Cordova v. Dowling et al
ORDER. The 56 Recommendation of United States Magistrate Judge is accepted. Defendants' 41 motion to dismiss or, alternatively, for summary judgment on plaintiff's third claim for relief is granted. Claims One, Two, and Six are dismissed and summary judgment is granted to defendants on Claim Three. Plaintiff's 63 , 65 motions to supplement are denied. This case shall be closed in its entirety. By Judge Philip A. Brimmer on 8/27/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01130-PAB-CBS
SGT. RAY DOWLING, et al.,
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 56]. The magistrate judge
recommends that the Court grant the motion to dismiss or, alternatively, for summary
judgment on plaintiff’s third claim for relief [Docket No. 41] and close this case in its
entirety. On April 25, 2012, the Court granted [Docket No. 58] plaintiff an extension of
time until May 24, 2012 to file any objections to the Recommendation. Plaintiff filed his
objections [Docket No. 59] on May 25, 2012. Nevertheless, the Court will consider
plaintiff’s objections to be timely and will review de novo those aspects of the
Recommendation to which plaintiff has objected. See Fed. R. Civ. P. 72(b)(3). In light
of plaintiff’s pro se status, the Court will construe his filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
Plaintiff, who is in the custody of the Colorado Department of Corrections
(“CDOC”) at the Sterling Correctional Facility (“SCF”), has four remaining claims in this
case (Claims One, Two, Three, and Six). The magistrate judge recommends that the
Court dismiss Claims One and Two, which allege violations of the Eighth Amendment,
the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act. The magistrate
judge concluded that plaintiff’s Eighth Amendment claim failed to comply with the twoyear statute of limitations applicable to claims brought pursuant to 42 U.S.C. § 1983.
The magistrate judge further found that, because plaintiff sued defendants only in their
individual capacities, plaintiff failed to state an ADA or Rehabilitation Act claim. The
magistrate judge further recommends that the Court dismiss Claim One, which alleges
a violation of the First Amendment, due to plaintiff’s failure to adequately allege
personal participation by the only defendant named in that claim.
Plaintiff has not objected to these aspects of the Recommendation. See
generally Docket No. 59.1 In the absence of an objection, the district court may review
a magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“[i]t does not appear that Congress intended to require district
court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings”). In this matter, the Court has
reviewed the Recommendation’s conclusions regarding Claims One, Two, and Six to
See Docket No. 61 at 2 (where defendants stated that, “[i]n his objections,
Plaintiff challenged only the recommendation to grant summary judgment on Claim
Three” and “did not object to the Court’s recommendation to dismiss Claims One, Two,
and Six”); Docket No. 62 (where plaintiff, in reply, did not dispute that reading of his
satisfy itself that there is “no clear error on the face of the record.”2 Fed. R. Civ. P.
72(b), Advisory Committee Notes. Based on this review, the Court has concluded that
the Recommendation is a correct application of the facts and the law.
Plaintiff objects to the magistrate judge’s recommendation that defendants be
granted summary judgment on Claim Three, an excessive force claim pursuant to the
Fourth Amendment arising out of an alleged incident on July 27, 2009, due to plaintiff’s
failure to exhaust the available administrative remedies. The Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e, requires prisoners to exhaust available administrative
remedies prior to filing a federal lawsuit regarding prison conditions. A plaintiff’s failure
to complete the administrative review process is an affirmative defense. See Jones v.
Bock, 549 U.S. 199, 216 (2007). Therefore, defendants had the initial burden of
coming forward with evidence showing their entitlement to summary judgment on this
claim. See Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).
“[P]risoners must ‘complete the administrative review process in accordance with
the applicable procedural rules.’” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo,
548 U.S. 81, 88 (2006)). Plaintiff was required to complete a three-step grievance
process. See CDOC Administrative Regulation (“AR”) 850–04; Docket No. 41-1 at 519. AR 850-04 requires that grievances include “the relief requested.” See Docket No.
