Rozenberg v. Knight et al
Filing
88
ORDER The Magistrate Judges Recommendation ECF No. 68 is ACCEPTED; Defendants Motion to Dismiss or Motion for Summary Judgment ECF No. 27 is GRANTED; Plaintiffs claims against Defendants in their official capacities are DISMISSED WITHOUT PREJUD ICE based on Eleventh Amendment immunity; Plaintiffs claims based on conduct alleged to have occurred before February 17, 2010 are DISMISSED WITH PREJUDICE as barred by the statute of limitations; Plaintiffs claims against Sgt. Perez in his indi vidual capacity are DISMISSED WITHOUT PREJUDICE for failure to properly exhaust all available administrative remedies; Plaintiffs claims against Lt. Knight in her individual capacity are DISMISSED WITHOUT PREJUDICE for failure to state a claim up on which relief could be granted; and The Clerk shall enter judgment in favor of Defendants on all claims. Each party shall bear his or her own costs, by Judge William J. Martinez on 3/29/2013.(ervsl, ) (Main Document 88 replaced on 3/29/2013) (ervsl, ). (Main Document 88 replaced on 3/29/2013) (ervsl, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-0431-WJM
SAM ROZENBERG
Plaintiff,
v.
JUDITH KNIGHT, and
MIKE PEREZ
Defendants.
ORDER ADOPTING RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
This matter is before the Court on the November 19, 2012 Recommendation by
U.S. Magistrate Judge Craig B. Shaffer (ECF No. 68) that Defendants’ Motion to
Dismiss or Motion for Summary Judgment (ECF No. 27) be granted. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b).
I. BACKGROUND
The facts are detailed in the Recommendation, which the Court incorporates
herein. Briefly, at the time relevant to these events, Plaintiff was a pro se prisoner at
the Arkansas Valley Correctional Facility in Crowley, Colorado. Defendants are
employees of the Colorado Department of Corrections (“CDOC”). Plaintiff’s Complaint
arises out of an attack that he suffered at the hands of a fellow prisoner on February
17, 2010. Amongst other claims, Plaintiff alleges that Defendants failed to adequately
protect him against this attack and to properly intervene to stop the attack. (ECF No.
6.)
In lieu of an answer, Defendants filed a Motion to Dismiss or Motion for
Summary Judgment (“Motion”). (ECF No. 27.) After multiple extensions, Plaintiff filed
his opposition to the Motion. (ECF No. 65.) Defendants filed their reply. (ECF No. 66.)
On November 19, 2012, Magistrate Judge Shaffer issued his Recommendation that the
Motion be granted. (ECF No. 68.) Plaintiff filed a timely Objection. (ECF No. 85.)
II. STANDARD OF REVIEW
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the District 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). An objection is proper if it is filed within fourteen
days of the Magistrate Judge’s recommendations and specific enough to enable the
“district judge to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057,
1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). 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 addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe
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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).
III. ANALYSIS
The Magistrate Judge’s Recommendation arrives at the following conclusions:
(1) Plaintiff’s claims brought against Defendants in their official capacities are barred by
the Eleventh Amendment; (2) Plaintiff’s claims arising out of events that occurred
before February 15, 2010 are barred by the statute of limitations; (3) Plaintiff’s claims
against Sgt. Mike Perez should be dismissed for failure to exhaust administrative
remedies; (4) Plaintiff fails to state a claim for relief against Lt. Judith Knight in her
individual capacity. (ECF No. 68 at 7-18.)
Plaintiff does not object to all of these recommendations. In fact, Plaintiff’s
Objection addresses only whether he exhausted his administrative remedies as to his
claims against Defendant Perez and whether he has stated a claim against Defendant
Knight. (ECF No. 85 at 3-4.) Because Plaintiff has not specifically objected to the
Magistrate Judge’s first two recommendations, the Court need only review the same for
clear error. Summers, 927 F.2d at 1167; Fed. R. Civ. P. 72. Having reviewed the
relevant portions of the record, the Court finds no error in the Magistrate Judge’s
analysis on these points. Therefore, the Court adopts the Recommendation and finds
that Plaintiff’s claims against Defendants in their official capacities are barred by the
Eleventh Amendment and any claim arising out of events that occurred prior to
3
February 15, 2010 are barred by the statute of limitations.
