Williams v. Zions First National Bank

Filing 75

MEMORANDUM DECISION & ORDER GRANTING REMAINING DEFENDANTS MOTION FOR SUMMARY JUDGMENT: granting 71 Defendant's Motion for Summary Judgment ; denying 72 Plaintiff's Motion for Discovery. Signed by Judge David Nuffer on 03/29/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH

REGINALD WILLIAMS,
Plaintiff,

MEMORANDUM DECISION
AND ORDER GRANTING REMAINING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

v.
Case No. 2:13-CV-319 DN
M. ANDERSON et al.
Judge David Nuffer
Defendants.

Orders of June 19, 2017, (Docket No. 58), and September 29, 2017, (Docket No. 61),
disposed of all other claims and defendants in this case except State of Utah defendants M.
Anderson (Assistant Attorney General (AAG)), Turley (Department of Corrections (UDOC)),
Deputy Warden Bussio (UDOC), Captain Gardner (UDOC), and Grievance Coordinator Casper
(UDOC). The two remaining civil-rights claims are conspiracy to retaliate and retaliation. See 42
U.S.C.S. § 1983 (2018). These claims allege that because Defendants knew that Plaintiff was
gathering materials for this lawsuit, they conspired to retaliate and retaliated by confiscating his
legal materials, recommending a three-year rehearing date to the Utah Board of Pardons and
Parole (BOP), and refusing a grievance about the latter.
Defendants filed a Martinez report, (Docket No. 67), including evidentiary
documentation: (1) declarations of Defendants Anderson, Bussio, Casper, and Gardner, amongst
other relevant Utah State Prison (USP) staff; (2) UDOC grievance and inmate-property policies;
(3) relevant letters; (4) Plaintiff’s April 2011 Rehearing Report and March 2011 Initial Contact
Report. Based upon their Martinez report, Defendants move for summary judgment, asserting

qualified immunity. (Docket No. 71.) Plaintiff responds, attaching one item of evidence,
Plaintiff’s declaration. (Docket No. 72.) Plaintiff’s response also asks for discovery to seek more
evidence to support his claims. This order grants summary judgment for Defendants.
SUMMARY-JUDGMENT STANDARD
A court shall grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A party may support factual assertions by “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 motion only), admissions,
interrogatory answers, or other materials.” Id. at 56(c)(1). Summary judgment’s purpose “is to
isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986).
The movant has the “initial burden to demonstrate an absence of evidence to support an
essential element of the non-movant’s case.” Johnson v. City of Bountiful, 996 F. Supp. 1100,
1102 (D. Utah 1998). Once movant meets this burden, “the burden then shifts to the non-movant
to make a showing sufficient to establish that there is a genuine issue of material fact regarding
the existence of that element.” Id. To do so, the non-movant must “go beyond the pleadings and
‘set forth specific facts’ that would be admissible in evidence in the event of a trial from which a
rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144 F.3d 664, 671
(10th Cir. 1999) (citation omitted). In ruling on a summary-judgment motion, this Court must
“examine the factual record and reasonable inferences therefrom in the light most favorable to
the party opposing the motion.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).

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Plaintiff was notified that, in response to a summary-judgment motion, “Plaintiff cannot
rest upon the mere allegations in the complaint. Instead . . . Plaintiff must allege specific facts,
admissible in evidence, showing that there is a genuine issue remaining for trial.” (Docket No.
13, at 5-6.)
QUALIFIED IMMUNITY
Defendants’ assertion of qualified immunity modifies the summary-judgment review.
Asserting qualified immunity, a state employee creates a rebuttable presumption that she is
immune from the plaintiff’s § 1983 claims. See Medina v. Cram, 252 F.3d 1124, 1129 (10th Cir.
2001). And rather than “focus[ing] on the existence of genuine disputes of material fact,” the
court must “’determine whether plaintiff’s factual allegations are sufficiently grounded in the
record such that they may permissibly comprise the universe of facts that will serve as the
foundation for answering the legal questions before the court.’” Spencer v. Abbott, No. 16-4009,
2017 U.S. App. LEXIS 24668, at *10 n.6 (10th Cir. Dec. 5, 2017) (unpublished) (emphasis in
original) (quoting Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015)).
The qualified immunity analysis has two parts: first, whether, under the facts alleged by
the plaintiff, the government officials violated a constitutional right; and second, “whether the
right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.”
Pearson v. Callahan, 555 U.S. 223, 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If
the plaintiff fails to satisfy either element of his burden, the court must grant the defendant
qualified immunity. See Medina, 252 F.3d at 1128.
If the material facts are not disputed, the question of immunity “is a legal one for the
court to decide.” Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). Such is the case here.

