Orwig v. Chapdelane et al

Filing 68

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Mark L Carman on 4/23/18. re 55 MOTION to Amend/Correct/Modify 6 Amended Complaint, filed by Christopher M. Orwig. The Court RECOMMENDS granting in part and denying in part 55 . (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-0781-PAB-MLC
CHRISTOPHER M. ORWIG,
Plaintiff,
v.
CAPTAIN FELICIA BROOKS, Sterling Corr. Facility Kitchen Manager, Individual Capacity;
LT. STEVEN BADE, Sterling Corr. Facility Hearings Disciplinary Officer, Individual Capacity;
OFFICER CLARK, Sterling Corr. Facility Correctional Officer, Individual Capacity;
Defendants.
RECOMMENDATION ON MOTION TO AMEND COMPLAINT
Magistrate Judge Mark L. Carman
This matter comes before the court on Plaintiff Christopher M. Orwig’s referred motion
(doc. 55) to amend his first amended complaint and to forego the redlined version of his
proposed second amended complaint under D.C.COLO.LCivR 15.1. Defendants Captain Felicia
Brooks, Lieutenant Steven Bade, and Officer Clark oppose the proposed amendment. Doc. 57.
As Defendants were able to argue their opposition without the benefit of a redlined version of the
amendment, the court grants Plaintiff’s request to forego the redline. For the reasons that follow,
the court recommends1 granting in part and denying in part Plaintiff’s proposed amendment.

1

Because the court’s ruling will result in excluding certain claims from going forward, the court
assumes its ruling is dispositive and requires a recommendation. See, e.g., Fisher v. Koopman,
No. 15-cv-0166-WJM-NYW, 2015 WL 6502700, at *2 n.1 (D. Colo. Oct. 28, 2015), aff'd, 693 F.
App'x 740 (10th Cir. 2017); Estate of Roemer v. Shoaga, No. 14-cv-01655-PAB-NYW, 2017
WL 1190558, at *7 (D. Colo. Mar. 31, 2017).

I.

BACKGROUND

At the time Plaintiff filed his pro se original and amended complaints, he was an inmate
of Sterling Correctional Facility (“Sterling”). Doc. 1 (complaint filed April 4, 2016); Doc. 6
(amended complaint filed April 25, 2016). The court has dismissed some of Plaintiff’s claims
(Order of March 17, 2017, doc. 32), and Plaintiff has voluntarily dismissed some defendants. He
currently has claims for injunctive relief under the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”) and the First Amendment against Captain Brooks, Lieutenant
Bade and Officer Clark in their individual capacities.
Plaintiff alleges that his sincerely-held religious beliefs require him to keep his bible on
his person. Doc. 6 at 4. At the time of the events at issue, he had been doing so for “well over
one year.” Id. On December 1, 2015, he reported to the Sterling kitchen for work; Officer Clark
confiscated his bible; Captain Brooks informed him that a “POR” (posted operational rule)
policy did not permit him to have his bible in the kitchen and ordered him to return to work
without it; Plaintiff attempted to do so but experienced distress and refused to continue; he was
“written up,” fired from his job, and threatened with being put in restricted population for
refusing to work without his bible. He further alleges that Lieutenant Bade convicted him of
violating the Colorado Department of Correction's (“CDOC”) Code of Penal Discipline
(“COPD”), AR #150-01, for “failure to work” and was assessed a loss of 10 days good time.
Doc. 6 at 8.
Since filing his first amended complaint, Plaintiff has obtained pro bono counsel. He also
was transferred from Sterling to the Cheyenne Mountain Reentry Center (“CMRC”) on
November 7, 2017. On December 31, 2017, Plaintiff filed his motion to amend and attached his
proposed second amended complaint. Doc. 55, 55-1. He states the purpose of the amendment is

2

in large part “to add Rick Raemisch, the Executive Director of [CDOC] … as a Defendant in his
official capacity.” Doc. 55 at 3.
Plaintiff also proposes to add more factual detail regarding his existing claims, and seeks
to add allegations of conduct at CMRC. Plaintiff would allege that CMRC has disciplined him
and threatens additional discipline for his declining to participate in a program (the “Positive
Peer Community Program”) which Plaintiff believes is contrary to his religious beliefs. Doc. 551 at ¶ 67. Plaintiff also proposes to separate his two legal theories – RLUIPA and the First
Amendment – into separate causes of action.
II.
A.

