The opinion of the court was delivered by: Monti L. Belot United States District Judge
Plaintiff has filed his response to defendants' motion to dismiss (Doc. 38). He has abandoned his official capacity claims against the defendants who have not filed a reply.
The files and records show that counsel, Robert C. Sullivan and Timothy Morgan, represented plaintiff when this case was filed on April 26, 2012. The filing fee was paid. Counsel continued to represent plaintiff until they were permitted to withdraw in January 2013 (Doc. 26). Since that time, plaintiff has proceeded pro se.
Defendants have moved to dismiss on three grounds: (1) Eleventh Amendment immunity from the official capacity claims; (2) statute of limitations as to defendant Hughes; and (3) qualified immunity on the use of excessive force claim against Maddox. Ground (1) is moot. The court first will consider Hughes' statute of limitations defense.
Plaintiff's claim against Hughes allegedly arises out of an incident which occurred on February 15, 2010. Plaintiff seeks to avoid the 2-year limitation by asserting that the administrative grievance process took in "excess of 60 days" but he does not state when his administrative claim was finally denied. All plaintiff provides is an interdepartmental memorandum which purports to show that on May 24, 2011 he agreed to his team manager's request for additional time to respond to his grievance. But he provides no evidence that the administrative grievance even pertained to Hughes.
Plaintiff says he was "unconditionally released from segregation" on May 25, 2011. At that point, if not before, plaintiff had until February 2012 to file his complaint. If plaintiff is attempting to raise equitable tolling as to the untimely claim against Hughes (he does not use that term), his responses fail to show that exceptional circumstances prevented his lawyers from filing a timely claim. The court rejects plaintiff's assertions that prison officials did not provide sufficient stamps and confiscated his legal material. Plaintiff has filed 29 cases in this court and at least 4 cases in state court. These facts, standing alone, belie any suggestion that plaintiff has been denied access to this, or any, court.
Plaintiff next contends that allegations against Hughes "relate back" to another case his lawyers filed in this court. In case no. 11-3073, filed by counsel on December 6, 2011 (Doc. 24), Hughes was named in connection with the February 15, 2010 "dog strap" incident alleged in this case. Many other defendants were sued, as well. By Memorandum and Order of March 28, 2012 (Doc. 33), Judge Julie Robinson dismissed the claims against Hughes, without prejudice, and permitted the filing of an amended complaint. When counsel filed the amended complaint on April 25, 2012 (Doc. 34), the February 15, 2010 incident was not alleged and Hughes was not named as a defendant. The "relation back" provisions of Fed. R. Civ. P. 15(c) do not apply.
Marsh v. Soares, 223 F.3d 1217, 1219-20 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001).
Plaintiff's claims against Hughes are dismissed, with prejudice. Maddox
The court now will consider Maddox's defense of qualified immunity. The complaint, prepared by counsel, alleges the following:
On February 13, 2011 Defendant Maddox attacked Plaintiff while he was lying on the floor face down and on his side.
Plaintiff was naked and spitting blood, because he had been roughed up and pinned down, he was also already shackled at the legs and hands.
Plaintiff tried to twist on his side as opposed to laying still on his stomach to alleviate the severe pain that had already been caused to him at which point Defendant Maddox further kneed Plaintiff in the mouth ...