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Broadus v. Decesaro

United States District Court, D. Colorado

March 4, 2016

ANTHONY A. DECESARO, Grievance Officer, CHAPDELAIN, Associate Warden, CHP, Clinical Health Provider, GILES, Lieutenant, RAYMOND HIGGINS, ROBERT KEISEL, EVA LITTLE, Lieutenant, LUYANDO, Lieutenant, DENNY OWENS, JAMIE SOUCIE, SWINGLE, Lieutenant, THODE, Sergeant, JAMEY VANMETER, KENNETH WILDENSTEIN, Major, WALKER, Correctional Officer, JANE DOE #1, Nurse, JANE DOE #2, Nurse, JOHN DOE ##1-4, Defendants.



The Court hereby amends its order entered March 3, 2016 (ECF No. 51). The only change is the insertion of additional language in the Conclusion (Part IV) to clarify: (1) the claims that survive Defendants’ Motion to Dismiss, and (2) the Defendants against whom those claims are properly asserted.

This matter is before the Court on United States Magistrate Judge Kristin L. Mix’s Recommendation dated January 21, 2016 (“Recommendation”) (ECF No. 40), which recommends granting in part and denying in part Defendants’ Motion to Dismiss (ECF No. 23). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). No Defendant filed any objection. Plaintiff John Michael Broadus (“Broadus”) filed a timely Objection to the Recommendation on February 9, 2016 (“Objection”) (ECF No. 41). For the reasons set forth below, Broadus’s Objection is overruled, the Recommendation is adopted, and Defendants’ Motion to Dismiss is granted in part and denied in part.


When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties’ dispute.” Id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

Because Broadus is proceeding pro se, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as an advocate for Broadus, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).


Broadus is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) and currently housed at CDOC’s Sterling Correctional Facility (“Sterling”). Broadus’s currently operative Complaint (ECF No. 6) alleges numerous disparate violations of his constitutional rights by various Sterling employees and officials. A complete summary of Broadus’s allegations can be found in the Recommendation. (ECF No. 40 at 2-5.) The facts relevant to Broadus’s Objection are discussed below in connection with the Court’s analysis.


A. Defendant Keisel

Broadus alleges that he has somehow “been ‘flagged’ as an ‘associate’ to ‘The Crips, ’ a Security Threat Group.” (ECF No. 6 at 13.) Broadus complained to his case manager, who referred him to Defendant Eva Little of “STG Intel.”[1] Broadus told Little that he had never been part of The Crips or any other gang, but Little responded that his “only solution” was to “‘begin the inactive process’ put in place for inmates wishing to disassociate from their gang.” Broadus rejected this advice because going through the “inactive process” would be at least an implicit admission that he really had been part of a gang, which could threaten his life: “Just as members get ‘beat in’ to gangs, they get ‘beat out’ of gangs . . . .” (Id.) In other words, Broadus fears that any sort of formal disassociation with a gang will prompt that gang to attack him-even though the members of that gang presumably know that Broadus has never been one of them.

Broadus then filed a grievance. That grievance was apparently denied at step one because “Defendant Robert Keisel conferred with me personally and was the respondent of my step two grievance.” (Id.) Keisel, however, shared Little’s view of the matter. He therefore denied Broadus’s grievance. (Id.)

The Magistrate Judge understood all of this to be alleging that Little was the relevant decisionmaker (i.e., someone with personal involvement in the decision to place Broadus on the Security Threat Group list), whereas Keisel was only a grievance respondent. (ECF No. 40 at 10, 21-23.) This understanding was likely bolstered by Broadus’s Response brief, which focuses almost entirely on Little and her position as “an authority figure, ” and says nothing specific about Keisel. (ECF No. 26 at 9-11, 17-18.) Accordingly, the Magistrate Judge concluded that Broadus had stated a valid claim against Little, but not against Keisel because “‘a denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.’” (Id. at 11 (quoting Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)).)

Broadus now argues that the Magistrate Judge’s conclusion is logically inconsistent because his Complaint supposedly alleges that both Little and Keisel were “working as authority/heads of STG boards, intelligence gathering, and/or policy makers and/or enforcers, ” and therefore it makes no sense to sustain his Complaint against Little but not Keisel. (ECF No. 41 at 1-2.) Broadus overstates his own allegations. His Complaint nowhere says that Keisel held a position of authority associated with Security Threat Group monitoring. Broadus does allege that “[i]nmates are being assaulted and even killed because of the policies put in place and enforced by Defendants Little and Keisel” (ECF No. 6 at 13), but this allegation is entirely conclusory as to Keisel. Nothing before it in the Complaint prepares the reader for this accusation, and nothing after it elaborates. On that basis alone, the Court may overrule Broadus’s Objection to the Recommendation as it ...

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