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March 27, 2026 Get Citation Alerts Download PDF Add Note

Darus Wilkins v. John Palomino, et al.

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:20-cv-03495

• Precedential Status: Unknown Status

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

• Similar Cases (49.7K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 20-cv-03495-PAB-STV

DARUS WILKINS,

Plaintiff,                                                           

v.

JOHN PALOMINO, et al.,

Defendants.                                                          

                        ORDER                                        

This matter comes before the Court on the Recommendation of United States 

Magistrate Judge [Docket No. 324]. The Recommendation addresses Defendants’
Motion for Summary Judgement [Docket No. 309]. The Court has jurisdiction pursuant
to 28 U.S.C. § 1331.

I. BACKGROUND

The undisputed facts are set forth in the magistrate judge’s recommendation,
Docket No. 324 at 2-6, and the parties do not raise any factual objections to the
recommendation. The Court adopts the undisputed facts for the purposes of ruling on
the objection.

On November 25, 2025, plaintiff Darus Wilkins filed this action, pro se. Docket
No. 1. Plaintiff’s claims arise out of actions taken by various prison officials at Bent
County Correctional Facility to get plaintiff to take a buccal swab for purposes of a
paternity test. See generally Docket No. 104. On January 25, 2022, Magistrate Judge
Michael E. Hegarty issued an order appointing pro bono counsel for plaintiff. Docket
No. 157. Attorney Alan D. Schindler was selected as pro bono counsel on October 26,
2023. Docket No. 243.

The remaining defendants in this action are John Palomino, Chris Chavez, Cara
Kennedy, Brent Pierce, Luke Holland, Nita Hunt, and Mr. Smith. Plaintiff brings six state
law claims, and claims under 42 U.S.C. § 1983 for violations of his Fourth, Fifth, and

Eighth Amendment rights.1 Docket No. 104 at 5-26, ¶¶ 1-133. On May 30, 2025,
defendants filed a motion for summary judgment. Docket No. 309. On November 19,
2025, Magistrate Judge Scott T. Varholak issued a recommendation to grant in part and
deny in part the motion for summary judgment. Docket No. 324. On December 8,
2025, defendants filed a timely objection to the November 19, 2025 recommendation.

Docket No. 327. Plaintiff filed a response. Docket No. 328.

II. LEGAL STANDARD

A. Objections to the Magistrate Judge Recommendation

The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121

E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id. In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927

1 Plaintiff also brings a claim entitled “Cruel and Unusual Punishment” which 

alleges deliberate indifference to medical care. Docket No. 104 at 22-24, ¶¶ 108-118.

However, all parties against whom this claim was asserted have either been dismissed
from the case or were never served.

F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.

Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).

B. Motion for Summary Judgment

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.

Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes

over material facts can create a genuine issue for trial and preclude summary judgment.

Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). A
movant who bears the burden at trial must submit evidence to establish the essential
elements of its claim. Harper v. Mancos Sch. Dist. RE-6, 837 F. Supp. 2d 1211, 1217 (D. Colo. 2011).

Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”

Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The

nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id. III. ANALYSIS

The magistrate judge recommends that the motion for summary judgment be
granted as to plaintiff’s state law claims, granted as to all claims against defendant

Smith, and granted as to the Eighth Amendment claim against defendant Hunt. Docket
No. 324 at 27. The magistrate judge recommends that the motion be denied as to all
other claims against all other defendants. Id. The recommendation notes, in a footnote,
that the parties’ briefing did not address the due process claim, and that the parties
should be prepared to discuss whether the claim remains active during the final pretrial
conference. Id. at 7-8 n.2. Defendants object, arguing that they are entitled to
summary judgment on plaintiff’s Fourth and Eighth Amendment claims, and that plaintiff
abandoned his due process claim. Docket No. 327. Plaintiff does not object to the
partial grant of summary judgment, and requests that the Court “adopt the
Recommendation of United States Magistrate Judge Varholak without modification.”

Docket No. 328 at 8.

