Gess v. USMS

JOSHUA GESS, Plaintiff, v. USMS and 10TH CIRCUIT DISTRICT COURT, Defendants.

Civil Action No. 20-cv-01790-PAB-STV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

February 5, 2021

Chief Judge Philip A. Brimmer

ORDER

This matter comes before the Court on two orders by United States Magistrate Judge Scott T. Varholak, both entered on December 10, 2020. In the first, Docket No. 102, the magistrate judge recommends granting defendants' Motion for Summary Judgment [Docket No. 58] and denying as moot several other motions of plaintiff. Docket No. 102 at 51. In the second order, Docket No. 101, the m agistrate judge denied plaintiff's requests for appointment of pro bono counsel [Docket Nos. 7, 62, 64], Motion Requesting an Independent Investigation by the FBI and DOJ [Docket No. 70], Motion to Appoint Special Counsel [Docket No. 77], and Motion for Order to Show Cause [Docket No. 98]. Docket No. 101. Plaintiff filed a timely objection¹ to both ordersand defendants filed a response. Docket Nos. 103, 104. The Court must construe plaintiff's filing liberally because he is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court should not act as a pro se litigant's advocate. Hall, 935 F.2d at 1110.

I. BACKGROUND²

This cases arises out of plaintiff's pretrial detention at the Federal Detention Center ("FDC") in Englewood, Colorado. See Docket No. 5 at 4.

A. Criminal Case

On December 5, 2019, plaintiff was indicted on charges of (1) possession of a firearm and ammunition by a felon; (2) possession with intent to distribute 50 grams or more of methamphetamine (mixture); and (3) possession of a firearm in furtherance of a drug trafficking crime. United States v. Gess, No. 19-cr-00507-PAB-STV, Docket No. 1 at 1-2.³ On December 9, 2019, plaintiff was arrested. Id., Docket No. 4. On December 13, 2019, the magistrate judge ordered him detained. Id., Docket No. 11. Plaintiff did not contest detention, but reserved the argument if circumstances changed. Id., Docket No. 10. On January 23, 2020, the grand jury returned a superseding indictment charging plaintiff with (1) possession of a firearm and ammunition by a felon; (2) possession with intent to distribute 5 grams and more of methamphetamine (actual); and (3) possession of a firearm in furtherance of a drug trafficking crime. Id., DocketNo. 86. On April 22, 2020, plaintiff, through counsel, filed a motion for reconsideration of his pretrial detention order. Id., Docket No. 152. Plaintiff filed additional supplements to the motion pro se and through counsel. See id., Docket No. 195 at 3-6 (describing supplements and pro se letters filed). On August 19, 2020, the magistrate judge denied the motion for reconsideration and declined to hold a detention hearing. Id. at 11. On September 30, 2020, plaintiff filed a pro se notice of appeal of the denial of the motion for reconsideration in the Tenth Circuit Court of Appeals. Id., Docket No. 225. On December 29, 2020, plaintiff pled guilty to count one of the superseding indictment. Id., Docket No. 265. On January 11, 2021, the Tenth Circuit denied plaintiff's appeal as moot in light of his guilty plea. Gess, No. 19-cr-00507-PAB-STV, Docket No. 273.

B. Habeas Case

On June 10, 2020, plaintiff filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Gess v. 10th Circuit Dist. Ct. of Colo., No. 20-cv-01787-PAB, Docket No. 1. Plaintiff argued that his constitutional rights were being violated because he was denied a detention hearing. Id. On June 23, 2020, plaintiff filed an amended petition seeking immediate release due to the allegedly inadequate COVID-19 procedures at the FDC and plaintiff's elevated risks of a severe outcome were he to contract COVID-19 due to his medical conditions. Id., Docket No. 7. On July 8, 2020, the Court dismissed the action because plaintiff's claim attacked the conditions of confinement and § 2241 was not the proper vehicle for such a claim. Id., Docket No. 10 at 2.

C. Case No. 20-cv-01790

On July 1, 2020, plaintiff filed the instant case bringing claims against the USMS and the 10th Circuit District Court⁴ ("District Court") asserting violations of his Fifth, Eighth, and Fourteenth Amendment rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Docket No. 5. Plaintiff's complaint explains his medical issues and describes the COVID-19 situation at the FDC. Id. at 4-6. The complaint seeks an emergency hearing and immediate release on pretrial detention. Id. at 6.

