Hill v. Bina et al

Filing 64

ORDER affirming and adopting 57 Recommendation of United States Magistrate Judge Kathryn A. Starnella; granting 22 Motion for Summary Judgment; denying 42 Motion to Supplement Pleading. By Judge Charlotte N. Sweeney on 1/6/25.(jdyne)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 23-cv-03428-CNS-KAS
DAVID E. HILL,
Plaintiff,
v.
CHRIS BINA,
T. RODRIGUEZ,
JAIME AUTEN,
WILLIAM RESTO,
KIESHA RESTO,
SEANA MALTEZO, and
D. OBA,
Defendants.

ORDER

Plaintiff David E. Hill objects to United States Magistrate Judge Kathryn A.
Starnella’s Recommendation to grant Defendants’ motion for summary judgment, ECF
No. 22, and further to deny Plaintiff’s motion to supplement pleading, ECF No. 42. See
ECF No. 57 (Recommendation); ECF No. 62 (objection). The Court has reviewed
Plaintiff’s objections and finds that they lack merit. Accordingly, the Court overrules
Plaintiff’s objection and affirms Magistrate Judge Starnella’s Recommendation as an
order of this Court.

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I.

SUMMARY FOR PRO SE PLAINTIFF

Magistrate Judge Starnella determined that the undisputed facts show that you did
not exhaust your administrative remedies before filing this lawsuit—a finding that you do
not dispute. Rather, you fault her decision to reject your argument that the BOP obstructed
your ability to exhaust. The Court concurs with Magistrate Judge Starnella’s findings. The
undisputed evidence does not show that the BOP obstructed your ability to exhaust—it
merely shows that the Regional Director did not respond to your appeal by the June 6,
2023 deadline. You thus could have treated the failure to respond as a denial and
continued your appeal process. Without any additional evidence or argument that the
BOP obstructed your appeal rights, the Court accepts and concurs with Magistrate Judge
Starnella’s findings.
You then disagree with Magistrate Judge Starnella’s determination that exhausting
your administrative remedies after filing suit is insufficient to save you from summary
judgment for your initial failure to exhaust. But under Tenth Circuit precedent, an inmate’s
failure to exhaust cannot be cured by completing exhaustion after filing suit. See Snyder
v. Harris, 406 F. App’x 313, 317 (10th Cir. 2011) (“An inmate is not permitted to complete
the administrative exhaustion process after he files suit.”). In the absence of United States
Supreme Court or superseding Tenth Circuit precedent, which you have not provided,
this Court must follow Snyder and other decisions holding the same.
Finally, you object to Magistrate Judge Starnella’s determination that your motion
for leave to amend should be denied as futile. The Court overrules this objection as well.
It is well-established that a Court may deny a litigant’s request to amend if the amendment
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would be futile—for example, when the amended complaint would be subject to dismissal.
Here, there is no way to correct your initial failure to exhaust. When you filed your
complaint on December 26, 2023, you had not exhausted your administrative remedies,
and no amendment will correct that deficiency. The Court therefore finds that any
amended complaint would be subject to dismissal, making the amended complaint futile.
In sum, after considering the arguments raised in your objection and performing a
de novo review of the issues you address in your objection, the Court is overruling your
objections and affirming Magistrate Judge Starnella’s Recommendation. The Court will
explain why it is doing so further below, including a discussion of the legal authority that
supports this conclusion. This order means that your claims are dismissed without
prejudice, which means that you may refile your claims, if you can satisfy the procedural
and jurisdictional requirements. See Crowe v. Servin, 723 F. App’x 595, 598 (10th Cir.
2018) (“A dismissal without prejudice just means that the plaintiff isn’t barred from refiling
the lawsuit within the applicable limitations period.” (citations and quotations omitted)).
II.

