Griffin Jr. v. Hickenlooper et al

Filing 51

OPINION and ORDER by Judge Marcia S. Krieger on 9/18/2019. ORDERED that Plaintiff Henry Griffin's Motion Objecting to #23 and Motion Showing Cause Why ChiefJudge Marcia S. Krieger Should Vacate and Reverse #23 in Part and Reinstate all D efendants and Plaintiff's Claims One, Two and Four 27 is DENIED. Defendants Virginia Gorman, Amy Morrison, Bryan Coleman, and Dave Lisac's Motion to Dismiss Plaintiff's Second Amended Prisoner Complaint 33 is GRANTED in part and DENIED in part. Plaintiff Henry Griffin's Motion to Strike the Buena Vista Correctional Facility Officials Reply 38 is DENIED. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 17-cv-03019-MSK-KMT
HENRY LEE GRIFFIN JR.,
Plaintiff,
v.
VIRGINIA GORMAN,
AMY MORRISON,
BRYAN COLEMAN, and
DAVE LISAC,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTION TO ALTER OR AMEND
INTERLOCUTORY ORDER; GRANTING IN PART MOTION TO DISMISS;
AND DENYING MOTION TO STRIKE
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to: (1) Plaintiff Henry Griffin’s
Motion Objecting to #23 and Motion Showing Cause Why Chief Judge Marcia S. Krieger
Should Vacate and Reverse #23 in Part and Reinstate all Defendants and Plaintiff’s Claims One,
Two and Four (#27), to which no response was filed; (2) Defendants Virginia Gorman, Amy
Morrison, Bryan Coleman, and Dave Lisac’s (collectively, “the Buena Vista Correctional
Facility Officials”) Motion to Dismiss Plaintiff’s Second Amended Prisoner Complaint (#33),
Mr. Griffin’s Response (#36), the Buena Vista Correctional Facility Officials’ Reply (#37); and
(3) Mr. Griffin’s Motion to Strike the Buena Vista Correctional Facility Officials’ Reply (#38)
and the Buena Vista Correctional Facility Officials’ Response (#40).

1

I. JURISDICTION
The Court exercises jurisdiction under 28 U.S.C. § 1331.
II. PROCEDURAL HISTORY
At all relevant times, Mr. Griffin is in the custody of the Colorado Department of
Corrections (“CDOC”) and is an inmate housed at the Buena Vista Correctional Facility in
Buena Vista, Colorado (“the Prison”). (#22). On December 14, 2017, Mr. Griffin filed his
initial Prisoner Complaint (#1) asserting that certain laws and policies are unconstitutional and
violate his First, Eighth, and Fourteenth Amendment rights: specifically, the Prison Labor Law,
Colo. Rev. Stat. § 17-20-117; the Prison Labor Policies, Administrative Regulations (“AR”)
450-07 and 850-03; the Corrections Officer Staffing Law, Colo. Rev. Stat. § 17-1-115.8; and the
Limited Negro Policy, AR 1450-05. (#1). Mr. Griffin also asserts a claim against (former)
Defendants Richard Raemisch and Union Supply Direct for a violation of his Fourteenth
Amendment rights to due process and equal protection to be free from false advertising and
fraud. (#1).
Following the initial review of the Prisoner Complaint pursuant to D.C.COLO.L.Civ.R
8.1(b), on February 17, 2018, the Magistrate Judge found Mr. Griffin’s initial Complaint: (1)
failed to comply with the pleading requirements of Rule 8 and Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) and (2) failed to assert personal participation by named defendants. Mr. Griffin was
directed to file an amended complaint addressing these deficiencies. (#10).
On May 17, 2018, Mr. Griffin filed his Amended Complaint alleging five claims: (1) that
Colo. Rev. Stat. § 17-20-117, is unconstitutional because it violates Mr. Griffin’s First and Tenth
Amendment rights; (2) that inmate labor policies violate Mr. Griffin’s First and Tenth
Amendment rights; (3) that the Inmate Package Program violated the Federal Wire Fraud Act
2

