Roemer et al v. Carochi et al

Filing 194

ORDER by Chief Judge Philip A. Brimmer on 9/24/2019, re: 145 Defendants Johnson, Algien, Felzein, and Boyer's Motion for Summary Judgment is GRANTED; 151 Defendants' Motion to Exclude Expert Testimony By Plaintiffs Expert Jef frey Opp Pursuant to Fed. R. Civ. P. 702 is DENIED as moot. ORDERED that, within fourteen days of this order, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. ORDERED that this case is closed. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 14-cv-01655-PAB-NYW
THE ESTATE OF JAMES ROEMER,
Plaintiff,
v.
DAVID JOHNSON, in his individual capacity,
NATHAN ALGIEN, in his individual capacity, and
CHASE FELZEIN, in his individual capacity,
Defendants.

ORDER

This matter is before the Court on Defendants Johnson, Algien, Felzein, and
Boyer’s Motion for Summary Judgment [Docket No. 145]. 1 The Court has subject
matter jurisdiction under 28 U.S.C. § 1331.
I. BACKGROUND2
A. Mr. Farley’s Transfer to Colorado
In July 2011, inmate Paul Farley was transferred from the Arizona Department of
Corrections (“ADC”) to the Colorado Department of Corrections (“CDOC”). Docket No.

1

On March 7, 2019, the Tenth Circuit affirmed the Court’s dismissal of plaintiff’s
claims against Thomas Boyer. See Docket No. 186 at 23. Accordingly, this order only
addresses plaintiff’s claims against defendants Johnson, Algien, and Felzein.
2

The facts stated below are undisputed unless otherwise indicated. Some of the
facts are taken from Ali Shoaga’s Statement of Undisputed Material Facts, Docket No.
110 at 1-10, which defendants have incorporated into their summary judgment motion,
see Docket No. 145 at 2, without objection from plaintiff.

110 at 1, ¶ 1. At the time of his transfer, the ADC provided the CDOC with records
concerning Mr. Farley’s incarceration in Arizona. Id. at 2, ¶¶ 5-6. Those records
detailed multiple acts of violence committed by Mr. Farley while in ADC custody,
including a 1999 disciplinary conviction for sexually assaulting a cellmate, a 2000
disciplinary conviction for slicing open a cellmate’s back with a razorblade, and a
manslaughter conviction for helping an inmate in an adjoining cell commit suicide in
July 2001. Id. at 2-3, ¶ 6. Mr. Farley’s records also indicated that Mr. Farley had made
threatening statements in regard to other inmates such as “I just want to do somebody,”
“I want to put steel in someone,” and “it would be easier to find a victim in PS.” Id. at 4,
¶ 13.
On September 1, 2011, CDOC officials held a hearing at the Denver Reception
and Diagnostic Center (“DRDC”) to determine whether Mr. Farley should be placed in
administrative segregation. Id. at 1, ¶ 2.3 Defendant Ali Shoaga presided over the
hearing as the chairperson of a three-member hearing board. Id., ¶ 3. As part of the
hearing process, Mr. Shoaga reviewed records regarding Mr. Farley’s ADC disciplinary
history. Id. at 2, ¶ 5. Relying principally on the fact that it had been over ten years
since Mr. Farley’s last disciplinary infraction, Mr. Shoaga recommended that Mr. Farley
not be placed in administrative segregation in the CDOC. Id. at 6, ¶ 24.
B. Facts Related to Defendant Johnson
At the time of the events giving rise to this lawsuit, defendant David Johnson was
the associate warden of DRDC. Docket No. 148 at 1-2, ¶ 2; Docket No. 149 at 1, ¶¶ 23

The DRDC “is the intake facility for all incoming CDOC inmates.” Docket No.
145 at 5, ¶ 26.
2

