Opinion
Civ. 20-1087 KWR/KK
08-27-2024
CLAYTON WADE WHITEHEAD, Plaintiff, v. TIMOTHY GARCIA, Defendant.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
By an Order of Reference filed April 15, 2022, this matter was referred to me to perform any legal analysis required to recommend an ultimate disposition of the case. (Doc. 12.)
KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE
Plaintiff Clayton Wade Whitehead alleges that Defendant Timothy Garcia, a corrections officer, wrongfully kicked him and stunned him with a taser while he was housed at the Otero County Detention Center (“OCDC”). (Doc. 1.) Based on this alleged incident, Mr. Whitehead asserts Eighth and Fourteenth Amendment claims against Officer Garcia. (Id.) Now before the Court is Officer Garcia's Motion for Summary Judgment (Doc. 49) (“Motion”), filed November 30, 2023. As explained below, I recommend that the Court GRANT Officer Garcia's Motion and DISMISS Mr. Whitehead's claims with prejudice based on qualified immunity, because Mr. Whitehead has not shown a genuine factual dispute as to whether Officer Garcia violated his clearly established constitutional rights.
I. Procedural History
Mr. Whitehead, who is proceeding pro se, filed a Prisoner's Civil Rights Complaint (Doc. 1) (“Complaint”) on October 21, 2020, asserting constitutional claims against Officer Garcia and the OCDC. On April 15, 2022, the Court dismissed Mr. Whitehead's claims against the OCDC on initial screening pursuant to 28 U.S.C. § 1915(e). (Doc. 11.)
On July 15, 2022, the Court ordered Officer Garcia to file a Martinez Report. (Doc. 20); see Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). In its order, the Court notified the parties that it
may rely on the Martinez Report in deciding whether to grant summary judgment for or against any party pursuant to a separately filed motion or sua sponte. As such, the parties are urged to submit whatever proof or other materials they consider relevant to Plaintiff's claims and Defendant's defenses in the Martinez Report, Plaintiff's response or objections to the Report, and Defendant's reply in support of it.(Doc. 20 at 5.)
Officer Garcia filed his Martinez Report on September 13, 2022, (Doc. 23), and Mr. Whitehead timely responded to it on November 28, 2022. (Doc. 30.) Officer Garcia then filed the present Motion on November 30, 2023. (Doc. 49.) On January 19, 2024, well after the deadline to respond to the Motion had expired, Mr. Whitehead requested an extension of time in which to file his response. (Doc. 55.) The Court granted the extension and Mr. Whitehead filed his response in compliance with the new deadline on August 9, 2024. (Docs. 66, 67.) Officer Garcia filed his reply on August 23, 2024. (Doc. 68.)
II. Legal Standards
Under Federal Rule of Civil Procedure 56, a court must “grant summary judgment 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). In general, the moving party bears “the initial burden to show that ‘there is an absence of evidence to support the nonmoving party's case.'” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “Once the moving party has met its burden, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact” by presenting “sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.” Bacchus Indus., Inc., 939 F.2d at 891; Fed.R.Civ.P. 56(c)(1). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citation omitted).
These standards change when a summary judgment motion raises the defense of qualified immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009); Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015).
When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant's motion. The plaintiff must demonstrate on the facts alleged both that the defendant violated his constitutional or statutory rights, and that the right was clearly established at the time of the alleged unlawful activity.Riggins, 572 F.3d at 1107. This is a “heavy ... burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). If the record does not clearly demonstrate the plaintiff has satisfied it, the defendant is entitled to qualified immunity. Id.
A Martinez report “is part of the summary judgment record and, absent valid challenge, may be treated as providing uncontroverted facts.” Hartz v. Sale, 687 Fed.Appx. 783, 785 (10th Cir. 2017). However, courts may not “accept the factual findings of [a Martinez report] when the plaintiff has presented conflicting evidence.” Hall, 935 F.2d at 1111.
Unpublished decisions are not binding precedent in the Tenth Circuit but may be cited for their persuasive value. United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).
Although a “pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers,” id. at 1110, the pro se litigant's papers “must still comply with the minimum requirements of the [summary judgment] rules.” Gorton v. Williams, 309 Fed.Appx. 274, 275 (10th Cir. 2009). A prisoner's complaint is “treated as an affidavit if it alleges specific facts based on the [prisoner's] personal knowledge and has been sworn under penalty of perjury.” Hall, 935 F.2d at 1111. But, as is true with all affidavits, “statements of mere belief ... must be disregarded.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006). Further, in the absence of other evidence, an unverified allegation does not meet the evidentiary requirements of Rule 56 and thus fails to create a genuine factual dispute sufficient to preclude summary judgment. Gorton, 309 Fed.Appx. at 275; see also Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997) (stating that a plaintiff must “present some evidence to support the allegations; mere allegations, without more, are insufficient to avoid summary judgment”).
Under Local Rule 56.1(b), all material facts set forth in a summary judgment motion are deemed undisputed unless they are specifically controverted in the plaintiff's response. D.N.M. LR-Civ. 56.1(b).
III. Undisputed Material Facts
The Court treats Mr. Whitehead's verified Complaint as an affidavit to the extent it alleges specific facts. (Doc. 1 at 8); Hall, 935 F.2d at 1110-11. However, he did not verify his Response to the Martinez Report or his Response to Officer Garcia's Motion (collectively, “Responses”). (Docs. 30, 67.) Hence, the unsupported factual allegations in those documents are inadequate to create a genuine dispute of material fact precluding summary judgment. Lawmaster, 125 F.3d at 1349; Gorton, 309 Fed.Appx. at 275.
