Echon et al v. Sackett et al

Filing 116

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 106 MOTION for Summary Judgment filed by Justin Echon, Maribel Echon, Esmeraldo Villanueva Echon, Jr. be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 9/20/2017. (Attachments: # 1 - (7) Unpublished case law) (nywlc1)

Pipkins v. Taillon, Not Reported in F.Supp.2d (2014)
2014 WL 4197945

2014 WL 4197945
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Robert Pipkins, Plaintiff,
v.
Ryan Taillon, Defendant.
Civil Action No. 12–cv–02275–REB–KLM
|
Signed August 25, 2014
Attorneys and Law Firms
Robert Pipkins, Lewisburg, PA, pro se.

3. That plaintiff's claims against defendant are
DISMISSED WITHOUT PREJUDICE for failure to
exhaust administrative remedies; and
4. That judgment without prejudice SHALL ENTER
on behalf of defendant, Ryan Taillon, identified in the
caption as “Officer Mr. Taillon,” against plaintiff, Robert
Pipkins, as to all claims for relief and causes of action
asserted against him in this action.

RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
KRISTEN L. MIX, United States Magistrate Judge

Jacob Licht–Steenfat, William George Pharo, U.S.
Attorney's Office, Denver, CO, for Defendant.

This matter is before the Court on Defendant's Motion for

ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE

pro se, 2 filed a Response 3 [# 47]. Defendant has not

Blackburn, District Judge.
*1 The matter before me is the Recommendation of
United States Magistrate Judge [# 65], 1 filed July
24, 2014. No objection having been filed to the
recommendation, I review it for plain error only.
See Morales–Fernandez v. Immigration & Naturalization
Service, 418 F.3d 1116, 1122 (10th Cir.2005). 2 I perceive
no such error in the magistrate judge's recommended
disposition. Defendant has met its burden to assert
and demonstrate plaintiff's failure to exhaust his
administrative remedies, and plaintiff has failed to meet
defendant's evidence with admissible, competent evidence
establishing that administrate remedies were unavailable
to him. I therefore find and conclude that the magistrate
judge's thorough and well-reasoned recommendation
should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate
Judge [# 65], filed July 29, 2014, is APPROVED AND
ADOPTED as an order of this court;

Summary Judgment [# 43] 1 (the “Motion”). The Motion
is referred to this Court for recommendation regarding
disposition [# 44]. Plaintiff, who proceeds in this matter
filed a Reply, and his time to do so has elapsed. 4 The
Court has reviewed the Motion, the Response, the entire
docket, and the applicable law, and is sufficiently advised
in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the Motion for
Summary Judgment [# 43] be GRANTED.

I. Background
*2 Plaintiff is incarcerated by the Federal Bureau of
Prisons (the “BOP”). Amended Prisoner Complaint [#
12] (the “Complaint”) at 2. Plaintiff brings one claim
under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and asserts
that this Court has jurisdiction pursuant to 28 U.S.C. §
1331. Id. at 3. Plaintiff alleges that Defendant, during the
scope of Defendant's official duties as a prison officer,
used excessive force which caused Plaintiff injury. Id. at
4. Specifically, Plaintiff asserts an Eighth Amendment
claim of cruel and unusual punishment against Defendant.
Id. Plaintiff seeks “monetary compensation, extensive
immediate dental care or medical care, [and][s]epratee [sic]
from said named officer.” 5 Id. at 8.

2. That Defendant's Motion For Summary Judgment [#
43], filed November 26, 2013, is GRANTED;

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Plaintiff alleges that, while escorting Plaintiff's cellmate,
Defendant approached Plaintiff's cell on July 29, 2012
(the “Incident”). Id. at 3. According to Plaintiff, he “was
handcuffed behind [his] back” and could not stay upright
in his cell due to nausea. Id. Plaintiff avers that Defendant
unsuccessfully “attempted to pick [Plaintiff] up.” Id.
According to Plaintiff, Defendant “became aggravated
and overly aggressively picked [Plaintiff] up and dove out
the cell with [him] causing [his] face to hit the concrete[.]”
Id. at 4. Plaintiff maintains that he “went unconscious for
a moment or so [and] when [he] awoke [he] was laying in a
puddle of blood with deep lacerations to [his] upper lip ...
[and his] teeth were knocked out....” Id. Plaintiff checked
“yes” on his form complaint, affirming that he exhausted
his available administrative remedies. Id. at 7.

