Jenner v. Brightwell et al
ORDER adopting 44 Report and Recommendations; granting in part and denying in part 35 Motion to Dismiss; denying as moot 49 Motion for Protective Order. by Judge R. Brooke Jackson on 3/29/16.(jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-00916-RBJ -KMT
DAVID K. JENNER,
CAPTAIN DON BRIGHTWELL,
ASSISTANT ATT. GENERAL JACQUELYNN N. RICH FREDERICKS,
JOHN/JANE DOE #1 (Limon Correctional Facility Staff),
JOHN/JANE DOE #2 (Limon Correctional Facility Staff), and
JOHN/JANE DOE #3 (C.D.O.C. Offender Services),
This matter is before the Court on defendants Captain Don Brightwell and Assistant
Attorney General Jacquelynn Rich Fredericks’ motion to dismiss [ECF No. 35] and the
recommendation of Magistrate Judge Kathleen M. Tafoya [ECF No. 44] that the Court partially
grant and partially deny the motion. The recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). This matter is also before the Court on
Assistant Attorney General Rich Fredericks’ motion for a protective order and to stay discovery
[ECF No. 49].
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. 44 at 14–15.
In response to plaintiff’s request, this Court extended the objections deadline to March 25, 2016.
ECF No. 47. Plaintiff filed timely objections. ECF No. 48. Defendants did not file objections.
The Court has reviewed all of the relevant pleadings and Magistrate Judge Tafoya’s
Recommendation. Following its review, the Court adopts the Recommendation. In doing so, the
Court moots the motion to stay discovery.
Plaintiff David Jenner is in the custody of the Colorado Department of Corrections
(CDOC), and he is presently housed at Fremont Correctional Facility (FCF). ECF No. 34 at 2.
Defendants are Captain Don Brightwell in his individual capacity, Assistant Attorney General
(AAG) Jacquelynn N. Rich Fredericks in her individual capacity, an unnamed employee of
CDOC Offender Services, and two unnamed individuals on the staff of the Limon Correctional
Facility (LCF). ECF No. 34 at 1. For the purposes of this order, the Court will refer to AAG
Rich Fredericks and Captain Brightwell collectively as “defendants.”
In June 2011, Jenner filed suit in this Court, asserting a retaliation claim, a First
Amendment claim, and a claim under the Religious Land Use and Institutionalized Person’s Act
(RLUIPA). Id.; see also Case No. 11-cv-001497-RBJ-KMT, ECF No. 1. The Court will refer to
this matter as the “underlying action.” At the summary judgment stage, the Court dismissed
Jenner’s retaliation claim, and his First Amendment and RLUIPA claims proceeded to trial on
March 18, 2013. ECF No. 34 at 4–5; see also, Case No. 11-cv-001497-RBJ-KMT, ECF Nos. 89,
At the time, Jenner was housed at LCF. About a month prior to the March 2013 trial,
Jenner met with his case manager Shelley Cadwallader. Cadwallader and Jenner discussed a few
issues, including CDOC’s “new classification system.” ECF No. 34 at 5. Classification, in part,
determines an inmate’s custody level within CDOC. Id. Cadwallader told Jenner that he
“wasn’t due” to be transferred, but that “she would go ahead and reclassify him.” Id. A hearing
was held to consider his reclassification, and it was recommended that Jenner remain at LCF. Id.
Jenner signed the reclassification paperwork with the “understanding that he would be retained”
at LCF. Id.
Following the reclassification hearing, the paperwork was given to Captain Brightwell. It
is Captain Brightwell’s responsibility to review all classifications. Id. Jenner claims that
Captain Brightwell began the process of transferring Jenner from LCF to FCF despite the
recommendation that he stay at LCF. Id. Jenner alleges that his “reclassification was changed to
an immediate transfer” to FCF. Id. Plaintiff alternatively alleges that CDOC Offender Services
contacted Captain Brightwell to suggest the transfer. Id. It is Jenner’s theory that defendants
initiated the transfer so as to allow them to move to dismiss Jenner’s First Amendment and
RLUIPA claims as moot. Id. at 4. Jenner claims that AAG Rich Fredericks, who represented the
CDOC defendants in the underlying action, was also involved in the attempt to transfer him from
LCF to FCF. Id. at 4, 5.
