Smith v. Werth et al

Filing 50

ORDER: 48 Report and Recommendations is ACCEPTED and ADOPTED IN PART. 28 Motion to Dismiss is GRANTED. by Judge R. Brooke Jackson on 12/1/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-02978-RBJ-CBS
NICKY SMITH,
Plaintiff,
v.
MICHELL RUSSOM,
SGT NELSON, and
JOSEPH HALLIGAN (UNNAMED SHIFT COMMANDER ON DUTY 10:00 PM 10/26/12)
Defendants.

ORDER

This matter is before the Court on the November 4, 2014 Recommendation [ECF No. 48]
of Magistrate Judge Craig B. Shaffer that the Court grant in part and deny in part the defendants’
motion to dismiss [ECF No. 28]. The Recommendation is incorporated herein by reference. See
28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
BACKGROUND
A detailed summary of the procedural and factual background of this case was provided
in the Recommendation. As a brief overview, Plaintiff Nicky Smith is an inmate at the Arkansas
Valley Correctional Facility (“AVCF”) in Ordway, Colorado. Mr. Smith filed this lawsuit
pursuant to 42 U.S.C. § 1983 claiming violations of his Eighth Amendment right against cruel
and unusual punishment, Fourteenth Amendment right to privacy and due process, and First

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Amendment right to access the courts and against retaliatory conduct. The defendants moved to
dismiss all of the claims. Upon a thorough review, Judge Shaffer recommended the dismissal of
all of the claims except for one: the First Amendment retaliation claim against Defendants
Nelson and Halligan.
The Recommendation advised the parties that specific written objections were due within
fourteen (14) days after being served with a copy of the Recommendation. [ECF No. 48 at 18–
19.] The defendants filed a timely objection to the portion of the Recommendation maintaining
the First Amendment retaliation claim [ECF No. 49]. The plaintiff did not file an objection.
Upon de novo review, the Court finds that the First Amendment retaliation claim should have
been dismissed along with the other causes of action. On clear error review, the Court affirms
and adopts the dismissal of the remaining claims.
STANDARD OF REVIEW
Following the issuance of a magistrate judge’s recommendation on a dispositive matter,
the district court judge must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The district judge is permitted to
“accept, reject, or modify the recommended disposition; receive further instruction; or return the
matter to the magistrate with instructions.” Id. “In the absence of timely objection, the district
court may review a magistrate . . . [judge’s] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140,
150 (1985) (“It 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.”)).

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Because Mr. Smith is appearing pro se, the Court “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court
may not act as the advocate of the pro se litigant, nor should it “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
ANALYSIS
In response to the defendants’ timely filed objection, the Court determines de novo
whether the First Amendment retaliation claim warrants dismissal. For the following reasons,
the Court finds that it does.
In his Amended Complaint, Mr. Smith alleges that on or about October 26, 2012 he wrote
a grievance to his case manager, which he placed in a facility mailbox. [ECF No. 8 ¶ 3]. The
grievance stated, in part:
That’s why the police got killed at AVCF: if an inmate can’t address his mental
health issues to a professional in a clinical setting without being subject to
punishments for his thoughts you are building many potential “powder kegs.”
[ECF No. 28-1]. 1
Sergeant Nelson retrieved the grievance from the mailbox and after reading its contents
placed handcuffs on Mr. Smith and took him to see Shift Commander Halligan. Am. Compl.
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“[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party
submits, and the district court considers, materials outside the pleadings.” Prager v. LaFaver, 180 F.3d
1185, 1188 (10th Cir. 1999). However, “the district court may consider documents referred to in the
complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
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[ECF No. 8] ¶ 3. Mr. Smith was immediately removed from the general population and placed
in segregation for approximately two weeks. Id. According to the Disposition of Charges, Mr.
Smith had been charged under the Code of Penal Discipline (“COPD”) with a Class II, Rule 16
violation: Advocating or Creating Facility Disruption. Id. at 10. 2 Mr. Smith admits that he was
“convicted of advocating a facility disruption,” but he contends that the defendants acted in
retaliation in violation of the First Amendment. Id. ¶ 3.
“[T]he First Amendment prohibits government officials from subjecting an individual to
retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006) (citations
omitted). To establish a claim of retaliation for exercising one’s First Amendment rights, the
plaintiff must show that: (1) the plaintiff was engaged in a constitutionally protected activity; (2)
the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in the activity; and (3) the plaintiff’s exercise of the
constitutionally protected activity substantially motivated the defendant’s adverse action. Van
Deelen v. Johnson, 497 F.3d 1151, 1155–56 (10th Cir. 2007). However, “it is not the role of the
federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our
retaliation jurisprudence does not change this role.” Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998). “[A]n inmate is not inoculated from the normal conditions of confinement
experienced by convicted felons serving time in prison merely because he has engaged in
protected activity.” Id. Therefore, an inmate “must prove that ‘but for’ the retaliatory motive,

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Mr. Smith attaches the Disposition of Charges to the Amended Complaint. As such, the Court considers
the document to be part of the pleadings. The page number refers to the number appearing at the top of
the page generated by the electronic filing system.
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the incidents to which he refers, including the disciplinary action, would not have taken place.”
Smith v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990) (citation omitted).
Mr. Smith’s complaint proves the opposite. He admits, both in the written allegation and
through the attachment of the Disposition of Charges, that he was disciplined for violating one of
the prison’s rules. In particular, he used threatening language that jail officials understood as
advocating a facility disruption. The officials conducted a formal hearing in which Mr. Smith
was found guilty of committing the violation. See Disposition of Charges [ECF No. 8 at 10]. As
punishment he was subjected to thirteen days of punitive segregation and a loss of twenty days of
Good Time credit. See id. As noted above, Mr. Smith is not inoculated from the normal
conditions of confinement – including the requirement that he refrain from committing
disciplinary infractions – merely because he has engaged in protected activity. And by his own
admission, Mr. Smith cannot prove that “but for” a retaliatory motive the disciplinary action
would not have taken place.
Furthermore, this claim is barred because Mr. Smith has not directly challenged his
COPD conviction. “In order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (footnote and internal
citation omitted). If “a judgment in favor of the plaintiff would necessarily imply the invalidity

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of his conviction or sentence . . . the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” Id. at 487.
Judge Shaffer found that other claims of Mr. Smith were barred because they acted as a
collateral attack of a separate COPD conviction, one for sexual harassment. See
Recommendation [ECF No. 48] at 9, 14. The same is true here. Mr. Smith was found guilty of
advocating a facility disruption in violation of prison rules. A finding that he had a First
Amendment right to advocate such disruption would render the conviction invalid. As such, his
§ 1983 claim alleging a deprivation of his First Amendment rights serves as a collateral attack of
the conviction, which is barred under Heck.
ORDER
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate
Judge [ECF No. 48] is ACCEPTED and ADOPTED IN PART. It is further ORDERED that
Defendants’ motion to dismiss [ECF No. 28] is GRANTED. Judgment will enter in favor of the
defendants dismissing this civil action with prejudice. As the prevailing parties defendants are
awarded their costs pursuant to Fed. R. Civ. P. 54(d)(1) and Local Rule 54.1, if they wish to file
a bill of costs.
DATED this 1st day of December, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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