Broadus v. DeCesaro et al

Filing 51

ORDER adopting Report and Recommendations re 40 Report and Recommendations in it's entirety; and granting in part and denying in part 23 Motion to Dismiss. Any claim for damages asserted by Plaintiff against any Defendant in his or her off icial capacity is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction; and Plaintiffs claims against Defendants DeCesaro, Higgins, Keisel, Owens, Soucie, VanMeter, Walker, Wildenstein, John Does 14, and Jane Does 12 are DISMISSED WITHOUT PREJUDICE. Ordered by Judge William J. Martinez on 03/03/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0182-WJM-KLM
JOHN MICHAEL BROADUS
Plaintiff,
v.
ANTHONY A. DECESARO, Grievance Officer,
CHAPDELAIN, Associate Warden,
CHP, Clinical Health Provider,
GILES, Lieutenant,
RAYMOND HIGGINS,
ROBERT KEISEL,
EVA LITTLE, Lieutenant,
LUYANDO, Lieutenant,
DENNY OWENS,
JAMIE SOUCIE,
SWINGLE, Lieutenant,
THODE, Sergeant,
JAMEY VANMETER,
KENNETH WILDENSTEIN, Major,
WALKER, Correctional Officer,
JANE DOE #1, Nurse,
JANE DOE #2, Nurse,
JOHN DOE ##1–4,
Defendants.

ORDER ADOPTING JANUARY 21, 2016 RECOMMENDATION OF MAGISTRATE
JUDGE AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

This matter is before the Court on United States Magistrate Judge Kristin L. Mix’s
Recommendation dated January 21, 2016 (“Recommendation”) (ECF No. 40), which
recommends granting in part and denying in part Defendants’ Motion to Dismiss (ECF
No. 23). The Recommendation is incorporated herein by reference. See 28 U.S.C.

§ 636(b)(1)(B); Fed. R. Civ. P. 72(b). No Defendant filed any objection. Plaintiff John
Michael Broadus (“Broadus”) filed a timely Objection to the Recommendation on
February 9, 2016 (“Objection”) (ECF No. 41). For the reasons set forth below,
Broadus’s Objection is overruled, the Recommendation is adopted, and Defendants’
Motion to Dismiss is granted in part and denied in part.
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” An objection to a recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Prop. Know n as 2121 East 30th St., 73
F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently specific if it “enables the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” 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
recommendation; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.
Because Broadus is proceeding pro se, the Court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as an
advocate for Broadus, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

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1991).
II. BACKGROUND
Broadus is a prisoner in the custody of the Colorado Department of Corrections
(“CDOC”) and currently housed at CDOC’s Sterling Correctional Facility (“Sterling”).
Broadus’s currently operative Complaint (ECF No. 6) alleges numerous disparate
violations of his constitutional rights by various Sterling employees and officials. A
complete summary of Broadus’s allegations can be found in the Recommendation.
(ECF No. 40 at 2–5.) The facts relevant to Broadus’s Objection are discussed below in
connection with the Court’s analysis.
III. ANALYSIS
A.

Defendant Keisel
Broadus alleges that he has somehow “been ‘flagged’ as an ‘associate’ to ‘The

Crips,’ a Security Threat Group.” (ECF No. 6 at 13.) Broadus complained to his case
manager, who referred him to Defendant Eva Little of “STG Intel.”1 Broadus told Little
that he had never been part of The Crips or any other gang, but Little responded that
his “only solution” was to “‘begin the inactive process’ put in place for inmates wishing to
disassociate from their gang.” Broadus rejected this advice because going through the
“inactive process” would be at least an implicit admission that he really had been part of
a gang, which could threaten his life: “Just as members get ‘beat in’ to gangs, they get
‘beat out’ of gangs . . . .” (Id.) In other words, Broadus fears that any sort of formal
disassociation with a gang will prompt that gang to attack him—even though the
1

The Court presumes that “STG Intel” refers to individuals designated to gather or
evaluate information about security threat groups at Sterling.

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members of that gang presumably know that Broadus has never been one of them.
Broadus then filed a grievance. That grievance was apparently denied at step
one because “Defendant Robert Keisel conferred with me personally and was the
respondent of my step two grievance.” (Id.) Keisel, however, shared Little’s view of the
matter. He therefore denied Broadus’s grievance. (Id.)
The Magistrate Judge understood all of this to be alleging that Little was the
relevant decisionmaker (i.e., someone with personal involvement in the decision to
place Broadus on the Security Threat Group list), whereas Keisel was only a grievance
respondent. (ECF No. 40 at 10, 21–23.) This understanding was likely bolstered by
Broadus’s Response brief, which focuses almost entirely on Little and her position as
“an authority figure,” and says nothing specific about Keisel. (ECF No. 26 at 9–11,
17–18.) Accordingly, the Magistrate Judge concluded that Broadus had stated a valid
claim against Little, but not against Keisel because “‘a denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983.’” ( Id. at 11 (quoting Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)).)
Broadus now argues that the Magistrate Judge’s conclusion is logically
inconsistent because his Complaint supposedly alleges that both Little and Keisel were
“working as authority/heads of STG boards, intelligence gathering, and/or policy makers
and/or enforcers,” and therefore it makes no sense to sustain his Complaint against
Little but not Keisel. (ECF No. 41 at 1–2.) Broadus overstates his own allegations. His
Complaint nowhere says that Keisel held a position of authority associated with Security

