Lovato v. Willer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-02905-PAB-STV
WILLIAM B. LOVATO,
Plaintiff,
v.
CHRISTOPHER WILLER;
JACOB MORONES;
JAMES JOHNSON;
DANIEL DENT;
WHITE; and
JACKIE SHAAL,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Motion for Summary Judgment
(the “Motion”) [#183]. The Motion has been referred to this Court. [#184] The Court has
carefully considered the Motion and related briefing, the entire case file, and the
applicable case law, and has determined that oral argument would not materially assist
in the disposition of the Motion. 	For the following reasons, the Court respectfully
RECOMMENDS that the Motion be GRANTED.
I. 	BACKGROUND
Plaintiff initiated this action, pro se, on November 7, 2022. 	[#1] 	Plaintiff’s
allegations concern numerous violent incidents involving Plaintiff which took place at
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various Colorado Department of Corrections (“CDOC”) facilities in which Plaintiff was, and
remains, housed. [See generally #1] On January 2, 2024, the Court dismissed several
of Plaintiff’s claims against several Defendants. [#115] On October 23, 2024, pro bono
counsel entered an appearance for Plaintiff [#161] and pro bono counsel continues to
represent Plaintiff.
Plaintiff claims that all remaining Defendants were deliberately indifferent to his
safety in violation of the Eighth Amendment to the United States Constitution. [#1 at 21-
32] On October 7, 2025, those remaining Defendants to this action—Christopher Willner,
Jacob Morones, James Johnson, Daniel Dent, Mr. White, and Jackie Shaal—filed the
instant Motion seeking summary judgment on Plaintiff’s deliberate indifference claims.
[#183] Plaintiff has responded to the Motion [#188] and Defendants have replied [#192].
II. 	UNDISPUTED MATERIAL FACTS1
In November 1988, Plaintiff was a member of the Chiqui-30s (“Chi-30s”) gang.
[#188 at 2 ¶ 1] 	While a member of the gang, Plaintiff was involved in the murder of an
“Oldies-13” gang member. [##188 at 2 ¶ 1; 192 at 2 ¶ 1] In 2005, after serving a sentence
for his participation in the “Oldies-13” gang member’s murder, Plaintiff was involved in
another shooting and sentenced to 128 years of incarceration. 	[#192 at 3 ¶ 6] 	Since
then, Plaintiff has been incarcerated at various CDOC facilities. [#188 at 2 ¶ 2] Between
2006 and 2019, Plaintiff transferred facilities at least 13 times. [#192 at 3 ¶ 11] Plaintiff
was routinely placed in general population with active Hispanic gang members. [Id. at 4
1 Consistent with D.C.COLO.LCivR 56.1(1), the Motion includes a statement of proposed
undisputed facts in sequentially numbered paragraphs. [#183 at 2-3] The following facts
are undisputed unless otherwise noted.
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¶ 14] 	Also between 2006 and 2019, Plaintiff was involved in altercations with other
inmates on at least eight occasions. [Id. at 4 ¶ 15]
Plaintiff’s 	first 	transfer 	to 	Colorado 	State 	Penitentiary 	(“CSP”) 	occurred 	on
September 13, 2013. 	[Id. at 4 ¶ 16] 	While at CSP, Plaintiff interviewed extensively
regarding his high-risk status, but was placed in general population with active Hispanic
gang members despite repeated concerns raised by Plaintiff and his family. 	[Id.] 	After
being transferred out of CSP for a period of time, Plaintiff was transferred back to CSP
on December 5, 2019. [Id. at 4 ¶ 18] Plaintiff had an intake interview with CSP staff about
his criminal history, gang involvement, and being “victim prone.” [Id.]
On February 27, 2020, Plaintiff was involved in an altercation at CSP with two
Hispanic gang members (the “February Altercation”). 	[##188 at 2 ¶ 3; 192 at 5 ¶ 27]
Following the incident, Plaintiff was interviewed by Defendants Johnson and White, who
asked Plaintiff whether he had any concerns for his safety. 	[#188 at 2 ¶ 4] 	Defendant
White did not review Plaintiff’s file after this altercation. 	[#192 at 5 ¶ 23] 	Defendant
Johnson stated that he first reviewed Plaintiff’s case file after this altercation and that he
did not review any material about Plaintiff’s prior law enforcement interaction though he
did review material about Plaintiff’s Security Threat/Terrorist Group (“STG”) history. [Id.
at 5 ¶ 24]
Intelligence 	officers 	are 	generally 	responsible 	for 	gathering 	intelligence 	on,
investigating, and monitoring inmates who participate in STG behavior. 	[Id. at 4 ¶ 20]
Additionally, these officers are responsible for taking reasonable measures necessary to
confine, separate, or transfer inmates who actively participate in STG behavior. 	[Id.]
