Jones v. Brown et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-01792-CNS-STV
BERNARD JONES,
Plaintiff,
v.
YVETTE BROWN, and
KRISTI MOORE,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Partial Motion to Dismiss
Amended Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(the “Motion”) [#93] which has been referred to the Court [#95]. This Court has carefully
considered the Motion and related briefing, the entire case file, and the applicable case
law, and has determined that oral argument would not materially assist in the disposition
of the instant Motion. For the following reasons, the Court respectfully RECOMMENDS
that the Motion be DENIED.
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I. 	FACTUAL BACKGROUND1
Plaintiff is an inmate currently residing at the Arkansas Valley Correctional
Facility (“AVCF”). 	[#88 at 2] 	Plaintiff is currently serving a ninety-six year prison
sentence on a controlled substance conviction and a sixty-four year prison sentence on
a sexual assault conviction and sentence imposed by the District Court for El Paso
County, Colorado (the “El Paso County Case”). 	[Jones v. Archuleta, No. 16-cv-03048-
PAB (the “3048 Case”), #54 at 2; see also 3048 Case, #10-12 at 2] 	On December 12,
2016, Plaintiff filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (the “Application”) in this district challenging his convictions in the El Paso
County Case. 	[3048 Case, #1] 	On April 26, 2018, United States District Court Judge
Philip A. Brimmer issued an order denying the Application. [3048 Case, #54]
On June 8, 2018, Plaintiff appealed Judge Brimmer’s order. 	[3048 Case, #64;
Jones v. Archuleta, No. 18-1228 (the “1228 Appeal”)] 	On December 17, 2018, the
Tenth 	Circuit 	issued 	an 	opinion 	denying 	Plaintiff’s 	certificate 	of 	appealability 	and
dismissing 	the 	appeal. 	[1228 	Appeal] 	On 	February 18, 	2019, 	Plaintiff 	filed 	an
application to extend the time to file a petition for writ of certiorari with the United States
Supreme Court.2 [Jones v. Archuleta, No. 18A1047 (the “18A1047 Certiorari Petition”)]
1 The facts are drawn from the allegations in the Amended Complaint (the “Complaint”)
[#88], which must be taken as true when considering a motion to dismiss. 	See Wilson
v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d
1152, 1162 (10th Cir. 2011)). 	The Court also cites directly to certain filings that are
accessible from other federal court dockets. 	Bunn v. Perdue, 966 F.3d 1094, 1096 n.4
(10th Cir. 2020) (recognizing that a court may take judicial notice of docket information
from another court). 	Because the Motion only seeks to dismiss Plaintiff’s denial of
access to courts claim, the Court limits its recitation of facts to those relevant to that
claim.
2 According to the Complaint, on March 8, 2019, Plaintiff filed a petition for writ of
certiorari with the Supreme Court, but the Supreme Court returned the petition to
Plaintiff due to numerous deficiencies. 	[#88, ¶¶ 13-14] 	The Supreme Court’s docket
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On April 10, 2019, Justice Sonia Sotomayor granted that application and extended
Plaintiff’s time to file a petition for writ of certiorari until May 16, 2019. [Id.]
During the time that Plaintiff was preparing his Supreme Court petition he was
located at the Fremont Correctional Facility (“FCF”). 	[See #88 at 2, ¶ 17] 	According to
the Complaint, Plaintiff explained to Defendant Yvette Brown, the legal assistant at FCF,
that he needed to complete his petition by the May 16 deadline provided by the
Supreme Court.3 [Id. at 2, ¶¶ 17, 26] Nonetheless, Defendant Brown limited Plaintiff to
two-hour sessions at the prison law library and did not assist Plaintiff in the preparation
of his legal documents. 	[Id. at ¶¶ 18-19, 25, 35, 41] 	She did this despite having the
authority to schedule Plaintiff for both morning and afternoon law library sessions. 	[Id.
at ¶ 36]
Plaintiff 	alleges 	that 	Defendant 	Brown 	is 	not 	a 	“trained 	and 	credentialed
paralegal” and that, despite the fact that the FCF does not provide an attorney to assist
inmates with their legal documents, she prohibited inmate law library clerks from
assisting other inmates in preparing legal documents. 	[Id. at ¶¶ 32, 40, 42-44] 	Plaintiff
was thus “completely dependent on another [inmate]” for help and that inmate had
never before prepared a petition for writ of certiorari to the Supreme Court. [Id. at ¶ 20]
Moreover, the computer in the law library did not contain samples of other Supreme
Court petitions that Plaintiff could have used in preparing his petition. [Id. at ¶ 45]
Plaintiff further alleges that Defendant Brown informed Plaintiff that “there were
no Federal Rules available in the [l]aw [l]ibrary that specifically described how to
does not reflect either of those filings. 	[18A1047 Certiorari Petition] 	This discrepancy
does not impact the Court’s analysis of the instant Motion.
