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Davis v. Federal Bureau of Prisons

United States District Court, D. Colorado

September 29, 2017

ALTON DAVIS, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS Defendant.

          ORDER REGARDING PENDING MOTIONS

          William J. Martínez United States District Judge

         Plaintiff Alton Davis, appearing pro se, asserts a single claim under the Religious Freedom Restoration Act (“RFRA, ” 42 U.S.C. §§ 2000bb et seq.) against Defendant Federal Bureau of Prisons (“BOP”), arguing that BOP has imposed a substantial burden on his religious exercise.

         Matters before the Court include: Plaintiff's Motion for Clarification (ECF No. 162), Motion Objecting the Court's Denial of Plaintiff's Motion for Clarification (ECF No. 168), Motion to Consolidate (ECF No. 179), Motion Objecting the District Court Order to Strike Doc. 173 and Doc. 175 (ECF No. 180), Motion Objecting the Court's Order Granting Defendant's Motion Doc. 166 (“Protective Order Objection, ” ECF No. 186), and Motion Objecting this Court's Order Doc. 183 Denying Plaintiff's Motion Doc. 181 for Appointment of Counsel as Moot (“Appointment of Counsel Objection, ” ECF No. 188). For the reasons set forth below, Plaintiff's Motion for Clarification (ECF No. 162) is construed as a motion requesting a jury trial pursuant to Fed.R.Civ.P. 39(b) (“Jury Trial Motion”) and is granted; thus, Plaintiff's subsequent and related motions (ECF Nos. 168, 179, 180) are denied as moot. Further, Plaintiff's Protective Order Objection (ECF No. 186) and Appointment of Counsel Objection (ECF No. 188) are both denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of Defendant BOP and is currently incarcerated at the United States Penitentiary, Administrative Maximum (“ADX”). (ECF No. 90 at 3.) On August 24, 2010, in the United States District Court for the Southern District of New York, Plaintiff was convicted on eight criminal counts, including conspiracy to commit Hobbs Act robberies of suspected drug dealers, using and discharging a firearm during a robbery, murder, and conspiracy to distribute and possess with intent to distribute more than 100 kilograms of marijuana. See United States v. Davis, 689 F.3d 179, 181 (2d Cir. 2012) (upholding judgment and detailing facts). In September 2010, Plaintiff was notified that a Special Administrative Measure (“SAM”) was being implemented regarding his confinement. (ECF No. 90 at 3.) BOP asserts that the SAM was implemented “because [Plaintiff] demonstrates a ‘proclivity for violence, ' as evidenced by his conviction on eight criminal counts . . . [and] his attempt, while incarcerated, to order the murders of two federal law enforcement officials.” (ECF No. 98 at 2 (citing ECF No. 98-1).) Plaintiff's SAM restrictions expired on August 31, 2014. (ECF No. 98-2.) However, on September 8, 2014, Plaintiff was placed on Correspondence Restrictions (“CRs”) pursuant to 28 C.F.R. § 540.15 “for a period of six months to transition [Plaintiff] into a general population setting.” (ECF No. 98 at 2 (citing ECF No. 98-2 ¶ 4).) And, in March 2015, those CRs were reviewed and removed. (ECF No. 98-2 ¶¶ 13-14.)

         Based on this course of events, Plaintiff filed this action on April 27, 2015, asserting the following claims: (1) violation of his First Amendment rights to freedom of speech, freedom of association, and free exercise of religion (including violation of RFRA), (2) violation of his Fifth Amendment right to procedural due process, and (3) violation of his Eighth Amendment right to be free from cruel and unusual punishment stemming from his conditions of confinement and deliberate indifference to his serious medical needs. (ECF No. 90.)

         On August 29, 2016, BOP filed a Motion to Dismiss (ECF No. 98), which was granted in part on April 7, 2017 (ECF No. 144). The Court stated in that Order that “[m]oving forward, Plaintiff shall have one remaining claim under [RFRA] against Defendant [BOP].” (Id. at 27.) Following this, on May 25, 2017, United States Magistrate Judge Michael J. Watanabe held a scheduling conference (ECF Nos. 157, 159), and on that same day entered an order appointing pro bono counsel (ECF No. 158).

         Since that time, Plaintiff has filed a notice to the Court (see ECF No. 165), multiple motions for clarification (see ECF Nos. 143, 162, ), motions for appointment of counsel (see ECF Nos. 181, 189, 192), Rule 72(a) objections to Judge Watanabe's orders (see ECF Nos. 168, 186, 188), and two motions for consolidation and reconsideration (see ECF Nos. 179, 180). After reviewing all of these filings, it is apparent to the Court that Plaintiff has the following concerns: (1) Plaintiff believes that he is entitled to a jury trial on the remaining claim in his case, and (2) Plaintiff believes that it is the Court's duty to ensure that he can effectively litigate and understand what is going on in his case, by halting all legal proceedings until pro bono counsel undertakes representation of Plaintiff. The Court will address both of these concerns.

         II. LEGAL STANDARD

         When reviewing an objection to a magistrate judge's non-dispositive ruling, the Court must adopt the ruling unless it finds that the ruling is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S. West Commc'ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly erroneous standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). The “contrary to law” standard permits “plenary review as to matters of law, ” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr. 2015 update), but the Court will set aside a magistrate judge's order only if it applied the wrong legal standard or applied the appropriate legal standard incorrectly, see Wyoming v. U.S. Dep't of Agric., 239 F.Supp.2d 1219, 1236 (D. Wyo. 2002).

         III. ANALYSIS

         A. Protective Order Objection

         On June 20, 2017, BOP moved for the entry of a protective order regulating the use and disclosure of documents and materials produced during discovery in this case. (ECF No. 166). Plaintiff did not file a response to BOP's motion. On August 7, 2017, Judge Watanabe entered an order granting BOP's motion, noting that “the Court treats the motion as unopposed.” (ECF No. 177 at 1.) Then, on August 24, 2017, Plaintiff filed an objection to Judge Watanabe's order. (ECF No. 186.) In that objection, Plaintiff reiterates that he has requested legal representation, that “he does not understand these motions and documents from Marcy Cook [BOP's counsel], ” and further, that the “Court should have take[n] note that Plaintiff did not respond to this particular motion from Marcy Cook because he honestly did not know how to.” (Id. at 1.)

         Plaintiff articulates an objection to BOP's motion that was not presented before Judge Watanabe. The Court is unaware of any precedent, nor does Plaintiff point the Court to any relevant authority, that allows Plaintiff to “sandbag” the Magistrate Judge by failing to point out facts and relevant claims that were not previously presented and argued. See Thomas v. Arn, 474 U.S. 140, 147 (1985) (in a similar vein, the specificity requirement “prevents a litigant from ‘sandbagging' the district judge by failing to ...


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