Defendant Dent stated that an intelligence officer would normally take “a deeper dive” into
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past incident reports and review intelligence after an incident occurred with an STG
inmate. [Id. at 4 ¶ 21]
On March 5, 2020, CSP staff recorded that Plaintiff’s mother and sister had spoken
with staff about the February Altercation and voiced concerns about Plaintiff’s well-being.
[Id. at 5 ¶ 31] Plaintiff’s sister asked whether Plaintiff could be moved to a more secure
location. 	[Id. at 5 ¶ 32] CSP staff responded that Plaintiff “would need to complete the
programs at CSP and progress.” [Id.]
On November 23, 2020, Plaintiff was transferred to “Bravo Unit” at CSP and placed
on a 24-hour hold, during which time he was confined to his cell. [#188 at 2 ¶ 5] Following
the conclusion of the 24-hour hold, Plaintiff’s cell was opened by Defendant Morones. [Id.
at 2 ¶ 6] 	Defendant Morones radioed or communicated with Defendant Schaal prior to
opening Plaintiff’s cell door to confirm that the door could be opened. 	[#192 at 5 ¶ 34]
Defendant Morones did not disclose that there were multiple inmates standing close to
Plaintiff’s cell door because he believed that Defendant Schaal already knew. [Id. at 5 ¶
35] 	Upon the opening of the cell door, three gang members entered Plaintiff’s cell and
attacked him (the “November Attack”). 	[#188 at 2 ¶ 7] 	Plaintiff was hospitalized and
sustained serious injuries. [Id.]
Following the attack, Defendant Schaal testified that Defendant Morones should
have 	disclosed 	that 	other 	inmates 	stood 	outside 	of 	Plaintiff’s 	cell 	door 	when 	he
communicated with Defendant Schaal about opening the door. 	[#192 at 5 ¶ 36]
Defendant Schaal explained that inmates should not generally be standing outside other
inmates’ doors. 	[Id. at 6 ¶ 37] 	Defendant Schaal stated that if he had known or seen
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other inmates loitering near Plaintiff’s door, he would have made the inmates move before
the door was opened. [Id. at 6 ¶ 38]
After the November Attack, Plaintiff wrote a letter to Defendants White and
Johnson outlining his gang history and explaining why he believed he was attacked by
gang members in his cell. [#188 at 2 ¶ 8] On December 4, 2020, Plaintiff completed an
application seeking protective custody. [Id. at 2 ¶ 9] Defendant Schaal testified that the
responsibility to request protective custody lay only with Plaintiff. 	[#192 at 5 ¶ 25]
Defendant Schaal later testified that he had not received any training on placing an inmate
into protective custody. [Id. at 5 ¶ 26]
III. 	STANDARD OF REVIEW
Summary judgment is appropriate only if “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Henderson v. Inter–Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). 	“A movant that
does not bear the ultimate burden of persuasion at trial does not need to disprove the
other party's claim; rather, the movant must only point the Court to a lack of evidence for
the other party on an essential element of that party's claim.” Id. (citing Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). 	“Once this movant has met its initial
burden, the burden then shifts to the nonmoving party to ‘set forth specific facts showing
that there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986)).
“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
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trial.’” 	Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson, 477 U.S. at 249).
Whether there is a genuine dispute as to a material fact depends upon whether the
evidence presents a sufficient disagreement to require submission to a jury. 	See
Anderson, 477 U.S. at 248-49; Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir.
