Free Motion for Summary Judgment - 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' 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., pursuant to Fed. R. Civ. P. 56, hereby submit this Motion for Summary Judgment, as follows: INTRODUCTION Plaintiff Leonard Baldauf is an inmate currently incarcerated by the Colorado Department of Corrections. Pursuant to this Court's Order Adopting Recommendation of United States Magistrate Judge dated September 20, 2006, Plaintiff's only remaining claim is his 42 U.S.C. § 1983 claim alleging retaliation in violation of his First Amendment rights against Defendants Hyatt, Fahey, Carreras, Davis, Fulton, Maestas, Garcia, Archuleta and other unnamed officers. 1

Plaintiff has never identified nor served the "other unnamed officers." As such, they should be dismissed pursuant to Fed. R. Civ. P. 4(m).

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ARGUMENT I. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FROM PLAINTIFF'S RETALIATION CLAIM Defendants are entitled to qualified immunity from the Plaintiff's 42 U.S.C. § 1983 First Amendment retaliation claim. Plaintiff cannot demonstrate any of the Defendants violated his constitutional rights. Specifically, Plaintiff cannot prove Defendants

retaliated against him for the exercise of his constitutional rights or that but for a retaliatory motive the actions Plaintiff complains of would not have occurred. As such, Defendants are entitled to qualified immunity as a matter of law. A. Burden of Proof Plaintiff bears the burden of proof at trial by a preponderance of the evidence on his 42 U.S.C. § 1983 claim. Mares v. ConAgra Poultry, Inc., 971 F.2d 492, 494 (10th Cir. 1992). On summary judgment, Defendants bear the burden of demonstrating no genuine issue of material fact is in dispute and of identifying the lack of evidence for the Plaintiff on an essential element of the Plaintiff's claims. Ortiz v. Norton, 254 F.3d 889, 893 (10th Cir. 2001). "If the movant carries this initial burden, the non-movant may not rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial as to those dispositve matters for which it carries the burden of proof." Wolf v.

Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The applicable summary judgment inquiry for this Court differs when the issue of qualified immunity is raised by an individual defendant. Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). After an individual defendant raises the affirmative defense of 2

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qualified immunity, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). At that point, "[t]he plaintiff initially bears a heavy two-part burden when the defendant pleads the defense of qualified immunity." Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996). The plaintiff must demonstrate: (1) the defendant's conduct violated the law; and (2) the law was clearly established when the alleged violation occurred. Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1998). "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who right claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits." Siegert v. Gilley, 500 U.S. 226, 2323 (1991). "If the plaintiff successfully establishes the violation of a clearly established right, the burden shifts to the defendant, who must prove that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law." Gross, 245 F.3d at 1156 (citations and internal quotation marks omitted); Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993). Although the Court must review the evidence in the light most favorable to the plaintiff on summary judgment, "the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity." Gross, 245 F.3d at 1156.

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B. Elements of Claim Plaintiff must establish specific facts showing he was retaliated against for the exercise of his constitutional rights, and he must further prove that but for the retaliatory motive, the incidents complained of would not have occurred. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). "Mere allegations of constitutional retaliation will not suffice; plaintiff[] must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). A plaintiff suing public officials must have specific facts showing the personal involvement of each named individual defendant. 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); Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997). C. Material Undisputed and Admitted Facts 2 1. Plaintiff Leonard Baldauf was incarcerated at Fremont Correctional Facility

("FCF") from January 1999 through March 2000, except for the time period from approximately November 4, 1999, through December 17, 1999. [See Deposition of Leonard Baldauf, at 7 & 89, Exh. A-1]. 2. John Hyatt was a captain responsible for Cell Houses 4 and 5 at FCF

during Mr. Baldauf's incarceration at that facility. [See Baldauf Dep., at 9, Exh. A-1]. 3. Exh. A-1]. Mr. Baldauf primarily lived in Cell House 4 at FCF. [Baldauf Dep., at 9,

Defendants accept all of the material undisputed or admitted facts for the purposes of this Motion only. Defendants reserve the right to contest each of these facts in any further proceeding in this matter, including at trial. 4

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4.

Robert Fahey was a lieutenant who worked primarily in Cell House 5 at

FCF. [See Baldauf Dep., at 9, Exh. A-1]. 5. Betty Fulton was a case manager in Cell House 5 at FCF. [See Baldauf

Dep., at 12, Exh. A-1]. 6. Ms. Fulton was Mr. Baldauf's case manager when he was in the Cell

House 5 which was the segregation unit. [See Baldauf Dep., at 12, Exh. A-1]. 7. Connie Davis was a sergeant on the day shift in Cell House 4. [See

Baldauf Dep., at 13, Exh. A-1]. 8. Ken Maestas was an investigator who investigated Code of Penal

Discipline ("COPD") charges. [See Baldauf Dep., at 13, Exh. A-1]. 9. Mr. Baldauf's interactions with Mr. Maestas were when he interrogated or

interviewed Mr. Baldauf in conjunction with COPD charges brought against Mr. Baldauf or other inmates. [See Baldauf Dep., at 14, Exh. A-1]. 10. Joseph Garcia was a sergeant on the day shift in Cell House 4. [See

Baldauf Dep., at 14, Exh. A-1]. 11. Paul Carreras was also a sergeant on the day shift in Cell House 4. [See

Baldauf Dep., at 64, Exh. A-1]. 12. David Archuleta was a corrections officer on the day shift assigned to

general security functions at FCF. [See Baldauf Dep., at 14, Exh. A-1]. 13. On July 15, 1999, Mr. Baldauf arranged to have another inmate named

