MICHAEL J. WATANABE, Magistrate Judge.
This matter was referred to this court pursuant to an Order Referring Case issued on September 20, 2012, by Judge Christine M. Arguello. (Docket No. 7).
The operative pleading is the rambling, prolix original Prisoner Complaint (Docket No. 3) filed by the pro se plaintiff, Shawn D. Allen, when he was incarcerated. Most of the allegations concern incidents that allegedly occurred at the Limon Correctional Facility ("LCF"). Plaintiff has just recently been released. Plaintiff asserts the following five claims in that pleading, which is brought pursuant to 42 U.S.C. § 1983.
On July 8, 2009, plaintiff spoke and wrote to Allen about plaintiff's concern that he would be assaulted or killed by a cell mate if forced to have one and how if plaintiff was hired as a unit porter, he would be housed alone. Later that day, Allen informed plaintiff that she would hire him as a porter.
Two days later, however, on Friday, July 10, Allen and plaintiff got into a brief argument over an unrelated issue. She made "vague threats," and so plaintiff warned her that he would file a formal complaint on her and possibly sue. That evening plaintiff wrote a Step 1 Grievance on Allen and handed it to staff to put in the case manager's mailbox. There can be no doubt that Allen read it. The following Monday morning, on July 13, in retaliation to plaintiff's verbal threat and written grievance, Allen instructed two subordinate officers to move plaintiff out of the unit to another and into a cell with another prisoner. Plaintiff asked to speak with Allen, but Allen refused. Plaintiff told staff he was to start work soon as a unit porter, but the control booth officer stated that plaintiff "messed that up" when he filed a grievance on Allen.
Plaintiff refused to move, and to avoid an altercation, told the unit officers to just take him to segregation ("Seg"). He told them, "If I am housed in a locked cell with another I might have a problem." That request was forwarded by the officers to Allen, who directed them to cuff plaintiff and physically transport him to the other unit and into the cell with the other inmate. This policy and practice of forced movement resulted in plaintiff being put in a perilous situation of which Allen was well aware. Immediately after being forced into the other cell, an "incident" occurred between a prisoner in the new unit and plaintiff which caused plaintiff to be put in Seg and charged with an unwarranted assault. But for Allen's retaliatory posture and reckless disregard to plaintiff's well-established rights, plaintiff would never have endured this injury.
Plaintiff "deduced" that Allen subsequently gave Officer Sanger a "green light" to retaliate on her behalf. On August 30, 2009, Sanger refused to open plaintiff's cell door so he could pick up the rationed roll of toilet paper, but everyone else got theirs. Both Allen and Sanger work together on Sundays. Sanger was one of the subordinates Allen directed to force move plaintiff on July 13. That evening plaintiff filed a Step 1 Grievance on Sanger. Sanger, however, is not named as a defendant.
On October 25, 2009, Allen threatened plaintiff that if he got a new tattoo, she would write him up.
The following day, since plaintiff was now uncomfortable living in a cell near the prisoner he supposedly snitched on, he asked the Unit sSrgeant if he could move to an empty corner cell that was in a different pod within the unit. Allen overheard plaintiff mention his desire to move to another cell and obstructed the cell change. But for plaintiff filing grievances and preparing this lawsuit against Allen, plaintiff would have been permitted to move. Allen subjected him to harsh living conditions only because of plaintiff's engagements in protected activities and without legitimate penological interest. She violated his right to equal protection. Plaintiff was singled out and treated differently than others similarly situated.
On October 26, 2009, plaintiff filed another Step 1 Grievance on Allen's discrimination towards plaintiff based on plaintiff's grievance filings. Plaintiff sent other complaints to other offices. On November 2, 2009, plaintiff asked Allen for a pillow and was told to "go to hell," yet other prisoners had received new pillows. On November 6, Allen gave plaintiff a pillow, and plaintiff later discovered a make-shift knife/scissor, which plaintiff threw away the next day. Allen was once again trying to set plaintiff up. Plaintiff returned the pillow to her.
