United States District Court, D. Colorado
ZACHARY A. CHESSER, Plaintiff,
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant Director of
Federal Bureau of Prisons' (“Defendant” or
the “BOP”) Motion for Summary Judgment (or
“BOP's Motion”) [#180] and Plaintiff
Zachary Chesser's (“Plaintiff” or “Mr.
Chesser”) Second Motion for Partial Summary Judgment
(or “Mr. Chesser's Motion”) [#193]. This
civil action was referred to the undersigned Magistrate Judge
to fully preside over for all purposes. See [#37];
28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR
72.2(d). The court concludes that oral argument will not
materially assist in the resolution of these matters. Having
reviewed the Motions and associated briefing, the applicable
case law, and the entire docket, the court GRANTS the
BOP's Motion and DENIES Mr. Chesser's Motion.
initiated this civil action on December 22, 2014 in the
United States District Court for the District of Columbia.
[#1-1]. Plaintiff, a Muslim, alleges that the BOP has
substantially burdened his exercise of religion in violation
of the Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. § 2000bb-1 et seq.
See generally [id.; #3; #58]. The District
Court for the District of Columbia transferred this matter to
this District on September 8, 2015. See [#1]. Upon
his transfer to this District, the court directed Mr. Chesser
to file an Amended and Second Amended Complaint. See
[#4; #20]. Plaintiff's Second Amended Complaint alleged
four claims against Defendant. See [#22]. The
Honorable Lewis T. Babcock dismissed two of those claims as
duplicative of claims in a separate federal lawsuit pending
in the United States District Court for the Southern District
of Illinois, Chesser v. Walton,
3:12-cv-01198-JPG-PMF (S.D. Ill.) (“Chesser
I”), but directed that the two remaining claims be
drawn to a presiding judge. See [#24 at 4]. This
action was then drawn to the undersigned Magistrate Judge and
the Parties consented to the jurisdiction of a magistrate
judge. See [#25, #33].
March 25, 2016, the court denied Plaintiff's Motion to
Reconsider the dismissal of two of his four claims, but
granted in part his Motion for Leave to Amend [#46].
See [#53]. Plaintiff filed his Third Amended
Complaint (“TAC”), the operative pleading in this
matter, on June 9, 2016. [#58]. The TAC asserted two claims
against Defendant for violations of RFRA: the BOP's
policy of “holding inmates in solitary confinement due
to their ties to terrorism” (“Claim III”),
and its conditions of confinement at the ADMAX United States
Penitentiary in Florence, Colorado (“ADX”)
substantially burdens the exercise of Mr. Chesser's
sincerely held religious beliefs (“Claim IV”).
moved to dismiss the TAC on August 3, 2016. See
[#67]. In ruling on the Motion to Dismiss the court limited
Claim III to its purported challenge to the BOP's
consideration of Mr. Chesser's ties to terrorism,
including his purported association with Jama'ah
Ad-Da'wah As-Sahihah and his participation in religious
activities-both allegedly deemed terrorist-related by the
BOP-as the primary justification for his transfer to ADX, but
allowed Claim IV to remain in its entirety. See
[#86]; see also [#159 at 2 & n.1; #163].
court then entered a Scheduling Order setting, among others,
September 25, 2017 as the deadline for discovery and October
27, 2017 as the deadline for dispositive motions.
See [#100]. Following several impasses with
discovery the court granted the Parties' request for a
120-day extension of the discovery and dispositive motions
deadline, extending those deadlines to January 23 and
February 26, 2018, respectively. See [#159]. Each
party received an additional extension of time to file their
respective dispositive motions. See [#174; #179].
