Hill v. Raemisch et al

Filing 87

ORDER granting 62 Motion for Summary Judgment by Judge Raymond P Moore on 6/5/20.(jdyne, ) Modified on 6/5/2020 to correct judge (jdyne, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 18-cv-00909-RM-KLM
STEVEN L. HILL,
Plaintiff,
v.
SGT. MYERS,
C.M. DENWALT, and
BRITTANY GOODWIN,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff Steven Hill, an inmate at the Buena Vista Correctional Facility (“BVCF”),
alleges after he reported that Defendant Myers inappropriately touched him, Defendants engaged
in retaliatory and other conduct in violation of his rights under the First Amendment and
Fourteenth Amendment. Defendants now move for summary judgment on both claims. Plaintiff
filed a response and supplement, and Defendants filed a reply. Upon consideration of the motion,
and being otherwise fully advised, the Court finds and orders as follows.
I.

STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569–
70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon

whether the evidence presents a sufficient disagreement to require submission to a jury or is so
one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000);
Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once the moving party
meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the
burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of
material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229,
1242 (10th Cir. 2013) (citation omitted). “‘To defeat a motion for summary judgment, evidence,
including testimony, must be based on more than mere speculation, conjecture, or surmise.’” Self
v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir.2004)).
“The mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted).
The facts, however, must be considered in the light most favorable to the nonmoving party. Cillo
v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).
II.

FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff was admitted to BVCF on April 4, 2017. Using a scoring system based on

points, offenders can be classified at various levels; Plaintiff was already classified as a Close
Custody offender before his arrival at BVCF. Close Custody is the highest scored classification

1

The Court notes, in more than passing, that in some instances the parties have taken some liberties with what the
record evidence supports.
2

custody level but the Colorado Department of Corrections (“CDOC”) staff have discretion to
override an offender’s scored custody level. Although Plaintiff’s score placed him in the Close
Custody designation, on May 11, 2017, the BVCF classification committee did a discretionary
override and placed him in medium custody.
Effective May 30, 2017, Plaintiff was assigned to work in the kitchen where, during the
relevant time period, Defendant Myers was the kitchen supervisor. And all was apparently well,
i.e., no reported incidents by or against Plaintiff, until September 3, 2017. Accordingly to
Plaintiff,2 on September 3 Defendant Myers inappropriately touched Plaintiff’s lower back and
buttocks (the “sexual misconduct” or “incident”). And, also that same day, Plaintiff asserts he
orally reported the sexual misconduct to C.O.3 Cisneros, an officer in the East Unit4 where his
cell was located, and sent a kite5 about the incident addressed to Defendant Denwalt.
Seven days later, on the morning of September 10, 2017, Plaintiff was working in the
kitchen as a cook when a dispute arose between him and Defendant Myers. Some of the exact
events which precipitated that clash is disputed. Defendant Myers contends Plaintiff was making
unauthorized meals,6 refused to stop even though she ordered him to do so, and argued when he
was asked to clean. Plaintiff, however, contends he only made meals authorized by BVCF
personnel. Nonetheless, Plaintiff acknowledges he was out of his area (the grill where he was a

2

Which, construing the facts in the light most favorable to Plaintiff, the Court assumes is true for the purposes of the
motion.
3
Correctional Officer.
4
The housing for inmates is located in the East, Lower North, Upper North, and South Units. (ECF No. 63-9, 29:58.)
5
A “kite” is an informal, but official, method of written communication between inmates and BVCF staff. (ECF No.
63-10, 27:7-11; ECF No. 66-2, 39:6-40:1.)
6
The unauthorized meals apparently had to do with Plaintiff frying eggs when he was supposed to be scrambling
them. (ECF No. 63-8, 13:20-16:7.)
3

