Hayes v. Idaho Department of Corrections et al

Filing 65

MEMORANDUM DECISION AND ORDER. Plaintiff's Motion to Review the Amended Civil Rights Complaint of 3/29/2019, (Dkt. 56 ), is GRANTED IN PART and DENIED IN PART. Plaintiff's Motion to File Overlength Response to Defendant's Motion toDis miss (Dkt. 51 ) is GRANTED. Defendants Rule 12(b)(6) Motion to Dismiss or, in the Alternative, Motion for Partial Summary Judgment (Dkt. 45 ), is GRANTED IN PARTto the extent that the Court will dismiss this case pursuant to Rule 12(b)(6)and DENIED AS MOOT IN REMAINING PART. Plaintiff's Motion for Summary Judgment (Dkt. 55 ) is DENIED AS MOOT. Because the Second Amended Complaint, read in light of the judicially noticed documents, fails to state a claim upon which relief may be granted, this case is DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL T. HAYES,
Case No. 1:17-cv-00275-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
JEFF ZMUDA; ALBERTO RAMIREZ;
BRETT PHILLIPS; and ARVEL
DEWAYNE SHEDD,
Defendants.

Pending before the Court in this civil rights matter are several motions filed by the
parties, including (1) Defendants’ Rule 12(b)(6) Motion to Dismiss or, in the Alternative,
Motion for Partial Summary Judgment (Dkt. 45), (2) Plaintiff’s Motion for Summary
Judgment (Dkt. 55), and (3) Plaintiff’s Motion to Review Amended Civil Rights
Complaint of 3/29/2019 (Dkt. 56)—which the Court construes as including a motion for
leave to amend—as well as Plaintiff’s proposed third amended complaint (Dkt. 57).
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that oral argument is
unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following
Order denying Plaintiff’s motion to amend, granting Defendants’ Rule 12(b)(6) motion to
dismiss, denying as moot Defendants’ alternative motion for summary judgment, and

MEMORANDUM DECISION AND ORDER - 1

denying as moot Plaintiff’s motion for summary judgment. Accordingly, this case will be
dismissed with prejudice.
1.

Plaintiff May Not Further Amend the Second Amended Complaint
Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights

action. Plaintiff previously was allowed to proceed on claims that, as set forth in his First
Amended Complaint (Dkt. 22), Defendants Zmuda, Ramirez, Phillips, and Shedd
violated Plaintiff’s right to access the courts. According to Plaintiff, these Defendants
deprived Plaintiff of legal materials necessary for Plaintiff to pursue his Shoshone County
successive post-conviction action, resulting in the dismissal of that action in state court.
(Dkt. 31 at 7-8.) Because the Shoshone County case was the basis of the First Amended
Complaint’s only plausible access-to-courts claim against each of these four Defendants,
the Court instructed Plaintiff to file a Second Amended Complaint limited to those four
claims and Defendants. (Id. at 2.) Plaintiff filed a Second Amended Complaint, but—
contrary to the Court’s instruction—it included additional claims. (See, e.g., Dkt. 33 at
14-15, 25-26, citing federal and state criminal statutes and asserting claims of false
imprisonment and deprivation of liberty interests.) The Court need not address these
additional claims, because their inclusion in the Second Amended Complaint violated the
Court’s previous order.
As for the claims upon which Plaintiff was allowed to proceed—the four accessto-courts claims with respect to the Shoshone County case—the Second Amended
Complaint alleges that Defendants’ actions between July 4, 2015 and May 27, 2016
violated his right of access and caused the dismissal of that case. (Id. at 14-25.)
MEMORANDUM DECISION AND ORDER - 2

