Handy v. Cummings et al
Filing
204
ORDER Affirming in Part and Rejecting in Part Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge is AFFIRMED IN PART AND REJECTED IN PART in accordance with this Order. ORDERED that Defendants Settambrino, Mollender and Wood are DISMISSED from the case and shall hereafter be taken off the caption. ORDERED that Claims Ten, Thirteen and Fourteen are DISMISSED. ORDERED that Defendants' Motion for Summary Judgment 136 is GRANTED IN PART AND DENIED IN PART. ORDERED that Plaintiff's requested relief for preliminary and permanent injunctive relief against the Defendants is DENIED AS MOOT by Judge Wiley Y. Daniel on 03/25/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-00581-WYD-KMT
WYATT T. HANDY JR.,
Plaintiff,
v.
SGT. CUMMINGS, individual and official capacity,
DEP. WENDELBURG, individually,
DEP. THAO, individually,
DEP. LIGON, individually,
DEP. ELLEDGE, individually,
DEP. GIRARD, individually,
GRETCHEN SETTAMBRINO, individual and official capacity,
TERRI WOOD, individual,
MELINDA MOLLENDOR, individual,
DEP. LITWILER, individual and official,
NANCY SIVAK, individual,
DEP. KRAUS, individual,
DEP. GALLEGOS, individual,
DEP. HUNT, individual,
SGT. CLARK, individual and official capacity,
SGT. DOIZAKI, individual and official capacity,
DEP. EMERSON, individual,
DEP. KLEINHEKSEL, individual,
SHERIFF GRAYSON ROBINSON, individual and official capacity,
CAPT. SAUTER, individual,
LT. WHITAKER, individual and official capacity,
SGT. RANKIN, individual and official capacity,
DEP. FREEMAN, individual,
DEP. LONGFELLOW, individual,
DEP. HAMM, individual,
LT. WICKSTROM, individual and official,
LT. VIENOT, individual and official,
DEP. TERRY, individual,
DEP. C. JONES, individual,
DEP. VIGIL, individual,
SGT. NORDI, individual and official,
ARAPAHOE COUNTY SHERIFF DEPARTMENT, and
DEP. VINCENT, individual.
Defendants.
ORDER AFFIRMING IN PART AND REJECTING IN PART
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
This matter is before the Court on the “Motion for Summary Judgment of All
Defendants Except County of Arapahoe to Plaintiff’s Third Amended Complaint” filed
March 29, 2012.1 The motion was referred to Magistrate Judge Tafoya, and a
Recommendation of United States Magistrate Judge (ECF No. 193) was issued on
November 27, 2012. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1),
D.C.COLO.LCivR. 72.1.C.3. Magistrate Judge Tafoya recommends therein that
summary judgment be granted in favor of all remaining Defendants on all of Plaintiff’s
claims. On December 12, 2012, Plaintiff filed a timely “Response and Objections to the
United States Magistrate Judge Recommendation” (ECF No. 198) [hereinafter
“Objections”]. Defendants filed a “Response to Plaintiff’s Response to the Magistrate
Judge’s Findings and Recommendation” (ECF No. 203) on January 11, 2013.
II.
ANALYSIS
A.
Preliminary Matters
I note as a threshold matter that Magistrate Judge Tafoya recommends that
Defendants Settambrino, Mollender and Wood be dismissed at Plaintiff’s request. She
1
The County of Arapahoe was previously dismissed as a defendant on September 26, 2012, and
is thus not listed on the Caption. I further note that Deputy Morrison was dismissed as a Defendant on
December 21, 2011. While he was included in the caption of the Third Amended Complaint that was
accepted for filing by Order of January 5, 2012, ECF No. 118, Magistrate Judge Tafoya ruled in that Order
that the claims against Mr. Morrison were not accepted.
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also recommends that Claims Ten, Thirteen and Fourteen be dismissed, as Plaintiff has
no objection to their dismissal. No objections having been filed to this portion of the
Recommendation, I affirm and adopt these recommendations.2 Defendants
Settambrino, Mollender and Wood are dismissed, as are Claims Ten, Thirteen and
Fourteen.
I also note that Plaintiff has no objections to other portions of the
Recommendation. Thus, as to Claims One and Three asserting retaliation, Plaintiff
states that he has no objections to the recommendation that summary judgment be
granted as to actions related to Plaintiff’s placement in administrative segregation,
failure to credit Plaintiff with administrative segregation time, purposeful loss of an
envelope, and the May 17, 2011 writeup. (Objections at 15, 19; see also
Recommendation at 31-36.) He also has no objection to the recommendation that
summary judgment be granted as to Defendant Emerson as to alleged threats of
physical violence. (Objections at 15; see also Recommendation at 29-30.) Finally,
Plaintiff has no objection to the recommendation that summary judgment be granted on
the basis of qualified immunity as to Claim Six asserted against Defendants Robinson,
Sauter, Fogg and Cummings alleging a violation of his right to self-representation.
(Objections at 37; Recommendation at 50-52.) I affirm the above recommendations,
finding no clear error.
2
When no objections are filed to any portion of the recommendation, I am vested with discretion
to review that portion "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985). Nonetheless, though not required to
do so, where there are no objections I have reviewed the findings in the Recommendation to "satisfy
[my]self that there is no clear error on the face of the record." See Fed. R. Civ. P. 72(b) Advisory
Committee Notes.
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Defendants also point out in their response that Plaintiff’s objection includes two
attempts to raise discovery issues as a basis for any deficiencies in his evidence and to
raise an issue of the Court’s denial of his requests for appointment of counsel.
(Objections at 24-27, 33.) However, there is nothing in Defendants’ Motion for
Summary Judgment or Plaintiff’s Response thereto relating to discovery issues or
appointment of counsel. I agree with Defendants that Plaintiff failed to present and
preserve his alleged discovery issues in accordance with Rule 56(d), and that such
discovery issues are deem waived. See Hoover v. Ward, 109 F. App'x 213, 215 (10th
Cir. 2004) (unpublished). Similarly, to the extent that Plaintiff seeks review of the denial
of his motions for appointment of counsel, this is not properly within the scope of review
of the Recommendation.3
Defendants also assert that Plaintiff is not currently incarcerated in the Arapahoe
County Detention Facility [“ACDF]. Therefore, I agree that Plaintiff’s requested relief for
preliminary and permanent injunctive relief against the Defendants is denied as moot.
See Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004).
I also note before beginning my discussion of the merits of Plaintiff’s claims that
the Recommendation finds that Plaintiff submitted his Third Amended Complaint, the
operative complaint, under penalty of perjury. (Recommendation at 13.) Accordingly,
Magistrate Judge Tafoya found, and I agree, that the court may treat that pleading as an
affidavit. (Id.) However, I also agree with her finding that whether Plaintiff’s allegations
3
Plaintiff’s Motions for Appointment of Counsel were denied on April 22, 2011 (ECF No. 22) and
May 18, 2012 (ECF No. 157), without objection by Plaintiff. Thus, he has waived any arguments related to
same.
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in the Third Amended Complaint are “sufficient to create a genuine issue of material fact
must be evaluated in light of the principle that ‘conclusory allegations without specific
supporting facts have no probative value.’” (Recommendation at 14) (quotation
omitted). I will thus determine, as did Magistrate Judge Tafoya, “whether Plaintiff has
come forward with specific facts to overcome Defendants’ Motion for Summary
Judgment.” (Id.) I will not rely on unsubstantiated allegations in the Third Amended
Complaint.
Finally, although not commented on in the Recommendation, I note that Plaintiff’s
Declaration in Opposition to Defendants’ Motion for Summary Judgment [“Declaration”]
that is attached to his response to the summary judgment motion is not signed by
Plaintiff and is not verified to be under penalty of perjury. Accordingly, it does not
constitute evidence that can be considered on summary judgment. Flemming v.
Corrections Corp. of Am., 143 F. App’x 921, 925 n. 1 (10th Cir. 2005) (unpublished)
(citing Mason v. Clark, 920 F.2d 493, 495 (8th Cir. 1990)); Ambus v. Granite Bd. of
Educ., 975 F.2d 1555, 1569 n. 12 (10th Cir. 1992); see also 28 U.S.C. § 1746 (setting
forth requirements of declarations under penalty of perjury). I now turn to the merits of
Plaintiff’s Objections to the Recommendation.
B.
Plaintiff’s Objections
Plaintiff’s Objections necessitate a de novo determination as to those specified
proposed findings or recommendations to which objection is made since the nature of
the matter is dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). “In order to
conduct a de novo review a court ‘should make an independent determination of the
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issues ...; [it] ‘is not to give any special weight to the [prior] determination.’” Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v.
First City Nat. Bank, 386 U.S. 361, 368 (1967)) (internal quotation marks omitted).
While the court may place whatever reliance on the “recommendation its merit justifies,
the court must review the record in light of its own independent judgment.” Id.
1.
Retaliation
I first address Plaintiffs’ lengthy objections as to the recommendations regarding
Claims One and Three alleging retaliation. Those claims allege that Defendants
violated Plaintiff’s First Amendment rights by “level[ing] a campaign of harassment and
retaliation against the plaintiff, for him filing grievances and lawsuits, for the purpose of
chilling and punishing him for engaging in federally protected activity.” (Third Am.
Compl. at 34, ¶ 83.) Plaintiff alleged a number of allegedly retaliatory actions by
Defendants, which were examined in depth in the Recommendation. This included,
among other things, the denial of physical law library access, lock down orders, cell
searches and confiscation of Plaintiff’s property, threats of violence, counterclaims, and
confiscation of Plaintiff’s legal and religious materials. (Recommendation at 19-42.)
