Wagner v. Hartley et al
Filing
49
ORDER. ORDERED that Defendants Motion for Summary Judgment 35 is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to Plaintiff's claim for a declaratory judgment and otherwise DENIED by Judge Wiley Y. Daniel on 03/22/13.(jjhsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 10-cv-02501-WYD-KLM
RAYMOND WAGNER,
Plaintiff,
v.
STEVE HARTLEY;
TRAVIS TRANI;
JAMES FOX;
ROBERT KAHANIC;
ANTON EVANS;
SUSAN BUTLER; and
SHERWYN PHILLIPS,
Defendants.
ORDER ON SUMMARY JUDGMENT
I.
INTRODUCTION
THIS MATTER is before the Court on Defendants’ Motion for Summary
Judgment filed May 18, 2012. Defendants seek summary judgment on the only
remaining claim in this case for procedural due process related to the removal of
Plaintiff, a convicted felon, from the general population at Limon Correctional Facility
[“Limon”] and placement in punitive administrative segregation. A response to
Defendants’ motion was filed on August 3, 2012, and a reply was filed on August 17,
2012. For the reasons discussed below, Defendants’ motion is denied.
I note by way of background that the case is alleged to arise from a murder
prosecution by the Arapahoe County District Attorney’s office. The Amended Complaint
alleges that after Jeffrey Heird was found murdered in his cell at Limon in March 2004,
the District Attorney charged Alejandro Perez and David Bueno with murder and sought
the death penalty. (Am. Compl. ¶ 5.) Plaintiff was identified by the Department of
Corrections as an “eyewitness” to the murder. (Id. ¶ 6.) When Plaintiff testified that he
did not witness the murder, he alleges that Defendants then retaliated against him by
fabricating evidence and conjuring up false charges, unsupported by any evidence, in
order to have an excuse to place him in disciplinary segregation for 360 days. (Id. ¶¶ 6,
33; see also Pl.’s Resp. to Defs.’ Mot. Summ. J. [“Pl.’s Resp.”] at 2-3.) Plaintiff asserts
additionally that Defendants refused to give him notice of the charges or access to the
evidence against him (because it did not exist), lied during the administrative hearings
regarding the existence of such evidence, and successfully conspired to keep Plaintiff
isolated and in disciplinary segregation. (Pl.’s Resp. at 2-3.)
Plaintiff alleges that Defendants’ conduct violated his Fourth Amendment Right to
exercise his liberty interest as a general population inmate, his Fifth and Fourteenth
Right to not be deprived of this liberty interest without procedural due process of law,
and his Eighth Amendment right to be free from cruel and unusual punishment. By
Order of March 30, 2012, all but the procedural due process claim was dismissed as
barred by the statute of limitations. Summary judgment is now sought on this claim.
II.
FACTS
These facts are taken from Defendants’ Statement of Material Facts in their
motion and Plaintiff’s response thereto. I have only cited to the evidence supporting the
factual assertions where it is disputed or where I felt it was necessary.
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On or about December 7, 2007, while Plaintiff was serving a sentence at Limon,
he was removed from the general population and placed into administrative segregation
pending an investigation concerning the smuggling of contraband into Limon. He
remained in administrative segregation until December 3, 2008. Defendant Hartley was
the acting Warden of Limon and Defendant Trani was the acting Assistant Warden.
Defendant Fox was a Lieutenant. Defendants Kahanic, Butler, Phillips and Evans were
case managers and acting as hearing board officers.
Defendants assert that Plaintiff was placed in administrative segregation after an
internal investigation revealed that he may have been involved in the smuggling of
tobacco into Limon. (Defs.’ Mot. Summ. J. [“Defs.’ Mot.”], Ex. A, Bates No. DOC00142.) Plaintiff asserts in response that there was no evidence that he was involved in
the smuggling of tobacco into Limon. In support of this, Plaintiff attaches as Exhibit 1 to
his Response his Declaration. The Declaration refers to and attaches a draft prisoner
complaint that Plaintiff was going to file pro se before his counsel volunteered to
represent him, and states that the facts set forth in that complaint are true and correct.1
Following the investigation, on or about December 20, 2007, Plaintiff received a
Notice for an Administrative Segregation Hearing set for December 27, 2007. The
determination at that hearing was that Plaintiff was involved in a plan to smuggle
contraband; namely, tobacco, into Limon. (Defs.’ Mot., Ex. A, Bates No. DOC-00144.)
