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Gowadia v. Nakakuni

United States District Court, D. Colorado

January 4, 2018

NOSHIR GOWADIA, Plaintiff,
v.
FLORENCE NAKAKUNI, Defendant.

          ORDER ON PENDING MOTIONS

          Michael E. Hegarty United States Magistrate Judge.

         In this Bivens action, Defendant has filed two motions in response to the operative pleading: a motion seeking summary judgment for Plaintiff's purported failure to exhaust administrative remedies, and a motion to dismiss the action for Plaintiff's failure to demonstrate personal jurisdiction and to allege a plausible claim for destruction of Plaintiff's mail. The Court finds that Plaintiff's failure to exhaust his administrative remedies before bringing this action is fatal to his claims and, thus, the Court grants Defendant's motion for summary judgment and denies her motion to dismiss as moot.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.[1]

         1. Plaintiff Noshir Gowadia is incarcerated at the United States Penitentiary - Administrative Maximum (“ADX”) in Florence, Colorado, a facility within the United States Bureau of Prisons (“BOP”). Declaration of Belinda Shelton, Sept. 11, 2017 (“Shelton Decl.”) ¶ 2 & Attach. 1.

         2. The remaining claim in this action alleges that Defendant Florence Nakakuni, the former U.S. Attorney for the District of Hawaii, has, without reason, delayed or destroyed Plaintiff's mail to his family and the court in violation of the First and Fifth Amendments. Order, ECF No. 23 at 7.

         3. In support of the operative Amended Complaint, Plaintiff attached a list of “some examples of important U.S. mail of the Plaintiff which were intercepted/delayed/destroyed by the defendants.” Am. Comp., Attach. B, ECF No. 22. The list includes documents the Plaintiff “put in ADX mail” in 2016. Id.

         4. In the operative Amended Complaint, which the Plaintiff signed “under penalty of perjury, ” he checked the box for “yes” in response to the question, “Did you exhaust available administrative remedies?” Am. Comp., ECF No. 22 at 13, 15.

         5. Plaintiff has not filed an administrative remedy request with the BOP since 2012. Shelton Decl. ¶¶ 12-14 & Attach. 2.

         6. Plaintiff has not filed any administrative remedy request at any level regarding his allegations that Defendant Nakakuni has destroyed or delayed any of his mail. Id., ¶ 15 & Attach. 2.

         LEGAL STANDARDS

         I. Consideration of a Pro Se Plaintiff's Complaint

         A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

         II. ...


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