Magistrate Judge Tafoya concluded, after a detailed analysis, that Plaintiff did not
establish through specific facts that Defendants’ actions would not have occurred but for
a retaliatory motive. (Recommendation at 19-42.) She also found that even when the
facts are viewed in a light most favorable to him, Plaintiff “failed to establish that either
(1) he was engaged in constitutionally protected activity, (2) Defendants’ actions were
sufficient to chill a person of ordinary firmness from continuing to engage in that activity,
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or (3) Defendants’ adverse actions were based on Plaintiff’s exercise of his
constitutional rights.” (Id.) Because Plaintiff failed to establish that Defendants infringed
upon his constitutional right to be free from retaliation, it was recommended that
Defendants be granted qualified immunity and that summary judgment be granted as to
the retaliation claims. (Id. at 41-42.) In addition, to the extent that any Defendants were
not discussed in the Recommendation, Magistrate Judge Tafoya found that Plaintiff
failed to establish that they personally participated in any allegedly retaliatory conduct.
(Id.) I now turn to the specific acts of alleged retaliation complained of by Plaintiff that
are the subject of his Objections.
a.
Physical Law Library Access
Plaintiff first objects to the finding regarding Defendant Cummings’ denial of
physical law library access to Plaintiff on October 26, 2010. Plaintiff asserts that
Cummings did this in retaliation for Plaintiff filing a grievance against Deputy Morrison
for an October 25, 2010, pat search. Magistrate Judge Tafoya found that Plaintiff
cannot establish that Cummings’ actions would not have occurred but for a retaliatory
motive. (Recommendation at 19.) She noted on that issue that although Cummings
made the decision to deny Plaintiff physical access only one day after Plaintiff grieved
Deputy Morrison, temporal proximity alone is not sufficient to satisfy the strict but-for
causation requirement of retaliation. (Id.) She also noted that Plaintiff attached to his
Third Amended Complaint over 50 grievances filed between October 26, 2010 and
August 14, 2012, and that under these circumstances, temporal proximity between an
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inmate’s exercise of his right of access to the courts and some form of jailhouse
discipline alone is insufficient to establish a causal connection. (Id. at 18.)
Plaintiff’s Objections first assert that he presented sufficient evidence to establish
temporal proximity. Specifically, he asserts that contrary to the Recommendation’s
finding that he was a litigious prisoner, the October 25, 2010 grievance was the very
first grievance he filed. In light of this, Plaintiff argues that temporal proximity between
the grievance and the law library denial should be sufficient to establish a causal
connection. I disagree. Defendants have presented evidence that Plaintiff had
previously filed grievances. (See Ex. A to Defs.’ Resp. to Pl.’s Objections, ECF No.,
203, attaching two previous grievances and a request from Plaintiff for forms to file
complaints against police officers). Moreover, I agree with the Recommendation that
temporal proximity between an inmate’s exercise of his rights and the alleged retaliation
alone is insufficient to establish a retaliation claim. Friedman v. Kennard, 248 F. App’x
918, 922 (10th Cir. 2007) (unpublished).4 This is especially apposite in this case given
the sheer volume of grievances that Plaintiff filed over the applicable time period.
Magistrate Judge Tafoya also found that Defendant Cummings presented
evidence that he did not learn of the October 25, 2010, pat search involving Deputy
Morrison until March 2011–approximately five months after the denial of access to the
law library. (Recommendation at 19-20.) She noted that this was the only competent
evidence on this topic, and that Plaintiff had not introduced evidence that creates a
4
The case relied on by Plaintiff, Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990), does not
support his argument that temporal proximity alone is sufficient, as in that case there was other evidence
that supported a finding that a jury could reasonably find retaliation.
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genuine dispute of material fact as to whether Cummings knew that Plaintiff had grieved
Deputy Morrison when he deprived Plaintiff of physical access to the law library—much
less that the grievance was the but for cause of Cummings’ actions. (Id. at 20.) Plaintiff
objects to these findings, arguing he presented evidence sufficient to establish a
genuine dispute of material fact on this issue.
Plaintiff asserts in that regard that prior to the denial of access to the law library,
and in despite of his placement in administrative segregation, he had been authorized to
attend the law library. This is not relevant, however, to whether Defendant Cummings
had knowledge of the grievance against Morrison. Further, as the Recommendation
notes, Plaintiff does not cite to competent evidence on this issue. He cites only to
allegations in his original complaint or to exhibits attached to that Complaint. That is not
sufficient as his amended complaint superseded his original complaint, and “‘render[ed]
it of no legal effect.’” Capital v. U.S., No. 12-5018, 2012 WL 6217494, at *3 (10th Cir.
Dec. 14, 2012) (unpublished) (quotation omitted).
Based on the foregoing, I overrule Plaintiff’s objections as to alleged retaliation
by Defendant Cummings based on the denial of physical law library access. The
recommendation to grant summary judgment as to this portion of Plaintiff’s retaliation
claims is affirmed.
b.
Lock Down Orders
Next, Plaintiff objects to the findings in the Recommendation regarding lock down
orders which occurred by Defendant Elledge on October 27 and 28, 2010, and January
22, 2011. Magistrate Judge Tafoya found, among other things, that Plaintiff failed to
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establish his grievances were the but-for cause of Defendant Elledge’s lock-down
orders. (Recommendation at 21-23.)
More specifically, Magistrate Judge Tafoya noted that Elledge submitted sworn
testimony that his lock-down of Plaintiff on October 27, 2010 and January 22, 2011,
wherein Plaintiff allegedly was locked down ten minutes early, was at the direction of
the Detention Operations Technician (“D.O.T.”). (Recommendation at 21-22.) On both
occasions, Elledge presented evidence that he escorted Plaintiff into his cell on lockdown only after Plaintiff had refused to comply with the D.O.T.’s order to “lockdown.”
(Id. at 22.)5 While Plaintiff does not dispute that the D.O.T. made that order, he relies
on conclusory assertions in his Declaration and other documents wherein he states that
he was locked down by Elledge for filing the grievance against Morrison. I find that
these conclusory allegations are insufficient to establish a causal connection, as they
fall short of constituting “‘specific facts showing retaliation because of the exercise of
[his] constitutional rights.’” (Recommendation at 22) (emphasis in original) (quoting
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)).6 Further, Plaintiff’s
assertion that upon receiving the grievance against Morrison, Elledge began hassling
and yelling at Plaintiff, telling him he has no rights, does not alter the evidence that
Elledge locked Plaintiff down at the order of the D.O.T., not based on any grievance
against Morrison.
5
The fact that Elledge did not identify the D.O.T or that sworn testimony was not submitted from
the D.O.T. does not alter or detract from this evidence.
6
I also found in Section II.A. supra, that the Declaration is not competent evidence
since it is unsigned and unverified.
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It was also found in the Recommendation that to the extent Elledge is alleged to
have taken away Plaintiff’s entire hour of free time on October 28, 2010, Defendants
submitted evidence demonstrating that Plaintiff was “written up and placed on ‘shift
lockdown’” that same day for “disorderly conduct after repeatedly calling Defendant
Emerson a ‘bitch.’” (Recommendation at 22) (quotations omitted). Plaintiff did not
address this in his objection, or present specific facts to refute Defendants’ evidence
that his hour of free time was taken from him because he was on shift lockdown. (See
id. at 22-23.)
Based on the foregoing, I overrule Plaintiff’s objections as to the lock downs.
The recommendation to grant summary judgment as to this portion of Plaintiff’s
retaliation claims is affirmed and adopted.
c.
Cell Searches
Plaintiff also objects to the findings in the Recommendation regarding cell
searches in January, February and April 2011. Defendants state that they occurred
pursuant to routine laundry exchange cell searches, and not in retaliation for any acts of
Plaintiff. This is denied by Plaintiff.
Magistrate Judge Tafoya first noted on this issue that periodic cell searches are
an integral and regular component of prison life and that inmates have no right to
privacy with respect to cell searches. (Recommendation at 24) (citing Hudson v.
Palmer, 468 U.S. 517, 526, 529-30 (1984)). Thus, she found that “the mere fact that
Plaintiff was the target of cell searches alone is insufficient to establish the adverse
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action necessary to establish a § 1983 retaliation claim.” (Id.) I agree and affirm this
finding, and note that Plaintiff did not raise an objection to same.
Magistrate Judge Tafoya then found that Defendants’ actions taken while
searching Plaintiff’s cell were either not “adverse actions” sufficient to chill a person of
reasonable firmness from exercising their protected rights, or not causally connected to
Plaintiff’s filing of grievances. (Recommendation at 27.) She stated, “Plaintiff once
again primarily relies on the fact that Defendants’ searched his cell shortly after he filed
a grievance against Defendant Cummings, which, at the risk of redundancy, is
insufficient in this case to satisfy the causation element of a retaliation claim.” (Id. at
25.) Even when viewed in a light most favorable to Plaintiff, the Recommendation found
the facts to be insufficient to establish a § 1983 retaliation claim. (Id.) Plaintiff objects
to these findings.
I first address the January 2011 search. Defendants submit that this search was
conducted by Ligon, Thao and Girard. (Mot. Summ. J. ¶ 22.) While Plaintiff admits that
these three Defendants searched his cell, and that normally two to three deputies
search a cell, he asserts that seven to ten deputies came to his cell, all of whom were
supervised by Cummings. (Id.; Resp. Mot. Summ. J. at 5 ¶¶ 21-22; Third Amended
Complaint [“TAC”] ¶ 7.) This is a disputed issue of fact. Plaintiff also asserts that while
his cell was searched he remained outside the cell with the other four to seven deputies
(id.), while Defendants assert that these other deputies had left the area to conduct
laundry exchange cell searches in other pods. (Mot. Summ. J. at 6 ¶ 21.) This is also a
disputed material issue of fact. This incident allegedly occurred a day after Plaintiff filed
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a grievance against Cummings, and Plaintiff alleges it would not have happened but for
retaliatory motive. (TAC ¶ 7.)
Magistrate Judge Tafoya found, and I agree, that the fact a team of seven to ten
deputies gathered outside Plaintiff’s cell during that search is insufficient, on its own, to
satisfy the adverse action element of a retaliation claim. (Recommendation at 24.)
While Plaintiff claims he was nervous and felt intimated, Plaintiff concedes that
only three deputies actually entered his cell. (Pl.’s Declaration ¶11.) He further admits
that two to three deputies normally search a cell. (Id.) I find that this action would not
deter an inmate of ordinary firmness from continuing to exercise his right to file
grievances or other constitutional rights.
