Amin v. Clements et al

Filing 96

ORDER: The Magistrate Judge's Recommendation (ECF No. 89 ) is ACCEPTED and ADOPTED in its entirety and made an order of this Court; CDOC Defendants' Motion to Dismiss (ECF No. 42 ) is GRANTED and Plaintiff's claims against Defenda nts Ivett Ruiz and Ms. MacKinnon are dismissed with prejudice and their names shall be removed from the caption of this action; Plaintiff's Motion to Amend (ECF No. 74 ) is DENIED; and The Clerk of the Court shall enter judgment in favor of these Defendants on the remaining claim for relief, with all parties to bear their own attorney's fees and costs. By Judge Raymond P. Moore on 09/16/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02889-RM-MJW
ABDULLAH KRU AMIN,
Plaintiff,
v.
IVETT RUIZ, A.V.C.F., Colo. Dept. Corr. Mental Health,
MS. MACKINNON, SOTMP, C.D.O.C.,
CARL VOIGTSBERGER, Wyo. Classification Interstate Compact, and
RON LAMPERT, Director, Wyoming Department of Corrections,
Defendants.
______________________________________________________________________________
ORDER ADOPTING
JUNE 24, 2013 RECOMMENDATION (ECF No. 89),
GRANTING MOTION TO DISMISS (ECF No. 42), AND
DENYING MOTION TO AMEND (ECF No. 74)
______________________________________________________________________________
THIS MATTER is before the Court on United States Magistrate Judge Michael J.
Watanabe’s (“Magistrate Judge”) June 24, 2013 Recommendation (“Recommendation”) on: (1)
the Colorado Department of Corrections (“CDOC”) Defendants’ Motion to Dismiss (ECF No.
42); and (2) Plaintiff Abdullah Kru Amin’s (“Plaintiff”) Motion to Amend (ECF No. 74). The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R.
CIV. P. 72(b).
I. BACKGROUND
The background concerning the disposition of pro se Plaintiff’s claims in his Amended
Complaint is set forth in the Recommendation which the Court incorporates by reference herein.

Briefly, all of Plaintiff’s claims have been dismissed except for his first claim against CDOC
Defendants Ivett Ruiz and Ms. MacKinnon, and Wyoming Defendants Carl Voigtsberger and Rob
Lampert. Plaintiff’s sole remaining claim is brought under the Fourteenth, Fifth, Sixth and Eighth
Amendment of the U.S. Constitution. (ECF No. 21.) In summary, as against CDOC Defendants,
Plaintiff alleges he was transferred from Wyoming’s correctional facility to Colorado’s
correctional facility under the Interstate Corrections Compact (“ICC”). Upon Plaintiff’s transfer
to Colorado, CDOC Defendants allegedly violated Plaintiff’s rights by improperly classifying him
as a sex offender under CDOC’s classification policies and procedures even though his Wyoming
sexual offense sentence had been discharged in June of 2003. (Amended Complaint, pages 4, 1112.)
CDOC Defendants moved to dismiss this claim which Judge Robert E. Blackburn, whom
this case was then before, referred to the Magistrate Judge. Subsequently, Plaintiff moved to
amend his complaint, which this Court also referred to the Magistrate Judge. The Magistrate
Judge recommended CDOC Defendants’ Motion to Dismiss be granted and Plaintiff’s Motion to
Amend be denied. (ECF No. 89.) On July 5, 2013, Plaintiff timely objected (“Objection”) to the
Recommendation. (ECF No. 91.)
II. STANDARD OF REVIEW
The district judge must determine de novo any part of the magistrate judge’s
recommendation on a dispositive motion to which a party has properly objected. FED. R. CIV. P.
72(b)(3). An objection is proper if it is filed within 14 days after being served with a copy of the
recommendation and is sufficiently specific to allow the district court “‘to focus attention on those

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issues – factual and legal – that are at the heart of the parties’ dispute.’” United States v. 2121 E.
30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
A party’s failure to make timely and specific objections waives an issue for de novo review by the
district court. See United States v. 2121 E. 30th St., supra at 1059-1060. The district judge may
accept, reject or modify the recommendation, receive further evidence, or return the matter to the
magistrate judge with instructions. FED. R. CIV. P. 72(b)(3).
Where the plaintiff is appearing pro se, the Court must liberally construe his pleadings.
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Dismissal of a pro se plaintiff’s complaint for failure
to state a claim “is proper only where it is obvious that the plaintiff cannot prevail on the facts he
has alleged and it would be futile to give him an opportunity to amend.” Johnson v. Johnson, 466
F.3d 1213, 1214-1215 (10th Cir. 2006) (quotation omitted).
III. ANALYSIS
Plaintiff’s Objection challenges not only the Recommendation but also a prior decision
entered by Judge Lewis T. Babcock, which decision is not subject to challenge through an
objection and therefore will not be considered. Plaintiff’s Objection as to the Recommendation
does not dispute the Magistrate Judge’s statements concerning the allegations of the Amended
Complaint, e.g., he was convicted of a sex crime and discharged his sentence in 2003.1 Moreover,
his Objection does not appear to challenge the Recommendation’s finding that he failed to state
claims based on the theory that his sex crime conviction sentence was discharged in 2003.

