Handy Jr. v. Douglas et al

Filing 222

ORDER that the Recommendation of United States Magistrate Judge filed August 17, 2015 ECF No. 173 is AFFIRMED AND ADOPTED. In accordance therewith, it is ORDERED that Defendant Tamera Cooper is DISMISSED WITHOUT PREJUDICE. It is FURTHER ORDERED tha t the Recommendation of United States Magistrate Judge dated June 19, 2015 ECF No. 138 ) is AFFIRMED AND ADOPTED. In accordance therewith, it is ORDERED that the CDOC Defendants Motion to Dismiss Plaintiffs Third Amended Complaint Doc. 50 ECF No . 74 is GRANTED. The remaining claims against Defendants Sherwyn Phillip and Bobby Mayes are dismissed. Finally, it is ORDERED that in light of their dismissal, Defendants Tamera Cooper, Sherwyn Phillip and Bobby Mayes shall hereafter be taken off the caption, by Judge Wiley Y. Daniel on 3/30/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-01930-WYD-MEH
WYATT T. HANDY, JR.,
Plaintiff,
v.
TRACY DOUGLAS,
TAMERA COOPER,
GREG WILKINSON,
CAPTAIN FRANK, Shift Commander/Duty Officer,
BOBBY MAYES,
SHERWYN PHILLIP, and
TIFFANY DAVIS,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

I.

INTRODUCTION
This matter is before the Court on two Recommendations issued by Magistrate

Judge Hegarty: (1) the Recommendation of United States Magistrate Judge issued on
June 19, 2015, regarding the CDOC Defendants’ (Sherwyn Phillip and Bobby Mayes)
Motion to Dismiss Plaintiff’s Third Amended Complaint and (2) the Recommendation of
United States Magistrate Judge issued on August 17, 2015, regarding Plaintiff’s failure
to demonstrate service upon Defendant Tamera Cooper [“Cooper”]. For the reasons
stated below, the Recommendations of Magistrate Judge Hegarty are affirmed and
adopted in their entirety.

II.

ANALYSIS
A.

Recommendation of August 17, 2015

This Recommendation relates to Plaintiff’s failure to serve Defendant Cooper
despite being given several extensions of time to do so. Magistrate Judge Hegarty
ordered Plaintiff to show cause why it should not recommend dismissal of this case for
its failure to serve Cooper and prosecute this case against her, and Plaintiff did not
respond. He then issued his Recommendation on August 17, 2015, that Plaintiff’s
claims against Cooper be dismissed without prejudice. Magistrate Judge Hegarty
advised therein that written objections must be served within 14 days after service of the
Recommendation, but no objections were filed.
No objections having been filed, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[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”). Nonetheless, though not required to do
so, I review the Recommendation to “satisfy [my]self that there is no clear error on the
face of the record.”1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes. I find that
Magistrate Judge Hegarty applied the correct legal standard and properly found that
Plaintiff failed to demonstrate cause for either mandatory or permissive extension of the

1

Note, 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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service deadline. Therefore, I find that his recommendation to dismiss Plaintiff’s claims
against Cooper without prejudice pursuant to Fed. R. Civ. P. 4(m) and 41(b) should be
affirmed.
B.

Recommendation of June 19, 2015

I next address the Recommendation issued on June 19, 2015. Magistrate Judge
Hegarty recommends therein that the CDOC Defendants’ Motion to Dismiss be granted
and the claims in which these Defendants are identified be dismissed.2 By way of
background, the Recommendation notes that in April 2014, the Colorado Department of
Corrections [“CDOC”] authorized Plaintiff’s move for substance abuse programming,
and he was placed on a waiting list to be moved to the Arrowhead Correctional Center
[“ACC”] for the Therapeutic Community [“TC”] program. On July 8, 2014, after Plaintiff
had filed the present action against other Defendants including Tracy Douglas
[“Douglas”], Douglas requested that Plaintiff be moved to the Cheyenne Mountain Reentry Center [“CMRC”]. Plaintiff was moved the following day. The CMRC does not
operate the TC program or other treatment program for offenders with high drug abuse
scores.
Plaintiff alleges that “Defendant Mayes recommended the move and Defendant
Phillip authorized it. The move resulted in a “higher custody contrary to the scored

