United States District Court, D. Colorado
NATHAN YBANEZ, SIMON SUE, SAM LINCOLN, ATORRUS RAINER. GREG RIVAS. PATRICK SUCHAIYA, Plaintiffs,
RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections CDOC, LOU ARCHULETA, in his official capacity as Director of Prisons for CDOC, BERNADETTE SCOTT, in her official capacity as Lieutenant of the SCF Mail Room and in her individual capacity, SCF MAIL ROOM EMPLOYEE "DJ", in his/her individual capacity, MICHELLE NYCZ-HALLIGAN, in her official capacity as a Major on the SCF Publication Review Committee and in her individual capacity, SCF MAIL ROOM EMPLOYEE "PDR", in his/her individual capacity, IRIS CHRISTIANS, in her individual capacity, SCF MAIL ROOM EMPLOYEE "Z SMITH", in his/her individual capacity, SCF CORRECTION OFFICER OCHOA, in her individual capacity, SCF SERGEANT ROBERT HRADECKY, in his individual capacity, ANDRIES PRINSLOO, in his individual capacity, and JOHN CHAPELAINE, in his individual capacity, Defendants.
REPORT AND RECOMMENDATION
L. Carman United States Magistrate Judge
Judge Mark L. Carman This matter comes before the court on
the "Defendants' Motion for Summary Judgment"
(Doc. 148), filed on September 18, 2017, by Defendants Rick
Raemisch, Lou Archuleta, Bernadette Scott, Deon Jimenez,
Michelle Nycz-Halligan, Robert Ryles, Iris Christians, Edward
Smith, Claudia Ochoa, Robert Hradecky, and John Chapdelaine.
court has carefully considered the Motion, the related
briefing, the entire case file, and applicable case law. For
the following reasons, the court recommends that the
Defendants' Motion be granted in part and denied in part.
Nathan Ybanez, Simon Sue, Sam Lincoln, Atorrus Rainer, Greg
Rivas, and Patrick Suchaiya, filed this lawsuit pursuant to
42 U.S.C. § 1983 against various employees of the
Colorado Department of Corrections ("CDOC"). In
their Third Amended Prisoner Complaint
("Complaint") (Doc. 55), Plaintiffs allege numerous
violations under the First and Fourteenth Amendments arising
from Defendants alleged censorship and seizure of magazines
and personal mail deemed to be "sexually explicit."
According to the Complaint, the CDOC was previously subject
to a settlement agreement that prohibited it from censoring
sexually explicit materials unless it fit within the
Materials that clearly depict or describe bestiality,
pedophilia, sadism, masochism, necrophilia, discharge of
bodily fluid, oral, anal or vaginal penetration by animate or
inanimate objects, or oral sex.
(the "original policy"). Doc. 148-1 at
The original policy, codified as AR 300-26, also specifically
provided that materials could not be rejected solely because
"its content is religious, philosophical, political,
social, or sexual, or because of its religious,
philosophical, political, or social views, its sexual
content, or because it is unpopular, repugnant, or
critical of the [CDOC] or other government authority."
Id. at 3 (emphasis added).
following the expiration of the settlement agreement, the
CDOC amended AR 300-26 ("June 2012 policy")- Among
the many changes to the policy, the definition of
"sexually explicit" material was amended to include
nudity. Doc. 148-2 at 2. In addition, "sexual
content" was specifically removed from the list of
content-based categories. Id. at 4. The policy was
amended again in November 2012 ("November 2012
policy"). This version retained the new definition of
"sexually explicit, " but it also provided for
certain categories of exceptions that could be permitted:
"A publication may be allowed which would otherwise fall
within the definition of sexually explicit if  the
publication has literary, educational, scientific, artistic
or historic value." Doc. 148-3 at 5.
their Complaint, Plaintiffs contend that the June and
November 2012 policies are facially unconstitutional because
they violate their First Amendment and Due Process rights.
Doc. 55. In addition, they allege that Defendants withheld
numerous publications and items of personal mail that did not
meet the definition of "sexually explicit."
Plaintiffs also claim that many of these items were withheld
or seized from them without any notice or any opportunity to
appeal the decisions. Id.
the court's ruling (Doc. 101) on the Defendants'
Motion to Dismiss (Doc. 80), Plaintiffs and Defendants
engaged in a period of discovery. Thereafter, Defendants
filed their Motion for Summary Judgment. Doc. 148. They
contend that based on the undisputed material facts, judgment
should be entered in their favor. Id. They also
argue that they are entitled to qualified immunity.
Id. In support of their Motion, Defendants have
submitted a number of declarations together with supporting
evidence and exhibits. Plaintiffs filed their Response (Doc.
157) on November 20, 2017, which was followed by
Defendants' Reply (Doc. 167) on December 18. 2016.
