Toney v. Berkebile et al

Filing 173

ORDER adopting Report and Recommendations 150 and denying 160 Motion for Order; denying 161 Motion for Order; denying 166 Motion for Order. Granting 126 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to enter JUDGMENT in favor of Defendants and against Plaintiff and CLOSE this case. By Judge Raymond P. Moore on 3/13/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-00111-RM-NYW
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A.W. HALL,
A.W. KUTA,
S.I.S. REDDEN,
R. MARTINEZ,
Ms. RANGEL,
Ms. SUDLOW, and
Mr. MADISON,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION (ECF No. 150)
AND ORDERS (ECF NOS. 146 & 163), AND OVERRULING PLAINTIFF’S
OBJECTIONS, AND GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON
THE PLEADINGS (ECF NO. 126)
This matter is before the Court on two orders and one recommendation by Magistrate
Judge Boyd N. Boland1 and Plaintiff’s objections to those filings. The filings at issue are as
follows:
A.

Discovery Matters.

(1) An Order by Magistrate Judge Boland (“First Order”) (ECF No. 146) on five motions
filed by Plaintiff Joe M. Toney (“Plaintiff”) (ECF Nos. 124, 128, 132, 139, 141);

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On February 9, 2015, this case was reassigned to Magistrate Judge Nina Y. Wang upon her appointment.

(2) Plaintiff’s Motion to Submit Objections (ECF No. 161) to the First Order;
B.

Recusal Matters.

(1) An Order by Magistrate Judge Boland (“Second Order”) (ECF No. 163) denying
Plaintiff’s Motion to Recuse (ECF No. 149); and
(2) Plaintiff’s Motion to Submit Objections (ECF No. 166) to the Second Order.
C.

Dispositive Matters.

(1) Magistrate Judge Boland’s Recommendation (“Recommendation”) (ECF No. 150) on
Defendants’ Motion for Judgment on the Pleadings (ECF No. 126); and
(2) Plaintiff’s Motion to File Objections Out of Time (ECF No. 160) to the
Recommendation (ECF No. 150).
For the reasons below, Plaintiff’s objections to Magistrate Judge Boland’s First and
Second Orders are OVERRULED; Magistrate Judge Boland’s Recommendation to grant
Defendants’ Motion for Judgment on the Pleadings is ADOPTED; Judgment on the Pleadings is
GRANTED for the Defendants; and this case is DISMISSED.
I.

LEGAL STANDARDS
A.

Review of a Magistrate Judge’s Dispositive Report and Recommendation.

When a magistrate judge issues a recommendation on a dispositive matter, 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.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil
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Procedure and specific enough to let the “district judge…focus attention on those 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)).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have
fourteen (14) days after service of a recommendation to serve and file specific written objections
to that recommendation with the District Judge assigned to the case. The District Judge need not
consider frivolous, conclusive, or general objections. A party’s failure to file and serve such
written, specific objections waives de novo review of the recommendation by the District Judge.
Thomas v. Arn, 474 U.S. 140, 148–53 (1985). It also waives appellate review of both factual and
legal questions. Makin v. Colo. Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412–13 (10th Cir. 1996).
B.

Review of the Magistrate Judge’s Non-Dispositive Orders.

In considering timely objections to non-dispositive rulings by a magistrate judge, the
Court must adopt the magistrate judge’s ruling unless it finds that the ruling is “clearly erroneous
or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Hutchinson v. Pfeil, 105
F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S. West Commc’ns, Inc., 167 F.R.D. 131, 133 (D.
Colo. 1996). The clearly erroneous standard “requires that the reviewing court affirm unless it
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal
quotation marks and citation omitted).
The “contrary to law” standard permits “plenary review as to matters of law,” but the
Court will set aside a Magistrate Judge’s order only if it applied the wrong legal standard or
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applied the appropriate legal standard incorrectly. 12 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3069, at 350, 355 (2d ed. 1997). “Because a magistrate judge
is afforded broad discretion in the resolution of non-dispositive . . . disputes, the court will
overrule the magistrate judge’s determination only if his discretion is abused.” Ariza, 167 F.R.D.
at 133; see also Wright et al., supra, at 350 (noting that the “contrary to law” standard appears to
invite plenary review but noting that “many matters . . . might be better characterized as suitable
for an abuse-of-discretion analysis”).
C.

Standards for Dismissal.

