United States District Court, D. Colorado
For Jose Medina Escobar, Plaintiff: Brett Robert Lilly, Brett R. Lilly, Attorney at Law, Wheat Ridge, CO.
For Linda Maifeld, Major, in her official capacity at the Colorado Department of Corrections, Daniel Barbero, Captain, in his official capacity at the Colorado Department of Corrections, Rick Raemisch, in his official capacity as Executive Director of the Colorado Department of Corrections, Defendants: Christopher Wayne Alber, Colorado Attorney General's Office, Denver, CO.
RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS
Craig B. Shaffer, United States Magistrate Judge.
This matter comes before the court on Defendants' Motion to Dismiss (Doc. #98), filed on March 14, 2014. This motion was referred to the Magistrate Judge pursuant to the Order of Reference dated August 22, 2012 (Doc. #18). This court has carefully considered the motion and related briefing, the entire case file, the comments offered by the parties during the Preliminary Scheduling Conferences, and numerous Status Conferences and Motion Hearings, and applicable case law. For the following reasons, I recommend that the Motion to Dismiss be granted.
Plaintiff Jose Medina Escobar filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming Defendants violated his right to liberty, freedom of expression, and due process under the First, Fifth, and Fourteenth Amendments, and his right to be free from cruel and unusual punishment under the Eighth Amendment. Plaintiff seeks declaratory relief, injunctive relief, and attorney fees and costs pursuant to 42 U.S.C. § 1988.
Plaintiff entered custody of the Colorado Department of Corrections (" CDOC") in 1987. (Doc. #95 at ¶ 1). He was moved to administrative segregation on July 31, 1998, where he remained until his release from CDOC custody on December 24, 2014. (Id. at ¶ ¶ 2, 24). On June 25, 2012, Plaintiff filed a Complaint naming twenty-four defendants and asserting claims for violation of his First, Fifth, and Eighth Amendment rights. (Doc. #1). The same day, Plaintiff filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. #3). Magistrate Judge Boland issued an Order on June 26, 2012, directing Plaintiff to file a certified copy of his trust fund statement for the six-month period preceding the filing of the Complaint. ( See Doc. #5). Plaintiff responded to the Order on June 27, 2012 (Doc. #6), and Judge Boland granted Plaintiff's § 1915 motion by Order dated June 29, 2012. (Doc. #7).
On August 27, 2012, Defendants Maifeld and Barbero waived service, as did Buffum, Cossabone, Hodge, Jaquez, McPherson, Murphy, Neff, Nickolett, Olivett, Spurlock, Thorstad, Tidemann, Travis, Wagner, and Will. (Doc. #23). These individuals filed an Answer to the Complaint on November 2, 2012 (Doc. #42). Officer Vigil waived service on January 7, 2013 (Doc. #50), and filed his Answer on March 8, 2013. (Doc. #56).
This court held a Preliminary Scheduling Conference on December 11, 2012, at which the undersigned designated a date by which discovery would conclude and dispositive motions would be due. (Doc. #46).
On May 10, 2013, Defendants Maifeld and Barbero, along with Buffum, Cossabone, Hodge, Jaquez, McPherson, Murphy, Neff, Nickolett, Olivett, Spurlock, Thorstad, Tidemann, Travis, Wagner, Will, and Vigil, filed a Motion to Dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and a Motion to Stay Proceedings. (Doc. #60 and #61). Plaintiff filed a Motion for Leave to Amend on May 13, 2013. (Doc. #63). On June 13, 2013, Plaintiff filed a " Motion to Impose Sanctions and Motion for Leave to Submit Plaintiff's Affidavit in Support of his Inhumane Conditions of Confinement that Gave Rise to the Action Herein." (Doc. #69).
This court held a Motion Hearing on June 25, 2013, at which the undersigned recommended that the Motion to Dismiss be denied, adopted in its entirety the Recommendation submitted by Judge Mix on June 24, 2013 in civil action No. 13-cv-00489-CMA-KLM, and recommended that District Judge Arguello adopt the filing restrictions proposed by Judge Mix. (Doc. #71). This court also denied Plaintiff's Motion for Leave to Amend and Motion for Sanctions and Leave to Submit Affidavits. (Id.) At this time, Plaintiff orally requested that the court appoint him counsel. (Id.) The undersigned granted Plaintiff's request for court-appointed counsel on July 8, 2013 (Doc. #73), and Mr. Brett R. Lilly was appointed as Plaintiff's counsel on July 26, 2013. (Doc. #75).
This court held a second Preliminary Scheduling Conference on July 26, 2013, at which the undersigned ordered a temporary stay of discovery and briefing until September 5, 2013, and noted that the Motion to Stay Proceedings was under advisement. (Doc. #76). This court held a Status Conference on September 5, 2013, at which the undersigned granted Plaintiff's oral motion to file an Amended Complaint and granted Defense Counsel's oral motion to withdraw without prejudice the Motion to Dismiss. (Doc. #78). Additionally, the undersigned granted the Motion to Stay discovery until October 4, 2013. (Id.)
Plaintiff filed his Amended Complaint on October 3, 2013, in which he added CDOC Executive Director Rick Raemisch as a Defendant and removed Officers Jaquez, Cameron, Kelly, Miller, Solis, and Nurse Spinozi. (Doc. #80). The Amended Complaint sought damages and attorney fees as well as declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for violations of Plaintiff's First, Fifth, Eighth, and Fourteenth Amendment rights. (Id.) Defendant Raemisch waived service on October 15, 2013. (Doc. #82).
The present Defendants along with Jaquez, Buffum, Cossabone, Hodge, Robin, Maifeld, McPherson, Murphy, Neff, Nickolett, Olivette, Spurlock, Thorstad, Tidemann, Travis, Vigil, Wagner, and Will filed a Motion to Dismiss on December 16, 2013. (Doc. #85). ...