Milligan v. Archuleta et al

Filing 59

ORDER. Plaintiff's 56 Objection to Final Judgment is granted. The 54 Order Accepting Magistrate Judge's Recommendation and the 55 Final Judgment are vacated and this case is reopened. The 53 Recommendation of United States Magi strate Judge is accepted in part. It is accepted with respect to plaintiff Michael Milligan's claims under the Fourteenth Amendment. It is not accepted with respect to Mr.Milligan's First Amendment and state law claims. The Court accepts Mr. Milligan's Proposed Third Amended Complaint [Docket No. 58-1] with respect to his First Amendment and state law claims. By Judge Philip A. Brimmer on 5/1/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00250-PAB-KLM
MICHAEL MILLIGAN,
Plaintiff,
v.
LOU ARCHULETA,
CHARLES SANCHEZ,
LANCE MIKLICH, and
KEVIN FURTON,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Objection to Final Judgment [Docket
No. 56], filed on March 5, 2013, and Plaintiff’s Response to Minute Order and
Combined Motion to Vacate Final Judgment and Motion for Leave to Amend Second
Amended Complaint [Docket No. 58] filed on March 27, 2013 by plaintiff Michael
Milligan. The Court is mindful that “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S.
519, 520-21 (1972)). However, the Court cannot act as a pro se litigant’s advocate.
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
I. BACKGROUND
As explained in the Recommendation of the United States Magistrate Judge (the
“Recommendation”), Docket No. 53 at 1-3, this case is based on Mr. Milligan’s

allegations that defendant Lou Archuleta, the Director of Offender Services for the
Colorado Department of Corrections (“CDOC”), violated the Equal Protection Clause of
the Fourteenth Amendment, as well as state laws against defamation, by classifying Mr.
Milligan as an escape risk on the basis of his race. Mr. Milligan is a prisoner currently
incarcerated in the Colorado Territorial Correctional Facility of the CDOC. Mr. Milligan
further alleges that defendants Charles Sanchez, Lance Miklich, and Kevin Furton,
CDOC employees who serve on the facility job board, took away his job and placed him
in a vocational janitorial training program in retaliation for filing a grievance against Mr.
Archuleta. Docket No. 53 at 2-3. In his second amended complaint, Mr. Milligan
sought a declaratory judgment against all defendants and money damages against Mr.
Archuleta. Docket No. 41-1 at 13-14.
On January 30, 2013, United States Magistrate Judge Kristen L. Mix
recommended that the Court grant defendants’ motion to dismiss Mr. Milligan’s second
amended complaint on the basis that (1) the Court lacks subject matter jurisdiction over
Mr. Milligan’s claims for declaratory relief; (2) Mr. Milligan failed to sufficiently allege that
Mr. Archuleta’s decision to reclassify Mr. Milligan as an escape risk lacked a rational
basis or a reasonable relation to a legitimate penological interest; (3) Mr. Milligan failed
to allege that Mr. Archuleta’s reclassification scheme was intended to target Mr. Milligan
on the basis of race; and (4) the Court should not exercise supplemental jurisdiction
over Mr. Milligan’s remaining state law claims. Docket No. 53. On February 20, 2013,
having received no objections to the Recommendation from either party, the Court
reviewed it for clear error and, finding none, adopted it. Docket No. 54. Final judgment
entered against Mr. Milligan the same day. Docket No. 55.
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On March 5, 2013, Mr. Milligan filed objections to the final judgment, asserting
that he did not receive the Recommendation until February 15, 2013, and was deprived
of the requisite fourteen days in which to file a response when the Court ordered the
case dismissed only five days later. Docket No. 56 at 1; see FED . R. CIV. P. 72. Mr.
Milligan further stated that he was “in the process of obtaining a copy of the Offender
Legal Mail Log for the Court to prove when he received the documents from the Court.”
Id. He requested that the Court allow him ten days to provide the logs and that it vacate
its entry of final judgment in the meantime. Id.
On March 6, 2013, the Court issued a minute order construing Mr. Milligan’s
filing as a motion to alter or amend the judgment pursuant to Federal Rule of Civil
Procedure 59. Docket No. 57. The Court granted Mr. Milligan additional time (through
March 26, 2013) to gather evidence in support of his objection to the entry of judgment
and to lodge his objections to the Recommendation. Id.
On March 27, 2013, Mr. Milligan filed a response to the March 6, 2013 minute
order, in which he reasserts his request to alter or amend the judgment on the basis
that he was deprived of the statutory fourteen-day period to object to the magistrate
judge’s Recommendation. Docket No. 58 at 2. In addition, Mr. Milligan moves for leave
to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a) “so that
he can correct those technical errors [identified in the Recommendation] and permit
adjudication on the merits rather than dismissal on technical grounds.” Docket No. 58
at 2. Mr. Milligan has submitted a proposed third amended complaint in conjunction
with this motion. Docket No. 58-1.

