Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Abalos

United States District Court, D. Colorado

February 26, 2019

BERT SMITH, Plaintiff,
v.
ANDRES ABALOS, VINCENT ROMERO, WILLIAM BAILEY, MARVEL WOLKEN, MARCIA JACKSON, BENETTA CRUZ, and CONNIE PALM, Defendants.

          ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE N. REID NEUREITER

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Recommendation (Doc. # 190) of United States Magistrate Judge N. Reid Neureiter, wherein he recommends that this Court grant Defendants Vincent Romero, Marvel Wolken, Marcia Jackson, Benetta Cruz, Connie Palm, Andres Abalos, and William Bailey's Motion for Summary Judgment (Doc. # 164). Plaintiff filed an Objection (Doc. # 191) to the Recommendation on December 27, 2018, and Defendants filed a Response (Doc. # 197) on January 25, 2019. For the reasons that follow, the Court affirms and adopts the Recommendation.

         I. BACKGROUND

         The Magistrate Judge's Recommendation (Doc. # 190) provides an extensive recitation 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.

         Plaintiff Bert Smith is a former inmate who was incarcerated at Arrowhead Correctional Center in Canon City, Colorado. (Doc. # 191 at 1.) During his incarceration, Plaintiff participated in a Colorado Department of Corrections Alcohol and Drug Services Program for inmates known as the Crossroads to Freedom House Therapeutic Community (“the Program”). Plaintiff raises two claims for relief against Defendants- individuals who are Program staff members and counselors-pursuant to 42 U.S.C. § 1983.

         Plaintiff alleges that while he was participating in the Program, Defendants violated his First Amendment rights to freedom of religion and freedom of speech. Plaintiff adheres to a religion he claims to have founded called, “Pneumatism.” (Doc. # 150 at 6; Doc. # 174-4 at 2.) Pneumatism is “rooted in ethical monotheism and the notion of one source of morality derived from one god. However, Pneumatism holds that scientific fact and reason should govern above all else, including one's belief in god.” Additionally, the religion “rejects lying, falsifying documents and pseudoscience” and “requires the correction of hazardous and denigrating error and the application of rational argument using accurate facts.” Plaintiff asserts that Defendants forced him to violate his religious beliefs by, inter alia, reciting the Program mantra-which includes a statement that Program participation is voluntary and facilitated by a higher power-and being compelled to fabricate misbehavior reports about himself and others. (Doc. # 150 at 7-8.)

         Plaintiff further alleges that Defendants violated his First Amendment rights by retaliating against him for filing grievances against them. Relevant here, Plaintiff asserts that he was terminated from the program on April 23, 2015, in retaliation for grievances he filed, which pertained to an incident that occurred the day before. (Id. at 14.) On April 22, 2015, Plaintiff had a confrontation with Defendant Marcia Jackson, who is a Program psychotherapist. (Doc. # 164-1 at 2.) According to Plaintiff, Defendant Jackson informed Plaintiff that he was supposed to attend a Personal Development class. (Doc. # 174 at 11.) However, Plaintiff claims that he “was not aware that a Personal Development class was on his schedule.” Therefore, Plaintiff sought to issue a grievance against Defendant Jackson “for assuming that the Personal Development class was on his schedule, ” and he entered the class and informed Defendant Jackson of his intentions.

         Defendant Jackson interpreted Plaintiff's conduct as aggressive and threatening because he interrupted the class, raised his voice, and blocked the door during their encounter. (Doc. # 164-1 at 5.) Plaintiff disputes Defendant Jackson's interpretation of the incident, claiming that his behavior was neither threatening nor aggressive and further claiming that he did not raise his voice. (Doc. # 174 at 3.)

         The next day, Plaintiff submitted two informal grievances against Defendant Jackson. Several hours later, Plaintiff was terminated from the Program after the staff had been notified of the incident on April 22. It is undisputed that the cited reason for Plaintiff's termination was “his aggressive outburst toward Program clinical staff on 04/22/2015.” (Doc. # 164-3 at 7.) The Treatment Discharge Recommendation that Defendant Benetta Cruz issued on April 23, 2015, further notes that Plaintiff “has been addressed on multiple occasions for his aggressive, passive aggressive, and threatening behaviors towards [Program] staff.” (Id.) However, Defendant disputes that he had a history of such behavior. (Doc. # 174 at 2.)

         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). Additionally, “[i]ssues raised for the first time in objections to [a] magistrate judge's recommendation are deemed waived.”[1] Marshall v. Chater, 75 F.3d 1421, 1426 (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. MOTION FOR SUMMARY JUDGMENT

         Summary judgment is warranted 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). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute 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, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court may not resolve issues of credibility, and must view the evidence in the light most favorable to the non-moving party-including all reasonable inferences from that evidence. Id. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.