Hoeck v. Miklich et al

Filing 105

ORDER. Ordered that the 101 Recommendation of Magistrate Judge is ACCEPTED. Ordered that 90 Motion for Summary Judgment is GRANTED in part and DENIED in part. Ordered that Plaintiff's 84 Motion to Correct/Amend Court Order is DENIED. By Judge Philip A. Brimmer on 3/1/2016.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00206-PAB-KLM
DAVID B. HOECK,
Plaintiff,
v.
LANCE MIKLICH,
TED STENZEL,
DARRYL PROFFIT,
MARY TOOMEY,
LINDA WORTHEN,
SCOTT LANCASTER,
TOM JORDAN,
VALARIE CRAIG,
KEN TOPLISS,
J. STRICKLETT, and
MARY ANN ALDRICH,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on (1) the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 101], and (2) the Motion to
Correct/Amend Court Order [Docket No. 84] filed by plaintiff David B. Hoeck.
The magistrate judge recommends that the Court grant in part and deny in part
defendants’ Motion for Summary Judgment on Amended Complaint [Docket No. 90].
The Recommendation, which was served on October 26, 2015, states that objections to
the Recommendation must be filed within fourteen days after its service on the parties.
Docket No. 101 at 21-22; 28 U.S.C. § 636(b)(1)(C). Plaintif f filed a timely objection to

the Recommendation. Docket No. 102. Defendants did not object to the
Recommendation.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also 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 has reviewed portions of the
Recommendation that recommend denial in part of defendants’ motion for summary
judgment to satisfy itself that there is “no clear error on the face of the record.”1 Fed. R.
Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that the Recommendation is a correct application of the facts and the law.
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). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). 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).
Plaintiff was, at all relevant times, an inmate at the Colorado Territorial

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This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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Correctional Facility (“CTCF”) within the Colorado Department of Corrections (“CDOC”).
Defendants work in various capacities at CTCF. The Recommendation sets forth the
relevant background facts, see Docket No. 101 at 2-6, and the Court will not recite them
here.
I. ANALYSIS
A. The Recommendation
The magistrate judge recommends denying the majority of defendants’ motion
for summary judgment. See generally Docket No. 101. The Recommendation,
however, finds that no dispute of material fact exists concerning portions of plaintiff’s
claim for violation of the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. § 2000cc-1(a). The magistrate judge recommends granting
summary judgment as to plaintiff’s RLUIPA claim to the extent that plaintiff alleges that
defendants violated RLUIPA by requiring plaintiff to change linens on the Sabbath,
requiring plaintiff to move cells on the Sabbath, denying plaintiff an appropriate place to
worship, and failing to classify plaintiff’s religion, Biblical Christianity, as an independent
religion rather than as part of the “umbrella group” of Messianic Believers. See
generally Docket No. 101 at 16-20.
It is difficult to discern from plaintiff’s objection the portions of the
Recommendation to which plaintiff objects. Plaintiff does not specifically discuss the
Recommendation’s findings that plaintiff’s claim related to changing linens on the
Sabbath is moot. The Court has reviewed this finding and is satisfied that there is no
error with this aspect of the Recommendation. Plaintiff does discuss defendants’

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alleged failure to provide plaintiff with an appropriate place to worship, see Docket No.
102 at 2, but plaintiff appears more concerned with the times at which he is permitted to
worship and the necessary items he needs to do so. See id. at 1 (“Biblical Christians
must not forsake the assembling the assembling of ourselves, at the appointed times,
which Defendants do not permit”) (emphasis in original); (“[t]he Defendants have told
Plaintiff that he may only worship when they permit it, in accordance with the Hebrew
calculated calendar”). The Recommendation found that there was no evidence to
support the portion of plaintiff’s RLUIPA claim that alleged he had been denied a proper
place to worship. Docket No. 101 at 19. The Recommendation further notes that, while
plaintiff made statements in his briefing that defendants did not permit him to observe
the beliefs of Biblical Christianity in the proper manner, such statements are unsworn
and, regardless, are not sufficient evidence to demonstrate a substantial burden on his
religious exercise. Id., n. 18 (citing Docket No. 95 at 3-4). Plaintiff’s objection asserts
that he “must worship when, where, and how God commands or else he will commit sin,
but the Defendants have substantially burdened Plaintiff’s free exercise to do so” by
“not providing Biblical Christians a place to worship and not allowing them to have
access to the items necessary to worship appropriately, and at the proper times[.]”
Docket No. 102 at 2. Plaintiff does not, however, direct the Court to any evidence that
defendants have denied him a proper place of worship. See generally id. Plaintiff
states that he “does not have a copy of the list of exhibits, but contends that there is
evidence” to support his claim, including certain unnamed “COPD infractions, the letters
from Defendants stating when Plaintiff could observe Passover, etc.” Id. at 1-2.