1987). 	Evidence, including testimony, offered in support of or in opposition to a motion
for summary judgment “must be based on more than mere speculation, conjecture, or
surmise.” 	Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). 	A fact is
“material” if it pertains to an element of a claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went to trial, a reasonable juror could
return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” 	Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting First Nat’l. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289
(1968)). 	In reviewing a motion for summary judgment, the Court “view[s] the evidence
and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
IV. 	ANALYSIS
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994)
(citations omitted). To comply with the Eighth Amendment, “prison officials must ensure
that inmates receive adequate food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of the inmates.” 	Id. at 832 (quotations
omitted). In particular, “prison officials have a duty . . . to protect prisoners from violence
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at the hands of other prisoners.” Id. at 833 (quotation omitted). “Prison conditions may
be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner
by another serves no legitimate penological objective.” 	Id. (quotation and internal
citations omitted). 	“Being violently assaulted in prison is simply not ‘part of the penalty
that criminal offenders pay for their offenses against society.’” Id. at 834 (quoting Rhodes
v. Chapman, 452 U.S. 337 347 (1981)).
“It is not, however, every injury suffered by one prisoner at the hands of another
that translates into constitutional liability for prison officials responsible for the victim’s
safety.” 	Id. 	Accordingly, an official “violates the Eighth Amendment only when two
requirements are met.” Id. “First, the alleged injury must be ‘sufficiently serious.’” Poore
v. Glanz, 724 F. App’x 635, 639 (10th Cir. 2018) (quoting Farmer, 511 U.S. at 834).
“Second, the prison official must have had ‘a sufficiently culpable state of mind’ amounting
to ‘deliberate indifference.’” Id. (quoting Farmer, 511 U.S. at 834). Under this standard,
“[t]he official must actually be ‘aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.’” Id.
(quoting Farmer, 511 U.S. at 837). 	“An official’s failure to alleviate a significant risk of
which he was unaware, no matter how obvious the risk or how gross his negligence in
failing to perceive it, is not an infliction of punishment and therefore not a constitutional
violation.” Id. (quoting Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)).
A. 	Objective Element
Defendants do not argue that Plaintiff failed to show his injury was sufficiently
serious. [#183 at 5] It is undisputed that Plaintiff was hospitalized and sustained serious
injuries following the November Attack. [#188 at 2 ¶ 7] Accordingly, the Court does not
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further 	assess 	whether 	Plaintiff 	has 	met 	the 	objective 	element 	of 	the 	deliberate
indifference test.
B. 	Subjective Element
1. 	Defendant Dent
Defendants have presented evidence that Defendant Dent retired from his position
at the CDOC in October of 2017, years before the November Attack. 	[#183-7 at 3]
Plaintiff does not appear to refute that Defendant Dent retired from the CDOC before the
November Attack, but rather argues that Defendant Dent had a “supervisory role” in
enforcing safety procedures and administrative regulations within the prison prior to his
retirement, which Plaintiff argues “is relevant to [the] institutional context” of the assault.
[#188 at 10-11]
The mens rea standard for deliberate indifference “extends to Eighth Amendment
claims brought against supervisors.” 	Poore, 724 F. App’x at 639. 	“To prevail on a
supervisory liability claim, there must be an ‘affirmative link between the constitutional
deprivation and the supervisor’s actions.’” Id. (quoting Keith v. Koerner, 707 F.3d 1185,
1188 (10th Cir. 2013)). 	“A supervisor is directly responsible for an Eighth Amendment
violation 	if 	the 	plaintiff 	can 	show: 	‘(1) 	personal 	involvement, 	(2) 	sufficient 	casual
connection, and (3) culpable state of mind.’” Id. (quoting Dodds v. Richardson, 614 F.3d
1185, 1195 (10th Cir. 2010)).
No rational fact finder could find that any of these three elements are met as to
Defendant Dent. Plaintiff has not presented any evidence that Defendant Dent had any
personal involvement in the November Attack. 	Defendant Dent left his position at the
CDOC over three years prior. 	Though he may, at one point, have been in a position to
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enforce safety procedures and administrative regulations, he did not have such a position
at the time of the November Attack. 	Plaintiff has likewise not presented any evidence
that any action by Defendant Dent led to the November Attack. There is no evidence, for
example, 	that 	Defendant 	Dent’s 	particular 	enforcement 	of 	safety 	procedures 	or
administrative regulations contributed to the November Attack. 	Finally, Plaintiff has not
presented any evidence that Defendant Dent had subjective knowledge of a threat to
Plaintiff’s safety. 	Once again, Defendant Dent had retired three years prior to the
November Attack, and thus there is no reason to believe Defendant Dent would have had
any knowledge whatsoever of Plaintiff’s safety concerns or even his location at the time
of the November Attack. 	Accordingly, the record taken as a whole could not lead a
rational trier of fact to find for Plaintiff against Defendant Dent. 	As a result, the Court
respectfully RECOMMENDS that the Motion be GRANTED as to Defendant Dent.