ANALYSIS

Standards for Amending the Complaint
Rule 15(a) provides that “[t]he court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2).
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. 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 amendment, etc.—the leave sought should, as the rules
require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962). “The purpose of the Rule is to provide litigants the
maximum opportunity for each claim to be decided on its merits rather than on procedural
niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (citations and
internal quotation marks omitted).
Defendants argue Plaintiff’s proposed amendment is futile on several grounds: mootness
due to Plaintiff’s transfer out of Sterling, statute of limitations, failure to administratively exhaust
the claim regarding events at CMRC, lack of standing to broadly request the injunctive relief
3

Plaintiff seeks, and as to Plaintiff’s request for good time credit, mootness because his
punishment in the disciplinary proceeding was suspended and has since been withdrawn. In his
reply, Plaintiff withdrew the claim for good time credit. Doc. 64 at 8, n.4.
“A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.” Full Life Hospice LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (internal
quotation marks omitted). In determining whether a proposed amendment should be denied as
futile, the court must analyze a proposed amendment as if it were before the court on a motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Hunt v. Riverside Transp., No.
Civ.A. 11-2020-DJW, 2012 WL 1893515, at *3 (D. Kan. May 23, 2012). Because the court
must consider futility by the same light as a Rule 12(b)(6) motion, the court generally cannot
consider matters outside of the proposed amended complaint. Gee v. Pacheco, 627 F.3d 1178,
1186 (10th Cir. 2010). The court therefore does not consider the factual materials the parties
submitted on this motion.
A claim is subject to dismissal if it does not “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.”
Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (quoting Twombly, 550 U.S. at 556). The
defendant bears the burden of showing futility. Hunt, 2012 WL 1893515, at *3; see also
Carefusion 213, LLC v. Prof’l Disposables, Inc., Civ. A. No. 09-2616-KHV-DJW, 2010 WL
4004874, at *5 (D. Kan. Oct. 12, 2010). Claims are also subject to dismissal if the allegations
show some legal bar to the claim. See, e.g., Gee, 627 F.3d at 1193 (plaintiff’s allegations

4

showed some of his claims were barred as untimely); Sause v. Bauer, 859 F.3d 1270, 1278 (10th
Cir. 2017), petition for cert. pending (claims barred by qualified immunity were appropriately
dismissed with prejudice).
B.

Claims Regarding Conduct at Sterling.
1.

Mootness

Article III of the U.S. Constitution restricts the court to considering only active cases or
controversies. Therefore, if a claim becomes moot during litigation, the court lacks jurisdiction
to continue hearing the claim. As Plaintiff notes,
When a prisoner files suit against prison officials who work in the institution in
which he is incarcerated, seeking declaratory and injunctive relief on the basis of
alleged wrongful conduct by those officials, and then that prisoner is subsequently
transferred to another prison or released from the prison system, courts are
presented with a question of possible mootness.
Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). “[A] plaintiff lacks standing to maintain a
declaratory or injunctive action unless he or she can demonstrate a good chance of being
likewise injured in the future.” Sause, 859 F.3d at 1277 (internal quotation marks omitted).
“[P]ast exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief if unaccompanied by any continuing present adverse effects.” City of
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal ellipsis omitted).
Here, although Plaintiff alleges both Sterling and CMCR have applied the same
disciplinary rule in ways that violate his freedom of religion, he does not allege the same
violation of that right. Plaintiff alleges CMCR is substantially burdening his religious expression
because he will not participate in a peer program; he does not allege that CMCR is prohibiting
him from carrying his bible. The case law is clear that to avoid mootness, a plaintiff seeking
injunctive relief must establish a good chance of suffering the same violation of the same right.

