Vreeland v. Schwartz et al
ORDER. Plaintiff's Motion to Exceed Page Limits by Two Pages on Plaintiff Objection to Magistrate Recommendations (Doc. 213) 216 is GRANTED. Plaintiff Objections to Magistrate Recommendations 217 are OVERRULED. The Recommendation of Unit ed States Magistrate Judge 213 is ADOPTED to the extent that it is consistent with this order. Defendants' Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 175 is GRANTED. Plaintiff's Motion for Ruling on Outstanding Pleadings 218 is DENIED AS MOOT. 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. This case is closed, by Chief Judge Philip A. Brimmer on 8/19/19.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 13-cv-03515-PAB-KMT
DELMART E.J.M. VREELAND, II,
CELIA SCHWARTZ, Legal Assistant II, Colorado Department of Corrections, Buena
Vista Correctional Facility,
LIEUTENANT S. MORGAN, BVCF/North Unit Colorado Department of Corrections,
Buena Vista Correctional Facility,
SERGEANT G. WOOD, BVCF/North Unit Colorado Department of Corrections, Buena
Vista Correctional Facility,
CASE MANAGER JEFF HANSEN, BVCF/North Unit Colorado Department of
Corrections, Buena Vista Correctional Facility,
DAVID COTTEN, Administrative Service Manager, Colorado Department of
Corrections, Buena Vista Correctional Facility,
WILLIAM BRUNELL, Associate Warden, Colorado Department of Corrections, Buena
Vista Correctional Facility, and
JOHN DAVIS, Warden, Colorado Department of Corrections, Buena Vista Correctional
This matter is before the Court on Plaintiff Objections to Magistrate
Recommendations (Doc. 213) [Docket No. 217] filed by plaintiff Delmart E.J.M.
Vreeland, II. Plaintiff seeks review of United States Magistrate Judge Kathleen M.
Tafoya’s Recommendation of Magistrate Judge [Docket No. 213] (the
“recommendation”) dated August 1, 2018. Magistrate Judge Tafoya recommends that
the Court grant defendants’ Motion for Summary Judgment Pursuant to Fed. R. Civ. P.
56 [Docket No. 175], which would grant summary judgment for defendants on the three
claims remaining in this case. Plaintiff filed a timely objection. Docket No. 217.
Defendants did not file a response.
Plaintiff Delmart E.J.M. Vreeland II is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”).1 On December 30, 2013, plaintiff filed this case.
Docket No. 1. The three remaining claims are brought pursuant to 42 U.S.C. § 1983.
Claim Three alleges that defendant Celia Schwartz, a legal assistant at Buena Vista
Correctional Facility (“BVCF”) retaliated against plaintiff by limiting his access to
recorded calls and VCR tapes related to his underlying criminal case. Docket No. 35 at
14-18. Claim Four alleges that defendants Stephen Morgan and Georgia Wood,
correctional officers at BVCF, retaliated against plaintiff by terminating him from his
prison job and that the warden and associate warden of BVCF, defendants John Davis
and William Brunell, allowed such retaliation. Id. at 19-25. Claim Five alleges that
defendants David Cotton, a prison administrative service manager, Jeff Hansen, a
prison inmate case manager, and Morgan retaliated against plaintiff by transferring him
from BVCF to a different facility. Id. at 25-27.
On October 27, 2017, defendants filed a motion for summary judgment on all
remaining claims. Docket No. 175. On December 16, 2017, defendants filed a
supplement to the summary judgment motion, seeking summary judgment as to the
The Court restates here only the procedural and factual history necessary to
resolve plaintiff’s objections. As the Court will overrule all of plaintiff’s objections to the
recommendation, the Court adopts and incorporates the recom mendation’s statement
of facts. See Docket No. 213 at 3-5.
claims against Hansen. Docket No. 188.
STANDARD OF REVIEW
Pro se status
The Court construes plaintiff’s filings liberally because he is not represented by
an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a
pro se litigant, who must still comply with the fundamental requirements of the Federal
Rules of Civil Procedure. See Hall, 935 F.2d at 1110.
