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Gresham v. Himschoot

United States District Court, D. Colorado

June 13, 2018

JAMES ROBERT GRESHAM, Plaintiff,
v.
ROBERT HIMSCHOOT, and JASON LENGERICH, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 92)

          Michael J. Watanabe United States Magistrate Judge

         This case is before this Court pursuant to an Order Referring Case to Magistrate Judge issued by Judge Raymond P. Moore on June 21, 2016 (Docket No. 20) and the Memorandum (Docket No. 88) referring Defendants Robert Himschoot and Jason Lengerich's (collectively “Defendants”) Motion for Summary Judgment. (Docket No. 92.) The Court has reviewed the parties' filings, taken judicial notice of the Court's entire file in this case, and considered the applicable Federal Rules of Civil Procedure and case law. Now being fully informed the Court makes the following report and recommendation.

         Procedural Background

         Defendants filed their Motion for Summary Judgment on February 27, 2018. (Docket No. 92.) Under D.C.COLO.LCivR 7.1(d), Plaintiff's[1] response to that motion was due March 20, 2018. Under Fed.R.Civ.P. 6(d), that response would have been deemed timely if received by the Court no later than May 23, 2018. On March 13, 2018, the Court received Plaintiff's Notice of Evidence Tampering by Defendant's [sic]. (Docket No. 94.) In striking this filing, Judge Moore observed that it was unclear whether Plaintiff was seeking relief or responding to Defendants' Motion for Summary Judgment, and informed Plaintiff that if the Notice was intended to be a response to the Motion for Summary Judgment, he must title the document as a response. (Docket No. 95.) On March 22, 2018, the Court received an additional filing docketed as “Motion for Order Seeking Relief by Plaintiff James Robert Gresham.” (Docket No. 96.) The undersigned Magistrate Judge construed the filing as a cross-motion for summary judgment, but found that it failed to comply with Fed.R.Civ.P. 56, D.C.COLO.LCivR 56.1, and Section IV.B of Judge Moore's Civil Practice Standards, and the motion was therefore denied without prejudice. (Docket No. 100.) The Court also noted that the filing was not titled as a response and did not address Defendants' Motion for Summary Judgment in the format required by Judge Moore. (Id.) Plaintiff was warned that his failure to respond to Defendants' Motion for Summary Judgment could lead to the motion being deemed confessed and judgment entering in Defendants' favor. (Id.) A month later, when no response had been filed, the Court sua sponte extended the deadline for Plaintiff to respond to Defendants' Motion for Summary Judgment to May 10, 2018, and again warned Plaintiff of the possible consequences if he chose not to file a response. (Docket No. 102.)

         Plaintiff did not file a response to the Motion for Summary Judgment on or before May 10, 2018. Accordingly, Plaintiff has confessed the motion. See Walter v. HSM Receivables, No. 13-cv-00564-RM-KLM, 2014 WL 5395197, at *1 (D. Colo. Oct. 23, 2014) (“The Motion is essentially unopposed as no response has been filed by Defendants.”); Armstrong v. Swanson, No. 08-cv-00194-MSK-MEH, 2009 WL 1938793, at *1 (D. Colo. July 2, 2009) (noting that Plaintiff did not file a response to the motion for sanctions and “deem[ing] the Plaintiff to have defaulted on th[e] motion.”). However,

[s]ummary judgment is not proper merely because [Plaintiff] failed to file a response. Before the burden shifts to the nonmoving party to demonstrate a genuine issue, the moving party must meet its “initial responsibility” of demonstrating that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law.

Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). As the Tenth Circuit has explained,

a party's failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party. The district court must make the additional determination that judgment for the moving party is “appropriate” under Rule 56. Summary judgment is appropriate only if the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. By failing to file a response within the time specified by the local rule, the nonmoving party waives the right to respond or to controvert the facts asserted in the summary judgment motion. The court should accept as true all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment. See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001); Anchorage Assoc. v. Virgin Islands Board of Tax Review, 922 F.2d 168, 175-76 (3d Cir. 1990); Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1022 (11th Cir. 1988).

Reed, 312 F.3d at 1195.

         Jurisdiction

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         Undisputed Material Facts

         • Defendant Himschoot worked for the Colorado Department of Corrections (“CDOC”) for approximately three years as a correctional officer in the Buena Vista Correctional Complex (“BVCC”). (Himschoot Aff., Docket No. 92-2 ¶ 1.)

         • Defendant Lengerich is the Warden of BVCC. (Lengerich Aff., Docket No. 92-7 ¶ 1.)

         • At the time of the events giving rise to Plaintiff's claims, Plaintiff was incarcerated at BVCC, and housed in B-Unit, Wing 6, Cell 4. (Himschoot Aff., Docket No. 92-2 ¶ 6.)

         • On March 6, 2015, Himschoot was working in the B-Unit, supervising an inmate who was working on removing and cleaning light fixtures using a screw driver, which is a “class A” tool. Himschoot had with him a tool box in which the screw driver was stored. (Id. ¶¶ 5, 7.)

         • Offenders using class A tools must be supervised at all times, since these tools can be used as weapons. (Id. ¶ 8.)

         • While supervising the offender fixing the lights, Defendant Himschoot saw another inmate, Keith Frey, coming up the stairs of B-Unit. (Id. ¶ 9.)

         • Offenders at BVCC are not permitted to enter housing units to which they are not assigned, and because Frey was housed in C-Unit, he was not permitted to be in B-Unit. (Id. ¶¶ 10-11.)

         • Defendant Himschoot asked Frey what he was doing; Frey said he wanted to speak with Defendant Himschoot, and followed him to the entrance of Wing 5, where the other offender was cleaning the lights. (Id. ¶¶ 12-13.)

         • Defendant Himschoot told Frey to leave, to which Frey replied that he needed to drop something off to someone. Defendant Himschoot again ...


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