The BOP filed its Motion for Summary Judgment on March 2,
2018 [#180] and Plaintiff his Second Motion for Partial
Summary Judgment on April 2, 2018 [#193]. The Motions are now
ripe for resolution.
may be entitled to summary judgment prior to trial 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); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567,
569 (10th Cir. 1994). “A ‘judge's
function' at summary judgment is not ‘to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249 (1986)). Whether there is a genuine dispute as
to a material fact depends upon whether the evidence presents
a sufficient disagreement to require submission to a jury or
conversely, is so one-sided that one party must prevail as a
matter of law. Anderson, 477 U.S. at 248-49;
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. U.S. Postal Service, 812
F.2d 621, 623 (10th Cir. 1987). “Where the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no ‘genuine issue
for trial.'” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
First Nat. Bank of Ariz. v. Cities Service Com, 391
U.S. 253, 289 (1968)).
burden of showing that no genuine issue of material fact
exists is borne by the moving party. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000).
In reviewing a motion for summary judgment, the court views
all evidence in the light most favorable to the non-moving
party. See Garrett v. Hewlett-Packard Co.,
305 F.3d 1210, 1213 (10th Cir. 2002). Where the moving party
will bear the burden of proof on an issue at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party. See Celotex
Corp., 477 U.S. at 323. Once the moving party meets its
initial burden, the non-moving party must go beyond the
pleadings and, by his own affidavits or discovery, “set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e). The non-movant
“may not rest upon mere allegation or denials of [the]
pleadings, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson,
477 U.S. at 256. The court must resolve all doubts in favor
of the existence of triable issues of fact. Boren v.
Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.
motions for summary judgment are treated separately, and the
denial of one does not require the grant of another.
Buell Cabinet v. Sudduth, 608 F.2d 431, 433 (10th
Cir. 1979). Rather, the court may enter summary judgment only
if the moving party carries its burden of demonstrating that
no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. See
Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.
2002). And because Mr. Chesser proceeds pro se the
court liberally construes his pleadings, Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), but does
not act as his advocate and applies the same procedural rules
and substantive law to Plaintiff as to a represented party,
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir. 2008).
Summary Judgment Evidence
summary judgment, credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge. But it is
well-settled that a court may consider only admissible
evidence at summary judgment. Gross v. Burggraf Const.
Co., 53 F.3d 1531, 1541 (10th Cir. 1995); accord
Johnson v. Weld County Colo., 594 F.3d 1202, 1209 (10th
Cir. 2010) (disregarding hearsay on summary judgment when
proper objection to its use was before the court and no
exception applied). The evidence need not be in a
form that is admissible at trial, e.g.,
affidavits are often inadmissible at trial on hearsay
grounds, but the substance must be admissible at
trial. See Brown v. Perez, 835 F.3d 1223, 1232 (10th
Cir. 2016). The court, however, “is not required to
review large quanta of evidence to ferret out inadmissible
statements”-the “objecting party [must] make
specific objections detailing the specific evidence [he]
wishes to have stricken and stating the specific grounds upon
which each piece of evidence should be stricken.”
Tucker v. SAS Inst., Inc., 462 F.Supp.2d 715, 722
(N.D. Tex. 2006).
Chesser levies several challenges to the admissibility of
Defendant's summary judgment evidence. See [#191
at 3-4; #191-1 at 1-2, 23-29]. I consider those objections
Plaintiff's Deposition Testimony and Discovery
Chesser lodges three challenges to the use of his own
statements. First, he asserts that his views on perjury and a
lie he told the FBI during his underlying criminal conviction
are irrelevant. [#191-1 at 24 (citing [#181-1 at 20:23-21:25,
80:8-15, 85:14-21, 87:8-18, 89:2- 24])]. “The standard
for relevancy is particularly loose under rule 401, because
any more stringent requirement is unworkable and
unrealistic.” Landry v. Swire Oilfield Servs.,
L.L.C., 323 F.R.D. 360, 395 (D.N.M. 2018) (brackets and
internal quotation marks omitted). I find this testimony
relevant because it concerns Mr. Chesser's beliefs-ones
he falsely disclaimed-and resulting behavior, which bear on
the issues raised by the BOP's Motion. See Fed.