In addition, “[w]hile a court considering a summary judgment motion based upon qualified immunity usually must adopt the plaintiff's version of the facts, that is not true to the extent that there is clear contrary video evidence of the incident at issue.” Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (quotation marks, brackets, and ellipses omitted). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Here, Officer Garcia's Martinez Report includes two videos of the incident, without sound, and both parties rely on these videos, although they characterize the contents differently. (Doc. 23, Exs. A-1, A-2.) Viewing the videos and other evidence in the light most favorable to Mr. Whitehead, the following facts are undisputed.
Exhibit A-1 is titled “Channel62018111508022520181115080456.raw” and Exhibit A-2 is titled “Channel20_20181115080358_20181115080445.raw.” Citations are to the time stamps shown in ArchivePlayer v.2.1.15.
In November 2018, Mr. Whitehead was in the custody of the New Mexico Corrections Department (“NMCD”) serving a six-year sentence for bringing contraband into a jail and credit card theft. (Doc. 23-8 at 5-6); State v. Whitehead, D-1215-CR-2015-00522 (12th Jud. Dist. Ct., N.M.); State v. Whitehead, D-1215-CR-2016-00574 (12th Jud. Dist. Ct., N.M.). On or about November 13, 2018, he was temporarily transferred from the Northeast New Mexico Correctional Facility to the OCDC en route to court, to attend a pretrial conference on pending charges of possession of a controlled substance and resisting, evading, or obstructing an officer. (Doc. 23-8 at 1-6); State v. Whitehead, D-1215-CR-2018-00193 (12th Jud. Dist. Ct., N.M.). Officer Garcia was a corrections officer at the OCDC. (Doc. 1 at 1, 5-6; Doc. 23 at 3; Doc. 23-3 at 1.)
On November 15, 2018, the day of the pretrial conference, OCDC officers searched Mr. Whitehead and other inmates for contraband before transporting them to court. (Doc. 1 at 5; Doc. 23 at 3-4, 7; Doc. 23-3 at 1-6; Doc. 23-8 at 2.) Mr. Whitehead walked into a hallway at the OCDC, put his hands on the wall above his head, and stood with his legs slightly apart to be searched. (Doc. 23 at 4; id., Ex. A-2 at 08:04:08; Doc. 23-3 at 1-6.) At least one other inmate preceded him into the hallway, and another was about to enter the hallway behind him. (Doc. 23, Ex. A-1 at 8:04:24; id., Ex. A-2 at 8:03:58.) Mr. Whitehead was not handcuffed or shackled. (Id., Ex. A-2 at 08:04:08.)
Officer Garcia stood behind Mr. Whitehead and tapped Mr. Whitehead's right leg with his foot, prompting Mr. Whitehead to spread his legs a little further apart. (Doc. 23 at 4; id., Ex. A-2 at 8:04:13.) Officer Garcia verbally ordered Mr. Whitehead to spread his legs wider and tapped his right leg again, but Mr. Whitehead did not change his stance. (Doc. 23 at 4; id., Ex. A-2 at 8:04:15; Doc. 30 at 4; Doc. 67 at 3.) Mr. Whitehead turned his head to the right and said something to Officer Garcia. (Doc. 23, Ex. A-2 at 8:04:21-27.) Officer Garcia then kicked the inside of Mr. Whitehead's left leg, which forced Mr. Whitehead's legs further apart. (Id., Ex. A-1 at 8:02:41; id., Ex. A-2 at 8:04:28.)
In his Responses, Mr. Whitehead alleges that he told Officer Garcia he could not widen his legs any further because he had a “bad” left knee. (Doc. 30 at 4-5; Doc. 67 at 3.) Mr. Whitehead further alleges that Officer Garcia responded, “you have a bad knee? Oh ya?” (Doc. 30 at 6; Doc. 67 at 3.) However, these allegations, which are neither sworn nor declared under penalty of perjury, are not cognizable evidence for purposes of summary judgment. Lawmaster, 125 F.3d at 1349; Gorton, 309 Fed.Appx. at 275.
After Officer Garcia kicked Mr. Whitehead, Mr. Whitehead kicked swiftly backward with his right leg, which passed between Officer Garcia's legs, and then spun and struck Officer Garcia in the face with his elbow. (Doc. 23 at 4; id., Ex. A-1 at 08:02:41-42; id., Ex. A-2 at 8:04:28-30; Doc. 23-3 at 1-6, 12; Doc. 30-6 at 1.) Officer Garcia pulled Mr. Whitehead to the ground. (Doc. 23, Ex. A-1 at 08:02:40-08:03:40; Doc. 23-3 at 1-6.) In the ensuing scuffle, in which three other officers joined, Officer Garcia “drive-stunned” Mr. Whitehead with a taser “contin[u]ously for about 30 seconds.” (Doc. 1 at 5-6; Doc. 23-3 at 1-6; see also Doc. 23, Ex. A-1 at 08:02:408:03:30.) The scuffle lasted about a minute. (Doc. 23, Ex. A-1 at 08:02:40-8:03:40; Doc. 30 at 7; Doc. 67 at 4.) Officers then handcuffed and shackled Mr. Whitehead, assisted him to his feet, and transported him to court. (Doc. 23 at 5; Doc. 23-3 at 1-6; Doc. 67 at 4.)
“A taser has two functions, dart mode and drive stun mode. In dart mode, a taser shoots probes into a subject and overrides the central nervous system. In drive stun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim. In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim's central nervous system[.] Drive stun mode is used as a pain compliance tool with limited threat reduction.” Estate of Booker v. Gomez, 745 F.3d 405, 414 n.10 (10th Cir. 2014) (quotation marks and citations omitted); see also De Boise v. Taser Int'l, Inc., 760 F.3d 892, 895 n.5 (8th Cir. 2014) (“When the taser is in drive stun mode, it only causes discomfort and does not incapacitate the subject.”).
