Gatlin v. Holdridge et al

Filing 73

ORDER Plaintiffs Objections to the Magistrate Judges November 21, 2012 Recommendation ECF Nos. 68 & 71 are SUSTAINED; The Magistrate Judges November 21, 2012 Recommendation ECF No. 66 is ADOPTED with respect to Plaintiffs First and Fourteent h Amendment claim (Claim One) and REJECTED with respect to Plaintiffs Eighth Amendment claim (Claim Two); Defendants Motions to Dismiss (ECF Nos. 24 & 38) are GRANTED with respect to Plaintiffs First and Fourteenth Amendment claim (Claim One) and DENIED with respect to Plaintiffs Eighth Amendment claim (Claim Two); Plaintiffs First and Fourteenth Amendment claim (Claim One) is DISMISSED WITHOUT PREJUDICE for failure to exhaust; The Magistrate Judges September 25, 2012 Recommendation ECF N o. 60 is ADOPTED and Defendant Holdridge is DISMISSED WITHOUT PREJUDICE as a defendant; and The Magistrate Judge shall promptly set this matter for a Scheduling Conference pursuant to Fed. R. Civ. P. 16(b) and Local Rule 16.1, as this action remains pending as to Plaintiffs Eighth Amendment claim (Claim Two). y Judge William J. Martinez on 1/17/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 1-cv-03004-WJM-KLM
ANTWAN OCIE GATLIN,
Plaintiff,
v.
MARY HOLDRIDGE, Correctional Officer.
STEVE BROWN, SR., Investigator,
JESSICA JARAMILLO, Correctional Officer,
STEVE BROWN, JR., Assistant Warden.
CHAD PENNER, Case Manager,
CHRIS DURGA, Correctional Officer,
PAUL DOSE, Shift Supervisor,
LARRY COX, Chief of Security,
JACK CHAPMAN, Hearings Disciplinary Officer, and
ELLEN HAARMANN, Correctional Counselor,
Defendants.

ORDER ADOPTING IN PART AND REJECTING IN PART NOVEMBER 21, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND
ADOPTING SEPTEMBER 25, 2012 RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE

This matter is before the Court on the November 21, 2012 Recommendation by
U.S. Magistrate Judge Kristen L. Mix (ECF No. 66) that Defendants’ Motions to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) (ECF Nos. 24 & 38) be granted, and the September
25, 2012 Recommendation by Magistrate Judge Mix (ECF No. 60) that Defendant Mary
Holdridge (“Holdridge”) be dismissed without prejudice.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a timely and specific objection,
“the district court may review a magistrate . . . [judge’s] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory
Committee’s Note (“When no timely objection is filed, the court need only satisfy itself
that there is no clear error on the face of the record.”). In conducting its review, “[t]he
district court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however,
cannot act as advocate for Plaintiff, who must still comply with the fundamental
requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
II. BACKGROUND
Neither party objects to the recitation of facts set forth by the Magistrate Judge in
the November 25, 2012 Recommendation. (ECF No. 66 at 2-6.) Accordingly, the Court
adopts and incorporates Section I of that Recommendation as if set forth herein.
Briefly, Plaintiff is a pro se prisoner at the Trinidad Correctional Facility, previously
incarcerated at all times relevant to this litigation at the Bent County Correctional
Facility in Las Animas, Colorado. Defendants are current and former employees of the

