Hammond v. Nagle

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang United States Magistrate Judge.

         This 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.

         BACKGROUND

         This 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].

         On November 26, 2018, Defendant David Nagle filed a Motion to Dismiss Plaintiff's constitutional claims based on qualified immunity.^[1] 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).

         LEGAL STANDARDS

         Rule 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).

         Likewise, 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).

         ANALYSIS

         Defendant 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.

         First, 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 that violation).

         Second, 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 citation omitted).

         Mr. 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 ...