Opinion
CIV-20-985-C
06-30-2021
MICHAEL SIMPSON, Plaintiff, v. JIMMY MARTIN, et. al., Defendants.
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REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion to Dismiss and Motion for Summary Judgment. Doc. No. 33. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss, converted to a Motion for Summary Judgment, be granted based on Plaintiff's failure to exhaust his administrative remedies.
I. Plaintiff's Allegations
This case arises from allegations that while Plaintiff was incarcerated at North Fork Correctional Center (“NFCC”), Defendants violated multiple of his federal constitutional rights. Plaintiff named the following as Defendants in this matter: Jimmy Martin, Warden; Paula Bethea, Law Library Supervisor; Shirley May, Medical CHSA/Leader; Leon Wilson, Oklahoma Department of Corrections' (“ODOC”) Comptroller of Offender Banking Services; and Tina Petete, ODOC's Sentence Administration Records Coordinator.
Plaintiff was confined in NFCC from June 2019 until November 12, 2020. Doc. No. 32-1 at 5. On the latter date, Plaintiff was transferred to Davis Correctional Facility located in Holdenville, Oklahoma. Doc. No. 20.
Plaintiff named Jane/John Doe as the individual responsible for managing inmate trust accounts and Jane/John Doe for the individual responsible for managing inmate records/files. Doc. No. 9 at 1, 2, 5, 8-9. Defendants have identified these individuals as Leon Wilson and Tina Petete, respectively, Doc. No. 33 at 8 n.1, 2, and defense counsel previously entered an appearance for each of them. Doc. No. 31.
In his Amended Complaint, with regard to Defendant Martin, Plaintiff asserts multiple constitutional claims. Specifically, he alleges Defendant Martin retaliated against him for filing grievances by placing him in detention. Doc. No. 9 at 3. Plaintiff also alleges that in retaliation for filing grievances, Defendant Martin directed staff to issue a false charge of sexual harassment against him and housed him with other inmates who would assault him and/or expose him to COVID-19. Id. at 9, 11. Finally, Plaintiff asserts Defendant Martin allowed him to be threatened with physical assault by NFCC staff and officials in retaliation for requesting protective status and/or special housing placement, as well as for insisting on social distancing. Id. at 4.
Plaintiff asserts First and Eighth Amendment claims against Defendant May based on her alleged deliberate indifference to his medical needs. He alleges that she stopped his ongoing eye treatment at Dean McGee Eye Center, refused to provide dental treatment for him after he complained of pain along his gumlines, refused to provide his prescribed eyeglasses, and failed to provide colon care treatment, COVID testing, and flu prevention care. Id. at 4, 6-7. He also complains that she stopped providing his eye medication in retaliation for grievances he filed. Id. at 11.
Plaintiff asserts First, Fourth, Sixth, and Fourteenth Amendment claims against Defendant Bethea. Id. at 4, 7, 9. He alleges that she hindered his ability to complete the exhaustion process and only allowed him law library access one day per week while he was in segregation. Id. at 4. He also contends that she opened and read his legal mail, sharing the contents with ODOC's General Counsel. Id. at 4, 7.
With regard to Defendant Wilson, Plaintiff asserts First and Thirteenth Amendment claims based on allegations that money was unjustifiably and/or unlawfully removed from his inmate trust account in retaliation for Plaintiff's attempts to seek legal redress. Id. at 5, 8. Additionally, Plaintiff asserts a claim that Defendant Petete violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments based on allegations that false entries were placed in his inmate file in order to reflect badly on him before the Commutation and Parole Board. Id. at 5, 9. Finally, Plaintiff asserts Eighth Amendment claims against Core Civic, a private corporation that owns and operates NFCC, based on various conditions of confinement and/or policies related to the same. Id. at 5, 8.
The docket in this matter does not reflect that Core Civic has been served with process and counsel has not entered an appearance on its behalf.
Defendants Martin, Bethea, May, Wilson, and Petete have filed a Motion to Dismiss and Motion for Summary Judgment against all of Plaintiff's claims. Doc. No. 33. They contend, inter alia, that he failed to exhaust his administrative remedies prior to filing this lawsuit. Id. at 26-28. Though Plaintiff requested and the Court granted two extensions of time to respond to Defendants' Motion, see Doc. Nos. 35-38, he failed to do so.