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UNDISPUTED MATERIAL FACTS
• Plaintiff’s crimes for which he was incarcerated at the relevant time (and remains incarcerated)
are Aggravated Sexual Assault, three counts, with a ten-to-life sentence; Aggravated Robbery,
with a five-to-life sentence; and Habitual Criminal, with a five-to-life sentence. (Docket No. 74-2
BOP Rehearing Order, dated September 30, 2011.)
• During the relevant time period, Plaintiff was a USP inmate. (Docket No. 6, at 3 Complaint.)
USP is operated by UDOC. (Id. at 2-3.)
• For at least seven years, Plaintiff has been researching the propriety of UDOC’s operation of
the Inmate Trust Fund Account (ITFA). His efforts have entailed requests and appeals under
Utah’s open records law (GRAMA), complaining to the Office of the Comptroller of the
Currency about ITFA’s establishment and management, and filing this action. (Docket No. 72, at
4 Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not disputed”).)
• In January 2011, Defendant Anderson, an AAG representing UDOC, provided GRAMArequested documents to Plaintiff. (Id. (specifying “Not disputed).)
• A few weeks later, Defendant Anderson determined that certain documents that he had given to
Plaintiff should have been classified, “PROTECTED,” under GRAMA. (Id. (specifying “Not
disputed”); Docket No. 67-9 (April 5, 2011 Defendant Anderson letter to Plaintiff).)
• Defendant Anderson talked about this with UDOC administrators Williams and Defendant
Turley. Because GRAMA protected records were classified as contraband under USP policy, the
decision was made to retrieve the documents from Plaintiff by taking his “legal pouch.” (Docket
No. 72, at 4-5 Plaintiff’s Opp. To Defendants’ summary-judgment motion (specifying “Not
disputed”); Docket No. 67-9 April 5, 2011 Defendant Anderson letter to Plaintiff.)
• An inmate’s legal pouches may contain (1) “Legal - Public” materials--e.g., “case copies, court
rules, discovery responses (but not books) which are necessary to process the case”: and (2)
“Legal - Privileged” materials--e.g., “attorney-client correspondence and other non-public
material which could compromise the inmate’s legal position if disclosed.” (Docket No. 67-10, at
6 UDOC Policy Inmate Property.)
• Legal - Privileged “pouches may be inspected, but contents shall not be read [by UDOC
employees]”; Legal - Public “pouches shall be subject to normal inspection rules and have no
privilege against reading.” (Id. at 6.)
• “Specific justification for confiscating the legal pouch shall be evidence or suspicious items
that may be considered contraband . . . .” (Id. at 7.)
• The UDOC policy about handling a confiscated pouch is as follows:

