Opinion
Civil Action 1:20-cv-02268-RBJ-KMT
09-15-2021
GAGE RIVERA, Plaintiff, v. QUINTANA, Defendant.
ORDER DENYING MOTION TO DISMISS
R. Brooke Jackson United States District Judge
Mr. Rivera, presently an inmate in the Colorado Department of Corrections, filed this § 1983 lawsuit pro se against a deputy sheriff in the Pueblo County Jail in July 2020. He alleges that while he was incarcerated in the Jail the defendant applied excessive force against him, resulting in serious physical injuries, in violation of his Eighth or Fourteenth Amendment rights. Defendant moved to dismiss the complaint, claiming that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. ECF No. 17. The court referred the motion to United States Magistrate Judge Kathleen M. Tafoya for a recommendation. ECF No. 25.
After reviewing the parties briefs, Judge Tafoya recommended that the motion be denied. ECF No. 30. Plaintiff admits that he started but did not complete the exhaustion process. However, he argues that his failure to exhaust should be excused because jail officials deliberately obstructed his exhaustion attempts by “intimidation and machination, ” including transporting him to the CDOC which made it more difficult for him to complete the Jail's grievance process. Judge Tafoya acknowledged defendant's argument that a prisoner's transfer to another facility does not relieve him of the requirement to fully exhaust his administrative remedies. Id. at 9. However, the cases cited for that proposition were either decided at the summary judgment stage or are otherwise inapposite. She concluded that resolution of those issues was not appropriate at the motion to dismiss stage. Id. at 10-11.
Judge Tafoya advised the parties of their right to file written objections to the recommendation within 14 days after service of a copy of the recommendation. No. objections were filed within that period (or otherwise). “In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)).
The Court has reviewed the relevant pleadings concerning the Recommendation. Based on this review, the Court concludes that the magistrate judge's analyses and recommendations are correct, and that “there is no clear error on the face of the record.” Fed.R.Civ.P. 72 advisory committee's note. Therefore, the Court ADOPTS the Recommendation as the findings and conclusions of this Court.
ORDER
1. The magistrate judge's recommendation, ECF No. 30, is ACCEPTED AND ADOPTED.
2. Defendant's motion to dismiss, ECF No. 17, is DENIED.
3. Plaintiffs letter, ECF No. 31, which the system recorded as a motion, is denied as such. However, the Court acknowledges receipt of the information provided, including his anticipated change of address in November.