Walker v. Scherbarth ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TYRONE WALKER,
Plaintiff - Appellant,
v. No. 16-1233
(D.C. No. 1:15-CV-00823-MJW)
DAVID SCHERBARTH, in individual and (D. Colo.)
official capacities; WESLEY WILSON, in
individual and official capacities;
FRANKIE NICKELS, in individual and
official capacities; VIRGINIA PAGE, in
individual and official capacities; FELICIA
BROOKS, in individual and official
capacities; JEAN PETERSON, in
individual and official capacities;
RAMONA PHIPPS, in individual and
official capacities; BRIAN UHRICH, in
individual and official capacities; ALLEN
HARMS, in individual and official
capacities; CURTIS DEINES, in individual
and official capacities; D. HILLYER, in
individual and official capacities;
FITZGERALD, in individual and official
capacities; HIGGINS, in individual and
official capacities; KEVIN VORWALD, in
individual and official capacities; MARC
BOLT, in individual and official capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
(continued)
_________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Tyrone Walker, a Colorado prisoner proceeding without the assistance of
counsel, appeals the district court’s grant of summary judgment to defendants on his
claims of First-Amendment retaliation. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I
The Colorado Department of Corrections (DOC) requires that incarcerated
persons be given work assignments. Before 2012, Mr. Walker was incarcerated at
the Sterling Correctional Facility, where he was assigned to work as an offender care
aide (OCA). In June 2012, he was transferred to the Limon Correctional Facility,
where he was also assigned to work as an OCA. Mr. Walker was transferred back to
Sterling in August 2013 and was assigned to Food Services, which, according to one
of Mr. Walker’s case managers, “is a typical assignment for inmates arriving at
Sterling.” R. Vol. 1 at 549.
Mr. Walker, however, refused to work in Food Services on August 16, 2013,
because doing so entailed an 8-hour shift, which would not leave adequate time to
conduct research and draft filings for his myriad lawsuits, one or more of which are
related to the water quality at Sterling, which was found to have traces of uranium on
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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multiple occasions. He insists that he was given approval to continue his assignment
as an OCA after his arrival at Sterling. On August 22, prison officials circulated a
memorandum to inmates stating that Sterling’s drinking water had again tested for
high levels of uranium. Mr. Walker requested a grievance form to complain about
the water quality on August 26. On September 5, his case manager informed
Mr. Walker that, if he continued to refuse work in Food Services, he would be
referred to the “Classification Committee for possible placement in Restricted
Privileges” (RP), R. Vol. 1 at 550, which is a program where inmates have certain
privileges taken away. Despite additional warnings thereafter, Mr. Walker continued
to refuse and was placed in RP on September 23, 2013, though he has since been
released from RP.
Mr. Walker filed this lawsuit on April 17, 2015. In his most recent amended
complaint, he alleged that he was retaliated against for grieving the water quality at
Sterling by being placed in RP. He also alleged violations of due process, but those
claims were dismissed by the district court on the defendants’ motion. Mr. Walker
does not appeal that dismissal here. The defendants then moved for summary
judgment. In response, Mr. Walker essentially argued that although prison
regulations proscribe inmates from refusing work assignments, they permit inmates
to refuse reassignments from an existing assignment.
The district court granted summary judgment to the defendants, holding that
Mr. Walker failed to establish “but for” causation with regard to any retaliation by
the defendants because his undisputed “refusal to participate in a Food Services
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assignment triggered disciplinary action” regardless of whether the defendants had a
retaliatory motive. R. Vol. 1 at 614. Specifically, the court found that, under
administrative regulations, Mr. Walker did not retain any right to his assignment as
an OCA upon transfer from Limon to Sterling, and even if he did, “nothing in these
regulations places a limit on the prison’s ability to reassign him, and nothing suggests
that [he] was not subject to discipline for refusing a reassignment.” R. Vol. 1 at 613.
The court noted that “the regulations do not support any inference that inmates have a
right to pick their work assignments at will.” R. Vol. 1 at 613. Addressing
Mr. Walker’s proposed distinction between refusing assignments and reassignments,
the court reasoned that when the prison “imposes a reassignment, it is necessarily
true that the previous assignment is no longer DOC sanctioned.” R. Vol. 1 at 612.
On appeal, Mr. Walker presents the following errors for our review: (1) the
district court dismissed six claims that the defendants did not move for summary
judgment on; (2) the district court based its decision on an argument that neither the
defendants nor Mr. Walker addressed, thus violating Federal Rule of Civil Procedure
56(f); (3) Mr. Walker demonstrated a genuine issue of material fact regarding the
causation element of his retaliation claims; and (4) the district court ignored the
defendants’ retaliatory motive in rendering its decision. We address the alleged
procedural errors first.
II
We review the grant of summary judgment de novo, applying the same legal
standard as the district court. Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir.
4
2010). Summary judgment is appropriate if “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). “When applying this standard, we view the evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving party.”
Doe v. City of Albuquerque, 667 F.3d 1111, 1122 (10th Cir. 2012) (internal quotation
marks omitted). We may affirm summary judgment for any reason that finds
adequate support in the record. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).
