Opinion
Civil Action 22-cv-00067-RMR-STV
06-15-2023
WILLIAM STEVENSON, Plaintiff, v. JOANA RODRIGUEZ, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant's Motion for Summary Judgment (the “Motion”). [#117] The Motion has been referred to this Court. [#119] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.
The undisputed facts are drawn, where possible, from the Statement of Facts contained in Defendant's Motion for Summary Judgment and Plaintiff's response thereto. [#138-1 at 1-23] The Court refers to the sequentially numbered facts set forth in the Statement of Facts as “SOF#.” Due to the disputed nature of many facts underlying this matter, the Court also cites directly to the exhibits cited by the parties, noting the source of the asserted fact when it does so.
Plaintiff has been in the Colorado Department of Corrections (“CDOC”) custody since 2008, and is presently an inmate at Sterling Correctional Facility (“SCF”). [#138-1 at SOF1] From May 2021 to September 2021, Plaintiff was assigned as the Offender Care Aid (“OCA”) for inmate Michael Grau. [Id. at SOF2, 28] OCAs are generally responsible for providing assistance to inmates who have significant physical limitations or extensive medical needs. [Id. at SOF3] Per the CDOC's assignment description, an OCA's “Essential Functions” include: “Assist[ing] offenders in wheelchairs with minimal activities of daily living [including] [f]ood tray retrieval/return” and “[d]elivery of items to alternate locations or assigned offenders as directed by supervising staff.” [#117-3 at 12]
Mr. Grau attests that, during the relevant time period, he suffered from a number of medical conditions that made it difficult for him to walk more than 10-15 feet at a time, and stated that sitting in a wheelchair “cause[d] prolonged and unnecessary pain and discomfort.” [#139-1 at 1, 50] According to Plaintiff, due to Mr. Grau's extensive medical needs, Plaintiff received verbal authorization from Sergeant Nava and Shift Lieutenant Harris in May 2021 for Plaintiff to pick up a to-go tray of food for Mr. Grau and deliver it to Mr. Grau's cell.[#138-1 at 56-58 (28:9-29:8, 30:20-24)] Plaintiff testified that he then received a written and signed note from Sergeant Jackson in June 2021 stating that Plaintiff was authorized to pick up a to-go tray for Mr. Grau, and was told that Sergeant Jackson would email all the staff to ensure that Plaintiff could receive the to-go tray. [Id. at 59-60, 63 (31:11-32:15, 35:9-14); #139 at ¶ 9]
Sergeant Nava's Declaration, included as an exhibit to Defendant's Motion, does not address this allegation. [See #117-1 at 1-2]
Defendant attests that she is a food services sergeant with CDOC who oversees the prisoner feeding process. [#117-4 at ¶¶ 1, 4] Plaintiff testified that, at some point in July, Plaintiff asked Defendant for a to-go tray and showed her the written note from Sergeant Jackson. [#138-1 at 66 (38:11-23)] According to Plaintiff, Defendant refused to provide Plaintiff with a to-go tray. [Id. at 66-67 (38:23-39:3)] Plaintiff states that he did not notify any other CDOC staff, and Mr. Grau did not receive a to-go tray for that meal. [Id. at 67 (39:7-15)]
Plaintiff testified that, at some point in August, Plaintiff again asked Defendant for a to-go tray and Defendant again refused, telling Plaintiff that “there were no more to-go trays” and “that was over.” [Id. at 67-68 (39:25-40:9)] According to Plaintiff, later that meal Plaintiff saw Defendant provide to-go trays for other OCAs. [Id. at 69 (41:2-25); see also #139-1 at 6 (another OCA attesting that Defendant gave him a to-go tray for his client on the same day that Plaintiff was denied a to-go tray, and that he saw two other inmates receive to-go trays from Defendant)] Plaintiff asserts that he returned and again asked for a tray for Mr. Grau, and Defendant again refused. [#138-1 at 70 (42:1-4); see also #139-1 at 6] Plaintiff testified that he then found another officer, Sergeant Jones, and informed him what had happened. [#138-1 at 70 (42:6-14)] Plaintiff states that he watched Sergeant Jones go behind the serving line and speak to Defendant. [Id. at 7072 (42:14-17, 43:24-44:11)] According to Plaintiff, Sergeant Jones then returned with a to-go tray and handed it to Plaintiff, and Plaintiff returned to his unit with the tray. [Id. at 70, 72 (42:14-17, 44:12-18); see also #139-1 at 6] Plaintiff testified that he complained about Defendant's conduct to Sergeant Nava, who supervised OCAs. [#138-1 at 73-74 (45:13-46:3)]
Sergeant Nava attests that “[a]t no point did [Plaintiff] ever submit any verbal or written complaints to [her] regarding [Defendant].” [#117-1 at ¶ 14]
The third incident asserted by Plaintiff also occurred in August. [Id. at 78 (50:1112)] Plaintiff testified that he again asked for a to-go tray, and Defendant again refused. [Id. at 78 (50:13-17)] Plaintiff approached another officer, Sergeant Omman, and informed him what had happened and asked for a to-go tray. [Id. at 78-79 (50:13-51:15)] Plaintiff watched Sergeant Omman go behind the serving line and speak to Defendant. [Id. at 79 (51:15-17)] When Sergeant Omman returned, he told Plaintiff that Defendant was preparing a tray. [Id. at 79 (51:18)] When Plaintiff had not received a tray after about ten minutes, Plaintiff approached yet another officer, Sergeant Carnes, and explained the situation and that he was waiting for a to-go tray. [Id. at 79-80 (51:22-52:3)] Sergeant Carnes went behind the serving line and returned with a tray for Plaintiff. [Id. at 80 (52:35)]
