United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
CLEMENTS, Deputy Sheriff, in his individual capacity, ROMERO, Deputy Sheriff Captain, in his individual capacity, and JORDAN, Deputy Sheriff Sergeant, in his individual capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendants' Motion
for Summary Judgment [#249] (the “Motion”).
Plaintiff, who is proceeding pro se,  filed a Response [#268] in
opposition to the Motion, and Defendants filed a Reply
[#273]. The Motion has been referred to the undersigned for a
recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and
D.C.COLO.LCivR 72.1(c)(3). See [#250]. The Court has
reviewed the Motion, the Response, the Reply, the entire case
file, and the applicable law and is sufficiently advised in
the premises. For the reasons set forth below, the Court
respectfully RECOMMENDS that the Motion
[#249] be GRANTED in part and DENIED in
March 2013, Plaintiff was a pretrial detainee at the Denver
Detention Center (the “DDC”). Decl. of
Pl. [#140] ¶ 4. Plaintiff was housed in Cell Pod
4A, a Special Housing unit reserved for alleged sex
offenders. Id. On March 24, 2013, Defendant Clements
was assigned to work in Cell Pod 4A and contacted the
Classification division regarding Plaintiff. Motion
[#249] at 3; Response [#268] at 41. Plaintiff was
subsequently moved to Cell Pod 4D, a twenty-three hour
lock-down segregation unit. Response [#268]
¶¶ 30, 31; Reply [#273]
¶¶ 19-21. Plaintiff asserts that this
transfer was made purely for punitive reasons, although he
had done no wrong, and that he received no notice or hearing
before his placement in segregation. Decl. of Pl.
[#140] ¶ 4. Plaintiff was housed in segregation from
March 24, 2013, to December 18, 2013. Response
[#268] ¶ 37; Reply [#273] ¶ 26. D u r i n
g this time he had weekly administrative review meetings with
the Administrative Review Board, which included Defendants
Jordan and Romero. Response [#268] ¶¶ 36,
41; Reply [#273] ¶¶ 25, 30.
is now seeking compensatory damages for alleged loss of
privileges, quality of life, and adverse effects to his
mental and physical health caused by his time in segregation.
Fourth Am. Compl. [#137] at 12-13. Plaintiff asserts
three claims: (1) a Fourteenth Amendment due process
claim against Defendant Clements; (2) a Fourteenth Amendment
due process claim against Defendant Romero; and (3) a
Fourteenth Amendment due process claim against Defendant
Jordan. Fourth Am. Compl. [#137] at 9-11. Defendants
move for entry of summary judgment in their favor on all
three claims. Motion [#249] at 8, 17.
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.
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). T h e 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).
argue that they are entitled to qualified immunity on
Plaintiff's claims. Motion [#249] at 8. The
doctrine of qualified immunity “shields government
officials performing discretionary functions from liability
‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Boles v.
Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
defendant raises qualified immunity on summary judgment, the
burden shifts to the plaintiff to satisfy a strict two-part
test. Nelson v. McMullen, 207 F.3d 1202, 1206 (10th
Cir. 2000). First, taking the facts in a light most favorable
to the plaintiff, the plaintiff must provide evidence
demonstrating that each defendant's actions violated a
constitutional or statutory right. Id. Second, the
plaintiff has the burden of showing that “the
constitutional or statutory rights the defendant allegedly
violated were clearly established at the time of the conduct
at issue.” Id. (quoting Albright v.
Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir. 1995)
(citations omitted)). If the plaintiff does not meet his
burden of demonstrating both of these elements, then the
defendant is entitled to qualified immunity. Nelson,
207 F.3d at 1206.
regarding the first prong of the qualified immunity test,
under the due process clause, a pretrial detainee may not be
punished prior to a lawful conviction. Peoples v. CCA
Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005) (citing
Bell v. Wolfish, 441 U.S. 520, 535 (1970)). However,
the government may impose certain restrictions and conditions
on pretrial detainees so long as the conditions and
restrictions do not amount to punishment. Id. The
government may have a legitimate interest in segregating an
individual detainee for non-punitive reasons, such as
maintaining the safety and security of the institution.
Id. Thus, in order to satisfy the first prong,
Plaintiff must show that by being moved and held in
segregation, Defendants acted with punitive intent.