cook) and was at the front line helping other employees stack cups. But Plaintiff contends this
was because he had already finished his work and had cleaned his area. Plaintiff also
acknowledges Defendant Myers told him to go back to his area and clean, but asserts he did go
to back to his area and straightened a few things and only then did he return to straightening cups
in the front line.7 Defendant Myers then asked Plaintiff to go with her to the office to have a
discussion with her and Lt. Lindsey Peterson.
During the discussion, Plaintiff used the words “fucking bitch” or “fucking bitches,”
depending on whose version is credited. Plaintiff said he only called Defendant Myers a “fucking
bitch,” not Lt. Peterson. Plaintiff also made some statement about being treated like a slave.8 In
any event, Defendant Myers contacted kitchen security and had Plaintiff escorted out of the
kitchen due to his actions of name calling.
Thereafter, on the same date, Defendant Myers prepared an Incident Report of the events.
In the Incident Report, Defendant Myers stated Plaintiff was to be terminated from the kitchen.
And, Plaintiff was in fact terminated effective that date, September 10, 2017. The Incident
Report stated Plaintiff was terminated for “disobeying a lawful order” or “DLO.”9 Plaintiff
disputes the events as reported by Defendant Myers.
On Friday, September 15, 2017, Defendant Goodwin, Plaintiff’s case manager, initiated a
recommended reclassification of Plaintiff to Close Custody due to “refusal to work.” Defendant
Goodwin testified she initiated this on her own based on BVCF policy but Defendant Denwalt,
Defendant Goodwin’s supervisor, testified the initiation was done at his request and Defendant

7

ECF No. 65-9, 79:18-80:21.
ECF No. 65-9, 80:20-81:11.
9
ECF No. 63-7.
8

4

Goodwin’s discovery responses said that she prepared the reclassification “per the directives
from” Defendant Denwalt.10, 11 Regardless, Defendants Denwalt and Goodwin decided to treat
the September 10, 2017 incident as a refusal to work instead of a DLO. Defendants Goodwin and
Denwalt were aware that, if they changed the September 10, 2017 incident type from a DLO to
“refusal to work,” Plaintiff would be reclassified and could be transferred to Close Custody
without notice or a hearing.
Plaintiff was upset about his termination and about potentially going to Close Custody.12
And, on Tuesday, September 19, 2017, as memorialized in Defendant Goodwin’s incident report
of that date, the following occurred:
On Tuesday, September 19, 2017 I was speaking with offender Hill, Steven
#157837 outside the East Unit Case Manager's offices. He was recently released
from Food Service for Disobeying a Lawful Order. After he was terminated he
expressed that he had issues with Sgt. Myers in the kitchen. Sgt Myers is the one
who terminated him. Offender Hill was requesting forms to complain about staff
members. I told him he would have to pursue this through the grievance process.
He then said “you know Lamm? The Asian guy who was terminated for touching
her? She did the same thing to me, but I didn't touch her back”. It is my
understanding that he was referring to an offender who was terminated for
pinching Sgt Myers. It is also my understanding that Lamm accused Sgt Myers of
horse playing with him in the kitchen. I believe that offender Hill was referring to
Sgt Myers horse playing with him in the kitchen. End of report.13
Plaintiff recalls the first part of this report, i.e., the DLO, issues with Sgt. Myers and his
termination, and a request for forms. He does not, however, recall the second part, i.e., the
discussion regarding Lamm, references to touching, or what Sgt. Myers allegedly did to him.14
Defendant Denwalt testified he has no recollection of the incident report, but Defendant

10

ECF No. 66-2, 50:6-24, 129:22-130:10; No. 63-10, 60:11-61:9; No. 63-14, p. 3.
Based on the Court’s decision, Defendant Goodwin’s exact role in initiating this request is immaterial.
12
ECF No. 66-2, 92:7-93:1.
13
ECF No. 63-11, p.1.
14
ECF No. 63-9, 106:11-20, 108:16-109:9.
11

5

Goodwin testified she had called him about it and forwarded the report to him that day.15
The Classification Committee, which included Defendant Denwalt, met on a Thursday,
which would have been either September 21 or 2816 and, therefore, after the incident report. The
reclassification was approved then but not finalized until there was a bed space in Lower North
to move Plaintiff.17 On October 4, 2017, Plaintiff’s reclassification was noted as “approved” and
put into the system.18 That decision was signed off by the Classification Chair, a non-party to this
action. Also on that date Plaintiff was moved to Lower North as a result of his reclassification.
There is no set amount of time an offender may stay in Close Custody. Most offenders
are in Close Custody for 60 to 90 days unless they refuse to work an assigned job. There is no
maximum amount of time that an offender might remain in Close Custody.
In Lower North, Plaintiff had more restrictions than when he was in the East Unit.
Generally, an offender in medium custody may stay out of his cell for most of the day and has
more freedoms and privileges than an offender in Close Custody. An offender in Close Custody
may be afforded from four to six hours of out-of-cell time and three to six non-contact visits each
month, each lasting two hours. And, after thirty days in Close Custody, an offender who exhibits
appropriate behavior may have up to four, two-hour long contact visits per month. An offender
may also receive exercise and yard (outdoor recreation time). But, in Plaintiff’s case, because
there were approximately four different lockdowns in Lower North, unrelated to any actions by
Plaintiff, for a combined total of about 6 1/2 weeks Plaintiff was confined in his cell 24 hours a

