Opinion
Civil Action No. 16-cv-02060-CMA-NRN
05-01-2019
TERANCE DEJUAN WILSON, Plaintiff, v. C.O. LIA, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT C.O. LIA'S MOTION FOR SUMMARY JUDGMENT (DKT. #89)
This matter is before the Court on Defendant Correctional Officer Alfonse Lia's Motion for Summary Judgment. (Dkt. #89.) Judge Christine M. Arguello referred the motion to me pursuant to a memorandum dated January 28, 2019. (Dkt. #91.) Plaintiff Terance DeJuan Wilson, through counsel, filed a one-page opposition to the motion (Dkt. #98), and Mr. Lia filed a reply (Dkt. #99). The Court also heard argument by counsel on May 1, 2019.
Mr. Lia's motion seeks dismissal of the sole remaining claim brought by Mr. Wilson, which alleges that Mr. Lia violated Mr. Wilson's Eighth Amendment right to be free from violence by other inmates when he allegedly broadcast over a loudspeaker that Mr. Wilson had engaged in child molestation. According to Mr. Wilson, other inmates allegedly heard the broadcast, resulting "in a rumor and harassment and threats" towards him, as well as assaults on him, by other inmates. (Dkt. #44 at 8.)
In his motion, Mr. Lia argued Mr. Wilson's claim should be dismissed because he failed to exhaust his administrative remedies. Mr. Lia supported this argument by providing an affidavit by a CDOC Step 3 Grievance Officer stating he searched for but did not find any grievance filed by Mr. Wilson in relation to the alleged incident involving Mr. Lia. (Dkt. #89-1 at 2-4.) Mr. Lia also argued he was entitled to qualified immunity because Mr. Wilson had not presented any evidence that Mr. Lia's conduct violated a constitutional right, much less a clearly established one. In addition, Mr. Lia attached an affidavit to his motion stating he did not make the alleged statement over the prison's loudspeaker or PA system, but that he communicated with Mr. Lia solely via the in-cell intercom, and that it would not have been possible for any other inmates to hear their conversation. (Dkt. #89-1 at 38-41.)
Mr. Wilson, in his reply, did not refute any of the factual allegations set forth in Mr. Lia's motion: i.e., Mr. Wilson did not argue he filed any grievance in relation to the incident, or that the alleged statement made by Mr. Lia was not made using his in-cell intercom rather than over the prison's loudspeaker or PA system. And at the May 1, 2019 hearing, Mr. Wilson's counsel, Mr. Brice A. Tondre, actually acknowledged that Mr. Wilson has no viable claim against Mr. Lia, and he did not contest that entry of summary judgment in Mr. Lia's favor would be appropriate.
Accordingly, for the reasons set forth above as well as those stated on the record during the May 1, 2019 hearing, the Court RECOMMENDs that Mr. Lia's Motion for Summary Judgment (Dkt. #89) BE GRANTED, and the remaining claim in this case be DISMISSED WITH PREJUDICE.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). Dated: May 1, 2019
Denver, Colorado
/s/_________
N. Reid Neureiter
United States Magistrate Judge