Georgacarakos v. Wiley et al

Filing 883

ORDER FOR SUPPLEMENTAL BRIEFING re: 864 Third Motion for Summary Judgment filed by Defendants Bureau of Prisons, Wiley, Collins, Fenlon, Heim, Madison, and Sudlow. On or before 1/13/2012, Plaintiff and Defendants shall each file a supplemental brief, no longer than eight pages, addressing only the issues identified in this order. By Magistrate Judge Michael E. Hegarty on 12/29/2011. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-01712-RBJ-MEH
PETER GEORGACARAKOS,
Plaintiff,
v.
WILEY, et al.,
Defendants.
_____________________________________________________________________________
ORDER FOR SUPPLEMENTAL BRIEFING
_____________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a Third Motion for Summary Judgment filed by Defendants Bureau of
Prisons, Madison, Heim, Sudlow, Fenlon, Collins and Wiley [docket #864]. It appears that,
according to the District Court, the sole remaining claim in this case arises “as part of the Amended
Complaint’s second claim for relief,” and is raised pursuant to the Fifth Amendment’s provision for
equal protection. See docket #862 at 6-7, 29. Specifically, in a portion of Claim 2 of the Amended
Complaint, the Plaintiff alleges that certain Defendants “falsely classified Plaintiff’s religion,
Paganism, as ‘white supremacy,’ [and] kept him in solitary confinement for years while releasing
similarly-situated prisoners of other religions – all with worse criminal and prison histories – to
regular penitentiaries, based exclusively on his religion.” Amended Complaint, 5a, docket #100.
It also appears from the briefing on the present motion that there is some confusion by the
parties about which claim(s) and/or Defendant(s) remain in the case. For example, the Plaintiff
proffers arguments concerning a “conspiracy,” which pertains to allegations stated in Claim 1 of the
Amended Complaint. Id. at 4a-4b. Likewise, the present motion is brought by certain Defendants

who are identified in Claim 1 of the Amended Complaint, but who are not named in the portion of
Plaintiff’s Claim 2 that apparently remains in this case according to Judge Krieger (hereinafter,
“Claim 2") – Madison, Heim, Sudlow, Fenlon and Collins. See id.1; see also Motion, docket #864.
Rather, for Claim 2, Plaintiff specifically identifies Defendants Wiley, Nalley, Watts, Herschberger,
Pugh, Hood, “8 Unknown Executive Panel Officers,” and the Bureau of Prisons (“BOP”)2 as those
allegedly responsible for the claimed religious discrimination. Amended Complaint, 5a, docket
#100. Defendants are correct that Defendants Nalley and Watts were subsequently dismissed from
this action by the District Court for lack of personal jurisdiction. See September 12, 2008 Order,
docket #284 (also dismissing “8 Unknown Executive Panel Officers”). However, it is unclear
whether Defendants Herschberger, Pugh and Hood were specifically dismissed in the District
Court’s March 30, 2010 order (see Motion, 1 n. 1, docket #864); in fact, the order mentions nothing
about the dismissal of any particular Defendant.3 See March 30, 2010 Order, docket #810.
1

The Court also notes that the Final Pretrial Order, dated July 6, 2009, lists the claims
remaining at that time, including what is characterized as Claim 1.B. under “Elements” and as
Claim 1(a) under “defense” to Plaintiff’s claim for conspiracy to violate Plaintiff’s equal
protection rights. Docket #723 at 2-3. In addition, for Claim 2, the equal protection/religious
discrimination claim is not listed under “Elements,” but it is characterized as Claim 2(a) under
the “defense” to the claim. Id. at 5-6. The Defendants are not individually identified for each
claim listed in the Final Pretrial Order.
2

Although Plaintiff does not mention the BOP specifically in the facts section of Claim 2
in the Amended Complaint, construing the pleading liberally, Plaintiff identifies the
“municipalities,” in his Request for Relief, presumably referring to the BOP. See Amended
Complaint, 11b, docket #100.
3

With the understanding that Claim 2 is the sole remaining claim in this case, this Court
reviewed the extensive 875-docket entry record in an attempt to discover the reason Madison,
Heim, Sudlow, Fenlon and Collins are named as Defendants bringing the present motion for
summary judgment. While the Court found nothing in the record substituting as parties
Herschberger, Pugh and Hood with Madison, Heim, Sudlow, Fenlon and Collins with respect to
Claim 2, the Court found an exhibit created by Defendants in support of their Second Motion for
Summary Judgment that purportedly summarizes Plaintiff’s claims and lists Defendants’ stated
2

Consequently, this Court finds that supplemental briefing by the parties is necessary to
clarify their positions as to two issues: (1) whether the conspiracy claim remains pending in the case;
and (2) which Defendants remain in the case following Judge Krieger’s substantive orders dated
September 12, 2008, March 30, 2010, and March 16, 2011.
Therefore, IT IS ORDERED that on or before January 13, 2012, the Plaintiff and
Defendants shall each file a supplemental brief, no longer than eight pages, addressing only the
issues identified in this order.
Dated this 29th day of December, 2011, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

bases for dismissal of the claims. See docket #645-9. In this exhibit, Defendants list Madison,
Heim, Sudlow, Fenlon and Collins as the defendants allegedly responsible for the allegations
stated in Plaintiff’s Claim 2 as having “falsely classified [Plaintiff’s] religion and therefore his
security level” (id. at 6-7); however, this listing appears to contradict the allegations Plaintiff
makes in his Amended Complaint.
3