Escobar v. Reid et al
Filing
338
ORDER Denying as moot 332 Motion to Amend Final Pretrial Order; Denying as moot 336 Motion for Order for Review of: Trial Material, and Request for Subpoena; The three-day jury trial is set to commence on September 6, 2011 is VACATED; This case is DISMISSED by Judge Christine M. Arguello on 8/22/2011.(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 DISMISSING REMAINING CLAIMS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES AND FAILURE TO STATE ACTIONABLE CLAIMS,
VACATING TRIAL DATES, AND DENYING AS MOOT PLAINTIFF’S MOTION TO
AMEND FINAL PRETRIAL ORDER AND PLAINTIFF’S REQUEST FOR REVIEW OF
TRIAL MATERIAL AND REQUEST FOR SUBPOENA
This matter, for which a three-day jury trial is set to commence on September 6,
2011, is before the Court sua sponte. On May 25, 2011, the Court issued an Order
Directing Further Briefing by Defendants on Plaintiff’s Exhaustion of Remaining Claims
(“May 25 Order”). (Doc. # 325.) Specifically, after pending for more than five years, the
following two claims remain:
•
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.1
(See Doc. ## 219 at 17, 274 at 13-14, and 321 at 1-2.) In the May 25 Order, the Court
noted that throughout the pendency of this matter, whether Plaintiff exhausted his
administrative remedies has been at issue. (Doc. # 325 at 2.) The Court further stated
that, upon review of the case file, including copies of all grievances submitted, it was
“unconvinced” that Plaintiff exhausted his administrative remedies with respect to the
remaining claims. (Id.) Accordingly, the Court directed the parties to submit further
briefing and documentary evidence concerning whether Plaintiff has exhausted his
administrative remedies in connection with the remaining claims. (Doc. # 325 at 3.)
To the extent that Plaintiff failed to exhaust his administrative remedies, the Court
directed Defendants to also address whether Plaintiff’s failure to exhaust was procured
from the action or inaction of prison officials. (Id.)
Pursuant to the Court’s May 25 Order, Defendants submitted additional briefing
on June 7, 2011 (Doc. # 329), and Plaintiff responded on June 22, 2011 (Doc. # 331).
1
The Court recognizes that the Second Amended Final Pretrial Order (Doc. # 321)
identifies additional conduct that is the basis for Plaintiff’s Claims 1 and 7. Specifically, Claim 1
is also premised upon Defendants Mora and Olivett’s “filing numerous false C.O.P.D. disciplinary reports to restrict all his TV, phone and canteen privileges, and abolish[ing] all prospects
of parole” and “destroy[ing] and confiscat[ing] Plaintiffs [sic] personal legal property to hinder his
access to the court.” (Doc. # 321 at 2.) Claim 7 is also premised upon Defendants Matthews,
Hamula, Colton and Woolfolk’s “denying [Plaintiff] medical attention by Dr. Craney” and
Defendant Matthews’ “fabricating false C.O.P.D. charges . . . to justify placing Plaintiff in a death
threatening situation.” (Id.) The Court will address that additional conduct later in this Order, in
a section entitled “Additional Conduct.”
2
For the reasons discussed below, the Court finds that Plaintiff exhausted his
administrative remedies in connection with Claim 1, but did not exhaust his remedies in
connection with Claim 7. The Court also finds that the conduct underlying Claim 1 fails
to rise to the level of a constitutional violation and that Plaintiff’s allegations concerning
the Additional Conduct fail to state actionable constitutional claims. Accordingly,
dismissal of the remaining claims, Claims 1 and 7, and vacation of the trial dates are
warranted.
I. STANDARDS OF REVIEW
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Nevertheless, Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a
defendant may move to dismiss a claim for “failure to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). The court’s function is to test “the sufficiency of
the allegations within the four corners of the complaint after taking those allegations as
true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pled facts that allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. The Court,
3
however, need not accept conclusory allegations without supporting factual averments.
S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). Further,
“[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Iqbal, 129 S.Ct. at 1949 (citation omitted).
Finally, pursuant to 28 U.S.C. § 1915(e)(2)(B), a court shall dismiss a case filed
under the in forma pauperis statute at any time if the court determines that the action (i)
is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief. “Simply
because one is indigent, there is no constitutional right to the expenditure of public
funds and the valuable time of federal courts to prosecute an action which is totally
without merit.” Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979). “A federal
constitutional question must exist ‘not in mere form, but in substance, and not in mere
assertion, but in essence and effect.’” Wells v. Ward, 470 F.2d 1185, 1189 (10th Cir.