2

I note that while Plaintiff has since filed a Fourth Amended Complaint, the Recommendation
states, and I agree, that the allegations therein concerning the CDOC Defendants are identical to those in
the Third Amended Complaint. Moreover, by Minute Order of July 20, 2015, Magistrate Judge Hegarty
denied as moot a motion to dismiss filed by the CDOC Defendants as to the Fourth Amended Complaint,
noting the pendency of the Recommendation. I thus find that the Recommendation applies equally to the
Fourth Amended Complaint.

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custody of Plaintiff” and extended Plaintiff’s next scheduled review date from February
19, 2015 to July 8, 2015 when he could be “routine reclassed” to a lesser security
facility. (Recommendation at 4.) Plaintiff contends that, had he been transferred to
ACC on July 9, 2014, he would have had time to attend the TC program before his
scheduled release date. Moreover, in contrast to ACC which is a minimum security
facility, the CMRC is a medium security facility which provides fewer privileges and less
freedom.
As noted in the Recommendation, the issues remaining after full briefing of the
CDOC Defendants’ motion are whether they are entitled to qualified immunity from
Plaintiff’s First and Fourteenth Amendment claims in their individual capacities and, if
not, whether Plaintiff has stated a plausible claim for punitive damages.3 Magistrate
Judge Hegarty finds that while Plaintiff pled the CDOC Defendant’s personal
participation in the challenged action, Defendants are entitled to qualified immunity as to
the claims against them. (Recommendation at 10-16.)
Plaintiff filed a Response and Objections to the Recommendation of United
States Magistrate Judge on July 2, 2015. The CDOC Defendants filed a response to
the objection on July 20, 2015, and Plaintiff filed a reply on August 13, 2015.4

3

These are the only claims in which factual allegations against the CDOC Defendants are
alleged. Plaintiff conceded that the CDOC Defendants are entitled to absolute immunity under the
Eleventh Amendment for claims against them in their official capacity, and that he is not seeking
compensatory damages against these Defendants.
4

The request in Plaintiff’s reply that the Court strike the CDOC Defendants’ response is denied.
The response was properly filed pursuant to Fed. R. Civ. P. 72(b)(2). That rule does not, however,
address or authorize the filing of a reply regarding objections. Thus, if anything should be stricken, it
should be Plaintiff’s reply, as Plaintiff was required to file a motion asking for leave to file a reply.
Nevertheless, I have considered the reply for purposes of this Order.