3. In that role, he was responsible for reviewing administrative segregation hearings
and affirming, modifying, or reversing the classification recommendation submitted by
the chairperson. Docket No. 145 at 3, ¶¶ 3-5. Af ter reviewing the records related to Mr.
Farley’s hearing, including any documents considered by the hearing board, Mr.
Johnson affirmed Mr. Shoaga’s recommendation that Mr. Farley not be placed in
administrative segregation. Id., ¶¶ 4, 7-8. Mr. Johnson relied on the same factors
considered by the hearing board, including the fact that Mr. Farley had no documented
disciplinary infractions in the ADC in the past ten years. Id., ¶¶ 9-10.
C. Facts Related to Defendant Algien
ln 2011, defendant Nathan Algien was a classification officer in the CDOC’s
Office of Offender Services, which makes the final decision regarding an offender’s
facility placement within the CDOC. Id. at 5, ¶¶ 22-24. Before that determination is
made, a diagnostic programmer at the DRDC gives the offender an Initial Custody
Rating based on an objective scoring system designed to assess the offender’s level of
risk and security needs. Id. at 5-6, ¶¶ 27-28, 31. In 2011, custody levels in general
population in the CDOC ranged from “minimum” custody, the least restrictive
classification, to “close” custody, the most restrictive. Id. at 6, ¶ 29. Although Mr.
Algien had the authority to recommend an override of an offender’s initial custody
classification, id., ¶ 32, he did not have the power to override an offender’s
administrative segregation classification. Id. at 7, ¶ 33.
Mr. Algien’s job as a classification officer was to determine an appropriate facility
at which to place an offender based on the offender’s custody level and any “custody

3

issues” related to that offender. Id., ¶¶ 35-36.4 Based on Mr. Farley’s initial
classification as a “close” custody offender, there were three facilities within the CDOC
system at which he could be placed: Sterling Correctional Facility (“SCF”), Limon
Correctional Facility, and Centennial Correctional Facility. Id. at 9, ¶ 48. Mr. Farley was
likely assigned to SCF because it was the first close custody facility with available bed
space that could house him due to custody issues. Id., ¶ 49.
Once Mr. Farley was transferred to SCF, Mr. Algien did not have any authority
over Mr. Farley’s specific cell or housing unit assignments. Id., ¶ 50. All internal
housing decisions were made by the specific facility at which an offender was placed.
Id., ¶¶ 51-52.
D. Facts Related to Defendant Felzein
In May and June 2012, defendant Chase Felzein was employed as a housing
lieutenant at SCF. Id. at 10, ¶ 58. His responsibilities included supervising offenders
and housing unit staff members and reviewing and approving offender cell
assignments. Id. at 10, 12, ¶¶ 59-60, 76.
Once an offender was assigned to a facility, an Internal Classification
Committee, of which Mr. Felzein was not a member, would determine the particular
living unit in which the offender would be housed. Id. at 11-12, ¶¶ 71-72. In May and
June 2012, Mr. Farley and James Roemer were both assigned to Living Unit 2 in the
medium security area of SCF. Id. at 10, ¶¶ 60-61. They were also two of a group of
four offenders who had requested a cell change. Id. at 16, ¶ 100.
4

A “custody issue is an ‘enemy’ or other offender with whom the offender cannot
be housed due to safety concerns.” Docket No. 145 at 7, ¶ 37.
4

In approving a recommendation that Mr. Farley and Mr. Roemer be placed in the
same cell, Mr. Felzein relied on the factors set forth in an internal prison document
known as the Points of Compatibility directive, which housing unit staff were expected
to follow in making cell placement decisions. Id. at 12-13, 17, ¶¶ 78, 110. Among the
compatibility factors considered by Mr. Felzein were Mr. Farley’s and Mr. Roemer’s
ages, their races, their physical sizes, their security threat group (“STG”)/gang
affiliations, the length of their sentences, and their Sexually Aggressive Behavior
(“SAB”)/Sexual Vulnerability Risk (“SVR”) scores. Id. at 13, 16-17, ¶¶ 80, 104-08. Mr.
Felzein determined that all points of compatibility were met because Mr. Farley and Mr.
Roemer were only five years apart in age, they were both Caucasian, they were
similarly sized, they were not members of rival STGs, they had compatible SAB/SVR
scores, there was only a five-year difference in their mandatory release dates, they had
no known custody issues with each other, and they had agreed to live together in the
same cell. Id. at 16-17, ¶¶ 104-09. 5 In making a determination as to these factors, Mr.
Felzein would have reviewed the offender information available in the CDOC’s
DCIS/PCDCIS computer system. Id. at 14-15, ¶¶ 93, 98. 6 However, the DCIS/PCDCIS
system did not contain all of the information that the CDOC would have possessed
regarding Mr. Farley and Mr. Roemer. See id., ¶¶ 94-96.