Defendants have now filed their motion to dismiss. Defendants argue that the
Second Amended Complaint fails to state an access-to-courts claim under Rule 12(b)(6)
because the Second Amended Complaint—considered along with judicially-noticeable
state court documents—does not plausibly allege that (1) Plaintiff suffered an actual
injury to his right of access or (2) Defendants’ actions caused any such injury. (Dkt. 45 at
9-14.)
Defendants’ motion to dismiss relies, as expected, on Plaintiff’s Second Amended
Complaint and the allegations therein—that Defendants’ actions from July 2015 to May
2016 caused the dismissal of his Shoshone County post-conviction case. Defendants
point out in their opening brief that, according to Plaintiff’s own allegations in the
Second Amended Complaint, he had access to his Shoshone County post-conviction case
file for more than a year after the Shoshone County Court (1) notified Plaintiff that the
petition was subject to dismissal and (2) ordered him to respond to that notice.
Nonetheless, Plaintiff did not file anything in that post-conviction action for twenty-two
months after he received the notice, when he filed a motion for appointment of counsel.
Defendants argue that Plaintiff’s failure to timely respond to the notice of intent to
dismiss, despite having access to his legal materials until July 2015, caused the dismissal
of the post-conviction action; they also argue that Plaintiff’s filings in the post-conviction
action show that he “ably argued the merits” of that case and, therefore, has not shown
actual injury. (Dkt. 45-1 at 14.)

MEMORANDUM DECISION AND ORDER - 3

Plaintiff responded to Defendants’ motion to dismiss, asserting for the first time
that “all [his] Shoshone County Post-Conviction Relief case files” were confiscated by
prison officials on April 10, 2014—instead of on July 4, 2015, as alleged in Plaintiff’s
Second Amended Complaint; thus, according to Plaintiff, he was unable to file a timely
response to the Shoshone County Court’s notice of intent to dismiss because the seizure
of his legal materials occurred during the 20-day response period. (Dkt. 52 at 20; see also
id. at 4–6.) In their reply in support of the motion to dismiss, Defendants correctly note
that the Second Amended Complaint does not include the April 2014 allegation.
Defendants argue that “Plaintiff cannot defeat Defendants’ Motion [to Dismiss] simply
by changing his factual allegations to suit his purposes.” (Dkt. 54 at 3.)
It was only after Defendants filed their reply that Plaintiff submitted his proposed
third amended complaint. In this proposed pleading, Plaintiff alleges that his case file for
his successive post-conviction petition was confiscated on April 10, 2014, shortly after he
filed the petition in Shoshone County Court. The proposed third amended complaint also
attempts to name an additional Defendant and includes allegations of events going as far
back as 2007. (Dkt. 57 at 14; see also Dkt. 56 at 1.)
A.

Standards of Law Regarding Leave to Amend

Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil
Procedure. The courts “should freely give leave when justice so requires,” Fed. R. Civ. P.
15(a)(2), and the rule’s “policy of favoring amendments to pleadings should be applied
with extreme liberality.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal
quotation marks omitted).
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Several factors guide the Court’s consideration of whether to grant leave to
amend, including whether amendment would be futile, whether allowing amendment
would cause undue delay and undue prejudice to the party opposing amendment, and
whether the request to amend is based on bad faith or a dilatory motive. Foman v. Davis,
371 U.S. 178, 182 (1962). Whether to allow amendment is within the Court’s discretion,
and that discretion is especially broad where, as here, the plaintiff has already amended
the complaint. Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 879 (9th Cir. 1999).
B.

The Court Will Deny Leave to Amend

The Court concludes that leave to amend should be denied. First, amendment
would be futile. For the same reasons explained below with respect to the Second
Amended Complaint, those access-to-courts claims that are reasserted in the proposed
third amended complaint are subject to dismissal because Plaintiff does not plausibly
allege that he suffered an actual injury to his right of access as a result of Defendants’
actions.
Amendment is also futile because the proposed third amended complaint does not
sufficiently set forth the underlying post-conviction claims that Plaintiff was allegedly
frustrated from pursuing. A prisoner asserting an access-to-courts claim must allege more
than that prison officials’ actions caused the loss of a claim. The prisoner also must set
forth the elements of that lost claim with the level of detail that would be necessary “just
as if it were being independently pursued.” Christopher v. Harbury, 536 U.S. 403, 417
(2002).

