Reynolds v. Director(s), Colorado Department Of Corrections et al

Filing 75

ORDER by Judge Philip A. Brimmer on 9/3/15. ORDERED: The Recommendation of United States Magistrate Judge 59 is ACCEPTED in part. ORDERED: Defendants' Motion to Dismiss 44 is GRANTED. ORDERED: Plaintiff Johnny L. Reynolds' Motions for Summary Judgment [56, 73, 74] are DENIED as moot. ORDERED: Plaintiff Johnny L. Reynolds' Motions for Status [70 and 72] are DENIED as moot. ORDERED: Within 14 days of the entry of judgment, defendants may havetheir costs by filing a bill of costs with the Clerk of the Court. ORDERED: that this case is dismissed in its entirety.(kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-02558-PAB-KMT
JOHNNY L. REYNOLDS, #133703,
Plaintiff,
v.
DIRECTOR, COLORADO DEPARTMENT OF CORRECTIONS,
MICHAEL LIND, Captain #3620,
CORDOVA, Lieutenant #3191,
JONI CORCORAN, Lieutenant #12916, and
JOHN REILLY, Correctional Industries Supervisor,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) filed on February 13,
2014 [Docket No. 59]. The magistrate judge recommends that the Court grant
defendants’ Motion to Dismiss [Docket No. 44] and deny plaintiff’s Motion for Summary
Judgment [Docket No. 56] as moot. Plaintiff filed objections to the Recommendation on
May 1, 2014. Docket No. 67.1
The 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). In the absence of a
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The Court previously accepted the Recommendation, having received no timely
objection from plaintiff, See Docket No. 60, and the Clerk of the Court entered final
judgment in this matter. See Docket No. 61. On March 19, 2014, plaintiff filed a motion
to set aside the Court’s order accepting the recommendation. Docket No. 62. Plaintiff
represented that he did not receive notice of the Recommendation. Id. at 2. The Court
granted plaintiff’s motion on April 1, 2014. Docket No. 63.

proper objection, the 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”). An objection is proper if it is specific enough to enable the Court “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). In light of
plaintiff’s pro se status, the Court construes his filings liberally. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
I. ANALYSIS
Plaintiff is an inmate who, at all relevant times, was incarcerated at either the
Limon Correctional Facility in Limon, Colorado (“LCF”) or the Sterling Correctional
Facility in Sterling, Colorado (“SCF”). Plaintiff brings one claim for violation of the
Americans with Disabilities Act (“ADA”) as well as four claims for retaliation in violation
of 42 U.S.C. § 1983. The relevant facts are set forth in detail in the Recommendation,
see Docket No. 59 at 2-6, and will not be recited here except as relevant to the Court’s
de novo review.
A. Immunity From Suit In Official Capacity
Plaintiff does not properly object to the Recommendation’s finding that plaintiff’s
claims against defendants in their official capacity are barred by the Eleventh
Amendment. Plaintiff states only that the Eleventh Amendment does not bar suit

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against defendants in their individual capacities. Docket No. 67 at 6. Plaintiff’s
objection is not inconsistent with the Recommendation’s finding. As such, the Court
has reviewed this finding to satisfy itself that there is “no clear error on the face of the
record.”2 Fed. R. Civ. P. 72(b), Advisory Committee Notes.
B. Statute of Limitations
Plaintiff objects to the Recommendation’s finding that his retaliation claims
against defendants Corcoran and Lind are barred by the statute of limitations and that
plaintiff is not entitled to equitable tolling.3 Under Colorado law, “equitable tolling is
limited to situations in which either the defendant has wrongfully impeded the plaintiff’s
ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from
filing his or her claim despite diligent efforts.” Braxton v. Zavaras, 614 F.3d 1156, 1161
(10th Cir. 2010) (citation and quotation omitted). Although the Prison Litigation Reform
Act requires plaintiff to exhaust all administrative remedies prior to filing suit in federal
court, 42 U.S.C. § 1997e(a), that requirement only entitles plaintiff to equitable tolling
“so long as [he] makes good faith efforts to pursue the claims when possible.” Braxton,
614 F.3d at 1161.
Plaintiff’s step 3 grievances against defendants Corcoran and Lind were denied
on December 2, 2010 and January 27, 2011 respectively. Docket No. 1-1 at 16, 30.