When Mr. Whitehead returned to the OCDC after court, he had two seizures, one of which caused him to fall and hit his face. (Doc. 23 at 6; Doc. 25-4 at 1; Doc. 25-7 at 8.) He was taken to a hospital, where he was diagnosed with “[s]eizure,” “[c]ontusion,” and “headache.” (Doc. 25-4 at 1, 5.) Mr. Whitehead told medical staff that he had been “tased” two times-once in the chest and once in the right leg-and that he had a history of seizures as a child but had not had one in years. (Id. at 1.) Hospital treatment notes indicate that Mr. Whitehead's “seizure was likely related to being tasered.” (Id. at 5.) The hospital discharged Mr. Whitehead after about five hours, and he returned to the OCDC. (Doc. 25-5 at 10.)
On the same day, OCDC staff notified Mr. Whitehead that he would lose “good time” and certain privileges for refusing to follow Officer Garcia's orders and fighting with staff. (Doc. 233 at 9.) Mr. Whitehead submitted an “Inmate Grievance/Appeal/Complaint Form,” on which he alleged that Officer Garcia “kicked [him] in the legs,” causing him to lose his balance and fall back, and then officers “at[t]ack[ed]” him and “tazed [him] multiple times for long periods of time.” (Doc. 23-3 at 10.) On the form, Mr. Whitehead indicated that he was filing both an “[a]ppeal” and a “[c]omplaint.” (Id.) He dated the form “11-16-18” at “1200,” and the OCDC stamped it received on November 19, 2018. (Id.) Deputy Director Nena Sisler responded in writing, stating that she had reviewed “the incident report” and Mr. Whitehead's “grievance/complaint” and upheld the discipline imposed. (Id. at 11.) There is no evidence in the record that Mr. Whitehead appealed that decision. (See Docs. 1, 23, 25, 30, 67.)
In his Complaint, Mr. Whitehead attests that he “filed formal and informal complaint of the matter” but was “never answer[e]d or no rem[e]dy,” and that proof that he “exhausted available administrative remedies” was in his criminal case file. (Doc. 1 at 3.) I need not decide whether this testimony is adequate to show that Mr. Whitehead exhausted all of the administrative remedies available to him, because Officer Garcia is entitled to qualified immunity from Mr. Whitehead's claims whether Mr. Whitehead exhausted his administrative remedies or not.
On September 25, 2019, a state court jury convicted Mr. Whitehead of battery on a peace officer based on the November 15, 2018 incident. (Doc. 23-12 at 1.) For that crime, Mr. Whitehead was sentenced to four additional years of incarceration. (Doc. 23-13 at 2.) The New Mexico Court of Appeals affirmed the conviction on March 24, 2022. (Doc. 23-14.)
“Battery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.” N.M. Stat. Ann. § 30-22-24.
IV. DISCUSSION
Mr. Whitehead claims that Officer Garcia used excessive force against him and subjected him to cruel and unusual punishment in violation of his Eighth and Fourteenth Amendment rights in two ways. (Doc. 1.) First, he claims that, though he was “being total[l]y compliant and non[-]combative,” Officer Garcia kicked his knee “very forcefully” after he told Officer Garcia that he could not spread his legs any wider. (Id. at 5.) Second, he claims that Officer Garcia “then took [him] to the ground and tazed [him] contin[u]ously for about 30 seconds” for no reason. (Id.) Mr. Whitehead alleges that, as a result, he suffered injuries that were later addressed at the hospital, extreme “physical, mental and emoti[o]nal loss,” and severe, permanent damage to his criminal record. (Id. at 5-6.)
In his Motion, Officer Garcia argues that he is entitled to summary judgment because: (1) the Heck doctrine bars Mr. Whitehead's claims; (2) Mr. Whitehead failed to exhaust his administrative remedies; and, (3) Officer Garcia is entitled to qualified immunity. (Doc. 49.) As explained below, I agree that Mr. Whitehead has not met his burden to show a genuine factual dispute as to whether Officer Garcia violated his clearly established constitutional rights. The Court should therefore grant Officer Garcia's Motion and dismiss Mr. Whitehead's claims with prejudice based on qualified immunity.
See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (disallowing § 1983 claims where judgment in litigant's favor would necessarily imply the invalidity of a criminal conviction unless the conviction has already been invalidated).
A. The Eighth Amendment applies to Mr. Whitehead's claims.
As a preliminary matter, I must address which constitutional amendment or amendments apply to Mr. Whitehead's claims. In his Complaint, Mr. Whitehead cites to both the Eighth and Fourteenth Amendments, (Doc. 1 at 2), and in his Response to the Martinez Report, he asserts that both of these amendments apply to his claims because he was a convicted prisoner and a pretrial detainee at the time of the incident in question. (Doc. 30 at 16.) As explained below, I disagree.
Of course, Mr. Whitehead could have invoked the Fourteenth Amendment simply as the vehicle through which the Eighth Amendment applies to state and local government actors. Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). But the argument in his Response to the Martinez Report makes clear that he also invokes the Fourteenth Amendment as a substantive source of the rights he claims were violated.
In general, the Eighth Amendment applies to the excessive force claims of convicted prisoners, while the Fourteenth Amendment applies to the excessive force claims of pretrial detainees. Berry v. City of Muskogee, Okl., 900 F.2d 1489, 1493-94 (10th Cir. 1990). In this context, the Fourteenth Amendment provides greater protection to pretrial detainees than the Eighth Amendment provides to convicted prisoners, because pretrial detainees have not been convicted of the crime for which they have been detained and may not constitutionally be punished. Kingsley v. Hendrickson, 576 U.S. 389, 396-97, 400-01 (2015). As a practical matter, applying the Eighth or the Fourteenth Amendment in this context is an “either/or” proposition, because applying the Fourteenth would nullify any application of the Eighth.