5

In Lyons, for instance, the court required the plaintiff to establish a “real and immediate threat
that he would again be stopped for a traffic violation, or for any other offense, by an officer or
officers who would illegally choke him into unconsciousness without any provocation or
resistance on his part.” Lyons, 461 U.S. at 105. In Sause, the plaintiff alleged one of the
defendant police officers had
threatened her again … and lectured her that freedom of speech means nothing.
These allegations are insufficient to demonstrate that Sause faces a good chance
of being likewise injured in the future. That is, Sause fails to establish she faces a
real and immediate threat that (1) the defendants will again enter her home while
investigating a crime; (2) she will again kneel and pray; and (3) the defendants
will again order her to stand up and stop praying so they can harass her.
Sause, 859 F.3d at 1277-78 (internal quotation marks and citations omitted). Thus to avoid
mootness for his claims regarding conduct at Sterling, he would have to allege the very same
conduct has occurred at his new facility. Plaintiff does not do so. His claims alleging wrongs at
Sterling are futile, unless he can still obtain some relief for those wrongs.
In this connection, Plaintiff argues “a claim is not moot ‘when there is some possible
remedy, even a partial remedy or one not requested by the plaintiff.’” Doc. 64 (reply) at 8
(quoting Rezaq v. Nalley, 677 F.3d 1001, 1010 (10th Cir. 2012)).
A case is not moot when there is some possible remedy, even a partial remedy or
one not requested by the plaintiff. … While a court may not be able to return the
parties to the status quo ante, ... a court can fashion some form of meaningful
relief in circumstances such as these. … Even the possibility of a “partial remedy”
is sufficient to prevent [a] case from being moot. ... Even if that relief—such as
new retroactive transfer hearings with adequate procedural protections—is
unlikely to result in transfers to less-restrictive conditions, it is relief nonetheless.
Id. at 1010 (emphasis original; internal quotation marks omitted, citing Church of Scientology of
Cal. v. United States, 506 U.S. 9, 12–13 (1992)).
Plaintiff argues that the court could still grant partial relief on his claims regarding
Sterling because the court could order expungement of his COPD conviction. In his current
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pleading, Plaintiff requests inter alia “the conviction of ‘COPD’ violation [be] overturned.”
Doc. 6 at 11. In the proposed SAC (apparently before Plaintiff realized the disciplinary sentence
had been suspended and later dropped), he requests an order for CDOC “to provide Plaintiff with
eight (8) days of good time served,” and “such other and further relief as the Court deems just
and proper.” Doc. 55-1 at 13.
Plaintiff has not expressly named CDOC as a defendant in his proposed amendment, but
argues the claim against Executive Director Raemisch in his official capacity is the same as a
claim against CDOC. “Official capacity suits ... generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473
U.S. 159, 165 (1985) (internal quotation marks omitted). “As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166. CDOC received
notice when the U.S. Marshals served Plaintiff’s complaint. Doc. 11 (waiver of service on
behalf of seven Sterling officers including the warden, signed by a representative of CDOC’s
office of legal services). The court will therefore refer to the proposed claims against Mr.
Raemisch as claims against CDOC.
If Plaintiff ultimately proves the elements of his claims, expungement of the disciplinary
conviction from Plaintiff’s record is still possible to award against CDOC. To this extent, the
claims alleging violations at Sterling are not moot. However, Plaintiff’s claims against
Defendants Brooks, Bade and Clark are moot; the court cannot order these officers in their
individual capacities to take official action on behalf of Sterling or CDOC. See, e.g., Lester v.
Garrett, No. 09-cv-01783-DME-KMT, 2010 WL 3075569, at *1 (D. Colo. Aug. 3, 2010) (citing
Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1232 (10th Cir. 2005)).

7

2.