The final incident occurred on September 7, 2021. [#138-1 at SOF9] Plaintiff testified that he did not see any CDOC staff in the serving line, so he asked the inmate who was handing out trays for a to-go tray. [Id. at 88 (60:2-10)] When Plaintiff returned to pick up the tray, Defendant was working at the serving line and refused to give Plaintiff a to-go tray.[See #138-1 at SOF9-10; see also id. at 88 (60:12-15)]
According to Defendant, this was because no OCA clients were authorized a to-go tray, including Plaintiff's client. [#117-4 at ¶ 9] Another inmate who was filling in as an OCA on September 7, however, attests that Defendant gave him a to-go tray for his client shortly before denying a to-go tray to Plaintiff. [#139-1 at 9]
After an interaction,Plaintiff testifies that he told Defendant that he would file a grievance against her if she did not stop harassing him, to which Defendant responded: “If you do, you won't have to worry about picking up trays anymore.” [Id. at 88 (60:1623); see also #139-1 at 65 (40:23-41:1) (witness testifying that Plaintiff said “if you don't stop harassing me, I'm going to grieve you,” and that Defendant responded “[a]nd if you do, you will have no more trays to pick up”)] Plaintiff states that he then immediately left and approached Sergeant Omman. [#138-1 at 88 (60:24-25)] Plaintiff testified that he complained about Defendant's refusal to provide a to-go tray and asked if Sergeant Omman would retrieve a to-go tray for Plaintiff. [Id. at 91 (63:10-15)] According to Plaintiff, Sergeant Omman declined, stating that he “didn't want to get involved” and that Plaintiff would be “better off talking to a shift [commander].” [Id. at 91-92 (63:15-17, 64:1922)] Plaintiff testified that he then “tracked down” Lieutenant Diaz and informed him of the situation and Plaintiff's difficulties with Defendant.[Id. at 93 (65:3-14)] According to Plaintiff, he asked Lieutenant Diaz if Lieutenant Diaz would get a to-go tray for Mr. Grau, and Lieutenant Diaz said that he would. [Id. at 93 (65:15-17)] Lieutenant Diaz went into the kitchen and spoke to Defendant. [Id. at 99 (71:17-21)] Lieutenant Diaz then returned with a to-go tray that he handed to Plaintiff, and Plaintiff left the dining hall. [Id. at 99-100 (71:4-72:20)]
According to Defendant and the incident report, Plaintiff “became agitated” and “began to curse and yell,” calling Defendant a “bitch” and saying “why do I always have a problem with you, cunt.” [##117-4 at ¶ 9; 117-6] Plaintiff denies calling Defendant by any derogatory names [#138-1 at 94 (66:15-17)], and a witness to the exchange never heard Plaintiff call Defendant by any derogatory names. [#139-1 at 66 (42:25-43:3)]. Defendant also attests that the interaction lasted about five minutes. [#117-4 at ¶ 9] The witness estimated that the interaction lasted “[a]pproximately a couple of minutes; two, three, four minutes.” [#139-1 at 65 (40:8-19)] Plaintiff appears to dispute that the interaction lasted even two minutes, but relies on this witness's testimony, arguing that “[i]f it could have been two minutes, it certainly could have been one minute.” [#138 at 14] The Court notes the dispute as to the length of the interaction, but ultimately finds that the precise length of the interaction does not have a bearing on the outcome of the pending Motion.
According to Defendant, “[a]t no point during this incident did [Plaintiff] say or threaten to file a grievance against [her].” [#117-4 at ¶ 10]
Defendant asserts that she “called out into the dining hall for one of the officers to call East Security to remove [Plaintiff] from the dining hall,” and that Lieutenant Diaz responded to that call. [#117-4 at ¶¶ 9, 11] Lieutenant Diez attests that he “received a call over the radio to assist in the Northeast Dining Hall due to an offender arguing with staff.” [#117-9 at ¶ 6] Plaintiff testified that no security was called [#138-1 at 97 (69:8-13)], and another witness to the interaction testified that Defendant “didn't call for help or anything like that” [#139-1 at 66 (45:7-12)].
Immediately after this event, Defendant called the Health Services Administrator, Vickie Nira, and reported that Plaintiff had requested an unauthorized to-go tray and improperly disclosed Mr. Grau's medical information. [#138-1 at SOF#18] Defendant noted her intent to “write up” Plaintiff through filing an incident report, and Ms. Nira requested that the incident report include that Plaintiff disclosed Mr. Grau's medical information. [Id. at SOF##20-21] Defendant filed an incident report the same day. [Id. at SOF#22] The incident report states that Plaintiff “demanded that [Defendant] were to make them a to[-]go tray for an offender in the unit,” and “became agitated” when told that he was not authorized to receive one. [#117-6 at 2] It then states that Plaintiff “shared their client[']s medical information in a chow hall full of offenders” and “began to curse and yell at [Defendant] . . . creating a halt in feeding.” [Id.]
