DeVaughn v. Solis

Filing 60

ORDER and Recommendation by Magistrate Judge Kristen L. Mix on 12/10/14. It is recommended that 24 Motion to Dismiss be granted in part, that 38 Motion to Dismiss be granted, and that 46 Motion for Leave to Amend Complaint and 52 Motion to Amend Complaint be denied. The First Motion 41 , Section Motion 44 , Third Motion 47 , Fourth Motion 51 , Fifth Motion 54 , and Sixth Motion 58 are denied as moot. (dkals, ) Modified on 12/11/2014 to change event (dkals, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00139-LTB-KLM
JAY DEVAUGHN,
Plaintiff,
v.
PRISONER GUARD C. HENDENSKOG,
PRISON GUARD GOULD, and
LIEUTENANT ANDRES SOLIS, Englewood FCI,
Defendants.
_______________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
I. Recommendation Regarding Dispositive Motions and Motion to Amend
This matter is before the Court on Defendant Lieutenant Solis’s Motion to
Dismiss [#24]1 (the “Solis MTD”), Defendant [H]endenskog and Gould’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 23) [#38] (the “Second MTD”), Plaintiff’s Motion for
Leave to Amend Complaint [#46] (the “First MTA”), and Plaintiff’s Motion to Amend
Complaint [#52] (the “Second MTA” and, collectively with the Solis MTD, the Second MTD,
and the First MTA, the “Motions”). Plaintiff Jay Devaughn, who proceeds in this matter pro
se, filed a Response to the Solis MTD [#39]. Defendant Solis has not filed a reply and his
time to do so has elapsed. Plain filed a Response to the Second MTD [#42], Defendants

1

“[#24]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.

1

Hendenskog and Gould filed a Reply [#49], and, without seeking leave of the Court, Plaintiff
filed a Surreply [#56]. Defendants filed a Response to the First MTA [#50] and Plaintiff filed
a Reply [#57] in further support of the First MTA [#57]. Defendants have not filed a
response to the Second MTA and their time to do so has elapsed. Pursuant to 28 U.S.C.
§ 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the
undersigned for a recommendation regarding disposition [##25, 40, 46, 53]. The Court has
reviewed the Motions, the Responses, the Replies, the Surreply, the entire case file, and
the applicable law, and is sufficiently advised in the premises. For the reasons set forth
below, the Court respectfully RECOMMENDS that the Solis MTD [#24] be GRANTED in
part, that the Second MTD [#38] be GRANTED, that the First MTA [#46] be DENIED, and
that the Second MTA [#52] be DENIED.
A.

Background
1.

Allegations

On January 17, 2014, Plaintiff initiated this Bivens2 action by filing his Complaint [#1].
In his Complaint, Plaintiff brought claims against Defendant Solis, Unnamed BOP Guard
#1, and Unnamed BOP Guard #2 for an incident he alleged occurred on January 28, 2010.
Complaint [#1] at 2. Specifically, he alleged that the three Defendants violated his Eighth
Amendment right by exerting excessive force and failing to provide him with medical care.
Id.

Plaintiff is suing each Defendant in his individual capacity and seeks $14,000 in

2

In Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the United States Supreme Court created a cause of action for money damages and
injunctive relief against federal officials acting under color of their authority for violations of an
individual’s constitutional rights, 403 U.S. at 395-97. Bivens only authorizes suit against federal
officials in their individual capacities. Smith v. United States, 561 F.3d 1090, 1093 (10th Cir. 2009).

2

damages. Id. at 6-7. Plaintiff states that he brings these claims pursuant to 42 U.S.C. §
1983.3 Id. at 4.
On June 23, 2014, Plaintiff sought leave to file his Amended Complaint [#23], which
was granted on June 24, 2014 [#22]. The Amended Complaint identified the two unnamed
BOP guards as Defendants Hendenskog and Gould. Am. Compl. [#23] ¶ 6. The Amended
Complaint also provided more details regarding the incident described in the Complaint and
referred to it as occurring on January 28, 2011, not January 28, 2010.4 Am. Compl. [#23]
¶¶ 7-16. Plaintiff also alleged that he was denied due process relating to his placement in
administrative segregation. Id. ¶¶ 14-17. In addition, Plaintiff averred that he was denied
medical care. Id. ¶¶ 18-19. Thereafter, Defendant Solis filed the Solis MTD [#24].
Because Defendants Hendenskog and Gould were not named in the original Complaint,
the Court ordered the United States Marshals Service to effectuate service of the Amended
Complaint on them. Minute Order [#26] at 1. Thereafter, these Defendants filed the
Second MTD.
2.

