Bingham v. Zavaras et al

Filing 149

ORDER Adopting Recmmendation of United States Magistrate Judge. ORDERED that the Magistrate Judge's Recommendation 147 is ADOPTED IN FULL. Defendants Motion for Summary Judgment 136 is GRANTED. Plaintiffs Request for Status 148 is DENIED as moot. This action is DISMISSED with prejudice, by Judge David M. Ebel on 7/6/12.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:10-cv-00604-DME-CBS

MICHAEL WAYNE BINGHAM,
Plaintiff,
v.
LT. KOCHEV[A]R,
SGT. MARTIN,
SGT. STO[D]GHILL, and
C/O CLINTON AULTMAN,
Defendants.
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael Wayne Bingham, proceeding pro se, is a prisoner currently incarcerated
at the Sterling Correctional Facility of the Colorado Department of Corrections (“CDOC”). He
brought a four-count complaint under 42 U.S.C. § 1983 against various CDOC officials in
connection with events that occurred while he was incarcerated at CDOC’s Fremont Correctional
Facility. (Doc. 36 (Second Amended Complaint).) This Court previously dismissed several
defendants from the case and dismissed Counts Two and Three. (Docs. 41, 114.)
This matter is now before the Court on a Motion for Summary Judgment on all remaining
claims, filed by remaining Defendants Kochevar, Martin, Stodghill, and Aultman (Doc. 136),
Plaintiff’s Response to that motion (Doc. 142), Defendants’ Reply (Doc. 143), Magistrate Judge
Craig B. Shaffer’s Recommendation (Doc. 147) regarding that motion, and Plaintiff’s “Request
for Status” (Doc. 148). Plaintiff filed no objections to the Magistrate Judge’s Recommendation,

and the time to do so has passed. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Magistrate
Judge Shaffer recommends that summary judgment be entered in favor of all Defendants on all
claims, on three grounds: (1) Plaintiff’s failure to exhaust administrative remedies with respect to
his Eighth Amendment claims, as required by the Prison Litigation Reform Act of 1996; (2)
Plaintiff’s failure to establish that any constitutional violation occurred under either the Eighth or
Fourteenth Amendments; and (3) Defendants’ entitlement to qualified immunity. The Court
ADOPTS the Magistrate Judge’s Recommendation.
Summary judgment “shall” be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A “genuine dispute” is one that could be resolved in favor of either party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). And a “material
fact” is one that might reasonably affect the outcome of the case. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A movant who will not bear the burden of proof at trial
must show that there is an absence of a genuine fact issue. See Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986). Once this showing is made, the non-movant may not rely solely on the
allegations in the pleadings, but instead must, whether by “affidavits, or by depositions, answers
to interrogatories, [or] admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted).
Upon receiving a magistrate judge’s recommendation for disposition of a dispositive
motion, the district court may accept, reject, or modify the recommended disposition. See Fed.
R. Civ. P. 72(b)(3). A party’s failure to object to a magistrate judge’s recommendation may
result in waiver of the right to challenge the recommendation. See United States v. One Parcel

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of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate
judge’s report and recommendation must be both timely and specific to preserve an issue for de
novo review by the district court or for appellate review.”); see also Vega v. Suther, 195 F.3d
573, 579–80 (10th Cir. 1999) (applying the firm waiver rule in the appellate context). But see
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (firm waiver does not apply
on appeal when (1) a pro se litigant was not informed of the timeframe for objection and the
consequences of failure to object, or (2) the interests of justice require review). Here, Magistrate
Judge Shaffer’s Recommendation clearly informed Plaintiff of the timeframe for objection and
the consequences of failure to object. See Doc. 147 at 24-25.
“In the absence of timely objection, the district court may review a magistrate’s report
under any standard it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th
Cir. 1991). Having “satisf[ied] itself that there is no clear error on the face of the record,” Fed.
R. Civ. P. 72 advisory committee’s note, the Court adopts the Magistrate Judge’s thorough and
well-reasoned Recommendation.
Specifically, the Court agrees with the Magistrate Judge that Plaintiff has failed to create
a genuine dispute as to any of the following material facts: (1) whether Plaintiff exhausted
administrative remedies on his Eighth Amendment claims; (2) whether Plaintiff faced an
objectively excessive risk to his safety; (3) whether any Defendant knew of and disregarded a
substantial risk to Plaintiff’s safety; or (4) whether Defendant Aultman used pepper spray
maliciously and sadistically to cause harm to Plaintiff. Further, the Court agrees with the
Magistrate Judge that Plaintiff’s disciplinary proceedings implicated no liberty interest protected
by the Fourteenth Amendment. Finally, because Plaintiff has not made out any constitutional

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violation with respect to either remaining count, the Court agrees with the Magistrate Judge that
Defendants are entitled to qualified immunity.

IT IS THEREFORE ORDERED THAT:
1.

The Magistrate Judge’s Recommendation is ADOPTED IN FULL.

2.

Defendants’ Motion for Summary Judgment (Doc. 136) is GRANTED.

3.

Plaintiff’s Request for Status (Doc. 148) is DENIED as moot.

4.

This action is DISMISSED with prejudice.

Dated this

6th

day of

July

, 2012.

BY THE COURT:
s/ David M. Ebel
U. S. CIRCUIT COURT JUDGE

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