United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendants Kevin Milyard and
James Falk's (collectively, “Defendants” or
“Wardens”) Motion for Summary Judgment (or
“Motion”). [#147,  filed October 21, 2016]. The
undersigned Magistrate Judge considers the Motion pursuant to
28 U.S.C. § 636(b), the Order Referring Case dated
January 27, 2016, [#94] and the memorandum dated October 21,
2016 [#148]. The undersigned concludes that oral argument
would not materially assist in the resolution of this matter.
Accordingly, upon careful review of the Motion and associated
briefing, the applicable case law, and the entire case file,
this court respectfully RECOMMENDS that the
Motion for Summary Judgment be GRANTED.
James Roger Duncan (“Plaintiff” or “Mr.
Duncan”) is an inmate currently in the custody of the
Colorado Department of Corrections (“CDOC”) and
housed at Sterling Correctional Facility (“SCF”).
On January 31, 2014, Mr. Duncan initiated this action pro
se by filing a prisoner complaint in which he sued
former governor of Colorado Bill Ritter, Jr.;current governor
of Colorado John Hickenlooper; Wardens Kevin Milyard and
James Falk; CDOC Executive Director Rick Raemisch; and a CDOC
case manager Jim Lueck for allegedly violating his
constitutional rights by exposing him to contaminated
drinking water while at SCF. [#1]. As interpreted by
Magistrate Judge Boyd N. Boland, see [#66 at 3-4],
Plaintiff's Complaint asserted three claims for relief
pursuant to 42 U.S.C. § 1983: (1) violations of his
First, Eighth, and Fourteenth Amendment rights by Defendants
Falk and Lueck; (2) violations of his Eighth Amendment and
equal protection rights by Defendants Falk and Milyard; and
(3) violation of his Eight Amendment rights by Defendants
Falk, Milyard, and Governor Hickenlooper because they knew of
the contaminated water but were deliberately indifferent to
12, 2014, Defendants Hickenlooper, Raemisch, Milyard, Falk,
and Lueck moved to dismiss Plaintiff's Complaint in its
entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. [#32]. Judge Boland
recommended dismissal of Mr. Duncan's claims for two
reasons: (1) the Eleventh Amendment barred any claims for
retroactive monetary relief against the named Defendants in
their official capacities; and (2) Plaintiff failed to allege
sufficient facts to support his three constitutional claims.
See [#66]. The presiding judge, the Honorable Robert
E. Blackburn, adopted the Recommendation in its entirety on
December 11, 2014. [#67]. Accordingly, the Clerk of the Court
entered Final Judgment in favor of Defendants Hickenlooper,
Raemisch, Milyard, Falk, and Lueck and against Plaintiff, and
dismissed Plaintiff's Complaint. [#68]. Mr. Duncan filed
Notices of Appeal on January 28, 2015. [#76; #79].
United States Court of Appeals for the Tenth Circuit
(“Tenth Circuit”) affirmed in part and reversed
in part the District Court's ruling, and remanded for
further proceedings. See [#91]. First, the Tenth
Circuit held that Mr. Duncan failed to adequately develop his
First, Fifth, and Fourteenth Amendment claims on appeal;
thus, the Tenth Circuit addressed only the dismissal of
Plaintiff's Eighth Amendment claim. [Id. at 3
n.1]. In doing so, the Tenth Circuit concluded that Plaintiff
alleged that the contaminated drinking water at SCF exposed
him to a substantial risk of serious harm, satisfying the
first prong of the deliberate indifference standard.
[Id. at 8-9]. As to the subjective prong, the Tenth
Circuit held that Plaintiff failed to allege that Defendants
Hickenlooper, Raemisch, and Lueck knew of the substantial
risk of harm the contaminated water posed to Plaintiff, yet
disregarded that risk. See [id. at 9-10,
12]. Accordingly, the Tenth Circuit affirmed the District
Court's dismissal of Mr. Duncan's Eight Amendment
claim as to these Defendants.
Tenth Circuit reached a different conclusion as to Wardens
Milyard and Falk. [Id. at 11]. The Tenth Circuit
held that Plaintiff sufficiently alleged that Wardens Milyard
and Falk knew about the polluted water and the serious health
risks associated with drinking SCF's water (based on 2008
and 2012 City of Sterling notices of elevated levels of
uranium and trihalomethanes), but failed to abate that risk.
[Id.]. Thus, the Tenth Circuit reversed and remanded
Mr. Duncan's Eighth Amendment claim for further
proceedings before the District Court to determine the
Wardens' liability, if any. [Id. at 11-12].
Mandate issued on December 17, 2015. [#92]. Pursuant to the
undersigned's Order [#96], the Wardens filed their Answer
to Mr. Duncan's Complaint on February 9, 2016. [#98]. On
February 22, 2016, the undersigned held a Status Conference
and set a pre-trial schedule, including a deadline for
discovery and for filing dispositive motions. See
[#99]. This court extended the discovery deadline to
September 6, 2016, and the dispositive motions deadline to
October 7, 2016, pursuant to the Wardens' request.
