Opinion
Civil Action 20-cv-00037-RM-MEH
12-21-2020
JABARI J. JOHNSON, Plaintiff, v. GILES, TONCHIE, CARPENTAR, BOOTH, and NURSE VICTORIA RALLENS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Before the Court is the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (“Motion”) (ECF 121) filed by Defendants Giles, Tonchie, and Carpentar(collectively, “CDOC Defendants”). The Motion is fully briefed and has been referred to this Court by District Judge Raymond P. Moore for a recommendation. For the reasons that follow, the Court respectfully recommends that the CDOC Defendants' Motion be granted.
As noted in the CDOC Defendants' Motion, the names of Defendants Todd Tonche and Petra Carpenter are misspelled in the Complaint. When referring to this individual Defendants in this Recommendation, the Court will use the correct spelling.
BACKGROUND
Plaintiff is a prisoner currently housed at Colorado State Penitentiary, who initiated this pro se action on January 6, 2020. On February 11, 2020, Plaintiff filed the operative Amended Prisoner Complaint (“Amended Complaint”) as a matter of course alleging generally that the CDOC Defendants inflicted cruel and unusual punishment stemming from an incident when Defendants Tonche and Carpenter were escorting Plaintiff. Am. Compl. at 6. A partial motion to dismiss was filed on June 22, 2020, and this Court recommended (and Judge Moore adopted) that certain claims and then-Defendant William Scott be dismissed. ECF 43, 85, 96. The CDOC Defendants have now moved for summary judgment, alleging that Plaintiff has not exhausted his administrative remedies.ECF 121. Plaintiff opposes summary judgment, arguing that he did exhuast but that his grievances were stolen. ECF 128.
The Court notes that service has not been completed on Defendant Nurse Victoria Rallens. The Court will subsequently issue an order to show cause as to this Defendant for failure to serve.
STANDARDS OF REVIEW
I. Treatment of Pro Se Pleadings
A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
II. Motion for Summary Judgment
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the moving party has the burden of proof-the plaintiff on a claim for relief or the defendant on an affirmative defense-his[, her, or its] showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)). “In other words, the evidence in the movant's favor must be so powerful that no reasonable jury would be free to disbelieve it. Anything less should result in denial of summary judgment.” Id. at 1154 (quoting 11 Moore's Federal Practice, § 56.40[1][c] (Matthew Bender 3d Ed. 2015)). Only evidence for which the content and substance are admissible may be considered when ruling on a motion for summary judgment. Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324); see Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) (“On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [its] case in order to survive summary judgment.”) (quoting Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
STATEMENT OF UNDISPUTED MATERIAL FACTS
1. On February 13, 2018, Plaintiff was housed at Sterling Correctional Facility (“SCF”). Exh.
A, Use of Force Report, at CDOC/JOHNSON 00001.
2. The CDOC Defendants were all employed as Corrections Officers at SCF at that time. Id.
3. On February 13, 2018 at approximately 9:35 a.m., Defendants Giles and Tonche attempted to escort Plaintiff from the Internal Classification Committee office to Living Unit 4. During that escort, a use of force incident took place. Id. at CDOC/Johnson 00005-06.
4. As a result of that use of force incident, Plaintiff was removed from the general population and convicted of a violation of the Code of Prison Discipline (“COPD”). Exh. B, COPD Case No. 18-1480, at CDOC/Johnson 00042.
5. The Colorado Department of Corrections (“CDOC”) has administrative regulations, including CDOC Administrative Regulation 850-04, allowing inmates within the CDOC to file administrative grievances regarding a broad range of topics, including, but not limited to, allegations that they have been assaulted by a corrections officer, or that they have been improperly denied medical treatment by staff members. Exh. C, DeCesaro Declaration, at ¶ 10; Exh. D, A.R. 850-04 § IV(D)(1).
6. Anthony DeCesaro is an employee of the CDOC, and, as part of his job responsibilities, he investigates and answers Step 3 Grievances filed by inmates along with being the custodian of records for Step 3 grievances. Exh. C at ¶ 3.
7. There is a formal, three-step process for the filing of inmate grievances set forth in AR 850-04. Id. at ¶ 5; see Exh. D, A.R. 850-04 § IV(C)(5).
8. At Step 1, an inmate must seek to resolve any issue or complaint by filing a grievance no later than thirty (30) calendar days from the date the inmate knew, or should have known, of the facts giving rise to the grievance. Exh. C at ¶ 6; Exh. D, AR 850-04 § IV(F)(1)(a).
9. If an inmate is not satisfied with the response to his Step 1 grievance, he must file a Step 2 grievance within five (5) days of receipt of the response to the Step 1 grievance. Exh. C at ¶ 7; Exh. D, AR 850-04 § IV(F)(1)(d).
10. Likewise, an inmate unsatisfied with the response to the Step 2 grievance must file a Step 3 grievance within five (5) days of receipt of the response to the Step 2 grievance. Exh. C at ¶ 7; Exh. D, AR 850-04 § IV(F)(1)(d).
