Georgacarakos v. Wiley

PETER GEORGACARAKOS, Plaintiff,

v. WILEY, CRUZ, JAVERNICK, COLLINS, SUDLOW, MADISON, CHURCH, LT. JOHN DOE, HEIM, MARTINEZ, FENLON, PUGH, HOOD, HERSCHBERGER, BUREAU OF PRISONS, DEPT. OF JUSTICE, and UNITED STATES, Defendants.

Civil Action No. 07-cv-01712-MSK-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date: March 16, 2011

Honorable Marcia S. Krieger

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND OVERRULING OBJECTIONS

THIS MATTER comes before the Court pursuant to the Plaintiff's Motion to Alter Judgment (# 820), which seeks reconsideration of certain portions of this Court's March 30, 2010 Opinion and Order (# 810), the Defendants' response (# 825), and the Plaintiff's reply (# 830); the Defendants' Second Motion for Summary Judgment (# 824), the Plaintiff's response (#836), and the Defendants' reply (# 842, as supplemented # 843); the Defendants' Objections (# 844) to the Magistrate Judge's May 27, 2010 Orders (# 840, 841) granting, in part, the Plaintiff's Motion to Compel (# 819), and the Plaintiff's response (# 847); the Plaintiff's Motion to Disallow Irrelevant Evidence (# 845); the Plaintiff's Motion to Disallow Hearsay Evidence (# 846); the Plaintiff's Motion to Remove Nonparties (# 848); and the Plaintiff's Motion to Order the Bureau of Prisons to Collect PLRA Payments Sequentially (# 856), the Defendants' response (# 857), and the Plaintiff's reply (# 860).

FACTS

The Plaintiff is an inmate in the custody of the Federal Bureau of Prisons ("BOP"), housed at the Administrative Maximum ("ADX") facility in Florence, Colorado. He initially asserted a variety of claims, mostly of constitutional magnitude under Bivens, but the Court's Orders on the Defendants' dispositive motions-most notably, the Court's March 30, 2010 Opinion and Order, familiarity with which is assumed-distilled the number of claims currently extant to three: (i) a claim that he was denied Equal Protection, in violation of the 14^th Amendment, when certain Muslim inmates were transferred to a less-restrictive facility and the Plaintiff was not¹; (ii) a claim that the destruction of his allegedly religious property deprived him of substantive or procedural due process, in violation of the 5^th Amendment; and (iii) claims that his expulsion from ADX's "step-down program" (through which inmates may ultimately obtain a transfer to a less-restrictive facility) violated his due process rights and, further, constituted impermissible retaliation against him for his exercise of his First Amendment rights.

The Court's March 30, 2010 Order granted the Defendants leave to submit a motion for summary judgment directed at the latter two groups of claims (destruction of property and expulsion from the step-down program), and the Defendants have done so (# 824). The Court will describe the arguments raised in these motions as part of its analysis.

Separately, the Court referred the outstanding discovery issue affecting the first group of claims to the Magistrate Judge.² The Plaintiff had moved to compel (# 819) the production of the "Control Unit Executive Panel Review" forms, also known as forms "BP-338, " for each of 7 specific inmates for the year 2003. (The Plaintiff contends that the 7 named inmates are the "Muslims" whom, he contends, were involved in the same conduct that resulted in the Plaintiff being sent to the ADX Control Unit, and yet the Muslims were released from the Control Unit earlier than the Plaintiff was because of BOP partiality toward their religion.) The Defendants filed a response (# 826), arguing that: (i) none of the named Defendants had custody of the BP-338 forms; (ii) that BP-338 forms are routinely destroyed annually, and thus, forms from 2003 no longer exist; (iii) three of the seven named inmates were never placed in security classifications similar to the Plaintiff, and thus, requests for those individuals' records were irrelevant; (iv) the remaining four inmates were released from the Control Unit in 2003, and thus, any Equal Protection claim premised on those inmates' release from the Control Unit would be untimely, making those records irrelevant as well; and (v) release of the information sought by the Plaintiff would require an order under the Privacy Act that both permitted therelease of the information and assuaged the BOP's concerns as to potential security concerns that would accompany releasing this information to the Plaintiff.

