Crosby v. Heil , 499 F. App'x 764 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
October 11, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID JAMES CROSBY,
Plaintiff-Appellee, No. 12-1136
v. (D. of Colo.)
MARARET HEIL, J.D. SCOLLARD, (D.C. No. 1:10-CV-00951-WJM-MEH)
CHRISTINE TYLER, CHRISTINA
MARQUEZ, RICH LINS, BURL
McCULLAR, JAYLYNNE KOCH,
SAMUEL DUNLAP, and CAPTAIN
CRISTELLI,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
David James Crosby, a Colorado state prisoner proceeding pro se, appeals
an order of the district court granting summary judgment in favor of the
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
defendants, who are employees of the Colorado Department of Corrections.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. Background
Crosby was convicted in 1994 of two counts of first-degree sexual assault
and sentenced to 30 years’ imprisonment. While in prison, Crosby voluntarily
participated in sex offender treatment for a number of years. 1 He completed
Phase I of treatment and was enrolled in Phase II at the Arrowhead Correctional
Center (ACC) at the time of the incidents at issue here.
In February 2009, Crosby complained to ACC’s kitchen supervisor, Captain
Cristelli, about receiving insufficient food. Shortly thereafter, Crosby was
questioned during group therapy about statements he made to prison officials
minimizing the severity of his crime. 2 Crosby was then placed on increasingly
strict probationary status in the sex offender treatment program and required to
complete remedial assignments. Based on these actions, he filed an
administrative complaint in August 2009. He was terminated from the treatment
program in September 2009, after a hearing.
1
Crosby was not sentenced pursuant to the Colorado Sex Offender
Lifetime Supervision Act, which requires certain sex offenders to participate in
therapy while incarcerated. See Colo. Rev. Stat. § 18-1.3-1004(3).
2
Crosby allegedly expressed frustration with his confinement, stating that
others who had committed more serious crimes had been released on parole
before him and that he was in prison too long for his crime.
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At the same time Crosby left the program, he was transferred to the
Fremont Correctional Facility (FCF), as routinely occurred to inmates dropped
from the program. Crosby was also given the opportunity to apply for
readmission to the sex offender treatment program at a later time.
Crosby then filed suit in federal district court under 42 U.S.C. § 1983,
alleging the defendants violated his First, Fourth, Fifth, Eighth, and Fourteenth
Amendment rights. He claimed the defendants terminated him from treatment and
transferred him to FCF in retaliation for filing complaints and providing legal
advice to other inmates.
After the defendants moved for summary judgment, the district court
referred the motion to a magistrate judge, who recommended it be granted. The
district court adopted the recommendation.
II. Discussion
We construe Crosby’s filings liberally as he is proceeding pro se. Andrews
v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). We discern him to claim the
district court and magistrate judge committed the following errors: (1)
misconstrued his retaliation claim by concluding Crosby received a negative
treatment evaluation before he complained about ACC’s food service rather than
after; (2) misconstrued Crosby to claim he was terminated in retaliation only for
his August 2009 administrative complaint, rather than for his food service
complaint and for legal advice he gave other inmates; (3) ignored evidence that
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Crosby was not terminated from sex offender treatment due to poor performance;
(4) failed to find Crosby had a constitutionally protected interest in sex offender
treatment even though his termination from treatment extends his incarceration
and makes him ineligible for parole; (5) found the defendants did not violate
Crosby’s Fifth Amendment rights by forcing him to admit to statements he claims
were false as a condition of remaining in therapy; (6) found the defendants’ did
not inflict cruel and unusual psychological injury on Crosby by making him redo
therapy assignments; and (7) found Crosby failed to raise a conspiracy claim
because he suffered no injury, when the evidence showed many injuries.
We agree with the magistrate judge’s reasoning, which the district court
adopted. Although Crosby identifies two errors in that analysis, neither
undermines the district court’s conclusion. First, the timing of his January 2009
treatment evaluation is not significant. 3 This evaluation gave Crosby a poor score
for the category “Demonstrates problem-solving skills,” with a handwritten note
stating “disengage –> legal pursuits.” R., Vol. I at 42. Crosby argues this proves
he was retaliated against. The magistrate judge concluded this evaluation
3
The district court concluded Crosby did not object to the magistrate
judge’s finding with regard to the timing of this evaluation. But Crosby did argue
in his objections that the evaluation was likely written after his food service
complaint. Although it is not clear this is sufficient to preserve the objection, see
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (discussing the firm
waiver rule), we assume for purposes of this appeal that it is.
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occurred in January, prior to Crosby’s food service complaint, and could not have
been retaliation for the complaint.
Crosby may be correct that this evaluation was written after his food
service complaint. Although it is the January 2009 evaluation, it is signed and
dated February 11, 2009, which is after Crosby complained about ACC’s food
service on February 5. Id. at 41. It is not clear the evaluation actually was
drafted on this date, but even if it was drafted after February 5th, this does not
show the evaluation was retaliatory.
To allege retaliation, a plaintiff must show:
(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).
Crosby claims that, by the time this evaluation was conducted, he had
engaged in two constitutionally protected activities—providing legal advice to
other inmates and complaining about the food service at ACC. Although giving
legal advice to prisoners is not a constitutionally protected activity, see Peterson
v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998), Crosby’s food-service complaint
likely satisfies our first amendment jurisprudence. See Brammer-Hoelter v. Twin
Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007).