Timeliness

Defendants argue the claims against CDOC regarding conduct at Sterling are barred by a
two-year statute of limitation. As Plaintiff notes, however, the statute of limitation for RLUIPA
claims is four years. 28 U.S.C. § 1658(a) (“civil action arising under an Act of Congress enacted
after the date of the enactment of this section,” which is Dec. 1, 1990); Pettigrew v. Zavaras, 574
F. App'x 801, 807 (10th Cir. 2014). The RLUIPA claim against CDOC is therefore timely.
Defendants are correct that Plaintiff’s First Amendment claim brought through 42 U.S.C.
§ 1983 is governed by Colorado’s residual two-year statute of limitation in C.R.S. § 13-80102(1)(i). See, e.g., Blake v. Dickason, 997 F.2d 749, 751 (10th Cir. 1993); Pettigrew, 574 F.
App’x at 807.
Pursuant to Federal Rule of Civil Procedure 8(c)(1), the lapse of the statute of
limitations is an affirmative defense. … A defendant may raise a pre-answer
statute of limitations defense in a Rule 12(b)(6) motion to dismiss, however, when
the dates given in the complaint make clear that the right sued upon has been
extinguished.
Lawson v. Okmulgee Cty. Criminal Justice Auth., No. 16-7070, 2018 WL 1104553, at *3 (10th
Cir. Feb. 28, 2018) (internal citations and quotation marks omitted). “[T]he accrual date of a
§ 1983 cause of action is a question of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007).
[A] civil rights action accrues when the plaintiff knows or has reason to know of
the injury which is the basis of the action. … The injury in a § 1983 claim is the
violation of a constitutional right, and such claims accrue when the plaintiff
knows or should know that his or her constitutional rights have been violated.
Lawson, 2018 WL 1104553, at *4 (internal quotation marks and citations omitted, citing Baker v.
Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993); Smith v. City of Enid, 149 F.3d 1151, 1154
(10th Cir. 1998)). “[W]e first identify the alleged constitutional violations and then locate when
they occurred.” Id.
8

Plaintiff’s motion was not filed within two years of December 1, 2015, the date he was
first disciplined for refusing to work without his bible – i.e., being fired from his job, threatened
with being placed in restricted population, and having Lieutenant Stegar file an incident report
for investigation of Plaintiff’s refusal to work without his bible. Doc. 55-1 ¶¶ 7, 43-55, 82.
However, the motion is within two years of Officer Bade’s decision to formally charge (January
4, 2016) Plaintiff with a COPD violation regarding his refusal to work without his bible, Officer
Raymond Cole’s hearing of that charge (January 8, 2016) and his conviction of Plaintiff thereon.
Id. ¶ 57. Plaintiff alleges the COPD conviction as a second violation of his First Amendment
rights. Id. ¶ 60.
Defendants argue the entire cause of action regarding conduct at Sterling accrued on the
date he was first disciplined. They appear to consider the COPD formal charge, hearing and
conviction as merely “continuing adverse effects” and a “later consequence” of the alleged
constitutional violation on December 1, 2015. Doc. 57 at 4-5. Defendants cite Industrial
Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994) for the
proposition that the plaintiff “need not know the full extent of his injuries before the statute of
limitations begins to run.”
Plaintiff replies to the contrary, he alleges “a series of discrete acts” taken by separate
officers between December 1, 2015 and January 8, 2016 and each act separately violates his
constitutional rights. Doc. 64 at 2-3. Plaintiff persuasively cites Fogle v. Pierson, 2008 U.S.
Dist. LEXIS 24543, at *20 (D. Colo. Mar. 26, 2008) (“a series of decisions made by various
Defendants over a multi-year period which had the result of [plaintiff] being continuously
confined in administrative segregation” were discrete acts; each decision made more than two
years before the complaint was filed were barred as untimely unless equitably tolled), aff’d sub

