United States District Court, D. Colorado
MICHAEL T. MCCULLON, Plaintiff,
D. PARRY, Correctional Officer, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge.
Judge Nina Y. Wang This matter comes before the court on
Plaintiff Michael T. McCullon’s
(“Plaintiff” or “Mr. McCullon”)
“Dispositive Motion” (the “Motion for
Summary Judgment” or “Motion”), filed June
19, 2019. [#95]. The court considers the Motion pursuant to
28 U.S.C. § 636(c) and the Order of Reference for all
purposes dated July 23, 2018 [#39] and concludes oral
argument will not materially assist in the resolution of this
matter. Accordingly, having reviewed the Motion and
associated briefing, the applicable case law, and the entire
record, the court DENIES the Motion for
Summary Judgment and ORDERS the appointment
of pro bono counsel on Mr. McCullon’s behalf.
to Rule 56, summary judgment is warranted “if 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 dispute is
genuine if there is sufficient evidence so that a rational
trier of fact could resolve the issue either way. A fact is
material if under the substantive law it is essential to the
proper disposition of the claim.” Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011)
(internal citations and quotation marks omitted). It is the
movant’s burden to demonstrate that no genuine dispute
of material fact exists for trial, whereas the nonmovant must
set forth specific facts establishing a genuine issue for
trial. See Nahno-Lopez v. Houser, 625 F.3d 1279,
1283 (10th Cir. 2010). And the court will “view the
factual record and draw all reasonable inferences therefrom
most favorably to the nonmovant.” Zia Shadows,
L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th
applying this legal principle, the court is mindful of the
liberal construction afforded to Mr. McCullon’s papers
even at summary judgment. See Firstenberg v. City of
Santa Fe, New Mexico, 696 F.3d 1018, 1024 (10th Cir.
2012). But the court cannot and does not act as Mr.
McCullon’s advocate, see Gallagher v. Shelton,
587 F.3d 1063, 1067 (10th Cir. 2009), and applies the same
substantive law to Mr. McCullon as a represented party,
see Murray v. City of Tahlequah, 312 F.3d 1196, 1199
n.2 (10th Cir. 2008).
Plaintiff’s Motion for Summary Judgment
court draws the following material facts from the record
before the court. As will be seen, genuine disputes of
material facts exist, rendering summary judgment
McCullon is a prisoner currently incarcerated at the Federal
Bureau of Prison’s United States Penitentiary Florence,
Administrative Maximum Facility (“ADX”), located
in Fremont, Colorado. See [#1 at 2].
all times relevant to this action, Defendant D. Parry
(“Defendant” or “Officer Parry”) was
a correctional officer at ADX. See [#1 at 2; #70 at
3; #91 at 3].
March 15, 2017, Officer Parry delivered a breakfast tray to
Mr. McCullon’s cell. See [#1 at 3, 6; #70 at
1-2; #91 at 1-2; #95 at 10, 13; #98-1 at 27:11-14,
Later that day, Officer Parry returned to Mr.
McCullon’s cell to retrieve the breakfast tray, but
Defendant refused to accept the tray when Mr. McCullon
attempted to return it because there was trash remaining on
the tray. See [#1 at 3-4, 6; #70 at 1; #91 at 1;
#98-1 at 28:24-29:3].
Officer Parry returned twice more to Mr. McCullon’s
cell to retrieve the breakfast tray but did not take it
because Mr. McCullon refused to remove the trash.
See [#98-1 at 31:16-25, 33:10-34:4, 37:16-21].
some point Defendant threw the trash from Mr.
McCullon’s tray back into Mr. McCullon’s cell,
and so Mr. McCullon grabbed the tray and refused to give it
to Officer Parry despite the orders to do so. See
[#1 at 4; #70 at 1-3; #91 at 1-3; #92 at 2, 3; #98-1 at