Sorensen v. Roark et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:22-cv-02322-SKC-TPO
TERRY SORENSEN,
Plaintiff,
v.
JERRY ROARK, et al.,
Defendants.
ORDER RE: MOTION FOR SUMMARY JUDGMENT (DKT. 42)
This case arises from two separate assaults on Plaintiff Terry Sorenson while
he was in the custody of the Colorado Department of Corrections (CDOC) and housed
at Bent County Correctional Facility (BCCF) and Arkansas Valley Correctional
Facility (AVCF). Dkt. 18. Plaintiff contends Defendants Jerry Roark, Donny Britton,
Donald Trujillo (BCCF Defendants), Maureen Sheridan, Shane Corey, and Omar
Mendoza (CDOC Defendants), failed to protect him from harm in violation of the
Eighth Amendment.1 Id. The Court has jurisdiction pursuant to 28 U.S.C. § 1331
because this matter arises under the United States Constitution.
1 The Court notes Plaintiff never filed a return or waiver of service for Defendant
Robert Shepard. Mr. Shepard has neither appeared nor participated in this action.
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Defendants have filed two Motions for Summary Judgment which are fully
briefed. Dkts. 44 (BCCF Defendants), 47 (CDOC Defendants).2 The Court has
carefully considered the Motions and related briefing, the exhibit attachments, the
entire case file, and the applicable law and legal authorities. No hearing is necessary.
Because, when considering the undisputed material facts, no reasonable jury could
conclude Defendants violated Plaintiff’s Eighth Amendment rights, their Motions are
GRANTED.
SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to assess whether a trial is necessary.
White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is
appropriate “when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant
bears the “responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, then the nonmoving party must identify material
facts showing there is a genuine dispute for trial. Id. at 324. A fact is “material” if it
has the potential to affect the outcome of a dispute under applicable law. Ulissey v.
Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is “genuine” if a rational
2 The BCCF Defendants and Defendant Sheridan are only implicated in Claim One
and Defendants Corey and Mendoza are only implicated in Claim Two. Because the
Court’s reasoning is applicable to all Defendants, it addresses the Motions together.
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trier of fact could find for the nonmoving party on the evidence presented. Adams v.
Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). In performing
this analysis, the factual record and any reasonable inferences from it are construed
in the light most favorable to the nonmoving party. Id.
Even when a party fails to appropriately respond to the request for summary
judgment and its purportedly undisputed facts, the Court is nevertheless obligated
to ensure the movant has satisfied the standard under Rule 56. As the Tenth Circuit
explained in Perez v. El Tequila, LLC, 847 F.3d 1247, 1255 (10th Cir. 2017), “in
granting summary judgment based upon a failure to respond, a district court must
still determine that summary judgment is appropriate.” See also Fed. R. Civ. P.
56(e)(3) advisory committee’s notes to 2010 amendment.
UNDISPUTED MATERIAL FACTS
Under Fed. R. Civ. P. 56(c), when parties assert that a fact is genuinely
disputed, they must support the assertion with citations to specific parts of the record.
When they fail to, the Court may consider the fact undisputed for purposes of deciding
the motion.3 Fed. R. Civ. P. 56(e)(2). Based on the Court’s assessment of the Parties’
3 In his attempt to create disputed issues of material fact, Plaintiff frequently
responds to Defendants’ proffered facts with tangential matters and evidence. For
example, CDOC states that when Defendant Mendoza arrived at Plaintiff’s cell, he
observed Plaintiff speaking with Ramos. Plaintiff contends this is disputed but
supports it with the unrelated evidence that he earlier tried to get Mendoza’s
attention to a conflict between Plaintiff, Ramos, and Hollowman. Dkt. 61, ¶64. This
does nothing to contradict CDOC’s fact. Where Plaintiff has challenged Defendants’
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Statements of Undisputed Material Facts and Response/Additional Facts (Dkts. 57,
61), the Court finds the following material facts to be undisputed:
Plaintiff was transferred from Buena Vista Correctional Facility to BCCF in
January 2020. See BCCF Statement of Undisputed Facts (hereinafter “BCSUF”), Dkt.