When a magistrate judge issues a recommendation on a dispositive matter, the
Court 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). An objection is “proper” if it is both
timely and specific. United States v. One Parcel of Real Property Known As 2121 East
30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). T o 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. (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). In conducting its review, “[t]he district court judge may accept, reject,
or modify the recommended decision, receive further evidence, or recommit the matter
to the magistrate judge with instructions.” Id.
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal
quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted).
“To avoid summary judgment, the nonmovant must establish, at a minimum, an
inference of the presence of each element essential to the case.” Bausman, 252 F.3d
at 1115. When reviewing a motion for summary judgment, a court must view the
evidence in the light most favorable to the non-moving party. Id.
Plaintiff makes four objections to the recommendation. First, plaintiff argues that
certain materials submitted by defendants used in the recommendation are not
admissible and accordingly cannot support summary judgment. Docket No. 217 at 6.
Second, plaintiff objects to the recommendation’s conclusion that he failed to exhaust
administrative remedies as to Claim Three. Id. at 10-12. Third, plaintiff objects to the
recommendation’s conclusion that he failed to provide evidence that he had exhausted
administrative remedies as to Claim Four. Id. at 13-17. Fourth, plaintiff objects to the
recommendation’s conclusion that defendants are entitled to summary judgment on
Claim Five because plaintiff did not suffer an “adverse action” as a result of defendants’
actions. Id. at 19-21.2
Plaintiff argues that certain materials that the magistrate judge used in her
recommendation are not “admissible in evidence” pursuant to Fed. R. Civ. P. 56(c)(2).
Docket No. 217 at 6. Specifically, plaintiff argues that “the 2015 version of the CDOC
AR 850-04” (“the 2015 AR 850-04”), Docket No. 175-1 at 6-15, is inadm issible because
it “contains procedural rules which did not exist in 2013.” Id. Plaintiff also argues that
the affidavit of Anthony DeCesaro (the “DeCesaro affidavit”), Docket No. 175-1, is
inadmissible because it relies on the inadmissible 2015 AR 850-04. Id. Plaintiff argues
The Court grants plaintiff’s Motion to Exceed Page Limits by Two Pages on
Plaintiff Objection to Magistrate Recommendations (Doc. 213) [Docket No. 216].
that, with this evidence excluded, the magistrate judge’s recommendation that plaintiff
failed to exhaust administrative remedies as to Claims Three and Four must be
In the summary judgment context, “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). “Parties may . . . submit affidavits in support of
summary judgment, despite the fact that affidavits are often inadmissible at trial as
hearsay, on the theory that the evidence may ultimately be presented at trial in an
admissible form.” Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193,
1199 (10th Cir. 2006). However, “the content or substance of the evidence must be
admissible.” Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995).
Both the 2015 AR 850-04 and the DeCesaro af fidavit incorporating it would be
admissible at trial. Mr. DeCesaro indicates that he has been em ployed as the Step 3
Grievance Officer since 2003 with CDOC, and that his duties include “responding to,
investigating, and tracking all Step 3 grievances” within CDOC. Docket No. 175-1 at 1,
¶¶ 1-2. As a result, Mr. DeCesaro is able to testify about the information contained in
the affidavit, which is based on his personal knowledge. See Argo, 452 F.3d at 1200
(noting that both Fed. R. Civ. P. 56(e) and Fed. R. Evid. 602 require affiants and
witnesses to testify to “personal knowledge”). For example, his statement in the
affidavit that “[t]he grievance procedures [set forth in the 2015 AR 850-04] were also in
effect during the entirety of 2013” is within Mr. DeCesaro’s personal knowledge. See
Docket No. 175-1 at 2, ¶ 3. Similarly, Mr. DeCesaro’s personal knowledge allows him
to introduce the 2015 AR 850-04. Plaintif f fails to explain why the DeCesaro affidavit is
inadmissible rather than inaccurate; his objection that the 2015 AR 850-04 dif fers in
some meaningful way from the procedures that existed in 2013 goes to whether or not
there is a disputed material fact, not whether or not the affidavit is admissible at trial.
Thus, the Court will overrule plaintiff’s objection to the recommendation’s reliance on
both the 2015 AR 850-04 and the DeCesaro af fidavit.
