Fogle v. Palomino

Filing 43

ORDER; Plaintiffs Inquiry for Permission to File anAmended 42 U.S.C. § 1983 36 (the "Motion") is GRANTED in part and DENIED in part. The Clerk of the Court shall accept Plaintiffs Amended Complaint [#36-1] for filing as of the date of this Order. Proposed defendants Rodger Wilson, Marty Fleischacker, and the Colorado Department of Corrections shall notbe added as defendants in this matter, by Magistrate Judge Kristen L. Mix on 11/7/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00880-KLM
RONALD JENNINGS FOGLE,
Plaintiff,
v.
JOHN PALOMINO, in his individual and official capacities as former CCCF investigator,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Inquiry for Permission to File an
Amended 42 U.S.C. § 1983 [#36]1 (the “Motion”).2 Defendant filed a Response to
Plaintiff’s Motion [#41] on September 19, 2014. Plaintiff has not filed a Reply. For the
reasons set forth below, the Court GRANTS in part and DENIES in part the Motion [#36].
I. Background
The Scheduling Order [#34] governing this case provides that the deadline for
joinder of parties and amendment of pleadings was September 15, 2014. Plaintiff filed the
Motion pursuant to Fed. R. Civ. P. 15(a)(2) on September 3, 2014. Scheduling Order [#34]
at 2. Accordingly, Plaintiff’s Motion was timely filed.

1

“[#36]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.
2

This case was assigned to the undersigned on April 25, 2014, for all purposes pursuant
to the Court’s Pilot Program and 28 U.S.C. § 636(c). [#13].

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In the Complaint [#1], Plaintiff alleges, among other things, that Defendant violated
his due process rights by failing to restore Plaintiff to his job at the law library at Crowley
County Correctional Facility (“CCCF”) after Plaintiff was released from segregation. See
generally Compl. [#1]. In his Motion, Plaintiff seeks to join three new defendants to the
lawsuit: Rodger Wilson, in his individual and official capacities as former Assistant Warden
for CCCF; Marty Fleischacker, in his individual and official capacities as former Programs
Director for CCCF; and the Colorado Department of Corrections (“CDOC”) as supervisor
over the employees of CCCF (collectively, the “proposed defendants”). See Plaintiff’s
proposed Amended Prisoner Complaint (“Amended Complaint”) [#36-1] at 1-2. Plaintiff
alleges that the proposed defendants, in addition to Defendant Palomino, whom Plaintiff
names in his Complaint [#1], violated Plaintiff’s due process rights by failing to restore
Plaintiff to his prison job at the CCCF law library. See Am. Compl. [#36-1] at 17-19. In
requesting to join the proposed defendants, Plaintiff also seeks to add facts to his
Complaint [#1] that, in part, describe the proposed defendants’ involvement in the alleged
due process violation. Id. Finally, Plaintiff requests the following relief: (1) a declaration
that Defendant’s and the proposed defendants’ acts and omissions violated Plaintiff’s
rights; (2) nominal damages in the amount of $1.00 against Defendant and each proposed
defendant and punitive damages in the amount of $100,000; and (3) a declaration ordering
the United States Marshals Service to serve Defendant and each proposed defendant with
a copy of the summons and Amended Complaint. Am. Compl. [#36-1] at 28.
In the Response, Defendant argues that Plaintiff’s Motion is futile because it would
not survive a motion to dismiss. Response [#41] at 3. First, he argues that CDOC
Administrative Regulation (“A.R.”) 150-01 § IV.E.3.t.2—which Plaintiff cites in his Amended
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Complaint—does not apply. Id. at 2. In relevant part, the regulation states:
When an offender is found not guilty or a conviction is reversed on an appeal,
the DOC will attempt to restore the offender to the greatest extent practicable
all programs, privileges, and assignments lost during any period where such
were suspended or removed as a result of the charges against him. In the
event that a particular program, privilege, or assignment is no longer
available, the offender’s case manager may obtain for the offender the first
available equivalent which opens for which the offender is qualified, when
feasible.
A.R. 150-01 § IV.E.3.t.2 (2014). Defendant avers that the regulation does not apply
because Plaintiff was not initially charged with a Code of Penal Discipline (“COPD”)
violation. Response [#41] at 2. In addition, Defendant argues that even if the regulation
were applicable, the regulation does not guarantee an inmate’s return to his previous job,
but rather only that his assignments will be restored to the greatest extent practicable. Id.
Defendant also argues that even if the proposed defendants violated the regulation,
the Motion would nevertheless be futile because “the violation of administrative regulations
does not in and of itself state a claim for a due process violation.” Id. at 3. Defendant
maintains that CDOC inmates do not have “a constitutionally protected right to any
particular job” and that “the failure to provide a particular job” does not constitute a violation
of Plaintiff’s due process rights. Id. Defendant argues that Plaintiff’s proposed addition of
Rodger Wilson and Marty Fleischacker as defendants would therefore be subject to
dismissal, and consequently the Motion should be denied as futile.
Finally, Defendant argues that adding CDOC as a defendant would also be futile for
several reasons: first, for the same reason as noted above, i.e., that the violation of an
administrative regulation does not in and of itself state a claim for a due process violation;
second, because CDOC is a state agency that cannot be sued for damages in federal court

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without its consent pursuant to the immunity clause of the Eleventh Amendment to the
United States Constitution; and third, because a state agency is not a “person” within the
meaning of 42 U.S.C. § 1983. Id. at 4.
II. Standard of Review
The Court has discretion to grant a party leave to amend his pleadings. Foman v.
Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give
leave when justice so requires.”).