David Thompson serve a C.R.C.P. 106(a)(4) complaint seeking judicial review of a

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COPD conviction initiated by Lieutenant Fahey against Mr. Baldauf for failure to work in April of 1999. [See Baldauf Dep., at 17-18, Exh. A-1]. 14. Mr. Baldauf alleges he has been retaliated against by the Defendants

because of the service of the C.R.C.P. 106(a)(4) complaint on July 15, 1999. [See Baldauf Dep., at 21, Exh. A-1]. 15. Following Mr. Thompson's attempted service of the complaint on Captain

Hyatt and Lieutenant Fahey, Mr. Baldauf was called in from the yard to the office for a meeting with them. [See Baldauf Dep., at 25, Exh. A-1]. 16. Mr. Baldauf alleges both Captain Hyatt and Lieutenant Fahey were angry

as a result of the service of the complaint and during the meeting called him names, used profanity, and threatened him. [See Baldauf Dep., at 26-27, Exh. A-1; Prisoner's Civil Rights Complaint, at Claim I, Exh. A-2; Defendant's First Set of Interrogatories and Requests for Production of Documents to Plaintiff ("Defendants' Discovery"), at Interrogatory No. 2, Exh. A-3; Baldauf's Response to First Discovery Requests ("Baldauf Discovery Responses"), at Response to Interrogatory No. 2, Exh. A-4]. 17. Mr. Baldauf believes a total of 28 separate events at FCF occurred in

retaliation for his attempted service of the complaint on Captain Hyatt and Lieutenant Fahey on July 20, 1999. [See Baldauf Dep., at 50-51, Exh. A-1; Defendants' Discovery, at Interrogatory No. 6, Exh. A-3; Baldauf Discovery Responses, at Response to Interrogatory No. 6, Exh. A-4]. 3

Defendants only specifically set forth Plaintiff's allegations against the named Defendants. In addition, Defendants also do not set forth the Plaintiff's allegations of wrongful conduct by Lieutenant Fahey that pre-date the July 19, 2002, service of 6

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18.

Following the meeting with Captain Hyatt and Lieutenant Fahey, Mr.

Baldauf claims a variety of different inmates and correctional officers warned him that he may suffer retaliation from Captain Hyatt and Lieutenant Fahey. [See Baldauf Dep., at 30, Exh. A-1; Defendants' Discovery, at Interrogatory No. 3, Exh. A-3; Baldauf Discovery Responses, at Response to Interrogatory No. 3, Exh. A-4]. 19. On July 20, 1999, Mr. Baldauf's cell was searched by corrections officers [See Baldauf Dep., at 36-37, Exh. A-1; Defendants'

Chad Nelson and Chavez.

Discovery, at Interrogatory No. 4, Exh. A-3; Baldauf Discovery Responses, at Response to Interrogatory No. 4, Exh. A-4]. 20. Corrections Officer Nelson wrote an incident report and as a result Mr.

Baldauf was charged with and convicted of the COPD violation of unauthorized possession of legal work belonging to another inmate. [See Incident Report Form, 7/20/99, Exh. A-5; Notice of Charges, 7/26/99, Exh. A-6; Disposition of Charges, 8/4/99, Exh. A-7; Inmate Appeal Form, 8/4/99, Exh. A-8]. 21. Mr. Baldauf admits that he was in fact in possession of legal work

belonging to another inmate, but states the COPD at the time did not include that as a violation. [See Baldauf Dep., at 43, Exh. A-1]. 22. Mr. Baldauf sought judicial review of his COPD conviction and it was

upheld by the District Court and the Court of Appeals and the Colorado Supreme Court did not accept review. [See Baldauf Dep., at 44-45, Exh. A-1].

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23.

Mr. Baldauf's only evidence of a connection between the July 20, 1999,

shakedown was the alleged threat by Lieutenant Fahey and the warnings from corrections officers about potential retaliation. [See Baldauf Dep., at 46-48, Exh. A-1]. 24. Mr. Baldauf contends Captain Hyatt retaliated by charging him, but not his

cellmate, for a COPD violation on July 26, 1999. [See Baldauf Dep., at 52-56, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(B), Exh. A-4]. 25. Mr. Baldauf alleges during the time he was in segregation in Cell House 5

from July 29, 1999, through August 23, 1999, staff refused to provide him with appropriate clothing including underwear. [See Baldauf Dep., at 58-59, Exh. A-1;

Baldauf Discovery Responses, at Response to Interrogatory No. 6(D), Exh. A-4]. 26. Mr. Baldauf alleges he attempted to follow-up on the issue of his property

requests with Lieutenant Fahey and was ignored. [See Baldauf Dep., at 60, Exh. A-1]. 27. Mr. Baldauf believes the refusal to provide him with appropriate clothing

during his stay in segregation was retaliation because he believes he was treated differently than other inmates in segregation in this respect. [See Baldauf Dep., at 6061, Exh. A-1]. 28. Mr. Baldauf infers the correctional officers did not provide him with

appropriate clothing in segregation at the direction of either Captain Hyatt or Lieutenant Fahey. [See Baldauf Dep., at 61, Exh. A-1]. 29. Mr. Baldauf alleges he wrote to Captain Hyatt, along with two other prison

officials, following his COPD conviction complaining about the revocation of his probation because he believed the probation period had already expired and therefore

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could not be revoked as part of his punishment. [See Baldauf Dep., at 62-63, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(E), Exh. A-4]. 30. Mr. Baldauf raised this as a grounds for appeal of his COPD conviction

and was unsuccessful. [See Inmate Appeal Form, 8/4/99, Exh. A-8]. 31. Mr. Baldauf alleges Sergeant Carreras', Sergeant Davis' and Sergeant

Garcia's attitude changed from civil to drastically hostile, derisive, contemptuous and indifferent following July 15, 1999. [See Baldauf Dep., at 64-65, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(F), Exh. A-4]. 32. Mr. Baldauf alleges Sergeant Carreras turned his back on him when he [See

approached Sergeant Carreras to request a cell move in September 1999.