11. The Step 3 grievance is the final step in the CDOC grievance process. Exh. C at ¶ 8.
12. If an inmate fails to file any grievance in accordance with the procedural rules established to govern the grievance process, he has failed to exhaust administrative remedies. Id. at ¶ 9; Exh. D, AR 850-04 § IV(E)(3)(c)(2).
13. As a CDOC inmate, Plaintiff was required to file Step 1, 2, and 3 grievances about his claims in this matter. Exh. C at ¶ 16.
14. Mr. DeCesaro reviewed the CDOC's records concerning the filing of grievances by Plaintiff. Id. at ¶ 17.
15. Mr. DeCesaro was unable to find any grievance filed by Plaintiff regarding the conduct of the CDOC Defendants during the applicable time period for filing such grievances. Id. at ¶ 18.
ANALYSIS
“The burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant.” Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). “Dismissal under § 1997e(a) for failure to exhaust administrative remedies therefore cannot usually be made on pleadings without proof.” Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL 1597953, at *2 (D. Colo. Apr. 6, 2011) (citations omitted).
The PLRA requires the exhaustion of administrative remedies before an incarcerated person may bring an action concerning prison conditions under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a). The Supreme Court determined that “exhaustion is mandatory under the PLRA and [ ] unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (“the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes”). The exhaustion of administrative remedies need not be pleaded in the complaint but must be raised as an affirmative defense. Jones, 549 U.S. at 216. The rules governing exhaustion are not articulated by the PLRA but are defined by the respective prisons' grievance process. Id. at 218. In order to “properly exhaust” in satisfaction of the PLRA's requirements, the plaintiff prisoner must comply with prison grievance procedures. Id. Therefore, according to Jones, claims that have not completed the prison grievance process may not be brought in federal court.
Here, the undisputed facts demonstrate that Plaintiff did not exhaust administrative remedies before he filed this lawsuit on January 6, 2020. Plaintiff argues that his grievances have been stolen in retaliation for his filing of this lawsuit. Resp. at 1. Specifically, Plaintiff accuses “Reginald Johnson[,] the law librarian[,]” of having stolen the grievances. Id. at 2. In his Response, Plaintiff describes three grievances that he claims to have filed. Id. at 1-2. Even if the Court considered these grievances and accepted Plaintiff's description of them as true, these grievances do not concern the conduct or Defendants at issue in this case. To rebut the CDOC Defendants' Motion, Plaintiff relies solely on his allegation that his grievances have been stolen. Plaintiff does not submit an affidavit to that effect despite Fed.R.Civ.P. 56(c)(4) allowing for the filing of affidavits on summary judgment. Moreover, Rule 56(c)(1) states that a party asserting a fact is genuinely disputed must do so by “(1) citing to particular parts of materials in the record, . . . or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute.” Plaintiff has done neither. Therefore, the unrebutted evidence reflects that Plaintiff has failed to exhaust the required administrative remedies, and this Court is barred from hearing Plaintiff's claims. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”); see also Jones, 549 U.S. at 220 (“All agree that no unexhausted claim may be considered.”).
The CDOC Defendants argue (and the Court agrees) that the descriptions of these grievances are hearsay and cannot be considered for purposes of summary judgment. Reply at 2; Fed.R.Evid. 802.
As a final matter, Plaintiff cites Aguilar-Avellaveda v. Terrell for the proposition that an administrative remedy will not be considered available to an inmate if the inmate was prevented from availing himself of the remedy. 478 F.3d 1223 (10th Cir. 2007). In that case, the Tenth Circuit held that courts “are obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.” Id. at 1225. However, the Tenth Circuit in that case considered the dismissal of a complaint at the pleading stage rather than at summary judgment. In this case, the Court can consider additional evidence beyond what Plaintiff pleaded, including Mr. DeCesaro's affidavit. Mr. DeCesaro has declared, under penalty of perjury, that he could not find any record of Plaintiff submitting an appropriate grievance related to this case. Exh. C. at ¶ 18. “A plaintiff seeking to be excused from the exhaustion requirement on [grounds that administrative remedies are unavailable] must do more than make unsupported conclusory allegations of misconduct by prison officials.” Bell v. Ward, 189 Fed.Appx. 802, 803-04 (10th Cir. 2006). Thus, the Court finds that Plaintiff has not adequately demonstrated that the defects in his exhaustion of administrative remedies were not “procured from the action or inaction of prison officials.” Aguilar-Avellaveda, 478 F.3d at 1225.
CONCLUSION
Accordingly, the Court finds that Plaintiff fails to raise a genuine issue of material fact as to whether he fully exhausted administrative remedies, and the CDOC Defendants meet their burden of demonstrating that Plaintiff did not exhaust. As such, the Court respectfully RECOMMENDS that the CDOC Defendants' Motion [filed November 17, 2020; ECF 121] be GRANTED. Plaintiff's Amended Complaint should be dismissed without prejudice as to Defendants Giles, Tonche, and Carpenter due to Plaintiff's failure to exhaust administrative remedies as required by the PLRA.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being 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 fourteen (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. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).