MEMORANDUM DECISION AND ORDER - 5

Plaintiff’s proposed amendment fails to do so. Specifically, the amendment does
not set forth any “sufficient reason” why Plaintiff’s successive state post-conviction
petition was permissibly filed under Idaho law, which prohibits successive petitions
unless the petitioner establishes such a reason. Idaho Code § 19-4908. Also, though the
proposed amendment identifies Plaintiff’s lost post-conviction claims (Dkt. 57 at 14–15),
it does not contain any factual support for those claims, let alone allegations with the
level of detail required by Christopher v. Harbury.1
The Court also notes that the proposed newly-modified claim—based on the April
2014 allegation and substituting that date in place of the July 4, 2015 allegation—is
subject to dismissal for the additional reason that it is untimely. See Idaho Code § 5-219
(two-year statute of limitations for personal injury actions); see also Wilson v. Garcia,
471 U.S. 261, 280 (1985) (holding that state statute of limitation for personal injury
actions governs § 1983 actions), abrogated on other grounds by Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369 (2004). This is yet another reason why amendment to modify
that claim, to allege an April 2014 seizure, would be futile.
But futility is not the only reason the Court declines to permit further amendment
in this case. Plaintiff has already amended the complaint. And Defendants—who,
reasonably and understandably, have constructed their defense based on the allegations in
the Second Amended Complaint—would suffer undue prejudice if Plaintiff were

1

Plaintiff was aware of the Christopher requirements at the time he drafted his proposed amendment.
(See, e.g., Dkt. 16 at 13–14; Dkt. 31 at 4–5.)

MEMORANDUM DECISION AND ORDER - 6

permitted to proceed on yet another proposed amendment. The Court will not force
Defendants to form a new defense strategy by permitting amendment at this late date.
Finally, Plaintiff’s delay in filing the proposed third amended complaint is
inexplicable, and the Court suspects that Plaintiff’s motivation in requesting amendment
is less than laudable. Indeed, the situation here is reminiscent of one of Plaintiff’s
previous cases, in which the Court denied leave to amend in similar circumstances.
In Hayes v. Radford, this Court denied leave to amend where Plaintiff waited to
request amendment until approximately seven months after he learned the identity of a
new potential defendant, and after Plaintiff “was faced with a motion to dismiss and
motion for summary judgment.” Hayes v. Radford, No. 1:09-cv-00555-BLW, 2012 WL
4481213, at *9 (D. Idaho Sept. 28, 2012), aff’d, 584 F. App’x 633 (9th Cir. Aug. 21,
2014). The Court did not allow amendment because the unexplained delay and the timing
of the motion to amend showed bad faith and undue delay on Plaintiff’s part.
In this case, the delay between the incident complained of (April 10, 2014) and
Plaintiff’s request for amendment (March 29, 2019, see Dkt. 57 at 30) spanned nearly
five years. As in Hayes v. Radford, Plaintiff did not request leave to amend until after
Defendants filed their motion to dismiss. Based on this “unexplained delay,” the Court
finds that Plaintiff’s current request for amendment “is merely a desperate tactic aimed at
holding off a dismissal rather than a genuine desire to amend based on newly discovered
evidence.” Id. That is, Plaintiff request to amend in this case was made in bad faith, and

MEMORANDUM DECISION AND ORDER - 7

the delay caused by further amendment would thus be undue. See Foman, 371 U.S. at
182.
The Court will deny Plaintiff’s request for leave to amend, and the Second
Amended Complaint (Dkt. 33) will remain the operative complaint in this action. The
Court now turns to Defendants’ motion to dismiss that complaint.
2.

The Second Amended Complaint Fails to State a Claim upon Which Relief
May Be Granted
A.