The Solis MTD

In the Solis MTD, Defendant Solis argues, among other things, that Plaintiff’s claims
are time-barred. Solis MTD [#24] at 3-5. Specifically, he argues that Plaintiff’s claims
“accrued on January 28, 2011, when Lt. Solis allegedly intimidated [Plaintiff] into signing

3

42 U.S.C. § 1983 creates a private right of action against state employees and Bivens is
“the federal analog to a § 1983 suit . . . .” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013).
4

Plaintiff’s later filings state that the incident occurred on January 28, 2011. See, e.g.,
Motion for Judicial Notice [#41] at 1; Proposed Second Amended Complaint [#46-1] ¶ 4; Proposed
Third Amended Complaint [#52-1] at 1. In the motions to dismiss, Defendants use the 2011 date
for purposes of arguing that the claims are time-barred. See, e.g., Solis MTD [#24] at 2; Second
MTD [#38] at 1.

3

an incident report statement that left out the alleged assault on Plaintiff, and when,
somehow, Lt. Solis assaulted and battered Plaintiff (even though Lt. Solis was not present
during that incident.)[.]” Id. at 4. Defendant Solis contends that, to the extent Plaintiff
asserts a claim of assault or battery against him, a one-year statute of limitation applies
and, to the extent Plaintiff brings other tort claims, a two-year statute of limitations applies.
Id. Accordingly, Defendant argues that all claims asserted against him by Plaintiff are
barred by applicable statutes of limitations because they were first asserted in the
Complaint filed on January 17, 2014.
In his Response to the Solis MTD, Plaintiff does not disagree regarding the
applicable statutes of limitations. Response to Solis MTD [#39] at 7. Instead, he argues
that the Court should equitably toll the statutes of limitations because “‘truly extraordinary
circumstances prevented the Plaintiff from filing his or her claim, despite diligent efforts.’”
Id. at 8 (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 F.2d 1094, 1099 (Colo. 1996)).
Plaintiff argues that his circumstances are extraordinary as follows:
Plaintiff has pursued a complaint with the Office of the Inspector General
through a Lieutenant Myers of Big Springs’ SIS (Special Investigative
Services) in October 2012. Plaintiff has filed a Freedom of Information Act
Request to be given the results of that investigation. Plaintiff also filed a BP9 and BP-10 in approximately September of 2011. He has filed a BP-11, and
it has been processed. Plaintiff also filed a Federal Tort Claim in December
of 2013, and the response from the Legal Services Office of the Bureau of
Prisons in Florence stated that “we find that you did not suffer damages as
a result of negligence in this case.”
The Plaintiff also suffers from Bipolar Disorder, which results in mood and
energy swings. Plaintiff has never been to prison before, and he had never
heard of a Bivens action until August of 2013.
Id. at 8. Plaintiff argues that “[t]hese are examples of extraordinary circumstances which
merit equitable tolling.” Id.
4

3.

The Second MTD

In the Second MTD, Defendants Hendenskog and Gould argue that Plaintiff’s claims
against them are time-barred. Second MTD [#38] at 3-4. Specifically, they argue that the
claims asserted against them are subject to a two-year statute of limitations and that they
accrued on January 28, 2011. Id. at 3. They aver that because Plaintiff did not file his
“complaint against Defendants Gould and Hendenskog until June 24, 2014, a date more
then three years beyond the incident,” the claims are time-barred. Id. at 3-4. These
Defendants further argue that the filing of the original Complaint does not change this
outcome. Id. at 4 n.3.
In his Response to the Second MTD, Plaintiff again does not dispute the applicable
statute of limitations. Response to Second MTD [#42] at 4. Instead, he argues that the
Court should equitably toll the statute of limitations due to extraordinary circumstances. Id.
In this Response, Plaintiff explains his situation as follows:
Plaintiff pursued several avenues while pressing his claim, including filing a
formal complaint with the Inspector General’s Office through a Lieutenant
Myers through the SIS (Special Investigative Services) division of Big Springs
FCI. Now, it appears that the results of that investigation (if one was indeed
ever done) cannot be found, according to a response to Plaintiff’s Freedom
of Information Act request on August 13, 2014.
Plaintiff also filed a BP-9 and BP-10 as part of the Administrative Remedy
process, but according to the Bureau of Prisons’ response to the BP-11 filed
by Plaintiff, those cannot be located[ ] either. The BOP also says in this
response to the BP-11 that “you must file within 21 days of the incident,” even
though [P]laintiff was held in the SHU for 6 weeks and denied access to those
forms or to an Englewood staff member who could provide those forms by an
EMT named Williamson. There are an average of 1-2 recalls per week at Big
Spring FCI for staff meetings, and during these recalls the law library is
closed. Last summer, due to a race riot involving a conflict between 400-500
African-American and Hispanic inmates, Big Spring FCI was locked down for
21 days, the longest lockdown in its history. Plaintiff was unable to pursue
legal research during this time.
5

