Wilkerson v. Hoggard et al

Filing 105

MEMORANDUM DECISION AND ORDER Granting Motion for Summary Judgment. It is ORDERED that: claims against Defendants Eldridge, Young, and Chipp are DISMISSED; Defendant Chipps Motion for Summary Judgment 94 is DENIED as moot; SJC Defendants Hoggard and Palmers Motion for Summary Judgment as to Plaintiffs failure-to-protect claim under the Federal Constitution 82 is GRANTED. The Clerk is directed to close the case. Signed by Judge Dale A. Kimball on 3/27/17. (dla)

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

RYAN WILKERSON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

vs.
Case No. 2:14-CV-586 DAK
RICK ELDRIDGE ET AL.,
Judge Dale A. Kimball
Defendants.

Plaintiff, Ryan Wilkerson, is a pro se prisoner proceeding in forma pauperis. In this civilrights complaint, 42 U.S.C.S. § 1983 (2017), he asserts his federal constitutional rights under the
Eighth (cruel-and-unusual punishment) and Fourteenth (equal protection) Amendments have
been breached by Defendants failing to protect him. Defendants are: Rick Eldridge, San Juan
County (SJC) Sheriff; John Young, SJC Jail Commander; Officer Dennis Hoggard, SJC; Officer
Preston Palmer, SJC; and James Chipp, Utah Department of Corrections (UDOC) Inmate
Placement Program Supervisor. The SJC defendants move for summary judgment, as does
Defendant Chipp separately. The Court grants SJC Defendants’ motion, but first, under its
screening power, see 28 U.S.C.S. § 1915A (2017), dismisses some defendants and issues upon
the basis of failure to state a claim upon which relief may be granted.
I.

SUA SPONTE DISMISSAL BASED ON FAILURE TO STATE CLAIM

In evaluating the propriety of dismissing claims for failure to state a claim upon which
relief may be granted, this Court takes all well-pleaded factual assertions as true and regards
them in a light most advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493

F.3d 1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the
plaintiff has not posed a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is
on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that
he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556).
When a civil-rights complaint contains "bare assertions," involving "nothing more than a
'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those
assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1951 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff
has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d
at 1177 (italics in original).
This Court must construe pro se "'pleadings liberally,' applying a less stringent standard
than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional
factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's
behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). In
the Tenth Circuit, this means that if this Court can reasonably read the pleadings "to state a valid
claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Still, it is not "the proper function of the district court to assume the role

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of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th
Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).
A. AFFIRMATIVE LINK – DEFENDANTS ELDRIDGE & YOUNG
The complaint must clearly state what each individual defendant did to violate Plaintiff's
civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal
participation of each named defendant is essential allegation in civil-rights action). "To state a
claim, a complaint must 'make clear exactly who is alleged to have done what to whom.'" Stone v.
Albert, No. 08-2222, slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original)
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff may not name
an entity or individual as a defendant based solely on supervisory position. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is insufficient to
support liability under § 1983). Nor does "denial of a grievance, by itself without any connection
to the violation of constitutional rights alleged by plaintiff . . . establish personal participation
under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th
Cir. Nov. 24, 2009).
Considering these guidelines, the Court concludes that Plaintiff has done nothing to
affirmatively link Defendants Rick Eldridge and John Young to his claims, but has instead
identified them merely as supervisors or deniers of grievances--and has not tied any material
facts to them. Plaintiff's claims against these defendants therefore may not survive this screening.
And these defendants are thus dismissed.

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B. NO PHYSICAL INJURY – DEFENDANT CHIPP
Plaintiff alleges that Defendant Chipp failed to protect him by keeping him in facilities
where he was mingled with other inmates who were classified as more aggressive and perhaps
dangerous than his own classification, putting him at risk of an attack. Here, the “injury” he cites
is the fear and anxiety that he suffers in perceiving that he is vulnerable. However, “[n]o Federal
civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody without a prior showing of physical
injury or the commission of a sexual act.” 42 U.S.C.S. §1997e(e) (2017).
This particular allegation of failure to protect against Defendant Chipp does not include
physical injury. And, therefore, Plaintiff has not stated a claim for relief which may be granted
here. This being the only claim against Defendant Chipp, he is dismissed from this case and his
summary-judgment motion is denied as moot.
II. SUMMARY JUDGMENT
Based on Plaintiff’s failure to exhaust his administrative remedies through the prison
grievance process, SJC Defendants (the only two remaining, Hoggard and Palmer) move for
summary judgment. (See Docket Entry # 82 .) Defendants support their motion with a Martinez
report (including affidavits and grievance policy and history) and a memorandum. (See Docket
Entry # s 37, 38, 39, 70, 83, 84.) Plaintiff responds to the Martinez report and motion. (See
Docket Entry #s 75 & 90.) The Court rules for Defendants.
A. STANDARD & UNDISPUTED FACTS
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] mere