and Mr. Griffin’s First Amendment right to be free from fraud by false advertising; (4) that nonnude photos of women were taken from Mr. Griffin in violated of his First and Fourth
Amendment rights1; and (5) that Mr. Griffin declined counseling and treatment and is being
retaliated against in violation of his First Amendment rights. (#18). Pursuant to the Court’s
initial review process, the Magistrate Judge again reviewed the Amended Complaint, found
deficiencies, and afforded Mr. Griffin “one last attempt to submit a Complaint” in compliance
with court orders. (#19).
On August 27, 2018, Mr. Griffin filed his Second Amended Complaint, which is the
operative complaint for purposes of this Opinion and Order, alleging four claims: (1) that Colo.
Rev. Stat. § 17-20-117 is unconstitutional because it violates Mr. Griffin’s First Amendment
rights; (2) that AR 350-02 and AR 450-07 are unconstitutional because they violate Mr. Griffin’s
First Amendment rights; (3) that non-nude photos, deemed to be offensive by Prison staff, were
taken from Mr. Griffin in violation of his First and Fourteenth Amendment rights; and (4) that
AR 300-26 is unconstitutional because it violates Mr. Griffin’s First and Fourteenth Amendment
rights. (#22). Following initial review of this iteration of the complaint, a District Judge issued
an interlocutory Order to Draw in Part and Dismiss in Part, which: dismissed Claims One and
Four without prejudice for failure to comply with the Magistrate Judge’s February 17, 2018
Order; dismissed Claim Two with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) as legally
frivolous; and directed that Claim Three asserted against the Buena Vista Correctional Facility
Officials be drawn to a presiding judge. (#23).

1

This is the first time Mr. Griffin asserted facts or a claim related to the seizure of his
photos by Prison staff; the original Complaint contained no such claim.
3

III. FACTS
The Court provides a brief summary of the pertinent well pled allegations in the Second
Amended Complaint (#22) and elaborates as necessary in its analysis. Mr. Griffin, an inmate in
the CDOC, ordered numerous photos from a company called “Flix 4 You.” (#22 at 11). He
alleges that on five separate dates between April 11, 2016 and September 30, 2016, 168 photos
were impounded, seized, and/or destroyed by Prison mailroom staff—specifically Ms. Gorman,
Ms. Morrison, Mr. Coleman, and Mr. Lisac—ostensibly because the photos violated the Prison’s
AR 300-262, which prohibits receipt by inmates of material featuring nudity or sexually explicit
conduct.3 (#33-1). Based on these allegations and following the Court’s initial review process
pursuant to D.C.COLO.L.Civ.R. 8.1(b), Mr. Griffin’s sole remaining claim alleges a violation of
his First and Fourteenth Amendment rights against the Buena Vista Correctional Facility
Officials in both their official and individual capacities for “taking and destroying (168 non-nude
photos) they deemed offensive.” (#22 at 11).
Mr. Griffin has objected to the District Judge’s interlocutory Order to Draw in Part and to
Dismiss in Part and requests that all of his claims asserted in the Second Amended Complaint be
“reinstated” along with all of the dismissed-defendants. (#27 at 2). The Buena Vista
Correctional Facility Officials have moved to dismiss the claim asserted against them under Rule

2

The version of AR 300-26 in place during the time of all relevant events alleged in Mr.
Griffin’s Second Amended Complaint is attached as an exhibit to the Buena Vista Correctional
Facility Officials’ motion to dismiss. (#33-1). The Court will consider the AR as it is both
referenced on page 11 of the operative Second Amended Complaint and is central to Mr.
Griffin’s sole, remaining claim. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001);
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v.
Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

3

Mr. Griffin contends the photos in question did not feature nudity.
4

12(b)(6) on grounds it is untimely. In the alternative, the Buena Vista Correctional Facility
Officials have moved to dismiss the Fourteenth Amendment portion of the claim against them in
their individual capacities under Federal Rule of Civil Procedure 12(b)(6), asserting they are
entitled to qualified immunity. They further argue that any request for monetary damages or
declaratory relief against them in their official capacities is barred by the Eleventh Amendment.4
IV. ANALYSIS
A. Standard of Review
Mr. Griffin initiated this case without the assistance of an attorney. Accordingly, the
Court reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Such
liberal construction is intended merely to overlook technical formatting errors and other defects
in Mr. Griffin’s filings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Indeed,
although he is not represented by counsel, Mr. Griffin must still comply with procedural rules
and satisfy substantive law to be entitled to relief. See Murray v. City of Tahlequah, 312 F.3d
1196, 1199 n.3 (10th Cir. 2008).
B. Mr. Griffin’s Objection to Order to Draw in Part and to Dismiss in Part
Mr. Griffin objects to the District Judge’s October 3, 2018 interlocutory order dismissing
all of his claims except Claim Three and requests that all of his dismissed claims be reinstated
against all original defendants. (#27). Mr. Griffin contends that his objections are timely and