BACKGROUND

Plaintiff is a federal inmate housed at the Administrative Maximum Facility (ADX)
in Florence, Colorado. ECF No. 22 at 2. He was diagnosed with chronic kidney disease
in June 2017. 1 ECF No. 29 at 3–4. On December 26, 2023, he filed his initial Prisoner
Complaint, and three days later, he filed his Amended Prisoner Complaint. ECF Nos. 1,
5.

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It appears that Plaintiff has been incarcerated since 2002. ECF No. 24-6 at 3.

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Plaintiff asserts two Eighth Amendment claims. ECF No. 5 at 8. He alleges that
Defendants Bina, Rodriguez, and Auten were deliberately indifferent to his serious
medical needs by denying his request for Farxiga medication to treat his chronic kidney
disease, in violation of the Eighth Amendment. Id. He then alleges that Defendants W.
Resto, K. Resto, Maltezo, and Oba were deliberately indifferent to his serious medical
needs by delaying a prescription of empagliflozin, another drug used to treat chronic
kidney disease, also in violation of the Eighth Amendment. Id.
The Bureau of Prisons (BOP) has a four-tiered Administrative Remedy Program
for inmate grievances. See 28 C.F.R. § 542.10 et seq., ECF No. 22-1 (Decl. of Jarad
Herbig), ¶ 10. 2 The first step is informal resolution with prison staff; this step is not tracked
through BOP’s national database, SENTRY. Id. The second step is filing a formal Request
for Administrative Remedy (also known as a BP-9) at the inmate’s institution. Id. The third
step occurs if the inmate is not satisfied with the response to his BP-9. Id. The regulation
provides that, within 20 calendar days of the date the warden signs the BP-9 response,
the inmate may then appeal the complaint to the Regional Director, by filing a Regional
Office Administrative Remedy Appeal (also known as a BP-10). Id. (citing 28 C.F.R. §
542.15(a)). Finally, the fourth step occurs if an inmate is not satisfied with the Regional
Director’s response, in which case he may appeal to the Director of National Inmate
Appeals by filing a Central Office Administrative Remedy Appeal (also known as a BP11). Id. All but the first step is tracked in SENTRY. Id. A remedy request or appeal may

2
Mr. Herbig is employed by the BOP as a Paralegal Specialist for the North Central Regional Office. ECF
No. 22-1, ¶ 1.

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be rejected at any level. Id. To properly exhaust administrative remedies, inmates must
properly and timely seek review at all four levels. Id., ¶ 12 (citing 28 C.F.R. § 542.15(b)(2)).
On March 22, 2023, Plaintiff filed with the ADX Warden an administrative remedy
request corresponding to the allegations in his operative complaint. Id., ¶ 17. The warden
denied Plaintiff’s administrative remedy request on March 27, 2023. Id., ¶ 18. On April 7,
2023, Plaintiff appealed the warden’s denial to the Regional Office through the filing of a
BP-10. Id., ¶ 19. The Regional Office notified Plaintiff that it needed a 30-day extension
of time to respond, making its response due on June 6, 2023. Id., ¶¶ 20–21. Despite the
extension request, the Regional Office did not respond by June 6, 2023. Id., ¶ 22.
“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.” 28 CFR § 542.18. However, Plaintiff did not appeal to the Central Office—
step four in process—prior to filing his complaint on December 26, 2023. ECF No. 22-1,
¶ 23.
The Regional Office responded to Plaintiff’s administrative remedy request on
January 26, 2024—a month after Plaintiff filed his complaint. Id., ¶ 24. Plaintiff appealed
to the Central Office on February 20, 2024. Id., ¶ 25. The Central Office responded to his
appeal on March 22, 2024. Id., ¶ 26.
III.