A. Fourth Amendment

Defendants argue that they are entitled to summary judgment on the Fourth
Amendment claim because their seizure was reasonable and because they did not

personally participate in the seizure of plaintiff’s DNA. Docket No. 327 at 2-7.
1. Reasonableness

The magistrate judge recommends that summary judgment be denied as to the
Fourth Amendment claim because plaintiff’s privacy rights outweigh the government’s
interest in conducting a DNA search. Docket No. 324 at 18-21. The recommendation
concludes that the state court order is invalid and does not render the seizure of
plaintiff’s DNA reasonable. Id. at 21-22. Furthermore, the recommendation finds that a
reasonable jury could consider defendants’ failure to abide by Colorado Department of
Correction (“CDOC”) Administrative Regulation No. 300-24, coupled with their
unwillingness to read the single paragraph state court order, id. at 23 n.9, to determine
that the seizure was unreasonable. Id. at 23-24.

Defendants state that it is irrelevant whether or not the state court order is invalid; 

rather, what matters is whether defendants reasonably believed the state court order
was valid under the totality of the circumstances. Docket No. 327 at 3-4. Defendants
further argue that any failure to “study and understand the state court order” and any
failure to follow CDOC Administrative Regulation No. 300-24 cannot establish more
than negligence. Id. at 4-6.

The Fourth Amendment provides that, “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. “The ultimate touchstone of the
Fourth Amendment is reasonableness.” Banks v. United States, 490 F.3d 1178, 1183 (10th Cir. 2007) (citation and internal quotations omitted). “The test of reasonableness
under the Fourth Amendment is not capable of precise definition or mechanical
application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). “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. “[P]ersons imprisoned for crime enjoy many protections of
the Constitution.” Hudson v. Palmer, 468 U.S. 517, 524 (1984). However,
“imprisonment carries with it the circumscription or loss of many significant rights.” Id. “The curtailment of certain rights is necessary, as a practical matter, to accommodate a
myriad of ‘institutional needs and objectives’ of prison facilities, chief among which is
internal security. Id. (internal citations omitted).

“[U]sing a buccal swab on the inner tissues of a person’s cheek in order to obtain
DNA samples is a search” under the Fourth Amendment.” Maryland v King, [569 U.S.

435, 446](https://www.courtlistener.com/opinion/873669/maryland-v-king/#446) (2013). This is true regardless of whether the individual is incarcerated. See id. (describing how the use of a buccal swab on a prisoner constitutes a search under
the Fourth Amendment). Nevertheless, obtaining DNA samples from inmates can be
reasonable in some cases, “in light of an inmate’s diminished privacy rights, the minimal
intrusion involved, and the legitimate government interest in using DNA to investigate
and prosecute crimes.” Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998).

In Banks, 490 F.3d at 1184, the Tenth Circuit analyzed the constitutionality of a
statute which required felons to submit a DNA sample in order to build a DNA database.

The court noted that in past cases analyzing similar statutes, it applied the Supreme
Court’s totality-of-the-circumstances test. Id. at 1185-1187 (citing Boling v. Romer, 101
F.3d 1336, 1339 (10th Cir. 1996); Schlicher v. (NFN) Pepters, I & I, 103 F.3d 940, 942
(10th Cir. 1996); Shaffer, 148 F.3d at 1181). “The Supreme Court has described the
totality-of-the-circumstances test as one where ‘the reasonableness of a search is
determined by assessing, on the one hand, the degree to which it intrudes upon an

individual’s privacy, and on the other, the degree to which it is needed for the promotion
of legitimate governmental interests.’” Id. at 1184 (quoting United States v. Knights, 534
U.S. 112, 119-20 (2001)). Applying the Knights totality-of-the circumstances test to the
statute at issue in Banks, the court stated that it must “balance the degree to which DNA
profiling intrudes upon the Plaintiffs’ privacy . . . against the significance of the
governmental interests served by DNA profiling.” Id. at 1185. The Tenth Circuit has
found there to be significant government interests “in accurately identifying offenders,
solving past and future crimes, and combating recidivism.” Id. at 1193. These interests
were found to outweigh the “relatively small” privacy invasion caused by saliva draws,

particularly considering that felons have “lesser privacy interests than do ordinary
citizens.” Id.