Standards of Law Regarding Rule 12(b)(6) Motions

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must 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) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Dismissal “can be based on the
lack of a cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988). Dismissal is also appropriate where the plaintiff has included allegations
disclosing an absolute defense or bar to recovery. See Weisbuch v. County of Los
Angeles, 119 F.3d 778, 783 at n.1 (9th Cir. 1997) (“If the pleadings establish facts
compelling a decision one way, that is as good as if depositions and other ... evidence on
summary judgment establishes the identical facts.”).
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
court generally should not consider materials outside the complaint and pleadings. See
Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997). The Court “may, however, consider

MEMORANDUM DECISION AND ORDER - 8

certain materials—documents attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial notice—without converting the motion
to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903,
908 (9th Cir. 2003).
A court may take judicial notice of a fact that is “not subject to reasonable
dispute” in that the fact “(1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Judicially-noticeable
documents include the “records of state agencies and other undisputed matters of public
record.” Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1
(9th Cir. 2004). Judicial opinions and other court records are properly subject to judicial
notice. Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001), abrogated on
other grounds as stated in Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir.
2002). Specifically, the Court may judicially notice the existence of another court’s
decision—which includes the stated reasoning of the authoring court as well as the date
of the decision—and other filings made in the case, but not the facts recited in that
decision or other filings. Id.
B.

Standards of Law Regarding Access-to-Courts Claims

Prisoners have a right to access the courts under the First and Fourteenth
Amendments. Bounds v. Smith, 430 U.S. 817, 821 (1977). This right guarantees that
prisoners have the opportunity to pursue “lawsuits challenging their sentences or the
conditions of their confinement to conclusion without active interference by prison
MEMORANDUM DECISION AND ORDER - 9

officials.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (emphasis omitted),
abrogated on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015). However,
because the right of access to the courts is not an “abstract, freestanding right to a law
library or legal assistance, an inmate cannot establish relevant actual injury simply by
establishing that his prison’s law library or legal assistance program is subpar in some
theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996).
Instead, to state a viable access-to-courts claim, a plaintiff must plausibly allege
that he suffered an actual injury as a result of the defendant’s actions. Id. at 349. Actual
injury may be manifest if the alleged denial of access “hindered [the plaintiff’s] efforts to
pursue a legal claim”; for example, if the prisoner’s complaint or petition was dismissed
“for failure to satisfy some technical requirement,” or if the prisoner “suffered arguably
actionable harm that he wished to bring before the courts, but was so stymied by [the
defendants’ actions] that he was unable even to file a complaint.” Id. at 351.
The Constitution does not require that inmates “be able to conduct generalized
research,” nor does it “guarantee inmates the wherewithal to transform themselves into
litigating engines.” Id. at 355, 360. Rather, the right of access to the courts requires only
that inmates “be able to present their [conditions-of-confinement and criminalconviction] grievances to the courts—a more limited capability that can be produced by a
much more limited degree of legal assistance.” Id. at 360 (emphasis added); see also id.
at 355 (“The tools [the Constitution] requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to challenge

MEMORANDUM DECISION AND ORDER - 10

the conditions of their confinement.”). “Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction
and incarceration.” Id. at 355 (emphasis omitted). Further, as with all § 1983 claims, a
plaintiff cannot state an access to courts claim by alleging that a negligent act by a
government official caused the actual injury of which the plaintiff complains. Krug v.
Lewis, 852 F.2d 571 (Table), 1988 WL 74699, *1 (9th Cir. July 6, 1988) (“While
prisoners have a due process right of access to the courts, the negligent act of a public
official does not violate that right.”) (unpublished) (citing Daniels v. Williams, 474 U.S.
327, 333 (1986)).
Claims of denial of access to the courts may arise from the frustration or hindrance
of “a litigating opportunity yet to be gained” (a forward-looking access claim) or from the
loss of a suit that now cannot be tried (a backward-looking claim). Christopher, 536 U.S.
at 413-15 (2002). A complaint alleging a denial of access to the courts must plausibly
allege that the plaintiff suffered, or will suffer, the loss of a past or present litigating
opportunity. The plaintiff must assert facts supporting three elements: (1) official acts
that caused the frustration of the inmate’s litigation activities; (2) the loss (or expected
loss) of a “nonfrivolous” or “arguable” underlying claim that must be set forth in the
federal complaint, including the level of detail necessary “as if it were being
independently pursued”; and (3) specific allegations showing that the remedy sought in
the access to courts claim is not otherwise available in another suit that could be brought.
Id. at 415-17.

