United States District Court, D. Colorado
REPORT & RECOMMENDATION AND ORDER REGARDING
DEFENDANT AURITI'S MOTION FOR SUMMARY JUDGMENT (DOCKET
Michael J. Watanabe United States Magistrate Judge
instant action, Plaintiff, who proceeds pro se, has one
remaining claim: an Eighth Amendment claim against the only
remaining Defendant, Mr. Auriti. Before the Court is
Defendant's motion for summary judgment (Docket No. 123),
which was referred to the undersigned for recommendation by
Judge Moore (Docket No. 124). Plaintiff filed a response
(Docket No. 126) and Defendant filed a reply (Docket No.
127). The Court has reviewed the parties' filings, taken
judicial notice of the Court's entire file in this case,
and considered the applicable Federal Rules of Civil
Procedure and case law. Now being fully informed the Court
makes the following report and recommendation and order.
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought.” Fed.R.Civ.P. 56(a).
“The court shall grant summary judgment 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.” Id. “An issue is genuine if there
is sufficient evidence on each side so that a rational trier
of fact could resolve the issue either way” and
“[a]n issue of fact is material if under the
substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol-Myers Squibb Co.,
353 F.3d 848, 851 (10th Cir. 2003) (internal quotation marks
omitted). The Court views the evidence in the light most
favorable to the nonmoving party, drawing all reasonable
inferences in that party's favor. Fye v. Okla. Corp.
Comm'n, 516 F.3d 1217, 1223 (10th Cir. 2008).
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 is so one-sided that one
party must prevail as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. United States Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once the
moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden
then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be
resolved at trial. See 1-800-Contacts, Inc. v. Lens.com,
Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation
Court will not consider statements of fact, or rebuttals
thereto, which are not material or are not supported by
competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(c)(4),
56(e)(2), 56(e)(3). Only admissible evidence may be
considered when ruling on a motion for summary judgment.
Jaramillo v. Colo. Judicial Dep't, 427 F.3d
1303, 1314 (10th Cir. 2005) (citation omitted) (holding that
hearsay evidence is not acceptable in opposing a summary
judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair
Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits
must be based on personal knowledge and must set forth facts
that would be admissible evidence at trial. Murray v.
City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)
(quotations and citation omitted). “Conclusory and
self-serving affidavits are not sufficient.”
Id. “[O]n a motion for summary judgment, it is
the responding party's burden to ensure that the factual
dispute is portrayed with particularity, without depending on
the trial court to conduct its own search of the
record.” Cross v. The Home Depot, 390 F.3d
1283, 1290 (10th Cir. 2004) (quotations and citation
omitted). The Court is “not obligated to comb the
record in order to make [Plaintiff's] arguments for
[him].” Mitchell v. City of Moore, Okla., 218
F.3d 1190, 1199 (10th Cir. 2000).
Eighth Amendment claim against Defendant relates to his
imprisonment in the Centennial Correctional Facility during
the period April 1, 2015 through October 1, 2015. (Docket No.
37 at 9). In short, Plaintiff alleges that another offender,
later identified as Richard White, with whom he was housed
told him “that 4 or 5 women's bodies were buried in
a field in the town of S[e]dalia.” (Id.) White
then drew a map and asked Plaintiff to send the map to a
friend of Plaintiff's who is an attorney. (Id.)
Plaintiff “instead [ ] wrote a letter to the staff
about” the incident “and told them the maps
on [Plaintiff's] desk.” (Id.) Plaintiff
alleges that he handed the maps to Defendant and that about a
month later White got into a fight with Plaintiff after
accusing Plaintiff of “[telling] on him.”
argues that he is entitled to qualified immunity based on the
undisputed facts. (Docket No. 123).
and Disputed Facts
to Judge Moore's Practice Standards (see Civ.
Practice Standard IV.B.2.b.ii), Defendant provided a
Statement of Undisputed Material Facts (Docket No. 123-4),
which includes citations to evidence supporting each
statement of fact. Plaintiff's response includes a copy
of the Statement of Undisputed Material Facts with
handwritten comments. Plaintiff disputes only three of the
twenty-two statements of fact. The remaining nineteen are
noted as ...