In this case, plaintiff’s status as a prisoner also means he has “lesser privacy
interests,” and the privacy invasion of a saliva draw would similarly be “relatively small.”

However, unlike in Banks, there are no significant governmental interests which
outweigh plaintiff’s privacy rights. As the recommendation observes, “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.” Docket No. 324 at 21. The recommendation
further notes that, unlike in Banks, “[t]he 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.” Id. The Court
agrees. Plaintiff himself requested this DNA test in a state court proceeding related to a

paternity dispute. Id. at 2-3. The Court finds that any possible governmental interest in
this context does not outweigh plaintiff’s privacy rights, even considering those privacy
rights are diminished.

In their objection to the denial of summary judgment on the Fourth Amendment
claim, defendants ignore the balancing test altogether, and do not assert a government
interest in obtaining the sample.2 Docket No. 327 at 2-7. Instead, defendants argue
that the state court order rendered the search reasonable. Id. at 3-4. The
recommendation notes that the state court order provided “a particular location and date
upon which the DNA testing was to occur.” Docket No. 324 at 22. Therefore, the

recommendation finds that the state court order was invalid at the time the DNA swab
was obtained because “the test occurred months after the deadline and at a different
location.” Id. Defendants, however, argue that “the Recommendation mistakenly
focuses on whether the state court order was valid . . . , instead of whether it was

2 When objecting to the denial of summary judgment on the Eighth Amendment 

claim, defendants assert a penological interest in not making Virginia Freed—the
person collecting the DNA sample—return to the prison to collect the DNA sample at
another time. Docket No. 327 at 10-11. Defendants do not raise this argument in their
objection to the Fourth Amendment claim, so the Court need not address it. See One
Parcel, 73 F.3d at 1059. However, even if the Court were to consider this purported
interest in the Fourth Amendment context, an interest in conserving Ms. Freed’s time
has nothing to do with the reasons for plaintiff’s diminished privacy interests. His
incarceration was coincidental in regard to the paternity test.

reasonable for the Defendants to believe it was valid.” Docket No. 327 at 3.

Defendants provide no caselaw supporting the proposition that summary judgment on a
Fourth Amendment claim is warranted if defendants reasonably believed that a state
court order authorized the seizure. See id. at 3-4. Even if this is the standard, summary
judgment would still be inappropriate.

Defendants argue that it was reasonable for them to believe the state court order 

was valid because Ms. Freed—a Bent County employee—twice came to the facility to
take plaintiff’s DNA sample pursuant to the state court order. Id. at 3-4. Defendants
assert that “Ms. Freed, not the defendants, was responsible for determining the Order’s
validity.” Id. at 4. However, as the recommendation points out, CDOC Administrative
Regulation No. 300-24 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.” Docket No. 324 at 22 (citation omitted). Thus, pursuant to CDOC’s

regulation, it was the facility, not Ms. Freed, who was responsible for determining the
state court order’s validity. The recommendation notes that it is undisputed the
defendants were not aware of the DNA regulation. Id. at 23. Moreover, the
recommendation observes that the state court order is only a single paragraph, which
states that: “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.” Id. at 22. Thus, the recommendation finds that “had Defendants bothered to
read the single paragraph Order they would have at least been on notice that the Order
had expired.” Id. at 23. The Court finds that a reasonable jury, in considering these two
facts, could find that it was not reasonable for defendants to believe the state court
order was valid.

Defendants, however, argue that their failure to read and follow CDOC
Administrative Regulation No. 300-24 and their failure to study the state court order can

only establish negligence, which is insufficient for a viable Forth Amendment claim.

