Bacote Jr v. Federal Bureau of Prisons

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-03111-RM-NRN
MICHAEL BACOTE, JR.,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.
REPORT AND RECOMMENDATION ON
PLAINTIFF’S MOTION FOR LEAVE TO FILE FIFTH AMENDED COMPLAINT
(DKT. #133)
N. REID NEUREITER
United States Magistrate Judge
This case is before me pursuant to an Order (Dkt. #134) issued by Judge
Raymond P. Moore referring Plaintiff Michael Bacote, Jr.’s Motion for Leave to File Fifth
Amended Complaint. (Dkt. #133.) I have carefully considered the motion, Defendant
Federal Bureau of Prisons’ (“BOP”) Response (Dkt. #142), and Mr. Bacote’s Reply.
(Dkt. #144.) I have taken judicial notice of the Court’s file and considered the applicable
Federal Rules of Civil Procedure and case law. Now, being fully informed and for the
reasons discussed below, I RECOMMEND that the subject motion be DENIED.
I. BACKGROUND
Mr. Bacote is a prisoner at the United States Penitentiary Administrative
Maximum facility in Florence, Colorado (“ADX”). He filed the first two complaints in this
case pro se. (Dkt. ##1 & 10.) Attorney Mark J. Ivandick was given leave to provide Mr.
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Bacote with limited scope representation for the purpose of amending the complaint a
third time, which he did on January 24, 2019. (Dkt. #24.) On April 23, 2019, Laura
Rovner, Nicole Godfrey, and Danielle Jefferis of the University of Denver Sturm College
of Law Student Law Office Civil Rights Clinic were appointed as counsel for Mr. Bacote.
(Dkt. #44.) They filed the Fourth Amended Complaint on August 2, 2019, which
asserted four claims for relief against the BOP: (1) an Eighth Amendment claim for
“isolation resulting in deprivation of basic human needs”; (2) an Eighth Amendment
claim concerning the BOP’s failure to treat his serious mental illness (“SMI”) and
intellectual developmental disabilities/disorders (“IDD”); (3) a claim for disability
discrimination in violation of Section 504 of the Rehabilitation Act of 1973; and (4) a
First Amendment retaliation claim. (Dkt. #55 at 14–20, ¶¶ 51–75.)
The BOP moved to dismiss all of Mr. Bacote’s claims. (Dkt. #56.) After briefing
and argument, on November 8, 2019, I issued a Report and Recommendation (Dkt.
#92) on the BOP’s motion. 1 That 36-page document summarized Mr. Bacote’s
allegations and outlined the court-approved settlement agreement reached in
Cunningham vs. Federal Bureau of Prisons, Case No. 12-cv-01570-CMA-MEH (D.
Colo.) (the “Cunningham case”). I will assume the reader’s familiarity with both. I found
that the Cunningham settlement agreement is enforceable and its release clause,
which, subject to three exceptions, “forever bar[s]” class members from prosecuting
“any and all claims, causes of action, or requests for any injunctive or declaratory relief .
. . that have been asserted in this litigation, or that pertain to the treatment of ADX
1 Judge Moore has not yet ruled on the Report and Recommendation and the parties’
objections thereto.
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inmates’ mental health,” precludes Mr. Bacote’s Rehabilitation Act claim and his Eighth
Amendment claims, except to the extent that he seeks a judicial determination
concerning his personal mental health diagnosis. I further determined that Mr. Bacote’s
First Amendment retaliation claim is not barred by the Cunningham settlement
agreement but should be dismissed anyway for failing to state a claim. Specifically, I
found that Mr. Bacote did not adequately allege that “but for” his involvement in the
Cunningham case, the retaliatory conduct described in his Fourth Amended Complaint
would not have taken place.
After issuing my Report and Recommendation, I held a Scheduling Conference
and entered a Scheduling Order relating only to Mr. Bacote’s claim for a judicial
determination of his mental health diagnosis. (Dkt. #114.) On motion by both parties, I
later extended the deadline to amend pleadings to May 27, 2020. On April 28, 2020, Mr.
Bacote filed the subject motion to amend. (Dkt. #133.) I had originally set the matter for
argument, but the parties requested I decide the motion on the papers. (Dkt. #145.)