1972) (quoting Cuyahoga River Power Co. v. N. Ohio Traction & Light Co., 252 U.S.
388, 397 (1920)). Courts “must accept the allegations of the complaint as true and
construe those allegations, and any reasonable inferences that might be drawn from
them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). Additionally, courts “look to the specific allegations in the complaint to
determine whether they plausibly support a legal claim for relief.” Id. at 1218. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to
4
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (internal quotations
omitted).
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIREMENT
Under the PLRA, a plaintiff must exhaust the available administrative remedies
before filing an action in federal court challenging prison conditions, under 42 U.S.C.
§ 1983. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). There are specific
filing requirements for prisoners seeking to file civil actions regarding prison conditions,
whether they involve general circumstances or particular episodes and whether they
allege excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532
(2002). A prisoner must satisfy this exhaustion requirement even where the “available”
remedies would appear to be futile in providing the kind of remedy sought. Jernigan,
304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740 (2001)). If a grievance
procedure is available, then a prisoner must avail himself of it. Booth, 532 U.S. at 741.
An inmate who begins the grievance process but does not complete it is not allowed to
pursue a claim under the PLRA for failure to exhaust his administrative remedies.
Jernigan, 304 F.3d at 1032. Finally, when deciding a motion to dismiss for failure to
exhaust nonjudicial remedies, courts have looked beyond the pleadings to decide
disputed issues of fact. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).
The Colorado Department of Corrections’ (“CDOC”) procedures for filing
grievances are set forth in Administrative Regulation (“AR”) 850-04-IV-A through 850-
5
04-IV-K. These procedures require that Step One grievances must be filed no later
than thirty calendar days after the date the prisoner knew, or should have known, of
the facts giving rise to the grievances. AR 850-04-IV-I. Additionally,
•
Each grievance shall address only one problem or complaint and
include a description of the relief requested. Problems that arise
from the same incident or set of facts shall be grieved in one
grievance, even though it may involve multiple DOC employees,
contract workers, or volunteers.
•
A substantive issue may not be added at a later step if it has not
been contained in each previous step of that particular grievance.
All issues and remedies contained in the original grievance must be
incorporated into each subsequent step of the grievance. Failure to
renew each element of the complaint and/or requested relief in
subsequent steps shall be deemed a waiver of those elements
and/or requested remedy.
AR 850-4-IV-E (1) and (2).
•
When an offender wishes to proceed to the next step in the
process, the offender shall file the next step within five calendar
days after receiving the response.
•
In the event the time limit concerning any step of the process
expires without a response, the offender may proceed to the next
step within five calendar days of the date the response was due.
AR 850-4-IV-I(1).
III. ANALYSIS
A.
CLAIM 1: EIGHTH AMENDMENT VIOLATION AGAINST DEFENDANTS
EDWARD MORA AND RENEE OLIVETT FOR CRUEL AND UNUSUAL
PUNISHMENT
As noted above, Plaintiff alleges that Defendants Mora and Olivett subjected him
to cruel and unusual punishment in violation of the Eighth Amendment by depriving him
6
of two meals a day for approximately fifteen months, causing Plaintiff to lose thirty
pounds. Specifically, Plaintiff alleges that Defendant Mora would frequently spit in
Plaintiff’s breakfast and lunch, which conduct Defendant Olivett, as the unit lieutenantsupervisor would condone and encourage by allowing Defendant Mora to remain in
charge of feeding Plaintiff, despite having knowledge that Mora would spit in Plaintiff’s
food. (Doc. # 3, ¶ 64.)
In response to the Court’s request for further briefing on the issue of exhaustion,
Defendants assert that Plaintiff has not exhausted his administrative remedies in
connection with his allegations against Defendants Mora and Olivett in Claim 1. (Doc.
# 329 at 3.) In support, Defendants attach the various grievances Plaintiff filed in
connection with these incidents. As evidenced by these exhibits, on September 21,
2005, Plaintiff filed a Step 1 grievance (Grievance No. CS05/06-317) asserting that
Defendants Olivett and Mora harassed Plaintiff from July 20, 2004, to September 16,
2005, which harassment consists of actually spitting and pretending to spit in Plaintiff’s
breakfast and lunch, or condoning such conduct. (Doc. # 329-1 at 1.)