5

As addressed in more detail in the Court’s analysis, plaintiff disputes the third,
fifth, sixth, and seventh factors. See Docket No. 148 at 5-6, ¶¶ 105-06, 108-09.
6

For example, Mr. Felzein would have looked to the DCIS/PCDCIS system for
Mr. Farley and Mr. Roemer’s SAB/SVR scores, which would have been assessed
initially by programming staff at DRDC and then re-assessed by an SCF staff person
specifically designated for that responsibility. See id. at 14-15, ¶¶ 91-93, 97.
5

At some point, Mr. Farley and Mr. Roemer were moved into the same cell. Id. at
10, ¶ 63. On June 13, 2012, Mr. Farley murdered Mr. Roemer. Id.
Plaintiff, Mr. Roemer’s estate, filed this case on June 12, 2014. Docket No. 1.
Plaintiff asserts an Eighth Amendment deliberate indifference claim under 42 U.S.C.
§ 1983 based on defendants’ respective roles in the decision-making process that led
to Mr. Farley’s placement in the same cell as Mr. Roemer at SCF. See Docket No. 141
at 20-23, ¶¶ 94-106. On October 12, 2017, the Court g ranted summary judgment in
favor of defendants on statute-of-limitations grounds. Docket No. 175. Plaintiff
appealed, Docket No. 179, and on March 7, 2019, the T enth Circuit reversed the grant
of summary judgment, holding that the Court had erred by failing to determine when
plaintiff’s “claims against each defendant accrued.” Docket No. 186 at 23. T he Tenth
Circuit also concluded that, with the exception of Thomas Boyer, defendants had failed
to establish that plaintiff’s claims accrued outside of the relevant limitations period. Id.
Following the Tenth Circuit’s remand, see id., the Court directed the parties to file
status reports identifying the issues that remained to be resolved in light of the Tenth
Circuit’s decision. Docket No. 188. Based on those status reports and the T enth
Circuit’s ruling, the Court determined that the next step in this case is for the Court to
determine whether defendants are entitled to summary judgment on any ground other
than the statute of limitations. Docket No. 191 at 1. On April 24, 2019, the Court
reinstated defendants’ summary judgment motion. Docket No. 191.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when

6

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.
1997).
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

7

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.
III. ANALYSIS
A. Qualified Immunity
Defendants raise the defense of qualified immunity. See Docket No. 145 at 19.
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).
When a defendant asserts a qualified immunity defense, the plaintiff has a “heavy twopart burden” of establishing “(1) that the defendant’s action violated a federal
constitutional or statutory right; and (2) that the right violated was clearly established at
the time of the defendant’s actions.” Grissom v. Roberts, 902 F.3d 1162, 1167 (10th
Cir. 2018) (internal quotation marks omitted). Failure to satisfy either prong of this test
will result in a grant of qualified immunity to the defendant. Id. Courts are “permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
When evaluating a claim of qualified immunity, “‘clearly established law’ should
not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552
(2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))). “The relevant,

8

dispositive inquiry . . . is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Al-Turki v. Robinson, 762 F.3d
1188, 1194 (10th Cir. 2014). Ordinarily, a right is clearly established if there is “a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts . . . have found the law to be as the plaintiff maintains.”
Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation marks omitted).
This does not require a case “directly on point.” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (internal quotation marks omitted). On the other hand, precedent that
merely states “a general proposition of applicable law” will not make a right “clearly
established” for purposes of qualified immunity. Grissom, 902 F.3d at 1168. A right is
clearly established only if existing precedent places “the statutory or constitutional
question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting White, 137 S. Ct. at
551)).
B. Eighth Amendment
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” See Farmer v. Brennan, 511 U.S. 825, 828
(1994); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (“The [Eighth]
Amendment . . . requires that inmates be furnished with the basic human needs, one of
which is ‘reasonable safety.’” (citing DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 199 (1989))). “The analysis [of an Eighth Amendment claim]
should not be based on ‘a court’s idea of how best to operate a detention facility,’” but
should reflect “the evolving standards of decency that mark the progress of a maturing

