Opinion
Civil Action 1:23-cv-00273-NYW-SBP
06-20-2024
GARY SHELDON, Plaintiff, v. BUREAU OF PRISONS, WILLIAMS, Warden, DR. HERBST, Psychology, and J. TERRY, CSO, Mailroom, Defendants.
RECOMMENDATION AND ORDER BY UNITED STATES MAGISTRATE JUDGE
SUSAN PROSE, UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on two dispositive motions: (1) Defendants' Early Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Administrative Remedies, ECF No. 49 (“Motion for Summary Judgment”), and (2) Defendants' Motion to Dismiss, ECF No. 48 (“Motion to Dismiss”). The court considers these motions pursuant to 28 U.S.C. § 636(b) and the order referring them. ECF No. 50. The court concludes that oral argument will not materially assist in the resolution of these matters. Upon review of the motions, the applicable case law, and the entire case file, this court respectfully RECOMMENDS that the Motion for Summary Judgment be GRANTED and the Motion to Dismiss be DENIED as moot. In the alternative, the court RECOMMENDS that the Motion to Dismiss be GRANTED. Relatedly, the court either DENIES or DENIES AS MOOT the various motions docketed at ECF Nos. 53, 66, and 76.
BACKGROUND
On April 7, 2016, Mr. Sheldon was convicted of receipt and distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1), and sentenced to 188 months in prison and a life term of supervised release. United States v. Sheldon, No. 6:15-cv-03073-BP-1 (W.D. Mo.), ECF No. 34 (Judgment) at 2, 4. This is Mr. Sheldon's second prison term for a child pornography conviction. In January 2001, he was sentenced to 27 months' imprisonment, followed by three years of supervised release, for sexual exploitation of minors in violation of 18 U.S.C. § 2252. United States v. Sheldon, 6:00-cr-03066-SOW-1 (W.D. Mo.), ECF No. 26 (Judgment). Mr. Sheldon currently is incarcerated at the Federal Correctional Institution Englewood (“FCI Englewood”) in Littleton, Colorado.
The court may take judicial notice of filings in related cases, “both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). In addition, the court also may take judicial notice of undisputed court documents and matters of public record as facts “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (citation omitted) (noting that under Federal Rule of Evidence 201, judicial notice may be taken “whether requested or not,” and “at any stage of the proceeding”).
I. Mr. Sheldon's Correctional Management Plan
The Federal Bureau of Prisons (“BOP”) has placed Mr. Sheldon on a Correctional Management Plan, or “CMP,” as authorized in BOP policy. See BOP Program Statement 5324.10, Sex Offender Programs (Feb. 15, 2013), available at https://www.bop.gov/policy/progstat/5324010.pdf.); see also ECF No. 19 (Second Amended Complaint) (“Compl.”) at 5-6. The purpose of a CMP is to assist staff in detecting and minimizing “risk-relevant behavior” by sex offenders housed in BOP institutions:
The court may take judicial notice of BOP Program Statements. United States v. Tidzump, 841 F.3d 844, 845 n.1 (10th Cir. 2016).
4.1. Purpose. Effective management of sexual offenders in prison requires accurate assessment of risk-relevant behavior and the implementation of modifications and restrictions in property, mail, correspondence, and visitation to minimize risk of reoffense. Modifications and restrictions will be specified in an individualized Correctional Management Plan (CMP) upon completion of an Initial Risk Assessment.Program Statement 5324.10 at 28. “Risk-relevant behavior” may be detected during routine security operations like mail monitoring and review of incoming publications. Id. § 4.3.
In the operative complaint in this matter, Mr. Sheldon complains that officials at FCI Englewood are “improperly applying the CMP” to him and that his CMP is “an impermissible expansion” of Program Statement 5324.10. Compl. at 5-6. Mr. Sheldon was placed on the CMP at FCI Seagoville, a BOP facility in Texas, on October 30, 2018. ECF No. 48-3. The CMP reflects that, during a routine cell search, Mr. Sheldon was found “in possession of a substantial amount of risk-relevant materials covering a variety of sexual behaviors,” including “provocatively posed” female models, some “dressed to appear as adolescents.” Id. at 2-3 (further detailing pornographic materials in Mr. Sheldon's possession, including sexual images of females in “intense distress”). A prison psychologist determined that Mr. Sheldon's “conduct suggests problems with . . . empirically-supported risk factors for reoffending: sexual preoccupation, deviant sexual interests, and intimacy deficits,” and so the CMP was implemented “to create conditions which will modify [his] behavior in the interest of promoting effective self-control skills, thereby reducing [his] recidivism risk” and to ensure “the good order, discipline and security of the institution and to protect the public.” Id. at 3. The CMP imposes restrictions on Mr. Sheldon's personal property, including access to materials depicting children, and his contact with the general public, including businesses “that sell sexually provocative or otherwise risk-relevant materials.” Id.
Because Mr. Sheldon appears pro se, the court “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, the court's “role is not to act as [a pro se litigant's] advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Neither will it “construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). Moreover, the court applies the same procedural rules and substantive law to Mr. Sheldon as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2008); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1235-36 (D. Colo. 2012).
In evaluating Mr. Sheldon's complaint, the court may properly consider his CMP, ECF No. 483, a document he refers to in his complaint and which is central to his claims. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (court may consider “documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity”) (quoting Jacobsen v. Desert Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). Here, a BOP official has verified the authenticity of the CMP, see Reichert Decl., ECF No. 48-1 ¶ 2, and Mr. Sheldon has raised no objection concerning its authenticity.