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1.If the legal pouch is confiscated it shall be listed on a
Confiscation Form by the staff member completing the search
and/or property inventory.
2.The legal pouch and its contents shall be immediately sealed in
an evidence bag by the staff member completing the search.
3.The staff member who confiscated the legal pouch shall
complete an Incident Report outlining reasons for confiscation.
4.The report and legal pouch shall be secured in an area designated
by the Deputy Warden.
5.The following working day the Deputy Warden/designee shall
pick up the legal pouch and reports at a designated area.
6.The Deputy Warden/designee shall forward the evidence bag,
incident reports, and other pertinent information identifying the
reason for the confiscation to the Warden’s office.
7.The Warden’s office shall inspect contents of the evidence bag
and make a determination if contents shall be returned to the
inmate.
8.If it is determined that the legal pouch has been improperly
seized from an inmate, the improperly seized items should be
returned within five working days of a determination that the items
can be legitimately possessed by the inmate.
9.If items were seized properly, the Warden’s office shall send
legal pouches, Incident Reports, and other pertinent information to
the Contract Attorneys for review.
10. The Contract Attorneys shall inspect the legal pouches, and the
inmate’s legal material should be returned to the inmate within 14
calendar days.
(Id. at 9-10.)
• On March 30, 2011, at Defendant Bussio’s request, Defendant Gardner took two correctional
officers to Plaintiff’s dorm and watched while the officers collected Plaintiff’s legal pouches,
after which Gardner put them in Bussio’s secured office until Bussio moved them to Warden
Bigelow’s office. (Docket No. 67-2, at ¶¶ 4-5 Bussio Decl.; Docket No. 67-4, at ¶¶ 4-5, 7
Gardner Decl.; Docket No. 67-12 UDOC Incident Report.)
• During the relevant time, Wayne Freestone was a “contract attorney” for UDOC. Contract
attorneys are independent lawyers hired to consult and support inmate legal efforts.
Also,“Contract Attorneys are tasked with the job of sorting the ‘Legal-Privileged’ documents
from the ‘Legal-Public’ when DOC employees need to search or otherwise review an inmate’s
legal files.” (Docket No. 67-5, at ¶¶ 2, 4 Freestone Decl; Docket No. 72, at 6 Plaintiff’s Opp. to
Defendants’ summary-judgment motion (specifying “Not disputed”).))
• On April 1, 2011, Plaintiff’s legal pouches were brought to Freestone for review. Freestone
followed his standard practice of turning over any legal-public documents to UDOC official for

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review and returned any privileged ones back to Plaintiff. (Id. at ¶ 6; Docket No. 67-9 April 5,
2011 Defendant Anderson letter to Plaintiff.)
• On April 4, 2011, Defendant Anderson went to Warden Bigelow’s office to sort through the
legal pouches containing documents contract attorneys had identified as “legal-public.” (Docket
No. 67-1, at ¶¶ 17-18 Anderson Decl.; Docket No. 72, at 7 Plaintiff’s Opp. to Defendants’
summary-judgment motion (specifying “Not disputed”).)
• With Warden Bigelow looking on, Defendant Anderson spent less than thirty minutes sifting
through the pouches’ contents “only to locate and retrieve the documents [he] had inadvertently
disclosed to [Plaintiff].” (Docket No. 67-1, at ¶¶ 19-20 Anderson Decl.; Docket No. 72, at 7
Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not disputed”).)
• Knowing that the contraband he sought was at least partially typewritten, Defendant Anderson
did not read or skim most of the material and quickly disregarded content of anything entirely
handwritten. (Docket No. 67-1, at ¶¶ 23-24; Docket No. 72, at 7 Plaintiff’s Opp. to Defendants’
summary-judgment motion (specifying “Not disputed”).)
• Defendant Anderson removed only the contraband documents. (Docket No. 67-1, at ¶ 25;
Docket No. 72, at 7 Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not
disputed”).) Defendant Anderson did not take the pouches out of the warden’s presence, nor did
he “review [Plaintiff’s] privileged legal material, discuss the content of [Plaintiff’s] pouches with
anyone or rely on the content of the pouches in researching whether [UDOC] violated the
Procurement Code in its dealings with [dismissed Defendant Zions Bank].” (Docket No. 72, at 7
Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not disputed”).)
• Defendant Anderson gave written notice to Plaintiff of what had been removed from his legal
pouch and what was being re-provided to him with redactions. (Docket No. 67-1, at ¶ 27
Anderson Decl.; Docket No. 67-9 April 5, 2011 Defendant Anderson letter to Plaintiff; Docket
No. 72, at 7 Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not
disputed”).)
• On April 5, 2011, with Captain DeGuilio as a witness, Defendant Bussio returned to Plaintiff
his legal files, minus the contraband documents. (Docket No. 67-2, at ¶¶ 7-8 Bussio Decl.;
Docket No. 72, at 7 Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not
disputed”).) No specific chain-of-custody document has been provided to Plaintiff or the Court.
(Docket No. 72, at 6 Plaintiff’s Opp. to Defendants’ summary-judgment motion.)
• At the relevant time, one of Defendant Gardner’s duties was to write rehearing reports (RRs)
for when inmates had BOP hearings. He delegated this duty to a caseworker. These reports
contain sentencing history, disciplinary records, synopses of program participation, community
support information, and treatment and action recommendations, since BOP’s last hearing.
(Docket No. 67-4, at ¶ 10 Gardner Decl.; id. No. 67-6, at ¶ 4 Johnson Decl.)

