United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
DEPUTY SHERIFF CLEMENTS, in his individual capacity, DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity, Defendants.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommendation of the
United States Magistrate Judge [Docket No. 278] filed on
January 31, 2018. The magistrate judge recommends that the
Court: (1) grant summary judgment in favor of defendants with
respect to plaintiff's first claim for relief - a
Fourteenth Amendment due process claim against defendant
Clements; (2) deny summary judgment in favor of defendants on
plaintiff's third and fourth claims for relief, which
assert Fourteenth Amendment due process claims against
defendants Romero and Jordan; and (3) grant summary judgment
in favor of defendants on plaintiff's request for
compensatory damages. See Docket No. 278 at 9, 17,
19. On February 14, 2018, plaintiff and defendants Romero and
Jordan filed separate objections to the recommendation.
Docket Nos. 281, 282. Defendants filed a response to
plaintiff's objection on March 7, 2018. Docket No. 289.
case arises out of plaintiff's pretrial detention at the
Denver Detention Center (“DDC”) in March 2013.
Plaintiff filed a pro se prisoner complaint on
August 28, 2014 alleging that various members of the Denver
Sheriff's Department had violated his constitutional
rights by placing him in Cell Pod 4D, a 23-hour segregation
unit at DDC. See generally Docket No. 1. Plaintiff
filed his fourth amended complaint on May 16, 2016, asserting
three claims for relief: (1) a Fourteenth Amendment due
process claim against defendant Clements (claim one); (2) a
Fourteenth Amendment due process claim against defendant
Romero (claim three); and (3) a Fourteenth Amendment due
process claim against defendant Jordan (claim four). Docket
No. 137. On July 25, 2017, defendants moved for
summary judgment on all claims. Docket No. 249. On January
31, 2018, the magistrate judge recommended that the Court
grant defendants' motion in part and deny it in part.
Docket No. 278.
STANDARD OF REVIEW
Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
“proper” if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
absence of a proper objection, the Court reviews the
magistrate judge's recommendation to satisfy itself that
there is “no clear error on the face of the
record.”Fed. R. Civ. P. 72(b), Advisory Committee
plaintiff is proceeding pro se, the Court construes
his objection and pleadings liberally without serving as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
raises three principal objections to the magistrate
judge's recommendation. Plaintiff's first through
sixth arguments challenge the magistrate judge's finding
that defendants are entitled to summary judgment on
plaintiff's claim against defendant Clements.
See Docket No. 282 at 5-13. In his seventh argument,
plaintiff appears to contest the magistrate judge's
finding that he had weekly meetings with DDC's
administrative review board. See Id. at 13. Finally,
plaintiff's eighth and ninth arguments challenge the
magistrate judge's determination that plaintiff is not
entitled to seek compensatory damages. See Id. at
14-16. Defendants object to the magistrate
judge's finding that defendants are not entitled to
summary judgment on plaintiff's claims against defendants
Romero and Jordan. See Docket No. 281 at 2.
Fourteenth Amendment Claim Against Defendant
objects to the magistrate judge's recommendation that the
Court grant defendants' motion for summary judgment as to
plaintiff's claim against defendant Clements. Docket No.
282 at 5-13. The magistrate judge found that the undisputed
evidence showed that the Classification division - and not
defendant Clements - made the decision to transfer plaintiff
to Cell Pod 4D based on legitimate concerns that plaintiff
would be retaliated against by other inmates for purported
hygiene issues. See docket No. 278 at 6. The
arguments plaintiff advances in support of his objection fall
into three general categories.
plaintiff asserts that defendant Clements violated his due
process rights by removing plaintiff from Cell Pod 4A
without: (1) conducting an investigation into the allegations
regarding plaintiff's misconduct; (2) employing
appropriate procedural safeguards to ensure that plaintiff
had actually engaged in misconduct; or (3) advising plaintiff of
the alleged misconduct or affording him an opportunity to be
heard. See Id. at 6-7. Second, plaintiff argues that
the magistrate judge erred by finding that Clements'
actions were limited to the reporting of plaintiff's rule
violations to the Classification division. See Id.
at 8. Plaintiff contends that Clements was not required to
report rule violations and that he could have chosen instead
to conduct his own investigation into the allegations
regarding plaintiff's misconduct. Id. Third,
plaintiff challenges the magistrate judge's finding that
defendants transferred plaintiff out of Cell Pod 4A for
legitimate reasons. He argues that there is no evidence
showing (1) that defendant Clements detected “a foul
body odor or offensive smell from Plaintiff” to
corroborate other inmates' allegations of misconduct; or
(2) that there were threats to plaintiff's safety.
Id. at 9-10. Finally, plaintiff asserts that the
magistrate judge improperly “weighed” the
evidence in finding that defendant Clements is entitled to
summary judgment. Id. at 12-13.
Court finds that plaintiff's second, third, and fourth
arguments do not demonstrate any error in the magistrate
judge's determination that plaintiff has failed to
present evidence showing that defendant Clements acted with
punitive intent. Plaintiff suggests that, under the Denver
Sheriff Department's (“DSD”) Inmate Handbook,
Clements was required to either report the hygiene issues to
a sergeant for investigation or investigate the issues
himself rather than notify the Classification division.
See Docket No. 282 at 8. But plaintiff does not
point to any evidence controverting defendants' assertion
that the procedures set forth in the Handbook did not apply
because plaintiff “was not charged with a violation of
any jail rule.” Docket No. 273 at 11; see also
Docket No. 282 at 7 (“Defendants have tacitly admitted
that [plaintiff] was never charged with a DSD rule infraction
. . . .”). The crux of defendants' argument is that
plaintiff was transferred to Cell Pod 4D because of a
perceived threat to plaintiff's safety. See
Docket No. 249 at 12; see also Docket No. 278 at 6.
And defendants presented uncontroverted evidence that it was
reasonable, under the circumstances, for Clements to bring
these safety concerns to the attention of the Classification
division. See Docket No. 273 at 11; see
also 249-4 at 1-2, ¶ 3 (stating that “[t]he
Classification division evaluates and determines the
appropriate housing for inmates”).
third argument - that there is no evidence to substantiate
defendants' concerns about plaintiff's safety - is
also unavailing. The magistrate judge considered this
argument but concluded that plaintiff's unsupported
“doubts” regarding defendants' reasons for
transferring him to Cell Pod 4D were insufficient to create a
genuine dispute of material fact. See Docket No. 278
at 7. In objecting to this finding, plaintiff asserts that
Clements has never stated that he personally “detected
any type of foul body odor or offensive smell from
plaintiff.” Docket No. 282 at 9. He further contends
that the OIC Staff Report, Docket No. 268 at 84, does not
substantiate def endants' alleged safety concerns because
it does not say that plaintiff was threatened by other
inmates. Id. Finally, he suggests that the Staff
Report should be disregarded because it was hand-typed by
Clements. Id. But these assertions do not create a
genuine factual dispute regarding ...