The CMP delineates that removal of the plan will be considered when Mr. Sheldon “demonstrate[s] a minimum of one year of clear conduct with no violations of the Plan.” Id. at 4. At this time, over five years after its implementation in October 2018, the CMP remains in place.
II. Mr. Sheldon's Lawsuits Challenging the CMP
Mr. Sheldon has challenged the CMP in federal court no less than four times, including in the current action before this court.
The First Texas Case . Mr. Sheldon filed a lawsuit seeking to override the CMP in August 2019. See Sheldon v. Underwood, et al., No. 3:19-CV-02041-M-BH (N.D. Tex.) (the “First Texas Case”). In the First Texas Case, Mr. Sheldon challenged his “classification as ‘sexual offender'” and the related imposition of the CMP. First Texas Case, Second Amended Complaint, ECF No. 40. Specifically, he urged-precisely as he does in the instant litigation- that the term “sexual offender” in Program Statement 5324.10 is different from “sex offender,” and that his conviction for the “passive ‘possession,' of contraband pictures of minors” makes him a “sex offender” who cannot be subject to a CMP. Id. at 9 (underlined emphasis in original; other emphasis added). Emphasizing these semantic distinctions, Mr. Sheldon alleged that his placement on a CMP, and the resulting confiscation of materials deemed by prison officials to contravene the CMP, violated his constitutional rights in myriad ways. Id. at 9-21. See also Sheldon v. Underwood, No. 3:19-CV-02041-M-BH, 2022 WL 1651463, at *1-2 (N.D. Tex. Apr. 29, 2022), report and recommendation adopted, 2022 WL 1644443 (N.D. Tex. May 24, 2022) (describing confiscation of materials from Sheldon following the imposition of the CMP, including “sexually graphic stories,” “150 images of scantily clad and provocatively posed women,” binders containing “erotica and images depicting pornography,” and “sexually explicit pictures and writings”) (citing ECF No. 40). Mr. Sheldon sought to enjoin prison officials “to follow policy and law that P5324.10 be only properly applied, that he be afforded due process of law in that determination, and that Defendant prison officials only impose a CMP, interfere with mail, confiscate mail and property, expose someone to disciplinary action, etc., where such due process protections are ensured.” Sheldon v. Underwood, 2022 WL 1651463, at *4 (quoting ECF No. 40 at 22).
Mr. Sheldon omitted the First Texas Case, as well as the Second Texas Case and District of Columbia Case discussed below, from his list of previous lawsuits in the operative complaint here. See Compl. at 9-10.
The court in the First Texas Case rejected Mr. Sheldon's claims in their entirety, dismissing them with prejudice under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. Sheldon, 2022 WL 1651463, at *8; see also 2022 WL 1644443, at *1 (adopting findings and recommendation of Magistrate Judge in dismissing case with prejudice). Mr. Sheldon appealed that decision to the Fifth Circuit Court of Appeals, but the appeal was dismissed after Mr. Sheldon failed to pursue it. First Texas Case, ECF No. 59 (Fifth Circuit order of dismissal).
The District of Columbia Case. Mr. Sheldon also took up the CMP issue in the form of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Sheldon v. Zook, No. 1:22-cv-01868 (UNA), 2022 WL 3139021 (D.D.C. July 28, 2022). In that habeas action, Mr. Sheldon again “challenge[d] his classification as a sexual offender under PS 5324.10.” Id. at *1. He argued “that, as a result of this classification, respondents have violated his constitutional rights and the Administrative Procedure Act by assigning him to a Correctional Management Plan and have also unjustly subjected him to disciplinary sanctions for refusing to adhere to the CMP's requirements.” Id. (cleaned up) (citing ECF No. 4).
The court rejected Mr. Sheldon's challenges to his classification as a sexual offender and the imposition of his CMP, finding that his claims must be dismissed on res judicata grounds:
Petitioner has already, and recently, presented a nearly identical challenge in the United States District Court for the Northern District of Texas. See Sheldon v. Underwood, et al., 3:19-CV-2041-M-BH (filed Aug. 27, 2019). The Northern District of Texas dismissed that matter with prejudice, as frivolous and for failure to state a claim, on May 24, 2022, see at Dkt, ECF Nos. 49, 52, 53-54, and
petitioner has since appealed that decision to the United States Court of Appeals for the Fifth Circuit, where it is still currently pending, see id. at ECF No. 6 (Notice of Appeal filed June 1, 2022).Id. (italicized emphasis in original; bolded emphasis added). The court found that Mr. Sheldon could not escape the preclusive effect of res judicata by means of his “general invocation of the APA in his petition, and his specific invocation in his memorandum[.]” Id. at 2 (observing that the preclusive effect of res judicata could not be avoided “by raising a different legal theory or seeking a different remedy tha[n] was available to him in the prior action.” Id. (citing U.S. Indus. Inc. v. Blake Constr. Co., 765 F.2d 195, 205 (D.C. Cir. 1985)). “Put simply, because petitioner's claims were brought or could have been brought in his prior lawsuit, they are now barred.” Id.
Neither was the court moved to entertain Mr. Sheldon's repetitive claims because, at that time, an appeal to the Fifth Circuit was pending. The court noted that “[d]istrict courts have the discretion to dismiss a pending action when faced with parallel litigation of factually related actions filed in two separate forums.” Id. (quoting Stone & Webster, Inc. v. Ga. Power Co., 965 F.Supp.2d 56, 60 (D.D.C. 2013), aff'd, 779 F.3d 614 (D.C. Cir. 2015)). This discretion, the court found, was of “particular importance” in Mr. Sheldon's case, where “lurking underneath the surface is more than a hint of forum-shopping.” Id. (cleaned up) (quoting Lockey v. Fudge, No. 1:20-cv-03193 (TNM), 2021 WL 2514685, at *4 n.8 (D.D.C. June 17, 2021) (dismissing case and noting that the plaintiff's “lack of success” in another district court did not justify the filing of “related litigation” in that district)).