57, ¶2. On March 22, 2020, BCCF officials searched Plaintiff’s cell and seized several
items of contraband including homemade alcohol and tattooing equipment. Id. at ¶¶4,
5. According to the allegations in the Amended Complaint, Plaintiff informed prison
officials that his cell mate, David Graham, was being extorted by members of the
Bloods gang to make alcohol. Dkt. 18, ¶23.4 Plaintiff further alleges that after he
reported this to prison officials, members of the Bloods physically assaulted him. Id.
at ¶29.
Plaintiff was sent to the infirmary at Colorado Territorial Correctional Facility
for treatment of his injuries. See CDOC Statement of Undisputed Facts (hereinafter
“COSUF”), ¶11. When he returned to BCCF, Plaintiff was placed in a different pod
where there were fewer known members of the Bloods. Id. at ¶¶30-31.
In 	September 	2020, 	another 	BCCF 	inmate, 	Matthew 	Graves, 	assaulted
Plaintiff (“Graves assault”). Dkt. 18, ¶43. According to Plaintiff, following the assault,
facts with reference to unrelated or inconsequential evidence, the Court finds
Defendants’ facts to be undisputed.
4 The Court sparingly incorporates allegations from the Amended Complaint to
provide context for the undisputed facts. Those will be clearly designated, and the
Court’s use of those allegations is not a finding that they are undisputed.
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he saw Graves visit a cell affiliated with members of the Bloods. COSUF, ¶41. Prior
to this incident, however, Mr. Graves and Plaintiff never had a conflict, and Mr.
Graves was not known to be violent toward other inmates. Id. at ¶¶32-33. Nor had
Graves been identified as having any suspected or confirmed involvement with the
Bloods or other security threat groups. Id. at ¶38.
Defendant Corey, a criminal investigator with the Office of the Inspector
General, was assigned as the lead investigator into the Graves assault. Id. at ¶39.
Although Plaintiff told Defendant Corey his belief that the Bloods encouraged Graves
to assault him, Corey never found anything to verify this suspicion. Id.
Thereafter, Plaintiff was transferred to AVCF and placed in a protective
custody pod. Id. at ¶¶42-45. While there, Plaintiff again spoke to Defendant Corey,
this time about people in protective custody being “bullies” and trying to bring drugs
into the facility. See Plaintiff’s Deposition Testimony, Dkt. 47-1, pp.276-77. Plaintiff
also told Corey he needed to move pods but admits he cannot remember why he
wanted to be moved. Id. at p.278. And Defendant Corey testified he could not recall
ever talking to Plaintiff about ongoing issues with members of the Bloods or the 211
gang. COSUF, ¶51.
In September 2021, Plaintiff was assaulted again, this time by Tommy
Hollowman (“Hollowman assault”). Id. at ¶56. On the date of the assault, Plaintiff
was in a cell with Deja Woolbright, Hollowman, and Yogi Ramos, when Hollowman
told Ramos to show his genitals to Plaintiff. Id.; see also Dkt. 47-1, p.282. Plaintiff
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objected to the behavior and left Woolbright’s cell. COSUF, ¶57. Hollowman, who was
drunk at the time, was upset at Plaintiff’s rejection of their conduct and also believed
Plaintiff insulted him. Id. at ¶58. Hollowman “chest bumped” Plaintiff but did not
follow him back to his cell. Id. at ¶59.
Ramos, however, did follow Plaintiff back to his cell and once there, began to
assault him. Id. at ¶¶60-61. When Plaintiff began to scream, Defendant Mendoza, a
sergeant at AVCF, and another officer were tasked with investigating the situation.
Id. at ¶63. When the officers arrived, they saw Plaintiff talking with Ramos. Id. at
¶64. Mendoza checked both men for injuries and finding none, sent Ramos back to
his cell. Id. at ¶¶65, 67.
After Mendoza 	left, Plaintiff 	went 	to another inmate’s 	cell. Id. 	at 	¶71.
Hollowman later entered the cell and without any warning, punched Plaintiff in the
jaw. Id. at ¶72. Prior to this incident, Plaintiff had not identified Hollowman as a
custody issue (Id. at ¶55), and it was Plaintiff’s belief that Hollowman hit him because
Plaintiff fought with Ramos. Id. at ¶73.
This case followed. Dkt. 1. Plaintiff’s Eighth Amendment claims are based on
his contention that Defendants failed to protect him from Matthew Graves in
September 2020 and Tommy Hollowman in September 2021. Dkt. 18.
