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MacKey v. Watson

United States District Court, D. Colorado

December 5, 2017

WALDO MACKEY, Plaintiff,


          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court upon the October 25, 2017, Recommendation by United States Magistrate Judge Scott T. Varholak that Defendants' Motion to Dismiss (Doc. # 30) be granted in part and denied in part. (Doc. # 43.) Plaintiff and Defendants timely objected to different parts of the Recommendation. (Doc. ## 46, 47.) For the reasons described herein, Defendants' Objection (Doc. # 47) is overruled, and the Recommendation is adopted in part and rejected in part, with the end result being that Defendants' Motion to Dismiss is denied.

         I. BACKGROUND

         Plaintiff Waldo Mackey is incarcerated at the Fremont Correctional Facility (“FCF”) in the custody of the Colorado Department of Corrections (“the Department”). (Doc. # 1.) At all relevant times, Defendant Sergeant Bridgett Watson and Defendant Lieutenant Susan Prieto (together, “Defendants”) were correctional officers at FCF. (Id.)


         The only claims at issue, Claims Four and Five of Plaintiff's Complaint, arise out of a verbal altercation between Plaintiff's cellmate and a correctional officer during the week of February 12, 2017.[1] (Doc. # 1 at 16.) On February 17, 2017, another correctional officer searched Plaintiff's and his cellmate's cell. (Id.) Plaintiff told the searching officer that a correctional officer had “shook down” the cell just a few days prior, and the officer explained that Plaintiff's cellmate had been disrespectful during the verbal altercation and finished searching Plaintiff's cell. (Id.)

         The following morning, February 18, 2017, Defendant Watson went to Plaintiff's and his cellmate's cell and stated that she “had a call to shakedown the cell.” (Id.) Plaintiff explained to Defendant Watson that he and his cellmate did not have any dangerous items in their cell because two correctional officers had already searched their cell in the preceding days. (Id.) Plaintiff complained to Defendant Watson that “this was harassment” and that he had nothing to do with his cellmate's altercation. (Id.) Defendant Watson told Plaintiff to “get another cellie [sic].” (Id.)

         Plaintiff went to FCF's “control” room and requested the shift commander because Plaintiff believed “[he] was being harassed for something [he] knew nothing about.” (Id.) Plaintiff filed a step one grievance against Defendant Watson for “harassment and retaliation.” (Id.; Doc. # 1-2 at 42.) Plaintiff first contends in Claim Four that “[b]ecause [he] complained, ” Defendant Watson confiscated Plaintiff's property, including his prescription eyeglasses and his socks. (Doc. # 1 at 16-17.) Defendant Watson identified these items as contraband. (Id.) Plaintiff disputes this characterization. (Id. at 16-19.)

         After his cell was searched, Plaintiff voluntarily went to segregation “rather than have a confrontation” with Defendant Watson “because he felt like it was the only solution to the problem.” (Doc. # 1 at 21.) Plaintiff stayed in segregation for four days. (Id.)

         One week later, Plaintiff filed a DOC Employee/Contract Worker Conduct Complaint against Defendant Watson. (Doc. # 1-2 at 41.) Plaintiff filed step two and step three grievances in March and April, 2017. (Id. at 43, 44.) The grievance officer denied Plaintiff's requests for relief because the officer found that “[t]he shakedown was conducted in accordance with policy.” (Id. at 40.)

         In Claim Four, Plaintiff asserts that Defendant Watson retaliated against him for filing grievances in two other ways. Second, Plaintiff alleges that Defendant Watson fired Plaintiff from his job as an Offender Care Aid (“OCA”) worker, which he had been in for ten years. (Doc. # 1 at 20.) Plaintiff was placed instead in the kitchen. (Id.) DOC headquarters reinstated Plaintiff's OCA position after Plaintiff filed a complaint. (Id.) Upon his reinstatement, FCF paid Plaintiff “at a lower rate of pay . . . all for complaining.” (Id.)

         Third, Plaintiff alleges that Defendant Wilson filed disciplinary charges against him in retaliation for Plaintiff's grievances. (Id. at 21.) On March 7, 2017, more than two weeks after the cell search on February 18, 2017, at issue, Defendant Watson filed a formal charge against Plaintiff for making threats during the cell search. (Doc. # 1-2 at 47.)

         A hearing on the charge was conducted on March 9, 2017, by Defendant Prieto, the hearing officer. (Doc. # 1 at 21.) Defendant Watson testified that Plaintiff threatened her “when [Plaintiff] continued to enter the cell multiple times during the shake down and aggressively yell[ed] profanities and defamatory statements.” (Doc. # 1-2 at 48.) Plaintiff pled not guilty and argued that Defendant Watson was lying. (Doc. # 1 at 22.) Plaintiff asked Defendant Prieto for the videotape of the incident. (Id.) Deference Prieto responded that the video had been taped over and that Plaintiff should have requested the video within three days of the incident. (Id.) Plaintiff also asked to call his cellmate and another offender as witnesses on his behalf. (Id.; Doc. # 1-2 at 48.) Defendant Prieto did not allow those witnesses to testify because testimony about the number of cell inspections was “not relevant to the charge.” (Doc. # 1-2 at 48.) According to Plaintiff, Defendant Prieto denied him due process “by not allowing evidence and witnesses and/or showing prejudice by accepting vague testimony of [Defendant] Watson over Plaintiff's.” (Doc. # 1 at 22.) These allegations form the basis of Claim Five. On March 10, 2017, Defendant Prieto found Plaintiff guilty of making threats. (Doc. # 1-2 at 48.) Defendant Prieto imposed a sentence of three days in punitive segregation but gave Plaintiff credit for time already served in segregation prior to the hearing. (Id.)


