Free Response to Objection to Report and Recommendation - District Court of Colorado - Colorado

Case 1:03-cv-00466-ZLW-BNB

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Filed 02/03/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-00466 ­ZLW-BNB JAMES RALPH DAWSON, JR., Plaintiff, v. THE COLORADO DEPARTMENT OF CORRECTIONS EX REL AL ESTEP, SHANE JOHNSON, JOHN BOWKER, ENDRE SAMU, and DANY ADAMS, Defendants. RESPONSE TO PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S RECOMMENDATION THAT MOTION FOR PARTIAL SUMMARY JUDGMENT BE GRANTED Defendants, by and through their counsel, the Colorado Attorney General, hereby submit the following Response to Plaintiff's Objections to the Magistrate's Recommendation that the Motion for Partial Summary Judgment be Granted: I. Summary of Claims and the Magistrate Judge's Recommendation Plaintiff, an inmate in the Colorado Department of Corrections ("CDOC"), brought civil rights claims against Defendants alleging that they retaliated against him for filing grievances and/or filing a lawsuit complaining about the lack of prison employment. Specifically, Plaintiff claims that he was falsely convicted of bribery in violation of the prison Code of Penal Discipline ("COPD"). It is undisputed that Plaintiff was convicted of bribery after a prison disciplinary hearing on the grounds that he told prison staff orally and in writing that if they would provide him with a porter job, he would not pursue grievances or legal action. Though

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Plaintiff admits authoring a written offer to drop grievances and/or a lawsuit in exchange for the porter job, Plaintiff claims that Defendants Johnson and Bowker came up with the proposal and induced him to put it into writing ­ essentially framing him. Defendant Samu was the prison disciplinary hearing officer, and Defendant Adams presented the case against Plaintiff at the hearing. Defendant Estep is the Warden of the facility where the incident occurred. Plaintiff alleges that these Defendants conspired to retaliate against him with Defendants Johnson and Bowker. Defendants moved for partial summary judgment on behalf of Defendants Samu, Adams and Estep in their individual capacities on the grounds that there is no evidence that they personally participated in the alleged retaliation, among other grounds. Defendants also sought summary judgment with regard to the claims against them in their official capacities on the grounds that they are immune under the Eleventh Amendment. The Honorable Magistrate Judge Boyd N. Boland agreed that all Defendants are entitled to Eleventh Amendment immunity in their official capacities with regard to Plaintiff's claims for monetary damages.1 He also agreed that there is insufficient evidence of personal participation, and recommended that the Court grant Defendants' Motion for Partial Summary Judgment with regard to the claims against Defendants Samu, Adams and Estep in their individual capacities. Plaintiff objects to the recommendation. II. Defendants are entitled to Immunity in their Official Capacities

Magistrate Judge Boland indicated that Plaintiff's claims are not barred against Defendants to the extent that Plaintiff seeks prospective injunctive relief. Apparently Plaintiff seeks or may seek an injunction from the Court ordering Defendants to cease their retaliation against him. However, with regard to Defendants Samu, Adams and Estep, if the Court agrees with Magistrate Judge Boland's findings that there is no evidence that these Defendants retaliated against Plaintiff or conspired to do so, there would appear to be no retaliatory conduct to enjoin and thus no basis for an injunction against them. Therefore, Defendants Samu, Adams and Estep should be dismissed entirely from this action.
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Plaintiff objects to the Magistrate Judge's finding that Defendants are entitled to immunity in their official capacities with regard to his claims for monetary damages. However, it appears that Plaintiff mistakes sovereign immunity under the Eleventh Amendment with qualified immunity. Plaintiff contends that the Magistrate Judge erred because under existing case law, Defendants should have been aware that retaliation is prohibited. However, Defendants' awareness that retaliation is prohibited does not effect their entitlement to immunity in their official capacities. Magistrate Judge Boland corrected noted that the Eleventh Amendment bars claims against the CDOC for either monetary damages or injunctive relief, and that it "further precludes federal jurisdiction over state officials acting in their official capacities as to retroactive monetary relief;" See Penhurst State School & Hospital v.Halderman, 465 U.S. 89, 102-03; 105-06 (1984). Therefore, it is appropriate to grant summary judgment in favor of the CDOC with regard to all claims and in favor of all Defendants in their official capacities with regard to monetary relief. III. The Magistrate Judge Was Correct in Finding Lack of Personal Participation on the part of Defendants Estep, Samu and Adams In order for Plaintiff to establish his retaliation claims, he must show that "but for" a retaliatory motive and personal participation on the part of each Defendant, Plaintiff would not have been found guilty of violating the COPD. See McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983) and Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). With regard to Defendants Adams and Samu, as noted in Defendants' Reply Brief, Plaintiff failed to provide any evidence to show that Defendants Adams and Samu had any personal participation in the alleged retaliation against him. Plaintiff simply alleges that Defendant Adams failed to arrive at the correct result in conducting his investigation and prosecuting the bribery charge, and that Defendant Samu failed to arrive at the correct result by finding Plaintiff guilty. However, these

