Janny v. Palmer et al

Filing 158

ORDER by Magistrate Judge Kristen L. Mix on 5/29/20 GRANTING in part and DENYING in part 144 Defendants' Motion for Summary Judgment.(nmarb, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02194-KLM
MARK JANNY,
Plaintiff,
v.
TIM PALMER, Captain, Larimer County Jail, in his individual capacity,
MR. RAMIREZ, Lieutenant, Larimer County Jail, in his individual capacity,
JOSH BELINDER, Lieutenant, Larimer County Jail, in his individual capacity,
MR. BERGLUND, Sergeant, Larimer County Jail, in his individual capacity,
MS. PALORANTA, Sergeant, Larimer County Jail, in her individual capacity,
MR. HARTEKER, Sergeant, Larimer County Jail, in his individual capacity,
MR. SMOYER, Sergeant, Larimer County Jail, in his individual capacity,
MR. SAULTS, Sergeant, Larimer County Jail, in his individual capacity,
MR. LALICKER, Sergeant, Larimer County Jail, in his individual capacity,
MR. PERANTEAUX, Sergeant, Larimer County Jail, in his individual capacity,
MR. MEEKS, Corporal, Larimer County Jail, in his individual capacity,
MR. BURCH, Corporal, Larimer County Jail, in his individual capacity,
MS. WULFERT, Corporal, Larimer County Jail, in his individual capacity,
MR. VILLARREAL, Corporal, Larimer County Jail, in his individual capacity,
MS. MAHONEY, Corporal, Larimer County Jail, in her individual capacity,
MR. BROWN, Corporal (logistics), Larimer County Jail, in his individual capacity,
MS. GEE, Deputy, Larimer County Jail, in her individual capacity,
JUSTIN SMITH, Larimer County Sheriff, in his individual and official capacity,
ATTORNEY DOE, Larimer County Attorney Office, in their individual capacity,
THE MUNICIPALITY OF LARIMER COUNTY,
LARIMER COUNTY DEPUTIES 1-100, in their individual capacities, and
JAIL SUPERVISORS 1-20, in their individual capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Summary Judgment

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[#144]1 (the “Motion”).2 Plaintiff, who is proceeding pro se,3 filed a Response [#152] to the
Motion, and Defendants filed a Reply [#155]. The Court has reviewed the briefs, the entire
case file, and the applicable law, and is sufficiently advised in the premises. For the
reasons set forth below, the Motion [#144] is GRANTED in part and DENIED in part.
I. Summary of the Case4
The majority of evidence underlying Plaintiff’s ten remaining claims is discussed in
connection with each claim in the Analysis below, and the Court here only addresses a few
general points underlying the case. Plaintiff is an inmate currently incarcerated by the
Colorado Department of Corrections (“CDOC”) at Colorado State Penitentiary (“CSP”).
However, at all times relevant to this lawsuit, he was held at the Larimer County Jail
(“LCJ”), first as a pretrial detainee starting on February 8, 2016, and then as a convicted

1

“[#144]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The parties have consented to proceed before the undersigned for all proceedings
pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 40.1(c). See Order [#133].
3

The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
4

The Court construes the evidence in a light most favorable to Plaintiff as the nonmovant
here. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1186 (10th Cir. 2015) (“We . . . recit[e] all
summary-judgment evidence in the light most favorable to . . . the nonmovant.”). To the extent facts
are explicitly undisputed by the parties, the Court cites to the briefs. The Court also notes here that,
pursuant to 28 U.S.C. § 1746, Plaintiff swore to his Amended Complaint [#46] under penalty of
perjury, and therefore this document may be treated as an affidavit and used as evidence on a
motion for summary judgment. Green v. Branson, 108 F.3d 1296, 1301 n.1 (10th Cir. 1997);
Pacheco v. Timme, No. 11-cv-02530-RM-KLM, 2014 WL 2442111, at *4 n.2 (D. Colo. May 30,
2014).

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prisoner starting on July 27, 2017, through the time of his transfer to another facility on
September 20, 2017.
Plaintiff was arrested and briefly detained at the LCJ in early October 2015 for a
parole violation. Motion [#144] at 8; Response [#152] at 3. Plaintiff was again arrested and
booked into the LCJ on February 8, 2016, on two outstanding felony warrants for
aggravated robbery. Motion [#144] at 7-8; Response [#152] at 3. Plaintiff was convicted
by a jury on July 27, 2017, sentenced on September 18, 2017, and transferred to a CDOC
facility on September 20, 2017. Motion [#144] at 7-8; Response [#152] at 3; see also Defs.’
Ex. A [#144-1]. Plaintiff submitted roughly 200-300 grievances and appeals during his stay
at the LCJ between February 8, 2016, and September 20, 2017. Motion [#144] at 12;
Response [#152] at 7.
Ten claims remain in this lawsuit.5 However, the precise legal basis for each of
these claims is often unclear and/or asserted under a variety of constitutional amendments,
including the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, and/or state laws.
Further, it is often unclear against which of the many named Defendants a given aspect of
a claim is asserted. This issue is compounded by the fact, as further discussed below, that
Plaintiff appears to have abandoned certain aspects of certain claims without explicitly
saying so. Regardless, the Court has done its utmost to determine which aspects of
Plaintiff’s Amended Complaint [#46] remain at issue at this stage of the lawsuit based on
a liberal reading of Plaintiff’s Response [#152, #152-1] in conjunction with Defendants’
understanding of the remaining claims and the Court’s own reading of the Amended

5

Claims Five and Seven were dismissed on October 11, 2019. See Minute Order [#151].

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Complaint [#46].
As relief, Plaintiff seeks nominal, compensatory, and punitive damages as well as
declaratory relief and various injunctions against the Municipality of Larimer County (or,
alternatively, Defendant Justin Smith in his official capacity as Larimer County Sheriff) to
direct the LCJ to take, or refrain from taking, various actions. Am. Compl. [#46] at 111-13.
In the present Motion [#144], Defendants seek dismissal and/or summary judgment in their
favor on all claims.
II. Standard of Review
A.

Fed. R. Civ. P. 12(b)(1)
Subject matter jurisdiction may be challenged by a party or raised sua sponte by

the court at any point in the proceeding. See, e.g., Am. Fire & Cas. Co. v. Finn, 341 U.S.
6, 16-19, (1951); Harris v. Illinois–California Express, Inc., 687 F.2d 1361, 1366 (10th Cir.
1982); Fed. R. Civ. P. 12(h)(3). Rule 12(b)(1) concerns whether the Court has jurisdiction
to properly hear the case before it. Dismissal of a federal claim for lack of subject-matter
jurisdiction “is proper only when the claim is ‘so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid of merit as not to involve a
federal controversy.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Because
“federal courts are courts of limited jurisdiction,” the Court must have a statutory basis to
exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed.
R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to
be strictly construed. F. & S. Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964).
“The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.”
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Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
B.

Fed. R. Civ. P. 56
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to

assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
An issue is genuine if the evidence is such that a reasonable jury could resolve the issue
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986).
A fact is material if it might affect the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex,
477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at
trial, the “movant may make its prima facie demonstration [of the absence of a genuine
issue of material fact] simply by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant
carries the initial burden of making a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for each essential element of his
claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248;
Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his
pleadings and provide admissible evidence, which the Court views in the light most
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favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).
Conclusory statements based merely on conjecture, speculation, or subjective belief are
not competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).

The nonmoving party’s evidence must be more than “mere

reargument of [his] case or a denial of an opponent’s allegation” or it will be disregarded.
See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).
When ruling on a motion for summary judgment, a court may consider only
admissible evidence. See Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1209-10 (10th Cir.
2010). The factual record and reasonable inferences therefrom are viewed in the light most
favorable to the party opposing summary judgment. Concrete Works, Inc., v. City & Cty.
of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). At the summary judgment stage of
litigation, a plaintiff’s version of the facts must find support in the record. Thomson v. Salt
Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584
F.3d at 1312.
Only documents that meet the evidentiary requirements of Fed. R. Civ. P. 56 may
be considered for purposes of summary judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
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motion only), admissions, interrogatory answers, or other materials[.]
...
(3) Materials Not Cited. The court need consider only the cited materials, but
it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(1)-(4).
III. Analysis
A.

Fed. R. Civ. P. 12(b)(1): Subject Matter Jurisdiction
1.

Declaratory Relief

The Court must sua sponte consider the question of subject matter jurisdiction when
it comes to the Court’s attention that the Court may lack jurisdiction over a matter.
McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988); Smith v. Krieger,
643 F. Supp. 2d 1274, 1293 n.6 (D. Colo. 2009). Accordingly, the Court first considers
whether it has subject matter jurisdiction over Plaintiff’s request for declaratory relief. See
Herrara v. Alliant Specialty Ins. Servs., Inc., No. 11-00050-REB-CBS, 2012 WL 959405,
at *3 (D. Colo. Mar. 21, 2012) (stating that issues of subject matter jurisdiction “must be
resolved before the court may address other issues presented in the motion”).
The Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, “validly confer[s]
jurisdiction on federal courts to issue declaratory judgments in appropriate cases.”
Calderon v. Ashmus, 523 U.S. 740, 745 (1998). The DJA explicitly incorporates the case
or controversy requirement of the Constitution by stating: “In a case of actual controversy
within its jurisdiction, . . . any court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such declaration.” 28 U.S.C. §
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2201(a). The Court therefore considers the issue of jurisdiction pursuant to Rule 12(b)(1)
with respect to Plaintiff’s request for declaratory judgment. See, e.g., Van Deelen v.
Fairchild, No. 05-2017, 2005 WL 3263885, at *7 (D. Kan. Dec. 1, 2005).
“Where a plaintiff seeks both an injunction and declaratory relief, the district court
has a duty to decide the appropriateness and the merits of the declaratory request
irrespective of its conclusion as to the propriety of the issuance of an injunction.” Jordan
v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (internal quotations omitted) (quoting Super
Tire Eng’g Co. v. McCorckle, 416 U.S. 115, 121 (1974)). “It is well established that what
makes a declaratory judgment action a proper judicial resolution of a case or controversy
rather than an advisory opinion is the settling of some dispute which affects the behavior
of the defendant toward the plaintiff.” Id. (citations omitted). In other words, “where a
plaintiff seeks a declaratory judgment against his opponent, he must assert a claim for relief
that, if granted, would affect the behavior of the particular parties listed in his complaint.”
Id.
To establish that a case or controversy exists, Plaintiff must demonstrate that the
controversy is: (1) definite, concrete, and touches on the legal relations of the parties, and
(2) sufficiently immediate and real. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41
(1937); Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). In short, “[t]he
ultimate question is whether declaratory relief will have some effect in the real world.” Van
Deelen, 2005 WL 3263885, at *7 (citing Citizens for Responsible Gov’t State Political Action
Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)). The mere fact that Plaintiff’s
requested relief would give Plaintiff the satisfaction that he was wronged in the past does
not create an actual, live controversy. Id. (citing Bauchman v. West High Sch., 132 F.3d
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542, 548-49 (10th Cir. 1997) (holding that the case or controversy requirement was not met
because the plaintiff’s requested declaratory relief was moot)). Further, “[e]ven if subject
matter jurisdiction exists, the Court has unique and substantial discretion to determine the
propriety of declaratory judgment[.]” Id. (citing Exec. Risk Indem. Inc. v. Sprint Corp., 282
F. Supp. 2d 1196, 1202 (D. Kan. 2003)).
Plaintiff seeks a declaratory judgment holding that “the acts and omissions described
herein violated [Plaintiff’s] rights under the constitution and laws of the United States.” Am.
Compl. [#46] at 111. Thus, Plaintiff seeks a declaration that his constitutional rights were
violated by Defendants. If the Court were to grant his request, the declaratory judgment
would not “affect[ ] the behavior of [D]efendant[s] toward [P]laintiff,” because Defendants
would not be required to take any action. See Rhodes v. Stewart, 488 U.S. 1, 4 (1988).
In other words, Plaintiff is seeking a retrospective opinion that Defendants wrongly harmed
him, which is an impermissible use of a declaratory judgment. See Ashcroft v. Mattis, 431
U.S. 171, 172 (1977) (holding that a claim for declaratory relief was moot where the
“primary claim of a present interest in the controversy is that [the plaintiff] will obtain
emotional satisfaction from [the] ruling”); Green v. Branson, 108 F.3d 1296, 1299 (10th Cir.
1997) (“This ‘legal interest’ must be more than simply the satisfaction of a declaration that
a person was wronged.”). Thus, the Court finds that there is no case or controversy with
regard to Plaintiff’s requested declaratory relief regarding past alleged wrongs.
Accordingly, Plaintiff’s request for declaratory relief is dismissed without prejudice
for lack of subject matter jurisdiction. See Brereton v. Bountiful City Corp., 434 F.3d 1213,
1216-17 (10th Cir. 2006) (recognizing established rule that “where the district court
dismisses for lack of jurisdiction . . . , the dismissal must be without prejudice” because a
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court without jurisdiction lacks power “to make any determination of the merits of the
underlying claim”).
2.

