McCullon v. Parry

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang, United States Magistrate Judge.

         Magistrate 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.

         LEGAL STANDARD

         Pursuant 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 Cir. 2016).

         In 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).

         ANALYSIS

         I. Plaintiff’s Motion for Summary Judgment

         A. Material Facts

         The 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 inappropriate.

         1. Mr. 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].^[1]

         2. At 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].

         3. On 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, ^[2] 28:22-24].

         4. 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].

         5. 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].

         6. At 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 30:18-22, ...