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• Often RRs include Offender Management Review team (OMR) recommendations. OMR is a
group of corrections officers who meet, including the individual inmate’s caseworker, with an
inmate at least yearly to ensure the inmate is safe, appropriately housed, meeting needs, and
adequately progressing toward institutional goals, among other things. (Docket No. 67-4, at ¶ 11
Gardner Decl.)
• SOTP separately reports to BOP when an inmate has completed his program. Plaintiff had not
yet completed the SOTP in which he was enrolled in July 2010. His RR included a three-year
rehearing recommendation. (Id. at ¶ 12; Docket No. 72-1, at ¶ 6 Williams Decl.)
• On April 13, 2011, as one of his regular duties, Defendant Bussio ministerially reviewed (i.e.,
checked for editing errors, correct inmate name and number, and basic information) the case
manager’s RR about Plaintiff and forwarded it through his secretary to Warden Bigelow. (Id. at
¶¶ 9-10.) Defendant Bussio “had no other role in preparing [the RR.]” Docket No. 72, at 9
Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying “Not disputed”).)
• Plaintiff’s RR had information about his crimes; sentences; institutional disciplinary history,
noting positive and negative “c-notes”; education, noting Plaintiff is a high school and college
graduate; current employment in the prison print shop, with a rating of “Good”; current
enrollment in SOTP and parenting life skill class; completed courses, all successfully completed;
fairly consistent employment, from May 2005 through April 2011; lack of involvement with
substance abuse; “satisfactory” assessment of his active SOTP participation (i.e., good
attendance, well-done “values assignment,” “good understanding of his values,” the statement,
“He is a well-balanced individual mentally, physically, and emotionally,” and the summary that
he “is doing well”); and, prospects for family and community support upon release (Plaintiff
hoped to live with his mother in Detroit and listed “no other support system”). (Docket No. 70
Plaintiff’s Rehearing Report, dated April 13, 2011.)
• On April 19, 2011, BOP received Plaintiff’s RR (dated April 13, 2011) from Defendants
Gardner and Bussio. (Docket No. 67-6, at ¶ 7 Johnson Decl.)
• A separate mental health record also provided to BOP stated that Plaintiff had completed about
one year of SOTP but still had six months left. (Id.)
• About two weeks before an inmate’s rehearing date, the RR is given to the inmate. The inmate
may then submit any counter-evidence, concerns or objections to the RR to BOP. (Id. at ¶¶ 4-6.)
Plaintiff got a copy of the RR on September 7, 2011, “along with a separate mental health report
which noted that he had six months of the [SOTP] to complete. At the hearing with [BOP,
Plaintiff] did not raise any concerns that the [RR] was false or that the recommendations were
made in retaliation for any protected activity.” (Docket No. 72, at 10 Plaintiff’s Opp. to
Defendants’ summary-judgment motion (specifying “Not disputed”).)
• “At the time of his 2011 rehearing, [Plaintiff] had not yet completed [SOTP].” (Docket No. 676, at ¶ 9 Johnson Decl.)