However, Defendants’ conduct is more problematic when viewed with the other
actions that occurred during that search, i.e., including the alleged taking of Plaintiff’s
pencils and other materials he claimed to need for his legal work. Plaintiff disputes
several of Magistrate Judge Tafoya’s factual findings that supported her finding that
Plaintiff did not show an adverse action as to same, and I find some merit to his
objections as to these findings.7
7
For example, the Recommendation found that Plaintiff did not dispute that he was left with
several working pencils. (Recommendation at 25.) Plaintiff did, however, dispute this, claiming that all his
pencils were thrown away. (See Resp. Mot. Summ. J. at 5-6, ¶¶ 22, 24-25.) Further, he filed a grievance
that same day indicating that all of his pencils, erasers and highlighters were thrown away. (TAC, Ex. F1.) He also filed a grievance requesting that these materials be returned so he could do his legal work,
and stating that none of the other inmates were targeted this way. (Id., Ex. F-2.) Plaintiff also alleges that
during this cell search he was given clothes four sizes too small. Magistrate Judge Tafoya found as to that
issue that Plaintiff admitted inmate trustees are the ones who provide the laundered clothes and that the
clothes are not always labeled correctly. (Recommendation at 25) (citing Mot. Summ. J. at 7 ¶ 20 and
Resp. at 5 ¶ 20.) However, Plaintiff later asserted that the clothes are distributed to inmates by staff, not
inmate trustees. (See Mot. Summ. J. at 7 ¶ 23 and Resp. at 5-6 ¶ 23.) He also submitted a grievance
indicating that he told the deputies that he was given clothes that were too small and was ignored by them,
and that he had to wear dirty clothes for a week because of this. (TAC, Ex. F-2.)
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Nonetheless, even if I were to determine that Plaintiff has shown adverse action
in connection with the January 2011 search, I still find that the Recommendation must
be affirmed as to the claim of retaliation based on this search. As the Recommendation
correctly notes, Plaintiff must still demonstrate a causal connection between the
protected conduct and the adverse action. (Recommendation at 18.) Plaintiff “must
prove that ‘but for’ the retaliatory motive, the incidents to which he refers. . . would not
have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). I agree
with the finding that Plaintiff failed to proffer specific facts to create a genuine issue of
material fact that the exercise of his constitutional rights was the but-for cause of
Defendants’ actions during that cell search. (See Recommendation at 25.)
In that regard, I note that Tenth Circuit cases “allow an inference” of whether the
defendants’ actions were causally connected to the protected conduct where the
evidence shows “(1) the defendants were aware of the protected activity; (2) the plaintiff
directed his complaint to the defendants’ actions; and (3) the alleged retaliatory act ‘was
in close temporal proximity to the protected activity.’” Allen v. Avance, 491 F. App’x 1, 5
(10th Cir. 2012) (unpublished) (quoting Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.
2010)). Here, Plaintiff has not shown as to the January 2011 search that Ligon, Thao
and Girard were aware of the grievance filed against Cummings the day before or that
Plaintiff’s complaint was directed at their actions. While Plaintiff asserts that these
Defendants were directly supervised by Cummings, and Cummings admitted that part of
his responsibilities as a staff sergeant is to supervise cell searches during laundry
exchange, Cummings presented unrefuted evidence that he was not on duty the day of
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this search. (Mot. Summ. J., Ex. A-2, Aff. of Michael Cummings ¶¶ 9, 12.) Accordingly,
I find no basis to infer Defendants Ligon, Thao and/or Girard’s knowledge of Plaintiff’s
protected activity. I also find no other specific facts or evidence to support a finding that
Defendants’ actions were causally connected to the grievance filed against Cummings.
The same analysis applies to the April 2011 search, which was allegedly
conducted by Defendants Girard, Longfellow, and Hamm. Plaintiff asserts that their
actions during this search occurred due to a grievance filed seven days earlier against
Defendants Litwiler and Rankin (TAC, Ex. EE-1) and other unspecified grievances.
Again, Plaintiff has not shown that Girard, Longfellow, and Hamm had knowledge of that
grievance or the other grievances, and has not cited other facts or evidence that
supports a finding that their actions during the search were causally connected to same.
Finally, the February 2011 search was allegedly conducted by Defendants Girard
and Wendelburg under the direct supervision of Cummings. (Resp. Mot. Summ. J. at 6
¶ 24; TAC ¶ 11.) Plaintiff asserts that this search and the removal of his personal
property was due to a grievance he filed against Cummings, Girard and others on
February 1, 2011. (TAC ¶ 11 and Ex. I and J thereto; Resp. Mot. Summ. J. at 6 ¶ 24.)
Plaintiff further asserts that Wendelburg was the recipient of this grievance. (TAC ¶ 11.)
Accordingly, Plaintiff has set forth facts which support an inference that Girard and
Wendelburg were aware of this grievance. Further, the search took place in close
proximity to the grievance.
However, I agree with Magistrate Judge Tafoya that Plaintiff has not shown that
the actions of the Defendants in connection with that search would chill a person of
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ordinary firmness from continuing to engage in the protected activity. The only
allegation related to this search is that Girard and Wendelburg entered into Plaintiff’s
assigned cell and threw way Plaintiff’s highlighter that he used for his legal work. (TAC
¶ 121.) No punitive action was taken, and there are no allegations that Plaintiff felt
threatened or nervous as to this search. A trivial or de minimus injury will not support a
retaliation claim. Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007);
see also Fleming v. Clark, No. 09-CV-1038 DAK, 2012 WL 4343836, at *6 (D. Utah
Sep. 21, 2012) (unpublished) (allegations about cell search and confiscation of papers
did not show that defendants did anything that would chill an inmate of ordinary
firmness from continuing to file grievances or lawsuits). Further, while not dispositive of
the issue, I note that Plaintiff certainly was not deterred from exercising his
constitutional rights given the fact that he filed a grievance as to that activity as well as
numerous other grievances. See Fleming, 2012 WL 43438736, at *6.
Based on the foregoing, the recommendation to grant summary judgment as to
retaliation based on cell searches is affirmed, and Plaintiff’s Objections as to this issue
are overruled.
d.
Confiscation of Money Release Forms
As to Plaintiff’s retaliation claim related to confiscation of money release forms by
Defendants Elledge and Mollendor, Magistrate Judge Tafoya again found that Plaintiff
failed to establish a causal connection between Defendants’ actions and the exercise of
Plaintiff’s constitutional rights. (Recommendation at 27.) She found that Plaintiff did not
dispute that these forms were removed only because they had been revised and were
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to be replaced. (Id.) Indeed, Plaintiff admitted that the staff was directed to remove
outdated forms from the pods. (Mot. Summ. J. at 7 ¶ 26; Resp. at 6 ¶ 26.) However,
Plaintiff’s Objections are correct that he disputed that Mollender and Elledge were
authorized to confiscate “used ” forms from inmates that were kept as records, and
states that he informed these Defendants that his forms were going to be used as
evidence in a lawsuit. (Mot. Summ. J. at 7 ¶ 27; Resp. at 6-7 ¶ 27.)
Nonetheless, I find that summary judgment should be granted as to this claim.
First, I agree with Magistrate Judge Tafoya that Plaintiff did not present any evidence to
support his conclusory assertion that “[t]his incident would never had [sic] happened ‘but
for’ retaliatory motive.” (TAC ¶ 8.) Plaintiff does not identify any grievance or other
protected activity that these Defendants were allegedly responding to when they took
these forms. Nor does he provide any other facts as to why Defendants were motivated
by retaliation in taking Plaintiff’s used money release form.
I also find that the confiscation of these forms was not sufficient to deter an
inmate of ordinary firmness from continuing to file grievances or lawsuits. See Fleming,
2012 WL 4343836, *6 (allegations about cell search and confiscation of papers did not
show that defendants did anything that would chill an inmate of ordinary firmness from
continuing with protected activity); Grohs v. Hayman, No. 09-5273, 2010 WL 2346617,
at *8 (D.N.J. June 8, 2010) (unpublished) (search and accompanying destruction of
papers would not deter an ordinary prisoner from filing grievances). Indeed, while
Plaintiff asserts that he wished to use these forms in a lawsuit, he failed to allege an
actual injury caused by confiscation of these forms.
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Based upon the foregoing, the Recommendation to grant summary judgment
based on the alleged retaliatory act of confiscation of money forms is affirmed, and
Plaintiff’s Objections are overruled.
e.
Threats of Violence, Counterclaims, and Discipline
I now turn to the findings regarding the retaliation claim based on alleged threats
of violence, counterclaims and discipline. Magistrate Judge Tafoya found that Plaintiff
failed to establish that the threats “either (1) actually occurred, (2) were sufficient to chill
a person of reasonable firmness from exercising his constitutional rights, or (3) were
causally connected to Plaintiff’s exercise of his constitutional rights.” (Recommendation
at 30.) Thus, she found that Plaintiff “failed to establish that he was threatened in
retaliation for exercising his constitutionally protected rights.” (Id.) I now turn to the
specific threats alleged by Plaintiff to determine if Plaintiff’s Objections to the above
findings have merit.
Plaintiff first asserts that on December 19, 2010, the day after he submitted a
grievance against Cummings for denying him access to the law library, Cummings told
Plaintiff that he would not be receiving any “special treatment,” that he “should not be
filing grievances against his deputies,” and that he would place Plaintiff on a “Captain’s
Segregation Order” after Plaintiff suggested that he was going to file a lawsuit for
violation of his constitutional rights. (TAC ¶¶ 4, 5 and Ex. D-1.) The “Captain’s
Segregation Order” is allegedly the worst punishment in the prison. (Id.) Plaintiff claims
that this was an effort by Cummings to intimidate him. (Id.) Plaintiff takes issue with
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the finding in the Recommendation that these threats would not deter a person of
reasonable firmness from exercising their constitutional rights.
