Dalrymple v. Corrections Corp. of America et al

Filing 98

OPINION AND ORDER granting in part and denying in part 71 Motion for Summary Judgment, and denying 89 Motion for Summary Judgment, by Chief Judge Marcia S. Krieger on 3/28/18. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-CV-0875-MSK-KMT
DAVID DALRYMPLE,
Plaintiff,
v.
LUIS A. ROSA, Assistant Warden, KCCC;
TAYLOR, Unit Manager, KCCC; and
SWARTZ, Property Officer, KCCC,
Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION
FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court upon the parties’ Cross-Motions for Summary
Judgment (## 71, 89),1 the Plaintiff’s response (# 90), and the Defendants’ reply (# 91); and the

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The deadline for filing dispositive motions in this case was August 1, 2017 (# 59). The
Defendants filed their summary judgment motion on that date. Shortly thereafter, Mr. Dalrymple
filed a response that, in essence, sought to stay determination of the summary judgment pursuant
to Fed. R. Civ. P. 56(d). Further discovery ensued and the Court ultimately granted (# 83, 88)
Mr. Dalrymple additional time to file a substantive response to the Defendants’ summary
judgment motion. Mr. Dalrymple then filed both a response (# 90) to the Defendants’ motion
and his own cross-motion for summary judgment (# 89). Mr. Dalrymple had never sought nor
obtained leave to file his own cross-motion beyond the dispositive motion deadline. The
Defendants did not respond to Mr. Dalrymple’s cross-motion, either on the merits or to complain
of its untimeliness.
The Court finds, sua sponte, that it would be inappropriate to consider Mr. Dalrymple’s
untimely cross- motion, and the Court therefore denies that motion. (In any event, consideration
of that cross-motion would not materially alter the outcome herein.) However, the Court will
deem the contents of that motion to supplement, where necessary, Mr. Dalrymple’s response to
the Defendants’ motion.
1

Plaintiff’s Motion to Show Cause to Allow Issuance of Subpoenas (# 92). For the following
reasons, the Defendants’ motion is granted, in part, and the remaining motions are denied.
I. JURISDICTION
The Court exercises jurisdiction under 28 U.S.C. § 1331.
II. BACKGROUND
Except as noted, the following facts are derived from Mr. Dalrymple’s declaration (# 89).
Mr. Dalrymple, appearing pro se, 2 is a prisoner in the custody of the Idaho Department of
Corrections (“IDOC”). For reasons that are not disclosed in the record, in 2012, IDOC arranged
for him to be housed in the Kit Carson Correctional Center (“KCCC”) in Burlington, Colorado.3
At the time of his move to KCCC, Mr. Dalrymple was in possession of four books on the
subject of hypnotism. Mr. Dalrymple intended to use these books as support for legal filings he
intended to make in his Idaho criminal case. Mr. Dalrymple states that all four of the books were
approved by KCCC staff during his “initial intake process.” Between 2012 and March 2015, he
ordered four more hypnotism books, again ostensibly for research purposes. Three of the books
were approved by KCCC staff; the fourth was initially confiscated, but upon review by KCCC
staff, the book was approved and given to Mr. Dalrymple.

2

In considering Mr. Dalrymple’s filings, the Court is mindful of his pro se status, and
accordingly construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, pro se status does not relieve Mr. Dalrymple of the obligation to muster sufficient
evidence to demonstrate a colorable claim under the applicable substantive law. Ogden v. San
Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
3

This unorthodox arrangement contributes to the confusion in this case. It is not clear
whether Mr. Dalrymple was then subject to rules and regulations set by IDOC (as an IDOC
prisoner), of KCCC or the Colorado Department of Corrections (due to the situs of his housing),
of both, some combination of the two, or some other set of rules. The parties’ filings shed little
meaningful light on this question.
2