15

ECF No. 63-10, 48:4-13, 50:18-20; No. 63-18, 100:21-101:6; No. 66-2, 134:11-19.)
By the Court’s calculation, based on the testimony.
17
ECF No. 63-10, 62:23-63:17.
18
ECF No. 63-10, 62:23-63:17.
16

6

day except for being let out once every three days for a shower.19 The lockdowns were caused by
a riot or riots which started about a week or two after Plaintiff was placed in the Lower North
Unit.20 Thus, for that time period Plaintiff was not afforded the freedoms and privileges he
otherwise would have had in the Lower North Unit.
As for the living conditions themselves, while the cells are the same size, the bed in
Lower North was the standard 6 feet long size at BVCF. Plaintiff is 6’8” and had been given an
extended bed when he was in the East Unit. The lack of an extended bed coupled with extended
time in his cell due to the riots intensified his back problem and pain while he was in the Lower
North Unit.
Meanwhile, on October 5, 2017, the day after he was moved, Plaintiff filed a grievance
alleging he had been fired from his kitchen job and removed from general population in
retaliation for notifying “ranking C.O.s” of sexual advances by Sgt. Myers on September 3,
2017. As a remedy, Plaintiff sought to be reassigned to the kitchen with a different supervisor,
reinstated into the general population, and any derogatory matter to be expunged from his
permanent record.21 Plaintiff’s grievance was denied at Step 122 on “procedural grounds”; that it
contained “many inconsistencies.”23 The grievance was denied at Step 2 because the grievance
procedure “may not be used” for classification or facility placement.24 The grievance was denied
again at Step 3, with no comments.
On December 22, 2017, Plaintiff had a reclassification review where his score put him in

19

ECF No. 66-1, ¶ 19.
ECF No. 63-9, 49:7-20.
21
ECF No. 63-13, p. 1.
22
The BVCF has a three step grievance process. (See ECF No. 63-13.)
23
Id. at p. 2.
24
Id. at p. 3.
20

7

“minimum restrictive custody.” The internal classification committee, however, issued a
discretionary override and classified Plaintiff as medium custody.25 Accordingly, on December
23, 2017, Plaintiff was moved out of the Lower North Unit.26 Plaintiff’s lawsuit followed. As
relevant here, the only claims at issue are Plaintiff’s claim for retaliation against all Defendants
and claim for violation of procedural due process against Defendants Denwalt and Goodwin.
Defendants move for summary judgment as to all claims.
III.

DISCUSSION
A. Retaliation
Plaintiff alleges Defendants retaliated against him for reporting Defendant Myers’ alleged

sexual misconduct in violation of the First Amendment by terminating his job in the kitchen,
reclassifying him to Close Custody, and placing him in the Lower North Unit.
“[P]rison officials may not retaliate against or harass an inmate because of the inmate’s
exercise of his constitutional rights,…even where the action taken in retaliation would be
otherwise permissible.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation
marks and citation omitted). To establish a claim for government retaliation for exercising
Plaintiff’s First Amendment rights, there must be a showing:
(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, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007). To establish the third

25
26

ECF No. 66-2, 140:13-15.
ECF No. 66-2, 138:4-8.
8

factor, an inmate must show that “‘but for the retaliatory motive, the incidents to which
he refers ... would not have taken place.’” Banks v. Katzenmeyer, 645 F. App’x 770, 772
(10th Cir. 2016) (quoting Peterson, 149 F.3d at 1144). See also Guy v. Lampert, 748 F.
App’x 178, 180 (10th Cir. 2018) (same).
1. Protected Activity
For the purposes of the Motion, Defendants concede that Plaintiff engaged in
constitutional protected activity on September 19, 2017, when he spoke with Defendant
Goodwin about inappropriate physical contact by Defendant Myers. Defendants contend,
however, there is no “direct evidence” that Plaintiff wrote to or otherwise informed anyone about
the alleged sexual misconduct prior to his termination on September 10, 2017. Plaintiff,
however, contends there is such evidence – Plaintiff’s own testimony. The Court agrees.
Here, Plaintiff testified that on September 3, 2017, he told C.O. Cisneros and sent a kite
to Defendant Denwalt. That Defendant Denwalt does not recall receiving the kite does not mean
that it was not sent. That Defendant Denwalt does not have a record of it or Plaintiff does not
have a copy of it is also not fatal where BVCF has no requirement, procedure, practice, or policy
that any documentation be made or kept and Plaintiff has no practice of keeping a copy.27
Accordingly, for purposes of the Motion, accepting Plaintiff’s version of the events as true, the
fact finder could find Plaintiff engaged in protected activity on September 3, 2017 by
complaining of Defendant Myers’ alleged sexual misconduct28 to C.O. Cisneros29 and Defendant

