Carbajal et al v. Morrissey et al

Filing 305

ORDER granted in part and denied in part 293 Deputy Keefer's Motion for Summary Judgment by Judge Philip A. Brimmer on 09/27/2017. An evidentiary hearing will be set. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03231-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
ANDREW KEEFER, in his individual capacity,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Deputy Keefer’s Motion for Summary
Judgment [Docket No. 293]. 1 The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Because plaintiff is proceeding pro se, the Court construes his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir.1991).
I. BACKGROUND2
On December 8, 2010, plaintiff Dean Carbajal was in the custody of the Denver
Sheriff Department (“DSD”) at a Denver City and County courthouse before the start of
1

On January 8, 2016, defendant filed a motion to dismiss pursuant to Fed. R.
Civ. P. 12(c) for failure to exhaust administrative remedies. Docket No. 256. On April
27, 2016, the magistrate judge denied defendant’s motion without prejudice. Docket
No. 284. The magistrate judge determined that defendant’s motion “should be
converted into a motion for summary judgment.” Id. at 4. The magistrate judge
explained that denial without prejudice was appropriate because “it is important that
both parties have a full and fair opportunity to present to the Court all relevant material
in order to determine whether Plaintiff exhausted his administrative remedies.” Id. at 8.
2

The following facts are undisputed unless otherwise indicated.

a trial. Docket No. 293-1 at 1. According to a report filed on December 8, 2010 by
defendant Andrew Keefer, a DSD deputy, defendant allowed plaintiff several
opportunities to put on his tie before taking him to the courtroom, but, after plaintiff
began the process again, defendant instructed plaintiff to leave the cell, which plaintiff
refused to do. Id. Defendant attempted to escort plaintiff from the cell, but plaintiff
“violently pulled his arm away . . . while screaming ‘don’t touch me!’” Id. Defendant
stated in his report:
I secured inmate Carbajal by his shirt at the collar and guided him to the
wall at the back of the cell. I then instructed him to get on the ground and
pulled him downward to the floor. Inmate Carbajal attempted to push off
of the ground and I secured him to the floor by placing my elbow and
forearm on his upper back. I used my radio to call for assistance from hall
patrol in the [] detention area. I secured inm ate Carbajal’s right arm
behind his back and applied the ‘goose neck’ technique to his right hand.
Id. After securing plaintiff, defendant stated that two other officers responded and
handcuffed plaintiff before escorting plaintiff out of his cell. Id.
According to plaintiff:
On December 8, 2010, while preparing for trial, I was tying my tie when
Deputy Keefer lunged at me and began to strike me repeatedly in the
head and slammed me against the wall and then slammed on the ground,
causing me extreme pain amongst other injuries.
Docket No. 298 at 35, ¶ 2. Defendant argues that summary judgment is appropriate
because plaintiff failed to exhaust his administrative remedies by following the DSD
grievance procedure.
A. The Denver Sheriff Department Grievance Process
The DSD has a multi-step grievance process, which is described in the DSD

2

inmate handbook. 3 Docket No. 293-2. The handbook informs inmates that “[y]ou will
be required to file your grievance within 10 calendar days of the incident in which you
are aggrieved.” Docket No. 293-2 at 2. A grievance can be submitted on an “Inmate
Grievance Form,” which is a “triplicate carbon document that included a top (white)
copy, middle (yellow) copy, and a back (pink copy),” Docket No. 293-3 at 2, ¶ 5, or an
inmate can submit a grievance on “plain paper.” Docket No. 293-2 at 3. W ith respect
to the inmate grievance forms, the grievance procedure informs inmates that, “[i]f you
did not keep the pink copy, you will have a copy returned to you after the Operations
Unit has affixed the time stamp.” Docket No. 293-2 at 3. The “grievance form should
be addressed to Operations,” and a grievance “must provide” the date and time of the
incident, a specific statement detailing the “act or condition giving rise to the grievance,”
the “specific remedy for the grievance,” and a signature accompanied by the inmate’s
housing location and book-in number. Id.
After submitting a grievance, the handbook provides that “[t]he Operations staff
will provide a written dated response within 10 working days of receipt of the grievance.”
Id. If an inmate is still aggrieved, the procedure informs the inmate: “you may write a
sealed letter to the Division Chief stating your specific grievance and all previous steps
you have taken. . . . The Division Chief will provide a written, dated response within 10
3