By Order (# 833) dated May 12, 2010, the Magistrate Judge granted in part the Plaintiff's motion. Turning aside most of the Defendants' arguments, the Magistrate Judge directed that the BOP produce 7 items of information with regard to each of the four named inmates who were actually assigned to the Control Unit: (i) the date the inmate was assigned to the Control Unit; (ii) the basis for the transfer to the Control Unit; (iii) the inmate's total classification score (presumably, at the time the inmate was released from the Control Unit); (iv) the inmate's public safety factors (presumably, at the time of release from the Control Unit); (v) the date the inmate was assigned out of the Control Unit; (vi) the basis for the inmate's transfer out of the Control Unit; and (vii) whether the inmate was transferred to a lower classification status (e.g. to a medium-security institution or lower), as part of the transfer from the Control Unit. The Magistrate Judge scheduled an additional hearing to address any Privacy Act concerns that would arise out of the disclosure of such information.

Prior to that hearing, the BOP submitted a supplemental affidavit (# 838), noting that: (i) the four inmates in question were released from the Control Unit between January and March 2003; (ii) three of the four inmates committed no disciplinary infractions during their time in the Control Unit, one of the four committed one violation of a "200-level" (i.e. serious) disciplinary offense, and the Plaintiff committed 8 disciplinary violations, 5 of which were 200-level, during his own Control Unit time; (iii) no BP-338 forms existed from 2003.

Following colloquy at the scheduled hearing to discuss the Privacy Act concerns, the Magistrate Judge issued a supplemental order (# 841), acknowledging that the 2003 BP-338sappear to have been destroyed, but noting that information about the four Muslim inmates remains relevant. Thus, the Magistrate Judge attempted to craft "a substitute for the BP-338s" that would "recreate the information" that they would have contained. The Magistrate Judge directed that the BOP submit to a deposition on written questions under Fed. R. Civ. P. 31(a)(4), orally addressing, for each inmate, the seven categories of information identified in the May 12, 2010 Order, and two additional categories: (viii) the basis for the inmate's transfer out of USP Florence; and (ix) a "detailed description of all incident reports the inmate received while in the Control Unit of the ADX." The Magistrate Judge noted that the only oral objection that the Defendants had lodged to this process was that they believed the information sought was irrelevant because any Equal Protection claim the Plaintiff could raise in this action based on the release of these inmates from the Control Unit in 2003 would be barred by the statute of limitations. The Magistrate Judge noted that this Court had declined to reach the statute of limitations issue on the Equal Protection claim in its March 30, 2010 Opinion, and the Magistrate Judge was not willing to rule on the substantive issue of the timeliness of any Equal Protection claim in the guise of resolving a discovery dispute.

The Defendants filed timely Objections (# 844) to the Supplemental Order pursuant to Fed. R. Civ. P. 72(a), arguing: (i) the Magistrate Judge abused his discretion in sua sponte modifying the Plaintiff's request for production of the BP-338s, which the Defendants responded to by showing the requested information to be non-existent, to become a request for a deposition of the BOP; (ii) that the proposed deposition is futile, as the Plaintiff is indigent and will not be able to retain the services of a court reporter to record the BOP's answers to the questions, ascontemplated by Rule 31(b)³; and (iii) the material sought is irrelevant, as any Equal Protection claim premised upon the release of the Muslim inmates in 2003 would be barred by the statute of limitations.

ANALYSIS

In considering the Plaintiff's filings, the Court is mindful of his pro se status, and accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve the Plaintiff of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court will treat the Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). In construing the pleadings liberally, the Court will not take on the responsibility of serving as the Plaintiff's attorney, such as constructing arguments and searching the record for evidence in support of the Plaintiff's contentions. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

A. Discovery objections and the Equal Protection claim

To review the general contours of the Equal Protection claim, which is the only claim implicated by the Defendants' discovery Objections, the Court understands the Plaintiff to assertthis claim as part of the Amended Complaint's (# 100) second claim for relief. In that claim, the Plaintiff states that he is an adherent of the Pagan religion. He contends that the Defendants...