Perreten v. Winslow et al
Filing
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ORDER denying 10 Motion to Have Case Number 16-cv-01558 Changed to Another Venue by Judge Lewis T. Babcock on 9/9/16.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01558-GPG
ROBERT PERRETEN,
Plaintiff,
v.
MARK WINSLOW, Dr.,
SUPERVISOR DONNA, Kitchen Staff,
MARTHA DUFOUR, Crew Leader,
SONYA HANKINS, R.N. and H.S.A.,
LUCIA A. AZOCAR, L.P.N.,
ROY MCMILLAN, L.P.N.,
JOANN HARRIS, R.N.,
HUNT, Deputy,
RON WAITE, Nurse Practitioner,
SUPERVISOR TARA,
DAVID WALCHER, Sheriff,
DAVID JONES, Dr., and
COUNTY OF ARAPAHOE,
Defendants.
ORDER DENYING MOTIONS TO TRANSFER VENUE
AND OVERRULING OBJECTION
Plaintiff, Robert Perreten, is detained at the Arapahoe County Detention Facility, in
Centennial, Colorado. Mr. Perreten has filed, pro se, a Prisoner Complaint asserting a
violation of his constitutional rights pursuant to 28 U.S.C. ' 1343 and 42 U.S.C. ' 1983.
On September 1, 2016, Mr. Perreten filed a “Motion to Have Case Number
16-cv-01558 Changed to Another Venue” (ECF No. 10) and a “Motion to Stop any
Decisions Made in this Case” (ECF No. 11). Plaintiff requests a change of venue based
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on his belief that the undersigned, as well as Magistrate Judges Michael E. Hegarty and
Judge Gordon P. Gallagher, are biased against him.1 The same day Mr. Perreten filed a
“Motion to Have Magistrate Judge Gallagher Recuse Himself” (ECF No. 12), in which he
alleges that an order Judge Gallagher issued in this case conflicts with the dismissal order
entered in Case No. 16-cv-01107-LTB. The motion for recusal contained in ECF No. 12
has been addressed by Magistrate Judge Gallagher in a separate order. (ECF No. 14).
In this Order, the Court construes ECF No. 12 liberally, and in part, as an objection to
Magistrate Judge Gallagher’s August 10, 2016 Order entered in this case.
I.
Mr. Perreten’s Civil Suits
Mr. Perreten has filed three civil actions in this Court that are relevant to his motion to
transfer venue and objection to the August 10, 2016 Order: Case No. 15-cv-02604-MEH,
Case No. 16-cv-01107-LTB, and the present action.
In Civil Action No. 15-cv-02604-MEH, Mr. Perreten filed a § 1983 Prisoner Complaint
against, inter alia, Ron Waite, Correct Care Solutions, Mark Winslow, and David Jones,
for violation of his Eighth Amendment right to receive adequate medical care. Following
initial review of the Prisoner Complaint under D.C.COLO.L.Civ.R 8.1(b), I dismissed the
Eighth Amendment claims against Correct Care Solutions (and any claim asserted
against Arapahoe County) because Plaintiff failed to allege facts to state an arguable
claim for relief against either Defendant. (See No. 15-cv-02604-MEH, ECF No. 12, at
3-4). The Eighth Amendment claims against Defendants Waite, Winslow and Jones
were drawn to Magistrate Judge Michael E. Hegarty and the parties consented to
1 In the Motion filed as ECF No. 11, Mr. Perreten also asked that Magistrate Judge Gallagher recuse
himself from this case. The request for recusal was addressed in a separate order, ECF No. 14.
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disposition of the case by a Magistrate Judge. (Id. at 4-5; ECF No. 20, 45, 46).
Magistrate Judge Hegarty thereafter granted the Defendants’ motion to dismiss, pursuant
to Fed. R. Civ. P. 12(b)(6). (Id., ECF No. 57). Magistrate Judge Hegarty determined
that Mr. Perreten’s factual allegations failed to state a plausible claim that Defendant
Waite, Winslow or Jones acted with deliberate indifference to Plaintiff’s serious medical
needs, in violation of the Eighth Amendment. (Id. at 11-14). The action was dismissed
and judgment entered on August 3, 2016. (Id., ECF No. 58).