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• BOP did not follow the RR’s recommendation for a three-year rehearing but instead ordered
Plaintiff to “expire” his life sentence. The Rehearing Order noted, “This decision is subject to
review and modification by the Board of Pardons at any time until actual release from custody.”
(Id. at ¶ 11; Docket No. 74-2 BOP Rehearing Order, dated September 30, 2011.)
• Aggravating factors cited by BOP in its September 2011 rehearing decision: (1) “Offender’s
Traits During the Offense,” “Motive (intentional, premeditated vs. impulsive, reactionary”; (2)
“Victim Characteristics,” (a) “Extent of injury (physical, emotional, financial, social,” (b)
“Relatively vulnerable victim vs. aggressive or provoking victim”; (3) “Offender’s Present
Characteristics,” “Degree of meaningful support system.” (Docket No. 74-4 BOP’s Rationale for
Decision on 9-22-2011 for Rehearing.)
• Mitigating factors cited by BOP in its September 2011 rehearing decision: (1) “Offender’s
Present Characteristics,” “Denial or minimization vs. complete acceptance of responsibility” and
(2) “Programming (effort to enroll, nature of programming).” (Id.)
• In September 2011, Plaintiff filed a grievance about the rehearing recommendation. (Docket
No. 6, at 6 Complaint) Defendant Casper was the Inmate Grievance Coordinator who processed
the grievance and rejected it because it was vague and appeared to challenge a BOP decision.
BOP decisions are not covered by the grievance policy. (Docket No. 67-3, at ¶¶ 2-3, 8, 10 Casper
Decl.)
• Defendant Casper did not discuss the rejected grievance with Defendants Bussio or Gardner.
(Docket No. 72, at 11 Plaintiff’s Opp. to Defendants’ summary-judgment motion (specifying
“Not disputed”).)

LEGAL ANALYSIS
Plaintiff argues that his advocacy for the alleged deprivation of prisoner civil rights
regarding inmate trust fund management made him a target for retaliation by UDOC personnel,
through Defendants. He asserts that Defendants
punished [him] for the exercise of his First Amendment rights, and
of his related right to access the courts, by obstructing his legal
advocacy--seizing his legal materials and reviewing them without
adequate basis and without proper precautions; signaling their
displeasure to [BOP] through a negative Rehearing
Recommendation that he was to be punished; and denying him
access to the normal grievance process in relation to those same
actions.

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(Docket No. 72, at 2 Mem. in Opp. to the State Defendants’ Motion for Summary Judgment.)
Plaintiff says his “evidence is, of necessity, almost entirely circumstantial.” (Id. at 3.)
Plaintiff’s evidence is primarily the inference from the timing of the review of Plaintiff’s legal
materials and of the “negative” Rehearing Recommendation and of the denial of his grievance on
these matters. He essentially argues that Defendants’ actions all happened within a tight
timeframe of weeks in which Defendants became aware of his litigation preparation; and,
therefore, their actions must have been caused by Defendants’ awareness of his preparations.
It is true that, often, conspiracy and retaliation must be proven with circumstantial
evidence. See Snell v. Tunnell, 920 F.2d 673, 702 ((10th Cir. 1990) (“’[R]arely . . . will there be
direct evidence of an express agreement among all the conspirators to conspire.”) (quoting Bell v.
City of Milwaukee, 746 F.2d 1205, 1260 (7th Cir. 1984))); Smith v. Maschner, 899 F.2d 940, 949
(10th Cir. 1990) (“Precisely because the ultimate fact of retaliation turns on defendants’ state of
mind, it is particularly difficult to establish by direct evidence.”).
However, even when drawing “all justifiable inferences” in Plaintiff’s favor as required,
“a fair-minded jury” could not “return a verdict for the plaintiff on the evidence presented.”
Smith, 899 F.2d at 949.
A. Defendant Turley
The facts alleged in a complaint must clearly show what each individual defendant did to
violate a plaintiff's civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)
(stating personal participation defendant is essential allegation in civil-rights action). This means
that Plaintiff must “'make clear exactly who is alleged to have done what to whom.'" Stone v.
Albert, No. 08-2222, slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original)