Because Defendants rely, in part, on evidentiary documents outside of the pleadings in support of their Motion, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendants' Motion, see Doc. No. 34, the Motion will be considered as one seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert motion to dismiss into motion for summary judgment in order to consider matters outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (“[W]hen a party submits material beyond the pleadings in support of . . . a motion to dismiss, the prior action on the part of the part[y] puts them on notice that the judge may treat the motion as a Rule 56 motion.”).
II. Standard of Review
A. Summary Judgment
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law ....” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations omitted). “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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
B. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Exhaustion of Administrative Remedies
A. Requirement for Exhaustion of Administrative Remedies
Defendants request dismissal of Plaintiff's claims against them based on his failure to exhaust administrative remedies through the Oklahoma Department of Corrections (“ODOC”) grievance procedure prior to filing this lawsuit. Doc. No. 33 at 26-28. Proper exhaustion of administrative remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which provides that a prisoner cannot bring an action “with respect to prison conditions under [§] 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”); Ross v. Blake, U.S., 136 S.Ct. 1850, 1857 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”).
The exhaustion doctrine protects administrative agency authority and promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the exhaustion doctrine is an affirmative defense, the defendants “bear the [initial] burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the defendant demonstrates a plaintiff has failed to exhaust his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him[.]” Id.
Further, “substantial compliance [with the grievance procedure] is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion requires compliance with all of the prison's grievance procedures, including adherence to “deadlines and other critical procedural rules[, ] because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
There is no exception to the exhaustion requirement for “special circumstances.” Ross, 136 S.Ct. at 1856-57 (discussing that mandatory language means a court may not excuse a failure to exhaust, even to take special circumstances into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). Thus, if administrative remedies are available, an inmate must complete each step of the administrative process before a federal court can consider the merits of the inmate's complaint based on alleged violations of constitutional rights.
B. Grievance Procedure for Oklahoma Inmates
The ODOC's grievance procedure is clearly set forth in the ODOC Inmate/Offender Grievance Process OP-090124. Doc. No. 32-4. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 8. If the matter is not resolved informally, the prisoner must submit a Request to Staff within seven calendar days of the incident, raising only one issue therein. Id. at 8-9.
If the Request to Staff does not successfully resolve the issue, the prisoner must submit a formal Grievance Form, with a copy of the Request to Staff attached, to the appropriate facility reviewing authority within 15 calendar days from the date of the response to the Request to Staff, and can only raise one issue. Id. at 10-11. The reviewing authority will assign a number to each grievance received and will generally answer the grievance within 20 days of its receipt. Id. at 13. If the grievance is denied by the reviewing authority at the prison level, a prisoner must appeal the decision to the Administrative Review Authority within 15 days of receipt of the same to complete exhaustion of his administrative remedies. Id. at 14-17.
When inmates face an emergency or have a sensitive grievance as defined in OP-090124, they can file a grievance directly to the reviewing authority (or to the Administrative Review Authority, if the emergency or sensitive grievance involves the reviewing authority) without attempting to informally resolve the dispute. Id. at 17-18. The reviewing authority must determine within twenty-four hours whether the grievance is of a sensitive nature or requires emergency handling. Id. at 18. If the reviewing authority decides the matter does not involve a true emergency or a sensitive topic, the inmate must restart the administrative process by trying to informally resolve the dispute and resubmitting the grievance. Id. at 8-19.
C. Plaintiff's Efforts to Exhaust
Defendants have requested the Court dismiss Plaintiff's claims against them based on Plaintiff's failure to exhaust his administrative remedies prior to initiating this lawsuit. As previously noted, Plaintiff did not file a Response to Defendants' Motion. However, in his Complaint, Plaintiff stated that responses to Requests to Staff were often dated significantly earlier than the date he received the same. Doc. No. 9 at 12. He contends that because of this, he would then be unable to file a timely grievance. Id. The Court notes, however, that the grievance form directs the inmate to indicate the date he received the Request to Staff response. Doc. No. 32-12 at 2. In any event, to the extent relevant, the undersigned will discuss Plaintiff's allegations in this regard herein.
IV. Defendant Martin
Plaintiff's claims against Defendant Martin center primarily around allegations of retaliation. Plaintiff alleges that in retaliation for filing grievances, Defendant Martin placed him in detention, directed NFCC staff to file a false charge of sexual harassment against him, housed him with other inmates who could assault him or expose him to COVID, and allowed him to be threatened with physical assault by staff and officials. Because Plaintiff also indicated his intent to assert an Eighth Amendment claim against Defendant Martin, the Court construes his Complaint as said claim being based on the conditions of confinement related to his exposure to threats of assault and COVID.
