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Sarno v. Reilly

United States District Court, D. Colorado

July 22, 2014

GEORGE D. SARNO, Plaintiff,
v.
JOHN REILLY, Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant John Reilly's ("Reilly") Motion for Summary Judgment [#57][1] (the "Motion"). The Motion is referred to this Court for recommendation regarding disposition [#58]. Plaintiff, who proceeds in this matter pro se, [2] filed a Response [#59] in opposition to the Motion. Defendant Reilly filed a Reply [#63]. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#57] be GRANTED.

I. Summary of the Case

Currently, Plaintiff is incarcerated with the Colorado Department of Corrections ("CDOC") at Limon Correctional Facility ("LCF"). Am. Compl. [#18] at 2. Defendant Reilly is the Correctional Industries Supervisor, Level III, at LCF. Aff. of Reilly [#57-1] at 1, ¶ 2. Plaintiff initially brought three claims against Defendants Reilly, Donald Brightwell ("Brightwell"), and Dino Williams ("Williams") in their individual and official capacities, pursuant to 42 U.S.C. § 1983. Id. at 2-4. First, Plaintiff asserted a due process claim pursuant to the Fourteenth Amendment. Id. at 10. Second, Plaintiff, as a class of one, asserted an equal protection claim pursuant to the Fourteenth Amendment. Id. at 11. Third, Plaintiff asserted a retaliation claim pursuant to the First Amendment. Id. at 12. Plaintiff sought a declaratory judgment and injunctive relief against each Defendant in his official capacity and nominal, compensatory, and punitive damages against each Defendant in his individual capacity. Id. at 14. On March 20, 2013, all claims against Defendants Brightwell and Williams were dismissed, and all claims against Defendant Reilly were dismissed except for the equal protection and retaliation claims against him in his individual capacity for nominal and punitive damages and in his official capacity for prospective injunctive relief. Order [#33].

The Court construes the factual record in the light most favorable to Plaintiff, the non-movant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Plaintiff states that he "maintained an above average work rating for 20 years" while working at LCF. Am. Compl. [#18] at 4.[3] From 2005 to 2011, he worked at LCF's power sewing shop (the "Shop"). Id. "On September 21, 2011, after conducting pat down searches of offenders, Captain Robert R. Butcher [("Butcher")] informed [Defendant Reilly] that Plaintiff had six (6) plastic bags on his person that were discovered during the pat down search [(the "Incident")]." Aff. of Reilly [#57-1] at 1, ¶ 4. Plaintiff does not dispute that he left the Shop with plastic bags on his person. Response [#59] at 2. According to the Shop rules, "[r]emoving anything from the [S]hop that does not belong to you is grounds for termination." Aff. of Reilly [#57-1] Attach. A-3, at 10.

Later that day, Captain Butcher wrote an incident report about the Incident. Id. at 2, ¶ 9. In the summary of the report, Captain Butcher stated that Plaintiff was "found in possession of unauthorized items from [the Shop]." Id., Ex. A-1, at 5. Defendant Reilly "reviewed [Captain Butcher's] report the following morning around 7:00 A.M. and terminated Plaintiff for violating the [Shop] rules." Id. at 2-3, ¶ 9. In Defendant Reilly's report, he states that Plaintiff "was found, while leaving the shop for the day, to have 6 plastic bags.... These bags did not belong to [Plaintiff], nor was he authorized to take them from his work site.... [Plaintiff] is no longer eligible for employment in the [Shop].... [Plaintiff] is being laid in[4] pending Job Board decision of his job status." Id., Attach. A-2, at 8. According to Defendant Reilly, after he completed his report, Plaintiff's employment was no longer within his "discretion or authority." Id. at 3, ¶ 10. Defendant Reilly asserts that "[a]t the time of Plaintiff's termination, [he] had established a workable relationship with Plaintiff, and had no ill will towards him." Id. at 3, ¶ 14. During the period between the Incident and Plaintiff's termination, Defendant Reilly did not have "any contact with Plaintiff, and to [his] knowledge, no complaints or grievances had been communicated or filed." Id. at 3, ¶ 11.

Plaintiff submitted to the Court an excerpt of the CDOC Code of Penal Discipline (the "Penal Code"). Response [#59] Ex. 1, at 18, Ex. 2, at 19, Ex. 3, at 20. The Penal Code governs the administrative actions taken by Captain Butcher and Defendant Reilly in connection with the Incident. Id., Ex. 1, at 18. Plaintiff states that "unauthorized possession" is a Class II offense. Id. at 4 (citing id., Ex. 1, at 18). According to the Penal Code's Formal Disposition Procedures (the "Procedure"), "[a]fter review of the [CDOC] employee or contract worker's incident report for determination of charges, a Notice of Charges' will be prepared.... If a Class I or Class II charge(s) is brought against an offender, appropriate supervisor(s) must begin an independent review, as soon as possible, but no later than two working days after the date of discovery of the alleged violation."[5] Id., Ex. 1, at 18 (internal citation omitted).

Officer Brightwell, the only member of LCF's Job Board, determined Plaintiff's job status following the Incident. Am. Compl. [#18] at 5. According to Plaintiff, Officer "Brightwell changed [Plaintiff's job] status to unassigned." Id. "[U]nassigned status prohibits an inmate from having a job for 30 days and the inmates [sic] loses all of his privileges." Id.