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Plaintiff’s stated belief that evidence to support his claims exists is not sufficient to
demonstrate a genuine dispute of material fact. As the nonmoving party with the
burden of proving that his religion was substantially burdened, plaintiff must designate
“specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986); see also Fed. R. Civ. P. 56(e). Further, since plaintiff fails to
point to any specific evidence that supports this portion of his RLUIPA claim, his
objection is not specific enough to allow the Court “to focus attention on those issues –
factual and legal – that are at the heart of the parties’ dispute.” 2121 East 30th Street,
73 F.3d at 1059. Nonetheless, the Court has reviewed the evidence that plaintiff
submitted in opposition to defendants’ motion for summary judgment and independently
concludes that plaintiff did not, in opposing summary judgment, point to evidence that
creates a genuine dispute of material fact as to his claim that defendants substantially
burdened his religious exercise by denying him an independent place of worship. See
generally Docket Nos. 92-1 to 92-4, 95-1.
Finally, plaintiff does not specifically address the Recommendation’s finding that
defendants are not required to reclassify Biblical Christianity in order to avoid
substantially burdening plaintiff’s religious belief. Plaintiff states that the doctrines of
Biblical Christianity “are extremely different than those of the Messianic Believers
umbrella groups,” Docket No. 102 at 2, but does not provide a specific challenge to the
Recommendation’s finding that failing to classify Biblical Christianity as an independent
religion, by itself, does not constitute a RLUIPA violation. Nor does plaintiff point to any
evidence from which the Court could determine that defendants’ failure to assign
independent religion status to Biblical Christianity substantially burdens plaintiff’s
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religious exercise. In the absence of a specific objection, the Court has reviewed the
Recommendation’s finding and is satisfied that there is no clear error on the face of the
record. Fed. R. Civ. P. 72(b), Advisory Committee Notes. Accordingly, the
Recommendation will be adopted and partial summary judgment will enter on plaintiff’s
RLUIPA claim as described in this order.
B. Motion to Amend Order
Plaintiff’s Motion to Correct/Amend Court Order, Docket No. 84, asks the Court
to modify a portion of its order dated February 19, 2014. Docket No. 47. In that order,
the Court adopted the Recommendation of United States Magistrate Judge, Docket No.
35, to the extent that the magistrate judge found that, pursuant to the Eleventh
Amendment, defendants are immune from suit for money damages in their official
capacities. Id. at 2-3 n.2, 17. Plaintiff did not object to the finding regarding
Defendants’ Eleventh Amendment immunity from money damages. See generally
Docket No. 42. In his motion to amend/correct the Court’s February 19, 2014 order,
plaintiff states that he only recently learned that the Court dismissed his claims for
monetary relief against defendants in their official capacity and that it is “obvious that, if
the allegations contained in Plaintiff’s Complaint are true, then the Defendants are all
liable in their official capacities and that the Court erred in dismissing that part of his
claims.” Docket No. 84 at 1.
The Court construes plaintiff’s motion as a motion for reconsideration pursuant to
the court’s plenary power to revisit and amend interlocutory orders as justice requires.
See Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th

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Cir. 1980 (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp. v. Teter, 313
F.2d 91, 92 (10th Cir. 1962). In order to avoid the inefficiency which would attend the
repeated re-adjudication of interlocutory orders, judges in this district have imposed
limits on their broad discretion to revisit those orders. See, e.g., Montano v. Chao, No.
07-cv-00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (apply ing
Rule 60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co.
v. McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error.
Here, plaintiff identifies no new evidence or legal authority and does not
demonstrate that the prior holding was in error. Further, the Court sees no legal error in
its adoption of the magistrate judge’s finding that defendants are immune from suit for
money damages in their official capacities. “[T]he Eleventh Amendment bars a suit
against a state official when the state is the real, substantial party in interest,” such as
where “the funds to satisfy the award must inevitably come from the general revenues
of the state.” Johns v. Stewart, 57 F.3d 1544, 1552-53 (10th Cir. 1995); see also
AMISUB (PSL), Inc. v. State of Colo. Dep’t of Social Servs., 879 F.2d 789, 792 (10th
Cir. 1989) (“Even though the clear language does not so provide, the Eleventh
Amendment has been interpreted to bar a suit by a citizen against the citizen’s own
State in Federal Court”). Accordingly, plaintiff’s motion to amend or correct the Court’s

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February 19, 2014 order will be denied.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of Magistrate Judge [Docket No. 101] is
ACCEPTED. It is further
ORDERED that defendants Lance Miklich, Ted Stenzel, Darryl Proffit, Mary
Toomey, Linda Worthen, Scott Lancaster, Tom Jordan, Valarie Craig, Ken Topliss, J.
Stricklett, and Mary Ann Aldrich’s Motion for Summary Judgment on Amended
Complaint [Docket No. 90] is GRANTED in part and DENIED in part. It is granted with
respect to plaintiff’s allegations that defendants’ actions in requiring plaintiff to change
linens on the Sabbath, requiring plaintiff to move cells on the Sabbath, denying plaintiff
an appropriate place to worship, and failing to classify Biblical Christianity as an
independent religion violated the Religious Land Use and Institutionalized Persons Act
of 2009. It is denied in all other respects. It is f urther
ORDERED that plaintiff David B. Hoeck’s Motion to Correct/Amend Court Order
[Docket No. 84] is DENIED.

DATED March 1, 2016.
BY THE COURT:

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

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