Docket No. 327 at 3-6. While it is true that “failing to follow prison policy is not a
constitutional violation in and of itself,” George, on behalf of Bradshaw v. Beaver Cnty.,
by & through Beaver Cnty. Bd. of Commissioners, 32 F.4th 1246, 1250 (10th Cir. 2022)
(emphasis added), failure to follow policy may still be a factor in determining
unreasonableness, along with other factors. Moreover, defendants’ failure to
understand the single paragraph state court order can establish a Fourth Amendment
violation if it is determined to be objectively unreasonable. See Heien v. North Carolina, 574 U.S. 54, 66 (2014) (“The Fourth Amendment tolerates only reasonable mistakes,

and those mistakes—whether of fact or of law—must be objectively reasonable. We do
not examine the subjective understanding of the particular officer involved.”). Thus, the
state court order does not make defendants’ seizure reasonable as a matter of law, and
the Court will overrule defendants’ objection.

2. Personal Participation3

The magistrate judge recommends not granting summary judgment based on the
argument that defendants did not personally participate in the conduct forming the basis
of plaintiff’s Fourth Amendment claim.4 Docket No. 324 at 8-16. Specifically, the
recommendation finds that there is a genuine issue of fact as to whether defendants

“set in motion” the series of events that they knew or should have known would cause
others to deprive plaintiff of his Fourth Amendment rights. Id. at 9.

Defendants object, arguing that Ms. Freed is the one who collected plaintiff’s
DNA, not defendants. Docket No. 327 at 4-5. According to defendants, “[f]acilitating
the DNA collection by Ms. Freed cannot be a separate Fourth Amendment violation by
Defendants . . . because Ms. Freed actually conducted the seizure.” Id. As an
alternative argument, defendants assert that defendant Palomino made the decision to
proceed with collecting the DNA sample, and thus the other defendants could not have
caused a violation of the Fourth Amendment. Id. at 6-7.

A claim arising under 42 U.S.C. § 1983 requires: “(1) deprivation of a federally

protected right by (2) an actor acting under color of state law.” VDARE Found. v. City of

3 In their motion for summary judgment, defendants’ argument regarding 

personal participation does not differentiate between the Fourth Amendment claim and
the Eighth Amendment claim. Docket No. 309 at 6-7. The magistrate judge analyzes
personal participation in the conduct underlying the Fourth Amendment and Eighth
Amendment claims together. Docket No. 324 at 8-17. However, in their objection,
defendants raise separate arguments regarding personal participation in the conduct
underlying the Fourth Amendment claim and personal participation in the conduct
underlying the Eighth Amendment claim. Docket No. 327 at 4-7, 12-14. The Court will
analyze the Fourth Amendment personal participation arguments and the Eighth
Amendment personal participation arguments separately.

4 The magistrate judge does, however, recommend granting summary judgment
as to the claims against defendant Smith based on his lack of personal participation.

Docket No. 324 at 16-17.

Colorado Springs, 11 F.4th 1151, 1160 (10th Cir. 2021) (citation omitted). “[P]ersonal
participation is an essential allegation in a § 1983 claim.” Mitchell v. Maynard, 80 F.3d
1433, 1441 (10th Cir. 1996). However, “[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). A defendant can be

liable under § 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
[his] constitutional rights.” Mink v. Knox, 613 F.3d 995, 1001 (10th Cir. 2010) (citation
omitted).

Defendants argue that only Ms. Freed can be liable under the Fourth

Amendment because she is the one who conducted the seizure. Docket No. 327 at 4-5.

However, “an officer need not execute a search personally to be liable” for a Fourth
Amendment claim under § 1983. Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir.
2009). Liability can be established if defendants “set in motion a series of events that

[they] knew or reasonably should have known would cause others to deprive” plaintiff of
his Fourth Amendment rights. Mink, 613 F.3d at 1001. The other defendants,
therefore, do not escape liability merely because they did not personally collect the DNA
sample.

Defendants alternatively argue that it was defendant Palomino who ordered the
collection of the DNA sample, and thus the other defendants could not have caused a
violation of the Fourth Amendment. Docket No. 327 at 6-7. Regarding defendant
Kennedy, the recommendation emphasizes plaintiff’s testimony that, prior to the
collection of DNA, defendant Kennedy 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.” Docket No. 324 at 10.