Upon review of the incident report, Ms. Nira requested that Plaintiff be terminated as an OCA. [See #138-1 at SOF29; see also #117-2 at ¶ 11] Ms. Nira attests that she “made the decision to request [Plaintiff's] termination as an OCA because [Plaintiff] disclosed his patient's protected medical information to staff and offenders in the dining hall . . ., and for abusing his status as an OCA by attempting to retrieve prohibited to-go trays.” [#117-2 at ¶ 11] Plaintiff was terminated as an OCA shortly thereafter. [#138-1 at SOF#28]
Plaintiff initiated this lawsuit on January 10, 2022. [#1] Plaintiff's operative Complaint, filed February 22, 2022, alleges a single claim of retaliation in violation of the First Amendment against Defendant. [See generally #21] Plaintiff seeks money damages against Defendant in her individual capacity, and declaratory and injunctive relief against Defendant in her official capacity. [Id. at 6] On February 7, 2023, Defendant filed the Motion before the Court. [#117] Plaintiff has responded to the Motion[#138], and Defendant has replied [#150]. Plaintiff then filed a surreply, which the Court accepted as filed. [##160; 161]
Plaintiff's exhibits came to the Court in two separate envelopes, causing some to be filed as a separate docket entry. [See ##138-2; 139; 139-1]
II. STANDARD OF REVIEW
Summary judgment is appropriate only 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., 41 F.3d 567, 569 (10th Cir. 1994). When the moving party does not bear the burden of persuasion at trial, the movant may satisfy its initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 67071 (10th Cir.1998). If the movant carries this initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Id. at 671 (quotation omitted).
“[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, Inc., 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. See 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 Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
III. ANALYSIS
To state a First Amendment retaliation claim against a government official, a plaintiff must prove three 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 plaintiff's exercise of constitutionally protected conduct.Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). In the Motion, Defendant makes three primary arguments. First, Defendant argues that she is entitled to qualified immunity on Plaintiff's individual capacity claim for damages because neither Plaintiff's informal verbal complaints nor Plaintiff's threat to file a grievance against Defendant are clearly established as constitutionally protected activities. [#117 at 9-12] Next, Defendant argues that Plaintiff cannot show that Defendant's action was motivated by Plaintiff's protected speech because the undisputed facts establish that Plaintiff's own misconduct, and not his protected speech, caused the incident report and Plaintiff's termination as an OCA. [Id. at 13-17] Finally, Defendant argues that Plaintiff cannot show that Defendant had any knowledge of Plaintiff's informal complaints made to other officers. [Id. at 17-18] The Court addresses each argument in turn.
A. Clearly Established Constitutionally Protected Activity
Plaintiff alleges that Defendant retaliated against him for complaining about Defendant's conduct to Lieutenant Diaz, and for complaining directly to Defendant about her conduct and threatening to file a grievance against Defendant if the conduct continued. [#21 at ¶ 27] Defendant argues that these activities are not constitutionally protected, or at least are not clearly established as such. [#117 at 9-12]
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted). Once the defense of qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
“To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent” such that it is “settled law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). The Supreme Court has "not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity." Id. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Tenth Circuit has explained the “clearly established” prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established.... Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted).
Thus, as summarized by the Tenth Circuit, “[t]o survive summary judgment on a First Amendment retaliation claim, a plaintiff must show that the adverse action by the defendant was in response to constitutionally protected activity. And to prevail on a damage claim under § 1983, the showing that the activity was constitutionally protected must be supported by clearly established law.” Faircloth v. Schwartz, 673 Fed.Appx. 791, 793 (10th Cir. 2016) (unpublished) (citations omitted).
The Court agrees with Defendant that no Supreme Court or Tenth Circuit opinion directly establishes that a prisoner's informal, verbal complaints of officer misconduct are constitutionally protected. See Bueno v. Chekush, 355 F.Supp.3d 987, 994 n.3 (D.Colo. 2018) (“The Tenth Circuit has not explicitly addressed whether an informal complaint is constitutionally protected activity in the retaliation context, but has assumed without deciding that it is.” (collecting cases)). The Court determines, however, that the “clearly established weight of authority from other courts” has found that verbal complaints such as Plaintiff's are subject to First Amendment protection.
