Matthews v. Wiley

• Decision Date: 13 September 2010
• Docket Number: Civil Action No. 09–cv–00978–PAB–CBS.
• Citation: 744 F.Supp.2d 1159
• Parties: Norman MATTHEWS, Plaintiff,v.Ron WILEY, J. Fox, Jerry Jones, Robert A. Hood, Mark A. Munson, Maureen S. Cruz, and John T. Shartle, Defendants.
• Court: U.S. District Court — District of Colorado

744 F.Supp.2d 1159

Norman MATTHEWS, Plaintiff,

v.Ron WILEY, J. Fox, Jerry Jones, Robert A. Hood, Mark A. Munson, Maureen S. Cruz, and John T. Shartle, Defendants.

Civil Action No. 09–cv–00978–PAB–CBS.

United States District Court, D. Colorado.

Sept. 13, 2010.

Norman Matthews, Florence, CO, pro se.Juan Gonzalo Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge Craig B. Shaffer filed on August 16, 2010 [Docket No. 32]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on August 16, 2010. No party has objected to the Recommendation.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”). In this matter, I have reviewed the Recommendation to satisfy myself that there is “no clear error on the face of the record.” ¹ See Fed.R.Civ.P. 72(b), Advisory Committee Notes. Based on this review, I have concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is

ORDERED as follows:

1. The Recommendation of United States Magistrate Judge [Docket No. 32] is ACCEPTED.

2. Defendants' motion to dismiss [Docket No. 23] is GRANTED, and this case is DISMISSED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court on “Defendants' Motion to Dismiss” (filed October 22, 2009) (doc. # 23). Pursuant to the Order of Reference dated May 27, 2009 (doc. # 5) and the memorandum dated October 23, 2009 (doc. # 24), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, Mr. Matthews' Response (filed December 18, 2009) (doc. # 29), Defendants' Reply (filed December 22, 2009) (doc. # 30), Defendants' “Notice of Filing of Supplemental Authority” (filed March 31, 2010) (doc. # 31), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Mr. Matthews is currently incarcerated at the United States Penitentiary, Administrative Maximum in Florence, Colorado (“ADX”) for numerous criminal convictions, including: (1) transportation of stolen vehicles in interstate commerce in violation of 18 U.S.C. § 2312, United States v. Matthews, No. J 75 CR–22 (E.D.Ark. May 14, 1975), for which he received a five-year sentence; (2) escape from the custody of a U.S. Marshal in violation of 18 U.S.C. § 751(a), United States v. Matthews, No. H 75 CR–5 (E.D.Ark. May 14, 1975), for which he received a five-year sentence; (3) voluntary manslaughter in violation of 18 U.S.C. § 1111, United States v. Matthews, No. CR 76–70–E (E.D.Ill. June 1, 1977), for which he received a 10–year sentence; (4) second degree murder in violation of 18 U.S.C. § 1111, United States v. Matthews, No. CR 78–02033–04–B (E.D.Ill. Dec. 27, 1978), for which he received a 10–year sentence; (5) murder in violation of 18 U.S.C. § 1111, United States v. Matthews, No. 81–40007–01 (S.D.Ill. April 1, 1981), for which he received a life sentence; and (6) assault with intent to commit murder in violation of 18 U.S.C. § 113, and possession of a weapon by a federal prisoner in violation of 18 U.S.C. § 1971(a)(1)(B), United States v. Matthews, No. CR 86–771–ER (C.D. Cal. April 12, 1987), for which he received a 25–year sentence. ( See Exhibit A to Motion to Dismiss (doc. # 23–1)).¹

Mr. Matthews alleges three claims for relief pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Mr. Matthews' first claim for violation of his Fifth Amendment procedural due process rights consists of two parts, based on (a) his transfer to ADX on February 21, 1995 and (b) his continued confinement in ADX. ( See “Prisoner Complaint” (doc. # 2) at pp. 7–11 of 19). Mr. Matthews alleges that he did not receive notice of his transfer to ADX, a hearing, or an opportunity to make an oral or written statement. ( See id. at p. 8 of 19, ¶ 20). Mr. Matthews alleges that the conditions of his continued confinement “constitute atypical and significant hardship as compared with the ordinary incidents of prison life.” ( See id. at p. 7 of 19, ¶ 16).

In his second claim, Mr. Matthews alleges violation of his right to equal protection. Mr. Matthews alleges that Defendants “have engaged in a long-standing pattern of discrimination against plaintiff by denying him placement in less restrictive confinement and transfer out of ADX” ( see id. at p. 12 of 19, ¶ 39) while “other prisoners with similar convictions, sentences, security and custody levels and institutional records were approved placement in less restrictive confinement and were transferred out of ADX....” ( See id. at p. 12 of 19, ¶ 40). In his third claim, Mr. Matthews alleges violation of his Eighth Amendment rights based on the conditions of confinement at ADX. Mr. Matthews alleges that Defendants “have subjected [him] to harsh and inhumane conditions of confinement and deprivation of the minimal civilized measures of life's necessities.” ( See id. at p. 14 of 19 ¶ 47).

Mr. Matthews sues Defendants Ron Wiley, the former Warden of ADX, J. Fox, Associate Warden (Programs) at ADX; Jerry Jones, Associate Warden (Operations) at ADX; Robert Hood, former Warden of ADX; Mark Munson, former Associate Warden (Programs) at ADX; Maureen S. Cruz, former Associate Warden (Operations) at ADX; and John T. Shartle, former Associate Warden (Programs) at ADX. ( See doc. # 2 at pp. 2–3 of 19). Mr. Matthews seeks compensatory and punitive damages, and declaratory and injunctive relief. ( See doc. # 2 at p. 17 of 19). Defendants move for dismissal of Mr. Matthews' Complaint on several grounds pursuant to Fed.R.Civ.P. and (b)(6).²

II. Standard of Review

Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The burden is on the plaintiff to frame “a complaint with enough factual matter (taken as true) to suggest” that he or she is entitled to relief. Twombly, 127 S.Ct. at 1965. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.

Because Mr. Matthews appears pro se, the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Govt., 472 F.3d 1242, 1243 (10th Cir.2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). See also Whitney v. State of New Mexico, 113 F.3d 1170, 1173–74 (10th Cir.1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”).

III. Analysis

Mr. Matthews does not specify in his pleadings whether he is suing Defendants in their official capacities, their individual capacities, or both. ( But see Response (doc. # 29) at p. 1 of 10 (suggesting “both the official as well as the individual responsibility”)).

To the extent that Mr. Matthews is suing Defendants in their official capacities for money damages, he cannot obtain relief under Bivens because there is no waiver of sovereign immunity for such claims. See FDIC v. Meyer, 510 U.S. 471, 486, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (direct action for damages against federal agencies not recognized under Bivens ). See also Correctional Services Corp. v. Malesko, 534 U.S. 61, 72, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (“If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity ... The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP.”); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (“A Bivens action may not be brought against federal agencies or agents acting in their official capacities.”). Mr. Matthews' claims for money damages against Defendants in their official capacities are barred by sovereign immunity and are thus properly dismissed with prejudice for lack of subject matter jurisdiction.

Sovereign immunity is not a bar to Mr. Matthews' claims for injunctive relief. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225,...