Gilbert-Mitchell v. Allred et al

Filing 10

ORDER Over-Ruling Objections to Order Directing Plaintiff to File Amended Complaint. ORDERED that the Motion for Relief from Judgment 8 is denied. FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff a copy of the Prisoner Complaint form. FURTHER ORDERED that the Motion for the Appointment of Counsel 7 is denied as premature, by Judge Lewis T. Babcock on 9/4/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01997-BNB
WALLACE GILBERT-MITCHELL, JR.
Plaintiff.
V.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
CHARLIE A. DANIELS, in his personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities,
MS. MCDERMOTT, in her personal and professional capacities, and
THE UNITED STATES OF AMERICA, in tort,
Defendants.

ORDER OVER-RULING OBJECTIONS
TO ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Wallace Gilbert-Mitchell, is a prisoner in the custody of the federal
Bureau of Prisons and is incarcerated at USP-Florence, Colorado. He has filed a
Prisoner Complaint pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging a deprivation of his
constitutional rights. The matters before the Court at this time are a Motion for Relief
from Judgment (ECF No. 8) and a Motion for the Appointment of Counsel (ECF No. 7).
Also pending are two motions for temporary restraining order and preliminary injunction,
which the Court will address at a later date.
Mr. Gilbert-Mitchell filed his Motion for Relief from Judgment pursuant to Rule

60(b) of the Federal Rules of Civil Procedure. However, Fed. Civ. P. 60(b) only applies
to a “final judgment.” Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any
pretrial matter designated to a magistrate judge to hear and determine where it has
been shown that the magistrate judge’s order is clearly erroneous or contrary to law.
See also Fed. R. Civ. P. 72(a). The Court has reviewed the file and finds that
Magistrate Judge Boland’s order directing Plaintiff to file an amended complaint is not
clearly erroneous or contrary to law.
Mr. Gilbert-Mitchell objects to the Court’s August 7, 2012 Order directing him to
file an amended complaint on several grounds. He first asserts that the Court has
misconstrued his allegations against the Unites States as seeking relief under Bivens
when Plaintiff is proceeding against the United States under the Federal Tort Claims Act
(FCTA), 28 U.S.C. §§ 2671-2680. However, the allegations of the original Complaint do
not clearly assert a claim under the FTCA. Plaintiff further clarifies that in challenging
his prison disciplinary convictions, he does not seek the restoration of forfeited good
time credits and may therefore bring his claim in this Bivens action. Next, although Mr.
Gilbert-Mitchell appears to concede that the Health Insurance Portability and
Accountability Act (HIPAA) does not create a private right of action, he nonetheless
maintains, without legal basis, that Defendants have violated the HIPAA. Finally, Mr.
Gilbert-Mitchell argues that he has alleged sufficient facts to demonstrate the personal
participation of each Defendant in the alleged deprivations of his constitutional rights
and has no further facts to include in an amended complaint. The Court observes,
however, that Plaintiff does include more specific factual allegations against the
Defendants in his pending Motion for Temporary Restraining Order and for Preliminary
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Injunction. (ECF No. 9, Ex. A).
It is within the Court’s discretion to order a prisoner plaintiff to file an amended
complaint. See D.C.COLO.LCivR 8.2.C (stating that “a judicial officer designated by the
Chief Judge shall review the pleadings of a prisoner (regardless of representation by
counsel) to determine whether the pleadings should be dismissed summarily if the
prisoner is [challenging prison conditions and seeks redress from a governmental entity,
officer or employee]. A judicial officer may request additional facts. . . necessary to
make this determination.”).
The Court finds that Mr. Gilbert-Mitchell has failed to demonstrate that the August
7, 2012 Order Directing Plaintiff to File an Amended Complaint was clearly erroneous or
contrary to law. An amended complaint is required to clarify the FTCA and HIPAA
claims, the claims challenging prison disciplinary convictions, and the personal
participation of each Defendant in the alleged constitutional deprivations.

Indeed,

some of Plaintiff’s arguments in the Motion only serve to reinforce the Court’s Order.
Accordingly, it is
ORDERED that the Motion for Relief from Judgment (ECF No. 8) is denied. It is
FURTHER ORDERED that Plaintiff shall file an amended complaint on the courtapproved Prisoner Complaint form that complies with the directives of the August 7,
2012 Order, on or before October 4, 2012. Plaintiff should also clarify in the amended
complaint that he is suing the United States under the FTCA and that he is not seeking
the restoration of forfeited good time credits in this action. It is

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FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff a copy of
the Prisoner Complaint form because Plaintiff has represented that he cannot obtain it
at the prison. It is
FURTHER ORDERED that the Motion for the Appointment of Counsel (ECF No.
7) is denied as premature.
DATED September 4, 2012, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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