Defendants argue that defendant Kennedy’s reaction “could have contributed to the use
of force,” but state that it is illogical to conclude it led to collecting plaintiff’s DNA.5

Docket No. 327 at 7. The Court disagrees. Defendant Kennedy stating that, if plaintiff
does not want to give a DNA sample, “[w]e’ll just fucking take it with force” could have

set in motion a series of events that defendant Kennedy should have known would
cause Ms. Freed to ultimately take the DNA sample. Specifically, a reasonable jury
could find that defendants might not have forced plaintiff to have his DNA sample
collected if defendant Kennedy did not state that defendants should take it by force.

Regarding defendant Hunt, the recommendation notes that “Defendant Hunt was
the first official to receive the court Order and personally scheduled Plaintiff for a DNA
test sampling based on that Order.” Docket No. 324 at 12. Moreover, plaintiff testified
that “Defendant Hunt threatened to use force if Plaintiff were to refuse to submit to the
DNA test.” Id. The recommendation reasons that, “[h]ad 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.” Id. The Court finds that a
reasonable jury could find that scheduling the DNA test set in motion the series of
events that led plaintiff’s DNA to being collected. Moreover, the Court finds that a
reasonable jury could conclude that defendant Hunt should have known this would lead
to a constitutional violation because the state court order, by its plain language, was no
longer valid.

5 Defendants later dispute that defendant Kennedy’s actions led to the use of 

force. Docket No. 327 at 12-13.

Regarding defendant Pierce, the recommendation notes that plaintiff testified that
he “believe[d] Mr. Pierce [wa]s one of the ones that was holding [Plaintiff] down in the
office” to forcibly collect his DNA. Id. at 15 (citation omitted). “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. (citation omitted). The recommendation

determines that “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.” Id. at 16. The
Court finds that plaintiff’s testimony creates a disputed fact as to whether defendant
Pierce personally participated in the unlawful seizure by holding plaintiff down while Ms.
Freed collected his DNA. Thus, the Court will overrule defendants’ objection.
B. Eighth Amendment

Defendants object to the magistrate judge’s recommendation denying summary
judgment on the Eighth Amendment excessive force claim, arguing that it incorrectly
held that defendants subjectively acted with a sufficiently culpable state of mind and that

defendants did not personally participate in the underlying events giving rise to the
claim. Docket No. 327 at 7-14.

1. Subjective Analysis

The magistrate judge recommends that summary judgment be denied as to the
Eighth Amendment claim because there is a genuine issue as to whether defendants
used force solely for the purpose of causing harm. Docket No. 324 at 24-27. The
recommendation notes that, when there is no legitimate penological purpose for using
force, it constitutes sufficient evidence that the force was used for the purpose of
causing harm. Id. at 26. The recommendation finds that it is disputed whether force
was necessary to ensure plaintiff’s safety, noting that plaintiff was never physically
aggressive when his DNA sample was collected. Id. The recommendation also finds
that defendant Kennedy’s use of vulgar language could be considered by a jury to be
indicative of force being used out of anger, rather than being used for a legitimate
reason. Id. at 26-27.

Defendants argue that the recommendation improperly considered their 

subjective intent, claiming that “[i]t is undisputed from the Defendants’ perspective, their
intent in using force was to ensure the safety of the Plaintiff, Ms. Freed, themselves and
the facility while Ms. Freed took the DNA sample from Plaintiff.” Docket No. 327 at 7.