On July 11, 2014, Plaintiff filed a “Motion for
Production of Video Camera Footage” (the “Motion for
Production”) concerning discovery. See generally Motion
for Production [# 60]. Defendant filed “Defendant's
Response To Plaintiff's Motion for Production of Video
Camera Footage (Doc. 60)” (the “Motion for Production
Response”). See generally Motion for Production Response

Defendant argues that “Plaintiff failed to exhaust
his administrative remedies.” Motion [# 43] at 1.
Defendant submitted a declaration signed by Theresa
Montoya (“Montoya”), a Senior Attorney at the
Federal Correctional Complex in Florence, Colorado, to
support his argument that Plaintiff failed to exhaust his
administrative remedies. See generally Montoya Decl. [#
43–1].

On July 21, 2014, Plaintiff filed a “Constructive Notice
Memorandum” (the “Memorandum”). See generally
Mem. [# 64]. In the Memorandum, Plaintiff included
exhibits regarding his acts of self-harm prior to the
Incident, his attempts to secure counsel, and his physical
condition immediately following the Incident. Id., Ex. A,
at 5–6, Ex. B, at 7–9, Ex. C, at 10. Plaintiff requests that
the Court “allow Plaintiff's [Memorandum] to be valid,”
and that the Court “order the Plaintiff to obtain private
counsel[.]” Id. at 3.

In the Response, Plaintiff included various documents
that, he argues, demonstrate that he exhausted all of his
administrative remedies. Response [# 47] at 1.
On June 30, 2014, the Court entered a Minute Order
granting Plaintiff eighteen additional days in which to
submit documentation regarding Defendant's Motion.
Minute Order [# 59] at 2. In the Minute Order, the
Court provided explicit instructions to Plaintiff with
regard to the evidentiary requirements of Fed.R.Civ.P.
56. Id. at 2 (internal citation omitted) (“Plaintiff should
take note of the testamentary guidelines in 28 U.S.C. §
1746. Plaintiff should include the following statement on
the last page of every document he submits: “I declare
under penalty of perjury that the foregoing is true and
correct. Executed on (date).” Plaintiff should not include
additional documentation in pages following this oath
unless Plaintiff specifies in the oath that the additional
pages are included in the oath. Finally, Plaintiff should
be aware that swearing to the truth of false information
is perjury, and perjury is a crime punishable by fine and
imprisonment.”).

[# 63]. 6
*3 On July 14, 2014, Plaintiff filed a “Memorandum
Request for Prior Notice of Adjudication” (the “Prior
Notice Request”) requesting “prior notice of any steps
leading toward the adjudications called for in this case ‘at
the conclusion of all evidence’ considered in this action.”
Prior Notice Request [# 62] at 1.

II. Standard of Review
The purpose of a motion for summary judgment
pursuant to Fed.R.Civ.P. 56 is to assess whether trial is
necessary. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Under Rule 56, the Court must dismiss a
claim without prejudice if the evidence presented does
not create a genuine issue of material fact as to whether
Plaintiff's Eighth Amendment claim against Defendant
was properly exhausted. Gatlin v. Brown, 2014 WL
1818245, at *4 (D.Colo.2014) (noting that dismissal of
unexhausted claims on summary judgment should be
without prejudice). An issue is genuine if the evidence is
such that a reasonable jury could resolve the issue in favor
of the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A fact is material if it might affect
the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a
genuine issue of material fact. Adler v. Wal–Mart Stores,

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Inc., 144 F.3d 664, 670–71 (10th Cir.1998) (citing Celotex,
477 U.S. at 323). When the movant does not bear the
ultimate burden of persuasion at trial, the “movant may
make its prima facie demonstration [of the absence of
a genuine issue of material fact] simply by pointing out
to the [C]ourt a lack of evidence for the nonmovant on
an essential element of the nonmovant's claim.” Id. at
671. If the movant carries the initial burden of making
a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for
each essential element of his claim such that a reasonable
jury could find in his favor. See Anderson, 477 U.S.
at 248; Simms v. Okla. ex rel. Dep't of Mental Health
& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th
Cir.1999), abrogation recognized by Eisenhour v. Weber
County, 744 F.3d 1220, 1227 (10th Cir.2014). 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). The nonmoving party's evidence must be
more than “mere reargument of [his] case or a denial of
an opponent's allegation” or it will be disregarded. See
10B Charles Alan Wright, et al., Federal Practice and
Procedure § 2738 at 356 (3d ed.1998).
Only documents that adhere to the evidentiary
requirements of Fed.R.Civ.P. 56 can be considered for
purposes of summary judgment. Rule 56(c) provides that:
*4 “(1) A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.]
...
(3) Materials Not Cited. The court need consider only
the cited materials, but it may consider other materials
in the record.
(4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
Fed.R.Civ.P. 56(c)(1)-(4).

