Edmond v. Raemisch ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 18, 2014
Elisabeth A. Shumaker
Clerk of Court
MICHAEL SEAN EDMOND,
Plaintiff - Appellant,
v. No. 13-1514
(D.C. No. 1:11-CV-00248-RBJ-KLM)
RICK RAEMISCH, ALLISON (D. Colo.)
SWEENEY-HOOVER; TIM HAND;
ANTHONY YOUNG; JAMES MEYER;
BIJOU TREATMENT & TRAINING
INSTITUTE; COLORADO BOARD OF
PAROLE,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.
Michael Sean Edmond, proceeding pro se, appeals from the district court’s
judgment against him in his civil rights suit under 42 U.S.C. § 1983 and its denial of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his post-judgment motion under Fed. R. Civ. P. 59 and 60(b). Exercising jurisdiction
under 28 U.S.C. §1291, we affirm.
Background
Mr. Edmond was convicted of a Colorado felony offense and sentenced to ten
years in prison plus five years mandatory parole. He was also convicted of a
Colorado misdemeanor sex offense and sentenced to one year of imprisonment, to be
served concurrently to the ten-year sentence.
He was paroled on January 14, 2010, under a parole agreement that required
him to participate in sex offender treatment and restricted him from any contact with
anyone under the age of 18, including his own children. His parole officer referred
him to Bijou Treatment & Training Institute (BTTI) for treatment. But he was
discharged from BTTI’s program and his parole was revoked in the summer of 2010.
He was again paroled on September 21, 2010, under a second parole agreement,
which also had the treatment and no-contact provisions, and he was readmitted into
BTTI’s program.
While under the restrictions in the second agreement, Mr. Edmond filed this
lawsuit, raising two issues relevant to this appeal. First, he alleged that the
defendants violated his constitutional rights by imposing the treatment and
child-restriction parole conditions without first providing him a sex offender specific
evaluation, including a Parental Risk Assessment (PRA). Second, he alleged that
pursuant to Colorado statute, he was entitled to a payment of $100 upon release to
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parole in 2010. With regard to this claim, he sought an award of $89.50 (the $100
release payment less $10.50 that he had to pay for an identity card) from the
executive director of the Colorado Department of Corrections (CDOC).
The district court dismissed numerous claims under Fed. R. Civ. P. 12(b)(1)
and 12(b)(6), including all of the claims against BTTI and its executive director and
most of the claims against the CDOC defendants. But the court allowed one claim to
proceed against certain CDOC defendants: that Mr. Edmond’s constitutional right to
due process was violated when he was required to participate in sex offense treatment
and precluded from contact with his children, without having been given a sex
offense specific evaluation and PRA. As to this claim, Mr. Edmond had requested
declaratory and injunctive relief.
During the litigation, Mr. Edmond’s parole again was revoked. In the summer
of 2012 he was incarcerated, and then on November 1, 2012, he was returned to
parole under the terms of a third parole agreement. The third parole agreement did
not originally require sex offender treatment, but later was modified to include such
treatment as a condition of parole. Like the earlier parole agreements, the third
agreement also prohibited Mr. Edmond from contact with children.
In the summer of 2013, the magistrate judge noted that Mr. Edmond’s
complaint focused on his second parole agreement, which had been superseded by the
third parole agreement. Because Mr. Edmond sought only declaratory and injunctive
relief, but was no longer subject to the second parole agreement, she ordered him to
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show cause why his due process claims should not be dismissed as moot. After he
responded, she recommended that the district court dismiss the claims as moot; the
district court agreed and dismissed the due process claims and the action without
prejudice for lack of subject matter jurisdiction. It later denied his post-judgment
motions to amend his complaint and for reconsideration under Rules 59 and 60(b).
The latter motion indicated that Mr. Edmond’s parole had been revoked again in
2013, and that just after the court dismissed the action, he had entered into a fourth
parole agreement.
Analysis
I. Dismissal of BTTI and Mr. Meyer
Mr. Edmond first challenges the district court’s Rule 12(b)(6) dismissal of
BTTI and its executive director James Meyer. Accepting the magistrate judge’s
recommendation, the district court held that Mr. Edmond’s complaint failed to show
that BTTI and Mr. Meyer were state actors who were subject to suit under § 1983.
On appeal, Mr. Edmond asserts that the district court should have employed a certain
test to determine that the defendants were state actors. This argument, however, is
the first time that Mr. Edmond has tackled the state-actor issue. He did not respond
to defendants’ motion to dismiss, and his objections to the magistrate judge’s report
and recommendation failed to address the recommendation regarding BTTI and
Mr. Meyer. Under this court’s firm waiver rule, “[t]he failure to timely object to a
magistrate’s recommendations waives appellate review of both factual and legal
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questions.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (internal
quotation marks omitted). We conclude that neither exception to the firm waiver rule
applies, see id., and consequently Mr. Edmond has waived appellate review of the
dismissal of the claims against BTTI and Mr. Meyer.
