United States District Court, D. Colorado
WYATT T. HANDY, JR., Plaintiff,
TRACY DOUGLAS, TAMERA COOPER, GREG WILKINSON, CAPTAIN FRANK, Shift Commander/Duty Officer, BOBBY MAYES, SHERWYN PHILLIP, and TIFFANY DAVIS, Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Wiley Y. Daniel, Senior United States District Judge.
This matter is before the Court on two Recommendations issued by Magistrate Judge Hegarty: (1) the Recommendation of United States Magistrate Judge issued on June 19, 2015, regarding the CDOC Defendants’ (Sherwyn Phillip and Bobby Mayes) Motion to Dismiss Plaintiff’s Third Amended Complaint and (2) the Recommendation of United States Magistrate Judge issued on August 17, 2015, regarding Plaintiff’s failure to demonstrate service upon Defendant Tamera Cooper [“Cooper”]. For the reasons stated below, the Recommendations of Magistrate Judge Hegarty are affirmed and adopted in their entirety.
A. Recommendation of August 17, 2015
This Recommendation relates to Plaintiff’s failure to serve Defendant Cooper despite being given several extensions of time to do so. Magistrate Judge Hegarty ordered Plaintiff to show cause why it should not recommend dismissal of this case for its failure to serve Cooper and prosecute this case against her, and Plaintiff did not respond. He then issued his Recommendation on August 17, 2015, that Plaintiff’s claims against Cooper be dismissed without prejudice. Magistrate Judge Hegarty advised therein that written objections must be served within 14 days after service of the Recommendation, but no objections were filed.
No objections having been filed, I am vested with discretion to review the Recommendation “under any standard [I] deem appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”). Nonetheless, though not required to do so, I review the Recommendation to “satisfy [my]self that there is no clear error on the face of the record.” See Fed. R. Civ. P. 72(b) Advisory Committee Notes. I find that Magistrate Judge Hegarty applied the correct legal standard and properly found that Plaintiff failed to demonstrate cause for either mandatory or permissive extension of the service deadline. Therefore, I find that his recommendation to dismiss Plaintiff’s claims against Cooper without prejudice pursuant to Fed.R.Civ.P. 4(m) and 41(b) should be affirmed.
B. Recommendation of June 19, 2015
I next address the Recommendation issued on June 19, 2015. Magistrate Judge Hegarty recommends therein that the CDOC Defendants’ Motion to Dismiss be granted and the claims in which these Defendants are identified be dismissed. By way of background, the Recommendation notes that in April 2014, the Colorado Department of Corrections [“CDOC”] authorized Plaintiff’s move for substance abuse programming, and he was placed on a waiting list to be moved to the Arrowhead Correctional Center [“ACC”] for the Therapeutic Community [“TC”] program. On July 8, 2014, after Plaintiff had filed the present action against other Defendants including Tracy Douglas [“Douglas”], Douglas requested that Plaintiff be moved to the Cheyenne Mountain Reentry Center [“CMRC”]. Plaintiff was moved the following day. The CMRC does not operate the TC program or other treatment program for offenders with high drug abuse scores.
Plaintiff alleges that “Defendant Mayes recommended the move and Defendant Phillip authorized it. The move resulted in a “higher custody contrary to the scored custody of Plaintiff” and extended Plaintiff’s next scheduled review date from February 19, 2015 to July 8, 2015 when he could be “routine reclassed” to a lesser security facility. (Recommendation at 4.) Plaintiff contends that, had he been transferred to ACC on July 9, 2014, he would have had time to attend the TC program before his scheduled release date. Moreover, in contrast to ACC which is a minimum security facility, the CMRC is a medium security facility which provides fewer privileges and less freedom.
As noted in the Recommendation, the issues remaining after full briefing of the CDOC Defendants’ motion are whether they are entitled to qualified immunity from Plaintiff’s First and Fourteenth Amendment claims in their individual capacities and, if not, whether Plaintiff has stated a plausible claim for punitive damages. Magistrate Judge Hegarty finds that while Plaintiff pled the CDOC Defendant’s personal participation in the challenged action, Defendants are entitled to qualified immunity as to the claims against them. (Recommendation at 10-16.)
Plaintiff filed a Response and Objections to the Recommendation of United States Magistrate Judge on July 2, 2015. The CDOC Defendants filed a response to the objection on July 20, 2015, and Plaintiff filed a reply on August 13, 2015.
I first address Plaintiff’s First Amendment claim. Magistrate Judge Hegarty found that “[e]ven assuming the Plaintiff engaged in protected activity and that Mayes and Phillip participated in the challenged transfer to the CMRC, which ‘would chill a person of ordinary firmness from continuing to engage in that activity’, . . . the Plaintiff has failed to allege Mayes and Phillip were substantially motivated to transfer him as a response to his filing a grievance or this lawsuit. (Id. at 11.) Consequently, he found that Plaintiff failed to state a First Amendment claim entitling the CDOC Defendants to qualified immunity, and recommended that the CDOC Defendants’ motion to dismiss be granted as to this claim.
Plaintiff objects to this ruling, arguing that he has stated a chronology of events from which retaliation may plausibly be inferred. He asserts more specifically that Defendant Mayes and Phillip assigned him to a higher custody than his score required, in violation of CDOC policy. (Objection at 2.) Plaintiff argues that the fact the transfer was taken in violation of CDOC policy was not considered in the Recommendation. This fact does not, however, establish that Mayes and Phillip were substantially motivated to transfer him as a response to his filing a grievance or this lawsuit. Indeed, Plaintiff has not disputed or refuted Magistrate Judge Hegarty’s finding that nothing in the ...