Opinion
Civil Action 1:20-cv-2055-NYW-SKC
02-24-2023
MARQUISE LUCAS, Plaintiff, v. J. A. BARNHART, J. WASSELL, PEDRO TORRES-DE LEON, C. WATSON, B. TORRES, V. VIGIL, M. BANUELOS, BATOUCHE, S. EACKER, G. ROMAIN, and R. RICOLCOL, Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. 51] AND MOTION TO DISMISS [DKT. 50]
S. Kato Crews United States Magistrate Judge
Before the Court on referral is Defendants' Motion for Summary Judgment under Federal Rule of Civil Procedure 56(a). [Dkt. 51.]Defendants argue Plaintiff's Eighth Amendment claims of excessive force and deliberate indifference are barred for failure to properly exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). [Id.] Plaintiff, appearing pro se, did not file a response to the Motion.
The Court uses “[Dkt. ]” to refer to specific docket entries in CM/ECF.
The Court, after carefully considering the Motion, applicable law, and pertinent entries in the docket, respectfully recommends the Motion be GRANTED, and further recommends Defendants' Motion to Dismiss [Dkt. 50] be DENIED AS MOOT.
I. Background
Plaintiff, Marquise Lucas, is a pro se prisoner in the prior custody of the Federal Bureau of Prisons (BOP) at its United States Penitentiary - Florence (USPF).[Dkt. 27.] Plaintiff sued Defendants alleging violations of his Eighth Amendment rights while at USPF when several of its (1) officials assaulted him with excessive force and (2) medical staff acted with deliberate indifference to his serious medical needs. [Id. at pp. 2-3.]
The Court has liberally construed Plaintiff's allegations in his Amended Complaint. See Greene v. U.S. Postal Serv., 795 Fed.Appx. 581, 583 (10th Cir. 2019).
Plaintiff's allegations involve two separate incidents in January 2020, and a third in July 2020. During the first instance on January 2, Plaintiff alleges USPF officials assaulted him after he met with his psychologist in a holding cell. [Id. at p. 3.] Plaintiff alleges several USPF officials came to the holding cell and one of them ran up to him and placed his knee on Plaintiff's neck. He asked that official to stop because he couldn't breathe, but another USPF official repeatedly punched him in the lower torso and groin area, causing him to soil himself. [Id.] Then another USPF official continuously punched Plaintiff in the face and head, badly bruising Plaintiff's lips, which started bleeding, and then Plaintiff passed out. [Id.] Plaintiff further alleges USPF officials unreasonably restrained and tortured him. [Id.] Shortly thereafter, a USPF nurse came to check on Plaintiff but did not adequately treat him. Instead, Plaintiff says the nurse fabricated his medical report. [Id. at p. 5.]
Plaintiff further alleges that on January 6, he needed medical care because his ankles, collar bone, and face severely hurt after being previously restrained and tortured on January 2. [Id. at 6.] But the USPF nurse denied him medical care and fabricated the examination report by noting Plaintiff cut his ankle with a razor blade. [Id. at p. 7.]
During the third incident on July 15, Plaintiff alleges he suffered anxiety and depression from the assault, which could have caused his suicide. [Id.] After USPF officials transferred him to a special housing unit, he asked to speak to his psychologist.
But instead, a USPF official put him in “ambulatory restraint.” [Id. at p. 8.] Then, another USPF official rammed Plaintiff's head against the wall causing severe bleeding, and then sexually “groped-assaulted” his buttocks and whispered in his ears “words of sexual torture.” [Id.]
I. Discussion
Defendants argue the PLRA's exhaustion requirement bars Plaintiff's claims because he filed this action before fully completing the grievance requirements under the BOP's four-tiered Administrative Remedy Program. See 28 C.F.R. § 542.10 et seq. The Court agrees.
A. Applicable Law
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate when the record evidence is undisputed as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Bellock v. United States, 574 F.Supp.3d 932, 935 (D. Colo. 2021).
If the nonmoving party bears the burden of proof at trial, the movant may prevail on summary judgment by demonstrating the nonmoving party lacks (1) evidence proving an essential element of the claim and (2) material facts creating a disputed issue. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018). In doing so, the Court reviews the record evidence in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
When challenging conditions of their confinement, the PLRA requires incarcerated persons to first exhaust their administrative remedies before filing a 42 U.S.C. § 1983 action. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 94 (2006) (proper exhaustion creates an administrative record which is helpful to the prisoner and the court, while providing the prison grievance system “a fair opportunity to consider the grievance”).
Failure to exhaust administrative remedies is an affirmative defense which a defendant must prove by a preponderance of the evidence. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). To meet that burden, a defendant “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).
