Wilkins v. Palomino et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03495-PAB-STV
DARUS WILKINS,
Plaintiff,
v.
JOHN PALOMINO, et al.
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”). [#309] The Motion has been referred to this Court. [#310] 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 in part and DENIED in part.
I. 	BACKGROUND
Plaintiff initiated this action, pro se, on November 25, 2020. 	[#1] 	Plaintiff’s
allegations concern the conduct of various prison officials when acting at Bent County
Correctional Facility (“BCCF”) to get Plaintiff to take a buccal swab for the purpose of a
paternity test. [See generally #104] On December 17, 2020, pursuant to an order from
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then-Magistrate Judge Gordon P. Gallagher [#5], Plaintiff filed an Amended Complaint
[#8]. On June 24, 2021, Plaintiff filed his Second Amended Complaint. [#64] Finally, on
September 	9, 	2021, 	Plaintiff 	filed 	the 	operative 	Third 	Amended 	Complaint 	(“the
Complaint”). [#104]
Summary judgment was granted in favor of Defendant Virginia Freed on all of
Plaintiff’s claims involving Ms. Freed on January 18, 2022. 	[#154] 	Magistrate Judge
Michael E. Hegarty issued an Order appointing pro bono counsel for Plaintiff on January
25, 2022. [#158] Plaintiff’s claims against Defendant Dr. Jonathan Thiele were dismissed
on June 6, 2023. [#219] On October 26, 2023, Attorney Alan D. Schindler was selected
as pro bono counsel to represent Plaintiff. [#243] Plaintiff voluntarily dismissed his claims
against Defendant Jane Gilden on November 21, 2023. [##253, 254]
Plaintiff continues to be represented by pro bono counsel. 	The remaining
Defendants to this action—John Palomino, Chris Chavez, Cara Kennedy, Brent Pierce,
Luke Holland, Nita Hunt, and Mr. Smith—filed their Motion for Summary Judgment on
May 30, 2025. 	[#309] 	Plaintiff has responded to the Motion [#314] and Defendants
replied [#319].
II. 	UNDISPUTED MATERIAL FACTS1
In May 2019, Plaintiff was housed at the Jefferson County Detention Center. [See
#314 at 3 ¶ 5] 	At that time, Plaintiff, through counsel, requested a DNA test in a state
1 Consistent with D.C.COLO.LCivR 56.1(1), the Motion includes a statement of proposed
undisputed facts in sequentially numbered paragraphs. [#309 at 2-6] The following facts
are undisputed unless otherwise noted. 	The Court cites to the portion of the Response
or Reply brief admitting to the allegedly undisputed fact. 	On multiple occasions,
Defendants maintain that facts asserted by Plaintiffs are “irrelevant” but do not otherwise
challenge the truth of those facts. [#319 at 6-10] Because Defendants have not provided
evidence contradicting these facts, the Court treats those facts as undisputed. The Court
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court proceeding related to a paternity dispute. 	[Id. at 3 ¶¶ 2-3] 	The District Court in
Adams County issued an Order related to the collection of Plaintiff’s DNA in May 2019
(the “Order”). [Id. at 3 ¶ 4] The Order stated: “The Court hereby Orders genetic testing
to be completed for Dana Wilkins at his current facility, Jefferson County Detention
Center, before May 20, 2019, for the purpose of determining whether Darus Williams is
the biological father of the subject minor child, [J.W.].” [#309-2]
By July 2019, Plaintiff had been moved to BCCF. [#314 at 3 ¶ 1] A month prior to
the events comprising the allegations of this Complaint, Plaintiff received a health
screening at BCCF where he denied “any pain or discomfort” and “any thoughts of self-
harm or harm to others.” [#319 at 8 ¶ 24] Outside of the July 2019 incidents described
below, Plaintiff never had any problems with anyone while housed at BCCF. [#314 at 6
¶ 32]
As of July 2019, the Colorado Department of Corrections (“CDOC”) had in place
an Administrative Regulation (“A.R.”) regarding offender DNA testing. 	[#319 at 6-7 ¶ 5;
see also #314-6 at 4-12] None of the Defendants to this action had read or were aware
of the DNA A.R. prior to the July 25, 2019 incident described below. 	[#319 at 6-7 ¶ 6]
The DNA A.R. required the Office of Legal Services to be notified to ensure the validity of
a court order prior to a DNA sample collection. 	[Id. at 6-7 ¶ 7; see also #314-6 at 5]
Additionally, under the DNA A.R., if an offender continues to refuse collection, the
“designated Clinic Services [CDOC] employee will exercise reasonable precautions to
ensure that no unnecessary harm comes to the offender, including the review of pre-
also occasionally cites to portions of the evidence submitted by the parties as exhibits
where the validity of those exhibits are not challenged.
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existing medical conditions that could be exacerbated in a restraint procedure.” [#319 at
6-7 ¶ 10; see also #314-6 at 6] 	Under the DNA A.R., if an offender refuses a buccal
sample, a “blood sample will be obtained using reasonable physical force. The collection
of blood samples will be coordinated by the [Office of Inspector General (“OIG”)] facility
investigator and the health services administrator.” [#319 at 6-7 ¶ 11; see also #314-6 at
5] Contrary to these provisions, during the July 25, 2019 incident, Defendants did not
contact the Office of Legal Services or the OIG facility investigator. [Id. at 6-7 ¶ 12]
Around July 16, 2019, Plaintiff was called to BCCF medical for the DNA collection.