Plaintiff did not file any requests to staff or grievances based specifically on these claims. However, the Court will discuss those that include related subject matter.
A. Housing and Threats to Safety
On September 30, 2019, Plaintiff submitted a Request to Staff in which he alleged that Brandi Shefferd, a case manager, threatened and arrested him, and placed him in detention. Doc No. 32-3 at 2-3. Ms. Shefferd responded to the Request to Staff on October 14, 2019, stating that she took those actions in response to Plaintiff's own behavior, actions, and/or statements. Id. Plaintiff did not file a grievance in response to this Request to Staff, nor did he attempt to file any other appeal.
On August 19, 2020, Plaintiff submitted a Request to Staff to Defendant Martin. Doc. No. 32-2 at 2-3. Therein, Plaintiff stated that he did not feel safe at NFCC being housed with another inmate because he did not trust NFCC staff to not place him with inmates that intended to harm him. Id. at 2. He explained that when he voiced this concern to NFCC staff or tried to block the entrance to his cell to prevent another inmate from entering, staff threatened to assault him. Id. He also complained that he is unable to social-distance in order to protect himself from COVID. Id. Finally, Plaintiff noted that a white inmate had been allowed to be in a single cell for six months based on said inmate's fear of assault. Id.
In a response dated August 24, 2020, Defendant Martin explained that NFCC, like many such facilities, do not have single jail cells available upon request. Id. at 2. He suggested that Plaintiff find someone with whom he felt safe and request that individual as a cell partner. Id.
On October 5, 2020, Plaintiff filed a Grievance with the Administrative Review Authority based on these same issues. Doc. No. 32-12 at 2. However, ODOC's procedure requires an inmate to file a grievance with the appropriate facility reviewing authority. Doc. No. 32-4 at 10-11. The Court recognizes that Plaintiff's initial Request to Staff was submitted to Defendant Martin, NFCC Warden. Thus, it is unlikely there is a ‘higher' reviewing authority. However, ODOC's grievance procedure does not include an exception for Requests to Staff initially responded to by a facility warden. Thus, the Administrative Review Authority returned Plaintiff's grievance without response and directed him to comply with ODOC procedures by first submitting the grievance to the proper reviewing authority. Doc. No. 32-12 at 5. Plaintiff took no further action.
On the Grievance, Plaintiff stated that he received the response to his Request to Staff on Thursday, August 27, 2020. Doc. No. 32-12 at 2.
On November 1, 2020, Plaintiff submitted another Request to Staff to Defendant Martin. Doc. No. 32-3 at 4. Therein, Plaintiff stated that he would feel safe if he were housed in E Unit and that the unit manager has indicated she would accept him in that unit. Id. at 4-5. Defendant Martin responded on November 8, 2020, advising, “U/M Varnal will need to submit move sheet to my office if she approves.” Id. at 4. Plaintiff pursued no further action on this request within the administrative process.
B. Misconduct Charges
On July 30, 2020, NFCC Officer Johnson reported that Plaintiff exposed himself to her during inmate count. Doc. No. 32-13 at 2-7. Plaintiff denied the report, contending that he was simply standing at the urinal in his cell. Id. at 8. He was charged with sexual harassment and pleaded not guilty. Id. On August 5, 2020, Plaintiff was convicted on the charge following a hearing. Id. at 2. He filed an appeal on August 10, 2020. Doc. No. 32-14 at 6-9.
In the meantime, ODOC transferred Plaintiff to another facility due to Plaintiff's history of “inappropriate behavior w/female staff and recent class X misconduct/bad behavior.” Doc. No. 32-30 at 2. Plaintiff was transferred in November 2020. Id.
On December 7, 2020, Plaintiff submitted an “emergency” appeal to the Administrative Review Authority because he never received a response on his initial misconduct appeal. Doc. No. 32-14 at 4-5. The Administrative Review Authority returned the appeal unanswered, explaining that Plaintiff was not permitted to appeal a non-response. Additionally, the Administrative Review Authority explained that Plaintiff was “out of time to address the non-response from the revi[e]wing authority, see OP-060125, Section VIII.A.7.” Id. at 3. The Court notes that contrary to the statements in Plaintiff's Amended Complaint, Defendant Martin did not “reverse[], dismiss[] and expunge[]” this conviction, see Doc. No. 9 at 3, but instead, it remains on Plaintiff's record.