In late 2015, Mr. Dalrymple ordered duplicate copies of three of the books, intending to
attach the copies as exhibits to a motion he intended to file in his criminal case. Mr. Dalrymple
states that, on January 3, 2016, Defendant Schwartz confiscated the three books. Mr. Dalrymple
does not recite what explanation he was given by Mr. Schwartz at the time, and Mr. Schwartz
has not tendered an affidavit or deposition testimony giving his version of why the initial
confiscation occurred. Mr. Dalrymple complained of the confiscation to Defendant Rosa, the
Assistant Warden at KCCC, explaining that the confiscated books were simply copies of books
that Mr. Dalrymple already had in his possession. Mr. Rosa then directed Mr. Schwartz to
confiscate Mr. Dalrymple’s original copies of the three books as well. Once again, Mr.
Dalrymple does not recite any justification that Mr. Rosa gave for the second confiscation.
The Court pauses here to consult the materials submitted by the Defendants in support of
their summary judgment motion. Mr. Rosa’s affidavit seems to offer two conflicting
justifications for the confiscation of Mr. Dalrymple’s books. First, Mr. Rosa makes reference to
a “Reading Committee” at KCCC that ostensibly vets inmates’ possession of reading material.
Mr. Rosa makes clear that neither he nor any other Defendant was a member of that committee.
Mr. Rosa refers to “the committee’s decision to confiscate Mr. Dalrymple’s hypnosis books.”
Then, Mr. Rosa states that “the basis for the confiscation of the books was that [IDOC] did not
allow Mr. Dalrymple to possess hypnosis books.” Attempting to harmonize Mr. Rosa’s
affidavit, the Court assumes that Mr. Rosa is asserting that the Reading Committee at KCCC
consulted IDOC about whether Mr. Dalrymple could possess the books, that IDOC responded

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that he could not, and that the Reading Committee then instructed Mr. Schwartz and/or Mr. Rosa
to confiscate the books.4
Returning to Mr. Dalrymple’s version of events, he states that he then submitted a
grievance concerning the confiscation of the books to the Defendants here. All three Defendants
met with Mr. Dalrymple and offered yet another justification for the confiscation: that his “status
as a sex offender forbid [him] from having this type of publication.” Mr. Dalrymple’s declaration
concludes with the statement that he is now back in a facility in Idaho, that “the publications in
question in this litigation do not present any security risk,” and that he is presently in possession
of all three of the confiscated books.
Mr. Dalrymple’s suit here asserts two claims, both pursuant to 42 U.S.C. § 1983: (i) that
the confiscation of the three books violated his right to Free Speech (or, arguably, Freedom of
the Press) as secured by the First Amendment to the U.S. Constitution; and (ii) that the
confiscation of the books violated his First Amendment right to petition the government for
redress by depriving him of access to the courts, insofar as he was unable to file the books as
exhibits to a motion in his criminal case.
4

The Defendants have also submitted the affidavit of Michael Miller, the Warden of
another Colorado prison facility, on the subject of “the restriction/confiscation of inmate
property.” Mr. Miller’s affidavit is non-committal on the subject of which state’s regulations
govern Mr. Dalrymple’s ability to possess certain publications; Mr. Miller states his familiarity
with Colorado Department of Corrections policies and states that “As Plaintiff is an Idaho
inmate, Idaho DOC regulations may also apply.” (Emphasis added.) Mr. Miller states that
decisions about inmate access to publications will be made by Reading Committees, which
appear to be convened on a facility-by-facility basis. The Committees make a determination as
to whether an inmate can or cannot posses a publication. Mr. Miller repeatedly emphasizes that
such determinations are made by the Committees on a “case-by-case basis,” taking into account
the inmate involved and the nature of the publication, and states that no particular regulation or
policy governs the decision. Mr. Miller states that the Committee delivers its decision to the
Warden of the facility, but appears to suggest that the Warden (or, in certain cases, Assistant
Warden) “is the final decision maker and has final authority over” the decision, such that he or
she could conceivably overrule the Committee’s decision. Mr. Miller does not purport to have
any personal knowledge about the specific decisions that were made in Mr. Dalrymple’s case.
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The Defendants’ summary judgment motion is somewhat muddled. It first argues that
none of the named Defendants personally participated in the confiscation of Mr. Dalrymple’s
books, arguing instead that the decision to confiscate the books was made by the members of the
Reading Committee, none of whom were the Defendants. The Defendants then argue that Mr.
Dalrymple cannot establish any §1983 claim, in that, generally, the Defendants lacked a
sufficiently culpable state of mind and that Mr. Dalrymple cannot establish a claim premised
upon denial of access to the courts because he has not come forward with facts showing that the
confiscation of the books caused him tangible prejudice in his ability to pursue a non-frivolous
criminal appeal. The also allege, in this argument, that the confiscation of the books was made at
the direction of IDOC.5 Finally, the Defendants argue that, to the extent Mr. Dalrymple can state
a claim, they6 are entitled to qualified immunity because Mr. Dalrymple cannot show that the
contours of his claim are “clearly established,” given that IDOC gave the direction that the books
be confiscated.
III. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary
adjudication is authorized when there is no genuine dispute as to any material fact and a party is
5

