Rippey v. Utah Department of Corrections et al
Filing
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MEMORANDUM DECISION granting 46 Motion for Summary Judgment. 1. Dft's UDOC and Bigelow are DISMISSED for failure to state a claim upon which relief may be granted. 2.Claim regarding violation of state code is DISMISS ED for failure to state a claim upon which relief may be granted. 3. Dft Blood and Defendant Larsen's Motion for Summary Judgment is granted. 4. Dft's Peterson's Motion for Summary Judgment is GRANTED because the claim against him is moot. 5. With no controversy remaining in this Court, this action is CLOSED. Signed by Judge Clark Waddoups on 06/19/2020. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEPHEN RIPPEY,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT
vs.
Case No. 2:18-cv-151
UTAH DEP'T OF CORR. ET AL.,
Judge Clark Waddoups
Defendants.
Plaintiff, Stephen Rippey, is a pro se prisoner proceeding in forma pauperis. (ECF No.
3.) In this civil-rights complaint, filed pursuant to 42 U.S.C.S. § 1983 (2020), he names the
following Defendants: Utah Department of Corrections (UDOC); former Central Utah
Correctional Facility (CUCF) warden Bigelow; Deputy Warden Blood (CUCF); and Captains
Larsen and Peterson (CUCF). (ECF No. 4.) He asserts that Defendants violated his federal
constitutional rights by retaliating against him for filing grievances. (Id.) He further asserts
Defendants violated a state statute because he is "being forced to stay at the Prison's [Sex
Offender Treatment Program]." (Id.)
In his complaint, Plaintiff only requests injunctive relief:
Safe, gang-free appropriate housing; freedom from staff
harassment/retaliation; not to be forced to do the [sex offender]
program. Reimbursement of lost (stolen by UDOC) property.
Whatever this Court may deem appropriate. My mental and
physical damage is irreparable. I would like psychiatric help by a
psychiatrist not affiliated with the State of Utah. At least weekly
therapy. I want the UDOC to stop harassing inmates. No more
retaliation and retribution. To be free from active gang members
who routinely assault [sex offenders].
(Id. at 7-8.) Though Plaintiff does not specify, the Court assumes that he sues Defendants solely
in their official capacities. See Staples v. United States, 762 F. App'x 525, 529 (10th Cir. 2019)
(unpublished) ("§ 1983 authorizes official-capacity claims only for injunctive relief and not for
damages.") (citing Hafer v. Melo, 502 U.S. 21, 30 (1991)).
Defendants now move for summary judgment. The Court grants the motion, but first
screens out two defendants and a claim. See 28 U.S.C.S. § 1915A (2020) (stating "court shall
dismiss the case at any time if the court determines that . . . fails to state a claim on which relief
may be granted").
I. SUA SPONTE DISMISSAL
A. GROUNDS FOR DISMISSAL
Evaluating a complaint for failure to state a claim upon which relief may be granted, this
Court takes all well-pleaded factual assertions as true and regards them in a light most
advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed
a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is on the plaintiff
to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is
entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civilrights complaint contains "bare assertions," involving "nothing more than a 'formulaic recitation
of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory
and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (quoting
Twombly, 550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the
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complaint must give the court reason to believe this plaintiff has a reasonable likelihood of
mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original).
This Court must construe pro se "'pleadings liberally,' applying a less stringent standard
than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional
factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's
behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted).
This means that if this Court can reasonably read the pleadings "to state a valid claim on which
the plaintiff could prevail, it should do so despite the plaintiff'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). Still, it is not "the proper function of the district court to assume the role of advocate for
the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).
B. IMMUNITY
"[T]he Eleventh Amendment bars federal court jurisdiction over a state agency for both
money damages and injunctive relief . . . ." Hobbs v. Okla. State Penitentiary, 673 F. App'x 837,
839 (10th Cir. 2016) (unpublished) (quoting Ellis v. Univ. of Kan. Med. Ctr., 1186, 1196 (10th
Cir. 1998)). Because UDOC is a state agency, it is therefore dismissed from this action.
