Tennyson v. Carpenter et al

Filing 105

OPINION AND ORDER REVERSING AND VACATING ORDER AUTHORIZING THE FILING OF A SECOND AMENDED COMPLAINT, AND AFFIRMING ORDER DISMISSING CLAIMS: The Plaintiff's Objections (#49) are SUSTAINED, in part. The Magistrate Judge's Order (#87) granting the Plaintiff's Motion for Leave to File Second Amended Complaint is REVERSED AND VACATED, in part, and AFFIRMED, in part. The Order is reversed to the extent it grants Plaintiff's motion to add a new claim aga inst Michael Fred Dycus, and it is affirmed to the extent it grants the Plaintiff's motion to voluntarily dismiss claims. The operative complaint in this case is the Amended Prisoner Complaint (#18) filed on June 3, 2013, but it is limit ed to a single claim against Mr. Carpenter. The caption shall be amended accordingly. The Second Amended Complaint (#88) filed on September 17, 2015, is stricken. Michael Fred Dycus's Motion for Summary Judgment 104 and Defendant Van ce Everett's Motion for Summary Judgment 69 are both DENIED AS MOOT. The pending Motion for Summary Judgment 69 filed by Defendant Matthew Carpenter will be resolved in due course. by Chief Judge Marcia S. Krieger on 12/10/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00648-MSK-CBS
AUDREY LEE TENNYSON,
Plaintiff,
v.
MATTHEW CARPENTER, and
MICHAEL FRED DYCUS,
Defendants.
OPINION AND ORDER REVERSING AND VACATING ORDER
AUTHORIZING THE FILING OF A SECOND AMENDED COMPLANT,
AND AFFIRMING ORDER DISMISSING CLAIMS
THIS MATTER is before the Court on the Defendants’ Objections (#95) to the
Magistrate Judge’s Order (#87) granting the Plaintiff Audrey Lee Tennyson’s Motion for Leave
to File Second Amended Complaint (#82). Mr. Tennyson filed a Response (#102) to the
Objections.
I. Background
In March 2013, Mr. Tennyson, an inmate under the supervision of the Colorado
Department of Corrections, filed a pro se prisoner complaint asserting claims under 42 U.C.C. §§
1893, 1985, and 1986; the Religious Use and Institutionalized Persons Act of 2000 (RLUIPA),
42 U.S.C. §§ 2000cc-2000cc-5; and state law. His Amended Complaint (#18) generally alleges
that he was suspended from the prison choir, known as the “Praise Team,” in retaliation for using
the prison grievance process to try to retrieve personal photographs (kept in his choir binders)
that were confiscated from him during a prison shakedown. The amended complaint alleges that

