Ryan v. Corrections Corporation of America et al
ORDER ADOPTING REPORT AND RECOMMENDATION for 26 Motion to Dismiss, filed by California Department of Corrections and Rehabilitations, Corrections Corporation of America, Keith Ivens, 25 Motion to Transfer Case filed by Patrick Ryan, 31 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 2/6/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
OF AMERICA, et al.,
Case No. CIV-16-205
Before the Court is the Report and Recommendation of United States Magistrate
Judge Gary M. Purcell that Plaintiff’s claims be dismissed without prejudice. (Doc. 31).
Plaintiff Patrick Ryan, a California state prisoner appearing with counsel, asserts several
causes of action under 42 U.S.C. § 1983 relating to the conditions of his confinement at a
correctional facility in Sayre, Oklahoma, and later at one or more California state
This case, referred to Magistrate Judge Gary M. Purcell on March 2, 2016, under 28
U.S.C. § 636(b)(1)(B), started with over 50 defendants. For our purposes, however, only
three remain: (1) Corrections Corporation of America, Inc., (2) California Department of
Corrections and Rehabilitations (“CDCR”), and (3) Keith Ivens, apparently a doctor who
provided medical care to Ryan at the Oklahoma facility.
All Defendants have moved to dismiss on various grounds, including failure to
exhaust administrative remedies. (Doc. 26). In addition to responding (Doc. 29), Mr. Ryan
moved to transfer all his claims against the CDCR to the United States District Court for
the Eastern District of California. (Doc. 27). On review, the Magistrate Judge issued a
Report and Recommendation (Doc. 31) that Defendants’ Motion to Dismiss be granted and
that the cause of action should be dismissed without prejudice for failure to exhaust
available administrative remedies pursuant to 42 U.S.C. § 1997e(a). The Magistrate also
noted that dismissal was appropriate as to CDCR on the basis of sovereign immunity and
that Plaintiff’s Motion to Transfer should be denied as moot. Plaintiff objected to the
Report and Recommendation (Doc. 32) and Defendants responded (Doc. 35).
Upon de novo review, the Court concurs with Magistrate Judge Purcell’s findings
and recommendations and therefore ADOPTS the Report and Recommendation (Doc. 31)
issued on November 22, 2016.
As a preliminary matter, the Court finds no problem with the Magistrate Judge’s
consideration of affidavits filed by Defendants providing evidence that Mr. Ryan failed to
exhaust administrative remedies. The Magistrate Judge correctly noted in Footnote 5 of his
Order that, contrary to Plaintiff’s assertion, Williams v. Wilkinson, 645 Fed.Appx. 692
(10th Cir. 2010), does not stand for the proposition that considering an affidavit at the
motion-to-dismiss stage is inappropriate. Courts may of course treat a motion to dismiss
under Rule 12(b)(6) as a motion for summary judgment if they raise matters outside the
pleadings. Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995). The caveat to this rule,
however, is that when a motion to dismiss is converted to one for summary judgment, the
Court must give the parties notice and an opportunity to present material as it would for a
motion under Rule 56. Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648,
654 (10th Cir. 2002). While the Magistrate Judge did not expressly note in his Report and
Recommendation that he was converting Defendants’ Motion to Dismiss into one for
summary judgment, he apprised the parties via Order on September 6, 2016—well before
Defendants’ Motion to Dismiss was filed—that he would convert any motions supported
by affidavits and/or other documentary evidence into one for summary judgment. (Doc.
23). Despite the lack of express conversion, conversion was still proper and the Court may
still adopt the Magistrate’s Report and Recommendation. See, e.g., Wilson v. Corrections
Corp. of America, 2015 WL 918801, at *1 (W.D. Okla. Mar. 3, 2015) (finding that the
magistrate judge’s failure to state in the Report and Recommendation “that [plaintiff’s]
converted motion would not count as a motion under Rule 56” did not preclude dismissal
for failure to exhaust administrative remedies) (internal quotes and ellipses omitted).
Having decided that the Magistrate did not err in consulting Defendants’ attached
affidavits, the Court turns to the new arguments Mr. Ryan raises in his Objection to the
Magistrate’s Report and Recommendation. Each of these new contentions, however, lacks
Mr. Ryan’s first argument is that the Martinez Report, which is often used to
determine the availability and appropriateness of lawsuits filed by pro se inmates,1 should
have never been ordered by the Magistrate Judge because he has been represented by
counsel since the onset of litigation. It is unclear exactly how this prejudiced him. While a
Martinez report is usually ordered when the plaintiff is a pro se prisoner, the essential
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
function of a Martinez report—“ascertain[ing] whether there is a factual as well as legal
basis for the prisoner’s claims”—is not altered merely because plaintiff retained counsel.
Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). Further, the Magistrate judge entered
his Order instructing Defendants to prepare the Martinez report on March 2, 2016. Mr.
Ryan could have objected to that Order under Federal Rule of Civil Procedure 72(a)2 on
the basis that he was represented by counsel, yet he did not do so. So even if that argument
had merit, Mr. Ryan waived it by failing to object to the Magistrate’s March 2 Order.