On November 9, 2009, while in the law library, plaintiff had defendant Cosner copy letters to the Inspector General's Office. Plaintiff conjectures that Cosner alerted other officials, Sokol, and Allen. The following day, plaintiff mailed these letters, and on November 12, he was taken to Seg. Allen violated administrative regulations concerning discrimination and retaliation.
On July 13, 2009, when plaintiff entered Unit Six at LTE, plaintiff told Flory he just wanted to go to Seg because he was not going to be forced to live in a locked cell with another prisoner. Plaintiff warned Flory that should he join in with the other officers and force plaintiff into the other prisoner's cell, he would sue him. Flory, however, went ahead and participated in physically moving plaintiff into a cell housed by a convicted killer while plaintiff was handcuffed behind the back. Consequently, Flory violated plaintiff's equal protection rights.
Five minutes after this forced move and the threat of suing Flory, an altercation occurred between inmate Chavez and plaintiff. Although Chavez first shoved plaintiff, Flory wrote a misbehavior report falsely accusing plaintiff of a serious class one assault, which plaintiff did not do. Had plaintiff not told Flory that he planned to take legal action on him, he would not have charged him with an assault for a "30 second scuffle." Prisoners are charged with an assault for causing significant injury or using some sort of weapon, and plaintiff did not cause any major injury and did not use a weapon. Plaintiff's actions in response to being shoved in his chest were justified, and such self defense made the disciplinary charge unwarranted. Plaintiff has no history of assault or even a simple fight.
At the disciplinary hearing, Flory testified that he did not see plaintiff get pushed initially and was far away. Plaintiff's request for Chavez to be a witness was denied. Chavez would have given exculpatory testimony. Plaintiff was convicted of assault, and this "stigmatizing conviction" has trapped plaintiff in high security prisons even though he is not a violent prisoner and has no violent criminal convictions. In addition, this bogus conviction threatens plaintiff's parole eligibility and halfway house considerations. Flory penalized plaintiff for having exercised a right.
Plaintiff does not seek expungement of this conviction. He admits he got into the scuffle, albeit in self defense. He is merely seeking monetary relief for Flory's unlawful act.
In July 2009 defendant Cosner, a legal assistant at LTE, began depriving plaintiff of reasonable legal assistance because of her being lax and derelict in her duties and because of the many complaint letters plaintiff wrote to her supervisors, as well as his grievances and Notices of Claims. While in Seg in July 2009, plaintiff submitted several request forms to Costner for his legal property and supplies, but Cosner ignored them from July 13 to 23. Therefore, on July 23 plaintiff filed a Step 1 Grievance, had already written a complaint to defendant Sokol (Cosner's supervisor) and a complaint to plaintiff's case manager, and had filed a notice of intent to sue Cosner. In the Grievance, plaintiff warned Cosner that he would sue her if he in fact suffered injury. On July 24 Cosner showed up angry at plaintiff but provided the requested aid. Plaintiff contends that but for the slew of complaints, Cosner never would have provided him aid.
Cosner was never in Seg assisting prisoners. Waiting over a week in Seg for legal assistance is not reasonable and runs contrary to the DOC rules. On one "kite" plaintiff put a July 17, 2009, court deadline, and Cosner lied about receiving the kite a week after it was submitted. Her denial obstructed plaintiff's right to access to the courts. As a result, his cases before this court (cases 09-cv-00741 and 09-cv-01349) were both dismissed. But for Cosner's deprivation, plaintiff would have been able to prepare his response and cases timely.
On Monday, August 3, 2009, while still in Seg, plaintiff submitted more legal kites and sent out a second complaint letter to Sokol on August 6. Then on August 9, plaintiff filed a new Step 1 Grievance concerning legal access denials. Cosner's actions were motivated by plaintiff's complaints and intent to sue. First she caused two cases to be dismissed, and she was now retaliating.