“In the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of the amendment,
etc.—the leave sought should, as the rules require, be ‘freely given.’” Id. (quoting Fed. R.
Civ. P. 15(a)(2)). However, “[t]he court may deny leave to amend where an amendment
would be futile.” Myers v. City of Loveland, Colo., No. 12-cv-02317-REB-KLM, 2013 WL
3381276, at *6 (D. Colo. July 8, 2013). “An amendment would be futile if it would not
survive a motion to dismiss.” Innovatier, Inc. v. CardXX, Inc., No. 08-cv-00273-PAB-KLM,
2010 WL 148285, at *2 (D. Colo. Jan. 8, 2010) (citations omitted).
In determining whether a plaintiff’s proposed amended complaint is likely to survive
a motion to dismiss, “the court must construe the complaint in the light most favorable to
[the] plaintiff, and the allegations in the complaint must be accepted as true.” Myers, 2013
WL 3381276, at *6 (citations omitted). Under Fed. R. Civ. P. 12(b)(6), the purpose of a
motion to dismiss is to test “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); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for
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“failure to state a claim upon which relief can be granted”). “The court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but
to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for
which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999) (citation omitted).
III. Analysis
A.

Factual Allegations
First, addressing Plaintiff’s request to allege additional facts in his Complaint [#1],

the Court notes that Plaintiff’s Motion was timely filed and Defendant does not object to the
addition of new factual allegations. The Court also construes Plaintiff’s filings “generously
and with the leniency and deference due pro se litigants.” West v. Denver Cnty. Jail
Warden, No. 07-cv-00226-REB-KLM, 2008 WL 732600, at *1 (D. Colo. March 18, 2008)
(citing Erickson v. Pardus, 551 U.S. 89, 127 (2007)). Defendant characterizes the new
factual allegations as primarily, though not solely, provided to support the addition of the
proposed defendants.

Response [#41] at 1-2.

While the Court agrees with this

assessment, the Court also notes that the new factual allegations may provide additional
support to Plaintiff’s claims in his Complaint [#1]. Accordingly, Plaintiff’s Motion is granted
to the extent that the new allegations may support Plaintiff’s current claims.
B.

Joinder of Proposed Defendants
Next, the Court addresses Plaintiff’s request to join the proposed defendants.

Plaintiff asserts that his due process rights were violated when the proposed defendants
purportedly failed to return him to his job at CCCF’s law library after Plaintiff was released

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from segregation, in violation of A.R. 150-01 § IV.E.3.t.2. Am. Compl. [#36-1] ¶¶ 88, 95-98.
Defendant maintains that the regulation does not apply. Response [#41] at 2. However,
it is not necessary to determine whether the regulation applies or if the proposed
defendants violated the regulation. Assuming, arguendo, that the regulation applies, the
claim is futile.
Plaintiff may not bring a due process claim on the basis of A.R.150-01 § IV.E.3.t.2
because, even if a violation of the regulation occurred, “a failure to adhere to administrative
regulations does not equate to a constitutional violation.” Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993) (citation omitted). “The Constitution does not create a
property or liberty interest in prison employment. Therefore, any such interest must be
created by state law by language of an unmistakably mandatory character.” Ingram v.
Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (citations omitted). The regulation does not
guarantee that an inmate’s lost prison job will be restored; rather, the regulation states only
that the CDOC “will attempt” to restore an inmate’s lost job “to the greatest extent
practicable.” A.R. 150-01 § IV.E.3.t.2 (2014). Plaintiff does not assert any applicable state
law that “unmistakably” recognizes a property or liberty interest in prison employment.
Because a purported violation of an administrative regulation is, alone, insufficient to
constitute a violation of a due process interest, Plaintiff has failed to allege a claim on which
relief can be granted.
Plaintiff’s Motion is also futile with respect to CDOC as the supervisor of the other
proposed defendants. As noted above, “failure to adhere to administrative regulations does
not equate to a constitutional violation.” Hovater, 1 F.3d at 1068. Furthermore, “CDOC is
an agency immune from suit under the doctrine of Eleventh Amendment immunity.” Wood
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v. Milyard, 414 F. App’x 103, 105 (10th Cir. 2011). “Specifically, Eleventh Amendment
immunity bars claims against individuals sued in their official capacities ‘for money
damages and relief for prior acts.’” Carbajal v. Morrissey, No. 12-cv-03231-REB-KLM, 2014
WL 1301532, at *14 (D. Colo. March 31, 2014) (citing Hunt v. Colo. Dep’t of Corr., 271 F.
App’x 778, 781 (10th Cir. 2008). Because Plaintiff requests monetary damages against the
CDOC and does not seek injunctive relief in the form of restoration to his prior position at
the CCCF law library, Plaintiff’s claim is futile because the CDOC is immune from suit under
the Eleventh Amendment. Because the Motion is futile on these grounds, it is unnecessary
to discuss whether the CDOC is a “person” for purposes of a claim brought under 42
U.S.C. § 1983.
IV. Conclusion
For the foregoing reasons, and considering that leave to amend should be freely
given,
IT IS HEREBY ORDERED that the Motion [#36] is GRANTED in part and DENIED
in part. The Motion is granted to the extent that the proposed Amended Complaint alleges
additional facts that may support Plaintiff’s current claims in his Complaint [#1]. The Motion
is denied to the extent the proposed Amended Complaint seeks to join Rodger Wilson,
Marty Fleischacker, and the Colorado Department of Corrections as defendants.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Amended Complaint [#36-1] for filing as of the date of this Order. Proposed defendants
Rodger Wilson, Marty Fleischacker, and the Colorado Department of Corrections shall not
be added as defendants in this matter.

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DATED: November 7, 2014 at Denver, Colorado.

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