“Issues raised for the first time in objections to the magistrate judge’s recommendation are
deemed waived.” Marshall v. Chater, 75 F. 3d 1421, 1426 (10th Cir. 1996).
Mr. Ryan’s second argument is that he need not specifically plead or demonstrate
exhaustion in his complaint in order to avoid dismissal. That contention alone runs afoul
of Tenth Circuit precedent: “In a § 1983 action, the burden is on the prisoner to sufficiently
plead exhaustion of administrative remedies under § 1997e(a), which includes supplying
supporting information or documentation of the exhaustion of his prison grievance
proceedings.” Garcia v. Taylor, 113 F. App'x 857, 859 (10th Cir. 2004). And even if that
were not the case, Mr. Ryan is still required to rebut Defendants’ evidence that he failed to
exhaust administrative remedies. See Hines v. Sherron, 372 Fed.Appx. 853, 855 (10th Cir.
2010) (affirming dismissal of amended complaint for failure to exhaust administrative
remedies because “[i]n response to defendants’ evidence, [plaintiff] had not presented any
“When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to
hear and decide, the magistrate judge must promptly conduct the required proceedings and, when
appropriate, issue a written order stating the decision. A party may serve and file objections to the order
within 14 days after being served with a copy.” Fed.R.Civ.P. 72(a).
evidence that he in fact had utilized the DOC administrative remedy procedure”). His
Complaint’s allegation that “[u]pon information and belief, [he] exhausted all available
remedies” will not suffice.
As for his third argument—that he was prevented from exhausting his remedies by
correctional facility staff—the Court agrees with the Magistrate Judge that Mr. Ryan has
offered no evidence to bolster that claim. Mr. Ryan also insists that the affidavits by
employees of CDCR and CCA stating that he never filed grievances are not determinative
of the exhaustion issue. His argument is essentially that Defendants did not interview the
correct persons to ascertain whether a grievance or appeal was in fact filed by Mr. Ryan.
That argument flounders as well. “[T]here is no required procedure for reports ordered
under Martinez.” Carpenter v. Edmondson, 1997 WL 580490, *2 (10th Cir. 1997)
(rejecting prisoner’s claim that “the court should have required defendants to interrogate
certain parties”). Nor is Mr. Ryan’s case saved by his explanation that prison officials never
responded to his appropriately filed grievances. Regardless, he did not complete the
process of pursuing administrative remedies as required for this Court to exercise
jurisdiction. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“An inmate
who begins his grievance process but does not complete it is barred from pursuing a § 1983
claim.”) And to be sure, Mr. Ryan’s allegations that prison officials ignored his grievances
does not prevent dismissal. In Jernigan, for example, the prisoner argued that the “[prison]
interferes with inmates pursuing grievances by losing their paperwork.” Id. at 1033. That
argument, the court held, “is akin to an argument that prison officials should be equitably
estopped from relying upon the exhaustion defense”—which it said did not need to be
decided since the prisoner “[could not] show detrimental reliance on prison officials,
having been told that his grievance had been lost or misfiled and having been given an
opportunity to cure.” Id.; see also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
2001) (affirming dismissal of prisoner’s complaint for failure to “pursue the grievance
remedy to conclusion” despite the prisoner’s allegation that he “fil[ed] a Step One
grievance, which put the prison on notice of his complaint and offered the authorities an
opportunity to mediate the dispute). Like the defendants in Jernigan and Wright, Mr. Ryan
failed to pursue his grievances. And if Mr. Ryan truly believed that prison officials were
ignoring or losing his grievance filings, he had every right to take advantage of the CDCR’s
Grievance Procedure, which allows an inmate to file one grievance every 14 days. (Doc.
26, Ex. 2, at 6). He has offered zero evidence he did so.
Finally, regarding Mr. Ryan’s argument that he was unable to obtain the appropriate
records from Defendants to prove that he did in fact exhaust his remedies, the Tenth Circuit
has previously rejected that argument as well. See, e.g., Nickelberry v. Pharaoh, 2000 WL
985665, *2 (10th Cir. 2000) (argument that defendant “was prevented from gaining
sufficient information to contest the factual findings of the report because the prison
officials failed to completely comply with the court's order regarding the report” was
without merit because “there is no required procedure for reports ordered under Martinez”);
also see Rider v. Werholtz, 548 F. Supp. 2d 1188, 1202 (D. Kan. 2008) (denying plaintiff’s
motion to compel “prison officials to prepare a more complete Martinez report” on the
grounds that “[t]he purpose of a Martinez report is simply to give the trial court sufficient
information for the orderly consideration of issues”).
The Court therefore agrees with the Magistrate Judge that Mr. Ryan has not
exhausted his administrative remedies. It also agrees with its dismissal of the claims against
CDCR on Eleventh Amendment grounds. Mr. Ryan’s motion to transfer is therefore moot.
In conclusion, it is ORDERED that
The Report and Recommendation of United States Magistrate Judge [Doc. 31] is
Defendants’ Motion to Dismiss (Doc. 26) is GRANTED.
Plaintiff’s Motion to Transfer (Doc. 25) is DENIED.
IT IS SO ORDERED this 6th day of February, 2017.
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