Defendants also claim that the recommendation did not properly consider how
defendants’ positions as prison officials would influence their view of whether force was
necessary. Id. Finally, defendants argue that the recommendation failed to account for
the institutional penological needs explaining their actions. Id. at 10.
The Eighth Amendment provides that “cruel and unusual punishments” shall not

be inflicted. U.S. Const. amend. VIII. “After incarceration, only the unnecessary and
wanton infliction of pain . . . constitutes cruel and unusual punishment.” Ingraham v.
Wright, 430 U.S. 651, 670 (1977) (internal quotations and citations omitted). “[A]n
excessive force claim involves two prongs: (1) an objective prong that asks if the
alleged wrongdoing was objectively harmful enough to establish a constitutional
violation, and (2) a subjective prong under which the plaintiff must show that the officials
acted with a sufficiently culpable state of mind.” Giron v. Corr. Corp. of Am., 191 F.3d
1281, 1289 (10th Cir. 1999) (internal quotations, alterations, and citation omitted).

Here, defendants only object to the recommendation’s finding on the subjective prong.

See Docket No. 327 at 7-12. “The subjective element of an excessive force claim ‘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.’” Giron, 191 F.3d at
1289 (quoting Whitely v. Albers, 475 U.S. 312, 320-21 (1986)). “Where no legitimate
penological purpose can be inferred from a prison employee’s alleged conduct, . . . the

conduct itself constitutes sufficient evidence that force was used ‘maliciously and
sadistically for the very purpose of causing harm.’”6 Id. at 1290 (quoting Whitely, 475
U.S. at 320-21).

Defendants argue that it is undisputed that, “from the Defendants’ perspective,
their intent in using force was to ensure the safety of the Plaintiff, Ms. Freed,
themselves and the facility while Ms. Freed took the DNA sample away from Plaintiff.”

Docket No. 327 at 7. Defendants state that ensuring safety is a legitimate penological
purpose. Id. at 10. Defendants are incorrect that such a fact is undisputed.

Defendants cite several facts from their summary judgment motion’s “Statement of

Undisputed Facts,” id. at 7, but the only fact they cite which involves safety is ¶ 28,
which states that “Plaintiff, already handcuffed, was ordered to go to his knees and lay
on his stomach for the safety of Ms. Freed, which Plaintiff complied with.” Docket No.

6 Defendants argue that the recommendation erred in applying this proposition to 

the facts of this case. Docket No. 327 at 11 n.4. The facts of Giron, 191 F.3d at 1290,
involve a prison guard who sexually abused an inmate. Defendants argue that Giron is
inapplicable because its facts are distinguishable. Docket No. 327 at 11 n.4. However,
in Giron, 191 F.3d at 1290, the Tenth Circuit noted that its holding was not limited to
sexual abuse, stating that, “[w]here no legitimate penological purpose can be inferred
from a prison employee’s alleged conduct, including but not limited to sexual abuse or
rape, the conduct itself constitutes sufficient evidence that force was used ‘maliciously
and sadistically for the very purpose of causing harm.’” (quoting Whitley, 475 U.S. at
320-21) (emphasis added).

309 at 5, ¶ 28. Contrary to defendants’ assertion, this fact is disputed, with plaintiff
stating that it is “Denied” and explaining that “Mr. Wilkins was forced to the floor by
multiple officers while in the office.” Docket No. 314 at 5, ¶ 28. Thus, it is not
undisputed that defendants subjectively acted with the intent to ensure safety. In fact,
as the recommendation notes, other evidence could lead to the opposite conclusion.

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 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.                       

Docket No. 324 at 26-27. The Court agrees that the referenced facts create a genuine
issue of material fact as to whether defendants were acting to ensure safety or were
instead acting solely for the purpose of causing harm. Considering that defendants took
these actions in their positions as correctional officers does not change this conclusion.

There is a disputed issue of fact that defendants used force, despite the fact that
defendants state the use of force was unnecessary. A reasonable jury could conclude
that using force unnecessarily indicates that the use of force was malicious, even from
the perspective of a correctional officer.