9

society,” which the Tenth Circuit has characterized as a “lofty standard.” DeSpain v.
Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S.
337, 351 (1981)). To prevail on its claim under the Eighth Amendment, plaintiff must
show that (1) objectively, the harm complained of is sufficiently “serious” to merit
constitutional protection, and (2) defendants were subjectively aware of a substantial
risk to Mr. Roemer’s health or safety and acted in purposeful disregard of that risk.
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
Regarding the objective element, plaintiff must establish that Mr. Roemer was
“incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511
U.S. at 835, which requires “more than ordinary lack of due care for the prisoner’s
interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986); compare Benshoof v.
Layton, 351 F. App’x 274, 277 (10th Cir. 2009) (unpublished) (finding objective element
satisfied where plaintiff was forced to remain in cell with stinging fire ants for six days),
with Montez v. Lampert, 595 F. App’x 789, 792 (10th Cir. 2014) (unpublished) (“[A] 15year-old hernia operation would neither present symptoms readily ascertainable to a lay
person, nor make it obvious to a lay person that a bottom-bunk assignment was
necessary. Montez thus fails the objective prong of the Farmer test.”).
As to the subjective element, the Eighth Amendment does not reach a prison
official’s conduct unless the official “knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837; see also Verdecia v. Adams, 327

10

F.3d 1171, 1175-76 (10th Cir. 2003) (“Deliberate indif ference requires that the
defendant’s conduct is in disregard of a known or obvious risk that was so great as to
make it highly probable that harm would follow, or that the conduct disregards a known
or obvious risk that is very likely to result in the violation of a prisoner’s constitutional
rights.” (internal citations omitted)). A prisoner must therefore establish “that the
defendants knew he faced a substantial risk of harm and disregarded that risk, by
failing to take reasonable measures to abate it.” Martinez, 563 F.3d at 1089 (quotations
omitted). An action or inaction unaccompanied by a subjective awareness of an
unreasonable risk of harm does not constitute “punishment” within the meaning of the
Eighth Amendment. Farmer, 511 U.S. at 837-38. A court “may infer the existence of
this subjective state of mind from the fact that the risk of harm is obvious.” Hope v.
Pelzer, 536 U.S. 730, 738 (2002); see also Farmer, 511 U.S. at 842 (noting that state of
mind can be established with circumstantial evidence and “from the very fact that the
risk was obvious”). The negligent conduct of a prison official is, in all cases, insufficient
to rise to the level of deliberate indifference. Farmer, 511 U.S. at 835 (“Eighth
Amendment liability requires more than ordinary lack of due care for the prisoner’s
interests or safety” (quotations omitted)).
C. Defendant Johnson
Plaintiff asserts that Mr. Johnson acted with deliberate indifference in violation of
the Eighth Amendment by (1) approving Mr. Shoaga’s recommendation that Mr. Farley
not be placed in administrative segregation, see Docket No. 141 at 10-11, ¶¶ 48-53;
and (2) failing to recommend that Mr. Farley be placed in a treatment program that