II. THE POSITIONS OF THE PARTIES
a. The Motion to Amend and the Proposed Fifth Amended Complaint
In his motion, Mr. Bacote seeks leave to file a Fifth Amended Complaint. The
proposed Fifth Amended Complaint adds factual allegations that support the Eighth
Amendment, First Amendment, and Rehabilitation Act claims asserted in the Fourth
Amended Complaint. The additional allegations concern, among other things, the
extremely deleterious effects of prolonged solitary confinement on individuals,
particularly those like Mr. Bacote who suffer from SMI and IDD; the singular harshness
of solitary confinement at ADX; Mr. Bacote’s lifelong history of SMI and IDD and how it
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led to and was exacerbated by his early exposure to the criminal justice system; the
BOP’s confinement of Mr. Bacote since 1998 and Mr. Bacote’s deteriorating mental
condition; the circumstances surrounding Mr. Bacote’s 2009 conviction for serving as a
lookout during the murder of another prisoner, after which Mr. Bacote was designated to
ADX; the BOP’s consistent failure to provide Mr. Bacote with meaningful treatment for
his obvious SMI and IDD, which in turn has made it impossible for Mr. Bacote to step
down to less restrictive housing; and the BOP’s retaliation against Mr. Bacote for his
initial participation in the Cunningham litigation and this case. (See generally Dkt. #133-
1.)
The proposed pleading also adds new claims for denial of freedom of association
under the First Amendment for depriving Mr. Bacote of phone and visiting privileges,
and violation of the Administrative Procedure Act (“APA”) related to Mr. Bacote’s
continued designation to ADX. Finally, the Fifth Amended Complaint contains several
additional requests for declarative and injunctive relief.
In support of his motion, Mr. Bacote contends that there has been no undue
delay. He notes that the motion was filed within the deadline to amend pleadings and he
explains his counsel’s diligent efforts in obtaining his voluminous medical and legal
records. Mr. Bacote further argues that the motion was not filed with a dilatory motive or
in bad faith. He points out that his new claims do not merely recast his old ones to avoid
dismissal; instead, the new factual allegations bolster his original claims with additional
facts. Mr. Bacote claims that the BOP cannot show any prejudice, given that the case is
still in the discovery phase which, because of COVID-19, has necessarily been delayed.
Finally, Mr. Bacote states that his proposed amendments are not futile “as the new,
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relevant information added to the complaint supports his claims against Defendant BOP
and shows that Mr. Bacote is entitled to the relief he seeks.” Mr. Bacote maintains his
position that the Cunningham settlement does not bar his claims.
b. The BOP’s Objection
The BOP asks that leave to amend be denied. First, the BOP argues that the
proposed amendment is futile. The BOP states that the two new claims for relief are
barred by the release clause of the settlement agreement approved in the Cunningham
case. Similarly, the BOP insists that the new allegations contained in the Fifth Amended
Complaint merely bolster claims that are already precluded by the terms of the
Cunningham settlement agreement. As to the First Amendment retaliation claim, the
BOP argues that, contrary to my determination in my Report and Recommendation, it is
likewise barred by the Cunningham release because it pertains to the treatment of ADX
inmates’ mental health. Even if it is not barred, the BOP asserts that Mr. Bacote fails to
state a plausible claim for relief.
Second, the BOP requests that the motion be denied on grounds of undue delay
and unfair prejudice. The BOP observes that Mr. Bacote has been given numerous
opportunities to amend, even after he was appointed counsel, and that he is essentially
making his complaint “a moving target.” See Wopsock v. Natchees, 279 F. App’x 679,
689 (10th Cir. 2008). The BOP argues that the new theories of recovery (in addition to
being barred) do not rely on recently discovered evidence and therefore could have
been asserted in the Fourth Amended Complaint. The BOP also claims that it would be
unfairly prejudiced if the motion was granted in light of the new allegations, the
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extensive discovery efforts, and the time and effort invested in moving to dismiss Mr.
Bacote’s Fourth Amended Complaint.
III. LEGAL STANDARD
Rule 15 governs amendments to pleadings generally. See Fed. R. Civ. P. 15.
“Except when an amendment is pleaded as a ‘matter of course,’ as defined by the rule,
‘a party may amend its pleading only with the opposing party’s written consent or with
court’s leave.’” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Fed. R.
Civ. P. 15(a)(2)). The Court “should freely grant leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). The purpose of Rule 15 “is to provide litigants ‘the maximum
opportunity for each claim to be decided on its merits rather than on procedural
niceties.’” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting
Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). Accordingly,
“[r]efusing leave to amend is generally only justified upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to grant leave to amend a
pleading pursuant to Rule 15 is within the Court’s wide discretion. Minter, 451 F.3d at
1204 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971)).
IV. ANALYSIS
Mr. Bacote’s proposed amendments add two new claims, new factual allegations
that support the claims asserted in the Fourth Amended Complaint, and a new theory of
First Amendment retaliation liability. I will address each category in turn.
