Losee v. Gallegos et al

Filing 124

MEMORANDUM DECISION and ORDER:denying 28 Motion for approval to obtain depositions under written questions; granting 33 Motion to Dismiss; granting 35 Motion to Dismiss for Failure to State a Claim; denying 98 Motion to S trike; denying 116 Motion to Strike; denying 26 Motion for approval to obtain depositions under written questions. Plaintiff may file a detailed motion for discovery in accordance with this Order within twenty one days, and Defendants may obje ct to any such discovery motion within fourteen days of filing and if a timely motion for discovery is not filed Plaintiff shall have twenty-eight days to response to Defendants summary judgment motions, and Defendants may file a reply thereto within fourteen days. Signed by Judge Tena Campbell on 3/25/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

KARL GRANT LOSEE,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:11-CV-80 TC

C. GALLEGOS et al.,
District Judge Tena Campbell
Defendants.

Plaintiff, Karl Grant Losee, an inmate at the Utah State Prison, filed this pro se civil
rights suit under 42 U.S.C. § 1983. See 42 U.S.C.S. § 1983 (2013). Plaintiff was allowed to
proceed in forma pauperis. See 28 id. § 1915. Before the Court are Defendant Angerhofer’s
Motion to Dismiss (Doc. No. 33), Defendant Freestone’s Motion to Dismiss (Doc. No. 35), and
Plaintiff’s motions for discovery (Doc. Nos. 26, 28-29).
ANALYSIS
I. Contract Attorneys’ Motions to Dismiss
Plaintiff’s fifty-three page, hand-written Amended Complaint (Doc. No. 8) asserts thirtyfive civil rights claims against fifteen defendants. The majority of Plaintiff’s claims allege denial
of access to the courts. In addition to numerous Utah Department of Corrections (UDC)
officials, the Complaint also names as defendants Wayne Freestone and David Angerhofer, who
are contract attorneys hired by UDC to assist inmates with preparation and filing of initial

pleadings in certain cases.1 Plaintiff alleges that the Contract Attorneys refused to provide him
with requested caselaw, thereby hindering him from litigating his claims. Plaintiff’s Complaint
seeks monetary damages, declaratory and injunctive relief, and costs.
Contract Attorneys move for dismissal asserting that Plaintiff’s allegations fail to state a
viable federal claim. Specifically, Defendants assert Plaintiff fails to allege facts showing that
they are state actors under Section 1983, which only affords relief for civil rights violations
committed by persons acting “under color of state law.” See 42 U.S.C.S. § 1983 (2013).
Plaintiff has had ample opportunity to respond to Defendants’ motions.
A. Rule 12(b)(6) Standard
A motion to dismiss under Rule 12(b)(6) requires the court to decide whether the factual
allegations made in the complaint, if true, would entitle the plaintiff to some sort of legal remedy.
To state a viable claim “[t]he complaint must plead sufficient facts, taken as true, to provide
‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations.”
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)). “Factual allegations [in a
complaint] must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In other words, the complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Id.
Additionally, “the complaint must give the court reason to believe that this plaintiff has a