I agree with Magistrate Judge Tafoya that alleged threats that Plaintiff would not
receive special treatment or that he should not file grievances against Cummings’
deputies would not be sufficient to chill an inmate of ordinary firmness from continuing
to exercise his constitutional rights. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3
(10th Cir. 2001) (mere threats and taunts are insufficient to make out a constitutional
violation); Fleming, 2012 WL 4343836, at *7 (allegation that defendants derided and
provoked plaintiff after he stated his intention to file a grievance was not sufficient to
chill a person of ordinary firmness).8 While the threat to place Plaintiff on a “Captain’s
Segregation Order” may arguably be sufficient to chill an inmate of ordinary firmness,
Fleming, 2012 WL 4343836, at *7, Plaintiff’s grievance states that Cummings made this
alleged threat in response to Plaintiff’s submission of kites threatening other inmates.
(TAC, Ex. D-1.) I agree with the Recommendation that Plaintiff has not submitted any
specific facts or evidence, other than his personal belief, that this threat was made to
retaliate against Plaintiff for filing grievances. Accordingly, I also affirm this portion of
the Recommendation.
8
Moreover, as noted by Magistrate Judge Tafoya, in the grievance filed regarding this
incident Plaintiff did not state that Cummings denied him “special treatment” because he filed
grievances; instead, he stated that Cummings denied Plaintiff “special treatment” to the extent
that he sought physical access to the law library inconsistent with his placement in
administrative segregation. (Recommendation at 28) (citing TAC, Ex. D-1.) Thus, Plaintiff’s
own evidence does not support that this threat was made in retaliation for Plaintiff’s protected
conduct.
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Plaintiff also challenges an alleged threat by Cummings on February 15, 2011,
that he would file a counterclaim against Plaintiff if Plaintiff sued him for retaliation.
(TAC ¶ 13.) This allegedly occurred the day after Plaintiff filed a grievance against
Cummings. (Id.) Again, Plaintiff challenges the finding that this was not an adverse
action. I overrule the objection as to this issue, agreeing with the Recommendation that
an inmate of ordinary firmness “would not be deterred from exercising their
constitutional rights by a defendant’s speculative threat that he will file an unspecified
counterclaim in an inmate’s yet-to-be-filed lawsuit.” (Recommendation at 29) (citing
Robinson v. Dean Foods Co., 08-cv-01186-REB-CBS, 2009 WL 2382764, at *4-5
(D. Colo. July 30, 2009)). Plaintiff has not cited to any authority which would indicate
that a contrary result is required. Accordingly, this finding is also affirmed.
Finally, Plaintiff points to threats of physical violence against him by Defendant
Doizaki. (TAC ¶¶ 42, 43) (citing Exs. B-1, B-2, LL-1 and LL-2.) Plaintiff admits that,
standing alone, the allegations about these threats are conclusory, but argues that he
has supported these allegations with other evidence in the record. The only specific
evidence I could find in the record that could be related to physical violence was a
grievance filed by Plaintiff stating that Doizaki threw in his face how he could end up like
inmate Winfield. (TAC, Ex. LL-2.) However, there is no competent evidence as to how
this threat would translate to a threat of physical violence.9 In any event, mere threats
9
While Plaintiff asserts that he witnessed Winfield being assaulted by staff three to four
days before the threat, he does not cite any evidence other than his Declaration to support this.
The Declaration, as previously stated, cannot support Plaintiff’s claims as it is unsigned and
unverified.
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of physical violence by a prison guard have been held to be insufficient to chill an
inmate of ordinary firmness from continuing to exercise his constitutional rights.
McBride, 240 F.3d at 1291 n. 3.
Based upon the foregoing, the recommendation to grant summary judgment as
to Plaintiff’s retaliation claim based on alleged threats is affirmed, and Plaintiff’s
Objections are overruled as to this issue.
f.
Confiscation of Legal Work and Religious Materials
I now turn to the issue of the alleged confiscation of legal work and religious
materials occurring on April 29, 2011, and May 25, 2011, by Defendants Doizaki,
Emerson, and Kleinheksel. These incidents allegedly occurred immediately after
Plaintiff’s filing of grievances and the filing of this lawsuit.10 Plaintiff objects to the
Recommendation’s finding that these are not adverse actions. (See Recommendation
at 36.) He also disputes the factual findings made by Magistrate Judge Tafoya.
In that regard, the Magistrate Judge found that “although Plaintiff disputes that
ACDF policy provides that inmates in disciplinary segregation are allowed only one “tub”
of property at a time in their cell, he does not dispute that inmates can request access to
additional property in order to rotate the items kept in their cells. (Recommendation at
36) (citing Mot. Summ. J. at 13 ¶ 48; Resp. Mot. Summ. J. 13 ¶ 48.) Further, she found
that Plaintiff does not dispute that he was instructed to decide what property he would
place in each tub or that he did not care which of the two tubs remained in his cell. (Id.)
(citing Mot. Summ. J. at 13 ¶¶ 50-51; Resp. Mot. Summ. J. at 13-14 ¶ 15-51.) In light of
10
This lawsuit was filed on March 8, 2011. (See Prisoner Compl., ECF No. 1.)
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this, Magistrate Judge Tafoya found “that a person of reasonable firmness would not be
deterred from filing future grievances and lawsuits simply because they did not have
twenty-four hour access to all of their personal property—even where that property may
include legal and religious materials.” (Id. at 36-37.) Thus, she found that Plaintiff
failed to establish a § 1983 claim for retaliation based on the alleged removal of his
legal work and religious materials. (Id. at 37.)
I disagree, and find that there are genuine issues of material fact as to this issue.
First, I note that Plaintiff contends that Defendants Emerson and Kleinheksel were
aware that they were taking his legal work and religious materials. Thus, he alleged
that Defendants told Plaintiff on April 29, 2011, that they had to take his legal work.
(TAC ¶ 39.) Plaintiff further alleged that, even though he told them he needed all of his
legal work, Defendants forcefully took his box of legal work–including law and
documents related to this case against the Defendants. (Id.) He says this “policy of
Sgt. Doizaki, is leveled to target the plaintiff, and to retaliate against him for filing
grievances and a law suit against the defendants.” (Id.) Indeed, he says in his
grievance against Doizaki, Emerson and Kleinheksel that they took his legal work after
learning that Plaintiff filed a lawsuit against them, and that it was based on a rule
implemented specifically for him. (TAC, Ex. JJ.) Due to the alleged confiscation of his
legal documents, Plaintiff averred that he was unable to provide a short “memorandum
of law” in support of his order to show cause for a preliminary injunction and a
temporary restraining order. (Id. ¶ 40.)
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On May 25, 2011, Plaintiff alleges that Emerson and Kleinheksel again took his
legal work as well as religious materials including a prayer book and prayer schedule.
(TAC ¶ 53.) Plaintiff states in a grievance related to this that Kleinheksel knows exactly
what he is talking about in connection with the taking of his prayer book. (Id., Ex. AAA.)
Plaintiff also alleges that he sent numerous requests and grievances for the return of his
property to Defendants, who denied the request. (Id., ¶ 54.) Indeed, he filed a
grievance against Doizaki, Emerson and Kleinheksel claiming that they took his legal
work and religious materials in retaliation for Plaintiff filing grievances and complaints
against them, and requested that these materials be returned. (Id., Ex. SS-1.)
Based on the above facts and evidence, I find that there are genuine issues of
material fact as to whether Emerson and Kleinheksel took Plaintiff’s legal work and
religious materials and failed to return them to him, despite his requests. I further find
that this constitutes an adverse action, as I find that it would deter an inmate of ordinary
firmness from filing complaints or grievances. See Smith v. Plati, 258 F.3d 1167, 1176
(10th Cir.2001) (“Any form of official retaliation for exercising one's freedom of speech,
including prosecution, threatened prosecution, bad faith investigation, and legal
harassment, constitutes an infringement of that freedom.”); Reneer v. Sewell, 975 F.2d
258, 260 (6th Cir. 1992) (opening of prisoner’s legal mail without justification other than
harassment may violate the First Amendment and be sufficient to constitute adverse
action); Davis v. Powell, No. 10cv1891-CAB, 2012 WL 4754688, at *13 (S.D. Cal. Oct.
4, 2012) (unpublished) (policy making it harder to order religious materials would chill a
person of ordinary firmness from exercising his religion); Doe v. Yates, No. 1:08-cv-23-
01219-LJO, 2009 WL 3837261, at *6 (E.D. Cal. Nov. 16, 2009) (Findings and
Recommendations) (unpublished) (cognizable retaliation claim was stated based on
prisoner’s allegation that defendant removed his legal materials from his cell and failed
to return all of them), adopted, No. 08-cv-0219-LJO, 2010 WL 1287056 (E.D. Cal. Jan.
13, 2010).
Finally, I find that Plaintiff has presented evidence from which an inference can
be drawn that the confiscation of his legal and religious materials was causally
connected to the filing of grievances and/or the complaint in this case against
Defendants. As noted previously, an inference may be drawn that the defendants’
actions were causally connected to the protected conduct where the evidence shows
“(1) the defendants were aware of the protected activity; (2) the plaintiff directed his
complaint to the defendants’ actions; and (3) the alleged retaliatory act ‘was in close
temporal proximity to the protected activity.’” Allen, 491 F. App’x at 5 (quotation
omitted).
Here, Plaintiff has presented evidence that his legal materials were first taken
after Defendants learned of this lawsuit, and that the confiscation of these materials was
based on a rule implemented specifically for him. (TAC, Ex. JJ.) Further, Plaintiff
asserts that the legal materials were taken a day after this court ordered that
Defendants be served copies of the summons and complaint in this case (See Order
Granting Service by United States Marshal filed April 25, 2011, ECF No. 27.) I also
note that Plaintiff filed a grievance against Doizaki on May 20, 2011, indicating that he
had filed a motion to amend the complaint in this case to add Doizaki as a defendant.
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(TAC, Ex. OO-2.) This occurred just five days before the incident on May 25, 2011
when both legal and religious materials were taken from Plaintiff. Doizaki is alleged to
be Emerson’s and Kleinheksel’s direct supervisor and to be behind the confiscation of
these materials. (Id., ¶¶ 39, 60, Ex. SS-1.) Accordingly, I find that Plaintiff has
presented evidence that creates a genuine issue of material fact as to whether
Defendants knew of the protected activity. Further, Plaintiff’s complaint in this case is
obviously directed at the activity of the Defendants. Finally, I find that the actions of the
Defendants are in close temporal proximity to the protected conduct of Plaintiff.