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II. DISCUSSION
Mr. Milligan requests that the Court vacate its final judgment and permit plaintiff
to amend his complaint. Docket No. 58 at 2.
“If a party seeks to amend a pleading following the court’s grant of a motion to
dismiss, the party must first move to reopen the case under Fed. R. Civ. P. 59(e) or
60(b) and then file a motion under Fed. R. Civ. P. 15 for leave to amend.” Calderon v.
Kan. Dep’t of Soc. & Rehabilitation Servs., 181 F.3d 1180, 1185 (10th Cir. 1999). “Rule
59(e) allows a party to direct the district court’s attention to newly discovered material
evidence or a manifest error of law or fact, and enables the court to correct its own
errors and thus avoid unnecessary appellate procedures.” Moro v. Shell Oil Co., 91
F.3d 872, 876 (7th Cir. 1996). Such a motion is appropriate in the event of “(1) an
intervening change in the controlling law, (2) new evidence previously unavailable, [or]
(3) the need to correct clear error or prevent manifest injustice,” and may be granted
“where the court has misapprehended the facts, a party’s position, or the controlling
law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). The
decision to grant or deny a Rule 59 motion is committed to the Court’s discretion.
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
Mr. Milligan requests that the Court amend its judgment on the basis that he
received the Recommendation late and was deprived of sufficient time to respond prior
to the Court’s entry of judgment. See Docket No. 56. Taking into account the logistical
challenges inherent in obtaining proof of the time at which the Recommendation
reached Mr. Milligan in prison, and Mr. Milligan’s diligence in prosecuting this case

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throughout the course of the litigation, the Court finds there is no reason not to credit
Mr. Milligan’s assertion regarding the timing of service. Thus, sufficient grounds exist to
grant Mr. Milligan’s motion to set aside the Court’s judgment and consider his response
to the Recommendation. See Servants of the Paraclete, 204 F.3d at 1012.
Mr. Milligan does not offer substantive objections to the Recommendation. See
generally, Docket No. 58. Instead, he seeks leave pursuant to Federal Rule of Civil
Procedure 15(a) to amend his complaint to cure the technical defects motivating the
dismissal of his claims. Docket No. 58 at 2-3.
Under Rule 15(a), a plaintiff may amend his complaint once as a matter of
course, within twenty-one days of serving it or within twenty-one days of a defendant’s
filing of an answer or motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
FED . R. CIV. P. 15(a)(1). In “all other cases,” amendment requires consent of the
opposing party or leave of the court. FED . R. CIV. P. 15(a)(2). “In the absence of any
apparent or declared reason–such as undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.–the leave sought should, as the rules require,
be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962); see also FED . R. CIV. P.
15(a)(2). In the Tenth Circuit, unexplained delay may be sufficient to deny a motion for
leave to amend. Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006).
Prejudice arises when an amendment “unfairly affects the defendants in terms of
preparing their defense to the amendment,” for example, when an amendment would

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add a claim based on entirely different subject matter. Id. at 1208 (internal citations
omitted).
In his proposed third amended complaint, Mr. Milligan does not allege any
additional facts relevant to a determination that the reclassification scheme was
irrational or that Mr. Archuleta impermissibly targeted Mr. Milligan on the basis of race.
Compare Docket No. 58-1 at 4-7 with Docket No. 41-1 at 4-10. Accordingly, it would be
futile to permit Mr. Milligan to amend his complaint with respect to his claim that Mr.
Archuleta violated his rights under the Fourteenth Amendment. See Foman, 371 U.S.
at 182.
Mr. Milligan also seeks to amend the damages section of his complaint to
request punitive damages from defendants Sanchez, Miklich, and Furton. Docket No.
58-1 at 11, ¶ E. As the Court dismissed Mr. Milligan’s claims against these defendants
on the basis that he was seeking only a declaratory judgment over which the Court
lacked jurisdiction, the proposed amendment would cure the noted defect and thus
would not be futile. See Docket No. 53 at 7-10. Furthermore, the Court raised the
issue of subject matter jurisdiction sua sponte, see Docket No. 53 at 3, and thus it is not
the case that Mr. Milligan was made aware of this error, but chose to ignore it for an
unreasonable length of time. See Foman, 371 U.S. at 182. There is no indication that
permitting an amendment at this time would prejudice defendants, since the substance
of Mr. Milligan’s First Amendment claim has not changed and defendants have already
developed relevant substantive arguments. See, e.g., Docket No. 44 at 9-12; Minter,
451 F.3d at 1206. Finally, all the evidence suggests that the proposed amendment is a

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good faith attempt to correct a technical error of which Mr. Milligan, a pro se plaintiff,
was not previously aware. Accordingly, the Court finds no reason to deny Mr. Milligan’s
motion to amend his complaint with respect to his First Amendment claim.1
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Objection to Final Judgment [Docket No. 56] is
GRANTED. It is further
ORDERED that the Order Accepting Magistrate Judge’s Recommendation
[Docket No. 54] and the Final Judgment [Docket No. 55] are VACATED and this case is
reopened. It is further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 53] is ACCEPTED in part. It is accepted with respect to plaintiff Michael Milligan’s
claims under the Fourteenth Amendment. It is not accepted with respect to Mr.
Milligan’s First Amendment and state law claims. It is further
ORDERED that the Court accepts Mr. Milligan’s Proposed Third Amended
Complaint [Docket No. 58-1] with respect to his First Amendment and state law claims.

DATED May 1, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

1

As the Court is not dismissing all claims over which it has original jurisdiction, it
will continue to exercise supplemental jurisdiction over Mr. Milligan’s state law claims.
See 28 U.S.C. § 1367(c)(3).
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