United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF UNITED STATES
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matter is before me on the following: (1) the defendants'
Motion for Summary Judgment
[#182] filed October 31, 2016; (2)
Pltf's Mo. For S.J. and
Exhibits [#196] filed by the plaintiff on
November 17, 2016; and (3) the Recommendation of the
United States Magistrate Judge [#213] filed May 18,
2017. The plaintiff filed objections to the recommendation
[#214], and the defendants filed a response [#215]. I
overrule the objections and approve and adopt the
required by 28 U.S.C. § 636(b), I have reviewed de
novo all portions of the recommendation to which the
plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this
case, and the applicable case law.
plaintiff is proceeding pro se. Thus, I have
construed his pleadings and other filings more liberally and
held them to a less stringent standard than formal pleadings
drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070,
1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th
plaintiff, Bob Custard, is a prisoner incarcerated at the
United States Penitentiary Administrative Maximum (ADX).
Still pending are his second, third, and sixth claims for
second claim for relief, Mr. Custard alleges defendants Mr.
Rangel, Mr. Robinson, and Mr. Fitzgerald violated his
Eight Amendment rights by subjecting him to dangerous
conditions of confinement when they failed to remove
“dozens of jagged protruding welds [in] [his] shower
and sink area” and denied a transfer request to a safer
cell. Amended complaint [#8]. Mr. Custard says he
injured himself on the jagged welds which resulted in 15
magistrate judge concludes that defendants Mr. Rangel and Mr.
Robinson are entitled to qualified immunity because neither
had the authority to move Mr. Custard out of his SHU cell
[#182]. Without such authority, the magistrate judge
concludes, the claim fails because neither defendant
personally participated in the alleged wrong.
See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009);
see also Estate of Booker v. Gomez,
745 F.3d 405, 435 (10th Cir. 2014). In addition, the
magistrate judge recommends that summary judgment be granted
in favor of all defendants on this claim because there is no
evidence that a sufficiently serious risk of harm existed. To
establish and Eighth Amendment claim, a plaintiff must
demonstrate that he was subjected to a “sufficiently
serious” risk of harm and that a named defendant acted
with a sufficiently “culpable state of mind.”
Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005). The magistrate judge concludes
Mr. Custard's unsupported assertions failed to establish
a sufficiently serious risk of harm because no evidence of
jagged welds was produced, while the defendants provided
evidence which demonstrates the absence of such welds in the
SHU cell in question.
third claim for relief, Mr. Custard alleges that he suffers
from severe chronic asthma and that he was exposed to
chemical & pepper spray used during a Use-of-Force (UOF)
Operation conducted in an adjoining cell on May 19, 2014. Mr.
Custard alleges his Eight Amendment rights were violated by
defendants Mr. Osagie and Mr. Berkebile because they
purposefully refused to relocate Mr. Custard during the UOF,
despite knowing of his asthma.
magistrate judge concluded no evidence established Mr.
Osagie's personal participation in the UOF. Evidence
produced showed Mr. Osagie was absent from May 18, 2014, to
May 26, 2014. Further, the undisputed facts evidenced in the
record showed that Mr. Osagie (1) never treated Plaintiff for
the alleged exposure the chemical and pepper spray; (2) did
not have input on the decision to conduct the UOF; (3) only
became aware of the UOF via this lawsuit; and (4) had no
knowledge about the reason the UOF was conducted on May 18,
2014. The magistrate judge recommends granting the motion for
summary judgment as to Mr. Osagie.
Mr. Berkebile, the magistrate judge concludes Mr. Custard did
not establish the subjective prong of the Eighth amendment
inquiry. Mr. Custard made conclusory statements that he
allegedly gave Mr. Berkebile a “Notice &
Request” explaining his asthma condition and the
ability of pepper spray to travel between cells. However,
with no supporting foundation that Mr. Berkebile received or
read the note, the magistrate judge found that there is no
genuine issue of material fact concerning this issue.
Further, the Eight Amendment subjective inquiry requires that
Mr. Berkebile disregarded an excessive risk to Mr.
Custard's health. Undisputed evidence shows Mr. Berkebile
did not know where the plaintiff was housed at the time of
the UOF. Absent such knowledge on the part of Mr. Berkebile,
Mr. Custard cannot show that Mr. Berkebile disregarded an
excessive risk to Mr. Custard's health. Given this
evidence, the magistrate judge concluded Mr. Berkebile is
entitled to qualified immunity and recommends that summary
judgment be granted in favor of Mr. Berkebile.
sixth claim for relief, Mr. Custard alleges Mr. Kasdon and
Mr. McMullen called him a snitch using a loud voice. The
United States Court of Appeals for the Tenth Circuit held in
Benefield v. McDowall, 241 F.3d
1267 (10th Cir. 2001), that an inmate's
allegation that he had been labeled a snitch satisfies the
objective prong of the Eight Amendment cruel and unusual
punishment analysis. Narrowing, this view in
Brown v. Jarivs, 265 F. App'x
734 (10th Cir. 2008), the Tenth Circuit held a
defendant could successfully defend against the allegation on
summary judgment by showing additional circumstances that
negate or neutralize the danger created by the disclosure.
magistrate judge concludes Mr. Kasdon and Mr. McDowall
presented sufficient evidence to negate and neutralize the
disclosure, assuming it is true that these two defendants
called Mr. Custard a snitch. All inmates in general
population at ADX, which is where Mr. Custard now resides and
will reside for the foreseeable future, are housed in single
cells. Inmates take their meals alone and only one inmate is
permitted to move within the unit at a time. No physical
contact may be made between inmates, and officers monitor
every movement taken. No evidence was produced by Mr. Custard
to dispute any material fact as to the security measures
taken to ensure ADX prisoner safety. Therefore, the
magistrate judge recommends granting summary judgment in
favor of Mr. Kasdon and Mr. McMullen on the snitch claim.
de novo review, I concur. The objections [#214] do
not contain valid criticism of the analysis and conclusions
of the Magistrate Judge. Therefore, the objections [#214] are
overruled. By granting the motion for summary judgment
[#182], the court resolves the last remaining claims in this
case. All claims have been resolved in favor of the
defendants. Therefore, I direct the entry judgment.
IT IS ...