Vigil v. Jones et al

Filing 98

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 80 is ACCEPTED. Further ORDERED that plaintiff's motion to amend 78 is DENIED, by Judge Philip A. Brimmer on 10/18/11.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-01676-PAB-KLM
FRANK VIGIL, JR.,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS (C.D.O.C.),
Defendant.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 80] filed on May 11, 2011. The
magistrate judge recommends that the Court deny plaintiff’s motion to amend his
complaint [Docket No. 78]. Plaintiff filed timely objections [Docket No. 85] to the
Recommendation. The Court, therefore, will “determine de novo any part of the
magistrate judge’s disposition that has been properly objected to,” Fed. R. Civ. P.
72(b)(3), and, when doing so, will review plaintiff’s filings liberally in light of his pro se
status. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
On September 13, 2010, the Court, inter alia, dismissed with prejudice plaintiff’s
claims against defendant Colorado Department of Corrections (“CDOC”) and other
defendants in their official capacities for money damages for lack of subject matter
jurisdiction. See Docket No. 57 at 9. However, on April 20, 2011, the Court vacated
that portion of the September 13 Order and ordered that plaintiff’s claims against the

CDOC and the other defendants in their official capacities for money damages be
dismissed without prejudice. See Docket No. 76 at 3; see also Garman v. Campbell
County School Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010) (“Generally, a dismissal
for lack of subject matter jurisdiction is without prejudice and does not have a preclusive
effect.”).
In his motion to amend the complaint, plaintiff seeks to make only one
amendment, namely, to reassert claims against former defendants Susan J. Jones and
M.N. McCormick in their official capacities for money damages. See Docket No. 78 at
2; see also Docket No. 85 at 2. The Eleventh Amendment bars the Court from
exercising subject matter jurisdiction over claims for retroactive money damages
against defendants in their official capacities. See Henderson v. Jones, 378 F. App’x
808, 809 (10th Cir. 2010); see also Fent v. Okla. Water Res. Bd., 235 F.3d 553, 558-59
(10th Cir. 2000).1 “Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be
given freely, the district court may deny leave to amend where amendment would be

1

Plaintiff alleged violations of the First Amendment, the Equal Protection Clause
of the Fourteenth Amendment, and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5. “Several circuit courts have
held, under the principles of sovereign (Eleventh Amendment) immunity, that money
damages are not available for official-capacity RLUIPA claims.” Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1311-12 (10th Cir. 2010) (citations omitted). “Although the
Tenth Circuit did not decide [in Abdulhaseeb] the issue of Eleventh Amendment
immunity from money damages for official-capacity RLUIPA claims, District Courts from
this Circuit have concluded that the States are immune from claims for monetary
damages under RLUIPA.” Palecek v. Zavaras, No. 09-cv-01351-ZLW-CBS, 2010 WL
3307489, at *7 (D. Colo. July 1, 2010) (citations omitted); cf. Jotunbane v. Sedillo, 2010
WL 1781922, at *4 (D.N.M. April 20, 2010) (concluding that the “RLUIPA does not
transform a state’s acceptance of federal prison funding into a waiver of its
Eleventh-Amendment immunity from suits for money damages.”).
2

futile.” See Jefferson County Sch. Dist. v. Moody’s Investor’s Services, 175 F.3d 848,
859 (10th Cir. 1999). Because plaintiff’s proposed amendment would be futile, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 80] is ACCEPTED. It is further
ORDERED that plaintiff’s motion to amend [Docket No. 78] is DENIED.

DATED October 18, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

3