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Gandy v. Raemisch

United States District Court, D. Colorado

March 31, 2014

ROBERT D. GANDY, Plaintiff,
v.
RICK RAEMISCH, Director, Colorado Department of Corrections; JERRY BARBER, Teacher II, Arkansas Valley Correctional Facility; RICK MARTINEZ, Programs Manager, Arkansas Valley Correctional Facility; and STEVE HARTLEY, Warden, Arkansas Valley Correctional Facility, Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

MARCIA S. KRIEGER, Chief District Judge.

THIS MATTER comes before the Court on the Magistrate Judge's Recommendation (#56) to grant the Motion to Dismiss and/or for Summary Judgment (#25) filed by Mr. Hartley and Mr. Martinez. Plaintiff Robert Gandy filed timely Objections (#60).

Also before the Court is the Magistrate Judge's Recommendation (#68) to grant in part the Motion to Dismiss (#63) filed by Mr. Raemisch. Mr. Raemisch filed timely Objections (#70).

I. ISSUES PRESENTED

Mr. Gandy, an inmate in the custody of the Colorado Department of Corrections ("CDOC"), brings this action pursuant to 42 U.S.C. ยง 1983. Mr. Gandy challenges the constitutionality of a CDOC regulation that allows inmates to make privileged phone calls only to licensed attorneys. He also asserts that three prison officials retaliated against him for filing a grievance about a prison employee's conduct.

II. FACTS

Mr. Gandy's pro se [1] Amended Complaint (#9) alleges the following facts.

Mr. Gandy is a Canadian National incarcerated by the CDOC. He frequently communicates with the Canadian Consulate ("Consulate") via both mail and telephone. The CDOC treats mail between Mr. Gandy and the Consulate as "legal mail, " such that "outgoing mail is not read and incoming mail from the Consulate is opened in [Mr. Gandy's] presence in the same manner as mail from an attorney or the courts." Mr. Gandy requested that the CDOC also treat his telephone calls to the Consulate as "privileged" and "unmonitored." However, "[s]ince 1996, Defendants have claimed that only those with an attorney registration numbers can be deemed as privileged telephonic communications." Mr. Gandy asserts that he "often request[s] that the Consulate address many prison issues where [a] policy or [an] individual staff member is violating [his] Constitutional rights." He also alleges that "[a]t certain times, [he] feels the need for expediency and therefore would benefit from using the telephone to communicate with his governmental representative at the consulate."

Mr. Gandy's remaining three claims relate to a grievance Mr. Gandy filed against Mr. Barber, a teacher at the Arkansas Valley Correction Facility ("AVCF"). On May 16, 2012, Mr. Gandy was having a conversation with his work supervisor, another inmate, and Mr. Barber. At some point during the conversation, Mr. Barber "started yelling at [Mr. Gandy], waiving his finger in [his] face, making wild accusations and threats, and stating that he, Mr. Barber, would have [Mr. Gandy] removed from his work assignment and the facility."

Mr. Gandy filed a grievance related to Mr. Barber's conduct on May 21, 2012. Mr. Gandy met with Mr. Barber and Mr. Martinez - Mr. Barber's direct supervisor - on June 27, 2012 to discuss his grievance. Mr. Gandy alleges that Mr. Barber and Mr. Martinez "did not wish to address the claim that [Mr.] Barber threatened to have [Mr.] Gandy removed from the apprenticeship program and the facility."

On July 9, 2012, Mr. Gandy was transferred from the AVCF, which Mr. Gandy believes was done in retaliation for the grievance he filed against Mr. Barber.

III. PROCEDURAL BACKGROUND

The Amended Complaint asserts four claims for relief. Claim One alleges that CDOC's refusal to permit unmonitored phone calls between Mr. Gandy and the Consulate violates the Vienna Convention on Consular Relations and Optional Protocol on Disputes ("Vienna Convention").[2] The remaining three claims allege that Mr. Barber, Mr. Martinez, and Mr. Hartley, respectively, violated Mr. Gandy's First Amendment right to free speech and right to petition the government by transferring him from AVCF in retaliation for filing a grievance against Mr. Barber.

Mr. Hartley and Mr. Martinez[3] filed a "Motion to Dismiss and/or for Summary Judgment"[4] arguing that: (1) they are immune from suit to the extent they are sued in their official capacities; (2) Mr. Gandy's first claim is barred by the statute of limitations because he knew of, and was affected by, the CDOC's policy as early as 1996; (3) the Vienna Convention claim fails to state a cognizable claim; (4) Mr. Gandy fails to allege facts showing that Mr. Hartley and Mr. Martinez personally participated in any acts giving rise to the Vienna Convention claim;[5] (5) Mr. Hartley and Mr. Martinez are entitled to qualified immunity with regard to any colorable Vienna Convention claim, as the contours of their liability for such a deprivation was not clearly established; (6) Mr. Gandy did not properly exhaust his retaliation claim against Mr. Hartley and Mr. Martinez; (7) Mr. Gandy fails to allege Mr. Hartley's personal participation in the retaliation claim against him; and (8) Mr. Gandy cannot recover compensatory damages because he does not allege a physical injury.

Separately, Mr. Raemisch filed a Motion to Dismiss the claims against him. He adopted the arguments raised by Mr. Martinez and Mr. Hartley, and raised the additional argument that Mr. Gandy has no private right of action to redress an alleged violation of the Vienna Convention.

The Court referred both motions to dismiss to the Magistrate Judge for a recommendation. On August 21, 2013, the Magistrate Judge recommended that Mr. Hartley and Mr. Martinez's motion be granted and that all claims against them be dismissed. Specifically, the Magistrate Judge concluded that: (1) defendants are immune from suit to the extent they are sued in their official capacities; (2) Mr. Gandy's first claim is barred by the statute of limitations because the claim accrued in 1996; and (3) Mr. Gandy failed to exhaust his administrative remedies for his Claim Three against Mr. Martinez and Claim Four against Mr. Hartley because he did not comply with the CDOC's procedural requirements.

On October 19, 2013, the Magistrate Judge recommended that Mr. Raemisch's motion be granted based on the conclusion in the prior Recommendation that Mr. Gandy's claim invoking the Vienna Convention be dismissed as untimely. Citing "reasons of judicial economy, " the Magistrate Judge refused to consider Mr. Raemisch's alternative argument that Mr. Gandy lacked a private right of action under the Vienna Convention.

Mr. Raemisch filed a timely Objection to the Recommendation on Mr. Hartley and Mr. Martinez's motion, objecting to the Magistrate Judge's conclusion that his Vienna Convention claim was untimely, and the conclusion that he failed to exhaust the administrative grievance procedure applicable to his retaliation claim. Mr. Raemisch filed timely Objections to the Recommendation with regard to his motion, arguing that the Court ...


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