Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff,
v.

JOHN HYATT, et. al. Defendants.

DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants John Hyatt, Robert Fahey, Betty Fulton, Paul Carreras, Connie Davis, Ken Maestas, Joseph Garcia, and David Archuleta (collectively, "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. of Hall & Evans, L.L.C., hereby submit this Reply Brief in Support of Motion for Summary Judgment, as follows: ARGUMENT I. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FROM PLAINTIFF'S RETALIATION CLAIM Defendants filed their Motion for Summary Judgment ("Defendants' MSJ") on July 2, 2007. Plaintiff submitted his Response to Defendants' Motion for Summary Judgment ("Plaintiff's Response") on September 24, 2007. Nothing contained in the Plaintiff's Response alters the propriety of this Court granting summary judgment for the Defendants. A careful review of the summary judgment record and the specific facts

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established by Plaintiff demonstrates Plaintiff has not and cannot demonstrate any cognizable First Amendment retaliation claim against the Defendants as a matter of law. A. Burden of Proof Plaintiff does not contest the Defendants' articulation of the applicable burden of proof. [See Defendants' MSJ, at 2-3; Plaintiff's Response, at 1-12]. B. Elements of Claim Plaintiff also does not contest the Defendants' recitation of the elements of his 42 U.S.C. § 1983 First Amendment retaliation claim. [See Defendants' MSJ, at 4; Plaintiff's Response, at 1-12]. C. Reply Concerning Material Undisputed and Admitted Facts Pursuant to this Court's Practice Standards for Civil Actions governing motions for summary judgment [see REB Civ. Practice Standard V.I.4.b.1], Defendants provided a section of Material Undisputed and Admitted Facts consisting of 56 separately numbered facts supported by specific references to the record submitted to this Court. [See Defendants' MSJ, at 4-14]. In response, Plaintiff does not specifically dispute any of the facts presented by the Defendants. Instead, Plaintiff provides a narrative [See Plaintiff's

statement of facts including both admitted and disputed facts.

Response, at 1-5 & n. 1]. However, Plaintiff never specifies which of the 56 facts presented by the Defendants Plaintiff claims are in dispute. [See Plaintiff's Response, at 1-5 and n. 1]. Plaintiff's response to the Defendants' Material and Admitted Facts is inconsistent with this Court's Practice Standards for Civil Actions which require a party opposing summary judgment to identify any material facts in dispute with specific

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references to the summary judgment record.

[See REB Civ. Practice Standard

V.I.4.b.2]. As a result of the Plaintiff's failure to follow this Court's Practice Standards for Civil Actions, neither this Court nor the Defendants have any ability to evaluate whether in fact any of these material facts are really in dispute based upon admissible evidence contained in the summary judgment record. Further, the Defendants have no ability to challenge the Plaintiff's denials or any actual facts offered by the Plaintiff to support the denials. Fundamentally, Plaintiff's presentation thwarts the laudable goal behind this Court's Practice Standards for Civil Actions concerning motions for summary judgment that require litigants to make specific references to the summary judgment record with all factual statements and denials made in summary judgment briefing. Fortunately, the Federal Rules of Civil Procedure specifically contemplate the failure to appropriately oppose a motion for summary judgment. Fed. R. Civ. P. 56(e) provides, in pertinent part, as follows: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. P. 56(e). Here, Plaintiff's failure to provide any specific support for his denials of the undisputed facts contained in the Defendants' MSJ represents a failure to adequately support his response pursuant to Fed. R. Civ. P. 56(e). After all, "[w]here, as here, the non-movant bears the burden of proof at trial, the non-movant must point to specific evidence establishing a genuine issue of material fact with regard to each

