Peeples, III v. Del Campo et al

Filing 38

OPINION AND ORDER Adopting 37 Recommendations, Granting 36 Motion for Summary Judgment, and Dismissing Claims, by Chief Judge Marcia S. Krieger on 9/4/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-02442-MSK-MJW
JOE WALLACE PEEPLES, III,
Plaintiff,
v.
DIAZ DEL CAMPO, CO;
DOLLARD, CO; and
GARCIA, Warden,
Defendants.
______________________________________________________________________________
OPINION AND ORDER ADOPTING RECOMMENDATION, GRANTING
MOTION FOR SUMMARY JUDGMENT, AND DISMISSING CLAIMS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Magistrate Judge’s July 28,
2014 Recommendation (# 37) that the Defendants’ Motion to Dismiss (# 23) and Motion for
Summary Judgment (# 22, as amended # 36) be granted. No party has filed Objections to that
Recommendation.
The Recommendation summarizes the allegations in Mr. Peeples’ pro se Complaint (# 1),
and the Court adopts that recitation of the facts. In summary, Mr. Peeples is an inmate in the
custody of the Federal Bureau of Prisons (“BOP”). While housed at a BOP institution in
Englewood, Colorado, Mr. Peeples alleges that he was sexually assaulted by Corrections Officer
Diaz Del Campo on two occasions. On both occasions, while escorting Mr. Peeples to the
shower area, Officer Del Campo allegedly grabbed Mr. Peeples’ buttock and placed his finger in
Mr. Peeples’ intergluteal cleft. Mr. Peeples alleges that Officer Del Campo and Officer Dollard
threatened to rape him. Mr. Peeples states that he brought these incidents to the attention of Mr.
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Garcia, the Warden of the facility (and to the BOP’s Office of Inspector General, among others),
but no action was taken. (Mr. Peeples alleges that there was a broad “cover-up” at work, and
believes that his mailing to BOP officials and others were being regularly stolen or diverted.)
Mr. Peeples was ultimately transferred to a different facility.
Mr. Peeples does not specifically identify the particular legal basis for the claims he
purports to assert, and the Magistrate Judge did not see the need to do so in the course of issuing
the Recommendation. Because this Court adopts the Magistrate Judge’s reasoning and
conclusions, this Court need not do so either.
The Defendants filed a Motion to Dismiss (# 23) the claims in the Complaint for failure
to state a claim under Fed. R. Civ. P. 12(b)(6), and simultaneously filed a Motion for Summary
Judgment (# 22, as amended # 36), arguing that Mr. Peeples failed to exhaust his available
administrative remedies prior to suit, requiring dismissal of the action pursuant to the Prisoner
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The Court referred these motions to the
Magistrate Judge for a Recommendation, and the Magistrate Judge recommended (# 37) that the
Motion for Summary Judgment be granted and the claims dismissed without prejudice as
unexhausted. More than 14 days have passed since the issuance of that Recommendation, and
no party has filed Objections.
When no party files Objections to a recommendation, the Court reviews the
recommendation under whatever standard of review it deems appropriate. Summers v. State of
Utah, 927 F.2d 1165, 1167 (10th Cir.1991). This Court has reviewed the recommendation under
the otherwise applicable de novo standard of Fed. R. Civ. P. 72(b). In doing so, it has also
considered Mr. Peeples’ pro se status, and has accordingly construed all of Mr. Peeples’ filings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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Upon de novo review, the Court agrees with the Magistrate Judge’s thorough findings,
reasoning, and conclusions. The Defendants have made a prima facie showing that Mr. Peeples
failed to administratively exhaust his claims here, and Mr. Peeples has not come forward with
evidence establishing such exhaustion or grounds upon which such exhaustion should be
excused. Accordingly, the Court ADOPTS the Recommendation (# 37) in its entirety. The
Defendants’ Motion for Summary Judgment (#22, as amended # 36) is GRANTED. Mr.
Peeples’ claims are DISMISSED without prejudice for failure to exhaust under 42 U.S.C. §
1997e(a). The Clerk of the Court shall close this case.
Dated this 4th day of September, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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