A Rule 12(c) motion for judgment on the pleadings is evaluated using “the standard of
review applicable to a Rule 12(b)(6) motion to dismiss.” Corder v. Lewis Palmer Sch. Dist. No.
38, 566 F. 3d 1219, 1223 (10th Cir. 2009) (quoting Nelson v. State Farm Mut. Auto. Ins. Co., 419
F.3d 1117, 1119 (10th Cir. 2005)); see also Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th
Cir. 2012).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may
move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
129 S. Ct. at 1949.

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D.

Pro Se Status.

Plaintiff is proceeding pro se; as such, 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).
II.

FACTS AND PROCEDURAL HISTORY
Plaintiff, proceeding pro se, is incarcerated by the United States Bureau of Prisons at the

United States Penitentiary, Administrative Maximum (“ADX”) in Florence, Colorado. He filed
his Amended Prisoner Complaint (ECF No. 20) on February 15, 2013. He alleged thirteen
separate claims, which this Court construes, like Magistrate Judge Boland did, as denial of his
First Amendment right to access to the courts against all defendants, and a violation of the
Plaintiff’s equal protection rights. (ECF No. 150). Plaintiff seeks declaratory and injunctive
relief. Like all of his subsequent filings, it is not a model of clarity.
Defendants moved for judgment on the pleadings, alleging that Plaintiff failed to state a
claim for violation of the First Amendment or the Fifth Amendment. Magistrate Judge Boland
recommended granting judgment on the pleadings (ECF No. 150), to which Plaintiff objected,
untimely. (ECF No. 160.) The response was untimely, even after this Court granted him an
extension. (Order, ECF No. 158.)
During the course of discovery in this matter, the magistrate judge made various rulings
on non-dispositive matters. Several of the rulings were contained in an Order filed at ECF No.
146. At the same time that Plaintiff filed his untimely objections to the Recommendation, he

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also filed untimely objections (ECF No. 161) to the discovery order. Again, this was
notwithstanding the fact that the Court had granted him an extension of time (ECF No. 158).
Whether motivated by the discovery order or not, shortly after issuance of the discovery
order, Plaintiff filed a Motion to Recuse, (ECF No. 149.) The magistrate judge denied the
motion. (ECF No. 163.) Plaintiff timely filed objections. (ECF No. 166.)
III.

ANALYSIS
This Court has reviewed the Recommendation, the Orders, Plaintiff’s objections and all

relevant pleadings, and concludes that, apart from one minor issue that does not necessitate an
outcome different from that reached by the magistrate judge, Magistrate Judge Boland’s analysis
of the issues on which objections were filed was thorough and his conclusions were correct.
A.

Plaintiff’s Objection (ECF No 161) to Magistrate Judge Boland’s April 2,
2014, Order (ECF No. 146) – the First Order.

On April 2, 2014, Magistrate Judge Boland considered five separate motions which
Plaintiff filed. In the First Order, Judge Boland denied all of them, except a motion to file a
reply. (ECF No. 146.) Plaintiff now submits a limited objection, but his objection, filed May 13,
2014, is untimely. Plaintiff’s untimeliness ends the Court’s need for further analysis. However,
the Court recognizes his pro se status and will nonetheless address his objections. Plaintiff’s
objections—to the extent that this Court can discern them—fail.
As the First Order is not dispositive of a claim or a defense, this Court reviews it for clear
error. Plaintiff’s objections concern the ruling on only two motions: his Motion to Reconsider
Motion for Order Permitting Depositions of Witnesses (ECF No. 124) and his Motion for
Production to Produce a Copy of the Scheduling Conference Transcript’s From (ECF No. 128).

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Plaintiff states that his objections relating to his “motion for order permitting depositions”
are included in his objections to the Recommendation to grant Defendants’ motion for judgment
on the pleadings. (ECF No. 161 at 1–2.) But other than accusing the magistrate judge of bias,
no particular objection is therein raised. To the extent Plaintiff has specific objections to the
order denying his motion for reconsideration, he must include those in the objections. He has not
done so, and he fails to demonstrate any reason why the First Order denying his motion for
reconsideration is clearly erroneous. Indeed, nothing filed by Plaintiff even addresses the proper
bases for reconsideration. His objection is overruled.
Plaintiff also objects to the denial of his motion for a copy of the transcript for the
scheduling conference because the transcript is “essential for appellate review.” (ECF No. 161 at
2.) However, Magistrate Judge Boland correctly found that Plaintiff “does not cite any
competent authority for his request, nor does he explain in any detail why the transcript is
necessary.” (ECF No. 146 at 3.) Here, again, the First Order is not clearly erroneous. Plaintiff’s
objection is overruled.
B.

Plaintiff’s Objection (ECF No. 166) to Magistrate Judge Boland’s Order
denying Plaintiff’s Motion to Recuse – the Second Order.