Based on the foregoing, the Recommendation to grant summary judgment as to
the retaliation claims based on the alleged confiscation of Plaintiff’s legal work and
religious materials is rejected. Defendants’ Motion for Summary Judgment is denied as
to this portion of the retaliation claims.
g.
Denial of Legal Telephone Calls
The Recommendation also addressed the denial of Plaintiff’s legal telephone
calls to Arapahoe County Court which allegedly occurred on June 28, 2011, by Litwiler
and Whitaker. (See TAC ¶ 67.) It found that Plaintiff failed to establish that Litwiler and
Whitaker denied his request for legal phone calls in order to retaliate against him for
exercising his constitutional rights. (Recommendation at 38.) It further noted that, while
Plaintiff claims he was proceeding pro se in the case in Arapahoe County and that he
told Defendants this, Whitaker submitted sworn testimony that he was informed by the
Arapahoe County Court that Plaintiff was represented by legal counsel and was thus
required to address the court through his attorney. (Id.) (citing Mot. Summ. J., Ex. A-35,
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Aff. of Robert Whitaker ¶ 5.) Plaintiff did not dispute that testimony. (Id.) (citing Resp.
at 16, ¶ 61.) Under these circumstances, the Recommendation found “at very best, the
denial of Plaintiff’s legal phone call was the result of a mistake” which is insufficient to
establish a § 1983 retaliation claim. (Id. at 39.)
It was also found by the Magistrate Judge that Plaintiff did not submit any
evidence to support his conclusory assertion that “‘but for’ the retaliatory motive, [he]
would’ve been allow to make legal phone calls in his pro se cases, like other inmates.”
(Recommendation at 39.) Thus, Plaintiff did not cite any evidence “to substantiate his
position that other inmates were allowed to make legal phone calls on demand in their
pro se cases or that he was in any way harmed by being denied the requested phone
call.” (Id.) Accordingly, the Recommendation concluded that Plaintiff failed to establish
specific facts showing retaliation due to the exercise of his constitutional rights. (Id.)
Plaintiff objects to these findings, and asserts that he has demonstrated a
retaliation claim in connection with the denial of his legal telephone calls. (Objections at
17-18.) I disagree, and overrule Plaintiff’s objections. I note that Defendants asserted
in their summary judgment motion that:
61. Defendant Whitaker informed Plaintiff that his written kite request for a
legal phone call was denied because, according to the court, Plaintiff was
represented by legal counsel and the court stated that Plaintiff was not to
call the court directly. Plaintiff was to address the court through his
attorney. (Ex. A-35 Defendant Whitaker Aff. at ¶5.)
(Mot. Summ. J. ¶ 61.) While Plaintiff’s response states that the above factual
allegations are denied, Magistrate Judge Tafoya is correct that he did not deny or
present evidence to refute Defendants’ evidence that the court told Whitaker that
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Plaintiff was represented by legal counsel and that Plaintiff was not to call the court
directly. (Resp. at 16-17, ¶ 61.) Accordingly, I find that Whitaker presented evidence to
show a valid and nonretaliatory reason for denying Plaintiff’s legal telephone call, and
Plaintiff did not present evidence or facts sufficient to create a genuine issue of material
fact as to a retaliatory motive. Indeed, Plaintiff’s assertion that Whitaker and/or Litwiler
had a retaliatory motive in denying Plaintiff the ability to make legal telephone calls is
merely conclusory. I further agree with Magistrate Judge Tafoya that the evidence
shows, at best, that Defendants’ failure to allow Plaintiff to make this call was a
mistake.11
Based on the foregoing, I affirm Magistrate Judge Tafoya’s recommendation that
summary judgment be granted as to the retaliation claim based on the denial of legal
telephone calls. Plaintiff’s Objections to this portion of the Recommendation are
overruled.
h.
July 30, 2011 “False” Report
Plaintiff next objects to the portion of the Recommendation addressing the July
30, 2011 “false” report, wherein Defendant Swan allegedly wrote Plaintiff up for false
misconduct in retaliation for Plaintiff’s filing of grievances against Doizaki. This write up
occurred, according to Defendants, when Swan went to Pod 4 Dayroom A at the
direction of the D.O.T. and asked Plaintiff to move his table. (Mot. Summ. J. at 15-16
¶ 64) (citing Aff. of Craig Swan [“Swan Aff.”] ¶ 7, Ex. A-27; Aff. of Nancy Sivak ¶ 12d,
11
Plaintiff’s objection that the Court failed to conduct the Turner balancing test is without merit
since this balancing test is not applicable to retaliation claims.
-27-
Ex. A-26.) Defendants assert that Plaintiff responded with profanity and refused to
move the table. (Id.) Swan states he then ordered Plaintiff to go to his cell and lock
down. (Id.) When Plaintiff’s cellmate wanted to get out of the cell, Swan asserts that
Plaintiff stated he would not remain on lockdown if the cell doors were open. (Id.)
Plaintiff was then written up for a rule B-20 violation for interfering with the duties of staff
involving the security of the facility. (Id.) Plaintiff denies these allegations, citing to his
Declaration. (See Resp. Mot. Summ. J. at 17, ¶ 65.) While the violation in the July 30,
2011 report was later dismissed, the parties dispute the reason for its dismissal. (Mot.
Summ. J. at 16 ¶ 66; Resp. Mot. Summ. J. at 17 ¶ 66; see also TAC, Ex. ZZ.)
Magistrate Judge Tafoya found that Plaintiff failed to establish that Swan acted
with a retaliatory motive. (Recommendation at 39.) She first found as to that issue that
Plaintiff failed to present evidence to refute Defendants’ assertion that Swan “‘did not
know who Plaintiff was or that he had filed grievances and lawsuits.’” (Id. at 39-40)
(quoting Swan Aff. ¶¶ 4, 6.) I agree with and affirm this finding. Plaintiff cites only to his
Declaration to show that Swan knew who he was before this incident, but I previously
held that the Declaration is not competent evidence as it is unsigned and unverified.
Even if Swan was aware of Plaintiff, Magistrate Judge Tafoya found that Plaintiff
failed to proffer any evidence suggesting that Swan wrote him up in retaliation for filing
grievances and lawsuits. (Recommendation at 40.) In fact, she noted that “it is not
clear what, if any, constitutionally protected activity allegedly precipitated Defendant
Swan’s actions.” (Id.) I agree, and affirm this finding as well. Neither the Third
Amended Complaint nor the grievance filed as to this incident describes what specific
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grievance or protected activity precipitated this incident and allegedly caused Swan to
retaliate against Plaintiff. (See TAC ¶ 70 and Ex. ZZ.) The grievance says only that the
write up was to retaliate against Plaintiff for filing unspecified grievances and lawsuits.
(TAC, Ex. ZZ.) While Plaintiff asserts in his objections that Swan wrote Plaintiff up for
false misconduct “in retaliation for Plaintiff filing grievances against Defendant Doizaki,
who ordered and authorized Defendant Swan to file the false report” (Objections at 20),
he again does not cite what grievances he is referring to or when they were filed.
Further, he does not present any evidence that Swan knew of these grievances against
Doizaki or that these grievances were the reason why Swan wrote Plaintiff up.
Moreover, Plaintiff’s allegation that Swan wrote Plaintiff up at the order of Defendant
Doizaki, a supervisor, does not support Plaintiff’s claim that it was retaliatory, as it
shows that the write up would not have been due to Plaintiff’s protected activity but to
an order of a supervisor.
Based on the foregoing, I agree with and affirm the findings in the
Recommendation that Plaintiff failed to show a causal connection between Swan’s write
up of Plaintiff and Plaintiff’s protected conduct. Accordingly, summary judgment is
granted as to this portion of the retaliation claim, and Plaintiff’s objections are overruled.
I.
Placement with a Dangerous Inmate
Plaintiff also objects to the finding that summary judgment is appropriate in
connection with the alleged retaliatory act of placing him with a dangerous inmate. This
allegedly occurred on April 27, 2011, “the same day that the plaintiff and defendants
received copies of the order granting service”, when “ in retaliation, Sgt. Doizaki,
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ordered dep. Elledge and dep. Kleinheksel, to forcefully move the plaintiff, into a cell
with inmate Swiney.” (TAC ¶ 38; see also Ex. JJ.) The complaint alleges that inmate
Swiney is 350 pounds, 200 pounds heavier than Plaintiff, and that he was placed on
administrative segregation “for being a bully, intimidater [sic], and a sexual preditor [sic]”
and “for being a threat to the security and safety of inmates.” (Id.) In contrast, Plaintiff
alleges he was on administrative segregation because he fears for his safety. (Id.) It is
undisputed that Swiney was moved out of Plaintiff’s cell the next day, on April 28, 2012.
Plaintiff filed grievances about this incident on April 27, 28, and 29, 2011. (TAC, Exs.
HH, II, JJ.) He asked therein that he be moved out of the cell with Swiney for his safety,
and stated that Defendants “intentionally moved” Plaintiff “into a cell with an inmate who
you don’t even want in [general population] & around other inmates!” (Id.)
Magistrate Judge Tafoya found that Plaintiff failed to establish that Swiney was
transferred into Plaintiff’s cell to retaliate against him for filing grievances and lawsuits.
(Recommendation at 40.) That is because Plaintiff failed to present evidence
supporting his “conclusory assertion” that Doizaki, Elledge, and Kleinheksel “‘would not
have moved the Plaintiff in the cell with [Swiney] but for a retaliatory motive.’” (Id.)
(quoting Resp. Mot. Summ. J. at 18, ¶ 70) (internal quotation marks omitted) (see also
TAC ¶ 38.)
Plaintiff asserts that this finding is erroneous. He protested being housed with
Swiney, who was placed on administrative segregation for violence, and requested to
be with an inmate similarly situated to him who was on administrative segregation for
safety reasons. (Resp. Mot. Summ. J. at 18 ¶ 70; TAC ¶ 38.) He further asserts that
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this move was questionable as it occurred on the eve of the Defendants receiving
copies of the Court’s Order in this case granting service by United States Marshal (ECF
No. 27), and Defendant Doizaki’s threat of violence against Plaintiff. (Resp. Mot.
