Opinion
Civil Action 19-cv-00154-CMA-KLM
04-07-2023
HUNTER MELNICK, Plaintiff, v. KAYLA JOHNSTON, DEAN GONZALES, SUSAN WHITE, NICOLE JIMENEZ, OMER GARCIA, AHO WATERS COLORADO STATE BOARD OF PAROLE, SHEILE POMERANZ, BRYCE GILMORE, PRIMARY THERAPIST, TAMMIS JAHN, STATE OF COLORADO, and DARCI ARCHER,, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Altered Judgment Under FRCP 59 or 60 [#231] (the “Motion”). The Parole Defendants filed a Response [#241] and Plaintiff filed a Reply [#243]. The Motion [#231] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#232]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully recommends that the Motion [#231 be denied.
The Motion [#231] requests that the Court “put back on the table the prospective injunctive relief because of the plaintiff's release under the same parole conditions.” Id. at 1. The Motion provides no background for this request, does not reference the order Plaintiff seeks to alter under Fed.R.Civ.P. 59 or 60, and does not state what section of those rules that he is relying on. See id. The Parole Defendants' Response [#241] provide the context for Plaintiff's request. See id. at 1-2.
Thus, the Response [#241] notes that Plaintiff filed this 42 U.S.C. § 1983 case generally attacking the constitutionality of his parole conditions imposed pursuant to the Colorado Sex Offender Lifetime Supervision Act (“SOLSA”), C.R.S. § 18-1.3-1005. The various defendants, including the Parole Defendants, filed motions to dismiss Plaintiff's claims against them. On September 10, 2021, the Court granted in part and denied in part the various motions to dismiss. See Order [#151]. Specifically, District Judge Christine M. Arguello dismissed Plaintiff's claims for declaratory and injunctive relief as moot, his official-capacity claims against the Parole Defendants, and the majority of his claims for money damages against the Parole Defendants for failure to state a claim. Relevant to the instant Motion, the Court found that Plaintiff's claims for declaratory and injunctive relief were predicated on his parolee status, and when he was taken back into custody on a parole violation, they became moot. Id. at 10-12. However, as the Parole Defendants note, Plaintiff was again released on parole on January 17, 2023, and is currently paroled to the southeast region of Colorado. See Response [#241] at 3 (citing CDOC OffenderSearch Results for Offender Hunter Melnick, #148112, http://www.doc.state.co.us/oss/). Thus, these claims may no longer be moot.
From the foregoing, the Court construes Plaintiff's Motion [#231] as seeking to alter the September 2021 Order [#151] issued by Judge Arguello to reinstate the prospective injunctive relief related to his parole conditions, since his current parole involves the same conditions as his previous parole. However, the Court agrees with Defendant that Rules 59 and 60 are not the proper procedural mechanism to accomplish this. Rule 59(e) is inapplicable because it requires a motion to alter or amend to be filed within 28 days of the judgment. Rule 60(b) is inapplicable because it applies only to a final judgment, order, or proceeding for certain specified reasons. In this case, Plaintiff's declaratory judgment and prospective injunctive relief claims were not dismissed as a result of a final judgment or order in the case, and they were dismissed without prejudice. Order [#151] at 14. Dismissal without prejudice means that Plaintiff may seek to reinstate the prospective injunctive relief if the claim is no longer moot through a motion to amend the complaint. A motion to amend is the mechanism by which Plaintiff needs to seek relief, not Rules 59 or 60.
Plaintiff argues, however, in his Reply [#242], that his Motion [#231] is proper and that the Court can simply alter the Order [#151] to reflect his current circumstances. Id. at 1. Plaintiff cites Rule 60(a), which permits amendment of an order based on a clerical mistake. However, this rule is inapplicable because there was no clerical mistake, oversight, or omission in the Order [#151]. The Order [#151] correctly noted that Plaintiff had been taken into custody and was longer on parole at that time.
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#231] be DENIED. If Plaintiff wishes to reinstate claims that were previously dismissed as moot in light of changed circumstances, he must file a motion for leave to amend the complaint that complies with Fed.R.Civ.P. 15(a) and D.C.COLO.LCivR 15.1.
IT IS ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).