ANALYSIS AND FINDINGS
“The Eighth Amendment’s prohibition of cruel and unusual punishment
imposes a duty on prison officials to provide humane conditions of confinement,
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including adequate food, clothing, shelter, sanitation, medical care, and reasonable
safety from bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)
(citation 	omitted). 	Prison 	officials 	violate 	the 	Eighth 	Amendment 	“only 	if 	the
deprivation to which the prisoner has been subjected is ‘objectively sufficiently
serious’ and only if the prison official has a ‘sufficiently culpable state of mind.’”
Grissom v. Roberts, 902 F.3d 1162, 1174 (10th Cir. 2018) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)).
The duties under the Eighth Amendment include a duty “to protect prisoners
from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833. “[T]o
establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff
‘must show that he is incarcerated under conditions posing a substantial risk of
serious harm,’ the objective component, and that the prison official was deliberately
indifferent to his safety, the subjective component.” Benefield v. McDowall, 241 F.3d
1267 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834)). However, “[b]eing subjected
to the mere possibility of assault from another inmate does not satisfy the objective
component of an Eighth Amendment violation.” Williams v. Daniels, No. 14-cv-00705-
CBS, 2014 WL 5152359, at *3 (D. Colo. Oct. 14, 2014).
In his Responses (Dkts. 53, 55), Plaintiff spends considerable time citing
evidence and making arguments that he faced a serious threat of violence from
members of the Bloods and 211. And he contends all Defendants were aware of these
threats of physical harm. But even accepting as true that Defendants knew Plaintiff
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faced a threat of harm from these gangs, it alone does not establish the objective
prong of the Eighth Amendment analysis. Because Plaintiff seeks to hold Defendants
liable for the Graves and Hollowman assaults, the central question is whether
Defendants disregarded a substantial risk of serious harm to Plaintiff posed by Mr.
Graves or Mr. Hollowman. The answer is no.
A. 	Claim One: Graves Assault
With respect to the Graves assault, Plaintiff has failed to satisfy the objective
prong of a failure to protect claim because there was no warning that Mr. Graves
posed any threat to Plaintiff. Indeed, Mr. Graves’ actions were unexpected even by
Plaintiff.
Plaintiff admits that prior to the assault he was not afraid nor had any safety
concerns regarding Mr. Graves, and Plaintiff never identified Mr. Graves as a
potential custody issue. BCSUF, ¶33-35. To be sure, Plaintiff acknowledges he and
Mr. Graves had a problem-free and even amiable relationship. COSUF, ¶33. It is also
undisputed that as of the date of the assault, Mr. Graves had never been identified
as being affiliated with any security threat groups, including the Bloods. Id. at ¶38.
Despite Plaintiff’s suspicions after the fact that the Bloods had encouraged Mr.
Graves to assault Plaintiff, he has not presented any competent evidence to support
this. And Defendant Corey was never able to verify Plaintiff’s suspicions. Id. at ¶39.
Indeed, according to Mr. Graves, he assaulted Plaintiff because of a change in Mr.
Graves’ medications and because he was using illicit drugs at the time. Id. at ¶¶36-
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37. In fact, prior to the assault, Plaintiff observed Mr. Graves to be under the
influence and acting outside of his usual behaviors. Id. at ¶35.
That Mr. Graves may have visited a cell associated with the Bloods after the
assault is of no moment. To protect Plaintiff, Defendants must be aware of the threat
prior to the assault. See, e.g., Grimsley v. MacKay, 93 F.3d 676, 681 (10th Cir. 1996)
(observing that inmate may demonstrate the existence of a substantial risk of serious
harm “where prison officials disregard repeated warnings of danger to a particular
prisoner and continually refuse to make the situation safer”). To conclude otherwise
would require Defendants to protect Plaintiff from a theoretical threat of harm, which
is not required by the Eighth Amendment. Williams, 2014 WL 5152359, at *3; see
also Harris v. Matthews, 417 F. App’x 758, 762 (10th Cir. 2011) (“[A]n idle threat of
impending physical harm that is not carried out will not suffice to state an Eighth
Amendment claim.”).
Because there is no evidence from which a jury could conclude Mr. Graves
posed a substantial risk of harm to Plaintiff, Defendants are entitled to summary
judgment on this claim.
