Brooks v. Medina et al

Filing 71

ORDER Adopting and Affirming August 14, 2014 Recommendation of United States Magistrate Judge by Judge Christine M. Arguello on 09/25/2014. The August 14, 2014 Amended Recommendation of United States Magistrate Judge Kathleen M. Tafoya (Doc. # 61 ) REJECTED in part as to claims two and eight, and claim four as to Defendant Jackson and ADOPTED AND AFFIRMED in all other respects. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02213-CMA-KMT
KEITH CLAYTON BROOKS, JR.,
Plaintiff,
v.
ANGEL MEDINA, Warden CDOC, Individually and in his Official Capacity,
DAVID GABRIEL, Captain CDOC, Individually and in his Official Capacity,
MATHILL-AARON, Sergeant CDOC, Individually and in her Official Capacity,
SHIFT COMMANDER 1, Whose True Name is Unknown, Individually and in
Their Official Capacity,
JULI JOFFE, CDOC, Individually and in her Official Capacity,
JACKSON, Lieutenant, Individually and in his Official Capacity,
JAMES GILLIS, Lieutenant CDOC, Individually and in his Official Capacity,
SHIFT COMMANDER 2, Whose True Name is Unknown, Individually and in
Their Official Capacity,
SHIFT COMMANDER 3, Whose True Name is Unknown, Individually and in
Their Official Capacity, and
AMY COSNER, Legal Assistant CDOC, Individually and in her Official Capacity,
Defendants.

ORDER ADOPTING AND AFFIRMING AUGUST 14, 2014
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the August 14, 2014 Recommendation
by United States Magistrate Judge Kathleen M. Tafoya that the following be granted
in part and denied in part: Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) and 12(b)(1) (Doc. # 35), and Defendant Amy Cosner’s Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. # 42). Judge Tafoya also recommends that

Plaintiff’s Combined Objection to Dismissal of Claim IX and Motion Requesting Leave
to File Second Amended Complaint (Doc. # 49) be granted. (Doc. # 61.) The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). The Recommendation advised the parties that specific written
objections were due within fourteen (14) days after being served with a copy of the
Recommendation. (Doc. # 35.) Both Defendants and Plaintiff requested an extension
of time to file objections, which the Court granted. (Doc. ## 63, 66.) Thereafter,
Defendants filed an objection to Judge Tafoya’s Recommendation. (Doc. # 68.)
Plaintiff did not timely object to the Recommendation.
When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
I. DISCUSSION
Defendants object to Judge Tafoya’s recommendation that claims two, three,
four, five, and eight move forward against certain Defendants. Defendants also ask that
this Court find that if any one of those claims are dismissed for lack of a constitutional
violation, Defendants are entitled to qualified immunity, which requires Plaintiff establish
that Defendants’ actions violated a constitutional or statutory right. See Albright v.
Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (the right must also be clearly

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established at the time of the defendant’s alleged unlawful conduct). The Court will
address these contentions in turn.
A.

CLAIM TWO
Magistrate Judge Tafoya determined that Defendants did not carry their burden

to show that res judicata barred Plaintiff’s second claim because it was unclear whether
there was a final judgment on the merits in Plaintiff’s state case. However, Defendants
have provided an order from the state court stating that it granted Plaintiff’s motion
for post-trial relief in error. (Doc. # 68-1.) Thus, the judgment in that case is final.
Accordingly, Defendants’ objection is sustained and claim two is dismissed.
B.

CLAIMS THREE, FOUR, AND FIVE
Plaintiff asserts several First Amendment retaliation claims, which require that