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I first address Plaintiff’s First Amendment claim. Magistrate Judge Hegarty found
that “[e]ven assuming the Plaintiff engaged in protected activity and that Mayes and
Phillip participated in the challenged transfer to the CMRC, which ‘would chill a person
of ordinary firmness from continuing to engage in that activity’, . . . the Plaintiff has failed
to allege Mayes and Phillip were substantially motivated to transfer him as a response
to his filing a grievance or this lawsuit. (Id. at 11.) Consequently, he found that Plaintiff
failed to state a First Amendment claim entitling the CDOC Defendants to qualified
immunity, and recommended that the CDOC Defendants’ motion to dismiss be granted
as to this claim.
Plaintiff objects to this ruling, arguing that he has stated a chronology of events
from which retaliation may plausibly be inferred. He asserts more specifically that
Defendant Mayes and Phillip assigned him to a higher custody than his score required,
in violation of CDOC policy. (Objection at 2.) Plaintiff argues that the fact the transfer
was taken in violation of CDOC policy was not considered in the Recommendation.
This fact does not, however, establish that Mayes and Phillip were substantially
motivated to transfer him as a response to his filing a grievance or this lawsuit. Indeed,
Plaintiff has not disputed or refuted Magistrate Judge Hegarty’s finding that nothing in
the complaint alleges Phillip or Mayes had any participation in, much less knowledge of,
the “segregation incident” or any grievances or notices filed as a result of the incident.
Instead, Plaintiff relies on his assertion in his response to the motion to dismiss
that on June 16, 2014, Plaintiff filed a Statutory Notice of Intent pursuant to Colo. Rev.
Stat. § 24-10-109 against the CDOC Defendants and Defendant Douglas related to the
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segregation incident. This was a couple of weeks prior to the alleged retaliatory
transfer. Plaintiff asserts that although this was not raised in the Third Amended
Complaint, it would be harsh to dismiss the claims against the CDOC Defendants
related to this deficiency when the court could allow him to amend the complaint to
allege this fact.
I reject Plaintiff’s argument. Magistrate Judge Hegarty noted in his
Recommendation that Plaintiff conceded his state law claims are not raised against
Mayes and Phillip; accordingly, he found that the Notice of Intent filed in June 2014 has
no effect here. Plaintiff has not shown to the contrary in his objections. Moreover,
Plaintiff moved to amend the complaint after the motion to dismiss was filed and was
permitted leave to file a Fourth Amended Complaint. Plaintiff did not seek leave to add
this factual allegation against the CDOC Defendants. Magistrate Judge Hegarty
recommended that Plaintiff be denied leave to file a fifth amended complaint because
he previously amended his complaint several times and filed his most recent motion to
amend after the motion to dismiss was filed. I find no error with this ruling, and note that
Plaintiff raised no specific objections to same. Accordingly, Plaintiff’s objections
regarding the First Amendment claim are overruled.
I now turn to the Fourteenth Amendment claim. Magistrate Judge Hegarty
correctly noted that for Plaintiff to show that his transfer to the CMRC resulted in the
deprivation of a liberty interest, Plaintiff must plead facts showing that the transfer
created conditions of confinement that are “atypical and significant hardships” compared
to ordinary prison life. (Recommendation at 14) (quoting Sandin v. Conner, 515 U.S.
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472, 483 (1995)). He concluded after analyzing Plaintiff’s claims that Plaintiff failed to
allege a protected liberty interest to support his Fourteenth Amendment claims against
Mayes and Phillip. He thus recommended that the Court find the CDOC Defendants
are entitled to qualified immunity on the Fourteenth Amendment claims.
More specifically, Magistrate Judge Hegarty agreed with two other courts in this
District that found prisoner plaintiffs do not possess protected liberty interests in
participating in the TC program. (Recommendation at 14) (citations omitted). To the
extent Plaintiff alleged his transfer to the CMRC “increased the duration of [his]
confinement” by being deprived of the ability to earn “days subtracted from his
sentence,” Magistrate Judge Hegarty found that the claim fails because “[w]hile
‘[i]nmates must be afforded due process before their good time credits can be revoked,”
Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (emphasis added), Colorado law does not
furnish a right to earn good-time credits and expressly permits the denial of such a right.
(Id. at 15) (citations omitted). As to whether the conditions of Plaintiff’s transfer to the
CMRC were “extreme” and Plaintiff’s argument that the CMRC is a higher security
prison than his custody score required, the Recommendation noted that “‘[t]he Due
Process Clause itself does not give rise to a liberty interest in avoiding transfer to more
adverse conditions of confinement.’” (Id.) (quotation omitted). Plaintiff did not further
describe the conditions at the CMRC and Magistrate Judge Hegarty found that the claim
fails. Finally, while Plaintiff was silent as to whether his placement at the CMRC was
“indeterminate,” Magistrate Judge Hegarty stated that Plaintiff filed notices of