Defendants Kahanic and Evans, the classification committee members who participated
in the hearing, determined that Plaintiff should be assigned to maximum security,
1
I address the admissibility of this evidence in Section III.B.1, infra.
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administrative segregation because Plaintiff’s acts of introducing contraband into Limon
posed a threat to the security and to the safety of staff and offenders. (Id.) Again,
Plaintiff asserts that no evidence was presented at the hearing in support of this finding.
On January 7, 2008, Plaintiff filed an appeal of the December 27, 2007, decision
to place him in administrative segregation. On January 30, 2008, Defendant Trani
determined that procedures were not followed during the December 2007 hearing and
remanded the case for a new hearing.
On remand, a second hearing was scheduled for February 22, 2008, and Plaintiff
received notice of the hearing on February 15, 2008. At the hearing, the classification
committee members, Defendants Butler and Phillips, determined that Plaintiff’s conduct
posed a serious threat to the security of Limon, and the December 27, 2007, decision to
place Plaintiff in administrative segregation was affirmed. (Defs.’ Mot., Ex. A, Bates No.
DOC-00151.) The February 22, 2008, decision was based on Defendant Fox’s
testimony that Plaintiff was involved in a plan to introduce contraband; namely tobacco,
into Limon. Plaintiff denies that any of his conduct posed a serious threat to the security
of Limon, and asserts that no evidence was presented at this hearing either.
On March 4, 2008, Plaintiff prepared an appeal of the February 22, 2008,
decision. On March 12, 2008, an administrative officer upheld the decision after
determining that the procedures set forth in Administrative Regulation 600-02 were
followed. (Defs.’ Mot., Ex. A, Bates No. DOC-00157.) While Plaintiff admits that the
February 2008 decision was upheld, he denies that the procedures in Administrative
Regulation 600-02 were followed since no evidence was presented at this hearing.
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Sometime thereafter, Plaintiff filed a complaint against Limon’s Warden in Lincoln
County District Court, seeking judicial review of a quasi-judicial determination pursuant
to C.R.C.P. 106(a)(4) and 106.5. On October 17, 2008, upon review of the
administrative segregation hearing records, the Lincoln County District Court issued an
Order vacating Plaintiff’s classification for administrative segregation on grounds that
the classification committee violated the provisions of Administrative Regulation (AR)
600-02(IV)(K)(1) and AR 600-02(IV)(I)(2) when it failed to admit or consider certain
evidence. The Lincoln County District Court further determined that the classification
committee’s failures to adhere to provisions of AR 600-02 amounted to an abuse of
discretion and, possibly, a due process violation, even though Plaintiff was not seeking
relief under 42 U.S.C. § 1983. The Court ordered that Plaintiff be granted a third
classification hearing and that none of the same members who presided at the first two
hearings be on the committee of that hearing.
Pursuant to the Lincoln County District Court’s order, a third classification hearing
was held on or about November 10, 2008, whereupon it was determined that insufficient
evidence existed to support the allegations against Plaintiff and to justify Plaintiff’s
placement in administrative segregation. This decision was affirmed on November 12,
2008. Plaintiff was released from administrative segregation on December 3, 2008, and
transferred to Arkansas Valley Correctional Facility [“AVCF”].
Defendants cite to a number of medical reports while Plaintiff was in
administrative segregation which, while documenting certain medical treatment of
Plaintiff, do not contain any notations concerning complaints, or the treatment provider’s
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observations, of any physical injuries or ailments including, but not limited to, muscle
atrophy, joint pains and aches, repeated and severe migraine and/or other headaches,
mental or emotional stress, fear, or anxiety. The records noted, among other things,
that Plaintiff “gets on and off the table without difficulty or evidence of discomfort”, was
“[n]eat and well-groomed”, was a “well developed, well nourished male ambulating in
cell in no apparent distress” and a “healthy looking male . . ., able to get up from &
ambulate to door well, normal gait . . ., appears well.” They also noted that Plaintiff’s
“[g]eneral appearance was within normal limits”; that Plaintiff denied having any mental
health issues and did not appear to be unusually emotionally upset, anxious, or fearful;
and that he did not have any physical injuries or appear to be traumatized.