Pro se litigants must follow procedural rules including
Rule 56. See Nielson, 17 F.3d at 1277. The Tenth
Circuit, however, has found that “ ‘[t]he rights of pro se
litigants require careful protection where highly technical
requirements are involved....’ ” Jaxon v. Circle K Corp.,
773 F.2d 1138,1140 (10th Cir.1985) (quoting Garaux v.
Pulley, 739 F.2d 437, 439 (9th Cir.1984)). Thus, for
purposes of summary judgment, courts can consider pro
se litigants' verified complaints if the complaints “satisf[y]
the standards for affidavits outlined in [Rule 56(c)(4)
].” Adams v. Dyer, 223 Fed.Appx. 757, 764 n. 7 (10th
Cir.2007) (citing Conaway v. Smith, 853 F.2d 789, 792
(10th Cir.1988); see also Harris v. Denver Health Med.
Ctr., No. 11–cv–01 868–REB–MEH, at *7. (D.Colo. Jan.
31, 2013) (citations omitted); West v. Yeaton, No. 09–
cv–01268–MSK–KLM, at *3 (D.Colo. Jan. 6, 2011). In
addition to pro se litigants' verified complaints, courts can
consider evidence that is admissible. Law Co. v. Mohawk
Const. & Supply Co., 577 F.3d 1164, 1170 (10th Cir.2009)
(citing Fed.R.Evid. 901(a)); Nasious v. Robinson, 2010
WL 1268135 (D.Colo. Feb. 17, 2010) (citing World of
Sleep, Inc. v. La–Z–Boy Chair Co., 756 F.2d 1467, 1474
(10th Cir.1985)). For assertions to be admissible they
must be sworn. Sparks v. Rittenhouse, No. 02–cv–02356–
MSK–BNB, 2007 WL 987473, at *6 (D.Colo. Mar. 29,
2007) (citing Adickes, 398 U.S. at 158 n.17; Sofford v.
Schindler Elevator Corp., 954 F.Supp. 1459, 1462–63
(D.Colo.1997)).

III. Analysis
Under the Prison Litigation Reform Act (“PLRA”),
an inmate must first exhaust administrative remedies
before filing suit. Porter v. Nussle, 534 U.S. 516, 520
(2002) (“1997e(a)'s exhaustion requirement applies to all
prisoners seeking redress for prison circumstances or
occurrences.”); Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be
brought in court.”); Woodford v. Ngo, 548 U.S. 81, 84
(2006) (“Exhaustion is no longer left to the discretion of
the district court, but is mandatory.”). Specifically, the
exhaustion provision states:
“No action shall be brought with
respect to prison conditions under
[42 U.S.C. § 1983] of this title,

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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.”
*5 42 U.S.C. § 1997e(a). In order to “properly
exhaust” available administrative remedies, inmates must
fully comply with the applicable prison procedural
requirements. Jones, 549 U.S. at 218 (citing Woodford, 548
U.S. at 88); Jernigan v. Stuchell, 304 F.3d 1030,1032 (10th
Cir.2002) (citing Wright v. Hollingsworth, 260 F.3d 357,
358 (5th Cir.2001)). The burden is on the defendant to
assert failure to exhaust in a dispositive motion. See Jones,
549 U.S. 199 at 216.
If the defendant establishes that the plaintiff failed to
exhaust the prison's administrative remedies, the plaintiff
must show that the remedies were unavailable to him.
Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir.2011).
Courts have found that remedies are unavailable when
inmates are intimidated by prison officials, id., and when
“prison officials erroneously inform an inmate that the
remedy does not exist or inaccurately describe the steps
he needs to take to pursue it.” Stine v. United States
Fed. Bureau of Prisons, 508 Fed.Appx. 727, 730–31 (10th
Cir.2013) (citations omitted) (internal quotation marks
omitted).
The prison facility is tasked with the responsibility of
establishing grievance procedures. Jones, 549 U.S. at 218
(“[I]t is the prison's requirements, not the PLRA, that
define the boundaries of proper exhaustion.”). Inmates
within the BOP must follow a four-step administrative
procedure in order to exhaust their administrative
remedies. Montoya Decl. [# 43–1] ¶ 7 (citing 28 C.F.R.
§§ 542.10, et seq.). In Step 1, inmates “must attempt
informal resolution of [their] concern[s] by filing a
Request for Informal Resolution (a ‘BP–8’ form) with
the appropriate [BOP] staff member, ordinarily [their]
Correctional Counselor.” Id. ¶ 8. In Step 2, inmates must
“file a formal Administrative Remedy Request (a ‘BP–
9’ form) to the Warden at the institution where [they
are] being housed within 20 calendar days of the event
giving rise to the grievance.” Id. ¶ 9. In Step 3, inmates
must “fil [e] a Regional Office Administrative Appeal
(a ‘BP–10’ form) with the Regional Director within 20
calendar days of the date the Warden signs the denial
of the BP–9.” Id. ¶ 10 (citing 28 C.F.R. § 542.15(a)).
In Step 4, inmates must “file an appeal on the BP–