Over the next two months access to the library was sporadic, and it was curtailed in October 2009. On October 6, 2009, plaintiff mailed another Declaration to defendant LCF Warden Medina (Cosner's supervisor), complaining about the library being closed, yet Cosner was in her office playing on the computer and talking on the phone. Defendants Nordell, Medina, and Sokol "dispatched" plaintiff's complaints to Cosner. Plaintiff sent a third complaint to Sokol on November 9, 2009. On November 10, 2009, plaintiff finally was able to visit the law library during which he had Cosner copy a Notice to the Court he had written about how Cosner's deprivations may obstruct and prejudice his case. Cosner read that Notice, and that Notice along with the previous complaints motivated her "to viciously visit her unbridled wrath upon [plaintiff]." (Docket No. 3 at 25). She falsely accused plaintiff of looking at her improperly, which was defamation and violated plaintiff's right to equal protection. Her claim resulted in plaintiff being wrongfully placed on a behavior management plan ("BMP") which put restraints on plaintiff's speech, classified him as a problem prisoner, caused him to be harassed by officials, and caused him to have extra pat down and cell searches. Cosner has a pattern of conduct targeting black prisoners. Plaintiff was treated differently in part due to his being a black man, and Cosner singled plaintiff out because he exercised a right.
Once plaintiff was in Seg, Cosner again refused to provide legal supplies, case law, and legal property. On November 15, 2009, plaintiff mailed a Declaration to defendant Nordell regarding Cosner's reprisal. Cosner conspired with at least defendants Nordell, Medina, and Sokol to undermine plaintiff's complaints. On November 17, 2009, plaintiff filed a Step 1 Grievance against her supervisors. On November 19, 2009, plaintiff mailed another Declaration to Medina and Nordell accusing the Warden of a failure to supervise.
Cosner learned of these complaints. Finally, after plaintiff spent eight days in Seg, she stopped by to collect papers to copy and later returned with his legal property. Shortly thereafter, plaintiff discovered his vital legal notebook with over fifty pages of legal writings, notes, case citations, etc., was removed from a manilla envelope. Plaintiff then filed a Grievance on Cosner for stealing the notebook, contacted the U.S. Department of Justice and the Inspector General asking for an investigation, and filed a motion to have the Lincoln County Court order the defendant to provide him reasonable access to the prison library.
Once out of Seg, getting to the library was difficult, and in September 2009 Cosner told plaintiff that if he needed copies and the library was closed, he could have unit staff call her. Plaintiff did so twice in September. However, when he had unit staff call her on November 30, 2009, Cosner once again conjured up an issue, accusing plaintiff of trying to manipulate staff.
On December 3, 2009, plaintiff mailed another report of denial of access to the law library to defendant Nordell. On December 6, 2009, plaintiff filed a Step 1 Grievance regarding the library closures. On December 9, defendant Medina directed plaintiff to attend a "staffing" with defendants Sokol and Cosner. These four defendants conspired to contrive the BMP, ostensibly for plaintiff's benefit, when in fact it was imposed upon him as a deterrent to his engaging in protected activities. Plaintiff again wrote to the Attorney General's Office, and on December 27, 2009, he filed a Step 1 Grievance on the Inspector General for failing to investigate Cosner's taking plaintiff's legal property. All the Inspector General did was send a copy of the plaintiff's November 29, 2009, letter to defendant Nordell, who no doubt faxed Cosner a copy. Nordell conspired with Cosner to cover up the crime. On December 30, 2009, plaintiff filed another complaint with the U.S. Department of Justice.
On January 5, 2010, plaintiff mailed a letter to another inmate who was in Seg because of a charge Cosner made against him. Plaintiff asked the inmate about what occurred and requested a sworn affidavit, which plaintiff received, only to have it later removed from his legal box. The mail room gave Cosner a copy of plaintiff's letter. As a result of plaintiff's letter, and also because of the January 7, 2010, Step 1 Grievance plaintiff filed against Nordell, Medina, Sokol, and Cosner for conspiracy and plaintiff's complaint to the Attorney General (copies of which plaintiff mailed to Nordell and Medina), plaintiff was taken to Seg on January 8, 2010.
Cosner conspired with the supervisory defendants to retaliate against plaintiff for his various complaints and discriminated against plaintiff because he exercised his rights. The second Seg placement and the BMP were harassment, which violated plaintiff's right to equal protection and deprived him of substantive due process. Plaintiff was not allowed a formal hearing on the BMP in order to defend himself against the classification.
