Wilson v. Falk et al
Filing
158
ORDER Granting 141 Defendants' Motion for Summary Judgment on the Issue of Exhaustion. Trial Preparation Conference and Five-Day Jury Trial are VACATED. By Judge Christine M. Arguello on 5/29/2019.(swest)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-01459-CMA-NRN
TERRANCE D. WILSON,
Plaintiff,
v.
SHERWIN PHILLIPS,
STEPHEN FRANK, and
JAMES FOX,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE
ISSUE OF EXHAUSTION
Currently before the Court is Defendants Sherwin Phillips, Stephen Frank,1 and
James Fox’s Motion for Summary Judgment on the Issue of Exhaustion. (Doc. # 141.)
For the reasons detailed below, the Court grants Defendants’ Motion.
I.
A.
BACKGROUND
PROCEDURAL HISTORY
This Court’s November 26, 2018 Order provides a thorough recitation of the
factual and procedural background of this case. See (Doc. # 122.) That Order is
Both parties have inconsistently spelled Defendant Frank’s first name as “Stephen” or “Steven”
and Defendant Phillips’s first name as “Sherwin” or “Sherwyn” over the course of this litigation.
The Court does not know the correct spelling of Defendant Frank’s first name or Defendant
Phillips’s first name. It uses “Stephen” and “Sherwin” because those are the spellings used in
the controlling Complaint (Doc. # 38) and in the caption on the docket. If either or both of those
spellings are incorrect, the parties are directed to file a joint motion to amend the caption.
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incorporated herein by reference, and the facts will be repeated only to the extent
necessary to address the instant Motion for Summary Judgment.
Plaintiff Terrance Wilson’s 42 U.S.C. Section 1983 claims for violation of the
Eighth Amendment are subject to the provisions of the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. Section 1997e. The PLRA prohibits a prisoner from bringing an
action “with respect to prison conditions under [S]ection 1983 of this title, or any other
Federal law” until “administrative remedies as are available are exhausted.” 42 U.S.C.
§1997e(a).
Defendants asserted the affirmative defense of exhaustion in their Answers to
Plaintiff’s Complaints. See (Doc. # 24 at 7; Doc. # 42 at 7.)
Defendants moved for summary judgment on November 2, 2015, on the grounds
that they were entitled to qualified immunity, that Plaintiff could not prove his Eighth
Amendment claims, and that Plaintiff could not prove that Defendants personally
participated in the alleged constitutional violations. (Doc. # 80.) Defendants did not
address the issue of exhaustion in their 2015 Motion for Summary Judgment. See (id.)
After a remand from the Court of Appeals for the Tenth Circuit (Doc. # 100), and
discovery by and supplemental briefing from both parties, see, e.g., (Doc. ## 104, 105,
118), the Court ultimately denied Defendants’ 2015 Motion for Summary Judgment
(Doc. # 122). The Court did not address the issue of exhaustion because the parties did
not raise it in their briefing.
United States Magistrate Judge N. Reid Neureiter entered the Final Pretrial
Order for this case on March 12, 2019. (Doc. # 136.) The Final Pretrial Order states
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that, relevant here, Defendants assert an affirmative defense that “Plaintiff’s claims are
barred in whole or in part by [PLRA], including, but not limited to, the exhaustion
requirements of [PLRA].” (Id. at 4.)
On March 8, 2019, Defendants filed their Motion for Leave to File Motion for
Summary Judgment on the Issue of Exhaustion. (Doc. # 134.) Plaintiff responded in
opposition to Defendants’ Motion for Leave on March 29, 2019. (Doc. # 138.) In the
interest of conserving significant judicial resources, the Court granted Defendants’
Motion for Leave so that it could address the issue of exhaustion prior to trial. (Doc. #
140.)
Defendants moved for summary judgment on April 22, 2019, on the grounds that
Section 1997e barred Plaintiff’s claims due to his failure to exhaust administrative
remedies as required under the PLRA because he belatedly filed his first step grievance
in contravention of the Colorado Department of Correction’s (“CDOC”) grievance
procedure. (Doc. # 141.) Plaintiff responded that his failure to exhaust his administrative
remedies should be excused because his allegations “constituted extraordinary
circumstances that justified equitable tolling of the deadline for the filing of a grievance.”
(Doc. # 145 at ¶ 14.)
A five-day jury trial on this matter is scheduled to begin on June 24, 2019. See
(Doc. # 137.)
B.