Defendants assert a purported penological purpose in ensuring Ms. Freed did not
have to return to the prison in order to collect the DNA sample at another time. This
interest essentially amounts to the convenience of Ms. Freed. Courts have found
legitimate penological interests in, for example, the “[s]afety and security of inmates and
facility staff.” Herbert v. Ruffini, 2021 WL 948832, at *3 (D. Colo. Mar. 12, 2021). Ms.
Freed’s convenience does not rise to this level. The convenience of Ms. Freed involves
the convenience in taking a DNA sample, but without a proper court order. The Court

finds that facilitating the convenience of such an action does not constitute a legitimate
penological purpose. Accordingly, there is a genuine issue of fact as to whether
defendants acted with the subjective intent to maliciously cause harm, and the Court will
overrule the objection.

2. Personal Participation

The magistrate judge recommends denying summary judgment based on the
argument that defendant Kennedy and defendant Pierce did not personally participate in
the conduct forming the basis of plaintiff’s Eighth Amendment claim. Docket No. 324 at
10-12, 14-16. As with personal participation under the Fourth Amendment, the

recommendation finds that there is a genuine issue of fact as to whether defendant
Kennedy and defendant Pierce “set in motion” the series of events that they knew or
should have known would cause others to deprive plaintiff of his Fourth Amendment
rights. Id. Defendants argue that defendant Kennedy only yelled vulgar threats, which is
insufficient to establish an Eighth Amendment violation. Docket No. 327 at 12.

Moreover, defendants argue that the magistrate judge inappropriately relied on Harper
v. Rose, 2012 WL 1150463 (D. Utah Apr. 5, 2012), for the proposition that an officer
who threatens to use force can set in motion a series of events which actually leads to
the use of force. Id at 12-13.

First, defendants’ argument that a threat cannot establish an Eighth Amendment
violation misconstrues the recommendation’s holding. The recommendation did not
determine that defendant Kennedy’s threat constituted excessive force, but rather that a

reasonable jury could find that defendant Kennedy’s statements escalated the situation,
setting in motion the events which led to the excessive use of force. Docket No. 324 at
10-12. Thus, this argument is unavailing.

Next, defendants are correct that Harper is distinguishable from the facts of this
case. Like defendant Kennedy, the defendant in Harper threatened to use force against
the plaintiff. Harper, 2012 WL 1150463, at *6. The Harper court found that a
reasonable jury could find that this threat set in motion a series of events which led to
the other defendants’ constitutional violations. Id. However, unlike defendant Kennedy,
the defendant in Harper also ordered that the plaintiff be tased. Id. But defendants

here fail to acknowledge that the recommendation explicitly states that “[t]he facts in this
case are not identical to Harper.” Docket No. 324 at 11. The recommendation merely
uses Harper as evidence that “[o]ther 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.” Id. The
recommendation does not rely on Harper—a District of Utah case—as binding
precedent. See id. at 11-12. Rather, the recommendation notes that “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.” Id. at 11. The recommendation states that,
“[a]fter this, Plaintiff testified that Defendant Kennedy personally called for extra help
from ‘bigger staff,’ even though Plaintiff was not acting in a threatening manner.”7 Id. From these facts the recommendation concludes that a reasonable jury could find that
such statements were an overreaction to plaintiff’s verbal refusal to submit to a DNA

test for the purpose of determining paternity rights, and that this overreaction led to the
use of excessive force. Id. at 11-12. The Court agrees, and finds that a reasonable jury
could find that defendant Kennedy threatening to get the DNA sample by force set in
motions a series of events which led to other defendants getting the DNA sample by
force.

Next, defendants argue that the recommendation erred in refusing to recommend
granting summary judgment to defendant Pierce. Docket No. 327 at 13. Defendants
then state that defendant Pierce’s action are “insufficient to demonstrate the specific
actions of Defendant Pierce towards Plaintiff were sadistic and malicious under the

applicable Eighth Amendment subjective standard.” Id. However, as to defendant
Pierce, the recommendation examined whether he personally participated in the
conduct, not whether his actions satisfied the subjective prong of the excessive force
analysis. See Docket No. 324 at 14-16. Moreover, defendants’ arguments in their
motion for summary judgment regarding the Eighth Amendment claim against

defendant Pierce focused exclusively on his personal participation, not on whether his
actions were sadistic and malicious. See Docket No. 309 at 6-7. In fact, defendants do