3 Plaintiff attempted to seek a further extension of time from the Supreme Court, but that
request was denied. [Id. at ¶¶ 18, 24] Plaintiff informed Defendant Brown of that denial.
[Id. at ¶ 25]
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prepare the [p]etition to the U.S. Supreme Court.” [Id. at ¶ 20 (emphasis omitted)] This
statement was not true. 	[Id. at ¶ 22] 	As a result, Plaintiff was forced to write to the
Supreme Court to get a copy of its rules and procedures. [Id.]
By May 15, 2019, Plaintiff was “near the completion” of his petition. 	[Id. at ¶ 27]
That day, Defendant Brown closed the prison’s law library early, even though she knew
Plaintiff had been using the computer inside the law library to prepare his petition. 	[Id.]
Because Plaintiff had informed Defendant Brown on multiple occasions of his May 16
deadline, he asked her if he could attend the afternoon session to complete his petition.
[Id. at ¶ 28] 	Defendant Brown denied this request but informed Plaintiff that he could
complete his petition the very next day as she had scheduled him a law library
appointment for May 16. 	[Id.] 	Nonetheless, on May 16, the deadline for Plaintiff to file
his petition, Defendant Brown refused to open the prison library. 	[Id. at ¶ 29] 	Plaintiff
asked his housing officer to ask Defendant Brown to allow Plaintiff to go to the law
library to complete his petition because his petition needed to be filed that day, yet
Defendant Brown still refused to allow Plaintiff access to the law library. [Id. at ¶ 30] As
a result, Plaintiff could not complete and print off his petition, and he missed the
deadline for filing his petition. [Id. at ¶¶ 31-33]
Had Plaintiff been able to timely file his petition, he would have brought two
challenges to his convictions in the El Paso County Case. 	[Id. at ¶¶ 37-38] 	First, he
would have presented the question: “Whether the federal courts erred by denying [an]
ineffective assistance of counsel claim when [the] state courts fail to provide a petitioner
with a constitutionally adequate opportunity to present evidence that was outside of the
record?” [Id. at ¶ 37] Second, he would have presented the question: “Whether federal
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courts erred by denying [an] ineffective assistance of counsel claim based on a conflict
of interest as [Plaintiff] was denied [the] opportunity to properly weigh his right to testify
at trial?” [Id. at ¶ 38]
Plaintiff 	initiated 	this 	action 	on 	June 	30, 	2021. 	[#1] 	Plaintiff’s 	Amended
Complaint, brought pursuant to 42 U.S.C. § 1983, asserts two claims: 	(1) denial of
meaningful access to the courts by Defendant Brown (Count One), and (2) unlawful
retaliation against Plaintiff for his filing of grievances by Defendants Brown and Moore
(Count Two). 	[Id.] 	On August 29, 2022, Defendants filed the instant Motion seeking to
dismiss Count One. [#93] Plaintiff has responded to the Motion [#111] and Defendants
have replied [#122].
II. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” 	In deciding a motion
under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . .
and view these allegations in the light most favorable to the plaintiff.” 	Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 	Plausibility
refers “to the scope of the allegations in a complaint: if they are so general that they
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encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged 	their 	claims 	across the 	line from conceivable 	to plausible.’” 	Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).
“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.” 	Id. (quoting Twombly, 550 U.S. at
556). 	The ultimate duty of the court is to “determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” 	Forest Guardians v. Forsgren, 478 F.3d 1149, 1160
(10th Cir. 2007).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
“The Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3.
The Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
III. 	ANALYSIS
Defendants argue that Plaintiff has failed to plausibly plead an access to courts
claim. 	[#93] 	The right of access to the courts does not guarantee access to a law
library or to legal assistance, but rather establishes the right to “the means for ensuring
a 	reasonably 	adequate 	opportunity 	to 	present 	claimed 	violations 	of 	fundamental
constitutional rights to the courts.”4 	Lewis v. Casey, 518 U.S. 343, 350-51 (1996)
4 To state a denial of right of access claim, in addition to showing a denial of access to
the courts, a plaintiff must also “demonstrate actual injury from interference with his
access to the courts—that is, that the [plaintiff] was frustrated or impeded in his efforts
to 	pursue 	a 	nonfrivolous 	legal 	claim 	concerning 	his 	conviction 	or 	conditions 	of
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(quotation omitted). 	Thus, the right of access to the courts “guarantees no particular
methodology 	but 	rather 	the 	conferral 	of 	a 	capability—the 	capability 	of 	bringing
contemplated challenges to sentences or conditions of confinement before the courts.”
Id. at 356.
Here, liberally construed, Plaintiff alleges that he was denied meaningful access
to the courts because Defendant Brown: (1) refused to help Plaintiff with his petition
and, in any event, was not qualified to help him with his petition, and did not allow prison
law clerks to assist him despite the fact that the prison did not provide an attorney for
assistance and the computer did not have sample petitions for review, (2) wrongfully
told Plaintiff that there were no federal rules available in the law library, thus requiring
Plaintiff to obtain a copy of the rules from the Supreme Court, (3) only allowed Plaintiff
two hours per day in the law library, (4) closed the law library early the day before she
knew Plaintiff’s petition for writ of certiorari was due, and (5) did not reopen the law
library on the day she knew Plaintiff’s petition was due. [#1, ¶¶ 20-25]
The Court agrees with Defendant that many of these allegations do not support a
denial of access claim. 	The fact that Defendant Brown refused to assist Plaintiff in
preparing his legal documents, standing alone, does not establish a denial of access to
confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis, 518
U.S. at 351-55). 	“The plaintiff ‘need not show,’ however, that he or she would have
prevailed on the interfered-with claim, ‘only that it was not frivolous.’” 	Leek v. Androski,
No. 21-3165, 2022 WL 1134967, at *3 (10th Cir. Apr. 18, 2022) (unpublished) (quoting
Simkins v. Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005)). 	“To be nonfrivolous, the
plaintiff’s 	underlying 	claim must be 	‘described 	well 	enough 	. . . 	to 	show 	that 	the
“arguable” nature of the underlying claim is more than hope.’” Leek, 2022 WL 1134967,
at 	*3 	(quoting 	Christopher 	v. 	Harbury, 	536 	U.S. 	403, 	416 	(2002)). 	“Conclusory
allegations of injury in this respect will not suffice.” 	Wardell v. Duncan, 470 F.3d 954,
959 (10th Cir. 2006)) (citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999)).
Defendants have not challenged this prong of Plaintiff’s access to courts claim [#93],
and the Court therefore does not address whether Plaintiff’s petition would have raised
non-frivolous claims.
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the courts claim. 	Lewis, 518 U.S. at 350-51 (describing that no independent right to
legal assistance exists); Leek v. Androski, No. 21-3165, 2022 WL 1134967, at *3 (10th
Cir. Apr. 18, 2022) (same) (unpublished). 	With respect to the two-hour limitation,
Plaintiff fails to allege any facts that plausibly explain how this two-hour daily limitation
“hindered his efforts to pursue a legal claim.” 	Lewis, 518 U.S. at 351. 	Indeed,
elsewhere in the Complaint Plaintiff alleges that his petition was “near . . . completion”
the day before the petition was due. 	[#88 at ¶ 27] 	And the Tenth Circuit has made
clear that “[p]risoners are not entitled to unlimited access to the law library” and has
affirmed the dismissal of an access to courts claim in which the inmate was only allowed
two hours per week in the law library. 	White v. Gregory, 87 F.3d 429, 430 (10th Cir.
1996). Similarly, with respect to Defendant Brown wrongfully telling Plaintiff that the law
library did not have a copy of the Supreme Court’s rules, Plaintiff was ultimately able to
obtain a copy of those rules and, again, alleges that his petition was “near . . .
completion” the day before the petition was due. [#88 at ¶ 27] Thus, Plaintiff has failed
to plausibly allege that Defendant Brown’s statement “hindered [Plaintiff’s] efforts to
pursue a legal claim.” Lewis, 518 U.S. at 351.
Plaintiff’s allegations that Defendant Brown closed the law library early the day
before Plaintiff’s petition was due and then did not reopen it until after the filing deadline
had passed, however, adequately alleges a denial of access to the courts claim.
