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Mason v. Raemisch

United States District Court, D. Colorado

July 2, 2019

CECIL MASON, TERRY PHILLIPS, SPENCER BREWER, and LEROY BAKER, Plaintiffs,
v.
RICK RAEMISCH, in his official capacity, ETHAN KELLOGG, in his individual capacity, Defendants.

          ORDER

          DANIEL D. DOMENICO UNITED STATES DISTRICT JUDGE

         This case centers on an incident that occurred in April 2016 in which pepper spray was discharged into a multipurpose room at the Sterling Correctional Facility, which Plaintiffs claim resulted in their inability to hold religious services that day. Defendants have filed a Motion for Summary Judgment (Doc. 128) seeking the dismissal of the remaining claims against them. For the reasons that follow, the Court GRANTS the Motion.

         I. BACKGROUND

         On April 15, 2016, Defendant Ethan Kellogg, a corrections officer at Sterling Correctional Facility, went to a multipurpose room to finish preparing canteen items for distribution. At some point while working in the multipurpose room, he discharged pepper spray into the room. Mr. Kellogg asserts that he did so accidentally as he bent over to pick up a box, and that because the pepper spray had been accidentally sprayed onto his shirt, he did not think the air in the room had been heavily contaminated and that it still would be usable. Defendants' Ex. A-1 at ¶¶ 19, 25 (Doc. 128-1).

         Plaintiffs dispute that Mr. Kellogg discharged the pepper spray accidentally, and have produced an expert report by Kamran Loghman, who opined among other things that the “[t]he probability of an accidental discharge by officer Kellogg is remote and unlikely, ” and that based on his knowledge of the trigger mechanism on a pepper spray canister, “the probability of an accidental discharge with [Mr. Kellogg's] belly . . . is very unlikely.” Plaintiffs' Ex. 1 at 15 (Doc.131-1).

         The multipurpose room was scheduled to be used by Plaintiffs Donell Blount, Cecil Mason, Terry Phillips, Spencer Brewer, and Leroy Baker - all of whom are inmates at Sterling Correctional Facility and are practicing Muslims - for a weekly Islamic congregational prayer service. Upon entering the room, Plaintiffs were exposed to the pepper spray, causing burning to their noses, throats, and exposed skin. Because of the pepper spray discharge, Plaintiffs were not able to conduct their prayer service that day. Plaintiffs further contend that the pepper spray discharge “is part of a larger culture of animus toward practicing Muslims at Sterling.” Plaintiffs' Resp. at 13 (Doc.131). After the incident, Mr. Blount filed grievances regarding Defendant Mr. Kellogg's use of pepper spray and pursued administrative remedies through CDOC's established grievance system. Plaintiffs' Ex. 8 (Doc. 131-8). Although Mr. Blount thus exhausted all the available administrative remedies, none of the other Plaintiffs did so.

         The Plaintiffs jointly filed this lawsuit, although their precise claims varied somewhat. They all brought claims against Mr. Kellogg in his individual capacity for (1) excessive use of force in violation of their Eighth Amendment rights, (2) violation of their First Amendment right to free exercise of religion, and (3) violation of their Equal Protection rights. See 2d Am. Compl. (Doc. 119) (First, Second, and Fifth Claims). They also each sued Defendant Rick Raemisch, in his official capacity as Executive Director for the Colorado Department of Corrections, for violation of the Religious Land Use and Institutionalized Persons Act. Id. (Sixth Claim). Mr. Blount additionally sued Defendants Jeffrey Quinlan and David Scherbarth for excessive use of force in violation of the Eighth Amendment, and retaliation for engaging in protected speech. Id. (Third and Fourth Claims). Mr. Blount was dismissed from this case on February 27, 2019 (Doc. 130) pursuant to a joint motion filed by Mr. Blount and the Defendants. (Doc. 129). As a result, the only remaining claims in this case are those asserted by the current Plaintiffs against Mr. Kellogg and Mr. Raemisch: the First, Second, Fifth and Sixth.

         II. ANALYSIS

         The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if it could affect the outcome of the suit under governing law; a dispute of fact is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. If a reasonable juror could not return a verdict for the nonmoving party, there is no need for a trial and summary judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         The party moving for summary judgment bears the burden of demonstrating no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by demonstrating a lack of evidence for an essential element of the non-movant's claim. Id. That is, if a defendant shows entitlement to summary judgment, it becomes a plaintiff's “burden as the non-movant to set forth specific facts demonstrating that there was a genuine issue for trial as to those material matters for which she carried the burden of proof.” Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995).

         In deciding whether the moving party has carried its burden, courts do not weigh the evidence and instead must view it and draw all reasonable inferences from it in the light most favorable to the non-moving party. Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a “mere scintilla” of evidence, however, are sufficient to create a genuine dispute of material fact on summary judgment. Maxey v. Rest. Concepts II, LLC, 654 F.Supp.2d 1284, 1291 (D. Colo. 2009). And “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, the court may . . . consider the fact undisputed for the purposes of the motion.” Fed.R.Civ.P. 56(e)(2).

         A. Exhaustion of Administrative Remedies

          Congress has declared in the Prisoner Litigation Reform Act that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement means the prisoner must give the prison's grievance system “a fair opportunity to consider the grievance, ” which requires the complaining prisoner to follow “all of the steps laid out in the prison system's grievance procedure.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)).

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