11

would address his “violent tendencies.” Id. at 11, ¶ 52. Defendants assert that Mr.
Johnson is entitled to qualified immunity because “there is no evidence that [he]
deliberately disregarded a substantial risk of harm with respect to the placement of
Farley in general population,” Docket No. 145 at 21, and “there is no binding precedent
requiring corrections officers to segregate inmates who have violent histories that are a
decade old indefinitely.” Id. at 20.
The Court agrees with defendants’ latter argument and finds, at least with
respect to Mr. Johnson’s approval of Mr. Shoaga’s recommendation on administrative
segregation, that the Court’s previous analysis of Mr. Shoaga’s entitlement to qualified
immunity, see Docket No. 192, controls the inquiry as to Mr. Johnson. It is undisputed
that one of Mr. Johnson’s duties as associate warden was to review administrative
segregation classification hearings and affirm, modify, or reverse the recommendation
submitted by the chairperson. Docket No. 145 at 3, ¶¶ 3-5; Docket No. 148 at 2, ¶ 3;
Docket No. 149 at 1, ¶¶ 2-3. Consistent with this duty, Mr. Johnson reviewed Mr.
Farley’s September 1, 2011 administrative segregation hearing and affirmed Mr.
Shoaga’s recommendation that Mr. Farley not be placed in administrative segregation.
Docket No. 145 at 3, ¶¶ 7-8. In affirming Mr. Shoaga’s recommendation, Mr. Johnson
relied on the same factors considered by the hearing board, including the fact that Mr.
Farley had not had any documented disciplinary infractions in the previous ten years.
Id., ¶¶ 9-10. Accordingly, for the same reasons stated in the Court’s previous order,
Docket No. 192, the Court finds it was not clearly established at the time of Mr.
Johnson’s decision that his failure to reverse or modify Mr. Shoaga’s placement
recommendation would constitute a violation of other inmates’ Eighth Amendment
12

rights.
To the extent plaintiff asserts an Eighth Amendment claim based on Mr.
Johnson’s failure to recommend Mr. Farley’s placement in a treatment program, see
Docket No. 141 at 11, ¶ 52, that claim also fails. Mr. Johnson explained in an affidavit
that he was “not involved in making program recommendations for CDOC offenders”
and that such recommendations “were normally made by the offender’s case manager
at the facility to which they were assigned.” Docket No. 145-1 at 3, ¶¶ 20-21. Plaintif f
has offered no evidence to dispute this assertion. See Docket No. 148 at 4, ¶ 20; see
also Sclafani v. Liberty Mutual Ins. Co., No. 17-cv-01121-RM-KLM, 2019 WL 1437622,
at *3 (D. Colo. Feb. 4, 2019) (“Statements or arguments of counsel are not evidence
sufficient to defeat summary judgment.” (citing In re EuroGas, Inc., 755 F. App’x 825,
833 (10th Cir. 2019) (unpublished)). Accordingly, plaintiff has not demonstrated a
genuine dispute of fact as to whether Mr. Johnson acted with deliberate indifference by
failing to recommend Mr. Farley for treatment.
For the foregoing reasons, Mr. Johnson is entitled to qualified immunity.
D. Defendant Algien
Plaintiff asserts an Eighth Amendment claim against Mr. Algien based on his
failure to refer Mr. Farley to a treatment program or direct that he be housed in a single
cell. See Docket No. 141 at 11-13, ¶¶ 54-59; see also Docket No. 148 at 13.
Defendants contend that Mr. Algien is entitled to qualified immunity because he relied
on the same information as Mr. Shoaga in determining an appropriate facility for Mr.
Farley, Docket No. 145 at 23-24, and was not personally involved in cell assignment or

13

programming decisions, which were made at the facility level. Id. at 22-23.
The Court agrees that plaintiff’s claim against Mr. Algien fails for lack of personal
participation. At the time of Mr. Algien’s actions, he was a classification officer in the
CDOC’s Office of Offender Services. Docket No. 145 at 5-6, ¶¶ 24, 32. As a
classification officer there, Mr. Algien’s role was to “determine the appropriate facility in
which to place a CDOC offender” based on the offender’s Initial Custody Rating or
subsequent reclassifications. Docket No. 145 at 5-7, ¶¶ 24, 32, 35. Althoug h he “had
the authority to recommend an override” of an offender’s initial custody classification, id.
at 6, ¶ 32, he was not able to override the Warden’s decision regarding an offender’s
administrative segregation classification. Id. at 7, ¶ 33. He also did not have any
authority over facility-level decisions regarding an offender’s housing or cell assignment,
including the decision whether to place an offender in a single or shared cell. Id. at 9,
¶¶ 50-52. These undisputed facts foreclose plaintiff’s argument that Mr. Algien acted
with deliberate indifference by failing to direct Mr. Farley’s placement in a single cell.
Additionally, to the extent Mr. Algien had any ability to recommend modification of an
offender’s administrative segregation classification, see Docket No. 145 at 6-7, ¶ 32, 7
the Court has already determined it was not clearly established in 2011-2012 that
7