Plaintiff alleges that he had informed Defendant Brown of the May 16 deadline on
numerous occasions. 	[#88 at ¶ 28] 	He further alleges that he reminded Defendant
Brown that he needed to complete the petition when she closed the law library early on
May 15, and she assured him that he would be able to use the law library the next day.
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[Id.] 	Nonetheless, Defendant Brown refused to open the law library on May 16, despite
being reminded of Plaintiff’s deadline by Plaintiff’s housing officer. 	[Id. at ¶¶ 29-30]
Because Plaintiff was unable to access his petition which was on the computer in the
law library, he was unable to timely file the petition with the Supreme Court. 	[Id. at
¶¶ 28-30] 	The Court concludes that through these assertions Plaintiff has plausibly
alleged 	that 	Defendant 	Brown 	interfered 	with 	Plaintiff’s 	ability 	to 	“bring[] 	[a]
contemplated challenge[] to [his El Paso County Case] sentence[].” 	Lewis, 518 U.S. at
356; cf. Howard v. Webster, 339 F. App’x 616, 618 (7th Cir. 2009) (plaintiff did not
plausibly allege an access to courts claim where he alleged that the law librarian
unexpectedly closed the law library for ten days seven days before plaintiff’s petition
was due and plaintiff’s petition was on a disc in the law library, but plaintiff did not allege
that he asked anyone for access to the disc or even that anyone knew that plaintiff had
not finished his petition or that the disc with the petition was locked in the library).
In their Motion, Defendants barely address the allegations concerning Defendant
Jones’ actions on May 15 and 16.5 	[##93 at 11-12; 122 at 9] 	Indeed, the only
substantive analysis of Defendant Jones’ actions on May 15 and 16 involves the
statements that: (1) “[e]ven considering the two-day law library closure in the final days
prior to his deadline, the most conservative estimates show that [Plaintiff] spent a
substantial amount of time in the law library, during which he had access to computer
resources for legal research” [#93 at 11]; and (2) “these allegations [concerning the
library closing] cannot support a plausible denial of meaningful access to courts claim
standing alone because the Amended Complaint shows the full scope of [Plaintiff’s]
5 Defendants state that Plaintiff “acknowledges that he could have prepared his writ of
certiorari outside of the . . . law library,” but the portions of the Complaint they cite do
not contain any such acknowledgment. [#93 at 8 (citing #88 at ¶¶ 21, 27)]
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legal access at FCF [and] negate[s] any plausible inference of causation” [#122 at 9].
But these statements ignore the fact that Defendant Brown denied Plaintiff access to the
law library the day the petition was due, despite knowing that the petition was unfinished
and saved on a computer inside the law library, thereby prohibiting Plaintiff from filing
the petition (i.e., causation). 	And while it is true that Plaintiff may have had sufficient
time—including time in the law library—to have completed his petition prior to the May
16 deadline, nobody informed him that he would need to complete it early or that the
law library would be closed on May 16. 	Indeed, on May 15, Plaintiff was told that he
would be permitted access to the law library the next day [#88 at ¶ 28], and thus he
would have had no reason to try to print out his petition and finish it by hand. 	cf.
Howard, 339 F. App’x at 618 (relying, in part, on fact that prisoner could have asked for
the disc containing a draft of the petition and “put pen to paper” in the seven days
between the library closure and the deadline to file the petition). 	Accordingly, because
Plaintiff has plausibly alleged that Defendant Brown knowingly denied Plaintiff access to
his petition the day the petition was due, and that Plaintiff thereby missed the deadline
to file his petition, the Court respectfully RECOMMENDS that the Motion be DENIED.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	this 	Court 	respectfully 	RECOMMENDS 	that
Defendants’ Partial Motion to Dismiss Amended Complaint Pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (the “Motion”) [#93] be DENIED.6
6 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection
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DATED: December 2, 2022 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
for de novo review. 	“[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 East 30th
Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar
de novo review by the district judge of the magistrate judge’s proposed findings of fact,
legal conclusions, and recommendations and will result in a waiver of the right to appeal
from a judgment of the district court based on the proposed findings of fact, legal
conclusions, and recommendations of the magistrate judge. 	See Vega v. Suthers, 195
F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court’s decision to review
magistrate judge’s recommendation de novo despite lack of an objection does not
preclude application of “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal
Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant
waived right to appeal certain portions of magistrate judge’s order by failing to object to
those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding
that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file
objections). 	But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005)
(holding that firm waiver rule does not apply when the interests of justice require
review).
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