R. Evid. 401 (relevant evidence “(a) has any tendency
to make a fact more or less probable than it would be without
the evidence;” and “(b) the fact bears on the
outcome of the action.”).
Chesser next objects to the use of his deposition testimony
and his discovery responses concerning his influence on other
terrorists as hearsay and impermissible lay opinion.
See [#191-1 at 24, 27]. While an out of court
statement offered to prove the truth of the matter asserted
is inadmissible hearsay, see Fed. R. Evid. 801(c),
Rule 32 of the Federal Rules of Civil Procedure specifically
allows an adverse party to use a deposition of an opposing
party for “any purpose.” Fed.R.Civ.P. 32. In
addition, statements made by the declarant who is an opposing
party are not hearsay when used against the
opposing-party-declarant. See Kansas City Power &
Light Co. v. United States, 132 Fed.Cl. 28, 45 (2017)
(citing Fed.R.Evid. 801(d)); cf. Fed. R. Civ. P.
33(c) (“An answer to an interrogatory may be used to
the extent allowed by the Federal Rules of Evidence.”).
Thus, the objected-to statements, see [#181-1 at
292:20-293:7, 292:3- 293:20, #180-27 at 32-34], are not
hearsay and are admissible.
respect to Mr. Chesser's arguments that his opinions
regarding his influence are inadmissible lay opinions, the
court concludes that the BOP does not offer such testimony to
establish scientific, specialized, or technical knowledge.
Rule 701 allows lay witnesses to testify in the form of an
opinion if the opinion is (1) rationally based on the
witness's perception; (2) helpful to clearly
understanding the witness's testimony or to determining a
fact in issue; and (3) is not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.
Fed.R.Evid. 701. And while this court is not necessarily
persuaded by the BOP's argument that Mr. Chesser
“has inspired many other terrorists,
” I find that Mr. Chesser's
self-perceptions of his personal influence are relevant to
the issues at hand because they pertain to Mr. Chesser's
motivations and actions and the appropriateness of the
BOP's response. Indeed, “an admission of a party
opponent needs no indicia of trustworthiness to be
admitted.” Grace United Methodist Church v. City Of
Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006).
Declaration of David Jones
Chesser objects to David Jones's Declaration [#180-2] on
several grounds. He insists that Mr. Jones has “no
personal knowledge of anything which occurred in my
prison” or of his “prison conduct”; nor was
Mr. Jones his Counter Terrorism Unit (“CTU”)
analyst “until after all the communications [Mr. Jones]
mentions in his declaration.” [#191-1 at 1]. Mr.
Chesser also objects to the documents Mr. Jones relies on
throughout his Declaration, arguing that these documents are
not business records maintained by the BOP, constitute
inadmissible hearsay or lay opinion on matters requiring an
expert, or are irrelevant. See [id. at
start, Mr. Chesser's statements, even those out of court,
are not hearsay as discussed above. See Fed. R.
Evid. 801(d)(2). Accordingly, those paragraphs that quote Mr.
Chesser's statements from other documents are not
objectionable hearsay, and the court will not strike them as
such. The same is also true of Mr. Chesser's
communications, even if he made those communications
prior to Mr. Jones's monitoring of Plaintiff.
personal knowledge, declarations submitted in support of
summary judgment must be based on the declarant's actual
perception or observation of the events testified to, and
cannot consist of statements of mere belief. See Argo v.
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1200 (10th Cir. 2006). Mr. Jones attests that he has
been a BOP employee since 1996, a CTU Analyst since 2015, and
assigned to monitor Mr. Chesser's communications since
February 2017. [#181-2 at ¶¶ 1-4]. He further
states that the basis for his declaration is his personal
knowledge and “information made known to be from
official records reasonably relied upon by me in the course
of my employment.” [#181-1 at 1]. While Mr. Jones may
not actually work in any facility that housed Mr. Chesser,
Mr. Jones's testimony about Mr. Chesser's prison
conduct is based on his review of several BOP documents. He
declares, under penalty of perjury, that all documents relied
on “are true and correct copies of records maintained
by the [BOP] in the ordinary course of business.”
