Martinez v. Unknown B.O.P. Officials
ORDER Denying 50 Plaintiff's Motion to Reconsider. Granting 55 Defendant's Motion to Strike Plaintiff's Third Amended Complaint. Denying 51 Plaintiff's Motion for Extension of Time. Entered by Judge William J. Martinez on 11/16/2020. (afran)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-1139-WJM-NRN
JOHN DOE (1), Captain;
JOHN DOE (2), Operations Lieutenant (a.k.a. LT. TRUJILLO);
JOHN DOE (3), SHU Lieutenant;
JOHN DOE (4), Unit Officer; and
UNITED STATES OF AMERICA,
ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER AND GRANTING
DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S THIRD AMENDED COMPLAINT
This prisoner civil rights action arises out of Plaintiff Raymond Martinez’s
(“Plaintiff”) claim against employees of the Federal Bureau of Prisons (“Defendants”),
brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). On May 19, 2020, the Court granted summary
judgment to all Defendants, holding that Plaintiff was unable to state a Bivens claim and
granting him leave to amend his Second Amended Complaint solely to assert a claim
under the Federal Tort Claims Act (“FTCA”) against the United States. (ECF No. 49.)
Before the Court are Plaintiff’s Motion for Reconsideration and/or Notice of
Appeal (“Motion for Reconsideration”) (ECF No. 50) and Motion for Extension of Time
(“Motion for Extension”) (ECF No. 51), and Defendant Anthony Trujillo’s (“Defendant
Trujillo”) Motion to Strike Plaintiff’s Third Amended Complaint (“Motion to Strike”) (ECF
No. 55). For the reasons stated below, Plaintiff’s Motions are denied, Defendant
Trujillo’s Motion to Strike is granted, and Plaintiff’s Third Amended Complaint is
dismissed without prejudice.
Plaintiff’s claim concerns an incident on May 25, 2017, in which he was allegedly
attacked by members of a gang while incarcerated at the Federal Correctional
Institution in Florence, Colorado. (ECF No. 1 at 9–10.) He f iled his initial Complaint on
April 18, 2019, asserting a Bivens claim against six prison officials. (Id.) After being
ordered to cure pleading deficiencies twice, Plaintiff filed his Second Amended
Complaint on July 22, 2019. (ECF No. 12.) Defendants filed a Motion for Summary
Judgment on the basis that Plaintiff had not exhausted his administrative remedies,
rendering the Bivens claim unavailable to him. (ECF No. 26.)
On March 26, 2020, Magistrate Judge N. Reid Neureiter recommended that the
Court grant Defendant Trujillo’s Motion for Summary Judgment, finding that Plaintiff had
not exhausted his administrative remedies. (ECF No. 40 at 10.) Plaintiff filed an
Objection to Judge Neureiter’s Recommendation, asserting that he was unable to
exhaust his administrative remedies due to an alleged cognitive impairment. (ECF No.
44 at 2–3.) Plaintiff also conceded, however, that the Bivens claim was not available to
him, and requested leave to file an amended complaint asserting a claim against only
the United States pursuant to the FTCA. (Id. at 4–5.)
On May 19, 2020, the Court overruled Plaintiff’s Objection and adopted Judge
Neureiter’s Recommendation, dismissing Plaintiff’s Bivens claim and terminating all
Defendants. (ECF No. 49.) The Court did, however, grant Plaintiff leave to amend his
Complaint yet again in order to file a FTCA claim against the United States by June 16,
2020. (Id.) Plaintiff filed his Motion for Reconsideration on June 15, 2020 (ECF No.
50), challenging the dismissal of his Bivens claim. Defendant Trujillo filed a Response
on July 6, 2020. (ECF No. 57.) Plaintiff filed his Motion for Extension to file his Third
Amended Complaint on June 16, 2020 (ECF No. 51). On June 22, 2020, before the
Court ruled on the Motion for Extension, Plaintiff filed his Third Amended Complaint.
(ECF No. 53.) Defendant Trujillo filed his Motion to Strike on July 1, 2020. (ECF No.