27

Nor is there any evidence Plaintiff was required to keep a copy.
Whether Defendant Myers engaged in sexual misconduct is another matter. It suffices to say Plaintiff’s testimony
that Defendant Myers engaged in this conduct and Defendant Myers’ denial is sufficient to create a genuine dispute
of material fact.
29
Defendants argue Plaintiff fails to present any evidence by C.O. Cisneros to “corroborate” his testimony. (ECF
No. 72, p. 5.) Defendants fail to cite any support that such corroboration is needed on summary judgment, especially
28

9

Denwalt.
2. Adverse Action
Defendants also concede, for purposes of the Motion, that terminating Plaintiff from his
job, reclassifying him, and moving him to a different housing unit “could” chill an inmate of
ordinary firmness from continuing to report a correction officer’s sexual misconduct. (ECF No.
62, p. 7.)
3. Retaliatory Motive
Defendants make no concessions here. Instead, they argue Plaintiff cannot establish
Defendants’ adverse actions were substantially motivated in response to Plaintiff’s exercise of
constitutionally protected activities. The Court examines this factor as to each Defendant.
a) Defendant Myers
Defendants contend there is no evidence that Defendant Myers was substantially
motivated by Plaintiff’s alleged reporting of her sexual misconduct because of the lack of
evidence that she was aware of such alleged report. Defendants also contend there is no evidence
that but for Defendant Myers’ alleged retaliatory motive, Plaintiff’s termination from
employment and reclassification would not have occurred. Instead, Defendants assert, Plaintiff’s
evidence is self-serving and speculative. Plaintiff responds30 by relying on circumstantial

where there is no evidence to dispute Plaintiff’s testimony that he told C.O. Cisneros about the alleged September 3,
2017 sexual misconduct.
30
In a supplemental filing, Plaintiff also asserts alleged evidence of Defendant Myers’ misconduct in an unrelated
matter (accepting cash payments from an inmate) further supports his case. Specifically, Plaintiff argues this
evidence demonstrates Defendant Myers terminated Plaintiff’s employment in the kitchen in September 2017
(resulting in his reclassification and transfer to Lower North) to avoid investigation by CDOC because she was
already involved in a cash payments scheme beginning in June 2017. Plaintiff’s argument is not only speculative but
also unsupportable. Even if the Court were to credit the supplement, it shows any alleged scheme began in June
2018, after Plaintiff’s termination from his job in the kitchen. See ECF No. 84-1, p. 7 (“Sgt. Myers stated this
incident began approximately 1.5 years ago,” where such statement was taken on December 4, 2019.).
10

evidence. Defendants challenge Plaintiff’s reliance on circumstantial evidence and contends his
evidence is insufficient to defeat summary judgment.
The Court starts first with the permissible evidence. Defendants’ papers contain several
references to “direct evidence” and the like, and the contention, implicit or explicit, that
circumstantial evidence may not be used to support Plaintiff’s claim. The Court finds otherwise.
See, e.g., Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (finding circumstantial
evidence sufficient to defeat summary judgment on inmate’s retaliation claim); Weatherall v.
Scherbarth, 208 F.3d 228, 2000 WL 223576, at *2 (10th Cir. 2000) (unpublished table decision)
(stating prisoner failed to provide sufficient circumstantial proof of a retaliatory motive to defeat
summary judgment). The question then is whether Plaintiff has presented sufficient evidence,
direct or circumstantial, to create a genuine factual dispute for resolution by a jury.
First, as to C.O. Cisneros, the Court agrees there is no evidence, direct or circumstantial,
that she told anyone or did anything with what Plaintiff allegedly reported. To find C.O. Cisneros
must have told Defendant Myers or told someone else who then told Defendant Myers would
require speculation and conjecture. And, speculation and conjecture are insufficient to create a
factual dispute. Peterson, 149 F.3d at 1144 (allegations of retaliation based on mere speculation
rather than evidence are insufficient); Weatherall, 2000 WL 223576, at *2 (speculation and
conclusory allegations are insufficient to raise a genuine issue as to any material fact). This holds
true also as to Plaintiff’s testimony regarding his subjective perception that non-defendant staff
members’ nonverbal communication changed for the worse after he reported the misconduct or
that Defendant Myers appeared “pissed.”31