In support of this contention, the Defendants do not point to any contemporaneous
communications that anyone at KCCC may hav had with IDOC in January 2016. Instead, they
cite to grievance forms and an internal IDOC e-mail exchange from December 2016, apparently
after Mr. Dalrymple had been returned to Idaho. Needless to say, discussions from December
2016 shed no light on what instructions were sought or received in January 2016.
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The qualified immunity discussion in the Defendants’ motion concludes with a statement
that “No particularized, clearly established right of any Plaintiff could form the basis for any
claim against Mr. Walker in this case.” (Emphasis added.) The Court assumes that the reference
to a “Mr. Walker’ is a vestige of a sloppy cut-and-paste job from a different case, and that the
Defendants intend to argue here that Mr. Dalrymple cannot show that his claims against any of
these Defendants are “clearly established.”
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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what
facts are material and what issues must be determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of proof, and identifies the party with the
burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis
Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is
“genuine” and summary judgment is precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a
court views all evidence in the light most favorable to the non-moving party, thereby favoring
the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent

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evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
IV. DISCUSSION
Given the issues raised here,the Court need not separately iterate the elements of each of
Mr. Dalrymple’s claims. It is sufficient to observe that prison officials may restrict an inmate’s
ability to possess reading material if such a restriction is justified by legitimate penological
interests under the familiar Turner v. Safley, 482 U.S. 78 (1987), analysis. See Smith v.
Maschner, 899 F.2d 940, 944 (10th Cir. 1990).
A. Personal participation
The Defendants’ first argument is that Mr. Dalrymple cannot establish a claim
(presumably either of his claims), because he cannot show that any of the Defendants personally
participated in the constitutional deprivation. An essential element of a § 1983 claim is that each
named defendant personally participated in acts that give rise to the claim. Henry v. Storey, 658
F.3d 1235, 1241 (10th Cir. 2011).
The Court rejects that argument for several reasons. First, and perhaps most simply, it is
undisputed that both Mr. Schwartz and Mr. Rosa were directly involved in the confiscation of
Mr. Dalrymple’s books. The first confiscation (that of the copies of the books) was effectuated
by Mr. Schwartz himself; the second confiscation (that of Mr. Dalrymple’s original books) was
effectuated by Mr. Schwartz upon the direct instruction of Mr. Rosa. The Defendants argue that
they executed the confiscation at the instruction of some other entity, but that argument is
directed at a different element – culpable state of mind – rather than personal participation. See
generally Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (§1983 claim requires
personal participation, a causal connection, and a culpable state of mind). For purposes of the

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personal participation element, all that is necessary is that the defendant played a role in the
deprivation, and there is no dispute that Mr. Schwartz and Mr. Rosa did here.
Second, although the Defendants argue that Mr. Schwartz and Mr. Rosa were simply
carrying out instructions given by someone else to confiscate Mr. Dalrymple’s books, the record,
taken in the light most favorable to Mr. Dalrymple, calls that factual assertion into question. The
Defendants have offered two different explanations as to where that directive came from: the
Reading Committee at KCCC, or from IDOC itself. Neither contention is particularly wellsupported – the Defendants have not, for example, offered an affidavit from a Reading
Committee member who participated in the decision to declare Mr. Dalrymple’s books
contraband, nor have they adduced contemporaneous records from IDOC directing KCCC to
confiscate the books. Rather, the Defendants rely solely on Mr. Rosa’s affidavit, which is fairly
oblique in its identification of the decision-making party.7 Indeed, consistent with Mr. Miller’s
affidavit and as intimated in Mr. Rosa’s, there is even a third possible decisionmaker: that Mr.
Rosa, as the Assistant Warden at KCCC, had the final say as to whether to accept or reject the
Reading Committee’s determination that the books should be confiscated.8
The Defendants’ pointing to IDOC as the final decisionmaker on the question of
confiscation is further undercut by Mr. Dalrymple’s contention – which the Court accepts as true
for purposes of this motion – that IDOC currently allows him to possess the very books in
7

It also fails to distinguish between the two confiscation events. It is not clear whether the
Reading Committee or IDOC ostensibly directed both confiscations, or whether the first
confiscation might have been precipitated by Mr. Schwartz of his own accord.
8