Once back in Seg for exercising a right, Cosner refused to provide plaintiff any legal assistance, and supervisors did nothing to prevent it. Every legal access request plaintiff submitted was denied. Plaintiff was in Seg with no personal legal property, and Cosner refused to provide it. Plaintiff was also denied necessary supplies to access the courts. Consequently, at least one case, 09-cv-02605-CMA-MJW, was prejudiced, with a ruling in favor of the defendants. Had Cosner provided requested "needs," plaintiff would have been able to submit his response to defendants' motion to dismiss and answer.
Plaintiff sat in Seg From January 8 to 25, 2010, with no property except a blanket and clothing, but all others in Seg had their envelopes, pens, etc. Plaintiff filed another Step 1 Grievance, yet plaintiff never received any items from Cosner. The kites attached to Cosner's response were simply back dated and "responded to" after the grievance was filed and after plaintiff was transferred to another facility. Nordell condoned such deception. Plaintiff did receive a 1983 packet, but the other materials he requested were denied.
On January 26, 2010, after eighteen days in Seg for exercising a right, plaintiff was transferred, and his property was kept at LCF. He did not see his property until March 11, 2009, and his legal box "had been brutally raped." LCF officials stole the several sworn affidavits he had acquired and was to use in this case. Plaintiff had to ask the court for copies of two documents because they were also missing from his property. Plaintiff filed another Step 1 Grievance for this deprivation, but he cannot tell what staff was culpable. Cosner conspired with defendants Nordell and Tuttle to deprive plaintiff of his legal documents.
Nearly a month after leaving LCF, plaintiff receive a Notice of Charges in which Cosner filed a bogus and tardy charge against him, and plaintiff was found not guilty during a disciplinary hearing on March 24, 2010.
Plaintiff submitted formal complaint letters via the Postal Service directly to these defendants, apprising them of any rights violations as they occurred. By doing so, plaintiff gave these defendants the opportunity to exercise their authority to take corrective and/or disciplinary measures where appropriate and investigate, but they but failed to do so. Their deliberate indifference left plaintiff "very vulnerable and naked to defendant Cosners [sic] ruthless and rampant reprisals." Plaintiff details his various mailings to these supervisory defendants. He claims they conspired to cover up Cosner's unlawful acts by sending her copies of plaintiff's reports.
On December 9, 2009, Medina ordered plaintiff to attend a meeting regarding the BMP. Cosner and Sokol also attended. Prior to plaintiff entering the office, these defendants met for about 45 minutes, where "the conspiracy occurred." The BMP was conceived prior to December 9, and Nordell's involvement was during that period. The BMP was unwarranted because plaintiff always followed legal access procedures, was retaliation, and served to further violate plaintiff's rights, such as equal protection. Plaintiff was not provided the required procedural due process.
These defendants also conspired with the legal assistant at Sterling Correctional Facility to further violate plaintiff's rights. Plaintiff was not given the basic supplies he requested which would have allowed him to litigate his cases 09-cv-02605, 07-cv-01124, and 09-cv-55. Had these defendants and Cosner never retaliated, plaintiff would not have suffered injury to his cases. Tuttle was not a co-conspirator until after plaintiff left Sterling in March 2010. The conspiracy continued in May 2010 when Nordell and Cosner colluded with Tuttle to violate plaintiff's rights (discussed in Claim Five). Plaintiff contends that those three defendants were in contact with one another during the preparation for trial in state court from April 2010 to May 24, 2010, and conspired to deprive plaintiff of key papers so as to thwart plaintiff's case against Cosner.
Nordell, Medina, and Sokol, in reprisal for plaintiff's legal cases and complaints, conspired again with Cosner regarding the disciplinary charge Cosner filed the day plaintiff left LCF.