2. 	Defendant Willner
Defendants have presented evidence that, on the day of the November Attack,
Defendant Willner was “up in the control center.” 	[#183-6 at 1 (20:4-18)] 	Defendant
Willner testified that, in general, there are not any notices in the “control room” that would
alert an officer that a particular inmate is an STG threat. 	[Id. at 3 (39:8-22)] 	And
Defendants have presented evidence that the control room contained “observation
monitors” which would not provide enough clarity to identify individuals. 	[Id. at 4 (62:1-
23)] 	Indeed, the cameras showing the “day halls” would periodically shift between all
eight day halls. [Id. (62:13-16)
Defendant Willner testified that he was aware Plaintiff had been involved in either
mutual fights or one-sided attacks at CSP prior to the November Attack. [Id. at 2 (38:4-
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13)] 	However, 	Defendant 	Willner 	testified 	that 	Plaintiff 	never 	told 	him 	that 	the
fights/attacks were related to Plaintiff’s former gang membership or testimony against a
gang member. [Id. (38:14-17)] Defendant Willner did not know if Plaintiff had any “active
separation alerts or custody issues.” [Id. at 2-3 (38:22-39:1)]
Plaintiff argues that Defendant Willner’s participation in the decision to open
Plaintiff’s cell door despite not being able to clearly identify individuals in the camera
creates a genuine issue of fact for trial.2 	[#188 at 9-10] 	However, the subjective
component of the deliberate indifference standard requires that an official actually be
“aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” 	Farmer, 511 U.S. at 837. 	Plaintiff
has not presented any evidence that Defendant Willner either was aware of facts from
which he could have inferred that a substantial risk of serious harm existed or that he
drew such an inference. Plaintiff has not presented any evidence that Defendant Willner
had any knowledge that individuals were standing outside of Plaintiff’s cell or that
Defendant Willner inferred that individuals standing outside of Plaintiff’s cell were a threat
to Plaintiff’s safety. Even if Defendant Willner was grossly negligent in failing to perceive
a significant risk to Plaintiff, this is not enough to satisfy the deliberate indifference
standard. 	Tafoya, 516 F.3d at 916 (citing Farmer, 511 U.S. at 837). 	Accordingly, the
record taken as a whole could not lead a rational trier of fact to find for Plaintiff and against
2 Plaintiff here, and at many other times in his Response, cites to Garrett v. Stratman for
positions that have absolutely nothing to do with the court’s decision in that case. [#188
at 10 (citing Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001))] The page Plaintiff
cites to in this context contains a partial procedural history of the case and rules related
to a deliberate indifference to an inmate’s serious medical needs claim. This has nothing
to do with whether “poor visibility” and “known gang tensions” create a genuine issue of
material fact.
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Defendant Willner. As a result, the Court respectfully RECOMMENDS that the Motion be
GRANTED as to Defendant Willner.
3. 	Defendant White
Defendants have presented evidence that Defendant White was the “Intel Sargent”
at the time of the November Attack. [#183-3 at 4 (26:17-19)] An alarm alerted Defendant
White that an incident had been reported and responders were called. 	[Id. (26:23-26)]
After hearing the alarm, he saw three offenders being escorted out of the “day hall.” [Id.