The section of Plaintiff's response brief that appears to be responsive to Defendant's qualified immunity argument cites the following cases: Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006); Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); Chrisco v. Koprivnikar, No. 16-CV-01553-MEH, 2017 WL 1344450, at *3 (D. Colo. Apr. 12, 2017); and Dawson v. Audet, 636 Fed.Appx. 753, 755 (10th Cir. 2016). [#138 at 22-25 (section titled “Plaintiff Engaged in a Constitutionally Protected Right by Complaining and Reporting [Defendant's] Continued Acts of Harassment and Misconduct”)] None of these cases, however, demonstrate that a verbal complaint was clearly established as constitutionally protected activity at the time of the conduct. In Fogle, the Tenth Circuit was considering whether the plaintiff's claims should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 435 F.3d at 1262. In considering the plaintiff's First Amendment retaliation claim, in which the plaintiff alleged that prison officials had taken adverse action against him in retaliation for “complaining,” the court determined that because “[the plaintiff's] ‘complaints' could be referring to internal prison appeals and/or formal grievances to prison officials” there was “an arguable basis for [the plaintiff's] claim.” Id. at 1263-64 (emphasis in original). This was because “if in fact [prison] officials retaliated against [the plaintiff] based on his filing administrative grievances, they may be liable for a violation of his constitutional rights.” Id. at 1264 (emphasis added). That is, the court did not hold that threatening to grieve was a constitutionally protected activity, but instead that the plaintiff's imprecise allegation that could encompass a wide range of behavior created an arguable basis for a claim. In Gee, the plaintiff alleged that he had “fil[ed] specific grievances against Defendants,” as opposed to making informal verbal complaints or threatening to file a grievance. 627 F.3d at 1189. Similarly, in Chrisco the plaintiff alleged that prison officials retaliated against him based on the “numerous grievances [the plaintiff] had filed.” 2017 WL 1344450, at *3. Finally, in Dawson, the Tenth Circuit explicitly declined to “determine as a general matter whether a threat to file a prison grievance constitutes protected activity, or whether [the plaintiff's] First Amendment right to make such a threat was clearly established at the time [a prison official] terminated his employment.” 636 Fed.Appx. at 757.
A plaintiff bears the burden of citing to clearly established law. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). This duty typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim- where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019). The Court has therefore conducted additional inquiry as appropriate to determine whether the relevant laws of Plaintiff's claims were clearly established as of the dates of these events.
It is well-settled among the Circuits that an inmate's “filing of a grievance qualifies as protected activity.” Johnson v. Whitney, 723 Fed.Appx. 587, 594 (10th Cir. 2018); see Booker v. S.C. Dep't of Corr., 855 F.3d 533, 545 (4th Cir. 2017) (collecting cases and finding that, pursuant to the “overwhelming consensus of authority,” the plaintiff's “right to file a prison grievance free from retaliation was clearly established under the First Amendment.”). Here, Plaintiff does not assert that he was retaliated against for filing an official prison grievance but through informal complaints to other officers and to orally threatening to file a grievance against Defendant. [#138 at 23-24] Nonetheless, “prior to the events giving rise to this action, at least four circuits had recognized in published decisions ‘that the form of the complaint . . . is of no constitutional significance' and that ‘even . . . verbal' complaints fall within the purview of protected activity under the First Amendment.” Broggin v. BRRJA, No. 7:21-CV-00180, 2022 WL 875040, at *11 (W.D. Va. Mar. 23, 2022) (quoting Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017); see also Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018) (“An inmate has a right to file ‘non-frivolous' grievances against prison officials on his own behalf, whether written or oral.” (citation omitted)); Mack v. Warden Loretto FCI, 839 F.3d 286, 298-99 (3d Cir. 2016) (holding that an oral grievance that “sufficiently and timely put prison officials on notice that [the plaintiff] was seeking redress, was conveyed to prison officials in a reasonable manner, and concerned conduct that the prison itself prohibits” constituted protected activity); Watson v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016) (“For purposes of [an inmate's] retaliation claim, we cannot discern a substantive distinction between retaliation for informing prison officials of an intent to file a grievance or requesting the necessary forms to do so on the one hand, and actually filing such a grievance on the other.”); Jones v. Williams, 791 F.3d 1023, 1035-36 (9th Cir. 2015) (“The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities .... Accordingly, [the plaintiff's] [verbal] complaints to his supervisor and statements of intention to file suit were conduct protected by the First Amendment.” (citations omitted)); Pearson v. Welborn, 471 F.3d 732, 741-42 (7th Cir. 2006) (explaining that a prisoner's “form of express[ing] [a complaint]-i.e., written or oral-[does not] dictate[] whether constitutional protection attaches,” as “[n]othing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form,” and holding that the defendant was not entitled to qualified immunity because “a reasonable public official in [the defendant's] position would understand that retaliating against a prisoner on the basis of his complaints about prison conditions is unlawful”). And in an unpublished case, the Fourth Circuit vacated a district court's holding that the plaintiff's “verbal complaint to [the defendant's] supervisor . . . was not protected First Amendment speech,” explaining that the district court's holding was contrary to the clearly established notion that “prisoners have a . . . First Amendment right ‘to file a prison grievance free from retaliation.'” Patton v. Kimble, 717 Fed.Appx. 271, 272 (4th Cir. 2018) (unpublished) (quoting Booker, 855 F.3d at 545). Based upon the published, out-of-circuit authority, the Court concludes that it was clearly established at the time of the incidents in question that Plaintiff had engaged in constitutionally protected speech, even if that speech was oral and not written.
