Handy v. Diggins et al

Filing 57

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge datedMarch 23, 2011, is AFFIRMED AND ADOPTED. ORDERED that Defendants Motion to Dismiss or, in the Alter native, Motion for Summary Judgment 23 is GRANTED IN PART AND DENIED IN PART as set forth in this Order. ORDERED that Plaintiffs Motion to Amend the Complaint 39 is GRANTED IN PART AND DENIED IN PART as set forth in this Order. ORDERED that Plain tiffs Motion to Amend the Complaint 47 is GRANTED IN PART AND DENIED IN PART. ORDERED that Plaintiffs Motion to Amend the Complaint 47 is GRANTED IN PART AND DENIED IN PART as set forth in this Order by Chief Judge Wiley Y. Daniel on 05/06/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02022-WYD-KMT
WYATT T. HANDY, JR.,
Plaintiff,
v.
CHIEF DIGGINS;
MAJOR V. CONNORS; and
CHAPLAIN SCOTT,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with several motions:
“Defendants’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment”
filed November 15, 2010, “Plaintiff’s Motion to Amend the Complaint” filed January 14,
2011, and “Plaintiff’s Motion to Amend Complaint filed February 25, 2011. The motions
were referred to Magistrate Judge Tafoya for a recommendation. A Recommendation
of United States Magistrate Judge was issued on March 23, 2011, and is incorporated
herein by reference.
By way of background, this is a prisoner civil rights suit alleging that Defendants
violated the Religious Land Use and Institutionalized Persons Act [“RLUIPA”] and the
First and Fourteenth Amendments by refusing to provide Plaintiff, a Muslim, with a
kosher diet in accordance with his religious beliefs. As noted in the Recommendation,

Defendants moved to dismiss on the grounds that the Prison Litigation Reform Act
[“PLRA”] bars an inmate from bringing an action for mental or emotional damages
absent a showing of physical injury, and that Plaintiff failed to allege facts showing that
Defendant Diggins personally participated in the alleged violation. (Recommendation at
5) (citing Mot. Dismiss at 4-7.) Plaintiff then moved to amend the complaint to clarify his
physical injury and Diggins’ personal involvement as well as to clarify his RLUIPA claim,
his Free Exercise and Equal Protection claims, and his request for relief. (Id.) Plaintiff
then filed another motion to amend to add that he is suing Defendants under RLUIPA in
both their official and individual capacities, and to add a Due Process claim under the
Fourteenth Amendment. (Id. at 5-6.)
Magistrate Judge Tafoya recommends that Defendant’s motion, which she treats
as a motion to dismiss under Rule 12(b)(6), be granted in part and denied in part. She
first notes that the PLRA bars recovery of mental or emotional injury damages absent
an allegation of physical injury. (Recommendation at 10.) She then finds that the
claims for compensatory damages are barred because Plaintiff “fails to allege any
physical manifestation-even a de minimus injury—relating to his body or harm caused to
his body by Defendants’ actions.” (Id. at 11.) Moreover, she finds that Plaintiff’s
proposed amendment to the complaint to clarify his physical injury would be futile. (Id.
at 11.) However, she finds that Plaintiff’s claim for punitive damages survives. (Id.)
Magistrate Judge Tafoya then addressed Defendants’ argument that Plaintiff did
not allege personal participation on the part of Defendant Diggins. She found that
“Plaintiff has alleged facts to suggest that Chief Diggins was aware of a potential
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constitutional violation, and that he failed to respond to Plaintiff’s grievances or
intervene on Plaintiff’s behalf.” (Recommendation at 13.) The Recommendation then
addressed “whether knowledge of alleged misconduct, approval of it, acquiescence in it,
or failure to stop it, amounts to the personal participation necessary to state a claim
against a supervisor since the Supreme Court’s decision in Ashcroft v. Iqbal.” (Id.)
Magistrate Judge Tafoya found that courts still have not determined this issue, and that
there is a lack of clarity in the law. (Id. at 15.) Given that lack of clarity, she concluded
that Plaintiff has alleged sufficient facts to suggest personal participation on the part of
Chief Diggins, and recommends that the motion to dismiss the claims against Diggins
be denied. (Id.)
Finally, Magistrate Judge Tafoya addressed Plaintiffs’ motions to amend, finding
that they also should be granted in part and denied in part. Specifically, she found,
given the recommendation that Defendants’ motion to dismiss for failure to allege
personal participation be denied, that no prejudice will incur to Defendants in allowing
Plaintiff to amend his complaint to include additional allegations of personal participation
on the part of Diggins. (Recommendation at 18.) Further, she found no evidence of
undue delay, bad faith or dilatory motive or previous failure to cure deficiencies on the
part of Plaintiff. (Id.) Accordingly, she recommends that Plaintiff’s motion to amend be
granted with regard to the proposed additional allegations of personal participation. (Id.)
Magistrate Judge Tafoya also recommends that Plaintiff be allowed to amend the
substance of his RLUIPA claim and his Free Exercise and Equal Protection Claims,
except as to the claims for declaratory or injunctive relief or as otherwise discussed
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below. (Id. at 22-23.) Finally, as to Plaintiff’s second motion to amend, it is
recommended that Plaintiff be allowed to amend his RLUIPA claim to clarify that he is
suing Defendants in both their individual and official capacities, and to add a Fourteenth
Amendment Due Process claim for punitive damages. (Id. 24-25.)
In contrast, Magistrate Judge Tafoya finds that Plaintiff’s attempts to amend the
complaint to clarify his physical injury are futile because the proposed amendments do
not allege a physical injury separate from his mental and emotional injuries, as required.
(Recommendation at 18-19.) She also finds that Plaintiff’s attempt to amend his
request for relief to add a declaratory judgment claim and injunctive relief is also futile.
(Id. at 19.) She find that those claims are moot as Plaintiff is no longer incarcerated at
Denver County Jail. (Id. at 20.) Magistrate Judge Tafoya also finds that Plaintiff’s
proposed Free Exercise and Equal Protection Claims against Defendants in their official
capacity are barred by the Eleventh Amendment. (Id. at 22-23.) Finally, she
recommends that while Plaintiff can amend his complaint to add a Due Process claim,
his request for declaratory and injunctive relief and compensatory damages and his
attempt to sue Defendants in their official capacity in connection with this claim are
futile. (Id. 25.) Thus, it is recommended that the motions to amend be denied as to
these issues.
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of the Recommendation, and that the objections
must be timely and specific in order to preserve an issue for de novo review.