The transfer was approved, but it was delayed by a few weeks to permit Jenner to attend a
final pretrial conference, which was scheduled for February 24, 2013. Id. at 5. CDOC
transferred Jenner on March 4, 2013. Plaintiff claims that his personal property, including his
legal documents like his pleadings, was destroyed during the transfer. Id. at 4, 5, 6, 7–8.
On the same day as the transfer, AAG Rich Fredericks filed a motion to dismiss the
underlying action, claiming that it was now moot. Case No. 11-cv-001497-RBJ-KMT, ECF No.
136. The Court denied that motion to dismiss and subsequently held a four-day bench trial.
Case No. 11-cv-001497-RBJ-KMT, ECF Nos. 140, 144–48. At the end of trial, the Court
discussed Jenner’s transfer to FCF and its implications for the underlying action, but ultimately
the Court ruled in defendants’ favor on the substantive claims. Case No. 11-cv-001497-RBJ-
KMT; ECF Nos. 153, 155 at 12:12-13:7. Judgment entered against Jenner and in favor of
defendants on April 24, 2013. Case No. 11-cv-001497-RBJ-KMT, ECF No. 154.
Jenner initiated the current action on March 28, 2014. He amended his complaint on
May 5, 2014. Defendants moved to dismiss his First Amended Complaint. Magistrate Judge
Tafoya recommended granting the motion to dismiss, but suggested that Jenner have the
opportunity to amend his pleading. ECF Nos. 17, 27, 29. This Court adopted the Magistrate
Judge’s recommendation and dismissed the First Amended Complaint on March 6, 2015. ECF
No. 29. On April 9, 2015 Jenner filed his Second Amended Complaint, which is the operative
complaint. ECF No. 34. He brings one claim for retaliation in violation of the First Amendment
pursuant to 42 U.S.C. § 1983. ECF No. 34 at 5–6. His theory is that defendants transferred him
to FCF and destroyed his property in retaliation for his filing suit in the underlying action.
Defendants Captain Brightwell and AAG Rich Fredericks filed the present motion to dismiss on
April 23, 2015. ECF No. 35.
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).
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true. Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008).
When he filed the Second Amended Complaint, Jenner was proceeding pro se. He is
now represented by counsel. When a case involves a pro se party, courts will “review his
pleadings and other papers liberally and hold them to a less stringent standard than those drafted
by attorneys.” Trackwell v. U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However,
“it is not the proper function of the district court to assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se
plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based . . . conclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based.” Id. Pro se
parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotations and citations omitted).
Defendants’ Motion to Dismiss Jenner’s Retaliation Claim.
As Magistrate Judge Tafoya recognizes, access to the courts is a constitutional right.
Nordgren v. Miliken, 762 F.2d 851, 853 (10th Cir. 1985). “It is well settled that prison officials
may not unreasonably hamper inmates in gaining access to the courts.” Evans v. Moseley, 455
P.2d 1084 (10th Cir. 1972). Prison officials cannot retaliate against an inmate “because of the
inmate’s exercise of his right of access to the courts.” Gee v. Pacheco, 627 F.3d 1178, 1189
(10th Cir. 2010) (internal citation omitted). To state a § 1983 claim for retaliation, a plaintiff
must allege (1) that he engaged in constitutionally protected activity; (2) but, because of the
defendant’s actions, he suffered an injury that would “chill a person of ordinary firmness from
continuing to engage in that activity;” and (3) defendant’s action was “substantially motivated as
a response” to the exercise of the constitutionally protected activity. Shero v. City of Grove,
Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). Whether the retaliatory conduct would have a
chilling effect on the defendant’s exercise of the protected activity is an objective determination.
As a prerequisite to his § 1983 claim, Jenner must first allege that the defendants
personally participated in the alleged constitutional violation. “Individual liability under § 1983
must be based on personal involvement in the alleged constitutional violation.” Schneider v. City
of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013) (internal citation omitted).
