EDWIN MARK ACKERMAN v. JIM KEITH, Warden, BCCF; KELLY CLODFELTER, Chief of Security, BCCF; J. CUNNINGHAM, Case Manager, BCCF; and SGT. SALAZAR, Housing Sgt., BCCF
Civil Action No. 06-cv-02384-PAB-MEH
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
March 22, 2010
This matter comes before the Court on the Recommendation of United States Magistrate Judge (“the Recommendation”) [Docket No. 104] concerning plaintiff’s Motion for Summary Judgment [Docket No. 89] and defendants’ Motion for Summary Judgment (“Defs.’ Mot. for Summ. J.”) [Docket No. 98]. Plaintiff filed timely objections [Docket No. 106] to the Recommendation. Defendants have filed a response [Docket No. 108] to the objections, and plaintiff filed a response to defendants’ response [Docket No. 110]. The Court has conducted a de novo review of the record and has construed the plaintiff’s pleadings liberally in light of his status as a pro se plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Plaintiff objects to the Recommendation’s finding that he failed to exhaust
In their motion for summary judgment, defendants did not raise the defense of failure to exhaust administrative remedies. The Recommendation found that plaintiff had not complied with the Colorado Department of Corrections’ (“CDOC”) three-step grievance process because he only filed Step 1 and Step 2 grievances regarding his placement in segregation. Recommendation at 6; see CDOC Admin. Reg. 850-04 §IV(G)(2). CDOC Administrative Regulation 850-04 § IV(A)(5), however, provides that “this grievance procedure may not be used to seek review of [Code of Penal Discipline] convictions[] [and] administrative segregation placement” because such issues “have exclusive appeal procedures.” Plaintiff contends that he complied with the appropriate procedures to challenge his placement in segregation. Defendants have not adequately addressed the appropriate administrative procedures available to plaintiff in regard to his challenge to segregation and whether he complied with them. Thus, the Court is not satisfied that defendants have met their burden of proof on the question of exhaustion of administrative remedies.
The Court therefore turns to the merits of plaintiff’s claim that his placement in segregation was retaliatory. Summary judgment is warranted under
Plaintiff alleges that defendant Salazar1 initiated harassing searches of his cell in March of 2005. See Compl. [Docket No. 85] at 3. Plaintiff also contends that, in retaliation for grievances he filed regarding the searches, the prison’s Chief of Security, defendant Kelly Clodfelter, retaliated against him by placing him in segregation in April 2005. See id. Plaintiff attaches to his complaint a Notice of Charge(s) describing threatening statements plaintiff included within request forms which arose out of his frustration over not being transferred back to a facility where he previously was housed. See Ex. B to Compl. [Docket No. 85]. Defendant Clodfelter indicated he placed plaintiff in segregation in light of those threats. Id. Plaintiff points to no evidence contradicting
Plaintiff alleges that, after being released from segregation, defendant Salazar thereafter placed him back in segregation. The record indicates that a non-defendant correctional officer, a Captain Chavez, signed a Removal from Population form in which plaintiff was described as being verbally disruptive shortly after a prisoner count while his section of the facility was locked down. Ex. A-4 to Defs.’ Mot. for Summ. J. [Docket No. 98]. Defendant Salazar describes the same conduct in a Notice of Charge(s) against plaintiff. Ex. A-2 to Defs.’ Mot. for Summ. J. The record indicates that, in light of plaintiff’s conduct during the lock down, defendant Salazar and Captain Chavez escorted plaintiff to the security office and, from there, plaintiff was taken to segregation. Id. Plaintiff was thereafter convicted of the disciplinary charges and sentenced to punitive segregation by individuals other than defendant Salazar. Moreover, defendant Keith, the warden of the facility, appears to have done nothing more than review and affirm the conviction.
To the extent plaintiff now claims that there was insufficient evidence to place him in segregation, and that the real reason was retaliation, he points to no evidence that would create a genuine issue for trial on this point. And, his contention that he was ultimately exonerated finds no support in the record. Rather, as plaintiff admits, defendants expunged his record, and dropped the charges during the state court proceedings challenging his conviction, because the audio tape of his hearing was
Finally, the Court concurs with the magistrate judge’s determination that the record contains no evidence that any of the defendants’ conduct interfered with plaintiff’s ability to engage in constitutionally protected activity. Moreover, in regard to plaintiff’s two remaining claims – one alleging the cell searches violated the Eighth Amendment and the other contending that defendants were deliberately indifferent to the alleged harassment – the Court agrees with the Recommendation’s thorough and well-reasoned explication of why defendants are entitled to summary judgment.
Accordingly, it is
ORDERED that plaintiff Edwin Mark Ackerman’s objections [Docket No. 106] to the Recommendation of United States Magistrate Judge are OVERRULED. It is further
ORDERED that plaintiff’s Motion for Summary Judgment [Docket No. 89] is DENIED. It is further
ORDERED that defendants’ Motion for Summary Judgment [Docket No. 98] is GRANTED. It is further
ORDERED that judgment shall enter in favor of defendants and against plaintiff.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge