Session v. Clemings et al

Filing 113

ORDER. ORDERED that the 103 Recommendation of United States Magistrate Judge is ACCEPTED. ORDERED that Plaintiff's 85 Motion for Leave to File a Fourth Amended Prisoner Complaint is GRANTED in part and DENIED in part. 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. 14-cv-02406-PAB-KLM
FRANKY L. SESSION,
Plaintiff,
v.
DEPUTY SHERIFF CLEMENTS, in his individual and official capacity;
DEPUTY SHERIFF ANDREWS, in his individual and official capacity
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual and official capacity, and
DEPUTY SHERIFF SERGEANT JORDAN, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 103] filed on January 21, 2016.
The magistrate judge recommends that the Court grant in part and deny in part
plaintiff’s Motion for Leave to File a Fourth Amended Prisoner Complaint [Docket No.
85]. The Recommendation states that objections to the Recom mendation must be filed
within fourteen days after service on the parties. See 28 U.S.C. § 636(b)(1)(C). The
Recommendation was served on January 21, 2016. Objections were due on or before
February 8, 2016.1 Defendants Clements, Romero, and Jordan (collectively,
“defendants”) filed a timely objection. Docket No. 106. Plaintiff has not objected to the
Recommendation.

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See Fed. R. Civ. P. 6(a)(1), (d).

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). In the absence of a
proper objection, the 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”). 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 construes 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).
I. ANALYSIS
Plaintiff was detained at the Denver Downtown Detention Center at all times
relevant to this lawsuit. See generally Docket No. 85-1. In his proposed fourth
amended complaint, plaintiff brings six claims for violation of his Fourteenth
Amendment rights. See id. Additional relevant facts are set forth in detail in the
Recommendation, see Docket No. 103 at 3-5, and will not be recited here except as
relevant to the Court’s de novo review.
The magistrate judge recommends denying plaintiff’s motion for leave to amend
with respect to plaintiff’s second, fifth, and sixth claims for relief on the ground that

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defendants are entitled to qualified immunity as to those claims. Id. at 6-11. In the
absence of an objection, the Court has reviewed these findings and is satisfied that
there is “no clear error on the face of the record.”2 Fed. R. Civ. P. 72(b), Advisory
Committee Notes.
The magistrate judge further recommends granting plaintiff’s motion for leave to
amend with respect to his first, third, and fourth claims for relief for violation of plaintiff’s
Fourteenth Amendment right to due process against defendants Clements, Romero,
and Jordan, respectively. Docket No. 103 at 11-14. In these claims, plaintiff states that
defendants Clements, Romero, and Jordan placed plaintiff into segregation and kept
him there without explanation in violation of his right to due process. Defendants object
to the Recommendation on the ground that plaintiff’s allegations concerning the punitive
intent of defendants’ actions are conclusory and that the magistrate judge erroneously
declined to consider evidence that is central to plaintiff’s allegations. See generally
Docket No. 106.
The court may deny leave to amend where 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). A proposed amendment is futile if the claim, as amended, would be
subject to dismissal. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s
Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). In other words, an amendment is futile
if it would not survive a motion to dismiss. See Bradley v. J.E. Val-Mejias, M.D., 379

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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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F.3d 892, 901 (10th Cir. 2004) (citation omitted). “In ascertaining whether 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 plaintiff, and the allegations in the
complaint must be accepted as true.” Myers, 2013 WL 3381276, at *6. “[A]ny
ambiguities must be resolved in favor of plaintiff, giving him the benefit of every
reasonable inference drawn from the well-pleaded facts and allegations in his
complaint.” Id. (citation and quotation omitted).
A. Sufficiency of Plaintiff’s Allegations
Defendants argue that the proposed fourth amended complaint lacks any “nonconclusory” allegations that plaintiff’s placement in a segregated, 23-hour lockdown unit
was purposeless or imposed as punishment. “The determination of whether a condition
of pretrial detention amounts to punishment turns on whether the condition is imposed
for the purpose of punishment or whether it is incident to some other legitimate
government purpose.” Peoples v. CCA Detention Centers, 422 F.3d 1090, 1106 (10th
Cir. 2005) (citing Bell v. Wolfish, 441 U.S. 520, 538 (1979)). “If an act by a prison
official, such as placing the detainee in segregation, is done with an intent to punish,
the act constitutes unconstitutional pretrial punishm ent. Similarly, if a restriction or
condition is not reasonably related to a legitimate governmental goal — if it is arbitrary
or purposeless — a court permissibly may infer that the purpose of the governmental
action is punishment.” Id. (citation, quotation, and alteration marks omitted).
The Recommendation found that plaintiff’s allegation that he was placed in
segregation without any notice of the reason for his placement permits an inference that

