Gibson v. Campbell et al

Filing 328

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 293 is AFFIRMED AND ADOPTED. Plaintiff's Objections to the Recommendation 302 are OVERRULED. ORDERED that Plaintiffs "Request Permission to File Supplemental Plea ding for Retaliation by DOC" 289 is DENIED. ORDERED that Plaintiff's "Request for a Court Order to Prevent Force Feeding of Plaintiff" 290 is DENIED. ORDERED that Plaintiff's "Request for Court Order to Receive ADA Exam" 291 is DENIED. ORDERED that the Order and Recommendation of United States Magistrate Judge 300 is AFFIRMED AND ADOPTED. Plaintiff's Objection to the Recommendation 313 is OVERRULED. Plaintiff's earlier Objection 303 is OV ERRULED AS MOOT. ORDERED that Defendants' Motion for Summary Judgment 236 is GRANTED IN PART AND DENIED IN PART. ORDERED that Plaintiffs Motion for Summary Judgement [sic] 245 is DENIED. ORDERED that Plaintiffs "Request to Ammend [sic] Complaint" 279 is DENIED by Chief Judge Wiley Y. Daniel on 08/08/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-00983-WYD-KLM
WELLMAN E. GIBSON,
Plaintiff,
v.
ANNA MARIE CAMPBELL,
C. HOLST, AIC,
SHIRLEY STEINBECK,
MARSHALL GRIFFITH,
LT. STEINBECK, and
DOCTOR ASSEN,
Defendants.

ORDER

I.

INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment

filed November 15, 2011, and Plaintiff’s Motion for Summary Judgment filed November
18, 2011. These motions were referred to Magistrate Judge Mix for a recommendation
by Order of Reference dated November 25, 2009 and Memoranda dated November 15,
2011 and November 18, 2012. An Order and Recommendation of United States
Magistrate Judge was issued on May 14, 2012, that is incorporated by reference. See
28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).1

1

An Order and Recommendation of United States Magistrate Judge was previously issued on May
11, 2012 (ECF No. 297), but was vacated and restricted at Level 3 by Minute Order of May 14, 2012 (ECF
No. 299). The Objection as to that Order and Recommendation (ECF No. 303) is overruled as moot.

Also before the Court is a Recommendation of United States Magistrate Judge
filed on May 3, 2012, which addresses several motions filed by Plaintiff. I first address
the May 3 Recommendation.
II.

ANALYSIS
A.

May 3, 2012 Recommendation

The May 3, 2012 Recommendation addresses Plaintiff’s “Request Permission to
File Supplemental Pleading for Retaliation by DOC” [ECF No. 289 filed May 1, 2012];
Plaintiff’s “Request for a Court Order to Prevent Force Feeding of Plaintiff” [ECF No.
290 filed May 1, 2012]; and Plaintiff’s “Request for Court Order to Receive ADA Exam”
[ECF No. 291 filed May 1, 2012]. Magistrate Judge Mix recommends therein that the
three motions be denied.
More specifically, Magistrate Judge Mix construes Plaintiff’s “Request Permission
to File Supplemental Pleading for Retaliation by DOC” as seeking permission to add
unknown parties and two officials from the Colorado Department of Corrections
[“CDOC”] to this action. (Recommendation at 1, ECF No. 293.) She recommends that
the motion be denied because Plaintiff does not provide underlying factual support for
his request, and because justice does not support permitting such additions at this late
stage of the litigation under Rule 15(d). (Id. at 1-2.) Magistrate Judge Mix also notes
that denial of this motion “should not preclude Plaintiff’s ability to file a new action
raising a retaliation claim, provided that he has exhausted his administrative remedies
as relating to that claim.” (Id. at 2.)
Regarding Plaintiff’s “Request for a Court Order to Prevent Force Feeding of
Plaintiff”, the Recommendation notes that Plaintiff asks the Court to enter an order “to
-2-