Plaintiffs were then permitted to file a Surreply (Doc. 173)
on February 12, 2018, to respond to an argument raised for
the first time in Defendants' Response brief.
judgment is appropriate only if the pleadings, the discovery
and disclosure materials on file, and any affidavits 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." Fed.R.Civ.P. 56; see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc.. 41 F.3d 567, 569 (10th Cir.
1994). To meet the burden of persuasion required to support
summary judgment, the movant must "point to those
portions of the record that demonstrate an absence of a
genuine issue of material fact, given the relevant
substantive law." Thomas v. Wichita Coca-Cola
Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)
(citing Celotex Corp., 477 U.S. at 322-23 (1986)). A
fact is "material" if under the substantive law it
could have an effect on the outcome of the lawsuit. Equal
Emp't Opportunity Comm 'n v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing
Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986)). A factual dispute is "genuine" if the
evidence is so contradictory that if the matter went to
trial, a reasonable jury could return a verdict for either
party. Anderson, 477 U.S. at 248.
the moving party bears the initial burden of showing that
there is an absence of any issues of material fact. Hicks
v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991),
the movant need not negate the non-movant's claim.
See John Hancock Mut. Life Ins. Co. v. Weisman, 27
F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs.,
Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529
(10th Cir. 1994). Once the moving party points to an absence
of evidence to support the non-moving party's claim, the
non-moving party may not rest upon his or her pleadings, but
must present specific facts showing that there is a
genuine issue for trial as to the elements essential to the
non-moving party's case. See Fed. R. Civ. P.
56(e). See also Kannady v. City of Kiowa, 590 F.3d
1161, 1169 (10th Cir. 2010). If the non-moving party will
bear the burden of proof at trial, it must come "forward
with sufficient competent evidence to establish a prima
facie claim." Green Earth Wellness Ctr., LLC v.
A tain Specialty Ins. Co., 163 F.Supp.3d 821, 825 (D.
court must construe the factual record and reasonable
inferences therefrom in the light most favorable to the
non-moving party. Kidd v. Taos Ski Valley, Inc., 88
F.3d 848. 851 (10th Cir. 1996). "[A] 'judge's
function' at summary judgment is not 'to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.'" Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson, 477 U.S. at 249).
Ultimately, the court must determine "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52.
allegations will not create a genuine issue of material fact
necessitating trial. Dobson v. City & Cty. of
Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999). Cf
Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990)
(acknowledging "conclusory allegations without specific
supporting facts have no probative value"). Evidence
that is not significantly probative and immaterial factual
disputes will not defeat a motion for summary judgment.
Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo.
1998). The demonstration of "some metaphysical doubt as
to the material facts" is not sufficient to establish a
genuine issue of material fact. Foreman v. Richmond
Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997).
"The very purpose of a summary judgment action is to
determine whether trial is necessary." White v. York
lull Corp., 45 F.3d 357, 360 (10th Cir. 1995). In short,
this court must determine whether the non-moving party has
come forward with specific facts to overcome the moving
party's motion in whole or in part.
their Reply, Defendants allege that in February 2016, the
November 2012 policy was "significantly changed"
and the definition of nudity was amended in an effort to
remedy some of the strict interpretations that occurred under
the previous language. Doc. 167 at 40. Defendants allege that
the CDOC has "taken specific actions to right the
unintended over-censorship that occurred under the prior
definitions of nudity." Id. at 41. They argue,
therefore, that Plaintiffs" facial challenge is moot.
The court is not persuaded.
well established that a defendant's "voluntary
cessation of a challenged practice" moots an action only
if "subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected
to recur." Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 189 (2000); see
Knox v. Serv. Emps. Int'l Union, Local 1000, 567
U.S. 298, 307 (2012) ("The voluntary cessation of
challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption of
the challenged conduct as soon as the case is
dismissed.") United States v. W.T. Grant Co.,
345 U.S. 629, 632 (1953) ("voluntary cessation of
allegedly illegal conduct does not deprive the tribunal of
power to hear and determine the case, i.e., does not make the
case moot"). "The 'heavy burden of
persua[ding]' the court that the challenged conduct
cannot reasonably be expected to start up again lies with the
party asserting mootness." Friends of the
Earth, 528 U.S. at 189 (quoting United States v.
Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203
the Defendants have not conceded that the challenged versions
of the policy violated the First Amendment. See Doc.
167 at 41-42. Nor has any Defendant submitted any affidavit
or otherwise stating that the prior policies were
constitutionally suspect and, therefore. will never be
re-implemented by the CDOC. Rather, the evidence submitted
with Defendants" Reply indicates that the changes were
made for clarification purposes. Doc. 167-1 at 10-11.
Defendants have not pointed to any legal or practical barrier
to their reinstatement of the previous versions of the
policy, and "they have failed to even offer a bald
conclusory pledge not to return to such policies."
