Simpson et al v. Lewis
Filing
45
ORDER Denying Plaintiffs' 3 Motion for a Preliminary Injunction. Defendant's Motion to Hold Motion to Dismiss and Motion for Preliminary Injunction in Abeyance (ECF No. 43 ) is DENIED AS MOOT to the extent it requests that the Court stay its determination of Plaintiffs Motion for Preliminary Injunction. ORDER by Judge William J. Martinez on 9/4/2020.(angar, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 20-cv-1556-WJM-GPG
JOSHUA SIMPSON,
LUKE IRVIN CHRISCO,
Plaintiffs,
v.
MATT LEWIS, in his official capacity,
Defendant.
ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
In this prisoner litigation action, Plaintiffs Joshua Simpson and Luke Irvin Chrisco
sue Matt Lewis in his official capacity as Sheriff of Mesa County, Colorado, and Keeper
of the Mesa County Detention Facility (“MCDF”), alleging that MCDF’s response to
COVID-19 violates Plaintiffs’ constitutional rights. (ECF No. 1.)
Before the Court is Plaintiffs’ Motion for a Preliminary Injunction (“PI Motion”).
(ECF No. 3.) Also before the Court is Defendant’s Motion to Hold Motion to Dismiss
and Motion for Preliminary Injunction in Abeyance (“Motion to Stay”). (ECF No. 43.)
The Court finds that no evidentiary hearing is needed to resolve the PI Motion.
For the reasons explained below, the Court denies the PI Motion and denies as m oot
the Motion to Stay to the extent it requests that the Court hold the PI Motion in
abeyance.
I. BACKGROUND
The parties dispute most of the relevant facts. The Court need not resolve those
disputes for purposes of the analysis below. The following statements drawn from the
parties’ papers are enough to frame the issues.
As of May 29, 2020, Chrisco, an inmate, and Simpson, a pretrial detainee, were
both being held at the MCDF. (ECF No. 1 at 20–21.) Plaintiffs contend that MCDF’s
policies relating to COVID-19 have “force[d] them to needlessly bear substantial risk of
serious harm.” (ECF No. 3 at 5.) They state, among other things, that
•
MCDF staff members are allowed to enter MCDF without being tested for
COVID-19 and are not required to wear masks or other personal
protective equipment (id. at 6);
•
MCDF does not provide personal protective equipment for inmates to
wear inside the facility or allow inmates widespread access to cleaning
supplies (id. at 6, 10);
•
posters from the Centers for Disease Control and Prevention (“CDC”) are
not placed in areas where inmates are easily able to read them (id. at 7);
•
inmates have not received “education or training” regarding the threat of
COVID-19 or about ways that they might reduce the likelihood that they
contract the disease or spread it to others (id. at 8);
•
inmates continue to eat meals close together and are not engaging in
social distancing (id. at 9, 11);
•
humidity levels within MCDF are “extremely low,” which increases the
likelihood of COVID-19 transmission (id. at 11); and
2
•
there are “no sub ventilation filters” on the air vents to prevent air from
blowing into other inmates’ cells (id.).
In their PI Motion, Plaintiffs request that the Court order MCDF to take the
following actions to reduce Plaintiffs’ risk of exposure to COVID-19:
•
place buckets of water inside inmates’ cells (id. at 14);
•
provide inmates with latex gloves and masks (id. at 14–15);
•
affix “MERV 13 filters” to air vents (id. at 15); and
•
place a trashcan and a bucket of soapy water in the recreation yard (id. at
15).
In his response, Defendant describes a number of steps that MCDF has taken
as of August 28, 2020 to reduce the risk of an outbreak of COVID-19 at the facility.
(ECF No. 38 at 3.) These steps include implementing screening protocols and
quarantine protocols, reducing the number of inmates housed at the facility, testing for
COVID-19, providing inmates and staff with masks and soap, prohibiting non-essential
visitors from entering the facility, providing increased access to cleaning products, and
providing inmates with information regarding COVID-19 throughout the facility. (Id. at
3–5.) As of August 28, 2020, not a single inmate or staff member at MCDF had tested
positive for COVID-19. (Id. at 3.)
II. PI MOTION
A.
Legal Standard
A preliminary injunction is an extraordinary remedy; accordingly, the right to relief
must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d
3
1110, 1117 (10th Cir. 2010). In order to obtain a prelim inary injunction, a plaintiff must
establish the following factors: (1) a substantial likelihood of prevailing on the merits; (2)
irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs
the harm that the preliminary injunction may cause the opposing party; and (4) that the
injunction, if issued, will not adversely affect the public interest. Diné Citizens Against
Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). Am ong those
elements, “a showing of probable irreparable harm is the single most important
prerequisite.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256,
1260 (10th Cir. 2004).
Moreover, the Tenth Circuit continues to apply a heightened standard for
“[d]isfavored preliminary injunctions,” which do not
merely preserve the parties’ relative positions pending trial.
Instead, a disfavored injunction may exhibit any of three
characteristics: (1) it mandates action (rather than prohibiting
it), (2) it changes the status quo, or (3) it grants all the relief
that the moving party could expect from a trial win. To get a
disfavored injunction, the moving party faces a heavier
burden on the likelihood-of-success-on-the-merits and the
balance-of-harms factors: She must make a strong showing
that these tilt in her favor.
Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th Cir. 2019).