Next, plaintiff argues that the magistrate judge erred in granting summary
judgment to defendant Schwartz on Claim Three. The magistrate judge concluded that
plaintiff “failed to raise the issue of retaliation in his grievance;” thus, the grievance did
not give CDOC “a fair opportunity to consider [p]laintiff’s claims.” Docket No. 213 at 1112; see Rachel v. Troutt, 764 F. App’x 778, 783 (10th Cir. 2019) (unpublished) (noting
that a grievance must “provide prison officials with enough information to investigate
and address the inmate’s complaint”). Accordingly, the recommendation concludes that
plaintiff’s claim should be dismissed for failure to exhaust administrative remedies.
The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq.
directs that “[n]o action shall be brought with respect to prison conditions . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter
v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement is an affirmative
defense, which defendant bears the burden of proving. Jones v. Bock, 549 U.S. 199,
216 (2007); Roberts v. Barreras, 484 F.3d 1236, 1240-41 (10th Cir. 2007). Exhaustion
of administrative remedies under the PLRA is a question of law for the Court to decide.
Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). A remedy is not exhausted if
the prisoner fails to follow prison procedures for pursuing administrative remedies.
Woodford v. Ngo, 548 U.S. 81, 95 (2006). The exhaustion requirement is consistent
with the purpose of the PLRA to “eliminate unwarranted federal-court interference with
the administration of prisons” and “‘affor[d] corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal case.’” Id. at 93
(quoting Porter, 534 U.S. at 525). An inmate, however, does not need to exhaust
“unavailable” administrative remedies. An administrative remedy is unavailable when,
for example, “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Ross v.
Blake, 136 S. Ct. 1850, 1860 (2016); see also Little v. Jones, 607 F.3d 1245, 1250
(10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to
avail himself of an administrative remedy, they render that remedy unavailable and a
court will excuse the prisoner’s failure to exhaust.”) (internal quotation omitted).
Plaintiff objects to the magistrate judge’s recommendation, arguing that he has
presented evidence that his case manager advised him, verbally, “not to put the word
‘retaliation’ in the grievances against” defendant Schwartz, thwarting plaintiff’s efforts to
avail himself of the grievance process. Docket No. 217 at 11. 3 The magistrate judge
rejected this argument on the grounds that the evidence offered by plaintiff would be
inadmissible at trial as hearsay. Docket No. 213 at 12. Plaintiff argues that the alleged
hearsay statement would be admissible, either because (1) plaintiff is “testifying to
direct knowledge as to exactly what he” was told to do, or (2) because it is an admission
Plaintiff also objects on the grounds that the DeCesaro affidavit and the 2015
AR 850-04 are inadmissible. As discussed above, the Court will overrule that objection.
by a party-opponent pursuant to Fed. R. Evid. 801(d)(2). Docket No. 217 at 12.
The Court agrees with plaintiff that the statement would be admissible.
However, the Court nonetheless finds that plaintiff has not shown that the grievance
process was “unavailable” to him. The Tenth Circuit has explained that, in order to
show a genuine dispute of material fact as to whether administrative remedies were
available, a prisoner must produce specific facts showing “(1) ‘the threat, machination,
or intimidation actually did deter him from lodging a grievance’ and (2) ‘the threat,
machination, or intimidation would deter a reasonable inmate of ordinary firmness and
fortitude from lodging a grievance.’” See May v. Segovia, 929 F.3d 1223, 1235 (10th
Cir. 2019) (internal alterations omitted) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011)). Plaintiff – who did, in fact, file a grievance against Schwartz – has
failed to meet his burden. At the time he filed the grievance, plaintiff was extremely
familiar with the grievance system. See Docket No. 196-1 at 39, ¶ 51 (noting that
plaintiff “filed approximately [twenty-five] grievances on [Schwartz] and her friend”);
Vreeland v. Coffman, 663 F. App’x 597, 602 (10th Cir. 2016) (unpublished) (noting that
plaintiff attempted to bring claims against Schwartz in a proposed amended complaint
filed March 25, 2013). Even considering what plaintiff was told by his case manager,
plaintiff’s evidence does not show that he was deterred from continuing to utilize the
grievance system, both with regard to Schwartz and in other situations. See May, 929
F.3d at 1235 (rejecting plaintiff’s argument that a grievance process was unavailable
where plaintiff filed twenty-nine other grievances as an allegedly tampered-with
grievance in the same time period). Moreover, while plaintiff states that the case
manager “advised [him] that [not mentioning retaliation] would force [Schwartz] to
respond in writing,” see Docket No. 196-1 at 41, ¶ 61, the regulation governing
grievances at the time stated that “[a]ll grievances shall be answered, in writing, at each
level of decision and review.” See Docket No. 175-1 at 12, ¶ 4 (emphasis added). A
“reasonable inmate of ordinary firmness and fortitude” would conclude, based on the
written procedure, that he would get a written response whether or not he used the
word retaliation. See May, 929 F.3d at 1235. Thus, the Court ultimately agrees with
the recommendation that plaintiff failed to exhaust administrative remedies and will
grant summary judgment for defendant on Claim Three.