A pretrial detainee claiming excessive force in violation of the Fourteenth Amendment need only show that the force purposely or knowingly used against him was objectively unreasonable, whereas a convicted prisoner claiming excessive force in violation of the Eighth Amendment must show that the force was both objectively nontrivial and subjectively applied maliciously and sadistically to cause harm. Kingsley v. Hendrickson, 576 U.S. 389, 396-97, 40001 (2015); Wilkins v. Gaddy, 559 U.S. 34, 39 (2010); Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018).
Specifically, if a court were to find that a plaintiff had met the less demanding Fourteenth Amendment standard, the plaintiff would get no further relief from meeting the more rigorous Eighth Amendment standard, and if the court were to find that the plaintiff had not met the Fourteenth Amendment standard, the plaintiff could not meet the Eighth Amendment standard either.
Here, I conclude that the more demanding Eighth Amendment standard applies to Mr. Whitehead's excessive force claims, for two reasons. First, the Tenth Circuit has not yet addressed which constitutional amendment or amendments apply to a prisoner who is incarcerated pursuant to a conviction and also faces new pending charges. However, its reasoning in Berry suggests that it would apply the Eighth Amendment to such persons. In Berry, the Tenth Circuit held that the Eighth Amendment, and not the Fourteenth, applies to “incarcerated persons whose guilt has been adjudicated formally but who await sentencing.” Id. at 1493. In so holding, the court distinguished such persons, whose “detention is primarily punitive, not solely prophylactic,” from “pretrial detainees, who are detained primarily to ensure their presence at trial and who cannot be punished.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 534-35 (1979)). The court explained that “[t]he critical juncture is conviction, ... at which point the state acquires the power to punish and the Eighth Amendment is implicated.” Id.
I recognize that the Tenth Circuit has applied the Fourteenth Amendment to the constitutional claims of convicted persons who were released on probation and later arrested and detained for a suspected probation violation. See Paugh v. Uintah Cnty., 47 F.4th 1139, 1148, 1153-54 (10th Cir. 2022); Contreras on behalf of A.L. v. Dona Ana Cnty. Bd. of Cnty. Comm'rs, 965 F.3d 1114, 1115, 1116 n.2, 1129 (10th Cir. 2020) (Tymkovich, J., and Baldock, J., concurring); cf. Clark v. Poulton, 963 F.2d 1361, 1364-65 (10th Cir. 1992) (stating that plaintiff who was arrested and detained for parole violation was “in pretrial detention”). However, in each of these cases, the court did so without explanation; and, more importantly, a person who is released from prison on probation and then detained anew for a suspected probation violation is materially distinct from a person who is still incarcerated pursuant to a conviction and also faces new criminal charges. The sole reason for a probationer's detention is his alleged probation violation, for which he has not yet received all of the judicial process he is due, whereas one of the reasons for the detention of a convicted prisoner serving his sentence while facing new charges-indeed, arguably the primary reason-is his criminal conviction.
Like a convicted prisoner awaiting his sentence, a convicted prisoner simultaneously serving his sentence and facing new charges has passed the “critical juncture” of conviction. Id. The state has “the power to punish” him, and his incarceration is “primarily punitive, not solely prophylactic.” Id. Thus, Berry suggests that the Eighth Amendment applies to Mr. Whitehead. See id.
Second, three other district courts, including one within the Tenth Circuit, have applied the Eighth Amendment to the constitutional claims of convicted prisoners simultaneously serving their sentences and facing new charges. Ulrich v. West, Civ. No. 22-767, 2022 WL 18492158, at *2 (W.D. Okla. Nov. 22, 2022), report and recommendation adopted, Civ. No. 22-767, 2023 WL 425400 (W.D. Okla. Jan. 26, 2023); Miller v. Ninkovic, Civ. No. 14-1603, 2017 WL 244846, at *1 (E.D. Wis. Jan. 20, 2017); Joost v. Cornell Corr., Inc., Civ. No. 97-512, 1998 WL 939531, at *2 (D.R.I. Dec. 11, 1998). In contrast, Mr. Whitehead has not pointed to, and I have not located, any decisions applying the Fourteenth Amendment to a person simultaneously incarcerated as both a convicted prisoner and a pretrial detainee.
In addition, the Sixth Circuit has applied “the more demanding Eighth Amendment standard” to the constitutional claims of a convicted prisoner simultaneously serving her sentence and facing new charges. Morgan ex. rel Morgan v. Wayne Cnty., Mich., 33 F.4th 320, 326 (6th Cir. 2022). However, it appears that the court did so only because the prisoner had “pleaded and argued [the] case solely under” that standard. Id.
Here, at the time of the incident on which he bases his claims, Mr. Whitehead had been convicted of criminal offenses and was serving a prison sentence as a result of these convictions. (Doc. 23-8 at 5-6); State v. Whitehead, D-1215-CR-2015-00522 (12th Jud. Dist. Ct., N.M.); State v. Whitehead, D-1215-CR-2016-00574 (12th Jud. Dist. Ct., N.M.). Granted, he was transferred to the OCDC en route from prison to court to attend a pretrial conference on new charges. (Doc. 238 at 1-6); see State v. Whitehead, D-1215-CR-2018-00193 (12th Jud. Dist. Ct., N.M.). But he “did not lose his status as a convicted prisoner merely because he was transferred to a different location,” nor does it seem sound, either logically or as a matter of policy, that he should “get enhanced constitutional rights simply because he is alleged to have committed additional crimes for which he had not yet been tried.” Miller, 2017 WL 244846, at *1 (emphasis in original). For these reasons, I apply the Eighth Amendment rather than the Fourteenth to Mr. Whitehead's claims.
Moreover, even if I were to conclude that Mr. Whitehead is entitled to the greater protections of the Fourteenth Amendment, Officer Garcia would be entitled to qualified immunity from Mr. Whitehead's Fourteenth Amendment claims, because Mr. Whitehead's right to those greater protections is far from clearly established.
