United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR SUMMARY JUDGMENT
S. Krieger Chief United States District Judge
MATTER comes before the Court upon the parties'
Cross-Motions for Summary Judgment (## 71, 89),
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.
Court exercises jurisdiction under 28 U.S.C. § 1331.
as noted, the following facts are derived from Mr.
Dalrymple's declaration (# 89). Mr.
Dalrymple, appearing pro se,  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
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.
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.
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.
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.
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.
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. Finally, the Defendants argue that, to the
extent Mr. Dalrymple can state a claim, they 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
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.