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plaintiff’s placement in segregation was purposeless or intended to punish him. Docket
No. 103 at 14. Defendants argue that plaintiff provides no factual support for his
conclusion that defendant Romero intentionally placed plaintiff in the segregation unit
solely because of the charges against plaintiff. Docket No. 106 at 9 (citing Docket No.
85-1 at 9-10, ¶ 42). Defendants further argue that plaintiff sets forth no factual
allegations with respect to defendants Jordan and Clements that reflect their desire to
punish plaintiff. Docket No. 106 at 10.
The Court agrees with the magistrate judge that, affording plaintiff the benefit of
reasonable inferences, the proposed fourth amended complaint plausibly states a claim
for relief against defendants for violation of his Fourteenth Amendment right to due
process. Plaintiff alleges that, before his removal from the sex offender unit and
placement in segregation, there had been no “incident nor facility disruption,” Docket
No. 85-1 at 3, ¶ 1, nor any “provocation or [violation of] jail rules or wrongdoing or
threats by or against plaintiff or a disciplinary write-up nor administration hearing.” Id.,
¶ 2. Plaintiff further alleges that, when he was placed in segregation, he repeatedly
inquired about the reason for the transfer and defendant Clements provided no answer.
Id. at 7, ¶¶ 28-31. Plaintiff further states that, beginning on the day he was placed in
segregation, defendant Jordan refused his requests for release from segregation, id. at
11, ¶¶ 47-48, and that, during their visits to the segregation unit, defendants Jordan and
Romero ignored plaintiff and refused to listen to his concerns even though they “would
stop and take time to discuss the segregation situation” with “all other segregated
inmates.” Id. at 13, ¶ 57. Finally, plaintiff alleges that, in response to his grievance, he

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was informed that his placement in segregation was “due to charges.” Id. at 11, ¶ 50. 3
From these allegations, a plausible inference can be drawn that defendants’ actions
were purposeless and done with the intent to punish.
Defendants argue that pretrial detainees charged with sexual crimes against
children may be placed in administrative segregation to maintain institutional security.
Docket No. 106 at 8. While defendants correctly identify legitimate government
interests – namely, effective management of a detention facility and the safety of
pretrial detainees – that may justify placing a pretrial detainee in segregation, the
existence of possible legitimate motives for defendants’ actions does not permit a
finding that plaintiff’s claims are futile. The cases that defendants cite are inapposite.
In Anderson v. Chapman, 604 F. App’x 810 (11th Cir. 2015) (unpublished), the Eleventh
Circuit affirmed an order granting summary judgment where a pretrial detainee was
placed in segregation because “[t]he placement was not for punishment; rather, it was
done to ensure [plaintiff’s] safety and to minimize the risk of violence between inmates.”
Id. at 813. Anderson was decided on summary judgment, however, which allowed the
court to consider evidence of the defendants’ proffered justification for their actions. At
the leave to amend stage, the Court is limited to looking at the complaint. In Peoples,