This Court's finding that Plaintiff's informal complaints were clearly established to be constitutionally protected speech is further supported by caselaw within the Tenth Circuit. In Encinas v. Sanders, a district court determined that an inmate's informal oral complaints about an officer's conduct made to other inmates constituted protected speech, and that the defendants were not entitled to qualified immunity because this protection was clearly established at the time of the incident. 582 F.Supp.3d 861, 86568 (D.N.M. 2022). The district court found that “filing a grievance or a lawsuit-and attempting or declaring an intention to file a grievance or lawsuit-is protected conduct,” and that “making a report to a corrections officer clearly is constitutionally protected speech.” Id. at 865-66. The court went on to explain that “contrary to Defendants' argument, a report does not lose its constitutionally-protected status solely for being made orally rather than in writing.” Id. at 866 (citing Pearson, 471 F.3d at 741 and Maben, 887 F.3d at 265). The court reasoned that:
The relevant oral reports in Encinas took place before February 2019 and therefore before the speech at issue in this case. 582 F.Supp.3d at 865.
[There is] no reason to distinguish an oral declaration of [misconduct] to another inmate from an oral declaration of the [misconduct] to staff. Because the right to report [misconduct]-and even declaring an intention to report [misconduct]-is protected, it follows that reporting [misconduct] to another inmate is protected.Id. at 867. The court explained that “it would be counterintuitive to find that inmates have First Amendment protections when they formally report an [issue], but not when staff happen to get wind of the allegations before a formal report has been made and take preemptive actions to discourage the report,” as “[a]n inmate is likely to be dissuaded from filing a complaint when her intention to do so is met with retaliation.” Id. at 867.
Similarly, a court in this District rejected a Magistrate Judge's recommendation to grant a defendant qualified immunity under similar circumstances as those in the instant case. Conkleton v. Muro, No. 08-CV-02612-WYD-MEH, 2011 WL 1119869, at *2-4 (D. Colo. Mar. 28, 2011) (rejecting in part Conkleton v. Muro (Conkleton Recommendation), No. 08-CV-02612-WYD-MEH, 2011 WL 1135370, at *1 (D. Colo. Jan. 31, 2011)). In Conkleton, an inmate allegedly stated to the defendant that the inmate “had had enough of [the defendant's] harassment, and was going to pursue a grievance on the matter,” and the defendant allegedly retaliated by having the inmate placed in segregation. Id. at *2. The Magistrate Judge recommended granting the defendant qualified immunity on the ground that “neither the Tenth Circuit nor the Supreme Court have addressed whether a threat to file a grievance, as compared to the actual filing of a grievance, is protected activity under the First Amendment.” Id. (citing Conkleton Recommendation, 2011 WL 1135370, at *13-14)). The court rejected this recommendation, finding retaliation in response to complaints that preceded an official grievance chilled inmates from engaging in the grievance process, and that “it is clearly established that denying a person the ability to report an alleged constitutional violation through a grievance process or complaint is an infringement of protected speech.” Id. at *3; see also Rogers v. Garcia, No. 08-CV-02821-WYD-MJW, 2010 WL 3547432, at *5 (D. Colo. Sept. 3, 2010) (finding that “the right [of an inmate] to report a crime or other misconduct” was clearly established (emphasis added)).
Defendant relies on Faircloth v. Schwartz, an unpublished Tenth Circuit opinion which held that an inmate's threat to file a grievance was not clearly established as constitutionally protected activity. 673 Fed.Appx. at 793. In Faircloth, it appears that the plaintiff made a threat to file a grievance in passing, which was overheard by the defendant and allegedly acted upon. Id. (“The [district] court's opinion does not mention the threat to file a grievance, and the brief objects that ‘the complaint clearly stated that Faircloth was going to file a grievance and defendant Schwartz overheard it and while Faircloth was on his way to file the grievance she caused a false report to be filed.'” (quoting Appellant's Brief at 3)). The Tenth Circuit concluded that Plaintiff had not identified a clearly established right that had been violated, but also noted that it “w[ould] not reverse the judgment below based on Mr. Faircloth's vague and undeveloped challenge to the merits of the [district] court's ruling.” Id. at 793-94.
Faircloth, however, is readily distinguishable. The conduct Mr. Faircloth complained about occurred in 2012. Faircloth v. Schwartz, No. 12-cv-02764-REB-KLM, 2016 WL 865487, at *2-4 (D. Colo. Mar. 7, 2016). That conduct predated the Third, Sixth, and Ninth Circuit decisions discussed above. Mack, 839 F.3d at 298-99; Maben, 887 F.3d at 265; Jones, 791 F.3d 1035-36. Thus, while it may not have been clearly established that prisoners have a constitutional right to orally challenge and threaten to grieve prison officials at the time of the conduct at issue in Faircloth, the intervening three published circuit court decisions have clearly established that right.
It also predated the unpublished Fourth Circuit decision. Patton, 717 Fed.Appx. at 272.
The Court notes the dispute regarding the language that Plaintiff used in addressing Defendant. See supra note 5. To the extent that Plaintiff's complaints were “confrontational, derogatory, and disorderly,” such “insubordinate” complaints by an inmate would not be protected activity. Turner v. Felzien, No. 11-cv-03033-PAB-MJW, 2013 WL 1093001, at *2 (D. Colo. Mar. 15, 2013). Plaintiff, however, presents a dispute as to the contents of his complaint to Defendant, and Defendant does not argue that Plaintiff's speech was unprotected on this ground.