Injunctive Relief

Plaintiff seeks extensive injunctive relief in connection with LCJ’s practices and
policies. Am. Compl. [#46] at 111-13. Specifically, he asks for “[a] preliminary and
permanent injunction ordering the municipality of Larimer County to order the Larimer
County Jail” and/or its employees:
(1) to allow inmates the minimum procedural due process . . . when being
placed on administrative segregation or red tag status. Also to replace the
ad seg behavioral mark level up system with one that will not allow deputies
to arbitrarily and subjectively stop inmates from progressing on ad seg.
Something as easy as to not be found guilty of any disciplinary write ups in
a week to level up. Also change the policy of not allowing inmates on ad seg
to progress if they have demanded a due process hearing for ad seg or
punitive seg. The hearings before were held during the same shift as the
alleged behavior violation. Also before every red tag review confront an
inmate with any report that may be used against them and give them a
chance to make a statement on their behalf;
(2) to allow inmates with [Alternative Defense Counsel (“ADC”)] lawyers to
call their attorneys for free like an inmate with a public defender can. The
ADC lawyers are registered with the court as are their work phone numbers;
(3) [to] overhaul the legal resource policies to ensure effectiveness,
adequacy, and availability to fulfill the requirements of Bounds v. Smith, 430
U.S. 817 (1977). Specifically the jail needs . . . more legal kiosks or
computers to access LEXIS (the current system they employ) and “pro se
computer” in every housing area . . . . The jail needs to “hire” inmate clerks
to assist inmates who are ignorant or illiterate but would like to access the
courts. The jail needs to allow inmates to create and print legal documents
and to make legal copies despite whether an inmate is indigent or not. The
jail must adjust the price of copies from 50 cents a page to 15 cents a page.
The jail must provide a way to save documents they are creating
electronically. The jail must allow inmates to assist each other when
accessing the courts;
(4) to allow inmates to assist each other in preparing legal work including
having legal papers of another inmates [sic] in an inmates [sic] cell;
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(5) to not use K-9 units in cell extractions or to physical[ly] hurt or threaten
inmates in any way. The only reason K-9 units may only be used in the jail
is to utilize the K-9 units [sic] sense of smell to search for contraband (drugs,
electronic devices, explosives, etc.);
(6) to never enact a punishment or behavior plan that violates an inmates
[sic] constitutional rights;
(7) to train, educate and test all of its employees in regard to inmate
constitutional civil rights;
(8) [to] allow inmates to wear socks or be barefoot while exercising in the
outdoor rec area or provide safe footwear to run in;
(9) to stop retaliation in any form including special “facility need” housing
assignments for accessing the courts, utilizing the grievance system, and
assisting other inmates [to] do the same;
(10) to allow inmates the minimum procedural due process . . . for
disciplinary violations that can be punished with lockdown or can affect an
inmates [sic] inmate worker status and thus good time (all disciplinary
violations); and
(11) to not put [Plaintiff] on red tag, ad seg or any other punitive status if and
when [he] return[s] to the jail upon any future appellate decision based on
events covered in this lawsuit. This injunction would not cover actions in my
future that would place me on red tag or ad seg.
Id.
Mootness is an issue of subject matter jurisdiction, which can be raised at any stage
of the proceedings. Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001). “Article
III’s requirement that federal courts adjudicate only cases and controversies necessitates
that courts decline to exercise jurisdiction where the award of any requested relief would
be moot—i.e. where the controversy is no longer live and ongoing.” Front Range Equine
Rescue v. Vilsack, 782 F.3d 565, 568 (10th Cir. 2015) (internal quotation marks omitted).
“A case is moot . . . where the relief sought can no longer be given or is no longer needed.”
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Id. (internal quotation marks omitted).
Plaintiff’s requests for injunctive relief are moot because Plaintiff has moved from
LCJ to a different facility, i.e., CSP, a state prison operated by CDOC. See Notices [#11,
#43, #104]. “When a prisoner files suit against prison officials who work in the institution
in which he is incarcerated, seeking declaratory and injunctive relief on the basis of alleged
wrongful conduct by those officials, and then that prisoner is subsequently transferred to
another prison or released from the prison system, courts are presented with a question
of possible mootness.” Jordan, 654 F.3d at 1027. When a prisoner’s claims relate solely
to the conditions of confinement at the penal institution at which the prisoner was previously
incarcerated, courts are unable to provide the prisoner with effective relief, because the
transfer or release indicates the end of the alleged deprivation. Id. Here, Plaintiff only
requests injunctive relief from his original place of incarceration, and there is no indication
that the conditions at his current penal institution are depriving him of the rights for which
he seeks injunctive relief in his Amended Complaint [#46].
In addition, the Court notes that LCJ, the facility at issue in this lawsuit, is not a
facility operated by CDOC, which operates Plaintiff’s current facility, CSP. Courts are
disinclined to declare a prisoner’s injunctive claims moot if the lawsuit challenges policies
in place throughout a prison system, even when a prisoner is transferred to another prison
in that system. Jordan, 654 F.3d at 1028. Here, however, LCJ is not a prison within the
CDOC system, and therefore, the policies have not followed Plaintiff to CSP.
Having found that Plaintiff's request for injunctive relief is moot, the Court next
examines whether any exception to the mootness doctrine applies. Plaintiff responds to
Defendants’ mootness argument by asserting that he could be transferred back to LCJ at
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any time if his various appeals and other lawsuits are resolved in his favor. Response
[#152-1] at 22-24. Thus, he places the second exception to the mootness doctrine at issue,
i.e., that the wrongs he has alleged are capable of repetition yet evading review. Plaintiff
bears the burden of establishing the applicability of this exception. Jordan, 654 F.3d at
1035. As discussed below, the Court finds that Plaintiff does not present a reasonable
likelihood that he will be returned to LCJ.
The “capable of repetition yet evading review” exception to the mootness doctrine
turns on whether Plaintiff has established a demonstrated probability that he will be
reassigned to LCJ in the future, and thereby will again be subjected to the restrictions at
issue in this case. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (“The
equitable remedy is unavailable absent a showing of irreparable injury, a requirement that
cannot be met where there is no showing of any real or immediate threat that the plaintiff
will be wronged again . . . .”); Underwood v. United States, 255 F. App’x 337, 338 (10th Cir.
2007) (“[P]laintiff must do more than speculate about future possibilities. [Plaintiff] must
show a ‘reasonable expectation’ or a ‘demonstrated probability’ that this same controversy
. . . will recur.” (internal quotations and citation omitted)).
Here, Plaintiff contends that he may be reassigned to LCJ if he is successful in his
various pending lawsuits and appeals. Response [#152-1] at 22-24. However, the Court
concludes that Plaintiff has not demonstrated with any specificity or immediacy that he will
be returned to LCJ. Like the Tenth Circuit’s determination in Jordan v. Sosa, Plaintiff
“offers [the Court] nothing to validate the reasonableness of his expectancy of changed
conditions of penal confinement.”

654 F.3d at 1036. Issuing a decision as to the

restrictions imposed at LCJ, especially regarding this Plaintiff who is no longer held at LCJ
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and based on a mere possibility that he will both be successful in his lawsuit(s) and
returned to LCJ, would constitute rendering an impermissible advisory opinion. See
Deberry v. Davis, 460 F. App’x 796, 799 (10th Cir. 2012). In other words, Plaintiff has not
established a demonstrable probability that he will be reassigned to LCJ at some point in
the future. See id. Therefore, the Court finds that the exception to the mootness doctrine
for situations that are capable of repetition yet evade review is inapplicable to the instant
case. See McKinnon v. Talladega County, Ala., 745 F.2d 1360, 1363 (11th Cir. 1984)
(holding that a prisoner’s transfer to a different jail moots his claim for declaratory and
injunctive relief even when prisoner argues that “there is no assurance that he will not be
returned to the [first] jail”).
The Court’s conclusion is consistent with Jordan, where the Tenth Circuit evaluated
an incarcerated plaintiff’s challenge to “the constitutionality of a statutory and regulatory ban
on the use of federal funds to distribute to federal prisoners commercially published
materials that are sexually explicit or feature nudity.” 654 F.3d at 1015. After resolution
of the matter by the district court, the plaintiff was transferred from a more restrictive federal
facility to other federal Bureau of Prisons facilities. Id. at 1018. Thus, on appeal, the Tenth
Circuit was compelled to address whether any part of the case was mooted by the plaintiff’s
transfer from solitary confinement at the more restrictive facility to a “Special Management
Unit” at a facility outside of the court’s jurisdiction. Id. at 1018, 1021-22. The Tenth Circuit
ultimately held that the plaintiff’s case was constitutionally moot and that the claim was not
capable of repetition yet evading review. See id. at 1036-37.
The Tenth Circuit opined that, “[w]here a plaintiff requests equitable relief, a mere
showing that he maintains a personal stake in the outcome of the controversy is insufficient
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. . . . Where a plaintiff seeks an injunction, his susceptibility to continuing injury is of
particular importance—past exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Id. at 1024 (internal quotations and citations omitted). In the
specific context of prison transfers, the Tenth Circuit stated: “Where the prisoner’s claims
for declaratory or injunctive relief relate solely to the conditions of confinement at the penal
institution at which the prisoner is no longer incarcerated, courts have concluded that they
are unable to provide the prisoner with effective relief.” Id. at 1027. In the absence of an
applicable exception to the mootness doctrine, transfer indicates “the end of the alleged
deprivation of [the prisoner’s] constitutional rights.” See id.; see also id. at 1028-29
(recognizing that prisoners will often sue the director of the prison system or the system
itself in order to invoke exceptions to the mootness doctrine).
In light of this legal precedent, the capable of repetition yet evading review exception
to the mootness doctrine does not apply here, and the Court therefore lacks subject matter
jurisdiction over Plaintiff’s claims to the extent he seeks injunctive relief. Thus, if the Court
issued an order granting the relief requested, the order would be an impermissible advisory
opinion regarding conditions of confinement at LCJ and would have no “effect in the real
world” for Plaintiff. See id. at 1029. “[A]s a federal court, [the Court is] not in the business
of rendering such feckless judgments.” Deberry, 460 F. App’x at 799.
In short, Plaintiff’s claims for injunctive relief regarding practices and policies at LCJ
are moot due to Plaintiff's transfer from LCJ to an independent CDOC facility); thus, the
mootness doctrine precludes any injunctive relief that could be imposed against
Defendants. See Jordan, 654 F.3d at 1026 (stating that, if the plaintiff has not named as
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defendants “individuals or entities that are actually situated to have their future conduct
toward the plaintiff altered by the court’s declaration of rights . . . , courts are likely to
determine that they cannot accord the plaintiff effective declaratory relief and that the action
is moot”).
Accordingly, Plaintiff's claims are dismissed without prejudice as moot to the
extent they seek injunctive relief.6 See Lewis v. Burger King, 398 F. App’x 323, 325 n.3
(10th Cir. 2010) (stating that dismissal due to mootness must be without prejudice).
3.

Colorado Governmental Immunity Act

Plaintiff vaguely mentions state tort claims in connection with many of his
constitutional claims, but he generally does not specify what those state tort claims are.
See Am. Compl. [#46] at 13, 19, 23, 28, 62, 65, 69 100; but see id. at 62 (mentioning
“negligence” in connection with his deliberate indifference claim regarding playing handball
in sandals), 96 (mentioning “false imprisonment” in connection with his procedural due
process claim regarding punitive segregation). Although Defendants raise this issue in the
Motion, Plaintiff’s Response does not clarify what tort claims, if any, he is asserting. Motion
[#144] at 46-48; Response [#152-1] at 24.
However, Defendants contend that any state law tort claim, regardless of its nature,
must fail because Plaintiff has failed to comply with the notice provisions of the Colorado
Governmental Immunity Act (“CGIA”).

Motion [#144] at 47-48.

Because a public

employee’s immunity under the CGIA implicates subject matter jurisdiction, the defense

6

The Court notes that this ruling necessarily also results in the dismissal of Defendant
Smith in his official capacity, against whom Plaintiff seeks only injunctive, and potentially
declaratory, relief. See Response [#152] at 24-26.

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cannot be waived and may be raised at any point in the litigation. Glasser v. King, 721 F.
App’x 766, 770 (10th Cir. 2018); King v. United States, 301 F.3d 1270, 1273 (10th Cir.
2002).
Under the CGIA, public employees are generally immune from liability from tort
claims which arise from acts or omissions made within the scope of their employment and
occurring in the performance of their duties. Colo. Rev. Stat. § 24–10–118(2)(a). The
CGIA provides two exceptions to this immunity, though: (1) where the act or omission is
willful and wanton, or (2) where the injury “result[s] from the circumstances specified in
[Colo. Rev. Stat. §] 24–10–106(1).” Colo. Rev. Stat. § 24–10–118(2)(a).
A plaintiff must comply with the mandatory notice requirements of the CGIA:
Any person claiming to have suffered an injury by a public entity or by an
employee thereof while in the course of such employment, whether or not by
a willful and wanton act or omission, shall file a written notice as provided in
this section within one hundred eighty-two days after the date of the
discovery of the injury, regardless of whether the person then knew all of the
elements of a claim or of a cause of action for such injury. Compliance with
the provisions of this section shall be a jurisdictional prerequisite to any
action brought under the provisions of this article, and failure of compliance
shall forever bar any such action.
Colo. Rev. Stat. § 24–10–109(1). The notice must be filed with the attorney general when
the claim is against the state or state employees. Colo. Rev. Stat. § 24–10–109(3)(a).
Plaintiff sent a “Notice of Claims” [#144-9] to the Larimer County Attorney’s Office
that was received on November 1, 2017. However, Plaintiff “admits that his CGIA notice
is futile” and therefore that there is a “jurisdictional defect” as to his state law claims.
Response [#152-1] at 24. Thus, the parties are in agreement on this point. See Reply
[#155] at 30.
However, Plaintiff asserts that his failure to comply with the CGIA is attributable to
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Defendants (“the discs that were rendered inoperable, the lack of legal access, the
confiscated flash drive”). Response [#152-1] at 24. He states that from “May 2016 to
December 2016 and beyond,” his asserted lack of adequate access to legal materials
meant that he was “ignorant” of the CGIA’s requirements. Am. Compl. [#46] at 31; see also
id. at 41 (“I was ignorant of [the CGIA] because of the inadequacy and inaccessibility of the
law library . . . .”). He also states that he did not know how to file a notice under the CGIA
until he was transferred to CDOC in late 2017 and therefore that his claims were
“frustrated/impeded” while he was at LCJ. Id. at 42.
Plaintiff’s argument fails. “Unlike under ordinary statutes of limitations, a plaintiff
cannot invoke equitable defenses such as waiver, tolling, or estoppel to overcome” the
CGIA’s notice provision. Schreiner v. City of Louisville, No. 15-cv-00287-REB-CBS, 2015
WL 9437882, at *8 (D. Colo. Dec. 4, 2015), report and recommendation adopted, No. 15cv-00287-REB-CBS, 2015 WL 9315736 (D. Colo. Dec. 23, 2015) (citing City & Cty. of
Denver v. Crandall, 161 P.3d 627, 633 (Colo. 2007) (en banc)). “The CGIA notice of claim
provision is both a condition precedent and a jurisdictional prerequisite to suit under the
CGIA, must be strictly applied, and failure to comply with it is an absolute bar to suit.”
Crandall, 161 P.3d at 634. “If a claimant fails to comply, a court must dismiss the matter
for lack of subject matter jurisdiction.” Crandall, 161 P.3d at 633. Thus, Plaintiff’s
arguments regarding actions by Defendants “impeding” or “frustrating” his ability to file
under the CGIA are unable to salvage his state tort claims.
Therefore, to the extent Plaintiff raises state law tort claims against Defendants, they
are dismissed without prejudice. See Garman v. Campbell Cty. Sch. Dist. No. 1, 630
F.3d 977, 985 (10th Cir. 2010) (holding that “a dismissal for lack of subject matter
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jurisdiction is without prejudice”).
B.

Fed. R. Civ. P. 41(a)(1)(A)(ii): Voluntary Dismissal
Before reaching the merits of Plaintiff’s remaining claims, the Court notes that

Plaintiff does not contest dismissal of the following Defendants: (1) Larimer County; (2)
Defendant Justin Smith in his individual capacity only; and (3) all Doe Defendants.
Response [#152] at 24, 26. Despite the fact that the present Motion [#144] is generally one
seeking entry of summary judgment, Defendants do not appear to oppose dismissal of all
claims against these Defendants. See Reply [#155] at 1-2.
Although the parties agree on dismissal of the above-named Defendants, they
provide no legal authority for their agreement. However, the United States Supreme Court
has stated that “[f]ederal courts sometimes will ignore the legal label that a pro se litigant
attaches to a motion and recharacterize the motion in order to place it within a different
legal category.” Castro v. United States, 540 U.S. 375, 381 (2003). “They may do so in
order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of
formal labeling requirements, or to create a better correspondence between the substance
of a pro se motion’s claim and its underlying legal basis.” Id. (internal citations omitted).
Pursuant to Castro v. United States, the Court finds that the legal basis for Plaintiff’s
Motion [#28] should be construed under Fed. R. Civ. P. 41(a)(2). This Rule “governs
voluntary dismissals after the opposing party has filed an answer or motion for summary
judgment.” Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993). The Rule provides that
such dismissals may be made “only by court order, on terms that the court considers
proper.”

Fed. R. Civ. P. 41(a)(2).

Given the parties’ agreement that dismissal is

appropriate, and given the late stage of this case and that there is no indication that either
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party seeks to have the claims dismissed without prejudice, all claims7 asserted against
Defendant Larimer County, Defendant Justin Smith in his individual capacity, and the Doe
Defendants are dismissed with prejudice. See Van Leeuwen v. Bank of Am., N.A., 304
F.R.D. 691, 697 (D. Utah 2015) (holding that, while Rule 41(a) does not permit dismissal
of fewer than all claims against any single defendant, Rule 41(a) does permit dismissal of
all claims against one of multiple defendants, which thus permits that defendant to be
dismissed from the case) (distinguishing Gobbo Farms & Orchards v. Poole Chem. Co.,
81 F.3d 122, 123 (10th Cir. 1996)).
C.

Fed. R. Civ. P. 56: Summary Judgment
The Court reiterates that the evidence that Plaintiff offers in opposition to summary

judgment must provide more than conclusory or vague statements in order to create a
genuine issue of material fact with respect to Defendants’ evidence. See Ford v. West, 222
F.3d 767, 777 (10th Cir. 2000) (“Vague, conclusory statements do not suffice to create a
genuine issue of material fact.”).

Therefore, the Court may not accept Plaintiff’s

“disagreements” with Defendants’ supported facts unless Plaintiff directs the Court’s
attention to evidence in the record which otherwise supports his “disagreements.” Branson
v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (stating that “mere conjecture”
is an insufficient basis for denial of summary judgment). Finally, the Court also notes that
it disregards all statements consisting of legal conclusions. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
In addition, the Court must address precisely which aspects of which claims against

7

All claims, that is, except those dismissed without prejudice for lack of subject matter
jurisdiction above.