FACTUAL BACKGROUND
During the relevant time period, Plaintiff was an inmate in the custody of the
CDOC. The CDOC provides inmates with administrative remedies pursuant to a
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formalized three-step grievance procedure (“Grievance Procedure”). (Doc. # 141-2 at 1,
¶ 3, 4–20.) The Grievance Procedure is codified in Administrative Regulation 850-04.
(Id.)
The Grievance Procedure requires an inmate to initiate the grievance process by
filing a Step 1 grievance form no later than “30 calendar days from the date the offender
knew, or should have known, of the facts given [sic] rise to the grievance.” (Id. at 2, ¶¶
4–5,10.) If an inmate is not satisfied with the response to the Step 1 grievance, the
Grievance Procedure requires an inmate to file a Step 2 grievance within “five calendar
days of receiving the written response to” the Step 1 grievance. (Id. at 2, ¶ 6, 10.)
Identical to the Step 2 grievance process, if an inmate is not satisfied with the response
to the Step 2 grievance, the Grievance Procedure requires an inmate to file a Step 3
grievance “within five calendar days of receiving the written response to the previous
step.” (Id.) The Step 3 grievance process is the final step in the CDOC’s Grievance
Procedure. (Id. at 2, ¶ 7, 9.)
The Grievance Procedure covers grievances regarding allegations that the
CDOC failed to protect inmates from harm. (Id. at 2, ¶ 9, 16.)
The Court finds that the following material facts are undisputed. On July 2, 2012,
Mr. Wilson was stabbed by inmate Manuel Diaz while incarcerated at the Limon
Correctional Facility. (Id. at 2, ¶ 10; Doc. # 145 at ¶ 1; Doc. # 141 at ¶ 9; Doc. # 38 at ¶
29.) On September 10, 2012, Plaintiff filed a Step 1 grievance alleging that, in the
weeks prior to the July 2, 2012 stabbing, he “made numerous attempts to prevent the
stabbing event” by reporting threats to his safety to the CDOC, and that the CDOC
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failed to prevent the stabbing. (Doc. # 145-2 at 2; Doc. #145 at ¶ 9; Doc. # 141-2 at 2, ¶
11, 21.) On October 2, 2012, Plaintiff’s Step 1 grievance was denied as unfounded.
(Doc. # 141-2 at 3, ¶ 12, 21.)
On November 19, 2012, Plaintiff filed a Step 2 grievance. (Id. at 3, ¶ 13, 22.) His
Step 2 grievance was denied as unfounded. (Id.)
On December 28, 2012, Plaintiff filed his Step 3 grievance. (Id. at 3, ¶ 14, 23.)
On January 24, 2013, Mr. Anthony DeCesaro, the Step 3 Grievance Officer at the
CDOC, responded to Plaintiff’s Step 3 grievance request. (Id. at 3, ¶ 14, 23.) The
CDOC’s response provided that Plaintiff “failed to follow the grievance procedure”
because his Step 1 grievance was “filed out of time[.]” (Id. at 3, ¶ 14, 24.) The response
further informed Plaintiff that “he had not exhausted his administrative remedies.” (Doc.
# 141-2 at 3, ¶ 15, 24.)
Plaintiff does not dispute that he authored his Step 1 grievance regarding the
July 2, 2012 stabbing on September 10, 2012.2 (Doc. # 145 at ¶ 9.) Plaintiff argues that
his failure to exhaust his administrative remedies should be excused because his
allegations “constituted extraordinary circumstances that justified equitable tolling of the
deadline for the filing of a grievance.” (Id. at ¶ 14.) In support thereof, Plaintiff states that
following the July 2, 2012 stabbing, he was hospitalized from July 3, 2012, until July 12,
2012, at the University of Colorado Hospital, and at the hospital at “D.R.D.C.” from July
12, 2012, until August 27, 2012. (Id. at ¶¶ 1–6.) Plaintiff then alleges that during both
The Court also notes that Plaintiff stated that he authored a separate Step 1 grievance
regarding hospital treatment on September 4, 2012. (Doc. # 145 at ¶ 8.)
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hospitalizations, he “did not have access to a case manager” and was “transported to
“U.C.H.” “2 or 3 times for emergency care.”3 (Id. at 2, ¶ 5.)
The Court, therefore, reviews whether, as a matter of law under the PLRA,
Plaintiff’s alleged circumstances justify his failure to exhaust his administrative
remedies. The United States Supreme Court’s PLRA jurisprudence incontrovertibly
establishes that his circumstances cannot excuse this failure. For the following reasons,
the Court grants Defendants’ Motion for Summary Judgment.
II.