(citations and internal quotation marks omitted). Because Plaintiffs’ PI Motion requests
that the Court mandate action, they must make a strong showing that the factors for a
preliminary injunction weigh in their favor.
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B.
Analysis
Defendant argues that Plaintiffs are unlikely to succeed on the merits of their
lawsuit because they have not exhausted their administrative remedies. (ECF No. 38 at
12.)
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
brought with respect to prison conditions . . . until such adm inistrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). This language is mandatory. See
Ross v. Blake, 136 S. Ct. 1850, 1857 (2016); see also Jones v. Bock, 549 U.S. 199,
211 (2007) (recognizing that “[t]here is no question that exhaustion is mandatory under
the PLRA” and “unexhausted claims cannot be brought in court”). Accordingly, “a court
may not excuse a failure to exhaust, even to take [special] circumstances into account.”
Ross, 136 S. Ct. at 1856; see also Nellson v. Barnhart, — F. Supp. 3d —, 2020 W L
1890670, at *5 (D. Colo. Apr. 16, 2020) (recognizing that “the Court may not alter the
mandatory requirements of the PLRA for COVID-19 or any other special
circumstance”).
“Because the prison’s procedural requirements define the steps necessary for
exhaustion, an inmate may only exhaust by properly following all of the steps laid out in
the prison system’s grievance procedure.” Little v. Jones, 607 F.3d 1245, 1249 (10th
Cir. 2010) (internal citations omitted). Merely beginning the grievance process is
insufficient for exhaustion purposes. See Thomas v. Parker, 609 F.3d 1114, 1118 (10th
Cir. 2010) (recognizing that “[a]n inmate who begins the grievance process but does not
complete it” is barred from pursuing his claims under the PLRA and the “doctrine of
substantial compliance does not apply”).
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Under MCDF’s grievance procedure, “an inmate must first try to resolve the issue
informally by discussing the problem with” the staff member directly involved, the
supervisor of the involved staff member, or other appropriate staff. (ECF No. 38-5 at
13.) If informal attempts to resolve the issue fail, an inmate must fill out a written
grievance form. (Id.) The inmate may then appeal the resolution of the grievance to
the Detention Facility Administrator. (Id.) An inmate is considered to have exhausted
his remedies only after his appeal is denied. (Id.)
Here, Plaintiffs do not allege that they followed this grievance procedure.
Indeed, Defendant contends that Chrisco did not attem pt to raise his grievance before
filing this lawsuit, whereas Simpson attempted to bypass the grievance process by
sending a letter directly to Sheriff Lewis on April 25, 2020. (ECF No. 38 at 13; ECF No.
38-6.) In response, Simpson was directed to follow MCDF’s grievance procedures,
which he did not do. 1 (ECF No. 38 at 13; ECF No. 38-7.)
Because Plaintiffs have not alleged that they have exhausted their administrative
remedies—and the evidence before the Court plainly suggests that they have not done
so—Plaintiffs’ claims are likely barred by the PLRA. See Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002). Accordingly, the Court finds that Plaintiffs have not
1
The response letter also outlined a number of steps that MCDF had already taken to
mitigate the spread of COVID-19, including issuing masks to inmates and staff and
implementing medical screenings. (ECF No. 38-7 at 1.)
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demonstrated that there is a substantial likelihood that they will prevail on the merits of
their claims.2 See Diné Citizens, 839 F.3d at 1281.
Moreover, even if Plaintiffs had exhausted their administrative remedies, their PI
Motion still must be denied because Plaintiffs have not adequately alleged that they will
suffer “irreparable harm unless the injunction is issued.” Id. “To constitute irreparable
harm, an injury must be certain, great, actual and not theoretical.” Schrier v. Univ. of
Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). As Def endant points out, MCDF has not
had a single case of COVID-19 as of August 28, 2020. (ECF No. 38 at 10.) Moreover,
Plaintiffs have not pled any facts suggesting that they are at a high risk for developing a
serious illness should they contract COVID-19. (Id.) Accordingly, the Court finds that
Plaintiffs have failed to establish that they will suffer any non-speculative irreparable
harm.
For the reasons explained above, Plaintiffs’ PI Motion is denied.
III. MOTION TO STAY
Because the Court has now denied Plaintiffs’ PI Motion, it will also deny as moot
Defendant’s Motion to Stay to the extent it requests that the Court hold the PI Motion in
abeyance until Simpson’s prison transfer is complete.3
2
Because the Court finds that Plaintiffs are unlikely to succeed on the merits because
they have likely failed to exhaust their administrative remedies, it will not address Defendant’s
additional arguments as to why Plaintiffs are unlikely to succeed on the merits. (See ECF No.
38 at 8.)
3
On September 3, 2020, the Court referred the portion of the Motion to Stay which
requests a stay of the Motion to Dismiss to United States Magistrate Judge Gallagher. (ECF
No. 44.)
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IV. CONCLUSION
Accordingly, the Court hereby ORDERS as follows:
1.
Plaintiffs’ Motion for Preliminary Injunction (ECF No. 3) is DENIED; and,
2.
Defendant’s Motion to Hold Motion to Dismiss and Motion for Preliminary
Injunction in Abeyance (ECF No. 43) is DENIED AS MOOT to the extent it
requests that the Court stay its determination of Plaintiffs’ Motion for Preliminary
Injunction.
Dated this 4th day of September, 2020.
BY THE COURT:
William J. Martínez
United States District Judge
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