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which Defendants are still at issue in this lawsuit. It is clear that a pro se litigant’s pleadings
are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v.
Kerner, 404 U.S. 519, 520 (1972). This includes at the summary judgment stage of
proceedings. See Overton v. United States, 925 F.2d 1282, 1283 (10th Cir. 1991). The
Court must overlook a pro se litigant’s “failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
it is not “the proper function of the district court to assume the role of advocate for the pro
se litigant.” Id. This means that the Court may not manufacture arguments out of whole
cloth for him. Acker v. Dinwiddie, 516 F. App’x 692, 693 (10th Cir. 2013) (“To be sure, it
is well-settled that we read a pro se litigant’s petition with a special solicitude. But we are
not his advocates, and we cannot create arguments on his behalf out of whole cloth.”);
Tucker v. United States Court of Appeals for the Tenth Circuit, __ F. App’x __, __, Nos. 207003, 20-7004, 2020 WL 2535934, at *1 n.1 (10th Cir. May 19, 2020) (stating that the Court
must “stop short of serving as [the pro se litigant’s] advocate or crafting arguments on his
behalf”); United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[T]his rule of liberal
construction stops, however, at the point at which we begin to serve as his advocate.”). In
other words, the Court is not obligated to craft arguments and perform the necessary legal
research where the pro se litigant’s briefs address the opposing arguments only “in a
perfunctory manner, unaccompanied by some effort at developed argumentation.” United
States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (internal quotation marks omitted).
Here, it is clear that Defendants are seeking dismissal or entry of summary judgment
in their favor on all claims asserted by Plaintiff. Motion [#144] at 1. It is equally clear that
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Plaintiff has done an admirable job in developing legal argument and/or record support in
opposition to the Motion [#144] with respect to many of his claims. See generally
Response [#152, #152-1]. However, in this same Response [#152, #152-1], Plaintiff does
not address a number of aspects of his claims or occasionally even mention some
Defendants seemingly named in connection with those claims.8 Thus, while the Court
liberally construes Plaintiff’s arguments in his Response, the Court finds that Plaintiff has
essentially abandoned any claim against any Defendant for which there is not at least
“some effort at developed argumentation.”9 See Wooten, 377 F.3d at 1145. The Court
applies this framework to each of Plaintiff’s ten remaining claims as specified below.
1.

Qualified Immunity

The doctrine of qualified immunity “shields government officials performing
discretionary functions from liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Qualified immunity only applies to claims asserting individual
capacity liability for civil damages. Harlow, 457 U.S. at 818. Here, all Defendants who
have not been previously dismissed in this Order are sued in their individual capacities
only. See Am. Compl. [#46] at 1.
8

Plaintiff’s Amended Complaint [#46] does not state which specific Defendants are sued
in connection with each specific claim, although Defendants have attempted to infer this information
based on whichever names are mentioned in the allegations Plaintiff made under each claim’s
heading. See Motion [#144] at 2-4.
9

This is especially true because Plaintiff “does not accept the defendants’ recitations of his
claims as entirely correct,” see Response [#152] at 1, and there appears to be no better way to
ascertain which claims and Defendants remain at issue than by analyzing which claims and
Defendants Plaintiff specifically addresses throughout his Response.

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When a defendant raises qualified immunity on summary judgment, the burden
shifts to the plaintiff to satisfy a strict two-part test. Nelson v. McMullen, 207 F.3d 1202,
1206 (10th Cir. 2000). First, taking the facts in a light most favorable to the plaintiff, the
plaintiff must provide evidence demonstrating that each defendant’s actions violated a
constitutional or statutory right. Id. Second, the plaintiff has the burden of showing that
“the constitutional or statutory rights the defendant allegedly violated were clearly
established at the time of the conduct at issue.” Id. (quoting Albright v. Rodriguez, 51 F.3d
1531, 1534-35 (10th Cir. 1995) (citations omitted)). If the plaintiff does not meet his burden
of demonstrating both of these elements, then the defendant is entitled to qualified
immunity. Nelson, 207 F.3d at 1206.
“Ordinarily, a plaintiff may show that a particular right was clearly established at the
time of the challenged conduct by identifying an on-point Supreme Court or published
Tenth Circuit decision; alternatively, the clearly established weight of authority from other
courts must have found the law to be as he maintains.” A.M. v. Holmes, 830 F.3d 1123,
1135 (10th Cir. 2016) (internal quotation marks and alterations omitted). “However, we do
not always require case law on point, and the Supreme Court has warned that officials can
still be on notice that their conduct violates established law even in novel factual
circumstances.” Id. (internal quotation marks and citations omitted). “We have therefore
adopted a sliding scale to determine when law is clearly established.” Id. “The more
obviously egregious the conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish the violation.” Id. at 1135-36.
It is not necessary to show that “the very action in question has previously been held
unlawful, [but] in the light of pre-existing law the unlawfulness must be apparent.” Id. at
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1136 (internal alterations and quotation marks omitted).
Recently, in Ali v. Duboise, 763 F. App’x 645, 649-50 (10th Cir. 2019), the Tenth
Circuit Court of Appeals addressed the issue of qualified immunity and “clearly established
law.” Affirming the district court’s determination that the law was not clearly established
(and therefore that the jail official-defendant was entitled to qualified immunity), the Tenth
Circuit emphasized that “clearly established law should not be defined at a high level of
generality” but must be “particularized to the facts of the case.” Ali, 763 F. App’x at 650
(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (internal quotation marks
omitted)). The Tenth Circuit also emphasized that “[a]lthough a plaintiff need not identify
a case directly on point, existing precedent must have placed the statutory or constitutional
question beyond debate.” Ali, 763 F. App’x at 650 (internal quotation marks and ellipsis
omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
a.

Claim Six

Plaintiff’s Claim Six is based on asserted deliberate indifference by the “supervisory
defendants” in failing to protect Plaintiff from sexual misconduct by another inmate. See
Am. Compl. [#46] at 52-56; Response [#152-1] at 19.

According to the Amended

Complaint, the supervisors were Defendants Brown, Burch, Mahoney, Meeks, Wulfert,
Villareal, Saults, Berglund, Paloranta, Harteker, Lalicker, and Peranteaux.10 However, the
only Defendant listed by name by Plaintiff in his Response in connection with Claim Six is
Defendant Lalicker, purportedly as the only example of a supervisory Defendant who took
any action to protect Plaintiff from the asserted sexual misconduct. See [#152-1] at 19-20.

10

A “Corporal Simms” is also mentioned here but is not a named Defendant in this lawsuit.
Am. Compl. [#46] at 52.

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Plaintiff explicitly asserts this claim under the Fifth, Eighth, and Fourteenth Amendments.
See Am. Compl. [#46] at 52.
Plaintiff arrived at LCJ on February 8, 2016, and, at the time of this claim, he was
a pretrial detainee because all pertinent events occurred prior to his conviction on July 27,
2017. Id. Because Plaintiff was a pretrial detainee, the Eighth Amendment is inapplicable
to his claim. See Porro v. Barnes, 624 F.3d 1322, 1325-26 (10th Cir. 2010) (stating that
the Eighth Amendment applies to “prisoners already convicted of a crime”). Further, the
Fifth Amendment governs actions by the federal government and the Fourteenth
Amendment governs actions by the states. Santa Fe All. for Pub. Health & Safety v. City
of Santa Fe, New Mexico, No. 18-1209 KG/JHR, 2020 WL 2198120, at *6 (D.N.M. May 6,
2020) (citing U.S. Const. amends. V; XIV, § 1). Therefore, because there is no indication
of any federal action here, the Fifth Amendment is also inapplicable to this claim. Thus,
Defendants are entitled to summary judgment in their favor to the extent this claim is
asserted under the Fifth and Eighth Amendments.11 Accordingly, the Court proceeds with
its analysis under the Fourteenth Amendment.
In March 2016, inmate Will Williams (“Williams”) was placed in the same housing
unit as Plaintiff. Am. Compl. [#46] at 52. Plaintiff states:
During [Mr. Williams’s] outside the cell rec time he would expose his genitals
and anus to the other inmates including me in the pod. He would come to my
and other inmates [sic] door and masturbate staring in through the window.
While masturbating he would yell and scream disturbing sexual comments

11

To the extent Plaintiff may be asserting a violation of the Fifth Amendment in Claim Nine
or any other claim in this lawsuit, the same holding applies. See Am. Compl. [#46] at 65. Similarly,
to the extent Plaintiff may be asserting a violation of the Eighth Amendment i any other claim, and
to the extent the events underlying those claims occurred in full prior to July 27, 2017, this holding
also applies.

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and our names. He did this nearly every day he was in the pod with me.
Id. Plaintiff and other inmates reported this behavior to various prison officers who told
them that their supervisors had been informed but had not done anything. Id. However,
in April 2016, Mr. Williams was moved to another housing unit. Id.
In May 2016, Plaintiff was moved to the same housing unit to which Mr. Williams had
been moved. Id. “Mr. Williams immediately recommenced his sexual misconduct more
aggressively and less surreptitiously” because this housing unit had less deputy oversight.
Id. “He would masturbate while using the jail information kiosk and while on the phone.”
Id. at 53. Plaintiff and other inmates continued to complain to jail deputies and supervisors.
Id. Plaintiff states that “[n]othing was done,” but Plaintiff was moved to another housing unit
in June 2016. Id.
On November 4, 2016, Plaintiff was returned to his prior housing unit, where Mr.
Williams was still located. Id. Mr. Williams “recommenced his sexual misconduct.” Id.
Plaintiff states that he “had become one of [Mr. Williams’s] favorite victims.” Id. Mr.
Williams “would yell [Plaintiff’s] name all night in the pod in a sickening sexual manner.”
Id. Plaintiff and other inmates complained to deputies but nothing was done. Id. On
November 19, 2016, Plaintiff filed a grievance against Mr. Williams. Pl.’s Depo. [#144-2]
at 214. A couple of days later, Mr. Williams was moved to a different housing unit. Am.
Compl. [#46] at 53. Defendant Lalicker responded to the grievance shortly after that on
November 25, 2016, telling Plaintiff that a “keep separate” order was put in place to keep
Plaintiff and Mr. Williams from having contact with each other. Pl.’s Depo. [#144-2] at 21516.
On March 2, 2017, Plaintiff was moved to the same housing unit as Mr. Williams,
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although they lived in separate pods within that unit. Pl.’s Undisputed Fact #27 [#152] at
15; Pl.’s Depo. [#144-2] at 216-17. Although these two pods were in the same housing
unit, there was no direct access between them unless the inmates from each pod were out
in the yard at the same time. Pl.’s Depo. [#144-2] at 217-18. Plaintiff concedes that he
never had direct contact with Mr. Williams in the yard. Id. at 218. However, although their
two pods were separated by a wall, there were also windows built into the wall. Am.
Compl. [#46] at 54. Although separated by the glass, Mr. Williams “still stared at [Plaintiff],
exposed himself, blew [Plaintiff] kisses and masturbated.” Id. Plaintiff states that this
happened in March and April of 2017. Pl.’s Depo. [#144-2] at 216.
Plaintiff admits that he was unable to find a case demonstrating clearly established
law under these circumstances. Response [#152-1] at 19. However, he points to the
Larimer County Sheriff’s Office Policy Manual’s Prison Rape Elimination Act (“PREA”)
Procedure, which prohibits sexual misconduct, including the type of behavior allegedly
committed by Mr. Williams. Pl.’s Ex. T [#152-21]. Plaintiff also points to several cases for
the proposition that “[o]fficers are not immune for conduct that runs contrary to common
sense, decency and regulations.” Response [#152-1] at 19 (citing Walters v. W. State
Hosp., 864 F.2d 695, 699 (10th Cir. 1988) (concerning the right to refuse medication by an
individual in protective custody); Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir.
1992) (concerning a parolee’s right to privacy in his own body); Howard v. Adkison, 887
F.2d 134,140 (8th Cir. 1989) (concerning conditions of confinement such as denial of
proper cleaning supplies to combat urine and human waste and the denial of proper
laundry and barber privileges); Parker v. Williams, 862 F.2d 1471, 1477 (11th Cir. 1989),
overruled by Turquitt v. Jefferson County, Alabama, 137 F.3d 1285 (11th Cir. 1998)
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(concerning the alleged rape and kidnapping by a chief jailor of a female inmate released
on bond); Hammond v. Gordon County, 316 F. Supp. 2d 1262, 1286 (N.D. Ga. 2002)
(concerning sexual misconduct between inmates and prison officials)).
While some of these legal authorities may have some persuasive value regarding
whether the evidence shows that a constitutional violation occurred here, none involve
underlying circumstances similar enough to those asserted by Plaintiff to demonstrate that
the law was clearly established at the time of the alleged violations. To be sure, as a
general matter, an inmate’s right to be free of sexual assault is clearly established. Ullery
v. Bradley, 949 F.3d 1282, 1293 (10th Cir. 2020) (citing Tafoya v. Salazar, 516 F.3d 912,
916 (10th Cir. 2008); Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005); Barney
v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)). However, “the dispositive question is
whether the violative nature of the particular conduct is clearly established.” Ullery, 949
F.3d at 1293 (internal quotation marks and brackets omitted) (citing Mullenix, 136 S. Ct. at
308). “[E]xisting precedent must have placed the statutory or constitutional question
beyond debate.” Ali, 763 F. App’x at 650. The Court’s own research has discovered no
case that meets the “clearly established” requirement, where the issue involved inmate-oninmate sexual misconduct, where the undisputed evidence is that the plaintiff was never
physically touched by the other inmate, and where prison officials took at least some steps
to separate the two individuals following complaints. See Defs.’ Undisputed Fact #28
[#144] at 12 (“Inmate Williams never physically contacted Plaintiff Janny.”); Pl.’s Response
[#152] at 7 (admitting this fact). Therefore, the Court finds that Defendants Brown, Burch,
Mahoney, Meeks, Wulfert, Villareal, Saults, Berglund, Paloranta, Harteker, Lalicker, and
Peranteaux are entitled to qualified immunity on Plaintiff’s Claim Six.
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Accordingly, summary judgment shall enter in favor of Defendants on Claim Six.
b.

Claim Eight

Plaintiff’s Claim Eight is based on asserted deliberate indifference by prison officials
to inmate safety in connection with an injury Plaintiff suffered while playing handball. See
Am. Compl. [#46] at 62-64. Plaintiff asserts this claim under the United States Constitution,
which, although unspecified, the Court construes as stemming from the Fourteenth
Amendment based on Plaintiff’s status as a pretrial detainee at the relevant time underlying
this event. See id. at 62.
In May 2016, Plaintiff was in the outside recreation area playing a game called
handball, which is permitted by LCJ and which “involves running, sprinting, making quick
lateral moves and cuts, stopping abruptly, jumping and diving.” Id. While playing, Plaintiff
“tripped over the cheap rubber sandals” he was required to wear at all times. Id. at 62-63.
He “ran head first into the concrete wall at full speed . . . , was knocked unconscious and
. . . threw up” when he revived 10-30 seconds later. Id. at 62. Plaintiff states that he has
“previously been diagnosed with [traumatic brain injury from] cumulative head trauma” and
that “[f]urther head trauma increasingly deteriorates [his] brain and brain function.” Id. at
63.
Plaintiff acknowledges that he was unable to find a case demonstrating that any
purportedly violated constitutional rights here were clearly established. Response [#152-1]
at 20.

He provides no legal authority in support of whether the claim was clearly

established at the time of the violation, and the Court’s own research has found no case
to place the “constitutional question beyond debate,” i.e., a case concerning required
inmate footwear during recreational time. Ali, 763 F. App’x at 650. Therefore, Defendants
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are entitled to qualified immunity.12
Accordingly, summary judgment shall enter in favor of Defendants on Claim Eight.
c.

