Allen v. Reynolds et al

Filing 113

ORDER Adopting and Affirming 4/28/11 Recommendation 97 of United States Magistrate Judge and Granting Defendant's 50 Motion for Summary Judgment. Plaintiff's remaining claim is DISMISSED WITH PREJUDICE. All current Court settings are hereby VACATED, and all other motions pending in this action are DENIED as moot (re: 89 Motion for Reconsideration and 107 Motion to Vacate). Judgment shall be entered in favor of Defendant, by Judge William J. Martinez on 6/3/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-02605-WJM-MJW
SHAWN D. ALLEN,
Plaintiff,
v.
R. REYNOLDS,
Defendant.

ORDER ADOPTING AND AFFIRMING APRIL 28, 2011 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

This matter is before the Court on the April 28, 2011 Recommendation by the
Magistrate Judge that Defendant’s Motion for Summary Judgment (ECF No. 50) be
granted. (ECF No. 97.) Jurisdiction is proper pursuant to 28 U.S.C. § 1331.
For the reasons stated below, the Magistrate Judge’s Recommendation is
AFFIRMED and Defendant’s Motion for Summary Judgment is GRANTED.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district court judge
may accept, reject, or modify the recommendation; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.

In considering the Magistrate Judge’s Recommendation in the instant case, the
Court is mindful of Plaintiff’s pro se status, and accordingly, reads his pleadings and
filings 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 Plaintiff’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Pro se status does not relieve Plaintiff of the duty to
comply with various rules and procedures governing litigants and counsel or the
requirements of the substantive law and, in these regards, the Court will treat Plaintiff
according to the same standard as counsel licensed to practice law before the bar of
this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).

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A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522,
1527 (10th Cir. 1995); Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir.
1987).
The analysis to be applied on a motion for summary judgment differs depending
on whether the moving party is also the party with the burden of proof at trial. Where,
as here, the non-movant bears the burden of proof at trial, the non-movant must point
to specific evidence establishing a genuine issue of material fact with regard to each
challenged element. In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.
Supp. 2d 1106, 1111 (D. Colo. 2002); Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.
2002).
II. BACKGROUND
This case involves 68 photos that were seized from Plaintiff’s cell during his
transfer between prison facilities. (ECF No. 54 at 1-2.) Plaintiff contends that the
photos were seized by Defendant in retaliation for Plaintiff filing grievances against
Defendant. (Id.) Defendant contends that he packed up Plaintiff’s belongings when
Plaintiff was transferred to another facility and turned them over to the property
sergeant, who then made the decision to retain Plaintiff’s photos because Plaintiff could
not produce a property receipt for the album in which the photos were held. (ECF No.

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67 at 6-8.)
The Magistrate Judge found that Plaintiff had failed to show a genuine dispute of
material fact with respect to whether the seizure of Plaintiff’s photos was caused by
Defendant’s retaliatory motive, and as a result recommended that summary judgment
be granted in favor of Defendant on Plaintiff’s sole remaining claim of retaliation in
violation of his First Amendment rights. (ECF No. 97 at 14-15.) As Plaintiff has
objected to this Recommendation, the Court will review it de novo.
III. ANALYSIS
Plaintiff asserts a claim for retaliation in violation of his First Amendment rights.
“A prisoner claiming retaliation for exercising First Amendment rights must show that a
retaliatory motive was the but-for cause of the challenged adverse action.” Strope v.
McKune, 382 F. App’x 705, 710 (10th Cir. 2010). Thus, to defeat Defendant’s summary
judgment motion, Plaintiff must show not only that retaliation played a role in the
confiscation of his photos but that “such retaliation was the decisive factor—that but for
retaliation” Plaintiff’s photos would not have been confiscated. Id. Thus, evidence
discrediting or impuning Defendant’s alternative explanation for the seizure of Plaintiff’s
photos—that they were contained in an album for which Plaintiff could not produce a
property receipt—is crucial. Id.
The Court has reviewed the entire record and can find no evidence discrediting
Defendant’s assertion that the property clerk retained Plaintiff’s photos because they
were in an unauthorized album. Plaintiff has not asserted that he had a property receipt
for the album or that he was not required to have a property receipt. Plaintiff questions