Defendant does not allege that plaintiff received a copy of the inmate handbook.
See Docket No. 293 at 2-7, ¶¶ 1-33. Plaintiff does not dispute that he was aware of the
grievance procedure, see Docket No. 298, but, even if he claimed he did not receive
the inmate handbook, he would be required to follow the DSD grievance procedure.
See Gonzales-Liranza v. Naranjo, 76 F. App’x 270, 273 (10th Cir. Oct. 2, 2003)
(unpublished) (“[E]ven accepting plaintiff’s allegation that he was unaware of the
grievance procedures, there is no authority for waiving or excusing compliance with
PLRA’s exhaustion requirement.”).
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working days of receipt of the appeal.” Id. (emphasis in original). If the inmate is still
aggrieved, the policy provides that “[y]ou may also write a personal letter to the Director
of Corrections. . . . The Director will make the final resolution and will provide a written,
dated response within 10 working days of receipt of the appeal.” Id.
Grievances alleging serious misconduct can be handled in a different manner.
See Docket No. 302-2 at 1. DSD department order 4810.1D, which was in effect on
December 8, 2010, states that “[g]rievances filed on matters that fall under the
investigative jurisdiction of the Internal Affairs Bureau [] will be referred to that unit and
will be handled as complaints.” Id. According to the Internal Affairs Bureau’s (“IAB”)
procedures, “all allegations of unnecessary/excessive force . . . involving Denver Sheriff
Department officers” are to be investigated by the IAB. Docket No. 298-1 at 109.
However, when an inmate files a grievance alleging serious misconduct, a DSD
supervisor is assigned to conduct an initial investigation and route the grievance
appropriately. Docket No. 302-1 at 2, ¶ 7; see also Docket No. 298 at 72-73 (describing
the routing process for grievances). After DSD staff investigates, the grievance matter
may be referred to IAB. Docket No. 302-1 at 2, ¶ 7.
While DSD policy provides that grievances alleging serious misconduct be
referred to the IAB, see Docket No. 302-1 at 2, ¶ 7; Docket No. 298 at 72-73, plaintif f
has submitted evidence to show that the referral system is defective. See, e.g., Docket
No. 298 at 58-135. According to a report issued by the Office of the Independent
Monitor (“OIM”) in 2013, of the fifty-four grievances alleging serious misconduct filed
from January 1, 2011 to June 30, 2013, only nine resulted in IAB investigations. Docket