Representation by Nathan Railey
As a preliminary matter, the Court addresses Plaintiff’s apparent representation
by Nathan Railey, who refers to himself as Plaintiff’s “next friend agent.” (ECF No. 52
at 1.) Mr. Railey is a fellow inmate in the custody of the Federal Bureau of Prisons, and
has been writing and submitting pleadings on Plaintiff’s behalf, including the Motion for
Reconsideration and Third Amended Complaint now before the Court. (ECF Nos. 50 &
53.) Mr. Railey is not an attorney, and his representation of Plaintiff has not been
approved by the Court. Rather, based on his Notice of Agency filed on June 15, 2020
(and subsequent to the proceedings at issue here) (ECF No. 52), Mr. Railey seeks to
pursue the present action on Plaintiff’s behalf, asserting that Plaintiff is not mentally
competent to represent himself. (ECF No. 52 at 1–2.)
The Court need not consider whether Mr. Railey may ultimately be granted the
right to litigate in Plaintiff’s place; he is not presently authorized to do so. While “nextfriend” standing has been granted in limited cases involving habeas relief, the United
States Supreme Court has stated that it is “by no means granted automatically to
whomever seeks to pursue an action on behalf of another.” Whitmore v. Arkansas, 495
U.S. 149, 169 (1990). Moreover, Colorado district courts have rejected “next-friend”
standing where the proponent failed to demonstrate that it was authorized by a federal
statute. Sutton v. Doe, 2018 WL 10322065 at *1 (D. Colo. Apr. 13, 2018). Ac cordingly,
by merely identifying himself as Plaintiff’s “next friend agent” in Plaintiff’s pleadings, Mr.
Railey has not established that he has standing to pursue this action on Plaintiff’s
The District of Colorado Local Rules of Practice provide that only an attorney or
unrepresented party may “appear in a matter before the court, sign and file a pleading
or document, or participate in a deposition, hearing, or trial.” D.C.COLO.LAttyR 5(a).
Local Attorney Rule 5 further provides that “[t]he responsibility for signing a pleading or
document shall not be delegated.” Mr. Railey is in flagrant violation of Rule 5, admitting
to authoring and filing pleadings on Plaintiff’s behalf. (ECF Nos. 44, 50, & 53.) The
Court cautions Plaintiff that Mr. Railey’s continued representation without the Court’s
approval will subject both he and Mr. Railey to sanctions under Rule 5.
Plaintiff’s Motion for Reconsideration
District courts have broad discretion to reconsider interlocutory rulings before the
entry of judgment. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011).
Grounds for such reconsideration include “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). While the Court has discretion to alter its prior orders, a motion
to reconsider “is not at the disposal of parties who want to rehash old arguments.” Nat’l
Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp. 2d 1250, 1256 (D. Colo.
2000) (quoting Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995)). Rather, “a party
must set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.” Id.
In his Motion for Reconsideration, Plaintiff argues that his Bivens claim should
not have been dismissed for failure to exhaust administrative remedies. (ECF No. 50 at
3–5.) He posits that he was only required to exhaust the remedies available to him, and
that his cognitive impairments rendered the grievance process impossible for him to
comply with, and therefore unavailable. (Id. at 6.) This argument conflicts with
Plaintiff’s Objection to Judge Neureiter’s Recommendation, wherein he conceded that
the Second Amended Complaint “succumbs to inadequacies requiring it to be
dismissed.” (ECF No. 44 at 2–3.) The true basis of the Motion for Reconsideration
appears to be that Mr. Railey, who authored the Objection and conceded the Bivens
claim, was not previously aware of the extent of Plaintiff’s condition. (ECF No. 50 at 2
(stating that after reviewing Plaintiff’s medical documents, he believes that “a new legal
landscape is at play”).)
A motion for reconsideration may not be used to “revisit issues already
addressed” in prior briefing. Servants of Paraclete, 204 F.3d at 1012. The Court
already considered Plaintiff’s mental condition. (ECF No. 49.) As Judge Neureiter
noted, Plaintiff had already initiated grievances on unrelated matters, indicating that he
has the cognitive capability to exhaust administrative remedies. (ECF No. 40 at 10.)
Although the severity of Plaintiff’s injuries may be new information to Mr. Railey, Plaintiff
attached his extensive medical documentation to his initial Complaint. (ECF No. 1 at
19–85.) Plaintiff also discussed his medical issues in his Objection to Judge Neureiter’s
Recommendation. (ECF No. 44 at 3.) Finding no grounds for reconsidering the
adoption of Judge Neureiter’s Recommendation, Plaintiff’s Motion for Reconsideration
Motion to Strike Plaintiff’s Third Amended Complaint
Defendant Trujillo moves to strike Plaintiff’s Third Amended Complaint on two
grounds. First, he contends that Plaintiff has not complied with Federal Rule of Civil
Procedure 11, which requires pleadings to be signed by a party or the party’s attorney.