As explained below, Mr. Whitehead has not met his burden to show that Officer Garcia's actions violated his Eighth Amendment rights. Further, even if he had, he has not shown that the law was clearly established such that Officer Garcia would have known his conduct was unconstitutional. Officer Garcia is therefore entitled to qualified immunity and Mr. Whitehead's claims should be dismissed on that basis.
Because dismissal is warranted based on qualified immunity, I do not address Officer Garcia's Heck and failure-to-exhaust defenses, which do not appear to be jurisdictional. See Johnson v. Spencer, 950 F.3d 680, 697-698 (10th Cir. 2020) (Heck); Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 520 n.28 (10th Cir. 2023) (Heck); Jones v. Bock, 549 U.S. 199, 216 (2007) (failure-to-exhaust); Wright v. Gess, No. 22-1179, 2023 WL 4542154, at *2 (10th Cir. July 14, 2023) (failure-to-exhaust).
B. Mr. Whitehead has not shown a genuine factual dispute as to whether Officer Garcia used excessive force against him in violation of the Eighth Amendment.
To show excessive force in violation of the Eighth Amendment, an inmate must satisfy “(1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind.” Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018). Whether a corrections officer's use of force was excessive “is evaluated from the viewpoint of a reasonable officer at the scene.” Hunter v. Young, 238 Fed.Appx. 336, 338 (10th Cir. 2007). A “prison guard, to maintain control of inmates, must often make instantaneous, on-the-spot decisions concerning the need to apply force without having to second-guess himself.” Lehman v. McKinnon, 2021 WL 4129229, at *2 (10th Cir. Sept. 10, 2021) (quoting Sampley v. Ruettgers, 704 F.2d 491, 496 (10th Cir. 1983)). Courts therefore give “wide-ranging deference” to prison officials acting “to preserve internal order and discipline.” Redmond, 882 F.3d at 938 (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)); see Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding that “review of a claim of the use of excessive force in a prison is to be deferential to the prison”).
1. Objective Prong
For purposes of the first prong of the test for Eighth Amendment excessive force claims, a prison official's use of force need not cause a “significant injury” to be objectively harmful. Graham v. Sheriff of Logan Cnty., 741 F.3d 1118, 1123 (10th Cir. 2013); see also Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996) (noting that “[i]t is not necessary for the plaintiff to allege a significant physical injury to state a cause of action” for excessive force in violation of the Eighth Amendment). Rather, “the inquiry centers on the ‘nature of the force' used.” Graham, 741 F.3d at 1123 (quoting Wilkins v. Gaddy, 559 U.S. 34, 39 (2010)). “[T]he extent of the injury suffered may be instructive in determining the amount of force used.” Id.; see Wilkins, 559 U.S. at 38 (“An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.”) (quotation marks omitted). But “a minor injury can still support an Eighth Amendment claim if the force used was nontrivial[.]” Graham, 741 F.3d at 1123 (quotation marks omitted).
Nevertheless, “[t]he infliction of pain in the course of a prison security measure ... does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” Whitley, 475 U.S. at 319. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Hudson v. McMillian, 503 U.S. 1, 9 (1992); Gee v. Pacheco, 627 F.3d 1178, 1193 (10th Cir. 2010); DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001). Thus, “[d]e minimis uses of physical force are excluded from the cruel and unusual punishment inquiry unless ‘repugnant to the conscience of mankind.'” Rhoten v. Werholtz, 243 Fed.Appx. 364, 366 (10th Cir. 2007) (quoting Hudson, 503 U.S. at 9-10).
Here, Mr. Whitehead attests that Officer Garcia “kicked [his] left knee very forcefully” after he told Officer Garcia that he “could not spread [his] legs any wider.” (Doc. 1 at 5-6.) However, even viewed in his favor, the videos of the incident unequivocally show that the force Officer Garcia used to kick Mr. Whitehead's legs further apart was trivial. (Doc. 23, Ex. A-1 at 8:02:41, Ex. A-2 at 8:04:28.) Moreover, it is “instructive in determining the amount of force used” that Mr. Whitehead does not allege any specific injury resulting from the kick and did not complain of any such injury when he was taken to the hospital a few hours after the incident occurred. Graham, 741 F.3d at 1123; (see, e.g., Doc. 25-4 at 1 (noting that Mr. Whitehead complained of “seizure,” “headache,” and “pain around where he was tasered,” i.e., his chest and right leg).) In short, Officer Garcia's kick to Mr. Whitehead's left leg was de minimis.
Moreover, the officer's kick plainly does not fall within the exception for de minimis uses of force that are nevertheless repugnant to the conscience of mankind. “Conduct is repugnant to the conscience of mankind when it is incompatible with evolving standards of decency or involves the unnecessary and wanton infliction of pain.” Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (quotation marks omitted). It is not incompatible with evolving standards of decency for a corrections officer to use trivial, non-injurious force to get a recalcitrant prisoner to widen his stance for a pat-down search, nor can such conduct be rationally considered an unnecessary and wanton infliction of pain. For these reasons, Mr. Whitehead has not shown a genuine factual dispute regarding whether Officer Garcia's kick was objectively nontrivial or repugnant enough to rise to the level of cruel and unusual punishment, and Officer Garcia is entitled to qualified immunity from Mr. Whitehead's excessive force claim based on the kick.
However, Officer Garcia concedes that stunning Mr. Whitehead with a taser was “likely ... harmful enough to meet the objective criteria for an Eighth Amendment claim.” (Doc. 23 at 12.) Thus, for purposes of the present Motion, I assume that the taser stun satisfies the objective prong of the test for excessive force in violation of the Eighth Amendment.