C. AFFIRMATIVE LINK
The complaint must clearly state what each individual defendant did to violate Plaintiff's
civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating each
defendant’s personal participation is essential allegation). "To state a claim, a complaint must
'make clear exactly who is alleged to have done what to whom.'" Stone v. Albert, No. 08-2222,
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slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff may not name an individual as a
defendant based solely on a supervisory role. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th
Cir. 1996) (stating supervisory status alone does not support § 1983 liability). And, "denial of a
grievance, by itself without any connection to the violation of constitutional rights alleged by
plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, No. 093113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov. 24, 2009).
Regarding Defendant Warden Bigelow, Plaintiff has stated only that he "allowed
retribution." As an aside, review of the evidentiary materials submitted by both parties reveals
that he at most denied grievances. (ECF Nos. 4-3, at 2; 29-4, at 4-5; 32, at 11; 33, at 12.)
Defendant Bigelow's activities of supervising prison staff and denying grievances may not
qualify as personal participation in breaching Plaintiff's constitutional rights; therefore,
Defendant Bigelow is also dismissed.
D. STATE-CODE VIOLATION
Plaintiff asserts violation of Utah Code Ann. § 64-9b-4 (2020) ("Rehabilitative and job
opportunities at the Utah state prison and participating county jails shall not be forced upon any
inmate contrary to the Utah Constitution, Article XVI, Section 3(2), but instead shall be on a
completely voluntary basis."). (ECF No. 4, at 5.) Specifically, he alleges that, on January 25,
2018, he was "forced to stay at the [USP Sex Offender Treatment Program (SOTP)]." (Id.)
Section 1983, under which this federal civil-rights complaint was brought, states in
pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .
42 U.S.C.S. § 1983 (2020) (emphasis added).
"It is well established . . . that a state's violation of its own laws does not create a claim
under § 1983." Rector v. City & County of Denver, 348 F.3d 935, 947 (10th Cir. 2003).
This claim is therefore dismissed.
II. SUMMARY JUDGMENT
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.” 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
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“examine the factual record and reasonable inferences therefrom in the light most favorable to
the party opposing the motion.” Sealock v. Colorado, 218 F.3d1205, 1209 (10th Cir. 2000).
Plaintiff was specifically notified by the Court of his burden on summary-judgment as
follows:
Plaintiff is . . . notified that, if Defendant moves for summary
judgment, Plaintiff cannot rest upon the mere allegations in the
complaint. Instead, as required by Federal Rule of Civil Procedure
56(e), to survive a motion for summary judgment Plaintiff must
allege specific facts, admissible in evidence, showing that there is a
genuine issue remaining for trial.
(ECF No. 12, at 3.)
A. EXHAUSTION
Based on Plaintiff’s failure to exhaust his administrative remedies through the prison
grievance process, Defendants move for summary judgment on all other claims and defendants
except for the retaliation claim against Defendant Peterson. 1 (ECF No. 46.) Defendants support
their motion with a Martinez report (including declarations and grievance policy and records)
and memorandum. (See ECF Nos. 29-33.) Plaintiff responds to the motion, (see ECF Nos. 48-49,
51-52); with his complaint and responses to the summary-judgment motion, he includes copies
of his grievance documents, (ECF Nos. 4-1, 3-18; 4-5, at 7-8.) Neither of his two grievances
mention Defendants Blood or Larsen. The Court therefore rules for Defendants.
1
Though the claims clearly stated in Plaintiff's Complaint are retaliation and state-code violation, (ECF No. 4, at 45), Plaintiff's requested relief, (id. at 7-8), and responses to Defendants' Martinez report and summary-judgment
motion, (ECF Nos. 48-49), wander into allegations of other slights and possible claims. These other slights and
possible claims are either not properly before the Court or not viable, as they (a) are not listed as causes of action in
the complaint as required for them to give fair notice of Plaintiff's claims to Defendants and the Court, Fed. R. Civ.