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Colorado Department of Corrections (“CDOC”) or the Corrections Corporation of
America (“CCA”) at the Bent County Correctional Facility. Plaintiff’s Amended
Complaint brings two claims against Defendants: (1) a First and Fourteenth
Amendment claim relating to the imposition of discipline, including punitive segregation
(“Claim One”); and (2) an Eighth Amendment claim relating to Defendants’ alleged
failure to protect Plaintiff from harm by other inmates (“Claim Two”). (Am. Compl. (ECF
No. 13).)
On April 17, 2012, Defendants Steve Brown, Sr., Jessica Jaramillo, Steve
Brown, Jr., Chris Durga, Larry Cox, Jack Chapman and Ellen Haarmann filed a Motion
to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 24.) On July 5, 2012,
Defendants Chad Penner and Paul Dose filed a separate Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(6). (ECF No. 38.) Both motions argue that Plaintiffs’ claims
should be dismissed for failure to exhaust.
On October 19, 2012, Magistrate Judge Mix issued an Order converting
Defendants’ Motions to Dismiss into motions for summary judgment with respect to the
issue of exhaustion and inviting submission of additional evidence from the parties
regarding that issue. (ECF No. 63.) After receiving no additional evidence from the
parties, on November 21, 2012, the Magistrate Judge entered a Recommendation to
grant Defendants’ Motions. (ECF No. 66.) On December 12, 2012, Plaintiff filed an
Objection to the Recommendation on the basis that he did not receive the Magistrate
Judge’s order inviting additional evidence, and was unable to conduct discovery to
rebut Defendants’ exhaustion argument. (ECF No. 68.) Defendants filed a joint
Response to Plaintiff’s Objection on December 28, 2012. (ECF No. 70.) Plaintiff filed a
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Reply to Defendants’ Response on January 15, 2013. (ECF No. 71.)
On August 30, 2012, Magistrate Judge Mix issued an Order to Show Cause why
Defendant Holdridge should not be dismissed due to Plaintiff’s failure to serve her with
the Summons and Amended Complaint pursuant to Fed. R. Civ. P. 4(m). (ECF No.
55.) On September 12, Plaintiff filed a Response to the Order to Show Cause but
provided no additional information that could be used to effect service on Defendant
Holdridge. (ECF No. 56.) On September 25, 2012, the Magistrate Judge entered a
Recommendation to dismiss Defendant Holdridge. (ECF No. 60.) On October 15,
2012 Plaintiff filed an Objection to the Magistrate Judge’s September 25, 2012
Recommendation. (ECF No. 62.)
III. ANALYSIS
The Court will address the Magistrate Judge’s two Recommendations and
Plaintiff’s objections thereto, in turn, below.
A.

November 21, 2012 Recommendation to Dismiss Plaintiff’s Claims for
Failure to Exhaust
The Magistrate Judge’s November 21, 2012 Recommendation contains the

following findings and conclusions: (1) Plaintiff failed to exhaust the state court
remedies provided for in Colo. R. Civ. P. 106(a)(4) with regard to Claim One, his First
and Fourteenth Amendment claim (ECF No. 66 at 16); and (2) Plaintiff failed to exhaust
the administrative remedies available to prisoners in the CDOC system with regard to
Claim Two, his Eighth Amendment claim (Id. at 13-16). Plaintiff objects to the second
of these findings, but is silent as to the first. (See ECF Nos. 68 & 71.)

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As to the first finding, the Court agrees with the unobjected to findings in the
Recommendation that Plaintiff has failed to exhaust state court remedies for his claims
arising out of his placement in segregation or other COPD discipline. Accordingly, the
Court adopts the Recommendation that Defendants’ Motions to Dismiss be granted
with respect to Plaintiff’s Claim One for failure to exhaust state court remedies.
As to the second finding, the Court has reviewed the Recommendation and finds
that it is well-reasoned and thorough. On the record before the Magistrate Judge, the
Court agrees with the findings and conclusions made therein. However, in his
Objection, Plaintiff argues that he did not receive the Magistrate Judge’s Order inviting
the submission of additional evidence on the issue of exhaustion, and states that, had
he received the Order, he would have moved for discovery in order to obtain evidence
to prove exhaustion of administrative remedies. (ECF No. 68 at 2.) Because Plaintiff’s
argument was not raised until after the Recommendation was entered, it was not
passed on by the Magistrate Judge.
Exhaustion of administrative remedies is required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a), which provides that:
No action shall be brought with respect to prison conditions under section
1983 of this title, 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). The United States Supreme Court has described this exhaustion
requirement as “mandatory.” Jones v. Bock, 549 U.S. 199, 211 (2007); Woodford v.
Ngo, 548 U.S. 81, 84 (2006).

