Opinion
Civil Action 1:21-cv-02102-PAB-SKC
08-11-2023
MORGAN FOSTER and RANDALL CURFMAN, Plaintiffs, v. STEPHEN I. VANCAMP, et al. Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 71)
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
While Plaintiffs Morgan Foster and Randall Curfman were housed at the Limon Correction Facility, Defendants Stephen Vancamp, Travis Turano, and Brandon Smith, allegedly assaulted Plaintiffs in violation of the Eighth Amendment prohibition against the excessive use of force. Dkt. 22. According to the Amended Prisoner Complaint, on January 23, 2021, Defendant Turano punched Foster in the face and back of the head (claim two) while Defendant Vancamp struck him with a pepper spray can (claim one). Id. at pp.4-5. At the same time, Defendant Smith allegedly hit Curfman in the head three times with a can of pepper spray (claim three). Id. at p.6. Plaintiffs filed this civil lawsuit asserting an Eighth Amendment claim against each Defendant in their individual capacity and seeking monetary damages. Id.
Because Plaintiffs proceed pro se, the Court liberally construes their filings, but it does not act as their advocate. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Defendants Smith and Turano have filed a motion for summary judgment arguing Plaintiffs' failure to exhaust their administrative remedies.Dkt. 71. Despite actively participating in this case in its early stages, neither Plaintiff filed a response to the summary judgment motion. The Court has reviewed the Amended Complaint, the motions and its exhibits, and the applicable law. No hearing is necessary. For the following reasons, the Court RECOMMENDS Defendants' Motion for Summary Judgment be GRANTED.
Despite two attempts, the United States Marshal was unable to serve Defendant Stephen Vancamp. He no longer works for the Colorado Department of Corrections and no longer lives at the address provided by the CDOC. Consequently, Defendant Vancamp has not appeared in this case.
STANDARD OF REVIEW
Summary judgment is appropriate only 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.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).
Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury, or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).
ANALYSIS
The Prison Litigation Reform Act requires incarcerated persons to exhaust administrative remedies before filing a civil rights action. The statute provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by [any individual] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all suits concerning prison life, whether they involve general circumstances or specific episodes. Woodford v. Ngo, 548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001) (incarcerated persons must exhaust administrative remedies before filing a lawsuit regardless of the type of relief prayed for in the complaint).
Exhaustion is an affirmative defense, which places the burden on defendants to prove it by a preponderance of the evidence. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). When the affirmative defense of failure to exhaust administrative remedies is raised in a motion for summary judgment, defendants “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). “If the defendant[s] meet[ ] this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact.” Id. “If the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant[s] [are] then entitled to summary judgment as a matter of law.” Id. See also Roberts, 484 F.3d at 1241 (defendants bear the burden of proving their affirmative defense that plaintiff failed to exhaust available administrative remedies).
Defendants Smith and Turano contend they are entitled to judgment in their favor because Plaintiffs did not exhaust their administrative remedies through Step 3. Dkt. 71. The Colorado Department of Corrections provides a formalized three-step administrative remedy process for grievances filed by incarcerated persons. Dkt. 712 at ¶5. The first step requires incarcerated persons to attempt to resolve any issue or complaint by filing a document known as a Step 1 grievance within 30 days from the date that facts giving rise to the grievance are known or should have been known. Id. at ¶6. If the grievant is not satisfied with the response, they must file a Step 2 grievance within five days of receiving the response. Id. at ¶7. Should they be dissatisfied with the outcome of the Step 2 grievance, within five days of receiving the response, they must file a Step 3 grievance-which is the final step. Id. at ¶¶7-8. If an incarcerated person fails to timely prosecute their grievance through Step 3, they will not have successfully exhausted their administrative remedies. Id. at ¶9.
Grievance Officer Anthony DeCesaro attests he reviewed the CDOC's grievance records to determine whether Plaintiffs exhausted their administrative remedies with respect to their Eighth Amendment claims of excessive use of force. Id. at ¶¶17, 22. DeCesaro specifically searched for grievances regarding Plaintiffs' allegations the Defendants assaulted them as described in the Amended Complaint. Id. According to DeCesaro's affidavit, Plaintiff Curfman did not file any grievances concerning his allegations Smith hit him in the head with a pepper spray can three times. Id. at ¶¶18-19. With respect to Plaintiff Foster, DeCesaro attests Foster filed his Step 1 grievance regarding Vancamp's and Turano's actions on November 23, 2021, eight months outside of the time allotted for initiating the grievance procedures. Id. at ¶23. And Foster's Step 2 grievance was filed 28 days after he received the Step 1 response-which was 23 days late. Id. at ¶24
Plaintiffs, for their part, did not respond to the Motion for Summary Judgment. Where a nonmovant “fails to properly address another party's assertion of fact as required by Rule 56(c), the Court may” consider the facts undisputed for purposes of the motion. Fed.R.Civ.P. 56(e). See also Murray v. City of Tahlequah, Okl., 312 F.3d 1196, 1200 (10th Cir. 2002) (plaintiff waived the right to file a response and confessed all facts asserted and properly supported in the summary judgment motion when he failed to respond). The Court does so here. Without a specific showing to the contrary, Defendants' Motion and supporting evidence indisputably demonstrate Plaintiffs failed to complete the three-step grievance process as to any of their assertions of excessive use of force. Consequently, the Court concludes Plaintiffs' failure to exhaust their administrative remedies bars their claims, and therefore, Defendants Smith and Curfman are entitled to judgment in their favor as a matter of law. Hutchinson, 105 F.3d at 564.
On June 20, 2023, this Court observed the Motion for Summary Judgment was mailed to Plaintiff Foster at the Colorado State Penitentiary, where he is currently housed and he presumably received the materials. However, Defendants apparently sent the Motion to Plaintiff Curfman at the wrong address. The Court sent a copy of the Motion and attachments to Plaintiff Curfman at the appropriate address and gave him until July 11, 2023, to respond. He did not.
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For the reasons shared above, the Court RECOMMENDS Defendants' Motion for Summary Judgment, Dkt. 71, be GRANTED.
Be advised 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).