United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
RAYMOND P. MOORE, District Judge.
This matter is before the Court on U.S. Magistrate Judge Kristen L. Mix's Recommendation (the "Recommendation") (ECF No. 89) that this Court grant the respective motions to dismiss filed by the Defendants in this case: Defendant Daniel Shepherd's Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 52) ("Shepherd's Motion"); Defendants Patricia Rangel, Darren Foster, Federal Bureau of Prison ("BOP") and Mr. Shepherd's Motion to Dismiss First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 55) ("BOP's Motion"); and Mr. Foster's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 56) ("Foster's Motion").
After the Recommendation issued, Plaintiff Robert Dale Shepard ("Plaintiff") did not file a response within the allotted time to object, but was granted an extension and filed an objection to the Recommendation on May 13, 2013 (the "Objection") (ECF No. 96). Defendants filed three distinct responses to the Objection (ECF Nos. 98, 99, 100). For the reasons stated below, the Objections to the Recommendation are OVERRULED, the Magistrate Judge's Recommendation is ADOPTED, and Plaintiff's amended complaint is DISMISSED in part with prejudice and in part without prejudice.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the Magistrate Judge's recommendations and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
II. FACTS AND PROCEDURAL HISTORY
The Court adopts and incorporates the factual and procedural history included within the Recommendation as if set forth herein. To the extent any additional facts are necessary for the Court's resolution of this matter or for context, such facts are below.
Plaintiff, a prisoner in the custody of the BOP at the United States Penitentiary, Administrative Maximum ("ADX"), filed a First Amended Complaint ("FAC") on November 8, 2012. (ECF No. 46.) Plaintiff alleges that in June of 2010, he lodged a complaint about his cell being ransacked in retaliation for asking to be escorted to the law library. ( Id. ¶ 10.) Then, he alleges he was told that he was being transferred to the Protective Custody range due to having filed a grievance against another inmate. He refused to go, saying he would be subject to ostracization if he went, and that the attempted move and his subsequent move to the Special Houston Unit were retaliatory acts because he filed grievances. ( Id. ¶¶ 35-38.) Plaintiff alleges a range of other retaliatory acts including subsequent cell searches, moves to special units, and abuse of the grievance process.
In the FAC, he asserted four causes of action against the various Defendants. Plaintiff's first cause of action is a claim pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (hereinafter Bivens ), alleging retaliatory action in violation of his First Amendment rights. Plaintiff's second cause of action alleges a violation of the Fifth Amendment guarantee of procedural due process. Plaintiff's third cause of action alleges that the BOP acted in violation of the rule that an agency must obey its own regulations as set forth Accardi v. Shaughnessy, 347 U.S. 260 (1954) (hereinafter Accardi ). Plaintiff's fourth cause of action alleges that the BOP's denial of Plaintiff's underlying grievance was an abuse of discretion and not in compliance with the law.
Judge Mix spent 44 pages analyzing Plaintiff's claims thoroughly in the Recommendation and ultimately concluded that each of Plaintiff's four causes of action should be dismissed. She reasoned that the doctrine of sovereign immunity bars Plaintiff's official capacity claims because there is no Bivens remedy against a public official in his official capacity. She further reasoned that the declaratory judgment Plaintiff asked for is unavailable because Plaintiff seeks a retrospective sanction, and injunctive relief is inappropriate because Plaintiff failed to allege that he is in danger of being harmed either presently or in the future. Judge Mix also reasoned that there are alternative remedies available to Plaintiff and special factors weigh against the creation of a new Bivens remedy here. Judge Mix recommended that Plaintiff's third cause of action be dismissed without prejudice, as well as Plaintiff's other claims for injunctive and declaratory relief. She recommends that his claims for monetary damages be dismissed with prejudice.
This Court has reviewed the Recommendation, the Objection and conducted a de novo review of the docket, and concludes that Magistrate Judge Mix's analysis of the issues was thorough and her conclusions were correct. The Objection contains 17 enumerated paragraphs setting forth Plaintiff's purported factual and legal disputes with Judge Mix's analysis, and the Court will address each in turn.
Plaintiff's first objection argues that Judge Mix was incorrect in her assertion that Plaintiff may not bring this action under diversity jurisdiction. Plaintiff argues that this Court "should, and must, exercise [its] diversity jurisdiction." (ECF No. 96 at 4.) But Plaintiff misunderstands Judge Mix's point regarding diversity jurisdiction, which was simply that "the existence of diversity jurisdiction in this case does not alter the Court's analysis of the merits of this issue, as jurisdiction in a Bivens action is based on... federal-question jurisdiction." (ECF No. 89 at 3.) Plaintiff brought his claim under the United States Constitution rather than under a cause of action based in state law. ( See ECF No. 46, First Amended Complaint, at 4 ...