FILED
United States Court of Appeals
Tenth Circuit
December 30, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DOUGLAS JAY WEST,
Plaintiff-Appellant,
No. 08-1168
v. (D.C. No. 1:06-CV-1805-WYD-BNB)
(D. Colo.)
WARDEN, Fremont C.F.; CHARLES
OLIN, Director of
Mental Health/SOTP, Fremont C.F.;
JOHN MCGILL, Therapist, Mental
Health/SOTP, Fremont C.F.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
Plaintiff-appellant Douglas Jay West, a prisoner of the State of Colorado
appearing pro se, appeals from orders of the district court that dismissed some of
his claims and granted summary judgment to defendants on the remaining claims
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
in this civil rights suit brought pursuant to 42 U.S.C. § 1983. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
Appellant was convicted in state court of attempted sexual assault and was
undergoing treatment through the Sex Offender Treatment Program (SOTP) while
incarcerated at the Fremont Correctional Facility. He was terminated from the
SOTP in April 2002. He was readmitted, but terminated again in July 2003. He
has not been readmitted to the SOTP.
Appellant filed this suit, alleging that: (1) he was unfairly denied the
opportunity to complete the SOTP; (2) he was terminated from the SOTP unfairly
and due to negligence on the part of medical personnel; (3) defendants Olin and
McGill were biased and prejudiced against him, deliberately depriving him of the
opportunity to complete the program; (4) he was unfairly denied good time credits
on account of his termination from the program; (5) he has been given an
excessively high classification disproportionate to his offense; and (6) prison
officials did not consider his bipolar disorder when deciding to terminate him
from the program.
In an order filed on October 12, 2006, the district court dismissed, as
legally frivolous, appellant’s claims against the Warden of the Fremont
Correctional Facility because appellant did not assert that the Warden personally
participated in the alleged constitutional violations. See R., Doc. 6. In response
to defendants-appellees’ subsequent motion for summary judgment, the magistrate
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judge recommended in a report filed on February 1, 2008, that the motion be
granted. Id., Doc. 77, at 16. The magistrate judge reasoned that to the extent that
appellant was attempting to sue appellees in their official capacities for monetary
damages, those claims should be dismissed based on appellees’ sovereign
immunity under the Eleventh Amendment. Id. at 4-5. The magistrate judge
further reasoned that appellant’s second and fourth claims were barred by the
applicable statute of limitations, but that claims one, three, five, and six were not
time-barred. See id. at 5-12. The magistrate judge nevertheless concluded that
appellees were entitled to qualified immunity on claims one, three, five, and six.
Id. at 12-16. Appellant filed objections to the magistrate judge’s report. Id.,
Doc. 78. The district court adopted the magistrate judge’s recommendation and
granted summary judgment in favor of appellees. Id., Doc. 79.
To the extent that appellant’s claims were dismissed based on appellees’
sovereign immunity, we review the dismissal de novo. See Melton v. City of
Okla. City, 879 F.2d 706, 726 (10th Cir. 1989). We review the grant of summary
judgment on appellant’s remaining claims de novo. Bass v. Potter, 522 F.3d
1098, 1102 (10th Cir. 2008). “De novo review also applies to a district court’s
ruling on the applicability of a statute of limitations.” Id. Because appellant is
pro se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (per curiam).
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Appellant raises twelve arguments on appeal: (1) whether plaintiff had a
liberty interest per statutory legislation to participate in the mandated SOTP;
(2) whether defendants Olin and/or McGill deliberately, or through negligence,
obstructed plaintiff’s right to due process in violation of the 14th Amendment;
(3) whether plaintiff had a statutorily or constitutionally protected right to an
evidentiary hearing prior to his termination from the SOTP; (4) whether plaintiff
has been illegally classified to his detriment as a sexually violent predator as a
result of defendants’ recommendation; (5) whether plaintiff’s ability to exhaust
administrative remedies (i.e., the grievance process), in order to comply with
guidelines for the filing of a § 1983 civil claim was constructively prevented by
defendants’ negligence and/or deliberate acts of deception, falsity and
misinformation; (6) whether such deliberate misinformation, designed to mislead
plaintiff to believe he would be reinstated and/or reenrolled into the SOTP, thus
effectively influencing plaintiff to discontinue pursuit of remedy via the grievance
process, justified equitable tolling with respect to the statute of limitations;
(7) whether supervising officials, in addition to the named defendants, are liable
in their capacity as supervisors of the defendants for injury to the plaintiff;
(8) whether gross negligence on the part of defendants is cause for an award of
monetary damages to plaintiff; (9) whether gross negligence on the part of
defendants caused plaintiff to be denied good time credits that otherwise would
have been awarded to plaintiff, because plaintiff was mandated to participate in
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the SOTP from which he was terminated without due process, creating a
“Catch-22” situation whereby plaintiff lost the opportunity to earn early release
from prison, the same opportunity given to other inmates in the CDOC;
(10) whether plaintiff’s constitutional rights were violated by actions of
defendants, and whether those rights were clearly established at the time of
defendants’ conduct; (11) whether plaintiff had stated “no material facts” to
support his claims; and (12) whether defendants are justifiably entitled to
qualified immunity and/or sovereign immunity (based upon the 11th Amendment)
in view of evidence presented by plaintiff.
As argument, appellant merely restates some of his issues on appeal; he
presents no reasoned argument supported by legal authorities or citation to the
record on appeal. Nevertheless, we have carefully reviewed the magistrate
judge’s recommendation and the district court’s orders in light of the parties’
arguments, the record on appeal, and the governing law. We are unpersuaded by
appellant’s arguments and affirm for substantially the reasons stated by the
district court.
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The judgment of the district court is AFFIRMED. Appellant’s motion to
proceed in this court without prepayment of costs and fees is DENIED. Appellant
shall pay the fees within thirty days of the date of this order.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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