There is no vicarious liability in § 1983 suits, so “a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Iqbal, 556 U.S. at 676. Alternatively a plaintiff may establish personal involvement through
allegations of a causal connection between the alleged violation and the defendant’s actions.
“The requisite causal connection is satisfied if the defendant set in motion a series of events that
the defendant knew or reasonably should have known would cause others to deprive the plaintiff
of her constitutional rights.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990).
Jenner’s theory is that defendants retaliated against him “for having filed in court and
actually made it to trial” in the underlying action. ECF No. 34 at 5. He claims that immediately
before trial, defendants “worked together” to transfer Jenner from LCF to FCF in order to
“fashion a remedy which would allow for dismissal of Mr. Jenner’s legal action in this Court[.]”
Id. at 4, 5. Jenner alleges that his transfer was not routine as he was “not due to be transferred
and there was no cause for him to be transferred given the length of the sentence.” Id. at 6. He
also claims that the defendants “set in motion” the circumstances that led to the destruction of his
property during the transfer. Id. at 5.
Defendants move to dismiss, arguing that Jenner fails to state a claim. Specifically,
defendants argue that Jenner’s pleadings are insufficient because defendants (1) did not have the
requisite personal involvement in the transfer or destruction of his property to support a claim
under § 1983; (2) the transfer would not chill a person of ordinary firmness because FCF is a less
secure facility than LCF; and (3) Jenner fails to establish that “but for” defendants’ “retaliatory
motive,” the events would not have taken place. ECF No. 35 at 5–11.
A) Defendant Captain Brightwell
Magistrate Judge Tafoya recommends that this Court deny defendants’ motion to dismiss
as against Captain Brightwell. Magistrate Judge Tafoya finds that (1) Jenner alleged sufficient
facts to make it plausible that Captain Brightwell was personally involved in the transfer; (2)
Jenner “has alleged sufficient injury to dissuade a person of reasonable firmness from filing
future lawsuits[;]” and (3) Jenner alleges enough facts to make it plausible that his transfer was
“substantially motivated by his lawsuit.” ECF No. 44 at 9–14.
Neither party objected to this portion of Magistrate Judge Tafoya’s Recommendation.
ECF No. 48. If a party does not properly object to a section of the Magistrate Judge’s
conclusion, “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) (stating that “[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”)).
I have reviewed the relevant pleadings on this issue, and I conclude that “there is no clear
error on the face of the record.” Fed. R. Civ. P. 72 advisory committee's note. The Court adopts
Magistrate Judge Tafoya’s recommendation and denies the motion to dismiss as to Jenner’s
claim as against Captain Brightwell.
B) Defendant AAG Rich Fredericks
Magistrate Judge Tafoya concludes that Jenner has “not alleged sufficient facts to support
his claim that Defendant Rich Fredericks participated in his transfer.” ECF No. 44 at 9.
Therefore, she recommends dismissing Jenner’s claims as against AAG Rich Fredericks. Id. at
14. Plaintiff filed a timely and specific objection to this aspect of Magistrate Judge Tafoya’s
recommendation. ECF No. 48 at 4–8. Following my de novo review, I adopt the Magistrate
Judge’s recommendation and dismiss plaintiff’s claims against AAG Rich Fredericks.
Regarding AAG Rich Fredericks’ participation in his transfer, Jenner’s Complaint alleges
[He] believes and will show that Defendant Brightwell and Rich-Fredericks worked
together  to have him transferred from LCF to FCF, as a result of him having a trial date
set in [the underlying action]. Moreover, minimally Defendant Brightwell and RichFredericks set in motion a series of events designed to have [Jenner’s] property destroyed
and for him to be persecuted for having filed in court and actually made it to trial.
ECF No. 34 at 5.