4

No. 298 at 75. Of those nine investigations, only three were the result of referred
grievances. Id. According to the OIM, “other serious grievances were not investigated
at all, at the jails or otherwise.” Id.
B. Plaintiff’s Grievance(s)
The parties dispute whether plaintiff submitted grievances in accordance with
DSD policy. Defendant provides an inmate grievance form received by DSD on
December 21, 2010 – 13 days after plaintiff alleges that defendant used excessive
force against him. Docket No. 293-4. The grievance form appears to have been
signed by plaintiff and provides a date and time of incident as “Dec. 8th-24th, 2010.”
The grievance states:
I have Been in punished and taken of my general population priviledges
since Dec. 8, 2010. Without justification or notice. I was tying my tie as I
prepared to go to trial and an officer pulled my arm & squeez me, and
then pushed & began to strike me in the back of my head. I never resisted
nor did I antagonize the officer. It has now been 13 days and I have
received to justification for the abuses taken against me.
Id. DSD received the greivance on December 21, 2010. Id. DSD never responded to
plaintiff’s grievance. Docket No. 293-5 at 2, ¶ 6. W hile plaintiff has submitted
grievances related to other matters, see Docket No. 293-8 (collecting eight grievances
related to other matters submitted on inmate grievance forms), the December 21, 2010
grievance is the only grievance in DSD records related to defendant’s use of force
against plaintiff. Docket No. 293-5 at 2, ¶¶ 5-7.
Plaintiff states that the December 21, 2010 grievance in the DSD records
“appears to be written” by him, but has been altered. Docket No. 298 at 37, ¶ 13.
According to plaintiff, the date of the document “is altered to read ‘Dec. 8th-24, 2010.’
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and more a ‘1’ has been placed in front of the 3 on the sixth line, which was not there
originally.” Id. The effect of this alteration, plaintiff claims, is to make it appear that his
grievance was filed on December 13, 2010 instead of on December 3. Id. According to
plaintiff, the December 21, 2010 grievance is not the original copy because he would
not have listed a date through December 24, which “had not even come to pass.” Id.
In addition to alleging that the December 21 grievance was modified, plaintiff
states that he submitted inmate grievances on “the 12 th, 13th, 14th, 15th, 16th, 17th, 18th,
19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th of December, and up into January 2011.”
Docket No. 298 at 35-36, ¶ 5. Plaintiff states that none of the grievances he filed were
time-stamped or returned to him. Id. Plaintiff does not have copies of any of the
grievances he claims he submitted and does not explain why he was unable to retain
the pink copies of his grievances. Plaintiff states that, because he was “[c]oncerned
staff were throwing these grievances away,” he wrote four letters to various DSD staff
documenting his complaints. Id. at 36, ¶ 6; see also id. at 26-33. Plaintiff has
submitted copies of the letters he allegedly sent. Id. at 26-33. Based on those
materials, on December 13, 2010, plaintiff mailed a letter to Sergeant Sich “or
supervisory staff”; on December 16, 2010, plaintiff mailed a letter to Division Chief
Deeds; on December 26, 2010, plaintiff mailed a letter to Director Gary Wilson; and on
January 24, 2011, plaintiff sent a second letter to Director W ilson. Id. Each of the
letters discussed defendant’s use of force against plaintiff and plaintiff’s attempts to file
numerous grievances. Id. Plaintiff states that each of the letters was “mailed internally
within sufficient time of the alleged incident to satisfy any of the required procedural

6

deadlines.” Id. at 36, ¶ 6. The copies of plaintiff’s letters attached to his motion are not
marked to show that they were received by DSD.4 See id. at 26-33.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
Exhaustion is an affirmative defense and defendant bears the burden of proving
that plaintiff failed to exhaust his remedies. Roberts v. Barreras, 484 F.3d 1236, 1240
(10th Cir. 2007). “‘The defendant must demonstrate that no disputed material fact
exists regarding the affirmative defense asserted’ when the evidence is viewed in the
light most favorable to the plaintiff.” Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d
4

During the relevant time, inmates were not allowed to make copies of materials.
Docket No. 293-3 at 4-5, ¶ 10. To explain his possession of the copies, plaintiff states
that “[e]ach time that these grievances were drafted, I would hide this grievance in
between pleadings that I had submitted for copies, so that I was able to obtain a copy
without DSD staff knowing that I was copying my grievance letters.” Docket No. 298 at
38, ¶ 17.
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726, 746 (10th Cir. 2014) (quoting Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir.
2011)). “If material facts are disputed, summary judgment should be denied, and the
district judge rather than a jury should determine the facts.”5 Albino v. Baca, 747 F.3d
1162, 1166 (9th Cir. 2014); see also Jackson v. Hoffman, 2014 WL 4123733 at *6 (S.D.
Ill. Aug. 21, 2014) (citing Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)).
When reviewing a motion for summary judgment, a court must view the evidence
in the light most favorable to the non-moving party. Bausman v. Interstate Brands
Corp., 252 F.3d 1111, 1115 (10th Cir. 2001); see McBeth v. Himes, 598 F.3d 708, 715
(10th Cir. 2010). Conclusory statements based merely on conjecture, speculation, or
subjective belief are not competent summary judgment evidence. Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
III. ANALYSIS
Defendant Keefer claims that plaintiff has failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C.
§ 1997e(a). Docket No. 293 at 9. The PLRA provides that “[n]o 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. § 1997(e)(a). The
“PLRA’s exhaustion requirement applies to all inmate suits about prison life.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement aims to “reduce the
5

Questions related to exhaustion are not triable to a jury. See Lee v. Willey, 789
F.3d 673, 678 (6th Cir. 2015); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014);
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739,
742 (7th Cir. 2008).
8