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a. Mr. Bacote’s Two New Claims for Relief
Mr. Bacote’s proposed fifth claim for relief is for denial of freedom of association
in violation of the First Amendment. He alleges that the BOP, for no legitimate reason,
has deprived him “of all non-legal phone and visiting privileges.” (Dkt. #133-1 ¶ 463.) He
claims that this isolates him from family and friends, especially considering his
functional illiteracy and IDD, which “exacerbates his mental illness and deprives him of
social contact.” (Id. ¶¶ 465–67.)
Mr. Bacote’s sixth claim for relief is for violation of the APA. He alleges that by
designating him to ADX from 2009 to the present, the BOP has acted arbitrarily and
capriciously. (Id. ¶ 471.) Mr. Bacote claims the BOP provided no justification for his
original designation at ADX, which deviated from the recommendation of the trial judge
in his criminal case, or for his continuing designation there, in light of his SMI and IDD
and BOP policy. (Id. ¶¶ 472–80.) Mr. Bacote also alleges that over the course of his
imprisonment in ADX, the BOP has failed to adequately evaluate or treat his mental
health needs and has impeded his ability to transition to less restrictive housing.
Both claims, on their face, pertain to the treatment of an ADX inmate’s (Mr.
Bacote) mental health. Thus, they would appear to be subject to the Cunningham
settlement agreement’s broad legal release. Mr. Bacote, however, counters that the
term period of the settlement expired on December 29, 2019, and therefore these new
claims fall outside scope of the release. As I explained in my Report and
Recommendation, the plaintiff class certified in the Cunningham case encompassed a
Screening Class composed of all those confined at ADX at any time between December
29, 2016 and the last day of the compliance period, which was set to expire on
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December 29, 2019. Most of the complained-of conduct relating to both new claims
occurred before or during this period. To that extent, they are barred and precluded and
any amendment to add them would be futile. See Gohier v. Enright, 186 F.3d 1216,
1218 (10th Cir. 1999) (stating that “[t]he futility question is functionally equivalent to the
question whether a complaint may be dismissed for failure to state a claim”).
To the extent that the proposed claims accrued after the compliance period
ended, permitting Mr. Bacote to amend his complaint to add them at this juncture would
unduly prejudice the BOP. Prejudice most often occurs “when the amended claims arise
out of a subject matter different from what was set forth in the complaint and raise
significant new factual issues.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th
Cir. 2006). When Mr. Bacote initiated this lawsuit in 2017, and when counsel filed the
Fourth Amended Complaint in 2019, the Cunningham settlement agreement was in
effect and Mr. Bacote’s relief was limited to what was set forth in the legal release
provision. The BOP moved to dismiss, in part, because Mr. Bacote was bound by the
settlement agreement. The Court likewise relied on it when making its recommendation.
Discovery has since commenced. Allowing Mr. Bacote to add additional claims on
events that occurred since the Report and Recommendation was issued would set the
litigation, which is already two-and-a-half-years old, back to square one.
In a footnote in his Reply, Mr. Bacote complains,
if this Court concludes that Mr. Bacote’s proposed amendments are futile
on the basis that the claims are barred by Cunningham, Mr. Bacote’s
recourse would seem to be to fashion his Proposed Fifth Amended
Complaint into a fresh complaint and file it in a new action. Doing so would
demand even greater resources from the parties and the court than
permitting his amendment in this action, as Mr. Bacote would have to pay
another filing fee and serve the BOP, and the court would have to engage
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in the screening process, assign new judicial officers, hold a scheduling
conference, etc.
Dkt. #144 at 7 n.2.
I agree that this is Mr. Bacote’s recourse. However, I disagree that such a result
is inefficient or does not serve the interests of justice. Granting Mr. Bacote’s motion
would have consequences that Mr. Bacote presumably wishes to avoid. My Report and
Recommendation would be deemed moot. The BOP would almost inevitably move to
dismiss the Fifth Amended Complaint. That motion would have to be briefed. If referred
to me by Judge Moore, I would have to issue another recommendation, to which the
parties would have the ability to object. Judge Moore would then have to make a final
ruling. Depending on that ruling, discovery would have to be performed, a trial set, etc.
All this could take well over a year.
Conversely, the way the case is now postured, it is very likely that litigation will
proceed, at the very least, towards a judicial determination of Mr. Bacote’s mental
health diagnosis. If the determination is that Mr. Bacote has a SMI, he may well obtain
his sought-after relief—transfer out of ADX. In other words, denying leave amend
positions Mr. Bacote closer to his ultimate goal if he can show that he suffers from a
SMI.
b. Additional Factual Allegations
Many of the additional facts contained in the proposed Fifth Amended Complaint
support claims that I have recommended be dismissed. Adding them would be futile, at
least at this stage in the proceedings.