Claim One

Plaintiff’s Claim One appears to assert Fourteenth Amendment due process claims
for being placed on Administrative Segregation (“Ad Seg”) status. Am. Compl. [#46] at 1318. The claim solely concerns Plaintiff’s placement on Ad Seg status and does not
implicate his placement on any other type of status. See Am. Compl. [#46] at 13-18. In his
Response, Plaintiff provides “some effort at developed argumentation” regarding only two
specific incidents, one occurring on February 8, 2016, and one occurring on October 24,
2016 (stated as “September 2016” in the Amended Complaint [#46]). See [#152] at 29;
Wooten, 377 F.3d at 1145. These events appear to involve only Defendants Saults and
Villareal, although Plaintiff only mentions Defendant Villareal by name in his Response.
See [#152] at 29. Thus, to the extent any Defendant other than Defendant Saults or
Defendant Villareal is mentioned in this claim13 or any other basis for this claim may have

12

It is unclear from the Amended Complaint [#46] which Defendants Plaintiff alleges
violated his rights in Claim Eight. However, given that all individual Defendants are, with one
exception, sued in their individual capacities, all would be entitled to qualified immunity here. The
one person sued in his official capacity is Defendant Justin Smith, Larimer County Sheriff. In his
Response, Plaintiff contemplates: “Perhaps this claim should proceed against the Larimer County
Sheriff in his official capacity for compensatory damages for a policy that caused the injury.” See
[#152-1] at 21. This contemplation, made merely in a brief at this late stage of the case, makes it
clear that the claim as asserted in the Amended Complaint [#46] was not asserted against
Defendant Smith in his official capacity, especially since he is not mentioned in connection with this
claim in the Amended Complaint. However, even if the claim had been properly asserted there and
were construed as a Monell claim, the Court finds that Plaintiff has failed to demonstrate deliberate
indifference given that the undisputed evidence is that Plaintiff voluntarily chose to play handball
while knowing the requirement that he must wear his facility-provided footwear, even if that footwear
consisted of sandals.
13

The Court notes that, in its reading of the Amended Complaint [#46], Defendant Burch
also appears connected to the February 2016 events. See [#46] at 13. However, Defendants did

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originally been made, the Court finds that Plaintiff has abandoned those aspects of this
claim in the absence of “some effort at developed argumentation.” See Wooten, 377 F.3d
at 1145. At all times relevant to this claim, Plaintiff was a pretrial detainee. See Am.
Compl. [#46] at 13-18.
Ad Seg is an inmate status within the LCJ utilized to manage inmates with current
or past behavioral issues who pose a threat to the security or safety of the facility,
themselves, or others, by housing such inmates separately from other inmates.14 Motion
[#144] at 8-9; Response [#152] at 4. Ad Seg status has three levels, through which an
inmate can progress on a regular seven-day review schedule under certain
circumstances.15 Motion [#144] at 10; Response [#152] at 5. Per LCJ policy, Plaintiff’s Ad
Seg status was appropriately reviewed every seven days. Id. Ag Seg Level 1 consists of
lockdown status and the inmate is kept separate from others, including during meals and
time out of his cell. Defs.’ Ex. D, Larimer County Sheriff’s Office Policy Manual [#144-4]
at 1. The term “lockdown,” when associated with Ad Seg status within the LCJ means that
an inmate is confined to his cell for approximately 22.5 hours per day and is released from

not read this Claim One as pertaining to Defendant Burch, see Motion [#144] at 2, and Plaintiff does
not state otherwise in his discussion of this claim in opposition to Defendants’ Motion [#144]. See
[#152] at 27-30. Thus, the Court examines Defendant Burch’s actions in connection with this
incident solely as they pertain to Claim Two and Plaintiff’s placement on Red Tag status in February
2016.
14

While Plaintiff does not deny this official definition of As Seg, he asserts that it also, or
even primarily, is used for punitive purposes. Response [#152] at 4.
15

Plaintiff denies this allegation only to the extent that he disputes what specific
circumstances can prevent an inmate from progressing through the three levels. Response [#152]
at 5.

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his cell for approximately ninety minutes for recreation, showering, and other activities.16
Motion [#144] at 12; Response [#152] at 6. Inmates on Ad Seg Level 2 are kept on
lockdown status but are not kept separate from others. Defs.’ Ex. D [#144-4] at 1. Inmates
on Ad Seg Level 3 are removed from lockdown status as well.17 Id.
Plaintiff’s only evidence regarding Defendant Saults is that, according to jail records,
Defendant Saults put him on Ad Seg status in mid-October 2015 during Plaintiff’s previous
brief time at LCJ. Am. Compl. [#46] at 14; Defs.’ Ex. C, LCJ Records [#144-3] at 1-3.
Plaintiff states that he did not even know he was on Ad Seg status at the time, because no
jail staff informed him of this. Am. Compl. [#46] at 14. However, the unrebutted evidence
is that Plaintiff was placed on Ad Seg status by Defendant Saults after an incident on
October 14, 2015, described by Defendant Saults in a contemporaneous report as follows:
I approached Inmate JANNY after he was finished with his meal. JANNY
was sitting on the couch in front of the TV’s in NA’s dayroom. I asked to
speak with him in the conference room, and if he could please go get his
shoes on. JANNY stood up, dropped his spoon, and took a step towards me.
I stepped to the side to let him by. He took another step in my direction. I
backed up a step, and he took a third step in my direction. At this point I put
my hand up to stop his advance. [Another jail official] called a Code 5 One
North. In a loud voice, I told JANNY to turn around and put his hands behind
his back. I placed JANNY in handcuffs without any resistance, and [another

16

In full, disciplinary lockdown is defined by the Larimer County Sheriff’s Office Policy
Manual as consisting of: “Confinement to inmate’s room and loss of all privileges except: 1. 1 hour
per 24 hours out of the cell for recreation, 15 minutes out for a shower, and 15 minutes provided
to clean the cell with proper supplies. 2. 20 minutes dining time for each meal. 3. Telephone calls
from attorneys or clergy. All outgoing telephone calls must be made during regular time out. 4.
Visitation. 5. Mail. 6. Adequate food, light, ventilation, temperature control, sanitation, and medical
care. 7. Proper clothing, bed and bedding, use of toilets, sinks, and showers. 8. Stamps ordered
by commissary order form. 9. Inmate property will not be pulled unless abused or access to the
property threatens security. 10. Access to Mental Health Counselors, Inmate Chaplain and/or
Clergy, or legal materials by submitting an Inmate Request form.” Defs.’ Ex. D [#144-4] at 18.
17

It is unclear whether inmates on Ad Seg Level 3 have any restrictions, as compared to
the general population, or whether this is simply a type of probationary status.

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jail official] escorted him to booking.
Defs.’ Ex. C [#144-3] at 2.
The Court observes that Plaintiff does not provide evidence that Defendant Saults
placed him on Ad Seg status when Plaintiff returned to LCJ in February 2016; instead he
asserts only that Defendant Saults’s action of placing him on Ad Seg status in October
2015 ultimately caused his return to Ad Seg status on February 8, 2016. When Plaintiff
was readmitted to LCJ then, he was automatically designated with the status of
“Administrative Segregation Level 1” because that was his status when he left the jail in
October 2015.18 Motion [#144] at 9; Response [#152] at 5.
At his first review period on February 16, 2016, Plaintiff had not received a new
sanction or three negative behavior marks, and so was moved to Ad Seg Level 2. Id. At
his next review period on February 23, 2016, Plaintiff had received four negative behavior
marks, and thus he remained at Ad Seg Level 2 instead of progressing to Ad Seg Level 3.
Id. The next review period on March 1, 2016 found Plaintiff to have no new sanctions or
behavior remarks, and he therefore progressed to Ad Seg Level 3. Id. Plaintiff’s next
review period would have been on March 8, 2016, but, before he could be progressed off
of Ad Seg entirely, he was returned to Ad Seg Level 1 on March 5, 2016.19 Motion [#144]
at 10-11; Response [#152] at 5. Between March 5, 2016, and June 20, 2016, Plaintiff

18

While Plaintiff denies Defendants’ recitation of this fact, he does so only on the basis of
completeness and does not contest that he received these designations on entry to the LCJ.
Response [#152] at 5.
19

Plaintiff disputes the reasons for his return to Ad Seg Level 1 but does not dispute that
the fact of his status change. Response [#152] at 5.

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engaged in certain misbehavior and was kept on Ad Seg status.20 Motion [#144] at 11;
Response [#152] at 6. Plaintiff was removed from Ad Seg status entirely on June 20, 2016,
having successfully completed progression through the Ad Seg levels with good behavior.
Id.
Turning to the second incident at issue under Claim One, the evidence is unclear
as to precisely what occurred in September or October 2016 between Plaintiff and
Defendant Villareal.21 Plaintiff states that Defendant Villareal placed him on Ad Seg status,
purportedly for refusing a housing assignment. Am. Compl. [#46] at 15. Plaintiff asserts
that, in truth, he had been asked whether he wanted to move to one housing area or to a
different housing area “with a higher security status but not just for ad seg or red tags.” Id.
He was not told that if he chose the latter housing option that he would be placed on Ad
Seg status. Id. He received a disciplinary report, waived his hearing, and further received
a five-day punitive segregation “lockdown” sanction (which is not at issue in connection with
this claim). Id. at 16. He asserts that he waived his hearing “because demanding a due
process hearing would have extended my ad seg placement whether I was eventually
found not guilty or guilty.” Id. In total, Plaintiff was on Ad Seg status for thirty-five days on
this occasion. Id.
Defendants argue that Plaintiff has failed to provide evidence showing that any of
the actions purportedly taken by each individual Defendant demonstrates a constitutional
20

Without specificity, Plaintiff admits that “some” of the misbehavior incidents Defendants
cite were true but that “most” were not. Response [#152] at 6. He does not dispute the fact that
he was kept on Ad Seg status during this period, though. Id.
21

The parties do not appear to have provided a contemporaneous report in connection with
this incident. See generally Defs.’ Ex. C [#144-3] at 15-16 (providing no reports between June 23,
2016, and March 2, 2017).

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violation, and that each individual’s actions do not violate any clearly established right.
Pretrial detainees, like Plaintiff, “may not be punished prior to an adjudication of guilt in
accordance with due process of law.” Routt v. Howard, 764 F. App’x 762, 768 (10th Cir.
2019) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). However, pretrial detainees may
be subjected “to the restrictions and conditions of the detention facility so long as those
conditions and restrictions do not amount to punishment, or otherwise violate the
Constitution.” Routt, 764 F. App’x at 768 (quoting Bell, 441 U.S. at 536-37). Thus, when
reaching the merits of this type of claim, the Court “must ask whether an expressed intent
to punish on the part of detention facility officials exists. If so, liability may attach. If not,
a plaintiff may still prove unconstitutional punishment by showing that the restriction [or
condition] in question bears no reasonable relationship to any legitimate governmental
objective.” Routt, 764 F. App’x at 768 (quoting Blackmon v. Sutton, 734 F.3d 1237, 1241
(10th Cir. 2013)).
“Restraints that are reasonably related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had he
been released while awaiting trial.” Routt, 764 F. App’x at 768-69 (quoting Bell, 441 U.S.
at 540). In other words, “the effective management of the detention facility once the
individual is confined is a valid objective that may justify imposition of conditions and
restrictions of pretrial detention and dispel any inference that such restrictions are intended
as punishment.” Routt, 764 F. App’x at 769 (quoting Bell, 441 U.S. at 540). Relying on
Supreme Court precedent, the Tenth Circuit Court of Appeals has cautioned that these
decisions “are peculiarly within the province and professional expertise of corrections
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officials, and, in the absence of substantial evidence in the record to indicate that the
officials have exaggerated their response to these considerations, courts should ordinarily
defer to their expert judgment in such matters.” Routt, 764 F. App’x at 769 (quoting Bell,
441 U.S. at 540 n.23) (emphasis added).
Plaintiff appears to believe that, before any restriction or condition could be imposed
on him that was more restrictive than that of the general population at the facility, he was
entitled to procedural due process protections. Response [#152] at 27-30. That is simply
not the case, however. Such restrictions and conditions are permitted unless they amount
to punishment. In other words, mere restrictions and conditions, such as loss of privileges,
are permitted to be imposed for virtually any reason connected to effective prison
management unless they rise to the level of constitutional punishment. See Blackmon, 734
F.3d at 1241 (“Where exactly do we draw the line between what does and doesn't
constitute “punishment”? Historically, the government has enjoyed the authority to detain
until trial those defendants who pose a flight risk. And no doubt those who find themselves
detained in this manner experience a great many restrictions on their liberty—restrictions
many of us would regard as punishment in themselves. But when do these restrictions
pass, as a matter of law, from constitutionally acceptable to constitutionally
impermissible?”).
The Court here makes no finding regarding whether the evidence is sufficient to
support the finding of a constitutional violation under the first prong of the qualified immunity
analysis because Defendants Saults and Villareal are entitled to qualified immunity under
the second prong of the analysis. In order to show that Plaintiff’s clearly established
constitutional rights were violated in connection with his Ad Seg status, he must point to a
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case where the conditions and restrictions he endured under that status have been held
to “amount to punishment.” Plaintiff has pointed to no evidence of an “express intent” to
punish him but appears to focus on a lack of any reasonable relationship to a legitimate
government objective. See Response [#152] at 27-30. Therefore, because the applicable
case law “allows prohibitions and restrictions that are reasonably related to legitimate
penological interests,” Plaintiff “must include sufficient facts” showing “that the actions of
which he complains were not reasonably related to legitimate penological interests.” See
Gee v. Pacheco, 627 F.3d 1178, 1187-88 (10th Cir. 2010).
Several examples illustrate this point. In Blackmon v. Sutton, 734, F.3d at 1242, the
Tenth Circuit Court of Appeals held that an eleven-year-old pretrial detainee who was
sometimes shackled to a restraint chair for long periods even when there was not any hint
that he posed a threat to himself or anyone else, or long after any such threat had
dissipated, did not serve any legitimate penological purpose and therefore was
impermissible punishment under the Fourteenth Amendment. In Littlefield v. Deland, 641
F.2d 729, 730, 732 (10th Cir. 1981), for fifty-six-days a pretrial detainee was placed in a
solitary “strip cell” with no windows, no interior lights, no bunk, no floor covering, and no
toilet except for a hole in the concrete floor which was flushed irregularly from outside the
cell. The detainee was deprived of all clothing and bedding, reading or writing materials,
and any articles of personal hygiene. Littlefield, 641 F.2d at 730. The Tenth Circuit held
that holding “a pretrial detainee under conditions of detention this extreme for such an
excessive period as fifty-six days is punishment and, absent a determination of guilt, cannot
be imposed in accordance with the due process clause of the fourteenth amendment.” Id.
at 732. In Colbruno v. Kessler, 928 F.3d 1155, 1164 (10th Cir. 2019), the Tenth Circuit
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held that walking an adult pretrial detainee naked through a hospital, where there was not
a medical need so pressing that a few minutes could not be spared to find replacement
clothing, constituted punishment under the Fourteenth Amendment with no legitimate
penological purpose.
On the other side of the scale are those cases where discipline has not been
deemed to rise to the level of punishment and/or was deemed to be connected to a
legitimate penological purpose. For example, in Routt v. Howard, 764 F. App’x at 769, the
Tenth Circuit held that a 72-hour lockdown of pretrial detainees after a sharpened
toothbrush was found in a communal shower was not punishment where the alleged
actions “support[ed] a reasonable, non-exaggerated response to [the Jail’s] legitimate
interest in maintaining security and order.” In the same case, the Tenth Circuit held that
an officer on the night shift yelling in the cells, loudly pounding on glass with keys, and
otherwise making it hard to sleep did not constitute punishment where there was no
evidence of long-term exposure to the noisy nighttime conditions. Routt, 764 F. App’x at
769-70. In Cox v. Denning, 652 F. App’x 687, 691-92 (10th Cir. 2016), the Tenth Circuit
Court held that, while discomforting, a nighttime-recreation policy for pretrial detainees,
forcing the plaintiff-inmate to take his recreation time around midnight, did not constitute
punishment because it was designed to permit close monitoring of inmates who might pose
a danger to themselves or others. In Peoples v. CCA Detention Centers, 422 F.3d 1090,
1106-07 (10th Cir. 2005), a pretrial detainee was placed in segregation on his arrival at the
detention center and kept there for about thirteen months, but the Tenth Circuit held that
this did not constitute punishment “due to his plot to escape from his previous pretrial
detention facility” and the facility’s legitimate interest in segregating him because he was
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an escape risk.
Finally, the Court notes that the Tenth Circuit has acknowledged that there is a
“distinction between punitive and administrative segregation, although, “[a]dmittedly, it is
an unclear and murky line that separates these two types of segregation.” Frazier v.
Dubois, 922 F.2d 560, 563 (10th Cir. 1990) (“We have some difficulty in drawing a line
between punitive and non-punitive segregation because most segregation would seem to
involve both elements.”). Regardless, it is clear that merely enduring “segregation” without
a due process hearing is, standing alone, insufficient to meet the requirements of this claim.
Plaintiff has directed the Court to no case, and the Court has found none through
its own research, where restrictions and conditions similar to those of LCJ’s Ad Seg status
were deemed to rise to the level of punishment or where such restrictions and conditions
were deemed to bear no reasonable relationship to any legitimate governmental objective.
See, e.g., Colbruno, 928 F.3d at 1164 (separately determining (1) whether the defendants’
conduct rose to the level of punishment, and therefore of a Fourteenth Amendment
violation, before determining (2) whether the conduct was rationally related to a legitimate
governmental objective or was excessive in relation to that purpose). That is especially
true in circumstances such as these where there is no evidence that Defendant Saults
made the decision on February 8, 2016, to keep Plaintiff on Ad Seg status on his return to
LCJ and where Plaintiff made the decision to waive his hearing, for whatever personal
reason, in connection with his September/October 2016 placement on Ad Seg status by
Defendant Villareal. Thus, even if the Court were to find that the evidence is sufficient to
demonstrate the violation of a constitutional right, Defendants Saults and Villareal are still
entitled to qualified immunity on this claim in the absence of clearly established law
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forbidding their conduct.
Accordingly, summary judgment is entered in favor of Defendants on Claim One.
d.