To summarize, the Court finds that for the purposes of a retaliation claim it is clearly established that an inmate's petition for redress of grievances is constitutionally protected speech. See Turner v. Safley, 482 U.S. 78, 84 (1987) (citing Johnson v. Avery, 393 U.S. 483 (1969)). This is true regardless of whether that petition takes the form of a formal written grievance, an informal complaint to a corrections officer, or something in between. See, e.g., Pearson, 471 F.3d at 741 . The fact that the protected complaint contained an embedded threat to file an official grievance does not impact the complaint's protection. Accordingly, a reasonable officer in Defendant's position would understand that retaliating on the basis of Plaintiff's complaints was unlawful.
Defendant also argues that Plaintiff's verbal complaints were not protected because they concerned conduct that violated prison rules (i.e. seeking unauthorized to-go trays). [#117 at 10-13 (citing Dawson v. Audet, 636 Fed.Appx. 753 (10th Cir. 2016)] However, as discussed in more detail below, there is a genuine factual dispute as to whether Plaintiff was authorized to receive a to-go tray for Mr. Grau.
B. Plaintiff's Misconduct
An inmate bringing a claim of First Amendment retaliation “‘must prove that “but for” the [defendant's] retaliatory motive, the incidents to which he refers . . . would not have taken place.'” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990)). “[A]n inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity.” Id. Thus, if the undisputed facts indicate that a defendant's allegedly retaliatory actions were taken based on legitimate penological interests, then summary judgment in favor of that defendant is appropriate. See Brooks v. Gabriel, 738 Fed.Appx. 927, 933-34 (10th Cir. 2018) (affirming a grant of summary judgment for failure to show that “but for” the defendant's retaliatory motive the adverse actions would not have taken place when “the record indicate[d] that the [adverse actions] w[ere] a direct result of [the plaintiff's] non-compliance with the posted operation rules”); but see Peterson, 149 F.3d at 1144 (“‘[The prohibition against retaliation for the exercise of an inmate's constitutional rights] applies even where the action taken in retaliation would be otherwise permissible.'” (quoting Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990)).
Defendant argues that the filing of the incident report and Plaintiff's resulting termination as an OCA were actions taken in response to Plaintiff's violation of prison rules and were reasonably related to legitimate penological interests. [#117 at 13-17] Defendant argues that Plaintiff broke prison rules by: (1) requesting an unauthorized togo food tray for Mr. Grau [Id. at 14], (2) disclosing Mr. Grau's protected health information in a crowded dining hall [Id. at 14-15], and (3) advocating and creating a facility disruption [Id. at 15-16]. The Court examines each assertion of misconduct in turn.
First, Defendant argues that Plaintiff violated prison rules by requesting an unauthorized to-go food tray for Mr. Grau. [Id. at 14] But whether Plaintiff was authorized to receive a to-go food tray is disputed. While Ms. Nira's declaration states that on the date of the incident “no offender was authorized a to-go tray” for medical reasons [#117-2 at ¶ 10], according to Plaintiff's testimony he received authorization from various CDOC staff to retrieve a food tray for Mr. Grau for medical reasons. [#138-1 at 56-60, 63 (28:929:8, 30:20-24, 31:11-32:15, 35:9-14); 139 at ¶ 9] Defendant appears to argue that the authorization that Plaintiff allegedly received does not suffice, and that Plaintiff must show proof of an approved medical accommodation for Mr. Grau. [#150 at 3] However, based on the evidence presented, Defendant has failed to establish that a medical accommodation, as opposed to general staff authorization, was required for Mr. Grau to receive a to-go tray. [See ##117-2 at ¶ 7 (Ms. Nira attesting that: “As a general rule, OCAs are not authorized to take ‘to-go' trays to their clients. CDOC staff would need to grant an offender a special accommodation to receive ‘to-go' trays in their cell from their OCA.” (emphasis added)); 117-3 at 5 (CDOC Offender Assignment Description listing as an “essential function” of an OCA: “Delivery of items to . . . assigned offenders as directed by supervising staff” (emphasis added)); 117-4 at ¶ 5 (Defendant attesting that: “Offenders are required to eat their meals in their respective dining halls. If an offender were for some reason authorized to eat a meal in their cell, they would receive a ‘to-go' tray” (emphasis added))] Moreover, it appears undisputed that Plaintiff ultimately received a to-go tray for Mr. Grau each time he sought assistance from a supervisor, including the September 7 incident. [#138-1 at 70 (42:13-17); 82 (54:9-17); 99 (71:4-6); see also #117-9 at ¶ 11 (Lieutenant Diaz attesting that he retrieved a “to-go” tray for Plaintiff's client after Plaintiff's request)] As a reasonable juror could infer that multiple CDOC supervisors would not violate prison policy on separate occasions, this fact supports Plaintiff's argument that his client was in fact legitimately authorized to receive food in his cell.
Defendant argues that Plaintiff lacks personal knowledge as to whether Mr. Grau was authorized to receive a tray and Plaintiff's statements are based on hearsay. [#150 at 34] But Plaintiff testified that he was directly given authorization from CDOC staff, meaning that he had personal knowledge of the authorization given to him. Further, the Court determines that the statements granting Plaintiff authorization to retrieve a to-go tray are not hearsay assertions but are instead more akin to verbal acts by the CDOC staff. See Fed. R. Evid. 801(c) advisory committee's note to 1972 amendment (“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”).