Baldauf Dep., at 65-66, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(G), Exh. A-4]. 33. Mr. Baldauf considers this event retaliation because it demonstrates

Sergeant Carreras' change in attitude towards him after July 15, 1999. [See Baldauf Dep., at 65-66, Exh. A-1]. 34. Mr. Baldauf alleges his removal from population and placement in

segregation from September 11, 1999, through September 28, 1999, was retaliation. [See Baldauf Dep., at 66, Exh. A-1; Baldauf Discovery Response, at Response to Interrogatory No. 6(H), Exh. A-4]. 35. Mr. Baldauf was removed form population and placed in segregation as a

result of a physical altercation between him and his cellmate, Eric Jaquermard, on

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September 11, 1999. [See Incident Report Form, 9/11/99, Exh. A-9; Removal from Population, 9/11/99, Exh. A-10]. 36. Mr. Baldauf was charged and convicted of a COPD violation for fighting for

the incident involving Mr. Jaquermard on September 11, 1999. [See Notice of Charges, 9/23/99, Exh. A-11; Disposition of Charges, 10/1/99, Exh. A-12; Inmate Appeal Form, 10/16/99, Exh. A-13]. 37. Mr. Baldauf alleges Captain Hyatt retaliated against him related to the

incident involving Mr. Jaquermard by removing him from population on September 11, 1999, but his not being charged with a COPD violation until September 23, 1999. [See Baldauf Dep., at 71-72, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(I), Exh. A-4]. 38. Mr. Baldauf acknowledges Lieutenant Rudder made the decision to

remove him from population and place him in segregation. [See Baldauf Dep., at 72, Exh. A-1]. 39. Mr. Baldauf alleges Lieutenant Fahey and others refused to provide him

with appropriate clothing including underwear a second time when he was in segregation from September 11, 1999, through September 23, 1999. [See Baldauf Dep., at 72-73, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(J), Exh. A-4]. 40. Mr. Baldauf alleges on September 14, 1999, Lieutenant Fahey threw a

grievance Mr. Baldauf had filed that Lieutenant Fahey had been given to answer into

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Mr. Baldauf's cell and refused to answer it. [See Baldauf Dep., at 100-101, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(AA), Exh. A-4]. 41. Mr. Baldauf alleges Sergeant Garcia retaliated against him on September

12, 1999, by discarding his food items and misplacing some of his property when he packed it up, but not discarding Mr. Jaquermard's food items and instead packing them when both Mr. Baldauf and Mr. Jaquermard where removed from population and placed in segregation. [See Baldauf Dep., at 73-74, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(L), Exh. A-4]. 42. Mr. Baldauf filed a grievance related to Sergeant Garcia's actions which

was denied. [See Step I Grievance, 9/30/99, Exh. A-14; Step II Grievance, 3/20/00, Exh. A-15; Baldauf Dep., at 74-77, Exh. A-1]. 43. Mr. Baldauf alleges Sergeant Davis retaliated against him by firing him

from his landscaping job responsible for grounds maintenance around Cell House 4. [See Baldauf Dep., at 81-83, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(O), Exh. A-4; Step I Grievance, 6/4/99, Exh. A-16; Step II Grievance, 6/17/99, Exh. A-17; Step I Grievance, 7/9/99, Exh. A-18]. 44. Mr. Baldauf alleges Sergeant Davis and Sergeant Carreras retailed

against him by refusing to re-assign him to a cell with an inmate other than Shelby Carrigan because of prior problems the two of them had when they were previously cellmates. [See Baldauf Dep., at 83-88, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(P), Exh. A-4].

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45.

On October 21, 1999, an altercation occurred between Mr. Baldauf and

Mr. Carrigan resulting in COPD charges being filed against Mr. Baldauf. [See Baldauf Dep., at 83-88, Exh. A-1; Incident Report Form, 10/21/99, Exh. A-19; Anatomical Form for Shelby Carrigan, 10/21/99, Exh. A-20; Removal from Population, 10/21/99, Exh. A21; Lieutenant Ken Maestas Investigation Report, 10/22/99, Exh. A-22; Notice of Charges, 10/27/99, Exh. A-23; Disposition of Charges, 11/4/99, Exh. A-24; Inmate Appeal Form, 11/16/99, Exh. A-25]. 46. Mr. Baldauf alleges Captain Hyatt arranged for the COPD charges to be [See Baldauf Dep., at 88-89, Exh. A-1;

filed against him by Lieutenant Maestas.

Baldauf Discovery Responses, at Response to Interrogatory No. 6(Q), Exh. A-4]. 47. Mr. Baldauf alleges Sergeant Carreras provided false testimony at the

COPD hearing. [See Baldauf Dep., at 106, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 13, Exh. A-4]. 48. Mr. Baldauf spent from approximately November 4, 1999, through

December 17, 1999, at the Colorado State Hospital and the Colorado Territorial Correctional Facility infirmary. [See Baldauf Dep., at 89, Exh. A-1]. 49. Mr. Baldauf alleges Captain Hyatt and Correctional Officer Archuleta

retaliated against him by falsely accusing him of making a threat to kill a staff member resulting in a COPD charge and conviction to occur. [See Baldauf Dep., at 91-93 & 107-108, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(R), Exh. A-4; Incident Report Form, 12/17/99, Exh. A-26; Removal from Population,

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12/17/99, Exh. A-27; Notice of Charges, 12/22/99, Exh. A-28; Disposition of Charges, 12/28/99, Exh. A-29; Inmate Appeal Form, 12/30/99, Exh. A-30]. 50. Mr. Baldauf alleges that during his time in segregation beginning in

