Wade v. Smith

          ORDER GRANTING SUMMARY JUDGMENT AND TERMINATING CASE

          William J. Martinez, United States District Judge

         By way 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 this case.

         I. LEGAL STANDARD

         Summary 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).

         In 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. 1987).

         II. FACTS

         The following facts are undisputed unless attributed to a party or otherwise noted.

         Wade 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.)^[1] 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.)

         On 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, ¶¶ 27-28.)^[2]

         Wade 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.)

         Wade 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, ¶ 22.)

         Wade 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 ¶ 8.)

         III. ANALYSIS

         Wade's 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. § 1983:

1. retaliation for exercising First Amendment rights;

2. denial of procedural due process when being sent to Cedar 3;

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.^[3]The Court will address the remaining three claims in turn.

         A. First Amendment Retaliation & Qualified Immunity

         The 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 ...