Defendant also cites to evidence that on the day in question no OCA clients were authorized to receive to-go trays, meaning that Plaintiff's client could not have been authorized. [See #117-4 at ¶ 9 (Defendant attesting that: “I explained to [Plaintiff] that no OCA clients were authorized a ‘to-go' tray”)] This fact is disputed for the reasons just discussed, as Plaintiff has presented some evidence that his client received authorization. Moreover, Defendant does not appear to dispute Plaintiff's testimony that at least one other OCA received a to-go tray for his client from Defendant on the day in question with no issue. [#139-1 at 9 (another OCA attesting that “[w]hen I requested [a to-go] tray [for a client on September 7, 2021], [Defendant] had it prepared to handed it directly to me through the serving line window”)] Again, a reasonable juror could infer from this fact that some OCA clients were in fact authorized to receive to-go trays, or at least that Defendant's incident report was motivated by Plaintiff's protected activity as opposed to requesting an unauthorized to-go tray.
Next, Defendant argues that the incident report was motivated by Plaintiff disclosing Mr. Grau's confidential medical information. [#117 at 14-15] According to Defendant, Plaintiff “disclose[d] to [Defendant] Mr. Grau's specific medical issues in an attempt to explain why [Defendant] should give [Plaintiff] a ‘to-go' tray.” [#117-4 at ¶ 9] Plaintiff denies that he disclosed Mr. Grau's specific medical issues, as does an inmate who witnessed the exchange. [##138-1 at 90 (62:9-24) (“Q: So your testimony is that you didn't speak with [Defendant] at all about the reasons [Mr. Grau] needed a to-go tray? A: No, not at all.”), 94 (66:9-14) (“Q: At any point during that September 7th incident, did you tell Sergeant Rodriguez about [Mr. Grau's] medical issues and the reasons he needed a to-go tray? A: No, I did not, not on that date. I did not do anything like that whatsoever.”); 139-1 at 65 (38:23-25) (“Q: Did [Plaintiff] mention why his client could not come to the dining hall to get his own tray? A: No, not that I recall.”)]
Defendant argues that Plaintiff violated OCA standards by simply disclosing that he was an OCA and that his client was Mr. Grau, and that this violation caused the incident report and Plaintiff's termination. [#117 at 14] But a reasonable juror could interpret the record differently. According to Defendant, prior to the September 7 incident, Plaintiff had previously explained that he was an OCA and had asked for a to-go tray. [#117-4 at ¶ 7] Defendant specifically requested the name of Plaintiff's client during this prior exchange, indicating that by simply disclosing the name of a client in an open setting an OCA was not violating confidentiality standards (or at least that any such disclosure would not motivate Defendant to file an incident report). [Id.; see also #139-1 at 6 (another OCA attesting that he “went to the serving line . . . and asked to pick up a tray for [the OCA's client] Mr. Bertolo.... [Defendant] had the line workers prepare a tray, which she personally handed to me.”)]
Moreover, the timing of the incident as explained by Defendant does not support a conclusion that Plaintiff's mere mention that he was an OCA for Mr. Grau violated OCA standards and caused the incident report and Plaintiff's termination. During the September 7 incident, Defendant attests that Plaintiff “again requested from [Defendant] a ‘to-go' tray for Mr. Grau.” [#117-4 at ¶ 9] After the to-go tray was refused, Defendant attests that Plaintiff “then proceeded to disclose to [Defendant] Mr. Grau's specific medical issues,” and that only then did Defendant “direct[] [Plaintiff] to stop disclosing protected medical information.” [Id.] This indicates a distinction between “request[ing] . . . a ‘to-go' tray from Mr. Grau” and disclosing Mr. Grau's “specific medical issues” or “protected medical information.” Ms. Nira's Declaration reflects the same distinction, stating that: “On September 7, 2021, [Defendant] called me . . . to inform me that [Plaintiff] had requested a ‘to-go' tray for Mr. Grau, and that [Plaintiff] had started loudly discussing Mr. Grau's medical information when [Defendant] denied him a ‘to-go' tray.” [#117-2 at ¶ 10 (emphasis added)] Ms. Nira attests that she was specifically concerned by Defendant's report that Plaintiff “was disclosing his patient's protected medical information.” [Id.] Defendant's incident report then states that Plaintiff “demanded that [Defendant] . . . make them a to[-]go tray for an offender in the unit.” [#117-6 at 2] Only after Defendant refused does the incident report allege that “[Plaintiff] then shared [Mr. Grau's] medical information in a chow hall full of offenders.” [Id.] Ms. Nira ultimately “made the decision to request [Plaintiff's] termination as an OCA [because] he disclosed [Mr. Grau's] protected medical information to staff and offenders in the dining hall on September 7, 2021, and for . . . attempting to retrieve prohibited to-go trays.” [#117-2 at ¶ 11]
Thus, read in the light most favorable to Plaintiff, the record reflects that by simply stating his job as an OCA and that his client was Mr. Grau, Plaintiff was not engaged in a violation of OCA policy that would normally result in an infraction report or termination. Instead, Plaintiff's alleged violation for which he received an incident report and was fired was the disclosure of “Mr. Grau's specific medical issues” in a crowded dining hall. There is a factual dispute as to whether this was a legitimate allegation, or one manufactured by Defendant in response to Plaintiff's protected speech. Accordingly, Defendant is not entitled to summary judgment on this ground.