MEMORANDUM DECISION AND ORDER - 11

For the reasons that follow, the Second Amended Complaint does not plausibly
allege that Defendants’ actions caused the loss of any nonfrivolous or arguable postconviction claim in Plaintiff’s Shoshone County case.
C.

The Second Amended Complaint, When Considered with JudiciallyNoticeable Documents from the Shoshone County Court, Does Not
Plausibly Allege that Defendants Caused an Actual Injury to Plaintiff’s
Right to Access the Courts

The Second Amended Complaint asserts that on July 4, 2015, Defendants
confiscated Plaintiff’s legal materials for the Shoshone County post-conviction case.
(Dkt. 57 at 13-15.) The Second Amended Complaint also claims that, on May 27, 2016,
Defendants mailed twelve boxes of Plaintiff’s legal files—some of which contained
material relevant to Plaintiff’s Shoshone County case—outside the prison, to Plaintiff’s
designee. (Id. at 17.) Plaintiff claims that these actions hindered Plaintiff from pursuing
that post-conviction action and “delayed the case for so long” that it ultimately was
dismissed on January 31, 2018. (Id. at 18.) The Shoshone County post-conviction petition
was Plaintiff’s third such petition. (Dkt. 45-5 at ECF p.2.)
The Court takes judicial notice of certain relevant records from that successive
state post-conviction proceeding. Plaintiff filed that third petition, in Hayes v. Idaho,
Shoshone County Case No. CV-2006-711, on March 14, 2014. (See Dkt. 45-10 at ECF
p.2.) These records are attached as Exhibits B through G to the Declaration of Counsel in
Support of Defendant’s Rule 12(b)(6) Motion.2 (See Dkt. 45-5 to 45-10.)

2

The Court declines to take judicial notice of Exhibit A to the Declaration of Counsel. (See Dkt. 45-4.)
Exhibit A is purportedly a copy of a portion of the docket sheet, in the Shoshone County post-conviction
case, taken from the Idaho courts’ online iCourt database. See https://icourt.idaho.gov/.

MEMORANDUM DECISION AND ORDER - 12

On April 17, 2014, Judge Fred M. Gibler issued a Notice of Intent to Dismiss the
petition based on Idaho’s successive petitions bar. (Ex. B, Dkt. 45-5.) Idaho’s Uniform
Post-Conviction Procedure Act requires that all claims for post-conviction relief be
asserted in the initial petition.3 An exception exists, and a petitioner may file a successive
petition, if the petitioner establishes a “sufficient reason” why a particular claim was not
asserted, or was inadequately asserted, in the initial petition. Idaho Code § 19-4908.
Judge Gibler notified Plaintiff in the Shoshone County case that the successive postconviction petition appeared to be barred by § 19-4908 and gave Plaintiff 20 days to
respond. (Ex. B, Dkt. 45-5 at ECF p.10-11.)
Plaintiff did not respond within 20 days. Instead, he requested a continuance,
which the Shoshone County Court denied on May 7, 2014. (Ex. C, Dkt. 45-6 at ECF p.2.)
Plaintiff did not thereafter respond to the notice of intent to dismiss.
Twenty-two months after the notice was issued, Plaintiff filed at least two motions
for appointment of counsel. (Ex. D & E, Dkt. 45-7 & 45-8 (filed Feb. 5 and 29, 2016).)
The parties agree that nothing else was filed in the post-conviction case during that time
period. (See Memo. in Support, Dkt. 45-1 at 12 (“Despite still having undisputed access
to his case materials until July 4, 2015, Plaintiff did not file anything further in the post-

3

Section 19-4908 of the Idaho Code provides as follows:
All grounds for relief available to an applicant under this act must be raised in his
original, supplemental or amended application. Any ground finally adjudicated or not so
raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted
in the conviction or sentence or in any other proceeding the applicant has taken to secure
relief may not be the basis for a subsequent application, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or was inadequately raised
in the original, supplemental, or amended application.