4

In his Response to the Buena Vista Correctional Facility Officials’ motion to dismiss, Mr.
Griffin clarifies that he is not alleging a Fourteenth Amendment equal protection claim against
the Buena Vista Correctional Facility Officials in his Second Amended Complaint. (#36 at 5-6).
Mr. Griffin further states that he is “not requesting any monetary damages” from the Buena Vista
Correctional Facility Officials in their official capacities. (#36 at 7). Thus, the Court hereby
dismisses Claim Three insofar as it: (1) asserts a Fourteenth Amendment equal protection claim
against the Buena Vista Correctional Facility Officials and (2) asserts a claim for monetary
damages against them in their official capacities.
5

that the Court “plainly erred” in dismissing Claims One, Two, and Four. (#27). Mr. Griffin’s
pleading indicates that he timely objected to the District Judge’s October 3, 2018 order.
However, because this order was entered by a district judge and not a magistrate judge, the Court
construes Mr. Griffin’s request as a motion to alter or amend an interlocutory order rather than
an objection to a magistrate judge’s order pursuant to 28 U.S.C. § 636(b)(1)(A).
Prior to the entry of a final judgment, a district court has discretion to revise interlocutory
orders. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (stating that “every order
short of a final decree is subject to reopening at the discretion of the district judge.”); Wagoner v.
Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991); Nat. Business Brokers, Ltd. v. Jim
Williamson Productions, Inc., 115 F. Supp. 2d 1250, 1255 (D. Colo. 2000). Like the order
issued in this case, any order “which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties … is subject to revision at any time before the entry of
judgment.” Raytheon Constructors, Inc. v. ASARCO Inc., 368 F.3d 1214, 1217 (10th Cir. 2003)
(citing Fed. R. Civ. P. 54(b)). Also, courts have generally permitted a modification of the law of
the case when substantially different, new evidence has been introduced, subsequent,
contradictory controlling authority exists, or the original order is clearly erroneous.” Major v.
Benton, 647 F.2d 110, 112 (10th Cir. 1981). “Thus, a court can alter its interlocutory order even
where the more stringent requirements applicable to a motion to alter or amend a final judgment
under Rule 59(e) or a motion for relief from judgment brought pursuant to Rule 60(b) are not
satisfied.” Nat. Business Brokers, 115 F. Supp. 2d at 1256. “Notwithstanding the court’s broad
discretion to alter its interlocutory orders, the motion to reconsider is not at the disposal of
parties who want to rehash old arguments.” Id. (internal quotation marks and citation omitted).
“Rather, as a practical matter, to succeed in a motion to reconsider, a party must set forth facts or
6

law of a strongly convincing nature to induce the court to reverse its prior decision.” Id. (internal
quotation marks and citation omitted).
Pursuant to the Court’s local rules and federal statute, here, the Court must dismiss any
asserted claim that is 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 is
meritless, does not exist, or asserts facts that could not support an arguable claim. See Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Further, pursuant to Rule 41(b), a claim may be
dismissed “[i]f the plaintiff fails to prosecute or [] comply with … a court order ….”
Here, pursuant to the D.C.COLO.L.CivR 8.1(b) review, the Magistrate Judge afforded
Mr. Griffin two opportunities to file a complaint that complied with governing law and rules.
Then, the District Judge properly reviewed Mr. Griffin’s Second Amended Complaint to
determine whether any claims were legally frivolous. The District Judge issued a detailed
“Order to Draw in Part and to Dismiss in Part” dismissing Claims One and Two as legally
frivolous and Claim Four for failure to comply with a Court order and for failure to prosecute
pursuant to Fed. R. Civ. P. 41(b). (#23).
As to Claim One, Mr. Griffin asserts that Defendant (former) Governor John
Hickenlooper is denying his right to free exercise by executing Colo. Rev. Stat. § 17-20-117
against him. Section 17-20-117 provides that “[e]very able-bodied inmate shall be put to and
kept at the work most suitable to such inmate’s capacity and most advantageous to the people of
this state.” Id. The District Judge found this claim to be baseless because (1) absolute immunity
applies to all actions related to legislative activity; (2) nothing in § 17-20-117 requires inmates to
work even if their religious beliefs may preclude them from doing so; and (3) there are no
allegations that Gov. Hickenlooper personally participated in the alleged constitutional
7

