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Dalrymple v. Rosa

United States District Court, D. Colorado

March 28, 2018

LUIS A. ROSA, Assistant Warden, KCCC; TAYLOR, Unit Manager, KCCC; and SWARTZ, Property Officer, KCCC, Defendants.


          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court upon the parties' Cross-Motions for Summary Judgment (## 71, 89), [1] the Plaintiff's response (# 90), and the Defendants' reply (# 91); and the Plaintiff's Motion to Show Cause to Allow Issuance of Subpoenas (# 92). For the following reasons, the Defendants' motion is granted, in part, and the remaining motions are denied.


         The Court exercises jurisdiction under 28 U.S.C. § 1331.


         Except as noted, the following facts are derived from Mr. Dalrymple's declaration (# 89). Mr. Dalrymple, appearing pro se, [2] is a prisoner in the custody of the Idaho Department of Corrections (“IDOC”). For reasons that are not disclosed in the record, in 2012, IDOC arranged for him to be housed in the Kit Carson Correctional Center (“KCCC”) in Burlington, Colorado.[3]

         At the time of his move to KCCC, Mr. Dalrymple was in possession of four books on the subject of hypnotism. Mr. Dalrymple intended to use these books as support for legal filings he intended to make in his Idaho criminal case. Mr. Dalrymple states that all four of the books were approved by KCCC staff during his “initial intake process.” Between 2012 and March 2015, he ordered four more hypnotism books, again ostensibly for research purposes. Three of the books were approved by KCCC staff; the fourth was initially confiscated, but upon review by KCCC staff, the book was approved and given to Mr. Dalrymple.

         In late 2015, Mr. Dalrymple ordered duplicate copies of three of the books, intending to attach the copies as exhibits to a motion he intended to file in his criminal case. Mr. Dalrymple states that, on January 3, 2016, Defendant Schwartz confiscated the three books. Mr. Dalrymple does not recite what explanation he was given by Mr. Schwartz at the time, and Mr. Schwartz has not tendered an affidavit or deposition testimony giving his version of why the initial confiscation occurred. Mr. Dalrymple complained of the confiscation to Defendant Rosa, the Assistant Warden at KCCC, explaining that the confiscated books were simply copies of books that Mr. Dalrymple already had in his possession. Mr. Rosa then directed Mr. Schwartz to confiscate Mr. Dalrymple's original copies of the three books as well. Once again, Mr. Dalrymple does not recite any justification that Mr. Rosa gave for the second confiscation.

         The Court pauses here to consult the materials submitted by the Defendants in support of their summary judgment motion. Mr. Rosa's affidavit seems to offer two conflicting justifications for the confiscation of Mr. Dalrymple's books. First, Mr. Rosa makes reference to a “Reading Committee” at KCCC that ostensibly vets inmates' possession of reading material. Mr. Rosa makes clear that neither he nor any other Defendant was a member of that committee. Mr. Rosa refers to “the committee's decision to confiscate Mr. Dalrymple's hypnosis books.” Then, Mr. Rosa states that “the basis for the confiscation of the books was that [IDOC] did not allow Mr. Dalrymple to possess hypnosis books.” Attempting to harmonize Mr. Rosa's affidavit, the Court assumes that Mr. Rosa is asserting that the Reading Committee at KCCC consulted IDOC about whether Mr. Dalrymple could possess the books, that IDOC responded that he could not, and that the Reading Committee then instructed Mr. Schwartz and/or Mr. Rosa to confiscate the books.[4]

         Returning to Mr. Dalrymple's version of events, he states that he then submitted a grievance concerning the confiscation of the books to the Defendants here. All three Defendants met with Mr. Dalrymple and offered yet another justification for the confiscation: that his “status as a sex offender forbid [him] from having this type of publication.” Mr. Dalrymple's declaration concludes with the statement that he is now back in a facility in Idaho, that “the publications in question in this litigation do not present any security risk, ” and that he is presently in possession of all three of the confiscated books.

         Mr. Dalrymple's suit here asserts two claims, both pursuant to 42 U.S.C. § 1983: (i) that the confiscation of the three books violated his right to Free Speech (or, arguably, Freedom of the Press) as secured by the First Amendment to the U.S. Constitution; and (ii) that the confiscation of the books violated his First Amendment right to petition the government for redress by depriving him of access to the courts, insofar as he was unable to file the books as exhibits to a motion in his criminal case.

         The Defendants' summary judgment motion is somewhat muddled. It first argues that none of the named Defendants personally participated in the confiscation of Mr. Dalrymple's books, arguing instead that the decision to confiscate the books was made by the members of the Reading Committee, none of whom were the Defendants. The Defendants then argue that Mr. Dalrymple cannot establish any §1983 claim, in that, generally, the Defendants lacked a sufficiently culpable state of mind and that Mr. Dalrymple cannot establish a claim premised upon denial of access to the courts because he has not come forward with facts showing that the confiscation of the books caused him tangible prejudice in his ability to pursue a non-frivolous criminal appeal. The also allege, in this argument, that the confiscation of the books was made at the direction of IDOC.[5] Finally, the Defendants argue that, to the extent Mr. Dalrymple can state a claim, they[6] are entitled to qualified immunity because Mr. Dalrymple cannot show that the contours of his claim are “clearly established, ” given that IDOC gave the direction that the books be confiscated.


         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See ...

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