United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
CELIA SCHWARTZ, Legal Assistant II, Colorado Department of Corrections, Buena Vista Correctional Facility, LIEUTENANT S. MORGAN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, SERGEANT G. WOOD, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, MANAGER JEFF HANSEN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, DAVID COTTEN, Administrative Service Manager, Colorado Department of Corrections, Buena Vista Correctional Facility, WILLIAM BRUNELL, Associate Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, and JOHN DAVIS, Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, Defendants.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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.
Delmart E.J.M. Vreeland II is a prisoner in the custody of
the Colorado Department of Corrections
(“CDOC”). 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.
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.
STANDARD OF REVIEW
Pro se status
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.
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.
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).
“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.
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.