When [P]laintiff learned in the law library in October[ ] 2012 of the US
Supreme Court’s ruling affirming the 3rd Circuit [ ] Court order awarding
damages to a prisoner who was sexually abused by prison guards in Milbrook
v. United States, [P]laintiff filed a Federal Tort Claims Act seeking damages
against the [D]efendants. However, this claim was denied by a US attorney
at the Florence, Colorado legal department of the BOP “because the
Englewood FCI guards weren’t negligent.”
As mentioned earlier, [P]laintiff suffers from bipolar disorder. Even when
taking medication (lithium carbonate, 1,200 mg daily[,] and Zoloft, 50 mg
daily), there are still symptoms. Medication isn’t a cure. Plaintiff suffers from
insomnia, difficulty concentrating, and depression daily. The medications
themselves that are prescribed to manage [P]laintiff’s symptoms cause
difficulties in concentration. Under times of stress, [P]laintiff’s symptoms
worsen greatly; following the August[ ] 2013 race riot here at Big Spring, even
when the lockdown was over on August 21, it took over a month for [P]lainitff
to return to relatively normal functioning.
Many prisoners face mental health issues, prison violence, or institutional
barriers to pursuing legal research. But when all three of these are present,
as they are in [P]laintiff’s case, they constitute “truly extraordinary
circumstances” under C.R.S. §13-80-102.
Id. at 4-5.
In their Reply, Defendants Hendenskog and Gould argue that Plaintiff has not
alleged extraordinary circumstances that would support a one or two year tolling of the
statute of limitations. They maintain that “Plaintiff’s excuses are typical of circumstances
presented by the prison setting that have not prevented many other federal prisoners from
bringing Bivens claims.” Reply to Second MTD [#49] at 3. They further argue that “[e]ven
taking Plaintiff’s excuses at face value, they do not fully account for the two-year period that
Plaintiff had to bring his claims.” Id.
Without seeking leave of the Court, Plaintiff filed a Surreply. In the Surreply, Plaintiff
describes his diagnosis of bipolar disorder and the impact it has on his life. Surreply to
Second MTD [#56] at 2. He argues that the “symptoms, as well as the side effects of the
6

medication used to control those symptoms, all impacted Plaintiff’s ability to file his claim.”
Id.
4.

The Motions to Amend

The First MTA and the Second MTA both seek leave to file amended complaints that
are premised on the January 28, 2011 incident. Proposed Second Amended Complaint
[#56-1] at ¶ 4; Proposed Third Amended Complaint [#52-1] at 1. As a result, if Plaintiff’s
claims are time-barred, amendment would be futile. Therefore, the Court will first address
the statute of limitations argument.
B.

Standard of Review
1.

Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th
Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility refers
to the scope of the allegations in a complaint: if they are so general that they encompass
a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his]
claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct

7

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, “[a] pleading that offers
‘labels and conclusions’ or a formulaic recitation of the elements of a cause of action will
not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (citation omitted). That said, “[s]pecific facts are not necessary;
the statement need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint
include all facts necessary to carry the plaintiff’s burden.” Khalik, 671 F.3d at 1192 .
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that defendant has acted unlawfully.” Id. (citation omitted).
As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff
could prove some set of facts in support of the pleaded claims is insufficient; the complaint
must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (citation omitted).
2.