On November 2, 2005, a couple of weeks after Plaintiff’s Step 1 grievance was
denied, Plaintiff filed a Step 2 grievance in which he complained of Defendant Mora’s
continued acts of spitting in Plaintiff’s breakfast and lunch. (Doc. # 329-1 at 2.)
Although Plaintiff does not explicitly mention Defendant Olivett by name, Plaintiff stated
that “[a]ll CSP officials stated in Step 1 grievance were made aware of [Defendant]
Mora’s severe [sic] inappropriate conduct and allowed him to continue[.]” (Id.) The
7
reference to “all CSP officials stated in Step 1 grievance” includes Defendant Olivett.
On November 28, 2005, in response to the Step 2 grievance, Defendant Olivett stated
that she “never laughed or encouraged unprofessional behavior from any staff,” and
stated that Plaintiff “never offered proof of the allegations of [Mora] spitting in [Plaintiff’s]
trays[.]” (Id.) Nevertheless, Defendant Olivett noted that Plaintiff has “been moved to
another unit as a resolution to [his] claims” and, therefore, the “grievance is resolved
and no further action is needed.” (Id.)
Although Defendants acknowledge that the issues raised in Plaintiff’s
aforementioned grievance were deemed resolved when Plaintiff was moved to a new
unit and away from Defendants Mora and Olivett, Defendants nevertheless contend that
“[s]imply moving [ ] Plaintiff does not correct the problem of the alleged wrongful actions
of Defendants Mora and Olivett” and, therefore, Plaintiff should have filed a Step 3
grievance. (Doc. # 329 at 4) (relying upon Ross v. County of Bernalillo, 365 F.3d 1181
(10th Cir. 2004)). However, the Court finds that Defendants are estopped from
asserting Plaintiff’s failure to exhaust as an affirmative defense because Defendants
informed Plaintiff that the “grievance is resolved and no further action is needed.”2 See
Hemphill v. New York, 380 F.3d 680, 688-89 (2d Cir. 2004) (holding that a plaintiff’s
failure to exhaust may be excused where the plaintiff was misled or otherwise deterred
from exhausting all administrative remedies); see also Winston v. Woodward, No. 05
Civ. 3385, 2008 WL 2263191, at *9 (S.D.N.Y. May 30, 2008) (unpublished) (“Estoppel
2
(Doc. # 329-1.)
8
will be found where an inmate reasonably understands that pursuing a grievance
through the administrative process will be futile or impossible.”) (internal quotation
omitted). Thus, having found that Defendants are estopped from raising the failure to
exhaust issue, the Court will consider the merits of Plaintiff’s Eighth Amendment claim.
“The Eighth Amendment prohibits the infliction of cruel and unusual
punishment and requires prison officials to ‘ensure the inmates receive adequate food,
clothing, shelter, and medical care and take reasonable measures to guarantee the
safety of the inmates.’” Strope v. Cline, No. 07-3254, 2010 WL 3721700, at *8 (D. Kan.
Sept. 15, 2010) (unpublished) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(modification omitted and emphasis added)). “Only a significant deprivation of food
gives rise to a claim under the Eighth Amendment.” Id. (citing Thompson v. Gibson,
289 F.3d 1218, 1222 (10th Cir. 2002)). “Prisoners are entitled to nutritionally adequate
food that is prepared and served under conditions which do not present an immediate
danger to their health and well being.” Strope v. Cummings, No. 06-3021, 2009 WL
484453, at *11 (D. Kan. Feb. 26, 2009) (emphasis added) (citing Ramos v. Lamm, 639
F.2d 559, 570-71 (10th Cir. 1980)). “A substantial deprivation of food may be serious
enough to state an Eighth Amendment claim, but minor deprivations for short periods do
not.” Id. (citing Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002)).
“To state an Eighth Amendment food deprivation claim, plaintiff must allege
(1) a sufficiently serious deprivation of the minimal civilized measure of life’s necessities
and (2) deliberate indifference by prison officials to a substantial risk of serious harm.”