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.” Whitington v. Ortiz, 472
F.3d 804, 807 (10th Cir. 2007) (citing Porter, 534 U.S. at 524-25).
A. Applicability of the PLRA
Plaintiff argues that the exhaustion requirement of the PLRA does not apply in
this case for two reasons. First, plaintiff argues that, by failing to raise exhaustion
earlier in the proceedings, defendant has waived it as a defense. Docket No. 298 at 12.
Second, plaintiff argues that, because the alleged misconduct occurred during the
pendency of a criminal trial, the PLRA does not apply.6 Docket No. 298 at 12-13.
With respect to plaintiff’s first argument, that defendant has waived the
exhaustion requirement, the Tenth Circuit has explained that exhaustion is mandatory.
See Beaudry v. Corrections Corporation of America, 331 F.3d 1164, 1167 n.5 (10th Cir.
2003) (affirming finding that defendant did not waive exhaustion as a defense by
waiting to raise it “on the eve of trial” and stating that “[t]he statutory exhaustion
requirement of § 1997e(a) is mandatory, and the district court was not authorized to
dispense with it”). While plaintiff cites contrary authority, Docket No. 298 at 12 (citing
Bonilla v. Janovick, 2005 WL 61505, at *1 (E.D.N.Y. Jan. 7, 2005); Orange v. Strain,
2000 WL 158328, at *4 (E.D. La. Feb. 10, 2000)), these out of circuit cases do not
6

Plaintiff raised both of these arguments in his objection to the magistrate judge’s
recommendation dismissing defendant’s motion to dismiss without prejudice. Docket
No. 285. As discussed below, the Court finds that these argument are without merit
and plaintiff’s objection [Docket No. 285] is overruled.
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undermine the holding in Beaudry that the defense of exhaustion is not subject to
waiver. In making his waiver argument, plaintiff also asserts that “the doctrine of laches
is applicable here and acts as a bar to this def ense.” Docket No. 298 at 13. However,
plaintiff fails to allege any of the elements of the doctrine. See Herald Co. v. Seawell,
472 F.2d 1081, 1099 (10th Cir. 1972) (stating that laches requires three elements: “(1)
full knowledge of the facts; (2) unreasonable delay in the assertion of available remedy;
and (3) intervening reliance by and prejudice to another”). The Court rejects the
argument that the doctrine of laches bars defendant’s argument regarding exhaustion
of remedies.
Plaintiff next argues that defendant’s misconduct is not governed by the PLRA.
Docket No. 298 at 13. The PLRA applies “to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA’s exhaustion requirement “extends to pretrial detainees because the
definition of a prisoner includes any person . . . detained in any facility who is accused
of . . . violations of criminal law.” Peoples v. Gilman, 109 F. App’x 381, 383 (10th Cir.
2004) (citation omitted). The authority cited by plaintiff does not contradict this finding.
See Docket No. 298 at 13 (citing Boyd v. Driver, 579 F.3d 513, 514 n.2 (5th Cir. 2009)
(holding that “perjury and tampering with evidence in a federal court proceeding” do not
fall within the ambit of the PLRA); Johnson v. Quinn, 1999 WL 116222, at *3 (N.D. Ill.
Feb. 26, 1999) (claims against officials in the state’s attorney office did not fit under
PLRA because they were not affiliated with the department of corrections)). Plaintiff

10

does not dispute that defendant was a correctional officer and that he was in DSD
custody on December 8, 2010; plaintiff’s allegations against defendant thus fall within
the scope of the PLRA. Docket No. 298 at 35, ¶ 2.
Accordingly, the Court finds that the exhaustion requirement of the PLRA applies
to plaintiff’s claim against defendant in this case.
B. Exhaustion
Defendant bears the initial burden of showing that there is no disputed fact
regarding plaintiff’s exhaustion of his remedies. Kramer, 743 F.3d at 746. In order to
meet his burden, defendant offers evidence to show that plaintiff did not submit a
grievance until 13 days after the incident in which he was aggrieved. Docket No. 293-4.
Because the inmate grievance procedure requires inmates to submit a grievance within
10 days of the underlying incident, Docket No. 293-2 at 3, defendant claims that plaintiff
failed to exhaust his remedies. In support, defendant provides an affidavit from
Sergeant Joseph E. Garcia, Jr., who serves as the custodian of records for the DSD.
Docket No. 293-5 at 1, ¶ 1. Sergeant Garcia states that he conducted a search of DSD
records and did not find any records related to appeals or other materials submitted by
plaintiff in connection with the December 8, 2010 incident. Id. at 2-3, ¶¶ 7-9.
Plaintiff makes three arguments: first, that the inmate grievance procedure does
not apply because he filed a “complaint,” not a “grievance,” which falls under the
jurisdiction of the IAB, Docket No. 298 at 14-20; second, that he did in f act comply with
DSD procedure by filing numerous grievances, which staff refused to properly log,
Docket No. 298 at 20; and third, that DSD obstructed plaintif f and advised him that
further complaints were unnecessary, rendering the exhaustion requirement
11