December 1999 he was not provided property such as stamps, envelopes and his address book. [See Baldauf Dep., at 94-96, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(T), Exh. A-4]. 51. Mr. Baldauf alleges Lieutenant Fahey did not hand him his mail in

segregation like he did with other prisoners, but instead threw it through the hatch to the floor and then loudly slammed the hatch door. [See Baldauf Dep., at 96, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(U), Exh. A-4]. 52. Mr. Baldauf alleges on February 1, 2000, Lieutenant Fahey inappropriately

handled a money order for him for a court filing fee that resulted in delayed filing and extra postage. [See Baldauf Dep., at 96-97, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(V), Exh. A-4; Step I Grievance, 3/22/00, Exh. A-31; Step II Grievance, 5/2/00, Exh. A-32]. 4 53. Mr. Baldauf alleges when his toilet backed up Lieutenant Fahey refused to

let him or a porter mop the sewage off the floor and instead left it to dry. [See Baldauf Dep., at 97-98, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(W), Exh. A-4]. 54. Mr. Baldauf maintains Lieutenant Fahey gave him a tray with a missing

Based on Mr. Baldauf's grievance on this issue, Defendants believe this event actually occurred on March 3, 2000, not February 1, 2000. 13

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entrée on it and refused to correct it telling Mr. Baldauf "tough--this is prison." [See Baldauf Dep., at 98, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(X), Exh. A-4]. 55. Mr. Baldauf alleges Case Manager Fulton falsely alleged he committed

verbal abuse and continued disregard for the rules in administrative segregation reviews she completed for Mr. Baldauf. [See Baldauf Dep., at 99 & 105-106, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(Y) & 12, Exh. A-4; Notice of Administrative Segregation, 12/29/99, Exh. A-33; Administrative Segregation Hearing, 1/4/00, Exh. A-34; Administrative Segregation Hearing Review, 1/12/00, Exh. A-35; Administrative Segregation Hearing Review, 1/19/00, Exh. A-36]. 56. Mr. Baldauf alleges that Captain Hyatt had him brought into his office and

threatened him for going over his head by attempting to communicate with the Warden. [See Baldauf Dep., at 99-100, Exh. A-1; Baldauf Discovery Responses, at Response to Interrogatory No. 6(Z), Exh. A-4]. D. Required Facts That Cannot Be Established Plaintiff has not established specific facts showing he was retaliated against as a result of the exercise of his constitutional rights, and he cannot establish that but for the retaliatory motive any incidents complained of would not have occurred. Plaintiff cannot establish the Defendants took action with respect to the Plaintiff 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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E. Discussion Although the Tenth Circuit has acknowledged prison officials may not retaliate against an inmate for exercising his constitutional rights, it has also stated "it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role." Peterson, 149 F.3d at 1144. The Tenth Circuit therefore set out the following test for reviewing retaliation claims: "Obviously, an inmate is not inoculated from the normal conditions of

confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity. Accordingly, a plaintiff `must prove that `but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Id. (quoting Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990)). "An inmate claiming retaliation must `allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'" Id. (quoting Frazier, 922 F.2d at 562 n. 1). i. Defendant John Hyatt John Hyatt was a captain responsible for overseeing Cell Houses 4 and 5 at Fremont Correctional Facility during Plaintiff's incarceration there. [¶ 2]. 5 Mr. Baldauf alleges Captain Hyatt was angry with 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. [¶¶ 13-16]. As a result, Mr. Baldauf contends Captain Hyatt retaliated against

For ease of reference for this Court, where appropriate, factual references are made to the paragraph numbers contained in the Material Undisputed and Admitted Facts above. 15

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him by taking or being involved with the following actions:

(1) arranging for a

shakedown of Mr. Baldauf's cell on July 20, 1999 [¶¶ 19-23]; (2) charging Mr. Baldauf but not his cellmate with a COPD violation after the cell shakedown [¶ 24]; (3) not providing Mr. Baldauf with appropriate clothing during his stay in segregation [¶¶ 25-28]; (4) not appropriately considering his request after his COPD conviction concerning the alleged prior expiration of his probation [¶¶ 29-30]; (5) by removing him for population but not charging him for a COPD conviction for 12 days following the incident with Eric Jaquermard [¶¶ 34-38]; (6) arranging for COPD charges to be filed against Mr. Baldauf after an altercation between Mr. Balduaf and Shelby Carrigan [¶¶ 44-46]; (7) arranging for COPD charges to be filed against him after falsely accusing him of making a threat to kill a staff member [¶ 49]; and (8) threatening him for attempting to communicate with the Warden [¶ 56]. Review of each of these events demonstrates Plaintiff cannot state a viable First Amendment retaliation claim against Captain Hyatt. First, Plaintiff contends Captain Hyatt retaliated against him based on the shakedown of Mr. Baldauf's cell on July 20, 1999. [¶¶ 19-23]. It is undisputed Captain Hyatt did not personally participate in the cell shakedown. [¶ 19]. Further, Plaintiff has produced insufficient evidence to demonstrate Captain Hyatt directed the cell shakedown occur. Plaintiff's only evidence of any connection between Captain Hyatt's alleged anger at Mr. Baldauf based on the service of the C.R.C.P. 106(a)(4) complaint and the subsequent shakedown is the warnings from correctional officers and inmates about possible retaliation against him. [¶¶ 18 & 23]. However, Plaintiff offers no

specific evidence that Captain Hyatt directed Correctional Officers Nelson and Chavez