he allege:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant's actions caused the plaintiff to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in
that activity; and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally
protected activity.
Allen v. Avance, No. 11-6102, 2012 WL 2763508, at *5 (10th Cir. July 10, 2012)
(quoting Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)). “[A] plaintiff
must prove that but for the retaliatory motive, the incidents to which he refers, including
the disciplinary action, would not have taken place.” Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir.1998) (internal quotation marks and citation omitted).
First, Defendants object to Judge Tafoya’s recommendation that Plaintiff’s third
claim move forward against Defendants Mathill-Aaron and Gabriel. Defendants argue
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that Magistrate Judge Tafoya’s recommendation “essentially holds that, any time an
inmate files a grievance or lodges a complaint against corrections personnel, any
subsequent disciplinary action would establish an actionable claim for retaliation . . . .”
(Doc. # 68 at 4.) Judge Tafoya concluded that Plaintiff properly stated a claim against
Defendants Mathill-Aaron and Gabriel “based on the temporal proximity of Plaintiff’s
interactions with Defendants, Plaintiff’s grievances, and Plaintiff’s subsequent
placement in segregation . . . .” (Doc. # 61 at 16.)
The Court disagrees with Defendants’ argument that Plaintiff’s claim against
Defendant Mathill-Aaron is insufficient because Plaintiff fails to state sufficient facts from
which the Court can reasonably infer that, but for the grievance Plaintiff filed against
her, Plaintiff would not have been disciplined for holding open the chowhall door in
violation of her order. Plaintiff specifically alleges that he previously held the door open
for inmates entering the chowhall without incident. Thus, Plaintiff has alleged facts
from which the Court may infer that Defendant Mathill-Aaron disciplined Plaintiff on
September 29, 2011 and October 4, 2011, for behavior she did not find objectionable
prior to the time Plaintiff filed his state action on September 26, 2011. See Smith v.
Maschner, 899 F.2d 940, 948 (10th Cir. 1990) (finding it reasonable to infer that prison
officials retaliated against inmate where discipline was in close temporal proximity
to inmate’s lawsuit and he was not previously disciplined for his alleged infraction).
Likewise, the Court agrees with Magistrate Judge Tafoya that Plaintiff has stated
a claim against Defendant Gabriel. Defendants argue that Plaintiff’s “allegations are
devoid of any specific facts that would suggest a retaliatory intent.” (Doc. # 68 at 7.)

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However, in addition to the temporal proximity of prison officials placing Plaintiff in
administrative segregation shortly after he filed his state suit, the Tenth Circuit has
acknowledged that determinations of a person’s intent is a credibility determination
typically left to the fact finder. See Smith, 899 F.2d at 949. At this stage in the
proceedings, construing Plaintiff’s pleadings liberally, as this Court must, Plaintiff
has sufficiently stated a claim against Defendant Gabriel. Accordingly, Defendants’
objections are overruled.
Next, Defendants object to Judge Tafoya’s recommendation that Plaintiff’s fourth
claim for retaliation should move forward against Defendants Mathill-Aaron and
Jackson. In so doing, Defendants merely incorporate by reference their arguments
regarding Defendant Mathill-Aaron in claim three. Thus, the Court similarly rejects
those contentions.
Defendants also argue that Plaintiff has not stated a claim as to Defendant
Jackson. They point out that Magistrate Judge Tafoya’s recommendation inaccurately
states that “Plaintiff alleges that he filed grievances against Defendant Jackson on June
1, 2011 and July 20, 2011.” (Doc. # 61 at 19.) Indeed, Plaintiff’s proposed amended
complaint states only that he filed grievances on these dates, not that the grievances
were filed against Defendant Jackson. More problematic is that Plaintiff makes the
bare allegation that Jackson was substantially motivated to find him guilty because of
grievances he filed and verbal protests he made regarding lost property in July and
August 2011, a notice of intent filed in August 2011, and a request to preserve video
surveillance, all of which related to a search on May 20, 2011, five months prior to the

