United States District Court, D. Colorado
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. # ...