Summ. J. at 9 ¶ 33.) I note, however, that the alleged threats of violence by Doizaki did
not occur close in time to this incident. (See Section II.B.e, supra.) Further, even if I
assume that this move occurred the day after Defendants learned of the Court’s Order
granting service in this case against them, I find that Plaintiff failed to present specific
facts or evidence to create a genuine issue of material fact that Defendants’ actions
related to Plaintiff’s placement with Swiney were causally connected to the Court’s
Order or to constitutionally protected activity of Plaintiff.
As noted by the Recommendation, “Plaintiff does not dispute that ACDF staff
was in the process of consolidating all inmates into one location—which required that
inmates be doublebunked—and that Plaintiff and the purportedly dangerous inmate
were placed into one cell because they were previously housed next to each other.”
(Recommendation at 40) (see also Mot. Summ. J. at 16-17 ¶¶ 69-70 and Ex. A-24, Aff.
of Vince Sauter, Attach. 1; Resp. Mot. Summ. J. at 18 ¶¶ 69-70.) Plaintiff failed to
present facts sufficient to create a genuine issue of material fact that Defendants’ real
reason for placing inmate Swiney with him was because of retaliation. Plaintiff also
does not dispute that Swiney was returned to the general population only one day after
he was placed in the same cell as Plaintiff. Based on this, I agree with the
Recommendation that Plaintiff failed to establish that Doizaki, Elledge, and
Kleinheksel’s decision to transfer Swiney into Plaintiff’s cell would not have occurred
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“but for” retaliation. The Recommendation is affirmed as to this issue, and Plaintiff’s
Objections are overruled.
j.
Cumulative Effect of Retaliatory Acts
Finally, Magistrate Judge Tafoya concluded as to Plaintiff’s retaliation claims that
even when all of the above incidents are considered cumulatively, “Plaintiff has failed to
establish that either (1) he was engaged in constitutionally protected activity, (2) that
Defendants’ actions were sufficient to chill a person of ordinary firmness from continuing
to engage in that activity, or (3) that Defendants’ adverse actions were based on
Plaintiff’s exercise of his constitutional rights. (Recommendation at 41.) To the extent
that any of the remaining Defendants were not discussed, Magistrate Judge Tafoya
found that Plaintiff “failed to establish that those defendants personally participated in
any allegedly retaliatory conduct.” (Id.) Thus, she found that Defendants’ Motion for
Summary Judgment should be granted as to Claims One and Three asserting
retaliation, and that Defendants are entitled to qualified immunity as to these claims.
(Id. at 42.) Except to the extent that I found summary judgment should be denied as to
the retaliation claim based on the alleged confiscation of Plaintiff’s legal and religious
materials, I agree with and affirm this portion of the Recommendation.
2.
Access to the Courts
I now turn to the objections to the recommendation as to Claims Two and Seven
alleging a violation of Plaintiff’s First Amendment right of access to the courts and to
petition the government for grievances. Magistrate Judge Tafoya found that Plaintiff
failed to establish these claims as he did not submit any evidence that Defendants’
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actions caused him any actual injury. (Recommendation at 44-45.) Accordingly, she
found that the Defendants sued in these claims are entitled to qualified immunity, and
that summary judgment is proper as to those claims. (Id. at 45.)
Plaintiff objects to the finding that he did not present facts sufficient to show
actual injury. In support of this, however, Plaintiff refers only to unsubstantiated
allegations which do not detail how he was actually injured by Defendants’ actions.
Thus, I agree with the Magistrate Judge that Plaintiff failed to provide evidence that he
was actually impeded in his ability to conduct a particular case as required by Lewis v.
Casey, 518 U.S. 343, 348-55 (1996). The Recommendation to grant summary
judgment as to these claims is affirmed, and Plaintiff’s Objections are overruled.
3.
Religious Rights
Plaintiff also objects to the Recommendation regarding Claims Four and Five
alleging that Robinson, Sauter, Wickstron, Doizaki, Kleinheksel, and Emerson violated
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Plaintiff’s First
Amendment free exercise rights by confiscating, refusing to return, and then losing his
Islamic prayer book and prayer schedule. As a threshold matter, the Magistrate Judge
found that Plaintiff could not establish his RLUIPA claim to the extent it was against
Defendants in their individual capacity, as RLUIPA permits cases only against a
government entity and not against an individual official. (Recommendation at 45-46.)
Plaintiff has not shown any error in this finding. Accordingly, this finding is affirmed.
Magistrate Judge Tafoya also found that Plaintiff failed to establish that
Defendants Robinson, Sauter, Wickstrom, and Doizaki personally participated in any
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violation of his First Amendment rights. (Recommendation at 46-47.) Thus, she
recommended that these Defendants be granted qualified immunity and that summary
judgment be entered in their favor on Claims Four and Five. (Id. 49.) Plaintiff asserts in
his Objections that he did establish personal participation by Robinson, Sauter,
Wickstrom and Doizaki. Plaintiff points to his allegations that he submitted numerous
kites and grievances to these Defendants requesting that his legal work and religious
materials be returned, and complaining that their subordinates were subjecting him to
constitutional violations. (See TAC at ¶¶ 54, 86.) However, the Recommendation noted
that “the ‘denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal participation under §
1983.’” (Recommendation at 47) (quoting Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir. 2009)). Thus, Magistrate Judge Tafoya correctly found that even if
Defendants Doizaki, Robinson, Sauter and/or Wickstrom denied Plaintiff’s kites and
grievances requesting the return of his religious materials, this fails to establish the
required personal participation. (Id.) Accordingly, this portion of the Recommendation
is also affirmed, and summary judgment is granted as to Claims Four and Five against
Defendants Robinson, Sauter, Wickstrom and Doizaki.12
Finally, the Recommendation addressed the official capacity claims against
Emerson and Kleinheksel that were asserted in Claims Four and Five. It found that
12
To the extent that Plaintiff asserts that any deficiencies in the evidence and his ability to
develop facts as to the nature and extent of the Defendants’ involvement is related to the Court’s rulings
related to discovery or to Plaintiff’s unfamiliarity with the discovery rules, this argument is rejected as
discussed in Section II.A, supra.
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Plaintiff did not establish that the actions at issue placed a substantial burden on his
ability to practice his religion. (Recommendation at 48.) In that regard, it was noted that
Defendants deny taking Plaintiff’s religious materials and cite to the policy that Plaintiff
could only have one tub in his cell. (Recommendation at 48; see also Mot. Summ. J. ¶
50.) Defendants assert, pursuant to that policy, that Plaintiff’s excess property was
placed into a second tub and that he indicated he did not care which tub remained in his
cell. (Mot. Summ. J. ¶¶ 50-51.) Further, they assert that they did not take his religious
materials. (Id.; see also Ex. A-5, Aff. Of Logan Emerson ¶¶ 9-10; Ex. A-14, Aff. Of
David Kleinheksel ¶¶ 7-8; Ex. A-3, Aff. Of Randall Doizaki ¶¶ 6, 8.) The
Recommendation also found that Plaintiff failed to show that Emerson and Kleinheksel
were responsible for the loss of his prayer book and that, even if they were, Plaintiff did
not establish “that it was anything more than a negligent act.” (Id. 49.) Accordingly, it
was recommended that these Defendants also be granted qualified immunity and that
summary judgment enter in their favor. (Id.)
Plaintiff asserts in response that he is not alleging that ACDF’s policy regarding
only one tub of property in disciplinary segregation placed a substantial burden on his
ability to practice his religious. Instead, he asserts that Emerson and Kleinheksel
placed a substantial burden on his ability to practice his religious when they confiscated
his Islamic prayer book and prayer schedule while he was in administrative segregation,
and denied his numerous requests to return the items. (Objections at 33-34) (citing
TAC ¶¶ 53-54, 96, 91.) Indeed, he alleged in the complaint that these religious
materials were taken on May 25, 2011, by Emerson and Kleinheksel. (TAC ¶ 53.) He
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also alleged that he sent numerous requests and grievances for the return of his
property to Defendants, who denied the request. (Id. ¶¶ 54, 86, 91.) In support of these
allegations, Plaintiff filed grievances against Doizaki, Emerson and Kleinheksel on both
May 25, 2011, and August 4, 2011, claiming that they took his religious materials in
retaliation for Plaintiff filing grievances and complaints against them, and requested that
these materials be returned. (Id., Exs. SS-1, AAA.)
Based on the above facts and evidence, I find that there are genuine issues of
material fact as to whether, irrespective of the one tub policy, Emerson and Kleinheksel
purposely took Plaintiff’s prayer book and prayer schedule and failed to return them to
him, despite his requests. Thus, I must determine whether Plaintiff has shown that the
other elements of his religious claims are met.
