Opinion
Civil Action 18-cv-00931-WJM-NRN
04-28-2021
HAZHER A. SAYED, Plaintiff, v. SGT. JOSEPH KAUTZ, SGT. LISA MUELLER, SGT. TAMARA RAMPONE, SGT. WITT, CO BARGER, CO MILLER, CO TRUJILLO, CO ADAMS, and CO CESAREZ, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. #170)
N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE
This case is before the Court pursuant to an Order (Dkt. #134) issued by Judge William J. Martinez referring Sergeant Lisa Mueller, CO Tamara Rampone, Sergeant Zachary Witt, CO Michael Barger, CO Courtney Miller, CO Christopher Trujillo, CO Brandon Adams, and CO Phillip Casarez's (collectively “Defendants”) Motion for Summary Judgment (Dkt. #170). Plaintiff Hazer A. Sayed, who proceeds pro se, filed a Response (Dkt. #179), and Defendants filed a Reply (Dkt. #180). On April 7, 2021, the Court held a hearing on the subject motion. See Dkt. #191. The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and recommends that the motion be GRANTED.
All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
Based on the briefing and evidence submitted, the parties agree as follows, unless noted. Where a dispute exists, the Court construes the facts most favorable to Mr. Sayed, the nonmovant. Defendants' motion includes a Statement of Material Facts (see Dkt. #170 at 4-15, ¶¶ 4-47) (hereinafter “SMF”) with references to the record as required by Rule 56 and Judge Martinez's practice standards. Mr. Sayed's Response does not comply with Judge Martinez's practice standards in that he does not admit or deny Defendants' undisputed facts in correspondingly numbered paragraphs. Pursuant to Rule 56(e), where Mr. Sayed fails to address Defendants' assertion of fact, the Court will consider it undisputed. See Rose v. City of Lafayette, Colo. 05-cv-00311-WDM-WJM, 2007 WL 485228, at *1 (D. Colo. Feb. 12, 2007) (where plaintiff “did not provide a response to the Defendants' statements of undisputed facts, ” the court “accepted] the facts as set forth in the Defendants' briefs as undisputed, except to the extent that [the court] can determine the existence of a genuine dispute raised in the response brief”).
Mr. Sayed is a convicted sex offender who has been in the custody of the Colorado Department of Corrections (“CDOC”) since 2006. SMF ¶ 4. Mr. Sayed has a history of filing numerous grievances against CDOC staff at the various correctional facilities where he has been housed. SMF ¶ 5. Last year, in Sayed v. Page Virginia, et al., No. 16-cv-2712-WJM-NRN, 2020 WL 1130069 (D. Colo. Mar. 9, 2020), aff'd sub nom. Sayed v. Page, No. 20-1138, 2021 WL 1390256 (10th Cir. Apr. 13, 2021) (hereinafter “Sayed v. Page”), Judge Martinez entered summary judgment against Mr. Sayed because he failed to exhaust administrative remedies with respect to that suit. One of his claims in that case was that a CDOC employee (Capt. Tidwell) announced over the speaker system at Sterling Correctional Facility (“SCF”) that Mr. Sayed was a sex offender and federal informant. See 2020 WL 1130069, at *1. As we shall see, Mr. Sayed makes a similar claim here.
The two events giving rise to this lawsuit took place while Mr. Sayed was incarcerated at Colorado State Penitentiary (“CSP”). First, on January 4, 2018, Mr. Sayed was called to the visiting room for an attorney visit and asked to step into the attorney-client room. SMF ¶¶ 9-10. Mr. Sayed claims that Sgt. Kautz (who has since been dismissed from the case), Sgt. Mueller, CO Rampone, and an unknown John/Jane Doe (also dismissed) screamed at Mr. Sayed for “snitching” on Capt. Tidwell and Lt. Page by filing grievances and the aforementioned lawsuit, and then used the intercom system to call him a snitch, rat, and sex-offender in the presence of his attorney. SMF ¶¶ 11-12. Mr. Sayed claims that he was then subjected to “physical confrontation” when he was transferred back to his unit, which resulted in injuries to his right eye, arm, legs, and face. Dkt. #179 at 7. However, Defendants submitted evidence that CO Rampone was not even present in the visiting room for these events because she was in training that day. SMF ¶ 13. Moreover, Mr. Sayed did not request protective custody after this incident, and has not identified inmates who heard the statements about Mr. Sayed or participated in or witnessed the subsequent assault. SMF ¶¶ 14-15.