11 form to the General Counsel at the BOP's Central
Office in Washington, D.C. within 30 calendar days of the
denial of the BP–10 appeal.” Id. ¶ 12 (citing 28 C.F.R.
§ 542.15(a)). “At any [step] of the administrative remedy
process, a request may be rejected if an inmate fails to
comply with procedural requirements.” Id. ¶ 17. Inmates
may bypass the procedural requirement of filing initially
at the institution level if one of five exceptions applies:
the request contains a(1) sensitive issue; (2) DHO appeal;
(3) Control Unit appeal; (4) Controlled housing status
appeal; or (5) if it falls within the category of “[o]ther
requests for formal review of decisions not originating
from the Warden.” 28 C.F.R. § 542.14(d)(1)-(5).
In the Declaration, Ms. Montoya explains the BOP
procedural requirements that govern the submission and
acceptance of inmates' administrative remedy requests.
Montoya Decl. [# 43–1] ¶¶ 7–13, 16–19. Ms. Montoya
also interprets all of Plaintiff's administrative remedy
requests that she determined were filed in connection with
the Incident. Id. ¶¶ 20–27. The Declaration includes as
attachments the internal administrative log for Plaintiff's
requests, a table to interpret the log, some 7 of the
rejection notices Plaintiff received, and other pertinent
documents. Id., Attach. 1 [# 43–1] at 12–14; id., Attach.
2 [# 43–1] at 15–16; id., Attach. 3 [# 43–1] at 17–22; id.,
Attach. 4 [# 43–1] (the “Table”) at 23; id., Attach. 5 [#
43–1] (the “Log”) at 24–50; Second Request Rejection [#
43–1] at 51–52; Third Request Rejection [# 43–1] at 53–57.
Ms. Montoya asserts that Plaintiff submitted five requests
in connection with the Incident and all five were rejected
for failure to adhere to procedural requirements. Montoya
Decl. [# 43–1] ¶¶ 20–27; cf. 28 C.F.R. §§ 542.13–19
(discussing the general procedural requirements governing
the BOP grievance process).
*6 Plaintiff asserts that he has submitted “all [he has]
to show that [he] exhausted all administrative remedies.”
Response [# 47] at 1. Plaintiff submitted with the Response
sundry documentation concerning his administrative
remedies. Id. at 2–15.
The Court addresses in turn each of the five administrative
remedy requests identified by Ms. Montoya.

A. First Request
According to Defendant, Plaintiff filed Administrative
Remedy Request # 701755–R1 8 (the “First Request”)

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“at the regional level, which was received on August 21,
2012, and alleged staff misconduct in connection [with] the
incident.” Montoya Decl. [# 43–1] ¶ 21. Defendant asserts
that the BOP rejected Plaintiff's First Request because
“Plaintiff did not file at the appropriate level, did not
attempt informal resolution, did not file at the institution
level and did not raise a sensitive issue.” Id. (citing Log [#
43–1] at 33; Table [# 43–1] at 23).
Plaintiff submitted an “Informal Resolution Form” that
he allegedly sent in conjunction with his First Request. 9
Response [# 47] at 4. The Court does not consider the
contents of this form because Plaintiff does not swear to
the form's veracity, despite the Court's explicit instructions
that he must do so. See Sparks, 2007 WL 987473, at *6
(“Unsworn assertions are not sufficient grounds to oppose
a motion for summary judgment.”); see also Nasious, 2010
WL 1268135, at *7 (“Plaintiff has attached grievances filed
by other inmates in an attempt to set forth evidence of
such a custom. However these statements are not sworn
or certified and therefore run afoul of Rule 56(c) and the
court need not consider them on summary judgment.”).
Defendant's evidence corroborates his assertions
concerning the First Request's submission and rejection.
Plaintiff offers no admissible evidence that disproves
Defendant's assertions. Thus, Defendant has met his
initial burden in demonstrating that Plaintiff did not
exhaust his administrative remedies with the First
Request. See Jones, 549 U.S. at 216 (“failure to exhaust is
an affirmative defense under the PLRA”).