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factual dispute will not preclude summary judgment; instead there must be a genuine issue of
material fact.” See Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Here, the parties
have documented Plaintiff’s level one-through-three grievances were filed outside grievancepolicy deadlines. They concur that grievances at levels one and two were denied as being
untimely. They equally recognize that Sheriff Eldridge responded at level three, saying, “I agree
with the responses rendered in your level I and level II grievances.” He then went on to provide a
substantive response as well. This is all undisputed.
What is disputed is the legal effect of the sheriff’s parallel substantive response.
Defendants argue that he agreed with the level-one and level-two responses and therefore also
dismissed the grievance on the basis of untimeliness, but also gratuitously & helpfully gave a
substantive explanation of SJC’s position on Plaintiff’s concerns. Meanwhile, Plaintiff contends
that the substantive portion of the sheriff’s response waived SJC’s original position that the
grievances were untimely and resurrected his claims.
B. BACKGROUND ON EXHAUSTION REQUIREMENT
“The Prisoner Litigation Reform Act (PLRA) provides that a prisoner cannot bring an
action ‘with respect to prison conditions under section 1983 . . . until such administrative
remedies as are available are exhausted.’” Huggins v. Reilly, No. 16-1309, 2017 U.S App.
LEXIS 2636, at *2 (10th Cir. Feb. 15) (unpublished) (quoting 42 U.S.C.S. § 1997e(a) (2017));
see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“[E]xhaustion is mandatory under the PLRA .
. . .”). The exhaustion requirement supports administrative agency governance and encourages
efficiency. See Woodford v. Ngo, 548 U.S. 81, 89 (2006).

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To properly exhaust, an inmate must full comply with his institution’s grievance policy,
including “deadlines, and other critical procedural rules[,] because no adjudicative system can
function effectively without imposing some orderly structure on the course of its proceedings.”
See id. at 90-91. In other words, “substantial compliance is insufficient.” Fields v. Okla. State
Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).
Strict adherence to deadlines, in particular, serves an important purpose: “When a
grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified
and questioned while memories are still fresh, and evidence can be gathered and preserved.”
Woodford, 548 U.S. at 95. To be clear, the PLRA requires “proper exhaustion,” id. at 93, and
that “requirement [is] not satisfied when grievances [are] dismissed because prisoner had missed
deadlines set by the grievance policy.” Jones, 549 U.S. at 217-18 (citing Woodford, 548 U.S. at
93). 1
C. EXHAUSTION PRINCIPLES AS APPLIED TO THIS CASE
The Court researched case law in the Tenth Circuit on the issue of whether the
affirmative defense of failure to exhaust may be waived by a grievance response that includes a
substantive explanation. In one case, the court agreed with a plaintiff that the defendants had
“waived their right to assert timeliness by not raising it during the administrative process.”
Apodaca v. Raemisch, No. 15-CV-845-REB-MJW, 2015 U.S. Dist. LEXIS 148308, at *3-4 (D.
Colo. Sept. 8) (report and recommendation), adopted by, 2015 U.S. Dist. LEXIS 148307 (D.
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As an aside, Plaintiff included another argument as to why his late grievances should be excused and that is
because he was “in surgery.” He does not provide details of dates or how a surgery or two could explain away
failure to grieve over the course of a half a year or so. Like the prisoner-plaintiff in Thomas v. United States Bureau
of Prisons, 282 Fed. Appx. 701, 704 (10th Cir. 2008) (unpublished), Plaintiff “never identified” what the surgery
entailed “let alone described how [it] prevented him from timely complying with the . . . grievance procedure.”
Indeed, “[s]uch conclusory and self-serving statements, even if presented in an affidavit, are insufficient to create a
genuine issue of fact to survive summary judgment.” Id.