deprivation. (#23 at 5-6). As to Claim Two, Mr. Griffin asserts Defendants Richard Raemisch
and Dennis Dunsmoor denied his right to free exercise of religion by executing AR 850-03 and
AR 450-07 against him. The District Judge determined Mr. Griffin failed to assert what specific
sections of the regulations violated his rights and that nothing in the regulations requires Mr.
Griffin to “worship the DOC or interferes with his ability to be obedient or adhere to his
religious beliefs.” (#23 at 7). As to Claim Four, Mr. Griffin asserts that various defendants
violated his First and Fourteenth Amendment rights by compelling him to participate in therapy
and treatment. After a careful review, the District Judge found Mr. Griffin failed to comply with
the Magistrate Judge’s previous order and assert personal participation by properly named
defendants. (#23 at 8). Thus, Claim Four was dismissed pursuant to Rule 41(b).
In his pleading, Mr. Griffin sets forth general legal principles and makes broad, sweeping
assertions that his constitutional rights were violated. However, he never addresses any of the
particular deficiencies outlined in the District Judge’s order nor sets forth specific allegations
that would show personal participation by the defendants. Simply put, Mr. Griffin fails to
proffer new evidence or legal authority to support his contentions nor does he address any of the
circumstances warranting relief. He merely sets forth the same vague, conclusory allegations
that were previously rejected by this Court multiple times. Thus, the Court finds the District
Judge’s order (# 23) is not clearly erroneous and denies Mr. Griffin’s motion to alter and/or
amend interlocutory order.
C. The Buena Vista Correctional Facility Officials’ Motion to Dismiss
The Buena Vista Correctional Facility Officials move for dismissal on the following two
grounds: (1) Mr. Griffin’s remaining claim asserted against them in the Second Amended
Complaint—Claim Three—was filed after the period specified in the applicable statute of
8

limitation had expired ( Rule 12(b)(6)) and (2) any claim for declaratory relief asserted against
them in their official capacities is barred by the Eleventh Amendment (Rule 12(b)(1)).
1.

Standard of Review

Rule 12(b)(1)
Challenges to subject-matter jurisdiction under Rule 12(b)(1) generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citing Holt v. United States, 46 F.3d
1000, 1002–03 (10th Cir. 1995)). Here, the Defendants assert Eleventh Amendment immunity,
which constitutes a facial attack on the allegations of subject matter jurisdiction contained in the
Second Amended Complaint. See Ruiz, 299 F.3d at 1180. Accordingly, the Court “must accept
the allegations in the complaint as true.” Holt, 46 F.3d at 1002. However, “[t]he burden of
establishing subject matter jurisdiction is on the party asserting jurisdiction.” Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Rule 12(b)(6)
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-pleaded allegations in the Complaint as true and view those allegations in the light most
favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d
1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the
Complaint, any documents attached thereto, and any external documents that are referenced in
the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter
9

Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).
A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first
discards those averments in the Complaint that are merely legal conclusions or “threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at
678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and
ascertains whether those facts (coupled, of course, with the law establishing the requisite
elements of the claim) support a claim that is “plausible” or whether the claim being asserted is
merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the
level of “plausibility” varies from context to context, but generally, allegations that are “so
general that they encompass a wide swath of conduct, much of it innocent,” will not be
sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
2.