1

Plaintiff’s Amended Complaint also contains allegations that his sexual assault case was “reversed” or “dismissed”
(Amended Complaint, pages 9 and 12), and his Response to CDOC Defendants’ motion to dismiss asserts his
sentence had been “reversed.” (Response [ECF No. 45], page 10.) In light of Plaintiff’s lack of objection, and
consistent with Plaintiff’s other allegations, the Court construes such statements to mean Plaintiff’s sentence has
been discharged.

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Instead, Plaintiff argues that his sexual offense sentence was issued under Wyoming law, he could
not have been classified as a sex offender under Wyoming law, and it is therefore a violation of
the Constitution and ICC to classify him as such under CDOC’s administrative regulations.
Essentially, Plaintiff argues he is entitled to have Wyoming’s classification standards or
procedures apply to his Colorado confinement.
A.

Motion to Dismiss – Failure to State a Claim.

i.

Fourteenth Amendment.

Plaintiff’s Objection as to his claim under the Fourteenth Amendment appears to address
how his claim was construed. In order to state a claim for relief under 28 U.S.C. § 1983, the
plaintiff must sufficiently allege “‘the deprivation by defendant of a right, privilege, or immunity
secured by the Constitution or the laws of the United States while the defendant was acting under
color of state law.’” Garcia v. Lemaster, 439 F.3d 1215, 1217 (10th Cir. 2006) (quoting Doe v.
Bagan, 41 F.3d 571, 573-574 (10th Cir. 1994)). The Due Process Clause of the Fourteenth
Amendment guarantees due process when a person may be deprived of life, liberty or property.
U.S. Const. amend. XIV, § 1. Plaintiff argues he was denied due process2 based on CDOC
Defendants’ alleged failure to comply with the ICC provision that “confinement in a receiving
state shall not deprive any inmate so confined of any legal rights which said inmate would have
had if confined in an appropriate institution of the sending state.” Wyo. Stat. Ann. § 7-3-401, Art.
IV(e) (2009 & 2012); C.R.S. § 24-60-801, Art. IV(e) (2009 & 2012). The question is whether the
ICC provision creates a liberty interest.
2

Plaintiff also made perfunctory arguments that the alleged failure to follow “policies and procedures” of the ICC
denied him equal protection. (Objection, pages 1 & 3.) Such arguments are not only insufficient but also
unsupported by the allegations in Plaintiff’s first claim for relief which makes no mention of any denial of equal
protection.

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In a prison setting, a state-created liberty interest will not be found unless the state
“imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Garcia v. Lemaster, supra at 1219 (quotation omitted). The Tenth Circuit has
recognized that application of a receiving state’s procedures to out-of-state inmates housed in the
receiving state’s prisons does not impose hardship which is atypical or significant to such inmates
and, accordingly, creates no liberty interest. See id. Among other things, the Tenth Circuit
recognized the ICC stated that out-of-state inmates “shall be treated equally with such similar
inmates of the receiving state as may be confined in the same institution.” Id. (quotation omitted).
Requiring the out-of-state inmate to be classified only in accordance with the out-of-state law
would therefore be contrary to such provision. See id; Stewart v. McManus, 924 F.2d 138, 141
(8th Cir. 1991) (cited with approval in Garcia v. Lemaster, supra at 1219). “It is only common
sense that that the authorities having daily physical custody of an ICC inmate must determine the
inmate’s appropriate security classification and concomitant level of privileges, programs, and
conditions of confinement.” Menefee v. Weholtz, No. 08-3314-SAC, 2009 WL 311108, at *4 (D.
Kan. Feb. 9, 2009). Indeed, the very section of the ICC relied upon by Plaintiff expressly states,
in the sentence immediately preceding that relied upon for “deprivation of legal rights,” that,
“All inmates who may be confined in an institution pursuant to the provisions of this compact
shall be treated in a reasonable and humane manner and shall be cared for and treated equally
with such similar inmates of the receiving state as may be confined in the same institution.”
Wyo. Stat. Ann. § 7-3-401. Art. IV(e) (2009 & 2012).

