Scott v. Carlson

Filing 28

ORDER The Court ADOPTS the Recommendation ECF No. 23 ; Plaintiffs Objection ECF No. 24 to the Magistrate Judges October 9, 2013 Recommendation is OVERRULED; Defendants Motion to Dismiss ECF No. 17 is GRANTED; Plaintiffs Motion to Amend ECF No. 21 is DENIED; Plaintiffs Motion to Set Settlement Conference ECF No. 26 is DENIED as MOOT because the Court has dismissed his case; and The Clerk shall enter judgment and close the case. Each party shall bear his or her own costs, by Judge William J. Martinez on 2/7/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0069-WJM-KMT
LYNN EUGENE SCOTT,
Plaintiff,
v.
MARY CARLSON,
Defendant.

ORDER OVERRULING DEFENDANT’S OBJECTION, ADOPTING THE OCTOBER 9,
2013 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE,
GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING PLAINTIFF’S
MOTION TO AMEND COMPLAINT

Plaintiff Lynn Eugene Scott brings this case pro se against Defendant Mary
Carlson, in her individual capacity, claiming violations of his Fifth, Eighth, and
Fourteenth Amendment rights under 42 U.S.C. § 1983. This matter is before the Court
on the October 9, 2013 Recommendation by U.S. Magistrate Judge Kathleen M. Tafoya
(ECF No. 23) (the “Recommendation”) that Defendant’s Motion to Dismiss (ECF No. 17)
be granted, and Plaintiff’s Motion to Amend Complaint (the “Motion to Amend”) (ECF
No. 21) be denied. The Recommendation is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). For the reasons set forth below, the
Recommendation is adopted in its entirely.
I. BACKGROUND
Plaintiff is a former inmate at the Colorado Department of Corrections (“CDOC”).
(ECF No. 5 at 4.) Defendant is the head of time computation at the CDOC. (Id. at 2.)

Plaintiff’s operative Complaint was filed on February 1, 2013. (Id.) Plaintiff
argues that, although he should have been released from the CDOC on May 2, 2013,
he was not released until June 13, 2013. (Id. at 4.) Plaintiff also argues that he was
incarcerated three and a half years longer than he was sentenced. (Id. at 5.) Plaintiff
alleges that he was detained for an excessive period of time because Defendant was
“grossly negligent, and or had reckless disregard, or was . . . deliberately indifferent to
the constitutional rights of the Plaintiff[.]” (Id. at 4.) Plaintiff seeks various damages.
(Id. at 8.)
On April 29, 2013, Defendant filed a Motion to Dismiss, arguing that Plaintiff
failed to allege any facts showing that Defendant personally participated in any of the
alleged constitutional violations set forth in the Complaint. (ECF No. 17.) Plaintiff
responded on May 22, 2013. (ECF No. 19.) Defendant did not submit a Reply. The
Court referred the Motion to Dismiss to Magistrate Judge Kathleen M. Tafoya for a
report and recommendation. (ECF No. 18.)
On October 2, 2013, Plaintiff filed the Motion to Amend. (ECF No. 21.)
Defendant did not submit a Response. The Court referred the Motion to Amend to
Magistrate Judge Kathleen M. Tafoya for a report and recommendation. (ECF No. 22.)
On October 9, 2013, Magistrate Judge Tafoya issued her Recommendation that
Defendant’s Motion to Dismiss be granted, and Plaintiff’s Motion to Amend be denied.
(ECF No. 23.) On October 21, 2013, Plaintiff filed an Objection to the Recommendation
(the “Objection”). (ECF No. 24.)
II. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
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Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district court judge
may accept, reject, or modify the [recommendation]; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id. Here, Defendant filed a timely
objection to Magistrate Judge Tafoya’s Recommendation. See Fed. R. Civ. P. 72(b)(2).
Therefore, this Court reviews the issues before it de novo.1
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss a claim in a complaint for “failure to state a claim upon which relief can be
granted.” In evaluating such a motion, a court must “assume the truth of the plaintiff’s
well-pleaded factual allegations and view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is
a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the
liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). “Thus, ‘a

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A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp.
v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are
dispositive is an unsettled issue. Chavez v. Hatterman, 2009 WL 82496, at *1 (D. Colo. Jan. 13,
2009) (collecting cases). When an order denying a motion to amend removes or precludes a
defense or claim from the case it may be dispositive. Zinn-Hoshijo v. Comm. for Catholic
Secondary Educ. in Colorado Springs, 2012 WL 1582784, at *1 (D. Colo. May 7, 2012).
Magistrate Judge Tafoya assumed the Motion to Amend was dispositive and therefore issued a
Recommendation rather than resolve the Motion by Order.

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well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however,
cannot act as advocate for Plaintiff, who must still comply with the fundamental
requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
III. ANALYSIS
The Magistrate Judge recommends that: (1) Defendant’s Motion to Dismiss be
granted because Plaintiff has not alleged that Defendant personally participated in the
alleged constitutional violations; and (2) Plaintiff’s Motion to Amend be denied. (ECF
No. 23.) Plaintiff objects to the Recommendation in its entirety, claiming that there is a
question of fact as to whether Defendant personally participated in the alleged
constitutional violations, and that he should be allowed to further amend the Complaint.
(ECF No. 24.)
A.

