Vreeland v. Jacobson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-02420-PAB-KAS
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
ADRIENNE JACOBSON, Litigation Coordinator, Colorado Department of Corrections,
and
JAY KIRBY, former Inspector General, Colorado Department of Corrections,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion to Schedule a Hearing to
Address Violations of Administrative Closure Agreement [#163]1 (the “Motion”).
Defendants filed a Response [#165] in opposition to the Motion [#163], and Plaintiff filed
a 	Reply 	[#166]. 	The 	Motion 	[#163] 	has 	been 	referred 	to 	the 	undersigned 	for 	a
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and
D.C.COLO.LCivR 72.1(c)(3). See [#167]. The Court has reviewed the briefs, the entire
case file, and the applicable law. For the reasons stated below, the Court respectfully
RECOMMENDS that the Motion [#163] be DENIED.
By way of background, on February 16, 2024, the Court held a Status Conference.
Minutes [#159]. At the hearing, the parties agreed that they had reached a resolution of
1 “[#163]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
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this case. Plaintiff, who proceeds as an incarcerated pro se litigant,2 wanted to focus on
his other lawsuits and was not interested in actively litigating this case, absent a change
in his current housing placement at the Colorado Territorial Correctional Facility (“CTCF”).
The parties and the Colorado Department of Corrections therefore stipulated that this
case be administratively closed for 12 months from February 16, 2024. They further
stipulated that Plaintiff could file a written motion to reopen this case no later than
February 16, 2025, if transferred from CTCF to a different facility. They further stipulated
that, if no such motion were filed by February 16, 2025, this case could be dismissed with
prejudice by the Court, with no further action required from any party.
In relevant part, D.C.COLO.LCivR 41.2 provides that “[a] district judge . . . may
order the clerk to close a civil action administratively subject to reopening for good cause.”
After having reviewed the entire docket, the Court found that this case was well-suited for
administrative closure in accordance with the stipulations discussed at the February 16,
2024 Status Conference. Accordingly, the undersigned recommended that this case be
administratively closed pursuant to D.C.COLO.LCivR 41.2, subject to reopening for good
cause by written motion filed no later than February 16, 2025. Recommendation [#160].
No 	objections 	were 	filed 	to 	this 	Recommendation 	[#160], 	and 	the 	Chief 	Judge
subsequently adopted it and administratively closed the case. Order [#161].
The present Motion [#163] was filed on July 3, 2024, less than four months after
the case was administratively closed. Therein, Plaintiff asks the Court to schedule a
hearing to address violations of the parties’ agreement, specifically “so that reopening this
2 The Court must liberally construe the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor
“construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175
(10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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matter, and other matters relevant to this case can be addressed.” Motion [#163] at 4.
Plaintiff does not assert that he has been transferred from CTCF or even that he has been
threatened with transfer. Plaintiff further notes that he “is not making any complaints about
his living conditions at CTCF, this is not about CTCF. CTCF is in fact the safest place
Plaintiff can be housed at, period, and the only place where he receives the medical care
he requires.” Reply [#166] at 4.
Rather, Plaintiff asserts that the spirit of the parties’ agreement has been violated,
stating: “The essence and very nature and spirit of the agreement, however, was that
Plaintiff would be left alone, no transfers, no harassment, and be allowed to continue
working on his post conviction with counsel and legal assistant via Zoom as he was
doing.” Reply [#166] at 5. Plaintiff states that the 12-month period in the agreement was
chosen “by Plaintiff’s counsel [for his post conviction work] as he asserted it should only
take that long to get Plaintiff released as long as state actors did not impede litigation.”
Id. Plaintiff asserts that “Defendant Jacobson, and other State actors, however, in effort
to harm Plaintiff, . . . ended Zoom privileged legal video visits, deny Plaintiff any form of
privileged communication with counsel at all, and used this fantasy about running a
business via Zoom as an excuse.” Id.
The parties both thoroughly discuss these issues in their briefs, with the two sides
diametrically opposed as to the causation and propriety of the actions purportedly taken
against Plaintiff at CTCF. However, after review of the audio recording of the parties’
agreement finalized at the February 16, 2024 Status Conference, the Court finds this
discussion to be immaterial to resolution of the Motion [#163]. Prior to the hearing, the
parties had formalized their agreement over email. Defendants’ counsel read the entirety
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of that email aloud on the record, and Plaintiff explicitly acceded to the correctness of
counsel’s recitation, stating that he had a copy of the email in front of him and had followed
along. Plaintiff stated that he wanted to focus on his other litigation, but the parties made
no explicit agreement beyond the fact that Plaintiff would be able to reopen this lawsuit
by February 16, 2025, if transferred from CTCF during that one-year period. There were
no conditions, and Plaintiff did not explicitly ask for any, as to conduct by Defendants or
other CTCF employees regarding any other aspect of Plaintiff’s incarceration, including
communications with counsel in his other litigation. The Court also emphasizes that the
material portions of the agreement were stated in the Court’s Recommendation [#160],
and Plaintiff did not file an objection to the terms as laid out by the Court.3
Here, Plaintiff has not made even a prima facie showing that the parties’
agreement has been violated, i.e., that he has been transferred from CTCF or even
threatened with transfer, and therefore the Court finds that he has failed to demonstrate
good cause to reopen this case. To the extent Plaintiff believes he has been legally
harmed by CTCF’s purported actions, he may pursue his remedies in forums other than
in this lawsuit.
Accordingly, 	the 	Court 	recommends 	that 	Plaintiff’s 	Motion 	[#163], 	whether
construed as a request for a hearing or a request to reopen his case, be DENIED.
3 As the parties discuss in their briefs, they agreed on the record at the February 16, 2024 Status
Conference that they did not want certain portions of the agreement to be explicitly stated in court
documents, although no request was made to formally restrict all or part of the hearing. Again,
the Court has listened to the audio recording of this hearing—twice—and has determined that no
other part of the parties’ agreement, as stipulated in their email, impacts resolution of the present
Motion [#163]. Either party may request a transcript of this hearing if they so choose, as provided
in the Minutes [#159] of that hearing.
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IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
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. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: January 16, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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