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Serrano v. Ackley

United States District Court, Tenth Circuit

September 24, 2013

ROBERT F. ACKLEY, et al., Defendants.


RICHARD D. ROGERS, District Judge.

On August 19, 2013, the court issued a memorandum and order after considering defendants' motion to dismiss. The court dismissed some of plaintiff's claims and some of the defendants and converted the remainder of defendants' motion to a motion for summary judgment. The court allowed plaintiff until September 13, 2013 to file a response to the motion. This time period has passed and the court has heard nothing from plaintiff. The court shall now consider plaintiff's remaining claims under summary judgment standards. In evaluating the remaining claims, the court shall consider the earlier arguments made by plaintiff in response to the motion to dismiss.


Plaintiff, proceeding pro se, filed his complaint on May 6, 2011. The complaint contained three counts. Plaintiff alleged that the defendants subjected him to retaliatory conduct, deliberate indifference, and violations of due process and equal protection. In Count 1, he asserted that he was retaliated against for exercising his First Amendment rights to utilize the prison grievance system. He contended that defendants Ackley and Bedard took certain actions to retaliate against him after he filed certain grievances. In Count 2, he alleged that defendant Mascorro engaged in deliberate indifference and cruel and unusual punishment in violation of the Eighth Amendment. He asserted that he told defendant Mascorro about the threats made by defendant Ackley and, in not addressing them, she acted with deliberate indifference because she was waiting for the "consummation (sic) of threatened injury." In Count 3, plaintiff alleged that defendants Schneider and Martin violated his due process and equal protection rights under the Fourteenth Amendment. He contended that defendant Schneider failed to properly handle the grievances that he submitted. He asserted that defendant Martin violated various rules in his handling of disciplinary hearings. He requested damages from each defendant in the amount of $50, 000. He also sought (1) reprimands be issued to each of the defendants found to be at fault; (2) a transfer to a more "comfortable facility like a minimum custody facility of my agreement, " and (3) expungement of disciplinary reports that occurred as a result of these events.

In the order of August 19th, the court dismissed Count 2 and a portion of Count 3. Thus, the following claims remain pending: (1) Count 1B-defendants Ackley and Bedard violated plaintiff's First Amendment rights by retaliating against him after he filed certain grievances; and (2) Count 3B-defendant Martin violated his equal protection and due process by failing to follow appropriate rules and procedures for several disciplinary hearings.


Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a genuine issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Essentially, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson , 477 U.S. at 256. A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id . Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves , 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214 (1985). The court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex , 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).


The court has thoroughly examined the Martinez report that was filed in this case. The following facts are either uncontroverted or viewed in the light most favorable to the plaintiff. On February 7, 2011, Corrections Officer Collins removed excess toilet paper from plaintiff's cell at HCF. Plaintiff completed a grievance form and submitted it to Corrections Counselor Keith Anderson but it was returned because plaintiff had not complied with the grievance procedure that required him to attempt to resolve the issue informally within the unit.

On February 9, 2011, plaintiff's cell was searched by defendant Ackley and some of plaintiff's property was confiscated or destroyed pursuant to regulations. Defendant Ackley wrote a disciplinary report about plaintiff's possession of unauthorized property. During the course of the search, plaintiff contends that defendant Ackley warned him that if he submitted another grievance defendant Ackley would bring in Special Security and K-9's. Ackley has stated that he was unaware of plaintiff's prior grievance when he conducted the search of plaintiff's cell on February 9th. Plaintiff sent another grievance to the Warden as an emergency grievance on February 9th. Plaintiff's mother contacted Corrections Counselor Anderson on February 10th, and questioned him about plaintiff's grievances and shakedowns.

On February 18, 2011, a disciplinary hearing was held regarding the property seized from plaintiff by defendant Ackley. The hearing officer was defendant Martin. After reviewing ownership records that would not have been available to defendant Ackley at the time of the seizure, plaintiff was found not guilty. The property seized was returned to plaintiff.

On March 26, 2011, during the noon meal, defendant Bedard observed plaintiff eating a regular meal after he had eaten a vegetarian meal on the prior day. After reviewing the special diet list and noting that plaintiff was listed as a vegetarian, defendant Bedard questioned plaintiff about the discrepancy. Plaintiff said that the food service personnel had given him that meal. Defendant Bedard issued plaintiff a disciplinary report for taking the wrong type of meal.

On March 27, 2011, plaintiff was directed by defendant Ackley to leave the cell house for the noon meal. Plaintiff failed to do so and argued with defendant Ackley about the correct meal designation. Defendant Ackley issued him a disciplinary report for disobeying orders. During the same exchange, plaintiff told defendant Ackley that he had received the regular tray the day before because the food service supervisor checked his identification card and determined that he was not on the vegetarian list. Defendant Ackley consulted the food service supervisor ...

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