It is not clear from the briefing or Mr. Algien’s affidavit whether his ability to
recommend an “override to the initial classification of an offender,” Docket No. 145-3 at
3, ¶ 11, extended to an offender’s administrative segregation classification. Because
the Court must view the evidence in a light most favorable to plaintiff, the Court
assumes that Mr. Algien’s authority did extend to recommending a modification or
override of an offender’s administrative segregation classification. This interpretation is
not necessarily inconsistent with Mr. Algien’s later statement that he “did not have the
authority to override the Warden’s decision regarding an offender’s administrative
segregation classification.” Id., ¶ 12. The ability to recommend an override is distinct
from the ability to override an offender’s administrative segregation classification.
14

defendants’ failure to recommend or direct Mr. Farley’s placement in administrative
segregation based on his violent history in ADC violated other inmates’ Eighth
Amendment rights. See Docket No. 192.
Regarding plaintiff’s assertion that Mr. Algien acted with deliberate indifference
by failing to recommend Mr. Farley’s placement in a treatment program, defendants
have submitted an affidavit from Mr. Algien stating that he “had no authority to
recommend or place an offender in any programs, including Thinking for a Change of
the Intensive Management Program at Sterling Correctional Facility,” and that the
“decision to place an offender in a particular program was made internally at the facility
in which the offender was assigned.” Docket No. 145-3 at 5, ¶¶ 32-34; see also Docket
No. 145 at 9, ¶¶ 53-55. Plaintiff disputes these assertions, citing evidence that Mr.
Algien would have considered the availability of “a specific program [or] treatment” in
determining Mr. Farley’s facility placement. Docket No. 148 at 5, ¶¶ 53-55; see also id.
at 12-13. Because this evidence does not controvert Mr. Algien’s statement that he had
no authority to recommend or place an offender in any treatment programs, see Docket
No. 148-5 at 5, 27:6-21 (explaining that classification officers would consider
programming availability as one factor in determining whether to recommend an
inmate’s transfer to a different facility), the Court interprets plaintiff’s argument as
suggesting that Mr. Algien acted with deliberate indifference by failing to consider the
availability of treatment programs at Sterling before assigning Mr. Farley to that facility.8
8

Although not directly addressed in the parties’ fact sections, the Court infers that
Mr. Farley did not participate in any programs at Sterling aimed at moderating his
violent behavior. See Docket No. 148 at 13 (arguing that Mr. Algien should have
referred Mr. Farley to a treatment program at SCF).
15

However, it is undisputed there were only three facilities within the CDOC capable of
accommodating Mr. Farley based on his close custody classification: Sterling
Correctional Facility, Limon Correctional Facility, and Centennial Correctional Facility.
Docket No. 145 at 9, ¶ 48. 9 Plaintiff has not presented any evidence that either Limon
or Centennial offered programming unavailable at Sterling.10 Thus, plaintiff cannot
show a causal connection between Mr. Algien’s alleged failure to consider the
availability of treatment programs and the deprivation of Mr. Roemer’s constitutional
rights. See Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (explaining that a
plaintiff asserting an Eighth Amendment claim must show a “causal connection”
between the defendant’s conduct and the alleged constitutional deprivation).
E. Defendant Felzein
During the events at issue in this lawsuit, Mr. Felzein was responsible for
reviewing and approving offender cell assignments within Mr. Farley’s housing unit.
Docket No. 145 at 10, 17, ¶¶ 58-62, 110. Plaintif f alleges that Mr. Felzein acted with
deliberate indifference by approving Mr. Farley’s placement in a cell with Mr. Roemer in
violation of prison housing policy. See Docket No. 141 at 17, ¶¶ 76-79.