Statute of Limitations

The Buena Vista Correctional Facility Officials first contend that Mr. Griffin became
aware of the facts giving rise to his claim as early as April 2016, the date the first set of photos
were confiscated, and that he did not commence suit within the applicable two-year statute of
limitations. More specifically, they argue that the five instances where they are alleged to have
seized or confiscated Mr. Griffin’s photos should be treated as one challenged decision and not
five discrete decisions warranting “separate statute of limitations calculations.” (#33 at 8). In
response, Mr. Griffin argues that no part of this action is time-barred because: (1) the continuing
violation doctrine is applicable; (2) he is entitled to equitable tolling; and (3) AR 300-26 was
revised during the pendency of this case. (#36).
Bivens claims are governed by the appropriate state-law limitation period for personal
10

injuries; in Colorado, that period is two years. See Appleby-El v. Catron, 84 F.App’x 9, 10 (10th
Cir. 2003) (citing Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d
963, 968 (10th Cir. 1994) and Colo. Rev. Stat. § 13–80–102). Thus, to be timely, Mr. Griffin
must have commenced this action within two years of the accrual of his claim. A claim accrues,
and the statute of limitations begins to run, on the date when the plaintiff knows or should have
known of the existence and cause of the injury upon which his claim is based. Van Tu v. Koster,
364 F.3d 1196, 1199 (10th Cir. 2004). Since the injury in a § 1983 case is the violation of a
constitutional right, to establish the date of accrual in such a case, the court is to “to identify the
constitutional violation and locate it in time.” Smith v. City of Enid, 149 F.3d 1151, 1157 (10th
Cir. 1998). It is Mr. Griffin’s burden to show that his claims are timely asserted. See Samples–
Ehrlich v. Simon, 876 P.2d 108, 110 (Colo. App. 1994).
Turning first to the question of when Mr. Griffin commenced this action, the Court notes
that while he filed his original Complaint on December 14, 2017, it did not contain any facts or a
claim related to the seizure of the “Flix 4 You” photos. It was not until May 17, 2018, the date
Mr. Griffin when filed his Amended Complaint, that he asserted such a claim (Claim Four).
Then, on August 27, 2018, Mr. Griffin Filed his Second Amended Complaint, which also pled a
similar “photo seizure” claim (Claim Three).
Rule 15(c)(1) governs the relation back of amendments. If the applicable statute of
limitations has run, an amended complaint may relate back to the date of the timely filed original
complaint when “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 ….”
Rule 15(c)(1)(c). In general, “amendments will relate back if they amplify the facts previously
alleged, correct a technical defect in the prior complaint, assert a new theory of relief, or add
11

another claim arising out of the same facts.” Benton v. Bd. of Cnty. Comm’rs, No. 06–cv–
01406–PSF, 2007 WL 4105175, at *3 (D. Colo. Nov. 14, 2007), aff’d, 303 F.App’x 625 (10th
Cir. 2008). However, “amendments will generally not relate back if they interject entirely
different facts, conduct, transactions or occurrences.” Id. As long as there is a “factual nexus”
between the original and amended complaints, the amended claim “is liberally construed to relate
back to the original complaint if the defendant had notice of the claim and will not be prejudiced
by the amendment.” Benton, 2007 WL 4105175, at *3.
Here, the Second Amended Complaint fairly relates back to the Amended Complaint.
However, the “photo seizure claim” set forth in the Amended Complaint is wholly unrelated to
any other claim asserted in the original Complaint. It does not amplify the facts previously
alleged by Mr. Griffin, correct a technical defect in his prior Complaint, assert a new legal theory
of relief based on previously-asserted facts, or add another claim arising out of these facts. Thus,
given that the Amended Complaint does not relate back to the original Complaint, the Court
finds Mr. Griffin filed this action on May 17, 2018.
The Court now turns to the question of when Mr. Griffin’s claims accrued. Mr. Griffin
alleges constitutional violations against the Buena Vista Correctional Facility Officials in both
their official and individual capacities for the confiscation of 168 photos by Prison staff on five
separate dates: April 11, 2016, April 18, 2016, June 23, 2016, July 11, 2016, and September 30,
2016. (#22 at 11). Although the Officials urge the Court to treat the five seizures as “one
challenged decision” made on April 11, 2016, the Court is not persuaded to do so. Each seizure
was a discrete act by one or more Buena Vista Correctional Facility Officials applying AR 30026 to particular photos received on particular date. In this sense, each seizure constituted a
separate decision and action and thus a separately alleged constitutional violation; each alleged
12