See [#129; #132]. This court later extended the
dispositive motions deadline to October 21, 2016-the date the
Wardens filed their Motion for Summary Judgment. [#144; #146;
September 13, 2016, the undersigned issued an Order on
Plaintiff's (1) Motion to Objected To; Defendants
Responses to Plaintiff First Request for Productoion of
Documents (“Plaintiff's Motion to Compel”)
[#116]; (2) Motion to Show that Expert Witness Not Quifyed
and Motion in Limine (“Motion to Exclude”)
[#119]; and (3) Motion for Appointment of Counsel [#121].
See [#137]. By that Order, this court denied Mr.
Duncan's Motion to Compel, but ordered the Wardens to
certify that they had provided Mr. Duncan with all responsive
documents to his Requests for Production Nos. 1-5; denied his
Motion to Exclude, but granted him leave to re-file should
the Wardens designate Dr. Andrew A. Monte as an expert in
trihalomethanes (in addition to his designation as a uranium
expert); and granted Plaintiff's Motion for Appointment
of Counsel because of the complex medical issues raised in
his Complaint, and directed the Clerk of the Court to seek
appointment of pro bono counsel in accordance with Local
Attorney Rule 15(f). [Id.].
February 13, 2017, the Clerk of the Court entered a Notice of
Pro Bono Appointment, designating four attorneys from the law
firm of Hogan Lovells US, LLP as Mr. Duncan's civil pro
bono counsel. [#165]. Then, on April 5, 2017, Plaintiff,
through pro bono counsel, filed his Motion to (1) Withdraw
Plaintiff's Pro Se Response to Defendants'
Motion for Summary Judgment, (2) Reopen Limited Discovery,
and (3) File a New, Fully Developed Response (the
“Motion to Withdraw Response”). [#174]. The
undersigned granted in part and denied in the Motion to
Withdraw Response, deeming Plaintiff's pro se
Response [#159] to Defendants' Motion for Summary
Judgment withdrawn, and setting a Status Conference to
discuss further scheduling needs. [#178]. At the May 4, 2017
Status Conference, this court reopened discovery for a
limited period up to and including June 19, 2017, ordering
Plaintiff to designate any expert(s) by May 18, 2017.
See [#180]. In addition, this court granted
Plaintiff an extension of time up to and including June 27,
2017, to respond to Defendants' Motion for Summary
Judgment, given the Wardens' election to pursue the
pending Motion rather than to file a new one after the
reopened discovery. [Id.]. Defendants were granted
until July 11, 2017, to file a Reply, if any. [Id.].
on June 15, 2017, Plaintiff's pro bono counsel filed a
Motion to Withdraw as counsel of record, citing fundamental
disagreements between Mr. Duncan and counsel as to how this
matter should proceed. [#183]. During a Status Conference
held on June 23, 2017, Mr. Duncan confirmed that he had
discharged his attorneys and that he intended to proceed
pro se in this matter. The undersigned granted the
Motion to Withdraw and Plaintiff's request for an
extension of time to file his pro se Response to
Defendants' Motion for Summary Judgment. [#192].
29, 2017, Mr. Duncan filed his pro se Response to
Defendants' Motion for Summary Judgment. [#194].
Defendants did not file a reply. The Motion for Summary
Judgment is now ripe for Recommendation.
judgment is appropriate only if “the movant shows that
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 (1986); Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249 (1986)). Whether there is a genuine dispute as
to a material fact depends upon whether the evidence presents
a sufficient disagreement to require submission to a jury or
conversely, is so one-sided that one party must prevail as a
matter of law. Anderson, 477 U.S. at 248-49;
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. U.S. Postal Service, 812
F.2d 621, 623 (10th Cir. 1987). A fact is
“material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable party could return a verdict for
either party. Anderson, 477 U.S. at 248.
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing First Nat.
Bank of Ariz. V. Cities Service Com, 391 U.S.
253, 289 (1968)).
movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71
(10th Cir. 1998) (citing Celotex, 477 U.S. at 323).
The movant can achieve this by pointing the court to a lack
of evidence for the nonmovant on an essential element of the
nonmovant's claim. Id. at 671. Once the movant
meets this initial burden, the nonmovant assumes the burden
to put forth sufficient evidence to demonstrate the essential
elements of the claim such that a reasonable jury could find
in its favor. See Anderson, 477 U.S. at 248;
Simms v. Okla. Ex rel. Dep't of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999). Conclusory statements based merely on speculation,
conjecture, or subjective belief are not competent summary
judgment evidence. See Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving
party's evidence must be more than “mere reargument
of [her] case or a denial of an opponent's allegation,
” or it will be disregarded. See10B Charles
Alan Wright, et al., Federal Practice and Procedure §
2738 at 356 (3d ed.1998).