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In this case, Plaintiff’s Objection contains only conclusory allegations that CDOC’s
classification violated his due process rights under the Fourteenth Amendment. Such allegations
are insufficient to establish that atypical and significant hardships were imposed on Plaintiff.
Moreover, the Court does not read the ICC to require the application of Wyoming’s classification
policy/procedures to transferred inmates under the allegations at hand. On the contrary, in
accordance with the ICC, Colorado’s classification policy/procedures applied so that Plaintiff is
treated like similarly situated inmates in Colorado for custody and programs. Therefore, Plaintiff
has failed to state a claim for violation of the due process clause of the Fourteenth Amendment.3
ii.

Fifth and Sixth Amendments.

Plaintiff’s cursory reference to the Fifth and Sixth Amendment is far from specific and
fails to inform the Court of the legal and factual basis, if any, of his objection to the Magistrate
Judge’s Recommendation. Plaintiff simply repeats some of his allegations in his first claim and
alludes to “double jeopardy.” Such failure waives any challenges Plaintiff may have with respect
to issues based on the Fifth and Sixth Amendments. Regardless, as the Magistrate Judge correctly
found, sex offender classifications, and any resulting treatment programs or other disciplinary
sanctions, do not violate the Double Jeopardy Clause. See, e.g., Daniels v. Arapahoe County Dist.
Court, 376 Fed.Appx. 851, 855, 2010 WL 1645978, at * 3 (10th Cir. 2010); Wirsching v.
Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004). Accordingly, Plaintiff has failed to state a claim
for any alleged violation of the Fifth or Sixth Amendment.

3

To the extent that Plaintiff is relying on the ICC as a basis for a § 1983 claim, Plaintiff’s claim also fails as the ICC
is not federal law. See Stewart v. McManus, supra at 142.

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iii.

Eighth Amendment.

Similarly, Plaintiff’s Objection concerning cruel and inhumane treatment simply repeat
some of the allegations in his Amended Complaint. Plaintiff states, summarily, he suffered
physical and mental harm by being placed in punitive isolation/administrative sequestration for
two years. The Magistrate Judge found Plaintiff failed to allege how his classification resulted in
atypical and significant hardships and that such classification does not violate the Eighth
Amendment. Indeed, the Eighth Amendment prohibits only punishments which “although not
physically barbarous, involve the unnecessary and wanton infliction of pain,” and those
conditions which cannot be said to be “cruel and unusual under contemporary standards are not
unconstitutional.” Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir. 2004) (quoting Rhodes v.
Chapman, 452 U.S. 337, 346-347 (1981); quotation marks omitted). Here, Plaintiff’s bare
allegations do not rise to the level which would support an Eighth Amendment claim.
Accordingly, Plaintiff has also failed to state a claim under the Eighth Amendment.
B. Motion to Amend.
Plaintiff’s Motion to Amend seeks to add as defendants: (1) Don Morton, Office of
Offender Services, ICC Administrator; (2) Assistant Directory Steve Lindly, Wyoming
Department of Corrections; and (3) Larry Turner, Director of the Colorado Department of
Interstate Compact.4 (ECF No. 74.) The Magistrate Judge found Plaintiff’s proposed amendment
is futile. Plaintiff’s Objection specifically mentions only Mr. Lindly, asserting he has been in
communications with Plaintiff, knows the facts concerning Plaintiff’s “trouble[s], suffering, and

4

Whether Plaintiff seeks to add Mr. Turner is unclear. Being mindful that Plaintiff is appearing pro se, the Court
construes Plaintiff’s motion to also include Mr. Turner.

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torture,” and is a crucial witness and representative. Such assertions provide nothing substantive
to support Plaintiff’s proposed amendment to add Mr. Lindly or the other individuals as
defendants. Instead, as the Magistrate Judge found, the proposed amendment does not include
any substantial new factual allegations. Further, the proposed amendment contains no factual
allegations as to how any of the proposed defendants violated any of Plaintiff’s cognizable rights.
Accordingly, Plaintiff’s proposed amendment is futile. See Johnson v. Johnson, supra at 12141215.
IV. CONCLUSION
Based on the foregoing, the Court agrees with the Recommendation. The Court also finds
that Plaintiff’s additional argument of improper classification because such classification was
based on CDOC’s classification rather than Wyoming’s classification also fails to state a claim for
relief. The Court further concludes Plaintiff’s proposed amendment is futile. It is therefore
ORDERED that:
1.

The Magistrate Judge=s Recommendation (ECF No. 89) is ACCEPTED
and ADOPTED in its entirety and made an order of this Court;

2.

CDOC Defendants’ Motion to Dismiss (ECF No. 42) is GRANTED and
Plaintiff’s claims against Defendants Ivett Ruiz and Ms. MacKinnon are
dismissed with prejudice and their names shall be removed from the
caption of this action;

3.

Plaintiff’s Motion to Amend (ECF No. 74) is DENIED; and

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4.

The Clerk of the Court shall enter judgment in favor of these Defendants
on the remaining claim for relief, with all parties to bear their own
attorney’s fees and costs.

DATED this 16th day of September, 2013.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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