United States District Court, D. Colorado
ORDER AFFIRMING THE AUGUST 2, 2018 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
This
matter is before the Court upon the August 2, 2018
Recommendation by United States Magistrate Judge Scott T.
Varholak that Plaintiff Waldo Mackey's Motion for Summary
Judgment (Doc. # 59) be denied. (Doc. # 115.) Plaintiff has
filed four Objections to the Recommendation but none were
timely filed. (Doc. ## 117-19, 130.) The Court nevertheless
has considered Plaintiff's first-filed Objection, filed
August 20, 2018 (the “Objection”). (Doc. # 117.)
For the reasons described herein, Plaintiff's Objection
is overruled. The Court affirms and adopts Magistrate Judge
Varholak's Recommendation and denies Plaintiff's
Motion for Summary Judgment.
I.
BACKGROUND
The
Magistrate Judge's Recommendation (Doc. # 115) and this
Court's previous Order Denying Defendants' Motion to
Dismiss (Doc. # 51) provide recitations of the factual and
procedural background of this dispute and is incorporated
herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order
will reiterate only what is necessary to address
Plaintiff's Objection.
After
the Court's ruling on Defendants' Motion to Dismiss
(Doc. # 51), only two claims remain. In Claim Four, Plaintiff
alleges that Defendant Bridgette Watson, a sergeant at the
correctional facility where he was incarcerated, retaliated
against him for exercising “his right to
grieve/complain” in violation of the First Amendment by
performing harassing searches of his cell, confiscating his
prescription eyeglasses and clothing, directing other staff
to terminate him from his job as an Offender Care Aid, and
filing a false disciplinary report. (Doc. # 1 at 16-21; Doc.
# 6 at 3-4.) In Claim Five, Plaintiff alleges that Defendant
Susan Prieto, a hearing officer at the correctional facility,
denied him his due process rights at a disciplinary hearing
by excluding his witnesses and by informing him that
videotape of the incident with Defendant Watson had been
taped over and that he should have asked for it within three
days of the incident. (Doc. # 1 at 21-22; Doc. # 6 at 4.)
On
February 21, 2018, Plaintiff filed the Motion for Summary
Judgement now before the Court, seeking summary judgment on
both of his remaining claims. (Doc. # 59.) Plaintiff repeats
the factual allegations he made in his Complaint and claims
that they “establish[] that Defendant . . . Watson
denied [his] First Amendment right to redress grievances and
complain without retaliation; and Defendant . . . Prieto
denied [his] Fourteenth Amendment right to Due Process and/or
Equal Protection.” (Id. at 6.) Plaintiff does
not address the elements of his claims nor the standard for
summary judgment. See generally (id.)
Defendants responded in opposition to Plaintiff's Motion
for Summary Judgment on April 16, 2018 (Doc. # 86), to which
Plaintiff replied on May 7, 2018 (Doc. # 92.)
On
August 2, 2018, Magistrate Judge Varholak issued his
Recommendation that the Court deny Plaintiff's Motion for
Summary Judgment. (Doc. # 115.) He recounted the procedural
and factual background of Plaintiff's case at length and
accurately articulated the standards governing review of a
motion for summary judgment. (Id. at 1-10.)
Magistrate Judge Varholak then analyzed each of
Plaintiff's claims, finding that Plaintiff has not
established, as a matter of law, the elements of his two
claims. (Id. at 10-26.) After restating his
conclusion that Plaintiff's Motion for Summary Judgment
should be denied, the Magistrate Judge advised the parties
that they could serve and file written objections to his
Recommendation within fourteen days of its issuance.
(Id. at 26 n.6.)
Plaintiff
filed his Objection on August 20, 2018, four days after the
passing of the fourteen-day deadline for objections (August
16, 2018). (Doc. # 117.) Plaintiff filed further objections
on August 23, 2018 (Doc. # 118), August 27, 2018 (Doc. #
119), and September 6, 2018 (Doc. # 130). Because Plaintiff
proceeds pro se and the Court reviews his filings
liberally, it considers the Objection filed August 20, 2018
(Doc. # 117). It declines to review Plaintiff's
subsequent untimely objections. (Doc. ## 118, 119, 130.)
II.
STANDARDS OF REVIEW
A.
REVIEW OF A RECOMMENDATION
When a
magistrate judge issues a recommendation on a dispositive
matter, Fed.R.Civ.P. 72(b)(3) requires that the district
judge “determine de novo any part of the magistrate
judge's [recommended] disposition that has been properly
objected to.” An objection is properly made if it is
both timely and specific. United States v. One Parcel of
Real Property Known As 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In conducting its review,
“[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3).
B.
PRO SE PLAINTIFF
Plaintiff
proceeds pro se. The Court, therefore, reviews his
pleading “liberally and hold[s] [it] to a less
stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted). However, a pro
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983); see also
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (a court may not “supply additional factual
allegations to round out a plaintiff's complaint”);
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (a court may not “construct arguments
or theories for the plaintiff in the absence of any
discussion of those issues”). Nor does pro se status
entitle a litigant to an application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
C.
MOTION FOR ...