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disciplinary hearings. By Plaintiff’s own admission, the prison reimbursed him for the
property lost during the search on September 1, 2011. Plaintiff filed a separate state
civil action to challenge the forfeiture of his grievance privileges on September 26, 2011.
However, Plaintiff makes no allegation that Defendant Jackson was aware of an
ongoing lawsuit when he presided over the October 2011 hearings regarding charges
filed by Defendants Joffe and Mathill-Aaron. Although circumstantial evidence such as
temporal proximity may be sufficient to support allegations of retaliation, see Maschner,
899 F.2d at 949, Plaintiff attempts to connect unrelated events in an effort to maintain
his claim against Defendant Jackson. The Court cannot plausibly conclude that
retaliation for protected activities occurred based on these events. Thus, Plaintiff
does not allege sufficient facts to support his allegation that Defendant Jackson was
motivated by his desire to retaliate against Plaintiff for the grievances. Accordingly,
Defendants’ objection is sustained and the Court dismisses Plaintiff’s claim four against
Defendant Jackson. In the alternative, because Plaintiff has not established that
Defendant Jackson violated a constitutional right, Jackson is entitled to qualified
immunity on this claim. See Albright, 51 F.3d at 1534; Gross v. Pirtle, 245 F.3d 1151,
1156 (10th Cir. 2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry,
the court must grant the defendants qualified immunity.”)
Defendants also object to Magistrate Judge Tafoya’s recommendation that
Plaintiff’s fifth claim for retaliation move forward against Defendant Gillis. Defendants
claim that, although Judge Tafoya determined that Plaintiff’s amendments sufficiently
state a claim, those same amendments, as well as his original complaint contain other

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non-retaliatory reasons for his “Threats” disciplinary charge. Thus, Defendants argue
Plaintiff has not alleged that but for filing the grievances, he would not have received
a disciplinary charge. The Court disagrees with Defendants’ interpretation of Plaintiff’s
allegations. First, Defendants state that Plaintiff references a letter “which stated he
wished to ‘fight’ corrections officials” regarding a dispute over his security threat
classification. (Doc. # 68 at 11.) The implication that Plaintiff threatened prison
personnel is based on a misstatement of Plaintiff’s complaint, which actually says,
“[Defendant] Gillis alleged a handwritten note that I’d ‘fight’ misconduct of law
enforcement was a threat to the safety and security of staff.” (Doc. # 8 at 13.) Second,
Defendants allege Plaintiff’s “’verbal protests’ toward Defendant Gillis during meetings
regarding his [security threat group (“STG”)] label” provide another reason for the
disciplinary charge. (Doc. # 68 at 11.) However, Defendants fail to establish how
a verbal disagreement over the label can be appropriately construed as a threat.
Accordingly, the Court overrules Defendants’ objection.
However, in claim five, Plaintiff’s only allegations as to the unknown defendant
referred to as Shift Commander 2 is that he or she “authorized the disciplinary report
to become a charge subjecting [Plaintiff] to vexatious and duplicative disciplinary
proceedings.” (Doc. # 49-1 at 20.) This allegation is insufficient to allege an affirmative
link between his or her conduct and the described violation and Plaintiff has failed to
state a claim against Shift Commander 2. See Serna v. Colo. Dep’t of Corrs., 455 F.3d
1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 for their own
culpable involvement in the violation of a person’s constitutional rights.”)

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C.

CLAIM EIGHT
Judge Tafoya recommended that claim eight 1 be dismissed to the extent Plaintiff

alleged a claim for retaliation, but move forward against Defendant Cosner for denying
Plaintiff’s access to the courts. Defendants object, arguing that Plaintiff has failed to
state an access to the courts claim because he has not alleged facts that show he
suffered an actual injury.
An inmate must demonstrate that the alleged denial of legal access caused him
injury. Lewis v. Casey, 518 U.S. 343, 351 (1996). Plaintiff must show that, by denying
him access to the law library or materials, prison officials frustrated or impeded his
ability to file a non-frivolous direct appeal from his conviction, a habeas corpus petition,
or a civil rights claim pursuant to § 1983 “to vindicate basic constitutional rights.” Lewis
v. Clark, 14-8013, 2014 WL 4197340, at *8 (10th Cir. Aug. 26, 2014) (order and
judgment) (quoting Casey, 518 U.S. at 351, 354–55 (quotations omitted)).
In his proposed amended complaint, Plaintiff alleges that, because Defendant
Cosner denied him access to the trial record, he was unable to cite to the record in his
appellate brief and petition for rehearing. (Doc. # 49-1 at 24.) However, merely not
being able to cite to the record is insufficient to establish that he suffered an actual
injury. See Casey, 518 U.S. at 351 (prison officials are not required to ensure prisoner
can “litigate effectively once in court”) (emphasis in original). Indeed, Plaintiff concedes
that the Colorado Court of Appeals stated it would excuse his inability to cite to the
record. The court then determined Plaintiff’s claims were not legally meritorious.