9
Id. (citing Strope v. Sebelius, 189 F. App’x 763, 766 (10th Cir. 2006)). “[D]eliberate
indifference means more than mere negligence; the prisoner must show reckless
behavior, in which a person knows of and disregards an excessive risk to inmate health
or safety; the person must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Strope v. Pettis, No. 03-3383, 2004 WL 2713084, at *7 (D. Kan. Nov. 23,
2004) (unpublished) (citing Farmer, 511 U.S. at 837).
In the instant case, Plaintiff’s allegations and the submitted grievances fail to
demonstrate that Plaintiff was deprived of nutritionally adequate food or that the food
was prepared and served under conditions that presented an immediate danger to
Plaintiff’s health and well being. Further, Plaintiff’s allegations fail to demonstrate that
Defendants Mora and Olivett knew of and were deliberately indifferent, i.e., more than
merely negligent, to an excessive risk to Plaintiff’s health or safety. Furthermore,
Plaintiff fails to allege that Defendants Mora and Olivett were aware of the facts from
which the inference could be drawn that a substantial risk of serious harm exists and
that Defendants Mora and Olivett actually drew that inference. Although Plaintiff alleges
that he lost approximately thirty pounds in a fifteen-month period as a result of
Defendants’ spitting in his breakfast and lunch, Plaintiff’s allegations render clear that
his weight loss was a result of Plaintiff’s own choice to not eat his breakfasts and
lunches during that period and not from some poison or other contaminant in the food.
10
While the notion of eating food that has been spat into does make one cringe, the
case law renders clear that Plaintiff’s bare allegations do not rise to the level of a
constitutional violation. Even if Plaintiff’s food was spat into, Plaintiff has not alleged
and cannot prove that such conduct contaminated the food, rendered it poisonous, or
that such food made Plaintiff ill. Further, the submitted grievances call into question the
veracity of Plaintiff’s allegations concerning the alleged spitting. On October 19, 2005,
Defendant Mora appears to have responded to Plaintiff’s Step 1 grievance, Grievance
No. CS05/06-317. (See Doc. # 329-1 at 1.) In that response, Defendant Mora stated,
“The inmate never made an attempt to resolve his issues with dialogue. I am unclear
on the inmates [sic] request for resolution. The inmates [sic] claims are completely
false. This grievance is denied.” (Id.) On November 28, 2005, Defendant Olivett
responded to Plaintiff’s Step 2 grievance, CS05/06-317. (See Doc. # 329-1 at 2.)
In that response, Defendant Olivett stated, “I can assure you CO Mora has never spit
[sic] in your food while I have been in charge of C-pod . . . . You never offered proof
of the allegations of his spitting in your trays (i.e. showing the tray to staff with the spit
in it). You claim other staff have witnessed this . . . we have statements contrary to your
claims.” (Id.) Cf. Strope v. Pettis, No. 03-3383, 2004 WL 2713084, at *8 (D. Kan. Nov.
23, 2004) (unpublished) (finding an actionable Eighth Amendment claim where the
plaintiff alleged that he was denied nutritionally adequate food, served food that was
spoiled and outdated, and that the food was prepared in an area infested with rodents
and insects); Wolters v. Estate of Conner, No. 03-3251, 2005 WL 1842841, at *4-5
11
(D. Kan. July 29, 2005) (unpublished) (denying the defendant’s motion for summary
judgment on Eighth Amendment claim in light of evidence that the prison’s reduction in
food portions rendered the plaintiff ill). Rather, Plaintiff lost weight because he did not
want to eat the food that was not necessarily contaminated or rendered poisonous or
otherwise inedible.
Accordingly, for the foregoing reasons, the Court finds that Plaintiff has failed to
state an actionable Eighth Amendment claim and, therefore, dismissal with prejudice is
warranted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6). See
Lewis v. McKinley County Bd. of County Comm’rs, No. 10-2221, 2011 WL 2194013, at
*7 (10th Cir. June 7, 2011) (unpublished) (stating that dismissal with prejudice is
appropriate only where it is so obvious that the plaintiff cannot prevail on the alleged
facts and it would be futile to give him an opportunity to amend).
B.