On May 24, 2010, plaintiff was in Seg and gave Tuttle numerous legal documents regarding Cosner so copies could be made. Tuttle said the copies would be returned that afternoon, but he never returned. On May 26, 2010, plaintiff filed a Step 1 Grievance on Tuttle, and the next day, a different legal assistant brought several of the documents back to plaintiff. No copies were made. Plaintiff noticed that three documents were missing, and the legal assistant stated that was everything she found. Plaintiff asked her for Tuttle's name, and that evening he filed a report with the DOC Office of Human Resources which simply sent it to Nordell (Tuttle's supervisor). Plaintiff contends that Tuttle conspired with Nordell and Cosner to deprive plaintiff of his legal property. The missing papers were to be presented as evidence in the plaintiff's case against Cosner, which was later dismissed.
Plaintiff seeks nominal, compensatory, and punitive damages.
Now before the court for a report and recommendation is the Defendants' Motion for Summary Judgment (Docket No. 96). Plaintiff filed a response (Docket No. 118), and the defendants filed a Reply (Docket No. 120). The court has very carefully considered all of these motion papers as well as the court's file and applicable statutes and case law. The court now being fully informed makes the following findings, conclusions, and recommendation that the motion be granted.
Defendants seek the entry of summary judgment on the following grounds: (1) plaintiff's claims against defendants Allen, Flory, and Tuttle must be dismissed under the Prison Litigation Reform Act ("PLRA") because the plaintiff failed to exhaust the administrative remedies available to him; (2) all of the individual defendants are entitled to qualified immunity because (a) plaintiff states no cognizable constitutional violation of his Fifth, Eighth, or Fourteenth Amendment rights, (b) plaintiff has failed to demonstrate that any of the defendants violated any of his clearly-established constitutional rights under the Eighth Amendment, and (c) plaintiff has completely failed to demonstrate that any of the defendants acted with deliberate indifference; (3) plaintiff fails to state a viable First Amendment retaliation claim against defendants Allen, Flory, Cosner, or Tuttle; (4) plaintiff fails to state a proper claim of violation of his constitutional right of access to the courts; (5) plaintiff states no viable claim for conspiracy against any of the defendants; and (6) plaintiff states no viable claim for equal protection violations against any of the defendants.
Rule 56(a) provides that summary judgment shall be granted "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 party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial."
"Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response."
Self-serving affidavits, without support in the record do not create a trial issue of fact.
Plaintiff is proceeding pro se. The court, therefore, reviews the plaintiff's pleading and other papers liberally and holds them to a less stringent standard than those drafted by attorneys.
The court notes that in their Reply (Docket No. 120 at 2-3), the defendants correctly note that the plaintiff failed to address the Statement of Undisputed Facts detailed in Defendants' Motion for Summary Judgment. Instead, plaintiff used a conclusory statement to address defendants' well-supported facts by stating, "I've perused Defendants `Statement of Undisputed' as such I declare I am not in agreement." (Docket No. 118 at 1). Plaintiff failed to present specific facts he disagrees with and what support he has to contradict those facts. Defendants' statement of facts are based extensively on plaintiff's own testimony. The court agrees that these facts show that plaintiff failed to exhaust his administrative remedies with respect to certain claims, and plaintiff has not provided the necessary evidence to establish claims for retaliation, conspiracy, equal protection and due process violations, or denial access to the courts. In sum, this court finds that the plaintiff's claims are insufficient to survive summary judgment as a matter of law.
Defendants assert that the plaintiff's claims against defendants Allen, Flory, and Tuttle must be dismissed under the PLRA because the plaintiff failed to exhaust the administrative remedies available to him. The PLRA,
The Colorado Department of Corrections ("CDOC") has a multi-step administrative grievance process available to inmates set forth in its regulations which entails a three-step written grievance procedure.
The "failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints."
As defendants note, during his deposition, plaintiff explained that his claims against Allen arise from two specific incidents, her "handling" of plaintiff's "skirmish" with Officer Jones (the "unrelated issue" referred to in the Complaint) and her alleged broken promise of being allowed to move as a porter. (
With regard to his claims against Flory, during his deposition plaintiff stated that his real complaint is solely based upon Flory providing testimony that resulted in the plaintiff's disciplinary violation for assault. (Docket No. 96-1 - 96-2, Defs.' Ex. A at 54:15-61:23). After what defendants describe as a "burdensome search," they were able to identify the relevant grievances against Flory, but plaintiff filed only Step 1 and 2 Grievances against Flory in which he claimed that "in patent retaliation of my threat to sue Sgt. Flory filed an exaggerated assault charge against me." (Docket No. 96-4 at 13, Defs.' Ex. L). Plaintiff did not file a Step 3 Grievance regarding this incident.