7 Similar to defendant Kennedy calling for help from additional staff in this case, 

Docket No. 324 at 11, the defendant in Harper, 2012 WL 1150463, at *6, called dispatch
for help in controlling the plaintiff.

not mention defendant Pierce under the subheading “Eighth Amendment” at all. See id.
at 8-11. “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996); see also Maurer v. Idaho Dep’t of Corr., 799 F. App’x 612, 614 n.1 (10th Cir.
2020) (unpublished). Thus, the Court will not address defendants’ argument that

defendant Pierce did not act maliciously or sadistically. And to the extent this objection
could be construed as an objection to the recommendation’s holding that a reasonable
jury could find defendant Pierce personally participated in the Eighth Amendment
violation, the Court is not convinced. The recommendation notes that plaintiff testified
as to his belief that defendant Pierce held him down during the excessive force incident.

Docket No. 324 at 14-15. The Court finds that a reasonable jury could find that this
testimony shows defendant Pierce personally participated in the conduct which
allegedly deprived plaintiff of his constitutional rights. Accordingly, the Court will
overrule defendants’ objection.

  C. Fifth Amendment                                                 
The recommendation notes, in a footnote, that plaintiff brings a due process 

claim based on alleged retaliation. Id. at 7-8 n.2. The recommendation further notes
that the parties “do not address the due process claim in their briefing on the instant
Motion.” Id. The recommendation states that, “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.” Id. Defendants, however, argue that plaintiff abandoned the claim by not raising it in
his response to defendants’ motion for summary judgment. Docket No. 327 at 14. In
support of this argument, defendants point to cases which the recommendation cites. Id. The problem, however, is that these cases do not stand for the proposition that a
plaintiff must address claims in a summary judgment response even if the defendants
do raise them in their motion. Rather, they stand for the proposition that, when a
defendant raises an argument in a motion for summary judgment, a failure to address

that argument typically constitutes abandonment of the claim. See 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)
(unpublished)); (Hutton v. Woodall, 70 F.Supp.3d 1235, 1239 (D. Colo. 2014)) (finding
that a plaintiff abandoned her claim by failing to address the defendant’s argument
regarding that claim); 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) (same). Here,
defendants raised no arguments in their motion for summary judgment addressing the

retaliation claim. See generally Docket No. 309; see also Docket No. 324 at 7-8 n.2
(stating that “the parties do not address the due process claim in their briefing on the
instant Motion.”). Thus, plaintiff has not abandoned his due process claim, and the
Court will overrule the objection.

D. Unobjected to Portions of the Recommendation

The magistrate judge recommends granting summary judgment as to all of
plaintiff’s state law claims and as to all claims against defendant Smith. Docket No. 324
at 27. The magistrate judge also recommends granting summary judgment as to the
Eighth Amendment claim against defendant Hunt. Id. Plaintiff did not file an objection
to the recommendation. The Court has reviewed the non-objected to portions of the
recommendation to satisfy itself that there is “no clear error on the face of the record.”
Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that these portions of the recommendation are a correct application of the
facts and the law and will accept the magistrate judge’s recommendation.
IV. CONCLUSION
Therefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 324] is ACCEPTED. It is further
ORDERED that Defendants’ Objection to Recommendation of United States
Magistrate Judge [Docket No. 327] is OVERRULED. It is further
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 309] is
GRANTED in part and DENIED in part. It is further
ORDERED that plaintiff's state law claims are DISMISSED with prejudice. It is
further
ORDERED that plaintiff's Eighth Amendment claim against defendant Nita Hunt
is DISMISSED with prejudice. It is further
ORDERED that plaintiff's claims against defendant Smith are DISMISSED with
prejudice. It is further
ORDERED that defendant Smith is DISMISSED as a party to this action.
DATED March 27, 2026.
BY THE COURT:
ee
PHILIP A. BRIMMER
United States District Judge

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