at 5 (27:1-3)] Defendant White believed that medical staff were already assessing Plaintiff
when Defendant White arrived at the location of the November Attack. [Id. (27:3-4)]
Defendant White testified that he did not have any direct responsibility for
approving or denying Plaintiff’s release from his cell. 	[Id. (27:11-14)] 	In addition,
Defendant White testified that he did not know that Plaintiff was even in a 24-hour hold
and being moved to a different unit. [Id. (27:15-17)] Defendant White testified that he did
not know Plaintiff was at a risk from Hispanic gangs and that he had never reviewed
Plaintiff’s file before the November Attack. [Id. at 6-7 (27:22-28:3); 11 (32:2-24)]
Plaintiff and Defendant White did interact with one another after the February
Altercation. 	[Id. at 9 (29:9-20)] 	Defendant White testified that, after the altercation, he
attempted to speak with Plaintiff, but that Plaintiff refused and stated that the incident was
personal and that there were not any concerns to discuss. [Id.] Defendant White stated
that he was not aware that Plaintiff’s family had contacted CSP regarding concerns about
Plaintiff’s safety. [Id. (29:21-24)] Defendant White instead testified that Plaintiff, after the
November Attack, stated he should have previously notified Defendant White and others
about his issues with Hispanic gang members. 	[Id. at 12 (33:10-25)] 	Defendant White
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testified that he believed nothing could have been done to protect Plaintiff from the
November Attack because he did not have prior knowledge of Plaintiff’s safety concerns
or threats. [Id. at 15 (39:1-14)]
Plaintiff argues that Defendant White acknowledged awareness of Plaintiff’s
history of gang-related victimization and did not submit a protective custody referral or
alert facility intel as required by administrative regulations. 	[#188 at 11-12] 	However,
Plaintiff’s evidence does not support these contentions. 	Plaintiff’s cited testimony
includes Defendant White explicitly stating that he never reviewed or was aware of
Plaintiff’s documented inmate history prior to the November Attack. [#188-3 at 8-9 (31:6-
32:7)] Additionally, Defendant White testified he had no role at all in the November Attack
aside from speaking with Plaintiff after he was hospitalized. [Id. at 9 (32:8-16)]
The 	cited 	administrative 	regulation 	offers 	no 	further 	support 	to 	Plaintiff’s
arguments. As an initial matter, the regulation cited, A.R. 650-02(IV)(C)(4)(b), relates to
offenders at high risk for sexual victimization. [See #183-8 at 3] Plaintiff’s risk of sexual
victimization was never alleged or discussed at any time in the Complaint or Motion.
Assuming that Plaintiff meant to cite A.R. 650-02(IV)(C)(4)(a), the regulation applies when
a facility has “information of a legitimate verifiable threat to an offender.” 	[See id.] 	As
previously stated, Plaintiff has not presented any evidence that Defendant White had
knowledge of a legitimate, verifiable threat to Plaintiff prior to the November Attack.
Plaintiff simply fails to present any evidence that Defendant White was actually
aware of facts from which the inference could be drawn that Plaintiff was at a substantial
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risk of serious harm or that Defendant White in fact drew that inference.3 	Accordingly,
the record taken as a whole could not lead a rational trier of fact to find for Plaintiff against
Defendant White. As a result, the Court respectfully RECOMMENDS that the Motion be
GRANTED as to Defendant White.
4. 	Defendant Schaal
Defendants present evidence that Defendant Schaal was not aware of any prior
request for protective custody by Plaintiff prior to the November Attack. 	[#183-4 at 2
(27:13-16)] Defendant Schaal testified that he was unsure if he was aware Plaintiff was
a gang member prior to the November Attack. [Id. at 2-3 (27:17-28:9)] Defendant Schaal
testified that he was not aware of any documented threats Plaintiff reported in the days
or weeks prior to the November Attack. 	[Id. at 3-4 (28:16-29:2)] 	At the time of the
November Attack, Defendant Schaal was either “on the pod floor” or in the staff office.
[Id. at 4 (29:20-24)] 	Defendant Schaal did not know if any officer observed inmates
approaching Plaintiff’s cell or if any staff raised concerns about the inmates. 	[Id. at 5
(30:12-18)] Defendant Schaal stated that it was his decision to open Plaintiff’s cell once
the 24-hour lockdown period had expired. [Id. (30:19-23)] Defendant Schaal described
that Defendant Morones asked him whether Plaintiff’s cell door could be opened, that
3 Plaintiff cites Howard v. Waide for the proposition that Defendant White’s failure to act
following the February Altercation satisfies the subjective component of deliberate
indifference. 	[#188 at 12 (citing Howard v. Waide, 534 F.3d 1227, 1238-39 (10th Cir.
2008))] However, in Howard, the plaintiff provided evidence that he had told prison official
defendants that he had been previously assaulted and threatened with violence by a
particular prison gang. 534 F.3d at 1239. The defendants did not do anything to protect
the plaintiff in response to the plaintiff’s report, and the plaintiff was then violently
assaulted multiple times by members of the prison gang. 	Id. at 1233. 	Thus, the court
found that the evidence supported a finding that at least some of the defendants were
subjectively aware of past violence and the possibility of future violence. 	Id. at 1239.