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the prison chaplain, Michael Fred Dycus, suspended Mr. Tennyson after the chaplain’s
“Superiors” found Mr. Tennyson guilty of misusing his choir binders as photo albums. It further
alleges that the chaplain told Mr. Tennyson that he had been directed to discipline him for
misconduct. Mr. Tennyson did not name Mr. Dycus as a defendant in the amended complaint,
stating that he was “omitted because he couldn’t have known of the grievance otherwise.” The
amended complaint names only Matthew Carpenter (a prison official who responded to Mr.
Tennyson’s grievances) and “the Superiors, not yet identified,” as the individuals responsible for
his suspension.1
The amended complaint was sua sponte dismissed as legally frivolous. Mr. Tennyson
filed a pro se appeal. On March 18, 2014, the Tenth Circuit issued its Order and Judgment
affirming the dismissal in part and reversing it in part. The Tenth Circuit held that Mr. Tennyson
had sufficiently pled First Amendment, RLUIPA, retaliation, and equal protection claims against
Defendant Matthew Carpenter and the “Superiors,”2 but the court affirmed dismissal of all
Eighth Amendment claims, claims under 42 U.S.C. §§ 1985 and 1986, claims against Defendant
Sparks for unreasonable seizure and violation of procedural due process, and all claims against
the Kit Carson Correctional Center.
On June 26, 2014, an attorney entered an appearance on behalf of Mr. Tennyson. A
Scheduling Order and subsequent amendment required the parties to (1) join parties and amend
pleadings by October 3, 2014; (2) complete discovery by March 20, 2015, and (3) file dispositive
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As initially filed, the amended complaint names the following Defendants: Matthew Carpenter,
Chief of Unit Managers; Robert Sparks, Unit Manager; “The Superiors,” Identities Not Yet
Known; Vance Everett, K.C.C.C. Warden; Kit Carson Correctional Center; and Roger Werholtz,
C.D.O.C. Executive Director.
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The Tenth Circuit also directed the district court to consider the claims against Defendants
Everett and Werholtz, as well as the procedural due process claim against Defendant Carpenter
and the Superiors, because the district court had not previously considered these claims.
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motions by April 20, 2015. Defendants Carpenter and Everett timely filed a motion for summary
judgment. Mr. Tennyson responded to the motion on April 21, 2015, and indicated that he
intended to file a motion to amend the pleadings to add Chaplain Dycus as a defendant.
On August 4, 2015, ten months after expiration of the deadline in the Scheduling Order
and four months after responding to the motion for summary judgment, Mr. Tennyson filed a
motion requesting authorization to file a Second Amended Complaint. The proposed Second
Amended Complaint, attached to the motion, asserts only a claim against Matthew Carpenter and
Michael Fred Dycus under 42 U.S.C. § 1983 for denial of Mr. Tennyson’s right to exercise his
religion under the First Amendment. The proposed Second Amended Complaint apparently
abandons all other claims. The single claim is premised upon allegations that the suspension
from the Praise Team substantially burdened Mr. Tennyson’s right to exercise his sincerely held
religious beliefs and that there was no penological purpose for the suspension. It further alleges
that the suspension was based on a pretextual allegation of misconduct. Mr. Tennyson
apparently learned facts pertaining to this new theory in depositions taken in March 2015.
The matter was referred to the Magistrate Judge. In an oral ruling, the Magistrate Judge
granted the motion and accepted the proposed Second Amended Complaint. Apparently relying
on a concern for judicial economy, the Magistrate Judge found that there was good cause to
allow amendment after the deadline imposed by the scheduling order and that amendment should
be allowed under Fed. R. Civ. P. 15.
The Defendants, now Mr. Carpenter and Mr. Dycus, filed timely Objections (#95) to the
Magistrate Judge’s ruling. They argue that the Magistrate Judge erred in determining that (1)
there was good cause under Fed. R. Civ. P. 16(b) to modify the Scheduling Order after the
deadline for amendment had passed, and (2) amendment is allowed under Rule 15.

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II. Standard of Review
Pursuant to Fed. R. Civ. P. 72(a), the Court reviews the objected-to portions of the
Magistrate Judge’s Order under the “clearly erroneous or contrary to law standard. 28 U.S.C.
§636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 56 (10th Cir. 1997); Ariza v. U.S. West
Communications, Inc., 167 F.R.D. 131, 133 (D.Colo. 199). Accordingly, the Defendants’
Objections will be overruled unless the Court finds that the Magistrate Judge abused his
discretion or, if after viewing the record as a whole, the Court is left with a “definite and firm
conviction that a mistake has been made.” Ariza, 167 F.R.D. at 133 (citing Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)).
III. Analysis
Although Mr. Tennyson filed only a single motion to amend the complaint, the Court
understands the motion to make two distinct requests. First, Mr. Tennyson seeks to state a new
First Amendment claim against Michael Fred Dycus. Second, he seeks to dismiss all claims
except for a First Amendment claim against Mr. Carpenter and Mr. Dycus. These requests
require different analyses, and therefore the Court treats Mr. Tennyson’s motion in two parts.
A. Addition of Claim against Michael Fred Dycus
A two-step analysis is used to determine whether to allow amendment of a complaint to
add a claim after the passing of the deadline established by the Scheduling Order. First, the
Court considers whether the moving party has shown good cause under Fed. R. Civ. P. 16(b) to
seek modification of the scheduling order. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank
Assoc., 771 F.3d 1230, 1242 (10th Cir. 2014). Second, the Court weighs whether amendment
should be allowed under Fed. R. Civ. P. 15(a). Id.