Claim Two

Claim Two is similar to Claim One except that Plaintiff’s “Red Tag” status is at issue
rather than his “Ad Seg” status. Am. Compl. [#46] at 19-22. At all times relevant to this
claim, Plaintiff was a pretrial detainee. See id. This Fourteenth Amendment claim is
asserted against Defendants Saults and Burch. See id.
“Red Tag” is a security status applied to inmates who pose a physical threat to LCJ
staff or other inmates.22 Motion [#144] at 9; Response [#152] at 4-5. The precise contours
of the restrictions imposed on an inmate under Red Tag status are not clearly delineated
in the evidence. However, Plaintiff testified that it is “pretty much just . . . [a] [d]ifferent
form[ ] of administrative segregation.” Pl.’s Depo. [#144-2] at 40-41. He stated that “[r]ed
tag status can’t order canteen . . . [and] is subject to the same lockdowns as . . . the people
on administrative segregation level 3.” Id. at 41. The main difference, Plaintiff testified, is
that there must be sufficient staff members present for a Reg Tag inmate to be permitted
outside of his cell in the common areas. Id. at 41-42. For example, a 2:1 Red Tag status
means that there must be two deputies present for that inmate to be outside of his cell, and
if two inmates with 2:1 Red Tag status are out of their cells at the same time, there must
be four deputies present. Id. The same concept applies to 1:1 Red Tag status, where
there must be one deputy present for that inmate to be outside of his cell, and if two
inmates with 1:1 Red Tag status are out of their cells at the same time, there must be two

22

While Plaintiff does not deny this official definition of Red Tag status, he asserts that it
is also, or even primarily, used for punitive purposes. Response [#152] at 4-5.

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deputies present. Id.
The only evidence regarding Defendant Saults is identical to that recited above in
connection with Claim One and Plaintiff’s placement on “Ad Seg” status, except that this
claim involves Plaintiff’s placement on “Red Tag” status at the same time. Am. Compl.
[#152] at 20. The only evidence regarding Defendant Burch is that he put Plaintiff on Red
Tag status when Plaintiff returned to LCJ on February 8, 2016, purportedly because Plaintiff
had been on Red Tag status when he’d previously left LCJ in October 2015 and because
Plaintiff had made threats to staff during his booking. Am. Compl. [#46] at 19; Motion
[#144] at 9; Response [#152] at 5.23 Plaintiff states that he was on Red Tag status from
February 8, 2016, until sometime in July 2016, for a total of about 160 days. Am. Compl.
[#46] at 21. Per LCJ policy, Plaintiff’s Red Tag status was reviewed every thirty days.
Motion [#144] at 10; Response [#152] at 5.
Resolution of this claim is materially identical to resolution of Plaintiff’s claim
regarding Ad Seg status. Plaintiff has directed the Court to no case, and the Court has
found none through its own research, where restrictions and conditions similar to those of
Red Tag status, as used by LCJ, were deemed to rise to the level of punishment or where
those restrictions and conditions were deemed to bear no reasonable relationship to any
legitimate governmental objective, such as facility security. Specifically as to Defendant
Burch, the Court has found no case showing that Plaintiff’s clearly established rights were
violated because, on Plaintiff’s return to LCJ, he was placed on the same status he had
been under when he had previously left the same facility. Thus, even if the Court were to

23

While Plaintiff denies that the reasons he was put on Red Tag status are true, he does
not contest that he received these designation upon entry to the LCJ. Response [#152] at 5.

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find that the evidence is sufficient to demonstrate the violation of a constitutional right,
Defendants Saults and Burch are still entitled to qualified immunity on this claim in the
absence of clearly established law.
Accordingly, summary judgment is entered in favor of Defendants on Claim Two.
e.

Claim Eleven

Claim Eleven is similar to Claim One and Claim Two except that Plaintiff’s “punitive
segregation” status (which appears to be used interchangeably with “disciplinary
segregation”) is at issue rather than his “Ad Seg” status or his “Red Tag” status. Am.
Compl. [#46] at 96-99. At all times relevant to this claim, Plaintiff was a pretrial detainee
with Fourteenth Amendment protections. See Am. Compl. [#46] at 96. Based on their
reading of the Amended Complaint [#46], Defendants believe that Defendants Gee and
Paloranta are the named Defendants under this claim. Motion [#144] at 4. Plaintiff does
not explicitly contest this, but the only Defendant he names, or even appears to allude to,
in his Response is Defendant Palmer. See [#152] at 31.
The precise factual basis for this claim also appears to be a bit of a “moving target,”
even though Plaintiff attempts to clarify the basis for this claim in his Response [#152].
First, he states that he “has not challenged the punitive segregation/disciplinary lockdown
that resulted from [his] waiv[er]” of hearings which he appears to concede were
appropriately offered. Response [#152] at 33. Second, and similarly, he states that he
“has not challenged the consequences of waiving those hearings which only apply to
punitive segregation/disciplinary lockdown.” Id. Third, he states that what he is challenging
is “the policy/custom/act that when an inmate requests a hearing [in connection with
punitive segregation] . . . they are held back from progressing to the next stage of ad seg
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whether they are found guilty or not . . . for the reason that they requested a hearing.” Id.
However, elsewhere he appears to state that he is also contesting that class A violations
under the Policy Manual can result in disciplinary lockdown in the absence of any due
process procedural protections. Id. at 31.
As was the case with Red Tag status, the precise restrictions imposed on an inmate
under punitive segregation are not clearly delineated by the parties. However, Plaintiff
testified that there was no difference in the time permitted out of one’s cell (ninety minutes
per day) regardless of whether an inmate was on Ad Seg 1 or punitive segregation 1. Pl.’s
Depo. [#144-2] at 49-50. As mentioned above, this time is permitted for the inmate to do
such things as care for his hygiene (including taking a shower) and clean his cell. Id. at
114. All of the “basic essentials” like food and water are also provided regardless of status.
Id.
The evidence regarding Defendant Gee is as follows. On March 2, 2017, Defendant
Gee wrote up Plaintiff for four rule violations consisting of two class A write ups (one for
making unnecessary noise and one for transfer of property) and two class B violations (one
for disrespecting staff and one for possessing contraband). Am. Compl. [#46] at 96.
Plaintiff asserts that he was sent to the punitive segregation pod because Defendant Gee
had given him two consecutive 48-hour lockdowns for the class A write ups, and Plaintiff
was purportedly not permitted an adversarial hearing for those write-ups. Id. at 96-97.
Plaintiff asserts that Defendant Gee was mistaken regarding both of the class A violations.
Id. at 97. Regardless, the Court notes that there is no evidence that Defendant Gee herself
made the decision not to permit Plaintiff an adversarial hearing in connection with the
punitive segregation he received. In fact, the only evidence is that Defendant Palmer was
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the person who made the decision to forego hearings in connection with punishment
imposed for class A violations, although inmates were permitted to use the grievance
system to contest this punishment. See Defs.’ Response to Pl.’s First Set of Discovery
Requests to Defendants (Second Set of Admissions, Third Set of Interrogatories),
Interrogatory #22 [#152-3] at 27 (“As the Commander of the Larimer County Jail [Defendant
Palmer] made the decision to revise the policy to permit for the more efficient handling of
disciplinary matters. Minor rule violations could be grieved by an inmate to the supervisor
on duty who could review and revise the sanction. Major rule violations are appealed
through professional standards. This ensures that the inmates were afforded due process
in the most timely and efficient way possible while permitting the jail to maintain control over
the facility.”).
Plaintiff’s official lockdown for the class A violations ended on March 6, 2017, but
because he was listed as “pending sanction” as a result of his request for a due process
hearing on the underlying events, Defendant Paloranta decided that Plaintiff had to remain
in punitive segregation until the hearing. Id. Defendant Paloranta told Plaintiff that the jail’s
policy is that time spent waiting for a disciplinary hearing does not count as time served
toward an eventual sanction, and therefore Plaintiff believes that his initial time spent in
segregation was “for nothing.” Id. A short time later, on April 14, 2017, Defendant
Paloranta placed Plaintiff on Ad Seg status. Id. at 98. Although unclear, it seems that
Plaintiff was still subject at this time to disciplinary/punitive segregation in addition to the
Ad Seg status. Id. at 98. Regardless, Plaintiff feels he was “coerced to waiving” his
hearing on this issue because he would be on segregation longer if he demanded a hearing
than if he did not. Id. at 98-99.
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Thus, Plaintiff appears to be complaining of two separate issues: (1) the lack of due
process before being punished in connection with the undefined “class A” violations, and
(2) the fact that an inmate is not permitted to progress through the three Ad Seg levels
while awaiting resolution of due process hearings in connection with punitive segregation
and other non-class A types of violations. Response [#152] at 30-33; Response [#152-1]
at 1.
However, Plaintiff has directed the Court to no case, and the Court has found none
through its own research, where (1) requiring an inmate to remain on Ad Seg status
pending a due process hearing, (2) not counting the time spent waiting in segregation
toward an eventual sanction, or (3) substituting a grievance process in place of a full
hearing for minor violations, has been deemed violative of a clearly established right. Thus,
even if the Court were to find that the evidence is sufficient to demonstrate the violation of
a constitutional right, Defendants Gee, Paloranta, and Palmer are still entitled to qualified
immunity on this claim in the absence of clearly established law.
Accordingly, summary judgment is entered in favor of Defendants on Claim Eleven.
f.

Claim Three

Plaintiff appears to assert three legal bases in connection with this claim: (1)
Fourteenth Amendment due process, (2) Fourteenth Amendment equal protection, and (3)
First Amendment. The Court addresses each in turn. Defendants Belinder, Berglund, and
Palmer appear to be named in connection with this claim, although none are mentioned by
name or specifically alluded to in Plaintiff’s Response. See [#152-1] at 1-6.
Plaintiff states that because he had ADC and not a public defender, his calls to his
attorney were not free while he was housed at LCJ. Am. Compl. [#46] at 24. Plaintiff
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states he grieved the issue with the solution of making ADC lawyer phone numbers free
to call. Id. at 25. Defendant Belinder told Plaintiff that “the solution would be no lawyer
calls would be free anymore and that the public defenders office would be taken off the free
phone list.” Id. Plaintiff states that Defendant Belinder “acknowledge[d] the way things
stood was unfair and unequal” but that “his solution at least would have made things equal
for all indigent inmates.” Id.
Defendant Belinder’s solution was never enacted, and so Plaintiff appealed to
Defendant Palmer on April 9, 2017. Id. On May 2, 2017, Defendant Palmer told Plaintiff
that “the solution was already in place that no inmate can use the recorded inmate phone
system to place free calls to their attorney,” and that “if inmates were calling their lawyers
for free that mistake had been corrected.” Id. The next day, Plaintiff wrote another inmate
request to Defendant Palmer, although it was “intercepted” by Defendant Berglund. Id.
The request stated that “inmates were still able to call the public defenders office for free,”
because Plaintiff had successfully done so while he was still charged for calling his ADC
counsel. Id. On May 22, 2017, Defendant Berglund responded telling Plaintiff to submit
the grievance on the proper form. Id. The next day, Plaintiff did so, submitting a grievance
to Defendant Palmer, stating that he had untruthfully been told that the issue had been
fixed regarding some inmates getting free calls to their lawyers while others could not do
so. Id. Defendant Palmer responded: “This matter is over. You have no more appeals in
this matter.” Id. Plaintiff asserts that both Defendant Palmer and Defendant Belinder lied
to him “about correcting the situation and ignored all subsequent attempt[s] to get them to
follow through with what they had said.” Id.
The main thrusts of Plaintiff’s claim here appear to be as follows. First, all inmates
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were not treated equally because those with public defenders could call their attorneys for
free while those with ADC counsel could not. Second, Plaintiff’s right to access the courts,
through access to his attorney, was violated when he did not have the funds to place calls
to his attorney. Third, and least clearly, Plaintiff seems to assert a due process claim in
connection with his efforts to get LCJ to either allow free inmate calls to ADC counsel or
eliminate free inmate calls to public defenders.
Regardless of whether this claim is construed under the Fourteenth Amendment’s
due process clause, the Fourteenth Amendment’s equal protection clause, the First
Amendment, or all three, Plaintiff has presented no legal authority demonstrating that any
of the actions taken by any of these three Defendants violated any of Plaintiff’s rights that
were clearly established at the time. Likewise, the Court has found no case finding a
clearly established right for an inmate to call his counsel for free.24 The Court has found
no case holding that the law is clearly established that all inmates must be able to contact
their counsel for free or else all inmates must be required to pay to contact their counsel.
The Court has found no case holding that the law is clearly established in connection with
LCJ’s grievance process utilized by Plaintiff regarding the free-calls issue. In the absence
of such clearly established rights, the Court finds that Defendants Belinder, Berglund, and
Palmer are entitled to qualified immunity on this issue.

24

The Court notes that there is no indication that Plaintiff was prevented from all
communication with his counsel, such as communication by mail or when Plaintiff’s counsel called
the jail instead. In fact, courts have found much greater restrictions may not rise to the level of a
constitutional violation. See, e.g., Hardesty v. Saline County Jail, No. 19-3211-SAC, 2020 WL
1547823, at *1-3 (D. Kan. Apr. 1, 2020) (holding that the plaintiff failed to adequately allege that the
jail staff prevented his access to the courts or caused him an actual injury even where the plaintiff
alleged that he was not allowed to call his attorney, that he was denied visitation rights, that he
could only contact his attorney by mail, and that he was charged for paper and envelopes).

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Accordingly, summary judgment shall enter in favor of Defendants on Claim Three.
g.

