Palmer v. Farmer et al

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/18/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-771-LTB
LARRY PALMER, Inmate No. 87366,
Plaintiff,
v.
MR. FARMER, Dentist;
JAMIE SOUCIE, HSA for SCF West Medical,
Defendants.

ORDER DISMISSING CASE

Plaintiff Larry Palmer is in the custody of the Colorado Department of Corrections
and currently is incarcerated at the Sterling Correctional Facility in Sterling, Colorado.
Plaintiff initiated this action by filing pro se a Prisoner Complaint. He has been granted
leave to proceed in forma pauperis under 28 U.S.C. § 1915 in this action (ECF No. 4). In
his Complaint, he is asking the Court for “emergency” dental care to remove all of his teeth
and issue him dentures. He filed the Complaint because the dentist was unable to remove
his teeth during his initial dental visit but required him to set up another appointment to
allow the dentist sufficient time to provide appropriate care.
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). However, the Court should not act as a pro se litigant’s advocate. See
Hall, 935 F.2d at 1110. Because Mr. Palmer is a prisoner complaining about prison
conditions, and has been granted leave to proceed IFP, the court is required by statute to
screen his complaint and to dismiss the complaint or any portion thereof that is frivolous,

fails to state a claim on which relief may be granted, or seeks relief from a defendant
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1). Having
screened all materials filed, the court finds the complaint is subject to dismissal for the
following reason.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison conditions under section
1983 of this title, 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.
The exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege denial of
medical treatment or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion in cases covered by § 1997e(a) is not within the court’s discretion, but is
mandatory. “[E]xhaustion requirements are designed to . . . give the agency a fair and full
opportunity to adjudicate their claims.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Full and
proper exhaustion of administrative remedies is required, and entails utilizing “all steps that
the agency makes available, and doing so properly (so that the agency addresses the
issues on the merits).” Id. at 90.
Under the PLRA, Mr. Palmer was required to exhaust completely his available
administrative remedies prior to bringing his claims in federal court. Colorado Department
of Correction (CDOC) regulations provide for a three-step administrative grievance process.
Following an attempt at informal resolution, an inmate may file a Step 1 grievance, which
shall be investigated and answered by the involved DOC employee, contract worker, or
volunteer, together with a DOC employee appointed by the administrative head, or
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designee. Admin. Reg. No. 850–04(IV)(C)(1)(a). A Step 1 grievance must be filed within
thirty (30) calendar days from the date the offender knew, or should have known, of the
facts giving rise to the complaint. Admin. Reg. No. 850–04(IV)(F)(1)(a). The offender shall
receive a written response within twenty-five (25) calendar days of its receipt by the case
manager/CPO. Admin. Reg. No. 850–04(IV)(F)(1)(b). If an inmate is dissatisfied with the
response, he may file a Step 2 grievance within five calendar days of receiving the written
response. Admin. Reg. No. 850–04(IV)(F)(1)(d). Step 2 grievances are investigated and
answered

by

the

administrative

head,

or

his

designee,

Admin.

Reg.

No.

850–04(IV)(C)(1)(b), and must be answered within twenty-five (25) days. Admin. Reg. No.
850–04(IV)(F)(1)(b). If an inmate is dissatisfied with the Step 2 response, he may file a
Step 3 grievance within five calendar days of receiving the written response. Admin. Reg.
No. 850–04(IV)(F)(1)(d). Step 3 grievances are investigated and answered by CDOC's
grievance officer, Admin. Reg. No. 850–04(IV)(C)(1)(c), and must be answered within
forty-five (45) days of receipt by the grievance officer.

Admin. Reg. No.

850–04(IV)(F)(1)(c). An inmate who has properly pursued all three grievances has
exhausted his administrative remedies through the CDOC and may proceed in federal
court. See Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008); Whitington v. Ortiz, 472
F.3d 804, 807 (10th Cir. 2007).
"Since the PLRA makes exhaustion a precondition to filing a suit, an action brought
before administrative remedies are exhausted must be dismissed...." Ruppert v. Aragon,
448 F. App'x 862, 863 (10th Cir. 2012); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002) (an "inmate who begins the grievance process but does not complete it is barred
from pursuing a ... claim under the PLRA for failure to exhaust his administrative
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remedies.").
The failure to exhaust administrative remedies is an affirmative defense. Jones v.
Bock, 549 U.S. 199, 223-24 (2007). This means that a prison inmate is not required “to
allege and demonstrate exhaustion in his complaint.” Id. Consequently, the question of
exhaustion generally does not arise until it is raised by a defendant. However, the Tenth
Circuit has held that if a complaint makes it clear through the prisoner’s affirmative
statements he has not exhausted his administrative remedies, the district court may raise
the exhaustion question sua sponte provided it seeks additional information from the
prisoner. Escobar v. Reid, 240 F. App’x 782, 784 (10th Cir. 2007) (unpublished) (citing
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see also Markovich v.
Correct Care Solutions, 406 F. App’x 264 (10th Cir. 2010); Fogle v. Pierson, 435 F.3d 1252,
1258 (10th Cir. 2006).
In response to the question on his form complaint as to whether he previously
sought administrative relief from the appropriate officials, Mr. Palmer states as follows.
Plaintiff was present at a staffing directly related to these issues, was
assured it was going to be taken care of, and has still not received the care
he requires; Plaintiff is in a potentially life-threatening situation, and has
proceeded to file an ADA Grievance, which went in on the 30th of March,
2015; the ADA Grievance is supplemental, and not key, to this lawsuit;
ECF No. 1, p. 6.
The court finds that it is apparent from allegations in the complaint that Mr. Palmer
did not fully and properly exhaust the available prison administrative remedies on each of
his claims before filing this lawsuit. Plaintiff was provided an opportunity to allege facts or
provide exhibits showing that he followed each of the steps set forth in the Colorado
Grievance Procedure in a timely and proper manner (ECF No. 5). He filed a Response on

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May 8, 2015 asserting that he was not required to comply with the mandatory exhaustion
requirement because the CDOC grievance procedure does not provide for money damages
(ECF No. 6). Such contention was roundly rejected by the United States Supreme Court
in Booth v. Churner wherein it held that the PLRA requires administrative exhaustion even
where the grievance process does not permit an award of money damages and a prisoner
seeks only money damages, as long as the grievance tribunal has authority to take some
responsive action. As such, Plaintiff’s § 1983 complaint will be dismissed without prejudice
for failure to exhaust available administrative remedies prior to filing this action. Accord
Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010). Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1). It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S.
438 (1962). If Plaintiff files a notice of appeal he must also 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.
DATED May 18, 2015, at Denver, Colorado.
BY THE COURT:

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

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