Gillings v. Banvelos et al

Filing 36

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/20/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00172-LTB
NIGEL GILLINGS,
Plaintiff,
v.
LT. BANVELOS;
LT. YAGAR; and
H. WALKER,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Nigel Gillings, is a federal prisoner in the custody of the Federal Bureau of Prisons
(BOP). He currently is confined at the Federal Correctional Institution at McDowell, in Welch,
West Virginia. Mr. Gillings has filed pro se an Amended Prisoner Complaint (ECF No. 13)
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971) claiming his rights under the United States Constitution were violated while he was detained
at a United States Penitentiary in Colorado in May of 2012.
A. Mandatory Screening and Standards of Review
In 1996, as part of the Prison Litigation Reform Act (PLRA), Congress significantly
amended Title 28 of the United States Code, section 1915, which establishes the criteria for allowing
an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as
amended) requires the federal courts to review complaints filed by persons that are proceeding in
forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B). See Creamer v. Kelly, 599 F. App’x 336 (10th Cir.
2015) (“Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen a complaint filed IFP and dismiss
the case at any time if the court determines that the action or appeal is frivolous or malicious or fails
to state a claim on which relief may be granted.”) (internal quotation and citation omitted).
In addition, 28 U.S.C. § 1915A, entitled “Screening,” requires the court to review complaints
filed by prisoners seeking redress from a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). If the complaint is “frivolous, malicious, or fails to
state a claim upon which relief can be granted,” or “seeks monetary relief from a defendant who is
immune from such relief,” the court must dismiss the complaint. 28 U.S.C. § 1915A(b).
Further, the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. § 1997e requires the
court “on its own motion or on the motion of a party” to dismiss any action brought by a prisoner
with respect to prison conditions under 42 U.S.C. § 1983 if the action is “frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief.” See 42 U.S.C. § 1997e(c)(1).
Plaintiff is considered a “prisoner” as that term is defined under the PLRA, see 28 U.S.C.
§§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 8).
Moreover, Defendants are employees of a governmental entity. In addition, he is complaining about
the conditions of his confinement. Thus, his Complaint must be reviewed under the authority set
forth above.
In reviewing complaints under these statutory provisions, a viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S.