Lack of Personal Participation
To prevail on a claim for damages for a constitutional violation pursuant to 42

U.S.C. § 1983, a plaintiff must establish that the defendant acted under color of state
law and caused or contributed to the alleged violation. Jenkins v. Wood, 81 F.3d 988,
994 (10th Cir. 1996) (citing Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1991)). “The
plaintiff must show the defendant personally participated in the alleged violation, and

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conclusory allegations are not sufficient to state a constitutional violation.” Jenkins, 81
F.3d at 994 (internal citation omitted).
Magistrate Judge Tafoya found that Plaintiff’s conclusory allegations failed to
allege any facts showing that Defendant personally participated in any of the alleged
constitutional violations set forth in the Complaint. (ECF No. 23 at 5.) The Court
agrees. As described in the Recommendation, the “Complaint is devoid of any facts
showing that Defendant participated in the computation of Plaintiff’s sentence, the
determination of his release date, or any event resulting in his alleged over-detention.”
(Id.) Since Plaintiff has failed to allege any facts showing that Defendant “personally
participated” in the alleged constitutional violations upon which the Complaint is based,
Plaintiff has failed to state a claim for relief against this Defendant.
Accordingly, Defendant’s Objection to this portion of the Recommendation is
OVERRULED, the Magistrate Judge’s Recommendation that Defendant’s Motion to
Dismiss be granted is ACCEPTED, and Defendant’s Motion to Dismiss is GRANTED.
B.

MOTION TO AMEND
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court has discretion to

grant a party leave to amend its pleadings. Fed. R. Civ. P. 15(a)(2) (“The court should
freely give leave when justice so requires.”); see Foman v. Davis, 371 U.S. 178, 182
(1962). “In the absence of any apparent or declared reason – such as . . . futility of the
amendment, etc. – the leave sought should, as the rules require, be ‘freely given.’”
Foman, 371 U.S. at 182.
The Court reviews Plaintiff’s new allegations to ensure the claims asserted
against Defendant in the proposed amendments are not futile. See id. It is well settled
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that a proposed amendment is futile only if the complaint, as amended, would not
survive a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)
(citing Jefferson Cnty. Sch. Dist. v. Moody’s Investor’s Servs., 175 F.3d 848, 859 (10th
Cir. 1999)).
Here, Plaintiff seeks leave to amend the operative Complaint to include that it
was the “policy(s) or custom(s) that [were] set up by [Defendant], as head of time
computation, and or the exercise of control or direction by virtue of the office of the
Head of Time Computations or and her lack of supervision or and failure to train . . .”
that led to Plaintiff being over detained. (ECF No. 21 at 2, 3.) Plaintiff also seeks to
incorporate an affidavit submitted in a lawsuit Plaintiff filed against the warden of CDOC.
(ECF No. 24 at 5) (citing Affidavit of Mary Carlson, dated July 16, 2011 (the “Affidavit”),
Civil Action No. 11-cv-00361-WJM.) The Affidavit states that Defendant was
“responsible for computing the parole eligibility dates, mandatory release dates and
discharge dates for [CDOC] inmates.” (ECF No. 20-1 at ¶ 2 in Civil Action No. 11-CV00361.)

Although a court is only to consider the pleadings, it may consider documents
attached to a complaint when considering a motion to dismiss. Llewellyn v. Shearson
Fin. Network, Inc., 622 F. Supp. 2d 1062, 1066-67 (D. Colo. 2009). Here, the Affidavit
was not attached to the Complaint or the Motion to Amend; Plaintiff merely referenced
the Affidavit in his Objection. (ECF No. 24 at 5.) However, since Plaintiff is proceeding
pro se, the Court holds him to a less stringent standard and incorporates the Affidavit
into the Motion to Amend. See Trackwell v. U.S., 472 F.3d 1242, 1243 (10th Cir. 2007).
The Court finds that Plaintiff’s proposed amendments do not cure the
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deficiencies in the Complaint. It is not enough for Plaintiff to allege that Defendant was
“Head of Time Computations of [CDOC]” (ECF No. 21 at 3), Plaintiff must establish “a
deliberate, intentional act by [Defendant] to violate constitutional rights.” Jenkins, 81
F.3d at 995 (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.
1992)). Plaintiff has not done so here. Neither the proposed amendments nor the
Affidavit2 show that Defendant personally directed or had actual knowledge of the
alleged constitutional violations set out in the Complaint, which is required to state a
claim for supervisor liability. See id. (“A plaintiff may satisfy this standard by showing
the defendant-supervisor personally directed the violation or had actual knowledge of
the violation and acquiesced in its continuance.”). Since the proposed amendments
would not survive a motion to dismiss, the amendments are futile. See Bradley, 379
F.3d at 901.
Accordingly, Plaintiff’s Objection to this portion of the Recommendation is
OVERRULED, the Magistrate Judge’s Recommendation to deny the Motion to Amend
is ACCEPTED, and Plaintiff’s Motion to Amend is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Court ADOPTS the Recommendation (ECF No. 23);

2.

Plaintiff’s Objection (ECF No. 24) to the Magistrate Judge’s October 9, 2013
Recommendation is OVERRULED;

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The Affidavit merely states that Defendant was “responsible for computing the parole
eligibility dates, mandatory release dates and discharge dates for DOC inmates.” (ECF No. 201 at ¶ 2 in Civil Action No. 11-cv-00361.) The Affidavit does not show that Defendant had any
role other than computing dates. (Id.)

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3.

Defendant’s Motion to Dismiss (ECF No. 17) is GRANTED;

4.

Plaintiff’s Motion to Amend (ECF No. 21) is DENIED;

5.

Plaintiff’s Motion to Set Settlement Conference (ECF No. 26) is DENIED as
MOOT because the Court has dismissed his case; and

6.

The Clerk shall enter judgment and close the case. Each party shall bear his or
her own costs.
Dated this 7th day of February, 2014.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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