Hubbard v. Nestor

          ORDER

          SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.

         This civil action is before the Court on Defendants' Motion to Reconsider (the “Motion to Reconsider”) [#174], which was referred to this Court for resolution [#175]. This Court has carefully considered the Motion to Reconsider and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion to Reconsider. For the following reasons, the Motion to Reconsider is GRANTED.

         I. Background

         Plaintiff brings claims for alleged violations of his Fourteenth Amendment right to Due Process and violation of his Fourth and Fifth Amendment rights while he was detained at the Lincoln County Jail. [See #61 at 4-5] On October 12, 2018, Defendants filed a Motion for Summary Judgment (the “Summary Judgment Motion”) seeking summary judgment in their favor on all of Plaintiff's remaining claims in the lawsuit. [#153] More specifically, Defendants argue that (1) Plaintiff was not entitled to a hearing prior to being relocated within the Lincoln County Jail, because the relocation was related to maintaining the order, safety, and security of the jail, its staff, and other inmates; (2) Plaintiff's Fourth Amendment rights were not violated, because he did not have a reasonable expectation of privacy in his jail cell and he has not established the violation of any rights under the Fifth Amendment; (3) Plaintiff failed to exhaust his administrative remedies prior to bringing this lawsuit; (4) Defendants are entitled to qualified immunity; and (5) Defendant Sheriff Tom Nestor is not liable in his official capacity, because Plaintiff failed to prove any underlying constitutional violation and Sheriff Nestor is entitled to qualified immunity. [Id.] On November 11, 2018, Plaintiff filed his Response to Defendants' Motion for Summary Judgment (the “Summary Judgment Response”). [#157] On December 3, 2018, Defendants filed their Reply in the Matter of Their Motion for Summary Judgment (the “Summary Judgment Reply”). [#164]

         On December 24, 2018, Plaintiff filed a Motion to Strike New Arguments and Affidavit Raised in Defendants' Reply in the Matter of Their Motion for Summary Judgment (the “Motion to Strike”), arguing that Defendants' Summary Judgment Reply contained new arguments and evidence that were not raised in the Summary Judgment Motion and thus should be stricken. [#165] On January 14, 2019, Defendants filed a response to the Motion to Strike [#169], and Plaintiff then filed a reply in support of the Motion to Strike [#171]. On January 25, 2019, this Court issued an Order granting in part and denying in part the Motion to Strike. [#172] Relevant to the instant Motion to Reconsider, the Court granted the Motion to Strike “to the extent it [sought] to strike Defendants' argument that ‘Plaintiff was not a typical “pre-trial detainee”, in that he was a parolee (and, therefore, still a “constructive prisoner”), who was on pre-trial status for a new charge' while detained at the Lincoln Country Jail” and determined that the stricken argument “[would] not be considered by the Court in connection with Defendants' Summary Judgment Motion.” [Id. at 6-7]

         The entirety of Defendants' argument in the Summary Judgment Reply related to Plaintiff's parolee status (the “Parolee Argument”) consists of the following two paragraphs:

Defendants stress that, while Plaintiff was a pretrial detainee with respect to the criminal charge he received for making a “shank” while being held in the Limon Correctional Facility, he was transported to the Jail as a parolee on his prior charges in order to face his new charge, and remained on that status while he was an inmate at the Jail . . . In Colorado, “a parolee is considered to be under a restraint imposed by law and is not a free person, but rather, a constructive prisoner of the state and under the control of the appropriate state officials.” People v. Gallegos, 914 P.2d 449, 450 (Colo.App. 1995).

Plaintiff was not a typical “pre-trial detainee”, in that he was a parolee (and, therefore, still a “constructive prisoner”), who was on pre-trial status for a new charge. It was not unreasonable for Jail officials to take that factor into account when managing Plaintiff's behavior. “Admittedly, prisoners do not shed all constitutional rights at the prison gate, but lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin v. Connor, 515 U.S. 472, 485 (1995) (internal citations omitted).

[#164 at 8-8]

         On February 8, 2019, Defendants filed the instant Motion to Reconsider, which requests that the Court reconsider that portion of its January 25, 2019 Order that granted the Motion to Strike to the extent it sought to strike the Parolee Argument. [#174] On February 19, 2019, Plaintiff filed a response to the Motion to Reconsider [#179], and Defendants then filed a reply in support of the Motion to Reconsider [#185].

         II. LEGAL STANDARD

         “The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration.” Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC, No. 14-cv-00134-PAB-KMT, 2015 WL 3542699, at *2 (D. Colo. June 5, 2015). Rather, “motions for reconsideration fall within a court's plenary power to revisit and amend interlocutory orders as justice requires.” Id. Although a court has the authority to revisit and amend its interlocutory orders, judges in this district generally “have imposed limits on their broad discretion to revisit interlocutory orders.” Id. Accordingly, in determining whether to revisit an interlocutory order, courts generally “consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error”. Id. “Motions to reconsider are generally an inappropriate vehicle to advance ‘new arguments, or supporting facts which were available at the time of the original motion.'” Id. (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).

         III. ANALYSIS

         In the Motion to Reconsider, Defendants offer two arguments in support of their contention that the Parolee Argument should not have been stricken by the Court. First, Defendants contend that, upon raising a defense of qualified immunity in their Motion for Summary Judgment, the burden shifted to Plaintiff to establish (1) a constitutional violation and (2) that the constitutional right at issue was “clearly established.” [#174 at ¶¶ 11-12] As a result of this burden-shifting, Defendants argue that the waiver cases relied upon by Plaintiff in his Motion to Strike are inapplicable and Defendants' Parolee Argument is properly construed as a rebuttal to Plaintiff's arguments in the Summary Judgment Response in support of a constitutional violation. [Id. at 4] Second, Defendants contend that, because qualified immunity may be raised at any time prior to trial, Defendants “could, hypothetically, submit an additional Motion for Summary Judgment on the stricken issue (which relates to qualified immunity) at any time.” [Id. at ¶ 17] Defendants thus contend that “it would promote judicial economy, as well as adhere to this ...