Because Plaintiff has specifically objected to the Magistrate Judge’s
recommendation that Plaintiff’s claims against the Defendants in their individual
capacities be dismissed, the Court will review those portions of the Recommendation
de novo below.
A.
Exhaustion of Claims against Defendant Perez
The Magistrate Judge found that Plaintiff had failed to exhaust his claims against
Defendant Perez1 because “the evidence demonstrates that Mr. Rozenberg did not
properly complete the CDOC’s 3-step grievance process.” (ECF No. 68 at 13.)
Plaintiff’s grievance against Sgt. Perez was Grievance Number AVO4/10-384. (ECF
No. 27-1 at 20-23.) Plaintiff has admitted that he did not properly exhaust his
administrative remedies with respect to AVO4/10-384, but alleges that he was excused
from doing so because he already received a favorable outcome as a result of an
informal grievance process through the Inspector General. (ECF No. 85 at 2.)
Specifically, Plaintiff points to evidence showing that he was removed from kitchen
duties as a result of his interaction with the Inspector General so there was no need for
him to continue to pursue his formal grievance. (Id.)
Plaintiff is correct that, once a prisoner obtains the relief he seeks in a
grievance—whether through a formal or informal process—he is not required to
continue to pursue the administrative process. See Ross v. Bernalillo Cty., 365 F.3d
1
Plaintiff filed a separate grievance (Grievance Number AVO9/10-386) related to his
claims against Lt. Knight. (ECF No. 65-2.) This grievance was properly exhausted and the
claims against Lt. Knight are discussed below.
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1181, 1187 (10th Cir. 2004). However, in this case, Plaintiff’s grievance was addressed
to issues other than his work assignment in the kitchen. (ECF No. 27-1 at 20-23.)
Specifically, Plaintiff’s grievance complained that Sgt. Perez was negligent in failing to
properly discipline prisoners who had been harassing Plaintiff before the attack. (Id.)
Plaintiff also alleges that Sgt. Perez witnessed the attack and failed to intervene. (Id.)
In his grievance, Plaintiff requested that Sgt. Perez be made to step in to immediately
correct harassing behavior, treat sex harassment as illegal, and “reform his security
skills.” (ECF No. 27-1 at 22.)
While Plaintiff’s removal from his work assignment in the kitchen may have been
provided some of the relief he sought in the grievance, it was not “all the relief that is
available under the institution’s administrative procedures.” Ross, 365 F.3d at 1187. In
response to Plaintiff’s Step 1 grievance, the reviewing officer found that Sgt. Perez had
acted professionally and did not attribute any fault to Sgt. Perez. Plaintiff fails to point
to any evidence showing that his request for Sgt. Perez to be reprimanded or made to
change the manner in which he supervised the kitchen was terminated in his favor.
Plaintiff also fails to show that any institutional changes were made to the manner in
which inmates were removed from kitchen duties or reprimanded for their behavior
during kitchen duties. Thus, Plaintiff has not shown that his failure to exhaust his
administrative remedies was excused by the fact that he had already achieved all of the
relief he sought.2
2
Plaintiff seems to confuse the two grievances that he filed. In his Objection, Plaintiff
argues that he exhausted his administrative remedies as shown by the fact that, in deciding
Plaintiff’s Step 3 grievance, grievance officer DeCesaro responded to three separate issues.
(ECF No. 85 ¶¶ 11-12.) However, the evidence supporting this argument (ECF No. 65) relates
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Moreover, Plaintiff’s argument that he received all of the relief he sought through
his grievance is disingenuous when viewed in the context of this incident. The assault
on Plaintiff occurred on February 17, 2010 and Plaintiff was removed from his kitchen
duties by the Inspector General on February 18, 2010. Despite the fact that he had
already been removed from kitchen duties, on February 22, 2010, Plaintiff filed his Step
1 grievance. (ECF No. 27-1 at 20.) If Plaintiff had truly received all of the relief he
sought, there would have been no need to file this Step 1 grievance.
