Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sutton v. Colorado Department of Corrections

United States District Court, D. Colorado

February 28, 2018




         This case is before the Court pursuant to an Order Referring Case entered by Judge Raymond P. Moore on March 13, 2017. (Docket No. 7.) Now before the Court are two motions which have been referred (Docket Nos. 28 & 36) to the undersigned Magistrate Judge:

• Defendants Colorado Department of Corrections (“CDOC”), Vaughn, Bolton, Grant, Healy, O'Brien, Gebhart, Lengerich, Brunell, Gillis, Scanga, Lague, Wood, Lorenze, Long, Fowler, Jimerson, Owens, and Lisac's (collectively “Defendants”) Motion to Dismiss (Docket No. 26), to which Plaintiff Joshua Lamont Sutton (“Plaintiff”) filed a response (Docket No. 33); and
• Plaintiff's Motion for Leave of Court to Amend and Supplement Complaint (Docket No. 35), to which Defendants filed a response (Docket No. 37), and Plaintiff filed a reply (Docket No. 40).

         The Court has carefully considered the motions. The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.

         I. Motion to Amend (Docket No. 35)

         The Court will first address Plaintiff's Motion for Leave of Court to Amend and Supplement Complaint (Docket No. 35), because if this relief is granted, Defendants' motion to dismiss is moot. See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended complaint moots a motion to dismiss directed at the complaint that is supplanted and superseded.”).

         Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.” Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A finding of undue delay may be appropriate where the facts or claims sought to be added were available to the movant at the time the original pleading was filed, or where the movant fails to offer a reasonable justification for why it did not seek amendment earlier. Sipp v. Unumprovident Corp., 107 Fed. App'x. 867, 876-77 (10th Cir. 2004) (unpublished), (citing Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)).

         Based upon this standard, Plaintiff's motion to amend, filed December 22, 2017, is untimely, and the Court recommends that the proposed amendments be denied. This case was filed on March 7, 2017. (Docket No. 1.) Plaintiff amended his Complaint once as a matter course on March 27, 2017. (Docket No. 18.)[1] On May 15, 2017, Defendants filed their Motion to Dismiss. (Docket No. 26.) In response, on May 30, 2017, Plaintiff indicated that he planned to file another motion to amend his Amended Complaint. (Docket No. 33.) That motion to amend was not filed until December 8, 2017, more than six months later. The proposed amendments cover the same time period and relate to the same facts as those giving rise to his original Complaint. Plaintiff has failed to provide any justifiable reason (or, for that matter, any reason at all) for his undue delay and failure to file a timely motion for leave to amend his complaint and to join new defendants. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.1994).

         Furthermore, prejudice to the nonmoving party is the most important factor in considering whether amendment should be permitted. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the amendment unfairly affects the defendants ‘in terms of preparing their defense to the amendment.'” Id. at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). “As a general rule, the risk of substantial prejudice increases with the passage of time.” 6 Wright, Miller & Kane, Federal Practice and Procedure § 1488, at 670. Given the length of time Defendants' Motion to Dismiss (Docket No. 26) was pending before Plaintiff filed his untimely motion to amend, the Court finds that Defendants would be prejudiced by allowing Plaintiff to further amend his pleadings.

         Finally, Plaintiff's proposed amendments fail to rectify the pleading deficiencies that are discussed below. For example, Plaintiff's proposed Claims Three and Four are brought against an undifferentiated list of over 30 individual defendants, including new parties like “PREA” and the Colorado Attorney General's Office. (Docket No. 35 at p. 5.) Both claims cover a period of time between “Nov. 1, 2015 through about April 1, 2017, and likely to continue thereafter, ” and both appear to name the defendants in the alternative, with the use of “and/or.” (Id.) Similarly, Claim One alleges that Defendants “Lengerich and or [sic] Lish” violated his constitutional rights. (Id. at p. 15.) Such claims are impermissibly vague and provide no basis by which a defendant could determine whether those claims are asserted against him or her. In short, Plaintiff's proposed amendments generally mirror the allegations made in his Amended Complaint, with additional individuals merely added to the various groups of wrongdoers. Plaintiff's failure to sufficiently identify the Defendants that personally participated in the claims would require dismissal of those claims. See Schaal v. Fender, No. 06-cv-01748-MSK-MJW, 2009 WL 1244183, at *4 (D. Colo. May 4, 2009).

         Accordingly, the Court recommends that Plaintiff's Motion for Leave of Court to Amend and Supplement Complaint (Docket No. 35) be denied as untimely, prejudicial, and futile.

         II. Motion to Dismiss (Docket No. 26)

         Defendants move to dismiss Plaintiff's Amended Complaint (Docket No 18) for lack of subject matter jurisdiction and for failing to state claims upon which relief can be granted.

         a. Factual Background

         Unless otherwise noted, the allegations below are taken from the Amended Complaint (Docket No. 18), and described in the light most favorable to Plaintiff.

