Opinion
Case No. 04-cv-00148-MSK-PAC.
August 8, 2005
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
THIS MATTER comes before the Court pursuant to Defendants Knight and Dinet's Motion to Dismiss (# 30), Defendant Wallace's Motion to Dismiss (# 32), the Plaintiff's consolidated responses to the motions (# 46), the Defendants' consolidated reply (# 48), and the Plaintiff's consolidated sur-reply (# 49).
The Plaintiff did not seek leave to file a sur-reply. Such filings are not permitted by the Court's rules. See D.C. Colo. L. Civ. R. 7.1(C) (making no provision for sur-replies). Nevertheless, given the Plaintiff's pro se status and the lack of objection by the Defendants, the Court will consider her sur-reply for purposes of the pending motions. The Court will not, however, consider any future sur-replies filed without leave in this action.
BACKGROUND
This action was initially commenced by several inmates at the Colorado Department of Corrections' Women's Facility in Denver, Colorado, in a Complaint (# 3) naming the Department of Corrections and Warden Joan Shoemaker as the only Defendants. The inmates, all of whom were disabled in some capacity, alleged that the administration of the facility constituted discrimination against them on the basis of their disabilities. For example, the inmates contended that, by housing numerous wheelchair-using inmates on the third floor of a facility with only a single elevator capable of accommodating only four wheelchairs at a time, the Defendants were exposing the inmates to undue risk should a fire occur. Included in the Complaint were handwritten statements by the inmates, including a statement by the Plaintiff that related her concerns about the lack of wheelchair accessibility on the third floor of the facility (although the Plaintiff does not claim to actually use a wheelchair) and recited a number of maladies the Plaintiff suffers from, including vision impairments from glaucoma resulting in partial blindness, a need for surgery on her knee and hip.Shortly after filing the Complaint, the Plaintiff filed a Motion for Order of Preliminary Injunction (# 12), alleging that Corrections Officers Alvarado and Dinet were harassing her by conducting excessive cell shakedowns, seizing the Plaintiff's canteen and personal property without authorization, and that one of the Corrections Officers had planted a razor blade in the Plaintiff's cell to frame her for a disciplinary infraction. On April 21, 2004, United States Magistrate Judge O. Edward Schlatter issued an Order (# 16), in which he observed that the Complaint as pled was insufficient, and directed the Plaintiffs to file an Amended Complaint. On June 29, 2004, the Plaintiff and another inmate filed an Amended Complaint (# 21), naming numerous Corrections Officers involved with their housing unit, as well as several other officials of the facility. The Amended Complaint iterated the disability discrimination allegations and related an extended discussion of the Plaintiff's incident involving the razor blade and the consequences that followed that disciplinary infraction, as well as new assertions involving the use of guard dogs in the facility, increased medical co-payments, and a litany of other concerns.
On November 19, 2004, Magistrate Judge Schlatter entered an Order (# 24), finding that the Amended Complaint did not separately state individual claims, and he interpreted the narrative in the Amended Complaint to raise 11 distinct claims. Of those 11 claims, Judge Schlatter dismissed all except: (i) a claim against Defendant Wallace, alleging that he limited the number of grievances the Plaintiff could file in retaliation for her complaints against prison staff; and (ii) that Defendants Dinet and Knight confiscated the Plaintiff's medical supplies during a shakedown, causing the Plaintiff to endure physical pain.
The Defendants then filed the instant motions to dismiss. Defendants Knight and Dinet contend that: (i) the Plaintiff's allegations that he medical items were confiscated does not allege an Eighth Amendment violation, as the conduct alleged was not deliberately indifferent to the Plaintiff's medical needs; (ii) the Plaintiff failed to exhaust her administrative remedies as required by 42 U.S.C. § 1997e(a); and (iii) they are entitled to qualified immunity. Defendant Wallace contends that: (i) the administration of a grievance procedure does not arise to a protected right for purposes of a Due Process claim; (ii) the Plaintiff's allegations of retaliatory intent are conclusory; (iii) the Plaintiff failed to exhaust her administrative remedies; and (iv) Defendant Wallace is entitled to qualified immunity.
JURISDICTION
The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
ANALYSIS
A. Standard of review
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir. 2001); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The Court must limit its review to the four corners of the Complaint, but may also consider documents attached to the Complaint as exhibits, Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), as well as unattached documents which are referred to in the Complaint and central to the plaintiff's claim, so long as the authenticity of such documents is undisputed. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).
The Court construes the Plaintiff's pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In other words, if the Court if 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, her confusion of various legal theories, her poor syntax and sentence construction, or her unfamiliarity with pleading requirements. Hall, 935 F.2d at 1110. However, the requirement that the Court read the Plaintiff's pleadings broadly does not relieve the Plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. Id. The Court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(A) and (B); Fed.R.Civ.P. 12(b)(6); Hall, 935 F.2d at 1108-1110.