9

nom. Fogle v. Slack, 419 F. App’x 860, 864-65 (10th Cir. April 8, 2011); Gambina v. Fed.
Bureau of Prisons, 2011 U.S. Dist. LEXIS 111867, at *13 (D. Colo. Sep. 28, 2011)
(distinguishing between “discrete event in the past” and “a continuously-present condition of
confinement”); and Georgacarakos v. Wiley, 2008 U.S. Dist. LEXIS 69144, at *35-39 (D. Colo.
Sep. 12, 2008) (claims regarding even discrete acts that have “continuing consequences” still
separately accrue). Indeed, even the case on which Defendants rely recognizes separate accrual
dates for discrete acts. Industrial Constructors, 15 F.3d at 969 (free speech claims accrued in
May 1984 and other claims accrued in August 1984). Consistent with the above cases, the court
finds Plaintiff alleges separate violations of his First Amendment rights in the discipline or
punishments he received between December 1, 2015 and January 8, 2016. Thus, the only
portion of Plaintiff’s proposed First Amendment claim against CDOC regarding Sterling that
may be untimely is the discipline received before December 31, 2015.
An otherwise untimely claim may be brought by amendments that relate back to the
original pleading under Federal Rule of Civil Procedure 15.
An amendment to a pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading; or
(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint [90 days from date of
filing], the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on
the merits; and
(ii) knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1). “[T]he purpose of relation back is ‘to balance the interests of the
defendant protected by the statute of limitations with the preference expressed in the Federal
10

Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their
merits.’” Santistevan v. City of Colo. Springs, No. 11-cv-01649-MEH-BNB, 2012 WL 280370,
at *3 (D. Colo. Jan. 31, 2012) (quoting Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550
(2010)).
“[W]hen a list of parties has ‘changed,’ Rule 15(c)(1)(C) governs the relation back to the
original complaint.” Watts v. Smoke Guard, Inc., No. 14-cv-01909-WYD-NYW, 2016 WL
26503, at *2 (D. Colo. Jan. 4, 2016) (citing Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir.
2004)). See also Pierce v. Amaranto, 276 F. App’x 788, 792 (10th Cir. 2008). For purposes of
Rule 15, “[n]otice is satisfied when the parties are so closely related in their business operations
or activities that the institution of an action against one serves to provide notice of the litigation
to the other.” Id. (quoting Laratta v. Raemisch, No. 12-cv-02079-MSK, 2014 WL 1237880, at
*16 (D. Colo. March 26, 2014)).
Here, the proposed amendment to sue CDOC regarding conduct at Sterling asserts a
claim that arose out of the conduct Plaintiff set out in the original and amended complaints. As
noted above, CDOC received notice of this action within the time period provided by Rule 4(m)
such that it will not be prejudiced. However, Rule 15(c)(1)(C)(ii) requires a “mistake concerning
the proper party's identity.” Defendants argue that Plaintiff is not seeking to correct “a misnomer
or misdescription of a Defendant … and there is nothing … to suggest there was a mistake
concerning [Mr. Raemisch’s] identity.” Doc. 57 at 6. Defendants cite Garrett v. Fleming, 362
F.3d 692, 696-97 (10th Cir. 2004). Garrett remains good law that a plaintiff cannot avoid the
statute of limitations when he pleads claims against anonymous defendants and later seeks to
identify them by name. See, e.g., Estate of Roemer v. Shoaga, No. 14-cv-01655-PAB-NYW,