RECOMMENDATION

Defendants moved for summary judgment on April 15, 2024. ECF No. 22. Plaintiff,
in the meantime, moved to supplement his complaint pursuant to Federal Rule of Civil

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Procedure 15(d). 3 ECF No. 42. The Court referred both motions to Magistrate Judge
Starnella for initial determination. ECF Nos. 25, 44.
Magistrate Judge Starnella considered Defendants’ motion for summary judgment
before turning to Plaintiff’s request to supplement his complaint. She first determined that
the undisputed facts show that Plaintiff did not exhaust his administrative remedies before
filing suit. ECF No. 57 at 10–14. She also determined that the undisputed facts do not
show any obstruction of Plaintiff’s ability to exhaust his administrative remedies. Id. at 13.
Thus, Magistrate Judge Starnella found that Plaintiff failed to exhaust his administrative
remedies and recommended granting summary judgment in Defendants’ favor. Id. at 14.
Magistrate Judge Starnella then determined that Plaintiff’s proposed supplemental
pleading would be futile because the supplemental pleading cannot alter the fact that he
filed suit before exhausting his administrative remedies. Id. at 15. She therefore
recommended denying his supplementation request on futility grounds. And, in light of
these recommendations, she recommended dismissing Plaintiff’s claims without
prejudice. Id. at 16.
III.

LEGAL STANDARD

When a magistrate judge issues a recommendation on a dispositive matter, the
presiding district judge must “determine de novo any part of the magistrate judge’s
[recommended] disposition that has been properly objected to.” Fed. R. Civ. 72(b)(3). An

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Rule 15(d) provides that, “[o]n motion and reasonable notice, the court may, on just terms, permit a party
to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented. The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the
supplemental pleading within a specified time.” Fed. R. Civ. P. 15(d).