[Id. at ¶ 3].
not explicitly stated, it is clear that the BOP offers Mr.
Jones's testimony as a representative of the BOP. Courts
considering the issue of whether Rule 56(c)(4)'s personal
knowledge requirement applies to Rule 30(b)(6)
representative[s], however, have found that a sworn affidavit
from a corporate representative-and in this case a
governmental official-may be considered when relied on in a
motion for summary judgment. Seifried v. Portfolio
Recovery Assocs., LLC, No. 12-CV-0032-JHP, 2013 WL
6185478, at *2 (E.D. Okla. Nov. 25, 2013) (citations omitted)
(considering Rule 30(b)(6) representative's Declaration
even if not based on personal knowledge). And as discussed in
detail below, Mr. Chesser's contention that not all
documents are BOP business records is insufficient in light
of Mr. Jones's sworn testimony to the contrary.
first document Mr. Chesser takes issue with is a CTU Profile
and Assessment of Plaintiff, dated December 11, 2013. He
argues it is not a BOP business record and not based on
personal knowledge. See [#191-1 at 1, 24]. But Mr.
Jones states, under oath, “The Profile and Assessment
was prepared by CTU personnel, who conducted an exhaustive
analysis of available information about Chesser.”
[#181-2 at ¶ 5]. Mr. Jones continues that he has
“studied the information and analysis contained in the
Profile and Assessment” and relies on its analysis
“in monitoring and analyzing Chesser's
communications.” [Id. at ¶ 6]. Though Mr.
Jones may not have compiled the Profile and Assessment, Mr.
Chesser's objections go more to the weight of Mr.
Jones's testimony, not its admissibility, because there
is no dispute Mr. Jones reviewed the Profile and Assessment
and the document appears authentic. See Bryant v. Farmers
Ins. Exch., 432 F.3d 1114, 1123-24 (10th Cir. 2005)
(holding supervisor's declaration was based on her
personal knowledge where she reviewed audits maintained by
the company that she relied on even if she did not compile
the audits or understand the methodology used to compile
them). Moreover, the Profile and Assessment, if offered at
trial, would be admissible under either Rule 802(d)(2) or
Rule 803(6). Thus, Mr. Jones's testimony concerning the
Profile and Assessment is based on his personal knowledge,
and the court will not strike it.
similar conclusion is warranted as to the Disciplinary
Hearing Officer Reports, Warden Walton's ADX referral
memorandum, BOP incident reports, and BOP documentation
concerning BOP procedures. Though Mr. Chesser is correct to
assert that these documents contain hearsay, his conclusory
assertion that these documents were not maintained in the
ordinary course of business by the BOP is unfounded. There
appears no dispute as to their authenticity as each contains
official BOP markings, is signed by BOP personnel, and were
disclosed in discovery. See Denison v. Swaco Geolograph
Co., 941 F.2d 1416, 1423 (10th Cir. 1991) (holding that
documents prepared on company letterhead and disclosed during
discovery support authenticity of such documents).
Accordingly, these documents appear admissible pursuant to
Rule 803(6), and there is no reason to discredit Mr.
Jones's affirmation under oath that he is familiar with
these documents given his employment with the CTU.
less clear that the Senate Committee on Homeland Security and
Governmental Affairs Report relied on by Mr. Jones is
properly a BOP business record for hearsay exception
purposes. See [#180-7; #180-8]. Indeed, the BOP did
not compile the Report. However, Mr. Jones's use of this
Report largely contains verbatim quotes made by Mr. Chesser.
See, e.g., [#181-2 at ¶¶ 12, 13, 16, 23].