B. Analysis
As a preliminary matter, Plaintiff did not file a response to the Motion.But the Court has nonetheless reviewed the record in the light most favorable to him. Yet, the Court recommends finding Defendants are entitled to summary judgment on their affirmative defense because the undisputed facts establish Plaintiff's failure to properly exhaust his administrative remedies. Hutchinson, 105 F.3d at 564.
Plaintiff did not file a response despite having a second opportunity to do so after he notified the Court he had been transferred to a new facility and had not received updates about his case. See [Dkt. 48.]
Defendants also argued Plaintiff improperly filed grievance requests by not specifically identifying individual Defendants in his Complaint. But that is inconsequential to the Court's inquiry over whether Plaintiff completed the administrative review process. See Jones v. Brock, 549 U.S. 199, 218 (2007).
First, Plaintiff did not fully complete the grievance process regarding his deliberate indifference claim (Administrative Remedy No. 1008367) against medical staff until after he initiated this action on June 9, 2020, and the Clerk of Court docketed his Complaint on September 10, 2020 [Dkt. 9]:
• On February 12, 2020, Plaintiff appealed the USPF's response [Dkt. 51 2 p. 18] to his grievance regarding his receipt of improper medical care by filing a Request for Administrative Remedy, BP-229(13). [Dkt. 51-2 p. 19.]
• On June 3, 2020, the BOP responded saying it reviewed and confirmed USPF nursing staff did medically evaluate Plaintiff after multiple radiographic exams, which cleared him of any fractures or lesions to his right shoulder, ribs, and lower extremities. [Id. at pp. 20-21.]
• On August 28, 2020, Plaintiff appealed that decision by filing a Central Office Administrative Remedy Appeal, BP-231(13). [Dkt. 26.]
• On September 10, 2020, the Clerk of Court docketed Plaintiff's Complaint, dated September 4, 2020, after having received it by mail. [Dkt. 9.]
• Plaintiff's grievance-appeal finalized on March 17, 2021. [Dkt. 51-2 pp. 26-27.]
The PLRA requires that administrative remedies be exhausted prior to bringing a lawsuit. See Woodford, 548 U.S. at 85 (a prisoner must complete the administrative review process as a precondition to bringing suit in federal court); Snyder v. Harris, 406 Fed.Appx. 313, 315 (10th Cir. 2011) (prisoner appellant “was required to exhaust completely his available administrative remedies prior to bringing his claim against [state prison employees] in federal court.”). The undisputed facts show Plaintiff did not fully exhaust his remedies on his deliberate indifference claim until after he brought this case.
Further, regarding his two assault grievances, the undisputed facts show Plaintiff never appealed the USPF's informal grievance responses. The undisputed facts are as follows:
• Request for Administrative Remedy No. 1033502 - On July 8, 2020, Plaintiff appealed the USPF's response [Dkt. 51-2 p. 29] to his grievance by filing a Request for Administrative Remedy, BP-229(13). [Dkt. 51-2 p. 30.] On March 5, 2021, the BOP responded saying it reviewed
Plaintiff's allegation that BOP staff members assaulted him but did not provide further details because it was not required to notify Plaintiff about the outcome of its review. [Id. at p. 31.] The BOP also informed Plaintiff he had 20 calendar days to appeal if he was unsatisfied with their response by submitting a BP-230(13) form. [Id.] Plaintiff never submitted the form. [Dkt. 51-1 pp. 5-7.]
• Request for Administrative Remedy No. 1047637 - On August 6, 2020, Plaintiff filed his Request for Administrative Remedy, BP-229(13), concerning the alleged assault on July 15. [Id. at p. 33.] On September 18, 2020, the BOP responded saying it reviewed Plaintiff's allegations but did not provide further details because it was not required to notify Plaintiff about the outcome of its review, and also informed Plaintiff he had 20 calendar days to appeal if he was unsatisfied with their response by submitting a BP-230(13) form. [Id. at pp. 31, 34.] Plaintiff never submitted the form. [Dkt. 51-1 pp. 5-7.]
Based on these undisputed facts, no reasonable jury could conclude Plaintiff properly exhausted his administrative remedies before he sued Defendants in this court. See Woodford, 548 U.S. at 85; Snyder, 406 Fed.Appx. at 315; cf. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (rejecting prisoner's substantial compliance argument because ultimately, he failed to properly exhaust administrative remedies when he “did not see the process to its conclusion.”).
For these reasons, the Court RECOMMENDS Defendants' Motion for Summary Judgment be GRANTED, and FURTHER RECOMMENDS Defendants' Motion to Dismiss be DENIED AS MOOT.
ADVISEMENT
The parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz , 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn , 474 U.S. 140, 155 (1985); Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).