Opinion
Civil Action 20-cv-02691-RM-KLM
07-07-2022
EDGAR NELSON PITTS, Plaintiff, v. FEDERAL BUREAU OF PRISONS, ANDRE MATEVOUSIAN, in his official capacity as Warden, FREDERICK FRANDLE, in his official capacity as Hearing Administrator, and DIA BOUTWELL, in her official capacity as Psychologist, Defendants.
ORDER
RAYMOND P. MOORE United States District Judge
This matter is before the Court on the following matters:
(1) Magistrate Judge Kristen L. Mix's Recommendation (ECF No. 87) to grant Defendants' Motion to Dismiss (ECF No. 72) and dismiss Plaintiff's First and Eighth Amendment claims against them with prejudice, Plaintiff's Fifth Amendment claims against Defendants Frandle and Boutwell with prejudice, and Plaintiff's Fifth Amendment claims against Defendants Matevousian and the Federal Bureau of Prisons (“BOP”) without prejudice; and
The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
(2) Plaintiff's Motion for an Enlargement of Time in which to file an Amended Complaint (ECF No. 89).
The Court addresses these matters below.
I. DISCUSSION
The Recommendation.
The Recommendation advised the parties that specific written objections were due within fourteen days after being served with a copy of the Recommendation. (ECF No. 87, page 39.) In his Motion for Enlargement of Time, Plaintiff states he does not object to the Recommendation and instead wishes to amend his Complaint. He requests 30 additional days in which to do so. Defendants filed no objections and the time to do so has expired. (See generally Dkt.)
The Court concludes that Magistrate Judge Mix's analysis was thorough and sound, and that there is no clear error on the face of the record. See FED. R. CIV. P. 72(b) advisory committee's note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). The Recommendation is, therefore, accepted and adopted as an order of this Court.
The Motion for Enlargement of Time.
The Recommendation recognized that “ordinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Furthermore, “a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint.” Id. The Magistrate Judge also noted, however, that “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend,” dismissal with prejudice is appropriate. (ECF No. 87, p. 13) (quoting Gee, 627 F.3d at 1186). The Recommendation notes that Plaintiff has already filed two Amended Complaints and that the Court has twice now addressed the merits of some of these same claims, thus concluding that allowing Plaintiff to refile those claims for a third time would be futile. Magistrate Judge Mix also concluded, however, that Plaintiff “may be able to provide further allegations relevant to the process he received” in segregated confinement at the two institutions at issue that would state a plausible due process claim, and therefore the recommended dismissing the Fifth Amendment claims against Defendants BOP and Matevousian without prejudice. (ECF No. 87, pp. 38-39.)
With this background, Plaintiff now seeks 30 days to file an Amended Complaint. The Court finds good cause to grant Plaintiff's request in part. The Court grants Plaintiff 30 additional days in which to file an Amended Complaint raising only his claim of a Fifth Amendment violation by Defendants BOP and Matevousian. Plaintiff may not re-raise the other claims that the Court now dismisses with prejudice.
The Court finds no further briefing on the motion is required before ruling. See D.C.COLO.LCivR 7.1(d).
II. CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
(1) That the Recommendation of United States Magistrate Judge (ECF No. 87) is ACCEPTED and ADOPTED in its entirety;
(2) That Defendants' Motion to Dismiss (ECF No. 72) is GRANTED and Plaintiff's claims against them are dismissed as follows:
a. Plaintiff's First Amendment retaliation claims against all Defendants are DISMISSED WITH PREJUDICE;
b. Plaintiff's Eighth Amendment claims against all Defendants are DISMISSED WITH PREJUDICE;
c. Plaintiff's Fifth Amendment claims against Defendants Frandle and Boutwell are DISMISSED WITH PREJUDICE;
d. Plaintiff's Fifth Amendment claims against Defendants Matevousian and BOP are DISMISSED WITHOUT PREJUDICE;
(3) That Plaintiff's Motion for Enlargement of Time (ECF No. 89) is GRANTED, and Plaintiff is granted to and including August 8, 2022 in which to file an amended complaint as to his Fifth Amendment claims against Defendants Matevousian and BOP only; and
(4) The Clerk is directed to Terminate Defendants Frandle and Boutwell as no claims remain pending against them.