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to conduct the shakedown or that he was even aware the shakedown was going to occur. As a result, Plaintiff cannot demonstrate a retaliatory motive by Captain Hyatt for the shakedown. Second, Plaintiff alleges Captain Hyatt retaliated against him by charging him but not his cellmate with a COPD violation after the shakedown. [¶ 24]. This allegation fails. Initially, Mr. Baldauf admits he was in fact in possession of legal work belonging to another inmate. [¶ 21]. Accordingly, Plaintiff cannot establish that the initiation of

charges would not have occurred but for an alleged retaliatory motive by Captain Hyatt because he has admitted to the factual basis of the COPD charge and conviction. Further, Mr. Baldauf did not suffer any actual injury based on the initiation of COPD charges against him alone. Rather, any injury Mr. Baldauf suffered occurred because of the COPD conviction. Mr. Baldauf's COPD conviction resulted after a COPD

disciplinary hearing and was upheld on review by the Warden and judicial review by the courts of Colorado. [¶¶ 20-22]. Therefore, Plaintiff simply cannot prove Captain Hyatt caused him any injury even if his initiation of COPD charges was considered retaliatory. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (discussing causation as an element of a § 1983 claim); Warth v. Seldin, 422 U.S. 490, 509 (1975) (same); Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000) (same). Third, Plaintiff contends Captain Hyatt retaliated based on correctional officers not providing him with appropriate clothing during his stay in segregation. [¶¶ 25-28]. Mr. Baldauf believes the correctional officers did not provide him with appropriate clothing at the direction of Captain Hyatt. [¶ 28]. However, Mr. Baldauf does not

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possess any actual evidence demonstrating Captain Hyatt was involved in any effort not to provide him with appropriate clothing or that he even had any knowledge Plaintiff was not being provided with appropriate clothing. As a result, Plaintiff's allegation fails on personal participation grounds. Camfield, 248 F.3d at 1225; Mitchell, 80 F.3d at 1441; Green, 108 F.3d at 1302. 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. [¶¶ 29-30]. Mr. Baldauf alleges he wrote Captain Hyatt, and others, a letter complaining that his probation should not have been revoked based on his COPD conviction because it had expired before he was convicted. [¶¶ 29-30].

Plaintiff's claim fails because he cannot establish Captain Hyatt ever received his letter. Plaintiff's allegation also fails because no evidence exists that Captain Hyatt had any ability to alter a COPD punishment. Finally, Mr. Baldauf unsuccessfully raised this issue in appealing the COPD conviction, a decision Captain Hyatt had nothing to do with, thereby eliminating any causal connection between any action by Captain Hyatt and any injury to the Plaintiff. Fifth, Plaintiff contends Captain Hyatt retaliated against him by removing him from population but not charging him with a COPD violation for 12 days. [¶¶ 34-38]. Initially, Lieutenant Rudder, not Captain Hyatt, actually made the decision to remove him from population. [¶ 38]. Furthermore, the Notice of Charges was initiated by

Sergeant Mark Tollis. Captain Hyatt was only the reviewing supervisor for the Notice of Charges. [¶ 36; Notice of Charges, 9/23/99, Exh. A-11]. Therefore, Plaintiff cannot

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demonstrate Captain Hyatt had any personal responsibility for any delay between Mr. Baldauf's removal from population on September 11, 1999, and the Notice of Charges being initiated on September 23, 1999. Finally, Plaintiff also cannot establish any injury from the 12 day delay. Mr. Baldauf was convicted of a COPD violation as a result of the Notice of Charges. [¶ 36]. Mr. Baldauf's punishment was 17 days punitive segregation and he received credit for time served. [See Disposition of Charges, Exh. A-12].

Accordingly, Mr. Baldauf would have been in segregation between September 11, 1999, and September 23, 1999, regardless of when the Notice of Charges was initiated. Plaintiff cannot establish any actual injury from any delay in initiating the COPD charges against him by Captain Hyatt or anyone else. Sixth, Plaintiff alleges Captain Hyatt retaliated against him by arranging for COPD charges to be initiated against him after his altercation with Mr. Carrigan. [¶¶ 4446]. Again, Plaintiff cannot establish personal participation by Captain Hyatt in this event. Lieutenant Maestas, not Captain Hyatt, initiated the COPD charges against Mr. Baldauf. [¶¶ 45-46]. Captain Hyatt was not involved in initiating the charges or

reviewing them. [See Notice of Charges, 10/27/99, Exh. A-23]. Finally, Mr. Baldauf's conviction of the COPD charges eliminates any action by Captain Hyatt causing him any actual injury from the initiation of the charges. Seventh, Mr. Baldauf 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. [¶ 49]. Correctional Officer Archuleta, not Captain Hyatt, heard Mr. Baldauf's threat and wrote an incident report that led to the

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filing of COPD charges against Mr. Baldauf. [¶ 49]. While Captain Hyatt reviewed the Notice of Charges as the reviewing supervisor, his doing so did not cause any actual injury to the Plaintiff because the Plaintiff was convicted of the COPD charges following Captain Hyatt's review. [¶¶ 49; Notice of Charges, 12/22/99, Exh. A-28; Disposition of Charges, 12/28/99, Exh. A-29; Inmate Appeal Form, 12/30/99, Exh. A-30]. Eighth, Mr. Baldauf alleges Captain Hyatt retaliated against him by bringing him into his office and threatening him for going over Captain Hyatt's head by attempting to communicate with the Warden. [¶ 56]. Plaintiff's allegation against Captain Hyatt fails because even if Captain Hyatt actually made a threat to Mr. Baldauf, Plaintiff cannot demonstrate any injury occurred to him as a result of Captain Hyatt's alleged threat. The absence of an injury to the Plaintiff from Captain Hyatt's alleged retaliatory behavior precludes this allegation from stating a retaliation claim. See e.g., Crawford-El, 523 U.S. at 598-600 (describing need for a cognizable injury to state a First Amendment retaliation claim); Giba v. Cook, 232 F.Supp.2d 1171, 1191-92 (D. Or. 2002) (granting summary judgment on retaliation claim based on failure to prove cognizable injury); Scott v. Kelly, 107 F.Supp.2d 706, 709-10 (E.D. Va. 2000) (same), aff'd, 246 F.3d 667 (4th Cir. 2001). ii. Defendant Robert Fahey Lieutenant Fahey was a lieutenant in Cell House 5 at FCF. [¶ 4]. Mr. Baldauf alleges Lieutenant Fahey was also angry for the service of the C.R.C.P. 106(a)(4) Complaint on him on July 15, 1999. [¶¶ 13-16]. Mr. Baldauf alleges Lieutenant Fahey retaliated against him in the following ways: (1) arranging for a shakedown on his cell

