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Smith v. Russom

United States District Court, D. Colorado

December 1, 2014

NICKY SMITH, Plaintiff,


R. BROOKE JACKSON, District Judge.

This matter is before the Court on the November 4, 2014 Recommendation [ECF No. 48] of Magistrate Judge Craig B. Shaffer that the Court grant in part and deny in part the defendants' motion to dismiss [ECF No. 28]. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).


A detailed summary of the procedural and factual background of this case was provided in the Recommendation. As a brief overview, Plaintiff Nicky Smith is an inmate at the Arkansas Valley Correctional Facility ("AVCF") in Ordway, Colorado. Mr. Smith filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming violations of his Eighth Amendment right against cruel and unusual punishment, Fourteenth Amendment right to privacy and due process, and First Amendment right to access the courts and against retaliatory conduct. The defendants moved to dismiss all of the claims. Upon a thorough review, Judge Shaffer recommended the dismissal of all of the claims except for one: the First Amendment retaliation claim against Defendants Nelson and Halligan.

The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. [ECF No. 48 at 18-19.] The defendants filed a timely objection to the portion of the Recommendation maintaining the First Amendment retaliation claim [ECF No. 49]. The plaintiff did not file an objection. Upon de novo review, the Court finds that the First Amendment retaliation claim should have been dismissed along with the other causes of action. On clear error review, the Court affirms and adopts the dismissal of the remaining claims.


Following the issuance of a magistrate judge's recommendation on a dispositive matter, the district court judge must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). The district judge is permitted to "accept, reject, or modify the recommended disposition; receive further instruction; or return the matter to the magistrate with instructions." Id. "In the absence of timely objection, the district court may review a magistrate... [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.")).

Because Mr. Smith is appearing pro se, the Court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court may not act as the advocate of the pro se litigant, nor should it "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).


In response to the defendants' timely filed objection, the Court determines de novo whether the First Amendment retaliation claim warrants dismissal. For the following reasons, the Court finds that it does.

In his Amended Complaint, Mr. Smith alleges that on or about October 26, 2012 he wrote a grievance to his case manager, which he placed in a facility mailbox. [ECF No. 8 ¶ 3]. The grievance stated, in part:

That's why the police got killed at AVCF: if an inmate can't address his mental health issues to a professional in a clinical setting without being subject to punishments for his thoughts you are building many potential "powder kegs."

[ECF No. 28-1].[1]

Sergeant Nelson retrieved the grievance from the mailbox and after reading its contents placed handcuffs on Mr. Smith and took him to see Shift Commander Halligan. Am. Compl. [ECF No. 8] ¶ 3. Mr. Smith was immediately removed from the general population and placed in segregation for approximately two weeks. Id. According to the Disposition of Charges, Mr. Smith had been charged under the Code of Penal Discipline ("COPD") with a Class II, Rule 16 violation: Advocating or Creating Facility Disruption. Id. at 10.[2] Mr. Smith admits that he was "convicted ...

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