As to Claim Four alleging a violation of the First Amendment in connection with
the free exercise of religion, there is a two-step inquiry. Peterson v. Lampert, No. 118107, 2012 WL 4857050, at *2 (10th Cir. Oct. 15, 2012) (unpublished). First, Plaintiff
must show “‘that a prison regulation substantially burdened sincerely-held religious
beliefs.’” Id. (quoting Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)). Second, if
the prison-official defendants identify a legitimate penological interest that they contend
justified the impinging conduct, the court must then balance the factors set forth in
Turner v. Safley, 482 U.S. 78, 89-91 (1987) to determine the reasonableness of the
regulation. Kay, 500 F.3d at 1218. As to claim five asserting a violation of RLUIPA,
Plaintiff must show that he wished to engage in “(1) a religious exercise (2) motivated by
a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by
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the government.” Peterson, 2012 WL 4857050, at *3 (quoting Abdulhaseeb v. Calbone,
600 F.3d 1301, 1312 (10th Cir.2010)).
Thus, as to both claims, Plaintiff must show that his religious beliefs are sincerely
held and that the confiscation of his prayer book and prayer schedule substantially
burdened his free exercise of religion. Defendants contest both of these elements. I
find that Plaintiff has presented evidence that creates a genuine issue of material fact as
to these elements. First, as to whether Plaintiff’s religious beliefs are sincerely held, it is
undisputed that Plaintiff is Muslim. While Defendants assert that Plaintiff’s religious
beliefs may be questioned since it took over two months for Plaintiff to make the
allegation that his prayer book was missing (see TAC ¶ 71), they have not shown that
this is material. Plaintiff may not have needed the prayer book to prepare for Ramadan
until then. Moreover, there is disputed evidence about this since Plaintiff submitted a
grievance about the alleged confiscation of his religious materials on the same day he
says they were confiscated. (TAC, Ex. SS-1.)13
Second, as to whether there was a substantial burden, a person's religious
exercise is substantially burdened “when a government (1) requires participation in an
activity prohibited by a sincerely held religious belief, or (2) prevents participation in
conduct motivated by a sincerely held religious belief, or (3) places substantial pressure
on an adherent either not to engage in conduct motivated by a sincerely held religious
13
Also, while Defendants assert that Plaintiff’s claimed sincerely held beliefs may be
questioned because Plaintiff left his Qur’an in his cell when he was released from the Detention
Facility on August 20, 2011, Plaintiff asserts that the Qur’an belonged to the Detention Center,
not to him.
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belief or to engage in conduct contrary to a sincerely held religious belief.”
Abdulhaseeb, 600 F.3d at 1315. The question is not whether the acts in question
substantially burden “the exercise of any Muslim practitioner”, “but whether it
substantially burdens” Plaintiff’s “own exercise of his sincerely held religious beliefs.” Id.
at 1314. “‘In assessing this burden, courts must not judge the significance of the
particular belief or practice in question”, as “‘RLUIPA bars inquiry into whether [the]
belief or practice is central to a prisoner’s religion.’” Id. at 1314 n. 6 (quotation and
internal quotation marks omitted).
Here, construing the evidence in the light most favorable to Plaintiff, he has
presented evidence through his verified complaint that the confiscation of his prayer
book and prayer schedule prevents participation in conduct motivated by a sincerely
held religious belief, i.e., he alleges that he was denied the ability to practice and learn
his prayers in Arabic before Ramadan. (TAC ¶ 71.) He also stated in a grievance he
filed that the prayer book denied him the ability to practice his religion, especially during
Ramadan. (TAC, Ex. AAA.) Defendants do not appear to challenge the religious nature
of these beliefs. See Abdulhaseeb, 600 F.3d at 1314-1315.
Based on the foregoing, I find that there are genuine issues of material fact as to
whether Plaintiff’s rights under RLUIPA were violated. I also find that Plaintiff has
shown that there are genuine issues of material fact as to the first prong of his free
exercise of religion claim. As to the second prong, Plaintiff alleged that the confiscation
of his religious materials “serves no legitimate penological interest”. (TAC ¶ 71.) Again,
while Defendants rely on the fact that the materials were taken pursuant to the one tub
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policy, Plaintiff disputes this and alleges that they failed to return his materials despite
numerous requests. Again, I find there are genuine issues of material fact on this issue.
Finally, I am unable to determine whether the factors set forth in Turner v. Safley are
satisfied, as they were not briefed by the Defendants.14 However, since Plaintiff is not
contesting the policy relied on by Defendants but arguing that his religious materials
were taken and were not returned in retaliation for the exercise of his constitutional
rights, the Turner factors may be inapplicable.
In conclusion as to Claims Four and Five alleging a violation of Plaintiff’s free
exercise of his religion and RLUIPA, I affirm the recommendation that summary
judgment be granted on Plaintiff’s RLUIPA claim against Defendants sued in their
individual capacity. I also affirm the recommendation that summary judgment be
granted as to Defendants Robinson, Sauter, Wickstrom and Doizaki because Plaintiff
failed to show personal participation. I reject the recommendation that summary
judgment be granted as to Claims Four and Five against Defendants Emerson and
Kleinheksel in their official capacity, and deny Defendants’ Motion for Summary
Judgment as to these claims.
4.
Due Process
There is also an objection to the Recommendation’s findings as to Claim Eight,
alleging that Defendants’ actions allegedly taken to retaliate against Plaintiff for filing
14
Indeed, Defendants argued in their summary judgment motion only that Plaintiff failed to prove
that Defendants Emerson and Kleinheksel took Plaintiff’s prayer book or that the policy regarding one tub
of property in disciplinary segregation was a substantial burden causing Plaintiff to modify or violate his
beliefs. (See Mot. Summ. J. 30-31; Reply in Supp. Of Mot. Summ. J. at 11-12.)
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grievances and lawsuits amounted to punishment in violation of Plaintiff’s Fourteenth
Amendment due process rights. The Recommendation found “that, to the extent that
this claim is not merely duplicative of Claims One and Three, it nevertheless must fail.”
(Recommendation at 52.) It noted that pretrial detainees “‘may not be punished prior to
an adjudication of guilt in accordance with due process of law’” (id. at 52) (quoting Bell
v. Wolfish, 441 U.S. 520, 535 (1979)), but found that Plaintiff did not establish that
Defendants’ acts amounted to “punishment.” (Id. at 52-53.) In that regard, Magistrate
Judge Tafoya noted her previous finding that Defendants did not retaliate against
Plaintiff. (Id. at 52). Accordingly, she found that Plaintiff failed to establish a violation of
his due process rights, that Defendants are entitled to qualified immunity as to this
issue, and that summary judgment should be granted as to this claim. (Id. at 53.)
Plaintiff objects to these findings, arguing that Defendants’ actions taken to
retaliate against him for filing grievances and lawsuits amount to punishment in violation
of his due process rights. Plaintiff states he argued that Defendants’ actions were taken
without a legitimate government purpose, and that the court failed to determine whether
Defendants’ actions alleged by Plaintiff were taken for the purpose of punishment or
some other legitimate government purpose.
I affirm the Recommendation on this claim to the extent I have found that
summary judgment is appropriate as to retaliatory actions complained of by Plaintiff.
Magistrate Judge Tafoya noted as to those claims that Plaintiff did not establish that
Defendants’ acts amounted to “punishment” as required to state a due process claim.
(Recommendation at 52-53.) She also stated that “Plaintiff has not otherwise argued
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that Defendants’ actions were taken without a legitimate government purpose and, in
most instances, Defendants have proffered such a purpose or the purpose is selfevident.” (Id.) I agree with and affirm these findings. Plaintiff provided no facts to
support his conclusory statements that these actions were taken without a legitimate
government purpose. (See Objections at 37.) “Unsubstantiated allegations carry no
probative weight in summary judgment proceedings.” Cardoso v. Calbone, 490 F.3d
1194, 1197 (10th Cir. 2007).
However, I found in Section II.B.1.f., supra, that the Recommendation should be
rejected, and summary judgment should be denied, as to the retaliation claim based on
the alleged taking of Plaintiff’s legal and religious materials. The question is whether
Plaintiff has shown that those acts amounted to punishment or whether there was a
legitimate governmental purpose for these acts. See Bell v. Wolfish, 441 U.S. 520, 535
(1979). Plaintiff has averred that these acts were done in retaliation for the exercise of
his protected rights and I find, construing the evidence in the light most favorable to
Plaintiff, that this could constitute punishment. Further, while Defendants argued that
these materials were either not taken by them or were taken pursuant to the one tub
policy, I found that there are genuine issues of material fact as to this. Thus, I find that
there are genuine issues of material fact as to whether there was a legitimate
governmental purpose for the taking of these materials.
Based on the foregoing, the recommendation to grant summary judgment as to
the due process claim is affirmed in part and rejected in part. It is affirmed to the extent
I found summary judgment should be granted as to alleged retaliatory acts of Plaintiff. It
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is rejected as to the alleged retaliatory acts related to the confiscation of Plaintiff’s legal
and religious materials discussed in Section II.B.f., supra, for which I have denied
summary judgment.
5.
Equal Protection
Claim Nine alleges a violation of Plaintiff’s right to equal protection under the
Fourteenth Amendment. (See Recommendation at 53; TAC at 40.) Magistrate Judge
Tafoya notes that Plaintiff asserts his religious materials were confiscated upon being
placed in the disciplinary segregation housing unit because he was Muslim while other
inmates of different faiths who were similarly situated were allowed their religious
materials. (Recommendation at 53.) She found that Plaintiff did not submit any
evidence to support this assertion. (Id. at 53-54.) In fact, she found that Plaintiff did not
demonstrate that he was not permitted to have his religious materials, or that
Defendants “deprived” him of his religious material because he is a Muslim. (Id.)
Magistrate Judge Tafoya thus rejected Plaintiff’s equal protection argument, including
his class-of-one theory, on the basis that Plaintiff “failed to proffer any evidence proving
that he was similarly situated in all material respects to other inmates at ACDF, nor has
he demonstrated that he was intentionally treated differently from those other inmates.”
(Id. at 54.)15 Accordingly, she found that Defendants are entitled to qualified immunity
and that summary judgment should be granted as to this claim. (Id. at 55.)
15
“Class of one doctrine focuses on discrimination not between classes or groups of persons, as
‘traditional’ equal protection doctrine does, but on discrimination against a specific individual.” SECSYS,
LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012). “[A] plaintiff raising a class of one claim must proceed
through essentially the same two steps a plaintiff alleging a class-based claim must.” Id.
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I first address Plaintiff’s objection to some of the factual findings. Plaintiff submits
that, contrary to the Recommendation’s finding, he provided evidence that disputes
Defendants’ contention that he could request access to additional property to rotate the
items kept in their cells. He averred he sent numerous requests and grievances for his
religious materials to be returned, only to be denied by Defendants Doizaki, Wickstrom
and Sauter. He also averred that his religious materials were confiscated forcefully and
without his consent, and that he did not get to choose whether to keep these materials.
While I agree that there are genuine issues of material fact on this issue, that does not
provide a basis for rejecting the Recommendation as to this claim.
Plaintiff is alleging an equal protection claim based on his religion–that he was
personally denied equal treatment on the basis of his religion. See Abdulhaseeb v.