         Plaintiff filed the instant lawsuit pursuant to 42 U.S.C. § 1983 on June 2, 2017. (Id.) Proceeding pro se, Plaintiff alleged five causes of action against seven defendants, all of whom were Department employees. (Id.) Senior United States District Court Judge Lewis T. Babcock conducted an initial review of Plaintiff's pleading pursuant to D.C.Colo.L.CivR 8.1(b)(3) to determine if any part of Plaintiff's complaint warranted summary dismissal. See (Doc. # 6.) On June 21, 2017, Senior Judge Babcock dismissed Claims One, Two, and Three of Plaintiff's complaint as frivolous, dismissed five defendants from the action entirely, and drew Claims Four and Five to a presiding judge. (Id. at 9.)

         Accordingly, only Claims Four and Five against Defendants Watson and Prieto are before the Court. In Claim Four, Plaintiff alleges that Defendant Watson retaliated against him and violated his First Amendment rights by searching his cell, confiscating his prescription glasses and socks, removing him from his job, and filing a false disciplinary report. (Doc. # 1 at 16-20; Doc. # 6 at 3.) In Claim Five, Plaintiff alleges that Defendant Prieto, the presiding officer at his March 9, 2017 disciplinary hearing, denied Plaintiff due process by refusing to consider certain evidence and witnesses. (Doc. # 1 at 21-22; Doc. # 6 at 4.)

         Defendants filed the Motion to Dismiss on August 21, 2017. (Doc. # 30.) The Court referred Defendants' Motion to Dismiss to Magistrate Judge Varholak on August 22, 2017. (Doc. # 32.) Defendants argue that all remaining claims should be dismissed because: (1) Plaintiff failed to state a First Amendment claim for retaliation pursuant to FRCP (12)(b)(6); (2) Plaintiff failed to state a due process claim with respect to his disciplinary proceeding because Heck v. Humphrey, 512 U.S. 477 (1994), bars such a challenge; (3) Defendants are entitled to qualified immunity; and (4) Plaintiff failed to assert a valid claim for monetary damages. (Doc. # 30 at 4-13.)

         C. The Magistrate Judge's Recommendation

         As recounted above, Defendants filed the Motion to Dismiss Claims Four and Five, the only remaining claims. (Id.) Magistrate Judge Varholak first recommended that Defendants' Motion to Dismiss be denied as to Claim Four, the retaliation claim against Defendant Watson. (Doc. # 43 at 18.) Magistrate Judge Varholak determined that Plaintiff adequately pled all three elements of a retaliation claim and rejected Defendant Watson's argument otherwise. (Id. at 7-10.) Magistrate Judge Varholak also disagreed with Defendant Watson's argument that she is entitled to qualified immunity on this claim. (Id. at 7.) Having already determined that Plaintiff adequately pled that Defendant Watson “violated a clearly established right, ” Magistrate Judge Varholak concluded that “the constitutional right was clearly established at the time of the misconduct.” (Id. at 10-11.) Accordingly, Magistrate Judge Varholak recommended that Claim Four against Defendant Watson be allowed to proceed. (Id. at 18.)

         Second, Magistrate Judge Varholak recommended that Defendants' Motion to Dismiss be granted as to Claim Five, the due process claim against Defendant Prieto, and that Defendant Prieto therefore be dismissed from the case. (Id. at 18.) Magistrate Judge Varholak addressed Defendant Prieto's argument that Claim Five is barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. # 43 at 12-14.) After reviewing case law concerning the application of Heck where a habeas remedy is unavailable, Magistrate Judge Varholak decided that he “need not decide the issue [of Heck's applicability] because even if Plaintiff's claims were allowed to proceed, Plaintiff has failed to state a due process claim, and as a result, Defendant Prieto is entitled to qualified immunity on Count Five.” (Id. at 14.) Magistrate Judge Varholak explained that Plaintiff failed to adequately allege a due process claim because Plaintiff hadn't established a protected liberty interest and because Plaintiff hadn't spent any additional time in punitive segregation as a result of Defendant Prieto's hearing. (Id. at 16-17.) Magistrate Judge Varholak therefore recommended that the Court dismiss Defendant Prieto's Motion to Dismiss Claim Five against Defendant Prieto. (Id. at 17.)

         Magistrate Judge Varholak recommended deferring the question of punitive damages until after discovery, explaining that a subjective inquiry is necessary to determine whether punitive damages are available in this Section 1983 action. (Id. at 18.) No party objects to this part of the Recommendation.

         Plaintiff responded to Defendants' Motion to Dismiss on August 18, 2017 (Doc. # 39), Defendants replied on October 3, 2017 (Doc. # 41), and Plaintiff filed a surreply on October 12, 2017 (Doc. # 42).



         When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir.1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         B. ...

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