Opinion
Civil Action No. 19-cv-01828-PAB-NRN
07-31-2020
WESTLEY YBARRA, Plaintiff, v. JOHN/JANE DOE #1, Intelligence Officer, Sterling Correctional Facility, ROBERT DICK, Case Manager III, Sterling Correctional Facility, JOHN/JANE DOE #2, Associate Warden, Sterling Correctional Facility, JOHN/JANE DOE #3, Warden, Sterling Correctional Facility, JOHN/JANE DOE # 4, Intelligence Officer, Colorado State Penitentiary, JOHN/JANE DOE # 5, Case Manager III, Colorado State Penitentiary, JACKIE MCCALL, Associate Warden, Colorado State Penitentiary, and EVA LITTLE, Lieutenant, Colorado Department of Corrections, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1) AND (6) (Dkt. #31)
This case is before the Court pursuant to an Order (Dkt. #33) issued by Chief Judge Philip A. Brimmer referring Defendants Robert Dick, Jackie McCall, Steve Owens and Eva Little's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Dkt. #31. Plaintiff Westley Ybarra, who proceeds pro se, filed a Response. Dkt. #56. Defendants submitted a Reply. Dkt. #64. On April 23, 2020, the Court heard argument from the parties. Dkt. #65. The Court also considered a supplementary submission from Mr. Ybarra after the Court notified the parties that the motion would be converted to a motion for summary judgment. Dkt. ##67 & 71. The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and makes the following recommendation.
I. BACKGROUND
A. Plaintiff's Allegations
The following are undisputed facts, construed in the light most favorable to Mr. Yabrra, as the Court must.
Mr. Ybarra has been in CDOC custody since February 2007. He is currently housed in the protective custody unit at the Arkansas Valley Correctional Facility (AVCF). Before he entered a CDOC facility, Plaintiff testified against a 211 gang member in a murder trial, which necessitated his separation from any 211 gang member inmates and other white supremacist groups. Although the need for the separation order was stated in his prison file, Plaintiff was assaulted by 211 gang affiliates at Sterling Correctional Facility (SCF) in 2007-08, after being labelled a "snitch." Mr. Ybarra's requests to be placed in protective custody (PC) at those facilities were denied. Plaintiff was transferred to a Washington state facility for approximately seven years and was assaulted there by a 211 gang member in 2015, suffering a fractured jaw and other injuries. He was then transferred back to Colorado. In 2015-16, while Plaintiff was incarcerated at the Fremont Correctional Facility, he received numerous threats from 211 gang members. Plaintiff was then transferred back to SCF, where he was again threatened by gang members. In 2017, the Colorado Protective Custody Review Board (CPCRB) denied Mr. Ybarra's request for PC placement. Plaintiff was transferred to the Colorado State Penitentiary (CSP) in March 2017, where he was placed in the general population. Mr. Ybarra was assaulted by 211 gang members two weeks later and suffered serious injuries that required surgery. In May 2017, the CPCRB approved Mr. Ybarra for placement in PC, and he was transferred to the Buena Vista Correctional Facility and placed in a PC unit.
Throughout this time, and before he was finally placed in PC, Mr. Ybarra submitted informal grievances to CDOC officials requesting that he be placed in protective custody and was told by CDOC personnel that there was nothing they could do. Plaintiff admits that he did not submit any formal grievances. Plaintiff alleges that the constant stress of being placed in general population since February 22, 2007, aggravated his "already serious Anxiety, Depressive Disorder/Unipolar Depression, and Post Traumatic Stress Disorder (PTSD)." Dkt. #56 at 9. Plaintiff also asserts that he received inadequate treatment for his mental health conditions, and that the inadequate treatment prevented him from being able to understand and pursue his claims. Id. at 12 & Dkt. #71 at 15-17.