And it appears that the Report is appropriately considered
under the public records exception of the hearsay rule, given
the fact that Mr. Chesser has not persuasively challenged the
reliability of the statements contained therein. Fed.R.Evid.
nothing in Mr. Jones's Declaration constitutes improper
opinion testimony. See Bryant, 432 F.3d at 1124.
Rather, his testimony regarding Mr. Chesser's Jihadist
beliefs and communications, his underlying criminal
conviction, and the events leading to his transfer from CMU
Marion to ADX reflect Mr. Jones's perception and
knowledge of national security concerns gleaned from the
nature of his position with the BOP. See Fed. R.
Evid. 701 advisory committee's note to 2000 amendments
(noting that testimony based on the particularized knowledge
of the witness by virtue of his position does not constitute
expert testimony based on experience, training, or
specialized knowledge within the realm of an expert); cf.
Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34
(2010) (deferring to the Executive in matters of
“sensitive and weighty interests of national
security”); Rezaq v. Nalley, 677 F.3d 1001,
1014 (10th Cir. 2012) (holding that segregation of inmates
with ties to terrorist organizations “stem[s] from a
uniquely federal penological interest in addressing national
security risks”). The court will not strike Mr.
Jones's opinions regarding Mr. Chesser's threat to
Declaration of David Christensen
Chesser lodges three main challenges to Associate Warden
David Christensen's (“Associate Warden”)
Declaration [#180-31]: it contains (1) conclusory assertions,
(2) hearsay, and (3) impermissible lay opinions on national
security. See [#191 at 4, 5; #191-1 at 27-28].
declarations provided in support of a motion for summary
judgment “must set forth facts, not conclusory
statements.” BancOklahoma Mortg. Corp. v. Capital
Title Co., Inc., 194 F.3d 1089, 1101 (10th Cir. 1999).
Conclusory statements provide no probative value on summary
judgment. See Nichols v. Hurley, 921 F.2d 1101, 1113
(10th Cir. 1990); see also Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004) (explaining
that conclusory statements are those based on speculation,
conjecture, or surmise). The bulk of Plaintiff's
objections assert that the Associate Warden's
declarations are conclusory, and appear to target the
Associate Warden's statements regarding institutional and
national security concerns. See [#191-1 at 27-28].
The BOP does not address these objections. Having reviewed
the objected-to paragraphs, the court finds that Mr.
Chesser's concerns go to the weight of the evidence, not
hearsay, several of Mr. Chesser's objections do not
expound on why the Associate Warden's statements contain
inadmissible hearsay. He appears to insinuate that the
statements about him are out-of-court statements from others.
But this does not appear to be so. Moreover, his argument
also appears to place form over substance; even if the
Associate Warden's Declaration itself would be
inadmissible at trial, his statements based on personal
knowledge of Mr. Chesser would be admissible were he to
testify. See Brown, 835 F.3d at 1232.
the court will not strike the Associate Warden's
statements concerning national security as improper lay
opinion testimony. I conclude that the testimony is not based
on any scientific, technical, or specialized knowledge but,
rather, on the Associate Warden's particularized
knowledge by virtue of his position within the BOP.
See Fed. R. Evid. 701 advisory committee's note
to 2000 amendments. See also Holder, 561 U.S. at
33-34; Rezaq, 677 F.3d at 1014.
Declaration of John Oliver
retained John Oliver as an expert under Rule 26(a)(2)(B) of
the Federal Rules of Civil Procedure in the field of
correctional security and correctional management, given his
specialized knowledge in these fields. See [#180-37
at ¶ 1]. Mr. Chesser objects to four paragraphs in Mr.
