Williams v. Utah Department of Corrections et al
MEMORANDUM DECISION & ORDER GRANTING IN PART STATE DEFENDANTS MOTION FOR SUMMARY JUDGMENT: 1. Summary judgment is GRANTED as to defendants swallow and Chipp, who are DISMISSED from this case with prejudice. 2. The summary judgment mot ion remains PENDING as to Defendants Blood, Nelson, and Burr. 3. The Court's prior Orders denying Plaintiffs motion for appointed counsel are VACATED (see docket entry 13 & 74), and the motions are now GRANTED (see docket entry 6, 65, and 68).4. The Clerk of Court must secure pro bono counsel to represent Plaintiff at this time in a limited capacity. 5. Counsel shall enter an appearance with fourteen days of appointment. 6. The Scope of this pro bono appointment is limited to assisting Plai ntiff. See order for details. 7. The scope of the limited appearance does note extend beyond these specific tasks. 8. When the purpose of this appointment has been completed, counsel is directed to file a Notice of Fulfillment of Limited Appointed. 9 . Within ninety days of entering appearance of counsel, Plaintiffs counsel shall file an amended response to the summary judgment motion still pending as to Defendants Blood, Nelson and Burr only. 10. Plaintiff must not file any more pleadings in this case before consulting his attorney. Signed by Judge Robert J. Shelby on 09/27/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GREGORY E. WILLIAMS,
MEMORANDUM DECISION & ORDER
DEFENDANTS' MOTION FOR
CAPT. DEVON BLOOD et al.,
Case No. 2:13-CV-601-RJS
District Judge Robert J. Shelby
Plaintiff, Gregory E. Williams, is a pro se plaintiff proceeding in forma pauperis and
alleging in an amended complaint1 that remaining Defendants Blood, Nelson, Burr, Swallow and
Chipp violated his federal rights.2 Specifically, he asserts that Defendants Blood, Nelson, and
Burr violated (1) his free exercise of religion under the First Amendment; (2) the Religious Land
Use and Institutionalized Persons Act (RLUIPA)3; and the Equal Protection Clause. And he
asserts that Defendants Swallow and Chipp unconstitutionally retaliated against him for seeking
to freely exercise his religion.
Defendants move for summary judgment on these claims.4 The motion is opposed.5 The
Court grants summary judgment as to Defendants Swallow and Chipp.
(Docket Entry # 14.)
Earlier orders have granted dismissal of other defendants. (See Docket Entry #s 74 & 79.)
42 U.S.C.S.§§ 2000cc-1 - 2000cc-5 (2017).
(Docket Entry # 121.)
(Docket Entry # 128.)
(1) As a state prisoner in the Utah Department of Corrections (DOC) Inmate Placement
Program (IPP), from April 2, 2010 until May 6, 2010, Plaintiff was held in Millard
County Jail (MCJ).6
(2) Plaintiff filed a grievance about his religious-diet accommodations.7
(3) Plaintiff met with [dismissed] Defendant Gehre about his grievance. After the
meeting, Defendant Gehre made a note in the Jail Events Summary Report (JESR):
“Williams stated that right now he would be more comfortable going back to prison
where his meals are pre-packaged to be kosher.”8
(4) Two days later, Plaintiff met with [dismissed] Defendant Winget. After that meeting,
Defendant Winget made a note in the JESR: “I related to Mr. Williams that I would
get him to where his needs were able to be met, if he felt that we were not meeting
(5) On April 26, 2010, the possibility of transferring Plaintiff out of MCJ was discussed
with IPP Coordinator Defendant Swallow and perhaps by e-mail with Defendant
Chipp.10 On May 6, 2010, Plaintiff was moved from MCJ.11
This 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.”12 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,
(Gehre Decl., Docket Entry # 43-1, at ¶ 9.)
(JESR for April 24, 2010, Docket Entry # 43-8.)
