United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS AND OTHER PENDING
Brooke Jackson United States District Judge
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
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.
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
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.
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.
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.
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.
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.
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.
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 ...