2. Subjective Prong
For purposes of the second prong of the test for Eighth Amendment excessive force claims, a prison official “has a culpable state of mind if he uses force ‘maliciously and sadistically for the very purpose of causing harm,' rather than ‘in a good faith effort to maintain or restore discipline.'” Redmond, 882 F.3d at 936 (quoting Whitley, 475 U.S. at 320-21). To determine whether a prison official applied force maliciously and sadistically, courts consider “(1) the need for the force and (2) whether the officers used a disproportionate amount of force.” Id. at 937. Courts “can infer malicious, sadistic intent from the conduct itself where there can be no legitimate purpose” for it. Serna v. Colo. Dep't of Corrections, 455 F.3d 1146, 1152 (10th Cir. 2006) (quotation marks omitted).
In his Complaint, Mr. Whitehead broadly attests that he “never gave Officer Garcia any reason to” kick him or stun him with a taser. (Doc. 1 at 5-6.) But, taking the kick first, Mr. Whitehead does not dispute that when Officer Garcia kicked him: (1) Officer Garcia was preparing him for transport to court and searching his person for contraband; (2) Officer Garcia twice prompted him, with taps to his leg, to widen his stance to be searched; and, (3) he did not comply with the second tap. (Doc. 23, Ex. A-2 at 8:04:13-8:04:25; Doc. 30 at 4-5; Doc. 67 at 3-4.) In these circumstances, Officer Garcia had a legitimate purpose to kick his leg i.e., to get him to widen his stance to be searched for contraband prior to transport, and this use of force was not disproportionate in that the officer's more moderate foot taps had not achieved the desired result. Mr. Whitehead has thus failed to show a genuine factual dispute regarding whether Officer Garcia kicked his leg maliciously and sadistically for the very purpose of causing harm. Whitley, 475 U.S. at 320-21; Redmond, 882 F.3d at 936-37.
In his Responses, Mr. Whitehead argues that he has shown a genuine factual dispute as to whether Officer Garcia acted maliciously and sadistically by alleging that: (1) he told Officer Garcia he could not widen his stance any further due to a “bad” left knee; and, (2) Officer Garcia responded, “You have a bad knee? Oh ya?” and then kicked that leg. (Doc. 30 at 5-6; Doc. 67 at 3.) But Mr. Whitehead did not make these allegations in his verified Complaint. (See generally Doc. 1.) And the unverified allegations in his Responses do not meet the evidentiary requirements of Rule 56 and are thus inadequate to show a genuine factual dispute on summary judgment. Lawmaster, 125 F.3d at 1349; Gorton, 309 Fed.Appx. at 275.
Similarly, Mr. Whitehead's unverified allegations regarding a dispute between him and Officer Garcia a few weeks or months earlier do not create a genuine factual dispute regarding Officer Garcia's state of mind when he kicked Mr. Whitehead's left leg. (See Doc. 30 at 1-2; Doc. 67 at 2.)
Mr. Whitehead did attach two declarations to his Response to Officer Garcia's Martinez Report, in which a transport officer and an inmate opine that Officer Garcia's use of force was excessive. (See Doc. 30-2 at 1 (Officer Romero's declaration opining that “[t]here was no reason [Mr.] Whitehead should have been tased”); Doc. 30-6 at 1 (Inmate Scott's declaration opining that Officer Garcia's actions were “clearly an abuse of force”).) However, these declarations do not detail any facts tending to show that Officer Garcia kicked Mr. Whitehead maliciously and sadistically. On the contrary, Inmate Scott's declaration confirms that Officer Garcia kicked Mr. Whitehead to get him to widen his stance during a search, and Officer Romero's declaration does not mention the kick at all. Further, neither declaration indicates that Mr. Whitehead informed Officer Garcia about his bad knee, that Officer Garcia responded verbally, or that Officer Garcia's kick was disproportionate to security needs at the time. They thus fail to create a genuine factual dispute regarding Officer Garcia's state of mind with respect to the kick. See Askew v. Bloemker, 548 F.2d 673, 679 (7th Cir. 1976) (stating that “affidavits ... containing] only conclusory assertions of ultimate fact . are entitled to little weight on a motion for summary judgment”).
Additionally, Mr. Whitehead points to the angle of his legs in video stills to support his argument that Officer Garcia did not need to kick him because the officer did not need for him to widen his stance in order to search him. (Doc. 30-1 at 1-13.) However, the video stills wholly fail to prove Mr. Whitehead's point, particularly in light of the deference due to Officer Garcia's “on-the-spot decisions” about how to conduct an indisputably necessary search. Redmond, 882 F.3d at 938; Green, 108 F.3d at 1300; Sampley, 704 F.2d at 496. Though Mr. Whitehead may have believed that Officer Garcia's orders were unnecessary, “prisoners cannot be permitted to decide which orders they will obey, and when they will obey them.” Redmond, 882 F.3d at 938 (quotation marks omitted). Thus, the stills also fail to create a genuine factual dispute regarding Officer Garcia's state of mind with respect to the kick.
In sum, to overcome Officer Garcia's qualified immunity defense on summary judgment, Mr. Whitehead “must present some evidence to support [his] allegations” that Officer Garcia's kick was subjectively culpable. Lawmaster, 125 F.3d at 1349. Mr. Whitehead has not done so, and his “mere allegations ... are insufficient to avoid summary judgment.” Id.
Turning to the taser stuns, “the use of a taser or similar stun gun is not per se unconstitutional when used to compel obedience by inmates,” even when the inmate is locked in a cell or in handcuffs. Hunter, 238 Fed.Appx. at 339 (collecting cases). Here, the undisputed facts are much less egregious. Specifically, as discussed in Section III., supra, after Officer Garcia kicked Mr. Whitehead's legs further apart, Mr. Whitehead tried to kick Officer Garcia and then spun rapidly and struck the officer in the face with his elbow. Only then did Officer Garcia pull Mr. Whitehead to the ground and stun him with a taser. At the time, Mr. Whitehead was in a hallway and not shackled or handcuffed; there were other inmates present; and, Mr. Whitehead and the other inmates needed to be transported to court. Moreover, Officer Garcia used the taser's “drive stun” mode rather than its more disabling “dart” mode, for no more than 30 seconds, and there is no evidence that he continued to stun Mr. Whitehead after Mr. Whitehead stopped struggling.
