United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION TO ALTER OR AMEND
INTERLOCUTORY ORDER; GRANTING IN PART MOTION TO DISMISS; AND
DENYING MOTION TO STRIKE
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court pursuant to: (1)
Plaintiff Henry Griffin’s Motion Objecting to #23 and
Motion Showing Cause Why Chief Judge Marcia S. Krieger Should
Vacate and Reverse #23 in Part and Reinstate all Defendants
and Plaintiff’s Claims One, Two and Four
(#27), to which no response was filed; (2)
Defendants Virginia Gorman, Amy Morrison, Bryan Coleman, and
Dave Lisac’s (collectively, “the Buena Vista
Correctional Facility Officials”) Motion to Dismiss
Plaintiff’s Second Amended Prisoner Complaint
(#33), Mr. Griffin’s Response
(#36), the Buena Vista Correctional Facility
Officials’ Reply (#37); and (3) Mr.
Griffin’s Motion to Strike the Buena Vista Correctional
Facility Officials’ Reply (#38) and
the Buena Vista Correctional Facility Officials’
Court exercises jurisdiction under 28 U.S.C. § 1331.
relevant times, Mr. Griffin is in the custody of the Colorado
Department of Corrections (“CDOC”) and is an
inmate housed at the Buena Vista Correctional Facility in
Buena Vista, Colorado (“the Prison”).
(#22). On December 14, 2017, Mr. Griffin
filed his initial Prisoner Complaint (#1)
asserting that certain laws and policies are unconstitutional
and violate his First, Eighth, and Fourteenth Amendment
rights: specifically, the Prison Labor Law, Colo. Rev. Stat.
§ 17-20-117; the Prison Labor Policies, Administrative
Regulations (“AR”) 450-07 and 850-03; the
Corrections Officer Staffing Law, Colo. Rev. Stat. §
17-1-115.8; and the Limited Negro Policy, AR 1450-05.
(#1). Mr. Griffin also asserts a claim
against (former) Defendants Richard Raemisch and Union Supply
Direct for a violation of his Fourteenth Amendment rights to
due process and equal protection to be free from false
advertising and fraud. (#1).
the initial review of the Prisoner Complaint pursuant to
D.C.COLO.L.Civ.R 8.1(b), on February 17, 2018, the Magistrate
Judge found Mr. Griffin’s initial Complaint: (1) failed
to comply with the pleading requirements of Rule 8 and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and (2)
failed to assert personal participation by named defendants.
Mr. Griffin was directed to file an amended complaint
addressing these deficiencies. (#10).
17, 2018, Mr. Griffin filed his Amended Complaint alleging
five claims: (1) that Colo. Rev. Stat. § 17-20-117, is
unconstitutional because it violates Mr. Griffin’s
First and Tenth Amendment rights; (2) that inmate labor
policies violate Mr. Griffin’s First and Tenth
Amendment rights; (3) that the Inmate Package Program
violated the Federal Wire Fraud Act and Mr. Griffin’s
First Amendment right to be free from fraud by false
advertising; (4) that non-nude photos of women were taken
from Mr. Griffin in violated of his First and Fourth
Amendment rights; and (5) that Mr. Griffin declined
counseling and treatment and is being retaliated against in
violation of his First Amendment rights.
(#18). Pursuant to the Court’s initial
review process, the Magistrate Judge again reviewed the
Amended Complaint, found deficiencies, and afforded Mr.
Griffin “one last attempt to submit a Complaint”
in compliance with court orders. (#19).
August 27, 2018, Mr. Griffin filed his Second Amended
Complaint, which is the operative complaint for purposes of
this Opinion and Order, alleging four claims: (1) that Colo.
Rev. Stat. § 17-20-117 is unconstitutional because it
violates Mr. Griffin’s First Amendment rights; (2) that
AR 350-02 and AR 450-07 are unconstitutional because they
violate Mr. Griffin’s First Amendment rights; (3) that
non-nude photos, deemed to be offensive by Prison staff, were
taken from Mr. Griffin in violation of his First and
Fourteenth Amendment rights; and (4) that AR 300-26 is
unconstitutional because it violates Mr. Griffin’s
First and Fourteenth Amendment rights.
(#22). Following initial review of this
iteration of the complaint, a District Judge issued an
interlocutory Order to Draw in Part and Dismiss in Part,
which: dismissed Claims One and Four without prejudice for
failure to comply with the Magistrate Judge’s February
17, 2018 Order; dismissed Claim Two with prejudice pursuant
to 28 U.S.C. § 1915A(b)(1) as legally frivolous; and
directed that Claim Three asserted against the Buena Vista
Correctional Facility Officials be drawn to a presiding
Court provides a brief summary of the pertinent well pled
allegations in the Second Amended Complaint
(#22) and elaborates as necessary in its
analysis. Mr. Griffin, an inmate in the CDOC, ordered
numerous photos from a company called “Flix 4
You.” (#22 at 11). He alleges that on
five separate dates between April 11, 2016 and September 30,
2016, 168 photos were impounded, seized, and/or destroyed by
Prison mailroom staff-specifically Ms. Gorman, Ms. Morrison,
Mr. Coleman, and Mr. Lisac-ostensibly because the photos
violated the Prison’s AR 300-26, which prohibits receipt by
inmates of material featuring nudity or sexually explicit
conduct. (#33-1). Based on these
allegations and following the Court’s initial review
process pursuant to D.C.COLO.L.Civ.R. 8.1(b), Mr.
Griffin’s sole remaining claim alleges a violation of
his First and Fourteenth Amendment rights against the Buena
Vista Correctional Facility Officials in both their official
and individual capacities for “taking and destroying
(168 non-nude photos) they deemed offensive.”
(#22 at 11).