A
Mr. Walker argues that the district court ignored claims four, six, eight, ten,
twelve, and fourteen of his complaint, all of which relate to his continued placement
in RP, not merely the initial placement. He insists that the defendants only moved
for summary judgment on his first three claims regarding his initial placement in RP.
After a thorough review of the defendants’ motion for summary judgment, we can
find no limitation to Mr. Walker’s first three claims of retaliation. In fact, the motion
expressly argues that defendants’ “placing and maintaining” of Mr. Walker in RP
“was required and justified by policy and not intended to infringe on any protected
activity.” R. Vol. 1 at 341 (emphasis added). We thus discern no error by the district
court in adjudicating Mr. Walker’s claims relating to post-placement retaliation.
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B1
With regard to Mr. Walker’s Rule 56 claim, he contends that the district court
“was not fully informed, and that it erroneously added the argument of
‘re-assignment.’” Opening Br. at 7. He is referring to the district court’s
characterization of his argument for a distinction between inmates refusing an
assignment and refusing a reassignment. Rule 56 requires a court to give “notice and
a reasonable time to respond” before granting a summary-judgment “motion on
grounds not raised by a party,” Fed. R. Civ. P. 56(f), but we clearly see in
Mr. Walker’s response to the motion for summary judgment where he made this
argument:
Plaintiff admits that he did not accept the Job in Food Services. . . .
Plaintiff argues that because he was assigned as an O.C.A. at the time of
the alleged incident, he was not required to accept the Food Service
assignment. Plaintiff also contends that because he had a Job as an
O.C.A., he could not be subjected to the sanctions of [Administrative
Regulation] 600-05. This is because R.P. is not a sanction that can be
imposed against a prisoner who has a facility Job. . . . [F]or a prisoner to
be approved for placement on R.P., he must have had “refused to
participate in” his “assigned” Job or program. Because Plaintiff was
assigned as an O.C.A. and not to Food Services, the act of not
participating in Food Services — a Job Plaintiff was not assigned to —
could not be used as a predicate to subject him to R.P.
R. Vol. 1 at 570–71 (brackets omitted). Though he did not phrase this argument as
succinctly as the district court did, we think the district court’s characterization of the
1
To the extent that Mr. Walker’s arguments regarding this issue touch on the
district court’s issuance of its order before the deadline to file a reply brief, there is
no requirement that a district court wait for or consider a reply brief. See D. Colo. L.
Civ. R. 7.1(d) (indicating that reply briefs are optional and that the district court may
rule on a motion any time after filing).
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argument is faithful and accurate. But even if it were not, “district courts . . . possess
the power to enter summary judgment sua sponte, so long as the losing party was on
notice that she had to come forward with all of her evidence.” Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986). And there can be no doubt here that Mr. Walker
was on notice to present all of his evidence.
Mr. Walker’s proposed smoking gun does nothing to dislodge this conclusion.
He points to an Implementation Adjustment that requires a change of assignment to
be “‘reviewed by the [offender’s] case manager, current supervisor, and prospective
supervisor.’” Opening Br. at 8 (quoting I.A. 850-03). He says he would have raised
this provision if he had known the district court would find a distinction between
assignment and reassignment. But Mr. Walker points to no evidence in the record
showing his assignment to Food Services was not reviewed as required; all he
musters are conclusory allegations. The district court therefore did not grant the
motion on grounds not raised by a party, much less do so without notice and time to
respond.
C
Having disposed of the procedural claims of error, we arrive at the merits of
Mr. Walker’s cause of action for retaliation. Mr. Walker argues that he demonstrated
a genuine issue of material fact by showing that he was not subject to RP pursuant to
DOC policy and producing an affidavit from Lewis Moore, an offender he cared for
as an OCA. He also contends that documents in the record, which do not reflect any
assignment as an OCA at Sterling, were “doctored, altered, and otherwise falsified”
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by the defendants to remove any such reference. Opening Br. at 16. He maintains
that he provided information showing that defendants were wrong about the timeline
of events — that Mr. Walker was not told about RP as a potential sanction until
September 5, 2013, thus demonstrating that RP was not a consideration until after he
grieved the water quality at Sterling.
“[P]rison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998) (internal quotation marks omitted). A First-Amendment
retaliation claim requires proof of the following elements:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury
that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the defendant’s adverse action was
substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). “Obviously, an inmate
is not inoculated from the normal conditions of confinement . . . merely because he
has engaged in protected activity,” so to satisfy the third prong of this analysis,
Mr. Walker was required to establish that “but for the retaliatory motive, the
incidents to which he refers . . . would not have taken place.” Peterson, 149 F.3d at
1144 (internal quotation marks omitted).
In the DOC, “[a]n offender who transfers to another facility/unit, for any
reason, does not retain the right to any previous assignment.” Admin. Reg.
§ 850-03(IV)(F)(3), available at R. Vol. 1 at 599. Additionally, “[a]ny DOC
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offender who refuses to participate in, or is terminated from, a DOC sanctioned work
or treatment program is subject to Restricted Privileges Status and the offender’s case
manager shall initiate a restricted privileges (RP) status review.” Admin. Reg.