Though Defendants did not submit the relevant policy to the Court, ODOC's online records indicate the policy provides that if an inmate appeals a misconduct conviction and does not receive a response within 30 days, then no later than 60 days from the conviction, he may initiate the grievance process. “The inmate may grieve only that his appeal has not been answered within the specified time frame and may not include the issues raised in the misconduct appeal.” ODOC, OP-060125, § VIII.A.7. See https://oklahoma.gov/content/dam/ok/en/doc/documents/poticy/section-06/op060125.pdf (last accessed June 25, 2021).
C. Plaintiff's Claims are Not Exhausted
It is clear Plaintiff never raised allegations of retaliation by Defendant Martin in any of his administrative materials. Thus, there is no question Plaintiff's First Amendment claims are not exhausted. Additionally, to the extent Plaintiff's remaining allegations raised in his administrative materials implicate other constitutional rights, including but not limited to the Eighth Amendment, the record establishes that Plaintiff failed to complete the administrative process prior to filing this lawsuit. As noted, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan, 304 F.3d at 1032.
Plaintiff's failure to exhaust his administrative remedies is fatal to federal judicial review of his claims against Defendant Martin. Woodford, 548 U.S. at 9092. Accordingly, the undersigned recommends Defendant Martin's Motion, as converted to a request for summary judgment, be granted. See Calbart v. Sauer, 504 Fed.Appx. 778, 784 (10th Cir. 2012) (affirming the district court's granting of summary judgment in favor of the defendants against the plaintiff's § 1983 claims based on the plaintiff's failure to exhaust administrative remedies).
V. Defendant May
Plaintiff contends Defendant May violated his Eighth Amendment rights based on her deliberate indifference to his eye care and dental treatment, as well as not providing COVID testing. The record indicates Plaintiff received dental treatment and extensive eye care, and to the extent such care was delayed, it was either due to Plaintiff's own actions or COVID restrictions. In any event, focusing solely on whether Plaintiff exhausted his administrative remedies prior to asserting deliberate indifference claims against Defendant May, the record establishes that he did not.
The record indicates Plaintiff suffered from, inter alia, glaucoma and retinal detachment. Doc. No. 32-18 at 60.
On July 1, 2019, Plaintiff submitted a request for dental services in which he claimed he had not received dental treatment in eight years. Doc. No. 32-18 at 19. Plaintiff received a response explaining that he had to reside at NFCC for six months before being permitted to make a non-emergency medical request. Id. Plaintiff had been transferred to NFCC in June 2019. See, supra. Plaintiff did not pursue his request further.
On February 13, 2020, Plaintiff submitted a request for dental treatment based on pain along his gumline. Id. at 47. Five days later, a staff member responded that he had been scheduled for a dental appointment. Id.
On July 2, 2020, Plaintiff submitted a request for health services explaining that his vision was blurred and that he was seeing black spots through both eyes. Id. at 61. He was seeking an appointment with his physicians at Dean McGee Eye Institute. Id. Defendant May responded on July 9, 2020, stating that an appointment had been scheduled. Id. It is not clear from the record if or when this appointment occurred.
On July 20, 2020, Plaintiff submitted a Request to Staff to Defendant May in which he complained that he was not receiving adequate medical care. Doc. No. 32-21 at 4-5. Specifically, he stated that he had requested dental care in February 2020 and was informed he was scheduled for a dental appointment. Id. He also stated that he had requested medical treatment for his eyes in April and July 2020 and that he had prescriptions for eyeglasses that have not been provided to him. Id. at 5. He explained that he was having problems of blurry vision and black spots in both eyes. Id. He also complained that he had not received COVID-19 testing in spite of being at high risk for complications. Id. The copy of the Request to Staff provided to the Court does not include a response from Dr. May or any other staff member. Id. at 4.
On August 18, 2020, Plaintiff submitted a grievance to the Administrative Review Authority complaining that no one had responded to his July 20, 2020 Request to Staff. Id. at 3. On September 18, 2020, the Administrative Review Authority responded, stating that someone had responded to this Request to Staff and enclosed the same. Id. at 2. The enclosure showed a response from Dr. May on August 6, 2020, in which she stated, “Due to COVID, all outside appointments were cancelled or rescheduled. The contracted eye dr. has also delayed appointments due to COVID. You have a pending eye appointment.” Id. at 7. Plaintiff did not pursue any further administrative actions based on this Request to Staff.
