Freeman v. Woolston et al

Filing 198

ORDER Adopting and in Part, Rejecting in Part the Magistrate Judge's Recommendation. The magistrate judge's report and recommendation 186 is, thus, ADOPTED in part and REJECTED in part. Freeman's motion for summary judgment 151 is DENIED in full. Defendants' motion for summary judgment 129 is GRANTED in part and DENIED in part. The Court grants Freeman's "Motion to Show Cause" 195 . The Court requests that the magistrate judge set a final pretrial conference and conduct such other proceedings and enter such other orders as may be appropriate, consistent with this Order by Judge David M. Ebel on 03/28/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01756-DME-MJW
MARCUS LELAND FREEMAN,
Plaintiff,
v.
WOOLSTON, Vocational Instructor,
LIKEN, Educational Department,
Defendants.
ORDER ADOPTING IN PART, REJECTING IN PART THE MAGISTRATE JUDGE’S
RECOMMENDATION
This matter comes before the Court on the parties’ objections (Docs. 190, 192) to
the magistrate judge’s report and recommendation, dated December 14, 2012, which
addresses the parties’ cross-motions for summary judgment (Doc. 186). After
considering the parties’ objections, the Court ADOPTS the magistrate judge’s
recommendation IN PART, and REJECTS it IN PART. The Court, therefore, DENIES
Plaintiff Marcus Freeman’s motion for summary judgment (Doc. 151), and GRANTS in
part and DENIES in part Defendants’ motion for summary judgment (Doc. 129).
I. Preliminary discovery matter
In his objections, Freeman raises a preliminary matter. He contends that the
magistrate judge erred in not giving him more time to locate witnesses, after the
discovery deadline passed. Since Freeman raised this issue in his objections, however,
the Court has affirmed the magistrate judge’s decision denying Freeman more time for

discovery. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1179-80 (10th Cir. 2008)
(holding district court did not abuse its discretion in denying Fed. R. Civ. P. 56(f) (now
Rule 56(d)) motion where movant already had six months to conduct the requested
discovery).
II. Standard of review
This court must review de novo any part of the magistrate judge’s
recommendation to which there has been a timely objection. 1 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3); see also Garrett v. BNC Mort., Inc., --- F. Supp. 2d ---, 2013
WL 878749, at *1 (D. Colo. Mar. 7, 2013).
As previously mentioned, the magistrate judge’s recommendation addresses the
parties’ cross-motions for summary judgment. The Court must “grant summary
judgment 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). “In
determining whether the moving party is entitled to judgment as a matter of law based
on the record, we review the evidence and draw reasonable inferences therefrom in the
light most favorable to the nonmovant.” Constitution Party of Kan. v. Kobach, 695 F.3d
1140, 1144 (10th Cir. 2012) (addressing cross-motions for summary judgment) (internal
quotation marks omitted). Because Freeman is proceeding pro se, the Court liberally
construes his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
The magistrate judge recommends denying Freeman’s motion for summary judgment,
and Freeman does not expressly object to that recommendation. Further, it is
appropriate to deny Freeman’s summary judgment motion because, in it, Freeman
argued that there are disputed issues of fact that require a trial. The Court, therefore,
ADOPTS the magistrate judge’s recommendation in this regard and DENIES Freeman’s
summary judgment motion.

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III. Freeman’s claims
The magistrate judge thoroughly set forth Freeman’s allegations. 2 Briefly
summarized, Freeman, a federal prisoner, asserts Bivens 3 claims alleging that Bureau
of Prisons (“BOP”) guards, Defendants Phil Woolston and Robert Liken, 4 violated the
Eighth Amendment by assaulting Freeman on two separate occasions. To succeed on
these claims, Freeman “must show (1) that the alleged wrongdoing was objectively
harmful enough to establish a constitutional violation; and (2) that defendants acted with
a sufficiently culpable state of mind.” Norton v. City of Marietta, 432 F.3d 1145, 1154
(10th Cir. 2005) (per curiam); see also Hudson v. McMillian, 503 U.S. 1, 8 (1992).
A. First incident - July 6, 2010
Regarding the first incident, the evidence, viewed in the light most favorable to
Freeman, establishes the following: As Woolston was escorting the handcuffed
Freeman out of his cell, Woolston, without provocation, grabbed Freeman’s arm
forcefully, shoved Woolston so that his face hit the cell door frame, shoved him again so
that his shoulder hit a locker in the cell, and threw him to the ground. Liken then helped
Woolston drag Freeman, on his knees, back into the cell, where the two guards twisted
The Court accepts Freeman’s assertion, in his objections, that he alleged that prison
medical personnel waited over an hour to examine him after the July 6, 2010 incident.
Despite this allegation, however, Freeman did not assert a separate cause of action
alleging the unconstitutional deprivation of medical treatment.