Saffle, 65 F. App’x 667, 674 (10th Cir. 2003) (unpublished). In order to survive
summary judgment, Plaintiff must show that Defendants treated similarly situated
groups differently (or for the class-of-one claim, that Defendants treated him differently)
and that the differential treatment was motivated by impermissible consideration of
religion. See Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 WL 5957978, at *11
(D. Colo. 2005) (unpublished).
Plaintiff argues that he presented evidence to support these requirements. I
disagree. Plaintiff’s Third Amended Complaint alleges only that “[t]he level of disparate
treatment, leveled at the plaintiff, by the defendants, is different than other [sic] similarly
situated, and is a result of intention and purposeful discrimination, in violation of the
Equal Protection clause of the Fourteenth Amendment.” (TAC ¶ 106.) He does not
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identify any other inmates who were similarly situated to him that were treated
differently. Plaintiff has submitted only “vague and conclusory allegations, without any
specific facts” that other inmates were treated more favorably.” Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1323 (10th Cir. 2010); see also Padilla v. Enzor, 279 F. App’x
606, 613 (10th Cir. 2008) (equal protection claim failed because Padilla did not identify
any inmate, similarly situated to him, that defendants treated differently) (unpublished);
Backus v. Ortiz, 246 F. App’x 561, 564 (10th Cir. 2007) (the district court properly
dismissed equal protection claim because Backus “did not provide any evidence to
establish that any other inmates are similarly situated to him”) (unpublished).
I also find that Plaintiff failed to present evidence or facts that support an
inference that Defendants’ actions were related to his religion. Indeed, he alleges that
these acts were done in retaliation for him filing grievances. Accordingly, I agree with
Magistrate Judge Tafoya that summary judgment is proper as to this claim. See
Hughes v. Heimgartner, No. 12-3250-SAC, 2013 WL 760600, at *2 (D. Kan. Feb. 27,
2013) (unpublished) (dismissal was appropriate on prisoner’s equal protection claim
alleging that he was denied his requests for Halal meals in segregation where plaintiff
alleged no facts showing that he is or was similarly situated to other Muslim inmates
and did not “allege facts suggesting that he was treated differently from other inmates
because of his religion or some other suspect classification”); Gibson v. Pacheco, No.
09-cv-02328-WYD-KLM, 2012 WL 4033958, at *3 (D. Colo. Sep. 13, 2012)
(unpublished) (equal protection claim failed because “Plaintiff failed to satisfy his burden
of demonstrating that discriminatory intent was the motivating factor in revoking his
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Kosher diet, or that he was treated differently from similarly situated inmates”); see also
Ciempa v. Jones, 745 F. Supp. 2d 1171, 1197 (N.D. Okla 2010). Plaintiff’s allegations
are nothing “‘more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.’” Hughes, 2013 WL 760600, at *2 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
6.
Conspiracy
Plaintiff also objects to the Recommendation regarding Claim Eleven, alleging
that Defendants conspired against Plaintiff in violation of his rights under 42 U.S.C.
§ 1983. Magistrate Judge Tafoya found that this claim fails as a matter of law, and that
Defendants are entitled to qualified immunity as to this claim, as Plaintiff did not
establish that his constitutional rights were violated. (Recommendation at 56.) Further,
she found that Plaintiff failed to point to specific facts demonstrating that Defendants
had a meeting of the minds and engaged in concerted action with the objective of
violating his constitutional rights. (Id. at 55.) Accordingly, she recommends that
summary judgment also be granted on this claim.
Plaintiff’s Objections first assert that on December 19, 2010, a day after Plaintiff
filed a grievance against Cummings, Cummings threatened him with a Captain’s
Segregation order–the worst punishment in jail–if Plaintiff continued filing grievances.
Next, he asserts that on February 15, 2011, a day after he filed a grievance against
Cummings, Cummings threatened to file a counterclaim against Plaintiff if he filed a
lawsuit. Finally, on February 25, 2011, a day after Plaintiff filed a grievance against
Doizaki, Doizaki threatened that “what happened to inmate Winfield will happen to you”
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if Plaintiff continued to file grievances. Plaintiff contends that after these threats and the
filing of his grievances and this lawsuit he encountered adverse repercussions, and
asserts that threats can substantiate the meeting of the minds element of a conspiracy
claim. Thus, he asserts that Defendants are not entitled to qualified immunity.
I overrule Plaintiff’s Objections and affirm the recommendation to grant summary
judgment as to this claim. As noted by Defendants, the only facts Plaintiff asserts
supporting his claim of a meeting of the minds is in reference to two alleged individual
acts by Defendant Cummings and one alleged individual act by Defendant Doizaki.
Even when I view these facts in the light most favorable to Plaintiff, they do not show a
meeting of the minds among all Defendants–let alone a meeting of the minds between
Defendants Cummings and Doizaki–to engage in concerted action to violate Plaintiff’s
constitutional rights. Further, the conclusory reference to threats and adverse
repercussions also does not suffice to show a meeting of the minds between the
Defendants as required to state a conspiracy claim.
7.
Municipal Liability
Claim Twelve asserts a § 1983 municipal liability claim against the Arapahoe
County Sheriff’s Department. Plaintiff also names a number of the individual-defendant
employees of the Sheriff’s Department in their official capacities, which capacity claims
were found to be “effectively identical to Claim Twelve.” (Recommendation at 56.)
Magistrate Judge Tafoya found that Defendants are entitled to summary judgment with
respect to the official capacity claims and that the Arapahoe County Sheriff’s
Department is entitled to summary judgment on Claim Twelve because Plaintiff failed to
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identify any action taken pursuant to an official policy that caused a violation of his
constitutional rights. (Id.) She also found that the municipal claim failed because, even
viewing the facts in the light most favorable to Plaintiff, he did not establish facts
demonstrating that the individual defendants violated his constitutional rights. (Id. 57.)
Plaintiff asserts in his Objections that he has identified action taken pursuant to a
policy, practice or custom that caused a violation of his constitutional rights. He argues
in that regard that a “deliberate indifference” to the rights of a prison’s inhabitants can
be thought of as a city “policy or custom” and that “serial misconduct” directed at a
single victim may be sufficient to establish municipal liability, citing Baron v. Suffolck
County Sheriff’s Dept., 402 F.3d 225 (1st Cir. 2005). I overrule Plaintiff’s Objections as
to the municipal liability claim. Plaintiff’s assertions on this issue are conclusory, and he
failed to provide specific facts of any action taken pursuant to an official policy that
caused a constitutional violation. “Unsubstantiated allegations carry no probative weight
in summary judgment proceedings.” Cardoso, 490 F.3d at 1197. Thus, Plaintiff failed
to establish a predicate constitutional harm necessary for an official capacity claim,
Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978), and the recommendation to
grant summary judgment as to Claim Twelve is affirmed.
8.
State Law Claims
Claims Fifteen through Twenty-One allege violations of state law. Magistrate
Judge Tafoya found that since summary judgment was appropriate as to all the federal
claims, the court should decline to exercise jurisdiction over the state law claims.
(Recommendation at 57-58.) This recommendation must now be rejected as moot, as I
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found that summary judgment should be denied as to Plaintiff’s religious claims as well
his due process and retaliation claims related to the alleged confiscation of his legal and
religious materials. Since federal claims now remain pending, the Court retains
jurisdiction over the state law claims.16
9.
Appeal
Finally, Magistrate Judge Tafoya recommended that the court certify, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal from this recommendation would not be taken
in good faith and therefore in forma pauperis status be denied for the purpose of appeal.
(Recommendation at 58-59.) Since there are claims that survive summary judgment,
this recommendation is rejected as moot.
III.
CONCLUSION
For the reasons discussed in this Order, the Recommendation of United States
Magistrate filed November 27, 2012 is affirmed in part and rejected in part. Specifically,
it is rejected as to the recommendation that summary judgment be granted as to Claims
Four and Five asserting a violation of Plaintiff’s religious rights. It is also rejected as
the finding that summary judgment should be granted as to the portion of the retaliation
claims (One and Three) and the due process claim (Claim Eight) based on the alleged
confiscation of Plaintiff’s legal and religious materials. The portions of the
Recommendation that found the Court should not retain jurisdiction over the state law
claims and that the Court should make a certification pursuant to 28 U.S.C. § 1915(a)(3)
16
I also note that Defendants provided no other argument in their summary judgment motion as
to why the state law claims should be dismissed.
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are rejected as moot. All other findings in the Recommendation are affirmed and
adopted. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge is
AFFIRMED IN PART AND REJECTED IN PART in accordance with this Order. In
accordance therewith, it is
ORDERED that Defendants Settambrino, Mollender and Wood are DISMISSED
from the case and shall hereafter be taken off the caption. It is
FURTHER ORDERED that Claims Ten, Thirteen and Fourteen are DISMISSED.
It is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment filed on
March 29, 2012 (ECF No. 136) is GRANTED IN PART AND DENIED IN PART. It is
DENIED as to (1) the portion of Claims One and Three alleging a retaliation claim
against Defendants Doizaki, Emerson and Kleinheksel based on their alleged
confiscation of Plaintiff’s legal and religious materials, (2) the portion of Claim Eight
alleging a due process violation based on the alleged confiscation of Plaintiff’s legal and
religious materials; (3) Claims Four and Five alleging a violation of Plaintiff’s free
exercise of his religion and the Religious Land Use and Institutionalized Persons Act;
and (4) the state law claims–Claims Fifteen through Twenty-One. It is GRANTED as to
Claims Two and Seven (First Amendment right of access to the courts and to petition
the government for grievances), Claim Nine (violation of equal protection), Claim Eleven
(conspiracy under 42 U.S.C. § 1983), Claim Twelve (§ 1983 municipal liability claim),
and the remainder of Claims One and Three alleging retaliation and Claim Eight alleging
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violations of due process, i.e., as to all actions of Defendants except the alleged
confiscation of Plaintiff’s legal and religious materials. Finally, it is
ORDERED that Plaintiff’s requested relief for preliminary and permanent
injunctive relief against the Defendants is DENIED AS MOOT.
Dated: March 25, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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