Finally, Defendant argues that the undisputed facts establish that Plaintiff was advocating and creating a facility disruption. [#117 at 15-16] Prison regulations define “Advocating or Creating a Facility Disruption” as urging or organizing a disruption, or “actually disrupt[ing] operations of any segment of a facility.” [#117-11 at 10] While the record is unclear regarding specifics, it is undisputed that the September 7 incident between Plaintiff and Defendant held up the serving line for some period of time. [See #138-1 at SOF12 (Plaintiff contending that the interaction lasted “no more than one minute at best”)] According to Defendant, this pause in the serving line constituted a citable “disruption to facility operations” in the dining hall. [#117 at 15-16]
Assuming that Defendant is correct, the Court nevertheless finds that summary judgment is not appropriate on this ground. In addition to holding up the line, Defendant accused Plaintiff of: (1) seeking an unauthorized to-go tray, and (2) improperly disclosing his client's protected medical information. And it was those two accusations that formed the basis of Plaintiff's termination as an OCA, not the accusation that Plaintiff held up the serving line. [#117-2 at ¶ 11 (“I made the decision to request [Plaintiff's] termination as an OCA because he disclosed his patient's protected medical information to staff and offenders in the dining hall on September 7, 2021, and for abusing his status as an OCA by attempting to retrieve prohibited to-go trays-which are violations of SCF's OCA policies.”)] The fact that Plaintiff may have also violated the disruption to facility operations policy is irrelevant when that violation did not form the basis for Plaintiff losing his OCA job or, indeed, any other apparent disciplinary action. Rather, Plaintiff was disciplined for the allegedly false allegations that Plaintiff sought an unauthorized to-go tray and improperly disclosed his client's medical information. Because there is a genuine dispute as to whether these accusations for which Plaintiff lost his job were legitimate, summary judgment is not appropriate.
In sum, the Court finds that there is a genuine dispute as to whether the incident report that Defendant filed was motivated by Plaintiff's misconduct. Summary judgment is therefore inappropriate on that ground.
C. Defendant's Knowledge
Finally, Defendant argues that summary judgment is appropriate because the undisputed facts show that Defendant had no knowledge of Plaintiff's informal complaints against her. [#117 at 17-18; 150 at 7-9] Accordingly, Defendant argues that she could not have acted with a retaliatory motive. [Id.] Defendant, however, fails to address the evidence in the record reflecting that during the September 7 incident, Plaintiff made a complaint directly to Defendant. Indeed, it was in response to this direct complaint that Defendant allegedly informed Plaintiff that if he proceeded to formalize his verbal complaint into an official grievance, then he “wo[uldn't] have to worry about picking up trays anymore.” [##138-1 at 88 (60:21-23); 139-1 at 65 (40:23-41:1)] Defendant then filed the incident report at issue in this case that day. [See # 117-6] Viewing the record as a whole in the light most favorable to Plaintiff, the Court finds that the temporal proximity of the filing, combined with Defendant's alleged statement indicating an intent to retaliate against Plaintiff, suffice for a reasonable juror to find that Defendant filed a false incident report in response to Plaintiff's verbal complaint made directly to her. Cf. Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir. 2014) (“[T]emporal proximity between the protected speech and the alleged retaliatory conduct, without more, does not allow for an inference of a retaliatory motive.” (emphasis added)). Thus, the Court need not consider whether Plaintiff's circumstantial evidence would permit a reasonable juror to infer that Defendant had knowledge of Plaintiff's informal complaints made to other officers before filing the incident report (specifically, Plaintiff's complaint to Lieutenant Diaz).
Again, Defendant does not address Plaintiff's direct complaint to Defendant and Defendant's alleged response, or otherwise argue that Plaintiff has failed to create a genuine dispute as to Defendant's motivation except to argue that Plaintiff's misconduct caused the injury and Defendant had no knowledge of Plaintiff's reports to other officers. [See ##117 at 13-18; 150 at 7-10]
Were the Court to consider this issue, the Court would be inclined to find that Plaintiff's circumstantial evidence does permit a reasonable juror to infer that Defendant had knowledge that Plaintiff was seeking a redress from Defendant's alleged misconduct from other officers. The record contains evidence that, for example, shortly after Defendant denied a to-go tray to Plaintiff, Plaintiff complained to Lieutenant Diaz. [#138-1 at 97 (69:8-20)] Lieutenant Diaz then went behind the serving line to discuss the incident with Defendant, and during this conversation Defendant said to Lieutenant Diaz: “No, he's not getting a tray.” [#139-1 at 66 (43:4-13)] This appears to be sufficient for a reasonable juror to infer that Lieutenant Diaz discussed Plaintiff's request for a to-go tray and contention that Defendant was wrongfully withholding to-go trays with Defendant, or at least that Defendant was aware that Plaintiff had sought redress of Defendant's allegedly wrongful denial of a to-go tray from Lieutenant Diaz.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion for Summary Judgment [#117] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).