Vreeland v. Schwartz

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff Objections to Magistrate Recommendations (Doc. 213) [Docket No. 217] filed by plaintiff Delmart E.J.M. Vreeland, II. Plaintiff seeks review of United States Magistrate Judge Kathleen M. Tafoya's Recommendation of Magistrate Judge [Docket No. 213] (the “recommendation”) dated August 1, 2018. Magistrate Judge Tafoya recommends that the Court grant defendants' Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 [Docket No. 175], which would grant summary judgment for defendants on the three claims remaining in this case. Plaintiff filed a timely objection. Docket No. 217. Defendants did not file a response.

         I. BACKGROUND

         Plaintiff Delmart E.J.M. Vreeland II is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”).^[1] On December 30, 2013, plaintiff filed this case. Docket No. 1. The three remaining claims are brought pursuant to 42 U.S.C. § 1983. Claim Three alleges that defendant Celia Schwartz, a legal assistant at Buena Vista Correctional Facility (“BVCF”) retaliated against plaintiff by limiting his access to recorded calls and VCR tapes related to his underlying criminal case. Docket No. 35 at 14-18. Claim Four alleges that defendants Stephen Morgan and Georgia Wood, correctional officers at BVCF, retaliated against plaintiff by terminating him from his prison job and that the warden and associate warden of BVCF, defendants John Davis and William Brunell, allowed such retaliation. Id. at 19-25. Claim Five alleges that defendants David Cotton, a prison administrative service manager, Jeff Hansen, a prison inmate case manager, and Morgan retaliated against plaintiff by transferring him from BVCF to a different facility. Id. at 25-27.

         On October 27, 2017, defendants filed a motion for summary judgment on all remaining claims. Docket No. 175. On December 16, 2017, defendants filed a supplement to the summary judgment motion, seeking summary judgment as to the claims against Hansen. Docket No. 188.

         II. STANDARD OF REVIEW

         A. Pro se status

         The Court construes plaintiff's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall, 935 F.2d at 1110.

         B. Rule 72

         When a magistrate judge issues a recommendation on a dispositive matter, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). To be sufficiently specific, an objection must “enable[] the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.” Id.

         C. Rule 56

         Summary 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).

         Where “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.

         III. ANALYSIS

         Plaintiff makes four objections to the recommendation. First, plaintiff argues that certain materials submitted by defendants used in the recommendation are not admissible and accordingly cannot support summary judgment. Docket No. 217 at 6. Second, plaintiff objects to the recommendation's conclusion that he failed to exhaust administrative remedies as to Claim Three. Id. at 10-12. Third, plaintiff objects to the recommendation's conclusion that he failed to provide evidence that he had exhausted administrative remedies as to Claim Four. Id. at 13-17. Fourth, plaintiff objects to the recommendation's conclusion that defendants are entitled to summary judgment on Claim Five because plaintiff did not suffer an “adverse action” as a result of defendants' actions. Id. at 19-21.^[2]

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