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In Plaintiff’s proposed second amended complaint, this claim appears as claim seven.
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See Simkins v. Bruce, 406 F.3d 1239, 1244 (10th Cir.2005) (the prejudice from the
interference with a plaintiff's legal mail must be directly and inextricably tied to the
adverse disposition of his underlying case). Because Plaintiff has not established that
Defendant Cosner violated a constitutional right, Cosner is entitled to qualified immunity
on this claim. See Albright, 51 F.3d at 1534.
II. CONCLUSION
The Court has conducted a de novo review of this matter, including reviewing all
relevant pleadings, the Recommendation, and Defendants’ objection thereto. Based on
this de novo review, it is ORDERED that, for the reasons set for in this order, the August
14, 2014 Amended Recommendation of United States Magistrate Judge Kathleen M.
Tafoya (Doc. # 61) REJECTED in part as to claims two and eight, and claim four as
to Defendant Jackson and ADOPTED AND AFFIRMED in all other respects.
Pursuant to the Recommendation and this Order, it is FURTHER ORDERED
that:
1. Plaintiff’s official capacity claims for monetary relief against Defendants
are barred by the Eleventh Amendment and are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction;
2. Plaintiff’s compensatory relief claims are DISMISSED WITHOUT
PREJUDICE as BARRED by the PLRA;
3. Plaintiff’s request for punitive damages are DISMISSED WITHOUT
PREJUDICE;
4. Claim One is DISMISSED WITH PREJUDICE 2;

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Because Judge Tafoya simultaneously reviewed Plaintiff’s “Combined Objection to Dismissal
of Claim IX and Motion Requesting Leave to File Second Amended Complaint” (Doc. # 49) and
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5. Claim Two is DISMISSED WITH PREJUDICE;
6. Claim Three is DISMISSED WITH PREJUDICE as to Defendant Medina,
but will proceed against Defendants Mathill-Aaron and Gabriel;
7. Claim Four is DISMISSED WITH PREJUDICE as to Defendants Joffe and
Jackson, but will proceed as to Defendant Mathill-Aaron. Plaintiff may amend
his complaint in conformance with Claim Four of the proposed amended
complaint (Doc. # 49-1) as to Defendant Mathill-Aaron. Because Claim Four
is the only claim asserted against Defendant Joffe, she is dismissed
as a defendant;
8. Claim Five is DISMISSED WITH PREJUDICE as to Defendant Shift
Commander 2, but will proceed as to Defendant Gillis. Plaintiff may amend
his complaint in conformance with Claim Five of the proposed amended
complaint (Doc. # 49-1) as to Defendant Gillis. Because Claim Five is the only
claim asserted against Defendant Shift Commander 2, he or she is dismissed
as a defendant;
9. Claim Seven is DISMISSED WITH PREJUDICE. Because Claims Four
and Seven are the only claims asserted against Defendant Jackson, he
is dismissed as a defendant;
10. Plaintiff may amend Claim Eight in conformance with Claim Seven of the
proposed amended complaint to the extent he seeks to correct the date on
which the Colorado Court of Appeals issued its Order denying his appeal.
After the amendment, Claim Eight is DISMISSED WITH PREJUDICE;
11. Defendants in their individual capacities are entitled to qualified immunity on
the following claims: Defendants Gillis and Medina on Claim One; Defendant
Medina on Claim Three; Defendants Joffe, Medina, and Jackson on Claim
Four; Defendant Jackson on Claim Seven; Defendants Medina and Cosner
on Claim Eight;
12. Plaintiff’s motion to amend to add requests for declaratory and injunctive
relief is GRANTED;

determined many of Plaintiff’s proposed amendments were futile, the Court dismisses those
claims with prejudice.
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13. Plaintiff’s motion/objection to Senior District Judge Lewis T. Babcock’s
dismissal of Plaintiff’s Claim Nine for Conspiracy as legally frivolous is
DENIED;
14. Plaintiff’s motion to amend his complaint in all other respects is DENIED.
DATED: September 25, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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