Escobar v. Reid et al

Filing 325

ORDER THAT Defendants shall submit further briefing and documentary evidence concerning whether Plaintiff has exhausted his admin-istrative remedies with respect to the remaining claims by no later than close of business on June 7, 2011. To the exten t that Plaintiff has failed to exhaust his administrative remedies, Defendants shall also address whether such failure was procured from the action or inaction of prison officials. IT IS FURTHER ORDERED THAT Plaintiff shall file a response to Defendants briefing within fourteen days of service. by Judge Christine M. Arguello on 5/25/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 06-cv-01222-CMA-KLM
JOSE MEDINA ESCOBAR,
Plaintiff,
v.
EDWARD MORA,
RENEE OLIVETT,
MARK MATTHEWS,
WILLIAM COLTON,
FRANK HAMULA, and
HARLAN WOOLFOLK,
Defendants.

ORDER DIRECTING FURTHER BRIEFING BY DEFENDANTS ON PLAINTIFF’S
EXHAUSTION OF REMAINING CLAIMS

This matter is before the Court sua sponte.
After pending for nearly five years, this case is finally set for a three-day jury trial
to commence on September 6, 2011, at 9 a.m. On June 27, 2006, pro se prisoner
Plaintiff Jose Medina Escobar filed a complaint under 42 U.S.C. § 1983 alleging various
constitutional claims against the above-captioned Defendants and others who have
been subsequently dismissed from this action, arising from various events that allegedly

transpired during Plaintiff’s detention at his prior corrections facility, the Colorado State
Penitentiary.1 Defendants are employees at the Colorado State Penitentiary.
After several rounds of dispositive motions, the following claims remain and are
set for trial:
•

Claim 1: Eighth Amendment violation against Defendants Edward Mora
and Renee Olivett for cruel and unusual punishment arising from an
alleged failure to provide Plaintiff a nutritionally adequate diet; specifically,
Defendants allegedly deprived him of two meals a day for approximately
fifteen months, causing Plaintiff to lose thirty pounds;
and

•

Claim 7: Eighth Amendment violation against Defendants Mark Matthews,
William Colton, Frank Hamula, and Harlan Woolfolk for excessive use of
force.

(See Doc. ## 219 at 17, 274 at 13-14, and 321 at 1-2.) Throughout the pendency of this
matter, whether Plaintiff has exhausted his administrative remedies has been at issue.
Upon review of the case file, including copies of all grievances submitted,2 the Court is
unconvinced that Plaintiff has exhausted his administrative remedies with respect to the
remaining claims.
It is well-established that unexhausted claims cannot be brought in court. Jones
v. Bock, 549 U.S. 199, 200-01 (2007). However, Plaintiff does not bear the burden to
establish exhaustion; rather, Defendants bear that burden. Id. at 201. Moreover, courts

1

On September 10, 2010, Plaintiff was transferred from the Colorado State Penitentiary to the Centennial Correctional Facility. (See Doc. # 257.) None of the claims in this action
concern events or conduct at Plaintiff’s new facility.
2

(See, e.g., Doc. ## 185 at 11-15; 215 at 36-46.)

2

“also are obligated to ensure that 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).
In the instant case, although Defendants have previously asserted that Plaintiff
failed to exhaust his First and Seventh claims for relief, among others, they have not
presented any substantiating evidence. (See Doc. # 209 at 15-16) (discussing
Defendants’ failure to present sufficient, competent evidence to support their failure to
exhaust affirmative defense). Given the record’s lack of clarity, and the importance of
resolving this issue in advance of trial, the Court finds further briefing is warranted.
Accordingly, IT IS ORDERED THAT Defendants shall submit further briefing and
documentary evidence concerning whether Plaintiff has exhausted his admin-istrative
remedies with respect to the remaining claims by no later than close of business on
June 7, 2011. To the extent that Plaintiff has failed to exhaust his administrative
remedies, Defendants shall also address whether such failure was procured from the
action or inaction of prison officials.
IT IS FURTHER ORDERED THAT Plaintiff shall file a response to Defendants’
briefing within fourteen days of service.
DATED: May

25

, 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge
3