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challenged element." Murphy v. Gardner, 413 F.Supp.2d 1156, 1162 (D.Colo. 2006) (alteration added). Plaintiff's failure to provide any evidentiary support for his denials of the Defendants' statement of undisputed facts represents a failure to meet his summary judgment burden under Fed. R. Civ. P. 56(e). Under these circumstances, this Court is justified in considering the Plaintiff's failure to support his denials of the Defendants' statement of undisputed facts as a waiver of "the right to respond or to controvert the facts asserted in the summary judgment motion." Reed v. Nellcor Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Otherwise, this Court will be required to search the entirety of the summary judgment record to find support for the Plaintiff's denials and the Defendants will have absolutely no opportunity to contest the Plaintiff's unsupported denials at all. In Gross v. Burggraf Constr. Co., 53 F.3d 1531 (10th Cir. 1995), the Tenth Circuit addressed the fundamental problem with the Plaintiff's approach: To withstand a motion for summary judgment, `the nonmovant must do more than refer to allegations of counsel contained in a brief . . . ." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 121 L.Ed.2d 566, 113 S.Ct. 635 (1992). "Sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Id. at 1024. Without a specific reference, "we will not search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury." Id. at 1025; accord United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). We cannot consider these unsubstantiated allegations in reviewing this appeal. Id. at 1546.

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D. Response to Plaintiff's Disputed Facts Plaintiff's Response offers five Disputed Facts. [See Plaintiff's Response, at 5-6]. However, review of each of them demonstrates they are not really facts, but are actually conclusory assertions of the elements of the Plaintiff's retaliation claim against the Defendants. [See Plaintiff's Response, at 5-6]. Defendants dispute the Plaintiff has established the elements of his retaliation claim against the Defendants based on the undisputed facts contained in the summary judgment record as presented by the Defendants. Plaintiff's conclusory assertion of having met the elements of the Plaintiff's retaliation claim does not make it so. E. Required Facts That Cannot Be Established Plaintiff has still not established any specific facts showing he was retaliated against as a result of his exercise of his constitutional rights. Plaintiff has not and cannot demonstrate that but for the retaliatory motive any incidents he complains of would not have occurred. Plaintiff has not established any of the Defendants took any specific action with respect to him during his incarceration based on any retaliatory motive or that they were even aware of his alleged protected activity. Finally, Plaintiff cannot establish any concerted action by the Defendants to retaliate against him for the exercise of his First Amendment rights.

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F. Discussion 1 i. Defendant John Hyatt Defendants specifically analyzed the eight actions Plaintiff claims Captain Hyatt did to retaliate against him as a result of the service of a C.R.C.P. 106(a)(4) complaint on Captain Hyatt and Lieutenant Fahey by another inmate on July 15, 1999. [See Defendants' MSJ, at 15-20]. Plaintiff's Response does not specifically address any of these issues. However, Defendants reply to the Plaintiff's general discussion of each of them in the same order as presented in Defendants' MSJ. 2 First, Plaintiff contends Captain Hyatt retaliated against him based on the shakedown of Mr. Baldauf's cell on July 20, 1999. [See Defendants' MSJ, at 16-17]. Plaintiff contends he has evidence to demonstrate Captain Hyatt was involved in the cell shakedown based on Corrections Officer Nelson's alleged response to Mr. Baldauf's inquiry of whether Captain Hyatt was "behind the search." [See Plaintiff's Response, at

Defendants' MSJ addressed the Plaintiff's retaliation claims based on his specific allegations against each of the eight remaining individual Defendants. [See Defendants' MSJ, at 15-31]. Defendants did so because of the personal participation requirement of the Plaintiff's 42 U.S.C. § 1983 claim. See, e.g., Camfield v. City of Oklahoma City, 248 F.3d 1214, 1225 (10th Cir. 2001); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Plaintiff never challenges the applicability of this legal principle. [See Plaintiff's Response, 1-12]. However, Plaintiff does not analyze the personal participation of any of the Defendants and instead presents the Plaintiff's "evidence" about all of the Defendants together. [See Plaintiff's Response, at 6-10]. In this Reply, Defendants attempt to unwind the Plaintiff's arguments and refocus this Court's attention on what is actually at issue on summary judgment. Indeed, Plaintiff's Response is devoid of any specific analysis concerning any of the remaining eight individual Defendants. [See Plaintiff's Response, at 1-12]. As a result, this Reply addresses the Plaintiff's arguments applicable to each Defendant in turn in the same fashion as related to Captain Hyatt described above. 6
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8]. Unfortunately, Mr. Nelson's alleged statement is hearsay and is not admissible for purposes of summary judgment since Mr. Nelson is not a Defendant and no other basis under the Federal Rules of Evidence exists to consider this statement for summary judgment purposes. See, e.g., Zwygart v. Board of County Commissioners of