On October 14, 2020, Plaintiff submitted a Request for Health Services explaining, “I am in need of meaningful and adequate medical eye care. It is getting worse without the injections I get from my established eye doctor at Dean McGee Eye Institute in Oklahoma City. My eyes are even more blurry, seeing specks and flashes of light.” Doc. No. 32-18 at 62. Defendant May responded on October 19, 2021, stating that Plaintiff already had an appointment scheduled. Id.
While Plaintiff submitted various requests for health services, at least one Request to Staff, and a Grievance, the record establishes that he never exhausted his administrative remedies with regard to any claim against Defendant May. Plaintiff did not submit any administrative materials related to colon care treatment or Dr. May's alleged refusal to provide him eye medication. Moreover, to the limited extent Plaintiff raises the allegations underlying his current claims, he never completed the administrative process. Additionally, the record does not indicate any problems with regard to the late receipt of Request to Staff responses, as mentioned in Plaintiff's Amended Complaint. Accordingly, the undersigned recommends Defendant May's Motion, as converted to a request for summary judgment, be granted based on Plaintiff's failure to exhaust his administrative remedies. Calbart, 504 Fed.Appx. at 784.
VI. Defendant Wilson
Plaintiff has also asserted First and Thirteenth Amendment claims against a John/Jane Doe identified as the “supervisor/manager of the Inmate Trust Fund Accounts.” Doc. No. 9 at 5, 8 (quotations omitted). As previously noted, Defendants have presumed Defendant Wilson, Comptroller of Offender Banking Services, is the appropriate individual to answer these claims. Doc. No. 33 at 8 n.1. Plaintiff alleges that over the years, individuals have unlawfully taken funds that he deposited in his trust account. Doc. No. 9 at 5. He also indicates this was done in retaliation, as an attempt to “silence Plaintiff's redress to government efforts, which is prohibited by the First (1st) Amendment.” Id. at 8.
ODOC policy provides for the establishment of inmate trust accounts for each ODOC inmate. Doc. No. 32-22 at 3. ODOC has also implemented an “Inmate Obligation Deduction Matrix, ” establishing mandatory deductions from each inmate account in order of priority. Doc. No. 32-23 at 2. Relevant to the present case, the deductions include court filing fees, medical co-pays, and legal co-pays. Id.
On March 20, 2019, Plaintiff submitted an inmate request stating that his January statements showed a $25.00 canteen deduction on January 10th but that he left that morning for a writ and therefore, never received the same. Doc. No. 32-24 at 3. In a response dated March 27, 2019, an official explained that Plaintiff is only allotted two weeks to file a complaint regarding any discrepancies but nevertheless attached a signed receipt from the date in question showing that Plaintiff signed for the canteen at 4:22 p.m. Id. at 3-4.
On July 15, 2019, Plaintiff submitted a Request to Staff regarding this same incident, continuing to assert that he did not receive canteen on January 10, 2019, and requesting a refund of $25.00. Id. at 2. In a response dated July 25, 2019, an official explained that his Request to Staff was out of time. Id.
On August 27, 2020, Plaintiff submitted a Request to Staff in which he alleged that someone had been unlawfully removing money from his trust account for over ten years “under the guise of: Inmate owes legal co-pay for legal material provided by prison, and also for filing fees owed.” Doc. No. 32-26 at 4-5. He also complained these actions resulted in him having a zero balance in his account. Id. In response, on September 14, 2020, an official provided him with a printout setting forth the legal co-pays deducted from his account from June 15, 2016 through January 15, 2019, the date each deduction occurred, and their basis. Id. at 4, 6.
On September 22, 2020, Plaintiff filed a Grievance, assigned as Grievance No. 20-97, from this Request to Staff. Id. at 3. Therein, Plaintiff reiterated the allegations in his Request to Staff and added that these actions were taken in retaliation for his legal filings. Id. Plaintiff requested that funds wrongly removed from his account for the previous ten years be returned. Id. On October 23, 2020, the reviewing authority responded to Plaintiff's Grievance, stating, “RELIEF DENIED-The funds from your available balance are being paid for medical and legal co-pays that you have agreed to pay in return for services.” Id. at 2. Plaintiff signed for receipt of the response on October 23, 2020, writing “I Object!” near his signature. Id.