A.
APPLICABLE LEGAL PRINCIPALS
SUMMARY JUDGMENT
Summary judgment is warranted 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). A fact is “material” if it is essential to the proper
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute 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, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party—in the matter presently before the Court, in the light most favorable
to Plaintiff. See id. However, conclusory statements based merely on conjecture,
Yet Plaintiff offers no evidence or records to corroborate most of these factual allegations,
including Plaintiff’s treatment at the D.R.D.C. hospital. In fact, Plaintiff acknowledges that he is
still “[w]aiting for D.R.D.C. Hospital records to show how Plaintiff was treated there.” (Doc. # 145
at 4, ¶ 13.)
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speculation, or subjective belief do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point out to the Court a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party
may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving
party must “set forth specific facts that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at
671. Stated differently, the party must provide “significantly probative evidence” that
would support a verdict in his favor. Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d
1267, 1269 (10th Cir. 2012). “To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Id.
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B.
ADMINISTRATIVE EXHAUSTION UNDER PLRA
The PLRA provides that a prisoner must exhaust all available administrative
remedies before he or she can bring any action with respect to prison conditions. 42
U.S.C. § 1997e(a). A prisoner cannot satisfy the PLRA's exhaustion requirement by
“filing an untimely or otherwise procedurally defective administrative grievance or
appeal[.]” Woodford v. Ngo, 548 U.S. 81, 83–84 (2006); see also Patel v. Fleming, 415
F.3d 1105, 1109–10 (10th Cir. 2005) (concluding federal inmate failed to exhaust
administrative remedies because he failed to file Administrative Remedy Request within
twenty days of the date on which the basis for the Request occurred); Thomas v. U.S.
Bureau of Prisons, 282 F. App'x 701, 703–04 (10th Cir. 2008) (affirming dismissal of
plaintiff’s claims for failure to exhaust administrative remedies under PLRA where
plaintiff failed to file administrative complaint before deadline). “Proper exhaustion
demands compliance with an agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Woodford, 548 U.S. at 91–92.
The United States Supreme Court is unequivocal that “[t]here is no question
that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534
U.S. 516, 524 (2002)). Indeed, “[e]xhaustion is no longer left to the discretion of the
district court, but is mandatory.” Woodford, 548 U.S. at 84. Exhaustion is a precondition
to filing a suit, and “an action brought before administrative remedies are exhausted
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must be dismissed without regard to concern for judicial efficiency.” Ruppert v. Aragon,
448 Fed. App’x 862, 863 (10th Cir. 2012).
In 2016, the Supreme Court took its construction of the PLRA’s exhaustion
mandate up a notch and foreclosed any special exceptions to that mandate. In Ross v.
Blake, the Supreme Court held that the “only limit” to PLRA’s exhaustion “mandate is
the one baked into its text: [a]n inmate need exhaust only such administrative remedies
as are ‘available[,]’ which included three narrow exceptions that are not applicable in the
instant case. 136 S. Ct. 1850, 1856–60, 1862 (2016). The United States Court of
Appeals for the Fourth Circuit had reversed a district court’s decision dismissing the
plaintiff’s suit for failure to exhaust administrative remedies where the plaintiff did not
follow the prison’s prescribed procedures for obtaining an administrative remedy
because he mistakenly thought that an informal complaint and subsequent internal
investigation “served as a substitute for that otherwise standard process.” Id. at 1855.
The Fourth Circuit reasoned that because the PLRA’s “exhaustion requirement is not
absolute,” “special circumstances” could justify a prisoner’s failure to comply with
administrative procedural requirements. Id. (quoting Blake v. Ross, 787 F.3d 693, 698
(4th Cir. 2015)). The Supreme Court disagreed.
The Supreme Court rejected the Fourth Circuit’s “judge-made exceptions” to the
PLRA’s mandatory exhaustion requirement and explained that the “[s]tatutory text and
history alike foreclose the Fourth Circuit’s adoption of a ‘special circumstances’
exception to that mandate.” Id. at 1856. The Court observed that Section 1997e(a)’s
“language is ‘mandatory[,]’” and as such, outside of one statutory qualifier, “the
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remedies must indeed be ‘available’ to the prisoner[,]”4 “the PLRA's text suggests no
limits on an inmate's obligation to exhaust—irrespective of any ‘special circumstances.’”
Id. (citing 1997e(a)). “And that mandatory language means a court may
not excuse a failure to exhaust, even to take such circumstances into account. Id. at
1857 (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory
‘shall’ ... normally creates an obligation impervious to judicial discretion”)).
