Mackey v. Watson

          ORDER AFFIRMING AND ADOPTING THE FEBRUARY 27, 2019 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the February 27, 2019 Recommendation by United States Magistrate Judge Scott T. Varholak that this Court deny Defendants Bridgette Watson and Susan Prieto's (together, “Defendants”) Motion for Summary Judgment (Doc. # 172). (Doc. # 215.) Defendants filed an Objection to the Recommendation (Doc. # 218), which, for the reasons described herein, the Court overrules. The Court affirms and adopts Magistrate Judge Varholak's Recommendation and denies Defendants' Motion for Summary Judgment.

         I. BACKGROUND

         The Magistrate Judge's Recommendation (Doc. # 215) and this Court's previous Order Denying Defendants' Motion to Dismiss (Doc. # 51) provide recitations of the factual and procedural background of this dispute and are 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 Defendants' Objection.

         After the Court's ruling on Defendants' Motion to Dismiss (Doc. # 51), only two claims remain. In Claim Four, Plaintiff alleges that Defendant Bridgette Watson, a sergeant at the correctional facility where he was incarcerated, retaliated against him for exercising “his right to grieve/complain” in violation of the First Amendment by performing harassing searches of his cell, confiscating his prescription eyeglasses and clothing, directing other staff to terminate him from his job as an Offender Care Aid, and filing a false disciplinary report. (Doc. # 1 at 16-21; Doc. # 6 at 3-4.) In Claim Five, Plaintiff alleges that Defendant Susan Prieto, a hearing officer at the correctional facility, denied him his due process rights at a Code of Penal Discipline (“COPD”) disciplinary hearing on March 9, 2017, by excluding his witnesses and by informing him that videotape of the incident with Defendant Watson had been taped over and that he should have asked for it within three days of the incident. (Doc. # 1 at 21-22; Doc. # 6 at 4.)

         Plaintiff moved for summary judgment on February 21, 2018, seeking summary judgment on both claims. (Doc. # 59.) Upon Magistrate Judge's Recommendation (Doc. # 115), the Court denied Plaintiff's Motion for Summary Judgment on September 13, 2018 (Doc. # 133).

         On December 21, 2018, Defendants moved for summary judgment. (Doc. # 172.) They assert that Claim Five, Plaintiff's due process claim against Defendant Prieto, “fails as a matter of law” for two reasons: (1) Plaintiff's “failure to complete the [appeal] process as set forth by State law and rules that provided him all the process that is due under the Due Process Clause, ” and (2) “collateral estoppel or issue preclusion, as [Plaintiff] had the opportunity to address the merits of COPD hearing and conviction in State court in an appeal.” (Id. at 6-7.) Defendants next argue that Plaintiff cannot obtain compensatory damages on either claim “without a showing of physical injury under the Prisoner Litigation Reform Act (“PLRA”).” (Id. at 4.) Finally, Defendants assert that Plaintiff is not entitled to punitive damages on either claim because he has not proffered evidence sufficient to establish that Defendants acted with the subjective intent required for an award of punitive damages. (Id. at 9-10.) Plaintiff responded in opposition to Defendants' Motion for Summary Judgment on January 18, 2019 (Doc. # 186), to which Defendants replied on February 1, 2019 (Doc. # 208).^[1]

         On February 27, 2019, Magistrate Judge Varholak issued his Recommendation that the Court deny Defendants' Motion for Summary Judgment. (Doc. # 215.) He thoroughly recounted the procedural and factual background of Plaintiff's case and accurately articulated the standards governing review of a motion for summary judgment. (Id. at 2-7.) After rejecting each of Defendants' three arguments, the Magistrate Judge advised the parties that they could serve and file written objections to with Recommendation within 14 days of its issuance. (Id. at 17 n.8.)

         Defendants filed their Objection on March 15, 2019, faulting Magistrate Judge Varholak for “misinterpret[ing] Defendants[‘] position on the due process claim” (Claim Five) and for relying “on nothing more than Plaintiff's self-serving statements in his verified Complaint.” (Doc. # 218 at 9, 3.) Plaintiff replied in support of the Recommendation on March 29, 2019. (Doc. # 221.)

         A four-day jury trial in this matter is set to begin on September 16, 2019. See (Doc. # 226.) The Court will address Plaintiff's Motion in Limine to Exclude Evidence of Prior Convictions and Parole Proceedings (Doc. # 263) in due time.

         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). 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. PRO SE PLAINTIFF

         At the time he addressed Defendants' Motion for Summary Judgment and Magistrate Judge Varholak's Recommendation thereon, Plaintiff was proceeding pro se.^[2] The Court, therefore, reviews his pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         C. 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. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

         The moving party bears the initial burden of demonstrating an absence of genuine dispute of material fact and entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         Once the movant meets its initial burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy this burden. Id.; Celotex Corp., 477 U.S. at 324. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence from which a rational trier of fact could find for the nonmoving party.” Adler, 144 F.3d at 671. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, . . . specific exhibits incorporated therein, ” id., or any other kind of “evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, ” Celotex Corp., 477 U.S. at 324 (emphasis added).

         Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         III. ANALYSIS

         Defendants offer three arguments in their Motion for Summary Judgment. (Doc. # ...