On October 28, 2020, Plaintiff filed an appeal with the Administrative Review Authority seeking reimbursement of $600.00 and/or reimbursement of all funds wrongfully removed from his account. Doc. No. 32-25 at 2-3. Plaintiff's appeal was returned unanswered because it contained “two appeal forms in one envelope.” Id. at 6. The response was dated November 20, 2020, and Plaintiff was provided one opportunity to refile and was required to resubmit the appeal correctly within 10 days. Id.
On November 25, 2020, Plaintiff filed a second appeal, complaining that the requirement to only include one appeal per envelope serves no penological interest. Id. at 4. This appeal specified that it pertained to Grievance No. 20-97. Id. On December 7, 2020, Plaintiff's second appeal was returned unanswered because, inter alia, he had “failed to follow previous instructions from the reviewing authority or ARA for filing this grievance/appeal and/or properly resubmit. YOU ARE NOW OUT OF TIME.” Id. at 7. There is no question that Plaintiff failed to follow the instructions in resubmitting his appeal, instead complaining about the basis for the previous appeal's rejection. Id. at 4.
Plaintiff did not pursue any additional administrative remedies with regard to his allegations that someone unlawfully removed money from his trust account. Based on Plaintiff's failure to complete the administrative process, Defendant Wilson's request for summary judgment should be granted. Woodford, 548 U.S. at 90-9l; Calbart, 504 Fed.Appx. at 784.
VII. Defendant Bethea
Plaintiff asserts a First Amendment claim against Defendant Bethea, alleging that she hindered his ability to exhaust his administrative remedies, read his legal mail and shared its contents with ODOC's General Counsel, and only allowed him access to the law library one day per week while he was in segregation. Doc. No. 9 at 4, 7, 9. Plaintiff submitted a Request to Staff to Defendant Bethea on July 21, 2019, complaining about limited law library access. Doc. No. 32-16 at 11. Defendant Bethea responded, explaining that under ODOC policy, he was allowed law library access for two hours per week, unless he had a verifiable court deadline and then he would receive six hours per week. Id. She also stated that he was permitted three hours on his unit day in the library. Id. Plaintiff did not pursue this Request to Staff further.
On October 5, 2019, Plaintiff submitted a Request to Staff to ODOC Director Scott Crow, stating that inmates were not provided, inter alia, timely responses to Requests to Staff or adequate assistance in the law library. Id. at 4-5. On October 8, 2019 and October 21, 2019, Plaintiff submitted an additional Request to Staff seeking verification that his “privileged mail” containing a Request to Staff to Director Crow was mailed. Id. at 6, 7. A staff member responded only that the Request to Staff was not logged in their system since it was not submitted through the law library. Id. at 7.
Notably, the Request to Staff form states, “Must be Submitted through the Law Library or Designee” along the top of the page. Id. at 4.
On May 8, 2020, Plaintiff submitted a Request to Staff to Defendant Martin, stating that NFCC staff make the exhaustion of administrative remedies impossible. Id. at 9. He claimed that they refused to answer and/or timely return Requests to Staff. Id. at 9-10. Defendant Martin responded by inquiring as to which Request to Staff or Grievances Plaintiff was referring. Id. at 9. Plaintiff did not respond or pursue the Request to Staff further.
A review of the record establishes Plaintiff failed to complete the administrative remedy process with regard to his claims against Defendant Bethea. Accordingly, Defendant Bethea's request for summary judgment against his claims should be granted. Woodford, 548 U.S. at 90-92l; Calbart, 504 Fed.Appx. at 784.
VIII. Defendant Petete
Plaintiff asserts Defendant John/Jane Doe violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments based on the management of his inmate file. Doc. No. 9 at 5, 9. Plaintiff claims that false entries were entered into his file and this damages his chances for commutation or parole, or his ability to obtain legal counsel. Id. As previously noted, Defendants have identified Tina Petete, Sentence Administration Records Coordinator, as the proper Defendant for this claim. Doc. No. 33 at 8 n.2. As with the other Defendants, Defendant Petete argues Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit.