On September 22, Plaintiff was informed by Sergeant Gossitt that Plaintiff "was being expelled from the incentive unit' and to pack his belongings to make ready for his relocation from Building Five to Building One which [LCF] defines as a transitional building, ' but in reality is just another punitive segregation concern." Response [#59] at 3. During Plaintiff's residency in Building One, "disciplinary and administrative segregation inmates were allowed a full hour out of their cells and allowed to exercise in their pod." Am. Comp. [#18] at 6. Plaintiff, however, could only leave his cell for "30 minutes daily from 7:00 PM to 7:30 PM Monday through Friday[]" and could not exercise in his pod. Id. Before the Incident, Plaintiff had followed an exercise regime in order to reduce his cholesterol levels. Id. Plaintiff's lack of exercise triggered "headaches, chest pains, and dizziness." Id. According to Plaintiff, his "mental health deteriorated to the point of paranoia [sic] experiences of dying in [his] sleep from a heart attack." Id. He "lost a lot [sic] of sleep from the experience and suffered physical pain." Id. Plaintiff believes that LCF's "treatment of [him] under Warden Angel Medina's scheduling order for general population inmates" is unusual for inmates with criminal sentences like his own. Id. at 8.

Sometime between September 22, 2011, and September 27, 2011, Plaintiff learned that "he was scheduled for an Investigative/Disciplinary Hearing' [(the "Hearing")], with then Hearing Officer Lieutenant Brian E. Milburn [("Milburn")]." Response [#59] at 4. When Plaintiff arrived at the Hearing, Officer Milburn "handed Plaintiff a copy of a formal disciplinary report (write-up) drafted by [Defendant Reilly] charging Plaintiff with the Class II violation of unauthorized possession....'" Id .; see Aff. of Reilly [#57-1] A-2, at 7-8. Although the record is unclear, this "write-up" may well be the Notice of Charges of which Plaintiff believes he was deprived regarding the unauthorized possession charge.

During the Hearing, Plaintiff "informed [Officer] Milburn that [he] had forgot [sic] to trash the bags after [he] threaded a sewing machine...." Id. Plaintiff "reminded [Officer] Milburn that between 2005 to 2011 that [sic] a number of older inmates like [himself] with no prior disciplinary reports had inadvertently taken out more serious items." Id. Plaintiff also reminded Officer Milburn that "William Littermier had taken out a metal screw-driver and was excused[;] Simson Bay had lost scissors and was excused[;] [and] Inmate Warner had lost a pair of nippers and was excused also." Id. Officer Milburn "advised [Plaintiff] that he was aware of the previous incidents with the other inmates...." Id. at 4-5. Officer Milburn told Plaintiff that he would "advise [Defendant Reilly]... [to not] charge [Plaintiff] with unauthorized possession." Id. at 5. Officer Milburn dismissed the unauthorized possession charge against Plaintiff.[6] Id. at 4. After the Hearing, contrary to Plaintiff's expectations, Plaintiff remained in Building One and was not permitted to return to his previous employment at the Shop. Id. at 4-5. Am. Compl. [#18] Ex. B-3, at 20. Plaintiff asserts that Officer Milburn told Plaintiff that he (Officer Milburn) spoke with Defendant Reilly about the Hearing's outcome and that Defendant Reilly "took offense" to Plaintiff's exoneration and terminated Plaintiff's employment in the Shop. Am. Compl. [#18] at 5. Defendant Reilly, however, denies that any such conversation occurred. Aff. of Reilly [#57-1] at 3, ¶ 12 (Defendant Reilly "did not have any correspondence with [Officer Milburn] at any time prior to the decision to terminate Plaintiff, and [he] do[es] not recall having any conversation with [Officer Milburn] regarding Plaintiff's employment."). Plaintiff's assertion cannot be considered at summary judgment because it is not based on Plaintiff's personal knowledge and it would not be admissible at trial. See Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); Fed.R.Evid. 802 ("Hearsay is not admissible..."); see also Allen v. Reid, No. 07-cv-01225-WDM-MJW, 2008 WL 1925106, at *2 (D. Colo. Mar. 31, 2008) (quoting Adams v. American Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)) ("Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because a third party's description of a witness' supposed testimony is not suitable grist for the judgment mill.'") (further internal quotation marks omitted).

In the Motion, Defendant Reilly argues that "Plaintiff's equal protection and retaliation claims against [him] in his individual capacity fail as a matter of law because [he] is entitled to qualified immunity." Motion [#57] at 7. According to Defendant Reilly, he "is entitled to qualified immunity on both Plaintiff's equal protection and retaliation claims because (1) there were no constitutional violations and (2) any constitutional right allegedly violated was not clearly established at the time of the events." Id. at 7-8. Defendant Reilly argues that there is no evidence that he violated Plaintiff's right to equal protection under the laws or that he retaliated against Plaintiff. Id. at 8, 12. Finally, Defendant Reilly argues that Plaintiff's requests for prospective injunctive relief and punitive damages fail as a matter of law. Id. at 17, 19.

In the Response, Plaintiff argues that, after his exoneration at the Hearing, he "was now entitled to a full restoration of all things that had been taken from him, (namely his job, and single-cell in the incentive unit)...." Id. at 13.[7] According to Plaintiff, the restoration never occurred because "in a malicious, retalitory [sic] response to the success of the Plaintiff at the [H]earing, [Defendant Reilly] drafted a computer entry stating that the Plaintiff was now being terminated for theft with prejudice [(the "Computer Entry")].'" Id. Plaintiff asserts that, in violation of the Penal Code, a CDOC employee or contract worker did not draft a Notice of Charges or a disciplinary report for this new charge, and Plaintiff did not receive a disciplinary hearing.[8] Id. at 5, 16-17; see id., Ex. 1, at 18, Ex. 2, at 19, Ex. 3, at 20. Finally, Plaintiff argues that "Defendant [Reilly] is not entitled to summary judgment" because the law of the case doctrine bars Defendant Reilly from repeating arguments set forth in the Motion to Dismiss. Id. at 17.

In the Reply, Defendant Reilly argues that Plaintiff presented a new equal protection argument in the Response and that he "has offered no evidence in support of ...


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