United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
DEPUTY SHERIFF CLEMENTS, in his individual and official capacity, DEPUTY SHERIFF CAPTAIN ROMERO, in his individual and official capacity, and DEPUTY SHERIFF SERGEANT JORDAN, in his individual and official capacity, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on “Plaintiff Motion to
Excuse Late Filing of Motion in Opposition to Recommidation
Made by Magistrate Judge” [Docket No. 208] and
“Plaintiff Motion to Reconsider Ruling and Accept his
Motion in Opposition as Timely Filed” [Docket No. 210].
November 14, 2016, the magistrate judge recommended that the
Court deny plaintiff's motion for partial summary
judgment. Docket No. 190. Plaintiff's objection to the
magistrate judge's recommendation was originally due by
December 1, 2016. Id. at 8-9. On December 5, 2016,
the Court received plaintiff's first request for an
extension of time to file an objection to the magistrate
judge's recommendation. Docket No. 191. The Court granted
plaintiff's request and gave plaintiff until December 23,
2016 to file his objection. Docket No. 192. On December 22,
2016, the Court received plaintiff's second request for
an extension of time, Docket No. 199, and gave plaintiff
until January 13, 2017 to file his objection. Docket No. 200.
Plaintiff did not file an objection by January 13, 2017. On
January 17, 2017, the Court entered an Order accepting
Magistrate Judge Mix's recommendation and denying
plaintiff's motion for partial summary judgment. Docket
No. 205. On January 20, 2017, the Court received
plaintiff's objection to the magistrate judge's
recommendation, Docket No. 207, and plaintiff's motion to
excuse the late filing. Docket No. 208. The Court gave
defendants until February 7, 2017 to file a response to
plaintiff's motion to excuse late filing. Docket No. 209.
On February 3, 2017, plaintiff filed a motion to reconsider
the Court's ruling and accept his motion in opposition as
timely filed. Docket No. 210. On February 6, 2017,
defendants filed their response in opposition to
plaintiff's motions. Docket No. 211. Because plaintiff is
proceeding pro se, the Court construes his filings
liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
to plaintiff, on December 28, 2016, he was transferred from
“Colorado State Penitentiary” to St. Thomas Moore
Hospital in Cañon City, Colorado for hernia surgery.
Docket No. 208 at 1, ¶¶ 2-3. The Bureau of Prisons
then transferred plaintiff to the infirmary of the Colorado
Territorial Correctional Facility, where he remained until
January 10, 2017. Id. at 1-2, ¶¶ 4-5. From
December 28, 2016 to January 11, 2017, plaintiff did not have
access to his legal materials. Id. at 2, ¶ 6.
Plaintiff completed his objection by the January 13, 2017
deadline, but a female officer refused to mail it.
Id., ¶ 10. Plaintiff was only able to mail his
objection on January 16, 2017, a federal holiday.
Id., ¶ 12. Defendants oppose plaintiff's
motions because they believe he could have completed his
objection prior to surgery and because he fails to adequately
explain why his objection was not mailed on January 13,
2017. Docket No. 211 at 4-5.
requests that the Court consider his objection as timely.
Docket No. 210 at 1. “When an act may or must be done
within a specified time, the court may, for good cause,
extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable
neglect.” Fed.R.Civ.P. 6(b)(1)(B). “To determine
whether the neglect is ‘excusable, ' the court must
take account of all relevant circumstances surrounding the
party's omission.” Stringfellow v. Brown,
1997 WL 8856 at *1 (10th Cir. Jan. 10, 1997) (unpublished).
“Control over the circumstances of the delay is
‘the most important single . . . factor . . . in
determining whether neglect is excusable.'”
Id. (quoting City of Chanute v. Williams Nat.
Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)).
second request for an extension of time, plaintiff stated
that “on or about December 19, 2016, ” he would
have his operation. Docket No. 199 at 2, ¶ 5. He also
stated that his objection was “87% Finished.”
Id., ¶ 7. Plaintiff, however, was not
transferred to another facility to have his operation until
December 28, 2016. Docket No. 208 at 1, ¶ 2. Plaintiff
provides no explanation why he was unable to complete his
objection in the nine-day window preceding his transfer,
especially given that plaintiff was able to complete his
motion in just three days after receiving his legal
materials. Id. at 2, ¶¶ 8-9. Based on the
information provided by plaintiff, he had ample time to
complete his objection, but, for reasons that are unclear to
the Court, he delayed working on the objection until after
his surgery was complete. These facts do not present
excusable neglect on the part of plaintiff and the Court will
deny his motion to consider his objection as timely.
the Court were to consider the merits of plaintiff's
objection, it contains no reference to any specific finding
of fact or determination of law of the magistrate judge that
he identifies as erroneous. See generally Docket No.
207. “[A] party's objections to the magistrate
judge's report and recommendation must be both timely and
specific to preserve an issue for de novo review by the
district court or for appellate review.” United
States v. 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d
1057, 1060 (10th Cir. 1996). Plaintiff uses his objection to
reiterate his legal argument that defendants' failure to
comply with internal guidelines resulted in the deprivation
of his liberty. Docket No. 207 at 3-8. The magistrate judge
recommended that the Court deny summary judgment not because
defendants complied with the strictures of due process, but
because the applicability of the due process framework turned
on “the reasons why [plaintiff] was transferred to
segregation.” Docket No. 190 at 6. Plaintiff neither
disputes this framing of the legal dispute, nor provides
factual evidence to demonstrate that there is no genuine
issue of material fact “regarding whether Plaintiff was
transferred to and kept in segregation without purpose and
for purely punitive reasons.” Id. Plaintiff
does submit three affidavits from his fellow inmates, Docket
No. 207 at 13-17, which discuss plaintiff's hygiene,
personality, and interactions with correctional officers.
See Id. However, while the affidavits support
plaintiff's position, they do not provide
incontrovertible evidence regarding the motivations of the
corrections officers who are accused of mistreating
plaintiff. The affidavits therefore would not justify
granting summary judgment in plaintiff's favor.
that “Plaintiff Motion to Excuse Late Filing of Motion
in Opposition to Recommidation Made by Magistrate
Judge” [Docket No. 208] and “Plaintiff Motion to
Reconsider Ruling and Accept his Motion in Opposition as
Timely Filed” [Docket No. 210] are denied. It is
that the portion of “Plaintiff Motion Requesting
Further Time to Reply/Respond to Defendants Clements, Romero,
Jordan Motion in Opposition to Late Filing of His Motion in
Opposition to Recommendations by Majestrate Judge and to
Comply with Defendants Interrogatories, Discovery Request and
Request for Admissions” [Docket No. 218] seeking time
to reply to defendants' opposition is denied as moot.
Plaintiff's motion to reconsider
[Docket No. 210] apparently rests on the belief that the
Court denied plaintiff's first request [Docket No. 208]
to consider his objection timely. Docket No. 210 at 3, ¶
Plaintiff's second motion to
consider his objection as timely reiterates this factual
history without any substantive additions. Se ...