Jefferson County, Kan., 483 F.3d 1086, 1092-1093 (10th Cir. 2007) (hearsay not appropriately considered on summary judgment); Young v. Dillon Companies, Inc., 468 F.3d 1243, 1252 (10th Cir. 2006) (same). Further, Plaintiff claims the length of the search and the claim it took two correctional officers that long to find anything on Mr. Baldauf proves Captain Hyatt was involved. [See Plaintiff's Response, at 8]. However, neither of these two "facts" provides Captain Hyatt had any knowledge whatsoever about the cell search. Cell shakedowns and detailed searches of inmate cells is a fact of prison life. Absent actual evidence providing a link between the cell search and Captain Hyatt he simply cannot be held individually liable under a retaliation theory. Second, Plaintiff alleges Captain Hyatt retaliated against him by charging him but not his cellmate with a COPD violation after the shakedown. Initially, Defendants

argued Plaintiff cannot establish the COPD charges would not have occurred absent the alleged retaliatory motive by Captain Hyatt. [See Defendants' MSJ, at 17]. Plaintiff responds by asserting he has demonstrated the search was retaliatory and therefore even though he was appropriately charged and convicted of violating the COPD that somehow that does not matter. [See Plaintiff's Response, at 8]. However, the law is clear that for an inmate to state a cognizable retaliation claim he must demonstrate that but for the retaliation the incidents complained of would not have occurred. See, e.g.,

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Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).

Plaintiff's apparent

dissatisfaction that this is the law is of no matter to this Court's analysis. Here, Plaintiff cannot establish he would not have been charged and convicted of a COPD violation. Further, and more importantly, Defendants argued Plaintiff could not establish Captain Hyatt actually caused him any injury based solely on the initiation of COPD charges given the fact that Plaintiff was convicted by the hearing officer, and had the COPD conviction upheld by the Warden and by the state courts of Colorado. [See Defendants' MSJ, at 17]. Plaintiff fails to address this dispositive argument with respect to this issue anywhere in his Response. [See Plaintiff's Response, at 1-12]. Third, Plaintiff alleges Captain Hyatt retaliated against him based on correctional officers not providing him with appropriate clothing during his stay in segregation. Defendants argued Plaintiff has no evidence Captain Hyatt was involved or even aware of this alleged deprivation. [See Defendants' MSJ, at 17-18]. The only allegation

Plaintiff makes that is even remotely suggestive of a specific awareness by Captain Hyatt is that all of the correctional officers who were working in the segregation unit "were under the direction of Defendant Hyatt." [See Plaintiff's Response, at 3]. This is not enough as a matter of law to demonstrate awareness or personal participation by Captain Hyatt in the alleged conditions of confinement in segregation. Fourth, Plaintiff argues Captain Hyatt retaliated against him by not appropriately considering his request after his COPD conviction concerning the alleged prior expiration of his probation. Defendants argued Plaintiff cannot establish Captain Hyatt ever received the letter where Mr. Baldauf allegedly made this request. [See

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Defendants' MSJ, at 18].