[#309-1 at 6-7 (29:22-30:6)] 	Defendant Hunt’s role was to assist Adams County, the
agency that requested the DNA sample, in accessing the facility. 	[#319 at 6 ¶ 4]
Defendant Hunt was the first BCCF official to receive the Order and she scheduled
Plaintiff for a DNA test sampling based on the order. 	[Id.] 	During this first encounter,
Plaintiff refused to have his DNA taken. 	[#314 at 3 ¶ 7] 	Virginia Freed, a Bent County
employee tasked with taking DNA samples, testified that it was unusual for an inmate to
refuse to have DNA taken and that this had only occurred once in the fourteen years she
had worked in her position. [Id. at 3 ¶¶ 8-9] Plaintiff was not placed in restraints during
his first encounter with Ms. Freed and Defendant Hunt. [#319 at 6-7 ¶ 9]
On July 25, 2019, Ms. Freed arrived at BCCF to take Plaintiff’s DNA. 	[#314 at 3
¶¶ 2,8] 	On the same day, Defendant Palomino went to Plaintiff’s Living Unit and
witnessed Defendants Pierce and Chavez speaking to Plaintiff in his cell. [Id. at 4 ¶ 14]
Plaintiff was being verbally non-compliant. 	[Id. at 4 ¶ 15] 	Upon entering Plaintiff’s cell,
Defendant Palomino asked to see the paperwork Plaintiff was holding. 	[Id. at 4 ¶ 17]
Defendant looked at the paperwork, which was the Order issued by Adams County, but
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did not review the date contained in the Order or conclude that the date for which the
DNA test was ordered had already passed. 	[Id. at 4 ¶ 18] 	Defendant Palomino
understood 	that 	a 	court 	order 	was 	required 	to 	take 	Plaintiff’s blood 	sample 	and
subsequently testified that the Order was not valid in July 2019. [#319 at 6 ¶¶ 1-2]
Plaintiff stated that he would like to speak with his attorney prior to the DNA
collection and Defendant Palomino offered to call Plaintiff’s attorney. 	[#314 at 4 ¶ 19]
Plaintiff was handcuffed for transport to Defendant Chavez’s office, which did not contain
video surveillance. 	[Id. at 4 ¶ 20; #319 at 7 ¶ 17] 	Inmates are not ordinarily placed in
restraints and do not require correction officer escorts to visit the medical clinic for an
appointment. [#319 at 6-7 ¶ 8] Additionally, despite the fact that Defendants’ procedures
require that video cameras remain active when force is used, Defendants did not have
their handheld cameras on during these events. [Id. at 7 ¶ 18-19]
Plaintiff was never physically aggressive during the July 25 encounter, though he
was verbally non-compliant. [#314 at 5 ¶ 21; #319 at 7 ¶ 13] Once in Defendant Chavez’s
office, Defendant Palomino attempted to call Plaintiff’s attorney numerous times with no
success. [#314 at 5 ¶ 24] Defendant Palomino informed Plaintiff that he would continue
to attempt to reach Plaintiff’s attorney but, regardless, Plaintiff was required to submit to
the DNA collection. [Id. at 5 ¶ 25] When asked by Plaintiff, Defendant Palomino stated
that force could be used to collect Plaintiff’s DNA. 	[Id. at 5 ¶ 26] 	Eventually, Plaintiff
ended up lying on his stomach, though the parties dispute how this occurred, and the
buccal swab was conducted. [Id. at 5 ¶ 28]
Plaintiff had some medical concerns and received some medical treatment in the
years following this encounter. 	[#319 at 8-9 ¶ 25-27] 	Plaintiff received an MRI on his
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lower back in March 2021 [id. at 9-10 ¶ 28] though Defendants’ expert has concluded that
Plaintiff’s claim of suffering physical injuries related to the July 25 incident was not
supported by his medical records [#314 at 6 ¶ 35]. 	Additionally, since December 2019,
Plaintiff has been seeing a therapist to cope with mental health concerns. [#319 at 10 ¶
29] Sometime after the July 25 incident, Plaintiff stopped engaging in activities such as
lifting weights and playing basketball. [#319 at 10 ¶ 30]
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.” Stewart v. Am. Fam. Mut.
Ins. Co., S.I., 744 F. Supp. 3d 1198, 1200 (D. Colo. 2024) (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
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
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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. State Law Claims
Defendants argue that summary judgment is appropriate on all of Plaintiff’s state
law claims. 	[#309 at 11-15] 	Plaintiff has not provided evidence of negligence, sexual
assault, outrageous conduct, false arrest, deprivation of property, or an intentional tort in
response.2 [See generally #314] Indeed, in his response, Plaintiff did not even mention
2 Besides these six state law claims and the unlawful search and seizure and excessive
force claims discussed below, Plaintiff also brought: (1) a claim entitled “Denial of Due
Process” related to Plaintiff’s transfer from BCCF to the Colorado Territorial Correctional
Facility (“CTCF”) in alleged retaliation for Plaintiff’s actions in July 2019 [#104 at ¶¶ 101-
07] and (2) a claim entitled “Cruel and Unusual Punishment” that relates to deliberate
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these state law claims or address any of Defendants’ arguments with respect to the state
law claims. [See generally id.]
“A plaintiff’s failure to address her asserted claim in a response to a motion for
summary judgment is proper grounds to grant summary judgment in the defendant’s
favor.” Pittman v. Wakefield & Assocs., Inc., No. 16-cv-02695-RBJ-KMT, 2017 WL
5593287, at *5 (D. Colo. Nov. 21, 2017) (citing Hinsdale v. City of Liberal, 19 F. App’x
749, 768-69 (10th Cir. 2001); Hutton v. Woodall, 70 F.Supp.3d 1235, 1239 (D. Colo.
2014)); see also Todd v. USAA Gen. Indem. Co., 713 F.Supp.3d 1088, 1097 (D. Colo.
2024) (same); Shelter Gen. Ins. Co. v. Goodyear Tire & Rubbery Co., No. 20-cv-02160-
PAB-SKC, 2023 WL 2648014, at *5 (D. Colo. Mar. 27, 2023) (“When a party fails to
address the arguments that its opponent puts forth in a motion for summary judgment,
that party’s claim is usually deemed abandoned.”). 	Accordingly, the Court respectfully
RECOMMENDS that Defendants’ Motion for Summary Judgment be GRANTED as to
Plaintiff’s state law claims because Plaintiff has abandoned such claims.