prevent [the CDOC] from force feeding him.” (Recommendation at 2.) Magistrate
Judge Mix construed this as a request for injunctive relief, and noted that this request
for relief is unrelated to the issues presented in Plaintiff’s Amended Complaint. (Id.)
Since Plaintiff did not establish a relationship between the claimed injury and the
request asserted in the complaint, Magistrate Judge Mix recommends that this motion
also be denied. (Id.)
Magistrate Judge Mix also construed Plaintiff’s “Request for Court Order to
Receive ADA Exam”, which does relate to the allegations in the Amended Complaint, as
a request for injunctive relief. (Recommendation at 2.) She recommended that the
motion be denied because “Plaintiff fails to make a showing of irreparable harm “(and
generally fails to adequately support his request with any factual allegations
whatsoever).” (Id. at 3.)
On May 21, 2012, Plaintiff filed a timely objection. He first asserts that the
“Request Permission to File Supplemental Pleading for Retaliation by DOC” does not
exist. That is not accurate, as a filing by Plaintiff with this title in the caption is docketed
as ECF No. 289, and seeks permission to add parties in connection with alleged
retaliation. It now appears that Plaintiff is not seeking to pursue such claims. In any
event, I find that the Recommendation as to this motion should be affirmed as I agree
with Magistrate Judge Mix that the motion does not provide underlying factual support
for his request and because the request is untimely under Fed. R. Civ. P. 15(d).
Plaintiff states instead that he is seeking to add mental disability to his ADA claim
as well as adding two defendants, Dr. Tiona and Debbie MacLeod. He asserts that he
filed a supplemental pleading to add this claim and these new defendants. It appears
-3-

that the motion he is referring to his Plaintiff’s Request to Amend Complaint. I
address that motion below in connection with the May 14, 2012 Order and
Recommendation.
Plaintiff also objects to Magistrate Judge Mix’s denial of his “Request for a Court
Order to Prevent Force Feeding of Plaintiff” and his “Request for Court Order to Receive
ADA Exam”, but provides no basis to refute the Recommendation’s finding that these
motions request injunctive relief that is not warranted in the case. Finally, I find no merit
to Plaintiff’s argument that Magistrate Judge Mix has been “blatantly partial” and
“biased” in her rulings (Objection, ECF No. 302 at 3-4), or to any other arguments made
by Plaintiff in his Objection.
Based on the foregoing, Plaintiff’s Objections to the May 3 Recommendation are
overruled. The Recommendation of May 3, 2012, is affirmed and adopted in its entirety.
B.

May 14, 2012 Order and Recommendation

I now turn to the May 14 Order and Recommendation. Magistrate Mix
recommends therein that Defendants’ Motion for Summary Judgment be granted in part
and denied in part and Plaintiff’s Motion for Summary Judgment be denied.
Specifically, it is recommended that the cross motions for summary judgment be
denied as to the portions of Claims One and Two asserting an Americans with
Disabilities Act [“ADA”] claim involving Plaintiff’s upper extremities. (Order and
Recommendation, ECF No. 300, at 17-23, 29.) She recommends that summary
judgment be granted in favor of Defendants on the portion of Claims One and Two
asserting a conspiracy claim (id. at 23-24, 29) stating, “[i]n the absence of evidence
indicating agreement and concerted action among the Defendants, the Court
-4-

recommends finding that no genuine issue of material fact exists as to Plaintiff’s
conspiracy claim. . . .” (Id. at 24.) It is also recommended that summary judgment be
granted as to Plaintiff’s third claim asserting a violation of his First Amendment right to
freely exercise his religion, finding no genuine issue of material fact exists as to this
claim. (Id. at 24-26, 29.)
As to Plaintiff’s request to amend the complaint, Magistrate Judge Mix
recommends that it be denied. She finds that the motion “is untimely, prejudicial, and
futile.” (Recommendation at 26-29.) The Recommendation notes that this case has
been pending for three years, and that the addition of two new defendants would
prejudice Defendants and “would have minimal, if any, effect on the relief sought by
Plaintiff. . . .” (Id. at 27.) Magistrate Judge Mix also finds that the amendment would be
futile as Plaintiff failed to exhaust his administrative remedies under the Prison Litigation
Reform Act [“PLRA”]. (Id. at 27-28.)
On May 31, 2012, Plaintiff filed an objection to this Recommendation. He first
objects to the standard used in the Recommendation as to the ADA, stating that it is
inconsistent with the ADA Amendments Act of 2008. He argues that if the correct
standard is used, Plaintiff would be entitled to summary judgment on all aspects of the
complaint, including the conspiracy and First Amendment claims. I reject his argument.
Since it is recommended that summary judgment be denied as to the ADA claim in favor
of Plaintiff, his objections obviously does not impact that ruling. Further, I fail to see
how application of the ADA amendments impact in any way Plaintiff’s claims for
conspiracy or alleged violations of the First Amendment Free Exercise of Religion.

