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Sutter v. Goetz

United States District Court, D. Colorado

January 26, 2018

SHAWN LOUIS SUTTER, Plaintiff,
v.
GOETZ, FCI Warden, DOMINIC JOHN, A.W., FREDDY GARRIDO, A.W., GICONI, FCI Captain, FRABONI, APN, THOMPSON, Counselor, J. FOX, Complex Warden, SARA M. REVELL, Regional Director, and RICKARD, Complex Captain, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge.

         ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

         This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim and Defendant Sara M. Revell's Motion to Dismiss for Lack of Personal Jurisdiction [#35][1] (the “Motion to Dismiss”), and on Defendants' Corrected Motion for Summary Judgment for Failure to Exhaust Administrative Remedies [#45] (the “Motion for Summary Judgment”). Plaintiff, who proceeds as a pro se litigant, [2] filed Responses [#51, #58] in opposition to the Motions, and Defendants filed Replies [#56, #60]. The Motions have been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#38, #47]. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motion to Dismiss [#35] be GRANTED in part and DENIED as moot in part and that the Motion for Summary Judgment [#45] be GRANTED in part and DENIED as moot in part.

         I. Summary of the Case

         At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the United State Bureau of Prisons (“BOP”) at the Federal Correctional Institution (“FCI”) located in Florence, Colorado. Second Am. Compl. [#17] at 2, 13. Defendants in this matter consist of various employees of the BOP. Id. at 10-12. Plaintiff asserts two claims of deliberate indifference under the Eighth Amendment stemming from his treatment by correctional officers during a prison riot and his alleged failure to receive appropriate medical care afterward. Id. at 13-21. Plaintiff seeks monetary damages in connection with these claims. Id. at 22-24.

         II. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(2)

         “The district court is given discretion in determining the procedure to employ in considering a motion to dismiss for lack of jurisdiction . . . . Facts regarding jurisdictional questions may be determined by reference to affidavits, by a pretrial evidentiary hearing, or at trial when the jurisdictional issue is dependent upon a decision on the merits.” Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (internal quotations and citations omitted). A plaintiff bears the burden of establishing personal jurisdiction over a defendant. Behagen v. Amateur Basketball Ass'n of the U.S., 744 F.2d 731, 733 (10th Cir. 1984). Before trial, a plaintiff need only make a prima facie showing of jurisdiction. Id. “The plaintiff may make this prima facie showing by demonstrating, via affidavits and other written materials, facts that if true would support jurisdiction over the defendant.” OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). The Court accepts the well-pled allegations (namely the plausible, nonconclusory, and nonspeculative facts) of the operative pleading as true “to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks and citations omitted).

         The exercise of personal jurisdiction over a non-resident defendant must satisfy the requirements of the forum state's long-arm statute as well as constitutional due process requirements. Doe v. Nat'l Med. Servs., 974 F.2d 143, 145 (10th Cir. 1992). “Colorado's long-arm statute is coextensive with constitutional limitations imposed by the due process clause.” Day v. Snowmass Stables, Inc., 810 F.Supp. 289, 291 (D. Colo. 1993). Therefore, if jurisdiction is consistent with the Fourteenth Amendment due process clause, Colorado's long-arm statute authorizes jurisdiction over a nonresident defendant. Under the due process clause, personal jurisdiction may not be asserted over a party unless that party has sufficient “minimum contact” with the state, so that the imposition of jurisdiction would not violate “traditional notions or fair play and substantial justice.” Burger King v. Rudzewicz, 471 U.S. 462, 74 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)); Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).

         B. Federal Rule of Civil Procedure 56

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

         III. Analysis

         A. Fed.R.Civ.P. 12(b)(2): ...


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