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Walker v. Firman

United States District Court, D. Colorado

December 13, 2017

EDMOND WALKER, Plaintiff,
v.
PATRICK FIRMAN, CITY AND COUNTY OF DENVER SHERIFF DEPT, ROMERO, BLAINE, SIMON, SHUDER, NATHANIEL, and MOZATTI, Defendants.

          ORDER ON MOTION TO DISMISS AND OTHER PENDING MATTERS

          R. Brooke Jackson United States District Judge

         This matter is before the Court on defendants' motion to dismiss or for summary judgment and the recommendation of United States Magistrate Judge Michael E. Hegarty that the motion should be treated as a motion for summary judgment and, for the most part, granted. For the reasons discussed in this order, the recommendation is accepted, and all but one of the plaintiff's claims are dismissed. The Court also addresses miscellaneous pending motions filed by the plaintiff.

         BACKGROUND

         Edmond Walker, an inmate in the Denver Detention Center, filed this lawsuit on September 1, 2016. His Complaint was reviewed by United States Magistrate Judge Gordon P. Gallagher who granted leave to file in forma pauperis, denied Mr. Walker's motion for appointment of counsel, and directed him to file an amended complaint. ECF Nos. 18, 19.

         Various other motions were reviewed either by Magistrate Judge Gallagher or District Judge Lewis T. Babcock, including a motion for an emergency injunction, which was denied. See ECF Nos. 20-23. Mr. Walker filed an Amended Complaint, but after reviewing it Magistrate Judge Gallagher directed him to file another amended complaint. ECF Nos. 27, 31. After moving unsuccessfully for reconsideration of the latter order, Mr. Walker filed his Second Amended Complaint filed on April 17, 2017. It is the operative complaint in the case.

         In the Second Amended Complaint Mr. Walker asserts a variety of complaints against the Denver Sheriff, Patrick Firman; and against six other Denver Sheriff's officers; and against the Denver Sheriff's Department. ECF No. 37. Briefly, he claimed that he had been retaliated against, including disciplinary segregation and other punishments, for filing grievances and lawsuits. He asserted claims of violation of procedural due process, retaliation and common law slander and malicious prosecution. He demanded damages of $500, 000 against each defendant individually and injunctive relief. Id. at 15.

         On May 1, 2017 Judge Babcock dismissed several of Mr. Walker's claims as legally frivolous. ECF No. 41. The remaining claims were assigned to me and Magistrate Judge Hegarty. Id. On August 3, 2017 the defendants filed a motion asking the Court either to partially dismiss the second amended complaint under Rule 12(b)(6) or to convert the motion to a motion for summary judgment and dismiss it in its entirety under Rule 56. ECF No. 61. The Rule 12(b)(6) motion is grounded in part in the doctrine of qualified immunity. The alternative motion for summary judgment asserts Mr. Walker's failure to satisfy the prerequisite of exhaustion of administrative remedies. ECF No. 61. It was supported by the affidavit of Major Bryan Moore. ECF No. 61-1.

         On August 7, 2017 the Court referred the motion to United States Magistrate Judge Michael E. Hegarty for a recommendation. ECF No. 64. In a hearing held by Magistrate Judge Hegarty on August 10, 2017, in which Mr. Walker participated by telephone, Mr. Walker was ordered to file his response to defendants' motion to partially dismiss or for summary judgment by August 28, 2017. See Minute Order, ECF No. 67. In response Mr. Walker filed an affidavit, ECF No. 69, in which he largely repeats the allegations contained in his Second Amended Complaint; another motion for appointment of counsel, ECF No. 70; and what he labels as a motion to deny defendants' motion. ECF No. 72. In the latter document Mr. Walker argues that he is not required to show in his complaint that he has exhausted his administrative remedies; that the defendants must prove failure to exhaust as an affirmative defense; and that an inmate is excused from filing grievances if the defendants threaten him with sanctions for doing so. Id. at 1-2.

         The defendants filed a reply in which they argue that the PLRA precludes any recovery of compensatory damages since there has been no showing of a physical injury; that the defendants are entitled to qualified immunity; that Mr. Walker's conclusory allegations do not establish a plausible claim of supervisory liability against Sheriff Firman; and that Mr. Walker's claim that he was unable to utilize the grievance system after he was threatened with physical harm if he did so is belied by the fact that after the alleged threats Mr. Walker continued actively to file grievances. ECF No. 75. The latter point was supported by another affidavit from Major Moore. ECF No. 75-1.

         On October 17, 2017 Magistrate Judge Hegarty issued a 21-page recommendation concerning the claims not dismissed by Judge Babcock. ECF No. 90. He recommended that this Court should convert the Rule 12(b)(6) motion to a motion for summary judgment and determine that (1) incidents occurring prior to September 1, 2014 are barred by the statute of limitations; (2) the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires prisoners to exhaust all available administrative remedies before bringing suit; (3) Mr. Walker failed fully to exhaust his administrative remedies as to all but one due process claim and one retaliation claim; (4) the one remaining due process claim lacks merit because Mr. Walker did not sufficiently plead deprivation of a liberty interest; and (5) the one remaining first amendment retaliation claim which was based on the allegation that Deputy Mozatti threatened disciplinary segregation and death if Mr. Walker continued to file grievances would not be dismissed but would be limited to nominal damages and declaratory or injunctive relief because Mr. Walker had not alleged a physical injury. ECF No. 90 at 7-20. Magistrate Judge Hegarty's recommendation also advised the parties that they could file written objections within 14 days after service of the recommendation. Id. at 21n.6.

         Mr. Walker timely filed objections on November 2, 2017. ECF No. 96. The defendants did not file objections. Mr. Walker later filed (again) motions “to proceed and to act, ” and for the appointment of counsel, and for injunctive relief. ECF Nos. 97-99. On November 30, 2017 Mr. Walker filed another objection to the recommendation. ECF No. 100. The second objection was not timely.

         STANDARD OF REVIEW

         “The district judge must review de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). “In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah,927 F.2d 1165, 1167 (10th Cir. 1991). When a case involves a pro se party the court will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, pro se parties must “follow ...


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