31

ECF No. 63-9, 98:3-18.
11

Plaintiff’s other circumstantial evidence fares no better. Plaintiff’s termination closely
followed the alleged sexual misconduct but temporal proximity, standing alone, is insufficient.
Weatherall, 2000 WL 223576, at *2; Dawson v. Audet, 636 F. App’x 753, 758 (10th Cir. 2016)
(citing Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir. 2014)). Temporal proximity in
connection with Plaintiff’s other evidence is also insufficient.
Plaintiff relies on his grievance concerning Defendant Myer’s alleged sexual misconduct,
his termination and reclassification but this was filed after he was terminated, reclassified, and
moved to Lower North.32 Plaintiff also relies on his request for video footage of the kitchen for
September 3, 3017 which request was denied or otherwise not provided.33 But, assuming
Defendant Myers did engage in sexual misconduct on September 3, which the Court does here,
Plaintiff fails to articulate how this supports Defendant Myers was aware of Plaintiff’s alleged
report to show retaliatory motive and the Court declines to fashion arguments on his behalf. See
Shero, 510 F.3d at 1207 (refusing to consider argument where plaintiff failed to present reasoned
argument on the point).
Plaintiff’s argument that he did not refuse to work or disobey an order fares no better. As
Defendants assert, by Plaintiff’s own admission, Defendant Myers ordered Plaintiff to return to
his designated work area but, after he had done so to clean, he nonetheless returned to stacking
cups in the front line. Moreover, Plaintiff admitted he used profanities against Defendant Myers.
Thus, the record supports the stated reason for termination of Plaintiff’s employment: Defendant
Myers’ perception that Plaintiff was disobeying her order and engaging in insubordinate conduct.

32
33

ECF No. 63-13.
OSUMF at ¶ 59.
12

The Court is mindful that “it is not the role of the federal judiciary to scrutinize and interfere
with the daily operations of a state prison, and our retaliation jurisprudence does not change this
role.” Peterson, 149 F.3d at 1144.
Finally, Plaintiff contends that Defendant Myers’ incident report is contradicted by her
testimony. During her deposition, Defendant Myers testified that Plaintiff didn’t like to follow
instructions; that Plaintiff was making fried eggs when he was supposed to be making scrambled
eggs; and that Plaintiff was not where he was supposed to be.34 While Defendant Myers’
testimony discussed more about the fried eggs, her incident report relied on Plaintiff not being
where he was supposed to be – in the grill area and cleaning – for termination. Plaintiff’s
testimony is consistent with Defendant Myers’ report – that he left his work area and went to the
front line, Defendant Myers told him to go back, he did so but then returned to the front line.
Thus, the Court finds no inconsistency sufficient to create a triable issue of fact.35
In summary, Plaintiff has not met his burden of demonstrating a genuine factual dispute
concerning whether, absent his reporting of Defendant Myers’ alleged sexual misconduct,
Defendant Myers would not have fired him from his employment in the kitchen.36 Accordingly,
summary judgment is granted in favor of Defendant Myers on this sole claim against her.
b) Defendants Denwalt and Goodwin
Defendants assert there is insufficient evidence that Plaintiff sent the kite and that

34

ECF No. 63-8, 13:11-15:3.
Plaintiff also argues, for example, that Defendant Myers never previously filed an incident report on Plaintiff, and
there was no further investigation into the incident report. Plaintiff fails, however, to discuss how such facts support
a finding of retaliatory motive on the part of Defendant Myers, e.g., how this shows she knew about the alleged
September 3 report of sexual misconduct.
36
There is also no evidence that Defendant Myers was involved in Plaintiff’s reclassification and move to Lower
North.
35

