Adams v. United States

Filing 63

ORDER. The 61 Recommendation of United States Magistrate Judge is accepted. Defendant Espinoza's 47 Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 for Lack of Exhaustion of Administrative Remedies is granted. All claims against defendant Espinoza are dismissed. Plaintiff [sic] 23 Motion for Summary Judgment is denied. All claims against Defendant Foshee are dismissed without prejudice. This case is dismissed. By Judge Philip A. Brimmer on 6/18/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01076-PAB-CBS
ERIC ADAMS,
Plaintiff,
v.
OFFICER FOCHEE and
OFFICER A. ESPINOSA,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 61] filed on June 3, 2013. The
magistrate judge recommends that the Court deny plaintiff Eric Adams’ motion for
summary judgment [Docket No. 23] and grant Defendant Espinoza’s1 Motion for
Summary Judgment Pursuant to Fed. R. Civ. P. 56 for Lack of Exhaustion of
Administrative Remedies [Docket No. 47]. Docket No. 61 at 12, ¶ 1-2. The magistrate
judge further recommends that the Court dismiss defendant Foshee2 without prejudice
for failure to effect service within the time limit specified in Fed. R. Civ. P. 4(m) and for
failure to prosecute pursuant to D.C.Colo.LCivR 41.1. Docket No. 61 at 13, ¶ 4.
Plaintiff filed a timely objection to the Recommendation [Docket No. 62]. Therefore, the

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The correct spelling is “Espinoza.” See Docket No. 34 at 1 n.1

According to plaintiff’s November 6, 2012 letter [Docket No. 25], the correct
spelling is “Foshee” and not “Fochee.”

Court will “determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3).
The Recommendation presents the factual background of the case and the
Court will not restate it here. See Docket No. 61 at 2-3. The magistrate judge
recommends dismissing plaintiff’s complaint with respect to Defendant Espinoza on the
grounds that plaintiff failed to exhaust his administrative remedies because he has not
filed a grievance concerning defendant Espinoza’s conduct. Docket No. 61 at 8. The
magistrate judge further found that plaintiff’s allegation that he filed a first-level
grievance (“BP-8") concerning defendant Espinoza’s conduct to which he never
received a response is insufficient to establish exhaustion. Docket No. 61 at 9-10.
Plaintiff objects to the Recommendation on the grounds that (1) he is challenging
ongoing conduct and thus the timing of his grievances does not matter and (2) he
exhausted his administrative remedies by filing a BP-8 grievance to which prison
administrators did not respond. Docket No. 62 at 3-9. Plaintiff objects to the dismissal
of defendant Foshee on the basis that plaintiff lacks the means to effect service and
that the Court should take further steps to assist him. Docket No. 62 at 9-10.
I. ADMINISTRATIVE EXHAUSTION
Plaintiff argues that, because he is challenging ongoing conduct on the part of
defendants, his administrative remedies were exhausted by grievances he filed before
May 22, 2012, one of the dates on which he alleges prohibited conduct occurred.
Docket No. 62 at 3-4. Furthermore, he argues that he has filed grievances since that
date, which also satisfy the exhaustion requirement. Docket No. 62 at 4 (citing
grievances 691856-F1 and 690074-F2, filed at the end of June 2012); Docket No. 35-3
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at 42.
A. Timing of Grievances
The grievances attached to plaintiff’s second amended complaint [Docket No.
11] were filed in 2010, see Docket No. 11 at 28-30, and thus predate not only the
alleged incidents of May 22, 2012, but also the earliest alleged contact that plaintiff had
with Officer Espinoza. See Docket No. 11 at 16-17 (“Since Officer A. Espinosa, started
working (March 2012) in the unit, (F-Unit) where plaintiff is housed, he (Espinosa) serve
[sic] both the food tray, and the ice, at lunchtime, by himself: while the second officer,
only opens the food slot on the door.”). Moreover, the grievances that plaintiff filed
subsequent to March 2012, after Officer Espinoza began delivering his food, are not
relevant to his claims in this case. See Docket No. 35-3 at 42 (indicating that all
complaints subsequent to May 22, 2012 concern visual searches of plaintiff’s cell).
Accordingly, the undisputed facts establish that plaintiff has not filed any grievances
concerning Officer Espinoza’s conduct and thus has failed to exhaust his administrative
remedies with respect to these claims. See Ross v. Cnty. of Bernalillo, 365 F.3d 1181,
1188 (10th Cir. 2004) (a grievance does not “exhaust administrative remedies for all
future complaints of the same general type”), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007); see also 28 C.F.R. § 542.14 (“The deadline for completion
of informal resolution and submission of a formal written Administrative Remedy
Request . . . is 20 calendar days following the date on which the basis for the Request
occurred.”).