         Plaintiff is an inmate who deals with post-traumatic stress disorder (“PTSD”) stemming from physical, psychological, and sexual abuse. (Docket No. 18 at p. 6.) In 2016, he was placed for treatment in the Therapeutic Community Program (“TC”) at the Buena Vista Correction Complex (“BVCC”). (Id.) Plaintiff alleges that he was subjected to “bad treatment” while in this housing unit which “result[ed] in a relapse of the symptoms” of his PTSD, anti-social personality disorder, and substance abuse disorder. (Id. at p. 6-7.) The “bad treatment” being that inmates in Plaintiff's TC housing unit were forced to undress and use the toilet in their cells in full view of female staff because the cell walls and doors consisted only of bars.

         Plaintiff divides the Defendants into three groups.[2] First, he claims that Defendants Vaughn, Bolton, Grant, Healey, O'Brien, and Gebhart, whom he labels the “Group One” Defendants, were aware of Plaintiff's history of sexual, physical, and psychological abuse. (Id. at 7.) Nevertheless, these Defendants “ignored or have supported security staff's forcing” Plaintiff to use the toilet or undress in view of female staff. (Id. at p. 8.) At the same time, however, Plaintiff states that “the same Group One Defendants have repeatedly said to all of the prisoners during the [TC]'s weekly meetings that they are also humiliated daily” by having to hold TC sessions outside of Plaintiff's cell, where his only toilet is located. (Id.) These Defendants encouraged Plaintiff and other prisoners to complain about unit's cell conditions. (Id.) Thereafter, Plaintiff raised his objections to the BVCC's Prison Rape Elimination Act (“PREA”) investigator. (Id.)

         Defendant Lengerich, the BVCC warden, was informed by PREA investigators that while “the front wall of the cell doors was covered enough with curtains he had given” to the inmates, “he needed to provide similar protection for each of [the] cell doors” in the TC unit. (Id. at pp. 8-9.) For eight months, Defendant Lengerich refused to provide the PREA-compliant curtains. (Id. at p. 9.) After Plaintiff began complaining again, on October 25, 2016, Defendant Lengerich ordered the “Group Two Defendant(s) and or [sic] the Group Three Defendant(s)” to remove the “top-half cell- wall curtains” from the cells in Plaintiff's unit “because we were complaining so much.” (Id.)[3] Plaintiff reported subsequent threats made by other inmates, who blamed him for the removal of the curtains, to the Group Two Defendants. (Id.) He was later involved in a physical altercation with another offender, resulting in torn shoulder muscles. (Id.)

         On November 1, 2016, Defendant Long took the TC unit's bottom-half cell curtains as well. (Id. at 10.) In response, Plaintiff showed the Group Three Defendants a filing by the Colorado Attorney General's office in Plaintiff's other pending case, which acknowledged that it may be a constitutional violation to allow female staff members to regularly see male prisoners undressed. (Id.) The Group Three Defendants agreed that the objectionable practice was, in fact, occurring in Plaintiff's living unit, but did not take any action to provide privacy curtains. (Id.) Defendant Owens “openly bragged” about confiscating the curtains. (Id. at pp. 10-11.) Defendant Jimerson told Plaintiff that “he will not do anything to stop us from being seen undressed by female staff” until he received a letter from the Colorado Attorney General commanding him otherwise. (Id. at p. 11.) Defendant Lisac, the PREA administrator, refused to answer inmates' requests for a PREA investigation. (Id.). Defendant Lengerich ordered the light wattage be increased in their cells from five watts to eighty watts to “punish us for complaining.” (Id.) Defendant Wood stated that the curtains were removed for privacy purposes, but Plaintiff believes that he was housed in the least restrictive unit and that other units at BVCC had privacy curtains. (Id. at pp. 12-13.)

         Plaintiff asserts the following claims in the Amended Complaint:

• Defendants violated his Eighth Amendment right to humane conditions of confinement by exposing him on a daily basis to observation by female staff members while he used the toilet in his cell or undresses, which has exacerbated his PTSD, causing him to suffer from panic and anxiety attacks (Claims One and Two);
• Defendants violated his Eighth Amendment right to humane conditions of confinement because Defendants' retaliatory acts in removing the privacy curtains that were previously in place in response to Plaintiff's repeated complaints have angered other inmates in the housing unit to the extent that another inmate attacked him physically, tearing Plaintiff's shoulder muscles (Claim Three);
• Defendants violated his constitutional right to bodily privacy by exposing him on a daily basis to observation by female staff members while he used the toilet in his cell or undresses (Claim Four); and,
• Defendants have violated his Fourteenth Amendment due process and equal protection rights (Claims Five and Six).

         b. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.