United States District Court, D. Colorado
TORY C. HAMMOND, Plaintiff,
DAVID NAGLE, and R. ANDERSON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
matter comes before the court on Plaintiff Tory C.
Hammond's (“Plaintiff” or “Mr.
Hammond”) Motion to Notify the Court, [#59, filed March
6, 2019], which this court construed as a Motion to Amend
and/or Supplement his Second Amended Complaint (the
“Motion to Amend” or “Motion”),
see [#63]. The presiding judge, the Honorable R.
Brooke Jackson, referred this matter to the undersigned
pursuant to 28 U.S.C. § 636(b) and the Memorandum dated
March 8, 2019 [#62]. This court concludes that oral argument
will not materially assist in the resolution of this matter.
Accordingly, upon careful review of the Motion and associated
briefing, the entire case file, and the applicable law, I
respectfully RECOMMEND that the Motion to
Amend be DENIED.
court discussed the background of this matter in its prior
Recommendation, see [#49], and does so here only as
it pertains to the instant Motion. On March 9, 2018,
Plaintiff filed this civil action while incarcerated at the
Boulder County Jail (the “jail”), asserting that
jail personnel violated his constitutional rights.
See [#1]. Following orders from the Honorable Gordon
P. Gallagher, Mr. Hammond filed an Amended Complaint and
Second Amended Complaint, see [#5; #9; #11], and the
Honorable Lewis T. Babcock dismissed in part the Second
Amended Complaint and drew Claims 1 and 5 to Judge Jackson
and the undersigned Magistrate Judge, see [#20].
November 26, 2018, Defendant David Nagle filed a Motion to
Dismiss Plaintiff's constitutional claims based on
qualified immunity. See [#41]. The undersigned issued
a Recommendation concluding that Defendant Nagle was not
entitled to qualified immunity and recommending that the
Motion to Dismiss by denied in part. See [#49].
Then, on March 6, 2019, Plaintiff filed the instant Motion,
wherein he purports to notify the court that he
“unfairly and unconstitutionally is being held from
access to law library and legal access for the last three
months to be able to complete legal research and legal
matters in the [jail].” [#59]. This court construed the
Motion as one seeking leave to amend and/or supplement
Plaintiff's Second Amended Complaint, and ordered
Defendant Nagle to respond to the Motion while precluding any
reply absent leave of the court. See [#63].
Defendant Nagle opposes the requested relief, and Mr. Hammond
has not sought leave to file a Reply. See [#64].
Thus, I find that the Motion to Amend is ripe for
Recommendation. See D.C.COLO.LCivR 7.1(d).
15(a) governs motions to amend when the moving party seeks
leave to amend its pleadings on or before the deadline for
joinder of parties and amendment of pleadings set by the
Scheduling Order. See Fernandez v. Bridgestone/Firestone,
Inc., 105 F.Supp.2d 1194, 1195 (D. Colo. 2000)
(explaining that the movant need not demonstrate good cause
under Rule 16(b) under such circumstances). Rule 15(a)(2)
provides that leave to amend “shall be freely given
when justice so requires.” Fed.R.Civ.P. 15(a)(2). The
court may refuse leave to amend 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. See Frank
v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Whether to allow amendment is within the trial court's
discretion. Burks v. Oklahoma Publ'g Co., 81
F.3d 975, 978-79 (10th Cir. 1996).
Rule 15(d) of the Federal Rules of Civil Procedure allows a
party “to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.” Fed.R.Civ.P.
15(d). The court has broad discretion whether to allow a
supplemental pleading, and may deny leave to supplement for
good cause. See Walker v. United Parcel Serv., Inc.,
240 F.3d 1268, 1278 (10th Cir. 2001). In exercising this
discretion, courts apply the same standard as under Rule
15(a) and thus a court may deny a motion to supplement
“where an amendment obviously would be futile.”
Sw. Nurseries, LLC v. Florists Mut. Ins., Inc., 266
F.Supp.2d 1253, 1256 (D. Colo. 2003); accord Watson v.
Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001)
(observing that a court may dismiss a motion to amend if
amendment is futile, i.e., the amended complaint
would be subject to dismissal for any reason).
Nagle opposes the Motion to Amend because amendment is
futile. And while Defendant Nagle's arguments may, at
times, put the cart before the horse, see Gen. Steel
Domestic Sales, LLC v. Steelwise, LLC, No.
07-cv-01145-DME-KMT, 2008 WL 2520423, at *4 (D. Colo. Jun.
20, 2008), I find that consideration of these arguments
better serves judicial efficiency in this matter, see
Hernandez v. Valley View Hosp. Ass'n, No.
10-CV-00455-REB-MJW, 2010 WL 5157310, at *1 n.3 (D. Colo.
Dec. 14, 2010) (“Applying [Gen. Steel Domestic
Sales, LLC], regardless of the circumstances, delays the
near-inevitable motion to dismiss and, concomitantly, creates
potentially unnecessary burdens on the litigants and the
court.”); cf. Curley v. Perry, 246 F.3d 1278,
1282 (10th Cir. 2001) (permitting sua sponte dismissal of
legally frivolous claims when the plaintiff proceeds in
forma pauperis). For the following reasons, I
respectfully agree with Defendant Nagle and find amendment
and/or supplement futile.
Defendant Nagle contends that Mr. Hammond fails to allege
Defendant Nagle's personal participation in the alleged
deprivation of access to the law library, and therefore Mr.
Hammond fails to state a plausible claim for relief.
See [#64 at 1]. Indeed, the caption of the Motion
incorrectly identifies the Defendants as those from Mr.
Hammond's separate civil action, Hammond v. Koger et
al., No. 18-cv-00577-RBJ-NYW, and fails to allege which
Defendants in this action, or any other officer at the jail,
that has deprived him of access to the library for the last
three months. And personal participation is an essential
element of any constitutional claim brought pursuant to 42
U.S.C. § 1983. See Stidham v. Peace Officer
Standards & Training, 265 F.3d 1144, 1156-57 (10th
Cir. 2001) (explaining that a § 1983 claim must allege
an affirmative link between the alleged constitutional
violation and the specific individual's participation in
Defendant Nagle argues that Mr. Hammond fails to
“explain how he has been denied a ‘reasonably
adequate opportunity' to present his legal claims,
” demonstrated by his several recent filings.
See [#64 at 2]. In Bounds v. Smith, 430
U.S. 817, 828 (1977), the Supreme Court of the United States
held that “the fundamental constitutional right of
access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.”
But the Supreme Court has since clarified that “a
Bounds violation requires more than the bald
assertion of a violation of a basic constitutional right
under 42 U.S.C. § 1983; ‘an inmate alleging a
violation of Bounds must show actual
injury.'” White v. State of Colo., 157
F.3d 1226, 1233 (10th Cir. 1998) (quoting Lewis v.
Casey, 518 U.S. 343, 351 (1996) (“Because
Bounds did not create an abstract, freestanding
right to a law library or legal assistance, an inmate cannot
establish relevant actual injury simply by establishing that
his prison's law library or legal assistance program is
subpar in some theoretical sense.”))). That is, Mr.
Hammond must show that the alleged denial of access to the
law library at the jail frustrated, impeded, or hindered his
efforts to bring his nonfrivolous constitutional claims in
this action. See Simkins v. Bruce, 406 F.3d 1239,
1243-44 (10th Cir. 2005) (“Consistent with these
points, a plaintiff need not show that a claim with which a
defendant interfered would have prevailed, but only that it
was not frivolous.”). And “the constitutional
obligation to provide inmates access to courts does not
require states to give inmates unlimited access to a law
library, and inmates do not have the right to select the
method by which access will be provided.” Penrod v.
Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (internal
Hammond's Motion to Amend states only that he has been
deprived access to the law library for three months, and that
“[a]ll matters submitted is to the best of [his]
ability at this time.” See [#59]. As Defendant
Nagle aptly notes, Mr. Hammond has been active in his filings
with the court (in this action and his separate civil ...