United States District Court, D. Colorado
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE
The matter before is defendants’ Motion for Summary Judgment [#164],  filed November 25, 2015. I grant the motion.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Summary judgment is proper 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000).
The two remaining defendants in this lawsuit, Officer John Marquez and Lieutenant Tom Beneze, seek summary judgment as to the sole remaining claims: an Eighth Amendment claim of deliberate indifference against Officer Marquez in his individual capacity, and a Fourth Amendment claim for unreasonable seizure against Lieutenant Beneze in his individual capacity. Defendants now seek summary judgment, claiming qualified immunity. Plaintiff has not submitted a response to the motion. (See Amended Order Lifting Stay and Directing Submission of Dispositive Motions [#160], filed November 19, 2015.) Although such failure does not entitle defendants to a “default” summary judgment ipso facto, see Murray v. City of Tahlequah, Oklahoma, 312 F.3d 1196, 1200 (10th Cir. 2002), the uncontroverted facts established by the evidence submitted with their motion entitle them to judgment in their favor.
A state official is immune from civil liability unless his actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert. denied, 122 S.Ct. 96 (2001). To overcome this immunity, plaintiff must establish both that defendant violated his rights under federal law and that such rights were clearly established at the time of the violation. Greene v. Barrett, 174 F.3d 1136, 1142 (10thCir. 1999). A reviewing court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). See also Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). As plaintiff has failed to establish the existence of cognizable constitutional violations as to either of his claims, both fail on the first prong of the analysis.
Plaintiff alleges that Officer Marquez was deliberately indifferent to a serious risk of harm to plaintiff when, knowing plaintiff had been placed on a mental health watch, he placed plaintiff in a cell at the Fremont Correctional Facility in which a television cable was hanging from the wall, with which plaintiff attempted to hang himself. This claim appears to hinge entirely on plaintiff’s (unsubstantiated) allegation that, more than a year after the incident, another inmate related that Officer Marquez had stated (after the incident) that plaintiff had been placed in the cell “to finish the job of killing himself.” (Second Am. Compl. at 14 [#20], filed March 7, 2013.)
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII. As applied to prisoners, it guarantees “humane conditions of confinement guided by ‘contemporary standards of decency.’“ Penrod v. Zavaras, 94 F .3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)). It thus “prohibits punishments which . . . involve the unnecessary and wanton infliction of pain, ” are “grossly disproportionate to the severity of the crime, ” or result in an “unquestioned and serious deprivation of basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 346-47, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations omitted). To safeguard the rights guaranteed by the Eighth Amendment, prison officials must “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (citation and internal quotation marks omitted).
To recover on this claim, plaintiff must make two showings, one objective, the other subjective. With respect to the first prong of the test, plaintiff must prove that the conditions of his confinement objectively posed a “substantial risk of serious harm.” Id., 114 S.Ct. at 1977; see also Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996). That is, “the deprivation alleged must be, objectively, sufficiently serious” so as to result “in the denial of the minimal civilized measure of life’s necessities.” Farmer, 114 S.Ct. at 1977 (citations and internal quotation marks omitted).
The second component of a viable Eighth Amendment claim requires proof that prison officials were deliberately indifferent to the inmate’s safety. This subjective inquiry implicates the officials’ state of mind and is equivalent to “criminal recklessness, which makes a person liable when she consciously disregards a substantial risk of harm.” Beauclair v. Graves, 227 F.App'x 773, 776 (10th Cir. 2007) (quoting Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005)). Mere negligence, even gross negligence, or recklessness are insufficient to make out a claim under this standard. See Estelle, 97 S.Ct. at 292; see also Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008); Perkins v. Kansas Department of Corrections, 165 F.3d 803, 811 (10th Cir. 1999). Instead “the official must ‘both be ...