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B. Failure to Appeal
Plaintiff argues that he exhausted his remedies because he never received a
response to a BP-8 grievance he allegedly filed concerning the events of May 22, 2012.
Docket No. 62 at 4-9; see Docket No. 51 at 2-3, 9 (June 1, 2012 grievance challenging
failure to respond to BP-8s filed against Officers Foshee and Espinoza for allegedly
tampering with plaintiff’s food).
Plaintiff’s argument is based in part on the language of the regulatory provisions
governing the grievance process for prisoners in federal custody. Specifically, plaintiff
relies on the difference in wording between 28 C.F.R. § 542.15 (“An inmate who is not
satisfied with the Warden’s response may submit an Appeal on the appropriate form
(BP-10) to the appropriate Regional Director”) and 28 C.F.R. § 542.18 (“If the inmate
does not receive a response within the time allotted for reply, including extension, the
inmate may consider the absence of a response to be a denial at that level.”). Plaintiff
contends that the absence of the phrase “may submit an Appeal” from 28 C.F.R.
§ 542.18 indicates that, even if the lack of a response is considered a denial, it is not
subject to appeal and, thus, that the lack of a response at any level of the grievance
process constitutes exhaustion. Docket No. 62 at 6-7.
Plaintiff’s reading of these regulations is unpersuasive. Rather, if the absence of
a response constitutes a denial of a grievance, it follows that an inmate dissatisfied with
that non-response–which functions as an implicit denial–may appeal the denial to the
next level. See 28 C.F.R. § 542.15. This reading of the regulations to require that a
plaintiff appeal to the next level is consistent not only with applicable case law, see

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Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“An inmate who begins the
grievance process but does not complete it is barred from pursuing a § 1983 claim
under PLRA for failure to exhaust his administrative remedies.”), but also with the
underlying purpose of the PLRA insofar as it seeks to facilitate the administrative
resolution of prisoner complaints. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002)
(“Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the
quality of prisoner suits; to this purpose, Congress afforded corrections officials time
and opportunity to address complaints internally before allowing the initiation of a
federal case.”). A finding of exhaustion based on a failure to respond at the first
level–without requiring plaintiffs to pursue further administrative review as provided for
in federal regulations–would run counter to the PLRA’s purpose.
The cases plaintiff cites are not to the contrary, as they concern instances in
which inmates appealed their grievances to the highest level and filed complaints in
federal court only upon the denial of their terminal appeals. See Whitington v. Ortiz,
472 F.3d 804, 808 (10th Cir. 2007) (“Because the CDOC did not timely respond to Mr.
Whitington’s Step 3 grievance, Mr. Whitington effectively exhausted his administrative
remedies.”); Colorado Department of Corrections Administrative Regulation 850-04,
Grievance Procedure at 4, § IV.D.2.f (“This grievance procedure may not be used to
seek review of . . . [d]ecisions of the Step III grievance officer.”) (emphasis in original);
Jernigan, 304 F.3d at 1032-33 (10th Cir. 2002) (holding that inmate who received no
response to initial grievance did not exhaust administrative remedies when he filed
federal suit instead of attempting to cure within ten-day period accorded by Oklahoma

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Department of Corrections Director or seeking administrative review of officers’ failure
to respond). Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002), is inapposite, as it
concerns a prisoner in the custody of the Illinois Department of Corrections (“IDOC”)
and there is no indication that IDOC’s grievance procedure is akin to that of the Federal
Bureau of Prisons. See Jones v. Bock, 549 U.S. at 218 (“[T]o properly exhaust
administrative remedies[,] prisoners must complete the administrative review process in
accordance with the applicable procedural rules–rules that are defined not by the
PLRA, but by the prison grievance process itself.”).
Thus, the failure to appeal a grievance to which no response has been received
precludes administrative exhaustion.
II. FAILURE TO SERVE DEFENDANT FOSHEE
Plaintiff argues that he has no means to locate Officer Foshee. Instead, he
requests “that the court[] cause the U.S. Marshal Service to locate defendant Foshee.”
Docket No. 62 at 10.
“While an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to
rely on the U.S. Marshal for service of the summons and complaint, . . . . [n]either the
U.S. Marshal nor the Clerk of the Court are required to search for” a defendant who
“cannot be served . . . at the addresses on record with the court.” Barksdale v.
Connaghan, No. 10-cv-02491-CMA-CBS, 2012 WL 6770883, at *10 (D. Colo. Dec. 10,
2012) (citing Kiley v. Kurtz, 533 F. Supp. 465, 467 (D. Colo. 1982)) (adopted by
Barksdale v. Connaghan, No. 10-cv-02491-CMA-CBS, 2013 WL 61270 (D. Colo. Jan 4,
2013)). Accordingly, the Court and the U.S. Marshal have fulfilled their obligations with

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respect to serving defendant Foshee. Given that over 300 days have passed since the
second amended complaint was filed, the claims against Defendant Foshee are subject
to dismissal without prejudice pursuant to Fed. R. Civ. P. 4(m).
III. CONCLUSIONS
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 61] is ACCEPTED. It is further
ORDERED that Defendant Espinoza’s Motion for Summary Judgment Pursuant
to Fed. R. Civ. P. 56 for Lack of Exhaustion of Administrative Remedies [Docket No. 47]
is GRANTED. All claims against defendant Espinoza are dismissed. It is further
ORDERED that Plaintiff [sic] Motion for Summary Judgment [Docket No. 23] is
DENIED. It is further
ORDERED that all claims against Defendant Foshee are dismissed without
prejudice. It is further
ORDERED that this case is DISMISSED.

DATED June 18, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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