United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion
for Summary Judgment [#61] (the “Motion”).
Plaintiff, who is proceeding pro se,  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.
Summary of the Case
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.
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. 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,
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.
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.
Standards of Review
Federal Rule of Civil Procedure 56
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.
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).
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),