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on July 20, 1999 [¶¶ 19-23]; (2) refusing to provide him with appropriate clothing during his time in segregation from July 29, 1999, through August 23, 1999 [¶¶ 25-28]; (3) again refusing to provide him with appropriate clothing while in segregation from September 11, 1999, through September 23, 1999 [¶¶ 39]; (4) throwing a grievance in his cell and refusing to answer it on September 14, 1999 [¶ 40]; (5) failing to provide him personal property such as stamps, envelops and his address book during his stay in segregation in December 1999 [¶ 50]; (6) inappropriately giving him his mail during his stays in segregation [¶ 51]; (7) inappropriately handling a money order request for him on February 1, 2000 [¶ 52]; (8) refusing to allow him to mop the floor after his toilet overflowed [¶ 53]; and (9) refusing to correct a tray with a missing entrée on it [¶ 54]. Review of each of these incidents demonstrates Plaintiff cannot establish any cognizable First Amendment retaliation claim against Lieutenant Fahey. First, Plaintiff contends Lieutenant Fahey retaliated against him by arranging for the shakedown on July 20, 1999. [¶¶ 20-23]. Similarly to Captain Hyatt, it is undisputed that Lieutenant Fahey did not participate in this shakedown conducted by officers Nelson and Chavez. Further, Plaintiff has no specific evidence establishing Lieutenant Fahey was either aware of the shakedown or someone directed or orchestrated the shakedown other than the Plaintiff's speculation and unsupported inference. Second, Plaintiff alleges Lieutenant Fahey retaliated against him by refusing to provide him with appropriate clothing during his stay in segregation from July 29, 1999, through August 23, 1999. [¶¶ 25-28]. Initially, Plaintiff does not possess specific

evidence that Lieutenant Fahey was aware of his not having appropriate clothing and

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did not do anything about it. During his deposition, Mr. Baldauf testified that he recalls on one occasion raising the issue with Lieutenant Fahey and being told that it was being looked into. [¶ 26 (citing Baldauf Dep., at 60, Exh. A-1)]. Such a response by

Lieutenant Fahey is not sufficient to establish personal participation by him violative of Mr. Baldauf's constitutional rights. Further, Mr. Baldauf only has conclusory allegations that his lack of access to clothing in segregation was related to the service of the complaint on July 15, 1999. Such conclusory allegations are insufficient to state a viable retaliation claim against Lieutenant Fahey. Finally, while Mr. Baldauf generally alleges he did not have appropriately clothing during his stint in segregation, he does not allege how this caused him any specific cognizable injury. Third, Mr. Baldauf complains Lieutenant Fahey retaliated against him again by refusing to provide him with appropriate clothing during another stay in segregation from September 11, 1999, through September 23, 1999. [¶ 39]. Plaintiff's claim against Lieutenant Fahey for inappropriate clothing fails for the same reasons discussed above. Fourth, Mr. Baldauf argues Lieutenant Fahey retaliated against him by throwing a grievance in his cell and refusing to answer it on September 14, 1999. [¶ 40]. This claim of retaliation against Lieutenant Fahey fails because it is almost three months after the events of July 15, 1999, and Mr. Baldauf offers no evidence establishing a causal connection between this incident and the events of July 15, 1999, and its timing makes it inappropriate for this Court to infer such a causal connection. Fifth, Mr. Baldauf contends Lieutenant Fahey retaliated against him by failing to provide him with stamps during his stay in segregation in December 1999. [¶ 50].

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Initially, this claim also fails for lack of any causal connection with the underlying protected conduct of July 15, 1999. Further, this claim also fails because the conduct Mr. Baldauf complains of is de minimis at best and therefore cannot form the factual predicate of a cognizable retaliation claim. See, e.g., Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001) ("While, as we discussed above, the scope of conduct that can constitute actionable retaliation in the prison setting is broad, it is not true that every response to a prisoner's exercise of a constitutional right gives rise to a retaliation claim. . . . Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation."); Ross v. Keelings, 2 F.Supp.2d 810, 817 (E.D. Va. 1998) ("The adverse impact must be more than a de minimis inconvenience."); see also Mallard v. Tomlinson, 206 Fed. Appx. 732, 736 (10th Cir. 2006) (adopting a similar deter an individual of ordinary firmness from exercising a constitutional right standard in prison retaliation claim). Last, this claim fails because Plaintiff does not establish he suffered any cognizable injury. Crawford-El, 523 U.S. at 598-600; Giba, 232 F.Supp.2d at 1191-92; Scott, 107 F.Supp.2d at 709-10. Sixth, Mr. Baldauf alleges Lieutenant Fahey retaliated against him by inappropriately delivering his mail in segregation. [¶ 51]. This claim fails because it is de minimis and because Plaintiff cannot establish any cognizable injury. This claim also fails because there is no causal connection between this alleged action by Lieutenant Fahey and any protected activity by Plaintiff.