inapplicable.
1. IAB Jurisdiction
Plaintiff argues that the DSD grievance procedure is irrelevant because his
allegations fall within the exclusive jurisdiction of the IAB. Docket No. 298 at 14. DSD
department order 4810.1D provides that “[g]rievances filed on matters that fall under
the investigative jurisdiction of the [IAB] will be referred to that unit and will be handled
as complaints.” Docket No. 302-2 at 1. Before being routed anywhere, however,
inmate grievances are assigned to DSD staff. See Docket No. 298 at 72. DSD staff
determines where to route grievances: for example, medical grievances are routed to
medical staff and grievances related to food quality are routed to kitchen staff. Id. Staff
use their discretion and experience to determine where to route a particular grievance.
Id. Accordingly, while the grievance procedure directs DSD staff to route serious
allegations of misconduct to IAB, that determination is discretionary and occurs only
after DSD staff conduct an initial investigation. Docket No. 302-1 at 2, ¶ 7. The Court
finds that plaintiff was bound to follow the DSD grievance procedure because it applies
to all initial grievances, irrespective of the relief requested.7

7

Plaintiff argues that the DSD’s failure to refer allegations of serious misconduct
to the IAB foreclose the defense of non-exhaustion and that remedies were unavailable
because only the IAB could address his complaint. Docket No. 298 at 15-17. However,
plaintiff does not provide any evidence that only the IAB could remedy his grievance. In
contrast, defendant provides evidence that DSD staff were empowered to provide
medical services, mediate the conflict between the inmate and the DSD deputy,
relocate the inmate, or reassign the deputy. Docket No. 302-1 at 2-3, ¶¶ 9-10. In the
absence of any evidence suggesting that DSD could not provide relief to defendant, he
was required to exhaust the grievance process. See also Booth v. Churner, 532 U.S.
731, 741 (2001) (inmates are required to exhaust administrative remedies even where
they seek monetary relief unavailable through the grievance process).
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Plaintiff also argues that the failure to provide clear guidelines to DSD staff
resulted in disarray and rendered remedies unavailable. Docket No. 298 at 17.
Plaintiff’s argument that the DSD grievance system was in disarray is belied by the
record. Defendant provided eight grievances filed by plaintiff contained in DSD records.
Docket No. 293-8. Of those eight grievances, only plaintiff’s complaint against
defendant went unanswered. Id. The failure to provide clear guidelines to DSD staff on
routing grievances may have prevented plaintiff’s complaint from being referred to IAB,
but it did not prevent staff from investigating and providing relief in other settings.
2. Plaintiff’s Grievance(s)
Plaintiff argues that, even if DSD procedure required him to exhaust his
remedies, he did in fact comply with the grievance procedure by submitting numerous
inmate grievances and several “grievance letters.” Docket No. 298 at 20-21.
The Court finds, viewed in a light most favorable to plaintiff, there is a genuine
issue of material fact as to whether plaintiff exhausted his administrative remedies.
While defendant has presented an inmate grievance form purportedly showing that
plaintiff did not file a timely grievance, Docket No. 293-4, plaintiff claims that the
grievance form has been modified. Docket No. 298 at 37, ¶ 13. As the author of the
grievance, assuming he submitted it, plaintiff is competent to know whether it has been
altered. In addition, plaintiff claims that he filed at least seven timely grievances,
Docket No. 298 at 35-36, ¶ 5, which creates a dispute of fact surrounding whether
plaintiff filed a timely grievance.
In the alternative, defendant argues that summary judgment is appropriate
because plaintiff did not file an appeal of any grievance filed in a timely fashion. Docket
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No. 293 at 12-18. However, plaintiff has submitted copies of letters that he claims he
sent in order to appeal the tacit denial of his grievances. See Docket No. 298 at 26-33.
Defendant argues that DSD did not receive any of these letters, Docket No. 293 at 13,
but plaintiff is free to offer testimony that he timely and appropriately submitted the
grievance letters. See Docket No. 298 at 38, ¶¶ 16-17. Defendant additionally argues
that the grievance letters suggest that “they were prepared in order to rebut Deputy
Keefer’s contention that he failed to exhaust his administrative remedies.” Docket No.
293 at 14. Defendant offers no authority for making such a finding on a motion for
summary judgment. The Court finds that plaintiff has presented evidence
demonstrating a genuine issue of material fact over whether he timely appealed his
grievance.
The Court finds that there are disputes of fact that preclude summary judgment.
3. DSD Obstruction
As a final argument, plaintiff states that he was placed in segregation, which
obstructed his ability to exhaust his remedies. Docket No. 298 at 21. Plaintiff provides
no evidence that inmates placed in solitary confinement do not have access to
grievance forms or otherwise have the ability to pursue administrative remedies. See
Docket No. 293-3 at 4, ¶ 6 (stating that inmates in segregated units have access to the
grievance process). To the extent plaintiff’s argument is that DSD staff threatened or
intimidated him into not exhausting his remedies, plaintiff must show: “(1) that the threat
or intimidation actually did deter the plaintiff inmate from lodging a grievance or
pursuing a particular part of the prison administrative process; and (2) that the threat or
intimidation would deter a reasonable inmate of ordinary firmness and fortitude from
14