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Threat Group monitoring. Broadus does allege that “[i]nmates are being assaulted and
even killed because of the policies put in place and enforced by Defendants Little and
Keisel” (ECF No. 6 at 13), but this allegation is entirely conclusory as to Keisel. Nothing
before it in the Complaint prepares the reader for this accusation, and nothing after it
elaborates. On that basis alone, the Court m ay overrule Broadus’s Objection to the
Recommendation as it relates to Keisel. See Riddle v. Mondragon, 83 F.3d 1197, 1202
(10th Cir. 1996) (when evaluating pro se complaints, “conclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be
based”).
Moreover, when Broadus’s Complaint is properly understood, the allegation that
Keisel was a policymaker is irrelevant, and the Magistrate Judge’s conclusion that
Keisel was involved only in the denial of the grievance is well-supported. Normally,
when a § 1983 plaintiff alleges a “policy,” he or she does so in hopes of holding a
government agency liable in damages for the actions of one of its employees, as
permitted by Monell v. Department of Social Services, 436 U.S. 658 (1978). But only
municipal agencies can be liable under Monell; the Eleventh Amendment continues to
protect state agencies, such as CDOC, from damages liability. See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 70 (1989). Thus, whether Little or Keisel was a
policymaker is not directly relevant.
Broadus’s claim is fundamentally a failure-to-protect claim: “an inmate [has] a
right to be reasonably protected from constant threats of violence . . . from other
inmates.” Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980). Broadus alleg es that

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he faces constant threats of violence because he has been erroneously placed on the
Security Threat Group list. The question, then, is, “Who can get Broadus off the
Security Threat Group list?” The entire thrust of Broadus’s Complaint is that Little is the
person who controls the list. 2 Keisel is alleged only to be someone who agrees with
Little’s view of the situation, and who denies a grievance. If Keisel could be liable, as a
grievance respondent, for agreeing with the policy or decision that led to the grievance,
then the Tenth Circuit’s holding regarding grievance officers’ non-liability would be a
dead letter.
For all of these reasons, Broadus’s objection to Keisel’s dismissal is overruled.
B.

Defendants Higgins and Owens
Broadus alleges that Sterling officials learned of uranium contamination in the

facility’s drinking water in or around August 2014. (ECF No. 6 at 11.) Broadus further
alleges that this has led to deleterious health ef fects in two ways: (1) uranium poisoning
when drinking the water available in his cell, which allegedly remains contaminated; and
(2) dehydration due to frequent lockdowns that prevent Broadus from accessing a
common area where non-contaminated water is available. (Id.)

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It is not obvious that removal from the Security Threat Group list would help Broadus.
He alleges that he has already “had numerous altercations with Crip members and adversaries
of The Crips because of the bogus characterization.” (ECF No. 6 at 13.) In other words, his
supposed gang affiliation is already well known in the prison population. The Court does not
see how removing Broadus from the Security Threat Group list would change other inmates’
views about him, or prevent him from being “beat out” of a gang when that gang learns that he
has found a way to remove himself from the list. For present purposes, however, the Court
accepts Broadus’s basic premise that his presence on the list puts him in danger and his
absence from the list would remove the danger.

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Defendant Owens responded to Broadus’s first-level grievance regarding this
condition, and denied it. Defendant Higgins responded to Broadus’s second-level
grievance, and likewise denied it. The Magistrate Judge found that Owens and Higgins
could not be sued simply for denying Broadus’s grievances. (ECF No. 40 at 11.)
Broadus objects as follows: “what’s being ignored is th[e] fact that these
Defendants are directly responsible for the policies and procedures put in place when it
was first learned that the water supply at [Sterling] was contaminated. They refused to
allow inmates complete access to non contaminated alternative drinking water, and
refused to direct correctional officers to permit inmates access during periods of
lockdown.” (ECF No. 41 at 2.) These allegations do not appear anywhere in Broadus’s
complaint. Broadus may not defend against a motion to dismiss with allegations that do
not appear in his Complaint. See Silver v. Primero Reorganized Sch. Dist. No. 2, 619
F. Supp. 2d 1074, 1080 (D. Colo. 2007). Broadus’s objection to Hig gins’s and Owens’s
dismissal is overruled.3
C.

All Other Recommendations
The Magistrate Judge made numerous other recommendations, some favoring

Broadus and some favoring Defendants, to which no party has objected. The Court

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In evaluating Broadus’s claim regarding the uranium-contaminated water, the
Magistrate Judge surmised in a footnote that Broadus appeared to be suing specifically over
dehydration, not over the effects of uranium poisoning. (ECF No. 40 at 15 n.7.) This
conclusion does not appear to have affected the Magistrate Judge’s analysis, but Broadus
states for the record that he intends his water contamination claim to cover both dehydration
and the effects of uranium. (ECF No. 41 at 3.) Broadus’s allegations are broad enough to
cover both. (See ECF No. 6 at 11–12.) However, because the Magistrate Judge’s
Recommendation does not in any way turn on the precise scope of the water contamination
claim, there is nothing for the Court to sustain or overrule.

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concludes that these portions of the Recommendation were thorough and sound, and
that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b) advisory
committee’s note (“When no timely objection is filed, the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(“In the absence of timely objection, the district court may review a magistrate’s report
under any standard it deems appropriate.”). The Court therefore adopts the
Recommendation in its entirety.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation of the United States Magistrate Judge (ECF No. 40) is
ADOPTED in its entirety;

2.

Defendants’ Motion to Dismiss (ECF No. 23) is GRANTED IN PART and
DENIED IN PART as follows:
a.

Any claim for damages asserted by Plaintiff against any Defendant in his
or her official capacity is DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction; and

b.

Plaintiff’s claims against Defendants DeCesaro, Higgins, Keisel, Owens,
Soucie, VanMeter, Walker, Wildenstein, John Does 1–4, and Jane Does
1–2 are DISMISSED WITHOUT PREJUDICE.

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Dated this 3rd day of March, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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