United States District Court, D. Colorado
ORDER ADOPTING AND AFFIRMING AUGUST 14, 2014 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on the August 14, 2014 Recommendation by United States Magistrate Judge Kathleen M. Tafoya that the following be granted in part and denied in part: Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1) (Doc. # 35), and Defendant Amy Cosner's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. # 42). Judge Tafoya also recommends that Plaintiff's Combined Objection to Dismissal of Claim IX and Motion Requesting Leave to File Second Amended Complaint (Doc. # 49) be granted. (Doc. # 61.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 35.) Both Defendants and Plaintiff requested an extension of time to file objections, which the Court granted. (Doc. ## 63, 66.) Thereafter, Defendants filed an objection to Judge Tafoya's Recommendation. (Doc. # 68.) Plaintiff did not timely object to the Recommendation.
When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
Defendants object to Judge Tafoya's recommendation that claims two, three, four, five, and eight move forward against certain Defendants. Defendants also ask that this Court find that if any one of those claims are dismissed for lack of a constitutional violation, Defendants are entitled to qualified immunity, which requires Plaintiff establish that Defendants' actions violated a constitutional or statutory right. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (the right must also be clearly established at the time of the defendant's alleged unlawful conduct). The Court will address these contentions in turn.
A. CLAIM TWO
Magistrate Judge Tafoya determined that Defendants did not carry their burden to show that res judicata barred Plaintiff's second claim because it was unclear whether there was a final judgment on the merits in Plaintiff's state case. However, Defendants have provided an order from the state court stating that it granted Plaintiff's motion for post-trial relief in error. (Doc. # 68-1.) Thus, the judgment in that case is final. Accordingly, Defendants' objection is sustained and claim two is dismissed.
B. CLAIMS THREE, FOUR, AND FIVE
Plaintiff asserts several First Amendment retaliation claims, which require that he allege:
(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 activity.
Allen v. Avance, No. 11-6102, 2012 WL 2763508, at *5 (10th Cir. July 10, 2012) (quoting Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)). "[A] plaintiff must prove that but for the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998) (internal quotation marks and citation omitted).
First, Defendants object to Judge Tafoya's recommendation that Plaintiff's third claim move forward against Defendants Mathill-Aaron and Gabriel. Defendants argue that Magistrate Judge Tafoya's recommendation "essentially holds that, any time an inmate files a grievance or lodges a complaint against corrections personnel, any subsequent disciplinary action would establish an actionable claim for retaliation...." (Doc. # 68 at 4.) Judge Tafoya concluded that Plaintiff properly stated a claim against Defendants Mathill-Aaron and Gabriel "based on the temporal proximity of Plaintiff's interactions with Defendants, Plaintiff's grievances, and Plaintiff's subsequent placement in segregation...." (Doc. # 61 at 16.)
The Court disagrees with Defendants' argument that Plaintiff's claim against Defendant Mathill-Aaron is insufficient because Plaintiff fails to state sufficient facts from which the Court can reasonably infer that, but for the grievance Plaintiff filed against her, Plaintiff would not have been disciplined for holding open the chowhall door in violation of her order. Plaintiff specifically alleges that he previously held the door open for inmates entering the chowhall without incident. Thus, Plaintiff has alleged facts from which the Court may infer that Defendant Mathill-Aaron disciplined Plaintiff on September 29, 2011 and October 4, 2011, for behavior she did not find objectionable prior to the time Plaintiff filed his state action on September 26, 2011. See Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990) (finding it reasonable to infer that prison officials retaliated against inmate where discipline was in close temporal proximity to inmate's lawsuit and he was not previously disciplined for his alleged infraction).
Likewise, the Court agrees with Magistrate Judge Tafoya that Plaintiff has stated a claim against Defendant Gabriel. Defendants argue that Plaintiff's "allegations are devoid of any specific facts that would suggest a retaliatory intent." (Doc. # 68 at 7.) However, in addition to the temporal proximity of prison officials placing Plaintiff in administrative segregation shortly after he filed his state suit, the Tenth Circuit has acknowledged that determinations of a person's intent is a credibility determination typically left to the fact finder. See Smith, 899 F.2d at 949. At this stage in the proceedings, construing ...