1

For simplicity, the Court will refer to Freestone and Angerhofer as “Defendants” or
“Contract Attorneys.”
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reasonable likelihood of mustering factual support for [his] claims.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The “requirement of plausibility serves not
only to weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success, but also to inform the defendants of the actual grounds of the claim against
them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
When deciding a motion to dismiss the court must accept all well-plead facts as true and
draw reasonable inferences from those facts in favor of the non-moving party. Ridge at Red
Hawk, L.L.C., 493 F.3d at 1177. However, legal conclusions, deductions, and opinions couched
as facts are not presumed to be true, and the court must disregard conclusory allegations without
supporting factual averments. See, e.g., Erikson v. Pawnee County Bd. of County Comm., 263
F.3d 1151, 1154-55 (10th Cir. 2001). When a civil rights complaint contains only “bare
assertions” involving “nothing more than a ‘formulaic recitation of the elements’ of a
constitutional . . . claim,” the court considers those assertions conclusory and does not afford
them the presumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting
Twombly, 550 U.S. at 554-55).
B. Plaintiff’s Allegations
Plaintiff’s allegations against the Contract Attorneys are extremely scanty. The only
claim involving these Defendants is Count Nine, which alleges that Plaintiff met with the
Contract Attorneys on April 25, 2008, and requested copies of specific caselaw. Plaintiff stated
that these materials were necessary to allow him to prepare another lawsuit he was pursuing and
that he would be willing to pay for the copies. The Contract Attorneys allegedly denied
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Plaintiff’s request stating, “We don’t want you building a law library out there.” (Am. Compl. p.
17.) Plaintiff vaguely alleges that this denial “impede[d] and hindere[d]” him from presenting
his claims, and that it also violated Defendants’ contract with UDC for provision of legal services
to inmates.
C. Legal Standard for Court Access Claims
It is well-recognized that prison inmates “have a constitutional right to ‘adequate,
effective, and meaningful’ access to the courts and that the states have ‘affirmative obligations’
to assure all inmates such access.” Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir.1980), cert.
denied, 450 U.S. 1041, 101 S. Ct. 1759 (1981) (quoting Bounds v. Smith, 430 U.S. 817, 822, 97
S. Ct. 1491, 1495 (1977)). In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977), the Supreme
Court clarified this obligation by stating, “the fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the preparation and filing of meaningful
legal papers by providing prisoners with adequate law libraries or adequate assistance from
persons trained in the law.” Id. at 828 (footnote omitted). Legal assistance does not necessarily
require assistance from a lawyer, however, and may include help from persons such as inmate
law clerks, paralegals, law students, volunteer attorneys, or staff attorneys. Carper v. Deland, 54
F.3d 613, 616 (10th Cir. 1995).
To successfully assert a claim for denial of access to the courts, a prisoner must show (1)
the inadequacy of the library or legal assistance furnished, and (2) an “actual injury” resulting
from the inadequate facilities or assistance. Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174
(1996). To satisfy the “actual injury” requirement a plaintiff must show “that the denial of legal
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resources hindered the prisoner’s efforts to pursue a nonfrivolous claim.” Penrod v. Zavaras, 94
F.3d 1399, 1403 (10th Cir. 1996). Finally, the non-frivolous claims involved must be “habeas
corpus or civil rights actions regarding current confinement.” Carper, 54 F.3d at 616.
Generally, a private attorney who provides legal assistance to inmates pursuant to a
contract with a state department of corrections is not considered to be a state actor for Section
1983 purposes. See Smith v. Freestone, No. 99-4005, 188 F.3d 519, 1999 WL 510524, at *1
(10th Cir. Jul. 20, 1999) (unpub.); McCarthy v. Armstrong, et al., Case No. 3:96cv517
(PCD)(HBF) (D. Conn. May 28, 1998). However, such an attorney could be subject to liability
under Section 1983 if he conspires with state actors to violate an inmate’s constitutional rights,
even if the state actors themselves are immune from Section 1983 liability. Dennis v. Sparks,
449 U.S. 24, 28, 101 S. Ct. 183, 186 (1980). To state a conspiracy claim a plaintiff must allege
facts showing a meeting of the minds or agreement among the defendants. Brever v. Rockwell
Int'l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994). While the plaintiff need not present direct
evidence showing a conspiracy, he must at least show a sequence of events from which a
reasonable jury could infer there was a meeting of the minds. See Adickes v. Kress & Co., 398
U.S. 144, 154, 90 S. Ct. 1598 (1970). Moreover, conclusory allegations that defendants acted “in
concert,” or “conspired” without specific factual allegations to support such assertions are
insufficient to state a claim. Merritt v. Hawk, 153 F. Supp. 2d 1216, 1225 (D. Colo. 2001).
D. Insufficiency of Plaintiff’s Allegations
Plaintiff’s Amended Complaint barely alleges any facts showing denial of access to the
courts, much less that the Contract Attorneys conspired with any state actor to deny Plaintiff such
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access. Plaintiff’s only factual allegation concerning the Contract Attorneys is that they refused