The Second Texas Case. In another habeas action-this one filed in the Northern District of Texas-Mr. Sheldon complained about the loss of good-conduct time associated with various incident reports issued at FCI Seagoville for non-compliance with the CMP. Sheldon v. Zook, No. 3:20-CV-33357-B-BH, 2023 WL 6219398 (N.D. Tex. Sept. 6, 2023), report and recommendation adopted, 2023 WL 6219893 (N.D. Tex. Sept. 25, 2023). He simultaneously alleged “various constitutional due process and First Amendment violations that ‘are all due to the wrongful classification' of Petitioner as a sex offender.” Id. at *5. The court noted that these claims did not challenge the fact or duration of his confinement, rendering them improper subjects for a habeas petition, and that Mr. Sheldon previously had “raised constitutional due process and First Amendment challenges to his BOP classification and resulting CMP placement in a prior civil action that was dismissed with prejudice.” Id. (denying relief under 28 U.S.C. § 2241) (citing the First Texas Case).
Mr. Sheldon appears to have brought even more cases (in addition to the current litigation) objecting to the limitations and monitoring protocols imposed in the CMP. As the court in the Second Texas Case observed:
Petitioner also has filed multiple lawsuits in other district courts raising the same or similar claims and arguments against various defendants and respondents. See, e.g., Sheldon v. Williams, No. 1:23-cv-00273-SBP (D. Co. Jan. 30, 2023) [this case]; Sheldon v. Zook, No. 1:22-cv-01868, 2022 WL 3139021 (D.D.C. July 28, 2022); Sheldon v. Sanders, No. 6:19-cv-03213-MDH (W.D. Mo. June 10, 2019); Sheldon v. Sanders, No. 6:17-cv-03335-MDH (W.D. Mo. Oct. 19, 2017); Sheldon v. Sanders, No. 6:17-CV-03119-BP-P, 2017 WL 6813719 (W.D. Mo. Oct. 10, 2017).Sheldon v. Zook, 2023 WL 6219398, at *5 n.7.
The instant case. In the case now before this court, as in the Texas and District of Columbia Cases, Mr. Sheldon complains that he cannot be placed on a CMP because he is a “ sex offender” and not a “sexual offender”; therefore, he contends, the BOP has engaged in an “impermissible expansion” of Program Statement 5324.10. Compl. at 6-8. This “wrongfull [sic] application of the Correctional Management Plan” to him has resulted in “psychology staff' reviewing-and, apparently, rejecting-incoming publications Mr. Sheldon wants to receive. Id. at 5.
Based on these allegations, Mr. Sheldon initially brought two claims in this matter, one styled as “APA Violations” and the other entitled “The CMP is an Impermissible Expansion of Bureau Regulation PS5324.10.” Id. at 6. On initial review, this court narrowed the scope of Mr. Sheldon's claims, dismissing the APA claim without prejudice for lack of subject matter jurisdiction and dismissing with prejudice any claims against the individual defendants in their individual capacities for injunctive relief. See ECF No. 23 at 2; see also 28 U.S.C. § 1915A(b)(1) (“On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted.”).
The only claim the court allowed to proceed is an official-capacity First Amendment claim seeking prospective relief. ECF No. 23 at 2. To support that claim, Mr. Sheldon alleges that, because of the CMP, FCI Englewood mailroom officials forward his mail to a prison psychologist for screening-when, in Mr. Sheldon's view, federal law and administrative regulations allow only the warden or mailroom officials to review his mail. Compl. at 5. Further, Mr. Sheldon contends that “Psychology” misapplies BOP regulations and federal law in “‘interpreting' what they deem to be sexually explicit or contain nudity,'” and therefore wrongfully rejects material and sanctions Mr. Sheldon for soliciting such material contrary to the CMP. Id. Mr. Sheldon demands that the court issue an injunction ordering the BOP “to adhere to BOP regulations, federal regulations and the appropriate statute.” Id. at 11.
Defendants filed two dispositive motions. In their early Motion for Summary Judgment, they argue that that this action cannot proceed because Mr. Sheldon failed to complete the BOP's mandatory exhaustion process before filing this lawsuit, and that his improperly-exhausted remedy would not have exhausted the specific claim he brings in this lawsuit in any event. See generally ECF No. 49. Defendants simultaneously moved to dismiss Mr. Sheldon's First Amendment claim on two grounds: (1) that he previously raised a claim challenging CMP mail screening procedures that was dismissed with prejudice in the First Texas Case and cannot be relitigated here, and (2) that he has failed to plead facts plausibly showing that the mail-screening process under the CMP violates his First Amendment rights. See generally ECF No. 48.
The court next addresses both dispositive motions, in turn.
ANALYSIS
I. Motion for Summary Judgment
A. Legal Standard
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)). “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, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends on whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving 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 FirstNat'lBank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
When the moving party bears the burden of proof-as Defendants do on the affirmative defense of failure to exhaust administrative remedies-“the moving party must establish, as a matter of law, all essential elements of the [affirmative defense on which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008)).