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change of address in this case indicating at the time that he resided at the Trinidad
Correctional Facility; thus, his placement at CMRC was not indeterminate.
Plaintiff objects to Magistrate Judge Hegarty’s ruling, stating that he is not
arguing or claiming that he was entitled to be housed in a particular facility. Instead, he
asserts that Colorado law and CDOC policy have created a liberty interest in drug
rehabilitation treatment for offenders with high substance abuse scores, and that he had
an expectation or interest in being assessed and undergoing treatment for substance
abuse. I reject this argument. Although Plaintiff might desire to participate in TC and
even if he might benefit from the same, Handy has no right to participate in rehabilitation
programs. Washington v. Borejon, 324 F. App’x 741 (10th Cir. 2009). Thus, Judge
Brimmer and Magistrate Judge Tafoya of this Court have held that there is no right to
participate in the TC Program. Cooper v. Ducharme, No. 13-cv-01154-KMT, 2015 WL
1064180, at *10 (D. Colo. Mar. 9, 2015); Grady v. Garcia, No. 10-cv-00347-PAB, 2012
WL 1044491, at *8 (D. Colo. Mar. 27, 2012). I agree with and adopt their reasoning in
this case. There are no allegations that Plaintiff will not be released from custody
without completing TC, nor could there be. Moreover, while Plaintiff argues that under
Colorado statutes he is entitled to an alcohol and drug assessment and required to
participate in substance abuse programming, the statutes he cites do not support his
argument or entitle him to participate in a particular program such as the TC Program.5

5

While Colo. Rev. Stat. § 18-1.3-211 requires certain inmates to undergo periodic testing and
treatment for substance abuse, it does not require the CDOC to provide any particular form of treatment.
It certainly does not oblige Defendants in this case to place Handy into the TC Program at Arrowhead.
Similarly, CDOC Administrative Regulation 700-20 does not require the CDOC to provide any particular
form of treatment.

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Plaintiff also asserts that the Recommendation failed to consider his argument
that there is a liberty interest which prohibits “discretionary reclasses”— assigning
offenders to a higher custody than the scored custody of the offender. He cites no
authority for that, however, and this argument really translates into a challenge to his
placement. There is no liberty interest in being assigned to a particular facility. See
Olim v. Wakinekona, 461 U.S. 238, 244-46 (1983). There is also no liberty interest in
avoiding transfer to more adverse conditions of confinement, as noted by Magistrate
Judge Hegarty. (Recommendation at 15) (citing Toevs v. Reid, 685 F.3d 903, 911 (10th
Cir. 2012)). An inmate must still show that the confinement imposes a significant
hardship on the inmate in relation to the ordinary incidents of prison life. Toevs, 685
F.3d at 911 (citing Sandin, 515 U.S. at 484). Plaintiff has not made such a showing, as
Magistrate Judge Hegarty found in the Recommendation. Accordingly, I also affirm the
recommendation to dismiss the due process claim.
Finally, in light of the finding that Plaintiff’s claims against the CDOC Defendants
should be dismissed, Magistrate Judge Hegarty stated he need not address whether
Plaintiff stated plausible claims for punitive damages against them. Plaintiff did not
specifically object to this, and I affirm this finding.
III.

CONCLUSION
In conclusion, it is
ORDERED that the Recommendation of United States Magistrate Judge filed

August 17, 2015 (ECF No. 173) is AFFIRMED AND ADOPTED. In accordance
therewith, it is
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ORDERED that Defendant Tamera Cooper is DISMISSED WITHOUT
PREJUDICE. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge dated June 19, 2015 (ECF No. 138) is AFFIRMED AND ADOPTED. In
accordance therewith, it is
ORDERED that the “CDOC Defendants’ Motion to Dismiss Plaintiff’s Third
Amended Complaint (Doc. 50)” (ECF No. 74) is GRANTED. The remaining claims
against Defendants Sherwyn Phillip and Bobby Mayes are dismissed. Finally, it is
ORDERED that in light of their dismissal, Defendants Tamera Cooper, Sherwyn
Phillip and Bobby Mayes shall hereafter be taken off the caption.
Dated: March 30, 2016
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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