United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (DOCKET NO. 26) AND PLAINTIFF'S MOTION FOR
LEAVE OF COURT TO AMEND AND SUPPLEMENT COMPLAINT (DOCKET NO.
MICHAEL J. WATANABE, UNITED STATES MAGISTRATE JUDGE
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
• 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.
• 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).
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
Motion to Amend (Docket No. 35)
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complaint that is supplanted and superseded.”).
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.
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.) 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).
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
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,
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.
Motion to Dismiss (Docket No. 26)
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.
otherwise noted, the allegations below are taken from the
Amended Complaint (Docket No. 18), and described in the light
most favorable to 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.
divides the Defendants into three groups. 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”)
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.) 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.)
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.)
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).