Plaintiff next argues that the magistrate judge erred in recommending that
summary judgment be granted as to Claim Four. Docket No. 217 at 15-18. The
magistrate judge concluded that defendants submitted evidence that plaintiff did not
complete the grievance process regarding this claim. Docket No. 213 at 13. The
magistrate judge concluded that plaintiff’s evidence to the contrary was solely
“uncorroborated, self-serving and conclusory testimony” and that plaintiff failed to
submit grievance forms to corroborate his conclusory statements. Id. at 14.
Plaintiff makes two objections. First, he argues that the evidence submitted by
defendant actually shows that plaintiff did exhaust administrative remedies. Docket No.
217 at 17. Plaintiff points to paragraph twenty of the DeCesaro affidavit, which he
argues demonstrates that he did pursue the grievance procedure to Step Three.
Docket No. 175-1 at 4, ¶ 20. That paragraph states:
20. I have also reviewed whether [plaintiff] submitted any grievances
related to his claim that he was terminated from employment in August
2013 as a result of retaliation by certain CDOC individuals. Following my
review, I was unable to find any grievances and certify that [plaintiff]
pursued the grievance procedure to the Step 3 level on issues regarding
any alleged job termination or retaliation taking place in August 2013.
Plaintiff is correct that the second part of the second sentence of the paragraph states
that Mr. DeCesaro “certif[ies] that [plaintiff] pursued the grievance procedure to the Step
3 level on issues regarding any alleged job termination or retaliation taking place in
August 2013.” Id. However, the first part of that sentence states that Mr. DeCesaro
“was unable to find any grievances” related to his claim. The sentence is internally
inconsistent and, as plaintiff admits, likely contains a typo. See Docket No. 217 at 17
(arguing that “if the statement is a typo that is too bad [for] the defense”). The Court
need not rely on this language in the DeCesaro affidavit because there is no evidence
of a Step 3 grievance anywhere in the record relating to job termination or retaliation in
August 2013 other than in this sentence. For example, defendants offer an
administrative log of staff interactions with plaintiff running from June 6, 2013 through
June 5, 2015. See Docket No. 188-1. The administrative log includes, in August 2013,
evidence of plaintiff pursuing Grievance Number R-BV 12/13-00042750 to Step 3. See
id. at 7. As plaintiff submitted his Step 2 on that grievance in early July 2013, the
grievance cannot be about a job termination or retaliation occurring in August 2013.
There is no evidence of any further grievances filed after August 2013 while plaintiff
was at BVCF. As there is no evidence in the record supporting Mr. DeCesaro’s
statement that plaintiff “pursued the grievance procedure to the Step 3 level on issues
regarding any alleged job termination or retaliation taking place in August 2013,” the
Court finds that this evident typographical error in an otherwise properly supported
affidavit does not create a genuine dispute of material fact that would entitle plaintiff to
defeat summary judgment. See Anderson, 477 U.S. at 249 (noting that “at the
summary judgment stage the judge’s function is . . . to determine whether there is a
genuine issue for trial”). Thus, plaintiff’s objection will be overruled, and the Court finds
that defendants have made a prima facie showing that plaintiff failed to exhaust
Second, plaintiff argues that he did, in fact, submit evidence that he pursued his
grievance to the Step 3 level. Docket No. 217 at 17-18. Plaintiff points to his
declaration in support of his response, where he states that he was “unable to submit
any grievances on the issues of job termination in August 2013 because of threats, and
denials of forms and the right to submit grievances by [d]efendant Hansen.” Docket No.