Claim Four

In his Response, Plaintiff frames this claim solely as a “Bounds right to assistance
claim,” referring to Bounds v. Smith, 430 U.S. 817 (1977), a case which merely
acknowledged “the (already well-established) right of access to the courts.” Lewis v.
Casey, 518 U.S. 343, 350-51 (1996); see [#152-1] at 6. Thus, Plaintiff appears to have
abandoned all aspects of this claim except those asserted under the First Amendment.
See Wooten, 377 F.3d at 1145. It is difficult to determine which Defendants are named in
this claim, because Plaintiff does not explicitly identify them in his Amended Complaint
[#46] and because Plaintiff does mention any specific Defendant in connection with this
claim in his Response [#152-1] at 6-8. However, all things considered, the Court construes
the claim as being asserted against Defendants Saults, Palmer, Ramirez, Berglund,
Paloranta, Mahoney, Villareal, and Lalicker, all of whom are mentioned at some point in
connection with this claim. Am. Compl. [#46] at 28-43.
In February or March 2016, when the mobile legal kiosk was in Plaintiff’s housing
unit, Defendant Saults told Plaintiff that, unless he was proceeding as a pro se litigant in
his lawsuits, he was only permitted to use the kiosk during his recreation time, meaning that
Plaintiff could not use the kiosk for more than an hour per day and that he must choose
between legal research and using the kiosk. Am. Compl. [#46] at 29-30. Plaintiff was not
a pro se litigant at this time, but he “wanted to assist in [his] criminal defense and research
any legal action” he could take. Id. at 29.
In August 2016, Defendant Saults and Defendant Ramirez decided that Plaintiff
could request supervisor approval to be given extra time to use the legal kiosk. Id. at 33.
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In July, August, and September 2016, most deputies would not permit additional legal
access time because the supervisors did not tell them of this “new rule.”25 Id. at 34.
Specifically, Defendants Paloranta and Mahoney would not permit Plaintiff any extra time
even when he had fulfilled his obligation to use all his allowed free time on legal work. Id.
Although his allegations are less than clear, Plaintiff also states that he was told by
Defendant Villareal on an unspecified date that, because he was pro se, he would have
priority to use the jail’s conference room for unspecified reasons (although apparently for
his legal work), but Plaintiff was never actually permitted to use the conference room when
any other “professional” needed the room. Id.
On September 29, 2016,26 Plaintiff was placed in punitive segregation, and
Defendant Ramirez said that if Plaintiff used all of the time out of his cell not meant for
cleaning and hygiene for legal research, he would be permitted more time. Id. at 34. From
September 29 to November 22, 2016, Plaintiff states that he had almost no exercise time
outside of his cell because he was forced to choose between his two rights, stating that he
had “definitely less than 5 hours a week [and] closer to 0-3 hours a week” of exercise. Id.
at 34-35.
Finally, Plaintiff asserts that, from March 29, 2017, to September 20, 2017,
Defendants Palmer, Ramirez, and Berglund placed Plaintiff in “de facto segregation” to stop
him from filing grievances and, therefore, from exhausting his administrative remedies,
25

The Court notes the partial contradiction here, in that Plaintiff asserts that he was not
permitted extra time in July 2016 pursuant to a “new rule” that was not in place until sometime in
August 2016.
26

Plaintiff’s statements here refer to “2017,” but this appears to be a clear misstatement
given that there is no dispute that Plaintiff was removed from the LCJ to a different facility on
September 20, 2017.

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thereby preventing Plaintiff from accessing the courts. Am. Compl. [#46] at 32.
In Lewis v. Casey, 518 U.S. at 350-51, the United States Supreme Court held that
the right of access to the courts was not a right guaranteeing access to a law library or to
legal assistance, but rather was the right to “the means for ensuring a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts.”
In other words, the right of access to the courts “guarantees no particular methodology but
rather the conferral of a capability—the capability of bringing contemplated challenges to
sentences or conditions of confinement before the courts.” Lewis, 518 U.S. at 356.
From March 29, 2017, to September 20, 2017, Defendants Palmer, Ramirez, and
Berglund’s placement of Plaintiff in “de facto segregation” stopped him from filing
grievances and, therefore, from exhausting his administrative remedies, thereby preventing
Plaintiff from accessing the courts. Am. Compl. [#46] at 32. However, Plaintiff has
provided no evidence of any specific injury or impact this “de facto segregation” had on any
particular lawsuit, which is fatal to his legal assistance claim. See, e.g., Simkins, 406 F.3d
at 1243-44 (recognizing a sufficient showing of actual injury where prisoner demonstrated
specific impact on prosecution of a particular case). To raise a claim for denial of access
to the court, Plaintiff must show that failure to apply the proper standard of care in
reviewing his grievances and permitting access to legal materials “resulted in ‘actual injury’
by ‘frustrating,’ or ‘hindering his efforts to pursue a nonfrivolous legal claim.’” Simkins v.
Bruce, 406 F.3d 1239, 1243 (10th Cir. 2005) (quoting Lewis, 518 U.S. at 351-53 (internal
brackets omitted)). Conclusory allegations of injury will not suffice. Cosco v. Uphoff, 195
F.3d 1221, 1224 (10th Cir. 1999).
The Court has found no case demonstrating that any actions similar to those taken
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by these Defendants violated a plaintiff’s clearly established rights. For example, the Court
has found no case acknowledging a clearly established constitutional right in connection
with an access-to-the-courts claim regarding (1) an inmate’s right not to have to choose
between recreation time and legal research time, (2) an inmate’s right to have “extra time”
approved for legal research if he fully uses his otherwise allotted legal research time, or (3)
an inmate’s right to have priority use of a jail facility’s conference room. Plaintiff argues that
many cases demonstrate his clearly established rights in this area, but the Court finds that
none are specific enough or comparable enough to the facts of this case to apply here.
Response [#152-1] at 6-8 (citing Johnson-El v. Schoemehl, 878 F.2d 1043, 1053 (8th Cir.
1989) (stating that one hour twice a week is inadequate time to research most legal
claims); Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir. 1980) (noting “some reservations”
about whether 2-3 hours per week is adequate time); Tillery v. Owens, 719 F. Supp. 1256,
1283 (W.D. Pa. 1984) (requiring a minimum of four hours per week of law library time per
inmate who wanted it), aff’d, 907 F.2d 458 (3rd Cir. 1990); Ramos v. Lamm, 485 F. Supp.
122, 166 (D. Colo. 1979) (holding that three hours of library time every four-to-six weeks
is insufficient), aff’d in part and rev’d in part, 639 F.2d 559 (10th Cir. 1980); Davis v.
Milwaukee County, 225 F. Supp. 2d 967, 967-77 (E.D. Wisc. 2002) (holding that having no
legal materials available to detainees is insufficient to meet constitutional requirements).
Thus, Defendants Saults, Palmer, Ramirez, Berglund, Paloranta, Mahoney, Villareal, and
Lalicker are entitled to qualified immunity on this claim.
Accordingly, summary judgment shall enter in favor of Defendants on Claim Four.
h.

Claim Nine

Claim Nine concerns “confiscation/destruction of legal papers” and is an
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“interference claim.” Response [#152-1] at 8. The Amended Complaint mentions the First,
Fourth, Fifth, and Fourteenth Amendments and could liberally be read as being asserted
against multiple Defendants. Am. Compl. [#46] at 65-67. However, Plaintiff here develops
argument only with respect to the First Amendment and Defendants Paloranta and Wulfert
and a September 2016 incident. Response [#152-1] at 8-9. The Court therefore finds that
Plaintiff has abandoned all other aspects of Claim Nine. See Wooten, 377 F.3d at 1145.
While Plaintiff was in punitive segregation in September 2016, Defendants Paloranta
and Wulfert searched his possessions and confiscated several folders of legal materials
which included purportedly exculpatory letters from Plaintiff’s co-defendants in the criminal
suit pending against them. Id. at 65-66. These items were never returned to him. Id. at
66. Plaintiff states he was found guilty at trial on July 27, 2017, of two counts of aggravated
robbery and one count of theft, but he states that the only evidence against him was a
recorded conversation from one of his co-defendants that could have been explained away
by the lost letters. Id.
Defendants argue that this claim is barred by Heck v. Humphrey, 512 U.S. 477
(1994), which holds that a claim for damages under § 1983 cannot be maintained if
granting such relief “would necessarily imply the invalidity of [a prisoner’s] conviction or
sentence” and the prisoner has not demonstrated “that the conviction or sentence has
already been invalidated.” Heck, 512 U.S. at 487.
Regarding the first Heck element, whether granting such relief would necessarily
imply the invalidity of Plaintiff’s conviction or sentence, the Court finds that it does. Plaintiff
explicitly states that “the only inculpatory evidence against me was [his co-defendant’s]
recorded conversation with an agent of the police that could have been explained” by the
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exculpatory letter his co-defendant wrote, which purportedly “apologized for telling other
inmates [Plaintiff] was involved and explained it was because he thought if he told a
different version of the story every time he could never get in trouble for it” and further
“went into detail about the lies he told during one such conversation that another inmate
recorded during a police operation,” so that Plaintiff could prove that his co-defendant had
been lying during the recorded conversation. Am. Compl. [#46] at 65-66. In his Response,
Plaintiff asserts that his “actual injury” here “is the deprivation of exculpatory letters that are
essential to a post-conviction proceeding.” Response [#152-1] at 9.
This case is similar to Harper v. Woodward County Board of County Commissioners,
No. CIV-11-996-HE, 2016 WL 4487701, at *6 (W.D. Okla. May 17, 2016), where the
inmate-plaintiff asserted that the prison official-defendant’s disposal of exculpatory
evidence had deprived him of his right of access to the courts. The plaintiff stated that the
destruction of evidence prevented him from being able to defend against the criminal
charges brought against him. Harper, 2016 WL 4487701, at *6. The court held that the
plaintiff’s claim was barred by Heck because the requested relief “would necessarily imply
the invalidity of [a prisoner’s] conviction or sentence.” Id.; Heck, 512 U.S. at 487. The
issue here is the same: Plaintiff argues that he was denied access to the courts because
exculpatory evidence was destroyed.
As for the second element of Heck, there is no evidence that Plaintiff’s conviction
or sentence has already been invalidated. Heck, 512 U.S. at 487. In fact, insofar as the
Court can discern from the briefs, Plaintiff’s criminal appeal is ongoing. The fact that
Plaintiff tries to frame this issue as concerning post-conviction proceedings rather than the
conviction itself is of no moment here. See, e.g., Maynard v. Casebolt, 221 F.3d 1352
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(Table), 2000 WL 1005265, at *3 (10th Cir. Jul. 20, 2000) (holding that a prisoner’s claim
that the defendants conspired to deprive him of records and transcripts necessary to
appeal his conviction necessarily implies the invalidity of the conviction; “[b]ecause [the
prisoner’s] conviction has not yet been invalidated, this claim is not cognizable under §
1983 and was properly dismissed under Heck”). Thus, because both requirements are met
for Heck to apply, Defendants are entitled to qualified immunity on this claim.
Accordingly, summary judgment shall enter in favor of Defendants on Claim Nine.
i.

Claim Ten

The precise legal basis for Plaintiff’s Claim Ten is unclear, but in the Amended
Complaint he asserts a “campaign of harassment/retaliation for protected conduct” under
the United States Constitution. See [#46] at 69. Plaintiff here develops argument only with
respect to the First Amendment and Defendants Wulfert, Ramirez, Palmer, Gee, and
Berglund. Response [#152-1] at 10-16. The Court therefore finds that Plaintiff has
abandoned any other aspects of Claim Ten. See Wooten, 377 F.3d at 1145.
Plaintiff may prove retaliation by showing the following: “(1) that the plaintiff was
engaged in constitutionally protected activity; (2) that the defendant’s actions caused the
plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.”
Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). In connection with the
third element, Plaintiff must show that “but for the retaliatory motive, the incidents to which
he refers, including the disciplinary action, would not have taken place.” Turner v. Falk, 632
F. App’x 457, 460 (10th Cir. 2015).
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In his Response, Plaintiff breaks down this claim into two purported acts of
retaliation. See [#152-1] at 10-16. First, Plaintiff argues that Defendant Gee impermissibly
retaliated against him for helping other inmates with their legal work by confiscating
Plaintiff’s legal work and bringing disciplinary charges against him. Id. at 1012. On March
2, 2017, Defendant Gee wrote up Plaintiff for having legal notes and documents he was in
the process of creating for another inmate. Am. Compl. [#46] at 71. Plaintiff states the
documents were solely originals which he was creating for the other inmate’s civil rightsrelated litigation, but that technically the documents still belonged to Plaintiff and were kept
in Plaintiff’s folder labeled with a parody of the other inmate’s name. Pl.’s Ex. G [#152-8]
at 11. The disciplinary report states that Defendant Gee and another jail official were
searching Plaintiff’s belongings when they “uncovered that he had excess laundry, excess
books, three pairs of reading glasses, and [another inmate’s] legal paperwork,” which
violated the Inmate Handbook’s prohibitions on contraband and the transfer of property
such as legal paperwork. Defs.’ Ex. C [#144-3] at 16. The report further states that Plaintiff
“is well aware of the rules concerning contraband and transferring property. He will be
sanctioned.” Id. Plaintiff’s Jail – Inmate Discipline record indicates that Plaintiff was written
up for (1) making unnecessary noise, (2) profanity/derogatory remarks or gestures, (3)
having or attempting to obtain contraband, and (4) buying, selling, or transfer of property.
Defs.’ Ex. H [#144-8] at 4-5. Plaintiff states he was put in segregation as a result of the
legal work he was creating for the other inmate. Am. Compl. [#46] at 71.
Plaintiff asserts that he has a constitutional right to help other inmates with their legal
work. Response [#152-1] at 10-12. This is incorrect. “A retaliation claim does not arise
. . . when the underlying activity is the plaintiff’s legal assistance to other inmates, because
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a prisoner ‘does not have a protected interest in providing legal representation to other
inmates.’” Baughman v. Saffle, 24 F. App’x 845, 849 (10th Cir. 2001) (quoting Smith v.
Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). “As Baughman [v. Saffle] makes clear,
because helping other inmates is not a constitutionally-protected activity, a prison officer
can permissibly take adverse actions against the inmate because of such conduct.”
Peoples v. Baker, No. 17-cv-00776-MSK-NYW, 2019 WL 1200834, at *6 (D. Colo. Mar. 13,
2019); see also Shepard v. Rangel, No. 12-cv-01108-RM-KLM, 2014 WL 7366662, at *20
(D. Colo. Dec. 24, 2014) (“However Plaintiff attempts to spin this argument, the facts pled
in Plaintiff's Amended Complaint indicate that this ‘association’ took the form of legal
assistance. Even if the alleged retaliation arose from Plaintiff’s association, the Court
declines to find that a retaliation claim is viable when the underlying activity is an inmate’s
legal assistance to other inmates.”). In a case similar to this one, the Tenth Circuit Court
of Appeals held: “While [the plaintiff’s] complaint suggests that he was placed in
segregation in retaliation for his advocacy efforts on behalf of other inmates, this Court has
made clear that an inmate does not have a protected interest in providing legal
representation to other inmates.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.
1998).27
Plaintiff provides a list of cases, almost all out-of-circuit, which he contends shows

27

There may be some very limited exceptions to this rule, none of which have been argued
here or appear to be supported by the evidence. See Smith, 899 F.2d at 950 (requiring a showing
that “other inmates were deprived of access to the courts, or unduly hindered in the pursuit of their
own legal remedies”). Plaintiff does say that the inmate he was helping, though “not illiterate,” was
“almost completely ignorant of the law” and had been denied use of the jail’s law kiosk, but this
alone is a far cry from being totally deprived of access to the courts or being unduly hindered in the
pursuit of his legal remedies. Am. Compl. [#46] at 72-73.

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that the right to help other inmates with their legal work is a clearly established right.
Response [#152-]1 at 11.