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Colo. Oct. 30). But in that case, timeliness was never addressed at any of the three levels of the
grievance process. See id. (“CDOC never raised the issue of timeliness during the administrative
process, and it has therefore waived its right to raise timeliness in these proceedings.”).
The Colorado district court cited the following cases as support for its acceptance of a
waiver theory regarding exhaustion issues: Ross v. County of Bernalillo, 365 F.3d 1181, 1186
(10th Cir. 2004), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (“If a prison
accepts a belated filing, and considers it on the merits, that step makes the filing proper for
purposes of state law and avoids exhaustion . . . hurdles in federal court.”); Jewkes v. Shackleton,
No. 11-CV-112-REB-RNB, 2012 U.S. Dist. LEXIS 105415, at *3 (D. Colo. July 23, 2012)
(citing Ross v. County of Bernalillo for the proposition that “the prison not only defines the rules,
but also can waive the enforcement of them”); Jones v. Stewart, 457 F. Supp. 2d 1131, 1134-37
(D. Nev. 2006) (deriving waiver theory from Woodford, 548 U.S. at 81).
Further, Plaintiff specifically cites Sansom v. Milyard, No. 10-CV-2391-WYD-MJW,
2012 U.S. Dist. LEXIS 39659 (D. Colo. 2012), for the proposition that corrections personnel
forfeit their affirmative defense of failure to exhaust when they have responded to untimely
grievances on the merits, instead of rejecting them as untimely. Id. at *12.
These cases are also all distinguishable in that the institutions did not raise timeliness at
any stage of the grievance process. See Ross, 365 F.3d at 1186 (“Nothing in the record suggests
that [the prison] treated [the plaintiff’s] complaint as untimely.”); Jewkes, 2012 U.S. Dist. LEXIS
105415, at *5-8 (“At each step, [prison] grievance officers could have raised the issue of
timeliness, but did not do so.”); Jones, 457 F. Supp.2d at 1136 (“At each [of three] level[s],
[plantiff’s] complaint was addressed on the merits and then appealed on the merits.”); Sansom,

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2012 U.S. Dist. LEXIS 39659, at *12 (“[The prison] failed to address the timeliness of the Step 1
grievance . . . and responded to this grievance on the merits. . . . [N]ot only did [the prison]
respond to Plaintiff’s Step 1 grievance on the merits, it responded to both his Step 2 and Step 3
grievances on the merits.”).
Interestingly, Jewkes also addressed the issue of a grievance process in which the
institution did not address a plaintiff’s untimeliness at each level but did at some point during the
process. 2012 U.S. Dist. LEXIS 105415, at 5-6. There, the grievance reviewer denied an
untimely grievance at neither steps one or two on the basis of the “timeliness issue,” but instead
on the merits. Id. However,
the plaintiff’s step 3 grievance was denied because her step 2
grievance was submitted after the deadline for filing a step 2
grievance. Despite apparently forfeiting any timeliness objection
during step 1 and step 2 of the grievance process, the [prison]
properly raised the timeliness issue before the administrative
process had concluded. . . . As a result [this plaintiff’s] claims are
barred by § 1997e.
Id.
In Plaintiff’s case too, timeliness was addressed before the grievance process ended--at
both steps one and two. But even more persuasively here, the grievance was addressed on the
basis of timing at step three as well: “I agree with the responses rendered in your level I and level
II grievances” (before going on to discuss the merits). Therefore, in line with Jewkes and
standing on this case’s fact pattern--distinctive from the other cases in which untimeliness was
not addressed at any level--this Court deems Plaintiff’s claims “barred by § 1997e.” Id.

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Defendants Hoggard and Palmer’s affirmative defense of nonexhaustion of
administrative remedies is established as a matter of law, and, therefore, summary judgment is
entered in their favor.
Accordingly, IT IS ORDERED that:
1. For failure to state a claim upon which relief may be granted, claims against
Defendants Eldridge, Young, and Chipp are DISMISSED.
2. Defendant Chipp’s Motion for Summary Judgment is DENIED as moot. (Docket
Entry # 94.)
3. SJC Defendants Hoggard and Palmer’s Motion for Summary Judgment as to
Plaintiff’s failure-to-protect claim under the Federal Constitution is GRANTED.
(Docket Entry # 82.)
4. This case is CLOSED.
DATED this 27th day of March 2017.
BY THE COURT:

_____________________
JUDGE DALE A. KIMBALL
United States District Court

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