§ 600-05(IV)(A)(1), available at R. Vol. 1 at 498. In this provision, “refusal” is
defined as “[a]ny condition caused by offenders’ actions/conduct that precludes their
[active] participation in work assignments.” Admin. Reg. § 600-05(III)(C) & (F),
available at R. Vol. 1 at 497–98.
We are not persuaded by Mr. Walker’s arguments for a number of reasons.
First, with regard to Mr. Moore’s affidavit, it is scant, stating only that Mr. Walker
was temporarily assigned as his OCA “around August[] 2013.” R. Vol. 1 at 583.
Information presented in a nonmovant’s affidavit, however, “must be based on
personal knowledge and must set forth facts that would be admissible in evidence.”
Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015) (alterations
and internal quotation marks omitted). In this affidavit, there is no factual foundation
for Mr. Moore’s personal knowledge of Mr. Walker’s work assignment or any
specificity as to when Mr. Walker was purportedly assigned as an OCA. The
affidavit is therefore “conclusory and self-serving,” Murray v. City of Sapulpa,
45 F.3d 1417, 1422 (10th Cir. 1995) (internal quotation marks omitted), and does not
demonstrate a genuine issue of material fact.
Without the affidavit, we are left with a multitude of prison records that do not
reveal any assignment as an OCA at Sterling, temporary or otherwise, and
Mr. Walker’s assertion that such records were forged. While we will not sanction the
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falsification of records, Mr. Walker has not proffered any evidence to create a triable
fact issue as to whether a particular defendant altered his prisoner records. See, e.g.,
Cardoso v. Calbone, 490 F.3d 1194, 1199 (10th Cir. 2007) (holding broad allegation
of conspiracy to fabricate prison misconduct charge failed to state a claim for relief);
see also Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that “mere
allegations of falsified evidence,” without more, do not state a claim). This
contention is thus insufficient to overturn the district court’s grant of summary
judgment.
Regardless of these defects in his claims, the timeline of events reflected in the
record does not support Mr. Walker’s allegations of retaliation. Specifically,
Mr. Walker first informed the supervisor of Food Services on August 16 that he
“would not work in the kitchen because he needed to go to [the] law library.”2
R. Vol. 1 at 494. Given that prison officials did not apprise the Sterling population
of the water quality until August 22, there is no way his placement in RP could be in
retaliation for his water-quality grievance. Rather, as the simplest explanation would
dictate, Mr. Walker’s placement in RP was a consequence of his refusal to work in
Food Services, as this consequence is mandatory under administrative policy. See
Admin. Reg. § 600-05(IV)(A)(1) (requiring that “the offender’s case manager shall
initiate a [RP] status review” (emphasis added)). Mr. Walker’s allegations that RP
2
According to the food-service supervisor, Mr. Walker would still have
“plenty of time to take care of his legal matters” while working in Food Services.
R. Vol. 1 at 494.
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only became a consequence for him after he grieved the water quality on August 26
are baseless and belied by the regulations. Furthermore, in light of prison policy that
gives Mr. Walker no right in his previous assignment as an OCA in Limon, see
Admin. Reg. § 850-03(IV)(F)(3), it is clear that his placement in RP would have
taken place regardless of any retaliatory motive on the part of the defendants. See
McBeth v. Himes, 598 F.3d 708, 719 (10th Cir. 2010) (“If there is a finding that
retaliation was not the but-for cause of the adverse action, the claim fails for lack of
causal connection . . . despite proof of some retaliatory animus in the official’s
mind.” (alterations and internal quotation marks omitted)).
In his arguments to the contrary, Mr. Walker confuses not being told about RP
until September 5 as evidence that the DOC was not considering RP until that date.
In reality, pursuant to policy, RP was a consequence of his refusal to accept his
food-service assignment from the moment he refused on August 16; it is of no
moment that the DOC gave Mr. Walker multiple warnings before referring him for
RP. See Admin. Reg. § 600-05(IV)(A)(1). Additionally, though Mr. Walker
complains of his continued placement in RP despite appeals and it being normal for
inmates to rotate out of RP, the defendants presented evidence that it is routine for
inmates moving out of RP to be assigned to Food Services. See R. Vol. 1 at 557.
Mr. Walker continued to refuse an assignment there, complaining that “he needed
more time to work on his court cases.” Id. Accordingly, Mr. Walker has not raised
any genuine issue of material fact on appeal.
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D
Having concluded that his retaliation claim fails regardless of any retaliatory
motive the defendants may have had, it is not necessary for us to rule on
Mr. Walker’s fourth claim of error — that the district court ignored evidence of the
defendants’ retaliatory motive.
III
In this case, Mr. Walker experienced “the normal conditions of confinement,”
natural consequences of his stated refusal to work in Food Services. See Peterson,
149 F.3d at 1144. We therefore affirm the district court’s grant of summary
judgment to the defendants. We also grant Mr. Walker’s motion to proceed without
prepayment of fees.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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