Farrell, III v. State of Colorado et al

Filing 71

ORDER granting 29 Motion to Dismiss and adopting Report and Recommendations re 64 Report and Recommendations. by Chief Judge Marcia S. Krieger on 3/23/16.(pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 14-cv-2903-MSK-CBS
TERRANCE M. FARRELL III,
Plaintiff,
v.
CELIA SCHWARTZ,
Defendant.

ORDER ON OBJECTIONS TO MAGISTRATE JUDGE’S RECOMMENDATION

THIS MATTER comes before the Court on the Magistrate Judge’s Recommendation
(#64) that Defendant’s Motion to Dismiss (#29) be granted and that all claims dismissed. The
Plaintiff filed Objections (#66) and the Defendants responded to those Objections (#68).
I.

Background
Pro se Plaintiff, Terrance M. Farrell III, was an inmate at the Buena Vista Correctional

Facility (BVCF) during the time pertinent to this action. He asserts one claim for First
Amendment retaliation against Defendant Celia Schwartz, a law librarian at the BVCF.1
The relevant facts or factual allegations are as follows.2 The CDOC employs an
administrative grievance process that all inmates claiming constitutional violations against

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Mr. Farrell’s Complaint alleged various claims under 42 U.S.C. § 1983 against the
Colorado Department of Corrections (CDOC) and several individual officers (#10). All claims,
except for First Amendment retaliation against Ms. Schwartz, were dismissed sua sponte (#12).
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correctional officers or the CDOC must follow before filing a lawsuit. The CDOC grievance
process is set forth in Administrative Regulation No. 850-04 (“AR-850”). An inmate is first
given the opportunity to informally resolve a complaint. If the inmate is not satisfied with the
informal resolution, he or she must proceed to the three-step Formal Grievance and Response
Procedure. See AR 850-04, Section IV. C. 2. The formal process involves a Step 1 grievance,
an appeal at Step 2, and eventually, a final appeal at Step 3. See AR 850-04, Section IV. C. 2.
On August 12, 2014, Mr. Farrell used a law library computer to create a document that he
considered to be an “administrative communication . . . related to a legal matter.” Complaint
(#10), 21, ¶ 4. Ms. Schwartz deleted the file because she did not consider it a legal document.
Mr. Farrell made two requests for informal resolution regarding this incident and other concerns
related to Ms. Schwartz’s actions. On September 9, Mr. Farrell submitted an informal resolution
form in which he complained that Ms. Schwartz neglected to schedule, or lost, his requests for
time in the law library. On September 20, he submitted a second request for an informal
resolution, complaining that Ms. Schwartz copied and deleted his legal documents. The
Complaint does not state the outcome of these requests.3
On September 30, 2014, Ms. Schwartz filed a disciplinary report, in which she claimed
that Mr. Farrell threatened her. This report was dismissed by the disciplinary committee. On

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In light of Mr. Farrell’s pro se status, the Court has reviewed and considered the
Complaint in its entirety, including allegations supporting those claims that have been previously
dismissed.
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The Complaint generally states that Mr. Farrell filed “grievances” regarding Ms. Schwartz’s
conduct, but it does not specify these by date, subject matter or outcome. It also alleges that Ms.
Schwartz’s supervisors, Mr. Nordell and Mr. Lengrich, were “notified numerous times” of Ms.
Schwartz’s unlawful conduct “through the warden’s office and stamped . . . on September 29,
2014.” Id., ¶ 5. Again, these allegations are general without reference to date, content or
outcome.
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October 19, 2014, Mr. Farrell filed a Step 1 grievance alleging that after he used the
administrative remedy system, Ms. Schwartz filed a “frivolous COPD report for ‘threats,’” in
unlawful retaliation for his exercise of his First Amendment rights. See #47-1, page 5.
Mr. Farrell initiated this lawsuit five days later, on October 24, 2014. There is no evidence that
he sought informal resolution or that he completed Steps 2 and 3 of the grievance process.
Ms. Schwartz moved to dismiss Mr. Farrell’s remaining claim pursuant to Fed. R. Civ. P.
12(b)(1) and (6), and Mr. Farrell responded (#39). On referral from this Court, the Magistrate
Judge recommended that the Motion to Dismiss be granted, and Mr. Farrell objects.
II.