CLAIM 7: EIGHTH AMENDMENT VIOLATION AGAINST DEFENDANTS
MATTHEWS, COLTON, HAMULA, AND WOOLFOLK FOR EXCESSIVE
USE OF FORCE
As noted above, Plaintiff alleges that Defendants Matthews, Colton, Hamula, and
Woolfolk subjected him to cruel and unusual punishment arising from excessive use of
force. In particular, Plaintiff alleges that on May 10, 2007, Defendants Matthews,
Hamula, and Colton came to Plaintiff’s cell to handcuff him and escort him to a “special
controls strip cell” for threatening staff members. Then, Defendant Hamula allegedly
placed a spit mask over Plaintiff’s face and roughly escorted Plaintiff to a secluded strip
search area, where Defendants Matthews, Hamula, and Colton stripped Plaintiff naked
12
and placed him into restraints, all of which Defendant Woolfolk allegedly filmed. Next,
Defendants Hamula and Colton allegedly slammed Plaintiff to the floor, applied pressure
to Plaintiff’s wrists to the point of breaking them, and pushed Plaintiff’s thumb under his
left ear lobe with great force. (“May 10 Assault”) (Doc. # 33 at 2-3.) Plaintiff asserts that
Defendants Matthews, Hamula, and Colton subjected him to such pain over the course
of two hours and forty minutes. Plaintiff further asserts that Defendant Woolfolk failed to
intervene during the aforementioned assault.
As with Plaintiff’s Claim 1, Defendants assert that Plaintiff has failed to exhaust
his administrative remedies in connection with his allegations against Defendants
Matthews, Hamula, Colton, and Woolfolk in Claim 7. (Doc. # 329 at 4-5.) The
grievances Defendants provided to the Court support this assertion.
On April 9, 2007, nearly one month before Plaintiff was purportedly assaulted
by Defendants Matthews, Hamula, and Colton and, which attack was purportedly
witnessed by Defendants Woolfolk, Plaintiff filed a Step 1 grievance (Grievance No.
CS06/07-912) against various corrections officers. (Doc. # 329-3 at 1.) In pertinent
part, Plaintiff asserted that Defendant Matthews threatened to paralyze Plaintiff if he
continued to file grievances about his breakfasts and lunches. (Id.) Obviously, the Step
1 grievance made no mention of the May 10 Assault, which is the basis of Plaintiff’s
Claim 7 and which would occur a month later. However, Plaintiff complained of the May
10 Assault in a Step 2 grievance, which he filed on May 30, 2007, and which identified
only Defendants Matthews, Hamula, three other officers who are no longer part of this
13
action,3 and “several other officers” as the perpetrators. (Doc. # 329-3 at 2.) Plaintiff’s
complaint of the purported May 10 Assault in a Step 2 grievance, rather than filing a
Step 1 grievance, does not satisfy the DOC’s grievance procedures, which clearly state
that a substantive issue may not be added at a later step if it has not been contained in
each previous step of that particular grievance. (See AR 850-4-IV-E (2) at Doc. # 329-6
at 4.)
On July 19, 2007, Plaintiff made a second failed attempt to exhaust his
administrative remedies in connection with the purported May 10 Assault by untimely
filing Grievance No. CS07/08-054 (“July 19, 2007 Grievance”). (Doc. # 329-5 at 1.)
In that grievance, in pertinent part, Plaintiff complained of Defendants Matthews, Colton,
Hamula, and Woolfolk’s failure to “stop the unnecessary infliction of pain” on May 10,
2007. Despite the fact that Plaintiff’s grievance relating to the May 10 Assault more
than two months after it purportedly occurred was untimely, his grievance was denied
for “failure to provide any dates or times of these alleged incidents.” (Id.) On August
15, 2007, Plaintiff filed a Step 2 grievance in connection with the May 10 Assault, but in
his description of the events, he made no mention of Defendants Colton, Hamula, and
Woolfolk. (Doc. # 329-5 at 2.) On September 6, 2007, Plaintiff’s Step 2 grievance was
denied because, according to the responding DOC employee, the use of force was
3
The three officers are Warden Reid, who was dismissed from this case on September
22, 2006 (Doc. # 16), and Corrections Officer Gallagher and Captain Miklich, who were
dismissed from this case on September 17, 2009 (Doc. # 219).
14
justified in light of Plaintiff’s “assault on Lt. Matthews,” attempt “to spit on other staff and
kick at them,” and refusal to “move when asked.” (Id.)