Fed. R. Civ. P. 15

As a preliminary matter, a Scheduling Conference has not yet been held, and no
pleading amendment deadline has yet been set. Therefore, Plaintiff’s requests to amend
his amended complaint are timely. The Court thus considers any arguments raised by the
parties related to whether justice would be served by amendment. Specifically, the Court
should grant leave to amend “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Leave to amend need not be given, however, when the moving party unduly delayed, failed
8

to amend despite ample opportunity to do so, the nonmoving party would be unduly
prejudiced, or amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
3.

Plaintiff’s Pro Se Status

The Court must construe the filings of a pro se litigant liberally. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall, 935 F.2d at 1110. The Court, however, should
not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his]
behalf.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, pro se litigants must
follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).
C.

Analysis
1.

The Statutes of Limitations

It is well established that “a Bivens action is subject to the limitation period for an
action under 42 U.S.C. § 1983, and that limitation period is set by the personal injury
statute in the state where the cause of action accrues.” Roberts v. Barreras, 484 F.3d
1236, 1238 (10th Cir. 2007) (citing Industrial Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) and Garcia v. Wilson, 731 F.2d 640, 651
(10th Cir. 1984)). Because the violations alleged in the Amended Complaint occurred in
Colorado, the Colorado statute of limitations applies. In Colorado, the limitation on a
personal injury claim is two years. See Colo. Rev. Stat. § 13-80-102(g) (creating a twoyear limitation period for “all actions upon liability created by a federal statute where no

9

period of limitation is provided in said federal statute” and for “all other actions of every kind
for which no other period of limitation is provided”); Blake v. Dickason, 997 F.2d 749, 750
(10th Cir. 1993) (applying C.R.S. § 13-80-102 to a § 1983 claim). In addition, to the extent
Plaintiff brings assault or battery claims against Defendants, Colo. Rev. Stat. § 13-80103(1)(a) sets a one-year statute of limitations.
However, “[a]lthough state law establishes the statute of limitations, federal law
determines when plaintiffs’ federal Bivens claims accrued.” Van Tu v. Koster, 364 F.3d
1196, 1199 (10th Cir. 2004) (citation omitted). In Van Tu, the Tenth Circuit held that
pursuant to federal law, “the statute of limitations on a Bivens claim begins to run when the
plaintiff knows or has reason to know of the existence and cause of the injury which is the
basis of his action.” Id. (internal quotation marks and citation omitted); see also Kripp v.
Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (holding that “[s]ection 1983 claims accrue,
for the purposes of the statute of limitations, when plaintiff knows or has reason to know
of the injury which is the basis of his action”).
Like the statute of limitations issue, the applicability of equitable tolling is also
governed by Colorado state law. See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995)
(citing Board of Regents v. Tomanio, 446 U.S. 478 (1980)); see also Garrett v. Fleming,
362 F.3d 692, 697 (10th Cir. 2004) (applying Colorado’s equitable tolling rules to the statute
of limitations in a Bivens action); Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996)
(applying Illinois personal injury statute and tolling laws to a Bivens action)).
First, when the dates provided in a complaint clearly demonstrate that the right to
sue has been extinguished, “the plaintiff has the burden of establishing a factual basis for
tolling the statute.” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041, n.4 (10th Cir.
10

1980) (citations omitted). Second, Colorado law only allows equitable tolling of a statute
of limitations where “either the defendant has wrongfully impeded the plaintiff’s ability to
bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or
her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094,
1099 (Colo. 1996). The application of equitable tolling calls for the Court to make “an
inquiry into the circumstances of the delay that prompted the statute of limitations to be
invoked.” Shell Western E & P, Inc. v. Dolores County Bd. of Com’rs, 948 P.2d 1002, 1010
(Colo. 1997). Moreover, once the statute of limitations is raised as an affirmative defense,
the burden shifts to the plaintiff to show that the statute has been tolled, as “[t]his accords
with the rule that the person asserting a claim in equity bears the burden of furnishing
satisfactory proof.” Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850, 855 (Colo.
1992) (citations omitted).
In the first instance, where the plaintiff alleges that the defendant has wrongfully
prevented the plaintiff from bringing a claim, the plaintiff “must assert facts sufficient to
establish that the defendant’s actions prevented the filing of a timely claim.” Olson v. State
Farm Mut. Auto. Ins. Co., No. 06CA2164, 2007 WL 4198354, *9 (Colo. App. Nov. 29, 2007)
(citing Shell W. E & P, Inc. v. Dolores Cnty. Bd. of Comm’rs, 948 P.2d 1002, 1008 (Colo.
1997)). Thus, “[i]f there is no evidence to demonstrate that defendant engaged in any
conduct which adversely affected the filing of the plaintiff’s claim, a court may not apply the
doctrine of equitable tolling.” Samples-Ehrlich v. Simon, 876 P.2d 108, 110 (Colo. App.
1994) (citation omitted). In the second instance, where the plaintiff has invoked the
“extraordinary circumstances” basis for equitable tolling, he must show that he made good
faith efforts to pursue his claim. Dean Witter Reynolds, Inc., 911 P.2d at 1098. That is,
11