196-1 at 48, ¶ 101. Plaintiff’s declaration further states that “[the] denial was retaliatory
and [prevented] me from exhausting administrative remedies.” Id.4 Plaintiff also
indicates that he “retained the copy of the grievance and served it to the Court . . . as
exhibit S.” Docket No. 217 at 18.
Plaintiff’s objection lacks merit. First, as to the copy of the grievance, the Court
has reviewed the over seven hundred pages of supporting documents attached to
defendant’s response, see Docket No. 196, and is unable to identity the “copy of the
grievance” that plaintiff argues he submitted. To the extent that plaintiff’s argument is
that the grievance is buried somewhere in the voluminous record before the Court,
plaintiff has not made a sufficiently “specific reference to material in the record” that
Despite this allegation, Hansen is not named as a defendant as to Claim Four.
would establish a genuine issue of material fact. See Practice Standards (Civil cases),
Chief Judge Philip A. Brimmer, § III.F.3(b)(ii) (“General references to pleadings,
depositions, or documents are insufficient if the document is over one page in length.”).5
Second, as to plaintiff’s declaration, the Court agrees with the magistrate judge that
plaintiff’s uncorroborated, self-serving, and conclusory testimony does not establish a
genuine issue of material fact. See Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.
1991) (noting that “conclusory and self-serving affidavits are not sufficient” to create a
“[m]aterial factual dispute”). Plaintiff’s statement in the affidavit that defendants’ alleged
actions were “retaliatory” and prevented him from exhausting administrative remedies
merely “states, in the affiant’s opinion, the legal conclusion the court should reach,”
which does not raise a material issue of fact for trial. See Skrzypczak v. Roman
Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010); see also White v.
Mullins, 466 F. App’x 754, 754-55 (10th Cir. 2012) (unpublished) (holding that a plaintiff
prisoner’s affidavit stating that “copies of certain unspecified filings were taken from
him” did not create an issue of fact as to whether plaintiff had exhausted administrative
remedies). Plaintiff has repeatedly asserted that he “retained a copy of the grievance,”
yet plaintiff has failed to submit this supporting evidence to the Court. See Docket No.
35 at 24; Docket No. 196-1 at 48; Docket No. 217 at 18. T hus, the Court will overrule
plaintiff’s objection and enter summary judgment for defendants.
Plaintiff’s declaration indicates that the copy of the grievance is located in the
complaint. See Docket No. 35 at 24, ¶ 5. The complaint states that “[d]efendant
Hansen refused to submit the grievances and instead he would send them back to
[p]laintiff with the words ‘grievance denied’ on the forms. Plaintiff retained these
grievances so they could be [used] as evidence in this civil action.” Id. However, the
grievances themselves are not attached to the complaint.
For his final objection, plaintiff argues that the magistrate judge erred in
recommending that the Court grant summary judgment in favor of defendants Cotton,
Hansen, and Morgan on Claim Five. Docket No. 217 at 19-20.
“Prison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his right of access to the courts.” Smith v. Maschner, 899 F.2d
940, 947 (10th Cir. 1990). Government retaliation against a plaintiff for exercising his or
her First Amendment rights may be shown by proving the following elements: “(1) that
the plaintiff was engaged in a 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 Colorado Springs, 643 F.3d
719, 730 (10th Cir. 2011) (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.
2000)). In the prison context, “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) (quotations omitted).
The magistrate judge concluded that the undisputed evidence showed that
plaintiff could not prove the second element – that he suffered an adverse action.