Standard of Review
The Court reviews objected-to portions of a Magistrate Judge’s recommendation de novo.

See Fed. R. Civ. P. 72(b)(3); United States v. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir. 1996). Because Mr. Farrell appears pro se, the Court reviews his pleadings (including
his Complaint and objections) liberally, and holds them to a less stringent standard than those
drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Trackwell v. United States
Government, 472 F.3d 1242, 1243 (10th Cir. 2007).
III.

Discussion
Ms. Schwartz’s Motion to Dismiss (#29) requests that Mr. Farrell’s claim against Ms.

Schwartz be dismissed under Fed. R. Civ. P. 12(b)(1) because Mr. Farrell failed to exhaust his
administrative remedies before bringing this suit. The Magistrate Judge agreed, finding that
although Mr. Farrell initiated the administrative grievance process, he did not complete it before
filing this lawsuit. This Court agrees.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e (the PLRA) requires inmates to
exhaust all available administrative remedies before filing a civil lawsuit. See 42 U.S.C. §

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1997e(a). This requirement is mandatory; the Court lacks jurisdiction over claims that have not
been exhausted. See Jones v. Bock, 549 U.S. 199, 219-20 (2007); Woodford v. Ngo, 548 U.S.
81, 85 (2006); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). In determining
jurisdiction under Rule 12(b)(1), the Court may consider documents outside the complaint; wide
discretion is afforded to the court to examine affidavits and other evidence to resolve a
jurisdictional dispute. Wheeler v. Hurdman, 825 F.2d 257, 259 at n. 5 (10th Cir. 1987).
To exhaust administrative remedies, an inmate-plaintiff must comply with the full
administrative process. Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010). Before
bringing a claim in district court, an inmate must not only commence the CDOC grievance
process, but must also complete it. Id.; Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112
(10th Cir. 2007). To complete the CDOC process, as described above, an inmate must seek
informal resolution, then exhaust the three-step grievance process.
The record in this case reflects that Mr. Farrell filed a Step 1 grievance on October 19,
2014. But the affidavit of Anthony DeCessaro, a CDOC officer responsible for reviewing Step 3
grievances (#47-1), states that he reviewed the CDOC grievance records, and that Mr. Farrell
filed a Step 1 grievance, and received a response on November 3, 2014. Mr. Farrell then had
five days in which to file a Step 2 grievance. See AR 850-04(IV)(F)(1)(d). But, Mr. DeCessaro
states, there is no record that Mr. Farrell ever filed a Step 2 grievance (and thus, necessarily did
not file a Step 3 grievance). Instead, he filed this lawsuit on October 24, 2014.
Mr. Farrell does not dispute that he filed a Step 1 grievance, nor does he allege that he
exhausted Steps 2 and 3. Instead, in his Objection to the Magistrate Judge’s Report and
Recommendation, Mr. Farrell conclusorily argues that he was unable to exhaust his
administrative remedies because he was on a grievance restriction. In support of this argument,

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he attached a log from an “Offender Portal” that listed his grievance activity (Opposition to
Report & Recommendations, #64, pp. 10-13). The log includes the dates August 15-25, 2014;
October 1-20, 2014; November 11-26, 2014; and December 1-9, 2014. Mr. Farrell contends that
it shows that he was under a grievance restriction in October of 2014, and thus could not exhaust
his administrative remedies. It is true that the log shows that as of August 20, 2014, Mr. Farrell
was on a grievance restriction. However, the log also shows that the grievance restriction was
lifted on October 16, 2014. This is consistent with the record. Mr. Farrell filed his Step 1
grievance on October 19, after the restriction was lifted. There is no evidence to suggest that
from October 24-November 8, 2014, the time during which Mr. Farrell could have filed his Step
2 grievance, he was under any sort of restriction. Thus, the Court finds that Mr. Farrell has not
shown that he has exhausted his administrative remedies or has been prevented from doing so.
IV.

Conclusion
Accordingly, the Court adopts the Recommendation of the Magistrate Judge, and

GRANTS the Motion to Dismiss (#29). The case is dismissed without prejudice and Clerk shall
close it.
DATED this 23rd day of March, 2016.
BY THE COURT:

Marcia S. Krieger
United States District Court

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