On December 3, 2008, Plaintiff was medically screened as a new inmate at
AVCF. The medical record from that date does not contain any notations concerning
Plaintiff’s complaints of, or the treatment provider’s observations, of any physical,
mental, or emotional conditions related to, or arising from, Plaintiff’s lack of outdoor
exercise, lack of outdoor air, and isolation while placed in administrative segregation.
The form indicates that: (1) bowel inconsistency was the only condition for which
Plaintiff is receiving medical treatment; (2) Plaintiff was not being treated for a mental
health condition; (3) Plaintiff had no current medical, dental, or mental health
complaints; (4) Plaintiff’s “[g]eneral appearance was within normal limits”; and (5)
Plaintiff did not have any “[v]isible physical deformities.”
In response to the medical reports discussed above, Plaintiff asserts that the
reports do not mean that he was not suffering from migraines or headaches. Indeed, he
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asserts that he was suffering from frequent and severe headaches while in
administrative segregation. Plaintiff asserts in his Declaration that it “was pointless to
complain about these headaches that were caused by lack of fresh air and ventilation,
because the DOC won’t do anything about headaches”, so he “complained about the
constipation I suffered from as a result of the poor diet and lack of exercise while in
segregation.” (Pl.’s Decl. ¶ 3.)
III.
ANALYSIS
A.
Standard of Review
Summary judgment may be granted where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and the ... moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A fact is ‘material’ if, under the
governing law, it could have an effect on the outcome of the lawsuit.” E.E.O.C. v.
Horizon/ CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “A dispute over
a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on
the evidence presented.” Id.
The burden of showing that no genuine issue of material fact exists is borne by
the moving party. Horizon/ CMS Healthcare Corp., 220 F.3d at 1190. “‘Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). The court must
“‘view the evidence and draw all reasonable inferences therefrom in the light most
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favorable to the party opposing summary judgment.’” Id. (quotation omitted). All doubts
must be resolved in favor of the existence of triable issues of fact. Boren v. Sw. Bell
Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
B.
Whether Summary Judgment Should Be Granted
1.
The Admissibility of Plaintiff’s Evidence
Defendants object to the admissibility and authenticity of Plaintiff’s Declaration
and the draft pro se complaint he refers to in his Declaration. By Order of January 10,
2013, I issued an Order directing Plaintiff to either authenticate his submissions or
propose a method for doing so. As noted therein, Plaintiff’s Declaration is not
personally signed by the Plaintiff; instead, there is only an electronic signature. This is
not appropriate, as an affidavit filed in this Court requires an ink-signed version to be
valid. (January 10, 2013 Order at 1, ECF No. 44.) The Order further noted that
unsigned affidavits do not constitute evidence that may be considered by the Court. (Id.
at 1-2.) Finally, the Order questioned the admissibility at trial of the undated, unsigned
and unsworn pro se complaint attached to the Declaration. (Id. at 2.)
On January 25, 2013, Plaintiff filed a response to that Order representing that he
will testify at trial as to the factual matters set forth in the Declaration and draft
complaint. Defendants’ reply filed on February 11, 2013, does not raise any further
arguments as to the authenticity or admissibility of the Declaration and draft complaint.
Accordingly, I find that these exhibits should be considered as to the summary judgment
motion. In actuality, however, I have only needed to consider Plaintiff’s Declaration in
deciding the summary judgment motion.
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2.
Whether Summary Judgment is Appropriate on the Merits of the
Due Process Claim
I now turn to whether Defendants are entitled to summary judgment on the
remaining claim. To succeed on a procedural due process claim, a plaintiff must prove
two elements: first, that he possessed a constitutionally protected liberty or property
interest such that due process protections are applicable, and second, that he was not
“afforded an appropriate level of process.” Copelin-Brown v. N.M. State Pers. Office,
399 F.3d 1248, 1254 (10th Cir. 2005); Bartell v. Aurora Pub Schs., 263 F.3d 1143, 1149
(10th Cir. 2001). Defendants argue that Plaintiff cannot satisfy either element.