Bell, 441 U.S. at 538.
Fourteenth Amendment Claim Against Defendant
maintains that Defendant Clements violated Plaintiff's
due process rights by moving him to segregation without a
disciplinary write-up or hearing. See Fourth Am.
Compl. [#137] at 2-3, 9. Plaintiff questions the
veracity of Defendant Clements' contention that he was
approached by three inmates who complained about
Plaintiff's hygiene, which thereafter led to
Plaintiff's transfer to Unit 4D, i.e., the segregation
unit. Response [#268] at 6. Plaintiff maintains that
whether or not this encounter between Defendant Clements and
the three inmates occurred is a genuine issue of material
fact. Id. Plaintiff also maintains that the question
of whether Defendant Clements personally made the decision to
transfer Plaintiff is a disputed factual issue. Pl.
Statement of Disputed Factual Issues [#269] ¶¶
provide evidence that the Classification division made the
decision to transfer Plaintiff to segregation “in order
to avoid potential conflicts with other inmates”
following complaints from three inmates to Defendant Clements
regarding Plaintiff's hygiene. Decl. of Def.
Clements, Exhibit B [#249-2] ¶¶ 4, 7-8;
see also OIC Incident Report, Exhibit C [#268] at
84. Defendants also provide evidence that there was a history
of complaints about Plaintiff's hygiene, specifically
that on November 27, 2012, Plaintiff was transferred to Unit
4D, “due to him being unsanitary” and that on
March 14, 2013, he was transferred from Unit 4A-201 to Unit
4A-101 due to complaints about his sanitation. See
Id. Further, Defendants provide evidence that Defendant
Clements' actions were limited to alerting the
Classification division to the complaints from other inmates
and helping Plaintiff move out of Cell Pod 4A. Decl. of
Def. Clements, Exhibit B [#249-2] ¶¶
7-10. The uncontroverted evidence demonstrates that
the actual decision to reclassify Plaintiff was made by the
Classification division and was done in order to protect
Plaintiff's safety and “maintain institutional
security.” Decl. of Def. Clements, Exhibit B
[#249-2] ¶¶ 6, 8; see also Decl. of Def.
Jordan, Exhibit D [#249-4] ¶ 3 (“The
Classification division evaluates and determines the
appropriate housing for inmates.”); Decl. of
Romero, Exhibit C [#249-3] ¶ 5 (“Staff within
the Classification division evaluate and make the decision
when to reclassify an inmate and where that inmate will be
Defendants' evidence that Defendant Clements' actions
were limited to contacting the Classification division
regarding complaints about Plaintiff's hygiene and then
helping him move units, Plaintiff presents no contradictory
evidence that Defendant Clements had a more substantial role.
Further, while Plaintiff may question whether the encounter
between Defendant Clements and three other detainees
occurred, he presents no evidence to support these doubts.
See Bones, 366 F.3d at 875 (“To defeat a
motion for summary judgment, evidence, including testimony,
must be based on more than mere speculation, conjecture, or
reading the record in the light most favorable to Plaintiff,
he presents no evidence to support the contention that
Defendant Clements acted with punitive intent when he spoke
with the Classification division regarding Plaintiff's
housing. See Bell, 441 U.S. at 538. While Plaintiff
presents the declaration of another inmate at DDC suggesting
that Plaintiff “had multiple issues with Officer
Clements, ” he provides no evidence showing any
specific instances of “issues” between Plaintiff
and Defendant Clements or how these alleged
“issues” affected Defendant Clements'
communication with the Classification division regarding
Plaintiff's housing on March 24, 2013. See Decl. of
Louis Cordova, Exhibit F [#268] at 88. Further,
Plaintiff contends, without evidentiary support, that
Defendant Clements “repeatedly tryed [sic] to make
[Plaintiff] angry, upset, or even getting in my face trying
to get me to react or give him a reason to initiate violence
towards me, ” but does not contend or provide evidence
that Defendant Clements acted with hostility in connection
with Plaintiff's transfer to Unit 4D, i.e., segregation.
See Decl. of Pl., Exhibit A [#268] at 67, 69, 71.
Rather, a staff report written by Defendant Clements on March
24, 2013, maintains that leading up to Plaintiff's
transfer, he was “approached by all three of my Tier
Porters informing me that [Plaintiff] was unsanitary, ...