Plaintiff never addresses this issue anywhere in his

Response. [See Plaintiff's Response, at 1-12]. Fifth, Plaintiff contends Captain Hyatt retaliated against him by removing him from population but not charging him with a COPD violation for 12 days. Defendants argued Captain Hyatt did not remove Plaintiff from population and was not the initiating officer for the subsequent Notice of Charges and therefore Plaintiff cannot establish Captain Hyatt was personally responsible for this delay. Defendants also argued

Plaintiff cannot establish any injury from the 12 day delay in bringing charges. [See Defendants' MSJ, at 18-19]. Again, Plaintiff never addresses these arguments in his Response. [See Plaintiff's Response, at 1-12]. Sixth, Plaintiff alleges Captain Hyatt retaliated against him by arranging for COPD charges to be initiated against him after his altercation with Mr. Carrigan. Defendants pointed out Plaintiff cannot establish personal participation by Captain Hyatt in this event. [See Defendants' MSJ, at 19]. Nowhere in Plaintiff's discussion of this event does Plaintiff establish personal participation by Captain Hyatt in the decision to charge him with violations of the COPD related to his altercation with Mr. Carrigan. [See Plaintiff's Response, at 4]. Seventh, Plaintiff claims Captain Hyatt retaliated against him by arranging for Correctional Officer Archuleta to initiate COPD charges against him based on a false accusation of threatening to kill a staff member. Defendants argued Captain Hyatt's review of the Notice of Charges did not cause Plaintiff any actual injury. Defendants' MSJ, at 19-20]. [See

Again, Plaintiff's discussion of this issue does not

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demonstrate how Captain Hyatt's personal participation in this event caused him any actual injury of any kind. [See Plaintiff's Response, at 4-5]. Eighth, Plaintiff alleges Captain Hyatt retaliated against him by bringing him into his office and threatening him for attempting to communicate with the Warden. Defendants argued Plaintiff cannot state a viable retaliation claim on this basis because he cannot demonstrate any actual injury occurred based on Captain Hyatt's alleged threat. [See Defendants' MSJ, at 20]. Plaintiff fails to address this issue anywhere in his Response. [See Plaintiff's Response, at 1-12]. ii. Defendant Robert Fahey First, Plaintiff contends Lieutenant Fahey retaliated against him by arranging for the shakedown on July 20, 1999. Defendants argued Lieutenant Fahey did not

personally participate in the cell shakedown and no evidence exists to link him to its occurrence. [See Defendants' MSJ, at 21]. Again, Plaintiff only relies on the conclusory allegation and the inadmissible statement he attributes to Correctional Officer Nelson. Importantly, however, even Mr. Nelson's statement does not implicate Lieutenant Fahey in the cell shakedown and Plaintiff presents no actual evidence linking him to that event. Second, Plaintiff alleges Lieutenant Fahey retaliated against him by refusing to provide him with appropriate clothing while he was in segregation from July 29, 1999, through August 23, 1999. Defendants argued Plaintiff does not have any evidence Lieutenant Fahey was personally aware of his circumstances in segregation. [See

Defendants' MSJ, at 21-22]. In his Response, Plaintiff again offers no actual evidence that Lieutenant Fahey was aware of his conditions of confinement in segregation and

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therefore cannot establish Lieutenant Fahey's personal participation in this alleged constitutional violation. Third, Plaintiff complains Lieutenant Fahey retaliated against him by refusing to provide him with appropriate clothing during another stay in segregation from September 11, 1999, through September 23, 1999. Defendants argued the same thing as above. [See Defendants' MSJ, at 22]. Plaintiff offers nothing establishing Lieutenant Fahey's personal participation in his Response. Fourth, Plaintiff argues Lieutenant Fahey retaliated against him by throwing a grievance in his cell and refusing to answer it on September 14, 1999. Defendants argued Plaintiff had not established any causal connection between this incident and the events of July 15, 1999. [See Defendants' MSJ, at 22]. Plaintiff fails to address this argument in his Response. [See Plaintiff's Response, at 3-4]. Fifth, Plaintiff contends Lieutenant Fahey retaliated against him by failing to provide him with stamps during his stay in segregation in December 1999. Defendants argued no causal connection with any protected activity was established by Plaintiff and what he complained of was de minimis. [See Defendants' MSJ, at 22-23]. Again, Plaintiff does not specifically address these arguments in his Response. [See Plaintiff's Response, at 1-12]. Sixth, Plaintiff alleges Lieutenant Fahey retailed against him by inappropriately delivering his mail in segregation. Again, Defendants argued this claim was de minimis. [See Defendants' MSJ, at 23]. Again, Plaintiff does not address this argument in his Response. [See Plaintiff's Response, at 1-12].