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whether Defendant ever gave the photographs to the property clerk but provides no
evidence to support this assertion.
Plaintiff argues that he is entitled to a trial in this case because he has shown
factual disputes with respect to whether Defendant followed certain prison regulations in
packing his cell. (Pl.’s Obj. (ECF No. 108) pp. 1-4.) For example, Plaintiff asserts that
there is a dispute with respect to whether Defendant packed up Plaintiff’s cell by himself
or with another guard—as required by regulation. (Id. at 2.) He also alleges a dispute
of fact as to whether Defendant violated procedure by failing to fill out an inmate
property form when Plaintiff’s cell was packed for transfer. (Id. at 1-2.)
The Court finds that these factual disputes do not warrant a trial because they
are not material to the claim at issue here, i.e. whether Plaintiff’s photographs were
seized in retaliation for the exercise of his First Amendment rights. A fact is “material” if
it pertains to an element of a claim or defense, Anderson, 477 U.S. at 248, and showing
that the Defendant violated a prison regulation is not an element of the retaliation claim
Plaintiff here asserts.1 Even if the Court assumes that Defendant violated prison
regulation by packing up Plaintiff’s cell alone and failing to complete an inmate property
inventory form, Plaintiff still has not shown that Defendant’s retaliatory motive was the
but for cause of Plaintiff’s photographs being confiscated.
Plaintiff also objects to a number of the Magistrate Judge’s factual findings.
Plaintiff contends that the Magistrate Judge erroneously credited Defendant’s “self-

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The Court notes that generally a violation of a prison regulation in and of itself does
not implicate a constitutional right. See Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir.
2002).

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serving” affidavits filed in support of the Motion for Summary Judgment. (Pl.’s Obj. at
3.) However, Defendant’s affidavits are both sworn and notarized and set forth facts of
which Defendant had personal knowledge and which would be admissible at trial. (ECF
Nos. 50-1 & 67-1.) As such, Defendant’s affidavits were properly considered in support
of his Motion for Summary Judgment. See Fed. R. Civ. P. 56(c)(4). That the affidavits
contained facts beneficial to Defendant and harmful to Plaintiff is no surprise, nor is it—
without more—reason to discredit them. After Defendant filed his affidavits, the burden
was on Plaintiff to come forward with contrary evidence establishing a genuine dispute
as to these facts. Plaintiff has not done so. The Court cannot disregard Defendant’s
evidence merely because Plaintiff claims it is “self-serving.”
Plaintiff bears the burden of proof at trial with respect to showing that
Defendant’s retaliation was the but for cause of the seizure of his photographs. See
Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996). “Where the nonmovant will bear
the burden of proof at trial on a dispositive issue, . . . he must got beyond the pleadings
and designate specific facts so as to make a showing sufficient to establish the
existence, as a triable issue, of an element essential to that party’s case in order to
survive summary judgment.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).
Plaintiff has failed to meet his burden in this case. Because Plaintiff has not shown a
triable issue with respect to the fact that his photos would not have been seized but for
Defendant’s retaliation, and he bears the burden of proof at trial on this element,
summary judgment is appropriate.

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IV. CONCLUSION
For the reasons stated above, the Magistrate Judge’s April 28, 2011
Recommendation is AFFIRMED. Defendant’s Motion for Summary Judgment is hereby
GRANTED and Plaintiff’s remaining claim is DISMISSED WITH PREJUDICE. All
current Court settings are hereby VACATED, and all other motions pending in this
action are DENIED as moot. The Clerk shall enter judgment in favor of Defendant.
Dated this 3rd day of June, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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