In their additional briefing, Defendants now assert that the July 19, 2007
Grievance is untimely because “it does not comport with the 30 day requirement set
forth in Administrative Regulation 850-04-IV-I-1.” However, because Defendants did not
refer to the untimeliness as a basis for denying Plaintiff’s grievance, the Court questions
whether Defendants waived their right to assert untimeliness. In any event, regardless
of whether Defendants waived their right to argue that Plaintiff’s grievance was
untimely, the Court finds that Plaintiff failed to exhaust his administrative remedies
because he never filed a Step 3 grievance. (See Doc. # 392-5.)
The Court has considered Plaintiff’s Reply to Order to Show Cause, in which
Plaintiff attempts to justify his failure to exhaust his administrative remedies with respect
to the purported May 10 Assault. (Doc. # 331.) Plaintiff asserts that his failure to
exhaust should be excused because of threats of harm by prison officials, prison
officials have destroyed or confiscated his grievances, or his grievances got lost in
prison mail. (Doc. # 331 at 2-3.) However, these assertions are vague and
unsupported. Moreover, the number of grievances filed by Plaintiff discredit his
assertions that the alleged harassment served to chill his exercise of his grievance
rights.4 Therefore, the Court finds that dismissal without prejudice of Plaintiff’s seventh
4
Additionally, Plaintiff’s ability to file this lawsuit, as well as at least four others in this
Court within the past two years, renders clear that any threats of harm have not chilled Plaintiff.
See Case Nos. 09-cv-02207, 10-cv-02050, 11-cv-00169, and 11-cv-01443. In addition to the
four aforementioned cases, Court records reveal that Plaintiff has managed to file a total of
15
claim for relief is warranted. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.
2009) (“a dismissal based on a failure to exhaust administrative remedies should be
without prejudice”) (emphasis omitted).
C.
ADDITIONAL CONDUCT
As previously noted, the Second Amended Final Pretrial Order (Doc. #321)
identifies additional conduct as the basis for Plaintiff’s Claims 1 and 7. Having reviewed
the substance of the allegations with respect to those claims, the Court finds that the
alleged conduct fails to support actionable claims for Eighth Amendment violations and,
therefore, dismissal is warranted pursuant to 28 U.S.C. § 1915 and Rule 12(b)(6). The
Court will address the asserted conduct, in turn, below.
1.
Filing “False” Disciplinary Reports (Claim 1 against Defendants Mora and
Olivett and Claim 7 against Defendants Matthews, Hamula, Colton and
Woolfolk)
In his Complaint and the Second Amended Final Pretrial Order, Plaintiff alleges
that Defendants Mora and Olivett “fil[ed] numerous false C.O.P.D. disciplinary reports to
restrict all his TV, phone and canteen privileges, and abolish all prospects of parole.”
(Doc. # 321 at 2; see also Doc. # 3 at 22 (“When Plaintiff lashes out they file COPD
violations or bogus and trumped up violations.”)). Also in the Second Amended Final
Pretrial Order, Plaintiff accuses Defendants Matthews, Hamula, Colton and Woolfolk of
also filing false disciplinary reports against him. (Doc. # 321 at 2.)
seven other cases against prison officials since 1990. (See Case Nos. 90-cv-00018, 91-cv01580, 93-cv-01950, 96-cv-00107, 99-cv-01573, 02-cv-01796, and 08-cv-01992.)
16
Although the Court has scoured Plaintiff’s long-winded and difficult-to-discern
allegations, it was unable to locate any substantiated assertions against Defendants
Mora, Olivett, Matthews, Hamula, Colton, and/or Woolfolk for filing false disciplinary
reports. Even if Plaintiff had properly alleged such conduct, “prisoners have no
constitutional protections for being falsely or wrongly accused of conduct which may
result in the deprivation of certain liberty interests provided that the prisoner is afforded
due process.” Cooper v. Belcher, No. 08-cv-01599, 2010 WL 3359709, at *20 (D. Colo.
Aug. 25, 2010) (unpublished) (citing Wolff v. McDonnell, 418 U.S. 539, 571 (1974);
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). Further, “an ‘inmate must
allege more than his personal belief that he is the victim of retaliation.’” Id. (quoting
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (emphasis added)). In the instant
case, Plaintiff has not alleged that he was denied due process. Plaintiff has also not
asserted anything more than a personal belief that he has been retaliated. Accordingly,
Plaintiff’s first and seventh claims of relief are also dismissed with prejudice to the
extent they are premised on Defendants’ purported filing of false disciplinary reports.