In reviewing a motion for summary judgment, the court views all facts and draws all reasonable inferences in favor of the non-moving party. DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017). “Even so, the non-movant . . . must ‘marshal[ ] sufficient evidence' requiring submission to the jury ‘to avoid summary judgment.'” Id. (quoting Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1281 (10th Cir. 2015)). Ultimately, the court may not enter summary judgment unless a defendant carries its burden under Rule 56 of the Federal Rules of Civil Procedure. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002); see also Fed.R.Civ.P. 56(a).
B. Undisputed Material Facts
The court draws the following undisputed material facts from the record:
1. Mr. Sheldon is a BOP inmate currently incarcerated at FCI Englewood. ECF No. 49-1 ¶ 11.
2. This court has narrowed Mr. Sheldon's claims in this action to a First Amendment claim seeking injunctive relief relating to the alleged misapplication of BOP regulations and federal law in screening his mail pursuant to the CMP. ECF No. 22 at 8-9; ECF No. 23.
This court explicitly declined to address on initial screening whether this claim is barred by res judicata. ECF No. 22 at 8 n.5.
3. Mr. Sheldon asserts that he exhausted this claim through the BOP's Administrative Remedy Program by means of Remedy Number 1134494. Compl. at 5. No other remedies Mr. Sheldon has filed since his arrival at FCI Englewood in February 2022 are related to Mr. Sheldon's claim in this case. ECF No. 49-1 ¶ 16.
4. Remedy Number 1134494-R1 was an appeal of a finding by a BOP Discipline Hearing Officer (“DHO”), in which the DHO found that Mr. Sheldon had committed a disciplinary offense because he had solicited materials prohibited by the CMP by attempting to have such materials sent to another BOP inmate incarcerated at FCI Englewood. ECF No. 49-6 at 3 (statement by Mr. Sheldon to a seller that Mr. Sheldon was “having all my orders going to [referenced inmate],” and inquiring whether the seller “still offer[s] stories too?”).
DHO appeals are submitted directly to the Regional Director, omitting the institution-level step of the administrative-remedy process, as further described below.
Apparently, the other inmate-who is listed on BOP's inmate locator as being incarcerated at FCI Englewood-is not on a CMP.
5. Remedy Number 1134494-R1 was rejected on September 27, 2022, because Mr. Sheldon did not include a copy of the DHO report with his remedy. ECF No. 49-3 at 35.
6. Mr. Sheldon then refiled the remedy as Remedy Number 1134494-R2, which was received in the BOP's Regional Office on October 11, 2022. ECF No. 49-1 ¶ 15; ECF No. 49-4 at 5.
7. In Remedy Number 1134494-R2, Mr. Sheldon argued that the DHO sanctions “implicated double jeopardy and due process,” and that the terms of his CMP terms are “contrary to bureau regulations” and an “impermissible expansion of [Program Statement] 5324.10” because he has not been convicted of a “sex offense.” ECF No. 49-4 at 10.
8. On November 7, 2022, the Regional Director denied Remedy Number 1134494-R2, finding that Mr. Sheldon had received due process during the disciplinary proceedings and that the DHO's decision was “based on the greater weight of the evidence,” including “the eyewitness account of the reporting staff, letter, and Correctional Management Plan. This evidence, coupled with [Mr. Sheldon's] decision not to present credible or verifiable exculpatory evidence which may have exonerated [him] from the charge, reasonably led the DHO to make a guilty finding.” ECF No. 49-4 at 4.
9. Mr. Sheldon appealed the Regional Director's denial to BOP's General Counsel in its Central Office-the final level of the administrative remedy process-in Remedy Number 1134494-A1. ECF No. 49-1 ¶ 16; ECF No. 49-7 at 4. Mr. Sheldon dated his remedy December 16, 2022, ECF No. 49-7 at 4, but it is stamped as having been received by BOP's General Counsel on December 27, 2022. Id.
10. Mr. Sheldon filed this action on January 30, 2023, ECF No. 1, more than forty days after the December 16, 2022 date he placed on Remedy Number 1134494-A1, but only thirty-four days after December 27, 2022-the date on which the General Counsel in BOP's Central Office recorded having received the remedy.
C. Analysis
Defendants move for summary judgment on the affirmative defense of failure to exhaust, raising a two-tiered argument: that Mr. Sheldon failed to exhaust his administrative remedies prior to bringing this suit, but that even if the relevant remedy had been timely exhausted, it would not serve to exhaust Mr. Sheldon's remaining claim in this case. The question of whether a prisoner plaintiff has exhausted administrative remedies is a matter of law for the court to decide, Harms v. IRS, 321 F.3d 1001, 1009 (10th Cir. 2003), and so the court finds it appropriate to resolve that threshold issue at this early stage of the proceedings. See, e.g., Valentine v. Fed. Bureau of Prisons, No. 22-cv-00161-NYW-MDB, 2023 WL 5309924 at *4 (D. Colo. Aug. 14, 2023) (granting early motion for summary judgment based on plaintiff's failure to exhaust administrative remedies).
As reflected in Valentine and numerous other cases considering early motions for summary judgment in the failure-to-exhaust context, this court respectfully rejects Mr. Sheldon's contention that it should “stay” its consideration of the Motion for Summary Judgment to enable him “to discover necessary evidence to support the assertions made in the operative complaint.” Plaintiff's Motion to Stay Defendant's Motion for Summary Judgment, ECF No. 66 at 1-2. The facts pertinent to the court's resolution of the Motion for Summary Judgment do not turn on the allegations in his complaint, but rather on the undisputed administrative record concerning exhaustion. Mr. Sheldon has submitted no “affidavit or declaration” establishing that he cannot present facts essential to his opposition to summary judgment, see Fed.R.Civ.P. 56(d), nor does he argue that there is any omission in the record concerning exhaustion that Defendants have presented to this court. Furthermore, this court discerns no such omission.