B. Procedural History
On June 24, 2019, Mr. Ybarra filed, pro se, a Prisoner Complaint (Dkt. #1) against individual defendants Robert Dick, Jackie McCall, Eva Little, and five John/Jane Doe defendants. Mr. Ybarra was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and was ordered to amend his Complaint. Dkt. ##4 & 5. Pertinent to the resolution of the subject motion, and because it appeared from the face of his Complaint that his claims were time-barred, Mr. Ybarra was ordered to amend his Complaint to "state claims for relief that are not time-barred, or allege specific facts that would support the application of equitable tolling in this case." Dkt. #5 at 5-8. Mr. Ybarra filed his Amended Complaint, which is the operative complaint, on August 23, 2019. Dkt. #8.
Defendants filed the subject motion, attaching an affidavit by Mr. Tony Decesaro, a Step 3 Grievance Officer for the Colorado Department of Corrections (CDOC). Dkt. #31-1. Mr. Decesaro states in his affidavit that he has reviewed the CDOC's records concerning the filing of grievances by Mr. Ybarra, and "found no grievances at all filed by Mr. Ybarra concerning the above allegations." Dkt. #31-1 at ¶¶ 13-14. Because of Mr. Ybarra's alleged failure to file any grievance related to the Mr. Ybarra's Eighth Amendment claims, the Defendants moved for dismissal for failure to exhaust administrative remedies. Defendants also moved to dismiss Mr. Ybarra's Amended Complaint as time-barred. Mr. Ybarra responded, and attached materials relating to various mental health conditions to support his assertion that the statute of limitations should be equitably tolled. See Dkt. #56 at 19-50. Because both parties asked the Court to consider materials outside the Amended Complaint, this Court determined that the subject motion should be converted to a motion for summary judgment and provided notice to the parties. Dkt. #67. Plaintiff was specifically directed to submit any additional evidence he has with respect to the issues of exhaustion and equitable tolling, id., and subsequently submitted his Brief in Response to Defendants' Converted (In Part) Motion for Summary Judgment. Dkt. #71. Plaintiff attached copies of his mental health records from his time with CDOC and a copy of CDOC Administrative Regulation (AR) 850-04, which addresses grievance procedures to his response. Id.
C. Defendants' Motion to Dismiss
Defendants argue in their motion that Mr. Ybarra's Amended Complaint should be dismissed because he failed to exhaust his administrative remedies, that his claims seeking declaratory relief are moot because he since has been placed in protective custody, that his claims for violation of his constitutional rights are barred by the statute of limitations, and that the named Defendants are entitled to qualified immunity.
The issue of whether Mr. Ybarra exhausted his administrative remedies is a threshold question, Hardeman v. Smith, 764 F. App'x 658, 660 (10th Cir. 2019) (unpublished), and as such, the Court will address that issue first.
II. LEGAL STANDARDS
A. Pro Se Plaintiff
Mr. Ybarra is proceeding pro se. The Court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Summary Judgment
Summary judgment is warranted 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). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). When reviewing motions for summary judgment, a court may not resolve issues of credibility, and must view the evidence in the light most favorable to the nonmoving party—including all reasonable inferences from that evidence. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present "a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
C. Exhaustion of Administrative Remedies under PLRA
The PLRA requires that an inmate exhaust his administrative remedies prior to bringing a suit concerning prison conditions. See 42 U.S.C. § 1977e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.").
"Any prisoner who seeks to bring a claim involving general circumstances or particular episodes of prison life . . . must first exhaust the administrative remedies available to him in prison." May v. Segovia, 929 F.3d 1223, 1226-27 (10th Cir. 2019) (internal quotation marks and citations omitted). "Because the prison's procedural requirements define the steps necessary for exhaustion, an inmate may only exhaust by properly following all of the steps laid out in the prison system's grievance procedure." Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (internal citations omitted). See also Woodford v. Ngo, 548 U.S. 81, 90 (2006) (noting that "proper exhaustion . . . means using all steps that the agency holds out, and doing so properly.") (internal quotation marks and citation omitted). "An 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," and the "doctrine of substantial compliance does not apply." Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (internal quotation marks omitted).