11

2017 WL 1190558, at *7 (D. Colo. Mar. 31, 2017). But Defendants rely on Garrett’s holding
that
the mistake proviso [in Rule 15(c)(1)] was included ... to resolve the problem of a
misnamed defendant and allow a party to correct a formal defect such as a
misnomer or misidentification. … [A]n amendment changing the name of a
defendant … relate[s] back … only if the change is the result of such a formal
defect.
Id. (internal quotation marks and citations omitted). This aspect of Garrett has been superseded
by Krupski.2
[A] plaintiff might know that the prospective defendant exists but nonetheless
harbor a misunderstanding about his status or role in the events giving rise to the
claim at issue, and she may mistakenly choose to sue a different defendant based
on that misimpression. That kind of deliberate but mistaken choice does not
foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.
Krupski, 560 U.S. at 549.
Krupski shifts the focus from whether a plaintiff actually made a mistake, as the
issue is phrased in Garrett, 362 F.3d at 696 (“a plaintiff's lack of knowledge of
the intended defendant's identity is not a ‘mistake’”) to whether the defendant
should have known that a plaintiff made a mistake. Krupski, 560 U.S. at 550
(“But repose would be a windfall for a prospective defendant who understood, or
who should have understood, that he escaped suit during the limitations period
only because the plaintiff misunderstood a crucial fact about his identity.”).
Estate of Roemer, 2017 WL 1190558, at *7.
Thus although Defendants argue Plaintiff always knew the identity of the Executive
Director of CDOC, the focus is instead whether Plaintiff had a mistaken understanding of the
roles or status of potential defendants, of which Defendants were or should have been aware.
Plaintiff was pro se when he filed his complaint and amended complaint, and the court therefore
construes those pleadings liberally. Plaintiff began serving his sentence at Sterling in 2013 and

2

Plaintiff argues Rule 15(c)(1)(C) is inapplicable because Plaintiff is not adding a new party;
Plaintiff originally sued other officers of CDOC in their official capacities. However, the official
capacity claims have been dismissed. Doc. 32 at 4, 13. The proposed claim against Executive
Director Raemisch in his official capacity seeks to add a new party.
12

had been incarcerated there until his transfer on November 7, 2017. Approximately one month
after his lawyer entered an appearance and three weeks before the limitations period for the First
Amendment claim would run regarding the discipline received on December 1, 2015, CDOC
transferred him to another facility. Doc. 55-1 at ¶¶ 18, 64; Doc. 55 (motion) at 2. Giving
reasonable inferences to Plaintiff’s allegations, he had a mistaken understanding of the roles or
status of the Defendants and potential defendants as to the relief he requests going forward. It
appears he misunderstood that either Defendants would remain his jailors until he was released,
or that at least one of them would have ongoing authority to modify the disciplinary record he
received at Sterling.
Defendants (and CDOC) should have realized that if Plaintiff correctly understood the (a)
significance a transfer would have on his request to have the disciplinary conviction overturned,
(i.e., the officer who found the disciplinary violation would apparently not have authority to
expunge that conviction after Plaintiff was transferred); and (b) that officers in their individual
capacity cannot take official acts on behalf of CDOC, he would have named CDOC as a
defendant sooner. See, e.g., Laratta, 2014 WL 1237880, at *16 (finding amendment to add
Executive Director Raemisch related back because “it is clear that Plaintiff, while proceeding pro
se, misunderstood that he had to name specific defendants in their official capacities in order to
obtain declaratory and injunctive relief.”); Santistevan v. City of Colo. Springs, No. 11-cv01649-MEH-BNB, 2012 WL 280370, at *6–7 (D. Colo. Jan. 31, 2012) (plaintiff’s amendment to
add parties related back because based on factual misunderstandings of their roles or whether the
officers acted in conformity with county policies). Some post-Krupski cases in the Tenth Circuit
have not found a mistake within the meaning of Rule 15(c)(1)(C) in arguably similar
circumstances, but their lack of discussion regarding Krupski’s broadening of the concept makes

