Davis v. Federal Bureau of Prisons

Filing 199

ORDER regarding Pending Motions. Plaintiff's Motion Objecting to the Courts Order Granting Defendant's Motion Doc. 166 (ECF No. 186 ) is OVERRULED. Plaintiff's Motion Objecting to the Courts Order Doc. 183 (ECF No. 188 ) isOVERRU LED; Plaintiff's Motion for Clarification (ECF No. 162 ), construed as a motion requesting Fed. R. Civ. P. 39(b) relief, is GRANTED; the trial to be set in this case will be to a jury; Plaintiff's Motion Objecting to the Court's Denia l of Plaintiffs Motion for Clarification (ECF No. 168 ), Motion to Consolidate (ECF No. 179 ), and Motion Objecting to the District Court Order to Strike Doc. 173 and Doc. 175 (ECF No. 180 ) are DENIED AS MOOT; and The Clerk is directed to mail a copy of the following with this Order Order on Pending Motion, Recommendation, and Objection (ECF No. 144 ), and Order Appointing Pro Bono Counsel (ECF No. 158 ). ORDERED by Judge William J. Martinez on 09/29/2017. (angar, ) mailed as ordered

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-884-WJM-MJW
ALTON DAVIS,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS
Defendant.

ORDER REGARDING PENDING MOTIONS

Plaintiff Alton Davis, appearing pro se, asserts a single claim under the Religious
Freedom Restoration Act (“RFRA,” 42 U.S.C. §§ 2000bb et seq.) against Defendant
Federal Bureau of Prisons (“BOP”), arguing that BOP has imposed a substantial burden
on his religious exercise.
Matters before the Court include: Plaintiff’s Motion for Clarification (ECF No.
162), Motion Objecting the Court’s Denial of Plaintiff’s Motion for Clarification (ECF No.
168), Motion to Consolidate (ECF No. 179), Motion Objecting the District Court Order to
Strike Doc. 173 and Doc. 175 (ECF No. 180), Motion Objecting the Court’s Order
Granting Defendant’s Motion Doc. 166 (“Protective Order Objection,” ECF No. 186),
and Motion Objecting this Court’s Order Doc. 183 Denying Plaintiff’s Motion Doc. 181
for Appointment of Counsel as Moot (“Appointment of Counsel Objection,” ECF No.
188). For the reasons set forth below, Plaintiff’s Motion for Clarification (ECF No. 162)
is construed as a motion requesting a jury trial pursuant to Fed. R. Civ. P. 39(b) (“Jury

Trial Motion”) and is granted; thus, Plaintiff’s subsequent and related motions (ECF
Nos. 168, 179, 180) are denied as moot. Further, Plaintiff’s Protective Order Objection
(ECF No. 186) and Appointment of Counsel Objection (ECF No. 188) are both denied.
I. BACKGROUND
Plaintiff is an inmate in the custody of Defendant BOP and is currently
incarcerated at the United States Penitentiary, Administrative Maximum (“ADX”). (ECF
No. 90 at 3.) On August 24, 2010, in the United States District Court f or the Southern
District of New York, Plaintiff was convicted on eight criminal counts, including
conspiracy to commit Hobbs Act robberies of suspected drug dealers, using and
discharging a firearm during a robbery, murder, and conspiracy to distribute and
possess with intent to distribute more than 100 kilograms of marijuana. See United
States v. Davis, 689 F.3d 179, 181 (2d Cir. 2012) (upholding judgment and detailing
facts). In September 2010, Plaintiff was notified that a Special Administrative Measure
(“SAM”) was being implemented regarding his confinement. (ECF No. 90 at 3.) BOP
asserts that the SAM was implemented “because [Plaintiff] demonstrates a ‘proclivity
for violence,’ as evidenced by his conviction on eight criminal counts . . . [and] his
attempt, while incarcerated, to order the murders of two federal law enforcement
officials.” (ECF No. 98 at 2 (citing ECF No. 98-1).) Plaintiff’s SAM restrictions expired
on August 31, 2014. (ECF No. 98-2.) However, on September 8, 2014, Plaintiff was
placed on Correspondence Restrictions (“CRs”) pursuant to 28 C.F.R. § 540.15 “f or a
period of six months to transition [Plaintiff] into a general population setting.” (ECF No.
98 at 2 (citing ECF No. 98-2 ¶ 4).) And, in March 2015, those CRs were reviewed and
removed. (ECF No. 98-2 ¶¶ 13–14.)
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Based on this course of events, Plaintiff filed this action on April 27, 2015,
asserting the following claims: (1) violation of his First Amendment rights to freedom of
speech, freedom of association, and free exercise of religion (including violation of
RFRA), (2) violation of his Fifth Amendment right to procedural due process, and
(3) violation of his Eighth Amendment right to be free from cruel and unusual
punishment stemming from his conditions of confinement and deliberate indifference to
his serious medical needs. (ECF No. 90.)
On August 29, 2016, BOP filed a Motion to Dismiss (ECF No. 98), which was
granted in part on April 7, 2017 (ECF No. 144). The Court stated in that Order that
“[m]oving forward, Plaintiff shall have one remaining claim under [RFRA] against
Defendant [BOP].” (Id. at 27.) Following this, on May 25, 2017, United States
Magistrate Judge Michael J. Watanabe held a scheduling conference (ECF Nos. 157,
159), and on that same day entered an order appointing pro bono counsel (ECF No.
158).
Since that time, Plaintiff has filed a notice to the Court (see ECF No. 165),
multiple motions for clarification (see ECF Nos. 143,162, ), motions for appointment of
counsel (see ECF Nos. 181, 189, 192), Rule 72(a) objections to Judge Watanabe’s
orders (see ECF Nos. 168, 186, 188), and two motions for consolidation and
reconsideration (see ECF Nos. 179, 180). After reviewing all of these filings, it is
apparent to the Court that Plaintiff has the following concerns: (1) Plaintiff believes that
he is entitled to a jury trial on the remaining claim in his case, and (2) Plaintiff believes
that it is the Court’s duty to ensure that he can effectively litigate and understand what