Even if he is correct (about which the Court makes no

comment), the law of the Tenth Circuit is binding on this Court’s decisions and must be
followed rather than any persuasive authority from any other circuit. The only Tenth Circuit
case Plaintiff cites is Frazier v. Dubois, 922 F.2d at 561-62, which held that an inmate may
not be transferred between prison facilities based solely on retaliation for the exercise of
his First Amendment rights. That case, alone, does not demonstrate that Plaintiff’s
retaliation claim based on helping another inmate is a constitutionally protected right.
Therefore, Defendant Gee is entitled to qualified immunity.
The Court next turns to the purportedly retaliatory act(s) asserted by Plaintiff in
connection with Defendants Wulfert, Ramirez, Palmer, and Berglund. Response [#152-1]
at 10-16. This claim stems from events originating in late March 2017, a few weeks after
the events described in connection with Defendant Gee. See id. at 12. On March 18,
2017, Plaintiff wrote an inmate kite “offering to help inmates with basic legal
issues/research.” Am. Compl. [#46] at 72. On March 22, 2017, he received a response
from a non-party jail official telling him that “being a jailhouse lawyer” was not in his “best
interest.” Id. at 73. On March 29, 2017, Plaintiff received two responses to his step one
grievances concerning LCJ’s Ad Seg, Red Tag, and punitive segregation policies. Id. The
responses were written by Defendant Ramirez, which Plaintiff characterizes as
“extraordinary” because he was typically the responder for step four grievances. Id.;
Response [#152-]1 at 12. Very shortly afterward on the same day, Plaintiff was transferred
to the WCB housing pod area “that has been used for segregation almost exclusively since
the housing area has been open.” Am. Compl. [#46] at 73. At the time of his transfer to
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WCB, Plaintiff was the only inmate in that housing pod, although that lasted for only about
a week. Pl.’s Ex. B [#152-3] at 11; Pl.’s Ex. G [#152-8] at 5. However, Mr. Williams was
located in WCA, a separate pod in the same housing area, from which he could be seen
and heard by Plaintiff, despite the physical barriers between pods, and Mr. Williams “again
exhibited the same types of behaviors toward” Plaintiff. Id. at 73-74; Response [#152-1]
at 12; Pl.’s Ex. G [#152-8] at 3. Plaintiff believes this violated the keep separate order that
was in place. Am. Compl. [#46] at 74. However, despite the fact that Plaintiff could see
and hear inmates in this adjoining pod, he complains that his placement in WCB was
intended to make him “the most segregated isolated inmate in LCJ” because he was the
only inmate in WCB at the time. Response [#152-1] at 13; Pl.’s Ex. B [#152-3] at 11.28
Although the Court liberally construes Plaintiff’s Response as continuing to assert
this claim against Defendants Wulfert, Palmer, Berglund, and Ramirez, the evidence
provided demonstrates that only Defendant Ramirez and/or Defendant Palmer took any
action, retaliatory or not, with respect to this aspect of Plaintiff’s claim. See [#152-1] at 1216. In his Response, Plaintiff makes only the following statements about Defendants
Wulfert and Berglund. First, without citation to evidence, Plaintiff states: “Defendant Wulfert
say[s] the plaintiff was placed there [in WCB] for giving legal advice.” Id. at 15. Second,
Plaintiff states: “Defendant Berglund told [a fellow inmate] that he could not be placed in
WCB because it was used as special housing to segregate inmates.” Id. (citing Pl.’s Ex.
M2 [#152-14]). Neither of these statements show that either of these Defendants made the
decision to place Plaintiff in WCB or otherwise took purportedly retaliatory actions against

28

Plaintiff also cites to his Exhibit O [#152-16] here, but this document, which involves an
October 1, 2015 incident, appears to have nothing to do with the events underlying this claim.

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him. Therefore, Defendants Wulfert and Berglund are entitled to qualified immunity on this
claim.
The evidence regarding Defendants Ramirez and Palmer is somewhat intertwined,
thus the Court addresses it collectively. In his Response, Plaintiff does not direct the
Court’s attention to evidence that Defendant Palmer took the purportedly retaliatory action.
In fact, Plaintiff’s only mention of Defendant Palmer is an unsupported statement that “[t]he
reason Defendant Palmer says the defendant [sic] was put into WCB is a recitation of why
an inmate would be put in administrative segregation.” [#152-1] at 14. However, in a
statement provided during discovery, Defendant Ramirez states: “[Defendant] Palmer
directed me to have Plaintiff Janny moved to the West Charlie area.” Pl.’s Ex. B [#152-3]
at 34. In connection with this incident, Defendant Palmer states, without saying that he
made the decision: “Inmate Janny had a history of being quite disruptive in the facility. To
reduce disruption of the facility while still allowing inmate Janny the ability to attend
programming, inmate Janny was moved into a pod with a small population.” Id. at 33.
Defendant Ramirez further states:
I understood this move to be predicated on Plaintiff Janny was filing [sic]
multiple grievances that were keeping staff from supervising the area
appropriately and he was abusing the grievance procedure. Plaintiff Janny
was convincing other inmates in the areas that he was housed to file
unsubstantiated grievances which were intended to overburden the staff
when the multiple inmates would argue with staff. Plaintiff Janny was
creating an environment that was not a safe work environment, [and] inmates
in the area were becoming confrontational.
Plaintiff Janny was grieving that he was not getting enough time with the prose computer, in the areas he was housed, to work on his criminal case and
making references that his access to the courts was being blocked because
of his limited access. Due to the large number of inmates in the areas where
he was housed and competing with these inmates for the limited resources
in the area, Plaintiff Janny was moved to a smaller housing area, in order to
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facilitate more time for Plaintiff Janny to work on the pro-se computer without
impeding his court access.
Id. at 34.
In his Response, Plaintiff states the following about Defendant Ramirez: (1) “On
3/29/17 the plaintiff received two step one grievance responses from Defendant Ramirez,
a step four grievance responder which in itself is extraordinary, [and] within a half hour the
plaintiff was transferred to WCB.” Response [#152-1] at 12 (without citation to evidence).
(2) Defendant Ramirez “documented in jail reports the placement was not for filing
grievances but swore under oath in his interrogatories [that] the plaintiff’s placement in
WCB was for filing grievances.” Id. at 13 (without citation to evidence but apparently
referring to Plaintiff’s Exhibit B [#152-3] at 34, cited in relevant part above). (3) “Defendant
Ramirez admits [that Plaintiff] was placed in WCB because of the plaintiff filing grievances
(in his interrogatory response not the jail behavior reports where he denies the same).”
Response [#152-1] at 15 (again, without citation to evidence but apparently referring to
Plaintiff’s Exhibit B [#152-3] at 34, cited in relevant part above). It is unclear which “jail
behavior reports” Plaintiff is referring to here, but he may be referring to a report dated
March 31, 2017, in which Defendant Ramirez stated:
Inmate Mark Janny will be housed in the West Charlie Bravo pod on general
population/rotational lockdown status. Inmate Janny will remain on general
population status with full access to programs, commissary and other
privileges afforded to general population inmates. I spoke with inmate Janny
and informed him of his housing area and Inmate Janny was concerned that
he was placed on Administrative Segregation status for his current sanction.
I informed him that he has not been placed on administrative segregation and
he will be housed in a general population housing area, currently West
Charlie Bravo, as long as he is behavioral appropriate.
Defs.’ Ex. C [#144-3] at 23.
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Regarding the second element of a retaliation claim, the Court notes that simply
being transferred to a less desirable housing unit, without more, is insufficient to
demonstrate an “adverse action.” See, e.g., Hunnicutt v. DeSantiago, __ F. Supp. 3d __,
__, No. CIV 18-0889 JB/JFR, at *8 (D.N.M. Sept. 26, 2019). However, for purposes of this
discussion, the Court assumes, without so holding, that the specific circumstances
presented, including transfer to a housing unit that was typically used for administrative
segregation, being the only inmate in that housing unit for a week, and being subjected to
Mr. Williams’s taunts from the adjoining housing pod, do constitute adverse actions
sufficient to meet the second element of a retaliation claim.
Turning to the third element, Plaintiff must show that his filing of grievances was the
“but-for” cause of his placement in WCB. See Turner, 632 F. App’x at 460. Defendants
argue that Plaintiff has failed to produce evidence that, “but for the retaliatory motive,”
Plaintiff would not have been moved to WCB. See id. At the outset, the Court notes that
the evidence recited above is circumstantial regarding whether Defendant Ramirez made
the decision to place Plaintiff in WCB; the only direct evidence, from Defendant Ramirez,
is that Defendant Palmer made the decision.
The Court agrees with Plaintiff to the extent that there is an issue of fact regarding
whether Plaintiff’s filing of grievances played a role in his transfer to WCB. Indeed,
Defendant Ramirez explicitly admits that the filings were part of the reason the transfer was
made: “I understood this move to be predicated on Plaintiff Janny was filing [sic] multiple
grievances . . . .” Pl.’s Ex. B [#152-3] at 34. Further, generally, the LCJ policy to keep an
inmate from abusing the grievance process is simply to limit him to one grievance per 30
days for up to 60 days if, after a written warning, the inmate continues to abuse the
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grievance process. Response [#152] at 17; Reply [#155] at 12.
However, even if Plaintiff’s filing of grievances was part of the reason for his move
to WCB, Defendants have provided unrebutted evidence that this was not the “but for”
reason that Plaintiff was moved to a different housing unit. Plaintiff must provide some
evidence that creates a genuine issue of material fact by undermining or otherwise bringing
into doubt Defendants’ alternative justifications. See, e.g., Mata v. Douglas, No. 2:15-cv00575, 2018 WL 4688347, at *8-9 (D. Utah Sept. 28, 2018) (discussing the plaintiff’s failure
to provide evidence undermining the defendants’ non-retaliatory justifications for a search
of the plaintiff’s cell and the issuance of a drug charge: “[t]he search was routine, his cell
was randomly chosen, and a suspicious substance was found”). Without such evidence,
Plaintiff’s belief that his transfer to WCB was retaliatory becomes “conjectural and
conclusory” and is insufficient “to create a genuine issue of fact concerning [a] First
Amendment retaliation claim.” Strope v. Cummings, 381 F. App’x 878, 883 (10th Cir.
2010); Banks v. Katzenmeyer, 645 F. App’x 770, 774 (10th Cir. 2016).
Defendants provide three alternative justifications for moving Plaintiff to WCB. First,
Defendant Ramirez states: “I understood this move to be predicated on Plaintiff Janny was
filing [sic] multiple grievances that were keeping staff from supervising the area
appropriately and he was abusing the grievance procedure.” Pl.’s Ex. B [#152-3] at 34.
Abuse of the grievance process alone is a permissible non-retaliatory reason for taking
adverse action against an inmate. For example, in Ayers v. Uphoff, 1 F. App’x 851, 855
(10th Cir. 2001), an inmate-plaintiff asserted that the prison official-defendants violated his
First Amendment rights by retaliating against him for filing prisoner grievances. The Tenth
Circuit noted that “the record reveals that, despite numerous warnings from prison officials,
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plaintiff continually abused the prison’s grievance procedures by filing multiple and
overlapping grievances and by making excessive demands on the prison’s staff.” Ayers,
1 F. App’x at 856. The Tenth Circuit held: “Given this unopposed evidence, we believe that
the limitations placed on plaintiff’s use of the prison’s grievance procedures were justified
and reasonable under the circumstances and did not amount to a violation of plaintiff’s First
Amendment rights.” Id. Here, the record is not clear on the precise number of grievances
filed by Plaintiff up to this point, i.e., late March 2017. However, it is clear that Plaintiff
submitted roughly 200-300 grievances and appeals between February 8, 2016, and
September 20, 2017, the span of time he spent at LCJ, a substantial number of which had
been filed by late March 2017. Depo. of Pl. [#144-2] at 141-43. Plaintiff does not direct the
Court’s attention to evidence undermining this justification for Defendants’ action.
Second, Defendant Ramirez states that “Plaintiff Janny was convincing other
inmates in the areas that he was housed to file unsubstantiated grievances which were
intended to overburden the staff when the multiple inmates would argue with staff.” Pl.’s
Ex. B [#152-3] at 34. He further states: “Plaintiff Janny was creating an environment that
was not a safe work environment, [and] inmates in the area were becoming
confrontational.” Id. Plaintiff does not direct the Court’s attention to evidence undermining
this justification for Defendants’ action either. See, e.g., Evans v. Schnurr, No. 18-3193JWB, 2020 WL 1547818, at *5-6 (D. Kan. Apr. 1, 2020) (holding that the “but-for” element
was not met where the defendant provided unrebutted evidence that the plaintiff was
moved to different housing because he was “a security risk to the female staff working” in
his original housing area).
Third, Defendants state that the move was predicated, at least in part, “in order to
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facilitate more time for Plaintiff Janny to work on the pro-se computer without impeding his
court access,” in response to Plaintiff’s grievances on this issue. Pl.’s Ex. B [#152-3] at 34.
Again, Plaintiff does not direct the Court’s attention to evidence undermining this
justification for Defendants’ action. See, e.g., Ellis v. Bryant, No. CIV-18-1092-D, 2019 WL
5460697, *6-7 (W.D. Okla. Oct. 7, 2019) (holding that the “but-for” element was not met
where the defendant provided unrebutted evidence that the purportedly retaliatory act of
confiscating plaintiff’s property was at least in partial response to resolving a bedbug
infestation issue raised by the plaintiff himself to prison officials).
In short, Plaintiff must explain why the complained-of acts “were not ordinary,
legitimate prison practices,” Reed v. Heimgartner, 579 F. App’x 624, 627 (10th Cir. 2014),
and “evidence of temporal proximity is insufficient to establish a retaliatory motive when
independent evidence demonstrates a non-retaliatory motive.” Smith v. Abalos, No. 16-cv00188-CMA-NRN, 2019 WL 926919, at *4-5 (D. Colo. Feb. 26, 2019) (citing Dawson v.
Audet, 636 F. App’x 753, 758 (10th Cir. 2016)). In fact, this case is similar to Ortiz v.
Torgensen, No. 2:17-CV-328 TC, 2019 WL 1376837, at *9-10 (D. Utah Mar. 27, 2019),
where the court stated:
Plaintiff did argue time correlation and he has produced undisputed facts that
Defendants . . . stated that his propensity to file grievances was a reason for
moving him. Still, Defendants’ explanations for their actions carry the day.
Plaintiff has not shown that strictly “but for” a retaliatory motive Defendants
would not have moved him to more restrictive housing with its consequent
loss of privileges and property confiscation. He may even have shown that
retaliation for filing grievances played a role in moving Plaintiff to more
restrictive housing but he failed to show that such retaliation was the decisive
factor.
(internal quotation marks omitted) (citing Banks, 645 F. App’x at 772; Strope, 382 F. App’x
at 710). As a result, the Court finds that the third element of a retaliation claim is not met,
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and Defendant Ramirez and Defendant Palmer are entitled to qualified immunity.29 See
McBeth v. Himes, 598 F.3d 708, 719 (10th Cir. 2010) (“If there is a finding that retaliation
was not the but-for cause of the adverse action, the claim fails for lack of causal connection
. . . despite proof of some retaliatory animus in the official’s mind.”) (alterations and
quotation marks removed).
Accordingly, summary judgment shall enter in favor of Defendants on Claim Ten.
j.