“[w]here a plaintiff has options on which he does not act, he has failed to act in good faith
and equitable tolling cannot apply.” Id. The doctrine of tolling is “not favored.” Olson v.
State Farm Mut. Auto Ins. Co., 174 P.3d 849, 858 (Colo. App. 2007); Brodeur v. Am. Home
Assurance Co., 169 P.3d 139, 150 (Colo. 2007).
Here, Plaintiff does not argue that Defendants interfered with his ability to file suit
in a timely manner. Instead, he argues that extraordinary circumstances exist. In Dean
Witter, the Colorado Supreme Court noted three cases from other jurisdictions where
extraordinary circumstances existed and the courts tolled the applicable statutes of
limitations. 911 P.2d at 1097. All of those cases involved facts where the plaintiff was truly
precluded from bringing a claim by circumstances outside of his or her control.5 See also,
Damian v. Mountain Parks, Elec., Inc., 310 P.3d 242, 245-46 (Colo. App. 2012) (finding that
“Plaintiffs have not alleged the type of truly extraordinary circumstances that might allow
equitable tolling.”). Plaintiff offers three main arguments for why the Court should equitably
toll the statutes of limitations in this case.
First, he maintains that he actively pursued his administrative remedies and a
Federal Tort Claims Act action relating to the January 2011 incident. Response to Second
MTD [#42] at 4-5. However, the Colorado Supreme Court has found that “an ongoing
5

Hanger v. Abbott, 73 U.S. (6 Wall.) 532, 18 L.Ed. 939 (1867) (finding extraordinary
circumstances tolling statute of limitations where courts in southern states were closed during Civil
War); Seattle Audubon Soc’y v. Robertson, 931 F.2d 590 (9th Cir.1991) (applying equitable tolling
where district court’s erroneous enforcement of an unconstitutional statute barred plaintiff from filing
claims in a timely manner), rev’d on other grounds, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73
(1992); Osbourne v. United States, 164 F.2d 767 (2d Cir.1947) (holding plaintiff’s internment by
Japan during World War II tolled limitations period on his claim arising immediately prior to his
internment). As the Colorado Supreme Court explained, “[t]he reasoning underlying these cases
is that it is unfair to penalize the plaintiff for circumstances outside his or her control, so long as the
plaintiff makes good faith efforts to pursue the claims when possible.” Dean Witter, 911 P.2d at
1097.

12

workers’ compensation proceeding” does not constitute extraordinary circumstances.
Brodeur, 169 P.3d at 149-50. In addition, in Dean Witter, the Colorado Supreme Court held
that the plaintiff’s/respondent’s argument that he did not have a claim for damages until
after a related litigation was resolved failed to establish extraordinary circumstances. 911
P.2d at 1097-98. The Colorado Supreme Court explained:
We conclude that the burden was on Hartman to assert his causes of action
against Dean Witter and Norwest Bank, either by joining them in the original
lawsuit or by filing a separate case and litigating the two issues we have
identified. If that separate case had been filed, the trial court might well have
decided to stay the action against Dean Witter and Norwest Bank until the
decision in the Vaux action became final. The extraordinary circumstances
basis for applying equitable tolling requires good faith efforts on the part of
the plaintiff to pursue his or her claims. Because Hartman had options on
which he did not act, we find a lack of good faith effort on his part to bring
these claims in a timely manner, and hence decline to apply equitable tolling.
...
Statutes of limitation recognize that eventual repose creates desirable
security and stability in human affairs. By penalizing unreasonable delay,
statutes of limitation compel litigants to pursue their claims in a timely
manner. Thus, an equitable tolling of a statute of limitations is limited to
situations in which either the defendant has wrongfully impeded the plaintiff's
ability to bring the claim or truly extraordinary circumstances prevented the
plaintiff from filing his or her claim despite diligent efforts.
Fairness does not require equitable tolling in this case. Neither the
defendants nor extraordinary circumstances stood in the way of Hartman's
filing suit within the statutory period. Only the plaintiff's own inaction
prevented him from filing in a timely manner. We refuse to apply the doctrine
of equitable tolling under these circumstances . . . .
Id. at 1098-99. Simply stated, the fact that Plaintiff chose to pursue his legal rights in either
inappropriate or ineffective forms and venues does not constitute extraordinary
circumstances that would require the Court to equitably toll the applicable statutes of
limitations.
13