But the PLRA makes explicit that a prisoner must exhaust only available administrative remedies. 42 U.S.C. § 1997e(a). See also Ross v. Blake, 136 S. Ct. 1850, 1855, (2016) ("A prisoner need not exhaust remedies if they are not 'available.'). An available remedy is one "capable of use for the accomplishment of a purpose." See Booth v. Churner, 532 U.S. 731, 737 (2001). "[A]n inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). The Supreme Court in Ross, identified "three kinds of circumstances in which an administrative remedy" is "not capable of use to obtain relief": (1) "when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates; (2) when an administrative scheme is so opaque that "no ordinary prisoner can discern or navigate it"; and (3) "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60.
The failure to exhaust is an affirmative defense. Jones, 549 U.S. at 216. Thus, Defendants bear the burden of asserting and proving that Mr. Ybarra did not use administrative remedies. Id. If they prove that Mr. Ybarra failed to exhaust, the burden shifts to Mr. Ybarra to show that remedies were unavailable. See Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). "'[A] district court cannot dismiss the complaint without first giving the inmate an opportunity to address the issue' unless the complaint conclusively shows a failure to exhaust." Markovich v. Correct Care Solutions, 406 F. App'x 264, 265 (10th Cir. 2010) (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)). Exhaustion of administrative remedies under the PLRA is a question of law for the Court to decide. Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones, 549 U.S. at 211.
III. ANALYSIS
Defendants assert, and Mr. Ybarra admits, that he did not file any formal grievances relating to his request that he be placed in protective custody. Dkt. #31-1 ¶ 14. Defendants argue that even though protective custody decisions are not grievable, the claims asserted by Mr. Ybarra for failure to protect are grievable because he could have submitted a grievance complaining that CDOC officials placed an him in an unsafe environment or failed to protect him from harm from other inmates, which is the nature of the claims Mr. Ybarra asserts in his Amended Complaint.
The CDOC's grievance procedure, which provides a three-step process for inmate grievances, is set forth in AR 850-04. See Dkt. #31-1; Kee v. Raemisch, 793 F. App'x 726, 729 (10th Cir. 2019) (unpublished). The three-step process begins with a formal written grievance, after an informal grievance is made. AR 850-04.
In his Response to Defendants' Motion to Dismiss (Dkt. #56), Mr. Ybarra argues that he submitted an "Informal Complaint at each facility alleging failure to protect claims" but was not able to pursue administrative remedies any further because "Defendant's [sic] at each facility where those claims arose cited CDOC policy stating that protective custody placement is not a grievable issue." Id. at 5 (emphasis in original). Mr. Ybarra further argues that he complied with the requirements of CDOC grievance procedure "as far as that procedure and SCF and CSP staff would allow." Dkt. #71 at 11. Mr. Ybarra states that his informal grievances were returned to him, "indicating that his issues and requested remedy were not grievable." Id. Mr. Ybarra also argues that he requested "immediate removal from general population and placement in PC" because none of the relief that is available under the CDOC grievance procedures would have protected him from the "unsafe conditions of confinement." Id. at 13. With respect to the most applicable relief that was available according to the CDOC AR, "assurance that abuse will not recur," Mr. Ybarra asserts that CDOC officials could not have reasonably assured him that abuse would not continue. Id.
Mr. Ybarra argues that because CDOC policy prohibited him from using the grievance procedure to seek review of his request for protective custody, his Amended Complaint should not be dismissed for failure to exhaust administrative remedies. Unfortunately for Mr. Ybarra, Tenth Circuit and Supreme Court precedent establishes just the opposite:
Even where the "available" remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available. Booth v. Churner, 532 U.S. 731, 739 (2001) (holding that even where an inmate sought money damages and the grievance process did not permit such awards, exhaustion was required as long as there was authority to take some responsive action). The Court held that Congress had eliminated both discretion to dispense with administrative exhaustion and the condition that it be "plain, speedy, and effective." Id. See also Porter v. Nussle, 534 U.S. 516 (2002) ("PLRA's exhaustion requirement applies to all inmate suits about prison life").Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). See also Nellson v. Barnhart, No. 20-cv-00756-PAB, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020) (citing Booth, and noting that "the Supreme Court defines availability as some relief, not all relief, that an inmate seeks.").