On July 1, 2020, plaintiff filed a motion for emergency hearing by telephone or video, Docket No. 7, which the magistrate judge construed as a motion for preliminary injunction. Docket No. 102 at 7. On August 27, 2020, defendants filed a motion to dismiss and a motion for summary judgment. Docket Nos. 56, 58. On the same day, plaintiff filed two additional motions seeking immediate release and a hearing. Docket Nos. 61, 62. On August 31, 2020, plaintiff filed his first motion to amend, Docket No. 64, and on September 16, 2020, plaintiff filed a second motion to amend. Docket No. 71. Also on September 16, 2020, plaintiff filed a motion for a temporary restraining order to prevent the Assistant U.S. Attorneys ("AUSAs") from prosecuting the criminal case against him. Docket No. 69. On September 17, 2020, plaintiff filed a motion for a change of venue. Docket No. 78. On October 21, 2020, plaintiff filed a petition for order for pro se access to the law library for adequate periods of time. Docket No. 89. The magistrate judge granted defendants an extension of time to respond to the motionfor access to the law library until such time as the magistrate judge set a new deadline to respond, if necessary. Docket No. 95. Plaintiff objected to this order. Docket No. 97.

On December 10, 2020, the magistrate judge entered an order which, inter alia, denied plaintiff's requests for the appointment of pro bono counsel. Docket No. 101. Also on December 10, 2020, the magistrate judge filed a recommendation [Docket No. 102 at 51] that this Court grant defendants' motion for summary judgment, Docket No. 58, and deny as moot the defendants' motion to dismiss, Docket No. 56, plaintiff's motions for preliminary injunction, Docket Nos. 7, 61, 62, plaintiff's motions to amend, Docket Nos. 64, 71, plaintiff's motions for a temporary restraining order, Docket Nos. 69, 89, and plaintiff's motion to change venue. Docket No. 78. The recommendation indicates that, if the Court does not grant the motion for summary judgment, the magistrate judge recommends (a) granting the motion to dismiss to the extent it seeks dismissal of the District Court on the basis of sovereign immunity and to the extent it seeks dismissal of plaintiff's claims against USMS as barred by the PLRA and (b) denying the remaining motions on the merits. Id. Plaintiff objects to portions of the magistrate judge's December 10, 2020 order and recommendation. Docket No. 103.

II. ANALYSIS

A. Mootness

1. Motions

Plaintiff's guilty plea has rendered moot many of the motions in this case. Plaintiff filed three motions for a preliminary injunction seeking an emergency hearingand immediate release from pretrial detention. Gess v. USMS, No. 20-cv-01790-PAB-STV, Docket No. 7 at 1; Docket No. 61 at 1; Docket No. 62 at 2. Plaintiff argues that his medical conditions place him at a heightened risk if he contracts COVID-19. See id. Plaintiff is no longer a pretrial detainee, and thus his motions for pretrial release are moot.

Plaintiff filed a motion for a temporary restraining order ("TRO") to prevent AUSAs Kelly Rose Churnet ("Ms. Churnet") and Edwin Garreth Winstead, III (Mr. Winstead") from "proceeding in this [case] and criminal matter 19cr507." Docket No. 69 at 1. Plaintiff has pled guilty in the criminal case, rendering moot his motion to stop the prosecution.⁵

Plaintiff filed a motion to change venue because his suit against the district court creates a conflict of interest and Ms. Churnet and Mr. Winstead improperly conditioned a plea bargain in plaintiff's criminal case on plaintiff dismissing this civil case. Docket No. 78 at 1. The plea agreement in plaintiff's criminal case did not contain a requirement that Mr. Gess dismiss this civil case, rendering moot this portion of his venue motion. See Gess, No. 19-cr-00507-PAB-STV, Docket No. 266.

Plaintiff filed a TRO for access to the law library. USMS, No. 20-cv-01790-PAB-STV, Docket No. 89 at 1. He alleges that there are only two terminals providing access to legal resources, but that these terminals are also used for other inmate services. Id. As such, he cannot get access to them for adequate periods of time. Id. Additionally, plaintiff claims that the terminals are placed close together, preventing social distancing. Id. The magistrate judge recommends denying the motion.⁶ Docket No. 102 at 47. Plaintiff's guilty plea does not render this motion moot.

Defendants filed a motion for summary judgment based on plaintiffs failure to exhaust his administrative remedies. Docket No. 58. The magistrate judge recommends granting it. Docket No. 102. This motion is not mooted by plaintiff's guilty plea because, while this case remains active, plaintiff has brought suit against defendants and they are entitled to file a motion for summary judgment.

2. Mootness of the Case

The next issue is whether Mr. Gess's plea of guilty has rendered his claim for relief moot. "Under Article III of the Constitution [federal courts] may only adjudicate actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988); see also Wiley v. Nat'l Collegiate Athletic Ass'n, 612 F.2d 473, 475 (10th Cir. 1979) (noting that mootness "has its constitutional origin in the 'case or controversy' limitation of Article III"). In determining whether a claim is moot, "[t]he crucial question is whether grantinga present determination of the...