The court first analyzes the statutory framework and regulations applicable to Mr. Sheldon's claim, including the Prison Litigation Reform Act (“PLRA”) and the BOP's Administrative Remedy Program, then considers whether Defendants have met their burden for purposes of summary judgment.
1. Statutory and Regulatory Framework
Prison Litigation Reform Act . In the PLRA, Congress “impos[ed] a strict administrative-exhaustion requirement . . . [on] civil-rights claims filed by prisoners.” Pakdel v. City and Cnty. of S.F., 594 U.S. 474, 481 (2021) (per curiam) (citing 42 U.S.C. § 1997e(a)). That section unequivocally provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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.” 42 U.S.C. § 1997e(a). As the Supreme Court has emphasized, “that language is ‘mandatory.'” Ross v. Blake, 578 U.S. 632, 638, 641 (2016) (“An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.”) (citing Woodfordv. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer left to the discretion of the district court.”)); Gray v. Sorrels, 818 Fed.Appx. 787, 791 (10th Cir. 2020) (“[T]he district court is not authorized to dispense with [the statutory exhaustion requirement].”). “There is no question that . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (“All agree that no unexhausted claim may be considered.”). This exhaustion-first mandate “allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Id. at 204.
Exhaustion “requires compliance with ‘deadlines and other critical procedural rules,' Woodford, 548 U.S. at 90-91, with no exceptions for ‘special circumstances.'” Ramirez v. Collier, 595 U.S. 411, 421 (2022); see also, e.g., Ross, 578 U.S. at 639 (“[T]he PLRA's text suggests no limits on an inmate's obligation to exhaust-irrespective of any ‘special circumstances.'”); McNeil v. United States, 508 U.S. 106, 111, 113 (1993) (stating “[w]e are not free to rewrite the statutory text” when Congress has strictly barred “claimants from bringing suit in federal court until they have exhausted their administrative remedies”). Exhaustion must be completed “in accordance with the applicable procedural rules”-rules which “are not defined by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Thus, “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) (citing Woodford, 548 U.S. at 90). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim [or any other federal claim] under [the] 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).
A prisoner is required to exhaust only “available” administrative remedies. 42 U.S.C. § 1997e(a). An available remedy is one “capable of use for the accomplishment of a purpose.” Booth v. Churner, 532 U.S. 731, 737 (2001). An administrative remedy is unavailable “when a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation,” Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011), or “[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy.” Little, 607 F.3d at 1250; see also Ross, 578 U.S. at 643-44 (outlining three situations in which failure to exhaust is excusable because an administrative remedy is unavailable). This court is “obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Once Defendant demonstrates that Mr. Sheldon did not exhaust his administrative remedies, the onus is on Mr. Sheldon “to show that remedies were unavailable to him.” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel, 660 F.3d at 1254); see also Williams v. Borrego, No. 19-cv-00371-RBJ-MEH, 2020 WL 1502296, at *7 (D. Colo. Mar. 30, 2020) (noting that inmates face a “high bar to show unavailability”) (citing May, 929 F.3d at 1235; Tuckel, 660 F.3d at 1251), aff'don other issues sub nom. Williams v. Hansen, 5 F.4th 1129 (10th Cir. 2021).
The BOP Administrative Remedy Program. The BOP maintains a four-tiered Administrative Remedy Program for inmate grievances which is codified at 28 C.F.R. §§ 542.10 et seq. The first tier requires informal resolution with prison staff, which the prisoner requests with a form commonly known as a BP-8. See 28 C.F.R. § 542.13(a). The regulations allow the prisoner twenty days from the date of the incident to complete the informal resolution and file a formal Request for Administrative Remedy, if necessary. See id. § 542.14(a). The prisoner must submit the formal inquiry, known as a BP-9 request, to the warden at the institution where the prisoner is incarcerated. Id. If dissatisfied with the warden's response, the prisoner may appeal to the Regional Director by filing a Regional Office Administrative Remedy Appeal, also known as a BP-10 request, within twenty days of the warden's dated response. Id. § 542.15(a). The Regional Director has thirty calendar days to respond to a BP-10. Id. § 541.18. Finally, the prisoner may file a Central Office Administrative Remedy Appeal, known as a BP-11 request, with the BOP's Office of General Counsel within thirty days of the Regional Office's denial. Id. § 542.15(a). The General Counsel has forty days to respond. Id. § 542.18. At any level, an official's failure to respond within the time allotted constitutes a denial of the request or appeal. 28 C.F.R. § 542.18.
The BOP maintains records of complaints filed by inmates under its Administrative Remedy Program in a database known as SENTRY. See ECF No. 49-1 at 2 n.1. Defendants supplied, through the Declaration of Kara Reichert, a BOP employee working as a legal assistant at the Federal Correctional Complex in Florence, Colorado, an account of the history of Mr. Sheldon's Remedy Number 1134494-the remedy by which Mr. Sheldon sought to exhaust his remedies related to the claim in this action.