I first address whether Plaintiff possesses a constitutionally protected liberty
interest in connection with his placement in administrate segregation. As noted in my
Order on Defendants’ Motion to Dismiss, mere placement in administrative segregation
does not, on its own, implicate a liberty interest. (Order of March 30, 2012, ECF No. 30,
at 11) (citing Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996)). The question of
whether an inmate has a protected liberty interest in connection with his placement
turns on whether the inmate has suffered an atypical and significant hardship in relation
to the ordinary incidents of prison life. Sandin v. Connor, 515 U.S. 472, 483-84 (1995).
“[T]he touchstone of the inquiry into the existence of a protected, state-created
liberty interest in avoiding restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those conditions themselves ‘in
relation to the ordinary incidents of prison life.’” Wilkinson v. Austin, 545 U.S. 209, 223
(2005) (quoting Sandin, 515 U.S. at 484). This inquiry requires “identifying the baseline
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from which to measure what is atypical and significant in any particular prison system.”
Id.
In Sandin, the Supreme Court held that “Connor’s discipline in segregated
confinement did not present the type of atypical, significant deprivation in which a State
might conceivably create a liberty interest”, as it did not “present a dramatic departure
from the basic conditions of [the inmates’] sentence.” 515 U.S. at 485. Thus, it did “not
exceed similar, but totally discretionary, confinement in either duration or degree of
restriction.” Id. at 485-86. Conner’s situation also did not “present a case where the
State’s action will inevitably affect the duration of his sentence.” Id. at 487. On the
other hand, in Wilkinson, the Supreme Court found that Ohio’s supermax placement
would impose an “atypical and significant hardship under any plausible baseline.” 545
U.S. at 223. This placement implicated a prisoner’s liberty interest because it was for
an indefinite duration reviewed only annually, and it disqualified an otherwise eligible
inmate from parole consideration. Id. at 224.
The Tenth Circuit provided further clarification on how to determine whether a
liberty interest is implicated in Estate of DiMarco v. Wyo. Dep’t of Corrections, 473 F.3d
1334 (10th Cir. 2007). There, the court was asked to address the issue of the
appropriate baseline comparison and how significant the conditions of confinement had
to be to deviate from the baseline to create a liberty interest in connection with
placement into administrative segregation. Rather than adopt “a rigid either/or
assessment”, the Tenth Circuit held it made sense “to look at a few key factors.” Id. at
1342. These “factors might include whether (1) the segregation relates to and furthers a
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legitimate penological interest, such as safety or rehabilitation; (2) the conditions of
placement are extreme; (3) the placement increases the duration of confinement, as it
did in Wilkinson; and (4) the placement is indeterminate (in Wilkinson the placement
was reviewed only annually).” Id. It was noted, however, that “any assessment must be
mindful of the primary management role of prison officials who should be free from
second-guessing or micro-management from the federal courts.” Id.
In the case at hand, I have insufficient evidence to determine the baseline from
which to measure what is atypical and significant in Limon. That is because Defendants
presented no facts or evidence to show how Plaintiff’s confinement in administrative
segregation compared to placement in the general population in Limon. Without such
facts, it is impossible to determine whether Plaintiff’s conditions of confinement were
extreme or whether they imposed a significant and atypical hardship on the Plaintiff.
Defendants also presented no facts or evidence on the issue of whether Plaintiff’s
confinement in administrative segregation was indeterminate. This is problematic since
I found in the Order on the Motion to Dismiss that Plaintiff’s allegations showed a
plausible claim that Plaintiff’s administrative segregation differed significantly from
conditions in the general population and that Plaintiff’s confinement was for an indefinite
term. (Order of March 30, 2012, at 11.) Indeed, I noted that the conditions alleged in
the Amended Complaint are similar to those in the Wilkinson case “including (1) limited
human contact; (2) confinement for all but a few hours a week; (3) confinement with the
lights on for twenty-four hours a day; (4) limited or no access to outdoor recreation; (5)
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limited visitation and communication with family and friends; and (6) indefinite
placement in segregation with limited opportunity for review. (Id. at 12.)