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Seventh, Plaintiff contends Lieutenant Fahey retaliated against him by inappropriately handling a money order on February 1, 2000. Defendants argued this was a de minimis injury and no causal connection between this incident and any protected activity was established by Plaintiff. [See Defendants' MSJ, at 24]. Plaintiff does not respond to these arguments. [See Plaintiff's Response, at 1-12]. Eighth, Plaintiff maintains Lieutenant Fahey retaliated against him by refusing to allow him to mop the floor after his toilet overflowed. Defendants argued no causal connection between this incident and the events of July 15, 1999, existed. Defendants' MSJ, at 24]. [See

While Plaintiff describes this incident in his Response,

nowhere does the Plaintiff articulate, let alone establish, a causal connection between this incident and his alleged protected activity. [See Plaintiff's Response, at 5]. Simply because Lieutenant Fahey was involved in the two events does not establish a causal connection between two events occurring six months apart. Ninth, Plaintiff alleges Lieutenant Fahey retaliated against him by refusing to correct a tray with a missing entrée on it. Defendants argued this allegation was de minimis. [See Defendants' MSJ, at 24]. Plaintiff fails to address how this injury was not de minimis in his Response. [See Plaintiff's Response, at 5]. iii. Defendant Betty Fulton Plaintiff alleges Ms. Fulton retaliated against him by falsely alleging he committed verbal abuse and continued disregard for the rules at FCF in several administrative segregation reviews she completed for him beginning in January 2000. Defendants argued Plaintiff failed to demonstrate Ms. Fulton had any actual knowledge of the

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service of his C.R.C.P. 106(a)(4) complaint on Captain Hyatt and Lieutenant Fahey on July 19, 1999, and even if she had such knowledge because Ms. Fulton was but one member of a administrative segregation review panel Plaintiff could not demonstrate any actual injury based on Ms. Fulton's alleged inclusion of false information. [See Defendants' MSJ, at 23-24]. Plaintiff does not specifically address Ms. Fulton's

knowledge of the service of the C.R.C.P. 106(a)(4) complaint, but instead asserts that "FCF was practically abuzz with the news that Mr. Baldauf had served Defendant Fahey and Defendant Hyatt with a complaint." [See Plaintiff's Response, at 8-9].

Unfortunately, despite Plaintiff's allegation FCF was abuzz with the news, unless Plaintiff has actual evidence Ms. Fulton was aware of his allegedly protected activity, no basis exists to hold her liable under a retaliation theory. Moreover, Plaintiff never [See Plaintiff's

addresses the causation argument anywhere in his Response. Response, at 1-12]. iv. Defendant Paul Carreras

First, Plaintiff alleges Sergeant Carreras retaliated against him by changing his attitude towards him. Defendants argued Plaintiff failed to demonstrate how a change of attitude injured him. [See Defendants' MSJ, at 26]. Plaintiff addresses this issue nowhere in his Response. Second, Plaintiff maintains Sergeant Carreras retaliated against him by turning his back on him to request a cell move in September 1999. Defendants argued Plaintiff could not establish any knowledge by Sergeant Carreras of his alleged protected activity or any causal connection between the two events. [See Defendants' MSJ, at