On September 21, 2020, Plaintiff submitted a Request to Staff in which he complained that a misconduct charge remained on his record although it had been reversed and dismissed in July 2020. Doc. No. 32-8 at 4. He also stated that a previous misconduct had expired but remained in his file and that the reception date in his file was incorrect. Id. at 4-5. He implied these errors had resulted in him being demoted to a Level 1 inmate when he should have been at Level 4. Id. He requested that he be placed immediately back to Level 4 status. Id. at 4. On October 7, 2020, an NFCC staff member responded, stating, “You [were] demoted to Level 1 for poor behavior. It was not a sanction for your misconduct. Levels are a privilege not a right. This issue is between you and your unit team.” Id. Plaintiff noted on the bottom of the Request to Staff that he received the response on October 13, 2020. Id.
On October 20, 2020, Plaintiff submitted a Grievance, assigned Grievance No. 20-98, raising similar issues as that raised in his Request to Staff, and requested to be placed on Level 4 status. Id. at 2-3. He also indicated that he was demoted because he refused housing with another inmate. Id. at 3. On October 26, 2020, the reviewing authority denied Plaintiff's Grievance, stating, “You were demoted for poor behavior not for refusing housing. Levels are not a sanction. You are also a level 2 for this month. Your level is between the Unit Team and you.” Id. at 6.
On October 29, 2020, Plaintiff submitted an appeal of the Grievance No. 20-98. Doc. No. 32-11 at 2-3. Plaintiff requested $500 per day starting from the day he was demoted and also to be returned to Level 4 immediately. Id. at 3. On November 20, 2020, the Administrative Review Authority returned Plaintiff's appeal unanswered, indicating that he had improperly included two appeals in one envelope. Id. at 4. Plaintiff was “afforded ONE FINAL opportunity to properly resubmit your corrected . . . appeal which must be received by the ARA within ten (10) days of receipt of this form.” Id.
As with Grievance No. 20-97, supra, Plaintiff resubmitted his appeal for Grievance No. 20-98, complaining that the requirement to only include one appeal per envelope serves no penological interest. Id. at 5. On December 7, 2020, Plaintiff's appeal was again returned unanswered because he had “failed to follow previous instructions from the reviewing authority or ARA for filing this grievance/appeal and/or properly resubmit. YOU ARE NOW OUT OF TIME.” Id. at 7. Rather than raising the merits of his complaints, Plaintiff instead complained about the basis for the previous appeal's rejection. Id.
By not resubmitting his appeal as instructed, Plaintiff failed to employ the administrative remedies available to him. Jernigan, 304 F.3d at 1032-33. Thus, Plaintiff did not complete the exhaustion of his administrative remedies prior to filing the current lawsuit. Because this failure is fatal to federal judicial review of his claims, Woodford, 548 U.S. at 90-92, the undersigned recommends Defendant Petete's request for summary judgment be granted.
IX. Defendant Core Civic
Although Defendant Core Civic has not been served in this matter, the Court must consider the claims against it pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The statute provides that when a plaintiff is proceeding in forma pauperis, a court shall dismiss a case at any time if it determines that an action fails to state a claim upon which relief can be granted. Id.
In his Amended Complaint, Plaintiff states that Defendant Core Civic owns NFCC. Doc. No. 9 at 5. He asserts claims against Core Civic based on allegations that NFCC failed to implement safety mandates from the Center for Disease Control pertaining to COVID-19. Id. at 5, 8. He also states, in conclusory fashion, “Violence and uncleanliness is at an all time high in [NFCC].” Id. at 5.
Defendants submitted an affidavit from Mark Knutson, ODOC's Manager of the Administrative Review Authority. Doc. No. 32-10 at 2-3. Therein, Mr. Knutson reviewed each of the appeals Plaintiff submitted to the Administrative Review Authority. Id. The appeals Plaintiff filed do not address the allegations supporting his claim against Defendant Core Civic. Id. Thus, the undersigned concludes Plaintiff has failed to exhaust his administrative remedies with regard to said claims. Accordingly, Plaintiff's claims against Defendant Core Civic should be dismissed.
In light of the recommendation herein, it is unnecessary to address the remaining bases for Defendants' request for dismissal/summary judgment.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion to Dismiss, as converted to a Motion for Summary Judgement, (Doc. No. 33) be GRANTED and judgment be entered in Defendants' favor based upon Plaintiff's failure to exhaust his administrative remedies. Additionally, the undersigned recommends Plaintiff's claims against Defendant Core Civic be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), based on the same.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by July 20th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.