I also note that while Defendants provided evidence that Plaintiff was placed into
administrative segregation pending an investigation into the possession of dangerous
contraband (see form entitled “Colorado Department of Corrections Removal from
Population” attached to Ex. A to Defendants’ Mot.), they did not address why this
placement as compared to some other form of placement was required in terms of a
legitimate penological interest such as safety or rehabilitation. Evidence was required
on this issue given my findings in the March 30, 2012, Order that, taking Plaintiff’s
“allegations as true, Plaintiff’s placement in administrative segregation could not have
furthered any legitimate interest” since Plaintiff contends he was not guilty of the alleged
misconduct and that his placement in administrative segregation was done in retaliation
for his testimony in a murder case. (Order of March 30, 2012, at 11-12.)
The Supreme Court has made clear that “a party seeking summary judgment
always bears the initial responsibility of . . . identifying those portions of [the record] . . .
which it believes demonstrates the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Indeed, the moving party has “both
the initial burden of production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter of law.” Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Relevant to this case, “the
moving party bears the initial burden of presenting evidence to show the absence of a
genuine issue of material fact.” Id. While Defendants point to the lack of evidence
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offered by Plaintiff, the nonmoving party is required “to set forth specific facts showing
there is a genuine issue for trial” only after the moving party has met its burden Id.
Here, Defendants did not meet their burden of presenting evidence to show the
absence of a genuine issue of material fact in connection with their argument that a
liberty interest is not implicated, and Plaintiff was thus not required to present evidence
to support his claim. Accordingly, summary judgment on this issue is not appropriate.
I also note that if a liberty interest is found to exist in this case, the Court must
determine (1) the appropriate procedural protections due to the inmate to prevent
arbitrary abrogation of the liberty interest, and (2) whether the inmate was afforded
those protections. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Again, I find the
evidence and briefing on this issue inadequate. While Plaintiff appears to have been
provided notice and a hearing as well as a written statement of the decision, he alleges
that Defendants denied him access to the evidence against him and/or did not present
any evidence to substantiate the claims, did not allow him a reasonable opportunity to
respond to the allegations, and did not adjudicate his claims before non-biased hearing
officers.2 Again, Defendants did not meet their burden of showing either that Plaintiff
was not entitled to these due process protections or the absence of a genuine issue of
material fact through the presentation of evidence. Accordingly, summary judgment is
also not appropriate on this issue. Further, Defendants have not shown they are
entitled to qualified immunity.
2
Contrary to Defendants’ assertion, this claim goes well beyond an argument that Defendants
merely failed to comply with the provisions of Administrative Regulation 600-02.
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3.
Whether Plaintiff’s Declaratory Judgment Claim is Moot
“Under Article III of the United States Constitution, federal courts may adjudicate
only ‘cases or controversies.’” Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir.
2004). As a result, a court must “‘decline to exercise jurisdiction where the award of any
requested relief would be moot-i.e. where the controversy is no longer live and
ongoing.’” Id. (quoting Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th
Cir.1994)). “‘The touchstone of the mootness inquiry is whether the controversy
continues to touch the legal relations of parties having adverse legal interests in the
outcome of the case,’ and this legal interest must be ‘more than simply the satisfaction
of a declaration that a person was wronged.’” Id. (quoting Cox, 43 F.3d at 1348)
(internal quotation marks and further quotation omitted). Where, as here, “a plaintiff
seeks a declaratory judgment against his opponent, he must assert a claim for relief
that, if granted, would affect the behavior of the particular parties listed in his complaint.”
Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011).
In the case at hand, it is undisputed that Plaintiff’s procedural due process claim
relates to his placement into administrative segregation. It is also undisputed that he
has been released from such segregation. Thus, there does not appear to be a live
controversy, as “‘the entry of a declaratory judgment would amount to nothing more
than a declaration that he was wronged.’” Wirsching, 360 F.3d at 1196 (quoting Green
v. Branson, 360 F.3d at 1196)).
