Hampton et al v. State of Colorado, The et al

Filing 48

ORDER. ORDERED that the Recommendation and Order of United States Magistrate Judge 44 is ACCEPTED. ORDERED that defendants Motion to Dismiss 22 is GRANTED. ORDERED that Plaintiff's Rule 60 Motion for Relief from Order 12 is DENIED. ORDERED that this case shall be DISMISSED and closed in its entirety by Judge Philip A. Brimmer on 02/26/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-02989-PAB-CBS
NATHANIEL HAMPTON,
Plaintiff,
v.
LIRA SIMS,
Defendant.

ORDER

This matter is before the Court on the Recommendation and Order of United
States Magistrate Judge [Docket No. 44] (the “Recommendation”) filed on November 6,
2013. The magistrate judge recommends that the Court grant the Motion to Dismiss
[Docket No. 22] filed by defendant Lira Sims, as well as deny Plaintiff’s Rule 60 Motion
for Relief from Order [Docket No. 12]. The magistrate judge also denied as moot the
Motion for Trial by the Court on Plaintiff’s Request for Declaratory Judgment [Docket
No. 42] filed by plaintiff. On November 25, 2013, plaintiff filed timely objections [Docket
No. 46] to the Recommendation. Therefore, the Court will “determine de novo any part
of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.
P. 72(b)(3).
In light of plaintiff’s pro se status, the Court reviews his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3
(10th Cir. 1991). Because the Recommendation contains a detailed statement of the

case, the Court will only discuss the facts relevant to the resolution of plaintiff’s
objections. See Docket No. 44.
I. MOTION TO DISMISS
A. Denial of Access to Court
The Recommendation found that plaintiff failed to sufficiently allege a claim for
denial of access to courts. Docket No. 44 at 8. Specifically, the Recommendation
concluded that plaintiff failed to allege that Ms. Sims’ actions hindered his ability to
pursue specific legal claims and, to the extent plaintiff alleges that Ms. Sims was
required to modify plaintiff’s probation, Colorado law provides probation officers with no
authority to modify probation conditions. Id. at 7-8.
It is “established beyond doubt that prisoners have a constitutional right of
access to the courts,” which extends to prisoners asserting civil rights claims under 42
U.S.C. § 1983. Bounds v. Smith, 430 U.S. 817, 821, 827 (1977). The right of access is
jointly protected by the petition clause of the First Amendment, City of New York v.
Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008); the Sixth Amendment, Arney v.
Simmons, 26 F. Supp. 2d 1288 (D. Kan. 1998); and the privileges and immunities and
due process clauses of the Fourteenth Amendment. Smith v. Maschner, 899 F.2d 940,
947 (10th Cir. 1990). This right “is violated where government officials obstruct
legitimate efforts to seek judicial redress.” Beretta, 524 F.3d at 397 (citing Whalen v.
Cnty. of Fulton, 126 F.3d 400, 406-07 (2d Cir. 1997) (internal citations omitted)).
However, § 1983 liability may “only be imposed upon those defendants whose own
individual actions cause a constitutional deprivation . . . .” Dodds v. Richardson, 614

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F.3d 1185, 1200 (10th Cir. 2010); see also Colvin v. Schaublin, 113 F. App’x 655, 658
(6th Cir. 2004) (unpublished) (holding that defendants were not liable where their
actions did not cause denial of access to law library).
To raise a denial of access to court claim, plaintiff “must show that [defendant’s
actions] resulted in ‘actual injury’ by ‘frustrat[ing],’ ‘imped[ing],’ or ‘hinder[ing] his efforts
to pursue a [nonfrivolous] legal claim.’” Simkins v. Bruce, 406 F.3d 1239, 1243 (10th
Cir. 2005) (quoting Lewis v. Casey, 518 U.S. 343, 351-53 (1996)). Conclusory
allegations of injury will not suffice. Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir.
1999); cf. Simkins, 406 F.3d at 1243-44 (recognizing a sufficient showing of actual
injury where prisoner demonstrated specific impact on prosecution of particular case).
As a condition of his probation, plaintiff was required to complete a drug and
alcohol rehabilitation program and reside at the Stout Street Foundation. Docket No.
41 at 9. It is undisputed that the Stout Street facility does not allow residents to initiate
legal proceedings. Docket No. 29 at 2, § 2.1 Plaintiff alleges that, shortly after being
assigned to the Stout Street facility, he received a copy of a police report relating to his
arrest and was made aware that his attorney may have been ineffective during criminal
proceedings. Docket No. 41 at 9. At that point, plaintiff alleges that he decided to file
motions challenging his sentence and conviction pursuant to Colorado Rule of Criminal
Procedure 35 and to file an action under 42 U.S.C. § 1983 challenging the arresting
officers’ actions. Id. Plaintiff claims that Stout Street’s restrictions on legal

