United States District Court, D. Colorado
A. BRIMMER JUDGE
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.
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. 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.
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. Between October 15, 2015 and April 26,
2016, plaintiff was housed in CSP's Close Custody
Transition Unit (“CCTU”),  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.
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.
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.
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.
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).
“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.
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.
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).
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)).
Fourteenth Amendment Claim Against Defendant
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).
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 ...