Giving due deference to Officer Garcia's judgment in a moment of obvious danger, these undisputed facts do not support the inference that Officer Garcia stunned Mr. Whitehead maliciously and sadistically for the purpose of causing harm. See Stevenson v. Cordova, 733 Fed.Appx. 939, 943-44 (10th Cir. 2018) (holding that officer who stunned inmate with taser five times did not act maliciously and sadistically where inmate was “wrestling ... on the floor” with officers in an area accessible by other inmates); cf. Lazos v. Harvey Cnty. Bd. of Commissioners, Civ. No. 24-3016, 2024 WL 3043155, at *8 (D. Kan. June 18, 2024) (finding no malicious intent where officer “perceived a need for force to maintain discipline and control after [the p]laintiff became agitated and jerked away from him, and he made a judgment about the amount of force required to bring the situation under control”); Jackson v. MDC, Civ. No. 09-0054, 2010 WL 11623674, at *4 (D.N.M. Feb. 16, 2010) (holding that plaintiff did not allege Eighth Amendment violation where “[d]efendants' actions were all taken in response to [the plaintiff's] acts of resistance and pursuant to his lawful incarceration”). Rather, the undisputed facts show that Officer Garcia used proportional use of force to restore order in response to Mr. Whitehead's physical attack and continued resistance.
Mr. Whitehead's attempts to show genuine issues of material fact on this point are unavailing. First, though Mr. Whitehead attests that he “never gave Officer Garcia any reason to” stun him, (Doc. 1 at 5-6), the record blatantly contradicts this broad and conclusory testimony. Specifically, the record evidence shows that Mr. Whitehead kicked at Officer Garcia and struck the officer in the face with his elbow before the officer stunned him. (Doc. 23, Ex. A-1 at 08:02:4142; id., Ex. A-2 at 8:04:28; Doc. 23-3 at 1-2, 5; Doc. 30 at 6-7; Doc. 30-6 at 1.) The evidence further shows that, as Officer Garcia stunned him, Mr. Whitehead continued to struggle with the officers trying to subdue and restrain him, in a way the officers could and did reasonably interpret as resistance. (Doc. 23, Ex. A-1 at 08:02:40-08:03:30; Doc. 23-3 at 1-6.) In the face of this contradictory evidence, Mr. Whitehead's vague and general attestation that he gave Officer Garcia no reason to stun him is insufficient to create a genuine factual dispute. Scott, 550 U.S. at 380.
While Mr. Whitehead suggests that he may have been moving involuntarily, rather than resisting, he does not support that suggestion with any competent evidence, nor does he explain how a reasonable officer in Officer Garcia's position could have discerned as much. (Doc. 30 at 21.)
Mr. Whitehead also tries to show a genuine, material factual dispute by pointing to his testimony that Officer Garcia stunned him “contin[u]ously for about 30 seconds.” (Doc. 1 at 5; see also Doc. 30 at 7, 21; Doc. 67 at 4.) Notably, not only Officer Garcia's report, but also Mr. Whitehead's hospital records, directly contradict this testimony. (Doc. 23-3 at 1; Doc. 25-4 at 1.) But even accepting it as true, it is not sufficient to support the inference that Officer Garcia acted maliciously and sadistically to cause harm in light of the undisputed circumstances. These circumstances include that Mr. Whitehead physically kicked at Officer Garcia and elbowed the officer in the face and then struggled with the officers attempting to subdue and restrain him, in a hallway populated by other inmates. And importantly, Mr. Whitehead has presented no evidence that Officer Garcia continued to stun him after officers succeeded in getting him under control. Cf. Est. of Booker, 745 F.3d at 409, 415, 424 (finding genuine issue of material fact regarding whether officer used excessive force by stunning plaintiff's decedent with taser after “he was already handcuffed on the ground and subdued by multiple deputies” and video showed him “motionless on the floor”).
Mr. Whitehead's reliance on Officer Romero's and Inmate Scott's declarations is similarly unavailing. Though Officer Romero opines that “[t]here was no reason [Mr.] Whitehead should have been tased,” there is insufficient evidence in the record to establish her as an expert regarding the propriety of corrections officers' use of force in general or tasers in particular. (Doc. 30-2 at 1.) Also, she wholly fails to acknowledge, much less address the import of, the undisputed facts that Mr. Whitehead had physically attacked Officer Garcia and was resisting the officers trying to restrain him when Officer Garcia stunned him. (See id.) Likewise, though Inmate Scott opines that Officer Garcia engaged in “an abuse of force,” he fails to either establish any expertise or explain why Mr. Whitehead's physical attack on Officer Garcia and resistance to being restrained would not justify Officer Garcia's stunning Mr. Whitehead for 30 seconds, until he was subdued. (Doc. 30-6 at 1.)
In sum, the undisputed facts show that Officer Garcia's kick to Mr. Whitehead's left leg was not sufficiently objectively harmful to constitute cruel and unusual punishment. Further, Mr. Whitehead has failed to show a genuine factual dispute regarding whether Officer Garcia either kicked or stunned him maliciously and sadistically for the purpose of causing harm. Thus, Mr. Whitehead has not shown that either action violated his Eighth Amendment rights, Redmond, 882 F.3d at 936-37, and Officer Garcia is entitled to qualified immunity on the first prong of the qualified immunity test. Riggins, 572 F.3d at 1107.
C. Mr. Whitehead has not shown that that the Eighth Amendment rights on which he relies were clearly established.
Even if Mr. Whitehead had shown a genuine factual dispute regarding whether Officer Garcia's actions violated his constitutional rights, Officer Garcia would still be entitled to qualified immunity because Mr. Whitehead has not satisfied the second prong of the qualified immunity test by showing that these rights were clearly established at the time. “To qualify as clearly established, a constitutional right must be ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Redmond, 882 F.3d at 935 (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Generally, to satisfy this standard Supreme Court or Tenth Circuit caselaw or the weight of authority from other circuits must have established that similar actions were unconstitutional. Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021). “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” City and Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 611 (2015) (quotation marks and brackets omitted).
Attempting to satisfy this prong of the qualified immunity test, Mr. Whitehead first cites to the Eighth Amendment and suggests that “common sense” would be sufficient to alert a reasonable officer in Officer Garcia's position that his conduct was unconstitutional. (Doc. 30 at 20; Doc. 67 at 11-12.) Mr. Whitehead cannot meet his burden with general assertions like these. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (explaining that “clearly established” inquiry must focus on whether officer had fair notice that his conduct was unlawful “in light of the specific context of the case, not as a broad general proposition”); Redmond, 882 F.3d at 935. Moreover, in making this argument, he relies on his unverified, unsupported allegations that he told Officer Garcia about his bad knee and that Officer Garcia responded, “You have a bad knee? Oh ya?” and then kicked him in that leg. (Doc. 30 at 20; Doc. 67 at 11-12.) But again, these allegations are not competent evidence at the summary judgment stage. Lawmaster, 125 F.3d at 1349; Gorton, 309 Fed.Appx. at 275.
Mr. Whitehead also cites to six cases that, according to him, “show there are laws against excessive force which [gave Officer Garcia] notice” of the illegality of his conduct. (Doc. 30 at 21 (citing Gerstein v. Pugh, 420 U.S. 103 (1975); Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999); McCann v. Neilsen, 466 F.3d 619 (7th Cir. 2006); Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005); Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001); Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dep't, 387 F.Supp.2d 1084, 1097 (N.D. Cal. 2005)); Doc. 67 at 13 (same).) But even if they were directly relevant to Mr. Whitehead's claims, which they are not, the cited cases from the Seventh and Ninth Circuits and the Northern District of California could not, without more, clearly establish the law in this Circuit for purposes of qualified immunity. Frasier, 992 F.3d at 1014. And the Supreme Court and Tenth Circuit cases on which Mr. Whitehead relies are wholly inapposite. Specifically, Gerstein addressed whether there is a constitutional right to a judicial hearing on the issue of probable cause for pretrial detention, 420 U.S. at 103, and Martinez addressed a Heck defense to a Fourth Amendment excessive force claim, 184 F.3d at 1123.
Moreover, Tenth Circuit decisions in analogous cases establish that, as discussed in Section IV.B., supra, Officer Garcia's conduct did not violate Mr. Whitehead's constitutional rights at all, much less rights that were clearly established. For example, I note that there are Tenth Circuit decisions finding uses of force analogous to Officer Garcia's kick to be de minimis. See, e.g., Rhoten, 243 Fed.Appx. at 365, 367 (holding that “slamm[ing]” inmate against wall, squeezing his buttocks, and squeezing his nipples and pulling on his testicles “real hard” during pat-down search was de minimis use of force); Marquez v. Watkins, 163 Fed.Appx. 699, 702 (10th Cir. 2006) (holding that pushing and shoving inmate on way to mental health unit was de minimis use of force)
In addition, I note that while a corrections officer's use of a taser to stun an inmate can violate the Eighth Amendment, the Tenth Circuit has found it to do so only when the inmate does not pose an immediate threat to himself or others, e.g., because he is not acting aggressively or has already been subdued. See Stevenson, 733 Fed.Appx. at 943-45 (collecting cases); Hunter, 238 Fed.Appx. at 339 (collecting cases). Conversely, Tenth Circuit caselaw establishes that a corrections officer's use of a taser to stun an inmate does not violate the Eighth Amendment when it is proportional to the officer's need to ensure safety or maintain or restore order and discipline. Stevenson, 733 Fed.Appx. at 943-45; Hunter, 238 Fed.Appx. at 339; see also Jolivet v. Cook, 48 F.3d 1232, at *1 (10th Cir. 1995) (affirming finding that plaintiff's Eighth Amendment rights were not violated by defendants' use of a taser where plaintiff “had refused at least three orders to be handcuffed so he could be moved from his cell”).
And here, even viewed in Mr. Whitehead's favor, the undisputed facts put this case in the latter category. When Officer Garcia stunned him, Mr. Whitehead was an unrestrained inmate who had not fully complied with Officer Garcia's orders to widen his stance to be searched and who responded to Officer Garcia's de minimis kick by kicking back at and striking the officer. Then, taken to the ground, he struggled while officers tried to restrain him. In these circumstances, a reasonable officer in Officer Garcia's position would not have any reason to believe that his actions were unconstitutional. Stevenson, 733 Fed.Appx. at 943-45; Hunter, 238 Fed.Appx. at 339. Mr. Whitehead has failed to show that Officer Garcia violated a constitutional right that was clearly established at the time of the incident at issue and has failed to satisfy the second prong of the qualified immunity test. Riggins, 572 F.3d at 1107.
V. CONCLUSION
Officer Garcia is entitled to qualified immunity because Mr. Whitehead has not met his burden to show Officer Garcia violated his Eighth Amendment rights or that the rights at issue were clearly established at the time. I therefore RECOMMEND that the Court GRANT Officer Garcia's Motion for Summary Judgment (Doc. 49) and DISMISS Mr. Whitehead's remaining claims with prejudice on that ground.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.