Regarding Tuttle, plaintiff stated during his deposition that his claims are that Tuttle conspired with Cosner, Medina, and Nordell to prevent him from succeeding in the small claims action pending in Hugo, Colorado, against Cosner by failing to return his photocopies and retaliated against him by denying him legal access. (Docket No. 96-2, Defs.' Ex. A, 125:21 - 126:3-8). Defendants cannot locate a single grievance against Tuttle filed by the plaintiff.
In his Response, plaintiff does not refute defendants' argument concerning the lack of exhaustion with respect to the specific claims lodged against Defendants Allen, Flory and Tuttle. Rather, plaintiff points to four grievances, none of which establish that he exhausted his administrative remedies by filing a Step 3 Grievance against defendants Allen, Flory or Tuttle. (
Based upon the findings above, the plaintiff's claims against defendants Allen, Flory, and Tuttle should be dismissed under PLRA based upon the plaintiff's failure to exhaust those claims fully. Even if that were not the case, as found in the discussions below, plaintiff has not established his claims of retaliation, conspiracy, denial of equal protection and due process, and denial of access to the courts.
Plaintiff's claims against supervisory defendants Nordell, Medina, and Sokol should also be dismissed. In the Tenth Circuit, "supervisory relationship alone is insufficient for liability under § 1983."
More specifically, plaintiff's claims that the supervisory defendants had the requisite personal participation because he sent them numerous "declarations" and other documents concerning his allegations regarding Cosner's actions yet failed to act is insufficient under Tenth Circuit law.
Furthermore, plaintiff's allegations regarding conspiracies among the various defendants, including the supervisory defendants, are inadequate. "Allegations of conspiracy may . . . form the basis of a § 1983 claim. . . . However, a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants. . . . `Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.'"
In sum, defendants' motion for summary judgment should granted with respect to plaintiff's claims against defendants Nordell, Medina, and Sokol as well as all of his conspiracy claims against all of the defendants.
Based upon the findings above, regarding the claims against defendants Allen, Flory, Nordell, Medina, Sokol, and Tuttle, the only claims remaining which need to be discussed are those against defendants Cosner. However, the discussion below also applies to the claims against the other defendants.
Here, defendants have shown that in terms of the law library access, plaintiff admits he was provided with materials while in segregation and is merely upset because he did not receive assistance at the exact moment of the request. (
In addition, the court finds that plaintiff has not established any relevant actual injury to his numerous legal actions and thus cannot state a claim against Cosner, or any of the defendants, for violation of his constitutional right to access the courts. In his Prisoner Complaint, plaintiff specifically mentions three cases in this District which he claims were prejudiced by defendants' actions (09-cv-00741-CMA-MJW, 09-cv-01349-ZLW, 09-cv-02605-WJM-MJW). First, plaintiff claims that was "prejudiced completely" by Cosner's actions in the first two cases cited. (
Furthermore, on July 20, 2009, Plaintiff filed a Motion to Drop Case in which he stated "[i]t would appear next to impossible to succeed in the above case as a pro se litigant. A special civil attorney accomplished in mental health rights is required. Even then success would undoubtedly be most arduous at attaining." (Case No. 09-cv-00741-CMA-MJW, Docket No. 36; here, Docket No. 96-3 at 11, Defs.' Ex. F). On July 27, 2009, Judge Arguello dismissed case number 09-CV-00741-CMA-MJW without prejudice. (Case No. 09-cv-00741, Docket No. 39; here, Docket No. 96-3 at 12, Defs.' Ex. G).
This court agrees with the defendants that the docket and the timeline demonstrate that the defendants' actions did not play any role in the plaintiff's case being dismissed. Plaintiff's deadline for filing a response was the same day he was put in Seg at LCF, and he has provided no evidence that he could not file any response because of his placement in Seg and resultant alleged limited access to legal assistance.