2

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
3

Although Freeman identified this Defendant as Liken, Defendants assert that his name
is, instead, Likens. Because Defendants have not moved to correct the caption,
however, the Court will continue to refer to this Defendant as Liken. See Murphy v.
Gardner, 413 F. Supp. 2d 1156, 1160 n.2 (D. Colo. 2006).
4

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Freeman’s arms upward and hit him more than ten times about the head and neck with
closed fists. As a result of this assault, Freeman alleged he suffered injuries to both
knees and pain in his shoulder, neck and head. Prison officials treated Freeman for a
skinned knee. 5
1. Whether the alleged wrongdoing was objectively harmful enough
to establish a constitutional violation
The magistrate judge recommends granting Defendants summary judgment as to
this incident because Freeman failed to establish that Defendants’ alleged wrongdoing
was “objectively harmful enough to establish a constitutional violation.” (Doc. 186 at 9
(internal quotation marks omitted).) More specifically, the magistrate judge determined
that Freeman had “fail[ed] to state a claim of constitutional magnitude because the force
used against [Freeman] was both de minimus and not of a nature that is repugnant to
mankind.” (Id. at 9-10.) Freeman objects to the magistrate judge’s recommendation.
Freeman is correct that, to prevail on his Eighth Amendment claim, he does not
have to prove that he suffered serious injuries as a result of the alleged assault. See
Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175, 1176 (2010) (citing Hudson, 503 U.S. at
4). The extent of his injuries is, however, one factor that may bear on whether the force
applied was de minimis. See id. Nonetheless, “[i]njury and force . . . are only
imperfectly correlated, and it is the latter that ultimately counts.” Id. at 1178.

Defendants dispute Freeman’s version of this incident, asserting instead that Freeman
struggled with Woolston, as Woolston tried to escort Freeman from his cell, requiring
Defendants to force Freeman against the cell door frame and then take him to the
ground in an attempt to regain control over him. At the summary-judgment stage of this
litigation, however, the Court must view the evidence in the light most favorable to
Freeman.
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4

In this case, Freeman’s evidence (his own statements based on his personal
knowledge and made under oath or penalty of perjury, see Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991)), indicates that Defendants used more than de minimis
force against him. While Defendants cite cases where courts have determined, as a
matter of law, that a push or a shove resulting in only minor injury was use of de minimis
force, here Freeman’s evidence indicates, to the contrary, that Defendants pushed and
shoved the handcuffed Freeman several times into solid objects, then took him to the
ground and hit him numerous times about the head and back with closed fists. Cf.
United States v. LaVallee, 439 F.3d 670, 686-87 (10th Cir. 2006) (noting, in criminal
prosecution of prison guards for beating inmates, that parties did not dispute at trial that
hitting a restrained and compliant inmate “in the back numerous times,” where “the
sound of the blows could be heard in another room fifteen to twenty feet away,” was
more than de minimis force). Freeman’s evidence, thus, creates a genuinely disputed
issue of material fact, sufficient to survive summary judgment, as to whether Defendants
applied more than de minimis force against Freeman. Cf. Ali v. Dinwiddie, 437 F. App’x
695, 697-98, 700 (10th Cir. 2011) (unpublished) (concluding that there was a material
issue of fact as to whether prison guards used more than de minimis force where
inmate alleged that guards punched and kicked him after he was handcuffed and not
resisting, where inmate suffered abrasions to his wrist, contusions to his head, and
bruising and pain in his shoulder which restricted inmate’s abduction of his shoulder
even one and one-half years later). The Court’s review of the video evidence does not
resolve this factual dispute.