13

Defendants Denwalt and Goodwin knew of Plaintiff’s report. Further, Defendants contend
Plaintiff cannot point to any evidence showing Defendants Denwalt and Goodwin possessed any
sort of animus towards Plaintiff to suggest a retaliatory motive. Defendants also assert Defendant
Goodwin was not the decision-maker in Plaintiff’s reclassification. Finally, Defendants contend
the decision to reclassify Plaintiff was made on September 15, 2017, four days before Plaintiff
reported any incident to Defendant Goodwin. The parties combine these two Defendants but the
Court finds a separate analysis is appropriate.
Defendant Denwalt. Plaintiff contends that, at a minimum, there is a genuine factual
dispute as to whether Defendant Denwalt received the September 3 kite. And, further, there is
evidence in the record to support that Defendant Denwalt also received the September 19, 2017
report from Defendant Goodwin. The Court agrees that Plaintiff has proffered sufficient
evidence to create, at a minimum, a factual issue of whether Defendant Denwalt received the
September 3 kite and September 19 report. Plaintiff testified he sent the kite and Defendant
Goodwin testified she sent the September 19 report to Defendant Denwalt.
Assuming that Defendant Denwalt knew about Plaintiff’s grievance against Defendant
Myers, Plaintiff nonetheless fails to present evidence that Defendant Denwalt’s conduct was
motivated by retaliatory animus for Plaintiff’s complaints, especially since there is no evidence
that Defendant Denwalt was involved in Plaintiff’s termination. Plaintiff’s reliance on alleged
circumstantial evidence is unavailing. For example, Plaintiff seeks to infer that Defendant
Denwalt must have been retaliating against Plaintiff for his complaints against Defendant Myers

14

because Defendant Denwalt did not “investigate”37 them or the September 10 incident report.
Other than listing various events, Plaintiff fails to discuss how they lead to such an inference.
Moreover, the Court finds such inference is not justified on this record, especially since there is
no evidence of any relationship between the parties other than Defendant Denwalt “occasionally”
ate lunch in the kitchen.
In contrast, in Smith, supra, the inmate alleged that prison officials retaliated against him
because of his exercise of his right of access to the courts. The Tenth Circuit found the inmate
presented sufficient circumstantial evidence to establish a triable issue on his retaliation claim
where prison officials searched his briefcase twice when they took him to the courthouse but he
had never had a second search under the circumstances before; when he refused the second
search, prison officials would not let him take his briefcase to court and it was retrieved only
when the court ordered the officials to do so; when he returned to prison after his court
appearance he was immediately placed in segregation and charged with several disciplinary
charges, including disobeying an order; he suffered a sizeable loss of good time credits despite
having a prior good record; he was denied his law papers and books while in segregation; and he
submitted two affidavits – one from an inmate that he (the inmate) was placed in segregation to
prevent him from being a witness for plaintiff in a pending lawsuit and one from a prison law
clerk that he was removed from his library employment in retaliation for assisting plaintiff while
he was in segregation. Smith, 899 F.2d at 947-48. Such circumstantial evidence supported the
inmate’s claim of retaliation for the exercise of his right to access to the courts. The same could

37

Plaintiff asserts no investigation was done but while Defendant Denwalt did not contact Defendant Myers about
her incident report, he did review it to ensure the actions described were consistent with “refusal to work.” (ECF No.
72-2, p. 2; No. 63-10, 62:5-16.)
15

not be said of the evidence Plaintiff submits here. Accordingly, summary judgment is granted in
favor of Defendant Denwalt on this claim.
Defendant Goodwin. Plaintiff contends that since Defendant Denwalt is Defendant
Goodwin’s supervisor and Defendant Goodwin was Plaintiff’s case manager during the relevant
time, Defendant Denwalt “likely” forwarded the September 3 kite to Defendant Goodwin. Thus,
Plaintiff contends, Defendant Goodwin knew of Plaintiff’s complaints against Defendant Myers
and reclassified and moved him in retaliation for the complaint. The Court is not persuaded.
Plaintiff cannot create a factual dispute based on speculation of what may or may not
have “likely” occurred. Thus, as to Defendant Goodwin, the Court finds the evidence could not
lead a reasonable jury to find that she had knowledge or notice of the September 3 kite. And,
even if Defendant Goodwin had a role in the reclassification of Plaintiff, she initiated that
reclassification on September 15, four days before Plaintiff approached Defendant Goodwin
about Defendant Myers’ horse play. Finally, as with Defendant Denwalt, Plaintiff fails to present
evidence that Defendant Goodwin’s conduct was motivated by retaliatory animus, even
assuming she was aware of Plaintiff’s sexual misconduct complaints. There is no evidence that
Defendant Denwalt was involved in Plaintiff’s termination and, further, Defendant Myers
testified that she did not even know if she’s ever seen Defendant Goodwin.38 Accordingly,
summary judgment is granted in favor of Defendant Goodwin on this claim.
B. Due Process
Plaintiff’s remaining claim alleges Defendants Denwalt and Goodwin violated his