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According to the Stout Street facility’s promotional material attached to plaintiff’s
original complaint, residents must dispose of all judicial actions in order to qualify for the
program. Docket No. 1 at 23.
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communications made it futile for him to access the state court system. Id. at 10.
Plaintiff alleges that he asked Ms. Sims to temporarily remove him from the program so
that he could pursue his legal claims. Id. Plaintiff argues that Ms. Sims refused his
request and failed to relay to the sentencing court his request to be placed in a position
to file legal correspondence. Id. at 12.
Even assuming that Stout Street’s restrictions on legal correspondence resulted
in actual injury to plaintiff’s efforts to pursue nonfrivolous legal claims, plaintiff has
entirely failed to allege that Ms. Sims personally had any role in creating or enforcing
those restrictions. See Holt v. Werholtz, 185 F. App’x 737, 740 (10th Cir. 2006)
(unpublished) (“assuming [plaintiff] has shown an actual injury, he has not shown that
this injury resulted from the defendant’s actions”). Thus, to the extent plaintiff’s claimed
injury resulted from the Stout Street facility’s restrictions on legal correspondence,
plaintiff’s claim against Ms. Sims fails.
Plaintiff’s access to court claim also fails to the extent it is based on Ms. Sims’
alleged refusal to modify the conditions of plaintiff’s probation in order to permit him to
leave the Stout Street facility. Even if plaintiff’s probation conditions requiring him to
remain at the Stout Street facility constituted an actionable denial of access to the
courts, plaintiff cites no authority granting Ms. Sims the ability to unilaterally modify the
terms of his probation. To the contrary, pursuant to Colo Rev. Stat. §§ 18-1.3-203, 181.3-204, the discretion to set or modify the conditions of a plaintiff’s probation lies with
the sentencing court. See also People v. Guatney, 214 P.3d 1049, 1052 (Colo. 2009)
(granting and revoking probation “is entirely discretionary with the sentencing court”).
Because Ms. Sims had no authority to unilaterally modify plaintiff’s probation conditions,
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she had no ability to cause plaintiff’s claimed constitutional injury. See Dodd, 614 F.3d
at 1199. Thus, to the extent plaintiff’s claim is based on Ms. Sims’ failure to modify the
conditions of his probation, plaintiff’s claim against Ms. Sims fails. See David v. City &
Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996) (holding that defendant is liable
in § 1983 action only if he “exercised power ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law’” (quoting
West v. Atkins, 487 U.S. 42, 49 (1988))).
Plaintiff further argues that he was denied access to the courts when Ms. Sims
allegedly failed to communicate to the sentencing court his request to be temporarily
excused from the Stout Street facility. Docket No. 46 at 3, 8; see Docket No. 41 at 12.
Plaintiff argues that Colo. Rev. Stat. 16-11-209(1) required Ms. Sims to report plaintiff’s
request to the sentencing court. Docket No. 46 at 5. Colo. Rev. Stat. 16-11-209(1)
provides:
It is the duty of a probation officer to investigate and report upon any case
referred to him or her by the court for investigation. The probation officer
shall furnish to each person released on probation under his or her
supervision a written statement of the conditions of probation and shall
instruct the person regarding the same. The officer shall keep informed
concerning the conduct and condition of each person on probation under his
or her supervision and shall report thereon to the court at such times as it
directs. Such officers shall use all suitable methods, not inconsistent with the
conditions imposed by the court, to aid persons on probation and to bring
about improvement in their conduct and condition. Each officer shall keep
records of his or her work; shall make such reports to the court as are
required; and shall perform such other duties as the court may direct.
Contrary to plaintiff’s argument, nothing in § 16-11-209(1) requires Ms. Sims to
report plaintiff’s request to the court or assist plaintiff in filing legal
correspondence. Although state officials are prohibited from interfering with
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attempts to prepare or file legal documents, plaintiff has failed to allege Ms.
Sims’ failure to report his request caused any such interference. See Lewis, 518
U.S. at 350. Plaintiff does not claim that Ms. Sims personally prohibited him
from sending legal correspondence. Rather, as noted above, plaintiff’s claimed
injury resulted from circumstances outside of Ms. Sims’ authority, specifically the
Stout Street facility’s restrictions prohibiting plaintiff from sending legal
correspondence and the terms of plaintiff’s probation requiring him to remain at
that facility. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)
(“Causation is an essential element of a section 1983 cause of action.”).
Therefore, even assuming Ms. Sims communicated his request to the sentencing
court, plaintiff provides no basis on which to conclude that he would then have
been permitted to pursue specific legal claims. See McBride v. Deer, 240 F.3d
1287, 1290 (10th Cir. 2001) (holding that plaintiff failed to sufficiently allege
actual injury when defendants failed to act on plaintiff’s requests to obtain legal
materials). Thus, the Court finds that plaintiff has failed to allege that Ms. Sims’
failure to communicate plaintiff’s request to the sentencing court caused an
actual injury to plaintiff’s ability to pursue nonfrivolous legal claims. See Dodds,
614 F.3d at 1199.
Although the Court’s reasoning differs from the Recommendation, the
Court reaches the same conclusion that plaintiff’s claim for denial of access to
courts fails to state a claim on which relief can be granted.