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is going on in his case, by halting all legal proceedings until pro bono counsel
undertakes representation of Plaintiff. The Court will address both of these concerns.
II. LEGAL STANDARD
When reviewing an objection to a magistrate judge’s non-dispositive ruling, the
Court must adopt the ruling unless it finds that the ruling is “clearly erroneous or
contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S. West Commc’ns, Inc., 167 F.R.D. 131,
133 (D. Colo. 1996). The clearly erroneous standard “requires that the reviewing court
affirm unless it on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988). The “contrary to law” standard permits “plenary review as to
matters of law,” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d
ed., Apr. 2015 update), but the Court will set aside a magistrate judge’s order only if it
applied the wrong legal standard or applied the appropriate legal standard incorrectly,
see Wyoming v. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1236 (D. W yo. 2002).
III. ANALYSIS
A.

Protective Order Objection
On June 20, 2017, BOP moved for the entry of a protective order regulating the

use and disclosure of documents and materials produced during discovery in this case.
(ECF No. 166). Plaintiff did not file a response to BOP’s motion. On August 7, 2017,
Judge Watanabe entered an order granting BOP’s motion, noting that “the Court treats
the motion as unopposed.” (ECF No. 177 at 1.) Then, on August 24, 2017, Plaintiff filed

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an objection to Judge Watanabe’s order. (ECF No. 186.) In that objection, Plaintif f
reiterates that he has requested legal representation, that “he does not understand these
motions and documents from Marcy Cook [BOP’s counsel],” and further, that the “Court
should have take[n] note that Plaintiff did not respond to this particular motion from
Marcy Cook because he honestly did not know how to.” (Id. at 1.)
Plaintiff articulates an objection to BOP’s motion that was not presented before
Judge Watanabe. The Court is unaware of any precedent, nor does Plaintiff point the
Court to any relevant authority, that allows Plaintiff to “sandbag” the Magistrate Judge
by failing to point out facts and relevant claims that were not previously presented and
argued. See Thomas v. Arn, 474 U.S. 140, 147 (1985) (in a similar vein, the specificity
requirement “prevents a litigant from ‘sandbagging’ the district judge by failing to object
and then appealing”). Accordingly, the Court finds that Plaintiff has waived his right to
object. Plaintiff’s objection is overruled.
B.

Appointment of Counsel Objection
On May 18, 2017, Plaintiff filed a motion requesting legal representation (ECF

No. 152), which was granted by Judge Watanabe on May 25, 2017 (see ECF Nos. 158,
159). Judge Watanabe’s order appointing pro bono counsel states, in relevant part:
The Plaintiff is advised that the Clerk of the Court will
select counsel from the Panel; however, there is no
guarantee that a Panel member will undertake
representation in every case. Further, if a Panel member
does undertake to represent Plaintiff, there is no
guarantee of when that might happen. Accordingly, the
Court cautions that the Plaintiff is responsible for all
scheduled matters, including hearings, depositions,
motions, and trial.

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(ECF No. 158 at 1–2 (bold face in original.)
On August 14, 2017, Plaintiff filed a renewed Motion for Appointment of Counsel
(ECF No. 181), arguing that “[i]t is obvious that the factual issues that arise in this case
along with its nature and complexity is not only hard for Plaintiff to articulate, but also
impossible for Plaintiff to investigate [] facts and present his claims adequately,” and
that “unfortunately, because of Plaintiff’s lack of knowledge [of] the law . . . and his
condition of confinement . . . he’s unable to argue his case.” (Id. at 1–2.) On August
15, 2017 Judge Watanabe correctly denied Plaintiff’s renewed motion as moot. (ECF
No. 183.)
Plaintiff objects to Judge Watanabe’s order, arguing that he has not received a
copy of the order appointing pro bono counsel (see ECF No. 158), and that in any
event, this “[C]ourt cannot in no way shape or form force[] a plaintiff to represent himself
in a proceeding[] when the plaintiff does not understand the motions and documents
sent to him by Marcy Cook.” (ECF No. 188 at 2.)
The Court cannot find clear error here. See Hutchinson, 105 F.3d at 566. Judge
Watanabe correctly found Plaintiff’s renewed motion for appointment of legal counsel
moot, given that Judge Watanabe issued an order appointing pro bono counsel just
three months prior. Accordingly, Plaintiff’s objection is overruled.
Further, the Court reminds Plaintiff that he has chosen to file this case and he
has an obligation to participate in it, whether or not a panel member ultimately chooses
to represent him. The Court also reminds Plaintiff that he is currently responsible for all
scheduled matters, including hearings, depositions, motions, and trial. Asserting lack of
legal knowledge or inability to understand motions or documents is not an excuse for a
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pro se litigant’s failure to represent him or herself. Morever, the Court will not entertain
Plaintiff’s request “to put all future proceedings on hold until [] appointment of counsel is
approved.” (ECF No. 188 at 2.) The Court will, however, provide Plaintiff with a copy of
Judge Watanabe’s order appointing pro bono counsel. (See ECF No. 158.)
C.