9

Aside from arguing that Mr. Farley should have been placed in administrative
segregation, plaintiff does not contend that Mr. Farley was improperly classified as a
close custody offender. Such an argument would make little sense, as close custody is
the most restrictive custody level in general population. See Docket No. 145 at 6, ¶ 29.
10

To the contrary, plaintiff asserts “[t]here were programs at Sterling that Mr.
Farley could have been assigned to that would have mitigated the risk that Mr. Farley
posed to the general population.” Docket No. 148 at 13. T o the extent plaintiff
contends that Mr. Algien should have recommended Mr. Farley’s placement in one of
these programs, the Court has already determined that the evidence cited does not
support plaintiff’s position.
16

In approving the placement, Mr. Felzein considered various criteria set forth in
associate warden John Chapdelaine’s Points of Compatibility directive, including Mr.
Farley and Mr. Roemer’s ages, races, physical sizes, sentence lengths, Sexual
Vulnerability Risk ratings, and security threat group/gang affiliations. See Docket No.
145 at 12-17, ¶¶ 78-85, 87-89, 105-10. Plaintif f asserts that application of these factors
does not demonstrate it was appropriate to house Mr. Farley and Mr. Roemer in the
same cell. See Docket No. 148 at 14. Specifically, plaintiff points to the disparity in Mr.
Farley and Mr. Roemer’s physical sizes, the difference between their sentences, Mr.
Farley’s documented history of sexual assault, and the existence of custody issues
between Mr. Farley and Mr. Roemer, which were made manifest by Mr. Roemer’s
murder. See Docket No. 148 at 5-6, ¶¶ 105-06, 108-09. 11
The Court finds plaintiff’s evidence insufficient to establish a genuine issue of
fact as to whether Mr. Felzein was subjectively aware of a substantial risk of harm to
Mr. Roemer. Regarding Mr. Farley’s history of sexual assault and any custody issues
existing between Mr. Farley and Mr. Roemer, plaintiff has not shown that Mr. Felzein
knew of either circumstance when he approved the decision to house Mr. Farley and
Mr. Roemer in the same cell.12 Mr. Felzein states in his affidavit that he was not aware,

11

Plaintiff cites Mr. Farley’s history of sexual assault in the ADC to dispute the
appropriateness of housing Mr. Farley and Mr. Roemer in the same cell. See Docket
No. 148 at 5-6, ¶ 105. However, plaintiff admits that Mr. Farley’s and Mr. Roemer’s
SAB/SVR scores did not render them incompatible under the Points of Compatibility
directive. Id.
12

Plaintiff does not cite any evidence showing there were known custody issues
between Mr. Farley and Mr. Roemer at the time Mr. Felzein approved the decision to
house them in the same cell. See Docket No. 148 at 6, ¶ 109. Plaintiff merely asserts
that the existence of custody issues was clear, given that Mr. Farley ultimately killed Mr.
17

in 2012, of Mr. Farley’s violent history in the ADC or of the packet of information
regarding that history, which the ADC provided to the CDOC upon Mr. Farley’s transfer
to Colorado. See Docket No. 145-5 at 8, ¶¶ 55-58. In applying the Points of
Compatibility guidelines and approving an offender’s cell placement, Mr. Felzein would
have reviewed the offender information contained in the CDOC’s DCIS/PCDCIS
computer system. See Docket No. 145 at 14, 16, ¶¶ 91, 93, 103. How ever, it is
undisputed that the information available to Mr. Felzein through that system did not
reflect all of the information possessed by the CDOC regarding a particular offender.
See id. at 14-15, ¶¶ 94-96. While plaintiff contends that Mr. Felzein would have been
aware of the ADC records because “Mr. Farley’s CDOC file is littered with references to
his violent history in the [ADC],” Docket No. 148 at 7, ¶ 113; see also id. at 14, plaintiff
has not provided any evidence of Mr. Farley’s CDOC file or the particular records Mr.
Felzein would have reviewed in approving Mr. Farley’s cell assignment. Accordingly,
plaintiff has failed to demonstrate a genuine issue of fact as to whether Mr. Felzein was
aware of Mr. Farley’s history in the ADC. See Vega v. Davis, 572 F. App’x 611, 618
(10th Cir. 2014) (unpublished) (stating that “[t]he mere presence of records, by
themselves, does not create the reasonable inference that [a defendant] read them”).
As to the remaining compatibility issues cited by plaintiff – namely, the fact that
Mr. Farley weighed more than Mr. Roemer and had more time left on his sentence –
Roemer. See id. However, whether a prison official acted with deliberate indifference
“must be based on what he knew [at the time of the alleged constitutional violation], not
what is known now.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
776 (10th Cir. 2013); see also Millward v. Bd. of Cty. Comm’rs of the Cty. of Teton,
Wyo., 2018 WL 9371573, at *24 (D. W yo. Oct. 19, 2018) (“[F]ailure in hindsight to
pursue the ideal path falls far short of deliberate indifference.”).
18