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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).
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The magistrate judge also found that plaintiff’s ADA claim was untimely, but
declined to resolve the issue of whether plaintiff is entitled to equitable tolling on this
claim. See Docket No. 59 at 22.
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Thus, plaintiff did not file his complaint until more than a year and a half after the
conclusion of the last step of the grievance process. Plaintiff argues that
the magistrate judge misinterpreted the Colorado Department of Corrections’
Administrative Regulation (“AR”) 850-04, which provides, in relevant part, that “[a]ll
grievances shall be answered, in writing, at each level of decision and review” and that
“[a] printed copy of the response with electronic signature shall be provided to the
offender.” AR 850-04(IV)(E)(4). 4 Plaintiff argues that because he did not provide a
signature in the line intended to certify that he received the response to his grievances,
the grievance process was not exhausted and he is therefore entitled to equitable
tolling. Docket No. 67 at 5. Plaintiff does not dispute the Recommendation’s finding
that he knew or should have known of his claims against defendants Corcoran and Lind
more than two years before he initiated this action. See id.
The Court agrees with the magistrate judge that the requirement that a copy of
each grievance response “with electronic signature” shall be provided to the offender
means that the signature of the grievance officer, not of the offender, is required. See
id. § IV(E)(4). Section IV(E)(4) describes the proper form and content of grievance
responses, which are prepared by the grievance officer. See id. It does not make
exhaustion of administrative remedies contingent on a signature by the offender.
Moreover, AR 850-04 provides that, when a Step 3 grievance is denied on substantive
grounds, the grievance officer “shall certify in the response that the offender has
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The Court takes judicial notice of AR 850-04. See Ray v. Aztec Well Serv. Co.,
748 F.2d 888, 889 (10th Cir. 1984); see also Muniz v. Kaspar, No. 07-cv-01914-MSKMJW, 2008 WL 3539270 at *3 (D. Colo. Aug. 12, 2008) (taking “judicial notice of AR
850-04, the administrative regulation describing the grievance process”).
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exhausted the grievance process.” AR 850-04 § IV(E)(3)(c). The grievance officer did
so in this case, see Docket No. 1-1 at 16, 30, and plaintiff therefore had exhausted his
administrative remedies as of the time his Step 3 grievances were denied. Because
plaintiff offers no other excuse for the substantial delay between exhausting his
administrative remedies and bringing the instant suit, he is not entitled to equitable
tolling, and his Section 1983 claims against defendants Corcoran and Lind are barred
by the statute of limitations.
C. ADA Claim
Plaintiff objects to the Recommendation’s finding that he failed to state a claim
for violation of the Americans with Disabilities Act (“ADA”). Docket No. 67 at 4-5. In
addition, the Recommendation found that plaintiff’s ADA claim is barred by the statute
of limitations, but the magistrate judge declined to reach a finding on whether or not
plaintiff was entitled to equitable tolling of this claim. For the reasons described below,
the Court disagrees with the Recommendation’s finding that plaintiff failed to state a
claim for violation of the ADA, but finds that plaintiff is not entitled to equitable tolling of
his ADA claim.
1. Failure to State a Claim
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. “To state a claim under Title II, the
plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was

