Blackman v. Torres

Filing 142

ORDER Adopting 140 Recommendation of United States Magistrate Judge & Denying 133 Motion to Reconsider. Defendant's Motion for Summary Judgment [# 110 ] filed August 23, 2013, is GRANTED. By Judge Robert E. Blackburn on 3/12/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02066-REB-BNB
ROBERT BLACKMAN,
Plaintiff,
v.
MR. TORRES, Correctional officer,
Defendant.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE &
DENYING MOTION TO RECONSIDER
Blackburn, J.
This matter is before me on the following: (1) the Defendant’s Motion for
Summary Judgment [#110]1 filed August 23, 2013; (2) the Plaintiff’s Motion To
Reconsider the District Judge’s Order Concerning the Recommendation of United
States Magistrate Judge [Doc. #75] [#133] filed November 7, 2013; (3) Defendant’s
Objections To October 15, 2013, Order (Doc. 126) [#128] filed October 29, 2013; (4)
Defendant’s Objections To October 15, 2013, Order (Doc. 131) [#135] filed
November 12, 2013; and (5) the Recommendation of United States Magistrate
Judge [#140] filed January 23, 2014, which addresses the motion for summary
judgment. I approve and adopt the recommendation [#140], deny the motion to
reconsider [#133], and grant the motion for summary judgment[#110]. I overrule the two

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“[#110]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

objections [#128 & #135] because, following the entry of this order, they are moot.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other
filings more liberally and held them to a less stringent standard than formal pleadings
drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
I. MOTION TO RECONSIDER
In his motion to reconsider [#133], the plaintiff, Robert Blackman, seeks
reconsideration of the order of the court [#75] adopting a previous recommendation
[#60] of the magistrate judge and dismissing some of the claims of Mr. Blackman. The
magistrate judge suggested that Mr. Blackman file this motion after it became apparent
to the magistrate judge that Mr. Blackman was not receiving some of the mail sent to
him by the court and/or was being prevented from mailing filings to the court. As a
result of irregularities in the handling of the mail of Mr. Blackman, the magistrate judge
concluded that Mr. Blackman did not have an opportunity to respond to the motion to
dismiss of the defendant and to object to the earlier recommendation [#60] before the
recommendation was adopted by the court.
I have reviewed the motion for reconsideration [#133] as both an objection to the
earlier recommendation [#60] and as a motion to reconsider. Viewing the motion as an
objection, I must review de novo all portions of the recommendation [#60] to which Mr.
Blackman objects. 28 U.S.C. § 636(b). I have conducted that review and have
considered carefully the recommendation, objections, and applicable case law. Nothing

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argued by Mr. Blackman in his motion [#133] constitutes a valid objection to the
recommendation [#60]. Therefore, I overrule the objections stated in the motion [#133].
Viewing the motion [#133] as a motion for reconsideration, I conclude that there
is no basis for reconsideration of my previous order [#75] adopting the recommendation
[#60] of the magistrate judge. The bases for granting reconsideration are limited:
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the
controlling law. It is not appropriate to revisit issues already
addressed or advance arguments that could have been
raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted). FED. R. CIV. P. 60(b) outlines a related standard of review and lists six bases
on which a party may seek relief from an order or final judgment.
Mr. Blackman argues in his motion that he can pursue a claim for First
Amendment retaliation as a Bivens claim. The case law on this question, cited in my
previous order [#75], vitiates this contention. Mr. Blackman argues also that his Fifth
Amendment equal protection and due process claims and his Eighth Amendment claim
were pled adequately in his complaint [#1]. As a result, he contends, the magistrate
judge erred when he recommended that these claims be dismissed under FED. R. CIV.
P. 12(b)(6) and I erred when I adopted those portions of the recommendation of the
magistrate judge. Having reviewed again the recommendation [#60] and the complaint
[#1], I find and conclude that the recommendation [#60] and my order [#75] are correct.