B. Section 1983 Claims
1. 	Defendants Kennedy, Hunt, Pierce, and Smith
Defendants argue that summary judgment is appropriate as to Defendants
Kennedy, Hunt, Pierce, and Smith because the record establishes that none of these
indifference to Plaintiff’s medical care [id. at ¶¶ 108-18]. 	With respect to the deliberate
indifference claim, the parties against whom this claim was asserted have either been
dismissed from the case or were never served. With respect to the retaliation claim, it is
unclear who is alleged to have retaliated against Plaintiff as the Third Amended Complaint
does not name the party engaged in the retaliation. 	[Id. at 101-07] 	And the parties do
not address the due process claim in their briefing on the instant Motion. 	[##309, 314,
319] 	Thus, if the instant Recommendation is adopted, the parties shall be prepared to
discuss at the final pretrial conference whether a retaliation claim remains active in this
case and, if so, the parties against whom the claim is brought.
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individuals participated in the alleged conduct forming the basis of Plaintiff’s claims. [#309
at 6-7] 	Any person acting under color of state law who “subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Accordingly, a claim arising
under Section 1983 requires a showing of: “(1) deprivation of a federally protected right
by (2) an actor acting under color of state law.” 	VDARE Found. v. City of Colorado
Springs, 11 F.4th 1151, 1160 (10th Cir. 2021). 	“Personal participation is an essential
allegation in a § 1983 claim.” 	Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996)
(quoting Bennett v. Passic, 545 F.2d 1260, 1262-1263 (10th Cir. 1976)). And “supervisor
status by itself is insufficient to support liability.” Id. (citing Rizzo v. Goode, 423 U.S. 362,
376 (1976)).
Nevertheless, “[p]ersonal involvement is not limited solely to situations where a
defendant violates a plaintiff’s rights by physically placing hands on him.” 	Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). 	Courts have found that a defendant
“causes” another to be subjected to a deprivation under Section 1983 if “the defendant
set in motion a series of events that the defendant knew or reasonably should have known
would cause others to deprive the plaintiff of her constitutional rights.” Mink v. Knox, 613
F.3d 995, 1001 (10th Cir. 2010) (quoting Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.
1990)). “Thus, ‘[f]or liability under section 1983, direct participation is not necessary.’” Id.
(quoting Snell, 920 F.2d at 700) (emphasis added). 	“The plaintiff may demonstrate
causation by showing an affirmative link between the constitutional deprivation and the
officer’s exercise of control or direction.” 	Id., 613 F.3d at 1001 (citations omitted).
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Accordingly, in the context of a Fourth Amendment unlawful search claim, the “officer
need not [have] execute[d] [the] search personally to be liable.” Poolaw v. Marcantel, 565
F.3d 721, 732 (10th Cir. 2009) (citing Snell, 920 F.3d at 700-01). With these principles in
mind, the Court turns to each of the four Defendants arguing that they did not personally
participate in the alleged constitutional violations.3
First, 	the 	Court 	will 	address 	Defendant 	Kennedy. 	Defendants 	argue 	that
Defendant Kennedy was not involved in the July 25 incident because she did not
personally handcuff Plaintiff in his cell, move Plaintiff to the office in which his DNA was
collected, or participate in the physical DNA collection. 	[##309 at 6; 319 at 4] 	On the
other hand, Plaintiff argues that Defendant Kennedy committed intentional acts that set
in motion the deprivation of Plaintiff’s constitutional rights. [#314 at 11] Plaintiff testified
that Defendant Kennedy, prior to the collection of DNA while Plaintiff was still in his cell,
stated: “If you don’t want to give it to us, put his fucking ass on the ground. We’ll just
fucking take it with force.” [#314-2 at 10-11 (39:23-40:3)] At this point, Plaintiff testified
that Defendant Kennedy called for “bigger staff” despite Plaintiff not acting in a physically
3 Beyond these four specific Defendants, Defendants argue that “[a]ll any Defendant did
was facilitate the collection of the DNA sample by Ms. Freed,” that they did not actually
take the sample themselves, and so they cannot be liable under Section 1983. [#309 at
8] 	But, as previously discussed, “an officer need not execute a search personally to be
liable.” 	Poolaw, 565 F.3d at 732 (citing Snell, 920 F.3d at 700-01). 	“The plaintiff may
demonstrate 	causation 	by 	showing 	an 	affirmative 	link 	between 	the 	constitutional
deprivation and the officer’s exercise of control or direction.” 	Mink, 613 F.3d at 1001
(citations omitted). Plaintiff testified that more than one officer brought him to his stomach
and pinned his head and neck to the ground to obtain the DNA sample. [#309-1 at 11-12
(50:23-51:16), 15 (65:1-21)] Indeed, Defendants themselves admit that they “facilitated”
the collection of the sample. 	[#309 at 8] Therefore, the Court is unpersuaded by
Defendants’ argument that, because they did not personally carry out the DNA swab, they
cannot be liable under Section 1983. 	By facilitating the sample, there is an affirmative
link between Defendants’ actions and the collection of the sample.
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threatening manner. 	[Id. at 11 (40:1-3)] 	Indeed, in his deposition, Plaintiff described
Defendant Kennedy as being “vulgar” and “pressing” and testified that her actions “put
the . . . force thing in motion.” [Id. at 13-14 (44:22-45:3)]
Other courts have found that, when an officer overreacts and unnecessarily
escalates a situation, the officer may be found to have set in motion a series of events
culminating in an alleged use of excessive force. 	Harper v. Rose, No. 1:09-cv-153-TC,
2012 WL 1150463, at *6 (D. Utah Apr. 5, 2012). 	In Harper, for example, the court
concluded that the officer—who threatened deadly force, yelled and called for extra help
to control an individual who was being held at gunpoint after being pulled over for a minor
equipment violation—set into motion the series of events leading to the use of excessive
force. 	Id. 	The facts in this case are not identical to Harper. 	However, viewing the
evidence and drawing reasonable inferences in the light most favorable to Plaintiff, a jury
could find that Defendant Kennedy escalated the situation and set into motion the series
of events leading to the alleged constitutional violations. 	All parties agree that Plaintiff
was never physically aggressive during the July 25 incident. 	[#314 at 5 ¶ 21] 	Plaintiff
testified that he was on the floor with his back towards Defendant Kennedy holding his
hands behind his back when Defendant Kennedy began threatening to throw Plaintiff to
the ground to get the DNA sample by force. [#314-2 at 11 (40:4-14)] After this, Plaintiff
testified that Defendant Kennedy personally called for extra help from “bigger staff,” even
though Plaintiff was not acting in a threatening manner. [Id. at 11 (40:1-3)] As a reaction
to a verbal refusal to submit to a DNA test for the purpose of determining paternity rights,
a jury could find that Defendant Kennedy overreacted and unnecessarily escalated the
situation. And a jury could conclude that this overreaction led to both the unlawful taking
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of Plaintiff’s DNA (the Fourth Amendment claim) and the excessive force used to do so
(the Eighth Amendment claim). 	Accordingly, disputed facts related to Defendant
Kennedy’s activity create a genuine issue 	for 	trial. 	Thus, the 	Court 	respectfully
RECOMMENDS that summary judgment be DENIED as to the Section 1983 claims
against Defendant Kennedy to the extent Defendants seek summary judgment based
upon Defendant Kennedy’s personal participation.
