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Griffin v. Gorman

United States District Court, D. Colorado

September 18, 2019

HENRY LEE GRIFFIN JR., Plaintiff,
v.
VIRGINIA GORMAN, AMY MORRISON, BRYAN COLEMAN, and DAVE LISAC, Defendants.

          OPINION AND ORDER DENYING MOTION TO ALTER OR AMEND INTERLOCUTORY ORDER; GRANTING IN PART MOTION TO DISMISS; AND DENYING MOTION TO STRIKE

          MARCIA S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.

         THIS 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’ Response (#40).

         I. JURISDICTION

         The Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. PROCEDURAL HISTORY

         At all 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).

         Following 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).

         On May 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[1]; 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).

         On 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 judge. (#23).

         III. FACTS

         The 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[2], which prohibits receipt by inmates of material featuring nudity or sexually explicit conduct.[3] (#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).

         Mr. 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.[4]

         IV. ANALYSIS

         A. Standard of Review

         Mr. 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).

         B. Mr. Griffin’s Objection to Order to Draw in Part and to Dismiss in Part

         Mr. 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).

         Prior 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 citation omitted).

         Pursuant 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 ….”

         Here, 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). (#23).

         As to 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 ...


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