2. Application
Because failure to exhaust administrative remedies is an affirmative defense, Defendants bear the initial burden of establishing their prima facie case of failure to exhaust. If Defendants satisfy this requirement, the burden shifts to Mr. Sheldon to excuse his failure to comply with the procedures set forth in the regulations governing the Administrative Remedy Program. Defendants posit that they are entitled to summary judgment on the theory that Mr. Sheldon failed to fully complete the exhaustion process before filing the instant case. According to Defendants, this failure timely to exhaust precludes Mr. Sheldon from pursuing his claim against Defendants. The court respectfully agrees with Defendants.
The undisputed material facts demonstrate that Mr. Sheldon, a BOP inmate, is subject to the grievance procedures established in the Administrative Remedy Program; that he was aware of these procedures and faced no barriers to utilizing them; and that he did not complete the obligatory exhaustion process before filing this lawsuit because of his premature filing at the final level of appeal. Indeed, Mr. Sheldon makes no attempt to dispute these facts, see ECF Nos. 60 and 75, and so the court deems them admitted. Fed.R.Civ.P. 56(e)(2) (“[i]f a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion”); see also, e.g., Cox v. Zavislan, No. 11-cv-02554-RM-MEH, 2014 WL 5477794, at *4 (D. Colo. Oct. 23, 2014) (“[T]he Court cannot overlook Plaintiff's failure to admit or deny the facts contained in Defendants' statement of undisputed facts. Rather, those facts are deemed admitted, and the Court must enter summary judgment in Defendants' favor if it is appropriate under the facts and authorities before the Court.”). Instead, Mr. Sheldon urges a pragmatic approach, arguing that it makes no “rational sense” to dismiss his complaint without prejudice because “[t]he outcome would be the same”: the General Counsel ultimately denied his appeal in June 2023 and he would simply reinitiate this suit. See ECF No. 60 at 2; ECF No. 75 at 2-3.
Mr. Sheldon filed a second response addressing the Motion for Summary Judgment without seeking the court's leave. Regardless, in light of Mr. Sheldon's pro se status, the court has considered both responses.
The court recognizes that Defendants' exhaustion argument, on its face, appears highly technical. The undisputed material facts show that Mr. Sheldon filed this lawsuit forty-five days after the December 16, 2022 date of his appeal in Remedy Number 1134494-A1. See Undisputed Material Facts 9-10. But the trouble for Mr. Sheldon is that the General Counsel's forty-day response window commences not on the date denoted in the prisoner's appeal, but “on the date [the appeal] is logged into the Administrative Remedy Index as received” 28 C.F.R. § 542.18 (“If accepted, a Request or Appeal is considered filed on the date it is logged into the Administrative Remedy Index as received.”) (emphasis added). Here, there is no dispute that Mr. Sheldon filed this lawsuit on January 30, 2023-only thirty-four days after the December 27, 2022 date on which it was “logged into the Administrative Remedy Index as received.” Undisputed Material Fact 10. Had Mr. Sheldon waited just six more days, the timing aspect of Defendants' exhaustion argument would be to no avail. See 28 C.F.R. § 542.18 (General Counsel has forty days from “logged” date to respond).
In this realm, though, the technical requirements of the PLRA prevail. The law is clear that Mr. Sheldon is required to exhaust his administrative remedies-and exhaust them completely-before seeking judicial relief. The PLRA is unequivocal that “[n]o action shall be brought . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). And “[s]ince the PLRA makes exhaustion a precondition to filing a suit, an action brought before administrative remedies are exhausted must be dismissed without regard to concern for judicial efficiency.” Ruppert v. Aragon, 448 Fed.Appx. 862, 863 (10th Cir. 2012) (holding that plaintiff's claim was properly dismissed for failure to exhaust administrative remedies even though the prison finished its review of the incident giving rise to the plaintiff's claim by the time the case was “ripe for decision”) (citations omitted; emphasis in original); see also May, 929 F.3d at 1229 (inmate's failure to exhaust before filing suit not cured by filing amended complaint after exhausting); Snyder v. Harris, 406 Fed.Appx. 313, 317 (10th Cir. 2011) (“An inmate is not permitted to complete the administrative exhaustion process after he files suit.”) (emphasis in original); Little, 607 F.3d at 1249 (under the PLRA, “a prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison conditions in federal court”) (emphasis in original); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“An inmate who begins the grievance process but does not complete it is barred from pursuing a . . . claim under [the] PLRA for failure to exhaust his administrative remedies.”). Courts in this district have meticulously implemented this pre-filing exhaustion mandate. See, e.g., Hill v. Ciolli, No. 23-cv-02539-CNS-KAS, 2024 WL 2749652, at *5 (D. Colo. May 29, 2024); Nellson v. Barnhart, No. 20-cv-00756-PAB-NYW, 2020 WL 6204275, at *2 (D. Colo. Oct. 22, 2020); Susinka v. Trujillo, No. 19-cv-02190-PAB-MEH, 2020 WL 13849624, at *4 (D. Colo. Aug. 24, 2020), report and recommendation adopted, 2020 WL 13849625 (D. Colo. Sept. 22, 2020); Soto v. Matthews, No. 18-cv-02319-KMT, 2020 WL 1183365, at *4 (D. Colo. Mar. 12, 2020); Jones v. Santini, No. 17-cv-01231-PAB-MEH, 2018 WL 272178, at *4 (D. Colo. Jan. 2, 2018), report and recommendation adopted, 2018 WL 1224890 (D. Colo. Mar. 8, 2018); Williams v. Wilcox, No. 13-cv-03249-RM-CBS, 2015 WL 4881211, at *3 (D. Colo. Aug. 17, 2015); Horton v. Davis, No. 12-cv-00349-REB-BNB, 2013 WL 500482, at *1 (D. Colo. Feb. 11, 2013).