Plaintiff here does not provide any similar evidence.
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Defendant 	Schaal 	asked 	if 	the 	24-hour 	period 	expired, 	that 	Defendant 	Morones
responded it had, and that Defendant Schaal then gave Defendant Morones the
authorization to open the cell because an offender cannot be held past the 24-hour period
when they are asking to be let out. 	[Id. at 6 (31:17-25); see also #183-5 at 1 (16:1-12)]
Defendant Morones did not indicate to Defendant Schaal that other inmates were near
Plaintiff’s cell door. [#183-4 at 9 (61:7-11)] Defendant Schaal stated he was not aware
that Plaintiff’s family had reached out to prison staff to express their concerns about his
safety. [Id. at 8-9 (60:23-61:1)]
Plaintiff responds to this evidence by arguing that Defendant Schaal “admitted
knowing the hold was imposed for safety reasons.” [#188 at 11] Plaintiff thus argues that
approving Plaintiff’s release from the 24-hour hold without triggering a protective-custody
review contravened the facility’s administrative regulations and demonstrates “wanton
disregard.” [Id.] The evidence provided does not support these contentions. Defendants
provide Defendant Schaal’s testimony that the 24-hour hold was imposed because it is
“DOC policy” and that “anytime someone moves into a new unit or housing area, they are
locked down for 24 hours.” 	[#183-4 at 5-6 (30:24-31:4)] 	Plaintiff does not provide any
contrary evidence. 	Indeed, Plaintiff provides evidence that Plaintiff never mentioned to
Defendant Schaal that Plaintiff had an issue with any other inmate. 	[#188-4 at 4 (53:3-
10)]
Again, Plaintiff does not present any evidence that Defendant Schaal was actually
aware of facts from which the inference could be drawn that Plaintiff was at a substantial
risk of serious harm or that Defendant Schaal in fact drew that inference. 	Plaintiff does
not present any evidence that Defendant Schaal knew Plaintiff had safety concerns or
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that any inmates were outside of Plaintiff’s cell at the time of the November Attack.
Accordingly, the record taken as a whole could not lead a rational trier of fact to find for
Plaintiff against Defendant Schaal. 	As a result, the Court respectfully RECOMMENDS
that the Motion be GRANTED as to Defendant Schaal.
5. 	Defendant Johnson
Defendants have presented evidence that Defendant Johnson and Defendant
White together attempted to interview Plaintiff after the February Altercation. [#183-2 at
1-2 (22:14-23:6)] 	At that point, Defendant Johnson and Defendant White both testified
that Plaintiff stated he was fine and did not alert either Defendant to any additional safety
needs. [Id.; #183-3 at 9 (29:9-10)] Defendant Johnson estimated that the interview lasted
for two minutes. 	[#183-2 at 2 (23:5-6)] 	Plaintiff testified that he requested protective
custody during this interview. 	[#188-1 at 2-3 (41:17-42:15)] 	But besides Plaintiff’s
testimony about requesting protective custody, Plaintiff has not provided any evidence as
to the information conveyed to Defendant Johnson. Specifically, Plaintiff has not provided
any evidence that he told Defendant Johnson that there was an ongoing threat to his
safety or that he needed protective custody to protect him from Hispanic gangs.
Plaintiff argues that Defendant Johnson’s interview of Plaintiff following the
February Altercation and review of Plaintiff’s file create a material dispute as to whether
Defendant Johnson had actual knowledge of the gang-related threats to Plaintiff’s safety.
[#188 at 10] Defendant Johnson stated that he first reviewed Plaintiff’s case file after the
February Altercation. 	[#183-2 at 2 (23:12-14)] 	But Defendant Johnson testified that he
did not become aware of Plaintiff’s prior cooperation with law enforcement until after the
November Attack. 	[Id. (23:15-22)] 	Defendant Johnson further testified that the file he
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reviewed prior to the November Attack would likely have contained custody issues
Plaintiff had within the department or at the facility and would have contained information
such as Plaintiff’s gang affiliations and past assaults and fights. 	[#188-2 at 5-6 (23:25-
24:20)] 	But Plaintiff does not present any evidence of what was contained in the file
Defendant Johnson reviewed which would inform Defendant Johnson of the safety threat.