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objection to a recommendation is properly made if it is both timely and specific. United
States v. 2121 East 30th St., 73 F.3d 1057, 1059–60 (10th Cir. 1996). An objection is
sufficiently specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059. In conducting
its review, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3).
IV. ANALYSIS
The Court will address each of Plaintiff’s three objections in turn.
A. Obstruction to Plaintiff’s Ability to Exhaust his Administrative Remedies
Plaintiff first argues that Magistrate Judge Starnella erred in rejecting his argument
that the BOP obstructed his ability to exhaust. ECF No. 62 at 4–11. Plaintiff argues that
his administrative remedies were not available to him because the Regional Director
failed to respond to his appeal by the June 6, 2023 deadline. Id. at 5–6. This argument is
without merit.
Plaintiff could have treated the Regional Director’s failure to respond by the
deadline as a denial and moved to the fourth and final step by appealing to the Central
Office in Washington, D.C. See 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.”). His objection does little to attack
this undisputed fact other than cite caselaw that Magistrate Judge Starnella properly
considered and rejected. See ECF No. 57 at 11–13.
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At the summary judgment stage, Plaintiff is responsible for presenting competent
evidence to show that the BOP hindered his ability to exhaust his administrative remedies.
Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent,
thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they
render that remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.”
(citation omitted)). A failure to respond does not equate to preventing, thwarting, or
hindering an inmate’s appeal efforts. See 28 C.F.R. § 542.18
Upon de novo review, the Court finds that Magistrate Judge Starnella correctly
determined that there is no evidence that the BOP obstructed Plaintiff’s access to
administrative remedies. Plaintiff’s first objection is overruled.
B. Exhaustion After Filing Suit
Plaintiff next argues that his case should proceed because he has now exhausted
his administrative remedies post-filing. ECF No. 62 at 8–11. He admits, as he must, that
he filed his complaint on December 26, 2023. Id. at 11. He then explains that he received
the Regional Director’s response on January 26, 2024—which he appealed to the Central
Office. Id. On March 22, 2024, he received the Central Office’s denial. He thus argues
that this case should not be dismissed because he has now exhausted his administrative
remedies. Id.
This objection also lacks merits. As Magistrate Judge Starnella aptly explained in
her Recommendation, the Prison Litigation Reform Act “makes exhaustion a precondition
to filing a suit, an action brought before administrative remedies are exhausted must be
dismissed without regard to concern for judicial efficiency.” Ruppert v. Aragon, 448 F.
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App'x 862, 863 (10th Cir. 2012) (holding that the plaintiff’s claim was properly dismissed
for failure to exhaust administrative remedies, explaining that “[i]t mattered not . . . that
the administrative review process had been completed by the time the case was ripe for
decision . . . [w]hat mattered was that the process was incomplete when Ruppert filed
suit”). Although one could argue, as Plaintiff does, that it would conserve judicial
resources to simply hear the case now that Plaintiff has exhausted his administrative
remedies, the Tenth Circuit has rejected such arguments. Id. (“[A]n action brought before
administrative remedies are exhausted must be dismissed without regard to concern for
judicial efficiency.”). That is because the four-stepped Administrative Remedy Program
for inmate grievances allows prison officials to address complaints prior to being
subjected to suit. See Jones v. Bock, 549 U.S. 199, 219 (2007) (“We have identified the
benefits of exhaustion to include allowing a prison to address complaints about the
program it administers before being subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving litigation that does occur by leading
to the preparation of a useful record.”).
The Court has considered Plaintiff’s objection and preformed a de novo review of
Magistrate Judge Starnella’s findings. The Court finds that Magistrate Judge Starnella
correctly determined that Tenth Circuit precedent prevents Plaintiff from curing his
exhaustion deficiency after filing suit and thus overrules Plaintiff’s second objection.
C. Futility of Plaintiff’s Proposed Supplemental Pleading
Plaintiff argues that he should be permitted to supplement his pleadings because
the supplemental complaint would have “superseded the original complaint and cured the
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. . . exhaustion deficiency on the date it was filed.” ECF No. 62 at 11–13. The Court does
not agree.
As explained above, exhaustion is required prior to filing suit. Jones, 549 U.S. at
211 (“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”). “An inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983 claim under PLRA for
failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). Thus, if the Court permits Plaintiff to amend his pleadings, that
amendment would be subject to dismissal—making such amendment futile. Full Life
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (“While Rule 15 provides
that leave to amend a complaint shall be freely given when justice so requires, a district
court may refuse to allow amendment if it would be futile.”); Bradley v. Val-Mejias, 379
F.3d 892, 901 (10th Cir. 2004) (“A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” (citation omitted)).
As he did previously, Plaintiff cites out-of-circuit cases that he contends holds to
the contrary. See ECF No. 62 at 12–13. Magistrate Judge Starnella correctly rejected
those cases, explaining that the Court cannot disregard Tenth Circuit precedent to the
contrary. ECF No. 57 at 15.
Accordingly, the Court overrules Plaintiff’s final objection.
***
To summarize, Plaintiff admits that he did not exhaust his administrative remedies
prior to filing his lawsuit. Although he contends that the BOP obstructed his ability to
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exhaust, there is no evidence to support that argument. In considering his objections, the
Court observes that Plaintiff essentially reargues the arguments he made before
Magistrate Judge Starnella, and his objections merely disagree with Magistrate Judge
Starnella’s findings and recommendations. Having reviewed de novo each issue he raises
in his objection, the Court overrules those objections. The result is that his claims are
subject to dismissal without prejudice. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th
Cir. 2009) (“Ordinarily, a dismissal based on a failure to exhaust administrative remedies
should be without prejudice.” (citation omitted)).
V. CONCLUSION
Consistent with the above analysis, the Court overrules Plaintiff’s objections, ECF
No. 62, and affirms and adpots Magistrate Judge Starnella’s Recommendation, ECF No.
57, as an order of this Court. Accordingly, the Court makes the following rulings:
(1)

Plaintiff’s Motion to Supplement Pleading, ECF No. 42, is
DENIED as futile;

(2)

Defendants’ Motion for Summary Judgment for Failure to
Exhaust, ECF No. 22, is GRANTED; and

(3)

Plaintiff’s claims are dismissed without prejudice.

DATED this 6th day of January 2025.
BY THE
COURT:
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