Vreeland v. Huss

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Robert Charles Huss’ Motion to Dismiss [Docket No. 36] and Plaintiff Delmart E.J.M. Vreeland, II’s Motion for Leave to File Amended Complaint [Docket No. 53]. The Court has jurisdiction pursuant to 28 U.S.C. § 1343.

         I. BACKGROUND & PROCEDURAL HISTORY

         A. Background

         The allegations in plaintiff’s Amended Prisoner Complaint [Docket No. 32] are to be taken as true in considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).

         This matter arises out of defendant Robert Huss’ (“Huss”) alleged conduct after a settlement conference in Vreeland v. Tiona, et al, 17-cv-01580-PAB-SKC (“Tiona”). Docket No. 32 at 14. At all relevant times, Huss was an attorney with the Colorado Attorney General’s Office. He represented a defendant in another of plaintiff’s federal court matters, as described more fully below.

         Plaintiff is a state prisoner currently in custody of the Colorado Department of Corrections (“CDOC”) at a level three security prison. Docket No. 32 at 5, 10-12. He was placed into CDOC custody in October 2008 on “sexually related” convictions, with what plaintiff describes as a sentence of 24 years to life as well as “a 48 year sentence which CDOC uses to control and set [parole eligibility dates] and [mandatory release dates].” Id. at 10.

         Plaintiff received an offense-specific evaluation (“OSE”) that contained errors. Id. at 11. The CDOC relied upon the erroneous OSE when classifying plaintiff as an S-5-I inmate (“S Code”). Id. As a result, he is ineligible for transfer to lower level facilities, and he is unable to participate in statutorily-mandated sex-offender-treatment programs (or other CDOC programs) without a file review. Id. Moreover, his S Code classification subjects him to automatic “denials of community corrections and a denial of parole, and the incarceration in CDOC for approximately five years beyond [his parole eligibility date].” Id. Plaintiff alleges that these consequences of his erroneous CDOC classification are illegal. Id.

         During his incarceration, plaintiff received the assistance of a CDOC inspector general officer (“IGO”) to correct plaintiff’s S Code classification “so Plaintiff could be moved to a lower level facility . . . and enter the CDOC ‘Flagger Program’ ([a program that] gives inmates a certificate to work for State departments of transportation as a road flagger and pays about $19.00 an hour to start).” Id. at 12-13. Plaintiff was later informed by the IGO’s supervisor that plaintiff would have to pay for a new OSE and, based on the results of that OSE, his S Code classification might be lowered. Id.

         Magistrate Judge Kathleen M. Tafoya set a telephonic settlement conference in Tiona for January 16, 2018. Id. at 14. Plaintiff, the IGO who was assisting plaintiff to change his S Code classification, Assistant Colorado Attorney General Kristin Ruiz (“Ruiz”) (appearing for defendant in Tiona), and Huss (who was not an attorney of record in Tiona) were on the phone conference. Id. During the conference, plaintiff offered to dismiss his claims against all CDOC defendants in Tiona and other matters plaintiff brought against the CDOC if Ruiz would help speed up his “[S Code] change and transfer” to a lower level facility. Id. Plaintiff’s offer to settle did not extend to his claims in Vreeland v. Schwartz, No. 13-cv-03515-PAB-KMT (“Schwartz”), a matter in which the defendants were represented by Huss. See Id . Ruiz informed plaintiff that she would pass along the offer to her client, the CDOC. Id. Huss never spoke during the settlement conference. Id.

         Three days later, a “source employed by the CDOC” informed plaintiff that Huss sent emails and made phone calls to interfere with plaintiff’s S Code change, facility transfer, and “to have Plaintiff moved out of state” in retaliation for plaintiff’s unwillingness to settle Schwartz. Id. at 15. Within days, the inspector general’s office informed plaintiff that he would not be granted an S Code change, a parole eligibility and mandatory release date “waiver, ” a transfer to lower level facilities, admission to community corrections by 2021, or parole in 2023. Id. Plaintiff then filed this case. See Docket No. 1.

         Since filing this case, plaintiff claims that his investigation has resulted in the discovery of additional facts supporting multiple conspiracies to deprive him of his First Amendment right to be free from retaliation, his Sixth Amendment right to counsel, and instances of neglect to prevent conspiracies by three additional attorneys at the Colorado Attorney General’s Office -- Jennifer Huss, Ruiz, and Julie Tolleson -- and the CDOC Inspector General, Jay Kirby. Id. Plaintiff obtained the majority of this evidence from Huss’ testimony in a July 31, 2018 hearing in Tiona. See Docket No. 53 at 1, ¶ 2. Plaintiff alleges that, during the July 31 hearing, Huss testified “that he withheld information and/or evidence from the Court and Plaintiff in order to prevent Plaintiff from filing suit against another party, ” that party being Jennifer Huss, Huss’ wife. Id. (referring to testimony transcribed at Docket No. 42-1 at 28).

         B. Procedural History

         Plaintiff filed his Prisoner Complaint [Docket No. 1] on February 7, 2018, against Huss in his individual and official capacities asserting a First Amendment retaliation claim and a claim for deprivation of access to court. Docket No. 1 at 4-14. Judge Lewis T. Babcock dismissed plaintiff’s official capacity claims for damages and drew the case to this Court and Magistrate Judge Kathleen M. Tafoya. See Docket No. 5.

         On April 26, 2018, plaintiff filed a motion seeking to exceed the thirty-page limitation for his amended prisoner complaint pursuant to Fed.R.Civ.P. 15(a)(1). Docket No. 12 at 1. He sought to amend his complaint to add four due process claims against six new defendants, amend the factual allegations contained in his retaliation claim against Huss, and add a new claim against Huss, “One Unknown Attorney” and the Colorado Attorney General for “conspiracy to deprive another of constitutional rights” under the First and Fourteenth Amendments.^[1] Docket No. 12-1. After the defendants moved to dismiss the Amended Complaint, the Court adopted Magistrate Judge Tafoya’s recommendation [Docket No. 27] and dismissed all claims, without prejudice, except plaintiff’s First Amended retaliation claim against Huss. Docket No. 31 at 2-3. On September 10, 2018, Huss filed a Motion to Dismiss [Docket No. 36] seeking dismissal of the only remaining claim against him. On July 1, 2019, plaintiff filed a Motion for Leave to Amend Complaint [Docket No. 53].

         II. STANDARDS OF REVIEW

         A. Motion for Leave to Amend Complaint

         Plaintiff seeks leave to file the proposed second amended complaint pursuant to Fed.R.Civ.P. 15(a), which states that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). Rule 15 instructs courts to “freely give leave [to amend] when justice so requires.” Id. Nevertheless, denying leave to amend is justified if the proposed amendments are unduly delayed, unduly prejudicial, futile, or sought in bad faith. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). The “most important[] factor in deciding a motion to amend the pleadings[] is whether the amendment would prejudice the nonmoving party.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). As a general rule, the Court retains the discretion to permit such amendments. Id. at 1204. The Court must delineate its rationale if it refuses leave to amend. Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).

         B. ...