Turner v. Falk et al

Filing 53

ORDER. ORDERED that the Recommendation of Magistrate Judge 51 is ACCEPTED. ORDERED that defendants' Motion to Dismiss Amended Complaint 34 is GRANTED. ORDERED that, within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. ORDERED that this case is dismissed in its entirety by Judge Philip A. Brimmer on 12/31/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-02957-PAB-MJW
GARY WAYNE TURNER,
Plaintiff,
v.
FRANCES FALK, Warden,
ROBERT BUTCHER, Major,
JACKSON, Lieutenant, and
INFANTE, Lieutenant,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 51] filed on July 8, 2014. The
magistrate judge recommends that the Motion to Dismiss Amended Complaint [Docket
No. 34] filed by defendants Frances Falk, Robert Butcher, W illiam Jackson, and
Rochelle Infante be granted and that this case be dismissed in its entirety. Docket No.
51 at 11. Plaintiff filed a timely objection. Docket No. 52. The Court will “determine de
novo any part of the magistrate judge’s disposition that has been properly objected to”
by plaintiff. Fed. R. Civ. P. 72(b)(3). “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for
de novo review by the district court . . . .” United States v. One Parcel of Real Property
Known As 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added).

To be sufficiently specific, an objection must “enable[] the district judge to focus
attention on those issues—factual and legal—that are at the heart of the parties’
dispute.” See id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
In the absence of a proper objection, the Court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“[i]t does not
appear that Congress intended to require district court review of a magistrate’s factual
or legal conclusions, under a de novo or any other standard, when neither party objects
to those findings”). In light of plaintiff’s pro se status, the Court construes his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991).
The facts of this case have been set forth elsewhere and will not be restated
here except as relevant to resolving plaintiff’s objection. See Docket No. 12. Plaintiff’s
amended complaint contains five claims for relief, all of which alleged that defendants
retaliated against plaintiff in violation of his First Amendment rights. Docket No. 51 at 2;
Docket No. 52 at 3. Plaintiff seeks injunctive relief and compensatory damages.
Docket No. 11 at 20. On January 8, 2014, plaintiff’s fourth claim for relief against
defendant Sharp was dismissed. Docket No. 12 at 4. On May 27, 2014, the Court
dismissed plaintiff’s fifth claim for relief against defendant Dummit without prejudice.
Docket No. 49 at 5.
On March 27, 2014, the remaining defendants filed a motion to dismiss. Docket
No. 34. The Recommendation concluded that defendants’ motion to dismiss should be
granted for the following reasons: (1) plaintiff’s claims for monetary damages against
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defendants in their official capacities are barred by the Eleventh Amendment, (2)
plaintiff’s claims for monetary damages against defendants in their individual capacities
are barred by the Prison Litigation Reform Act, 42 U.S. C. § 1997e, (3) plaintiff failed to
state a First Amendment retaliation claim, and (4) defendants in their individual
capacities are entitled to qualified immunity. Docket No. 51 at 6-11.
The Court turns to plaintiff’s objection. Although plaintiff’s objection does not
reference specific aspects of the Recommendation, plaintiff appears to object to the
Recommendation’s conclusion that defendants in their individual capacities are entitled
to qualified immunity. Docket No. 52 at 10, ¶ 7. The Court need not determine whether
plaintiff’s objection is sufficiently specific so as to trigger de novo review. Even under
the de novo review standard, the Court finds no error in the Recommendation’s
conclusion on this issue.
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Upon a public official’s assertion of a qualified immunity defense, plaintiff
bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque,
549 F.3d 1269, 1277 (10th Cir. 2008). Under the f irst prong of the analysis, the plaintiff
is required to “establish that the defendant’s actions violated a constitutional or statutory
right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of
whether a violation occurred under the first prong of the qualified immunity analysis
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turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights,
509 F.3d 1278, 1282-83 (10th Cir. 2007). Under the second prong , the plaintiff must
show that the right at issue was “clearly established” at the time of the defendant’s
alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
The Recommendation concluded that, because plaintif f failed to state a claim for
First Amendment retaliation, plaintiff failed to satisfy the first prong of the qualified
immunity analysis. Docket No. 51 at 10-11. Thus, the Court first considers whether
plaintiff has stated a claim for First Amendment retaliation. To bring a free speech
retaliation claim, plaintiff must establish
(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 conduct.
Leverington v. City of Colo. Springs, 643 F.3d 719, 729 (10th Cir. 2011) (quotations
omitted). In the prison context, “[p]rison officials may not retaliate against or harass an
inmate because of the inmate’s exercise of his [constitutional] right[s].” Smith v.
Maschner, 899 F.2d 940, 947 (10th Cir. 1990). However, “an inmate is not inoculated
from the normal conditions of [confinement] merely because he has engaged in
protected activity.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citing
Turner v. Safley, 482 U.S. 78, 84 (1987)). Thus, “[a]n inmate claiming retaliation must
‘allege specific facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.” Id. (emphasis in original) (quoting Frazier v. Dubois, 922 F.2d
560, 562 n.1 (10th Cir. 1990)). A plaintiff must be able to show that “but for” the