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Defendants argue that this response to plaintiff’s grievance, the contents of
which were alleged in plaintiff’s complaint, confirms that plaintiff was informed that he
was in custody “to protect him from other inmates and to maintain the overall security of
the facility.” Docket No. 106 at 9. Defendants’ argument overlooks plaintiff’s allegation,
which the Court accepts as true for the purpose of ruling on this motion, that he had not
been part of any disruption while housed in the sex offender unit and had not received
any threats. Docket No. 85-1 at 3, ¶ 2. Taking plaintiff’s allegations together with the
text of the grievance, it can be plausibly inferred that plaintiff’s placement in protective
custody was solely due to the charges against him.
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although the case was decided at the motion to dismiss stage, the legitimate
government interest for the plaintiff’s placement in segregation appeared on the face of
the complaint. 422 F.3d at 1106 (“According to the complaint . . . [plaintiff] was first
placed in segregation because [the facility] lacked bed space in the general population.
. . . [Plaintiff] then admits that he remained in segregation due to his plot to escape from
his previous pretrial detention facility[.]”). No such legitimate purpose is evident from
plaintiff’s complaint here. Although defendants correctly point out that jail
administrators enjoy broad discretion in placing inmates in administrative segregation,
Docket No. 106 at 8, the Court cannot determ ine on this record that plaintiff’s claim that
defendants’ actions were arbitrary and purposeless and done with the intent to punish
is futile.
B. Grievances
Defendants object to the magistrate judge’s decision not to consider two
grievances that defendants attached to their response to plaintif f’s motion. Docket No.
106 at 12-13. According to defendants, these two grievances (Docket Nos. 89-2, 89-3)
confirm that plaintiff was placed in segregation for his protection and “to maintain
institutional security.” Docket No. 106 at 12. 4
The Court may take into account “documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the

4

Defendants actually attached three grievances to their response, see Docket
Nos. 89-1, 89-2, 89-3, and the magistrate judge declined to consider all three
grievances on the ground that they were not central to plaintiff’s complaint. Docket No.
103 at 12-13. Defendants, however, do not discuss plaintiff’s first grievance in their
objection.
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documents’ authenticity.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.
2007). The Court agrees with the magistrate judge that the two grievances at issue are
not central to plaintiff’s complaint that he was placed in segregation without due
process. Plaintiff does not allege the contents of his grievance or the contents of
defendants’ response. See Docket No. 85-1 at 14. Rather, plaintiff’s reference to
these grievances in the proposed fourth amended complaint suggests only that, after
plaintiff threatened a lawsuit in those grievances, he was released from segregation into
the sex offender unit. See id, ¶¶ 61-63.
Moreover, the grievances are dated December 2013, nine months after the
alleged constitutional deprivation, and do not provide sufficient detail to demonstrate
the futility of plaintiff’s claims on their own. The grievances refer generally to an
“incident” at an unspecified time when plaintiff was in “gen. population.” Docket No. 892 at 1, 89-3 at 1. Plaintiff alleges, however, that before he was placed in segregation,
there had been no incidents or threats that would have justified his placement. Docket
No. 85-1 at 3, ¶¶ 1-2. At this stage in the proceedings, the Court must accept the
allegations in plaintiff’s proposed amended complaint over defendant Romero’s
contrary representations in response to plaintiff’s grievances. As discussed above, the
Court finds that plaintiff’s representations, accepted as true, permit a plausible
inference that his placement in segregation was done with the intent to punish. Thus,
even if the Court considered plaintiff’s grievances, defendants have failed to establish
that plaintiff’s proposed amendments would be futile. Accordingly, the Court sees no
error in this aspect of the Recommendation.
II. CONCLUSION
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For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 103] is ACCEPTED. It is further
ORDERED that plaintiff Franky L. Session’s Motion for Leave to File a Fourth
Amended Prisoner Complaint [Docket No. 85] is GRANTED in part and DENIED in part.
It is granted with respect to plaintiff’s first, third, and fourth claims for relief. It is denied
with respect to plaintiff’s second, fifth, and sixth claims for relief. It is further
ORDERED that, no later than 14 days after entry of this Order, plaintiff shall file
an amended complaint in conformance with this Order.

DATED March 1, 2016.
BY THE COURT:

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

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