Docket No. 213 at 15-16. Specifically, defendants’ evidence showed that (1) plaintiff’s
transfer was due to a reduction of his custody points; (2) the transfer would have taken
place regardless of whether plaintiff filed grievances and lawsuits; and (3) the decision
to transfer plaintiff came from Department of Corrections headquarters. Id. at 16 (citing
Docket Nos. 175-15, 175-16, 175-17, 175-18, 175-19, and 188-1). As plaintif f
presented no evidence or argument to the contrary, the magistrate judge concluded
that there was no genuine dispute as to whether the second element was met. Id.
Plaintiff objects, arguing that (1) the jury could find that plaintiff’s transfer was caused
by defendant Hansen rather than DOC based on Hansen’s statem ent that he “got rid of”
plaintiff and that (2) the “retaliation” is the “adverse action” and, presumably, there is no
need for him to present evidence of an adverse consequence. Docket No. 217 at 2021.
Plaintiff’s claim fails because he has not demonstrated a causal connection
between the retaliatory motive and his prison transfer. Peterson, 149 F.3d at 1144;
McBeth v. Himes, 598 F.3d 708, 719 (10th Cir. 2010) (“If there is a finding that
retaliation was not the but-for cause of the adverse action, the claim fails for lack of
causal connection . . . despite proof of some retaliatory animus in the official’s mind.”
(alterations and quotation marks removed)). The evidence shows that plaintiff’s
transfer was part of the “Close Custody Realignment Project” (“CCRP”) and was
ordered, not by staff at BVCF, but by the Executive Director of the Department of
Corrections. Docket No. 175-15; Docket No. 188-1 at 6. Plaintif f became part of the
CCRP because of a reduction in his custody points, which reduced his custody
classification from “close” to “medium” custody. Docket No. 175-17 at 2. This reduction
in custody points was determined by Ryan Fisher, who is not a defendant in this case.
Id. Accordingly, defendants’ alleged retaliatory motive cannot be the “but-for” cause of
plaintiff’s transfer because plaintiff would have been transferred whether or not
defendants harbored a retaliatory motive. See McBeth, 598 F.3d at 719; Walker v.
Scherbarth, 676 F. App’x 815, 821 (10th Cir. 2017) (unpublished) (citing McBeth,
holding that inmate’s retaliation claim failed because his placement on a restricted
privileges status would have taken place regardless of retaliatory motive).
Plaintiff’s objections to the recommendation are not persuasive. First, defendant
Hansen’s statement that he “finally got [plaintiff] out of [Buena Vista]” cannot bear the
weight that plaintiff places on it. See Docket No. 196-6 at 2. Plaintiff argues that the
statement “reveals that [Hansen] got [p]laintiff transferred.” Docket No. 217 at 20.
However, the statement is contradicted by the evidence in the record showing that the
order to transfer plaintiff came from the Department of Corrections and relied on a
custody designation that defendant Hansen had nothing to do with. This does not
create a disputed fact for the jury; even if a jury were to credit Hansen’s statement, it
would not suffice to show that, given the unchallenged evidence that plaintiff would
have been transferred even without Hansen’s involvement, defendants’ retaliatory
motive was the but-for cause of any adverse consequence suffered by plaintiff.
Second, plaintiff’s objection that he does not need to show an injury because
“[r]etaliation is the injury” is not supported by the case law. Rather, plaintiff must
connect the retaliatory act taken by defendants to some injury suffered by plaintiff. See
Leverington, 643 F.3d at 730; Peterson, 149 F.3d at 1144. This he cannot do, for the
reasons discussed above. Thus, the Court will overrule plaintiff’s objections and adopt
the recommendation as to Claim Five.
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion to Exceed Page Limits by Two Pages on
Plaintiff Objection to Magistrate Recommendations (Doc. 213) [Docket No. 216] is
GRANTED. It is further
ORDERED that Plaintiff Objections to Magistrate Recommendations [Docket No.
217] are OVERRULED. It is further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 213] is ADOPTED to the extent that it is consistent with this order. It is further
ORDERED that defendants’ Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56 [Docket No. 175] is GRANTED. It is further
ORDERED that plaintiff’s Motion for Ruling on Outstanding Pleadings [Docket
No. 218] is DENIED AS MOOT. 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 closed.
DATED August 19, 2019.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge
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