B. Second Request
According to Defendant, Plaintiff filed Administrative
Remedy # 702229–F1 (the “Second Request”) “at the
institution level, which was received on August 24, 2012,
again alleging staff misconduct in connection [with] the
Incident.” Montoya Decl. [# 43–1] ¶ 22. (citing Log [#
43–1] at 34, Second Request Rejection [# 43–1] at 51).
The BOP rejected the Second Request for the following
reasons: (1) Plaintiff “did not submit [his] request through
[his] counselor, or other authorized person;” (2) Plaintiff
“did not attempt informal resolution prior to submission
of administrative remedy, or [Plaintiff] did not provide
the necessary evidence of [his] attempt at informal
resolution;” and (3) Plaintiff needed to provide “more
specific information about [his] request/appeal so that it
may be considered.” 10 Second Request Rejection [# 43–

1] at 51. The rejection notice states that Plaintiff “may
resubmit [his] request in proper form within 5 days of the
date of this rejection notice.” Id. Defendant maintains that
Plaintiff did not resubmit his request. Id. ¶ 22.
*7 Plaintiff submitted a document labeled “Request
for Administrative Relief” dated August 17, 2012. 11
Response [# 47] at 7. On the request, Plaintiff asserts
that he is “filing this sensitive nine 12 due to an assault
that occurred on [July 29, 2012], after receiving five
stitches.” Id. Plaintiff also wrote “[s]ee Attached # 3,”
but he did not include with the Response a document
labeled “Attached # 3” or “# 3.” Id. Under Rule 56(c),
parties must “cite to particular parts of material in the
record....” Fed.R.Civ.P. 56(c)(1)(A). The Court will not
hunt through all of the documents Plaintiff has submitted
to determine if “Attached # 3” is included but mislabeled.
Accord James v. Heuberger Motors, Inc., No. 10–cv–
01648–CMA–KLM, 2011 WL 5331600, at *1 (D.Colo.
Nov. 4, 2011); Walker v. Meyer, No. 08–cv–01 911–REB–
KLM, 2009 WL 3158157, at *3 (D.Colo.2009) (citing
Gross v. Burggraf Const. Co., 53 F.3d 1531, 1546 (10th
Cir.1995); SEC v. Thomas, 965 F.2d 825, 827 (10th
Cir.1992)).
Plaintiff does not contradict Defendant's evidence.
Plaintiff does not offer evidence that the Counselor
to whom he submitted his Request was the proper
BOP employee. Plaintiff does not reference an attempt
at informal resolution nor provide evidence that such
a resolution occurred. Plaintiff does not explain how
his one sentence description of the Incident (in which
Plaintiff fails to mention Defendant or Defendant's
alleged actions) is sufficient for the BOP to consider
his Request. See Response [# 47] at 7. Finally, Plaintiff
does not demonstrate that he resubmitted his Request in
accordance with the rejection notice's instructions. Thus,
Defendant has met his initial burden in demonstrating
that the Second Request did not exhaust Plaintiff's
administrative remedies. See Jones, 549 U.S. at 216
(“failure to exhaust is an affirmative defense under the
PLRA”).

C. Third Request
According to Defendant, Plaintiff filed Administrative
Remedy # 703322–F1 (the “Third Request”) “at the
institutional level, which was received on September 4,
2012, alleging that he was assaulted by staff in connection

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[with] the Incident and requesting medical care for injuries
allegedly arising from the Incident.” Montoya Decl. [#
43–1] ¶ 23 (citing Log [# 43–1] at 35, Third Request
Rejection [# 43–1] at 53–57). The Third Request was
rejected because more than 20 calendar days had elapsed
between the Incident and receipt of the Third Request.
Log [# 43–1] at 35; see Table [# 43–1] at 23.
Defendant maintains that Plaintiff unsuccessfully
appealed the rejection of the Third Request. Montoya
Decl. [# 43–1] ¶ 23; see Log [# 43–1] at 36. According
to Defendant, Plaintiff's appeal was rejected because
he submitted his appeal to the wrong level and on an
incorrect form. Log [# 43–1] at 36; see Table [# 43–1] at 23.
Plaintiff offers no evidence that he exhausted all
administrative remedies by means of his Third Request.
Defendant's evidence, on the other hand, corroborates
Defendant's contention that Plaintiff's Third Request
failed to exhaust all administrative remedies. Thus,
Defendant has met his initial burden with regard to the
Third Request. See Jones, 549 U.S. at 216 (“failure to
exhaust is an affirmative defense under the PLRA”).

