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Vigil v. Archuleta

United States District Court, D. Colorado

July 6, 2018

FRANK VIGIL, JR., Plaintiff,
LOU ARCHULETA, Director of Prisons - Central Classification Committee, JOHN CHAPDELAINE, Assistant Warden of Sterling - C.C.C., JEFF PETERSEN, Manager II - Central Classification Committee, SCOTT STURGEON, Manager I - Central Classification Committee, TINO HERRERA, Office of Inspector General - C.C.C., and LARRY TURNER, Manager II - Central Classification Committee, Defendants.



         This matter is before the Court on Defendants' Motion for Summary Judgment [#61][1] (the “Motion”). Plaintiff, who is proceeding pro se, [2] filed a Response [#64] in opposition to the Motion [#61]. Defendants did not file a Reply and the time for doing so has elapsed. The Motion [#61] has been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. COLO.LCivR 72.1(c)(3). The Court has reviewed the Motion [#61], Plaintiff's Response [#64], the entire case file, and the applicable law, and is sufficiently advised in the premises. The Court respectfully recommends that Motion [#61] be DENIED.

         I. Summary of the Case[3]

         Plaintiff is an inmate in the Colorado Department of Corrections (“CDOC”). See Second Am. Verified Compl. [#14] at 2; see also Motion [#61] at 2 ¶ 1. On September 24, 2015, Plaintiff initiated this lawsuit pursuant to 42 U.S.C. § 1983 in order to challenge the circumstances surrounding his attempted transfer to Oregon in 2012 and his actual transfer to Virginia in 2014. Second Am. Verified Compl. [#14] at 5, 14. Specifically, Plaintiff asserts that he was retaliated against by Defendants for exercising his First Amendment right to access the courts. Id.

         Plaintiff filed his Second Amended Complaint [#14], which is now the operative pleading, on December 28, 2015. Defendants filed Motions to Dismiss on March 29, 2017. See [#27, #38]. The Court ruled on the Motions to Dismiss, and all claims against Defendants Raemisch and Medina were dismissed. See Order [#52]. Pursuant to the same Order [#52], Plaintiff's only remaining claim is First Amendment retaliation against Defendants Lou Archuleta (“Archuleta”), John Chapdelaine (“Chapdelaine”), Jeff Petersen (“Petersen”), Scott Sturgeon (“Sturgeon”), Tino Herrera (“Herrera”), and Larry Turner (“Turner”) in their individual capacities.[4] Defendants Archuleta, Chapdelaine, Petersen, Sturgeon, Herrera, and Turner were CDOC employees during all times relevant to the present lawsuit. Second Am. Verified Compl. [#14] at 2; Motion [#61] at 4 ¶¶ 12-13; CDOC Notice of Protective Custody Decision [#61-1] at 29. Discovery closed on November 20, 2017.

         The remaining Defendants filed the Motion [#61] on January 20, 2018. Plaintiff filed his Response [#64] on February 26, 2018. Both Defendants and Plaintiff have attached evidence to the Motion and Response, respectively. Defendants have attached their Responses to Plaintiff's interrogatories and requests for admission, affidavits by Defendants Petersen and Sturgeon, a CDOC administrative regulation, and three documents from Plaintiff's record regarding his protective custody status and eventual out-of-state transfer. Plaintiff has attached four documents from his CDOC record, a Human Rights Watch article regarding the Red Onion State Prison (the facility he was transferred to in Virginia), and a sworn affidavit. Additionally, Plaintiff swears to his Second Amended Complaint [#14] under penalty of perjury and that document is therefore treated as an affidavit. See Pacheco, 2014 WL 2442111, at *4 n.2.

         Plaintiff had been incarcerated in Colorado for twelve years at the time when CDOC attempted to transfer Plaintiff to Oregon in 2012. Motion [#61] at 2 ¶ 4; Response [#64] at 4 ¶ 1. The attempted transfer occurred one month prior to trial in a lawsuit that Plaintiff had filed against CDOC in 2009. Response [#62] at 4 ¶ 1; Motion [#61] at 10. That transfer was unsuccessful because Plaintiff “made a scene” at Denver International Airport (“DIA”) and was not allowed on the flight to Oregon. Motion [#61] at 2 ¶¶ 5-6; Response [#64] at 3 ¶ 5. Two years later, Plaintiff was transferred to the Red Onion State Prison in Virginia. Response [#64] at 11; Motion [#61] at 4 ¶ 16.

         III. Standards of Review

         A. Federal Rule of Civil Procedure 56

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file 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.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). T h e nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

         Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...

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