Importantly, the obligation to strictly adhere to the pre-filing exhaustion requirement may not be discounted as mere form-over-substance, as Mr. Sheldon suggests. As the Supreme Court has emphasized, “the benefits of exhaustion . . . include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones, 549 U.S. at 219. This court lacks authority to deprive either party of these useful benefits, nor would it be inclined to do so if afforded that discretion.
In sum, Mr. Sheldon indisputably commenced this lawsuit without waiting the required forty days for the General Counsel's response to his appeal. Because Mr. Sheldon is “not permitted to exhaust administrative remedies during the pendency of litigation,” Nellson, 2020 WL 6204275, at *2, the court finds that he failed to exhaust his administrative remedies prior to filing this lawsuit and that he similarly has failed to sustain his burden of showing that the administrative remedy process was not available to him. The court therefore respectfully RECOMMENDS that the Motion for Summary Judgment be granted. Further, while the court recognizes that, “[o]rdinarily, a dismissal based on a failure to exhaust administrative remedies should be without prejudice,” see Gallagher, 587 F.3d at 1068 (emphasis in original), the court finds it appropriate to recommend dismissal with prejudice here because Mr. Sheldon's claim is barred by res judicata and cannot properly be refiled, even if ultimately exhausted. The court further explains this aspect of its reasoning below.
Because the court decides the exhaustion issue on the timing component of Defendants' failure-to-exhaust argument, it does not address Defendants' second contention that Mr. Sheldon failed to raise the First Amendment claim he brings here during the administrative-remedy process.
II. Motion to Dismiss and the Res Judicata Issue
Defendants' Motion to Dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6), seeks dismissal of Mr. Sheldon's First Amendment claim on two grounds: (1) res judicata precludes the claim, and (2) Mr. Sheldon has not plausibly alleged a violation of the First Amendment. Motion to Dismiss at 5-11. Because this court finds that the claim should be dismissed for failure to exhaust administrative remedies, the Motion to Dismiss may be denied as moot. However, because this court's recommendation to dismiss the claim with prejudice is informed by its conclusion that Mr. Sheldon's claim, even if exhausted, cannot be relitigated here, the court briefly addresses the merits of the Motion to Dismiss insofar as it argues that Mr. Sheldon's claim is barred by res judicata. Additionally, if Judge Wang were to reject this court's recommended ruling on the exhaustion issue, this court respectfully submits that the preclusive effect of prior litigation provides an independent reason to dismiss Mr. Sheldon's First Amendment claim with prejudice.
Mr. Sheldon's First Amendment claim in this action is substantively identical to the other claims he raised in the First Texas Case (and the claims he tried to bring in the District of Columbia and Second Texas Cases and possibly other federal actions). Here, as in this prior litigation, he attacks his placement on a CMP-emphasizing the supposed distinction between “sex offender” and “sexual offender”-and the CMP monitoring protocols that prevent him from accessing mail and other publications designed to detect and defuse his “risk-relevant” behavior. In the instant case, just as in the First Texas Case, Mr. Sheldon seeks an injunction “requiring that BOP staff administer his CMP in a manner that comports with Plaintiff's understanding of law and policy.” See Motion to Dismiss at 5. “Under Tenth Circuit law, claim preclusion applies when three elements are met: (1) a final judgment on the merits in an earlier action; (2) identity of parties in the two suits; and (3) identity of the cause of action in both suits.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005). The court finds that the instant repetitive litigation satisfies all elements of the res judicata doctrine, which “prevent[s] a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment.” Id.
Final judgment on the merits. First, there was a final judgment on the merits in the First Texas Case. Although the dismissal of the case occurred at the screening stage under 28 U.S.C. § 1915A, that dismissal operated as an adjudication on the merits because a “[dismissal for failure to state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).'” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)); see also Bloom v. Simmons, 74 Fed.Appx. 859, 860 (10th Cir. 2003) (finding that a district court properly applied the claim-preclusion doctrine where a “prior complaint was dismissed pursuant to 28 U.S.C. § 1915A”); Courteau v. United States, 287 Fed.Appx. 159, 162 (3d Cir. 2008) (recognizing that a dismissal pursuant to § 1915A as opposed to Rule 12(b)(6) is a dismissal on the merits for res judicata purposes: “Courteau makes much of the fact that the District Court dismissed the First Complaint pursuant to 28 U.S.C. § 1915A as opposed to Fed.R.Civ.P. 12(b)(6), but this is a distinction without a difference: the legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6) motions”).
The fact that the court in the First Texas Case also found that Mr. Sheldon's claims were frivolous under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B)(i), see 2022 WL 1651463, at *8, does not alter the conclusion that Mr. Sheldon is barred from relitigating those claims here. While this separate finding is not a dismissal on the merits and would not of itself trigger res judicata, see Johnson v. Spencer, 950 F.3d 680, 718 (10th Cir. 2020), the court's principal focus was plainly on a merits evaluation under § 1915A. See 2022 WL 1651463, at *1-7 (detailed discussion of factual and procedural history and the viability of Sheldon's Bivens and injunctive relief claims). This court, as in the District of Columbia Case, see Sheldon v. Zook, 2022 WL 3139021, at *2, finds no basis to conclude that this clear merits assessment is overridden, for res judicata purposes, by a separate finding that Mr. Sheldon's claims were also frivolous under the in forma pauperis statute.