Second, the Court will address Defendant Hunt. 	As to the Fourth Amendment
claim, it is undisputed that Defendant Hunt assisted Adams County personnel in
accessing BCCF for the purpose of obtaining the DNA sample. [#319 at 6 ¶ 4] Defendant
Hunt was the first official to receive the court Order and personally scheduled Plaintiff for
a DNA test sampling based on that Order. 	[Id.] 	Plaintiff testified that Defendant Hunt
threatened to use force if Plaintiff were to refuse to submit to the DNA test. [#314-2 at 10
(39:2-12)]
Viewing all facts in the light most favorable to Plaintiff, Plaintiff has provided
sufficient evidence to create a genuine dispute of material fact as to whether Defendant
Hunt set into motion a series of events that she knew or should have known would result
in the violation of Plaintiff’s Fourth Amendment rights. 	Defendant Hunt personally
scheduled Plaintiff’s DNA test based on the court Order. [#319 at 6 ¶ 4] Had Defendant
Hunt closely read the Order prior to scheduling, she would have known that it indicated
that the DNA test was to be completed two months prior at a different facility. Therefore,
Defendant Hunt, by scheduling the DNA test and providing Ms. Freed with access to
BCCF, caused Plaintiff to undergo a DNA test that he alleges was an unreasonable
search. Accordingly, the Court respectfully RECOMMENDS that summary judgment as
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to the Fourth Amendment claim against Defendant Hunt be DENIED to the extent
Defendants seek summary judgment on that claim based upon Defendant Hunt’s
personal participation.
As to the Eighth Amendment claim, the parties dispute the level of involvement
Defendant Hunt had in the July 25 incident. 	Plaintiff testified that Defendant Hunt “was
the first one to threaten [Plaintiff] with the use of force” on July 16, the first occasion in
which individuals attempted to collect Plaintiff’s DNA. 	[#314-2 at 10 (39:2-7)] 	Plaintiff
also testified that Defendant Hunt was present outside of Plaintiff’s cell before Plaintiff
was taken to Defendant Chavez’s office leading to the July 25 incident. [Id. at 10 (39:18-
19)] Plaintiff stated that he believed, but was not certain, that Defendant Hunt was also
present in Defendant Chavez’s office during the DNA collection. 	[Id. at 12 (41:15-16)]
Plaintiff thought that Defendant Hunt verbally communicated with other individuals
involved with the July 25 incident about taking the DNA sample with force.4 	[Id. at 13
(42:11-14)]
Other courts have held that an officer making a comment such as “[i]f [Plaintiff]
doesn’t 	cooperate, 	he’s 	going 	to 	get 	hurt” 	is 	not 	enough 	to 	constitute 	personal
participation in excessive force that is later carried out by other individuals. 	Hernandez
v. Larson, No. 21-cv-01538-PAB-MEH, 2023 WL 6127879, at *15 (D. Colo. Sept. 19,
2023). 	In Hernandez, the court reasoned that the plaintiff had not provided any other
evidence to suggest that the officer reasonably should have known that his comments
would result in the use of excessive force. Id. Because the plaintiff also had not provided
4 Plaintiff does not clarify when these alleged communications occurred.
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any evidence that the officer ordered others to use force against the plaintiff, the court
granted summary judgment in favor of the officer. Id.
The Court is persuaded that Defendant Hunt’s conduct in this case is analogous
to the officer in Hernandez and, indeed, even more tangentially related to the ultimate use
of force due to the time-lapse between Defendant Hunt’s comments and Defendants’ use
of force. Plaintiff has not provided any evidence that Defendant Hunt, when commenting
about the possible use of force on July 16, knew or reasonably should have known that
such comments would result in the use of excessive force against Plaintiff nine days later.
Additionally, Plaintiff does not provide any evidence that Defendant Hunt ordered or in
any manner participated in the taking of Plaintiff’s DNA during the July 25 incident.
Though Plaintiff alleges that Defendant Hunt was present during the July 25 incident and
possibly commented about taking the DNA sample with force, his testimony on this point
is vague at best. And Plaintiff has not provided any evidence that Defendant Hunt ordered
others to use force or take the sample. 	Nor has Plaintiff provided any evidence that
Defendant Hunt escalated the situation. Accordingly, Plaintiff has not provided evidence
that Defendant Hunt set in motion a series of events that she knew or reasonably should
have known would result in the deprivation of Plaintiff’s Eighth Amendment rights.
Therefore, the Court respectfully RECOMMENDS that summary judgment be GRANTED
as to the Eighth Amendment claim against Defendant Hunt.