violation thus has a distinct accrual date for statute of limitations purposes. See Davidson v.
America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003); Fogle v. Slack, 419 F.App’x 860,
864 (10th Cir. 2011). The limitation on filing for relief would be two years from each date Mr.
Griffin became aware that he would not be receiving his photos from “Flix 4 You.” Thus, for
the April 11, 2016 photo seizure his suit would have had to have been filed no later than April
11, 2018; for the April 18, 2016 photo seizure a suit filed no later than April 18, 2018; for the
June 23, 2016 photo seizure a suit filed no later than June 23, 2018; for the July 11, 2016 photo
seizure a suit filed no later than July 11, 2018; and for the September 30, 2016 photo seizure a
suit filed no later than September 30, 2018. See Onyx Properties LLC v. Bd. of Cnty. Comm’rs
of Elbert County, 868 F. Supp. 2d 1164, 1168 (D. Colo. 2012) (calculating date of accrual as
September 20, 2006 and the date the two-year statute of limitations period expired as September
20, 2008). Given that Mr. Griffin commenced suit on May 17, 2018, a straight forward
calculation of the timely filed claims arise from seizures of photos on June 23, 2016, July 11,
2016, and September 30, 2016. Thus, unless there is a basis to apply the continuing violation
doctrine or toll the statute of limitations, Mr. Griffin’s claims, based on the seizures of photos
occurring on April 11, 2016 and April 18, 2016, are timebarred.
a.

Applicability of Continuing Violation Doctrine

Mr. Griffin argues that the continuing violation doctrine saves any untimely photoconfiscations from being timebarred. The continuing violation doctrine was developed in the
Title VII employment law context and allows a plaintiff to challenge incidents that occurred
outside the statutory time limitations if such incidents are “sufficiently related and thereby
constitute a continuing pattern of discrimination.” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th
Cir. 1994). However, the Tenth Circuit has never applied the doctrine to § 1983 claims.
13

Vasquez v. Davis, 882 F.3d 1270 (10th Cir. 2018); Mercer-Smith v. New Mexico, 416 F.App’x
704, 712 (10th Cir. 2011); Canfield v. Douglas Cnty., 619 F. App’x 774, 778 (10th Cir. 2015).
Thus, given the lack of support for applying the doctrine in cases analogous to the one at bar, the
Court declines to apply the continuing violation doctrine to Mr. Griffin’s § 1983 claims.5
b.

Applicability of Equitable Tolling

Here, the Court applies Colorado’s equitable tolling rules. Hardin v. Straub, 490 U.S.
536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Fratus v. DeLand, 49 F.3d 673, 675 (10th
Cir. 1995) (applying state tolling rules in § 1983 cases). In Colorado, equitable tolling of a
statute of limitations is rarely invoked “to prevent a defendant from asserting a statute of
limitations defense where the defendant’s wrongful conduct prevented the plaintiff from
asserting a timely claim, or where extraordinary circumstances rendered the filing [of] a claim
within the statutory period impossible.” Gognat v. Ellsworth, 224 P.3d 1039, 1049 (Colo. App.
2009); Noel v. Hoover, 12 P.3d 328, 330 (Colo. App. 2000); Rossi v. Osage Highland Dev., LLC,
291 P.3d 319, 321-22 (Colo. App. 2009) (stating that equitable tolling is limited to situations
involving wrongful conduct by a defendant or truly extraordinary circumstances preventing

5

“The continuing violation doctrine is premised on the equitable notion that the statute of
limitations should not begin to run until a reasonable person would be aware that his or her rights
have been violated.” Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1415, n. 6 (10th Cir.
1993). Assuming the continuing violation doctrine could be applied to § 1983 claims, it would
permit a plaintiff to challenge incidents that occurred outside of the statute of limitations if the
incidents “are sufficiently related and thereby constitute a continuing pattern” of wrongful
conduct. Hunt, 17 F.3d at 1266. However, the doctrine would not allow a plaintiff to challenge
discrete acts of wrongful conduct which occurred outside of the statute of limitations. See
Robinson v. Maruffi, 895 F.2d 649, 655 (10th Cir. 1990). Here, Mr. Griffin pleads separate
instances where Prison staff seized a particular set of photos deemed violative of the regulation.
The Court declines to “lump” all of the seizures together and overlook the discrete nature of each
decision. Thus, even if the continuing violation doctrine could apply to a § 1983 claim, it would
not apply to this lawsuit.
14