Privity of parties. Second, there is an identity of parties in this suit and in the First Texas Case. Mr. Sheldon's official-capacity claims against the individual defendants here are treated as a suit against the BOP, as were the official-capacity claims he brought against the individual defendants in the First Texas Case. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Put simply, Mr. Sheldon sues the BOP in both cases. And it has long been recognized that “[t]here is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940); see also, e.g., Church of New Song v. Establishment of Religion on Taxpayers' Money in Fed. Bureau of Prisons, 620 F.2d 648, 654 (7th Cir. 1980) (finding that BOP employees in Texas were in privity with BOP employees in Illinois for purposes of res judicata); Nuckols v. Fed. Bureau of Prisons, 578 F.Supp.2d 79, 83 (D.D.C. 2008) (“Here, there is an identity of parties in this suit and the habeas petition, because a warden of a federal prison, the respondent in the prior habeas suit, is in privity with the Bureau of Prisons and its Director.”); McCarroll v. U.S. Fed. Bureau of Prisons, No. 3:11-CV-934 VLB, 2012 WL 3940346, at *8 (D. Conn. Sept. 10, 2012) (acknowledging that “Courts have long recognized that privity exists between coemployees or employees and their employers for res judicata purposes,” and finding that “‘newly' added BOP defendants . . . are ineluctably in privity with the BOP and their co-employees . . . who were Defendants in the [Northern District of New York] Action”).
Identity of causes of action. As for the third element of res judicata, the instant litigation constitutes the same cause of action as the First Texas Case.
“Suits involve the same claim (or ‘cause of action') when they arise from the same transaction or involve a ‘common nucleus of operative facts.'” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 590 U.S. 405, 412 (2020) (cleaned up). The Tenth Circuit has “adopted the transactional approach of Restatement (Second) of Judgments to determine what constitutes a ‘cause of action' for claim preclusion purposes.” Wilkes v. Wyo. Dep't of Emp. Div. of Labor Stds., 314 F.3d 501, 504 (10th Cir. 2002). Under that approach, “a cause of action includes all claims or legal theories of recovery that arise from the same transaction, event, or occurrence.” Id. (quotation omitted). Applying the transactional approach to defining the cause of action here, it is clear that Mr. Sheldon's claim arises from the same transaction, event, or occurrence as the claims he raised in the First Texas Case; indeed, his claim here is virtually identical to those claims. As detailed at length above, Mr. Sheldon contends in both cases that, because he claims to be a “sex offender” and not a “sexual offender,” he is improperly subjected to mail screening under the CMP, that prison staff (including prison psychologists) improperly reject his mail, and that he receives discipline for violating the CMP. Yet again, Mr. Sheldon ask this court to resolve the same challenge he raised in the Northern District of Texas-and the District of Columbia and likely other courts, too. Sheldon v. Zook, 2022 WL 3139021, at *1.
Where, as here, all three elements of res judicata are satisfied, the claim is precluded “unless the party seeking to avoid preclusion did not have a ‘full and fair opportunity' to litigate the claim in the prior suit.'” MACTEC, 427 F.3d at 831 (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999)). The record in no way suggests Mr. Sheldon lacked a full and fair opportunity to litigate his claims in the First Texas Case. Moreover, granting Mr. Sheldon leave to reraise these barred claims for what appears to be a fifth time (at least) would be futile. Under these unique circumstances, dismissal with prejudice is warranted-even if unexhausted claims typically would be dismissed without prejudice. See, e.g., Gee, 627 F.3d at 1181 (affirming “dismissal with prejudice of several claims because they are clearly barred by the statute of limitations or by claim preclusion”); Naranjo v. United States Dep't of Justice, No. 12-cv-03128-CMA-KMT, 2013 WL 6222424, at *3 (D. Colo. Nov. 29, 2013) (“[I]n this case, the doctrine of res judicata precludes Mr. Naranjo from stating a procedural due process claim upon which relief can be granted. Therefore, this claim is necessarily dismissed with prejudice.”); cf. Thompson v. Coulter, 680 Fed.Appx. 707, 712 (10th Cir. 2017) (affirming dismissal with prejudice on exhaustion grounds where the time for filing a grievance had expired and allowing plaintiff “another attempt to show exhaustion would be futile”).
Based on the foregoing analysis, this court respectfully reiterates its
RECOMMENDATION that Defendants' Motion for Summary Judgment be granted and Mr. Sheldon's claim be dismissed with prejudice. In the alternative, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss be granted and Mr. Sheldon's claims be dismissed with prejudice as precluded by res judicata. Either approach properly recognizes the defunct nature of the remaining claim.
Given the foregoing considerations and this court's recommendation, the court declines to consider the alternative argument set forth in the Motion to Dismiss that Mr. Sheldon has failed to plausibly allege a viable First Amendment claim.
CONCLUSION
For the reasons stated herein, it is respectfully RECOMMENDED that:
(1) Summary judgement be ENTERED in FAVOR of Defendants and against Plaintiff Gary Sheldon and all remaining claims be DISMISSED with prejudice, and that Defendants' Motion to Dismiss (ECF No. 48) be DENIED AS MOOT; or
(2) In the alternative, that Defendants' Motion to Dismiss (ECF No. 48) be GRANTED and all remaining claims be DISMISSED with prejudice.
In addition, it is hereby ORDERED that:
(1) Plaintiff's Motion to Stay Defendants' Early Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust (ECF No. 66) is DENIED;
(2) Plaintiff's Motion for the Appointment of Counsel (ECF No. 53) is DENIED AS MOOT; and
(3) Defendant's Motion to Stay Discovery (ECF No. 76) is DENIED AS MOOT.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).