38

ECF No. 63-8, 7:6-13.
16

Fourteenth Amendment39 right to procedural due process when they changed his housing to
Lower North.40 “The Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005). In considering a procedural-due-process claim, the Court asks two questions: “‘(1) Did
the plaintiff possess a protected property or liberty interest to which due process protections
apply? And if so, (2) was the plaintiff afforded an appropriate level of process?’” Al-Turki v.
Tomsic, 926 F.3d 610, 614 (10th Cir. 2019) (quoting Martin Marietta Materials, Inc. v. Kansas
Dep’t of Transp., 810 F.3d 1161, 1172 (10th Cir. 2016)).
Plaintiff asserts he has a cognizable liberty interest to which due process protection
applies. “A liberty interest may arise from the Constitution itself, by reason of guarantees
implicit in the word ‘liberty,’…or it may arise from an expectation or interest created by state
laws or policies.” Id. “State policies or regulations will not create the basis for a liberty interest
in the conditions of confinement so long as they do not ‘impose[ ] atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Estate of DiMarco v.
Wyoming Dep’t of Corr., 473 F.3d 1334, 1339 (10th Cir. 2007) (brackets in original) (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)).
When determining whether a placement decision involves an atypical and significant
hardship, factors which the Court might consider include: (1) whether the segregation (or, here,
placement) furthers a legitimate penological interest; (2) whether the conditions of the placement
39

Plaintiff cites to the Fifth Amendment in his brief (ECF No. 66, p. 15). That matters not because “[c]ourt
interpretations of one due-process clause generally apply to the other.” Al-Turki v. Tomsic, 926 F.3d 610, 614 (10th
Cir. 2019).
40
ECF No. 66, p. 15. Plaintiff does not assert a liberty interest in his job assignment or classification.
17

are extreme; (3) whether the placement increases the duration of confinement; and (4) whether
the placement is indeterminate. See Estate of DiMarco, 473 F.3d at 1342. This “assessment must
be mindful of the primary management role of prison officials who should be free from secondguessing or micro-management from the federal courts.” Id. In this case, these factors cut against
finding the existence of a liberty interest.
Legitimate Penological Interest. Defendants contend Plaintiff was not segregated and the
CDOC’s interest in the safe and orderly administration of a correctional facility motivated
Plaintiff’s reclassification and resulting change in housing. Plaintiff counters that Defendants’
actions show they did not view Plaintiff as a safety and security threat because between the time
Plaintiff’s reclassification was initiated (September 15) and the time it was finalized (October 4),
Plaintiff was not assigned to a special unit for offenders who were an alleged threat to safety, he
was not assigned extra security, he was allowed to walk the hallways as normal, and he spoke
with Defendant Goodwin one-on-one in the hallway. Defendants fail to address what appears to
be an inconsistency, instead reiterating that Plaintiff disobeyed Defendant Myers’ instruction and
was verbally abusive toward her, such that he could become a physical threat or otherwise
misbehave. But, even if that were so, Defendants fail to offer evidence or an explanation of why
Plaintiff was free to go about the BVCF as he also did during the more than two weeks when he
was allegedly a threat. Accordingly, the Court finds Plaintiff has presented sufficient evidence to
create a jury question of whether the placement of Plaintiff in Lower North furthered a legitimate
penological interest. As such, this factor could weigh in favor of Plaintiff and the Court does so
for the purposes of the Motion.
Conditions of Confinement. Plaintiff does not dispute that an offender in Close Custody

18

may be afforded four to six hours of out-of-cell time; three to six non-contact visits each month,
lasting two hours; up to four, two-hour long contact visits per month, after 30 days in Close
Custody, if an offender who exhibits appropriate behavior41; and exercise and yard (outdoor
recreation) time. Plaintiff contends, however, that such conditions did not exist for about 6 ½
weeks while he was in Close Custody because the unit was in lockdowns for riots unrelated to
Plaintiff. Moreover, the beds at BVCF are 6’ and Plaintiff is 6’8”; he was not given an extended
bed in Close Custody to accommodate his height when he had been given an extended bed while
housed in the East Unit. This, coupled with Plaintiff’s confinement to this cell, intensified his
back pain. While Plaintiff sent a kite requesting to see the medical department, he was unable to
do so due to the lockdowns. Defendants contend that, even if Plaintiff’s testimony is credited, it
is not extreme. The Court agrees.
As Defendants argue, there is no evidence that lockdowns were typical or that Defendants
could have expected they would occur while Plaintiff was housed in the Lower North. While
Plaintiff was not allowed what he otherwise would have been allowed but for the lockdowns, the
Court finds the conditions to be examined are what Plaintiff would have been allowed, see
generally Rezaq v. Nalley, 677 F.3d 1001, 1005, 1015 (10th Cir. 2012) (record showed BOP
policy provided for ten hours of recreation per week but recreation was frequently cancelled due
to staff shortages, mass shakedowns, or adverse weather; nonetheless, the Tenth Circuit
considered whether inmates were permitted outdoor recreation), especially where there is no
evidence that the lockdown conditions were anticipated, typical, or otherwise the norm.