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Seventh, Plaintiff contends Lieutenant Fahey retaliated against him by inappropriately handling a money order for him on February 1, 2000. [¶ 52]. Again, this claim fails for lack of any causal connection between the events of July 15, 1999, and this event, because it is a de minimis incident, and because Plaintiff demonstrates no actual injury from Lieutenant Fahey's alleged actions. Eighth, Plaintiff maintains Lieutenant Fahey retaliated against him by refusing to allow him to mop the floor after his toilet overflowed. [¶ 53]. Plaintiff's claim in this respect fails because no causal connection exists between this event any the earlier events of July 15, 1999, for which Plaintiff alleges he was retaliated against by Lieutenant Fahey. Ninth, Plaintiff alleges Lieutenant Fahey retaliated against him by refusing to correct a tray with a missing entrée on it. [¶ 54]. Like most of the allegations against Lieutenant Fahey above, this allegation fails to state any retaliation claim because of its de minimis nature, the lack of any cognizable injury to the Plaintiff, and the lack of any casual connection between this event and any protected activity engaged in by Plaintiff. iii. Defendant Betty Fulton Ms. Fulton was Mr. Baldauf's case manager during the times he was in segregation in Cell House 5 at FCF. [¶¶ 5-6]. Mr. Baldauf 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 Mr. Baldauf beginning in January 2000. [¶ 55].

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Plaintiff's claim against Ms. Fulton fails for several reasons. Initially, Plaintiff cannot establish any retaliatory motive by Ms. Fulton. Plaintiff has no evidence Ms. Fulton was aware of his service of the C.R.C.P. 106(a)(4) complaint on Captain Hyatt and Lieutenant Fahey on July 15, 1999, or that Ms. Fulton took any action because of such knowledge to retaliate against the Plaintiff. Plaintiff also has no evidence that Captain Hyatt or Lieutenant Fahey prompted Ms. Fulton to take any action whatsoever respecting the Plaintiff. Finally, Ms. Fulton caused no injury to Plaintiff. Ms. Fulton was not involved in the initial decision to place Plaintiff in administrative segregation. And even assuming Ms. Fulton provided the information contained on the administrative segregation reviews Plaintiff complains about, Ms. Fulton was but one member on the administrative segregation review panel and the determination by the panel for Plaintiff to remain in segregation was affirmed by the Warden and was subject to judicial review. See Baldauf v. Roberts, 37 P.3d 483 (Colo. App. 2001). Thus, Plaintiff cannot

demonstrate any allegedly false information provided by Ms. Fulton on the administrative segregation reviews caused him to remain in administrative segregation. [¶ 55 (and documents cited therein)]. iv. Defendant Paul Carreras Paul Carreras was a sergeant on the day shift in Cell House 4 at FCF. [¶ 11]. Mr. Baldauf alleges Sergeant Carreras retaliated against him as follows: (1) by

changing his attitude towards Mr. Baldauf from civil to hostile [¶ 31]; (2) by turning his back on Mr. Baldauf when he approached him with a request for a cell move in September 1999 [¶¶ 32-33]; (3) by refusing to re-assign him to a different cell with an

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inmate other than Shelby Carrigan [¶ 44]; and (4) and by providing false testimony during the COPD hearing involving his altercation with Mr. Carrigan [¶¶ 44-47]. First, Plaintiff alleges Sergeant Carreras retailed against him by changing his attitude towards Plaintiff from civil to hostile. [¶ 31]. Not only does an alleged change in attitude not rise to the level of a cognizable retaliation claim, but Plaintiff cannot demonstrate any injury from Sergeant Carreras' attitude change towards him. Crawford-El, 523 U.S. at 598-600; Giba, 232 F.Supp.2d at 1191-92; Scott, 107 F.Supp.2d at 709-10. Second, Plaintiff maintains Sergeant Carreras retaliated against him by turning his back on Mr. Baldauf when he approached Sergeant Carreras to request a cell move in September 1999. [¶¶ 32-33]. Here, Plaintiff cannot demonstrate Sergeant Carreras took this action in retaliation for anything. No evidence exists linking Sergeant Carreras' action with any protected activity of the Plaintiff. Plaintiff cannot demonstrate Sergeant Carreras had any knowledge of his service of the complaint on July 15, 1999, and he specifically took this action because of a retaliatory motive based on that knowledge. Third, Plaintiff attempts a retaliation claim against Sergeant Carreras based on his refusal to reassign Plaintiff to a different cell away from Mr. Carrigan. [¶ 44]. Again, Plaintiff cannot prove a retaliatory motive by Sergeant Carreras for this decision based on any evidence linking the decision to any protected activity of Mr. Baldauf or any animus toward Mr. Baldauf by Sergeant Carreras for a retaliatory motive. Fourth, Plaintiff alleges Sergeant Carreras provided false testimony at the COPD hearing involving the incident with Mr. Carrigan. [¶¶ 44-47]. Initially, Sergeant Carreras

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did not provide testimony at this COPD hearing. Instead, he acted as the prosecutor known as the disciplinary officer at the COPD hearing. [See Disposition of Charges, 11/4/99, Exh. A-24]. Therefore, Sergeant Carreras could not have provided false

testimony at the COPD hearing. Further, any alleged wrongdoing by Sergeant Carreras at the COPD hearing did not cause Plaintiff any injury because of the independent assessment made by the hearing officer to convict Plaintiff of the COPD violation and the conviction being upheld on appeal. [¶ 45]. No causal connection exists between anything Sergeant Carreras did at the COPD hearing and the result. Finally, as argued above, Plaintiff has no evidence demonstrating any retaliatory motive by Sergeant Carreras at all. v. Defendant Connie Davis Connie Davis was also a sergeant who worked on the day shift in Cell House 4 at FCF. [¶ 7]. Mr. Baldauf alleges Sergeant Davis retaliated against him as follows: (1) based on her change in attitude towards him from civil to hostile [¶ 31]; (2) by firing him from his landscaping job in Cell House 4 [¶ 43]; and (3) by refusing to re-assign him to a different cell away from Mr. Carrigan [¶ 44]. First, Plaintiff alleges Sergeant Davis retaliated against him by adopting a hostile attitude towards him. [¶ 31]. This claim fails for the same reason Plaintiff's similar claim against Sergeant Carreras does. A claim of a hostile attitude cannot state a claim absent an actual injury occurring from that attitude. Crawford-El, 523 U.S. at 598-600; Giba, 232 F.Supp.2d at 1191-92; Scott, 107 F.Supp.2d at 709-10.

