Opinion
Civil Action 21-cv-03163-WJM-KAS
04-21-2024
ANDREW VANDERWAL, Plaintiff, v. KENDRA TRUJILLO, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHRYN A. STARNELLA MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment [#126](the “Motion”). Plaintiff filed a Response [#137] in opposition to the Motion [#126], and Defendant filed a Reply [#142]. The Court has reviewed the briefs, the entire case file, and the applicable law. Based on the following, the Court RECOMMENDS that this Motion [#126] be GRANTED.
[#126] is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
I. Background
A. Procedural History
At all times relevant to this litigation, Plaintiff, who proceeds in this matter as a pro se litigant,was incarcerated with the Colorado Department of Corrections (“CDOC”) and housed at the Arkansas Valley Correctional Facility (“AVCF”) in Ordway, Colorado. Response [#137] at 3. Plaintiff alleges that Defendant, a former prison librarian at AVCF, violated his Eighth Amendment rights on December 12, 2019, by failing to declare a medical emergency when he experienced an allergic reaction to Oxivir, a cleaning chemical that had been used on his work chair. Am. Compl. [#10], at 8-14; Motion [#126] at 5-8. Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Motion [#126].
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
B. Material Facts
On December 12, 2019, Plaintiff arrived for his shift at the prison library. Dep. of Pl. [#126-1] at 18:5-17. During that shift, he sat on a chair that had been sprayed with Oxivir. Id. at 20:9-19; 22:6-15. Plaintiff alleges that he experienced a painful reaction due to the Oxivir and determined he needed medical care. Id. at 23:11-21. Plaintiff approached Defendant, who was his supervisor, and asked her to declare a medical emergency. Id. at 26:1-6. Defendant told Plaintiff to return to his cellblock if he was not feeling well. Id. at 26:7-11. Plaintiff claims that he reiterated that he wanted Defendant to declare a medical emergency, and Defendant told him that he could do so from his cellhouse. Id. at 26:13-19. After this ten- to fifteen-second conversation, Plaintiff decided to leave the library and return to his cellhouse as Defendant had suggested. Id. at 26:2025; 28:15-19. The walk from the library to the cellhouse took approximately 45 seconds. Id. at 31:2-7. After arriving at his cellhouse, Plaintiff immediately informed a guard that he needed medical assistance. Id. at 32:13-18; 34:20-24. The guard subsequently escorted Plaintiff to the clinic, where he was treated for his exposure to Oxivir. Id. at 33:1-2; Medical Records [#127]. After receiving treatment, Plaintiff was charged a $5.00 copay. Motion [#126] at 12; Response [#137] at 9.
The CDOC has a formalized three-step grievance process for inmates seeking to address a complaint. Decl. of DeCesaro [#126-2] at ¶ 4. First, inmates file a Step 1 grievance to submit their complaint and give prison officials a chance to respond. Id. at ¶ 5. If the inmate is not satisfied with the resolution of their Step 1 grievance, they may seek administrative review of that decision by filing a Step 2 grievance, and, subsequently, a Step 3 grievance. Id. at ¶¶ 6-8.
Here, Plaintiff filed a Step 1 grievance that noted his exposure to Oxivir and subsequent treatment for his allergic reaction. Vanderwal Grievances [#126-3] at 1. He alleged that the CDOC was negligent in using Oxivir and in failing to train porters on its proper use. Id. Plaintiff requested a return of his $5.00 copay because he was not responsible for the exposure. Id. At no point did Plaintiff mention Defendant or a failure to declare a medical emergency. Id. His request for a return of the copay was denied, with the possibility of it being granted if Plaintiff could produce a report stating the incident was work-related. Id.
Plaintiff subsequently sought review of this decision by filing a Step 2 grievance. Id. at 2. In this Step 2 grievance, Plaintiff referenced a report by a prison librarian which he alleged properly showed that the incident was work-related. Id. Plaintiff similarly made no reference to Defendant or a failure to declare a medical emergency. Id. His requested remedy remained consistent: a return of the $5.00 copay. Id. The request was denied under the reasoning that Plaintiff's reaction was not directly related to his job. Id. Furthermore, the grievance coordinator claimed the incident report Plaintiff mentioned did not exist. Id.