P. 8; (b) are generally unlinked to particular named Defendants (e.g., Plaintiff's gripe regarding his lost or stolen
property states, "Sgt LeMmon and Sgt Anderson did not forward [Plaintiff's] laundry bags to him," (ECF No. 48, at
12), but these sergeants are not named defendants and therefore not parties to this litigation); and (c) are not the
subject of either of the two grievances completed by Plaintiff, and thus may not pass § 1997e(a)'s threshold under
which exhaustion of administrative remedies is required to allow merits consideration. 42 U.S.C.S. § 1997e(a)
(2020).
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Summary judgment is appropriate when “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] mere
factual dispute will not preclude summary judgment; instead there must be a genuine issue of
material fact.” See Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Here, Plaintiff
admits that he did not exhaust his claims. 2 Thus, there is no dispute of material fact.
2
In his response to Defendants' Martinez report, when discussing his failure to file other grievances, Plaintiff states,
Plaintiff has not, and will not file another grievance while incarcerated for fear
of additional retaliation and unwarranted punishment. Plaintiff has taken a big
risk by filing this complaint against the UDOC and anxiously awaits the
conclusion of these proceedings as he fears additional retaliation by Defendants-named and unnamed--as Plaintiff will likely still be incarcerated by the State of
Utah.
(ECF No. 48, at 20.) This self-serving statement is not sworn or supported by evidence of any kind.
Many of Plaintiff's other statements belie his "fear"--i.e., he speaks boldly of his many retorts and demands of
UDOC staff in his second grievance, (ECF No. 33), filed after the first grievance, (ECF No. 32), that he alleges
triggered the "retaliation." For instance, in his second grievance, he stated,
The retaliation for filing a grievance against Birch Sergeant Lemond [sic] is a
petty example of Peterson overstepping his authority by moving me, instead of
dealing with the real problem, which is Lemond's inappropriate passiveaggressive behavior. I'm sure Peterson's objective is to have me physically
assaulted to teach me a lesson.
(ECF No. 33.) This does not sound like an inmate who was "chill[ed] . . . from continuing to engage in that activity."
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Further undercutting Plaintiff's assertion that his grievance filings were chilled by fear of retaliation, it is
undisputed that the "retaliation" Plaintiff asserts happened did not involve anything particularly substantive--e.g.,
moved to housing (Elm) comparable to his original housing (Birch). (ECF No. 29-1 (stating Elm and Birch were
both general population housing for Level 3 and 4 inmates offering "same benefits such as recreation, programming
access, etc.").) In fact, two main hardships Plaintiff cites as stemming from "retaliation" are: (1) The unit he was
moved from (Birch 1) had people around his own age (48); whereas the unit to which he moved (Elm 6) had an
average age of people in their twenties. (ECF No. 48, at 11.) (2) "I lost access to X-Box, microwave, hot water
dispenser, and swinging doors that allow a semblance of dignity while toileting." (ECF No. 4-2, at 7.) These
deprivations are de minimis at best and clearly do not rise to the level of "an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life," which seems like an appropriate standard for sake of
comparison. Sandin v. Conner, 515 U.S. 472, 484 (1995).
Also undermining Plaintiff's narrative of fear, the undisputed alternative reasons Defendant Peterson had for
moving Plaintiff from Birch to Elm (e.g., separating Plaintiff from LeMmon, changing up housing assignment in
regular course of corrections business, and Plaintiff's apparent complacency that resulted in his violation of rules and
disrespect toward Birch staff) appear to keep Plaintiff from satisfying "the third prong of the First Amendment test,
[in which] 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 Plaintiff to show “a triable issue not only that retaliation for [filing of grievances] played a role in [denying
privileges, moving Plaintiff to more restrictive housing and confiscating property] but that such retaliation was the
decisive factor.” Strope v. McKune, 382 F. App’x 705, 710 (10th Cir. 2010) (unpublished).
Finally, Plaintiff's assertions of potential assaults in new housing, when no such assaults actually happened, also
rings hollow as to his fear of retaliation for filing grievances. Cf. 42 U.S.C.S. §1997e(e) (2020) ("No Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act . . . .").