2.
Destroying and Confiscating Personal Legal Property to Hinder Access
to the Court (Claim 1 against Defendants Mora and Olivett)
In the Second Amended Final Pretrial Order, Plaintiff also alleges that
“Defendants Mora and Olivett destroyed and confiscated Plaintiffs personal and legal
property to hinder his access to the court.” (Doc. # 321 at 2.) Once again, the Court
was unable to find in the Complaint or supplements thereto assertions that Defendants
Mora and Olivett confiscated his legal property. In any event, while destruction of legal
17
documents can give rise to a constitutional claim, vague, unsupported, and speculative
allegations, such as in the instant case, are insufficient. See Cooper, 2010 WL
3359709, at *19. Finally, even if Defendants Mora and Olivett did destroy and
confiscate legal property, Plaintiff fails to allege that he was actually injured. Further,
Plaintiff’s prolific court filings demonstrate that Plaintiff’s court access was not hindered
and undermine any allegations of injury. See id. at *18-19. Accordingly, dismissal with
prejudice of Plaintiff’s first claim is also warranted to the extent that it is premised on
Defendants’ purported destruction and confiscation of personal legal property.
3.
Denying Plaintiff Medical Attention By Dr. Craney (Claim 7 against
Defendants Matthews, Hamula, Colton, and Woolfolk)
Finally, in the Second Amended Final Pretrial Order, but nowhere in the
Complaint or its supplements, Plaintiff asserts that, after “assaulting” him on May 10,
2007, Defendants Matthews, Hamula, Colton, and Woolfolk denied him medical
attention by Dr. Craney. (Doc. # 321 at 2.)
While it is well-established that denial of medical treatment can give rise to an
actionable Eighth Amendment claim, such denial must amount to a “deliberate
indifference to serious medical needs” of a prisoner. See Mallory v. Jones, No. 10-cv02564, 2011 WL 1750234, at *4 (D. Colo. May 3, 2011) (unpublished) (citing Estelle
v. Gamble, 429 U.S. 97, 105-05 (1976)). An Eighth Amendment claim for deliberate
indifference involves a “two-pronged inquiry, comprised of an objective component and
a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). With
respect to the objective component, a medical need is serious if it is ‘one that has been
18
diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (quotation and citation omitted). “A prisoner
may satisfy the subjective component by showing that defendants’ delay in providing
medical treatment caused either unnecessary pain or a worsening of her condition.”
Mata v. Saiz, 427 F.3d 745, 755 (10th Cir. 2005). “[P]rison officials who ‘actually knew
of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.’” Howard
v. Waide, 534 F.3d 1227, 1239 (10th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S.
825, 844-45 (1994)).
In the instant case, Plaintiff has not identified the nature of the injuries and has
not alleged that he was denied any kind of medical attention whatsoever. Moreover,
in failing to assert a denial of medical care claim in the Complaint or its supplements,
Plaintiff has denied Defendants the opportunity to respond to these allegations.
Accordingly, the Court finds that dismissal without prejudice of Plaintiff’s seventh claim
is warranted to the extent it is premised upon a purported denial of medical treatment by
Defendants Matthews, Hamula, Colton, and Woolfolk.
19
IV. CONCLUSION
Accordingly, IT IS ORDERED THAT:
(1)
The following claims are DISMISSED WITH PREJUDICE:
•
Claim 1 in its entirety; and
•
Claim 7 to the extent it is premised on Defendants Matthews,
Hamula, Colton, and Woolfolk’s purported filing of false disciplinary
reports;
(2)
The following claim is DISMISSED WITHOUT PREJUDICE:
•
Claim 7 to the extent it is premised on Defendants Matthews,
Hamula, Colton, and Woolfolk’s alleged assault of Plaintiff on
May 10, 2007 and/or Defendants Matthews, Hamula, Colton,
and Woolfolk’s purported denial of access to medical treatment
by Dr. Craney; and
(3)
The three-day jury trial is set to commence on September 6, 2011 is
VACATED;
(4)
This case is DISMISSED; and
(5)
Plaintiff’s Motion to Amend Final Pretrial Order (Doc. # 332) and Plaintiff’s
Request for Review of: Trial Material, and Request for Subpoena (Doc.
# 336) are DENIED AS MOOT.
DATED: August
22
, 2011
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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