Rocha v. Zavaras et al

Filing 78

ORDER denying 67 Plaintiffs Motion to Amend Judgement, and Plaintiffs Amendment to Complaint 76 is STRICKEN as being an unauthorized filing; and In light of this Courts Order 55 dismissing claims against all Defendants except Defendant Twilleger, the caption on all subsequent filings shall be set forth as indicated in the caption to this Order. by Judge Christine M. Arguello on 6/3/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-00357-CMA-MEH
MARCO A. ROCHA,
Plaintiff,
v.
S. TWILLEGER, in an individual capacity,
Defendant.

ORDER DENYING MOTION TO AMEND JUDGMENT

This matter is before the Court on Plaintiff’s Motion to Amend Judgment Doc.
# 67), filed on April 11, 2011. For the following reasons, the Motion is denied.
On March 29, 2011, the Court adopted and affirmed the February 23, 2011
Report and Recommendation issued by Magistrate Judge Michael E. Hegarty. In that
Order, the Court granted in part and denied in part Defendants’ Motion to Dismiss. All
claims against all Defendants, except for Plaintiff’s First Amendment claim of retaliation
against Defendant Twilleger, were dismissed with prejudice. (Doc. # 55.) Plaintiff’s
instant motion requests that the Court amend its judgment to correct alleged “errors of
injustice.” (Doc. # 67.)
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment

pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir.1991). A motion to alter or amend the judgment must be filed within twentyeight days after the judgment is entered. Fed. R. Civ. P. 59(e). The Court will consider
Plaintiff’s Motion to Reconsider pursuant to Rule 59(e) because it was filed within
twenty-eight days after the Court’s Order was issued on March 29, 2011.
The three major grounds that justify reconsideration are (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
Plaintiff argues that reconsideration is justified in order to correct clear error or
prevent manifest injustice. Plaintiff does not assert that there has been an intervening
change in controlling law or that new evidence has become available. In large part,
Plaintiff’s Motion rehashes objections he made to the Magistrate Judge’s Report and
Recommendation. This Court has already considered those objections and found them
to lack merit. Thus, the Court will not address Plaintiff’s Motion as it pertains to whether
the alleged confiscation of property violated the First or Fourth Amendments, or whether
Defendants’ alleged deprivation of warm clothing stated an objectively plausible Eighth

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Amendment violation.1 However, Plaintiff has made some additional arguments
pertaining to his claims against Defendants Zavaras, DeCesaro, and Leyba that warrant
discussion.
Plaintiff contends that the Court erroneously construed his claims against
Defendants Zavaras, DeCesaro and Leyba as being brought under a supervisory or
vicarious liability theory. Instead, Plaintiff asserts that his claims against these
defendants were brought under the “special relationship doctrine.” (Doc. # 67 at 2.)
The special relationship doctrine is an exception to the rule that state actors are
liable under the Due Process Clause only for their own acts and not for private violence.
See Martinez v. Uphoff, 265 F.3d 1130, 1133 (10th Cir. 2001). The doctrine applies
“when the state assumes such control over an individual that an affirmative duty is
undertaken to protect that person from danger.” Id. at 1133, n.3. “Examples of such
control include a person who is a prisoner . . ..” Id. However, the assertion of the
“special relationship doctrine” in a § 1983 action does not relieve a prisoner from
needing to allege personal involvement. See Kitzman-Kelley v. Warner, 203 F.3d 454,
458 (7th Cir. 2000). “Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d

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Plaintiff argues that Defendant Twilleger deprived him of warm clothing as retaliation
on his attempt to exercise First Amendment rights. The Court found that Plaintiff had plausibly
plead a First Amendment retaliation claim against Defendant Twilleger. However, the fact that
Plaintiff plead an actionable First Amendment claim does not mean that his Eighth Amendment
rights were violated.

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1063, 1069 (10th Cir. 2009) (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997).
Supervisors are only liable under § 1983 for the constitutional violations that they
cause. Dodds v. Richardson, 614 F.3d 1185, 1213 (10th Cir. 2010). Several theories of
liability are possible. A supervisor may be held liable for directly ordering a subordinate
to violate a plaintiff’s rights, by having actually knowledge of past constitutional
violations being carried out by a subordinate, or by showing deliberate indifference, i.e.,
some sort of supervisory shortcoming such as the failure to train or the failure to
supervise. See id. at 1212. Regardless of what theory is asserted for supervisory
liability, a supervisor “is only liable for his or her own misconduct.” Id. (quoting Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). Plaintiff’s assertion of the special relationship
doctrine does not change the fact that Plaintiff did not plead sufficient facts to
adequately allege personal participation on behalf of Defendants Zavaras, DeCesaro,
and Leyba sufficient to support his § 1983 action against them.2

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Plaintiff also contends that dismissal with prejudice was inappropriate. Plaintiff notes
that his First Amendment retaliation claim against Defendant Twilleger was not barred by the
applicable statute of limitations. Plaintiff contends that Defendant Twilleger’s alleged retaliation
“implicitly encompassed the participation” from other defendants. Thus, Plaintiff argues that
claims against those other defendants should not be barred by the statute of limitations. In its
Order Adopting the Magistrate Judge’s Report and Recommendation, the Court considered
Plaintiff’s § 1985(3) conspiracy claim and found that Plaintiff failed to provide any support for
his conclusory allegations that Defendants conspired against him. Because Plaintiff has not
successfully plead a conspiracy, the majority of his claims are barred by the statute of
limitations. The remaining claims that are not barred by the statute of limitations do not
involve facts that rise to the level of constitutional violations.

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Accordingly, it is ORDERED that:
1)

Plaintiff’s Motion to Amend Judgement (Doc. # 67) is DENIED;

2)

Plaintiff’s Amendment to Complaint (Doc. # 76) is STRICKEN as being

an unauthorized filing; and
3)

In light of this Court’s Order (Doc. # 55) dismissing claims against all

Defendants except Defendant Twilleger, the caption on all subsequent filings shall be
set forth as indicated in the caption to this Order.
DATED: June

03

, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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