Gandy v. Clements et al

Filing 120

OPINION AND ORDER granting 106 Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 12/4/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 12-cv-03331-MSK-MJW
ROBERT D. GANDY,
Plaintiff,
v.
JERRY BARBER, Teacher II, Arkansas Valley Correctional Facility; and
RICK MARTINEZ, Programs Manager, Arkansas Valley Correctional Facility,
Defendants.

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Defendants’ Motion for Summary
Judgment (#106), the Plaintiff Robert Gandy’s “Objection” (#107), and the Defendants’ Reply
(#110).
ISSUES PRESENTED
Mr. Gandy, an inmate in the custody of the Colorado Department of Corrections
(“CDOC”), brings this action, pro se, pursuant to 42 U.S.C. § 1983.1 He asserts that the
Defendants transferred him from the Arkansas Valley Correctional Facility (AVCF) to another
facility in retaliation for his filing of a grievance against Mr. Barber. The Defendants seek
summary judgment on Mr. Gandy’s claim on two grounds – 1) that he cannot establish a prima
facie claim; and 2) even if he can come forward with sufficient evidence to support a prima facie
claim of a constitutional deprivation, the Defendants are entitled to qualified immunity.
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The Court is mindful of Mr. Gandy’s pro se status, and accordingly, reads his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594 (1972); see also
Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007).
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MATERIAL FACTS
Based upon the evidence submitted by the parties2, which is either undisputed or
construed most favorably to Mr. Gandy for the purpose of this motion, the Court finds the
following material facts.
Mr. Gandy was an inmate at AVCF, and was enrolled in a computer programming
apprenticeship. Mr. Barber is a teacher at AVCF. On May 16, 2012, Mr. Barber spoke with Mr.
Gandy and another inmate with regard to apprenticeships. Mr. Barber stated that the other
inmate’s apprenticeship was no longer valid. Mr. Gandy questioned this statement, and in
response, Mr. Barber allegedly became angry, threatened to terminate Mr. Gandy’s
apprenticeship, and threatened to have Mr. Gandy transferred from AVCF.
On May 21, 2012, Mr. Gandy filed a grievance complaining of Mr. Barber’s conduct.
Mr. Martinez, the Programs Manager at AVCF, handled Mr. Gandy’s grievance. Mr. Martinez
met with Mr. Gandy to discuss the incident, and then met with both Mr. Gandy and Mr. Barber
to try to resolve the issue on June 27, 2012. Mr. Martinez reported that the mediation was
successful, but on July 9, 2012, Mr. Gandy was laterally transferred from AVCF to another
facility where he had substantially the same rights and privileges.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs
which facts are material and what issues must be determined. It also specifies the elements that
2

Because Mr. Gandy appears pro se, the Court treats all of his factual statements as if made by
affidavit.
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must be proved for a given claim or defense, sets the standard of proof, and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser–
Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is
“genuine” and summary judgment is precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a
court views all evidence in the light most favorable to the non-moving party, thereby favoring
the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

ANALYSIS
The Defendants seek summary judgment on two grounds – that Mr. Gandy cannot come
forward with sufficient evidence to establish a prima facie case, and that if he sufficient evident
to establish a constitutional violation, then they would be entitled to qualified immunity. The two
arguments overlap in this case. To state a prima facie claim for retaliation for exercise of a
constitutional right requires Mr. Gandy to come forward with evidence which, construed most
favorably to him, is sufficient to prove every element of his claim. He must also make a prima

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facie showing to prevent application of the doctrine of qualified immunity3. Thus, the Court
turns to whether Mr. Gandy has come forward with sufficient evidence to make a prima facie
showing of his claims against Mr. Barber and Mr. Martinez.
A prisoner can seek relief under 42 U.S.C. § 1983 for retaliation by prison employees for
the exercise of his constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990);
see also Fogle v. Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006). The inmate must show (1) that
he/she engaged in a constitutionally protected activity; (2) that each defendant personally
participated in4 an adverse action that caused the inmate an injury and that the action/injury
would chill a person of ordinary firmness from continuing to engage in the constitutionally
protected activity; (3) that the adverse action was substantially motivated by retaliation; and (4)
that “but for” the retaliatory motive the adverse action would not have occurred. Nielander v.
Bd. of Cnty. Comm’rs of Cnty. of Republic, Kan., 582 F.3d 1155, 1165 (10th Cir. 2009); Dodds
v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010); Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir.1998); Shero v. City of Grove, Okla., 510 F3d 1196, 1203(10th Cir 2007).
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The doctrine of qualified immunity protects government officials who perform discretionary
government functions from liability for civil damages and the obligation to defend the action.
See Johnson v. Fankell, 520 U.S. 911, 914 (1997); Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Pearson v. Callahan, 555 U.S. 223 (2009). When a defendant asserts qualified
immunity at the summary judgment stage, the plaintiff to show that: (1) the defendant violated a
constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009). The plaintiff must make both showings in order to avoid
application of qualified immunity.
To show that a defendant’s actions deprived him or her of a constitutional or statutory right, a
plaintiff must precisely articulate the right that was allegedly violated and specifically identify
the defendant’s conduct that violated the right. See e.g. Green v. Post 574 F.3d 1294,1300 (10th
Cir. 2009). To show that the identified right was clearly established at the time of the injury, the
plaintiff must demonstrate case law from the Supreme Court or Tenth Circuit that put the
defendants on notice that the alleged conduct would be unconstitutional. See Brosseau v.
Haugen, 543 U.S. 194, 199–200 (2004): Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006).
4

