Zollicoffer v. Santini et al

Filing 61

ORDER Affirming and Adopting 58 Report and Recommendation. This case is DISMISSED, by Judge Christine M. Arguello on 12/15/2016. (vbarn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-02778-CMA-STV
JOHN ZOLLICOFFER,
Plaintiff,
v.
G. SANTINI, M.D., and
ALLRED, M.D.,
Defendants.
ORDER AFFIRMING AND ADOPTING THE OCTOBER 20, 2016
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOC. # 58]
This matter is before the Court on the October 20, 2016 Recommendation of
United States Magistrate Judge. (Doc. # 58.) Magistrate Judge Varholak
recommended that Defendants’ Motion for Summary Judgment Raising the Defense of
Failure to Exhaust Administrative Remedies (Doc. # 37) be granted. (Doc. # 58.) On
November 8, 2016, pursuant to Federal Rule of Civil Procedure 72(b), Mr. Zollicoffer,
who is proceeding pro se, filed an Objection to the magistrate judge’s decision.
Defendants did not respond to Mr. Zollicoffer’s Objection. For the following reasons,
this Court adopts and affirms the magistrate judge’s decision.

I.

BACKGROUND

Mr. Zollicoffer is a federal inmate currently incarcerated at the United Sates
Penitentiary in Leavenworth, Kansas. Mr. Zollicoffer alleges that he was denied
adequate medical care in violation of the Eighth Amendment when Defendants failed to
approve him for surgery on his right foot while incarcerated at the United States
Penitentiary in Florence, Colorado.
The following facts are taken in the light most favorable to the Plaintiff. On May
4, 2015, Plaintiff was transported to the Pueblo Ankle and Foot Care Clinic and
examined by Dr. Mark Mauer. Later that day, Plaintiff was advised that Dr. Mauer had
recommended surgical repair. Prison officials informed Plaintiff that Dr. Mauer’s report
had been forwarded to the Federal Correctional Complex Utilization Committee and its
Chairman, Defendant Santini, for final review. On August 23, 2015, Plaintiff was notified
that, on July 2, 2015, the Committee had denied Plaintiff’s request for surgical repair.
On October 14, 2015, Mr. Zollicoffer was transferred to the United Sates
Penitentiary in Leavenworth, Kansas. On October 21, 2015, Plaintiff was evaluated by
Dr. Kristine Aulepp and asked why he had not had a foot operation while at the United
States Penitentiary in Florence, Colorado. On October 24, 2015, Plaintiff went to his
correctional counselor and asked how to get surgery for his foot. His counselor
instructed Plaintiff to file a “sensitive BP-10” directly to the Regional Director. Plaintiff’s
counselor explained that Plaintiff’s condition presented exceptional circumstances that
warranted going directly to the Regional Director, bypassing other levels of the Bureau
of Prisons review. On October 29, 2015, Plaintiff filed his BP-10 with the Regional
2

Director. That same day, the BP-10 was rejected because Plaintiff did not first request
relief from the Warden of his institution. Plaintiff was advised to file an appeal to the
Warden for response prior to filing with the Regional Director. Plaintiff did not appeal
that decision. Rather, on December 21, 2015, Plaintiff filed the instant lawsuit in federal
court.
On June 1, 2016, Defendants filed a motion for summary judgment requesting
dismissal of the case arguing that Plaintiff failed to exhaust his administrative remedies
prior to filing in federal court. (Doc. # 37.) This Court referred Defendants’ motion to
the magistrate judge for a recommendation as to the appropriate disposition. (Doc. #
38.) On October 20, 2016, Magistrate Judge Varholak issued the instant
Recommendation recommending that Defendants’ motion be granted. (Doc. # 58.)
Specifically, the magistrate judge found that the time for Plaintiff to file a BP-9 began to
run on August 23, 2015, when Mr. Zollicoffer learned of the denial of his surgery, and
therefore the deadline for filing a grievance was September 12, 2015. Because Plaintiff
did not file any grievance concerning the denial of his foot surgery until October 29,
2015, and because Plaintiff did not provide any valid excuse for filing his grievance late,
Magistrate Judge Varholak determined that Plaintiff failed to exhaust his administrate
remedies and granted Defendants’ motion for summary judgment.
Plaintiff objects to the magistrate judge’s decision arguing that the magistrate
judge’s rigid application of the exhaustion requirements unfairly impedes his attempt to
pursue his claims that his Eighth Amendment rights have been violated. Plaintiff also
contends that the prison mail service’s failure to provide him with notification of the July
3

2, 2015 denial of his surgery until August 23, 2015 prevented him from timely filing a
grievance.
II.

DISCUSSION

The Prison Litigation Reform Act (PLRA) makes exhaustion of administrative
remedies mandatory: “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.” 42 U.S.C. § 1997e(a). If a plaintiff fails to exhaust his administrative
remedies, this Court must dismiss the action. Woodford v. Ngo, 548 U.S. 81, 85 (2006)
(“Exhaustion is no longer left to the discretion of the district court, but is mandatory”);
see also Jones v. Bock, 549 U.S.199, 210–12 (2007) (“There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.”).
According to Plaintiff’s Amended Complaint, Plaintiff first became aware of the
denial of his surgery on August 23, 2015 and did not file any grievance concerning the
denial of his foot surgery until October 29, 2015. (Doc. # 14.) The Bureau of Prison’s
Administrative Remedy Program provides that that a prisoner has 20 calendar days to
submit a formal written Administrative Remedy Request. 28 C.F.R. § 542.14. Judge
Varholak also determined that even where the Administrative Remedy Program
excuses the prisoner from initially filing with his local facility and allows the prisoner to
directly file with the Regional Director, the 20-day deadline still applies. This Court
agrees and Plaintiff does not contest these findings. Because the 20-day deadline
4

applies, it is undisputed that Plaintiff’s attempt at exhausting his administrative remedies
was untimely.
In his Objection, Plaintiff argues that his was prevented from timely filing a written
Administrative Remedy Request because while the decision to deny his surgery was
made on July 2, 2015, he was not provided notice of that decision until August 23, 2015.
However, neither the Bureau of Prisons nor the Magistrate Judge required him to file his
Administrative Remedy Request within 20 days of the July 2, 2015 decision. Rather, he
only had to file within 20 days of being provided notice of that decision. It is undisputed
that he received notice of the decision on August 23 and did not file any grievance
within 20 days of that notice. Thus, the failure of the Bureau of Prisons to provide him
notice of their decision did not impact his ability to exhaust his administrative remedies
and Magistrate Judge Varholak correctly concluded that (1) Plaintiff knew of the facts
giving rise to his grievance more than 20 days before he submitted his grievance; (2)
and plaintiff did not comply with the deadline and thus did not properly exhaust his
claims.
III.

CONCLUSION

Based on the Court’s de novo review of this matter, the Court concludes that
Judge Varholak’s Recommendation is correct and is not called into question by
Plaintiff’s Objection. Accordingly, it is
ORDERED that the Report and Recommendation of United States Magistrate
Judge (Doc. # 58) is AFFIRMED AND ADOPTED. It is

5

FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc. #
37) is GRANTED. It is
FURTHER ORDERED that this case is DISMISSED in its entirety.

DATED: December 15, 2016

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

6