Even this issue is left unclear by Mr. Rosa’s affidavit. On the one hand, he states that,
because Mr. Dalrymple was in the custody of IDOC, “the committee is bound by [a]
determination [by IDOC that the property should be confiscated] and has no discretion regarding
that property.” (Emphasis added.) On the other hand, Mr. Rosa states that he “reviewed the
committee’s decision to confiscate Mr. Dalrymple’s hypnosis books,” an act that would seem to
be unnecessary if Mr. Rosa himself lacked the authority to overrule it.
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question. If IDOC permits Mr. Dalrymple to have the books, it is extremely unlikely that IDOC
would have instructed KCCC to confiscate the same books, making it more likely that the actual
decision rested with the Reading Committee or Mr. Rosa. The Court need not attempt to resolve
the matter at this time; it is sufficient to observe that the evidence regarding who decided to
direct the confiscation of Mr. Dalrymple’s books is sufficiently unclear that a trial is necessary.
Accordingly, the Court denies Mr. Rosa and Mr. Schwartz’s motion for summary judgment on
this ground.
The situation is different with Defendant Taylor. Mr. Taylor does not appear in Mr.
Dalrymple’s narrative until after the confiscations occurred, and Mr. Dalrymple “contacted [Mr.
Taylor] by concern form and met with [him] about the return of my publications.” Thus, Mr.
Dalrymple does not allege that Mr. Taylor was involved in the confiscations themselves, but
rather, that he failed to intercede after the fact to remedy the confiscations. The 10th Circuit has
repeatedly held that a prison official’s denial of an inmate’s grievance, without having been
involved in the constitutional deprivation that led to the grievance, does not suffice as personal
participation. Duncan v. Hickenlooper, 631 Fed.Appx. 644, 651 (10th Cir. 2015), citing Stewart
v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012). Accordingly, the Court finds that Mr.
Dalrymple has failed to adequately allege Mr. Taylor’s personal participation in any deprivation,
warranting summary judgment in Mr. Taylor’s favor.
B. State of mind
The Defendants’ second argument is somewhat unclear. They seem to argue that Mr.
Rosa and Mr. Schwartz lacked the required state of mind to commit a constitutional deprivation,
namely, deliberate indifference to Mr. Dalrymple’s First Amendment rights. See e.g. Dodds, 614

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F.3d at 1204. They also argue that, for purposes of his access to the courts claim, Mr. Dalrymple
has not alleged that the confiscation of his books actually prejudiced his ability to file his motion.
The discussion above sufficiently disposes of the first point. Because it remains unclear
precisely who directed the confiscation of Mr. Dalrymple’s books on either occasion, there is a
genuine dispute of fact as to whether Mr. Rosa or Mr. Schwartz possessed the requisite state of
mind when participating in that confiscation. If the Defendants can ultimately demonstrate that
IDOC directed the confiscations, and if the Defendants can show that they lacked any ability to
contravene that instruction, they might arguably prevail by challenging Mr. Dalrymple’s ability
to show their culpable state of mind. On the other hand, if Mr. Dalrymple is able to show that
neither IDOC nor a Reading Committee controlled the decision, and that Mr. Schwartz and Mr.
Rosa decided, on their own, to confiscate the books, Mr. Dalrymple is likely to succeed. This
issue will have to be resolved by trial.
As to the second point, on his claim sounding in denial of access to the courts, Mr.
Dalrymple must show that the confiscation of his books “hindered him in petitioning for postconviction relief.” Davis v. Arkansas Valley Correctional Facility, 99 Fed.Appx. 838, 843 (10th
Cir. 2004), citing Lewis v. Casey, 518 U.S. 343, 346 (1996). Notably, however, the Defendants
do not come forward with evidence to suggest that Mr. Dalrymple has not been hindered in his
Idaho post-conviction proceedings -- e.g. by demonstrating that Mr. Dalrymple filed his intended
motion despite the confiscation of the books, or that the Idaho court dismissed his claims as
frivolous. Fed. R. Civ. P. 56(c)(1) places the initial burden on the summary judgment movant to
show, via citation to evidence, that the non-movant cannot establish a particular fact; it is not
sufficient for a movant to nakedly declare that the non-movant cannot prove an element, then sit
back and await a response. Because the Defendants have not satisfied their initial Rule 56(c)(1)