Prison Legal News v. Stolle, No. 2;l3cv424, 2015 WL
1487190, at *4 (E.D. Va. July 8, 2016); see also Young v.
Raemisch, No 13-cv-01744-RPM, 2015 WL 4607679, at *1 (D.
Colo. Aug. 3, 2015) (rejecting Defendants argument regarding
mootness where there was "nothing to assure [the court]
that the officials responsible for the mail policy recognize
the need to consider the First Amendment").
the court concludes that Defendants have not met their burden
in this regard and will proceed to consider the merits of
Plaintiffs' facial claims.
Defendants contend that they are entitled to judgment on
Plaintiffs' First Amendment claim because the June and
November 2012 policies are facially constitutional under the
test articulated in Turner v. Safley, 482 U.S. 78,
89 (1987). Doc. 148 at 21-27. In addition, Defendants contend
that the regulation's censorship procedures adequately
protect prisoners' interests under the Due Process
clause. The court agrees with Defendants in part.
their Response, Plaintiffs acknowledge that this court may
not weigh the credibility of witnesses when determining a
motion for summary judgment. Fogarty v. Gallegos,
523 F.3d 1147, 1165 (10th Cir. 2008). Nevertheless, they
contend that the affidavits and materials submitted with
Defendants" motion contain infirmities and, therefore,
raise questions as to the legitimacy of their arguments. Doc.
157 at 24-28. Specifically, Plaintiffs lament Defendants
citation of more recent versions of AR 300-26, and argue that
Defendants are attempting to co-opt provisions from these
amended versions. In addition, Plaintiffs also contend that
Defendants are improperly attempting to rely on discovery
materials disclosed after the discovery deadline had passed.
the court concludes that Aiello v. Litscher, 104
F.Supp.2d 1068 (W.D. Wise. 2000), cited by Plaintiffs, is
distinguishable. In Aiello, the district court
observed that a prison guard's affidavit was directly
contradicted by her deposition testimony and was possibly
perjurious. Id. at 1071. The court noted that
several of the defendants' proposed affiants contradicted
their own sworn affidavits or revealed that their
"personal knowledge" was actually based on many
layers of hearsay. Based on this sanctionable conduct, the
court concluded that many of the defendants' proposed
facts could not be credited. Id. at 1027.
however. Plaintiffs have not cited any such inconsistencies
in the submitted affidavits. Rather, the
"inconsistency" arises in Defendants' citation
errors and in Defendants' citation to later versions of
the regulations in their Summary Judgment briefing. In their
proposed facts regarding the censorship procedures,
Defendants cited to the most recent versions of AR 300-26. In
explanation. Defendants state that they believed Plaintiffs
were challenging AR 300-26 generally, as opposed to only
challenging the June and November 2012
versions.Defendants further contend that the
citations to the more recent versions are relevant to
demonstrating that the policy has materially changed and,
therefore, that Plaintiffs' facial claims are
moot. Whatever, the explanation for these
citation errors and inconsistencies, the court concludes that
it does not implicate the veracity of the affiants.
in Aiello, none of these affiants have contradicted
their affidavits with sworn deposition testimony. Indeed,
none of Defendants' affiants refer to these more recent
versions of AR 300-26 as the basis for their statements.
See Docs. 148-8, -9, -10. Furthermore, the court is
not confronted with a situation wherein it must sift through
the evidence to determine which of the implicated facts are
truly undisputed. Aiello, 104 F.Supp.2d at 1072.
Defendants' citation to the more recent version of AR
300-26 - and thereby policy provisions that are not at issue
in this case - is easily remedied. The court has been
provided with copies of the at-issue policies (Doc. 148-2
(June); Doc. 148-3 (November)) and refers to them as evidence
of what policy provisions are implicated in Plaintiffs'
also argue that, pursuant to F.R.C.P. 37(c)(1), this court
should disregard the attachments to Keith Nordell's
affidavit (Doc. 148-8) because these documents were disclosed
after the discovery period had ended. Defendants contend that the
untimely disclosure is harmless.
"The determination of whether a Rule 26(a) violation is
justified or harmless is entrusted to the broad discretion of
the district court." Mid-America Tablewares, Inc. v.
Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996). A
district court need not make explicit findings concerning the
existence of a substantial justification or the harmlessness
of a failure to disclose. United States v. $9, 041,
598.68, 163 F.3d 238, 252 (5th Cir. 1998). Nevertheless,
the following factors should guide its discretion: (1) the
prejudice or surprise to the party against whom the
[information] is offered; (2) the ability of the party to
cure the prejudice; (3) the extent to which introducing such
[information] would disrupt the trial; and (4) the moving
party's bad faith or willfulness.
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
170 F.3d 985, 993 (10th ...