Mackey v. Watson

          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 ...