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41, 45–46 (1957)). The question to be resolved is: whether, taking the factual allegations of the
complaint, which are not contradicted by the exhibits and matters of which judicial notice may be
had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations
of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative
level, ... on the assumption that all the allegations in the complaint are true even if doubtful in
fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint for failure to state a
claim, the Court may also consider documents attached to the complaint as exhibits. Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted). Moreover, a legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319,
324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that a court may
dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category
encompassing allegations that are fanciful, fantastic, and delusional).
The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [a court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se
litigant’s advocate. See id. Sua sponte dismissal is proper when it is patently obvious that plaintiff
could not prevail on the facts alleged and it would be futile to allow the plaintiff to amend. Andrews
v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir.
2001) (internal quotations omitted).
B. Plaintiff’s Allegations
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Plaintiff claims that on the dates May 21, 2012 through May 24, 2012, while he was
incarcerated at the United States Penitentiary in Colorado, he was forced to sleep on the ground
within a cage, without privacy in front of the Special Housing Unit. In the morning hours, he was
forced to sleep on the floor and live in the multi-purpose room and electronic law library. These
areas have no toilet, lighting or sink. Plaintiff was forced to defecate in a bag and urinate in a
container in public. He claims that there were available cells during this time period.
He further claims that he attempted to present this issue to the BOP through its
Administrative Remedy Program (ARP), which is available to federal prisoners. See 28 C.F.R. §§
542.10–542.19. Although, Applicant alleged that he attempted to present his issues through the
ARP, BOP records show that his requests were untimely filed (ECF No. 34, p. 15).
For the reasons stated below, the Complaint and the action will be dismissed pursuant to the
screening authority set forth above. An appropriate order follows.
C. Limitations Period
Bivens’ claims are governed by the appropriate state-law limitation period for personal
injuries; in Colorado, that period is two years. See e.g., Appleby–El v. Catron, 84 F. App’x 9, 10
(10th Cir. 2003) (unpublished) (citing Industrial Constructors Corp. v. United States Bureau of
Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) and C.R.S. § 13–80–102. Thus, to be timely, the
Plaintiff must have commenced this action within two years of the accrual of his claims. A claim
accrues, and the statute of limitations begins to run, on the date when the plaintiff knows or should
know of the existence and cause of the injury upon which his claim is based. Hoang Van Tu v.
Koster, 364 F.3d 1196, 1199 (10th Cir. 2004). The fact that a detrimental decision by BOP could
later have been reversed through the grievance process does not extend the accrual date of claims.
Adams v. Wiley, 398 F. App’x 372 (10th Cir. 2010).
The statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). However,
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the court may dismiss a claim sua sponte on the basis of an affirmative defense if the defense is
“obvious from the face of the complaint” and “[n]o further factual record [is] required to be
developed in order for the court to assess the [plaintiff’s] chances of success.” Yellen v. Cooper, 828
F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10th Cir. 1995)
(stating that dismissal under § 1915 on the basis of an affirmative defense is permitted “when the
claim’s factual backdrop clearly beckons the defense”).
The events on which Mr. Gillings’ claims are premised occurred between May 21, 2012 and
May 24, 2012. Mr. Gillings also alleges facts that demonstrate he was aware of his injuries at that
time. Therefore, because this action was not filed until January 26, 2015, the affirmative defense
of the statute of limitations is obvious on the face of the Amended Complaint.
On May 16, 2015, the Court ordered Mr. Gillings to show cause why the Amended
Complaint should not be dismissed as untimely. He specifically was advised to address the issue
of whether the statute of limitations should be tolled as a matter of equity or for any other reason.
Mr. Gillings filed responses on June 4, 2015 (ECF No. 23) and on October 2, 2015 (ECF No. 34).
In his responses, he argues that the statute of limitations should be tolled while he exhausted his
administrative remedies pursuant to the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a) .
Tolling of a state statute of limitations is governed by state law. Roberts v. Barreras, 484
F.3d 1236, 1240 (10th Cir. 2007). Thus, the question presented is whether Colorado law recognizes
such a toll. There is no Colorado statute or case law that automatically tolls the statute of limitations
while pre-suit administrative remedies are exhausted. Braxton v. Zavaras, 614 F.3d 1156 (10th Cir.
2010). Thus, the issue is whether equitable tolling is available. See e.g., Roberts v. Barreras, 109
F. App’x 224, 226 (10th Cir. 2004). In this regard, Colorado recognizes that “equity may require a
tolling of the statutory period where flexibility is required to accomplish the goals of justice.” Dean
Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). At the same time, “statutes
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of limitations compel litigants to pursue their claims in a timely manner.” Id. at 1099. Thus,
equitable tolling is limited “to situations in which either the defendant has wrongfully impeded the
plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from
filing his or her claim despite diligent efforts.” Id.
The Colorado Supreme Court has yet to find a case that qualifies as an “extraordinary
circumstance” that would justify tolling. However, that court has relied on cases from other
jurisdictions to illustrate that tolling may apply when a plaintiff is truly precluded from filing suit.
See Dean Witter, 911 P.2d at 1097.