702 of the Federal Rules of Evidence permits:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Though not framed as a Rule 702 challenge,
I find it appropriate to consider Mr. Chesser's
objections with that Rule and the court's gatekeeper
functions in mind. It is well established that trial courts
are charged with the gatekeeper responsibility of ensuring
expert testimony or evidence is admitted only if such is
relevant and reliable. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-152 (1999); Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89
(1993). To fulfill that gatekeeper function, courts within
this Circuit conduct a two-part inquiry. The court first
considers whether the expert's proffered testimony has a
reliable basis in the knowledge and experience of his or her
discipline by conducting a preliminary inquiry into the
expert's qualifications and the admissibility of the
proffered evidence. In other words, the court asks whether
the reasoning or methodology underlying the testimony is
valid. Cook v. Rockwell Int'l Corp., 580
F.Supp.2d 1071, 1082 (D. Colo. 2006) (citing Butler v.
A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir.
2004)). The court then considers whether the proposed
testimony is sufficiently relevant to the issues presented to
the factfinder. See id. The party offering the
expert opinion bears the burden of establishing its
admissibility, including the foundational requirements, by a
preponderance of the evidence. United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009);
United States v. Crabbe, 556 F.Supp.2d 1217, 1220
(D. Colo. 2008).
Plaintiff objects to the conclusions drawn by Mr. Oliver in
paragraph 13, but his disagreement goes to the weight, not
admissibility, of Mr. Oliver's opinion and is not a
sufficient basis for striking this paragraph. See Jaffrey
v. PorterCare Adventist Health Sys., No.
15-CV-02297-NYW, 2017 WL 5624572, at *5 (D. Colo. Nov. 22,
2017). Second, Mr. Chesser contends that paragraph 15 is
conclusory and unsubstantiated by evidence; however, Mr.
Oliver supports paragraph 15 with his “27 years of
experience in the field of correctional management, including
23 years of experience in facilities operated by the
BOP” with positions as Complex Warden of ADX and USP
Florence. See Heineman v. Am. Home Prod. Corp., No.
13-CV-02070-MSK-CBS, 2015 WL 1186777, at *3 (D. Colo. Mar.
12, 2015). Third, Mr. Chesser asserts that paragraph 19 is
speculative, but a review of this paragraph again reveals
that Mr. Oliver relies on past experiences to support his
assertion that the appearance of a preference towards certain
inmates can create hostility. Finally, Plaintiff objects to
paragraph 23 because it is a legal conclusion and its
assertions that Plaintiff is safest in his range are
unsubstantiated. But again, Mr. Oliver's opinions are
that of a specially-retained expert, and the court's
analysis must focus upon his methodology, rather than the
conclusions it generates. Dodge v. Cotter Corp., 328
F.3d 1212, 1222 (10th Cir. 2003). Mr. Chesser raises no
legitimate challenge to Mr. Oliver's background,
expertise, or qualifications as an expert witness; rather, he
simply takes issue with the opinions Mr. Oliver renders.
[#191-1 at 28].
Declaration of Jason Henderson
Chesser objects to several paragraphs in the Declaration of
Jason Henderson, Supervisory Chaplain at FCC Florence.
See [#180-38]. First, Mr. Chesser asserts that
paragraphs 20 and 24 are conclusory. Each concerns Mr.
Chesser's administrative grievances regarding religious
studies. The court will not strike these paragraphs as
conclusory as each appears supported by factual assertions.
Mr. Chesser argues that paragraphs 27 and 28 contain
“fragrant lie[s]” about his religious privileges
in the B/B Unit. [#191-1 at 28]. He bases this contention on
his assertion that Chaplain Henderson cancelled all religious
classes and sermons after reading Mr. Chesser's
deposition testimony wherein Mr. Chesser admits to conducting
these activities without specific authorization. See
[#193-20; #186-1]. Indeed, Chaplain Henderson confirms that
he ordered Mr. Chesser to cease “preaching to or
teaching other inmates, ” not that he wholly forbade
Mr. Chesser from ever doing so. See [#198-3 at
¶¶ 4, 7]. But the court's role on summary
judgment is not to determine the credibility of the
witnesses; it is to determine whether there is a genuine
issue for trial. See Anderson, 477 U.S. at 249.
Thus, merely because ...