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(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff may not succeed
in a claim based solely on supervisory liability. See Mitchell v. Maynard, 80 F.3d 1433, 1441
(10th Cir. 1996) (stating supervisory status alone is insufficient to support liability under §
1983).
Under these guidelines, Plaintiff has done nothing to affirmatively link Defendant Turley
to his claims, but has instead identified him merely as a bystander or supervisor--and has not
alleged any actionable facts about him. Plaintiff's claims against this defendant therefore may not
survive further. And Defendant Turley is thus dismissed.
B. Remaining Defendants M. Anderson, Bussio, Gardner, and Casper
Plaintiff argues Defendants Anderson, Bussio, Gardner, and Casper conspired to retaliate
against him for preparing this lawsuit. Using the prescribed qualified-immunity analysis, this
Court must first determine under the undisputed material facts whether these government
defendants violated a constitutional right. The supported factual allegations are those recited
above, titled, “Undisputed Material Facts.”
1. Conspiracy
“[T]o recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only
a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other
[is] insufficient.” Dixon v. Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). “This is because the
essence of a § 1983 claim is the deprivation of the right rather than the conspiracy.” Id. At the
very least a § 1983 conspiracy action requires “a combination of two or more persons acting in
concert and an allegation of a meeting of the minds, an agreement among the defendants, or a
general conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010).

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With Defendant Turley dismissed, the remaining defendants are again AAG M.
Anderson, Deputy Warden Bussio, Captain Gardner, and Grievance Coordinator Casper. The
related material facts that Plaintiff marked, “Not disputed,” are as follows: Defendant Anderson
“did not . . . discuss the content of [Plaintiff’s] pouches with anyone”; Defendant Bussio had no
substantive role in preparing Plaintiff’s RR; and Defendant Casper “had no conversations with
Larry Bussio or Paul Gardner about the grievance.”
Allegations of conspiracy are virtually nonexistent based alone on these facts undisputed
by Plaintiff. But also, there is no suggestion in the evidence whatsoever that Defendant Anderson
interacted or had reason to interact with any other remaining defendant. And he did not talk to
anyone at all about Plaintiff’s pouch contents. There is also nothing to indicate that he was
involved in the RR recommendation or grievance rejection.
Next, Defendant Bussio had no real voice in the recommendations in the RR. Nor did he
discuss the grievance with Defendant Casper. This leaves him toconspire about confiscating
legal material; however, no facts show that he instigated the confiscation. The facts instead show
that Defendant Anderson was the one who brought Plaintiff’s contraband possession to UDOC
officials’ (including Defendant Bussio’s) attention to remedy the matter. The only allegations
against Bussio here indicate that he participated in the execution of the plan to confiscate the
contraband.
Further, Defendant Casper “had no conversations with Larry Bussio or Paul Gardner
about the grievance.” There is no evidence that Defendant Casper had any reason to know about
Plaintiff’s lawsuit preparation or the contraband confiscation. And it is undisputed that she did
not talk to the other defendants about the grievance. That leaves no chance for conspiracy.

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Finally, Defendant Gardner is the only one left and the one about whom no direct
undisputed evidence exists as to his communications with the other defendants. However, there
would be no one left amongst the defendants with whom he could have conspired.
Next, this order examines Plaintiff’s conspiracy claim by reviewing whether there was
retaliation, which is “the deprivation of the right.” Dixon, 898 F.2d at 1449. Without successful
assertion of retaliation, there is no conspiracy claim to consider.
2. Retaliation
Plaintiff contends that Defendants violated his First Amendment rights by retaliating
against him for preparing this federal civil-rights action. He asserts that their retaliation took the
form of seizing his legal pouches, recommending a three-year rehearing date in his RR, and
denying a related grievance. Defendants argue, based on their evidence, that (1) the confiscation
of Plaintiff’s legal pouches was for the sole purpose of extracting contraband documents; (2) the
three-year rehearing recommendation was primarily based on Plaintiff’s still-uncompleted
SOTP; and, (3) the grievance rejection was routine under existing policy.
a. Elements of Retaliation Cause of Action
“It is well-settled that ‘[p]rison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the courts.’” Gee v. Pacheco, 627 F.3d
1178, 1189 (10th Cir. 2010) (quoting Smith, 899 F.2d at 947). To show retaliation, Plaintiff must
prove three elements: (1) Plaintiff was involved in “constitutionally protected activity”; (2)
Defendants’ behavior injured Plaintiff in a way that “would chill a person of ordinary firmness
from continuing to engage in that activity”; and (3) Defendants’ injurious behavior was