II. Dismissal of Claim for Parole-Release Payment
With regard to the parole-release payment, Mr. Edmond not only relies
on Colorado statute, but also he asserts that the court should have taken judicial
notice of a certain CDOC regulation. He asserts that the regulation imposes a duty
on the executive director to provide the parole-release payment. Our review of
Rule 12(b)(1) and 12(b)(6) dismissals is de novo. See Colo. Envtl. Coal. v. Wenker,
353 F.3d 1221, 1227 (10th Cir. 2004) (per curiam).
The district court correctly dismissed the official-capacity claim as barred by
the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 664-69 (1974).
As for the individual-capacity claim, we disagree with Mr. Edmond that the
Colorado regulation (which he invoked for the first time in his objections to the
report and recommendation) places any duty upon the executive director personally
to make a parole-release payment. Moreover, the complaint failed to establish any
plausible facts showing the then-executive director’s personal participation with
regard to the payment (or, more precisely, the lack thereof). “But § 1983 imposes
liability for a defendant’s own actions—personal participation in the specific
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constitutional violation complained of is essential.” Henry v. Storey, 658 F.3d 1235,
1241 (10th Cir. 2011).
Mr. Edmond points out that pro se litigants are entitled to liberal construction
of their pleadings and suggests that the district court should have read this claim as
requesting mandamus relief under 28 U.S.C. § 1361. Liberal construction, however,
does not require the court to “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d
1156, 1159 (10th Cir. 1991).
III. Dismissal of Due Process Claims as Moot
Mr. Edmond also challenges the dismissal for mootness. We review issues of
constitutional mootness de novo. See Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1122 (10th Cir. 2010).
“Our Article III case-or-controversy requirement continues through all stages
of federal judicial proceedings. . . . In general a case becomes moot when the issues
presented are no longer live or the parties lack a legally cognizable interest in the
outcome.” City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010) (internal
quotation marks omitted). Given that Mr. Edmond’s complaint sought declaratory
and injunctive relief with regard to a parole agreement that was no longer in effect,
the district court correctly considered the due process claims to be moot.
In arriving at its conclusion, the district court rejected a suggestion that the
circumstances fit the mootness exception for disputes “capable of repetition, yet
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evading review.” This exception “applies where (1) the challenged action is in its
duration too short to be fully litigated prior to its cessation or expiration, and
(2) there is a reasonable expectation that the same complaining party will be
subjected to the same action again.” Id. at 1181 (brackets and internal quotation
marks omitted).
The district court did not err in rejecting this exception. It is true that
Mr. Edmond’s past parole periods have been short and the same conditions keep
being imposed each time he is re-released. But that does not mean that the conditions
will evade review, as he is free to initiate a new lawsuit challenging the current
conditions of parole. We will not presume his current parole will be as short as his
past paroles; it is within his control to comply with the conditions of parole and avoid
future parole revocations, thus allowing the current conditions of parole to be
litigated. Cf. McAlpine v. Thompson, 187 F.3d 1213, 1217 (10th Cir. 1999)
(prison-conditions claim for injunctive relief moot; court would not assume prisoner
would have his supervised release revoked and would be placed back in prison).
Mr. Edmond also asserts that if successful he would be entitled to nominal
damages, which would negate mootness. But his complaint did not seek an award of
nominal damages. See Murphy v. Hunt, 455 U.S. 478, 481-82 (1982) (per curiam)
(claim for pretrial bail was moot after conviction; prisoner “no longer had a legally
cognizable interest in the result in this case” because “[h]e had not prayed for
damages”). In addition to requesting declaratory and injunctive relief, the complaint
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did generally request all other appropriate relief, but the district court was not
obligated to construct an argument for nominal damages for him. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[W]e do not believe it is the proper
function of the district court to assume the role of advocate for the pro se litigant.”);
Drake, 927 F.2d at 1159. And even after suggesting the possibility of nominal
damages in his objections to the recommendation, Mr. Edmond failed to request
leave to pray for such damages in his subsequent motion to amend his complaint.
IV. Denial of Post-Judgment Motion
Finally, Mr. Edmond argues that the district court erred in denying his motion
for reconsideration under Rules 59 and 60(b). As part of this argument, he also
asserts that the district court should have granted his post-judgment motion to amend.
We review these decisions for abuse of discretion. See Muskrat v. Deer Creek Pub.
Sch., 715 F.3d 775, 789 (10th Cir. 2013). Under this standard, “a trial court’s
decision will not be disturbed unless the appellate court has a definite and firm
conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” Phelps v. Hamilton, 122 F.3d
1309, 1324 (10th Cir. 1997).
There was no abuse of discretion. The post-judgment motion to amend failed
to describe the proposed amendments with particularity, see Fed. R. Civ. P.
7(b)(1)(B), and the district court had a well-founded concern about avoiding
“a rolling complaint that continually changes as orders are issued.” R. Vol. 3 at 143.
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Arguably the Rule 59/60(b) motion presented new evidence (that Mr. Edmond had
entered into a fourth parole agreement), which is an appropriate ground for
Rule 59(e) relief, see Phelps, 122 F.3d at 1324. But rather than requiring
reconsideration, that information could reasonably be perceived as reinforcing the
district court’s concerns about mootness and avoiding a “rolling complaint.”
Moreover, as the district court stated with regard to the motion to amend, nothing
prevented Mr. Edmond from filing a new action, with a new complaint addressing the
facts and circumstances as they then stood.
Conclusion
Mr. Edmond’s motion to proceed in forma pauperis is granted. The judgment
of the district court is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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