Plaintiff also argues that but for defendants' action denying him access to the courts, his case number 09-cv-01349-ZLW would have not been dismissed. Defendants have shown, however, that plaintiff had access to the court during his time in Seg at LCF because on July 20, 2009, he filed another Motion to Drop Case Before it Gets Started in which he stated, "I, Shawn D. Allen, after ascertaining key facts hereby elect to not proceed with the above case against `Gray.' I have been transferred out of CCA and back to D.O.C. Too the extreme difficulty of pro se litigation in such a convoluted case has deterred me. Please grant the motion prior to defendant being served)." (Case No. 09-cv-01349-ZLW, Docket No. 5; here, Docket No. 96-3 at 6-7, Defs.' Ex. D).
On July 23, 2009, Judge Weinshienk entered an Order of Dismissal in that case which outlined the various problems with Plaintiff's case. (Case No. 09-cv-01349-ZLW, Docket No. 6; here, Docket No. 96-3 at 8-9, Defs.' Ex. E). The Order stated:
(Case No. 09-cv-01349-ZLW, Docket No. 6; here, Docket No. 96-3, Defs.' Ex. E).
As pointed out by the defendants, based on Judge Boland's Order, plaintiff had until July 10, three days before he was placed in Seg at LCF, to cure the deficiencies. Plaintiff has made no showing that his failure to cure the deficiencies in case 09-CV-01349-ZLW had anything to do with any of the defendants in this case, and thus plaintiff cannot show the requisite injury to hold any defendant liable for denial of access to the courts.
With regard to Civil Case No. 09-cv-02605-WJM-MJW, plaintiff has likewise made no showing that defendants impeded his access to the courts. Furthermore, the court takes judicial notice of the docket in that case which shows that plaintiff had ample opportunity to prosecute that action and his access to the court was not impeded by defendants. For example, in that case, plaintiff was granted leave to amend his pleading (Docket No. 64 in that case), filed a response and affidavit in response to defendants' motion for summary judgment (Docket Nos. 54 and 55), was given an extension of time for file objections to this court's report and recommendation (Docket No. 103), filed such objections (Docket No. 108), filed a motion for reconsideration of the Clerk's Judgment (Docket No. 115), and filed a Notice of Appeal (Docket No. 117). Plaintiff's appeal of Judge Martinez's entry of judgment for the defendants on the merits was just this month dismissed as frivolous by the Tenth Circuit Court of Appeals. (Docket No. 127). Consequently, plaintiff has also not shown any actual injury occurred in that case.
In his Prisoner Complaint, plaintiff makes mention of a 106 action in state court regarding "bogus write ups." However, he testified that the case was dismissed for failure to exhaust. (
Based upon the findings above, this court concludes that the plaintiff has not make a factual showing that any actual injury occurred in any of the actions referenced by the plaintiff in his Prisoner Complaint. Therefore, his claims against defendant Cosner (and all of the defendants) for denial of access to the courts on this ground must be dismissed.
Plaintiff also complains about the creation of a behavioral management plan ("BMP"). Defendants, however, have shown that such BMP simply instructed him to follow the CDOC administrative regulations pertaining to law library access. (
With regard to plaintiff's allegations regarding the purported theft of his legal notebook, his own averments show that he does not know who actually took his notebook. He merely surmises Cosner took it. "Evidence presented must be based on more than `mere speculation, conjecture, or surmise' to defeat a motion for summary judgment."
Based upon the findings above, summary judgment should be granted to defendant Cosner (and actually all of the defendants) on the plaintiff's First Amendment claim of denial of access to the courts.
Factual allegations consisting only of engagement in protected activity, for example filing prison grievances, "[do] not establish the requisite causal connection for [a] retaliation claim. If it did, litigious prisoners could claim retaliation over every perceived slight and resist summery judgment simply by pointing to their litigiousness."
This court concludes that the plaintiff has not alleged specific facts showing retaliation by defendant Cosner (as well as all of the defendants) and does not meet the strict "but-for" standard for causation. Therefore, defendants' motion for summary judgment should be granted with respect to the plaintiff's claims of retaliation.
