United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING REMAINING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
NUFFER CHIEF JUDGE United States District Court
of June 19, 2017, (Docket No. 58), and September 29, 2017,
(Docket No. 61), disposed of all other claims and defendants
in this case except State of Utah defendants M. Anderson
(Assistant Attorney General (AAG)), Turley (Department of
Corrections (UDOC)), Deputy Warden Bussio (UDOC), Captain
Gardner (UDOC), and Grievance Coordinator Casper (UDOC). The
two remaining civil-rights claims are conspiracy to retaliate
and retaliation. See 42 U.S.C.S. § 1983 (2018). These
claims allege that because Defendants knew that Plaintiff was
gathering materials for this lawsuit, they conspired to
retaliate and retaliated by confiscating his legal materials,
recommending a three-year rehearing date to the Utah Board of
Pardons and Parole (BOP), and refusing a grievance about the
filed a Martinez report, (Docket No. 67), including
evidentiary documentation: (1) declarations of Defendants
Anderson, Bussio, Casper, and Gardner, amongst other relevant
Utah State Prison (USP) staff; (2) UDOC grievance and
inmate-property policies; (3) relevant letters; (4)
Plaintiff's April 2011 Rehearing Report and March 2011
Initial Contact Report. Based upon their Martinez report,
Defendants move for summary judgment, asserting qualified
immunity. (Docket No. 71.) Plaintiff responds, attaching one
item of evidence, Plaintiff's declaration. (Docket No.
72.) Plaintiff's response also asks for discovery to seek
more evidence to support his claims. This order grants
summary judgment for Defendants.
shall grant summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A party may support factual assertions by
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Id. at 56(c)(1). Summary judgment's purpose
“is to isolate and dispose of factually unsupported
claims or defenses.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
movant has the “initial burden to demonstrate an
absence of evidence to support an essential element of the
non-movant's case.” Johnson v. City of
Bountiful, 996 F.Supp. 1100, 1102 (D. Utah 1998). Once
movant meets this burden, “the burden then shifts to
the non-movant to make a showing sufficient to establish that
there is a genuine issue of material fact regarding the
existence of that element.” Id. To do so, the
non-movant must “go beyond the pleadings and ‘set
forth specific facts' that would be admissible in
evidence in the event of a trial from which a rational trier
of fact could find for the nonmovant.” Adler v.
Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1999)
(citation omitted). In ruling on a summary-judgment motion,
this Court must “examine the factual record and
reasonable inferences therefrom in the light most favorable
to the party opposing the motion.” Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
was notified that, in response to a summary-judgment motion,
“Plaintiff cannot rest upon the mere allegations in the
complaint. Instead . . . Plaintiff must allege specific
facts, admissible in evidence, showing that there is a
genuine issue remaining for trial.” (Docket No. 13, at
assertion of qualified immunity modifies the summary-judgment
review. Asserting qualified immunity, a state employee
creates a rebuttable presumption that she is immune from the
plaintiff's § 1983 claims. See Medina v.
Cram, 252 F.3d 1124, 1129 (10th Cir. 2001). And rather
than “focus[ing] on the existence of genuine disputes
of material fact, ” the court must
“'determine whether plaintiff's factual
allegations are sufficiently grounded in the record such that
they may permissibly comprise the universe of facts that will
serve as the foundation for answering the legal questions
before the court.'” Spencer v.
Abbott, No. 16-4009, 2017 U.S. App. LEXIS 24668, at
*10 n.6 (10th Cir. Dec. 5, 2017) (unpublished) (emphasis in
original) (quoting Cox v. Glanz, 800 F.3d 1231, 1243
(10th Cir. 2015)).
qualified immunity analysis has two parts: first, whether,
under the facts alleged by the plaintiff, the government
officials violated a constitutional right; and second,
“whether the right at issue was ‘clearly
established' at the time of the defendant's alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the
plaintiff fails to satisfy either element of his burden, the
court must grant the defendant qualified immunity. See
Medina, 252 F.3d at 1128.
material facts are not disputed, the question of immunity
“is a legal one for the court to decide.” Gomes
v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). Such is the
Plaintiff's crimes for which he was incarcerated at the
relevant time (and remains incarcerated) are Aggravated
Sexual Assault, three counts, with a ten-to-life sentence;
Aggravated Robbery, with a five-to-life sentence; and
Habitual Criminal, with a five-to-life sentence. (Docket No.
74-2 BOP Rehearing Order, dated September 30, 2011.)
During the relevant time period, Plaintiff was a USP inmate.
(Docket No. 6, at 3 Complaint.) USP is operated by UDOC.
(Id. at 2-3.)
For at least seven years, Plaintiff has been researching the
propriety of UDOC's operation of the Inmate Trust Fund
Account (ITFA). His efforts have entailed requests and
appeals under Utah's open records law (GRAMA),
complaining to the Office of the Comptroller of the Currency
about ITFA's establishment and management, and filing
this action. (Docket No. 72, at 4 Plaintiff's Opp. to
Defendants' summary-judgment motion (specifying
In January 2011, Defendant Anderson, an AAG representing
UDOC, provided GRAMA-requested documents to Plaintiff.
(Id. (specifying “Not disputed).)
A few weeks later, Defendant Anderson determined that certain
documents that he had given to Plaintiff should have been
classified, “PROTECTED, ” under GRAMA.
(Id. (specifying “Not disputed”); Docket
No. 67-9 (April 5, 2011 Defendant Anderson letter to
Defendant Anderson talked about this with UDOC administrators
Williams and Defendant Turley. Because GRAMA protected
records were classified as contraband under USP policy, the
decision was made to retrieve the documents from Plaintiff by
taking his “legal pouch.” (Docket No. 72, at 4-5
Plaintiff's Opp. To Defendants' summary-judgment
motion (specifying “Not disputed”); Docket No.
67-9 April 5, 2011 Defendant Anderson letter to Plaintiff.)
An inmate's legal pouches may contain (1) “Legal -
Public” materials--e.g., “case copies, court
rules, discovery responses (but not books) which are
necessary to process the case”: and (2) “Legal -
Privileged” materials--e.g., “attorney-client
correspondence and other non-public material which could
compromise the inmate's legal position if
disclosed.” (Docket No. 67-10, at 6 UDOC Policy Inmate
Legal - Privileged “pouches may be inspected, but
contents shall not be read [by UDOC employees]”; Legal
- Public “pouches shall be subject to normal inspection
rules and have no privilege against reading.”
(Id. at 6.)
“Specific justification for confiscating the legal
pouch shall be evidence or suspicious items that may be
considered contraband . . . .” (Id. at 7.)
The UDOC policy about handling a confiscated pouch is as
1. If the legal pouch is confiscated it shall be listed on a
Confiscation Form by the staff member completing the search
and/or property inventory.
2. The legal pouch and its contents shall be immediately
sealed in an evidence bag by the staff member completing the
3. The staff member who confiscated the legal pouch shall
complete an Incident Report outlining reasons for
4. The report and legal pouch shall be secured in an area
designated by the Deputy Warden.
5. The following working day the Deputy Warden/designee shall
pick up the legal pouch and reports at a designated area.
6. The Deputy Warden/designee shall forward the evidence bag,
incident reports, and other pertinent information identifying
the reason for the ...