Thus, the Court finds that Plaintiff failed to properly exhaust his administrative
remedies against Defendant Perez and such claims are dismissed without prejudice.
B.
Merits of Claims against Lt. Knight
The Magistrate Judge recommends that Plaintiff’s claims against Lt. Knight be
dismissed with prejudice for failure to state a claim upon which relief could be granted.
(ECF No. 68 at 15-18.) Specifically, the Magistrate Judge found that Plaintiff “fails to
plead sufficient facts to support an inference that [Lt. Knight] had any personal
participating in or any supervisory liability for the alleged violations of his constitutional
rights.” (Id. at 15.)
Plaintiff objects to the Magistrate Judge’s finding that he has stated only
conclusory allegations against Lt. Knight and argues that he “needs the court to grant a
leave for discovery material from the defendants to support plaintiff’s allegations.” (ECF
No. 85 at 3.) Plaintiff contends that he is not the only victim of the “wonton [sic]
to Grievance Number AVO9/10-386. As noted above, the Court finds that Plaintiff properly
exhausted his administrative remedies on that grievance. However, such exhaustion does not
excuse Plaintiff’s failure to properly exhaust his administrative remedies in Grievance Number
AVO9/10-384.
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behavior and deliberate indifference towards prisoner safety” by Lt. Knight. (Id. at 4.)
Plaintiff alleges that there are “intelligence reports” and other “restricted documents”
that he needs access to before he can more fully expound on his claims. (Id.)
The Court finds Plaintiff’s arguments unavailing. In general, a person only has
standing to pursue violations of his own civil rights. See Aid for Women v. Foulston,
441 F.3d 1101, 1111 (10th Cir. 2006). Thus, the Court fails to see how permitting
discovery into Lt. Knight’s handling of other matters would assist Plaintiff with stating a
claim against Lt. Knight in this case.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege personal
participation by each individual defendant in the deprivation of the plaintiff’s civil rights.
Vinyard v. King, 728 F.2d 428, 433 (10th Cir. 1984). More specifically, to state a claim
against a supervisor such as Lt. Knight, a plaintiff must show that the supervisor
personally “breached a duty to the plaintiff which was the proximate cause of the injury.”
Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010).
To establish a claim of supervisory liability under § 1983, a plaintiff must plead
and ultimately prove that “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Dodds, 614 F.3d at 1199.
The only allegations against Lt. Knight in Plaintiff’s Amended Complaint are that
she failed to adequately supervise the staff in the dining room. (Am. Compl. ¶¶ 51-59.)
There is no allegation that Lt. Knight personally witnessed the attack or knew of a
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substantial risk that the attack would occur. In fact, Plaintiff affirmatively states that Lt.
Knight was not present in the dining room during the attack. (Am. Compl. ¶ 72.) In an
attempt to establish supervisory liability, Plaintiff simply alleges in a conclusory fashion
that Lt. Knight should have been aware that there was a risk of such harm. (Id.)
However, Plaintiff’s allegations of verbal taunts and teasing is not sufficient to show that
Lt. Knight reasonably should have known that Plaintiff was going to be physically
attacked. See Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (“threats between
inmates are common and do not, under all circumstances, serve to impute actual
knowledge of a substantial risk of harm.”). As such, Plaintiff’s Amended Complaint fails
to state a claim for supervisory liability based on Lt. Knight’s inaction in failing to protect
Plaintiff from the attack he suffered. See Tafoya v. Salazar, 516 F.3d 912, 916-17
(10th Cir. 2008) (for supervisory liability to attach, a supervisor must both actually be
aware of a substantial risk of serious harm to an inmate and fail to take reasonable
steps to protect that individual).
Additionally, Plaintiff fails to allege sufficient facts showing that Lt. Knight
established a custom or practice of leaving inmates unsupervised in the dining room
that Lt. Knight reasonably should have known would result in the harm Plaintiff suffered.