Jenner clarifies that he is not basing his allegations on AAG Rich Fredericks’ role as
attorney for the defendants in the underlying action. ECF No. 34 at 8. Rather, he alleges that
she participated “in the retaliatory action of having Mr. Jenner transferred,” and that action was
“outside the scope of her duties[.]” Id. He attests that the AAG Rich Fredericks helped to design
the transfer as a way to “avoid trial” in the underlying action and to “dissuade Mr. Jenner from
taking further legal actions” against CDOC. Id. at 6, 8. Additionally, plaintiff alleges that AAG
Rich Fredericks had knowledge of the transfer, as she “announced to this Court that CDOC
intended to transfer Mr. Jenner.” Id. at 5.
Plaintiff’s objections also focus on the temporal proximity of Jenner’s transfer to the
filing of the motion to dismiss as evidence that the “transfer was retaliatory in nature.” ECF No.
48 at 6. Jenner claims that the close timing “supports the inference that the transfer was a
coordinated effort between Defendant Rich-Fredericks and CDOC, including Defendant
Brightwell[.]” Id. at 7. Additionally, plaintiff attests that AAG Rich Fredericks “knew about the
transfer before even Mr. Jenner did,” and that this also “gives rise to the inference that there was
a connection between Defendant Rich-Fredericks’ presentation of the defense in the Underlying
Action and the transfer.” Id. Plaintiff claims that, given the normal job responsibilities of an
AAG, there is “no reason that Defendant Rich-Fredericks should have known about Mr. Jenner’s
Jenner maintains that the Court must accept as true his allegations that AAG Rich
Fredericks was personally involved in the transfer. ECF No. 41 at 9, 12. However, as
Magistrate Judge Tafoya notes, the Court must only take specific factual allegations—not
conclusory statements—as true. Iqbal, 556 U.S. at 681 (purely conclusory allegations are not
entitled to be presumed true). Jenner’s specific factual allegations regarding AAG Rich
Fredericks concern (1) her knowledge of the transfer, and (2) the temporal proximity between the
transfer and the motion to dismiss. These factual allegations are not sufficient to survive the
motion to dismiss. First, the Court cannot infer from AAG Rich Fredericks’ knowledge of the
transfer that she was personally involved in its coordination. As the attorney for the defendants
in the underlying action, it is not surprising that AAG Rich Fredericks knew that her clients
intended to transfer Jenner to FCF. Second, in the absence of factual support, the timing of the
transfer does not plausibly demonstrate how AAG Rich Fredericks was personally involved in
bringing about the transfer. The Tenth Circuit has held that “temporal proximity between an
alleged exercise of one’s right of access to the courts and some form of jailhouse discipline does
not constitute sufficient circumstantial proof of retaliatory motive to state a claim” without
sufficient factual allegations to support it. Friedman v. Kennard, 248 F.App’x. 918, 922 (10th
Cir. 2007) (unpublished).
In sum, Jenner’s Complaint is devoid of specific facts from which the Court could infer
that AAG Rich Fredericks was personally involved in the alleged constitutional violation. Even
when taking his allegations as true and construing them in his favor, I find that Jenner has not
raised his claims above the speculative level. As I agree with Magistrate Judge Tafoya that
Jenner’s allegations are insufficient to establish the personal participation prong, I need not
proceed to the remaining components of a retaliation claim.
AAG Rich Fredericks’ Motion for Protective Order and to Stay Discovery.
On March 28, 2016, AAG Rich Fredericks filed a motion for a protective order and to
stay discovery. ECF No. 49. She “moves for a protective order staying all disclosures and
discovery from her until” the Court adopts or rejects Magistrate Judge Tafoya’s
recommendation. Id. at 1. Because the Court adopts the Magistrate Judge’s recommendation
and grants the motion to dismiss as to AAG Rich Fredericks, the motion is rendered moot.
For the reasons described above, the Court ADOPTS the United States Magistrate
Judge’s Recommendation [ECF No. 44] and GRANTS IN PART and DENIES IN PART
defendants’ motion to dismiss [ECF No. 34]. The motion to dismiss as against Captain
Brightwell is denied, and the motion to dismiss as against Assistant Attorney General Rich
Fredericks is granted. The motion for protective order and to stay discovery [ECF No. 49] is
DENIED as MOOT.
DATED this 29th day of March, 2016.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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