Jury Trial Motion
On June 2, 2017, Plaintiff filed a motion for clarification (ECF No. 162), stating,

first, that he attended the scheduling conference on May 25, 2017 during which Judge
Watanabe and Marcy Cook decided that a bench trial would be appropriate in his case
without Plaintiff’s input, and second, that he did not receive a copy of this Court’s prior
order on his pending motions (see ECF No. 144). Plaintiff also clearly asserts that “he
seeks a jury trial.” (ECF No. 162 at 2.)
While this motion was originally referred to Judge Watanabe, the Court now
construes Plaintiff’s motion as one requesting a jury trial pursuant to Fed. R. Civ. P.
39(b); thus, the Court exercises its discretion to withdraw the prior reference and will
itself rule directly on the merits of Plaintiff’s motion. (See ECF Nos. 163, 164.) 1
Plaintiff did not demand a jury trial as required by Federal Rule of Civil Procedure
38(b)(1), which provides that “a party may demand a jury trial by serving the other
parties with a written demand—which may be included in a pleading—no later than 14
days after the last pleading directed to the issue is served. Id.
Further, a party waives the right to a jury trial when he or she fails to make a

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Accordingly, the Court finds the following motions moot, given that they are dependent
on Judge Watanabe’s order denying Plaintiff’s motion due to Plaintiff’s failure to request legal
relief in his motion (see ECF No. 164): ECF Nos. 168, 179, 180.

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timely demand under Rule 38(b). See Fed. R. Civ. P. 38(d) (a “party waives a jury trial
unless its demand is properly served and filed”); see also Jolivet v. Deland, 966 F.2d
573, 577 (10th Cir. 1992). However, the Court does have discretion to order a jury trial
later upon motion by a party. See Fed. R. Civ. P. 39(b). Rule 39(b) provides that the
court may nevertheless grant a jury trial “on motion” and “on any issue for which a jury
might have been demanded.” Id.
Plaintiff did not file a motion pursuant to Rule 39(b), but instead f iled his “Motion
for Clarification,” in which he states that “he seeks a jury trial.” (ECF No. 162 at 2.)
However, in light of Plaintiff’s pro se status, the Court will construe the pleading as a
Rule 39(b) motion.
The Tenth Circuit has held that “absent strong and compelling reasons to the
contrary, a district court should exercise its discretion under Rule 39(b) and grant a jury
trial.” Nissan Motor Corp. v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1980). The Court
finds that there is no strong and compelling reason to deny Plaintiff’s request for a jury
trial. Plaintiff has filed his request while discovery is still ongoing, and the Court cannot
see how BOP would be prejudiced by this decision. Further, lack of prejudice and lack
of legal assistance are both factors the Court may consider in granting a request for a
jury trial. See Gilkey v. ADT Security, Inc., 2012 WL 1901287, at *2 (D. Kan. May 25,
2012) (citing Members v. Paige, 140 F.3d 699, 704 (7th Cir. 1998)). Accordingly,
Plaintiff’s motion (ECF No. 162) is granted to the extent that it requests a jury trial.
Plaintiff will also be provided a copy of this Court’s prior order on Plaintiff’s pending
motions. (See ECF No. 144.)

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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion Objecting to the Court’s Order Granting Defendant’s Motion
Doc. 166 (ECF No. 186) is OVERRULED;

2.

Plaintiff’s Motion Objecting to the Court’s Order Doc. 183 (ECF No. 188) is
OVERRULED;

3.

Plaintiff’s Motion for Clarification (ECF No. 162), construed as a motion
requesting Fed. R. Civ. P. 39(b) relief, is GRANTED; the trial to be set in this
case will be to a jury;

4.

Plaintiff’s Motion Objecting to the Court’s Denial of Plaintiff’s Motion for
Clarification (ECF No. 168), Motion to Consolidate (ECF No. 179), and Motion
Objecting to the District Court Order to Strike Doc. 173 and Doc. 175 (ECF No.
180) are DENIED AS MOOT; and

5.

The Clerk is directed to mail a copy of the following with this Order:
a.

Order on Pending Motion, Recommendation, and Objection (ECF No.
144), and

b.

Order Appointing Pro Bono Counsel (ECF No. 158).

Dated this 29th day of September, 2017.
BY THE COURT:

William J. Martínez
United States District Judge
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