Finally, Plaintiff submitted a Step 3 grievance, the final step of the formalized grievance process. Id. at 3. In this grievance, Plaintiff reiterated that the incident report existed and wrote he would provide the grievance coordinator with a copy. Id. Plaintiff again sought a return of his $5.00 copay. Id. Like in the other grievance forms, Plaintiff did not mention Defendant or a failure to declare a medical emergency. Id. Plaintiff's request for relief was again denied under the reasoning that the chemical was approved for use in the library. Id.
II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), “[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment 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.” The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998).
III. Analysis
Defendant argues that she is entitled to summary judgement because Plaintiff failed to exhaust his statutorily required administrative remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, et seq. Motion [#126] at 10. The burden is on the Defendant to raise failure to exhaust administrative remedies as an affirmative defense in a motion for summary judgment, as she has done here. Jones v. Bock, 549 U.S. 199, 216 (2007); Motion [#126] at 10-13.
Because the Court finds that Defendant is entitled to summary judgment on the issue of exhaustion, it declines to address Defendant's other arguments because failure to exhaust requires dismissal of Plaintiff's claims. Jones, 549 U.S. at 211.
A. Exhaustion Requirement
The PLRA requires inmates to exhaust administrative remedies before filing suit under 42 U.S.C. § 1983 “or any other [f]ederal law.” 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that “the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”). An inmate may satisfy the exhaustion requirement by “properly following all of the steps laid out in the prison system's grievance procedure,” including meeting deadlines and complying with other critical procedural rules. Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)); Gray v. Sorrels, 818 Fed.Appx. 787, 789 (10th Cir. 2020). Additionally, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030,1032 (10th Cir. 2002).
The primary exception to the exhaustion requirement is where the administrative remedies are not “available” to the prisoner, such as where “prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy[.]” Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). An exception may also be made where the grievance procedure is “essentially ‘unknowable'-so that no ordinary prisoner can make sense of what it demands[.]” Ross v. Blake, 578 U.S. 632, 644 (2016) (citations omitted).
Importantly, a court must examine whether the exhaustion requirement is satisfied before examining the merits of a plaintiff's claims. See, e.g., Jones, 549 U.S. at 211 (stating that, “[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”) (citation omitted); Woodford, 548 U.S. at 84 (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”). A dismissal for failure to exhaust must be without prejudice, even if the time frame for recourse has elapsed. See, e.g., Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139-40 (10th Cir. 2005) (affirming dismissal of prisoner's claim on exhaustion grounds but remanding for the district court “to either modify its opinion to specify that dismissal is without prejudice, or make a determination on the merits within its permissible scope to do so”-even though “the time frame for recourse to administrative remedies has now probably expired”).
To satisfy the exhaustion requirement, an inmate's grievances must provide prison officials with enough information to give them the opportunity to investigate and address complaints internally. Barnes v. Allred, 482 Fed.Appx. 308, 311-312 (10th Cir. 2012); Kikumara v. Osagie, 461 F.3d 1269, 1285-86 (10th Cir. 2006).
B. Plaintiff's Grievances
Here, the CDOC provides inmates a three-step grievance process under Administrative Regulation (“AR”) 850-04. See Decl. of DeCesaro [#126-2] at ¶ 4. At each step, the inmate must complete and submit a grievance form, then wait a period of time to receive a response from a CDOC official. Id. at ¶¶ 6-8. Filing a Step 3 grievance is the final step of the grievance process. Id. at ¶ 8. Because this grievance process has three steps, an inmate who stops after filing a Step 1 or Step 2 grievance has not exhausted administrative remedies. The record shows that Plaintiff is aware of the three-step grievance process, as he filed Step 1, Step 2, and Step 3 grievances relating to the $5.00 copay he was charged after receiving medical care. Vanderwal Grievances [#126-3] at 13.