to provide him copies of certain caselaw. Plaintiff does not offer any facts to support his
conclusory assertion that this refusal caused Plaintiff any injury. In his opposition memorandum
Plaintiff asserts for the first time that Defendants’ refusal to provide caselaw contributed “in
part” to the dismissal of his complaint in Losee v. Garden, 2:07-CV-911. However, this
assertion is incorrect pro se litigants’ claims cannot be dismissed based only on their failure to
cite appropriate legal authorities. Moreover, even assuming that Plaintiff’s allegations are
sufficient to show that he was denied adequate legal assistance and that the denial caused him
actual injury, Plaintiff has not alleged specific facts from which a reasonable jury could infer that
the Contract Attorneys conspired to violate Plaintiff’s constitutional rights. In fact, Plaintiff has
not alleged any facts that would indicate such a conspiracy.
Plaintiff’s conclusory statement that Defendants are “effectively state actors since their
contract with [UDC] is exclusive” is also unavailing. (Doc. No. 39, at 4.) The cases cited by
Plaintiff to support this assertion are not on point and have no bearing on Defendants’ potential
liability under Section 1983. Instead, the bulk of authority cited by Plaintiff deals with legal
access claims in general, not the liability of non-state actors such as Defendants.
Because Plaintiff has not shown that he can amend his pleadings to allege specific facts
showing that Defendants conspired to deny him access to the Courts, Defendants’ motions to
dismiss are granted.
II. Plaintiff’s Motions for Discovery
On July 2, 2012, Plaintiff filed a First Request for Production of Documents, seeking “all
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documents related to Mr. Losee,” excluding medical records (Doc. No. 25), and a motion seeking
to take the depositions, by written questions, of Defendants Gallegos and Rigby (Doc. Nos. 26 &
28). On September 13, 2012, Plaintiff filed a motion to compel (Doc. No. 69) in relation to his
previous discovery motions. Defendants objected to these motions on the grounds that discovery
was premature and that complying with Plaintiff’s discovery requests would be redundant and
unduly burdensome in light of the Court’s requirement that they file a Martinez Report and
summary judgment motion.
On November 14, 2012, Defendants filed their Martinez Report (Doc. No. 85) and a
Motion for Partial Summary Judgment (Doc. No. 86). Defendants filed an additional Motion for
Partial Summary Judgment on January 11, 2013. (Doc. No. 101.) Plaintiff has filed multiple
responses to these documents (Doc. Nos. 94-96, 112, 115). In several of his responses Plaintiff
asserts that he cannot respond adequately to summary judgment without additional discovery,
however, Plaintiff does not clearly identify specific items of discovery that have not yet been
provided, but are necessary for him to respond to summary judgment. Plaintiff has also filed
motions to strike the Martinez Report (Doc. No. 98) and to strike Defendants’ declarations (Doc.
No. 116). These motions to strike are entirely without merit and are denied.
Based on Defendants’ Martinez Report and the numerous documents included with
Defendants’ summary judgment motions, Plaintiff’s motions for discovery are denied as moot.
III. Further Proceedings
If Plaintiff can identify additional specific items of discovery which are necessary for him
to properly respond to Defendants’ summary judgment motions he may file a detailed discovery
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motion within twenty-one (21) days of this Order. Plaintiff’s motion shall specifically identify
each item of discovery sought and shall clearly explain how it is relevant to the issues presented
on summary judgment. Failure to make such a showing as to each item will result in denial of
discovery of that item.
Within fourteen (14) days after Plaintiff’s discovery motion, if any, is filed, Defendants
may object to any discovery request that is not specifically tailored to meet Defendants’ summary
judgment motion or otherwise fails to comply with the Federal Rules of Civil Procedure.
Plaintiff is warned that abuse of discovery may result in the Court issuing a summary judgment
decision on the present record.
If a timely discovery motion is not filed, Plaintiff may file any additional response he may
have to Defendants’ summary judgment motions within twenty-eight (28) days of this order.
Plaintiff is hereby notified that in responding to a summary judgment motion he cannot rest upon
the mere allegations in his pleadings. Instead, as required under Federal Rule of Civil Procedure
56(e), Plaintiff must come forth with specific facts, admissible in evidence, showing that there is
a genuine issue remaining for trial.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendant Angerhofer’s Motion to Dismiss (Doc. No. 33) is GRANTED;
(2) Defendant Freestone’s Motion to Dismiss (Doc. No. 35) is GRANTED;
(3) Plaintiff’s motions for discovery (Doc. Nos. 26, 28 & 29) are DENIED;
(4) Plaintiff’s motions to strike (Doc. Nos. 98 & 116) are DENIED;
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(5) Plaintiff may file a detailed motion for discovery in accordance with this Order within
twenty-one (21) days, and Defendants may object to any such discovery motion within fourteen
(14) days of filing; and,
(6) if a timely motion for discovery is not filed Plaintiff shall have twenty-eight (28) days
to respond to Defendants’ summary judgment motions, and Defendants may file a reply thereto
within fourteen (14) days.
Dated this 25th day of March, 2013
BY THE COURT:

___________________________
TENA CAMPBELL
United States District Judge

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