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Second, Plaintiff claims Sergeant Davis retaliated against him by firing him from his landscape job in Cell House 4. [¶ 43]. However, Plaintiff has no evidence that Sergeant Davis made this decision because of any retaliatory animus towards him arising from his service of the C.R.C.P. 106(a)(4) Complaint on Captain Hyatt and Lieutenant Fahey on July 15, 1999. No evidence exists Sergeant Davis was even aware of that event or that she terminated Plaintiff's prison employment to retaliate against Plaintiff for his actions. Third, Plaintiff also insists Sergeant Davis retaliated against him by refusing to reassign him to a cell apart from Mr. Carrigan. [¶ 44]. Plaintiff's allegation fails for the same reasons as his identical allegation against Sergeant Carreras. Namely, Plaintiff cannot establish Sergeant Davis took this action because of any retaliatory animus against Mr. Baldauf as no evidence exists linking the decision not to reassign Plaintiff's cell with any protected activity Plaintiff might have engaged in. vi. Defendant Ken Maestas Lieutenant Maestas was an investigator who investigated COPD charges at FCF. [¶ 8]. Mr. Baldauf alleges Lieutenant Maestas retaliated against him based on the

COPD charges filed against him for the altercation between Mr. Baldauf and Mr. Carrigan. [¶¶ 45-46]. Plaintiff's only allegation of retaliation against Lieutenant Maestas is his initiation of COPD charges against the Plaintiff based on the altercation between Mr. Baldauf and Mr. Carrigan. Initially, Plaintiff possesses no evidence establishing Lieutenant Maestas did so for any retaliatory motive. No evidence exists Lieutenant Maestas was aware of

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Mr. Baldauf's actions on July 15, 1999, or that Lieutenant Maestas made any decision because of those actions. Further, while Lieutenant Maestas initiated the COPD

charges, a variety of different intervening events occurred between the initiation of charges and any injury to the Plaintiff resulting from the initiation of charges thus disrupting any causal connection between an action by Lieutenant Maestas and any injury to the Plaintiff. Specifically, a supervisor reviewed the charges, a disciplinary officer prosecuted the charges, a hearing officers convicted Mr. Baldauf of the COPD violation, and the Warden affirmed the COPD conviction. These intervening events between Lieutenant Maestas' action and any injury to the Plaintiff mean Plaintiff cannot establish any causal connection between the two events even if he could prove a retaliatory motivation by Lieutenant Maestas. vii. Defendant Joseph Garcia Sergeant Garcia was a sergeant on the day shift in Cell House 4. [¶ 9]. Mr. Baldauf alleges Sergeant Garcia retaliated against him in the following ways: (1) based on his change of attitude towards Mr. Baldauf [¶ 31]; and (2) by discarding his food items and misplacing some of his property when he packed it up on September 12, 1999, but not discarding Mr. Jacquermard's property. [¶¶ 41-42]. First, Plaintiff alleges Sergeant Garcia retaliated against him based on his alleged changed in attitude towards him. [¶ 31]. Similarly to this claim against Sergeant Carreras and Sergeant Davis, an alleged change in attitude cannot state a retaliation claim based on the lack of any cognizable injury to Plaintiff. Crawford-El, 523 U.S. at 598-600; Giba, 232 F.Supp.2d at 1191-92; Scott, 107 F.Supp.2d at 709-10.

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Second, Plaintiff contends Sergeant Garcia retaliated against him by discarding his food and losing some of his property when he packed it on September 12, 1999, but not discarding Mr. Jacquermard's property despite packing it at the same time. [¶¶ 4142]. Mr. Baldauf's claim of retaliation against Sergeant Garcia fails because Mr. Baldauf possesses no evidence that Sergeant Garcia was even aware of his action attempting to service the C.R.C.P. 106(a)(4) complaint on Captain Hyatt and Lieutenant Fahey or that Sergeant Garcia handled his property in the fashion he allegedly did on September 12, 1999, in retaliation for Mr. Baldauf's protected activity. Finally, Mr. Baldauf cannot demonstrate Sergeant Garcia's specific actions caused him any actual injury. viii. Defendant David Archuleta Correctional Officer Archuleta worked on the day shift at FCF assigned to general security functions. [¶ 12]. Mr. Baldauf contends Mr. Archuleta retaliated

against him by falsely accusing him of making a threat to kill a staff member resulting in a COPD conviction. [¶ 49]. Mr. Baldauf's only allegation against Correctional Officer Archuleta is based on the incident report Mr. Archuleta wrote concerning Mr. Baldauf's threat to kill a staff member. [¶ 49]. Plaintiff cannot state a viable retaliation claim against Mr. Archuleta on this basis because he has no evidence providing any causal connection between Mr. Archuleta's actions and any protected activity undertaken by Plaintiff. Plaintiff cannot establish Mr. Archuleta had any knowledge of his service of the complaint on Captain Hyatt and Lieutenant Fahey. Plaintiff also cannot establish Mr. Archuleta wrote his incident report because he possessed a retaliatory motive against Mr. Baldauf. Plaintiff

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only has speculation to support his retaliation claim against Mr. Archuleta, not any actual evidence. CONCLUSION In conclusion, for all of the foregoing reasons, 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. CERTIFICATION OF COMPLIANCE WITH REB Civ. Practice Standard V.I.1. Defendants certify that they have reviewed and complied with this Court's Civil Practice Standards governing dispositive motions and motions pursuant to Fed. R. Civ. P. 56. Dated this 2nd day of July, 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 2nd day of July, 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. Dennis W. Hartley, P.C. 1749 South 8th Street, Suite 5 Colorado Springs, CO 80906 [email protected]

s/Marlene Wilson, 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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