Here, while Plaintiff completed the entire grievance process regarding the $5.00 copay, he did not file any grievances that would put prison officials on notice about the claim against Defendant. See id. at 3 (“[r]emedy remains consistent. Refund the $5.00 due to exposure of [Oxivir] in the work place and improper training of the [l]ibrary porter”). Plaintiff now argues that because this $5.00 copay arose from the same incident as Defendant's alleged failure to declare a medical emergency, his grievances sufficiently incorporated his claim. Response [#137] at 9-10. The Court disagrees. Notably, Plaintiff's grievances did not name Defendant and did not take issue with any alleged failure to declare a medical emergency. Vanderwal Grievances [#126-3] at 1-3. The fact that the grievance stemmed from the same incident as his complaint does not, by itself, satisfy the exhaustion requirement. Barnes, 482 Fed.Appx. at 312 (reasoning that an inmate failed to exhaust his administrative remedies even though his grievances complained of issues related to, but distinct from, those raised in the civil complaint). Rather, Plaintiff must provide prison officials with enough information to allow them to investigate and address the complaints. Id. at 311-312; Kikumara, 461 F.3d at 1285. Here, a complaint regarding the $5.00 copay would not reasonably put prison officials on notice about an alleged failure to declare a medical emergency.
The Court acknowledges that Plaintiff's grievances suggest negligence by the CDOC, but only in the narrow context that the use of Oxivir was inappropriate and that library porters were not trained in its application. Vanderwal Grievances [#126-3] at 1, 3. Even assuming that CDOC was negligent in its use of Oxivir and its training of porters, that claim would be entirely separate from Plaintiff's claim against Defendant, i.e., that she violated his constitutional rights by not declaring a medical emergency on his behalf. Plaintiff's grievances about his $5.00 copay, CDOC's use of Oxivir, and CDOC's alleged failure to train library porters does not satisfy the PLRA's exhaustion requirement because they do not address his claims as to Defendant. See, e.g., Gorton v. Williams, 309 Fed.Appx. 274, 275 (10th Cir. 2009) (holding that, “in light of [d]efendant's evidence that [p]laintiff submitted no grievances related to his claims in this case, the court's grant of summary judgement to [d]efendant for failure to exhaust was appropriate”) (emphasis added)).
C. Incident Report #1310829
Plaintiff also argues that prison officials “attempted to deny the existence of Incident Report #1310829” when they responded to his Step II grievance. Response [#137] at 10; Incident # 1310829 [#137-1] at 6; Step II Grievance [#126-3] at 2. Even if true, the Incident Report does not support Plaintiff's claim that Defendant knowingly refused to declare a medical emergency on behalf of Plaintiff. Incident # 1310829 [#137-1] at 6 (report drafted by Linda Hollis, librarian, asserting that “[Plaintiff] stated he did not tell [Defendant], library technician II” about his medical condition).Again, this Step II grievance did not mention Defendant and did not raise any allegations against her. Step II Grievance [#126-3] at 2. The “remedy remain[ed] consistent”: Plaintiff wanted a refund of his $5.00. Id.
In Plaintiff's deposition, he asserts that this claim is false, and that he did tell Defendant about his medical condition during a ten to fifteen second conversation. Dep. of Vanderwal [#126-1] at 48-49. Regardless of which assertion is true, this report, like Plaintiff's grievances, fails to put CDOC on notice about the claim against Defendant.
Finally, Plaintiff correctly notes that he is only expected to make use of administrative remedies that are available to him. Response [#137] at 10-11. However, Plaintiff fails to demonstrate that administrative remedies were unavailable here. Id.; Reply [#142] at 4. The fact that Plaintiff filled out an informal report, followed by three steps of grievances, relating to his $5.00 copay demonstrates that the grievance process was available and, moreover, that he was familiar with that process. Vanderwal Grievances [#126-3] at 1-3. Thus, the Court concludes that Plaintiff failed to exhaust his administrative remedies, as related to his claim against Defendant. Therefore, the Court should dismiss Plaintiff's claim without prejudice. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). Accordingly, the undersigned recommends that Defendant's Motion be granted. Motion [#126].
IV. Conclusion
For the foregoing reasons, IT IS HEREBY RECOMMENDED that Defendant's Motion for Summary Judgment [#126] be GRANTED.
IT IS FURTHER RECOMMENDED that Plaintiff's Amended Complaint [#10] be DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (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. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions, Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this 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. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).