Second, Plaintiff argues that a prison race riot resulted in a 21-day lock-down of the
prison in which he is housed and that, as a result, he “was unable to pursue legal research
during this time.” Response to Second MTD [#42] at 5. In this case, the alleged incident
occurred on January 28, 2011, therefore the longer, two-year statute of limitations expired
on January 28, 2013. However, Plaintiff filed his original complaint on January 17, 2014.
Therefore, the Court need not determine if this circumstance constitutes extraordinary
circumstances because even if the Court tolled the statute of limitations for 21 days to
account for the 21-day lock-down, Plaintiff’s claims would still be time-barred. See Benge
v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) (“‘Equitable tolling’ of a statute means
only that the running of the statute is suspended, not that the limitations period beings over
again.”); see also Robinson v. United States, No. 13-cv-02269-MSK-CBS, 2014 WL
2536828, at *4 (“Thus, even if the Court concluded that the doctrine of equitable tolling
suspended the clock . . . doing so would only give [Plaintiff] . . . two days [ ] to refile . . . .
However, [Plaintiff’s] Complaint . . . was filed . . . fifty-nine days after” the key date.).
Third, Plaintiff argues that bipolar disorder, and the associated symptoms from which
he suffers, constitute extraordinary circumstances. Response to Second MTD [#42] at 5.
While the Court is sympathetic to Plaintiff’s mental illness, his allegations that he diligently
pursued his administrative grievances and filed a Federal Tort Claims Act claim during this
period undercut his argument that his mental illness constitutes a “truly extraordinary
circumstance[ that] prevented the plaintiff from filing his or her claim despite diligent
efforts.” Dean Witter, 911 P.2d at 1099; see Couch v. Talladega Circuit Courts, No. 1:11cv-1737-JFG-MHH, 2013 WL 3356908 at *6 (N.D. Ala. July 3, 2013) (finding that the
plaintiff’s allegations of mental illness did not constitute extraordinary circumstances in light
14

of her ability to file other legal documents). Further, Plaintiff offers no objective evidence
describing how his mental illness causally relates to his failure to timely file this action.
See, e.g., Victorial v. Burge, 477 F.Supp.2d 652, 655 (S.D.N.Y. 2007) (petitioner’s bipolar
disorder did not warrant equitable tolling where petitioner failed to demonstrate that the
illness “affected his ability to act with due diligence during the time period at issue” or was
causally connected to his failure to timely file his habeus corpus petition); Harper v. United
States, Criminal No. 4:07-CR-00339, 2012 WL 32920, at *4 (M.D. Pa. Jan. 6, 2012)
(“[T]here is no indication that Harper’s bipolar disorder rendered him so incapacitated that
he was incapable of ‘managing his affairs and . . . understanding his legal rights and acting
upon them.’” (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996), cert. denied, 519
U.S. 937 (1996)).
Accordingly, the Court concludes that Plaintiff’s three arguments for the application
of equitable tolling of the statutes of limitations in this case do not constitute extraordinary
circumstances and, as a result, finds that his claims are time-barred. Accordingly, the
Court respectfully recommends that the Solis MTD [#24] be granted in part to the extent
it seeks dismissal of the claims against Defendant Solis because they are time-barred and
that the Second MTD [#38] be granted.
2.