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excluded from participation in or denied the benefits of a public entity’s services,
programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was
by reason of a disability.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d
1185, 1193 (10th Cir. 2007).
A qualified individual with a disability is defined as
an individual with a disability who, with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communication,
or transportation barriers, or the provision of auxiliary aids and services,
meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2). To be “disabled” under the ADA, a plaintiff must show that he
has a physical or mental impairment that substantially limits one or more major life
activities. Holt v. Grand Lake Mental Health Center, Inc., 443 F.3d 762, 765 (10th Cir.
2006). The Recommendation found that plaintiff failed to allege that he is a qualified
individual with a disability because plaintiff did not show that he is substantially limited
in one or more major life activities. Docket No. 59 at 24. Although the
Recommendation correctly describes plaintiff’s ultimate burden of proof, plaintiff is not
required to identify the precise substantial limitation to survive a motion to dismiss. See
Hughes v. Colo. Dep’t of Corr., 594 F. Supp. 2d 1226, 1240 (D. Colo. 2009) (holding
that at the pleadings stage it is sufficient to “identif[y] an impairment of which the State
defendants were allegedly aware and allege[] that such impairment constitutes a
disability under the ADA”); see also E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850,
854 (6th Cir. 2001) (“so long as the complaint notifies the defendant of the claimed
impairment, the substantially limited major life activity need not be specifically identified
in the pleading”). Here, plaintiff alleges that he left LCF in March 2010 for a medical
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appointment. Docket No. 29 at 7. He also alleges, albeit in a different claim, that he
had back surgery in April 2010. Id. at 8. He then alleges that he was terminated from
his position even though he had returned to full duty. Id. While the Court notes that
plaintiff’s complaint contains some internal inconsistencies, compare id. at 7 (noting that
plaintiff returned to full duty after his temporary re-injury) with id. at 8 (noting that
plaintiff was on “Medical Work Restrictions” during July 2010) and his ADA allegations
are imprecise, the allegations in the complaint, taken as true, are sufficient to put
defendants on notice of plaintiff’s claimed impairments.
The magistrate judge also found that plaintiff does not seek any relief that may
be obtained under the ADA. Docket No. 59 at 25-26. Specif ically, the magistrate judge
found that plaintiff is limited to injunctive relief for his ADA claim because Title II of the
ADA is not a valid abrogation of Colorado’s Eleventh Amendment immunity from claims
for money damages. Id. at 25. The magistrate judge further found that plaintiff’s only
request for injunctive relief is unrelated to his ADA allegation. Plaintiff does not
specifically object to this finding. The Court, however, declines to rely on this finding to
dismiss plaintiff’s ADA claim. Plaintiff’s request for an “Injunctive Judgment” seeks
injunctive relief “to prevent [defendants] from any further behavior that can be deemed
as Retaliation, Harassment, or any other type Adverse action against the plaintiff for the
filing of this complaint or engaging in any and all activities that are clearly protected by
law or Constitutionally.” Docket No. 29 at 13. Construing plaintiff’s claims liberally in
light of his pro se status, the Court finds that plaintiff’s request for injunctive relief “to
prevent” defendants from taking any “[a]dverse action” against plaintiff for “engaging in
any and all activities that are clearly protected by law” is broadly worded and seeks
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injunctive relief as to all of plaintiff’s claims, including his claim for violation of the ADA.
Accordingly, the Court finds that plaintiff has stated a claim for violation of the ADA.
2. Equitable Tolling
The Recommendation declined to reach a finding on whether plaintiff was
entitled to equitable tolling of his ADA claim because plaintiff’s original complaint
attached only his step 1 and step 2 grievances and omitted his Step 3 grievance.
Defendants do not object to the magistrate judge’s failure to reach this issue, although
plaintiff argues in his objection that he is entitled to equitable tolling of his ADA claim.
See Docket No. 67 at 5.
The Court finds that plaintiff is not entitled to equitable tolling for his ADA claim.
Plaintiff acknowledged receipt of the response to his step 2 grievance on June 2, 2010.
Docket No. 1-1 at 7. Plaintiff, therefore, was required to submit a Step 3 grievance no
later than June 7, 2010. AR 850-04 § IV(F)(1)(d) (“[o]f fenders who wish to proceed to
the next step in the grievance process must submit their written grievance within five
calendars [sic] days of receiving the written response to the previous step.”). Although
plaintiff did not attach his step three grievance to his original complaint, he attached a
notation that reads “no response to Step III received after 45 days as required under
AR 850-04.” Docket No. 1-1 at 8. Thus, either plaintiff filed a timely Step 3 grievance,
in which case he was entitled to initiate this action no later than Ju ly 2010,5 or he did
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See AR 850-04 § IV(F)(1)(c) (providing that a response to a Step 3 grievance is
due within 45 days of receipt by the grievance officer); see also Whitington v. Ortiz, 472
F.3d 804, 807-08 (10th Cir. 2007) (“[A] prisoner cannot be req uired to wait indefinitely
for a response to his final grievance before he may seek judicial review. That is, when
prison officials fail to timely respond to a grievance, the prisoner has exhausted
‘available’ administrative remedies under the PLRA”). Thus, if plaintiff did not receive a
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not, in which case plaintiff cannot demonstrate that he exhausted his administrative
remedies with respect to his ADA claim. In either case, dismissal is appropriate.
Plaintiff’s failure to indicate the precise date of his Step 3 grievance does not entitle him
to equitable tolling of his ADA claim, and the claim is barred by the statute of
limitations.6
D. Section 1983 Retaliation Claims
Plaintiff does not object to the Recommendation’s finding that his claim for
retaliatory transfer to SCF and his retaliation claim for wrongful charges for medical
services fail because plaintiff did not allege personal participation by any named
defendant. The Court has reviewed this holding to satisfy itself that there is “no clear
error on the face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. The
Court will now address plaintiff’s two remaining retaliation claims.
1. Defendant Cordova
Plaintiff objects to the Recommendation’s finding that he failed to state a claim
for retaliation against defendant Cordova because plaintiff alleged only that defendant
Cordova denied his grievance. Specifically, plaintiff argues that defendant Cordova’s
denial of his grievance was close in time to an earlier grievance, Grievance No. LF
09/10-446, that plaintiff filed against defendant Cordova. Docket No. 67 at 3. Plaintiff