plaintiff has not demonstrated a genuine issue of fact as to whether Mr. Felzein violated
prison housing policy by approving Mr. Farley’s cell placement. Even assuming the
forty-pound weight difference between Mr. Farley and Mr. Roemer was not “negligible,”
and Mr. Farley had at least twelve years to serve on his sentence at the time he was
placed with Mr. Roemer, see Docket No. 148 at 6, ¶¶ 106, 108, the Points o f
Compatibility directive did not provide clear guidance as to how prison officials should
evaluate this criteria. The directive merely advised that “[a] victim prone 120 lb. inmate
should not be housed with an intimidating 250 lb. inmate,” and that an inmate “doing a
short sentence” should not be housed “with an inmate doing a long sentence.” Docket
No. 148-7. Based on these benchmarks, Mr. Farley and Mr. Roemer were not
obviously incompatible. Id.13
However, even if Mr. Farley and Mr. Roemer’s cell assignment violated the
Points of Compatibility directive with respect to the physical-size and sentence-length
factors, plaintiff has not cited any evidence or authority establishing that this would have
been sufficient, standing alone, to make Mr. Felzein aware that “a substantial risk of
serious harm exist[ed].” Farmer, 511 U.S. at 837; see also Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993) (“[A] failure to adhere to administrative regulations does
not equate to a constitutional violation.”). At a minimum, plaintiff has failed to
demonstrate that Mr. Roemer had a clearly established constitutional right not to be
13

While plaintiff’s expert, Daniel Vasquez, opines that the decision to place Mr.
Farley in a cell with Mr. Roemer was unreasonable and a violation of prison policy, see
Docket No. 148-2 at 8-10, he does not prof ess any knowledge as to how the Points of
Compatibility were interpreted at SCF and relies in large part on Mr. Farley’s history of
violence, of which – according to defendant’s uncontroverted evidence – Mr. Felzein
was not aware.
19

placed in the same cell as an inmate weighing forty pounds more than him and having
a longer sentence. See Lowe v. Raemisch, 864 F.3d 1205, 1212 (10th Cir. 2017)
(stating that the standard for qualified immunity is “whether it would have been clear to
a reasonable officer that the alleged conduct was unlawful in the situation he
confronted” (internal quotation marks omitted)). As a result, plaintiff cannot overcome
Mr. Felzein’s defense of qualified immunity.14
IV. CONCLUSION15
For the foregoing reasons, it is
ORDERED that Defendants Johnson, Algien, Felzein, and Boyer’s Motion for
Summary Judgment [Docket No. 145] is GRANTED. It is further
ORDERED that Defendants’ Motion to Exclude Expert Testimony By Plaintiff’s
Expert Jeffrey Opp Pursuant to Fed. R. Civ. P. 702 [Docket No. 151] is DENIED as
moot. It is further
ORDERED that, within fourteen days of this order, 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.

14

To the extent plaintiff asserts that Mr. Felzein acted with deliberate indifference
by failing to recommend Mr. Farley’s placement in a transitional program, such as Think
for a Change, see Docket No. 148 at 7, ¶ 115, plaintiff has not presented any evidence
to rebut Mr. Felzein’s statement that he “was not involved in making program
recommendations for CDOC offenders.” Docket No. 145-5 at 9, ¶ 62.
15

Because the Court did not rely on any opinions by plaintiff’s expert, Jeffrey
Opp, in resolving defendants’ motion for summary judgment, Defendants’ Motion to
Exclude Expert Testimony By Plaintiff’s Expert Jeffrey Opp Pursuant to Fed. R. Civ. P.
702 [Docket No. 151] will be denied as moot.
20

DATED September 24, 2019.
BY THE COURT:

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

21