Amendment Would Be Futile

As noted above, Plaintiff’s First MTA and Second MTA should be denied if leave to
amend would be futile. Foman, 371 U.S. at 182; Knight v. Mooring Capital Fund, LLC, 749
F.3d 1180, 1190-91 (10th Cir. 2014) (“[I]t is patently obvious that Ms. Knight cannot
proceed with her claims, and any further opportunity to amend would be futile because her

15

claims would still be barred.”). Plaintiff’s Proposed Second Amended Complaint [#46-1]
and his Proposed Third Amended Complaint [#52-1] each continue to assert claims against
Defendants relating to the January 28, 2011 incident.

Proposed Second Amended

Complaint [#46-1] ¶ 4; Proposed Third Amended Complaint [#52-1] at 1.
The Court notes that in Plaintiff’s Proposed Second and Third Amended Complaints
he discusses a six-week period in which he alleges he was not seen by a doctor, which he
argues, constitutes a denial of medical care. Proposed Second Amended Complaint [#461] ¶ 13; Proposed Third Amended Complaint [#52-1] at 2. While Plaintiff does not specify
when this six-week period began, the allegations in the proposed complaints all appear to
relate to the January 28, 2011. Further, as discussed below, in another motion [#58] filed
by Plaintiff (the “Sixth Motion”), he asks the Court to take judicial notice of a document titled
Federal Bureau of Prisons Psychology Data System, which relates to a February 24, 2011
psychological review of Plaintiff. See generally Sixth Motion [#58].
Normally, when considering a motion to dismiss, the Court must disregard facts
supported by documents other than the complaint unless the Court first converts the motion
to dismiss into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260,
1261 (10th Cir. 1991). However, the Court may consider documents outside of the
complaint on a motion to dismiss in three instances. First, the Court may consider outside
documents pertinent to ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1).
Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000). Second, the Court may
consider outside documents subject to judicial notice, including court documents and
matters of public record. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). Third,
the Court may consider outside documents that are both central to the plaintiff’s claims and
16

to which the plaintiff refers in her complaint. GFF Corp. v. Associated Wholesale Grocers,
130 F.3d 1381, 1384 (10th Cir. 1997). Documents considered by the Court on a motion
to dismiss “may only be considered to show their contents, not to prove the truth of matters
asserted therein.” Tal, 453 F.3d at 1265 n.24 (citation omitted).
The Court does not find that the document attached to the Sixth Motion is subject
to judicial notice and, therefore, may be considered by the Court. However, the Sixth
Motion itself states that “Plaintiff . . . had been assigned to Disciplinary Detention by 2-242011.” Sixth Motion [#58] at 2. This statement by Plaintiff in a pleading to the Court further
bolsters the Court’s belief that all of his claims in the proposed amended complaints relate
to the January 2011 incident and, therefore, are time-barred. Accordingly, the Court
respectfully recommends that the First MTA [#46] and the Second MTA [#52] be DENIED.
II. Order on Motions for Judicial Notice
Plaintiff has filed a series of motions requesting that the Court take judicial notice of
various documents. These are: Plaintiff’s Motion for Judicial Notice [#41] (the “First
Motion”), Plaintiff’s Motion for Judicial Notice [#44] (the “Second Motion”), Plaintiff’s Motion
for Judicial Notice [#47] (the “Third Motion”), Plaintiff’s Motion for Judicial Notice [#51] (the
“Fourth Motion”), Plaintiff’s Motion for Judicial Notice [#54] (the “Fifth Motion”), and the
Sixth Motion [#58].
In the First Motion, Plaintiff asks the Court “to take judicial notice of a response to
Plaintiff’s Freedom of Information/Privacy Act Request,” which he attaches to the First
Motion. First Motion [#41] at 1. Plaintiff argues that the “Court should take judicial notice
of and certify as fact that the Inspector General’s report on Plaintiff’s assault by C.