In Case No. 16-cv-01107-LTB, Mr. Perreten filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 claiming that he was denied the ability to
accrue earned and good time credits after he was terminated from his prison job because
of a medical condition. The Court construed this claim liberally as asserting a
deprivation of Plaintiff’s Fourteenth Amendment due process rights. In a June 16, 2016
Order, the Court dismissed the due process claim because Mr. Perreten does not have a
constitutionally protected liberty interest in earning credits which are awarded
discretionarily under Colorado law. (See Civil Action No. 16-cv-01107-LTB, ECF No. 15,
at 4-6). See also Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006); Anderson v.
Cunningham, No. 08–1349, 319 F. Appx. 706, 710 (10th Cir. March 30, 2009)
(unpublished). In addition, the Court concluded that Mr. Perreten’s Eighth Amendment
claims challenging the denial of medical care and the violation of his medical restrictions
were not properly asserted in a habeas corpus proceeding, and dismissed those claims
without prejudice so that Plaintiff could pursue them in a separate civil rights action. (Id.
at 6-7). See also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) (habeas
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petitioner’s claim that prison officials acted with deliberate indifference to his serious
medical needs must be raised in a civil rights suit under 42 U.S.C. § 1983). In the
dismissal order, the Court also reminded Mr. Perreten that he may not assert any Eighth
Amendment claims in a new civil rights case that duplicate those asserted against
Defendants Waite, Winslow and Jones in Civil Action No. 15-cv-02604-MEH. See
McWilliams v. State of Colo., 121 F.3d 573, 575 (10th Cir.1997) (affirming dismissal of
duplicative suit as frivolous).
In the present action, filed on June 20, 2016, Mr. Perreten asserts § 1983 claims
against several Defendants, including Defendants Waite, Winslow and Jones, for denial
of adequate medical care and deliberate indifference to his medical restrictions.
On August 10, 2016, Magistrate Judge Gallagher issued an Order to Show Cause
and Directing Plaintiff to File an Amended Complaint. (ECF No. 9). In the August 10
Order, Magistrate Judge Gallagher observed that several of Mr. Perreten’s claims
appeared to be barred by the two-year limitations period applicable to § 1983 actions.
(Id. at 5). Consequently, Mr. Perreten was directed to show cause why claims based on
conduct that occurred in April 2014 should not be dismissed as time-barred. (Id.).
Magistrate Judge Gallagher further informed Plaintiff that his alleged Eighth Amendment
claims were premised on vague and conclusory allegations and failed to state an
arguable claim against each Defendant for personally participating in a deprivation of
Plaintiff’s Eighth Amendment rights. (Id. at 6-8). And, finally, Magistrate Judge
Gallagher reminded Plaintiff that he did not have a constitutionally protected liberty
interest in receiving earned and good time credits that are awarded discretionarily under
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Colorado law. (Id. at 8-9). At the conclusion of the August 10 Order, Magistrate Judge
Gallagher stated:
In sum, Mr. Perreten will be afforded an opportunity to file an Amended
Complaint that states an arguable claim for relief against each named
Defendant (based on conduct that occurred after June 20, 2014), for
deprivation of Plaintiff’s constitutional rights. Plaintiff may not assert any
claims in the Amended Complaint against Defendants Ron Waite, Mark
Winslow and David Jones that were asserted in Case No.
15-cv-02604-MEH, which was dismissed on August 3, 2016, for failure to
state a claim for relief. (See No. 15-cv-02604-MEH, at ECF Nos. 57, 58).
Further, the Amended Prisoner Complaint may not exceed 30 pages.
(Id. at 9).
II.
Request for Transfer and Allegations of Judicial Bias
Mr. Perreten requests that this action be transferred to a different venue because
he believed that the undersigned, as well as Magistrate Judges Hegarty and Gallagher,
are biased against him. In a separate order, Magistrate Judge Gallagher has denied
Plaintiff’s motions for recusal based on judicial bias. (See ECF No. 14).
Under the general venue statute, 28 U.S.C. § 1391(b), venue is proper in a judicial
district where the defendants reside, where a substantial part of the events or omissions
giving rise to the claims occurred, or, if there is no district in which the action may
otherwise be brought, in a district where the defendants are subject to personal
jurisdiction. The change of venue provision, at 28 U.S.C. § 1404(a), states, inter alia,
that the Court may, in the interest of justice, transfer an action to any other district court
where the action might have been brought, or to any district to which all parties have
consented. Under 28 U.S.C. § 1404(b), a civil action may be transferred from the
division in which it is pending to any other division in the same district upon motion,
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stipulation or consent of the parties.
