United States District Court, D. Colorado
CECIL MASON, TERRY PHILLIPS, SPENCER BREWER, and LEROY BAKER, Plaintiffs,
RICK RAEMISCH, in his official capacity, ETHAN KELLOGG, in his individual capacity, Defendants.
D. DOMENICO UNITED STATES DISTRICT JUDGE
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
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).
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).
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.
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.
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).
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).
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).
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)).