United States District Court, D. Colorado
ORDER GRANTING SUMMARY JUDGMENT AND TERMINATING
William J. Martinez, United States District Judge
of 42 U.S.C. § 1983, Plaintiff Jerod Lance Wade
(“Wade”) sues various employees of the Mesa
County Detention Facility (collectively,
“Defendants”) for First Amendment retaliation,
procedural due process violations, and Fourteenth Amendment
Equal Protection Clause violations. Currently before the
Court is Defendants' Motion for Summary Judgment. (ECF
No. 103.) For the reasons explained below, the Court will
grant this motion, direct entry of judgment, and terminate
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
following facts are undisputed unless attributed to a party
or otherwise noted.
was a Mesa County Detention Facility (“Facility”)
pretrial detainee in 2013 and 2014. (ECF No. 83 ¶¶
23-34.) The Facility has various discrete housing units, more
commonly known as “pods.” (ECF No. 103 at 5,
¶ 4.) The pods are named for species of trees.
(Id. ¶¶ 5-6.) “Oak” pod is
minimum-security; “Pinyon” pod was
medium-security at the time relevant to this lawsuit;
“Cedar 2” pod is maximum-security without
solitary confinement; and “Cedar 3” pod is
maximum-security with solitary confinement (23-hour
lockdown). (Id. at 5-7, ¶¶ 5-6, 13-15; ECF
No. 108 at 3, ¶ 15.)
September 29, 2014, the Facility moved Wade from Pinyon pod
to Cedar 3 pod. Defendants claim that the Facility made this
move because it had re-classified Wade “as a person
posing a security risk to other inmates in Pinyon pod and
otherwise disrupting the management of the jail.” (ECF
No. 103 at 6, ¶ 8.) Defendants further claim that the
decision was made largely on a history of “multiple
inmates requesting ‘self-regression,' a concept
where an inmate can ask to be moved to a different or higher
[security] level, in this case to get away from Mr.
Wade.” (Id. ¶ 9.) In particular,
Defendant Roundtree claims that she received reports of
Wade's behavior as an alleged “pod boss” or
“shot caller” for a white supremacist
organization. (ECF No. 108-3 at 20-21.) Inmates, Roundtree
says, reported that Wade “actively intimidated”
them, prompting their requests for self-regression. (ECF No.
103 at 8, ¶ 25.) Roundtree therefore recommended the
move to Cedar 3. (Id. at 9, ¶¶
disputes Defendants' explanation. He claims that the move
to Cedar 3 was in retaliation for his exercise of First
Amendment rights, i.e., use of the Facility's
kite, grievance, and appeal procedures. (ECF No. 108 at 2,
¶ 8.) A “kite” is a paper form that Facility
detainees submit “to make ordinary, daily
requests.” (ECF No. 103 at 5, ¶ 3.) Grievances and
appeals are part of the formal procedure for challenging
Facility actions with which the detainee disagrees. (ECF No.
108-5 at 13.) It is undisputed that, during his time at the
Facility, Wade “filed significant numbers of kites and
filed more than twice the number of grievances and appeals
than any other inmate.” (ECF No. 103 at 8, ¶ 20.)
On at least two occasions, Wade successfully challenged
Facility actions through the grievance procedure. (ECF No. 83
¶¶ 24-25.) Wade therefore believes that Facility
staff, including Defendants, were upset about his frequent
and sometimes successful challenges to their authority, so
Defendants chose to punish him by placing him in solitary
confinement. (See ECF No. 108-1 at 20.)
spent about two weeks in Cedar 3. (ECF No. 103 at 6, ¶
11.) He then spent the remainder of his time at the Facility
in Cedar 2. (Id. ¶ 12.) The Facility never
restricted Wade's ability to file kites, and he continued
to submit many kites while in Cedar 3 and then Cedar 2.
(Id. at 8, ¶¶ 22-23; see also ECF
No. 83 ¶¶ 42-49.) Generally speaking, detainees in
Cedar 2 and 3 file kites frequently. (ECF No. 103 at 8,
was released from the Facility in November 2016.
(Id. at 10, ¶ 35.) He alleges that his Facility
record continues to describe him “as a member of the
211 Crew prison gang, ” a white supremacist
organization. (ECF No. 108 at 11.) He is currently in the
custody of the Arizona Department of Corrections. (ECF No. 83
currently operative complaint is his Second Amended Complaint
(“complaint”). (ECF No. 83.) It alleges four
claims for relief, all brought by way of 42 U.S.C. §
1. retaliation for exercising First Amendment rights;
2. denial of procedural due process when being sent to Cedar
3. denial of equal protection; and
4. denial of procedural due process because he is unable to
challenge his Facility record that describes him as a member
of a white supremacist organization.
(Id. at 16-19.) Defendants argue that all four of
these claims fail as a matter of law. In the course of
summary judgment briefing, Wade abandoned his equal
protection claim.The Court will address the remaining three
claims in turn.
First Amendment Retaliation & Qualified Immunity
parties agree that the Court must judge Wade's First
Amendment retaliation claim under the standard set forth in
Shero v. City of Grove, 510 F.3d 1196 (10th Cir.
2007). (See ECF No. 103 at 16; ECF No. 108 at 6.)
The “Shero test” is as follows:
Government retaliation against a plaintiff for exercising his
or her First Amendment rights may be shown by proving the
following elements: (1) that the plaintiff was engaged in
constitutionally protected activity; (2) that the
defendant's actions caused the plaintiff to suffer an
injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and (3) that the
defendant's adverse action was ...