United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
ROBERT CHARLES HUSS, Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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.
BACKGROUND & PROCEDURAL HISTORY
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).
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.
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.
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.
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.
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.
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.
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
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
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. 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].
STANDARDS OF REVIEW
Motion for Leave to Amend Complaint
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.