The second episode occurred on October 22, 2018. Mr. Sayed claims that not only did COs Barger, Miller, Trujillo, Adams, and Casarez, and Sgt. Witt fail to stop two inmates from assaulting him that day, after the assault, they used the intercom system and announced to all the unit's inmates that Mr. Sayed was a snitch, rat, and sex offender. SMF ¶ 16. Defendants dispute this version of events. They claim that Sgt. Witt approached Mr. Sayed on October 22, 2018 after noticing that his face was red, but Mr. Sayed said nothing had happened. SMF ¶¶ 34-35. Sgt. Witt reported this to Lt. Matthews, who reviewed a video of the dayroom which showed two inmates go into Mr. Sayed's cell and come out a few seconds later. SMF ¶ 37. Mr. Sayed was sent for medical treatment, which Mr. Sayed refused. SMF. ¶¶ 38-39.
All the Defendants provided affidavits attesting that they were not aware of Mr. Sayed's grievances against Capt. Tidwell and/or Lt. Page, and all state that they did not make any announcements over the intercom about Mr. Sayed, but if they had, they would have been subject to disciplinary action or termination. SMF ¶¶ 43-45.
Mr. Sayed filed grievances against the named Defendants for each incident. SMF ¶¶ 17-29. In each grievance, Mr. Sayed requests as a remedy that CSP staff members stop retaliating against him for exercising his right to access the court and/or use the grievance system. SMF ¶¶ 18, 20, 22, 24, 26, & 28.
In his Fourth Amended Complaint (Dkt. #100), Mr. Sayed seeks damages in the form of injunctive and declaratory relief as well as nominal and punitive damages. SMF ¶ 47.
Defendants now move for summary judgment. They argue that that Mr. Sayed has not exhausted his administrative remedies as required under the Prison Litigation Reform Act (“PLRA”). They further claim that Mr. Sayed cannot establish a retaliation claim against any of the Defendants. Finally, Defendants assert that qualified immunity bars Mr. Sayed's claims.
LEGAL STANDARDS
I. Pro Se Plaintiff
Mr. Sayed is proceeding pro se. The Court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion for Summary Judgment
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). See also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he contents of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
III. Qualified Immunity
The doctrine of qualified immunity protects government officials from individual liability in the course of performing their duties so long as their conduct does not violate clearly established constitutional or statutory rights. Washington v. Unified Gov't of Wyandotte Cty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has asserted a defense of qualified immunity, the burden shifts to the plaintiff who must establish that (1) the defendant violated a right, and (2) the right was clearly established. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). A right is clearly established “when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains.” Washington, 847 F.3d at 1197 (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted)).
ANALYSIS
I. Mr. Sayed's Claim Against CO Rampone
In an affidavit dated December 14, 2020, CO Rampone states that “on January 4, 2018, I was in a training class and not working in the visiting room when [Mr. Sayed] alleges that he was in the visiting room meeting with his attorney.” Dkt. #170-5 at 2, ¶ 3. CDOC training records indicate that she successfully completed this training. Dkt. #170-4 at 2. Mr. Sayed claims that CO Rampone's affidavit is “chock-full of impermissible hearsay, ” and he submitted his own affidavit claiming that CO Rampone made the remarks over the intercom system. See Dkt. #179 at 72-74.
Judge Martinez recently discussed the standards governing evidence presented in a Rule 56 summary judgment motion:
At the summary judgment stage, evidence need not be submitted “in a form that would be admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). Nonetheless, “the content or substance of the evidence must be admissible.” Thomas v. Int'l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995). Thus, for example, at summary judgment a court should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1082 n.5 (10th Cir. 1999).
The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that “[supporting and opposing affidavits shall . . . set forth such facts as would be admissible in evidence, ” Fed.R.Civ.P. 56(e), but also implicit in a court's role at the summary judgment stage. To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1216 (10th Cir. 2004) (affirming summary judgment, in light of the available evidence, because “[j]ury verdicts may not be based on speculation or inadmissible evidence or be contrary to uncontested admissible evidence”). The Tenth Circuit reviews a district court's evidentiary rulings at the summary judgment stage for abuse of discretion. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citing Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003)).Phillips by & through Deadwyler v. Miser, No. 19-cv-3332-WJM-SKC, 2021 WL 720068, at *3 (D. Colo. Feb. 24, 2021).
Here, the evidence contained in CO Rampone's affidavit is not hearsay, as it is based on her personal knowledge. Thus, the Court can consider it.
Moreover, Mr. Sayed's own affidavit does not create a genuine issue of material fact that CO Rampone made the alleged comments over the intercom system on January 4, 2018. Mr. Sayed's conclusory statement in his January 4, 2021 affidavit that “Rampone was calling affiant a snitch, rat, sex offender and government informant“ cannot be reconciled with his earlier testimony. During his October 28, 2020 deposition, Mr. Sayed stated under oath that he did not recognize the voice that spoke over the intercom and could only describe the speaker as a Caucasian female with bleached blonde hair. Dkt. #170-6 at 16-17. He came up with CO Rampone's name by asking his case manager what individuals were working in the visiting room. Id. at 16. But the mere fact that CO Rampone was generally assigned to the CSP visiting room during that time does not mean she was working there on January 4, 2021. Indeed, Defendants have presented admissible evidence that she was not there that day. Accordingly, summary judgment is appropriate as to Mr. Sayed's claim against CO Rampone.
