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Harvey v. Gonzalez

United States District Court, D. Colorado

December 28, 2015

SEARGENT [sic] GONZALEZ, individual and official, and SEARGENT [sic] SCHMUTLER, individual and official, Defendants.


R. Brooke Jackson United States District Judge

This matter is before the Court on the November 24, 2015 Recommendation of Magistrate Judge Nina Y. Wang, ECF No. 62, that the Court grant in part and deny in part defendants’ motion to dismiss plaintiff’s second amended complaint, ECF No. 38. Judge Wang also recommended that plaintiff’s prayer for punitive damages be stricken. For the reasons set forth herein, the recommendations are accepted. The Court also denies as moot a separate motion of the plaintiff concerning certain exhibits.


The plaintiff, Nathaniel J. Harvey, III, is an inmate in the Colorado State Penitentiary. Although he initially sued a number of individuals, the two remaining defendants are Sgt. Gonzalez and Sgt. Schmutzler. The remaining claims are that (1) Sgt. Gonzales violated Mr. Harvey’s constitutional rights by retaliating against him for filing inmate grievances, and (2) Sgt. Schmutzler violated Mr. Harvey’s constitutional rights by confiscating his only copy of the Qur’an.

With respect to the claim against Sgt. Gonzalez, Judge Wang noted, among other things, that Mr. Harvey attached copies of certain grievances (by which he exhausted his administrative remedies) to his Second Amended Complaint. In a grievance dated August 4, 2014, Mr. Harvey indicated that he had previously requested that he be moved to a unit away from Sgt. Gonzalez. ECF No. 20-1 at 1. In a grievance dated August 14, 2014 Mr. Harvey continued to complain about Sgt. Gonzalez’s retaliatory conduct, and he repeated his desire to be moved to a different unit. Id. at 2. But then, in a grievance form dated August 25, 2014, Mr. Harvey indicated that his housing placement was modified on August 15, 2014, and “there for [sic] the issue of staff harassment is resolved!” Id. at 3. Although the retaliatory conduct attributed to Sgt. Gonzalez was mentioned again in a grievance dated September 15, 2014, there was no indication in this grievance (or in the Second Amended Complaint) that Sgt. Gonzalez had continued his alleged retaliatory conduct after Mr. Harvey was moved to a different unit. Id. at 4.

Having considered the grievances as well as the allegations of the Second Amended Complaint, Judge Wang concluded that Mr. Harvey had not alleged sufficient facts plausibly to support a claim that he had suffered a cognizable injury or that he had sustained a constitutional violation as a result of retaliation by Sgt. Gonzalez. ECF No. 62 at 10-11.

On the other hand, Judge Wang found that Mr. Harvey had alleged facts that, if taken as true, were sufficient to state a claim against Sgt. Schmutzler for a constitutional violation under the Free Exercise Clause of the First Amendment. Sgt. Schmutzler had asserted that he is entitled to qualified immunity with respect to Mr. Harvey’s claim. “In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendant’s alleged misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011). Regarding the first prong of the qualified immunity “defense, ” Judge Wang presumed that Mr. Harvey’s religious beliefs are sincere and that the use of a Qur’an is necessary to the practice of his religion. She also assumed, to Mr. Harvey’s benefit at this stage of the case, that Sgt. Schmutzler confiscated Mr. Harvey’s only copy of the Qur’an; that Mr. Harvey then had to modify his religious practice; and that the resulting burden on his right of free exercise was not reasonably related to legitimate penological interests. Accordingly, for purposes of a motion to dismiss, she concluded that he had sufficiently alleged a constitutional violation. ECF No. 62 at 11-15.

Regarding the “clearly established” prong of the qualified immunity doctrine, Judge Wang concluded that there is a need to develop the factual record further (for example, concerning alterations to Mr. Harvey’s Qur’an, the reasons for confiscating it, and options for replacing it), and that the qualified immunity analysis could better be made at the summary judgment stage. Id. at 15-16.

Finally, Judge Wang found that the Second Amended Complaint did not identify sufficient facts that, even if taken as true, would show that Sgt. Schmutzler acted with an evil motive or intent or with reckless or callous indifference. Therefore, she recommended in substance that Mr. Harvey’s prayer for punitive damages be stricken.

The recommendation concluded with an advisement that any objection to the recommendation must be filed within 14 days after service of a copy of the recommendation. ECF No. 62 at 18 n.7. The recommendation was issued on November 24, 2015. Allowing three extra days for service, objections were due on December 11, 2015. Mr. Harvey’s objections were placed in inmate mail on December 15, 2015 and received by the court on December 18, 2015. ECF No. 65 at 1, 5.


A party may serve and file specific written objections to proposed findings and recommendations of a magistrate judge within 14 days after being served with a copy of the recommended disposition. Fed.R.Civ.P. 72(b)(2). The district court “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). However, “[i]n the absence of timely objection, the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).


Under the prison mailbox rule, an inmate’s objections are deemed to be filed when they were placed in the institution’s mailing system, regardless of the date the court received the document. Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). Even so, however, Mr. Harvey did not file timely objections to Judge Wang’s recommendation. Nor is a pro se litigant’s unfamiliarity with procedural rules an excuse here. Mr. Harvey was clearly and specifically advised of the deadline and the potential consequences for failure to meet it. ECF No. 62 at 18 n.7. He received a similar advisement from Judge Wang on April 7, 2015 when she issued an earlier recommendation in this case. ECF No. 31 at 3 n.2. And ...

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