Third, the Court will address Defendant Pierce. 	The parties dispute whether
Defendant Pierce was one of the individuals holding down Plaintiff during the DNA
collection. 	Defendants deny that any force was used against Plaintiff other than
restraining him by handcuffing him and “ordering” him to his knees and stomach for safety
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reasons. 	[#309-7 at 24 (103:11-17)] 	Defendants provide evidence suggesting that
Defendants Chavez and Holland merely “assisted [Plaintiff] to his knees and then on to
his belly.” 	[#309-6 at 50] 	BCCF’s Incident Statement regarding these allegations
identifies 	that 	Defendant 	Pierce 	was 	present 	in 	Plaintiff’s 	cell 	when 	Plaintiff 	was
handcuffed before being walked to the location in which his DNA was later taken. 	[Id.]
The Incident Statement also indicates that Defendant Pierce was present in Defendant
Chavez’s office when the DNA collection occurred, but provides no further detail about
his conduct. [Id.]
On the other hand, Plaintiff testified that at least some of the Defendants “got on
top of [him]” and “held [him].” [#309-1 at 11-12 (50:25-51:2)] He stated that “they didn’t
just throw [him] down. [Plaintiff] went with them. [He] went with their momentum.” [Id. at
15 (65:8-10)] 	Plaintiff further elaborated that at least some of the Defendants held his
neck on the ground “where it was hard and cold” and “pushed [his] head in there.” [Id. at
15 (65:15-20)]
Plaintiff testified that he “believe[d] Mr. Pierce [wa]s one of the ones that was
holding [Plaintiff] down in the office.” [#314-2 at 14 (45:12-13)] Plaintiff testified that he
was “almost certain” but not “a hundred percent sure” because he was on the floor,
handcuffed, with his head held down. [Id. at 14-15 (45:24-46:1)] Additionally, Defendant
Chavez testified that Defendant Pierce informed him that the DNA test was court ordered
when Defendant Chavez entered Plaintiff’s cell on July 25. [#314-4 at 16 (89:14-21)]
Viewing these allegations in the light most favorable to the Plaintiff, the Court finds
that there is a material dispute as to whether Defendant Pierce personally participated in
the conduct that allegedly deprived Plaintiff of his constitutional rights. Even if Defendant
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Pierce did not personally engage in bringing Plaintiff to his stomach, Plaintiff testified that
he believed Defendant Pierce held him down on the ground. Plaintiff’s testimony is based
on more than mere speculation—Plaintiff did not have to visualize Defendant Pierce to
experience other sensations which would lead him to believe Defendant Pierce was the
person on top of him.
Though Defendants deny that force was used by any Defendant other than the
force necessary for safety, it is a jury’s job to assess the credibility of witnesses. 	The
numerous disputed facts related to Defendant Pierce’s activity create a genuine issue for
trial. 	Thus, the Court respectfully RECOMMENDS that summary judgment be DENIED
as to the constitutional claims against Defendant Pierce to the extent Defendants seek
summary judgment based upon Defendant Pierce’s personal participation
Fourth and finally, the Court will address Defendant Smith. 	The parties do not
appear to dispute the role Defendant Smith played in the allegations forming the basis of
this action. Plaintiff testified that Defendant Smith was “there from the beginning” of the
July 25 incident when Plaintiff was asked to go to the medical area of BCCF for the DNA
test and refused. [#314-2 at 9 (38:12-15)] Plaintiff testified that Defendant Smith did not
touch him during the July 25 incident. [Id. at 9 (38:21-22)] Rather, it appears that Plaintiff
asked for an incident report following the July 25 incident, and Defendant Smith refused
to sign such a report. [Id. at 9 (38:10-17)]
These allegations do not amount to participation in the alleged deprivation of
Plaintiff’s constitutional rights. 	Plaintiff has not provided any evidence suggesting that
Defendant Smith set in motion a series of events that he knew or reasonably should have
known would result in the deprivation of Plaintiff’s Fourth or Eighth Amendment rights.
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Indeed, Plaintiff does not respond to Defendants’ argument that Defendant Smith is
entitled to summary judgment. 	[See #314 at 11-13] 	Accordingly, the Court respectfully
RECOMMENDS 	that 	summary 	judgment 	be 	GRANTED 	as 	to 	all 	claims 	against
Defendant Smith.
2. 	Fourth Amendment Claim
Defendants 	first 	argue 	that 	the 	Fourth 	Amendment’s 	search 	and 	seizure
requirements are not applicable in a prison setting. 	[#309 at 7] 	In addition, they argue
that a state court order authorizing the taking of a DNA sample is sufficient to satisfy the
Fourth Amendment and that any mistake Defendants may have made regarding the
validity of the court order in this case was at most negligence. 	[Id. at 7-8] 	The Court
addresses each argument.5
“[P]risons are not beyond the reach of the Constitution.” 	Hudson v. Palmer, 468
U.S. 517, 523 (1984). 	Indeed, prisoners are “accorded those rights not fundamentally
inconsistent with imprisonment itself or incompatible with the objectives of incarceration.”
Id. 	“However, while persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or loss of
many significant rights.” Id. at 524 (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)). “The
curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad
5 In their statement of facts, Defendants also assert that “Plaintiff did not resist the DNA
collection.” 	[#309 at 5 ¶ 30] 	But Plaintiff testified that he “didn’t want to give them [the
DNA].” [#314-2 at 22 (61:14)] In addition, Defendant Chavez testified that Plaintiff stated
something along the lines of providing the DNA was “against [his] will or under duress.”
[#314-4 at 14 (80:1-5)] Defendant Chavez’s notes regarding the July 25 incident provided
that Plaintiff “was refusing to provide a court ordered DNA.” 	[Id. at 16 (89:10-11)]
Therefore, viewing the evidence in the light most favorable to Plaintiff, Plaintiff did not
consent to providing his DNA sample.
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of institutional needs and objectives of prison facilities, chief among which is internal
security.” Id. (internal citations and quotations omitted).
Relying on Hudson, Defendants argue that “a search of the prison cell does not
implicate the Fourth Amendment.” [#309 at 7] In Hudson, the Supreme Court reasoned
that “it would be literally impossible to accomplish the prison objectives . . . if inmates
retained a right of privacy in their cells.” 468 U.S. at 527. “Virtually the only place inmates
can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to
these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted
out and sanitary surroundings are to be maintained.” Id.