II. Administrative Exhaustion Requirement
The PLRA requires that an inmate exhaust his administrative remedies prior to bringing a suit concerning prison conditions. See 42 U.S.C. § 1977e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). “Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). It also promotes efficiency because “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than through litigation in federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). “[P]roper exhaustion . . . means using all steps that the agency holds out, and doing so properly.” Id. at 90. (emphasis in original) (citation and internal quotation marks omitted). “[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (citation and internal quotation marks omitted).
“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211. The failure to exhaust is an affirmative defense. Id. at 216. Thus, Defendants bear the burden of asserting and proving that Mr. Sayed did not utilize administrative remedies. Id. If the evidence presented does not create a genuine issue of material fact as to whether Mr. Sayed's constitutional claim against Defendants was properly exhausted, the claim must be dismissed without prejudice. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (noting that dismissal of unexhausted claims on summary judgment should be without prejudice)). Exhaustion of administrative remedies under the PLRA is a question of law for the Court to decide. Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010).
If Defendants show that Mr. Sayed failed to exhaust, “the onus falls on the plaintiff to show that remedies were unavailable to him.” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)). That is because a prisoner need only exhaust “available” administrative remedies, i.e., “grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Ross v. Blake, 136 S.Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). There are three circumstances under which remedies are “unavailable”: (1) “when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
It is undisputed that Mr. Sayed did not seek monetary damages in his grievances stemming from the January 4 and October 22, 2018 incidents. Therefore, he did not exhaust administrative remedies with respect to these damages and cannot bring a lawsuit to recover them. See Sayed v. Page, 2020 WL 1130069, at *5 (“Sayed failed to exhaust his administrative remedies because he seeks remedies in this lawsuit that he did not seek in his May 8 Grievances.”). The fact that monetary damages are unavailable under the CDOC's grievance process does not relieve Mr. Sayed from the obligation of pursuing them; in Booth v. Churner, the Supreme Court held that a prisoner must complete the grievance process, regardless of the relief offered through administrative procedures. 532 U.S. at 741. See also Sayed v. Page, 2020 WL 1130069, at *5 (“‘If the unavailability of the requested remedy was sufficient to render a grievance unexhausted, the rule of Booth and Woodford would be irrelevant-it would be impossible to exhaust a grievance where the requested relief was not available.'”) (quoting Gandy v. Raemisch, No. 12-cv-03331-MSK-MJW, 2014 WL 1292799, at *9 (D. Colo. Mar. 31, 2014)).
However, Mr. Sayed did request in his grievances that CSP staff members stop retaliating against him for exercising his constitutional rights, which is directly related to the injunctive relief sought in this action. The administrative exhaustion doctrine does not bar Mr. Sayed from seeking this remedy.
III. Mr. Sayed's First Amendment Retaliation Claim
Defendants argue that Sgt. Mueller and CO Rampone are entitled to summary judgment on Mr. Sayed's first claim for relief because he cannot establish that he suffered any injury due to the comments made over the intercom system, or that the Defendants' conduct was substantially motivated by Mr. Sayed exercising his First Amendment rights.
“It is well-settled that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts.” Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (quotation marks and alterations omitted). Similarly, “[t]he filing of prison grievances is constitutionally protected activity.” Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018). A First Amendment retaliation claim may be shown by proving the following elements:
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiffs exercise of constitutionally protected conduct.Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007). “[W]hen the plaintiff alleges that the defendant's action was taken in retaliation for protected speech, our standard for evaluating that chilling effect on speech is objective, rather than subjective . . . a trivial or de minimis injury will not support a retaliatory prosecution claim.” Eaton v. Meneley, 379 F.3d 949, 954-55 (10th Cir. 2004) (internal quotation omitted).
The first element is satisfied-filing grievances and a lawsuit is a constitutionally protected activity. As to the second element, Defendants note that Mr. Sayed cannot identify any individual who heard the January 4, 2018 announcement over the intercom. They also claim that, despite Mr. Sayed's affidavit, in which he claims that he was assaulted by general population inmates after the announcement, Mr. Sayed testified during his deposition that he was not injured in any assault, nor did he report an injury from an assault or mention it in any of the grievances he filed afterwards. Therefore, according to Defendants, any injury suffered by Mr. Sayed is trivial or de minimus and did not have a chilling effect because Mr. Sayed continued to file grievances.