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Mr. Blackman has not cited or circumstantiated any valid grounds for reconsideration of
my order [#75] or for relief under Rule 60(b). Thus, his motion must be denied.
II. RECOMMENDATION
No objections to the recommendation [#140] were filed. Thus, I review it only for
plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418
F.3d 1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the
recommendation of the magistrate judge, I find and conclude that the recommendation
should be approved and adopted as an order of this court.
The motion for summary judgment is based on the contention of the defendant
that Mr. Blackman failed to exhaust the available administrative remedies before filing
his complaint asserting a claim for First Amendment retaliation. Appropriately, the
magistrate judge concludes that the undisputed facts in the record show that Mr.
Blackman did not complete all three formal administrative remedy steps with regard to
his First Amendment retaliation claim. As a result, this claim must be dismissed. As
noted by the magistrate judge, the plaintiff now is time barred from filing a grievance on
the issue to the extent his grievance would be based on the facts alleged in his
complaint. Thus, the claim of the plaintiff must be dismissed with prejudice.
III. OBJECTIONS TO ORDERS
Still pending before the court are the objection of the defendant to the order
entered by the magistrate judge requiring the warden of the United States Penitentiary,
Administrative Maximum (ADX), to file a proposed remedial mail plan, and the order

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This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

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denying the motion of the defendant to stay the order of the magistrate judge. After
conducting a detailed review of mail procedures at ADX and the handling of mail sent by
Mr. Blackman to this court, including his response to the motion to dismiss filed by the
defendant and his objections to the recommendation [#60], the magistrate judge found
that “there are irregularities in the way the plaintiff’s mail is being handled by ADX
officials. As a result of the irregularities, the plaintiff was denied the opportunity to
respond to the defendant’s motion to dismiss and to file objections to my
recommendation.” Order [#126] filed October 15, 2013, p. 11. Based on these and
other findings, the magistrate judge ordered the warden at ADX to “file a proposed
remedial plan which addresses all mail processing issues identified in this order.” Id., p.
12.
In his objection [#128], the defendant, Mr. Torres, contends that the order [#126]
of the magistrate judge constitutes an improper sua sponte injunction against the
warden. In his second objection [#135], Mr. Torres objects to an order [#131] denying a
motion to stay the earlier order [#126].
The record presents no basis on which to question the findings of fact of the
magistrate judge. Obviously, those findings raise serious concerns about the handling
of the legal mail of Mr. Blackman and the ability of Mr. Blackman to pursue his claims in
this case. However, given the development of the record since the magistrate judge
issued his order [#126], I find and conclude that Mr. Blackman has had an adequate
opportunity to present his arguments in opposition to the motion to dismiss of the
defendant and to the objections of Mr. Blackman to the recommendation [#60] of the
magistrate judge.
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Given the procedural posture of this case, there are significant questions about
the scope of the jurisdiction of this court and, ultimately, the authority of this court to
require a non-party to take the actions ordered by the magistrate judge. At this point,
however, those questions are academic, at least as those questions are tied to this
case. With this order, all of the claims of Mr. Blackman are dismissed and the
jurisdiction of this court over those claims will end. As a result, the issues raised in the
objections [#128 & #135] of the defendant and the mandates in the orders [#126 &
#131] of the magistrate judge are effectively moot. In another case and context,
however, factual findings such as those made by the magistrate judge concerning the
handling of legal mail at ADX readily could form a viable basis for relief.
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion To Reconsider the District Judge’s Order
Concerning the Recommendation of United States Magistrate Judge [Doc. #75]
[#133] filed November 7, 2013, read as an objection to the recommendation [#60] of the
magistrate judge, is OVERRULED;
2. That the Plaintiff’s Motion To Reconsider the District Judge’s Order
Concerning the Recommendation of United States Magistrate Judge [Doc. #75]
[#133] filed November 7, 2013, read as a motion to reconsider, is DENIED;
3. That the Recommendation of United States Magistrate Judge [#140] filed
January 23, 2014, which addresses the motion for summary judgment [#110], is
APPROVED and ADOPTED as an order of this court;
4. That the Defendant’s Motion for Summary Judgment [#110] filed August

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23, 2013, is GRANTED;
5. That the Defendant’s Objections To October 15, 2013, Order (Doc. 126)
[#128] filed October 29, 2013, and the Defendant’s Objections To October 15, 2013,
Order (Doc. 131) [#135] filed November 12, 2013, both are OVERRULED and
terminated on the docket as moot;
6. That under FED. R. CIV. P. 58, judgment SHALL ENTER against the plaintiff,
Robert Blackman, in favor of the defendant, Mr. Torres, Correctional Officer; and
7. That the defendant is AWARDED his costs, to be taxed by the clerk of the
court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated March 12, 2014, at Denver, Colorado.
BY THE COURT:

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