Allmon v. Wiley

DEREK I. ALLMON, Plaintiff,

v.R. WILEY, Warden, MR. CHURCH, Captain, and L. BRAREN, SIS Tech, Defendants.

Civil Action No. 08-cv-01183-MSK-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: August 25, 2011

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on: (1) Defendants Wiley and Church's Motion for Summary Judgment (Doc. # 92); (2) Defendant Braren's Motion for Summary Judgment (Doc. # 93) (both filed January 18, 2011); and (3) Defendants' Motion to Strike Exhibits A and C (filed May 26, 2011) (Doc. # 106). Pursuant to the Order of Reference dated July 23, 2008 (Doc. # 8) and the memoranda dated January 19, 2011 (Doc. # 94) and June 2, 2011 (Doc. # 107), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Allmon's Response (filed March 1, 2011) (Doc. # 96),¹ Defendants' Replies (filed April 4, 2011) (Docs. # 102 and # 103), the declarations and exhibits, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Mr. Allmon is currently incarcerated at the United States Penitentiary in Florence, Colorado ("ADX"). Mr. Allmon "and several co-defendants were indicted for drug traffickingand attempting to kill witnesses." United States v. Allmon, 500 F.3d 800, 803 (8th Cir. 2007). A jury found Mr. Allmon guilty of multiple felony charges, including drug trafficking, conspiracy to kill a witness and attempting to kill a witness. See United States v. Allmon, Case No. 4:04CR00169-01-WRW, Judgment in a Criminal Case (Exhibit A to Motion to Dismiss (Doc. # 20-2)). Mr. Allmon was sentenced to multiple terms of life imprisonment, to run concurrently, plus five years. (See id.; Doc. # 92-1 at 22-26 of 26). The sentencing court recommended that Mr. Allmon "be placed at the highest security federal correctional facility." (See Doc. # 20-2 at p. 4 of 8). The sentencing court ordered that Mr. Allmon be prohibited from communicating in writing with twenty nine individuals. (See Exhibit B (Doc. # 20-2), as modified by Exhibit C to Motion to Dismiss (Doc. # 20-3)). The court further ordered that "all communications, either incoming or outgoing, that is not legal correspondence to counsel of record, should be copied by the Bureau of Prisons and sent to the United States Attorney for the Eastern District of Arkansas." (See Doc. # 20-3). In 2010, the sentencing court ordered additional restrictions on Mr. Allmon, United States v. Allmon, 2010 WL 936560 (E.D. Ark. March 15, 2010) (in light of Mr. Allmon's continued attempts to circumvent the court's restrictions on his correspondence, "his right to send mail must be restricted even more") and declined to grant Mr. Allmon's request to remove the restrictions, United States v. Allmon, No. 4:04-cr-00169-BRW, Doc. # 833 (Doc. # 103-1) ('the history of this Defendant and case reveals the necessity of such restrictions").

Mr. Allmon initially alleged three claims for relief pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against seven Defendants for: (1) violation of his First Amendment rights based on the alleged denial of access to the courts and interference with his legal mail; (2) violation of his Fifth Amendment procedural due process rights based on his transfer from the United States Penitentiary in Terre Haute, Indiana ("USP Terre Haute") to a "high intensity unit" at ADX; and (3) violation of his Eighth Amendment rights based on the conditions of confinementat ADX. (See "Prisoner Complaint" (Doc. # 3)). On May 26, 2010, District Judge Weinshienk dismissed Defendants Bureau of Prisons, Nalley, Veach, and Brechbill from the action, dismissed Claim Three, dismissed Mr. Allmon's request for injunctive relief, and dismissed the portion of Claim One that alleged BOP staff's interference with his mail. (See "Order" (Doc. # 80)).

As a result of this Order, the claims that remain in this case are: (1) Plaintiff's First Amendment retaliation claim against Defendant Braren, in her individual capacity, based upon alleged retaliation for Plaintiff's letter to Miles Davis, (2) Plaintiff's First Amendment retaliation claim against Defendants Church and Wiley, in their individual capacities, based upon Plaintiff's reassignment within ADX in November 2007, and (3) Plaintiff's Fifth Amendment due process claim against Defendants Church and Wiley, in their individual capacities, based upon Plaintiff's reassignment from a general population unit to a high security unit within ADX. The claims are for monetary damages only and not injunctive relief.

(See id. at 21 of 23). Mr. Allmon seeks damages in the amount of $400,000.00 against each Defendant. (See Doc. # 3 at 17 of 18).

II. Standard of Review

Defendants Wiley, Church, and Braren move for summary judgment on Mr. Allmon's remaining Claims One and Two pursuant to Fed. R. Civ. P. 56. "Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted).

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. A factual disputeis genuine and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial.

When the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

When the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, the claim or defense must be dismissed as a matter of law.

Sayed v. Profitt, 743 F. Supp. 2d 1217, 1220-21 (D. Colo. 2010) (internal quotation marks and citations omitted).

"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings." Hall, 935 F.2d at 1110 n. 3 (citations omitted). "[S]uch liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiff's use of legal terminology and proper English." Smith v. Krieger, 643 F. Supp. 2d 1274, 1279 (D. Colo. 2009) (citation omitted). The court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F. 3d 925, 927 n. 1 (10th Cir. 2008).

As the Complaint has been sworn to under penalty of perjury (see Doc. # 3 at 17 of 18), the court may treat it as an affidavit. Green v. Branson, 108 F.3d 1296, 1301 n. 1 (10th Cir. 1997). Where the court treats a verified complaint as an affidavit, whether a party's affidavit in opposition to summary judgment is "sufficient to create a genuine issueof material fact must be evaluated in light of the principle that conclusory allegations without specific supporting facts have no probative value." Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (internal quotation marks and citation omitted). See also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) ("[A] verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e).") (internal quotation marks and citation omitted). "[T]here may be cases where the sole reliance on a verified complaint would be insufficient to meet a nonmoving party's burden . . . , especially when the allegations contained in the pleading are merely conclusory." Conaway v. Smith, 853 F.2d 789, 792-93 (10th Cir. 1988). The court must determine whether Mr. Allmon meets his burden of presenting specific facts to overcome Defendants' Motions.

Defendants raise the defense of qualified immunity. Whether Defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007). "[W]e review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Medina...