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2. Whether Defendants acted with a sufficiently culpable state of
mind
Freeman must also establish that Defendants “acted with a sufficiently culpable
state of mind.” Norton, 432 F.3d at 1154. “Th[is] subjective element of an excessive
force claim turns on whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of causing harm.”
Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (internal quotation marks
omitted); see also Hudson, 503 U.S. at 7. Freeman’s evidence, accepted as true,
indicates that Defendants assaulted him without any provocation. Under these
circumstances, that is sufficient for Freeman’s claim to survive summary judgment.
3. Qualified immunity
Although the magistrate judge did not address the issue, Defendants also moved
for summary judgment on the basis of qualified immunity. And Defendants objected to
the magistrate judge’s recommendation because it did not grant them qualified
immunity.
In light of Defendants’ assertion of qualified immunity, Freeman had the burden
of showing both (1) that Defendants violated Freeman’s constitutional rights and (2) that
those rights were clearly established at the time of the incident, on July 6, 2010. See
Becker v. Bateman, --- F.3d ---, 2013 WL 697910, at *2 (10th Cir. Feb. 27, 2013). As
just discussed, Freeman sufficiently established a claim that Defendants violated his
Eighth Amendment right to be free from cruel and unusual punishment when they
purportedly assaulted him without provocation. See Smith, 339 F.3d at 1215. And an
inmate’s right to be free from cruel and unusual punishment, in the form of such a

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malicious and sadistic application of excessive force against him by prison guards, was
clearly established prior to the date of this incident. See Hudson, 503 U.S. 1 (decided in
1992); see also Allen v. Zavaras, 474 F. App’x 741, 744 (10th Cir.) (unpublished)
(noting that, “[t]o determine whether the correctional officers’ use of force violated [an
inmate’s] clearly established rights under the Eighth Amendment, we ask ‘whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm’” (quoting Hudson, 503 U.S. at 6-7)), cert. denied, 133 S. Ct.
656 (2012).
4. Conclusion as to Freeman’s claim based on the July 6, 2010
incident
For the foregoing reasons, the Court REJECTS the magistrate judge’s
recommendation as to this claim in part and DENIES Defendants summary judgment.
A factfinder will, thus, have to decide whether Freeman’s version of events or
Defendants’ version is more credible. See Norton, 432 F.3d at 1152-54; see also Ali,
437 F. App’x 695. The Court notes, without deciding at this juncture, that even if
Freeman succeeds at trial on this claim, the apparently modest nature of his alleged
injuries may limit the damages he may recover. See Wilkins, 130 S. Ct. at 1180.
B. December 14, 2010 incident
Regarding the December 14, 2010 incident, the evidence, viewed in the light
most favorable to Freeman, establishes the following: Woolston was supervising at
least ten inmates, including Freeman, in the prison’s education department. Freeman
became upset when he did not receive “material to type court documents” and he
“tapped” the glass window in Woolston’s office. (Docs. 6 at 11; 129-4 at 8.) Woolston

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asked Freeman to come into the office, but Freeman refused. Woolston then ordered
Freeman to get down on the ground, but Freeman refused. Woolston, therefore, took
Freeman to the ground and restrained him. As a result, Freeman suffered a one-inch
scratch on his right knee. Freeman asserts that Woolston unjustifiably attacked him in
retaliation for Freeman’s filing a complaint against Woolston for the July 6, 2010
incident.
The magistrate judge, focusing on the question of whether the alleged
wrongdoing was objectively harmful enough to establish a constitutional violation,
recommends granting Defendant Woolston summary judgment on this claim because
Woolston’s “use of force was justified to restore discipline and security.” (Doc. 186 at
10-11.) The Court agrees, in light of the video evidence and the fact that Freeman
himself admits being angry, “tapping” Woolston’s office window and refusing to obey
Woolston’s directions to come into his office and to get down on the ground. See Green
v. Denning, 465 F. App’x 804, 806-07 (10th Cir. 2012) (unpublished) (affirming summary
judgment for prison guard where undisputed facts indicated “that the decision to bring
[inmate] to the ground was appropriate” because the inmate “had recently exhibited
erratic behavior, was outside of his cell, and refused to return”).
Freeman does not further allege that Woolston used more force than necessary
to take Freeman to the ground and restrain him. And, although the extent of an
inmate’s injuries would not by itself conclusively preclude him from prevailing on an
excessive force claim, here Freeman’s minor injury – a scratch on his knee - supports
the conclusion that Woolston used de minimis and appropriate force against Freeman.