13

those cases unpersuasive here. See, e.g., Doe v. Bd. of Cty. Comm'rs of Craig Cty., No. 11-cv0298-CVE-PJC, 2012 WL 2175792, at *4 (N.D. Okla. June 14, 2012); Kole v. Smith, No. 14-cv01435-WJM-KLM, 2015 WL 5026194, at *10 (D. Colo. Aug. 26, 2015).
Specifically, CDOC knew that it had the discretion and authority to transfer inmates
between CDOC facilities whenever it “deems it to be in the best interests of said person and the
public.” See, e.g., Schmaltz v. Zavaras, No. 08-cv-134-MSK-CBS, 2010 WL 466149 (D. Colo.
Feb. 7, 2010) (discussing C.R.S. § 16-11-308(5)). CDOC also should have known that officers
in their individual capacity cannot take official acts on its behalf, and that if Plaintiff were
transferred, it would at best be unclear to Plaintiff (and the court) whether Sterling officers could
still modify Plaintiff’s disciplinary record. This is not a scenario in which a plaintiff made “a
deliberate choice to sue one party instead of another while fully understanding the factual and
legal differences between the two parties.” Krupski, 560 U.S. at 549. See Trujillo v. City & Cty.
of Denver, 14-cv-02798-RBJ-MEH, 2016 WL 5791208 (D. Colo. Sep. 7, 2016). Plaintiff’s
proposed amendment to bring the First Amendment claim against CDOC meets the requirements
of Rule 15(c)(1)(C), relates back to his original complaint, and thus is timely.
In sum, Plaintiff’s proposed claims regarding conduct at Sterling are neither moot nor
untimely as to CDOC. But his proposed claims against Defendants Brooks, Bade and Clark in
their individual capacities became moot when he was transferred to CMRC and are therefore
futile.
C.

Claims Regarding Conduct at CMRC.
Plaintiff also proposes to add his discipline at CMRC as another fact basis for his claims,

particularly his RLUIPA claim.3 To the extent Plaintiff attempts to bring this part of his claims
3

The proposed First Amendment claim incorporates all preceding paragraphs but discusses only
the discipline at Sterling. The court assumes that the claim includes discipline at CMRC.
14

against the individual Defendants, it is futile. The individual Defendants are officers at Sterling,
and Plaintiff does not allege that they had any role in the discipline or threatened discipline he
has received at CMRC. As to CDOC,
On motion and reasonable notice, the court may, on just terms, permit a party to
serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented. The court may
permit supplementation even though the original pleading is defective in stating a
claim or defense.
Fed. R. Civ. P. 15(d). In his motion, Plaintiff did not characterize his motion as one requesting
to file a supplemental pleading, but Defendants recognize Plaintiff may be raising “new alleged
violations occurring at CMRC.” Doc. 57 at 7, n.3.
Defendants argue that Plaintiff’s allegations of conduct at CMRC “would involve new
parties and would require Orwig to exhaust his available administrative remedies pursuant to the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and file a new complaint.” Id. Defendants
do not cite authority establishing that Plaintiff is required to sue the individual officers at CMRC
in addition to seeking injunctive relief from CDOC, and the court is unaware of any such
requirement.4
Defendants are correct that a prisoner cannot rely on Rule 15 to avoid the administrative
exhaustion requirement of § 1997e(a). See, e.g., Deschaine v. McLaughlin, No. 08-cv-1279PAB-MJW, 2010 WL 935662, at *4 (D. Colo. Mar. 9, 2010), recon. den’d, 2010 WL 1904534
(D. Colo. May 10, 2010). However, Plaintiff’s amended claim alleges (albeit conclusorily) that
he has “exhausted his administrative remedies under the PLRA.” Doc. 55-1 ¶ 71. Plaintiff is not
required to plead detailed facts in support of that allegation because exhaustion under the PLRA
is an affirmative defense for Defendants to plead and prove. Jones v. Bock, 549 U.S. 199, 211–
4

