended Complaint, the case was stagnant until April 2003. A motion to dismiss the Second Amended Complaint has been decided. Another is pending. Allowing the plaintiff to amend his complaint again would be the equivalent of starting over. I respectfully RECOMMEND that Plaintiff' Motion to File Amended/Supplemental s Prisoner Complaint be DENIED. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party' failure to serve and file specific, written objections waives s

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de novo review of the recommendation by the district judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party' objections to this recommendation must be both timely and specific to preserve an issue s for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Dated September 15, 2005. BY THE COURT: /s/ Boyd N. Boland United States Magistrate Judge

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