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B. Retaliation
The Recommendation found that plaintiff failed to state a claim for retaliation.
Docket No. 44 at 10. Specifically, the Recommendation concluded that plaintiff failed to
allege sufficient facts to show that plaintiff’s pursuit of legal claims was the “but for”
cause of Ms. Sims’ actions in filing a warrant and testifying that plaintiff’s probation
should be revoked. Id. at 9.
Plaintiff objects generally to the Recommendation and claims that the only
reason Ms. Sims reported his probation violation is because she knew that he filed an
action to challenge Ms. Sims’ supervision. Docket No. 46 at 10. Plaintiff relies on
circumstantial allegations to show “but for” cause, including his allegations that Ms.
Sims refused to temporarily remove him from the Stout Street facility and refused to
report his request to the Court. Id. at 9.
“An inmate claiming retaliation must ‘allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Peterson v. Shanks,
149 F.3d 1140, 1144 (10th Cir. 1998) (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1
(10th Cir. 1990). A plaintiff must be able to show that “but for” the retaliatory motive,
the disciplinary action would not have occurred. Id. As the Recommendation noted,
“an inmate is not inoculated from the normal conditions of [confinement] merely
because he has engaged in a protected activity. Id. (citing Turner v. Safley, 482 U.S.
78, 84 (1987).
The sentencing court ordered plaintiff, as a condition of his probation, to
complete a drug and alcohol rehabilitation program at the Stout Street Foundation.

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Docket No. 41 at 9. Plaintiff does not dispute that the court did not modify the condition
or give him permission to leave the Stout Street facility. Thus, by leaving the Stout
Street facility, plaintiff was in violation of his probation.
Ms. Sims is required by Colorado statute to monitor cases referred to her. See
Colo. Rev. Stat. § 16-11-209. Ms. Sims had a duty to report plaintiff’s probation
violation. Thus, plaintiff has not alleged sufficient facts to show that retaliation was the
“but for” cause of Ms. Sims’ report of plaintiff’s probation violation. To the extent
plaintiff claims that Ms. Sims’ ultimate recommendation that he be returned to prison
was retaliatory, Ms. Sims is equally as likely to have made that recommendation based
on plaintiff’s unauthorized departure from the Stout Street facility. Moreover, Ms. Sims
is immune to the extent she assists the court in sentencing recommendations. See
Tripati v. U.S. Immigration & Naturalization Serv., 784 F.2d 345, 348 (10th Cir. 1986)
(holding that probation officers are an arm of the court, immune from suit for claims
arising from preparation of sentencing reports). The Court finds no error with this
aspect of the Recommendation.
C. Qualified Immunity
The Recommendation found that Ms. Sims was entitled to the defense of
qualified immunity. Docket No. 44 at 11. Plaintiff objects generally. Docket No. 46 at
12-13. Given that plaintiff does not allege sufficient facts to raise claims that Ms. Sims
violated his constitutional rights, it is unnecessary for the Court to determine whether
Ms. Sims is entitled to qualified immunity. Dubbs v. Head Start, Inc., 336 F.3d 1194,
1217 n.15 (10th Cir. 2003) (upholding district court’s ruling and finding that there was no