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The Colorado Department of Corrections established a grievance process for
prisoners in CDOC Administrative Regulation 850-04 (ECF No. 24 Ex. A.), which
require a prisoner to file Step 1, Step 2, and Step 3 grievances for each claim in order
to exhaust available administrative remedies. The Magistrate Judge reviewed the
grievances that Plaintiff submitted and found that Plaintiff had failed to present
evidence of all three grievance steps to demonstrate exhaustion for Claim Two, his
Eighth Amendment claim arising from the incidents of December 16, 2009 and
February 9, 2010. (ECF No. 66 at 13-16.)
Plaintiff objects to this finding due to his inability to obtain discovery of the
additional grievances he claims he submitted, preventing him from proving that he
exhausted his administrative remedies.1 Plaintiff states in his objection that he did not
receive a copy of Magistrate Judge Mix’s Order of October 19, 2012, and therefore that
he had no notice that additional evidence had been invited and no opportunity to file a
motion for discovery. (ECF No. 68 at 2.) Plaintiff’s Objection makes reference to his
July 17, 2012 Motion for Discovery and Extension Until Discovery is Answered (ECF
No. 40), which was denied without prejudice as premature. (See ECF No. 42.)
Plaintiff essentially argues that because he did not receive notice of the
Magistrate Judge’s order converting the Defendants’ Motions to Dismiss to motions for

1

In his Reply to Defendants’ Response to his Objection, Plaintiff also argues that “[a]ll 3
steps of BC 09/10-071 are submitted” (ECF No. 71 at 2), correctly referring to his having
provided the Court with copies of three documents appearing to constitute an exhausted
administrative process for grievance number BC 09/10-071. However, the factual basis for the
grievance to which Plaintiff refers is related to Plaintiff’s First and Fourteenth Amendment Claim
concerning Defendant Dose, and therefore is subject to the state court exhaustion requirements
discussed above.

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summary judgment with respect to the exhaustion issue, he had no opportunity to make
a second motion for discovery. (ECF Nos. 68 & 71.) The Court notes that, for reasons
not apparent in the record, no scheduling conference has been held in this case and no
scheduling order has been entered pursuant to Fed. R. Civ. P. 16(b). Without an
opportunity for discovery, Plaintiff cannot respond effectively to a motion for summary
judgment. The Court agrees that Plaintiff must be provided that opportunity, and
therefore sustains Plaintiff’s objections with regard to the issue of exhaustion of
administrative remedies on Claim Two. The Court therefore rejects the
Recommendation as it applies to Claim Two and denies the Motions to Dismiss in this
regard.
B.

September 25, 2012 Recommendation to Dismiss Defendant Holdridge
The Magistrate Judge’s September 25, 2012 Recommendation found that, after

multiple attempts, Plaintiff failed to provide information sufficient to serve the Summons
and Amended Complaint on Defendant Holdridge. Plaintiff’s objection to these findings
(ECF No. 62) states that he was unaware that Holdridge had not been served until he
received notice of the August 30, 2012 Order to Show Cause (ECF No. 55), but
provides no additional information allowing for proper service on Holdridge. As
Plaintiff’s objection neither indicates that Holdridge has been properly served, nor
provides any information regarding how service can be effected in the future, the Court
agrees with the September 25, 2012 Recommendation that Defendant Holdridge be
dismissed without prejudice.

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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objections to the Magistrate Judge’s November 21, 2012
Recommendation (ECF Nos. 68 & 71) are SUSTAINED;

2.

The Magistrate Judge’s November 21, 2012 Recommendation (ECF No. 66) is
ADOPTED with respect to Plaintiff’s First and Fourteenth Amendment claim
(Claim One) and REJECTED with respect to Plaintiff’s Eighth Amendment claim
(Claim Two);

3.

Defendants’ Motions to Dismiss (ECF Nos. 24 & 38) are GRANTED with respect
to Plaintiff’s First and Fourteenth Amendment claim (Claim One) and DENIED
with respect to Plaintiff’s Eighth Amendment claim (Claim Two);

4.

Plaintiff’s First and Fourteenth Amendment claim (Claim One) is DISMISSED
WITHOUT PREJUDICE for failure to exhaust;

5.

The Magistrate Judge’s September 25, 2012 Recommendation (ECF No. 60) is
ADOPTED and Defendant Holdridge is DISMISSED WITHOUT PREJUDICE as
a defendant; and

6.

The Magistrate Judge shall promptly set this matter for a Scheduling Conference
pursuant to Fed. R. Civ. P. 16(b) and Local Rule 16.1, as this action remains
pending as to Plaintiff’s Eighth Amendment claim (Claim Two).

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Dated this 17th day of January, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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