Plaintiff objects (ECF No. 166) to the Second Order (ECF No. 163) denying Plaintiff’s
Motion to Recuse (ECF No. 149). Plaintiff requested that Magistrate Judge Boland recuse
himself from the case pursuant to 28 U.S.C. §§ 144 and 455 because: (1) he is biased against
Plaintiff, and (2) he has ruled in favor of Defendants throughout the proceedings. Plaintiff has
two bases for objection to the denial of his motion, although only one is articulated in a manner
reasonably construable as an objection.

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First, Plaintiff objects to the denial of the 28 U.S.C. § 144 aspect of his motion based on
the magistrate judge’s finding that the statute “requires an affidavit” showing personal bias or
prejudice and “plaintiff has not submitted a supporting affidavit with his Motion.” (ECF No. 163
at 1.) Plaintiff notes, correctly, that contemporaneously with his motion, he filed a “Declaration
Joe m. Toney, Jr.” (ECF No. 148). Plaintiff contends that his declaration should be considered
as a supporting affidavit as he is pro se and the declaration purported to be submitted under
penalty of perjury. The Court agrees and will review the matter de novo.
The “affidavit” submitted by Plaintiff is hardly a “sufficient affidavit” within the meaning
of 28 U.S.C. § 144. Rather than meaningfully suggest bias, the “affidavit” simply recites rulings
made adverse to plaintiff followed by the wholly conclusory statement that “the court been in
favor of defendants’ throughout the proceedings.” Moreover, it lacks a certificate that it was
filed in good faith as required by 28 U.S.C. § 144. (ECF No. 148 at 3.) And even were this
Court to consider the “affidavit” technically sufficient – which it is not – I would deny the
motion as no bias is shown or even suggested by a mere recitation of adverse rulings. Moreover,
I accept Magistrate Judge Boland’s explanation of his various rulings as set forth in that portion
of the Second Order addressing recusal on § 455 grounds.
Second, Plaintiff objects to the magistrate judge’s refusal to recuse under 28 U.S.C. § 455
because the “magistrate court denial’s constitute a violation of due process and plaintiff
‘objects’….” This conclusory statement, without explanation, follows Plaintiff’s statement of his
reasons for filing two of the motions which the magistrate judge had denied before Plaintiff filed
his motion to recuse.

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Plaintiff’s conclusory statement is not a sufficient objection. And his explanation as to
why he filed motions which ultimately were denied amounts to little more than disagreement
with the magistrate judge’s eventual rulings. But disagreement is a far cry from proof of bias.
The Court agrees that the magistrate judge properly denied Plaintiff Motion to Recuse under 28
U.S.C. § 455. Plaintiff’s objection is overruled.
C.

Plaintiff’s Objections (ECF No. 160) to Magistrate Judge Boland’s
Recommendation (ECF No. 150) on Defendants’ Motion for Judgment on the
Pleadings (ECF No. 126).

On April 3, 2014, Magistrate Judge Boland recommended granting judgment on the
pleadings in Defendants’ favor, and that Plaintiff’s Amended Complaint be dismissed in its
entirety. (ECF No. 150.) After the deadline for any objections, Plaintiff filed a motion for a
fourteen day extension of time on April 24, 2014. (ECF No. 154.) That motion was granted by
the Court and Plaintiff’s time for objection extended to May 8, 2014. Despite this, Plaintiff still
did not file objections in a timely manner. Instead, a Motion to File Objections Out of Time to
the Recommendation of the Magistrate Judge Order (ECF No. 160) was filed on May 13, 2014.
Recognizing the untimeliness, Plaintiff prefaced the objection with a request that this Court
“consider his objections out of time.” (ECF No. 160 at 1.)
As Plaintiff has failed to show good cause, the Court denies Plaintiff’s motion for any
extension of time, and his untimely objection to the Recommendation obviates the need for
further analysis. However, in light of his pro se status, the Court will nonetheless briefly address
Plaintiff’s allegations of what he deems “abuse of process,” “bias against the plaintiff,” and “bias
in favor of the defendant.” Even considering Plaintiff’s “objections” under the standard most
generous to him (de novo, and also liberally construing his pro se claims), they still fail.
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1.

Abuse of process.