Thus, even where the requested remedy—here, for Mr. Ybarra to be placed in protective custody—would appear to be futile, Mr. Ybarra still must exhaust the administrative remedies that were available. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 (10th Cir. 2003) (holding that even though certain matters grieved by the inmate were "non-grievable" under prison policy, the fact that prison authorities did have the power to render some of the relief requested means that available administrative remedies existed). See also Bridgeforth v. Workman, 410 F. App'x 99, 100-01 (10th Cir. Dec. 9, 2010) (unpublished) (Good faith but incomplete efforts to comply with the grievance procedures will not excuse the failure to exhaust).
With respect to the third exception identified by the Supreme Court in Ross, the Tenth Circuit has established a two-prong test for determining whether the grievance process was unavailable because an inmate was misled or threatened into abandoning the grievance procedure. May, 929 F.3d at 1235. To defeat a motion for summary judgment where it is undisputed that an inmate did not exhaust administrative remedies, the inmate must produce "specific facts" as to whether (1) he was actually deterred by the threat or machination from lodging a grievance; and (2) "a reasonable inmate of ordinary firmness and fortitude" would be deterred by the threat or machination from lodging a grievance. Id.
There are no allegations that Mr. Ybarra was threatened or intimidated, which leaves the question of whether he was "misled" or that some "machination" was employed to deter his complaints. Mr. Ybarra states that he submitted several informal grievances requesting protective custody, so he was not deterred from making repeated requests even after he was told that his requested remedy was not available. Mr. Ybarra acknowledges that the AR provide other types of remedies (asking for assurances that abuse will not continue, for example), but argues that those remedies would not help him. Based on the facts currently available to the Court, it is difficult to determine whether Mr. Ybarra was misled into abandoning the grievance procedure, or whether he decided to abandon it because he did not believe that the remedies that were available to him would solve his problem.
Nevertheless, even if Mr. Ybarra's allegations were enough to establish the first prong of the Tenth Circuit's test, Mr. Ybarra has not made any allegations that suggest that other inmates would, or actually have, been reasonably deterred. See Williams v. Borrego, No. 19-cv-00371-RBJ-MEH, 2020 WL 1502296, at *7 (D. Colo. Mar. 30, 2020) (concluding that even though an inmate was thwarted from pursuing his grievance, he was not excused from exhaustion requirement because he failed to allege any facts that would suggest that other inmates would have been deterred). This Court cannot conclude that Mr. Ybarra met the test, and accordingly cannot find that his failure to exhaust should be excused.
This result seems paradoxical and somewhat unfair to an inmate unschooled in the law. If this Judge were writing on a blank slate on this subject, this decision might come out differently. But I am compelled to follow the precedent set by the Tenth Circuit interpreting a law passed by Congress. Based on that precedent, it appears that even if Mr. Ybarra were not entitled to challenge his placement in the general population via the grievance procedure, he was entitled to use that procedure to request other remedies arising out of the failure to protect him from unsafe conditions of confinement that form the basis of his lawsuit. But as he concedes, he did not use the required grievance procedures to complain administratively about the claims he makes in this lawsuit. For that reason, he failed to exhaust his administrative remedies within the meaning of the PLRA.
Because the Court finds that Plaintiff failed to exhaust his administrative remedies, the Court need not address the remaining arguments raised in Defendants' Motion to Dismiss.
IV. RECOMMENDATION
For the reasons set forth above, it is hereby RECOMMENDED that Defendants' Motion to Dismiss Amended Complaint (Dkt. #31) be GRANTED, and that Plaintiff's Amended Complaint be dismissed without prejudice.
If the evidence presented does not create a genuine issue of material fact as to whether Mr. Ybarra's claims were properly exhausted, the claim should be dismissed without prejudice. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (noting that dismissal of unexhausted claims on summary judgment should be without prejudice)). --------
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). Date: July 31, 2020
Denver, Colorado
BY THE COURT
/s/_________
N. Reid Neureiter
United States Magistrate Judge