But whether an inmate is entitled to privacy in their cell is a very different question
from the one the Court must address in this case. 	In this case, the search in question
had nothing to do with locating drugs or contraband, maintaining prison safety, or
maintaining prison sanitation. And using a buccal swab inside a person’s cheek to obtain
a DNA sample is a search under the Fourth Amendment, even in the prison setting.6
Maryland v. King, 569 U.S. 435, 446 (2013); Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th
Cir. 1998) (noting that “while obtaining DNA samples implicates Fourth Amendment
concerns,” in some cases, such searches can still be reasonable in the prison context
6 Defendants cite a Ninth Circuit case for the purported proposition that “blood samples
taken 	from 	inmates 	for 	DNA 	identification 	purposes 	do 	not 	implicate 	the 	Fourth
Amendment.” [#309 at 7 (emphasis added) (citing Hamilton v. Brown, 630 F.3d 889, 894
(9th Cir. 2011))]. 	However, the court in Hamilton explicitly holds the contrary: “The
compulsory extraction of blood for DNA profiling unquestionably implicates the right to
personal security embodied in the Fourth Amendment.” 	Hamilton, 630 F.3d at 894
(quoting U.S. v. Kincade, 379 F.3d 813, 821 n.15 (9th Cir. 2004)) (emphasis added).
Rather, the Ninth Circuit found that extractions of DNA in some circumstances do not
violate the Fourth Amendment because they are reasonable when considering compelling
government interests and lessened expectations of privacy in the prison setting. 	Id. at
896.
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considering the “inmate’s diminished privacy rights, the minimal intrusion involved, and
the legitimate government interest in using DNA to investigate and prosecute crimes”
(citing Schlicher v. (NFN) Peters, I & II, 103 F.3d 940, 942-43 (10th Cir. 1996); Boling v.
Romer, 101 F.3d 1336, 1340 (10th Cir. 1996))). 	Accordingly, the Court is unpersuaded
by Defendants’ argument that the Fourth Amendment’s search and seizure requirements
are inapplicable in a prison setting.
Though the Fourth Amendment’s search and seizure requirements are not
eliminated in the prison setting, the “Fourth Amendment prohibits only unreasonable
searches.” Bell, 441 U.S. at 558 (citing Carroll v. United States, 267 U.S. 132, 147 (1919))
(emphasis added). 	“The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application.” 	Id. 	at 559. 	“In each case it
requires a balancing of the need for the particular search against the invasion of personal
rights that the search entails.” 	Id. 	“Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.” Id.
Therefore, balancing both the government’s interest and an inmates’ interests, a
DNA swab must only be reasonable to comply with the Fourth Amendment. 	Banks v.
United States, 490 F.3d 1178, 1184 (10th Cir. 2007). 	The Tenth Circuit has found that
“while obtaining DNA samples implicates Fourth Amendment concerns,” in some cases,
such searches can still be reasonable in the prison context considering the “inmate’s
diminished privacy rights, the minimal intrusion involved, and the legitimate government
interest in using DNA to investigate and prosecute crimes.” 	Shaffer, 148 F.3d at 1181
(10th Cir. 1998) (citing Schlicher, 103 F.3d at 942-43; Boling, 101 F.3d at 1340). And in
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Banks, the Tenth Circuit found that a statute requiring the taking of DNA samples from
parolees and individuals on supervised release for the purpose of putting such DNA into
a comprehensive database was constitutional. Id. at 1193. The court found that plaintiffs
had a lower privacy interest in their identification because they had previously been
convicted of crimes. Id. at 1188, 1193. In addition, the court found that “blood and saliva
tests impose minimal intrusions.” 	Id. at 1189 (citing Skinner v. Ry. Lab. Execs.’ Ass’n,
489 U.S. 620, 625 (1989)). 	Thus, the government’s interest in collecting and using the
DNA to help solve crimes, identify offenders, and combat recidivism was found to
outweigh the plaintiffs’ privacy interests. Id. at 1193. Similarly, in Boling, the Tenth Circuit
upheld as constitutional a statute requiring, as a condition of parole, that certain sex
offenders submit to blood and saliva testing. 	101 F.3d at 1340. 	The court found that
obtaining and analyzing the DNA was reasonable in light of the inmates’ diminished
privacy rights, the minimal intrusion of saliva and blood tests, and “the legitimate
government interest in the investigation and prosecution of unsolved and future criminal
acts by the use of DNA in a manner not significantly different from the use of fingerprints.”
Id. at 1340.
These holdings can be contrasted with the Ninth Circuit’s conclusion in Friedman
v. Boucher, 580 F.3d 847 (9th Cir. 2009). In Friedman, DNA was forcibly extracted from
a pretrial detainee with no warrant, no court order, no individualized suspicion, and no
offense for which a DNA sample was required or justified. 	Id. at 851-52. 	The court
reasoned that “neither the Supreme Court nor this Court has ever ruled that law
enforcement officers may conduct suspicionless searches on pretrial detainees for
reasons other than prison security.” Id. at 856-57. And though the purpose of the forced
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DNA test in Friedman was to help solve cold cases, the court concluded that this purpose
did “not cleanse an otherwise unconstitutional search.” Id. at 851, 858.
Here, unlike Friedman, but consistent with Banks and Boling, by the time
Defendants took the buccal swab, Plaintiff was a convicted inmate and thus had a lower
privacy interest. 	On the other hand, unlike Banks and Boling, Defendants have not
asserted any penological interest to support the forcible taking of the buccal swab, nor is
there any obvious penological interest. In fact, Defendants assert no interest whatsoever
in Plaintiff’s DNA sample, which is an even less persuasive justification for the search
than was present in Friedman. The test had nothing to do with solving crimes, identifying
an offender, or combatting recidivism. Rather, it was Plaintiff, through counsel, who had
requested the DNA test related to a state court proceeding in which Plaintiff was not
charged with or suspected of any criminal activity. [#314 at 3 ¶¶ 2-3]
To support the reasonableness of the seizure, Defendants argue that “a state court
order 	authorizing 	the 	taking 	of 	a 	DNA 	sample 	is 	sufficient 	to 	satisfy 	the 	Fourth
Amendment.” [#309 at 7] This argument requires the Court to analyze the validity of the
court Order at the time of the July 25 incident, an issue disputed by the parties.7 	The
7 Defendants cite Bill v. Brewer, 799 F.3d 1295, 1300-03 (9th Cir. 2015), for the
proposition that a state court order authorizing the taking of a DNA sample is sufficient to
satisfy the Fourth Amendment. 	[#309 at 7] That case involved a crime scene in which
investigators were attempting to eliminate various police officers who had entered the
scene as contributors of unknown DNA. Id. at 1298. When five officers refused to provide
their sample, a court issued orders to obtain buccal swabs from the officers. Id. at 1299.