This is not persuasive. Mr. Sayed alleges that he was called a snitch and a sex offender in the presence of other inmates. The Court has no trouble concluding that, in the prison environment, being so labelled constitutes an injury that would chill a person of ordinary firmness from continuing to engage in constitutionally protected conduct. This is true whether or not Mr. Sayed was physically injured in the assault by other unnamed inmates. And the fact that Mr. Sayed persisted in filing grievances after the incident is irrelevant; the standard is an objective, not subjective, one.
Nevertheless, Sgt. Mueller and CO Rampone are entitled to summary judgment on this claim because there is no genuine issue of material fact that they were substantially motivated by Mr. Sayed's utilization of the grievance process or his lawsuit against Capt. Tidwell and Lt. Page. Whether Defendants' response was “substantially motivated” by protected conduct may be inferred where evidence showed: (1) Defendants were aware of the protected activity; (2) Mr. Sayed directed his complaint to Defendants' actions; and (3) the alleged retaliatory act “was in close temporal proximity to the protected activity.” Gee, 627 F.3d at 1189.
All the Defendants in this case worked at CSP. Capt. Tidwell and Lt. Page, on the other hand, worked at SCF. According to Defendants' affidavits, none of them know either Capt. Tidwell or Lt. Page and none of them knew that Mr. Sayed had filed a lawsuit against them. See Dkt. ##170-15 - 170-21. Any temporal relationship is tenuous at best; the incident at the foundation of the Sayed v. Page lawsuit took place in April 2015 and suit was filed in November 2016, well before the events here. And the Court agrees with Defendants that Mr. Sayed's allegations there are suspiciously similar to those asserted in this case.
In his Response, Mr. Sayed appears to attempt to change course, arguing that Sgt. Mueller and CO Rampone were not retaliating against him for his lawsuit against Capt. Tidwell or Lt. Page, but because he had filed other grievances against them. This is directly contradicted by the allegations contained in the operative pleading and Mr. Sayed's prior complaints. It also appears to be untrue that Mr. Sayed filed grievances against either Defendant. See Dkt. #180-4. In any event, the Court will disregard this assertion.
Because Mr. Sayed has not set forth any specific facts that link Sgt. Mueller and CO Rampone's alleged conduct to Mr. Sayed's exercising of his First Amendment rights, they are entitled to summary judgment on the first claim for relief.
IV. Mr. Sayed's Eighth Amendment Deliberate Indifference/Failure to Protect Claim
Defendants also seek summary judgment on Mr. Sayed's second claim for deliberate indifference/failure to protect under the Eighth Amendment stemming from the October 22, 2018 incident.
A violation of the Eighth Amendment occurs when a prison official is deliberately indifferent to a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Although prison officials have a duty to protect inmates from violence at the hands of other inmates, not every injury resulting from violence between inmates results in constitutionally liability. Id. at 833-34. An inmate asserting an Eighth Amendment claim must demonstrate: (1) that the harm was “sufficiently serious” under an objective standard; and (2) that the prison officials had “subjective knowledge of the risk of harm” but did nothing to prevent such harm. Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008).
First, to satisfy the objective component of the standard, an inmate “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. A prison official's “act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Next, to satisfy the subjective component of the standard, the inmate must show both that the prison official was “aware of facts from which the inference could be drawn that a substantial risk of harm exists” and that the prison official did in fact “draw the inference.” Id. at 837. “[Deliberate indifference entails something more than mere negligence” but “less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Here, Mr. Sayed has not established that that either component of the deliberate indifference standard has been satisfied. As to the objective component, although he alleges in the operative pleading that he suffered severe facial lacerations that required stitches and chipped tooth, the evidence shows that Mr. Sayed was sent for a medical exam after Sgt. Witt noticed his face was red, but that Mr. Sayed refused treatment. Dkt. #170-23. No bleeding or lacerations were observed. Id. Mr. Sayed did not complain of any injury at the time.
As to the subjective prong, Mr. Sayed has not demonstrated that Sgt. Witt, CO Barger, CO Miller, CO Trujillo, CO Adams, and CO Cesarez were aware that the assault was going to occur. Mr. Sayed did not request protective custody or inform these Defendants that he feared for his safety. See Dkt. 176 at 20.
Apparently recognizing these shortcomings, in his Response, Mr. Sayed argues that the Defendants are liable because they called him a snitch to other inmates. However, they allegedly did this either during or after the assault, which raises obvious causation issues. And, even under these circumstances, the objective prong has not been satisfied. In short, Mr. Sayed's Eighth Amendment rights were not violated, meaning Defendants are entitled to qualified immunity.
RECOMMENDATION
For the reasons set forth above, it is hereby RECOMMENDED that Motion for Summary Judgment (Dkt. #170) be GRANTED, and that judgment enter in favor of Defendants and against Plaintiff.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).