lodging a grievance or pursuing the part of the prison administrative process that the
inmate failed to exhaust.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
Plaintiff filed at least one grievance and alleges that he filed many more. Docket
No. 298 at 35-36, ¶ 5. Accordingly, plaintiff does not provide any evidence that he was
deterred from pursuing his administrative remedies.
Similarly, plaintiff argues that DSD staff misled him about his need to continue to
file grievances. Docket No. 298 at 21. Prison officials who “‘encourage, or even invite,
noncompliance with written procedure’ cannot then turn around and use the dev iation
as evidence of a failure to exhaust.” Pavey, 170 F. App’x at 8 (quoting Curtis v.
Timberlake, 436 F.3d 709, 712 (7th Cir. 2005)). Plaintiff’s argument fails in light of the
evidence he offers. According to plaintiff’s mother, on December 22, 2010, DSD staff
called her and told her “it was unnecessary to keep calling the Sheriff’s Department and
reporting [the December 8, 2010 incident], because it had already past and that Mr.
Carbajal was being returned to general population.” Docket No. 298 at 43, ¶ 4. 8 The
alleged statements were made after plaintiff had already failed to submit a timely or
procedurally proper grievance, do not refer to the inmate grievance process, and were
not made to plaintiff. Id. Even if the statements made by DSD staff to plaintiff’s mother
constituted misrepresentations, plaintiff does not allege that he relied on those
statements. See Docket No. 298 at 35-36, ¶ 5 (stating that plaintiff continued to filed
grievances “up into January 2011"); id. at 33 (grievance letter allegedly sent by plaintiff
on January 24, 2011).
8

Plaintiff’s exhibit 6 shows only page two of Ms. Carbajal’s declaration. Docket
No. 298 at 42-43.
15

Accordingly, plaintiff was not prevented from or misled about the need to
complete the administrative process.
IV. CONCLUSION
As noted earlier, supra, p. 8 n.5, the issue of exhaustion of administrative
remedies is resolved by the Court, not a jury. Because the Court has identified issues
of fact that preclude summary judgment, it is necessary to schedule an evidentiary
hearing to determine whether plaintiff has exhausted his administrative remedies.
Jackson, 2014 WL 4123733 at *6. Accordingly, it is
ORDERED that Deputy Keefer’s Motion for Summary Judgment [Docket No.
293] is granted in part and denied in part. It is f urther
ORDERED that an evidentiary hearing will be set.

DATED September 27, 2017.
BY THE COURT:

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

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