The Ninth Circuit found that the orders authorizing the collection of the DNA samples
satisfied the warrant requirement of the Fourth Amendment because the superior court
found probable cause to believe that a homicide had been committed and the DNA
samples were to be used in a manner that would contribute to the identification of the
individual who committed the homicide. 	Id. at 1301-02. 	The Court does not find the
reasoning in this case to be applicable to the present circumstances because: (1) the
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language of the Order states as follows: “The Court hereby Orders genetic testing be
completed for [Plaintiff] at his current facility, Jefferson County Detention Center, before
May 20, 2019, for the purpose of determining whether [Plaintiff] is the biological father of
the subject minor child.” 	[#309-2] 	Two non-Defendants to this case provided affidavits
attesting to their belief that the May 20th date in the Order was aspirational, not a deadline
that terminated the Order. [##309-3 at 3; 309-4 at 2] Nevertheless, the language of the
Order on its face does not appear aspirational. The Order provides a particular location
and date upon which the DNA testing was to occur. 	Instead, the test occurred months
after the deadline and at a different location. Accordingly, the Court finds that the Order
was invalid at the time of the July 25 incident.8
Given this conclusion, and considering the disputed facts in the light most
favorable to Plaintiff, the Court cannot conclude that Defendants’ actions during the July
25 incident were necessarily reasonable as a matter of law, thereby entitling them to
summary judgment on the Fourth Amendment claim. 	It is undisputed that Defendants
failed to comply with an A.R. concerning DNA tests. 	[#319 at 6-7 ¶ 12] 	The regulation
states that when a CDOC facility “is notified of a request for a [DNA] collection, the request
will immediately be directed to the facility OIG investigator if necessary. . . . The Office of
Legal Services will be notified to ensure the validity of the court order.” 	[#314-6 at 5
(emphasis added)] 	Thus, the CDOC had in place a system to assure that the order
allowing Defendants to take Plaintiff’s DNA was valid, and Defendants ignored this
court Order here, for the reasons explained below, was no longer valid, and (2) the DNA
collection in this case had nothing to do with determining the identity of an offender.
8 Defendants provide no legal support for the argument that because one thinks an order
is valid or because it is one’s practice to treat an order as valid, the order is in fact valid
despite its plain language indicating otherwise.
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protocol. Indeed, none of the Defendants was aware of or had read the DNA regulation.
[Id. at 6-7 ¶ 6] And though it is true that failure to follow prison policy is not a violation of
the constitution in itself, it is relevant to the reasonableness of the search in this context.
Simply put, had Defendants followed the guidance of this regulation, the search likely
would not have occurred because the Office of Legal Services would have realized that
the court Order was no longer valid. Indeed, had Defendants bothered to read the single
paragraph Order they would have at least been on notice that the Order had expired.9
There are numerous disputed facts related to this Fourth Amendment claim. Given
that Defendants have not provided any government interest in Plaintiff’s DNA sample,
have not pointed to any legal authority to support the idea that the court Order remained
valid two months after its plain language indicated it expired, and Plaintiff has pointed to
facts which a jury could use to determine that the search was unreasonable, the Court
finds that there is a genuine dispute of material fact as to whether Plaintiff’s Fourth
9 Defendants also argue that Plaintiff has provided evidence of nothing more than mere
negligence, which cannot support a Fourth Amendment claim. [#309 at 8] And it is true
that “the Fourth Amendment allows for some mistakes on the part of government officials,
giving them ‘fair leeway for enforcing the law in the community’s protection.’” 	Heien v.
North Carolina, 574 U.S. 54, 60-61 (2014) (quoting Brinegar v. United States, 338 U.S.
160, 176 (1949)). Thus, the Supreme Court has “recognized that searches and seizures
based on mistakes of fact can be reasonable.” 	Id. at 61. 	For example, “if officers with
probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s
description, neither the seizure nor an accompanying search of the arrestee would be
unlawful.” 	Id. (citing Hill v. California, 401 U.S. 797, 802-05 (1971)). 	Here, however,
Defendants actions go far beyond a reasonable mistake. 	Defendants were unaware of
their own regulations that protect against these mistakes and did not even bother to read
the single paragraph Order that would have clearly put them on notice that the Order was
no longer valid.
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Amendment rights were violated. 	Accordingly, the Court respectfully RECOMMENDS
that summary judgment be DENIED as to Plaintiff’s Fourth Amendment claims.10
3. 	Eighth Amendment Claim
Defendants argue that the facts of this case do not rise to the necessary threshold
to establish subjective intent by any of the Defendants to act maliciously or sadistically
towards Plaintiff, so summary judgment should be granted in Defendants’ favor as to the
Eighth Amendment claim. [#309 at 8-11] The Eighth Amendment manifests “an intention
to limit the power of those entrusted with the criminal-law function of government.”
Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham v. Wright, 430 U.S. 651,
664 (1977)). “The Cruel and Unusual Punishments Clause ‘was designed to protect those
convicted of crimes.’” 	Id. 	(quoting Ingraham, 430 U.S. at 664). 	Under the Eighth
Amendment, “[a]n excessive force claim has two elements: (1) an objective element
requiring that the alleged wrongdoing be harmful enough to establish a constitutional
violation; and (2) a subjective element requiring the plaintiff to show that the officials acted
10 The Court recognizes that this holding may, at first blush, appear inconsistent with this
District’s decision to grant summary judgment in favor of Ms. Freed. [See ##149, 154] It
is not. 	In analyzing Ms. Freed’s summary judgment motion, Magistrate Judge Hegarty
did not analyze the constitutionality of Ms. Freed’s actions. 	[#149 at 11-14] 	Rather,
because Ms. Freed asserted qualified immunity, Judge Hegarty began with the second
prong of the qualified immunity test and only addressed whether the law was clearly
established that Ms. Freed’s actions violated Plaintiff’s constitutional rights. [Id.] Plaintiff,
acting pro se, did not bring to the Court’s attention any cases that “squarely governed”
the fact pattern of this case and indicated that Ms. Freed violated clearly established law.
[Id.] 	Judge Hegarty also did not find any such cases. 	[Id.] 	Thus, Judge Hegarty
concluded that Ms. Freed was entitled to qualified immunity on Plaintiff’s claim. 	[Id.]
Based upon the lack of objections to Judge Hegarty’s Recommendation, Chief Judge
Brimmer adopted that Recommendation. [#154] Thus, neither Judge Hegarty nor Chief
Judge Brimmer ever evaluated the constitutionality of Ms. Freed’s actions. 	Here,
Defendants do not assert qualified immunity. [#309] Thus, Plaintiff need not demonstrate
that the law was clearly established and the Court must evaluate the constitutionality of
the buccal swab.
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with a sufficiently culpable state of mind.” 	Ezell v. Hininger, No. 23-7007, 2024 WL
1109057, at *2 (10th Cir. Mar. 14, 2024) (citing Redmond v. Crowther, 882 F.3d 927, 936
(10th Cir. 2018)).
“[A]llegations of significant injury are not required for the objective component of
an excessive force claim.” 	Gilmore v. Neph, No. 23-3134, 2024 WL 48989, at *2 (10th
Cir. Jan. 4, 2024) (citing Hudson v. McMillian, 503 U.S. 1, 5, 9 (1992)). 	“The objective
component of an excessive force claim is contextual and responsive to contemporary
standards of decency.” 	Whitington v. Sokol, No. 06-cv-01245-P, 2009 WL 2588762, at
*8 	(D. 	Colo. Aug. 	18, 	2009) 	(quoting 	McMillian, 	503 	U.S. 	at 6-7). 	“The Eighth
Amendment’s prohibition of cruel and unusual punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind.” Id. at *9 (quoting McMillian, 503
U.S. at 9-10) (internal quotations omitted). 	Here, Defendants do not argue that Plaintiff
has failed to provide sufficient evidence of objective harm, so the Court does not further
address the objective component of the excessive force standard.
As to the subjective component, the “unnecessary and wanton infliction of pain . .
. constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”
McMillian, 503 U.S. at 5 (quoting Whitley, 475 U.S. at 319). “[T]he question whether the
measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on
‘whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.’” 	Id. at 6 (quoting
Whitley, 475 U.S. at 320-321). 	“Under the Whitley approach, the extent of injury suffered
by an inmate is one factor that may suggest ‘whether the use of force could plausibly
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have 	been 	thought 	necessary’ 	in 	a 	particular 	situation, 	‘or 	instead 	evinced 	such
wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur.’” 	Id. at 7 (quoting Whitley, 475 U.S. at 321). 	“In determining
whether the use of force was wanton and unnecessary, it may also be proper to evaluate
the need for application of force, the relationship between that need and the amount of
force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts
made to temper the severity of a forceful response.’” 	Id. (quoting Whitley, 475 U.S. at
321). “Where no legitimate penological purpose can be inferred from a prison employee’s
alleged conduct . . . the conduct itself constitutes sufficient evidence that the force was
used maliciously and sadistically for the very purpose of causing harm.” 	Giron v. Corr.
Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999) (quotations and citations omitted).
Defendants argue that any force they used against Plaintiff was “to ensure the
safety of Plaintiff and the others around him, including Ms. Freed, while also trying to get
Plaintiff to comply with the DNA collection.” [#309 at 10] However, the evidence provided
by both parties create a genuine dispute of material fact on this matter. It is undisputed
that Plaintiff was never physically aggressive during the July 25 encounter. [#314 at 5 ¶
21] 	Indeed, Defendants’ own statement of facts states that “Plaintiff did not resist the
DNA collection” and “[a]s Plaintiff ultimately complied with the DNA collection, the officers
did not have to use force to collect the DNA sample.” [#309 at 5 ¶¶ 30-31] Yet Plaintiff
testified that, despite never being physically aggressive, he was handcuffed, pushed to
the floor, and held by his neck and head to the floor by Defendants. 	[#314-2 at 13-14
(44:23-45:20), 17 (49:13-25)] Plaintiff further testified that Defendant Kennedy was being
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vulgar and yelled to “Fucking put [Plaintiff] down” [id. at 13 (44:23-25)], suggesting actions
taken in anger as opposed to the application of reasonable and necessary force.
Thus, 	Plaintiff 	has 	provided 	evidence 	that 	the 	amount 	of 	force 	used 	was
disproportionate to any need for Plaintiff’s DNA, that Plaintiff was compliant and
Defendants did not perceive a reasonable threat, and yet Defendants made no efforts to
temper the severity of their use of force, instead escalating the situation. 	Viewing the
facts in the light most favorable to Plaintiff, there is a genuine dispute as to whether
Defendants had a legitimate penological purpose for using the level of force that they
used on Plaintiff. 	Therefore, the Court respectfully RECOMMENDS that summary
judgment be DENIED as to Plaintiff’s Eighth Amendment claims.
V. 	CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion
[#309] be GRANTED as to all of Plaintiff’s state law claims and as to all claims against
Defendant Smith. The Court further respectfully RECOMMENDS that the Motion [#309]
be GRANTED as to the Eighth Amendment claim against Defendant Hunt. 	The Court
respectfully RECOMMENDS that the Motion [#309] be DENIED as to all other claims
against all other Defendants.11
11 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
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DATED: November 19, 2025 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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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