Statutory exhaustion requirements that do not explicitly provide for judicially
created exceptions foreclose judicial discretion in furnishing such exceptions. Id. “A
statutory exhaustion provision stands on a different footing. There, congress sets the
rules—and courts have a role in creating exceptions only if Congress wants them to.
For that reason, mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.” Id. The Supreme Court noted that
“[t]ime and time again, the Court has taken such statutes at face value—refusing to add
unwritten limits onto their rigorous textual requirements.” Id. Moreover, the Supreme
Court’s previous restraints included its construction of the “PLRA’s exhaustion
provision—rejecting every attempt to deviate . . . from its textual mandate.” Id. As a
The Supreme Court recognized three narrow exceptions related to the PLRA’s “own, textual
exception to mandatory exhaustion[:]” “An inmate . . . need not exhaust unavailable” remedies.
136 S. Ct. at 1858. Those three exceptions are: (1) “an administrative procedure is unavailable
when (despite what regulation or guidance materials may promise) it operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates[;]”
(2); “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use[;]” and (3) “when prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859–60.
None of these three exceptions are applicable to Plaintiff’s case.
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result, the Supreme Court held that courts “may not engraft an unwritten ‘special
circumstances’ exception onto the PLRA.” Id. at 1862.
III.
ANALYSIS
It is undisputed that Plaintiff failed to timely file his Step 1 grievance in
accordance with the CDOC Grievance Procedure, and as such, the belated filing
constitutes grounds for failure to exhaust administrative remedies under the PLRA. See
Woodford, 548 U.S. at 83–84; Patel v. Fleming, 415 F.3d at 1109–10; Thomas, 282 F.
App'x at 703–04. Plaintiff, thus, relies on the doctrine of “equitable tolling” to excuse his
failure to exhaust administrative remedies. (Id. at ¶ 14.) The Supreme Court’s case law
unequivocally establishes that Plaintiff’s reliance is misplaced.
Like the “special circumstances” exception, the doctrine of equitable tolling too
has no place in the Court’s analysis of whether the PLRA’s mandate bars Plaintiff’s
claims. The PLRA exhaustion mandate is clear: outside of the three inapplicable
exceptions mentioned above, there are “no limits on an inmate’s obligation to exhaust.”
Ross, 136 S. Ct. at 1853. “That mandatory language means a court may not excuse a
failure to exhaust, even to take ‘special circumstances’ into account.” Id.
The Court, thus, will not consider Plaintiff’s contention that his hospitalization,
medical condition, and the allegations set forth in his first step grievance5 justify his
The Court appreciates the seriousness of Plaintiff’s medical condition as a result of the July 2,
2012 stabbing. But even if the Court were to consider Plaintiff’s proffered excuse, Plaintiff’s
Response is devoid of any evidence that could create a genuine issue of material fact that
should preclude the entry of summary judgment. Plaintiff’s Response is saturated with
unsupported conclusory allegations and vague assertions of why Plaintiff’s medical condition
prevented him from filing his administrative grievance within the proper time limit. Conclusory
allegations, self-serving statements in pleadings, and references to incomplete medical records
are insufficient to create a genuine issue of fact to survive summary judgment. See Thomas,
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failure to timely file a first step grievance in accordance with CDOC’s internal grievance
procedures. Plaintiff’s proffered explanation cannot excuse his failure to abide by the
PLRA’s exhaustion mandate. Accordingly, Defendants are entitled to summary
judgment on the affirmative defense of exhaustion, and as a result, the PLRA bars
Plaintiff’s claims.
IV.
CONCLUSION
For the aforementioned reasons, the Court ORDERS that Defendants’ Motion for
Summary Judgment on the Issue of Exhaustion (Doc. # 141) is GRANTED as to Plaintiff
Terrance Wilson’s claims asserted against Defendants Sherwyn Phillip, Steven Frank,
and James Fox. It is
FURTHER ORDERED that Plaintiff Terrance Wilson’s action is DISMISSED
WITH PREJUDICE. It is
FURTHER ORDERED that the Trial Preparation Conference set for June 6,
2019, at 2:00 PM, is VACATED. It is
FURTHER ORDERED that the five-day jury trial set to commence on June 24,
2019, is VACATED.
DATED: May 29, 2019
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
282 F. App'x at 704–05 (holding that plaintiff’s Section 1983 claim was properly dismissed for
failure to exhaust administrative remedies where plaintiff argued that his untimely administrative
complaint should be excused due to his medical conditions).
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