41-1 at 7; see id. at 8 (“Each grievance shall address only one problem or complaint
and include a description of the relief requested.”). Defendants filed plaintiff’s three
This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
grievances, see Docket No. 41-1 at 20, 22-23, wherein plaintiff failed to request any
relief for the alleged excessive force about which he complained. See id. at 20 (“Relief:
I just want to exhaust the grievance system and file a lawsuit in [f]ed[eral] [c]ourt.”). In
fact, plaintiff appeared to disclaim any interest in having his complaints addressed via
the grievance procedures, thus thwarting the very purpose of the PLRA exhaustion
requirement. See id. at 23 (“Relief: As I said before, if I had requested relief against
these officers, nothing would ever come. SCF staff think they are above the law and its
conduct shows daily. My only true relief will be in the [f]ederal court. AR 850-4 does
not say a[n] inmate must pr[e]vail before or after exercising the grievance system. That
is what I am doing. The grievance system is just a barrier to discourage inmates from
using it. And [the] third [s]tep is a mockery.”); Whitington v. Ortiz, 472 F.3d 804, 807
(10th Cir. 2007) (“The purpose of this exhaustion requirement is to reduce the quantity
and improve the quality of prisoner suits by (1) allowing prison officials an opportunity to
satisfy the inmate’s complaint — thus obviating the need for litigation; (2) filtering out
some frivolous claims; and (3) creating an administrative record that facilitates review of
cases that are ultimately brought to court.”) (citing Porter v. Nussle, 534 U.S. 516, 52425 (2002)).3 Therefore, the Court will accept the Recommendation’s conclusion that
Plaintiff argues that there were no remedies applicable to his excess force
claim. See Docket No. 59 at 1. AR 850-04, however, identifies, among other examples
of remedies, “modification of facility policy” and “assurance that abuse will not recur.”
Docket No. 41-1 at 6. Furthermore, “[e]ven when [a] prisoner seeks relief not available
in grievance proceedings . . . exhaustion is a prerequisite to suit.” Porter, 534 U.S. at
524. And the Supreme Court “will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.” Booth v. Churner,
532 U.S. 731, 741 n. 6 (2001).
summary judgment should enter in favor of defendants on Claim Three.4
Plaintiff filed documents entitled “Judicial Notice” on July 11, 2012 [Docket No.
63] and August 27, 2012 [Docket No. 65]. The Court interprets these documents as
motions requesting that the summary judgment record, and his objections, be
supplemented to include grievances he has filed in the last few months regarding the
July 27, 2009 incident. As an initial matter, this grievances post-date the initiation of
this action in federal court, and “[r]esort to a prison grievance process must precede
resort to a court.” Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir.
2003) (citation and quotation marks omitted), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199; see Wilson v. Williams, 2010 WL 4676994, at *2 n.2 (W.D. Okla.
Sep. 24, 2010) (“Because exhaustion of administrative remedies is a prerequisite to
filing a civil rights action, those [post-complaint] requests to staff are not relevant to the
determination of whether Plaintiff satisfied § 1997e(a)’s exhaustion requirement.”).
Furthermore, AR 850-04 requires that a “Step 1 grievance must be filed no later than 30
calendar days from the date the offender knew, or should have known, of the facts
giving rise to the grievance.” Docket No. 41-1 at 10.5 Consequently, the Court will deny
plaintiff’s request to consider the May 16, 2012 grievance.
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
The Court, therefore, need not address defendants’ argument regarding
whether plaintiff’s step-three grievance was timely. Cf. Docket No. 56 at 13.
The Court notes that, in his May 16 grievance, plaintiff seeks an assurance that
he will not be subjected to excessive force again. See Docket No. 63 at 3 (citing AR
850-04’s section identifying examples of available remedies); cf. supra n. 3.
No. 56] is ACCEPTED. It is further
ORDERED that defendants’ motion to dismiss or, alternatively, for summary
judgment on plaintiff’s third claim for relief [Docket No. 41] is GRANTED. It is further
ORDERED that Claims One, Two, and Six are dismissed and summary
judgment is granted to defendants on Claim Three. It is further
ORDERED that plaintiff’s motions to supplement [Docket Nos. 63, 65] are
DENIED. It is further
ORDERED that this case shall be closed in its entirety.
DATED August 27, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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