(Id. for April 26, 2010)
Amended Compl. at 9.)
(Gehre Decl., Docket Entry # 43-1, at ¶ 3.)
Fed. R. Civ. P. 56(a)
interrogatory answers, or other materials.”13 The purpose of the summary-judgment rule “is to
isolate and dispose of factually unsupported claims or defenses.”14
The movant bears the initial burden “to demonstrate an absence of evidence to support an
essential element of the non-movant’s case.”15 If the 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.”16 In meeting this burden, 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.”17 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.”18
• No Genuine Dispute of Material Facts
This Court notified Plaintiff 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.”19 In
Plaintiff’s response, he did not identify material facts that are in dispute.
Id. at 56(c)(1).
Celotex v. Catrett, 477 U.S. 317, 324 (1986).
Johnson v. City of Bountiful, 996 F. Supp. 1100, 1102 (D. Utah 1998).
Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).
Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (citations omitted).
(Docket Entry # 15 at 3.)
• Undisputed Facts Support Dismissal of Retaliation Claim
A plaintiff bringing a retaliation claim “must prove that ‘but for’ the retaliatory motive,
the incidents to which he refers, including the disciplinary action, would not have taken place.”20
A plaintiff must also “allege specific facts showing retaliation because of the exercise of the
prisoner’s constitutional rights.”21 Plaintiffs asserting retaliation also have the option of using
circumstantial evidence to show a reasonable jury would find the allegations of retaliation were
supported, rather than direct evidence of retaliatory motive.22 In response, defendants may raise
“a legitimate and facially plausible explanation for the transfer.”23
Plaintiff has provided no direct or circumstantial evidence to show that Defendants
Swallow and Chipp initiated the discussion that led to his transfer to retaliate for his expressed
concerns about his religious diet. At most, Plaintiff’s Amended Complaint implicitly points only
to the close time proximity between his grievances about religious meals and the transfer.
However, mere temporal proximity of constitutionally protected speech and alleged retaliation is
insufficient to meet this requirement.24
The evidence here shows a legitimate and plausible reason for jail and prison officials to
initiate Plaintiff’s transfer--i.e., that Plaintiff himself expressed that he wanted a transfer.
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation marks omitted).
Id. (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990) (emphasis in original).
See Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (stating circumstantial evidence included suspicious
timing of discipline, coincidental transfers of plaintiff’s witnesses and assistants, and pattern of blocking access to
legal materials and help).
See Strope v. Cummings, 381 Fed. Appx. 878, 883 (10th Cir. 2010) (unpublished) (noting defendants explained
transfer of inmate to other unit allowed him to resume visits “with a particular counselor with whom he had a good
See Wright v. McCotter, No. 98-4095, 1999 U.S. App. LEXIS 11576, at *4 (10th Cir. Feb. 19, 1999)
Moreover, even if Plaintiff did not request the transfer--which is what he asserts and is the only
dispute of fact--Defendants Swallow and Chipp have another (stand-alone) legitimate and
plausible reason for initiating the transfer--i.e., that they saw UDOC as better capable of meeting
Plaintiff’s dietary restrictions elsewhere.
The Court now identifies a couple of other interesting and supportive points. First,
Plaintiff has no right to be in any particular facility. 25 Second, he has suggested no prejudice; in
other words, he does not specify how MCJ was a better fit for him than any other facility. He has
not identified what it is about any other facility, to which he may have been moved, that might
function as a true punishment or detriment leading to an inference of retaliation.26
Accordingly, this Court concludes that Plaintiff has not shown facts that but-for a
retaliatory motive, by Defendants Swallow and Chipp, he would not have been transferred.
Defendants have stated a legitimate, facially plausible reason for the transfer, a reason that
Plaintiff has not challenged. Plaintiff’s First Amendment retaliation claim against Defendants
Swallow and Chipp fails as a matter of law and is dismissed with prejudice.