However, as Mr. Bacote says, many of the proposed amendments are relevant to
the one claim that I recommended proceed—a claim for judicial determination of his
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mental health diagnosis. I am sympathetic to his argument that he should be permitted
to bolster this claim with additional facts. I recognize that in prisoner civil rights cases,
plaintiffs, especially those who proceed pro se, are placed in a difficult position
regarding how much detail to put in their complaints—too many and it can be subject to
rejection for prolixity or for being unintelligible; too few and it will deemed conclusory
and barebones. However, allowing amendment now would unduly delay this case for
the reasons set forth above. Moreover, picking through the 400 plus of paragraphs in
the proposed amended complaint to determine which allegations do and do not support
Mr. Bacote’s claim is not an efficient use of judicial resources.
Finally, Mr. Bacote has another avenue to ensure that all the necessary facts
supporting his claim are part of the case: he can include them in the Final Pretrial Order.
“When an issue is set forth in the pretrial order, it is not necessary to amend previously
filed pleadings because the pretrial order is the controlling document for trial.” Wilson v.
Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (internal quotation marks omitted). The
BOP is on notice of the facts Mr. Bacote believes are relevant to his claim. I will likely
enter the Final Pretrial Order. The parties and the Court can sculpt the order in such a
way that Mr. Bacote’s claim can adequately proceed to trial. This is how the process
should work. An original complaint lays out the Plaintiff’s claims including supporting
facts. If additional facts supportive of a complaint are discovered during the discovery
period, a plaintiff need not amend to include all new additional supporting facts.
Instead, the new facts can be disclosed to the adversary via the supplementation of
disclosure, and to the extent necessary can be included in the final pretrial order.
c. The First Amendment Retaliation Claim
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In his Fourth Amended Complaint, Mr. Bacote alleged that the BOP violated his
First Amendment rights by retaliating against him for his role in being the original named
plaintiff in the Cunningham litigation. (Dkt. #55 at 19–20, ¶¶ 71–75.) I found that he
failed to adequately link the allegedly retaliatory actions to his involvement in the
Cunningham case.
Mr. Bacote now seeks leave to amend this claim to allege that the BOP retaliated
against him for asserting his constitutional right to defend himself during his 2007
criminal case, and for entering a plea agreement to avoid the death penalty in 2009, by
designating him to ADX. (Dkt. #133-1 ¶¶ 451–56.) Any claim relating to Mr. Bacote
being designated to ADX in 2009 is time-barred. See 28 U.S.C. § 2401 (“[E]very civil
action commenced against the United States shall be barred unless the complaint is
filed within six years after the right of action first accrues.”).
The proposed Fifth Amended Complaint also contains additional allegations
concerning BOP retaliation relating to Mr. Bacote’s participation in the Cunningham
case and the instant litigation. (Dkt. #133-1 ¶¶ 365–403.). Some of these allegations
relate to events in February 2011 and are barred by 28 U.S.C. § 2401. Many of the
other allegations suffer from the same defects that I observed in my Report and
Recommendation; specifically, they do not plausibly allege a “but for” connection
between the constitutionally protected act and the retaliatory actions.
However, Mr. Bacote does allege some specific instances of retaliatory conduct.
For example, Mr. Bacote claims that “on November 11, 2012, while passing out food,
Defendant BOP Correction Officer (C.O.) M. McCulloch told Michael that Michael was
not going to eat and “‘fuck your lawyers and lawsuit.’” Id. ¶ 378. However, this allegation
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is not based on newly-discovered evidence, and there is no reason it was not included
in any of the first four complaints.
Mr. Bacote also alleges that the BOP retaliated against for engaging in this
litigation by moving disruptive prisoners next to Mr. Bacote’s cell, removing his personal
possessions without justification, opening his legal mail outside his presence, and
intentionally triggering his SMI in order to discipline him. (Id. ¶¶ 389–403.) I do not wish
to downplay the seriousness of these allegations. If true, they state a claim for relief.
The question is, however, whether they belong in this lawsuit. I conclude they do not.
Mr. Bacote deserves to have his claim for a judicial determination of his mental health
diagnosis decided on its merits in an expeditious fashion. Allowing amendment to
include new allegations based on new facts muddies the waters, unfairly prejudices the
BOP, and unduly delays the proceedings. If he has properly exhausted his
administrative remedies, he may bring a new lawsuit based on the BOP’s conduct over
the last six months.
V. RECOMMENDATION
It is hereby RECOMMENDED that Plaintiff’s Motion for Leave to File Fifth
Amended Complaint (Dkt. #133) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
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and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(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,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Date: August 10, 2020
Denver, Colorado N. Reid Neureiter
United States Magistrate Judge
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