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But receiving a low score on one category in a multipart evaluation would
not be sufficient to chill a person of ordinary firmness from continuing to engage
in a protected activity. Even if we assume “disengage –> legal pursuits” indicates
disapproval of Crosby’s food-service grievance, it only pertains to one category
of many. Crosby received low scores in other categories, and he does not argue
these scores were retaliation for his legal activities. For example, he received a
low score for “Demonstrates social skills,” with a note stating
“patronizing/condescending.” R., Vol. I at 42. He also received high scores in
some categories.
The record does not indicate how much Crosby’s low score in this single
category affected his overall evaluation, or even whether the evaluation was
positive or negative. 4 Even if the evaluation was negative and was entirely
motivated by retaliation, it would not deter someone of ordinary firmness from
filing administrative complaints because Crosby identifies no negative
consequences flowing from this evaluation. He was not placed on probation until
one month later, as a result of his behavior during a group therapy session. He
was not terminated from therapy until September, after many other intervening
steps. So even if Crosby’s evaluation occurred before his food service complaint
4
The evaluation gave Crosby an overall participation score of 1, a
treatment progress score of 3, and a concept group score of 2. R., Vol. I at 41.
There is no scale for these scores, so it is not clear whether a higher or lower
score is better, though higher scores are worse in the individual categories. See
id. at 42. It is also not clear how the three overall scores are weighted.
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rather than after, it still does not amount to retaliation. See Rocha v. Zavaras,
443 F. App’x 316, 318–19 (10th Cir. 2011) (finding that receiving a poor work
evaluation after complaining about prison kitchen staff would not deter a person
of ordinary firmness from exercising constitutional rights).
Second, Crosby alleges the district court improperly weighed evidence by
discounting or ignoring evidence supporting his claim that he was not terminated
from treatment due to his poor performance. Crosby’s evidence consists of three
affidavits from patients in the group therapy meeting where Crosby was asked
about statements minimizing his crime. The affidavits state that Crosby was not
defensive during this meeting as the defendants claimed. Crosby’s behavior
during the meeting led to his being placed on probation in the treatment program.
The magistrate judge did not mention these affidavits in his recommendation, nor
did the district court, despite Crosby’s objection.
A court is not to weigh conflicting evidence or make credibility
determinations when ruling on a summary judgment motion. Jones v. Barnhart,
349 F.3d 1260, 1265 (10th Cir. 2003). But even if there is a dispute about an
issue of fact, this does not preclude a ruling on a summary judgment motion so
long as the fact is not material. Scott v. Harris, 550 U.S. 372, 380 (2007).
Even construing the disputed evidence about the March 2009 meeting in
Crosby’s favor and assuming that he was not defensive, there is no dispute that he
made statements minimizing his crime and performed poorly in treatment in other
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ways, such as by failing to complete treatment assignments in a satisfactory
manner. So even if Crosby was not defensive during the March 2009 meeting,
there is still considerable evidence that he was terminated due to his poor
performance in the treatment program rather than in retaliation for his complaints.
As for the remaining errors Crosby asserts on appeal, his arguments are
unpersuasive. The magistrate judge construed Crosby to complain of retaliation
stemming from his legal advice to inmates, his food service complaint, and his
August 2009 administrative complaint. The magistrate judge also correctly found
that although it may be more difficult for Crosby to receive parole after his
termination, he is still eligible for parole.
And it does not change the outcome if the magistrate judge failed to credit
evidence showing Crosby is earning good-time credits at a lower rate after his
termination, when his sex offender sub-classification was lowered. Under
Colorado law, awards of good-time credits based on sex offender sub-
classification are discretionary, and inmates have no protected liberty interest in
discretionary good-time credits. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th
Cir. 2006); Hubler v. Lander, 413 F. App’x 81, 82–83 (10th Cir. 2011).
As for Crosby’s Fifth Amendment claim, the magistrate judge noted that
requiring an inmate to admit to thoughts and feelings for therapeutic purposes
does not violate the Fifth Amendment. See McKune v. Lile, 536 U.S. 24, 37–38
(2002); Wirsching v. Colorado, 360 F.3d 1191, 1193–94 (10th Cir. 2004). Crosby
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argues he lost his parole eligibility as a result of his compelled admissions, a
consequence outside the scope of therapy. But as the magistrate judge found,
Crosby is still eligible for parole, even he if he less likely to receive it.
The magistrate judge reasoned Crosby’s Eighth Amendment claim failed
because he voluntarily participated in treatment. The only consequence of
Crosby’s failure to comply with the defendants’ demands was termination from
treatment, which does not support an Eighth Amendment claim absent a serious
medical need for treatment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see
also Hunt v. Colo. Dept. of Corr., 194 F. App’x 492, 495 (10th Cir. 2006).
Finally, the magistrate judge properly disposed of Crosby’s conspiracy
claim by noting that although the defendants acted in concert to provide Crosby
treatment, Crosby provided no evidence showing their purpose in doing so was to
deprive him of constitutional rights. See Dixon v. City of Lawton, 898 F.2d 1443,
1449 n.6 (10th Cir. 1990). On appeal, Crosby argues the conspiracy deprived him
of rights, but still provides no evidence the defendants intended to do so.
We agree with the magistrate judge’s analysis of these claims.
III. Conclusion
Accordingly, we AFFIRM for substantially the same reasons as provided by
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the district court and the magistrate judge. Appellant is reminded to continue
making partial payments until the appellate filing fee is paid in full.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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