Claim Twelve

The precise legal basis for Plaintiff’s Claim Twelve is unclear, but, in the Amended
Complaint [#46], Plaintiff generally points to “retaliation, harassment, false imprisonment,
malicious prosecution, procedural due process violation, and frustrated/hindered legal
claims.” See Am. Compl. [#46] at 100. While Defendants move for entry of summary
judgment in their favor on this claim in full, Plaintiff’s Response develops argument solely
with respect to First Amendment retaliation and Defendants Ramirez and Smoyer. See
[#152-1] at 16-18. Thus, the Court finds that Plaintiff has abandoned all other aspects of
Claim Twelve. See Wooten, 377 F.3d at 1145.
On or close to November 14, 2016, Defendant Ramirez and other jail officials told
Plaintiff that he “was able to use anything [he] could access” on the new pro se computer
because it would only allow access to what inmates were permitted to access. Pl.’s Ex. G
[#152-8] at 7. On August 18, 2017, several jail officials searched Plaintiff’s cell for his flash

29

In addition, the Court notes that, while Plaintiff has a clearly established right not to be
subjected to retaliation solely because of his use of the grievance system, the Court has found no
case showing a clearly established right when taking into account the unrebutted facts underlying
this claim and taking all other facts in a light most favorable to Plaintiff. Thus, Defendants are
entitled to qualified immunity on the clearly established prong of the analysis as well.

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drive on which he had been saving pictures he had taken with this jail computer. Am.
Compl. [#46] at 100. Two deputies not named in this lawsuit confiscated the flash drive,
which also included some of Plaintiff’s legal documents. Pl.’s Ex. G [#152-8] at 9.
On August 30, 2017, Plaintiff purportedly “used the jail’s legal mail system to mail
the complaint in this case to get [his] flash drive back.” Pl.’s Ex. G [#152-8] at 9. On
August 31, 2017, Defendant Ramirez met with Plaintiff, telling him he would have the flash
drive inspected, destroy any files that Plaintiff was not permitted to have, print anything else
Plaintiff needed printed off of it, allow him to send the flash drive home, and allow Plaintiff
to obtain a second, different flash drive for his future work. Am. Compl. [#46] at 103-04.
Defendant Ramirez also told Plaintiff that he would be receiving a ten-day sanction for
abusing the pro se inmate computer on August 18, 2017, despite the fact that LCJ’s
disciplinary procedures “ do not allow for rule violations to be brought outside of 7 business
day(s) after the incident,” according to Plaintiff. Pl.’s Ex. G [#152-8] at 9.
On September 5, 2017, Plaintiff spoke with Defendant Smoyer about the charges
brought against him, including the procedural seven-business-days issue. Id. at 10.
Defendant Smoyer immediately went to a computer to follow-up on Plaintiff’s complaint,
and the next day when Plaintiff had his hearing, the dates on the disciplinary report had
been changed. Id. In support of this statement, Plaintiff points to copies of the Jail Incident
- Hearing Report for Incident Number 170003055 as evidence that the reports were
falsified. Am. Compl. [#152] at 22. A copy printed on August 31, 2017, lists the Incident
Date/Time as August 18, 2017. See Pl.’s Ex. R [#152-19] at 1. On a copy printed
September 6, 2017, the Incident Date/Time was amended to August 31, 2017. Id. at 2.
Defendants admit that the dates are different but “deny any inference that they were
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intentionally altered for any unlawful purpose.” Reply [#155] at 13. Plaintiff was found
guilty at the disciplinary hearing and, in total, was not permitted to leave his housing pod
for seventeen days. Am. Compl. [#46] at 104-05.
“Prison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his right of access to the courts.” Smith, 899 F.2d at 947 (describing
a prison official’s retaliation after inmate had filed grievances against the prison official).
“It is well established that an act in retaliation for the exercise of a constitutionally protected
right is actionable under . . . Section 1983 even if the act, when taken for a different reason,
would have been proper.” Id. at 948. However, the plaintiff must show “specific facts
showing retaliation because of the exercise of the prisoner’s constitutional rights.”
Peterson, 149 F.3d at 1144 (internal quotation marks omitted) (emphasis in original).
Plaintiff asserts that “[c]onspiratorial planned disciplinary actions violate the 1st
Amendment and are clearly established violations.” Response [#152-1] at 18 (citing
Milhouse v. Carson, 652 F.2d 371, 373 (3d Cir. 1981) (“We read appellant’s complaint as
alleging that he was subjected to a conspiratorially planned series of disciplinary actions
as retaliation for initiating a civil rights suit against prison officials. Such allegations, if
proven at trial, would establish an infringement of [appellant’s] first amendment right of
access to the courts.”); Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (“The law of this
circuit is clearly established . . . that a prison official may not retaliate against . . . an inmate
. . . for complaining to a supervisor about a guard’s misconduct. [The plaintiff] established
a ‘chronology of events’ showing retaliatory motive on the part of defendant . . . , as the
disciplinary charge filed by [defendant] was accompanied by [the plaintiff’s] ‘letter of
resolution’ in which he accused [defendant] of misconduct and lying.”).
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First, the Court notes that there is no evidence of any conspiracy between
Defendants Ramirez and Smoyer regarding any action, beyond Plaintiff’s speculative
statement, which is clearly insufficient.

See Bones, 366 F.3d at 875 (stating that

conclusory statements based merely on conjecture, speculation, or subjective belief are not
competent summary judgment evidence).

Second, even if Defendant Smoyer

impermissibly changed the date on the disciplinary report, there is no direct or even
circumstantial evidence that he knew that Plaintiff was planning to file or had actually filed
his lawsuit the day before. See, e.g., Pfeil v. Lampert, 11 F. Supp. 3d 1099, 1118-19 (D.
Wyo. 2014) (“Moreover, [the prison official] was unaware of any lawsuit filed by Plaintiff at
the time he was placed in his job [, i.e., the asserted adverse action]. There simply is no
evidence to support that Plaintiff was retaliated in his job placement as a result of this
lawsuit.” (internal citation omitted)). Without such evidence, the Court cannot find that
Defendant Smoyer’s actions were taken in response to the filing of the lawsuit. See
Friedman v. Kennard, 248 F. App’x 918, 922 (10th Cir. 2007) (“Standing alone and without
supporting factual allegations, 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.”).
Thus, the Court turns to the claim as it concerns Defendant Ramirez. Regarding the
first element, i.e., whether the plaintiff was engaged in constitutionally protected activity,
the answer is clearly yes, because filing a lawsuit is a constitutionally protected activity.
Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir. 2007); see also Handy v. Douglas,
No. 14-cv-01930-WYD-MEH, 2016 WL 11383923, at *8 (D. Colo. Jan. 5, 2016) (holding
that a demonstrated intent to file is also sufficient to meet this element).
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Regarding the second element, Plaintiff must show that Defendant Ramirez’s actions
would chill an ordinary person from continuing to file lawsuits. Shero, 510 F.3d at 1203.
“[A]lthough certainly not dispositive, persistence in speech is some evidence that the
defendant’s actions would not prevent such speech.” Washington v. Martinez, No. 19-cv00221-MEH, 2020 WL 209863, at *6 (D. Colo. Jan. 14, 2020) (citing Smith v. Plati, 258
F.3d 1167, 1177 (10th Cir. 2001) (“[The plaintiff’s] persistence in maintaining his website
offers some evidence that [the defendant’s] actions did not prevent such private speech.”);
How v. City of Baxter, 217 F. App’x 787, 798 (10th Cir. 2007) (holding that the defendant
was entitled to qualified immunity on the plaintiff’s First Amendment retaliation claim, in
part, because the plaintiff “continued to exercise his First Amendment rights thereafter . .
. .”)). There is ample evidence that Plaintiff heavily grieved and litigated various issues and
lawsuits throughout his time at LCJ. However, the purportedly retaliatory action here
occurred on August 31, 2017, and Plaintiff was transferred from LCJ on September 20,
2017. The parties have not directed the Court’s attention to any lawsuits, or even any
grievances, that were filed by Plaintiff between August 31, 2017, and September 20, 2017,
although there is some evidence that Plaintiff spent significant time using the legal kiosk
on September 6, 14, and 15. Defs.’ Ex. C [#144-3] at 43-44. However, in the absence of
any other evidence on this point, the Court finds that this, standing alone, provides no more
than a scintilla of evidence to support the conclusion that the disciplinary action taken
against Plaintiff would not dissuade a person of ordinary firmness from continuing to
engage in the protected conduct of filing lawsuits. See, e.g., Penrod v. Zavaras, 94 F.3d
1399, 1404 (10th Cir. 1996) (finding retaliation when prison officials transferred the inmate
to administrative segregation and threatened him with further retaliation if he continued
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complaining).
Along with the uncontested disciplinary action resulting in Plaintiff’s segregation,
Defendant Ramirez also told Plaintiff that “any file the jail does not want [Plaintiff] to have
will be destroyed” and that Plaintiff would “not be present during this screening and
tampering nor [would] any lawyer of [Plaintiff’s].” Am. Compl. [#46] at 102-03. “Retaliation
for exercising that right that includes the destruction of legal papers and being wrongfully
placed in segregation would ‘chill’ a person of ordinary firmness from continuing to file
lawsuits.” Wilson v. Johnson, No. 19-cv-02279-CMA-NRN, 2020 WL 1875148, at *9 (D.
Colo. Apr. 15, 2020) (citing Banks v. Katzenmeyer, 645 F. App’x 770, 773 (10th Cir. 2016)
(“The allegation of multiple ‘fabricated’ write-ups within a short period of time presents a
sufficient allegation of injury to satisfy the ‘chill’ test.”). Thus, the Court finds that the
second element of a retaliation claim is met.
The third element requires evidence showing that Defendant Ramirez’s adverse
action was substantially motivated as a response to Plaintiff’s exercise of constitutionally
protected conduct. Shero, 510 F.3d at 1203. Plaintiff must show that “but for the retaliatory
motive, the incidents to which he refers, including the disciplinary action, would not have
taken place.” Turner, 632 F. App’x at 460.
Here, the evidence is that Plaintiff’s flash drive with all his legal materials on it,
including a draft copy of his complaint for this lawsuit, was confiscated on August 18, 2017.
Am. Compl. [#46] at 100. He was told by the two non-party jail officials who confiscated
it that he was “not in any kind of disciplinary trouble” and that he “had done nothing wrong.”
Id. Partially as an attempt to get his flash drive back, Plaintiff mailed his complaint in this
lawsuit on August 30, 2017. Id. at 102. Plaintiff states that, during his August 31, 2017
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conversation with Defendant Ramirez, “[m]ost of the things he told me addressed what I
had alleged (facts helping my case such as no disciplinary action being taken) or asked for
in the complaint I had submitted the previous night.” Id. at 103. Plaintiff then states that
Defendant Ramirez “smirked and told me he would answer none of my questions and if I
wanted anything to get it through litigation.” Id. Thus, there is some evidence, when seen
in a light most favorable to Plaintiff as the nonmovant, that Defendant Ramirez knew that
Plaintiff had filed a lawsuit and what the substance of that lawsuit concerned.
Further, the evidence shows, during that same meeting, Defendant Ramirez told
Plaintiff that he would be written up and given a sanction, despite the fact that Plaintiff had
been told (albeit by two other jail officials) two weeks earlier that he would not be
sanctioned because he had done nothing wrong, and despite the fact that, under the jail’s
own policy, the time had expired to take disciplinary action against Plaintiff: the flash drive
was confiscated on August 18, 2017, and seven business days later was August 29,
2017.30 Am. Compl. [#46] at 100; Defs.’ Ex. D, Policy Manual [#144-4] at 23 (stating that
the Disciplinary Hearing Board “resolve[s] cases of major and serious rule violations, and
. . . hear[s] inmates’ appeals of minor violation hearing decisions”), 24 (“The hearing must

30

There appears to be an issue of fact here not adequately addressed by the parties as to
when, under the Policy Manual, the seven-day limitation to bring disciplinary action against Plaintiff
began. On the one hand, when taken in a light most favorable to Plaintiff as the Court must, the
clock began to run the day that the flash drive was confiscated, August 18, 2017. On the other
hand, it seems clear that having the flash drive alone was not against the rules, and so the clock
may have begun running on the unidentified date when the flash drive was reviewed by jail officials
and any purported violation in its contents was discovered, which may have been much later. In
fact, there is at least a scintilla of evidence that the flash drive had not yet been reviewed at the time
of the meeting between Defendant Ramirez and Plaintiff at about 2:00 p.m. on August 31, 2017.
See Am. Compl. [#46] at 102-03 (stating that Defendant Ramirez told Plaintiff that “he will have my
flash drive inspected and that any file the jail does not want me to have will be destroyed” and that
Plaintiff “will not be present during this screening” (emphases added)).

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be scheduled as soon as practicable but no later than 7 days, excluding weekends and
county holidays, after the alleged violation. If the hearing is postponed or continued for a
reasonable period and for good cause, it must be documented in writing.”). In other words,
given that the time to bring disciplinary action against Plaintiff regarding the flash drive had
apparently expired, a reasonable jury could find that the only reason Plaintiff was
disciplined was because of the exercise of his constitutional right of access to the courts.31
In addition, as noted above, a temporal proximity between a plaintiff’s protected
action and a jail official’s disciplinary action is, standing alone, insufficient to meet this
element, but a temporal proximity must usually be present in conjunction with the other
evidence, especially when the claim is based on circumstantial evidence of retaliation. See
Friedman, 248 F. App’x at 922. Here, however, that is easily met, given that Plaintiff’s
asserted action took place on August 30 and the asserted retaliatory action took place on
August 31. See, e.g., Gee, 627 F.3d at 1189 (holding that the “but for” requirement was
satisfied where the inmate’s complaint alleged that the defendants were aware of his
protected activity, that the inmate complained of their actions, and the retaliatory action was
in close temporal proximity to the protected activity).
Thus, in short, the Court finds that Plaintiff has done more than assert his “personal
belief that he is a victim of retaliation.” Jones v. Greninger, 188 F.3d 322, 325 (5th Cir.
1999). The evidence, when seen in a light most favorable to Plaintiff as the nonmovant,
shows that Defendant Ramirez knew that Plaintiff had filed a lawsuit against the jail and
then took disciplinary action against him based on an “expired” violation of jail rules.

31

The Court notes that there appears to be no evidence that written notice of continuance
of the hearing was ever provided to Plaintiff.

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Finally, the Court finds that Plaintiff’s rights here were clearly established. “The
constitutional right to be free from retaliation for the exercise of first amendment rights [is]
clearly established. It is well settled that prisoners cannot be retaliated against when they
exercise their First Amendment rights.” Allen v. Avance, 491 F. App’x 1, 6-7 (10th Cir.
2012) (citing Smith, 899 F.2d at 947-48; Gee, 627 F.3d at 1189 (“It is well-settled that
prison officials may not retaliate against or harass an inmate because of the inmate’s
exercise of his right of access to the courts.”); Fogle v. Pierson, 435 F.3d 1252, 1264 (10th
Cir. 2006) (“[I]f in fact DOC officials retaliated against [the plaintiff] based on his filing
administrative grievances, they may be liable for a violation of his constitutional rights.”);
Peterson, 149 F.3d at 1144 (“We have held that prison officials may not retaliate against
or harass an inmate because of the inmate’s exercise of his constitutional rights.”); Penrod,
94 F.3d at 1404-05 (“[I]t is well established that prison officials . . . may not harass or
retaliate against an inmate for exercising his right . . . to petition the Government for
redress of . . . grievances.”)).
Accordingly, summary judgment is entered in favor of Defendants on Claim Twelve
except for Defendant Ramirez. The Motion [#144] is denied with respect to Claim Twelve
to the extent it is asserted against Defendant Ramirez.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#144] is DENIED in part and GRANTED
in part. The Motion is denied with respect to Claim Twelve to the extent it is asserted
against Defendant Ramirez in his individual capacity for monetary damages. The Motion

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is granted to the extent that the following claims are dismissed without prejudice: (1) all
claims to the extent they seek declaratory relief, (2) all claims to the extent they seek
injunctive relief, (3) all claims asserted against Defendant Smith in his official capacity, and
(4) all claims asserted under state law. The Motion is further granted to the extent that the
following claims are dismissed with prejudice: (1) all claims asserted against the Doe
Defendants, (2) all claims asserted against Defendant Smith in his individual capacity, and
(3) all claims asserted against the Municipality of Larimer County. The Motion is further
granted to the extent that summary judgment shall enter in favor of Defendants on all other
claims not previously mentioned in this paragraph.

Dated: May 29, 2020

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