D. Fourth Request
*8
According to Defendant, Plaintiff filed
Administrative Remedy Request # 711110–A1 (the
“Fourth Request”) “at the Central Office level, which was
received on October 1, 2012, claiming he was assaulted by
staff and denied medical treatment in connection [with]
the Incident.” Montoya Decl. [# 43–1] ¶ 24 (citing Log
[# 43–1] at 37). Plaintiff's Fourth Request was rejected
because Plaintiff filed it at the wrong level and did not
raise a sensitive issue. Log [# 43–1] at 37; see Table
[# 43–1] at 23. The BOP's internal records show that a
BOP employee included the following statement regarding
Plaintiff's Fourth Request: “[W]e are unable to identify the
appeal [number].... Sensitive appeals must be filed at the
region[al] level first.” Log [# 43–1] at 37.
Plaintiff submitted a document labeled “Central Office
Administrative Remedy Appeal,” dated September 25,
2012. 13 Response [# 47] at 14. The Court does not
consider the appeal because Plaintiff does not swear to
the form's veracity, despite the Court's explicit instructions
that he must do so. See Sparks, 2007 WL 987473, at *6
(“Unsworn assertions are not sufficient grounds to oppose
a motion for summary judgment.”); see also Nasious, 2010

WL 1268135, at *7 (“Plaintiff has attached grievances filed
by other inmates in an attempt to set forth evidence of
such a custom. However these statements are not sworn
or certified and therefore run afoul of Rule 56(c) and the
court need not consider them on summary judgment.”).
Plaintiff also includes as an attachment to the form
a handwritten document titled “Sensitive Ten Copy.”
Response [# 47] at 11–12. The Court will not consider
the attachment because it is unsworn (again, contrary to
the Court's explicit instructions) and not clearly labeled
as the attachment to which the appeal refers. See James,
2011 WL 5331600, at *1 (noting that one specific citation
to material in an attachment is insufficient under Rule
56(c)(1)); Walker, 2009 WL 3158157, at *3 (holding that
the plaintiff failed to raise a legitimate dispute by not
specifically citing pertinent allegations in the complaint).
Plaintiff does not offer any admissible evidence to
contradict Defendant's assertions with regard to the
Fourth Request. Plaintiff does not disprove that he sent
his form to the wrong level nor that he failed to raise
a sensitive issue. It is within the Administrative Remedy
Coordinator's discretion to determine whether an inmate's
request raises a sensitive issue. 28 C.F.R. § 542.14(d)(1);
Antonelli v. Crow, 08–261–GFVT, 2012 WL 4215024, at
*6 (E.D.Ky. Sept. 19, 2012); Jackson v. Walker, 07–230–
DCR, 2008 WL 559693 at *9 (E.D.Ky. Feb. 27, 2008);
Jeanes v. United States Dep't. of Justice, 231 F.Supp.2d
48, 51 (D.D.C.2002). Thus, Defendant has met his initial
burden in demonstrating that Plaintiff did not exhaust
his administrative remedies with his Fourth Request. See
Jones, 549 U.S. at 216 (“failure to exhaust is an affirmative
defense under the PLRA”).

E. Fifth Request
According to Defendant, Plaintiff filed Administrative
Remedy Request # 740229–F1 (the “Fifth Request”) “at
the institution level, which was received on June 27, 2013,
alleging staff misconduct.” Montoya Decl. [# 43–1] ¶ 25
(citing Log [# 43–1] at 44). The Fifth Request and the
two subsequent appeals were denied. Id. ¶ 26. In the
Declaration, Ms. Montoya notes that the Fifth Request
and subsequent appeals may be unrelated to the Incident.
Id. ¶ 25. The Court agrees with Ms. Montoya's reservation.
The internal record concerning the regional appeal refers
to an event that predates the Incident by one month,
and Plaintiff does not assert or provide evidence that the
Fifth Request and subsequent appeals are related to the
Incident. See Log [# 43–1] at 49; see generally Response

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[# 47]. Thus, like the four previous requests, the Fifth
Request does not demonstrate that Plaintiff exhausted his
administrative remedies in connection with the Incident.

F. Availability of Administrative Remedies
*9 In various documents submitted to the Court,
Plaintiff alleges that Defendant interfered with Plaintiff's
ability to seek administrative remedies. Response [# 47] at
1, 7; August Letter [# 1] at 1; September Letter [# 6] at 1–3;
Response to Docket # 48 Defendants [sic] Motion to Strike
[# 57] (the “Motion to Strike Response”) at 2. In other
words, Plaintiff alleges that administrative remedies were
unavailable to him. See 42 U.S.C. § 1997e(a) ( “No action
shall be brought ... until such administrative remedies
as are available are exhausted.”) (emphasis added). The
Court does not address Plaintiff's allegations concerning
unavailability because the documents that contain the
allegations are insufficient for consideration at summary
judgment. As noted above, Fed.R.Civ.P. Rule 56 governs
what evidence may be considered in conjunction with a
motion for summary judgment. Rule 56 provides that:
“(1) A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.]
...
(3) Materials Not Cited. The court need consider only
the cited materials, but it may consider other materials
in the record.
(4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
Fed.R.Civ.P. 56(c)(1)-(4).
First, the Court cannot consider any of the attachments
in the Response because Plaintiff does not swear to their
veracity, despite the Court's explicit instructions as to
how to provide sworn documents. See Sparks, 2007 WL
987473, at *6 (“Unsworn assertions are not sufficient

