United States District Court, D. Colorado
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. ...