The requirement of personal participation is sometimes listed as a separate element of proof.
See Olsen v. Stotts, 9 F3d 1475, 1477 (10th Cir 1993).
4

There is no dispute that Mr. Gandy was engaged in constitutionally protected activity
when he brought his grievance against Mr. Barber. The allegedly retaliatory adverse action was
Mr. Gandy’s lateral transfer from AVCF. 5
A. Claim against Mr. Barber
Mr. Barber argues that Mr. Gandy cannot present evidence sufficient to establish the
second element of his claim – that Mr. Barber personally participated in the transfer decision. To
show personal participation, Mr. Gandy must show that Mr. Barber had the authority to make the
decision to transfer Mr. Gandy to another facility and that he exercised such authority.
Mr. Gandy’s sole evidence as to Mr. Barber’s participation in the transfer decision is Mr.
Barber’s threat to have him transferred. Whether Mr. Barber actually made such a threat is
disputed. Ms. Willhoite who was Mr. Gandy’s apprenticeship supervisor, who was present
during the confrontation, and who prepared a written report, stated only that Mr. Barber
threatened to remove Mr. Gandy’s apprenticeship. However, assuming without deciding, that
Mr. Barber threatened to have Mr. Gandy transferred from AVCF, Mr. Gandy offers nothing
other than his speculation that Mr. Barber could and did so. There is no evidence that Mr.
Barber had authority to effect an inmate transfer, or that he had input into the decision to transfer
Mr. Gandy. 6 Because mere speculation is insufficient to prove personal participation, Mr.