41

Subject to a maximum of six total visits (contact and non-contact) per month. (ECF No. 72-1, SUMF & OSUMF
at ¶ 48.)
19

Plaintiff’s only other complaint relates to the size of his bed and the resulting intensified
pain while he was in Lower North.42 While CDOC could have provided a better accommodation,
i.e., an extended bed, the Court does not find that restricting Plaintiff to a 6’ standard bed
imposed atypical and significant hardships on him in relation to the ordinary incidents of prison
life. Thus, this factor weighs against finding a liberty interest.
Duration of Confinement. Plaintiff’s confinement in Lower North did not result in the
reduction of his good time or earned time credits. Moreover, Plaintiff has no evidence that his
confinement would impact any future parole hearing. Thus, this factor also weighs against
finding a liberty interest.
Indefiniteness of Confinement. “In analyzing whether the placement is indeterminate the
court consider[s] placement duration and frequency of placement review.” Marshall v. Ormand,
572 F. App’x 659, 662 (10th Cir. 2014) (citing Estate of DiMarco, 473 F.3d at 1342). Plaintiff’s
placement in Lower North was not for a predetermined length of time. There is no set review
period, but there are events which would trigger a review. Typically, an offender would be
unassigned for 30 days, then assigned a job for 30 days, and then reviewed to be removed from
Close Custody. Most offenders are in Close Custody for 60-90 days, unless they refused to work;
there is, however, no maximum amount of time that an offender might remain there.43 In this
case, Plaintiff remained in Close Custody for less than three months. Upon his review in
December 2017, Plaintiff was moved out of Lower North. On this record, the Court finds
Plaintiff’s confinement was not indefinite. See Rezaq, 677 F.3d at 1016 (“The availability of

42
43

Plaintiff apparently suffered no lasting effects. (ECF No. 63-9, 70:7-13.)
ECF No. 63-10, 36:10-37:8, 38:2-10.
20

periodic reviews…suggests that the confinement was not indefinite.”).
In summary, none of the factors are dispositive. Estate of DiMarco, 473 F.3d at 1342.
Weighed together, the Court finds the factors as applied to the undisputed material facts do not
show Plaintiff’s confinement in Close Custody creates a protected liberty interest. While living
in Close Custody was more restrictive (even in the absence of the lockdowns) with one lesser
amenity (the bed), the Court cannot say the difference is so extreme as to be atypical or
significant. Accordingly, summary judgment is granted to Defendants Denwalt and Goodwin on
this claim.
C. Qualified Immunity
Qualified immunity shields individual defendants named in § 1983 actions unless their
conduct was unreasonable in light of clearly established law. Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014). “[W]hen a defendant asserts qualified immunity, the plaintiff
carries a two-part burden to show: (1) that the defendant’s actions violated a federal
constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of
the defendant’s unlawful conduct.” Id. (quotation omitted). The district court may address the
steps in either order. Carabajal v. City of Cheyenne, Wy., 847 F3d 1203, 1208 (10th Cir. 2017)
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). If the plaintiff fails to satisfy either part
of his burden, the court must grant qualified immunity. Id.
As stated above, Plaintiff fails to show Defendants violated his constitutional rights.
Accordingly, Defendants are entitled to qualified immunity on all claims.
IV.

CONCLUSION
Based on the foregoing, it is ORDERED

21

(1) That Defendants’ Motion for Summary Judgment (ECF No. 62) is GRANTED;
(2) That Plaintiff shall file a redacted copy of ECF No. 84-1, p. 7 for public access.44 The
page shall be redacted of everything except for (a) the heading showing it is an
investigative report from the CDOC’s Office of Inspector General; (b) the first
paragraph (but the investigator’s name may be redacted)45; and (c) the first two
sentences of the fifth full paragraph46;
(3) That the Clerk shall enter JUDGMENT in favor of Defendants and against Plaintiff in
accordance with this Order and the Order of May 23, 2018 (ECF No. 10); and
(4) That the Clerk shall close this case.
DATED this 5th day of June, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

44

Plaintiff shall link this filing with ECF No. 84.
Starts with “On Wednesday….”
46
Starts with “I asked Sgt. Meyers….”
45

22