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26]. Plaintiff does assert Sergeant Carreras possessed any specific knowledge of his protected activity in his Response and also does not address the Defendants' causation argument. [See Plaintiff's Response, at 1-12]. Plaintiff's general allegation that

everyone at FCF knew of his alleged protected activity is insufficient to state any claim against Sergeant Carreras. Third, Plaintiff attempts a retaliation claim against Sergeant Carreras based on his refusal to reassign Plaintiff to a different cell away from Mr. Carrigan. Defendants made the same argument as above that Plaintiff had established no knowledge by Sergeant Carreras of his protected activity or any causal connection. [See Defendants' MSJ, at 26]. Plaintiff's arguments in this respect fail for the reasons discussed above. Fourth, Plaintiff alleges Sergeant Carreras provided false testimony at the COPD hearing involving the incident with Mr. Carrigan. Defendants argued Sergeant Carreras was the prosecutor, not a witness, at the COPD hearing, and that no matter Sergeant Carreras' actions at the COPD hearing he did not injury the Plaintiff since Plaintiff was convicted by the hearing officer and had the decision upheld on appeal. Defendants also argued no causal connection between the hearing and any protected activity exists. [See Defendants' MSJ, at 27]. Again, Plaintiff offers no specific response to the

arguments raised respecting Sergeant Carreras. [See Plaintiff's Response, at 4]. v. Defendant Connie Davis First, Plaintiff alleges Sergeant Davis retaliated against him by adopting a hostile attitude towards him. Defendants argued this claim failed because of the lack of any actual injury. [See Defendants' MSJ, at 27]. Plaintiff does not address this argument.

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Second, Plaintiff claims Sergeant Davis retaliated against him by firing him from his landscape job. Defendants argued there is no evidence Sergeant Davis was aware of Plaintiff's alleged protected activity or any causal connection between the two events. [See Defendants' MSJ, at 28]. Again, Plaintiff never addresses these specific

arguments in his Response. [See Plaintiff's Response, at 1-12]. Third, Plaintiff insists Sergeant Davis retaliated against him by refusing to reassign him to a cell apart from Mr. Carrigan. Defendants argued this claim failed because of the lack of any evidence Sergeant Davis knew of Plaintiff's protected activity and the failure by Plaintiff to establish a causal connection between the two events. [See Defendants' MSJ, at 28]. Once again, Plaintiff does not address these specific arguments in his Response. [See Plaintiff's Response, at 1-12]. vi. Defendant Ken Maestas Plaintiff's sole allegation of retaliation by Lieutenant Maestas by filing COPD charges against him related to the altercation Mr. Baldauf had with Mr. Carrigan. Defendants argued Plaintiff's claim against Lieutenant Maestas failed because no evidence exists Lieutenant Maestas was even aware of the service of the C.R.C.P. 106(a)(4) complaint and Lieutenant Maestas' role in initiating charges did not cause Plaintiff any actual injury because of the intervening events that had to occur before Plaintiff was convicted of a COPD violation. [See Defendants' MSJ, at 28-29]. Plaintiff does not specifically respond to any argument related to Lieutenant Maestas in his Response. [See Plaintiff's Response, at 1-12]. Instead, Plaintiff merely relies on the

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theory that everyone including Lieutenant Maestas must have known about his alleged protected activity. Defendants address the flaws with this argument above. vii. Defendant Joseph Garcia First, Plaintiff argues Sergeant Garcia retaliated against him based on a change of attitude. Defendants argued Plaintiff demonstrated no injury as a result of this

alleged attitude change. [See Defendants' MSJ, at 29]. Plaintiff does not respond to this argument anywhere in his Response. [See Plaintiff's Response, at 1-12]. Second, Plaintiff contends Sergeant Garcia retaliated against him by discarding his food and losing some of his property when he packed it on September 19, 1999. Defendants argued Plaintiff established no knowledge by Sergeant Garcia of his protected activity and no causal connection between any protected action Plaintiff engaged in and Sergeant Garcia's actions on September 19, 1999. [See Defendants' MSJ, at 30]. Again, Plaintiff offers nothing specific respecting these arguments related to Sergeant Garcia. [See Plaintiff's Response, at 1-12]. viii. Defendant David Archuleta Plaintiff's only allegation against Correctional Officer Archuleta is the incident report he authored concerning Mr. Baldauf's threat to kill a staff member. Defendants argued Plaintiff cannot establish any knowledge by Mr. Archuleta of any alleged protected activity or any causal connection between the writing of the incident report and any alleged protected activity. [See Defendants' MSJ, at 30-31]. Again, Plaintiff