-5-

Plaintiff also objects to the ruling as to his First Amendment claim, arguing that
Defendants contacted his religious source after taking material that he had a valid
medical permit to have. Plaintiff’s objection fails to acknowledge or address the basis of
the recommendation to grant summary judgment as to this claim. Magistrate Judge Mix
found there is no evidence “that Plaintiff has been prohibited from freely exercising his
religion; Defendants simply are not facilitating Plaintiff’s religious practice by permitting
him to maintain an audio book player in his cell.” (Recommendation at 26.) She notes
that Plaintiff is still free to use audio book players in the library, and presumably may
keep religious texts in his cell. (Id.) I agree with Magistrate Judge Mix that Plaintiff has
not shown that Defendants are prohibiting him from freely exercising his religion, and
find that no genuine issues of material fact exist as to Plaintiff’s third claim asserting a
violation of his First Amendment right to freely exercise his religion.
Plaintiff also asserts in the Objection that the Court never addressed his request
to add a mental disability. That is incorrect, as this was ruled on in connection with
Magistrate Judge Mix’s recommendation to deny Plaintiff’s motion to amend the
complaint. Plaintiff fails to make any arguments to refute Magistrate Judge Mix’s
findings that the amendment to the complaint is untimely and would also be futile
because Plaintiff failed to comply with the exhaustion requirements of the PLRA. While
Plaintiff refers to the continuing violation doctrine, the claim he seeks to add in the
amended complaint related to a mental disability is new and arose after the filing of the
lawsuit. Accordingly, it is barred by 42 U.S.C. § 1997e. Moreover, even if the
continuing violation doctrine were applicable to allow Plaintiff to overcome the
exhaustion requirements of the PLRA, it does not impact the untimeliness of Plaintiff’s
-6-

motion to amend. Accordingly, the recommendation to deny Plaintiff leave to amend
the complaint is also affirmed.
Plaintiff also makes numerous other objections, including objections to many of
the findings of fact made by Magistrate Judge Mix. I have reviewed all the objections
and find no merit to them. Plaintiff has not shown any valid reason why the Order and
Recommendation of May 14, 2012, should be overturned.
III.

CONCLUSION
Based upon the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge filed

May 3, 2012 (ECF No. 293) is AFFIRMED AND ADOPTED. Plaintiff’s Objections to the
Recommendation (ECF No. 302) are OVERRULED. In accordance with the
Recommendation, it is
ORDERED that Plaintiff’s “Request Permission to File Supplemental Pleading for
Retaliation by DOC” (ECF No. 289 filed May 1, 2012) is DENIED. It is
FURTHER ORDERED that Plaintiff’s “Request for a Court Order to Prevent
Force Feeding of Plaintiff” (ECF No. 290 filed May 1, 2012) is DENIED. It is
FURTHER ORDERED that Plaintiff’s “Request for Court Order to Receive ADA
Exam” (ECF No. 291 filed May 1, 2012) is DENIED. It is
FURTHER ORDERED that the Order and Recommendation of United States
Magistrate Judge filed May 14, 2012 (ECF No. 300) is AFFIRMED AND ADOPTED.
Plaintiff’s Objection to the Recommendation (ECF No. 313 filed May 13, 2012) is
OVERRULED. Plaintiff’s earlier Objection (ECF No. 303 filed May 21, 2012) is

-7-

OVERRULED AS MOOT. In accordance with the Order and Recommendation of May
14, 2012, it is
ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 236) is
GRANTED IN PART AND DENIED IN PART. Summary judgment shall enter in favor
of Defendants on the portion of Plaintiff’s Claims One and Two asserting a conspiracy
claim, and on Claim Three asserting a free exercise claim. Summary judgment is
denied on the portions of Plaintiff’s Claims One and Two brought pursuant to the ADA.
It is
FURTHER ORDERED that Plaintiff’s Motion for Summary Judgement [sic] (ECF
No. 245] is DENIED. Finally, it is
ORDERED that Plaintiff’s “Request to Ammend [sic] Complaint” (ECF No. 279) is
DENIED.
Dated: August 8, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

-8-