Rocha v. Zavaras et al

Filing 140

ORDER Adopting and Affirming 1/3/2012 Recommendation 138 of United States Magistrate Judge; granting 105 Motion for Summary Judgment; denying 110 Motion for Summary Judgment; denying 131 Second Motion for Injunction. By Judge Christine M. Arguello on 2/22/2012.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-00357-CMA-MEH
MARCO A. ROCHA,
Plaintiff,
v.
S. TWILLEGER, individual capacity,
Defendant.

ORDER ADOPTING AND AFFIRMING JANUARY 3, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Michael E. Hegarty
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. On January 3, 2012, the
Magistrate Judge issued a Recommendation (Doc. # 138) concerning Defendant’s
Motion for Summary Judgment, Plaintiff’s Motion for Summary Judgment, and Plaintiff’s
Second Motion for Injunction. (Doc. ## 105, 110, 131.) The Magistrate Judge recommended that Defendant’s Motion for Summary Judgment be granted, and that Plaintiff’s
two motions be denied. (Doc. # 138 at 1.)
In this case, Plaintiff brings a First Amendment retaliation claim against
Defendant Twilleger, alleging that she instigated gang violence against him by other
inmates because of grievances that Plaintiff filed against her.1 The Magistrate Judge,
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Plaintiff originally brought nine claims against numerous defendants for violation of his First,
Fourth, Eighth, and Fourteenth Amendment rights, as well as for violations of 42 U.S.C.
§ 1985(3) and 42 U.S.C. § 2000cc-1. (Doc. # 35.) On March 29, 2011, the Court adopted

in his detailed and well-reasoned Recommendation, found that Defendant was entitled
to qualified immunity and, therefore, recommended that Defendant’s Motion for
Summary Judgment be granted.
On January 18, 2012, Plaintiff, proceeding pro se, filed timely objections to the
Recommendation. (Doc. # 139.) When a magistrate judge issues a recommendation
on a dispositive matter, Fed. R. Civ. P. 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.” In conducting its review, “[t]he district court judge may accept,
reject, or modify the recommendation; receive further evidence; or return the matter
of the magistrate judge with instructions.” Id. Accordingly, the Court has conducted
a de novo review of this matter, including carefully reviewing all relevant pleadings,
the Recommendation, and Plaintiff’s Objections to the Recommendation.
When a defendant asserts the defense of qualified immunity at summary
judgment, as in this case, the burden shifts to the plaintiff to show that the defendant
violated the plaintiff’s constitutional or statutory rights, and to show that the right was
clearly established at the time of the alleged unlawful activity. Riggins v. Goodman,
572 F.3d 1101, 1107 (10th Cir. 2009). In the Tenth Circuit, a plaintiff that brings a First
Amendment retaliation claim must show:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
and affirmed Magistrate Judge Hegarty’s Recommendation on Defendants’ Motion to Dismiss.
(Doc. # 55.) Pursuant to that Order, only Plaintiff’s First Amendment retaliation claim was
permitted to proceed.

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activity and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct.
Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007) (citing Worrell
v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). As the Magistrate Judge found,
Plaintiff has failed to show that Defendant caused his alleged injury or that Defendant’s
alleged actions were the product of retaliatory motive. (Doc. # 138 at 13-16.) Thus, the
Magistrate Judge concluded that “Plaintiff has not raised a triable issue of fact regarding
a violation of his First Amendment rights.” (Id. at 16.) In his Objections, Plaintiff fails to
raise any new issues of law or fact warranting a result different from that reached by the
Magistrate Judge.2
Based on the Court’s de novo review, the Court concludes that the Magistrate
Judge’s thorough Recommendation is correct. Therefore, Plaintiff’s Objections (Doc.
# 139) are OVERRULED and the Court hereby ADOPTS the Recommendation of
Magistrate Judge Hegarty as the findings and conclusions of this Court.
Accordingly, it is ORDERED that:
(1)

Defendant’s Motion for Summary Judgment (Doc. # 105) is GRANTED;

(2)

Plaintiff’s Motion for Summary Judgment and Second Motion for Injunction
(Doc. ## 110, 131) be DENIED; and

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Plaintiff also objects to the Magistrate Judge’s denial of his Second Motion for Injunction.
Plaintiff’s motion, which seeks to enjoin prison staff from harassing, intimidating, or threatening
him, is predicated on “new developments” in which prison officers allegedly mistreated him.
(Doc. # 131.) As the Magistrate Judge noted, Plaintiff does not attribute any of these
“developments” to Defendant. Thus, Plaintiff’s motion is unrelated to his claim against
Defendant in the instant action, and is properly denied.

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(3)

This case is now CLOSED.

DATED: February

22 , 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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