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does not specifically address any issue respecting Mr. Archuleta in his Response and merely relies on the "everyone knew" argument debunked above. 3 II. PLAINTIFF IS NOT ENTITLED TO ANY DISCOVERY PURSUANT TO FED. R. CIV. P. 56(F) 4 As a final argument, Plaintiff argues he should be allowed to conduct further discovery pursuant to Fed. R. Civ. P. 56(f). [See Plaintiff's Response, at 10-11].

Plaintiff's request for discovery pursuant to Fed. R. Civ. P. 56(f) fails for multiple reasons. First, Plaintiff has not submitted the requisite affidavit. Second, Plaintiff does not describe with any particularity the discovery he seeks and how that discovery will allow him to respond to the arguments raised in Defendants' MSJ. Third, Plaintiff had ample opportunity to seek discovery already in this case under the deadlines established by this Court. Fed. R. Civ. P. 56(f) provides in its entirety, as follows: (f) When Affidavits are Unavailable. Should it appear from the affidavit of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, Finally, Plaintiff asserts he has demonstrated sufficient evidence to establish "concerted action" by the Defendants to retaliate against him. [See Plaintiff's Response, at 9-10]. However, Plaintiff has simply not met his evidentiary burden of establishing any type of conspiracy or concerted action among the Defendants or anyone else at FCF. Plaintiff has a high factual burden to establish concerted action because he must demonstrate the Defendants had a meeting of the minds and engaged in concerted action to violate the Plaintiff's constitutional rights. See, e.g., Gallegos v. City & County of Denver, 984 F.2d 358, 364 (10th Cir.), cert. denied, 508 U.S. 972 (1993); Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). Plaintiff has insufficient evidence to make these required showings to demonstrate any conspiracy or concerted action by the Defendants here. Initially, because Plaintiff's request pursuant to Fed. R. Civ. P. 56(f) is made as part of his Response and not as a separate motion, it is appropriately denied on a procedural basis pursuant to D.C.Colo.LCiv.R. 7.1(C). 17
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the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Fed. R. Civ. P. 56(f). A decision to grant additional discovery pursuant to Fed. R. Civ. P. 56(f) lies within this Court's discretion. Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984); Pfenninger v. Exempla, Inc., 116 F.Supp.2d 1184, 1194 (D. Colo. 2000). Fed. R. Civ. P. 56(f) requires the party relying on the Rule to file an affidavit explaining why he or she cannot present facts to oppose the motion for summary judgment. International Surplus Lines Ins. Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 905 (10th Cir. 1995). "Fed. R. Civ. P. 56(f) requires that the party seeking to invoke its protection state with specificity how the additional material will rebut the summary judgment motion. A party may not invoke Fed. R. Civ. P. 56(f) by merely asserting that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable. Rather, the party must demonstrate precisely how additional discovery will lead to a genuine issue of material fact." Ben Ezra, Weinstein, & Company, Inc. v. America Online Inc., 206 F.3d 980, 987 (10th Cir.), cert. denied, 531 U.S. 824 (2000) (citations omitted); Jensen v. Redevelopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993). This burden includes "identifying the probable facts not available and what steps have been taken to obtain these facts." Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). The opposing party's Fed. R. Civ. P. 56(f) showing must include a demonstration that the factual issues allegedly requiring additional discovery are actually relevant to the disposition of the pending motion for summary judgment.

