Custard v. Armijo et al
ORDER granting 182 Motion for Summary Judgment; denying 196 Motion for Summary Judgment; adopting Report and Recommendations re 213 Report and Recommendations. By Judge Robert E. Blackburn on 9/13/17. (rebsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00448-REB-CBS
BOB ALLEN CUSTARD,
D. BERKABILE, MR.,
UNITED STATES OF AMERICA,
ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before me on the following: (1) the defendants’ Motion for
Summary Judgment [#182]1 filed October 31, 2016; (2) Pltf’s Mo. For S.J. and
Exhibits [#196] filed by the plaintiff on November 17, 2016; and (3) the
Recommendation of the United States Magistrate Judge [#213] filed May 18, 2017.
The plaintiff filed objections to the recommendation [#214], and the defendants filed a
response [#215]. I overrule the objections and approve and adopt the recommendation.
“[#182]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this case, and the applicable case
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and
other filings more liberally and held them to a less stringent standard than formal
pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
The plaintiff, Bob Custard, is a prisoner incarcerated at the United States
Penitentiary Administrative Maximum (ADX). Still pending are his second, third, and
sixth claims for relief.
In his second claim for relief, Mr. Custard alleges defendants Mr. Rangel, Mr.
Robinson, and Mr. Fitzgerald2 violated his Eight Amendment rights by subjecting him to
dangerous conditions of confinement when they failed to remove “dozens of jagged
protruding welds [in] [his] shower and sink area” and denied a transfer request to a safer
cell. Amended complaint [#8]. Mr. Custard says he injured himself on the jagged welds
which resulted in 15 stitches Id.
The magistrate judge concludes that defendants Mr. Rangel and Mr. Robinson
are entitled to qualified immunity because neither had the authority to move Mr. Custard
out of his SHU cell [#182]. Without such authority, the magistrate judge concludes, the
claim fails because neither defendant personally participated in the alleged wrong. See
In his complaint [#8], the plaintiff names each defendant without providing a first name. I refer
to the defendants using their names as listed in the caption of the complaint [#8].
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Estate of Booker v. Gomez,
745 F.3d 405, 435 (10th Cir. 2014). In addition, the magistrate judge recommends that
summary judgment be granted in favor of all defendants on this claim because there is
no evidence that a sufficiently serious risk of harm existed. To establish and Eighth
Amendment claim, a plaintiff must demonstrate that he was subjected to a “sufficiently
serious” risk of harm and that a named defendant acted with a sufficiently “culpable
state of mind.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The magistrate judge
concludes Mr. Custard’s unsupported assertions failed to establish a sufficiently serious
risk of harm because no evidence of jagged welds was produced, while the defendants
provided evidence which demonstrates the absence of such welds in the SHU cell in
In his third claim for relief, Mr. Custard alleges that he suffers from severe
chronic asthma and that he was exposed to chemical & pepper spray used during a
Use-of-Force (UOF) Operation conducted in an adjoining cell on May 19, 2014. Mr.
Custard alleges his Eight Amendment rights were violated by defendants Mr. Osagie
and Mr. Berkebile because they purposefully refused to relocate Mr. Custard during the
UOF, despite knowing of his asthma.
The magistrate judge concluded no evidence established Mr. Osagie’s personal
participation in the UOF. Evidence produced showed Mr. Osagie was absent from May
18, 2014, to May 26, 2014. Further, the undisputed facts evidenced in the record
showed that Mr. Osagie (1) never treated Plaintiff for the alleged exposure the chemical
and pepper spray; (2) did not have input on the decision to conduct the UOF; (3) only
became aware of the UOF via this lawsuit; and (4) had no knowledge about the reason
the UOF was conducted on May 18, 2014. The magistrate judge recommends granting
the motion for summary judgment as to Mr. Osagie.
