McIntosh v. Lappin et al

Filing 142

ORDER. Plaintiff's 140 motion to file objections out of time is granted. The 132 Recommendation of Magistrate Judge Regarding Pending Motions to Dismiss is accepted in part. The 66 motion to dismiss filed by the defendants in their off icial capacities is granted and the 105 motion to dismiss filed by defendants in their individual capacities is granted in part and denied in part. Plaintiff's 136 motion to amend his complaint is denied. Plaintiff's complaint is dismissed without prejudice and this case is closed in its entirety. By Judge Philip A. Brimmer on 9/26/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01150-PAB-CBS
RICHARD S. McINTOSH,
Plaintiff,
v.
HARLEY G. LAPPIN, et al.,
Defendants.

ORDER

Plaintiff, who appears in this action pro se, initiated this lawsuit on April 29, 2011,
bringing claims against a number of defendants in both their official and individual
capacities. See Docket No. 1. The case is now before the Court on the
Recommendation of Magistrate Judge Regarding Pending Motions to Dismiss (the
“Recommendation”) [Docket No. 132] filed on August 13, 2012. The magistrate judge
recommends that the Court grant defendants’ motions to dismiss [Docket Nos. 66, 105].
The individual capacity defendants filed timely objections [Docket No. 134] to the
Recommendation. On August 29, 2012, plaintiff filed a motion requesting leave to
amend his complaint [Docket No. 136]. In that motion, plaintiff also requested, in the
event the motion to amend were denied, an extension of time to file objections to the
Recommendation. The Court decided to resolve the request for an extension of time
prior to resolving the motion to amend and granted plaintiff until September 6, 2012 to
file any objections to the Recommendation. See Docket No. 138. On September 13,
2012, plaintiff filed a motion requesting leave to file his objections out of time [Docket

No. 140]. The Court finds that there is good cause to grant that request and will
consider plaintiff’s objections [Docket No. 141]. The pending motions are ripe for
disposition.
Plaintiff is an inmate in the custody of the Federal Bureau of Prisons (“BOP”).
He is currently incarcerated in the general population at the BOP’s Administrative
Maximum (“ADX”) facility in Florence, Colorado. During all times relevant to the claims
in this action, plaintiff was being held in “control units” due to allegations that plaintiff
participated in the murder of a fellow inmate. “In an effort to maintain a safe and
orderly environment within its institutions, the [BOP] operates control unit programs
intended to place into a separate unit those inmates who are unable to function in a
less restrictive environment without being a threat to others or to the orderly operation
of the institution.” 28 C.F.R. § 541.40. Plaintiff’s control unit placement, which
commenced in the summer of 2000, was originally set to continue for 60 months. In
this action, plaintiff asserts procedural and substantive due process, Eighth
Amendment, equal protection, and First Amendment claims all arising from his
allegations that he was inappropriately held in control units for 127 months (claims one,
two, and three) and suffered retaliation when he complained about the failure to be
released from control units (claims four and five).
The magistrate judge recommends that all of plaintiff’s claims be dismissed.
Specifically, the Recommendation concludes that plaintiff’s claims for declaratory and
injunctive relief against defendants in their official capacities should be dismissed with
prejudice. The magistrate judge further recommends that all claims against defendants
in their individual capacities which accrued prior to April 29, 2009 should be dismissed
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without prejudice as untimely. Finally, the magistrate judge found that the remaining
aspects of all five claims should be dismissed without prejudice as to defendants in
both their official and individual capacities for failure to state a claim.
The Court “must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). Having done so, the
Court agrees with the Recommendation’s conclusion that plaintiff’s claims must be
dismissed.1 However, because plaintiff’s first, second and third claims against the
official capacity defendants for declaratory and injunctive relief are moot and are barred
by sovereign immunity to the extent they seek monetary damages, they must be
dismissed without prejudice for lack of subject matter jurisdiction to that extent. See
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir.
2010) (“We have no subject-matter jurisdiction if a case is moot.”); Tippett v. United
States, 108 F.3d 1194, 1196 (10th Cir. 1997) (stating that when “the United States
retains its sovereign immunity . . . the district court lacks subject matter jurisdiction to
hear the suit”).
The individual capacity defendants filed objections wherein they argue the
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There are two issues plaintiff raises in his objections that are worth addressing
briefly. First, in regard to the dismissal of his claims on statute of limitations grounds,
plaintiff points out that he filed his complaint seven months after exhausting his
administrative remedies. “[T]he statute of limitations is not automatically tolled
whenever an individual pursues administrative remedies,” Braxton v. Zavaras, 614 F.3d
1156, 1160 (10th Cir. 2010), and plaintiff fails to cite any persuasive basis to toll the
statute of limitations in this action. Cf. Adams v. Wiley, 398 F. App’x 372, 374 (10th Cir.
2010). Plaintiff also argues that defendants conceded in a case filed in 2007 that
prisoners have a liberty interest in avoiding control unit assignment and, therefore,
should be estopped from denying that here. The Court, however, resolves that legal
issue based on the circumstances presented in this case pursuant to the current state
of the law.
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dismissals for failure to state a claim should have been with prejudice because (1) there
is no remedy pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 410 (1971), available to plaintiff for his first, fourth, and fifth
claims and (2) the rights at issue were not clearly established, thus entitling the
individual defendants to qualified immunity. Cf. Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.”). Defendants fail to persuade the Court that it should
resolve the issue of whether and to what extent a Bivens remedy might be extended to
these claims where the underlying claims clearly fail on other grounds. The Court is
hesitant to address that question by reference to the claims as presently, and
inadequately, pled. As for defendants’ qualified immunity argument, they fail to explain
why dismissing the claims on the first prong of the qualified immunity analysis does not
“best facilitate the fair and efficient disposition of [this] case.” Pearson v. Callahan, 555
U.S. 223, 242 (2009).
The only potential prejudice to defendants of having the claims dismissed
without prejudice is the prospect, which was acknowledged by the Recommendation,
see Docket No. 132 at 50, that plaintiff might be afforded leave to amend. First, the
magistrate judge did not recommend that the Court grant plaintiff leave to amend, but
rather he put plaintiff “on notice” of the requirements of Fed. R. Civ. P. 11 if plaintiff
were given such leave. See Docket No. 132 at 50. Second, although plaintiff has filed
a motion requesting leave to amend his complaint [Docket No. 136], he has failed to
attach a proposed pleading or otherwise indicate in his objections what facts he can

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allege that would save any of the claims he has asserted in this case. See Jefferson
Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir.
1999) (court may deny leave to amend complaint where the amendments would be
futile). The Court therefore has no basis upon which to grant him the requested leave.
For the foregoing reasons, it is
ORDERED that plaintiff’s motion to file objections out of time [Docket No. 140] is
GRANTED. It is further
ORDERED that the Recommendation of Magistrate Judge Regarding Pending
Motions to Dismiss [Docket No. 132] is ACCEPTED in part. It is further
ORDERED that the motion to dismiss filed by the defendants in their official
capacities [Docket No. 66] is GRANTED and the motion to dismiss filed by defendants
in their individual capacities [Docket No. 105] is GRANTED in part and DENIED in part.
It is further
ORDERED that plaintiff’s motion to amend his complaint [Docket No. 136] is
DENIED. It is further
ORDERED that plaintiff’s complaint is dismissed without prejudice and this case
is closed in its entirety.

DATED September 26, 2012.
BY THE COURT:

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

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