REMAINING ISSUES AND DEFENDANTS
The remaining issues regard CUCF’s discontinuation of Islamic congregational meetings
during a time when UDOC policy dictated that the meetings must be led by an affiliated,
approved volunteer from outside the prison. Regarding that situation, Plaintiff states claims that
his free exercise, RLUIPA, and equal protection rights were breached by the only remaining
See Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (“The Constitution . . . does [not] guarantee that a convicted
prisoner will be placed in any particular prison . . . . The conviction has sufficiently extinguished the defendant’s
liberty interest to empower the State to confine him in Any Of [sic] its prisons.”) (alterations in original).
Cf. Harris v. Chabries, 114 Fed. Appx. 363, 365 (10th Cir. 2004 (unpublished) (quoting Sandin v. Conner, 515
U.S. 472, 485 (1995) (holding “atypical and significant hardship . . . in relation to the ordinary incidents of prison
life” would trigger constitutional protection)).
three defendants--Devon Blood, Shane Nelson, and Craig Burr. These issues have some
complexity that appears to elude Plaintiff’s capacity to fully express and argue them from prison.
The Court therefore tables them for now and revisits its denials of Plaintiff’s past motions for
APPOINTMENT OF PRO BONO COUNSEL
Plaintiff has no constitutional right to counsel.27 However, the Court may in its discretion
appoint counsel for indigent inmates.28 "The burden is upon the applicant to convince the court
that there is sufficient merit to his claim to warrant the appointment of counsel.”29
When deciding whether to appoint counsel, the district court should consider a variety of
factors, "including 'the merits of the litigant's claims, the nature of the factual issues raised in the
claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by
the claims.'"30 Considering the above factors, the Court concludes here that, at this time,
Plaintiff's remaining claims may be colorable, the issues in this case are possibly complex, and
Plaintiff is unable to adequately function in pursuing this matter.
In light of these factors, the Court reconsiders Plaintiff's Motions for Appointed Counsel.
The Court vacates its prior denial of Plaintiff's motions for appointed counsel and now grants
them. Plaintiff will be notified once counsel enters an appearance on his behalf.
See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir.
See 28 U.S.C.S. § 1915(e)(1) (2017); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996); accord McCarthy,
753 F.2d at 838-39
IT IS HEREBY ORDERED:
Summary judgment is GRANTED as to Defendants Swallow and Chipp, who
are DISMISSED from this case with prejudice.31
The summary-judgment motion remains PENDING as to Defendants Blood,
Nelson, and Burr.32
The Court's prior Orders denying Plaintiff's motion for appointed counsel are
VACATED, (see Docket Entry #s 13 & 74), and the motions are now
GRANTED, (see Docket Entry #s 6, 65 & 68).
The Clerk of Court must secure pro bono counsel to represent Plaintiff at this
time in a limited capacity.
Counsel shall enter an appearance within fourteen days of appointment.
The scope of this pro bono appointment is limited to assisting Plaintiff in (a)
drafting an amended response to the summary-judgment motion as to
Defendants Blood, Nelson, and Burr only33; and (b) obtaining any discovery
necessary to determine the content of an amended response.
The scope of the limited appearance does not extend beyond these specific
When the purpose of this appointment has been completed, counsel is directed
to file a Notice of Fulfillment of Limited Appointment.
Within ninety days of entering appearance of counsel, Plaintiff's counsel shall
file an amended response to the summary-judgment motion still pending as to
Defendants Blood, Nelson, and Burr only.
Plaintiff must not file any more pleadings in this case before consulting his
(Docket Entry # 121.)
Effective now, any documents submitted directly to the Court by Plaintiff will
be returned to him.
Plaintiff’s motion to compel discovery is DENIED, pending review and
possible resubmission after Plaintiff’s counsel evaluates the case.34
DATED this 27th day of September, 2017.
BY THE COURT:
ROBERT J. SHELBY
United States District Judge
(Docket Entry # 133.)
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