Griffin has objected to the District Judge’s
interlocutory Order to Draw in Part and to Dismiss in Part
and requests that all of his claims asserted in the Second
Amended Complaint be “reinstated” along with all
of the dismissed-defendants. (#27 at 2). The
Buena Vista Correctional Facility Officials have moved to
dismiss the claim asserted against them under Rule 12(b)(6)
on grounds it is untimely. In the alternative, the Buena
Vista Correctional Facility Officials have moved to dismiss
the Fourteenth Amendment portion of the claim against them in
their individual capacities under Federal Rule of Civil
Procedure 12(b)(6), asserting they are entitled to qualified
immunity. They further argue that any request for monetary
damages or declaratory relief against them in their official
capacities is barred by the Eleventh Amendment.
Standard of Review
Griffin initiated this case without the assistance of an
attorney. Accordingly, the Court reads his pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520-521
(1972). Such liberal construction is intended merely to
overlook technical formatting errors and other defects in Mr.
Griffin’s filings. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Indeed, although he is not
represented by counsel, Mr. Griffin must still comply with
procedural rules and satisfy substantive law to be entitled
to relief. See Murray v. City of Tahlequah, 312 F.3d
1196, 1199 n.3 (10th Cir. 2008).
Mr. Griffin’s Objection to Order to Draw in Part and to
Dismiss in Part
Griffin objects to the District Judge’s October 3, 2018
interlocutory order dismissing all of his claims except Claim
Three and requests that all of his dismissed claims be
reinstated against all original defendants.
(#27). Mr. Griffin contends that his
objections are timely and that the Court “plainly
erred” in dismissing Claims One, Two, and Four.
(#27). Mr. Griffin’s pleading
indicates that he timely objected to the District
Judge’s October 3, 2018 order. However, because this
order was entered by a district judge and not a magistrate
judge, the Court construes Mr. Griffin’s request as a
motion to alter or amend an interlocutory order rather than
an objection to a magistrate judge’s order pursuant to
28 U.S.C. § 636(b)(1)(A).
to the entry of a final judgment, a district court has
discretion to revise interlocutory orders. Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)
(stating that “every order short of a final decree is
subject to reopening at the discretion of the district
judge.”); Wagoner v. Wagoner, 938 F.2d 1120,
1122 n.1 (10th Cir. 1991); Nat. Business Brokers, Ltd. v.
Jim Williamson Productions, Inc., 115 F.Supp.2d 1250,
1255 (D. Colo. 2000). Like the order issued in this case, any
order “which adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties
… is subject to revision at any time before the entry
of judgment.” Raytheon Constructors, Inc. v. ASARCO
Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (citing
Fed.R.Civ.P. 54(b)). Also, courts have generally permitted a
modification of the law of the case when substantially
different, new evidence has been introduced, subsequent,
contradictory controlling authority exists, or the original
order is clearly erroneous.” Major v. Benton,
647 F.2d 110, 112 (10th Cir. 1981). “Thus, a court can
alter its interlocutory order even where the more stringent
requirements applicable to a motion to alter or amend a final
judgment under Rule 59(e) or a motion for relief from
judgment brought pursuant to Rule 60(b) are not
satisfied.” Nat. Business Brokers, 115
F.Supp.2d at 1256. “Notwithstanding the court’s
broad discretion to alter its interlocutory orders, the
motion to reconsider is not at the disposal of parties who
want to rehash old arguments.” Id. (internal
quotation marks and citation omitted). “Rather, as a
practical matter, to succeed in a motion to reconsider, a
party must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior
decision.” Id. (internal quotation marks and
to the Court’s local rules and federal statute, here,
the Court must dismiss any asserted claim that is frivolous.
See 28 U.S.C. § 1915(e)(2)(B)(i);
D.C.COLO.L.CivR 8.1(b). A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest
that is meritless, does not exist, or asserts facts that
could not support an arguable claim. See Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Further, pursuant
to Rule 41(b), a claim may be dismissed “[i]f the
plaintiff fails to prosecute or  comply with … a
court order ….”
pursuant to the D.C.COLO.L.CivR 8.1(b) review, the Magistrate
Judge afforded Mr. Griffin two opportunities to file a
complaint that complied with governing law and rules. Then,
the District Judge properly reviewed Mr. Griffin’s
Second Amended Complaint to determine whether any claims were
legally frivolous. The District Judge issued a detailed
“Order to Draw in Part and to Dismiss in Part”
dismissing Claims One and Two as legally frivolous and Claim
Four for failure to comply with a Court order and for failure
to prosecute pursuant to Fed.R.Civ.P. 41(b).
Claim One, Mr. Griffin asserts that Defendant (former)
Governor John Hickenlooper is denying his right to free
exercise by executing Colo. Rev. Stat. § 17-20-117
against him. Section 17-20-117 provides that “[e]very
able-bodied inmate shall be put to and kept at the work most
suitable to such inmate’s capacity and most
advantageous to the people of this state.” Id.
The District Judge found this claim to be baseless because
(1) absolute immunity applies to all actions related to
legislative activity; (2) nothing in § 17-20-117
requires inmates to work even if their religious beliefs may
preclude them from doing so; and (3) there are no allegations
that Gov. Hickenlooper personally participated in the alleged
constitutional deprivation. (#23 at 5-6). As
to Claim Two, Mr. Griffin asserts Defendants Richard Raemisch
and Dennis Dunsmoor denied his right to free exercise of
religion by executing AR 850-03 and AR 450-07 against him.
The District Judge determined Mr. Griffin failed to assert
what specific sections of the regulations violated his rights
and that nothing in the regulations requires Mr. Griffin to
“worship the DOC or interferes with his ability to be
obedient or adhere to his religious beliefs.”
(#23 at 7). As to Claim Four, Mr. Griffin
asserts that various defendants violated his First ...