timely filing of suit). By its nature, equitable tolling is case specific, disfavored by Colorado
courts, and a plaintiff must present specific circumstances unique to his or her case. See Olson v.
State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 858 (Colo. App. 2007); see Roberts v. Barreras,
484 F.3d 1236, 1241 (10th Cir. 2007).
Here, Mr. Griffin generally argues that equitable tolling should apply because: (1) he
pursued his rights diligently; (2) he filed multiple requests for extensions of time due to Prison
lockdowns; and (3) he was ordered to amend his Complaint two times. (#36). However, Mr.
Griffin fails to put forth sufficient information detailing his diligent efforts to file this suit until
May 17, 2018 and generally fails to make any arguments that extraordinary circumstances exist
in his case such that the statute of limitations should be tolled. To be fair, Mr. Griffin does assert
that Prison lockdowns “during filing periods” prevented him from timely filing this matter. (#36
at 2). However, Mr. Griffin includes no details as to the frequency or length of the lockdowns
and how this circumstance might excuse his tardiness. Indeed, the Tenth Circuit has repeatedly
determined that prison lockdowns do not justify equitable tolling. See Dill v. Workman, 288
F.App’x 454, 457 (10th Cir. 2008) (finding that a prison lockdown does not qualify as
extraordinary for purposes of equitable tolling); Rosales Sandoval v. Jones, No. 11-5022, 2011
WL 2321451, at *2 (10th Cir. June 14, 2011) (finding a vague reference to a lockdown
insufficient to warrant equitable tolling); Parker v. Jones, 260 F.App’x 81, 85 (10th Cir. 2008)
(finding vague allegations about two lengthy lockdowns did not justify equitable tolling).
Further, Mr. Griffin fails to proffer any evidence that the Buena Vista Correctional Facility
Officials wrongfully impeded him from asserting his claims until May 17, 2018 or that
extraordinary circumstances exist. Because Mr. Griffin has failed to meet his burden, the Court
finds equitable tolling is not justified in this case.
15

c.

Applicability of Revised AR 300-26

Finally, Mr. Griffin argues that a revision to AR 300-26 somehow excuses any
untimeliness. The Court disagrees. Mr. Griffin alleges violations of his constitutional rights
based on the application of AR 300-26 in effect from April 11, 2016 to September 30, 2016.
Thus, any updates to AR 300-26 made after the relevant time period alleged in the Second
Amended Complaint do not apply here.
Therefore, Mr. Griffin may proceed with Claim Three, based on the seizures of photos
occurring on June 23, 2016, July 11, 2016, and September 30, 2016. However, the portion of
Claim Three, based on the seizures of photos occurring in April 2016, is timebarred.
3.

Official Capacity Claims for Declaratory Relief

The Buena Vista Correctional Facility Officials also move to dismiss any claims brought
against them in their official capacities for declaratory relief under the Eleventh Amendment. A
motion to dismiss based on Eleventh Amendment immunity is treated as a motion to dismiss for
lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Meyers v. Colo. Dep't of
Human Servs., 62 F. App’x 831, 832 (10th Cir. 2003). The Eleventh Amendment to the U.S.
Constitution provides that the federal courts may not hear suits against state entities, absent a
waiver of the state’s immunity. Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 158
L.Ed.2d 820 (2004). Because claims against state officials in their official capacities are
essentially actions against a state itself, the Eleventh Amendment bars those suits as well. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989);
Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Whether the
Eleventh Amendment precludes the court from exercising jurisdiction over an action depends, in
part, on the type of relief sought. While the Eleventh Amendment bars federal court actions for
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damages, Kentucky, 473 U.S. at 169, it does not generally bar suits seeking declaratory or
prospective injunctive relief to halt an ongoing violation of federal law. See Ruiz v. McDonnell,
299 F.3d 1173 (10th Cir. 2002) (citing Seminole Tribe v. Florida, 517 U.S. 44, 73, 116 S.Ct.
1114, 134 L.Ed.2d 252 (1996) and Ex parte Young, 209 U.S. 123, 159–60, 28 S.Ct. 441, 52
L.Ed. 714 (1908)).
In the Second Amended Complaint, as to Claim Three, Mr. Griffin alleges a deprivation
of his constitutional rights against the Buena Vista Correctional Facility Officials for seizing
photos deemed to be violative of the AR in effect at the time. (#22 at 11). Based on this alleged
constitutional violation, Mr. Griffin requests declaratory and injunctive relief “declaring Virginia
Gorman; Amy Morrison; Bryan Coleman and Dave Lisac denied, injured, and violated Henry
Lee Griffin, Jr.[’s] #67773 First and Fourteenth Amendment Rights ….”6 (#22 at 15). This is
clearly a request to redress a past action and not a claim for prospective injunctive relief, seeking
to compel the Prison to discontinue an ongoing unlawful practice. Thus, Mr. Griffin’s request
for declaratory and injunctive relief asserted against the Buena Vista Correctional Facility
Officials in their official capacities is precluded by the Eleventh Amendment. These official
capacity claims are dismissed.
4.