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Rule 16(b) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” This standard requires the movant to show that “the scheduling
deadlines cannot be met despite [the movant’s] diligent efforts.” Id. at 1240 (citing Pumpco, Inc.
v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D.Colo. 2001)). The burden may be satisfied, for
example, when the movant learns new information through discovery or if the underlying law
has changed. Id. However, Rule 16(b) does not focus on the bad faith of the movant, or the
prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to
modify the scheduling order to permit the proposed amendment. Colo. Visionary Acad. v.
Medronic, Inc., 194 F.R.D. 684, 687 (D.Colo. 2000).
Here, the record is completely devoid of any showing that Mr. Tennyson’s counsel was
diligent in moving to amend the complaint. As noted, the motion to amend was filed ten months
after the deadline imposed by the Scheduling Order, five months after counsel deposed Chaplain
Dycus, four and one-half months after the close of discovery, and nearly four months after Mr.
Tennyson announced his intent to amend in his response to the motion for summary judgment.
Mr. Tennyson’s counsel entered his appearance on June 26, 2014, and as noted in several
pleadings, counsel recognized the need to investigate and ascertain what, if any, further
amendments to the complaint were required. But, he inexplicably delayed in conducting the
necessary discovery until after the amendment deadline had passed and close to the end of the
discovery period. Then, he inexplicably delayed for more than five months after conducting the
salient depositions in seeking to further amend Mr. Tennyson’s Amended Complaint. Mr.
Tennyson makes absolutely no showing as to why he did not move to amend immediately after
taking the depositions in March 2015. On this record, the Court cannot find that Mr. Tennyson
was diligent in seeking to file a Second Amended Complaint. Therefore, there has been no good

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cause shown to modify the deadline in the Scheduling Order under Rule 16(b). Because Mr.
Tennyson failed to satisfy his burden under Rule 16(b), it is not necessary to undertake a Rule
15(a) analysis.
B. Dismissal of Claims
As noted, the proposed amendment to the Amended Complaint deleted all claims other
than a single claim against Mr. Carpenter.3 In this regard, the Motion to Amend operates as a
motion to voluntarily dismiss claims. As such, it is not subject to the Scheduling Order or Rule
16(b). It is, instead, governed by Fed. R. Civ. P. 41(a)(2). There is no opposition to Mr.
Tennyson’s dismissal of claims against all other Defendants, and therefore the Court grants the
motion. All of Mr. Tennyson’s claims are dismissed but for a single claim against Mr. Carpenter
under 42 U.S.C. § 1983 for denial of Mr. Tennyson’s right to exercise his religion under the First
Amendment.
IV. Conclusion
For the forgoing reasons, the Plaintiff’s Objections (#49) are SUSTAINED, in part. The
Magistrate Judge’s Order (#87) granting the Plaintiff’s Motion for Leave to File Second
Amended Complaint is REVERSED AND VACATED, in part, and AFFIRMED, in part.
The Order is reversed to the extent it grants Plaintiff’s motion to add a new claim against
Michael Fred Dycus, and it is affirmed to the extent it grants the Plaintiff’s motion to voluntarily
dismiss claims. The operative complaint in this case is the Amended Prisoner Complaint (#18)
filed on June 3, 2013, but it is limited to a single claim against Mr. Carpenter. The caption shall
be amended accordingly. The Second Amended Complaint (#88) filed on September 17, 2015 is
stricken.
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Had Mr. Tennyson been allowed to file a Second Amended Complaint, there also would have
been a new claim against Mr. Dycus.
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Michael Fred Dycus’s Motion for Summary Judgment (#104) and Defendant Vance
Everett’s Motion for Summary Judgment (#69) are both DENIED AS MOOT. The pending
Motion for Summary Judgment (#69) filed by Defendant Matthew Carpenter will be resolved in
due course.
Dated this 10th day of December, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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