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E.F.W. v. St. Stephen's Indian High School, 264 F.3d 1297, 1303 n. 2 (10th Cir. 2001); Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998); Boling v. Romer, 101 F.3d 1336, 1339 n. 3 (10th Cir. 1996). First, a request for additional discovery under Rule 56(f) requires the party to present an affidavit explaining why he cannot present facts to respond to a motion for summary judgment. The absence of an affidavit is sufficient grounds to deny the

request. International Surplus Lines, 52 F.3d at 905; Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1376 (10th Cir. 1988); Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986). Here, Plaintiff presents no affidavit in support of his Rule 56(f) request. [See Plaintiff's Response, at 10-11]. Second, Plaintiff's request for additional discovery is nothing more than a general request for additional discovery and fails to meet the specificity requirements under Rule 56(f). Plaintiff generally argues that his status as an incarcerated person and the fact he was transferred from FCF have hampered his ability to obtain affidavits, presumably from other inmates, to address the Defendants' arguments. [See Plaintiff's Response, at 11]. However, Plaintiff provides absolutely no particularity concerning what facts he hopes to obtain with additional discovery and how those facts will defeat the Defendants' Motion. Absent such specificity, Plaintiff's request under Rule 56(f) must be denied. Ben Ezra, Weinstein, & Company, Inc., 206 F.3d at 987; Jensen, 998 F.2d at 1554. Finally, Plaintiff and his counsel both had ample opportunity to conduct any discovery they sought in this matter during the discovery period previously established

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by this Court. On November 13, 2006, this Court set a discovery cut-off of February 13, 2007. [Doc. 117]. On March 1, 2007, at a motions hearing, this Court extended [Doc. 128]. Counsel for the Plaintiff entered an

discovery until March 30, 2007.

appearance on March 12, 2007. [Doc. 133]. On March 14, 2007, this Court extended discovery until May 31, 2007. [Doc. 138]. Absolutely nothing prevented either the Plaintiff, while he was pro se, or counsel for the Plaintiff from conducting any discovery under the Federal Rules of Civil Procedure during the discovery period established and repeatedly extended by this Court. Plaintiff offers no reason why discovery was not conducted by either the Plaintiff or his counsel. [See Plaintiff's Response, at 11].

Moreover, in a footnote, Plaintiff suggests counsel for the Defendants somehow impeded Plaintiff's discovery efforts. [See Plaintiff's Response, at 9 n. 4]. The actual events were as follows. Counsel for the Defendants received Plaintiff's First Discovery Requests on March 19, 2007. [See Plaintiff's First Discovery Requests, attached as Exh. A-37]. In response, on March 22, 2007, counsel for the Defendants wrote counsel for the Plaintiff and informed him that because Plaintiff was now represented by counsel any discovery needed to be promulgated by counsel for the Plaintiff, not the Plaintiff directly, and therefore the Defendants were not going to respond to the Plaintiff's pro se discovery requests. [See Dale Letter to Hartley, 3/22/07, attached as Exh. A-38].

Counsel for the Plaintiff never responded to counsel for the Defendants' letter, never promulgated any written discovery to the Defendants, and never sought to compel a response to this discovery if counsel believed it was somehow appropriately served by a now represented Plaintiff. Under these circumstances, Plaintiff's complaint about this

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discovery not being responded to is nothing more than a red herring and does not justify allowing Plaintiff discovery under Rule 56(f). CONCLUSION In conclusion, for all of the foregoing reasons, as well as based upon all of the arguments and authorities contained in their original Motion, Defendants John Hyatt, Robert Fahey, Betty Fulton, Paul Carreras, Connie Davis, Ken Maestas, Joseph Garcia, and David Archuleta respectfully request that this Court grant them summary judgment on the Plaintiff's remaining claims against them, and dismiss all of the Plaintiff's claims against the Defendants in their entirety, and enter all such additional relief as this Court deems just and appropriate. Dated this 24th day of October, 2007. Respectfully submitted,

s/ Andrew D. Ringel Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: (303) 628-3300 Fax: (303) 293-3238 [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 24th day of October, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Dennis W. Hartley, Esq. Michael Obernesser, Esq. Dennis W. Hartley, P.C. 1749 South 8th Street, Suite 5 Colorado Springs, CO 80906 [email protected]

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] ATTORNEYS FOR DEFENDANTS

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