Further, a “plaintiff cannot maintain a declaratory . . . action unless he or she can
demonstrate a good chance of being likewise injured [by the defendants] in the future.”
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Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991). Defendants have presented
evidence that Plaintiff is now serving time at a Massachusetts Department of
Corrections facility for convictions in that state. While Plaintiff has shown that his
Colorado sentence has not yet been discharged, it appears highly unlikely that he would
be returned to Colorado or the Limon facility prior to the discharge date. Indeed,
Defendants present evidence that Plaintiff’s Colorado sentence discharge date is
presently calculated as December 21, 2015. (Defs.’ Reply, Ex. E.) Plaintiff will not
become parole eligible until December 1, 2015, in connection with his Massachusetts
sentence, and his mandatory release date is December 1, 2021. Accordingly, I agree
that Plaintiff’s declaratory judgment claim is moot. See Jordan, 654 F.3d at 1030
(noting that declaratory relief against individual defendants would have no effect
because the plaintiff is no longer incarcerated in the facility where the individual
defendants work); see also McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1363
(11th Cir. 1984) (stating that, as a general rule, a prisoner’s transfer or release from a
jail moots his individual claim for declaratory and injunctive relief, regardless of whether
the prisoner could be returned to the jail in the future).
Plaintiff’s claim for damages is not, however, moot. Wirsching, 360 F.3d at 1196.
Despite Plaintiff’s release from administrative segregation, that claim “‘remain[s] viable
because a judgment for damages in his favor would alter the defendants' behavior by
forcing them to pay an amount of money they otherwise would not have paid.’” Id.
Thus, I address that claim below.
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4.
Whether Summary Judgment is Proper as to Plaintiff’s Claims for
Compensatory and Punitive Damages
Pursuant to the Prison Litigation Reform Act [“PLRA”], 42 U.S.C. § 1997e(e), an
inmate cannot sue for compensatory damages without evidence of physical injury.
Perkins v. Kan. Dep’t of Corrs. 165 F.3d 803, 807-08 (10th Cir. 1999). Defendants
argue that while Plaintiff alleges that he suffered physical injuries during his
administrative segregation, including severe headaches, the medical records do not
support Plaintiff’s allegations. Therefore, Defendants assert that Plaintiff has not and
cannot demonstrate that he has suffered a physical injury as a result of his year-long
placement in administrative segregation.
I reject Defendants’ argument, and find that there are genuine issues of material
fact as this issue. Plaintiff’s Declaration states that he suffered from severe headaches
as a result of Defendants’ conduct. (Pl.’s Decl. at 2 paragraph 3.) The Tenth Circuit
has indicated that headaches constitute “physical injury” within the meaning of the
PLRA. Murray v. Edwards County Sheriff’s Dep’t, 248 F. App’x 993, 995 (10th Cir.
2007). The fact that the medical records do not reflect complaints of headaches by
Plaintiff is an impeachment matter for trial, it does not overcome Plaintiff’s Declaration.
Moreover, Plaintiff also complains of constipation, and bowel problems are noted in the
AVCF medical screening record. Accordingly, I deny Defendants’ Motion for Summary
Judgment as to Plaintiff’s claim for compensatory damages.
Finally, I deny Defendants’ Motion for Summary Judgment as to the claim for
punitive damages. Punitive damages may be available when the defendant’s conduct
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involves reckless or callous indifference to the federally protected rights of others.
Hardeman v. City of Albuquerque, 377 F.3d 1106, 1120-21 (10th Cir. 2004). As
discussed in connection with the due process claim, Plaintiff has alleged that
Defendants denied him access to the evidence against him and/or did not present any
evidence to substantiate the claims, did not allow him a reasonable opportunity to
respond to the allegations, and did not adjudicate his claims before non-biased hearing
officers. I am unable to determine as a matter of law at this time that these actions
could not have been done in reckless or callous indifference to Plaintiff’s rights.
III.
CONCLUSION
Based upon the foregoing, it is
ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 35) is
GRANTED IN PART AND DENIED IN PART. It is GRANTED as to Plaintiff’s claim for
a declaratory judgment and otherwise DENIED.
Dated: March 22, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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