Moore v. Little

          ORDER

          PHILIP A. BRIMMER JUDGE

         This matter comes before the Court on Defendants' Motion for Summary Judgment [Docket No. 111]. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND^[1]

         This case arises out of plaintiff's incarceration at the Colorado State Penitentiary (“CSP”). Pursuant to an Executive Assignment Order (“EAO”) issued by the Colorado Department of Corrections (“CDOC”) Office of Offender Services, plaintiff was transferred from Sterling Correctional Facility (“SCF”) to CSP on February 27, 2015. Docket No. 111 at 3, ¶¶ 2-3. At the time of the transfer, plaintiff was housed in the Management Control Unit (“MCU”) at SCF. Id. at 4, ¶ 8.^[2] Other MCU offenders were transferred from SCF to CSP in 2015. Id. at 4, ¶ 7; Docket No. 119 at 5, ¶ 6. These transfers did not involve custody level reclassifications. Docket No. 119 at 5, ¶ 10.

         Plaintiff was not told he was moving to CSP until the morning of his transfer. Id. at 5-6, ¶¶ 11-12. He was also never offered a hearing in connection with the transfer. Id. at 6, ¶ 14. Upon arriving at CSP, plaintiff was held in twenty-three-hour-a-day solitary confinement for a couple days. Docket No. 119 at 6, ¶ 15. He was then moved to CSP's MCU, where he remained until October 15, 2015. Docket No. 111 at 4, ¶ 11. While housed in the MCU, plaintiff was allowed access to library services once a week; day hall time for four hours a day, seven days a week; use of a pull-up bar and an exercise apparatus in the day hall; the ability to request a phone when in the day hall; the ability to retain a state-purchased television or be placed on a waiting list for a loaned television; and the opportunity to participate in programming, such as Anger Management, Customer Service, or GED. Docket No. 111 at 4-5, ¶ 11.^[3] Between October 15, 2015 and April 26, 2016, plaintiff was housed in CSP's Close Custody Transition Unit (“CCTU”), ^[4] where he was permitted gym access for one hour per week; day hall time for six hours per day, seven days a week; use of a pull-up bar and exercise apparatus in the day hall; the ability to request the phone while in the day hall; and the ability to retain a television. Id. at 5, ¶ 12. For the duration of plaintiff's fourteen-month confinement at CSP, he was denied all access to outdoor exercise facilities, housed in a cell with lights on both inside and outside of the cell for twenty-four hours a day, and required to share indoor exercise equipment with eight other inmates at a time. Docket No. 119 at 6, ¶¶ 17, 19, 20. Additionally, plaintiff was subjected to more restrictive rules on property and phone access than he had been at SCF. Id. at 6, ¶¶ 18-19. After moving to CSP, his fan, hot pot, coffee maker, electric razor, lamp, watch, bathrobe, and pajamas were confiscated. Id., ¶ 18. Those items were not returned to him until he transferred out of the facility fourteen months later. Id.

         Plaintiff was never told how long he would remain at CSP. Id. at 7, ¶ 21. He learned he was leaving the facility on April 26, 2016, when he was transported to Buena Vista Correctional Facility. Docket No. 111 at 5, ¶ 14; Docket No. 119 at 7, ¶ 21. In 2015 and 2016, prison officials generally understood that inmates at CSP would be transferred after six months to another facility with access to outdoor recreation, at least until outdoor recreation was available at CSP. Docket No. 119 at 7, ¶ 23; Docket No. 119-2 at 12, 41:13-42:12; Docket No. 119-3 at 12, 42:25-43:9; Docket No. 119-4 at 3.

         However, housing supervisors at CSP did not track whether inmates remained at CSP for longer than six months at a time. Docket No. 119 at 7, ¶ 24; Docket No. 119-3 at 14, 50:5-12. Plaintiff initiated a pro se lawsuit on January 26, 2016. Docket No. 1. In his operative complaint, filed on August 4, 2016, plaintiff asserted violations of his rights under the Eighth and Fourteenth Amendments. Docket No. 27. On April 17, 2017, the magistrate judge recommended that the Court dismiss plaintiff's Eighth Amendment claims against Case Manager Regina Roberts and Captain Gary Little and allow plaintiff's Eighth Amendment claim against Kyle Roberts and his Fourteenth Amendment claim against Gary Little to proceed. Docket No. 58. The Court accepted the magistrate judge's recommendation on May 8, 2017. Docket No. 60.

         On July 18, 2018, defendants Kyle Roberts and Gary Little moved for summary judgment on plaintiff's remaining claims, raising the defense of qualified immunity. Docket No. 111. Plaintiff, now represented by counsel, filed a response to defendants' motion on August 29, 2018, Docket No. 119, to which defendants did not reply.

         II. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed 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). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

         III. ANALYSIS

         Plaintiff asserts two claims in this lawsuit: (1) a Fourteenth Amendment procedural due process claim against defendant Little arising out of plaintiff's transfer to CSP in February 2015; and (2) an Eighth Amendment claim against defendant Roberts based on plaintiff's inability to recreate outdoors during his confinement at CSP. See Docket No. 119 at 7, 11; Docket No. 114 at 2. Defendants argue that they are entitled to qualified immunity with respect to both claims. Docket No. 111 at 2.

         Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts a qualified immunity defense, the plaintiff has a “heavy two-part burden” of establishing “(1) that the defendant's action violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant's actions.” Grissom v. Roberts, 902 F.3d 1162, 1167 (10th Cir. 2018) (internal quotation marks omitted). Failure to satisfy either prong of this test will result in a grant of qualified immunity to the defendant. Id. Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         When evaluating a claim of qualified immunity, “‘clearly established law' should not be defined ‘at a high level of generality.'” White v. Pauly, 137 S.Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))). “The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Al-Turki v. Robinson, 762 F.3d 1188, 1194 (10th Cir. 2014). Ordinarily, a right is clearly established if there is “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts . . . have found the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation marks omitted). This does not require a case “directly on point.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (internal quotation marks omitted) (emphasis added). On the other hand, precedent that merely states “a general proposition of applicable law” will not make a right “clearly established” for purposes of qualified immunity. Grissom, 902 F.3d at 1168. A right is clearly established only if existing precedent places “the statutory or constitutional question beyond debate.” Kisela, 138 S.Ct. at 1152 (quoting White, 137 S.Ct. at 551)).

         A. Fourteenth Amendment Claim Against Defendant Little

         The Fourteenth Amendment of the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV. To establish a procedural due process claim, a plaintiff must demonstrate: “(1) a constitutionally cognizable liberty or property interest, (2) a deprivation of this interest, and (3) a lack of constitutionally adequate notice and a hearing.” Martin Marietta Materials, Inc. v. Kan. Dep't of Transp., 810 F.3d 1161, 1172 (10th Cir. 2016).

         Here, plaintiff contends that his procedural due process rights were violated when he was transferred to CSP in February 2015 without notice or a hearing. Docket No. 114 at 2; Docket No. 119 at 8-11. Defendant Little argues that he is entitled to qualified immunity on this claim because plaintiff's conditions of confinement at CSP did not give ...