grounds to oppose a motion for summary judgment.”);
see also Nasious, 2010 WL 1268135, at *7 (“Plaintiff has
attached grievances filed by other inmates in an attempt
to set forth evidence of such a custom. However these
statements are not sworn or certified and therefore run
afoul of Rule 56(c) and the court need not consider them
on summary judgment.”). Plaintiff's oath only swears
that the statement on page two, which does not contain
allegations relevant to unavailability of administrative
remedies, is accurate. Response [# 47] at 2 (“I gave SIA
Vanek a written statement on November 28, 2012. It is
true and correct.”), 3.
Second, the Court does not consider allegations in the
August Letter and the September Letter because the
letters are unsworn statements (Plaintiff again failed to
heed the Court's explicit instructions in this regard). See
Sparks, 2007 WL 987473, at *6 (“Unsworn assertions are
not sufficient grounds to oppose a motion for summary
judgment.”); see also Nasious, 2010 WL 1268135, at *7
(“Plaintiff has attached grievances filed by other inmates
in an attempt to set forth evidence of such a custom.
However these statements are not sworn or certified and
therefore run afoul of Rule 56(c) and the court need not
consider them on summary judgment.”).
Finally, the Court exercises its discretion in not
considering the Motion to Strike Response [# 57]. The
Court declines to consider the Motion to Strike Response
[# 57] for three reasons. First, the Court “need only
consider cited material” and, as the Motion to Strike
Response [# 57] succeeded the Response [# 47], the
Motion to Strike Response [# 57] is not cited in the
Response [# 47]. See Fed.R.Civ.P. 56(c)(3); cf. Gross,
53 F.3d at 1546 (quoting Thomas v. Wichita Coca–Cola
Bottling Co., 968 F.2d 1022, 1024–25 (10th Cir.1992), cert.
denied, 506 U.S. 1013 (1992)) (further citation omitted)
(“ ‘[S]ufficient evidence (pertinent to the material issue)
must be identified by reference’.... Without a specific
reference, ‘we will not search the record in an effort to
determine whether there exists dormant evidence....’ ”).
Second, it would be prejudicial to Defendant to consider
the Motion to Strike Response [# 57] because it was
filed four months after Defendant's Motion for Summary
Judgment. Cf. Comm. for First Amendment v. Campbell,
962 F.2d 1517, 1524 (10th Cir.1992) (affirming denial of
Plaintiffs' motion to reconsider summary judgment ruling
because Plaintiffs did not explain why they waited three
months to submit additional evidence that was not newly

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discovered). Third and most importantly, the Court does
not consider the Motion to Strike Response [# 57] because
the Court granted Plaintiff additional time to resubmit the
allegations contained in the Motion to Strike Response
in proper form, and Plaintiff failed to follow the Court's
explicit instructions. See Minute Order [# 59] at 2. 14
*10 Accordingly, the Court recommends that Plaintiff's
Eighth Amendment claim against Defendant Taillon
be dismissed without prejudice for failure to exhaust
administrative remedies. Gatlin, 2014 WL 1818245, at *4
(noting that dismissal of unexhausted claims on summary
judgment should be without prejudice).

IV. Conclusion
Accordingly,

IT IS FURTHER ORDERED that pursuant to
Fed.R.Civ.P. 72, the parties shall have fourteen (14) days
after service of this Recommendation to serve and file any
written objections in order to obtain reconsideration by
the District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District
Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140,
147–48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of Corr.,
183 F.3d 1205, 1210 (10th Cir.1999); Talley v. Hesse, 91
F.3d 1411, 1412–13 (10th Cir.1996). A party's objections
to this Recommendation must be both timely and specific
to preserve an issue for de novo review by the District
Court or for appellate review. United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).
Dated: July 24, 2014

The Court respectfully RECOMMENDS that the Motion
for Summary Judgment [# 43] be GRANTED, and that
the claim against Defendant be DISMISSED without
prejudice.