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For these reasons, the Court ADOPTS the magistrate judge’s recommendation
as to this claim. Therefore, the Court DENIES Freeman summary judgment on this
claim, and GRANTS Woolston summary judgment.
IV. Appointment of counsel
In his objections, Freeman asserts that he has been denied appointed counsel.
Freeman, however, is not entitled to appointed counsel to assist him in pursuing the civil
claims he alleges in this action. See Lanier v. Bryant, 332 F.3d 999, 1002, 1005-06 (6th
Cir. 2003) (noting, in case brought in part under Bivens, that “appointment of counsel in
a civil proceeding is not a constitutional right and is justified only in exceptional
circumstances”); see also Steffey v. Orman, 461 F.3d 1218, 1220, 1223-24 (10th Cir.
2006) (addressing 42 U.S.C. § 1983 claim).
Nevertheless, the Court liberally construes Freeman’s assertion that he has been
denied appointed counsel as the renewal of his request for counsel. The Court has
discretion, under 28 U.S.C. § 1915(e)(1), “to request an attorney to represent” a civil
litigant like Freeman who is proceeding in forma pauperis. See Johnson v. Johnson,
466 F.3d 1213, 1217 (10th Cir. 2006) (per curiam). In exercising that discretion, the
Court “consider[s] a variety of factors, including the merits of the litigant’s claims, the
nature of the factual issues raised by the claims, the litigant’s ability to present his
claims, and the complexity of the legal issues raised by the claims.” Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991) (addressing 28 U.S.C. § 1915(d), which was later
redesignated § 1915(e)(1)); see also Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004) (applying § 1915(e)(1)). Considering these factors as they pertain

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to this case, the Court conditionally GRANTS Freeman’s renewed motion for counsel
and, in the interest of judicial efficiency, requests the assistance of the Clerk of the
Court to attempt to secure pro bono counsel to represent Freeman. The condition of
this grant is the ability of the Court to secure an attorney who will provide pro bono,
uncompensated, representation of Freeman. Freeman’s lack of a right to counsel and
the lack of sufficient judicial resources to pay for counsel causes this Court only to
undertake an effort to secure pro bono volunteer counsel. If the Court is not successful
in securing pro bono counsel for Freeman, then Freeman’s request for counsel will be
denied.
V. Conclusion
For the foregoing reasons, the Court ORDERS the following:
The parties’ objections (Docs. 190, 192) to the magistrate judge’s report and
recommendation are OVERRULED in part and GRANTED in part; and the magistrate
judge’s report and recommendation (Doc. 186) is, thus, ADOPTED in part and
REJECTED in part.
Freeman’s motion for summary judgment (Doc. 151) is DENIED in full.
Defendants’ motion for summary judgment (Doc. 129) is GRANTED in part and
DENIED in part: Defendants are DENIED summary judgment as to Freeman’s first
claim, but Defendant Woolston is GRANTED summary judgment on Freeman’s second
claim.
Freeman’s request for the appointment of counsel is GRANTED to the extent that
pro bono representation can be found. Otherwise, his request for appointment of

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counsel will be DENIED. In the interest of judicial efficiency, the Court requests the
assistance of the Clerk of the Court in attempting to secure counsel for Freeman.
As a housekeeping matter, the Court grants Freeman’s “Motion to Show Cause”
(Doc. 195), docketed January 25, 2013, seeking to “show cause why he has no assets
and no means by which to make [one of the] monthly payment[s]” owed on the filing fee
(Doc. 3 at 2).
Finally, the Court requests that the magistrate judge set a final pretrial
conference and conduct such other proceedings and enter such other orders as may be
appropriate, consistent with this Order.

Dated this

28th

day of

March

, 2013.

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

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