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Johnson v. Barnes

United States District Court, D. Colorado

November 12, 2019



          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court pursuant to an array of motions filed by Mr. Johnson pro se.[1] The specific motions at issue will be enumerated below.


         Mr. Johnson is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”). At all pertinent times, Mr. Johnson was housed at CDOC's Denver Reception and Diagnostic Center (“DRDC”). According to Mr. Johnson's Third Amended Complaint (# 55), which is the current operative pleading, on September 16, 2017, Mr. Johnson issued a “kite” - a written grievance or request - asking that DRDC staff provide him with a kufi, prayer rug, and copy of the Qur'an, so as to facilitate Mr. Johnson's practice of his Muslim religion. Sgt. Barnes responded to Mr. Johnson's request, stating that “we don't have those kinds of books at this facility.” The following week, Mr. Johnson spoke to a chaplain, Defendant Love. Mr. Johnson repeated his request for Islamic religious materials, and Chaplain Love responded that “Islam is not something that is practiced at [DRDC] because it is of the devil.” Mr. Johnson then repeated his request to Sgt. Barnes, noting that DRDC had an abundance of bibles but apparently no copies of the Qur'an. Sgt. Barnes suggested that Mr. Johnson “read the bible, they're the same.” Mr. Johnson objected to that instruction, and Sgt. Barnes responded “We don't do Islam at DRDC. Either you read the bible or go to the hole for facility disruption.”

         On September 26, 2017, Mr. Johnson asked Defendant C.O. John Doe, a corrections officer, how he could obtain a Qur'an. C.O. Doe responded similarly to Sgt. Barnes, suggesting that Mr. Johnson “just read the bible, they're the same anyway.” C.O. Doe then offered to locate a copy of the Qur'an for Mr. Johnson, but never did.

         On September 30, 2017, Mr. Johnson requested that he be added to the list of inmates requesting to use the unit's telephone. A fellow inmate named Stetson Bustos responded that “Muslims can't use the phone.” Mr. Bustos also told Mr. Johnson that “if you continue harassing DRDC filing grievances, I'll kill you.” Mr. Johnson and Mr. Bustos then had a physical altercation, which was broken up by DRDC staff using mace. Mr. Johnson was taken to segregation and DRDC staff confiscated his medically-issued boot. Mr. Johnson alleges that staff confiscated the boot as “retaliation because [Mr. Johnson] did not lose the fight as the defendants expected.” (The boot was returned to Mr. Johnson by another DRDC staffer about two weeks later.)

         On October 1, 2017, Mr. Johnson was in a segregation cell, drafting legal papers for a lawsuit. Lt. Wence told Mr. Johnson to “cut it out” and stop working on the legal papers. The following day, Lt. Wence became angry that Mr. Johnson was continuing his legal work and stated that “I thought I told you to stop yesterday.” Lt. Wence repeated that “we don't do Islam at DRDC” and stated that, if Mr. Johnson continued, “I will send another inmate at you just like [Mr. Bustos].”

         Construed liberally in Mr. Johnson's favor, his Third Amended Complaint asserts two claims, both under 42 U.S.C. § 1983: (i) a claim that each of the Defendants violated Mr. Johnson's First Amendment right to the Free Exercise of religion by depriving him of religious materials; and (ii) that Lt. Wence retaliated against Mr. Johnson for engaging in speech protected by the First Amendment - namely, drafting legal papers - by threatening Mr. Johnson with violence.

         Mr. Johnson is a prolific filer of motions, and there are roughly a dozen motions by Mr. Johnson pending before the Court, although many of these motions seek similar categories of relief. First, Mr. Johnson has failed several motions (# 73, 90, 97, 111, 127)[2] that seek to amend his pleadings in various respects. Second, several of Mr. Johnson's motions request appointment of counsel (# 74, 81, 127) or court orders to facilitate his pursuit of this litigation in other respects (# 77) (requesting the Court order CDOC to allow him to retain additional legal materials), (# 78) (requesting a typewriter); (# 113) (requesting Court-appointed expert witness to assist him). A third category of motions (# 102, 103, 125) appear to request that Mr. Johnson be provided with copies of previously-served orders issued in this case. The Court addresses each category, and the remaining uncategorized motions, in turn.


         A. Motions to Amend

         Fed. R. Civ. P. 15(a) (2) provides that leave to amend a pleading should be “freely give[n] when justice so requires.” Rule 15(d) permits the Court, “on just terms, ” to allow a party to file a supplemental pleading that “set[s] out any transaction, occurrence or event that happened after the date of the pleading to be supplemented.” Although leave under Rule 15 should be freely granted, the Court may deny such requests where the proposed amendment or supplementation is the result of undue delay, bad faith, a dilatory motive, where it would cause prejudice to the opposing party if granted, or where previous efforts to amend failed to cure deficiencies. Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018). Moreover, motions to amend are also governed by D.C. Colo. L. Civ. R. 15.1(b), which requires that any motion seeking lead to amend shall attach a copy of the proposed amended pleading. Although Ms. Ryan proceeds pro se, she is obligated to follow the rules of the Court to the same extent as any represented litigant. U.S. v. Griffith, 928 F.3d 855, 864 n. 1 (10th Cir. 2019).

         Mr. Johnson's motions seeking to amend or supplement his pleadings are set forth and disposed of as follows:

         Docket # 73: A motion requesting leave to file both an amended and supplemental complaint, purportedly to add additional claims arising under the 8th Amendment, as well as “adding more Defendants.” No. proposed document is ...

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