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And, there are but two material facts: (1) the prison grievance policy requires that
grievances be filed within certain time frames. (ECF Nos. 29-7; 29-9.) (2) Plaintiff did not file
grievances as to any other defendant or claim in his Complaint, except regarding Defendant
Peterson allegedly retaliating against him. (ECF No. 33, at 3.) Nothing else is relevant.
The United States Supreme Court and the Tenth Circuit have held that the exhaustion
requirement must be met to bring a § 1983 claim in federal court under PLRA:
[PLRA] imposes a mandatory exhaustion requirement on inmates
challenging prison conditions in federal court: “No action shall be
brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a)[.] .
. . An inmate’s failure to exhaust is an affirmative defense and the
burden is on the defendant to prove the failure to exhaust. See
Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798
(2007); Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir.2007).
Thomas v. U.S. Bureau of Prisons, 282 F. App'x 701, 703 (10th Cir. 2008) (unpublished)
(citation omitted).
The Supreme Court has held that the PLRA requires “proper exhaustion.” Woodford v.
Ngo, 548 U.S. 81, 90 (2006). “Proper exhaustion” equals “’using all steps the agency holds out,
and doing so properly (so that the agency addresses the issues on the merits).’” Id. (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002)) (emphasis in original). In Ngo, the Supreme
Court concedes “this will prevent certain prisoner cases from proceeding, but notes that a
‘centerpiece of the PLRA’s effort to reduce the quantity . . . of prisoner suits is an “invigorated”
exhaustion provision, § 1997e(a).’ ‘Exhaustion is no longer left to the discretion of the district
court, but is mandatory.’” Tung v. Hartley, No. 1:08-CV-457-AWI, 2012 U.S. Dist. LEXIS
30895, at *3 (E.D. Cal. Mar. 8) (citations omitted) (ellipses in original).
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Here, to exhaust administrative remedies, by written policy, the grieving inmate must go
through each of three levels by certain deadlines. (Docket No. 29-9.) Because Plaintiff did not do
so, he therefore did not exhaust his administrative remedies. Booth, 532 U.S. at 741 n.6. Claims
against Defendants Blood and Larson are thus dismissed.
B. RETALIATION CLAIM AGAINST DEFENDANT PETERSON
Plaintiff asserts that Defendant Peterson retaliated against him for filing a grievance by
moving him to less advantageous housing. For this, he seeks the following injunctive relief:
"freedom from . . . retaliation" and "safe, gang-free appropriate housing."
But, the undisputed facts show that Plaintiff is now at Utah State Prison and Defendant
Peterson is still at CUCF. (ECF Nos. 29-1, at 2; 53, at 3.) Thus, Plaintiff's claim against
Defendant Peterson is moot because Plaintiff "is no longer housed at [CUCF] where [Defendant
Peterson is] located." Williams v. Wilkinson, 645 F. App'x 692, 697 (10th Cir. 2016)
(unpublished); see also Jordan v. Sosa, 654 F.3d 1012, 1027028 (10th Cir. 2011) (explaining
inmate's official-capacity claim for injunctive relief against prison official is mooted when
inmate transferred to different facility).
Thus, Defendant Peterson--even were he inclined to do so--lacks authority to move
Plaintiff to gang-infested, unsafe housing, to retaliate against him for filing any grievances
(which presumably Defendant Peterson would not even know about considering they would be
filed in another facility). Under the undisputed facts, then, summary judgment is granted for
Defendant Peterson.
III. CONCLUSION
Accordingly, IT IS ORDERED that:
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(1) Defendants UDOC and Bigelow are DISMISSED for failure to state a claim upon which
relief may be granted.
(2) Claim regarding violation of state code is DISMISSED for failure to state a claim upon
which relief may be granted.
(3) Defendant Blood and Defendant Larsen's Motion for Summary Judgment is GRANTED
based on Plaintiff's failure to exhaust his administrative remedies. (ECF No. 46.)
(4) Defendant Peterson's Motion for Summary Judgment is GRANTED, (id.), because the claim
against him is moot.
(5) With no controversy remaining in this Court, this action is CLOSED.
DATED this 19th day of June, 2020.
BY THE COURT:
_____________________
Clark Waddoups
United States District Judge
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