Plaintiff does not present any evidence, for example, indicating that Hispanic gang
members posed a threat to Plaintiff, or that Plaintiff was in danger from certain gang
members due to his past cooperation with law enforcement. 	And the simple fact that
Defendant 	Johnson 	reviewed 	a 	file 	containing 	information 	generally 	about 	prior
altercations or assaults involving Plaintiff does not imply that Defendant Johnson actually
inferred that there was a substantial ongoing threat to Plaintiff’s safety. And Plaintiff does
not present any evidence that Defendant Johnson learned of the safety threats from any
other source. The only evidence presented is Defendant Johnson’s testimony that he did
not know about Plaintiff’s cooperation with law enforcement—cooperation which allegedly
created the safety threat—until after the November Attack when Plaintiff explicitly told
Defendant Johnson through a handwritten note. [##188-2 at 5 (23:15-22); 183-9].
With such little evidence before it, the Court cannot conclude that Defendant
Johnson was aware of or otherwise inferred the existence of a substantial risk of serious
harm to Plaintiff. Accordingly, the record taken as a whole could not lead a rational trier
of fact to find for Plaintiff against Defendant Johnson. As a result, the Court respectfully
RECOMMENDS that the Motion be GRANTED as to Defendant Johnson.
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6. 	Defendant Morones
Defendants have provided evidence that Defendant Morones opened the door to
Plaintiff’s cell following the 24-hour hold when Plaintiff asked to leave to talk to whoever
was by his door. [#183-5 at 1 (16:1-12)] According to Defendant Morones, after the 24-
hour hold expired, he contacted his supervisors, who said he could open Plaintiff’s door.
[Id. (16:9-12)] Defendant Morones did not testify that he told his supervisors that inmates
were standing outside of Plaintiff’s door, but he said “[t]hey kn[e]w” and “[t]hey watch
everything that goes on down there.” [Id. (16:16-19)]
Plaintiff’s 	testimony, 	however, 	differed 	from 	Defendant 	Morones’ 	testimony.
Specifically, Plaintiff testified that inmates were outside of his cell taunting him and that
he asked officers to get him out of the area. [#188-1 at 5 (84:17-25)] And though there
is conflicting evidence on whether it would be unusual to open the cell door with inmates
around, Defendant Schaal testified that if an officer had noticed that there were inmates
by Plaintiff’s door when it was going to be opened after the 24-hour hold, they should
have disclosed such to Defendant Schaal. [#183-4 at 9 (61:12-16); but see ##183-5 at 1
(16:13-25) (Defendant Morones testifying, in reference to inmates standing outside of the
cell of another inmate, that “[i]t’s nothing really crazy to see”); 183-3 at 16 (42:15-25)
(Defendant White testifying that it “would not be abnormal” for at least one inmate to be
standing right by Plaintiff’s door when he was about to be released from a 24-hour hold,
though describing the typical such situation as an inmate talking to a “buddy”)] 	Indeed,
Defendant Schaal stated that he would make a “deliberate conscious effort to ensure that
there [was] nobody hanging around any cell door, whether it’s their own or anyone else’s.”
[#188-4 at 6 (62:3-8)]
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Thus, if the jury chooses to believe Plaintiff and Defendant Schaal’s testimony, the
jury could conclude that there were a group of inmates outside Plaintiff’s cell taunting him,
and that Defendant Morones nonetheless instructed Defendant Schaal to open the door.
The jury could further conclude that, in such a scenario, Defendant Morones should have
disclosed the scenario to Defendant Schaal and that the doors should not have been
opened. 	And from these facts, a reasonable jury could conclude that the danger to
Plaintiff was so obvious that Defendant Morones should have inferred the existence of a
substantial risk of serious harm to Plaintiff yet he ignored that risk and asked Defendant
Schaal to open the door anyway. Farmer, 511 U.S. at 842 (“Whether a prison official had
the requisite knowledge of a substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial evidence, and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious.” (internal citation omitted)). Accordingly, the record taken as a whole could
lead a rational trier of fact to find that Defendant Morones was deliberately indifferent to
Plaintiff’s safety.
But this conclusion does not end the inquiry because Defendants argue that they
are entitled to qualified immunity on Plaintiff’s claim. 	[#183 at 13-16] 	“The doctrine of
qualified immunity protects government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation omitted). Once the defense of qualified immunity has been raised, “the
onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time of the
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challenged conduct.’” 	Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
“To 	be 	clearly 	established, 	a 	legal 	principle 	must 	have 	a 	sufficiently 	clear
foundation in then-existing precedent” such that it is “settled law.” District of Columbia v.