As to Mr. Berkebile, the magistrate judge concludes Mr. Custard did not establish
the subjective prong of the Eighth amendment inquiry. Mr. Custard made conclusory
statements that he allegedly gave Mr. Berkebile a “Notice & Request” explaining his
asthma condition and the ability of pepper spray to travel between cells. However, with
no supporting foundation that Mr. Berkebile received or read the note, the magistrate
judge found that there is no genuine issue of material fact concerning this issue.
Further, the Eight Amendment subjective inquiry requires that Mr. Berkebile disregarded
an excessive risk to Mr. Custard’s health. Undisputed evidence shows Mr. Berkebile
did not know where the plaintiff was housed at the time of the UOF. Absent such
knowledge on the part of Mr. Berkebile, Mr. Custard cannot show that Mr. Berkebile
disregarded an excessive risk to Mr. Custard’s health. Given this evidence, the
magistrate judge concluded Mr. Berkebile is entitled to qualified immunity and
recommends that summary judgment be granted in favor of Mr. Berkebile.
In his sixth claim for relief, Mr. Custard alleges Mr. Kasdon and Mr. McMullen
called him a snitch using a loud voice. The United States Court of Appeals for the
Tenth Circuit held in Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001), that an
inmate’s allegation that he had been labeled a snitch satisfies the objective prong of the
Eight Amendment cruel and unusual punishment analysis. Narrowing, this view in
Brown v. Jarivs, 265 F. App’x 734 (10th Cir. 2008), the Tenth Circuit held a defendant
could successfully defend against the allegation on summary judgment by showing
additional circumstances that negate or neutralize the danger created by the disclosure.
The magistrate judge concludes Mr. Kasdon and Mr. McDowall presented
sufficient evidence to negate and neutralize the disclosure, assuming it is true that these
two defendants called Mr. Custard a snitch. All inmates in general population at ADX,
which is where Mr. Custard now resides and will reside for the foreseeable future, are
housed in single cells. Inmates take their meals alone and only one inmate is permitted
to move within the unit at a time. No physical contact may be made between inmates,
and officers monitor every movement taken. No evidence was produced by Mr. Custard
to dispute any material fact as to the security measures taken to ensure ADX prisoner
safety. Therefore, the magistrate judge recommends granting summary judgment in
favor of Mr. Kasdon and Mr. McMullen on the snitch claim.
After de novo review, I concur. The objections [#214] do not contain valid
criticism of the analysis and conclusions of the Magistrate Judge. Therefore, the
objections [#214] are overruled. By granting the motion for summary judgment [#182],
the court resolves the last remaining claims in this case. All claims have been resolved
in favor of the defendants. Therefore, I direct the entry judgment.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of the United States Magistrate Judge [#213] is
approved and adopted as an order of this court;
2. That under Fed. R. Civ. P. 56, the defendants’ Motion for Summary
Judgment [#182] is granted;
3. That under Fed. R. Civ. P. 56, Pltf’s Mo. For S.J. and Exhibits [#196] is
4. That based on the Order To Dismiss In Part and To Assign Case [#14], the
Order Overruling Objections and Adopting Recommendation of United States
Magistrate Judge [#75], and the present order, judgment shall enter against the
plaintiff, Bob Custard, and in favor of all defendants named in this case, Mr. Armijo, Mr.
Atauvich, Mr. D. Berkabile, Mr. Camacho, Mr. J. Cedeno, Mr. Frank Cordova, Ms. Kate
Erwin, Ms. Francia, Mr. Fitzgerald, Mr Gaconi, Mr. Henry, Mr. Heuett, Mr. Holman, Mr.
Huddleston, Mr. Humphries, Ms. Kasdon, Ms. Lungren, Mr. McMullen, Mr. Osagie, Mr.
Owens, Mr. Padilla, Mr. Rangel, Mr. Robinson, Mr. Santini, Mr. Simpler, Unknown
Named Defendants 1 - 14, and The United States of America, as to all claims asserted
by the plaintiff in this case;
5. That the defendants are awarded their costs to be taxed by the clerk of the
court in the time and manner prescribed in Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1; and
6. That this case is closed.
Dated September 13, 2017, at Denver, Colorado.
BY THE COURT:
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