timely response by July 17, 2010, he had exhausted his administrative remedies and
was entitled to initiate this suit.
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The Court notes that, had plaintiff received a late response to his Step 3
grievance that was substantially closer to the date that he initiated this lawsuit, the late
response could potentially justify plaintiff’s delay in filing the lawsuit such that equitable
tolling would be appropriate. There is no evidence that this is the case, however.
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did not allege any facts concerning this earlier grievance in his complaint, however.7
See Docket No. 29; see also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.
2010). To state a claim for retaliation, plaintiff must allege that (1) he was engaged in a
constitutionally protected activity; (2) the defendant’s action caused plaintiff to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that
protected activity; and (3) the defendant’s adverse action was substantially motivated
as a response to plaintiff’s exercise of constitutionally protected conduct. Shero v. City
of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). Plaintif f’s complaint alleges that
defendant Cordova made certain unidentified “false statements” in responding to
plaintiff’s grievance. Plaintiff did not identify the protected activity or allege that
defendant Cordova acted in response to that protected activity. As such, the Court
finds no error with respect to this aspect of the recommendation.
2. Defendant Reilly
Plaintiff objects to the Recommendation’s finding that plaintiff failed to state a
claim for retaliation against defendant Reilly. The magistrate judge found that plaintiff’s
grievance against a female staff member, the basis for plaintiff’s retaliation claim,
predated defendant Reilly’s actions by several years and that plaintiff did not allege that
defendant Reilly knew about that earlier grievance. Docket No. 59 at 30. Plaintiff

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The Court notes that plaintiff attached a 9-page “Chronological Record of
Events” to his response to defendants’ motion to dismiss, which discussed plaintiff’s
earlier grievance against defendant Cordova. See Docket No. 52-1 at 2. Plaintiff
cannot, however, use this chronology to cure defects in his complaint. See In re Qwest
Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (“plaintif fs may not
effectively amend their Complaint by alleging new facts in their response to a motion to
dismiss”).
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argues that defendant Reilly first terminated plaintiff in January of 2009 in retaliation for
exercising his First Amendment rights (presumably, though plaintiff does not make this
clear, for his original grievance against the female staff member), and then once again
denied plaintiff employment in March 2012. Docket No. 67 at 3. Defendants respond
that plaintiff’s allegations concerning defendant Reilly’s actions in 2009 are new and
cannot be considered. Docket No. 68 at 3. T he Court agrees. “Issues raised for the
first time in objections to the magistrate judge’s recommendation are deemed waived.”
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Accordingly, the Court finds
no error with this aspect of the Recommendation.
E. Qualified Immunity
Plaintiff objects to the Recommendation’s finding that defendants are entitled to
qualified immunity on the grounds that he has demonstrated that defendants’ conduct
violated his constitutional rights. Docket No. 67 at 7. Under the doctrine of qualified
immunity, “government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Upon a public of ficial’s
assertion of a qualified immunity defense, plaintiff bears a “heavy burden” under a twopronged analysis. Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008).
Under the first prong of the analysis, the plaintiff is required to “establish that the
defendant’s actions violated a constitutional or statutory right.” Smith v. Cochran, 339
F.3d 1205, 1211 (10th Cir. 2003) (quotation omitted). As discussed above, because

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the Court agrees with the Recommendation that plaintiff fails to state a claim that
defendants engaged in a constitutional violation, plaintiff has failed to satisfy the first
prong of the qualified immunity defense.8
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 59] is ACCEPTED in part. It is further
ORDERED that defendants’ Motion to Dismiss [Docket No. 44] is GRANTED. It
is further
ORDERED that plaintiff Johnny L. Reynolds’ Motions for Summary Judgment
[Docket Nos. 56, 73, 74] are DENIED as moot. It is further
ORDERED that plaintiff Johnny L. Reynolds’ Motions for Status [Docket Nos. 70,
72] are DENIED as moot. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.

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After the magistrate judge issued her Recommendation, plaintiff filed two
motions for status [Docket Nos. 70, 72] and two documents titled Motions for Summary
Judgment [Docket Nos. 73, 74]. The motions for summary judgment contain neither
evidence nor argument and simply ask the Court to enter judgment in plaintiff’s favor
and detail the relief that plaintiff seeks. See Docket No. 73 at 1-2, Docket No. 74 at 12. Because this Order dismisses plaintiff’s complaint, those motions will be denied as
moot.
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DATED September 3, 2015.
BY THE COURT:

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

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