MEMORANDUM DECISION AND ORDER - 13

conviction proceeding until February, 2016 ….”); Sec. Am. Compl., Dkt. 33 at 13
(stating that the post-conviction case had “sat idle”); First Am. Compl., Dkt. 22 at 63-64
(stating that the post-conviction case had just been “sitting there and nothing ha[d]
happened”).)
Despite the allegation, in the Second Amended Complaint, that Defendants had
seized his legal materials for the Shoshone County case in July 2015, Plaintiff’s motions
for counsel in that case did not mention the alleged seizure. (Ex. D & E, Dkt. 45-7 & 458.) At some point, the Shoshone County case was reassigned from Judge Gibler to Judge
Scott L. Wayman.
On January 24, 2018, Plaintiff filed yet another motion for appointment of counsel
in the post-conviction case. (Ex. F, Dkt. 45-9.) One week later, Judge Wayman denied
Plaintiff’s motions for appointment of counsel and dismissed the case because the
successive petition did not “allege[] facts, supported by admissible evidence, sufficient to
defeat summary dismissal.” (Ex. G, Dkt. 45-10 at ECF p.3.) Judge Wayman also noted
that Plaintiff had not responded to Judge Gibler’s notice of intent to dismiss. (Id. at 1.)
As this recitation establishes, Plaintiff’s Shoshone County post-conviction action
was not dismissed because Plaintiff failed “to satisfy some technical requirement.” Lewis,
518 U.S. at 351. Rather, it was dismissed because it was a successive petition barred by
Idaho Code § 19-4908, as set forth in Judge Gibler’s April 17, 2014 notice of intent to
dismiss. (Ex. B, Dkt. 45-5; Ex. G, Dkt. 45-10.)

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Additionally, the time for Petitioner to respond to Judge Gibler’s notice of intent
to dismiss had expired on May 7, 2014—over a year before Defendants’ July 2015
actions, and two years before Defendants’ May 2016 actions. Therefore, Defendants’
actions could not have caused Plaintiff to miss the 20-day filing deadline.
The documents subject to judicial notice and the Second Amended Complaint
show unequivocally that Plaintiff’s Shoshone County post-conviction case was dismissed
because it was procedurally barred under Idaho Code § 19-4908—not as a result
Defendants’ actions in seizing Plaintiff’s legal materials. Therefore, Plaintiff has not
plausibly alleged that Defendants’ actions caused any injury to Plaintiff’s right of access
to the courts, and the Court will dismiss this case with prejudice. See Iqbal, 556 U.S. at
678–82; Lewis, 518 U.S. at 351.
3.

The Motions for Summary Judgment Are Moot
Because the Court will dismiss this case under Rule 12(b)(6), Defendants’

alternative motion for partial summary judgment and Plaintiff’s motion for summary
judgment are both moot.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Review the Amended Civil Rights Complaint of
3/29/2019, which the Court construes as including a motion for leave to file
a third amended complaint (Dkt. 56), is GRANTED IN PART and
DENIED IN PART. It is granted to the extent that the Court has reviewed

MEMORANDUM DECISION AND ORDER - 15

the proposed third amended complaint, but the Court denies Plaintiff’s
request for amendment for the reasons set forth above.
2.

Plaintiff’s Motion to File Overlength Response to Defendant’s Motion to
Dismiss (Dkt. 51) is GRANTED.

3.

Defendants’ Rule 12(b)(6) Motion to Dismiss or, in the Alternative, Motion
for Partial Summary Judgment (Dkt. 45), is GRANTED IN PART—to the
extent that the Court will dismiss this case pursuant to Rule 12(b)(6)—and
DENIED AS MOOT IN REMAINING PART.

4.

Plaintiff’s Motion for Summary Judgment (Dkt. 55) is DENIED AS
MOOT.

5.

Because the Second Amended Complaint, read in light of the judiciallynoticed documents, fails to state a claim upon which relief may be granted,
this case is DISMISSED with prejudice.

DATED: July 1, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

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