Alleging “abuse of process,” Plaintiff appears to claim that Magistrate Judge Boland and
the Court (what he calls “the magistrate court”) have violated his rights by not allowing him to
file any pre-trial motions. (ECF No. 160.) If meant as some form of actionable claim, judicial
immunity prohibits Plaintiff from making such claims against Magistrate Judge Boland in his
judicial capacity. Pierson v. Ray, 386 U.S., at 554, 87 S.Ct., at 1218 (“[I]mmunity applies even
when the judge is accused of acting maliciously and corruptly”). If otherwise interpreted as a
criticism that Plaintiff has not been permitted to obtain evidence through discovery and that this
lack of evidence has inhibited Plaintiff’s ability to counter the Defendants’ motion for judgment
on the pleadings, Plaintiff’s “objection” fails.
The objection fails to take issue with any finding or legal conclusion in the
Recommendation. Instead, it by-passes the Recommendation and quarrels with various
discovery issues which are neither relevant to nor referenced in the Recommendation. And
Plaintiff misses the point in any event. The motion for judgment on the pleadings addresses the
adequacy of the allegations of the Amended Complaint, not the sufficiency of latter developed
evidence. Plaintiff does not even attempt to defend the adequacy of his pleadings. The objection
is overruled.
2.

Bias against Plaintiff.

Plaintiff also alleges that Magistrate Judge Boland is biased against him. Plaintiff has
made this claim before—twice—and Magistrate Judge Boland and this Court have now rejected
it. (See ECF Nos. 98 & 163.) Again, Plaintiff does not even attempt to challenge the findings
and legal conclusions in the Recommendation. Instead, he urges the Court simply to “grant” his
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objection and “remand.” (ECF No. 160, at 4.) This is not a valid objection to the
recommendation as it is directed to no aspect of the Recommendation. Rather, it is a repeat and
rehashing of the Motion to Recuse which this Court has now rejected. The “objection” fails.
3.

Bias in favor of Defendants.

Plaintiff lastly alleges that Magistrate Judge Boland is “[biased] in favor of the
defendant.” (ECF No. 160 at 4.) At least by title, it would appear that this objection is similar if
not identical to Plaintiff’s other bias “objection.” But this one, despite its title, is different.
What Plaintiff argues is that the Recommendation should not have been in favor of
granting the Defendants’ Motion for Judgment on the Pleadings because Defendants “filed ‘no’
factual ‘evidence’ of material fact’s under the circumstances that ‘render’ a 12(b) motion.” (ECF
No. 160, at 5-6). In support, Plaintiff cites Green v. United States, 630 F.3d 1245, 1249 (9th Cir.
2011) (“Green”). Plaintiff misunderstands Green and assumes that all Rule 12 motions are
evaluated under the same standards. He is wrong.
Green involved a Rule 12(b)(1) motion where the matter at issue was whether the district
court had subject matter jurisdiction under the Federal Tort Claims Act in the face of a claim that
the discretionary function exception shielded the government from suit. In response to the
government motion, the defendants attempted to amend their complaint to plead violation of
government policy and regulations (which would have overcome the discretionary function
exception). The district court denied the motion to amend because “there was no evidence in the
record to support [the] new contention.” Green, at 1248. From this, Plaintiff crafts a belief that
a Rule 12(c) motion (or a Rule 12(b)(6) motion) must be supported by factual evidence. Since

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none was provided here, he argues that Defendants’ motion was defective, as was the
Recommendation to grant the motion.
Suffice to say, the objection is overruled. The matter at hand involves neither a Rule
12(b)(1) motion nor a motion to amend. Plaintiff’s claim that Defendants were obligated to
provide the Court with either evidence or some recitation of undisputed material facts is simply
wrong. Defendants’ motion was directed to Plaintiff’s pleadings. And the lack of a factual
presentation was not and is not an impediment to the issuance of the Recommendation.
IV.

CONCLUSION
Based on the foregoing, it is ORDERED that:
(1) Plaintiff’s Motion to Submit Objections to the United States Magistrate Judge Order
(ECF No. 161) is DENIED and any Objections therein OVERRULED.
(2) Plaintiff’s Motion to Submit Objections to the United States Magistrate Judge Order
(ECF No. 166) is DENIED and any Objections therein OVERRULED.
(3) Plaintiff’s Motion to File Objections Out of Time to the Recommendation of the
Magistrate Judge Order (ECF No. 160) is DENIED and any Objections therein
OVERRULED.
(4) Magistrate Judge Boland’s Recommendation (ECF No. 150) on Defendants’ Motion
for Judgment on the Pleadings (ECF No. 126) is ADOPTED.

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(5) Defendants’ Motion for Judgment on the Pleadings (ECF No. 126) is GRANTED in
favor of the Defendants and the Complaint is dismissed with prejudice. The Clerk of
the Court is directed to enter JUDGMENT in favor of Defendants and against Plaintiff
and CLOSE this case.
DATED this 13th day of March, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge 

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