All Citations
Not Reported in F.Supp.2d, 2014 WL 4197945

Footnotes

1
2

1
2

3

4
5

“[# 65]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's
case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales–Fernandez, 418 F.3d at 1122.
In addition, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less
stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972)).
“[# 43]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper
by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this
Recommendation.
The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (citations omitted). The Court, however, should not be the pro se
litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint
or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir.1997) (citing
Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).
The Court construes Docket No. 47 as Plaintiff's Response to the Motion for Summary Judgment. Plaintiff prefaces
the Response by asserting that it “is all [Plaintiff has] to show that [he] exhausted all administrative remedies.” The
Response, therefore, directly responds to the Motion, which is based on Defendant's position that Plaintiff did not exhaust
his administrative remedies. Motion [# 43] at 1.
Defendant filed a Motion to Strike Plaintiff's Notice (Doc. 47) or, in the Alternative, Find That It Supports Defendant's
Motion for Summary Judgment (Doc. 43)[# 48], which the Court addresses in a separate order.
Throughout this Recommendation, the Court has standardized the formatting of Plaintiff's handwritten allegations. For
example, in the quotation “monetary compensation, extensive immediate dental care or medical care, [and] separatee

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6
7

8

9

10
11
12
13
14

[sic] from said named officer,” the Court has substituted lower case letters when appropriate, in addition to the changes
denoted in brackets. Compl. [# 12] at 8.
The Court addresses the Motion for Production in a separate order.
According to Ms. Montoya, “BOP does not archive, or otherwise maintain copies of, rejected administrative remedy
requests or written notices of such rejection.” Montoya Decl. [# 43–1] ¶ 18. Thus, Ms. Montoya submitted as attachments
to the Declaration only the rejections that were “maintained at USP Florence.” Id. ¶ 18; see id., Attach. 6 [# 43–1] (the
“Second Request Rejection”) at 51; id., Attach. 7 [# 43–1] (the “Third Request Rejection”) at 53.
The BOP's national database assigns a unique “Remedy ID Number” to each initial inmate request. Montoya Decl. [#
43–1] ¶ 14. The assigned number “will follow the [request] throughout the appeal process.” Id. The letters following the
hyphen in the Remedy ID Number identify the request's level of review. Id. “F1” signifies that the request “was filed at
the institution level.” Id. “R1” signifies that the request “or appeal was filed at the regional level.” Id. “A1” signifies that
“the appeal was filed at the national level.” Id.
Plaintiff does not explain the documentation he submitted in the Response nor does Plaintiff cross-reference his
documentation with that provided by Defendant. The Court construes page 4 of Plaintiff's Response to correspond to
the First Request because the form on page 4 lists August 21, 2012, as the date the form was received by BOP staff.
Response [# 47] at 4; cf. Motion [# 43] at 4 (citing Montoya Decl. [# 43–1] ¶ 21) (“Plaintiff filed [the First Request] at the
BOP Regional Office level, which was received on August 21, 2012....”).
Throughout this Recommendation, the Court has standardized the capitalization of the BOP internal records when
appropriate. For instance, on the rejection notice for the Second Request every letter is capitalized on the internal record.
Second Request Rejection [# 43–1] at 51.
In the Declaration, Ms. Montoya provides a copy of the same document and identifies it as Plaintiff's Second Request.
Montoya Decl. [# 43–1] at 8 n.3; see Second Request Rejection [# 43–1] at 52. Thus, the Court considers the document
in conjunction with the Second Request.
“Sensitive nine” signifies a request filed at the institutional level that, the inmate alleges, raises a sensitive issue. See
Montoya Decl. [# 43–1] ¶ 9; 28 C.F.R. § 542.14(d)(1).
The Court construes the “Central Office Administrative Remedy Appeal” to concern the Fourth Request because the
dates on the two documents align, both were filed at the national level, and both reference the referral to the proper office.
See Montoya Decl. [# 43–1] ¶ 24, Log [# 43–1] at 37; Response [# 47] at 14.
The documentation Plaintiff did submit following the Minute Order does not address the availability of Plaintiff's
administrative remedies. See generally Motion for Production [# 60]; Prior Notice Request [# 62]; see also Mem. [# 64]
at Ex. A at 5–6 (concerning acts of self-harm), Ex. B at 7–9 (concerning unsuccessful search for counsel), Ex. C at 10
(photograph of Plaintiff the day of the Incident). Furthermore, the exhibits in the Memorandum are inadmissible because
Plaintiff attests only to the veracity of the pages preceding the exhibits, an error about which the Court warned Plaintiff
in the Minute Order. See id. at 4 (“I declare under penalty of perjury that the foregoing is true and correct [.]”) (emphasis
added); Minute Order [# 59] at 2 (“Plaintiff should not include additional documentation following th[e] oath unless Plaintiff
specifies in the oath that the additional pages are included in the oath.”).

End of Document

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