Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duncan v. Milyard

United States District Court, D. Colorado

July 13, 2017

KEVIN MILYARD, Warden, and JAMES FALK, Warden, Defendants.



         This matter comes before the court on Defendants Kevin Milyard and James Falk's (collectively, “Defendants” or “Wardens”) Motion for Summary Judgment (or “Motion”). [#147, [1] 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.


         Plaintiff 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.;[2]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 it. [#1].

         On May 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].

         The Appeal

         The 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.

         The 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].

         On Remand

         The 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.[3] 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; #147].

         On 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.].

         On 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.].

         However, 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].

         On June 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.


         Summary 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)).

         “The 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).

         MATERIAL ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.