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Sutton v. Auriti

United States District Court, D. Colorado

January 9, 2018

MR. AURITI, Defendant.


          Michael J. Watanabe United States Magistrate Judge

         In the instant action, Plaintiff, who proceeds pro se[1], 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.


         The Court has jurisdiction pursuant to 28 U.S.C. § 1331.


         “A 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).

         Whether 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., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted).

         The 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).


         Plaintiff's 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 were[2] 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.” (Id.)

         Defendant argues that he is entitled to qualified immunity based on the undisputed facts. (Docket No. 123).

         Undisputed and Disputed Facts

         Pursuant 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 ...

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