In this case, the Defendants reside in Colorado and the events or omissions giving
rise to Plaintiff’s claims occurred in Colorado. Mr. Perreten fails to show that venue is
proper in any jurisdiction other than the District of Colorado. In addition, the Defendants
have not yet been served in this action and have not consented to transfer venue to
another district or to another division within the District of Colorado. Consequently, the
request for a change of venue is not authorized by federal statute.
Furthermore, the sole basis for Mr. Perreten’s request to transfer venue is his
belief that three judges in the District of Colorado are biased against him due to adverse
rulings entered in Case Nos. 15-cv-02604-MEH and 16-cv-01107-LTB, and an order to
show cause and to amend issued in the present case. However, “judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United
States, 510 U.S. 540, 555 (1994); see also Lammle v. Ball Aerospace & Techs. Corp.,
589 F. App'x 846, 849 (10th Cir. 2014) (“Unfavorable judicial rulings . . . are insufficient
grounds for recusal.”).
The motions to transfer venue will be denied.
III.
Objection to Order to Show Cause and to File Amended Complaint
The Court construes Mr. Perreten’s pro se Motion (ECF No. 12) liberally, and in
part, as an objection to Magistrate Judge Gallagher’s August 10, 2016 Order Directing
Plaintiff to Show Cause and to File an Amended Complaint. (ECF No. 9).
Pursuant to 28 U.S.C. ' 636(b)(1)(A) a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that the
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magistrate judge=s order is clearly erroneous or contrary to law. See also Fed. R. Civ. P.
72(a). Upon review of the file, the Court finds that Magistrate Judge Gallagher=s August
10 Order is not clearly erroneous or contrary to law.
Mr. Perreten has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. ' 1915. (ECF No. 8). Pursuant to the local rules of this court and federal statute,
the Court must dismiss any asserted claims that are frivolous. See 28 U.S.C.
' 1915(e)(2)(B)(i); D.C.COLO.L.CivR 8.1(b). A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts
that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28
(1989). Accordingly, Magistrate Judge Gallagher has properly reviewed the Prisoner
Complaint to determine whether it is frivolous, and has afforded Mr. Perreten an
opportunity to show cause why his claims based on conduct occurring two years prior to
the initiation of this action should not be dismissed as time-barred, and to amend his
pleading to assert an arguable Eighth Amendment claim against each named Defendant.
Magistrate Judge Gallagher’s warnings to Plaintiff in the August 10 Order that he
may not pursue a Fourteenth Amendment due process claim based on a denial of the
opportunity to accrue earned and good time credits, or assert claims in the Amended
Prisoner Complaint against Defendants Waite, Winslow and Jones that were raised in his
prior case (Case No. 15-cv-02604-MEH), are consistent with the dismissal order entered
in 16-cv-01107-LTB.
And, although Mr. Perreten was informed in the dismissal order entered in No.
16-cv-01107 that he was free to file a civil rights action to assert his Eighth Amendment
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claims, the Court did not pass on the merits of those claims or address the issue of the
applicable statute of limitations. Generally, a pro se litigant is responsible for
determining whether his constitutional claims are timely before initiating a § 1983 action.
See McCoy v. Damron, No. 01-6030, 9 F. App’x 994, (10th Cir. June 7, 2001)
(unpublished) ((recognizing in a § 1983 action that “it is well established that ‘ignorance of
the law, even for an incarcerated pro se petitioner, generally does not excuse prompt
filing.’”) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) (internal citation
omitted); United States v. Kubrick, 444 U.S. 111, 123 (1979) (“A plaintiff . . . , armed with
the facts about the harm done to him, can protect himself by seeking advice.”).
Mr. Perreten’s objection to the August 10, 2016 Order will be overruled.
Accordingly, it is
ORDERED that the “Motion to Have Case Number 16-cv-01558 Changed to
Another Venue” (ECF No. 10) and “Motion to Stop any Decisions Made in this Case”
(ECF No. 11) (to the extent the motion requests a change in venue) are DENIED. It is
FURTHER ORDERED that the “Motion to Have Magistrate Judge Gallagher
Recuse Himself” (ECF No. 12), which the Court has construed liberally and in part as an
objection to Magistrate Judge Gallagher’s August 10, 2016 Order, pursuant to 28 U.S.C.
' 636(b)(1)(A), is OVERRULED.
DATED September 9, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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