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“substantially motivated” as a reaction to Plaintiff’s constitutionally protected conduct. Shero v.
City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
The Court assumes--for purposes of this Order only--that the first two elements are met.
See Ellis v. Franco, No. CIV 15-0848, 2017 WL 3052503, at *8 (D.N.M. July 12, 2017) (report
& recommendation). This order will next consider whether (based on the undisputed material
facts) Defendants’ behavior (i.e., seizing legal pouches, recommending a three-year rehearing
date, and rejecting a grievance) was substantially motivated by their knowledge of Plaintiff
preparing to bring this lawsuit.
b. “But-For” Motivation
“[I]t is not the role of the federal judiciary to scrutinize and interfere with the daily
operations of a state prison.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). Thus,
“to satisfy the third prong of the First Amendment test, an inmate must allege specific facts
showing 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) (emphasis added)
(quoting Peterson, 149 F.3d at 1144 (internal quotation marks omitted)). This is a “heightened
standard” that requires that Plaintiff must show “a triable issue not only that retaliation for [his
preparation for this lawsuit] played a role in [confiscation of his legal pouches, three-year
rehearing recommendation, and grievance rejection] but that such retaliation was the decisive
factor.” Strope v. McKune, 382 F. App’x 705, 710 (10th Cir. 2010) (unpublished); see also
Smith, 899 F.2d at 949 (stating plaintiff must “prove that the actual motivating factor behind
defendants’ actions was retaliation for his prior or current litigation”); Strope v. Cummings, 381
F. App’x 878, 884 (10th Cir. 2010) (unpublished) (“Keeping in mind the rigorous burden placed

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on Strope to show not only that a retaliatory motive may have played some role in his transfer
but that such a motive was the strict but-for cause of his transfer, we conclude that he has failed
to make the necessary showing on this element to defeat summary judgment, i.e., his evidence
was ‘merely colorable’ at best and not ‘significantly probative.’”) (citations omitted). Therefore,
it was critical to Plaintiff’s avoidance of summary judgment that he provide evidence detracting
from Defendants’ alternative justifications for the confiscation, rehearing recommendation and
grievance rejection. See McKune, 382 F. App’x at 710.
Still, Plaintiff presented no evidence to undermine Defendants’ alternative justifications.
See id. Instead, his “attribution of retaliatory motive is conjectural and conclusory.” Cummings,
381 F. App’x at 883; see also Banks, 645 F. App’x at 774 n.2 (“A plaintiff’s subjective beliefs
about why the government took action, without facts to back up those beliefs, are not sufficient
to create a genuine issue of fact concerning [a] First Amendment retaliation claim.” (internal
quotation marks and citation omitted) (alteration in original)); Ellis, 2017 U.S. Dist. LEXIS
108683, at *21 (“An inmate’s mere speculation that actions taken by correctional officials were
in retaliation for the exercise of his First Amendment rights cannot defeat summary judgment.”)
While he may very well have participated in the protected activity of preparing a lawsuit, that by
itself does not provide the required nexus for his retaliation claim. See id. “If it did, litigious
prisoners could claim retaliation over every perceived slight and resist summary judgment
simply by pointing to their litigiousness.” Id. Of course, Plaintiff was not inoculated from
standard conditions of confinement simply because he was preparing a lawsuit. See id. The Tenth
Circuit has “consistently held that temporal proximity between protected activity and a
challenged prison action does not, in itself, demonstrate the causal nexus for a retaliation claim.”