17

Hendenskog on January 28, 2011 cannot be found.” Id. at 3.
In the Second Motion, Plaintiff attaches a Rejection Notice of his appeal to the
Central Office. Second Motion [#44] at 3-4. Plaintiff states that “[i]t is indisputable that the
BOP cannot find records of plaintiff filing his BP-10 in November[ ] 2011. It is indisputable
that plaintiff could not file within 20 days of his assault.” Id. at 2.
In the Third Motion, Plaintiff asks the Court to take judicial notice as follows:
These facts are indisputable: (1) Plaintiff filed an affadavit [sic] with Big Spring
Lieutenant Myers in October, 2012. He then sent this document to
Englewood FCI. On August 13, 2014, Plaintiff filed a Freedom of Information
Act Request with the Office of the Inspector General to obtain the documents
related to the Inspector General’s investigation into Plaintiff’s assault. (2) On
September 17, 2014, Plaintiff received a document from the Office of the
Inspector General stating that the records could not be located. (3) Plaintiff
was therefore required to submit another affadavit [sic] on Wednesday,
October 16, about his assault. This is over two years after the first affadavit
[sic], and during this time much important testimony could have been lost.
Third Motion [#47] at 2-3.
In the Fourth Motion, Plaintiff asks the Court to take judicial notice of a document
titled Memorandum for File, dated October 20, 2014, which states that the Federal Bureau
of Prisons concluded its investigation into Plaintiff’s allegations that he was subject to nonconsensual sexual misconduct by a staff member on January 28, 2011 and that the “case
was completed and deemed to be unsubstantiated.” Fourth Motion [#51] at 5 (emphasis
in original). Plaintiff cites to Fed. R. Evid. 201(b) and argues that the document’s accuracy
cannot be questioned and that the Court should therefore take judicial notice of the
document. Id. at 4.

18

In the Fifth Motion, Plaintiff, again relying on Fed. R. Evid. 2016, asks the Court to
take judicial notice of two documents. See generally Fifth Motion [#54]. The first document
is titled “Incident Report” and is dated February 4, 2011. Id. at 3-4. The second document
is titled “Discipline Hearing Office Report” and relates to a February 9, 2011 hearing. Id.
at 5.
In the Sixth Motion, Plaintiff asks the Court to take judicial notice of a document titled
Federal Bureau of Prisons Psychology Data System, which relates to a February 24, 2011
psychological review of Plaintiff. See generally Sixth Motion [#58]. The attached document
notes that Plaintiff’s “[c]urrent mental status, emotional expression, and behavior do not
suggest significant mental health problems.” Id. at 3. The document also notes that
Plaintiff was placed in the Special Housing Unit “for assaulting any person.” Id. Plaintiff
argues that “all of the statements made on this report by Dr. Johnson as to his mental
status, adjustment, threat to self, and threat to others are false.” Id. at 2.
As noted above, the Court may consider documents outside of the complaint on a
motion to dismiss in three instances. First, the Court may consider outside documents
pertinent to ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). Pringle, 208
F.3d at 1222. Second, the Court may consider outside documents subject to judicial
notice, including court documents and matters of public record. Tal, 453 F.3d at 1265 n.24.
Third, the Court may consider outside documents that are both central to the plaintiff’s
claims and to which the plaintiff refers in her complaint. GFF Corp., 130 F.3d at 1384.
None of the documents offered by Plaintiff appear to fall into any of these three categories.

6

Plaintiff refers to Fed. R. Civ. Pro. 201, but his explanation of the rule makes clear that he
is relying on Fed. R. Evid. 201.

19

However, the Court need not consider the requested relief.

Because the Court is

recommending that Plaintiff’s claims be dismissed as barred by the applicable statutes of
limitations, the First Motion [#41], Second Motion [#44], Third Motion [#47], Fourth Motion
[#51], Fifth Motion [#54], and Sixth Motion [#58] are denied as moot.
III. Conclusion
Accordingly, for the reasons stated above, the Court respectfully RECOMMENDS
that the Solis MTD [#24] be GRANTED in part to the extent it seeks dismissal of Plaintiff’s
claims against Defendant Solis because they are time-barred, and that those claims be
dismissed with prejudice.7
The Court FURTHER RECOMMENDS that the Second MTD [#38] be GRANTED
and that the claims asserted against Defendants Hendenskog and Gould be dismissed
with prejudice as time-barred.
The Court FURTHER RECOMMENDS that the First MTA [#46] and the Second MTA
[#52] be DENIED.
IT IS HEREBY ORDERED that the First Motion [#41], Section Motion [#44], Third
Motion [#47], Fourth Motion [#51], Fifth Motion [#54], and Sixth Motion [#58] are DENIED
as moot.
IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen
(14) days after service of this Recommendation to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. A

7

See Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (affirming dismissal with
prejudice of claims barred by the statute of limitations).

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party’s failure to serve and file specific, written objections waives de novo review of the
Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91
F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this Recommendation must
be both timely and specific to preserve an issue for de novo review by the District Court or
for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996).
Dated: December 10, 2014

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