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need to reach the issue of qualified immunity because the defendants were objectively
reasonable); Schnebelen v. Porter, 434 F. App’x 765, 766 (10th Cir. 2011) (same).
II. RULE 60 MOTION FOR RELIEF FROM ORDER
The Recommendation concluded that plaintiff’s Rule 60 Motion for Relief From
Order [Docket No. 12] should be denied. Docket No. 44 at 11-12. Specifically, the
Recommendation found that plaintiff had failed to articulate any basis for relief from a
January 29, 2013 order [Docket No. 10] issued by Senior District Judge Lewis T.
Babcock. Docket No. 44 at 11-12.2 The Recommendation further concluded that
former defendant Barney Iuppa, a state judge, remained absolutely immune from suit
and that plaintiff had been permitted to amend his complaint to seek the injunctive relief
he requested. Id. at 12. Plaintiff argues that the Recommendation erred because
plaintiff sought to bring an action against Judge Iuppa in his official capacity, rather than
Judge Iuppa’s judicial capacity. Docket No. 46 at 11-12. Plaintiff argues that an official
capacity suit is not subject to judicial immunity. Id. Plaintiff provides no authority to
support his argument and the Court is aware of no authority drawing such a distinction.
Moreover, the Eleventh Amendment bars the Court from exercising subject matter
jurisdiction over claims for retroactive money damages against defendants in their
official capacities. See Henderson v. Jones, 378 F. App’x 808, 809 (10th Cir. 2010);
see also Fent v. Okla. Water Res. Bd., 235 F.3d 553, 558-59 (10th Cir. 2000).
Thus, the Court finds no basis upon which to grant plaintiff’s requested relief. The

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Judge Babcock found that “Judge Barney Iuppa is absolutely immune from
liability in civil rights suits when he acts in his judicial capacity.” Docket No. 10 at 3
(citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
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Court finds no error with this aspect of the Recommendation.
Plaintiff also argues that he should be permitted to bring claims against Ms. Sims
in her official capacity. Docket No. 46 at 13. Plaintiff raises this argument for the first
time in his objection to the Recommendation. The Court need not reach the substance
of plaintiff’s argument. Whether plaintiff’s claims are brought against Ms. Sims in her
official or individual capacity is irrelevant because plaintiff has failed to sufficiently
allege that Ms. Sims’ actions resulted in a violation of plaintiff’s constitutional rights.
Thus, the Court finds no basis upon which to grant plaintiff’s requested relief.
III. MOTION FOR TRIAL BY THE COURT
The Recommendation denied as moot plaintiff’s Motion for Trial by the Court on
Plaintiff’s Request for Declaratory Judgment [Docket No. 42]. Docket No. 44 at 12.
Plaintiff does not object to this portion of the Recommendation. See generally Docket
No. 46. With respect to portions of the Recommendation not properly objected to, the
Court may review the Recommendation under any standard it deems appropriate. See
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that Congress intended
to require district court review of a magistrate’s factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings”). The Court is
satisfied that there is “no clear error on the face of the record” in this aspect of the
Recommendation. See Fed. R. Civ. P. 72(b), Advisory Committee Notes.
IV. CONCLUSION
The Court concurs with the Recommendation’s conclusion that plaintiff has failed
to state a claim on which relief can be granted. For the foregoing reasons, it is

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ORDERED that the Recommendation and Order of United States Magistrate
Judge [Docket No. 44] is ACCEPTED. It is further
ORDERED that defendant’s Motion to Dismiss [Docket No. 22] is GRANTED. It
is further
ORDERED that Plaintiff’s Rule 60 Motion for Relief from Order [Docket No. 12] is
DENIED. It is further
ORDERED that this case shall be DISMISSED and closed in its entirety.

DATED February 26, 2014.
BY THE COURT:

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

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