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decisions were based upon credibility assessments of the witnesses. As Magistrate Judge Boland concluded, there is no evidence demonstrating that other reasonable corrections officers in Defendant Adams' and Samu's position would have reached a different conclusion, nor is there any indication that they were plainly incompetent in discharging their duties. Plaintiff has not provided any new evidence in his Objection. He merely argues that reasonable persons in their position would have known that he was being retaliated against. However, there is no evidence that this is the case however, nor any evidence of a conspiratorial motive on the part of Defendant Adams or Samu. Therefore, Magistrate Judge Boland's Recommendation is proper with regard to Defendants Adams and Samu, and they are entitled to summary judgment. III. The Magistrate Judge was Correct in Finding that Defendant Estep is Entitled to Summary Judgment As with Defendants Adams and Samu, Plaintiff's Objection also failed to provide any evidence that Defendant Estep had any personal involvement in the alleged retaliation against Plaintiff, or that he shared a conspiratorial motive. As noted by Magistrate Judge Boland and in Defendants' summary judgment motion, an official cannot be held liable for actions that occur in a prison merely because he has general supervisory responsibility. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). A supervisor's liability can only be based on his failure to stop a subordinate's constitutional violation of which he is aware. Woodward v. City of Worland, 977 F.2d 1392, 1399-1400 (10th Cir. 1992), cert. denied, 509 U.S. 923 (1993). Relief is not possible without a demonstration that the supervisor participated in the misconduct, personally directed the misconduct, or, with actual knowledge of the misconduct, approved of it, acquiesced in it or failed to stop it. Id. As noted by Magistrate Judge Boland, Plaintiff produced no facts that would show that Defendant Estep had a retaliatory motive or that he personally participated in the alleged

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conspiracy to retaliate against Plaintiff in response to the Motion for Partial Summary Judgment. Plaintiff's Objection does not contain any new or additional evidence to support his claims. Plaintiff's discussion of the prison grievance procedures and exhaustion requirement do not constitute evidence that Defendant Estep personally participated in the alleged retaliation, nor does this show a conspiratorial motive on his part. As such, Defendant Estep is entitled to summary judgment in his individual capacity as well as his official capacity. IV. Conclusion The Eleventh Amendment prohibits suits against the CDOC and suits for damages against Defendants acting in their official capacities. Plaintiff failed to produce any evidence showing that Defendants Samu, Adams or Estep personally participated in the alleged retaliation against him. Therefore, they are entitled to summary judgment in their individual capacities. In addition, as there is no evidence they have engaged in retaliation against Plaintiff, there is no basis for prospective injunctive relief against these Defendants. For the reasons set forth in Magistrate Boland's Recommendation concerning the Motion for Partial Summary Judgment and as set forth herein, Defendants CDOC, Samu, Adams and Estep are entitled to summary judgment with regard to Plaintiff's claims in both their official and individual capacities. WHEREFORE, Defendants respectfully request this Court grant accept and adopt Magistrate Judge Boland's Recommendation that the Motion for Partial Summary Judgment be granted, and that Defendants CDOC, Estep, Samu and Adams be dismissed from this action.

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Case 1:03-cv-00466-ZLW-BNB

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JOHN W. SUTHERS Attorney General

/s/ Nicole S. Gellar NICOLE S. GELLAR* Assistant Attorney General Corrections Unit Litigation Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5161 *Counsel of Record [email protected]

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CERTIFICATE OF SERVICE This is to certify that I have duly served the within RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S RECOMMENDATION THAT MOTION FOR PARTIAL SUMMARY JUDGMENT BE GRANTED upon all parties herein by depositing copies of same in the United States mail, postage prepaid, at Denver, Colorado, this 3rd day of February, 2006, addressed as follows:

James Ralph Dawson Jr., #46709 Limon Correctional Facility 49030 State Highway 71 Limon, CO 80826

Cc: Cathie Holst Al Estep

/S/ Mariah Cruz-Nancio

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