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The Defendants also seek summary judgment on what they perceive to be an additional
retaliation claim based on termination of Mr. Gandy’s from the apprenticeship program.
Construing the Second Amended Complaint liberally, however, the Court does not find such
claim. Furthermore, Mr. Gandy has not made any argument or submitted evidence in support of
such a claim. The crux of Mr. Gandy’s retaliation claim has consistently been that he was
transferred from AVCF because he filed a grievance against Mr. Barber. Thus, the Court finds
no need to address any claim of retaliation in the form of termination of Mr. Gandy from his
apprenticeship.
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The only other evidence in the record with regard to this is Mr. Barber’s Affidavit in which he
states that at the time of the incident, he was employed by the CDOC as a Teacher II, that he
supervised the education facility at AVCF, but that he had no authority with regard to the inmate
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Gandy cannot establish a prima facie claim against Mr. Barber. Accordingly, entry of summary
judgment in favor of Mr. Barber is appropriate.
B. Claim against Mr. Martinez
Mr. Martinez challenges the sufficiency of evidence with regard to both the fourth
element and second elements of Mr. Gandy’s claim.
As to the fourth element, Mr. Martinez contends that Mr. Gandy cannot establish that his
grievance against Mr. Barber was the “but for” cause of his transfer. Mr. Martinez offers another
explanation for the transfer – that Mr. Gandy’s relationship with his apprenticeship supervisor,
Ms. Willhoitte, posed safety and security concerns.7 However, at this juncture the Court does
not weigh the evidence in order to determine the true cause for the transfer. Instead, the
question is whether Mr. Gandy has come forward with sufficient evidence, which if considered
without anything to the contrary, would be sufficient to prove this element.
The Court finds Mr. Gandy’s showing to be sufficient to establish prima facie causation.
He points to evidence of the close temporal proximity between Mr. Barber’s threat, his grievance
and his transfer. In addition, he states that he was never told of any security or safety concern,
and that had security or safety concerns been the reason for his lateral transfer, such reason
would have been recorded on the 550-1A form in compliance with Colorado Department of
Corrections Case Management Manual. The timing of the transfer decision relative to the
transfers. In addition, he states that he was not involved in the decision to transfer Mr. Gandy. In
the absence of evidence to the contrary, Mr. Gandy cannot establish that Mr. Barber personally
participated in the decision to transfer him from AVCF.
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In his affidavit, Mr. Martinez states that he recommended Mr. Gandy’s transfer because of
concerns about an inappropriate relationship with between Mr. Gandy and Ms. Willhoitte that he
believed could pose a threat to prison safety. He submits an affidavit from another CDOC
employee, Karen McGuire. Her affidavit characterizes Mr. Gandy and Ms. Willhoite’s
relationship as overly friendly. It also states that she shared her concerns with Mr. Martinez and
suggested that Mr. Gandy should be removed from Ms. Willhoite’s presence.
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grievance and the failure to record a safety or security reason transfer documents is, without
consideration of any other evidence, sufficient to make a prima facie showing of causation.
With regard to the second element of Mr. Gandy’s claim, Mr. Martinez contends that Mr.
Gandy cannot show that a lateral transfer from one facility to another would chill a prisoner of
ordinary firmness from filing future grievances. Mr. Martinez makes two arguments.
First, Mr. Martinez points to evidence that shows that Mr. Gandy was not deterred in
bringing grievances at his new location. Assuming, without determining, this to be the case,
such evidence is not dispositive. Mr. Gandy’s behavior in filing grievances is the not the
standard to be applied. Whether a transfer would have a chilling effect on the filing of
grievances requires application of an objective, rather than subjective, standard. See e.g. Eaton
v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). This means that the Court must focus on how a
person of ordinary firmness would react to being transferred, not just how Mr. Gandy reacted.
Mr. Martinez does not address application of the objective standard.
Second, Mr. Martinez argues that there can be no compensable constitutional violation
because 1) a transfer of a prisoner from one facility to another causes only a de minimus injury,
so long as the prisoner’s privileges at the new institution remain the same; and 2) when there is
only a de minimus injury, there can be little likelihood that the injury would dissuade a person of
ordinary firmness from filing future grievances. For latter proposition, Mr. Martinez relies on
Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007). Although Shero does not
concern prisons or prison transfers, it clearly recognizes that de minimus injuries resulting from
retaliation for constitutionally protected conduct would not chill future similar conduct.
The first proposition in Mr. Martinez’ argument presents a more difficult question. Does
an inmate transfer from one facility to another when there is no change in rights or privileges

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necessarily result in a de minimis injury? It is true that inmates do not have a constitutional right
to being assigned to a particular prison facility; they may be transferred as is appropriate to
maintain the security in the prison system. But it is improper for a prison official to transfer a
prisoner in retaliation for exercising his first amendment rights. Frazier v. Dubois, 922 F.2d 560,
561-62 (10th Cir. 1990).
As the Court in Frazier recognizes, what injury an inmate suffers upon transfer is a
factual question. Even if an inmate’s privileges remain constant between facilities, a transfer
can be disruptive in other ways - e.g. loss or delay in receipt of mail (especially legal mail), loss
or delay in transfer of personal property, and interruption the ability to participate in or complete
rehabilitative programs and treatments. The nature and degree of injury suffered as a result of a
retaliatory transfer will vary from case to case, and it is a plaintiff’s burden to come forward with
a showing of the injury he suffered.
In deference to Mr. Gandy’s pro se status, the Court has searched the record to ascertain
the nature of his injury, but found little. He alleges nothing in his Complaint or Amended
Complaint [#1, #3]; he makes no argument or showing in Response to the Motion to Summary
Judgment [#107] or his supportive Affidavit. At best, the Court can infer that his transfer from
AVCF resulted in termination of his participation in the AVCF apprenticeship program. But
without a showing that he was unable to resume a similar program, that he otherwise suffered
some skill limitation or educational setback, or there was some other disruption due to the
transfer, the Court finds Mr. Gandy’s injury as a result of transfer to be de minimus. As such,
there is insufficient evidence to show that Mr. Gandy’s transfer would likely dissuade a person of
reasonable firmness from filing future grievances, and entry of summary judgment in favor of
Mr. Martinez is appropriate.

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CONCLUSION
IT IS HEREBY ORDERED that the Defendants’ Motion for Summary Judgment
(#106) is GRANTED. The Clerk shall enter judgment in favor of the Defendants and against the
Plaintiff on all claims and close this case.
Dated this 4th day of December, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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