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(Recommendation at 27.) Despite this advisement, no objections were filed by any
party to the Magistrate Judge's Recommendation.
No objections having been filed, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate's factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings”). Nonetheless, though not required to do
so, I review the Recommendation to "satisfy [my]self that there is no clear error on the
face of the record."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes. Having
reviewed the Recommendation, I am satisfied that there is no clear error on the face of
the record. I agree with Magistrate Judge Tafoya’s well reasoned analysis as to the
pending motions. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
March 23, 2011, is AFFIRMED AND ADOPTED. In accordance therewith, it is
ORDERED that Defendants’ Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment” (ECF No. 23) is GRANTED IN PART AND DENIED IN PART.
Specifically, it is GRANTED as to Plaintiff’s claims for compensatory damages and
DENIED in all other respects. It is

1

Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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FURTHER ORDERED that Plaintiff’s Motion to Amend the Complaint (ECF No.
39) is GRANTED IN PART AND DENIED IN PART. It is DENIED insofar as Plaintiff
seeks to bring official capacity claims against Defendants for Free Exercise and Equal
Protection violations and with respect to his request for injunctive and declaratory relief
and GRANTED in all other respects. It is
FURTHER ORDERED that Plaintiff’s Motion to Amend the Complaint (ECF No.
47) is GRANTED IN PART AND DENIED IN PART. It is GRANTED to allow Plaintiff to
add a claim under RLUIPA against Defendants in their individual capacities and to add a
Due Process claim seeking punitive damages. It is DENIED insofar as Plaintiff seeks to
sue Defendants in their official capacities for the alleged Due Process violation and with
respect to his request for injunctive and declaratory relief and compensatory damages
for the alleged Due Process violation. Finally, it is
ORDERED that the Second Amended Prisoner Complaint (ECF No. 53) is
ACCEPTED as filed with the following exceptions: Plaintiff’s claims for declaratory and
injunctive relief and Plaintiff’s official-capacities claims against Defendants for Free
Exercise, Equal Protection and Due Process violations are not accepted.
Dated: May 6, 2011
BY THE COURT:

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

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