Wesby, 583 U.S. 48, 56 (2018). 	The Supreme Court has "not yet decided what
precedents—other than [its] own—qualify as controlling authority for purposes of qualified
immunity." 	Id. at 66 n.8. 	The Tenth Circuit, however, has stated that “[o]rdinarily this
standard requires either that there is a Supreme Court or Tenth Circuit decision on point,
or that the ‘clearly established weight of authority from other courts [has] found the law to
be as the plaintiff maintains.’” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting
Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Tenth Circuit has explained the “clearly established” prong of the qualified
immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates
that right. 	Although plaintiffs can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have
placed 	the 	statutory 	or 	constitutional 	question 	beyond 	debate. 	The
dispositive question is whether the violative nature of the particular conduct
is clearly established. . . . 	Qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted)
(emphasis in original). And the Supreme Court has “repeatedly stressed that courts must
not define clearly established law at a high level of generality, since doing so avoids the
crucial question whether the official acted reasonably in the particular circumstances that
he or she faced.” Wesby, 583 U.S. at 590 (quotation omitted).
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Here, Plaintiff has not cited any cases that would have clearly established that
Defendant Morones violated Plaintiff’s constitutional rights under the situation presented
here.4 	Plaintiff cites Farmer and Howard for the proposition that prison officials have a
duty to protect prisoners from known threats of assault.5 [#188 at 13-15] But Plaintiff has
not introduced any evidence that Defendant Morones was aware of Plaintiff’s history of
cooperating with law enforcement or his history of being assaulted by others in prison.
Nor has Plaintiff introduced evidence as to the type of taunting behavior that occurred
outside his cell door. In particular, Plaintiff has not alleged that any of the inmates waiting
outside Plaintiff’s cell door made menacing gestures or otherwise expressed an intent to
harm Plaintiff. 	Thus, this is very different from Howard where the plaintiff provided
evidence that he had told the prison official defendants that he had been previously
assaulted and threatened with violence by a particular prison gang and members of that
particular prison gang then repeatedly violently assaulted the plaintiff. 534 F.3d at 1233,
1239. Accordingly, because Plaintiff has not demonstrated that the right at issue here—
the right to some form of heightened protection when being taunted by other inmates
outside a cell door—was clearly established at the time of Defendant Morones’ conduct,
4 Once qualified immunity has been asserted, it is the plaintiff's burden to show both that
they have alleged a constitutional violation and that that violation was clearly established.
Bledsoe v. Carreno, 53 F.4th 589, 606, 617 n.25 (10th Cir. 2022). The Tenth Circuit,
however, has recently instructed that a court must independently “use its full knowledge
of its own and other relevant precedents” in engaging in a qualified immunity analysis.
Jordan v. Jenkins, 73 F.4th 1162, 1174 n.10 (10th Cir. 2023). The Court has thus done
its own independent analysis of the relevant caselaw.
5 	Plaintiff 	also 	cites 	Garrett, 	but 	as 	explained 	earlier, 	Garrett 	involved 	deliberate
indifference to a prisoner’s medical care and in no way clearly established the right at
issue here—the right to some form of heightened protection when being taunted by other
inmates outside a cell door. 254 F.3d at 949.
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the Court respectfully RECOMMENDS that the Motion be GRANTED with respect to
Defendant Morones.
V. 	CONCLUSION
The facts surrounding this case are tragic. If Plaintiff’s version of events is true—
and there is evidence that supports Plaintiff’s version—then Plaintiff’s injuries were the
result of a colossal failure on the part of the CDOC to protect Plaintiff from a known risk.
But negligence does not equate to a constitutional deprivation. 	And Plaintiff sues
Defendants in their individual capacities and has failed to present evidence that any
individual 	Defendant 	was 	deliberately 	indifferent 	to 	Plaintiff’s 	clearly 	established
constitutional 	rights. 	Thus, 	for 	the 	foregoing 	reasons, 	the 	Court 	respectfully
RECOMMENDS that Defendants’ Motion for Summary Judgment [#183] be GRANTED.6
6 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” 	United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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DATED: February 11, 2026 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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