Mr. Griffin’s Motion to Strike the Reply

Mr. Griffin moves to strike the Buena Vista Correctional Facility Officials’ Reply in
support of their motion to dismiss on two grounds: (1) that the Reply contains a new argument

6

In his Response, Mr. Griffin withdrew his additional request for monetary damages from each
named defendant in their official capacities.
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regarding the Eleventh Amendment not raised in the original motion to dismiss and (2) that the
Reply was untimely filed.7 (#38).
After a careful review, the Court disagrees with both contentions. First, in the motion to
dismiss, the Buena Vista Correctional Facility Officials argue they “are immune from claims for
monetary and declaratory relief under the Eleventh Amendment.” (#33 at 15). Second, the
Reply was timely filed on January 10, 2019—14 days after Mr. Griffin served his Response by
mail on December 27, 2018 (#36 at 21). See D.C.COLO.LCivR 7.1(d) (“The moving party may
file a reply within 14 days after the date of service of the response, or such lesser or greater time
as the court may allow.”). Further, given that “[m]otions to strike are a severe remedy, and as
such are generally disfavored,” Sender v. Mann, 423 F. Supp. 2d 1155, 1163 (D. Colo. 2006), the
Court denies the motion to strike the Reply.
IV. CONCLUSION
For the foregoing reasons,
1. Plaintiff Henry Griffin’s Motion Objecting to #23 and Motion Showing Cause Why Chief
Judge Marcia S. Krieger Should Vacate and Reverse #23 in Part and Reinstate all
Defendants and Plaintiff’s Claims One, Two and Four (#27) is DENIED;
2. The Fourteenth Amendment equal protection claims by Plaintiff Henry Griffin against
Defendants Virginia Gorman, Amy Morrison, Bryan Coleman, and Dave Lisac, in both
their individual and official capacities, are deemed voluntarily dismissed;
3. The request for monetary damages against Defendants Virginia Gorman, Amy Morrison,
Bryan Coleman, and Dave Lisac, in their official capacities, is deemed voluntarily

7

Mr. Griffin also re-raises an argument as to the revision of AR 300-26, which the Court
already rejected in this Opinion as inapplicable.
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dismissed;
4. Defendants Virginia Gorman, Amy Morrison, Bryan Coleman, and Dave Lisac’s Motion
to Dismiss Plaintiff’s Second Amended Prisoner Complaint (#33) is GRANTED in part
and DENIED in part, as follows:
a. Defendants’ motion is GRANTED insofar as Mr. Griffin’s claims, based on the
seizures of photos occurring on April 11, 2016 and April 18, 2016, are timebarred.
Such claims are hereby dismissed with prejudice.
b.

Defendants’ motion is GRANTED insofar as Mr. Griffin’s claims for declaratory
and injunctive relief asserted against the Defendants in their official capacities are
barred by the Eleventh Amendment. These official capacity claims for declaratory
relief are dismissed without prejudice for lack of subject matter jurisdiction.

c. Defendants’ motion is DENIED in all other respects.
5.

Plaintiff Henry Griffin’s Motion to Strike the Buena Vista Correctional Facility Officials’
Reply (#38) is DENIED.

6.

In light of the above rulings, the claims that will proceed in this action are: Claim Three Mr. Griffin’s claim for a First Amendment deprivation, based on the seizures of photos
occurring on June 23, 2016, July 11, 2016, and September 30, 2016, against Defendants
Virginia Gorman, Amy Morrison, Bryan Coleman, and Dave Lisac in their individual and
official capacities.

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Dated this 18th day of September, 2019.

BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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