Under the PLRA, Mr. Gillings was required to exhaust all available administrative remedies
prior to filing this suit in federal court. 42 U.S.C. § 1997e(a). Failure to do so could result in
dismissal of his action. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032–33 (10th Cir. 2002).
Accordingly, the PLRA's exhaustion requirement could constitute a circumstance “mak[ing] it
impossible for [a] plaintiff to file his or her claims within the statutory period,” thus entitling a
plaintiff to equitable tolling, “so long as [he or she] makes good faith efforts to pursue the claims
when possible.” See Dean Witter, 911 P.2d at 1097. Thus, whether Mr. Gillings is entitled to
equitable tolling depends on whether he diligently pursued his claims with respect to exhausting his
administrative remedies.
The administrative remedy process available to inmates in federal custody is the BOP's
Administrative Remedy Program. The BOP employs a four-step process to address inmate claims.
First, inmates must attempt to informally resolve the issue before filing a request for administrative
remedy. 28 C.F.R. § 542.13(a). Second, if an inmate is unable to informally resolve his complaint,
he may file a formal written complaint (form B-9), within 20 calendar days of the date on which the
basis of the complaint occurred. 28 C.F.R. § 542.14(a). The inmate must date and sign the request
and submit it to the institutional staff member designated to receive such requests (ordinarily a
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correctional counselor). 28 C.F.R. § 542.14(c)(4). The warden has 20 calendar days in which to
respond. 28 C.F.R. § 542.18. If an inmate is not satisfied with the warden's response, he may
submit an appeal on form B-10 to the Regional Director within 20 calendar days from the date of
the warden's response. 28 C.F.R. § 542.15(a). The Regional Director has 30 calendar days in which
to respond. 28 C.F.R. § 542.18. Finally, if the inmate is dissatisfied with the Regional Director's
response, that decision may be appealed to the General Counsel within 30 calendar days from the
date of the Regional Director's response. 28 C.F.R. § 542.15(a). The General Counsel has 40
calendar days to respond. 28 C.F.R. § 542.18. If the inmate does not receive a response within the
time allotted for reply, including extension, the inmate may consider the absence of a response to
be a denial at that level. Id.
Where an inmate reasonably believes a matter is sensitive and would endanger his safety or
well-being if its substance were widely known, the inmate may submit his initial complaint directly
to the Regional Manager instead of the Warden. 28 C.F.R § 542.14(d). The inmate must clearly
mark “Sensitive” upon the request and explain, in writing, the reason for not submitting it at the
institution. If the Regional Administrative Remedy Coordinator agrees that the request is sensitive,
the request is accepted; otherwise, the request is not accepted and the inmate is advised in writing
of that determination. The inmate may pursue the matter by submitting an Administrative Remedy
Request locally to the Warden, who shall allow a reasonable extension of time for such a
resubmission. Id.
Plaintiff claims that he submitted two informal requests but that he never received any
responses (ECF No. 23, p. 3). However, if his assertions are true, Mr. Gillings could simply have
proceeded by appealing his request to the next level. See C.F.R. § 542.18 ("If the inmate does not
receive a response within the time allotted for reply, including extension, the inmate may consider
the absence of a response to be a denial at that level.") Moreover, BOP records show that his BP-9s
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were untimely (ECF No. 34, p. 15).
It is clear that Plaintiff has failed to exhaust his administrative remedies. He admits that his
BP-9s were deemed untimely. Moreover, he failed to file any proper BP-10s as none contained any
indication that they were being filed under the “sensitive” exception in 28 C.F.R. §542.14(b). In
addition, he did not seek to file at the institutional level after being advised that he was required to
do so. Finally, he waited six months after receiving his last response from BOP to file the instant
action.
In Rosales v. Ortiz, 325 F. App’x 695 (10th Cir. 2009), upon completing the grievance
process, plaintiff had six months to file his action before the statute of limitations expired. However,
he did not refile his action in federal court until more than ten months after exhausting his
administrative remedies, and thus, over four months too late. The Court of Appeals for the Tenth
Circuit declined to apply equitable tolling in that case reasoning that ample time for filing within the
two-year limitations period remained after the exhaustion of remedies but that the plaintiff failed to
diligently pursue his opportunity to file. Id. at 699.
This Court finds the reasoning of Rosales persuasive. It is clear from the record in this case
that Plaintiff failed to diligently pursue his opportunity to file. Because he did not pursue his claims
with diligence, he is not entitled to equitable tolling. Neither the defendants nor extraordinary
circumstances stood in the way of Plaintiffs' filing suit within the statutory period; only his own
inaction prevented him from filing in a timely manner. Accord Braxton v. Zavaras, 614 F.3d 1156,
1161 -1163 (10th Cir. 2010).
Without a showing of circumstances warranting equitable tolling under Colorado's relatively
restrictive definition of that doctrine, the Court finds that the Plaintiff's action is untimely and will
be dismissed with prejudice. See Fractus v. Deland, 49 F.3d 673, 674-75 (10th Cir. 1995) (a court
may sua sponte consider an affirmative defense for purposes of dismissal under § 1915 when the
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defense is obvious from the face of the complaint and not further factual record is required); Murphy
v. Klein Tools, Inc., 935 F.2d 1127, 1128-29 (10th Cir. 1991) (holding a dismissal based on statute
of limitations is judgment on the merits).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status will be denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice
of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Complaint and this action is dismissed with prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this

20th day of

October

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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