Plaintiff generally alleges that it was “common practice” to leave inmates unsupervised
in the dining halls. (Am. Compl. ¶¶ 60-66.) However, Plaintiff is unable to provide any
other examples of assaults or mistreatment of inmates by other inmates that resulted
from this lack of supervision. Compare Tafoya, 516 F.3d at 920 (reversing grant of
summary judgment where sheriff failed to install cameras in an area where he knew
prior sexual assaults had occurred). Rather, from the allegations in the Amended
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Complaint, it appears that Plaintiff was assaulted on a night where the supervisory staff
was not in the dining room because they were working on a broken dishwasher for
more than thirty minutes. (Am. Compl. ¶ 72.) Therefore, Plaintiff fails to allege
sufficient facts showing that Lt. Knight’s decision to leave inmates unsupervised (to the
extent it could be construed as a conscious decision) was made with the requisite intent
to state a claim for supervisory liability. Compare Henderson v. Glanz, 2012 WL
5931546, *4 (N.D. Okla. Nov. 27, 2012) (denying motion to dismiss where plaintiff
alleged that the defendant sheriff had a policy of under-staffing the jail such that certain
portions were unsupervised and that sheriff continued this policy despite the fact that
prior assaults had occurred).
Plaintiff’s objection that “[i]t is premature for the court to grant summary judgment
to defendants without first providing the plaintiff discovery materials” is also unavailing.
(ECF No. 85 at 4.) The Court grants Defendants’ Motion because it finds that Plaintiff
has failed to state a claim, not based on a summary judgment standard. Additionally,
Lt. Knight has asserted the defense of qualified immunity, which is intended to protect
state officials from the burdens of litigation, including discovery and pre-trial practice.
See Sieger v. Gilley, 500 U.S. 226, 232 (1991). The Court cannot permit discovery until
Plaintiff overcomes the qualified immunity threshold. Harlow v. Fitzgerald, 457 U.S.
800, 817 (1982). To defeat qualified immunity, Plaintiff must allege sufficient facts to
show that a constitutional violation has occurred and that the alleged wrong violated a
firmly established constitutional right. See Pearon v. Callahan, 555 U.S. 223, 232
(2009). Because Plaintiff has failed to allege sufficient facts to state a claim for a
constitutional violation by Lt. Knight, the Court cannot permit this case to proceed to
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discovery.
Having reviewed the issue de novo, the Court agrees with the Magistrate Judge’s
Recommendation that Plaintiff’s claims against Lt. Knight be dismissed without
prejudice3 for failure to state a claim upon which relief could be granted.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
The Magistrate Judge’s Recommendation (ECF No. 68) is ACCEPTED;
2.
Defendants’ Motion to Dismiss or Motion for Summary Judgment (ECF No. 27) is
GRANTED;
3.
Plaintiff’s claims against Defendants in their official capacities are DISMISSED
WITHOUT PREJUDICE based on Eleventh Amendment immunity;
4.
Plaintiff’s claims based on conduct alleged to have occurred before February 17,
2010 are DISMISSED WITH PREJUDICE as barred by the statute of limitations;
5.
Plaintiff’s claims against Sgt. Perez in his individual capacity are DISMISSED
WITHOUT PREJUDICE for failure to properly exhaust all available administrative
remedies;
6.
Plaintiff’s claims against Lt. Knight in her individual capacity are DISMISSED
3
While the Court must construe a pro se party’s pleadings liberally, it cannot act as a
pro se party’s advocate. Hall, 935 F.2d at 1110. Even construing Plaintiff’s filings liberally,
Plaintiff does not request leave to amend his complaint in either his opposition to the Motion
(ECF No. 65) or his objection to the Recommendation (ECF No. 85). Therefore, the Court
dismisses this case. However, because there is a possibility that Plaintiff could amend his
claims in a manner that would state a claim against Lt. Knight, it will dismiss such claims
without prejudice. See Brerton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)
(court should dismiss with prejudice when a complaint fails to state a claim and leave to amend
would be futile).
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WITHOUT PREJUDICE for failure to state a claim upon which relief could be
granted; and
7.
The Clerk shall enter judgment in favor of Defendants on all claims. Each party
shall bear his or her own costs.
Dated this 29th day of March, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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