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Orwig v. Brooks

United States District Court, D. Colorado

April 23, 2018

CHRISTOPHER M. ORWIG, Plaintiff,
v.
CAPTAIN FELICIA BROOKS, Sterling Corr. Facility Kitchen Manager, Individual Capacity; LT. STEVEN BADE, Sterling Corr. Facility Hearings Disciplinary Officer, Individual Capacity; OFFICER CLARK, Sterling Corr. Facility Correctional Officer, Individual Capacity; Defendants.

          RECOMMENDATION ON MOTION TO AMEND COMPLAINT

          MARK L. CARMAN, MAGISTRATE JUDGE

         This matter comes before the court on Plaintiff Christopher M. Orwig's referred motion (doc. 55) to amend his first amended complaint and to forego the redlined version of his proposed second amended complaint under D.C.COLO.LCivR 15.1. Defendants Captain Felicia Brooks, Lieutenant Steven Bade, and Officer Clark oppose the proposed amendment. Doc. 57. As Defendants were able to argue their opposition without the benefit of a redlined version of the amendment, the court grants Plaintiff's request to forego the redline. For the reasons that follow, the court recommends[1] granting in part and denying in part Plaintiff's proposed amendment.

         I. BACKGROUND

         At the time Plaintiff filed his pro se original and amended complaints, he was an inmate of Sterling Correctional Facility (“Sterling”). Doc. 1 (complaint filed April 4, 2016); Doc. 6 (amended complaint filed April 25, 2016). The court has dismissed some of Plaintiff's claims (Order of March 17, 2017, doc. 32), and Plaintiff has voluntarily dismissed some defendants. He currently has claims for injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and the First Amendment against Captain Brooks, Lieutenant Bade and Officer Clark in their individual capacities.

         Plaintiff alleges that his sincerely-held religious beliefs require him to keep his bible on his person. Doc. 6 at 4. At the time of the events at issue, he had been doing so for “well over one year.” Id. On December 1, 2015, he reported to the Sterling kitchen for work; Officer Clark confiscated his bible; Captain Brooks informed him that a “POR” (posted operational rule) policy did not permit him to have his bible in the kitchen and ordered him to return to work without it; Plaintiff attempted to do so but experienced distress and refused to continue; he was “written up, ” fired from his job, and threatened with being put in restricted population for refusing to work without his bible. He further alleges that Lieutenant Bade convicted him of violating the Colorado Department of Correction's (“CDOC”) Code of Penal Discipline (“COPD”), AR #150-01, for “failure to work” and was assessed a loss of 10 days good time. Doc. 6 at 8.

         Since filing his first amended complaint, Plaintiff has obtained pro bono counsel. He also was transferred from Sterling to the Cheyenne Mountain Reentry Center (“CMRC”) on November 7, 2017. On December 31, 2017, Plaintiff filed his motion to amend and attached his proposed second amended complaint. Doc. 55, 55-1. He states the purpose of the amendment is in large part “to add Rick Raemisch, the Executive Director of [CDOC] … as a Defendant in his official capacity.” Doc. 55 at 3.

         Plaintiff also proposes to add more factual detail regarding his existing claims, and seeks to add allegations of conduct at CMRC. Plaintiff would allege that CMRC has disciplined him and threatens additional discipline for his declining to participate in a program (the “Positive Peer Community Program”) which Plaintiff believes is contrary to his religious beliefs. Doc. 55-1 at ¶ 67. Plaintiff also proposes to separate his two legal theories - RLUIPA and the First Amendment - into separate causes of action.

         II. ANALYSIS

         A. Standards for Amending the Complaint

         Rule 15(a) provides that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182 (1962). “The purpose of the Rule is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (citations and internal quotation marks omitted).

         Defendants argue Plaintiff's proposed amendment is futile on several grounds: mootness due to Plaintiff's transfer out of Sterling, statute of limitations, failure to administratively exhaust the claim regarding events at CMRC, lack of standing to broadly request the injunctive relief Plaintiff seeks, and as to Plaintiff's request for good time credit, mootness because his punishment in the disciplinary proceeding was suspended and has since been withdrawn. In his reply, Plaintiff withdrew the claim for good time credit. Doc. 64 at 8, n.4.

         “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Full Life Hospice LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (internal quotation marks omitted). In determining whether a proposed amendment should be denied as futile, the court must analyze a proposed amendment as if it were before the court on a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Hunt v. Riverside Transp., No. Civ.A. 11-2020-DJW, 2012 WL 1893515, at *3 (D. Kan. May 23, 2012). Because the court must consider futility by the same light as a Rule 12(b)(6) motion, the court generally cannot consider matters outside of the proposed amended complaint. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The court therefore does not consider the factual materials the parties submitted on this motion.

         A claim is subject to dismissal if it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.” Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (quoting Twombly, 550 U.S. at 556). The defendant bears the burden of showing futility. Hunt, 2012 WL 1893515, at *3; see also Carefusion 213, LLC v. Prof'l Disposables, Inc., Civ. A. No. 09-2616-KHV-DJW, 2010 WL 4004874, at *5 (D. Kan. Oct. 12, 2010). Claims are also subject to dismissal if the allegations show some legal bar to the claim. See, e.g., Gee, 627 F.3d at 1193 (plaintiff's allegations showed some of his claims were barred as untimely); Sause v. Bauer, 859 F.3d 1270, 1278 (10th Cir. 2017), petition for cert. pending (claims barred by qualified immunity were appropriately dismissed with prejudice).

         B. Claims Regarding Conduct at Sterling.

         1. Mootness

         Article III of the U.S. Constitution restricts the court to considering only active cases or controversies. Therefore, if a claim becomes moot during litigation, the court lacks jurisdiction to continue hearing the claim. As Plaintiff notes,

When a prisoner files suit against prison officials who work in the institution in which he is incarcerated, seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by those officials, and then that prisoner is subsequently transferred to another prison or released from the prison system, courts are presented with a question of possible mootness.

Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). “[A] plaintiff lacks standing to maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured in the future.” Sause, 859 F.3d at 1277 (internal quotation marks omitted). “[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal ellipsis omitted).

         Here, although Plaintiff alleges both Sterling and CMCR have applied the same disciplinary rule in ways that violate his freedom of religion, he does not allege the same violation of that right. Plaintiff alleges CMCR is substantially burdening his religious expression because he will not participate in a peer program; he does not allege that CMCR is prohibiting him from carrying his bible. The case law is clear that to avoid mootness, a plaintiff seeking injunctive relief must establish a good chance of suffering the same violation of the same right. In Lyons, for instance, the court required the plaintiff to establish a “real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Lyons, 461 U.S. at 105. In Sause, the plaintiff alleged one of the defendant police officers had

threatened her again … and lectured her that freedom of speech means nothing. These allegations are insufficient to demonstrate that Sause faces a good chance of being likewise injured in the future. That is, Sause fails to establish she faces a real and immediate threat that (1) the defendants will again enter her home while investigating a crime; (2) she will again kneel and pray; and (3) the defendants will again order her to stand up and stop praying so they can harass her.

Sause, 859 F.3d at 1277-78 (internal quotation marks and citations omitted). Thus to avoid mootness for his claims regarding conduct at Sterling, he would have to allege the very same conduct has occurred at his new facility. Plaintiff does not do so. His claims alleging wrongs at Sterling are ...


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