Opinion
Civil Action 19-cv-02190-PAB-MEH
01-27-2021
STEPHEN SUSINKA, Plaintiff, v. A. TRUJILLO, Lieutenant, and J. WILCOX, Correctional Officer, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff's Renewed Motion to Amend Complaint (ECF 73). This is Plaintiff's third request to file an amended complaint in this case. The Court finds that no further briefing is necessary to resolve the Motion. See D.C.Colo.LCivR 7.1(d). I respectfully recommend that the Honorable Philip A. Brimmer deny the Motion, for the following reasons.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
The operative complaint in this lawsuit was the Amended Complaint that Plaintiff filed on September 3, 2019. ECF 8. After it was screened (ECF 15), Plaintiff was permitted to proceed with two Bivens claims concerning an incident on July 3, 2019 when he was restrained and confined in the shower room during a facility lockdown. They were an Eighth Amendment claim against Defendants Wilcox and Trujillo for excessive force, and a First Amendment retaliation claim against Defendant Trujillo for filing a false incident report after that use of force.
Defendants moved for summary judgment because Plaintiff had not exhausted his administrative remedies before he had filed the lawsuit. However, Defendants conceded that he did complete the exhaustion process in the meantime.
On August 20, 2020, Plaintiff sought leave to file a second amended complaint in which he added Federal Tort Claims Act claims. ECF 58. They concerned the July 3, 2019 incident; subsequent cell assignment and hunger strike protest incidents; and malicious prosecution regarding a report about the July 3, 2019 incident. He stated that the statute of limitations gave him six months from July 1, 2020 (or until January 1, 2021) to bring them. He added the United States as a defendant. ECF 58-1.
On August 24, 2020, the Court resolved the motion for summary judgment and motion to amend by recommending that this lawsuit be dismissed but without prejudice to Plaintiff asserting all of his claims again in a new proceeding. ECF 60. That recommendation was accepted on September 22, 2020. ECF 61. Plaintiff's Amended Complaint was dismissed without prejudice; his Motion to Amend Complaint was denied without prejudice; and this case was closed.
Since then, starting on October 19, 2020, Plaintiff has been attempting to raise his claims in an amended complaint filed in this case rather than in a new complaint to initiate a separate lawsuit. His past two requests were denied with instructions to file his claims as a new lawsuit.
Through the instant Motion (ECF 73), Plaintiff again asks to proceed in this lawsuit. In his proposed amended complaint, he re-asserts his FTCA claims regarding the July 3, 2019 shower room incident; a disputed cell assignment on October 3, 2019; and his subsequent hunger strike protest. ECF 77. He signed it on December 14, 2020 (ECF 77 at 26) and attached a note to the Clerk of the Court that he dated January 10, 2021 (ECF 77 at 27). The Clerk of the Court received the filing on January 19, 2021. Id.
He asserts two general reasons for the requested relief. First, he says that the statute of limitations on his FTCA claims “expires on or about January 1, 2020" (which the Court assumes to mean January 1, 2021). If January 1, 2021 were the deadline for bringing his FTCA claims, he does not explain why he did not file his proposed amended complaint as a new lawsuit on December 21, 2020 instead of the instant Renewed Motion. Second, he reports the lack of legal and writing materials resulting from a prison transfer and COVID quarantine. However, he was able to file the two preceding motions during the same period of time.
The Court sees no basis by which to permit him to file his amended complaint to continue this lawsuit. This case is closed, and Plaintiff already was instructed to bring his claims in a new lawsuit.
Accordingly, for these reasons and those stated in the prior Recommendations, this Court respectfully recommends that Judge Brimmer deny Plaintiff's Renewed Motion to Amend Complaint [filed December 21, 2020; ECF 73].
Respectfully submitted at Denver, Colorado, this 27th day of January, 2021.