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Id. While Plaintiff argues a time correlation, he does not show other circumstantial evidence that
might strengthen his hand--e.g., other “coincidences,” or patterns of behavior. See Smith, 899
F.2d at 949.
All that is left are Defendants’ explanations that legal-pouch confiscation was based on
need to remove contraband from Plaintiff’s cell; the rehearing recommendation was based on
Plaintiff’s failure to finish SOTP before BOP hearing; and the grievance was rejected consistent
with policy. See id. Even if Plaintiff firmly believes and is right that Defendants did not follow
UDOC’s procedures to the letter, isolated mistakes are not an actionable basis for a free speech
claim. See id. Even if Plaintiff firmly believes that the timing of the confiscation and rehearing
recommendation were closely tied together and could arouse suspicion that the events were
correlated, “temporal proximity per se is insufficient to show that the stated explanation for a
challenged action is pretextual.” Id.; see also Smith v. Drawbridge, No. CIV-16-1135-HE, 2017
U.S. Dist. LEXIS 175923, at *27 (W.D. Okla. Sept. 8, 2017) (report & recommendation) (stating
“’suspicious timing,’ without more, is insufficient to support a reasonable inference that these
actions” were taken because Plaintiff exercised constitutional rights). Defendants “have come
forward with reasons for essentially every action taken against [Plaintiff].” Northington v.
Zavaras, No. 99-1184, 2000 U.S. App. LEXIS 19113, at *10 (10th Cir. August 10, 2000)
(unpublished).
Beyond this categorical treatment of Defendants, it strains reason to infer that each of
these individual defendants retaliated on his or her own. First, the undisputed facts show that
Defendant M. Anderson instigated the retrieval of the contraband documents from Plaintiff. The
evidence shows that he originally provided those documents to Plaintiff, realized later that he

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had made a mistake in doing so, and then activated a process to retrieve them. There is not even
a hint of any other motive attributed to him. And no facts or inferences whatsoever connect him
with any other activity.
Second, Defendants Bussio and Gardner were involved in the retrieval of the contraband
documents and the production of the RR, but not the grievance rejection. It is undisputed that the
contraband retrieval was not their idea and that Defendants Bussio did not substantively
contribute to the RR. They were merely cogs, each carrying out his discrete function in the larger
processes.
Even so, it does appear that Defendant Gardner had the authority to play a significant role
in producing the RR, although he swears that he did nothing of the sort. Assuming he did--that
still avails Plaintiff nothing. There is undisputed evidence that the decision to include the threeyear rehearing recommendation was supported, at the least, by the fact that Plaintiff had not
completed SOTP. While Plaintiff characterizes the RR as “negative,” the actual language of the
RR and its many complimentary comments do not reflect that tone--e.g., “He is a well-balanced
individual mentally, physically, and emotionally.” The RR was not used by Defendants as a
signal to BOP to harshly punish Plaintiff.
Finally, the evidence extends no inkling that Defendant Casper knew of Plaintiff’s
lawsuit preparations. So, it does not follow that Defendant Casper denied Plaintiff’s grievance to
retaliate for those preparations. Moreover, as grievance coordinator for many years, Defendant
Casper was consistently denying or rejecting prisoner grievances, a steady proportion of which
were necessarily brought with a view to litigation. It simply is not logical to infer that she would
single out one grievance to reject, as retaliation for an inmate preparing a lawsuit.

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CONCLUSION
Plaintiff’s claims of conspiracy and retaliation fail due to his lack of evidence showing
that, but-for a motive of retaliation regarding Plaintiff’s exercise of his First Amendment rights,
Defendants would not have seized his legal pouches, submitted a three-year rehearing
recommendation, or rejected his grievance.
Because this order concludes that Defendants did not violate Plaintiff’s constitutional
right here, it will not address the second prong of the qualified-immunity analysis. Medina, 252
F.3d at 1128 (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must
grant the defendant qualified immunity.”). Defendants are granted qualified immunity.

ORDER
IT IS ORDERED that, based on futility, Plaintiff’s motion for discovery is DENIED.
(Docket No. 72.)
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is
GRANTED. (Docket No. 71.)
This action is DISMISSED.

DATED this 29th day of March, 2018.
BY THE COURT:

CHIEF JUDGE DAVID NUFFER
United States District Court

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