(ECF No. 55 at 4.) Second, he argues that Plaintiff has failed to comply with the
Court’s prior order regarding amendment of the Complaint. (Id. at 6.)
Failure to Comply with Rule 11 Signature Requirement
Rule 11 states the pleading requirements. Fed. R. Civ. P. 11. Relevant here is
the requirement that all pleadings be signed by at least one attorney of record, or by a
party personally if he or she is unrepresented. Id. Rule 11(a) further provides that a
court “must strike an unsigned paper unless the omission is promptly corrected after
being called to the attorney’s or party’s attention.” Id.
As noted, another inmate, Mr. Railey, authored Plaintiff’s Third Amended
Complaint. (ECF No. 53 ¶ 1.) While Mr. Railey signed the Third Amended Complaint,
Plaintiff did not. (Id. at 26.) Mr. Railey is not a party to this action, nor does he purport
to be a licensed attorney authorized to represent Plaintiff. Rather, in his Notice of
Agency, he lists several actions to which he has been a party and names treatises of
tort law which he has studied. (ECF No. 52 at 1–2.) Notwithstanding his quasi legal
background, Mr. Railey is not authorized to sign the Third Amended Complaint on
Moreover, it is not clear that Plaintiff was even aware that Mr. Railey had filed the
Third Amended Complaint. Plaintiff submitted his Request for Extension six days
earlier, stating that he and Mr. Railey had been separated and were not in contact.
(ECF No. 51 at 1.) This raises the concern that Plaintiff was not aware of Mr. Railey’s
filing of the Third Amended Complaint. As such, Plaintiff’s Third Amended Complaint is
stricken for failure to comply with Rule 11.
Failure to Amend in Compliance with Court Order
Defendant Trujillo argues that beyond the signature defect, Plaintiff has filed his
Third Amended Complaint in violation of Federal Rule of Civil Procedure 15, which
requires leave of the Court to amend a pleading. (ECF No. 55 at 6; Fed. R. Civ. P. 15.)
Specifically, he posits that Plaintiff reasserted his Bivens claim, and named the
individual Defendants in the Third Amended Complaint, which is impermissible because
the Court previously granted summary judgment to the individual Defendants and
dismissed Plaintiff’s Bivens claim with prejudice. (ECF No. 55 at 6.)
Recognizing that Plaintiff is proceeding pro se, the Court “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007). The liberal construction and leniency of the Court toward pro se litigants,
however, does not give such parties a license to shirk federal and local rules. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (stating that a pro se litigant
“nevertheless must follow the same rules of procedure that govern other litigants”). A
litigant’s repeated failure to cure deficient filings may provide a basis for a court to
dismiss the action in its entirety. See, e.g., Jackson v. Jackson, 377 F. App’x 829, 831
(10th Cir. 2010) (upholding dismissal of pro se litigant’s complaint after repeated failure
to comply with court’s orders to cure deficient filings).
In adopting Judge Neureiter’s Recommendation and granting Defendants’
Motion for Summary Judgment, the Court granted Plaintiff leave to amend, expressly
ordering him to name only the United States as a defendant and assert claims only
pursuant to the FTCA. (ECF No. 49.) Plaintiff disregarded this Order, refiling against
individual Defendants and reasserting his Bivens claim in addition to the FTCA claim.
(ECF No. 53.) Plaintiff’s failure to comply with the Court’s orders warrants dismissal of
his claim. See Jackson, 377 F. App’x at 831; Parris v. Attorney Gen, 2006 WL
2869522, at *2 (D. Colo. Oct 6, 2006). Accordingly, the action is dismissed without
prejudice. Given the foregoing, Plaintiff’s Motion for Extension of Time is denied as
For the reasons set forth above, the Court ORDERS as follows:
Plaintiff’s Motion for Reconsideration (ECF No. 50) is DENIED;
Defendant Trujillo’s Motion to Strike (ECF No. 55) is GRANTED;
Plaintiff’s Motion for Extension of Time (ECF No. 51) is DENIED;
Plaintiff’s Third Amended Complaint (ECF No. 53) is DISMISSED WITHOUT
The parties shall bear their own costs and attorney’s fees; and
The Clerk shall terminate this action.
Dated this 16th day of November, 2020.
BY THE COURT:
William J. Martínez
United States District Judge
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