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retaliatory motive, the disciplinary action would not have occurred. Id. In Allen v.
Corrections Corp. of America, 524 F. App’x 460, 463 (10th Cir. 2013) (unpublished), the
plaintiff brought a First Amendment retaliation claim against a correctional staff
member, who charged the plaintiff with making threats. The court rejected plaintiff’s
argument that his statements were innocuous, concluding that plaintiff had failed to
satisfy the but for causation element because plaintiff’s statements to the corrections
officer “could easily be construed to threaten something more ominous than [plaintiff’s]
intention to engage in constitutionally-protected activity.” Id. at 463-64.
Here, plaintiff’s objection identifies no specific facts to support a claim that, but
for defendants’ allegedly retaliatory motive, plaintiff would not have suffered the
adverse actions he complains of. Plaintiff claims that defendant Butcher told plaintiff
that he would be removed from his college class. Docket No. 11 at 10. According to
plaintiff, defendant Butcher explained to plaintiff that he had been warned in class about
inappropriate subject matter and was given options for his essay assignment. Docket
No. 11 at 10. Plaintiff’s amended complaint then states that defendant Butcher told
plaintiff that he “chose to violate the instructions [and] directions and was terminated for
that reason.” Id. Plaintiff attacks defendant Butcher’s stated reason for removing
plaintiff from the college class in a conclusory manner, alleging that the essay was a
“substantial factor in the retaliatory action” brought against him. Id. at 11. Such
allegations are not entitled to the presumption of truth and plaintiff provides no other
facts upon which to conclude that, but for defendant Butcher’s alleged retaliatory
motive, plaintiff would not have been removed from the college class. See Khalik v.

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United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012) (“conclusory and formulaic
recitations” of the elements “are insufficient to survive a motion to dismiss”).
Plaintiff’s amended complaint states that defendants Jackson and Infante
conducted a hearing on the harassment charge against plaintiff and were “satisfied in
that the offender Turner did subject another person to written statements of a sexual
nature,” which included two references of a sexual nature “as perceived by the initiating
employee.” Docket No. 11 at 12-13. Plaintiff alleges that this decision was retaliatory,
but provides no specific facts that rebut defendant Jackson’s and defendant Infante’s
stated reasons for their disciplinary decision. Cf. Allen, 524 F. App’x at 463-64.
Plaintiff appealed to defendant Falk, who upheld the disciplinary decision.
Docket No. 11 at 8-9. Plaintiff’s allegations concerning defendant Falk’s alleged
retaliatory motivation are vague at best. See id. To the extent a retaliatory motive is
alleged, plaintiff’s causal allegations state only that he was given no warning regarding
controversial topics, which does not, by itself, suggest that, but for defendant Falk’s
allegedly retaliatory motive, defendant Falk would not have upheld the disciplinary
decision. Moreover, allegations that plaintiff was provided no warning are somewhat
contradicted by, for example, the allegation that defendant Butcher said to plaintiff, “you
were warned in class about what is appropriate and inappropriate subject matter.” See
Docket No. 11 at 10; DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 747 F.3d
145, 152 (2d Cir. 2014) (holding that “general allegations that are contradicted by more
specific allegations in the Complaint” need not be accepted as true (quotation omitted)).

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Plaintiff has failed to plead sufficient facts to establish the causal element of his
First Amendment retaliation claims.1 Thus, the Court finds no error in the
Recommendation’s conclusion that plaintiff failed to state a claim for First Amendment
retaliation.2 On the issue of qualified immunity, because plaintiff has failed to state a
claim that defendants engaged in a constitutional violation, plaintiff has failed to satisfy
the first prong of the qualified immunity defense. Plaintiff’s objection on the issue of
qualified immunity is overruled.
The Court turns to the remainder of plaintiff’s objection. Plaintiff argues that the
Court should rule on the constitutionality of his essay, determine whether he had a
liberty interest in receiving college credits, and determine whether he was protected by
the First Amendment. Docket No. 52 at 9, ¶ 5. Plaintiff also asserts that he suffered an
adverse action for writing his essay. Id. at 9, ¶ 6. These arguments do not address the
Recommendation’s conclusions on the issues raised by defendant’s motion to dismiss.
See 2121 East 30th St., 73 F.3d at 1060. Plaintiff’s objection also raises multiple
arguments related to the dismissal of plaintiff’s claims against defendant Sharp and

1

To the extent plaintiff’s amended complaint alleges that the complained of
actions resulted from the application of prison regulations, see Docket No. 11 at 2,
“when a prison regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Gee v. Pacheco, 627
F.3d 1178, 1187 (10th Cir. 2010) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
Although plaintiff alleges that the disciplinary actions taken against him lacked a
legitimate purpose, this conclusory allegation is insufficient to indicate that “the actions
of which he complains were not reasonably related to legitimate penological interests.”
Id. at 1188.
2

The Court need not reach the portion of the Recommendation concluding that
plaintiff’s allegations establish “at least one constitutional reason f or the sexual
harassment charge, i.e., discipline.” See Docket No. 51 at 9.
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defendant Dummit. See Docket No. 52 at 8, ¶¶ 1-3. Because the claim s against
defendant Sharp and defendant Dummit have already been dismissed, see Docket No.
49, plaintiff’s arguments do not concern the Recommendation currently before the
Court and will not be considered in resolving the present objection.
For the foregoing reasons, the Court finds that the remainder of plaintiff’s
objection is insufficiently specific so as to trigger de novo review,3 which permits the
Court to review the remainder of the Recommendation under any standard it deems
appropriate. See Thomas, 474 U.S. at 150. The Court has reviewed the remaining
aspects of the Recommendation and is satisfied that no clear error exists on the face of
the record.
It is therefore
ORDERED that the Recommendation of Magistrate Judge [Docket No. 51] is
ACCEPTED. It is further
ORDERED that defendants’ Motion to Dismiss Amended Complaint [Docket No.
34] is GRANTED. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.

3

This rule, however, does not apply when (1) a pro se litigant has not been
informed of the time period for objecting or when (2) the “interests of justice” require
review. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (citation
omitted). Neither exception applies here. See 2121 East 30th St., 73 F.3d at 1060
(“only an objection that is sufficiently specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute will advance the policies” underlying the
firm waiver rule).
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DATED December 31, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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