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burden to show that Mr. Dalrymple cannot establish that the confiscation hindered his postconviction proceedings, summary judgment on this ground is denied.
In any event, the Court takes the facts in the light most favorable to Mr. Dalrymple. He
has stated that issues relating to hypnotism are pertinent to the post-conviction motions he
intends to file, and in the absence of contrary evidence, the Court treats those assertions as true.
He has stated that he intended to submit the confiscated books as evidence in support of his postconviction motion, and was prevented from doing so due to the confiscation of the books, and
the Court treats that assertion as true as well. As between Mr. Dalrymple’s facts, on the one
hand, and the absence of any evidence by the Defendants on the other, the Court is satisfied that
Mr. Dalrymple has demonstrated a triable issue of fact as to whether his ability to pursue his
post-conviction motion was hindered by the Defendants’ confiscation of his intended exhibits.
C. Qualified immunity
Finally, the Court turns to the Defendants’ arguments that they are entitled to qualified
immunity. Specifically, the Defendants contend that Mr. Dalrymple cannot show that the
contours of the right he asserts – his First Amendment right to possess certain reading material
and to access the courts – are “clearly established” in the circumstances presented herein. To
defeat a invocation of qualified immunity’s “clearly established” prong, Mr. Dalrymple must
demonstrate that the Supreme Court, 10th Circuit, or weight of authority from other circuits, has
recognized the existence of the claimed constitutional right in the particular circumstances
presented here. Knopf v. Williams, 884F.3d 939 (10th Cir. 2018). However, even at this stage,
the Court construes the facts underlying Mr. Dalrymple’s claim in the light most favorable to
him. Dahn v. Amedei, 867 F.3d 1178, 1184 (10th Cir. 2017).

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Because, as discussed above, there is a genuine dispute of fact as to who made the
ultimate decision to confiscate Mr. Dalrymple’s books, the Court takes the possible facts in the
light most favorable to Mr. Dalrymple. For the reasons set forth above, it is fair to conclude that
the decision for the first confiscation was made by Mr. Schwartz – Mr. Dalrymple’s version of
the events does not identify another actor involved and the Defendants’ evidence does not
unambiguously point to a different decisionmaker for this confiscation – and the decision for the
second confiscation was made by Mr. Rosa (with the Reading Commitee or IDOC supplying
only recommendations). Thus, the question for the qualified immunity analysis is whether courts
have recognized First Amendment claims where an inmate alleges that a staff member or
Assistant Warden decided to confiscate, without cause, an item of property intended to be used
as evidence in support of the inmate’s post-conviction proceedings. They have. Williams v.
Hansen, 837 F.3d 809, 810 (7th Cir. 2016) (confiscation without cause of a death certificate
inmate needed for post-conviction motion); Tyler v. Woodson, 597 F.2d 643 (8th Cir. 1979)
(confiscation without cause of legal papers that impaired inmate’s ability to defend himself in
criminal proceedings stated claim); see also Sigafus v. Brown, 416 F.2d 105, 107 (7th Cir. 1969)
(confiscation of legal papers that inmate intended to use for hearing violated Due Process
clause). Thus, the Court finds that the Defendants are not entitled to qualified immunity.
V. CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Summary Judgment (# 71) is
GRANTED IN PART and DENIED IN PART. Summary judgment is granted to Mr. Taylor
on all claims, and shall enter at the conclusion of proceedings. The Court denies Mr. Rosa and
Mr. Schwartz’s motions for summary judgment, and the claims against them shall proceed to
trial. Mr. Dalrymple’s Motion for Summary Judgment (# 89) is DENIED as untimely.

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Because Mr. Dalrymple’s claims will be proceeding to trial, and because of his
incarceration out of state, the Court finds it appropriate to recommend the appointment of pro
bono counsel to assist him. The Clerk of the Court shall attempt to locate an attorney willing to
represent Mr. Dalrymple pro bono. Mr. Dalrymple is advised that, unless and until counsel
enters an appearance on his behalf, he remains obligated to pursue this litigation in his pro se
capacity. Within 14 days of entry of appearance by counsel for Mr. Dalrymple, or within 30
days of the date of this Order in any event, the parties shall jointly contact chambers to set a
Pretrial Conference and shall begin preparation of a Proposed Pretrial Order in conformance with
Docket # 30.
Dated this 28th day of March, 2018.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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