Defendants do not argue that further discovery would be necessary; the briefs indicate
Defendants deposed Plaintiff regarding his experience and discipline at CMRC. The court would
look with disfavor on any request to add officers from CMRC as defendants due to the delay.
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12 (2007). At this phase, the court will treat the allegation of exhaustion as true, but CDOC may
raise the issue again on a factual record.
Defendants next argue Plaintiff lacks standing regarding the CMRC portion of his claims.
Defendants note Plaintiff “requests in the proposed SAC that the COPD/AR 150-01 not be
applied in a manner that violates Orwig’s First Amendment rights or RLUIPA,” and Defendants
characterize this as a “vague, general request that his future … rights not be violated in a manner
unrelated to the injury asserted in his Complaint.” Doc. 57 at 8. Defendants argue this request
causes Plaintiff to lack standing under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62
(1992). They further argue the Prison Litigation Reform Act only allows for prospective
injunctive relief that is “narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the violation
of the Federal right.” 18 U.S.C.A § 3626(a)(1)(A). Defendants appear to assume that to have a
non-vague controversy and meet the PLRA’s limitations, Plaintiff must state in his complaint the
specific modification he seeks of the CDOC policy.
Plaintiff responds that he is making “a specific request that would effectively require Mr.
Raemisch and/or the CDOC to modify the COPD to ensure that its application does not violate
Mr. Orwig’s rights,” i.e., “to modify the COPD and/or how it is enforced, so as to avoid the
specific injuries alleged by Plaintiff.” Doc. 64 (reply) at 7, 8 n.3 (footnote omitted). Plaintiff
cites Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010)), in which the Tenth Circuit
found a prisoner’s RLUIPA claims were not moot as to the defendant director of the Oklahoma
Department of Corrections, despite his having been transferred to another facility. His claims
involved an ODOC-wide policy which the ODOC director had authority to modify if the plaintiff
proved his claims. Id. The court did not analyze the specificity (or lack thereof) in the prisoner’s

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request for injunctive relief, but the case implies that it is unnecessary to plead the specific policy
modification that the plaintiff requests. Indeed, Rule 8 just requires “a demand for the relief
sought.” Fed. R. Civ. P. 8(a)(3). At this phase, the court construes the allegations and their
reasonable inferences in the light most favorable to Plaintiff. Sanchez, 810 F.3d at 754. The
court construes Plaintiff’s request for injunctive relief as seeking modification of CDOC’s policy
in a manner that will not violate Plaintiff’s rights in connection with the facts he alleges. As
such, Defendants have not shown Plaintiff lacks standing or fails to state a claim under PLRA.
In short, the proposed claims regarding conduct at CMRC are futile as to Defendants
Brooks, Bade and Clark but are not futile as to CDOC.
III.

CONCLUSION

For the foregoing reasons, the court RECOMMENDS granting in part and denying in part
Plaintiff’s motion to amend as follows. The court recommends denying the motion as to the
proposed claims against Defendants Brooks, Bade and Clark; these claims are moot and
therefore futile. The court further recommends denying the motion as to the request for good
time credit; this part of Plaintiff’s claim is moot, and Plaintiff has withdrawn it. The court
further recommends granting the motion as to Plaintiff’s RLUIPA and First Amendment Claims
against Mr. Raemisch in his official capacity as Executive Director of CDOC.
Plaintiff shall omit the moot claims, shall drop Defendants Brooks, Bade and Clark as
defendants, and if he intends to bring a First Amendment claim on the alleged conduct at CMRC
shall clarify the claim to make that plain. Plaintiff shall then file his second amended complaint
within 7 days of Judge Brimmer overruling objections to this recommendation, or if no
objections are filed, then within 7 days of the expiration of the deadline to object.

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ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’ s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the District Court on notice of the basis for the objection will
not preserve the objection for de novo review. “ [A] party’ s objections to the magistrate judge’ s
report and 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
Property Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996).
Failure to make timely objections may bar de novo review by the District Judge of the Magistrate
Judge’ s proposed findings and recommendations and will result in a waiver of the right to
appeal from a judgment of the district court based on the proposed findings and
recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.
1999) (District Court’ s decision to review a Magistrate Judge’ s recommendation de novo
despite the lack of an objection does not preclude application of the “firm waiver rule” ); Int’l
Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by
failing to object to certain portions of the Magistrate Judge’ s order, cross-claimant had waived
its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th
Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate
Judge’ s ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm
waiver rule does not apply when the interests of justice require review).

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DATED: April 23, 2018.

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