B. 	Claim Two: Hollowman Assault
Regarding the Hollowman assault, Plaintiff again relies heavily on evidence
that he faced a general threat from members of 211 as well as evidence that those
members of 211 were at AVCF. Dkt. 55, p.6. Plaintiff also asserts that members of
211 were in his pod. Id. 	The missing connection, however, is any evidence that the
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members of 211 who posed a threat to Plaintiff were the same members in his
protective custody pod. And more to the point, there is no evidence that Mr.
Hollowman was one of those threatening members.5 Similar to Mr. Graves and the
Bloods, a generalized threat to Plaintiff from 211 is insufficient to demonstrate Mr.
Hollowman specifically posed a substantial risk of serious harm to Plaintiff.
As was the case with Mr. Graves, prior to the assault, Plaintiff had not
identified Mr. Hollowman as a custody issue. COSUF, ¶55. Indeed, because Plaintiff
and Hollowman lived in the same protective custody pod at AVCF, they had been pre-
screened to ensure there were no custody issues with the other offenders in the pod.
Id. at ¶10. Further, on the day of the assault, it is undisputed that Plaintiff was
voluntarily spending time in Deja Woolbright’s cell with Hollowman and Ramos, and
that Hollowman assaulted Plaintiff without any warning. Id. at ¶¶56-57, 72; see also
Dkt. 47-1, p. 282. And perhaps most importantly, Plaintiff believed Hollowman
assaulted him because Plaintiff fought with Ramos earlier that day. COSUF, ¶73.
Thus, there is no evidence that Hollowman’s presence in Plaintiff’s pod posed a
substantial risk of serious harm to Plaintiff.
Turning to Plaintiff’s claim against Defendant Mendoza, even if the Court
accepts arguendo that—based on his earlier confrontation with Plaintiff—Hollowman
posed a serious threat on the day of the assault, there is nevertheless no evidence to
5 To be sure, Plaintiff’s willingness to spend time in proximity with Mr. Hollowman
would suggest the opposite.
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satisfy the subjective prong of the inquiry. Defendant Mendoza testified in his
deposition 	that 	he 	never 	observed 	a 	confrontation 	between 	Plaintiff 	and 	Mr.
Hollowman (Dkt. 47-4, p.23), and Plaintiff fails to establish a genuine issue of
material fact concerning Mendoza’s knowledge or notice. Although Plaintiff testified
that—after Mr. Hollowman “chest bumped” him—he started yelling to alert Mendoza
to the dispute, this alone is insufficient evidentiary support to establish Mendoza
heard him or was aware of any conflict between Hollowman and Plaintiff. And when
Mendoza was later tasked with investigating the dispute between Plaintiff and
Ramos (COSUF, ¶¶63-64), it is undisputed that neither man told Mendoza that
Ramos assaulted Plaintiff, nor did they mention anything about Hollowman. Id. at
¶66. Thus, there is no question of material fact as to whether Mendoza was
deliberately indifferent to any risk of harm from Hollowman.
Defendants are entitled to judgment in their favor on this claim.
* 	* 	*
Based on the undisputed material facts, no reasonable jury could conclude that
the Graves or Hollowman assaults were related to the purported threats Plaintiff
faced from the Bloods or 211 gangs. Without evidence of a substantial risk of harm
posed by Mr. Graves or Mr. Hollowman to Plaintiff, or evidence of any notice that
Plaintiff was in danger from either or both men, Defendants cannot have been
deliberately indifferent to his safety as a matter of law. Lane v. Klingler, No. 01–6144,
25 F. App’x. 781, 783 (10th Cir. Dec. 12, 2001) (affirming dismissal of failure to protect
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claim where inmate did not allege he knew his assailant before the attack, he had
previously been threatened by him, or that the defendant prison officials knew there
was a substantial risk of serious harm to the inmate).
Consequently, and for the reasons shared above, IT IS ORDERED:
1. 	Defendants’ 	Motions 	for 	Summary 	Judgment 	(Dkts. 	44, 	47) 	are
GRANTED and the claims against them are dismissed;
2. 	Plaintiff’s claims against Defendant Robert Shepard are DISMISSED
pursuant to Fed. R. Civ. P. 4(m) for failure to serve; and
3. 	The Clerk of Court shall enter judgment in favor of Defendants, who are
entitled to an award of their costs.
DATED: November 21, 2025
BY THE COURT:
S. Kato Crews
United States District Judge
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