Maxton v. USA et al

Filing 130

ORDER adopting 125 Report and Recommendations; denying 127 Motion for Order; denying 128 Motion for Order. ORDERED that this case is ADMINISTRATIVELY CLOSED pursuant to D.C.COLO.LCivR 41.2, subject to reopening for good cause shown. By Judge Wiley Y. Daniel on 10/10/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-00383-WYD-KMT
THERON JOHNNY MAXTON, # 85599-071,
Plaintiff,
v.
UNITED STATES OF AMERICA;
BOP DIRECTOR, Washington, D.C.;
T.K COZZA-RHODES, Warden F.C.I.;
CHARLES DANIEL, Warden F.C.I.;
S. COLLINS, Health Service, U.S.P.;
LT. ANTHONY, U.S.P. Florence,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [“Recommendation”] issued June 16, 2014, to which Plaintiff filed
objections, and Plaintiff’s motions entitled (1) “Petition to Remove Magistrate Judge
Boyd N. Boland from the Case and a Hearing Held, and for an Attorney” filed June 20,
2014, and (2) “Motion to Have the Judicial Committee and FBI Investigate Magistrate
Judge Boyd N. Boland, Kathleen Tafoya” filed July 2, 2014.
I first address the Recommendation. It notes that Plaintiff’s pro se Amended
Prisoner Complaint asserts claims for violations of the Eighth Amendment’s prohibition
against cruel and unusual punishment. (Recommendation at 1.) It further notes that
Plaintiff was indicted on counts of threatening to harm BOP officials and their families,

including “threats related to” Defendants Cozza-Rhodes, Daniels, and Anthony. (Id. at
2.) On January 23, 2014, Defendants filed a motion seeking a stay of discovery until
the criminal proceedings against Plaintiff are completed. At that time, Plaintiff’s criminal
trial was set for May 13, 2014, and Plaintiff had raised the issue of whether he was
mentally competent to stand trial. (Id. at 3.) In the motion to stay, Defendants asserted
that the pendency of the criminal case raises concerns regarding their defenses and
implicates Plaintiff’s Fifth Amendment rights. (Id.) Plaintiff opposed a stay. (Id.)
Magistrate Judge Boland granted the motion to stay by Order of February 18,
2014, finding among other things that “the facts of this case overlap with the facts of the
criminal proceeding” and that “because the plaintiff is proceeding pro se in this action
and has raised the issue of his mental competency to stand trial in his criminal action,
his ability to protect his Fifth Amendment rights is of particular concern.” (Feb. 18, 2014
Order at 4.) He stayed discovery until June 1, 2014, and ordered Defendants to file by
that date a status report concerning the status of the criminal proceedings. (Id. at 4-5.)
Plaintiff filed objections to the Order staying the case on February 28, 2014, which I
overruled by Order of April 4, 2014.
Defendants’ status report filed on June 1, 2014 noted that the criminal trial was
then scheduled for August 18, 2014. (Recommendation at 4.) Defendants requested a
further stay of discovery for the same reasons they requested the initial stay. (Id.)
Magistrate Judge Boland stated in his Recommendation that “[i]t appears uncertain
when the plaintiff’s criminal case finally will be resolved.” (Id.) Accordingly, he found
that administrative closure of the case was appropriate under D.C.COLO.LCivR 41.2.
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I first address the standard of review applicable to the Recommendation. As
noted by Chief Judge Krieger of this court, “[t]he scope of review of objected-to portions
of a Magistrate Judge’s recommendations is determined by whether the
recommendation is ‘dispositive of a party’s claim or defense.’” Murphy v. Archuleta, 06cv-01899-MSK-KLM, 2009 WL 1456727, at *3 (D. Colo. May 2, 2009) (citing Fed. R.
Civ. P. 72(a)). I agree with the analysis in Murphy that a recommendation to
administratively close a case while awaiting resolution of a matter (in that case until the
trial record was available) “is non-dispositive in nature, and the Court examines only
whether the Magistrate Judge’s findings and conclusions are clearly erroneous or
contrary to law.” Id.
Here, while Plaintiff asserts in his motion filed June 20, 2014, that Magistrate
Judge Boland got “this case thrown out of court” or dismissed it, that is not true.
Instead, the case is administratively closed subject to being reopened for good cause
which, in this case, means resolution of the criminal case in state court. As in the
Murphy case, “that Recommendation does not dispose of any claim or defense; all of
the [Plaintiff’s] current claims will remain available to him when” the criminal case is
resolved “and the case is reopened.” 2009 WL 1456727, at *3. Plaintiff’s objections do
not provide any ground to conclude that the Recommendation to administratively close
the case in this manner was clearly erroneous or contrary to law.
Instead, Plaintiff’s objections raise issues regarding alleged bias by Magistrate
Judge Boland, arguing that he was against the Plaintiff from the start, especially after
Plaintiff made threats to Magistrate Judge Tafoya. He further asserts that Magistrate
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Judge Boland is taking bribes from Assistant United States Attorney Mark Pestal “to let
him win this case.” (Objections to the Magistrate Judge Recommendation, at 1.)
Plaintiff‘s other two motions referenced earlier make similar assertions and ask that
Magistrate Judge Boland be removed from this case, that a hearing be held on the
issue of bias, that Plaintiff be provided an attorney, and that the Court order the Judicial
Committee and FBI to investigate Magistrate Judges Boland and Tafoya.
I find that Plaintiff’s objections should be overruled and his motions denied. First,
it appears Plaintiff is under the mistaken impression that this case has been resolved
against him. This is not accurate, as discussed earlier. The case is only being
administratively closed pending the criminal action. No decision on the merits has been
made. Second, to the extent Plaintiff argues bias on the part of Magistrate Judge
Boland, his allegations are unsupported and speculative. “An unsubstantiated
suggestion or personal bias or prejudice is insufficient to mandate recusal” of a judge.
Willner v. Univ. of Kansas, 848 F.2d 1023, 1027 (10th Cir. 1988). Further, none of
Magistrate Judge Boland’s rulings suggest any bias; indeed, the stay of the case and
subsequent administrative closure were to protect both parties’ rights in the criminal
case, including Plaintiff’s Fifth Amendment rights. Finally, “[u]nfavorable judicial rulings
do not in themselves call into question the impartiality of a judge.” United States v.
Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006). Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF
No. 125) is AFFIRMED AND ADOPTED. In accordance therewith, it is

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ORDERED that this case is ADMINISTRATIVELY CLOSED pursuant to
D.C.COLO.LCivR 41.2, subject to reopening for good cause shown. Good cause may
be established by a request by either party to reopen the case after resolution of the
criminal case against Plaintiff. It is
FURTHER ORDERED that Plaintiff’s Objections to the Magistrate Judge
Recommendation (ECF No. 126) are OVERRULED. It is
FURTHER RULED that Plaintiff’s “Petition to Remove Magistrate Judge Boyd N.
Boland from the Case and a Hearing Held, and for an Attorney” (ECF No. 127) is
DENIED. Finally, it is
ORDERED that Plaintiff’s “Motion to Have the Judicial Committee and FBI
Investigate Magistrate Judge Boyd N. Boland, Kathleen Tafoya” (ECF No. 128) is
DENIED.
Dated: October 10, 2014
BY THE COURT:

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

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