B. Failure to Exhaust
The Court will address the substantive issues in an order different than the parties have presented them. As a threshold issue, the Defendants contend that the Plaintiff has failed to exhaust her administrative remedies by not pursuing the Colorado Department of Corrections' grievance procedure to its conclusion regarding each claim. Pursuant to 42 U.S.C. § 1997e(a), an inmate must fully exhaust available administrative remedies before commencing suit in federal court. The exhaustion requirement applies to all suits regarding prison life, whether they challenge general circumstances or particular episodes. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required even though the grievance procedure does not make available all of the remedies — such as monetary damages — the inmate desires. Booth v. Churner, 532 U.S. 731, 741 (2001). The fact that an inmate might perceive the administrative procedure as futile is unavailing; futility is not an exception to the exhaustion requirement. Id. at n. 6; see also Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002). An inmate that begins the administrative procedure but does not complete it has not adequately exhausted it. Jernigan, 304 F.3d at 1032. The burden of showing exhaustion is on the Plaintiff, to be established by either attaching copies of documents showing complete exhaustion, or by identifying with specificity the procedures invoked and their outcome. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003). In this Circuit, the presence of an unexhausted claim required dismissal of the entire action, not just the defective claim. Ross v. County of Bernalillo, 365 F.3d 1181, 1189-92 (10th Cir. 2004).
Here, the Plaintiff makes only conclusory allegations in the Amended Complaint that she has filed grievances with respect to certain claims or certain Defendants, but does not attach any such grievances or identify the various grievances with any specificity. Ordinarily, this would be a sufficient basis to dismiss the Plaintiff's Amended Complaint as unexhausted pursuant to Steele and Ross, supra. However, the Plaintiff also alleges that her ability to access the grievance procedure has been intentionally impeded by Defendant Wallace, who denies her the ability to file more than one grievance per month. Arguably, a grievance procedure that requires grievances to be filed on specified forms is not "available" to an inmate who is denied access to the necessary forms. See e.g. Aceves v. Swanson, 75 Fed. Appx. 295, 296 (5th Cir. 2003) (unpublished). Because the Court must, at this early stage of the proceedings, view the Amended Complaint in the light most favorable to the Plaintiff, her somewhat conclusory assertion that she has been denied meaningful access to the grievance procedure is sufficient to survive dismissal.
The exhaustion required by 42 U.S.C. § 1997e(a) is not jurisdictional, but rather, an element of the claim that the Plaintiff must plead and prove. Steele, 355 F.3d at 1208-09. Thus, the issue is one that is well-suited for reconsideration at the summary judgment stage, where the parties can present a more complete factual record regarding the Plaintiff's attempts to exhaust. The Plaintiff is advised, however, that a mere conclusory assertion that she was denied access to the grievance procedure will not be sufficient to survive summary judgment. In order to carry her burden of showing that the grievance process was not available to her, the Plaintiff must come forward with competent evidence that describes, with specificity, the requirements of the grievance procedure; the nature of the grievances she was permitted to file; the manner in which she sought additional access to the grievance procedure and the precise form in which that access was denied; and the steps she took to address such denials. Should the Plaintiff fail to come forward with a specific showing in response to a motion for summary judgment, the Court may find that she has failed to demonstrate an issue of fact with regard to her burden to establish exhaustion and grant summary judgment to the Defendants.
C. Qualified immunity
Because the qualified immunity analysis subsumes the Defendants' arguments that the Plaintiff fails to state a claim, the Court will address the immunity issue next.
Government officials are entitled to qualified immunity from liability for civil damages under § 1983 when their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). A qualified immunity defense is analyzed under a two-step process: first, the Plaintiff must establish that, upon a favorable review of the record, the Defendants' actions violated a constitutional or statutory right; second, the Court must inquire whether the Plaintiff can show that the contours of that right were "clearly established" at the time of the charged conduct. Smith v. Cochran, 339 F.3d 1205, 1211-12 (10th Cir. 2003), citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001).
In cases where qualified immunity is asserted in a motion for summary judgment, there is a third step. If the plaintiff meets her two burdens under the standard analysis, the burden then shifts to the defendants to show that there are no genuine issues of material fact on the substantive claim, and that they are entitled to judgment as a matter of law. Smith, 339 F.3d at 1212, citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). Because there is no evidentiary record before the Court in the present case, this step is unnecessary.
The "clearly established" prong of the analysis is often described as inquiring whether a "reasonable official would understand" that his or her behavior violated the constitution. See e.g. Smith, 339 F.3d at 1215. In this Court's view, this description of the test has resulted in imprecise analysis, as it suggests that the focus of the analysis is on the official's subjective or objective state of mind. This is incorrect. The "clearly established" prong does not actually examine state of mind; rather, it merely inquires whether, at the time of the challenged act, there was binding legal authority recognizing the existence of a constitutional right in the particular circumstances. See e.g. Hope v. Pelzer, 536 U.S. 730, 739 (2002) ("This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.") (citation omitted); Smith, 339 F.3d at 1215 (" A plaintiff may meet the burden of making this showing by pointing to a Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight of authority from other courts.") (internal quotes omitted).
Turning to the issue of whether the Plaintiff has adequately alleged a constitutional violation, the Court starts with the claims against Defendants Knight and Dinet. The Magistrate Judge construed these claims to allege an Eighth Amendment violation. In that context, the Amended Complaint alleges that Defendant Knight filled out forms incorrectly during a transfer of the Plaintiff to another housing unit, and that as a result, some of the Plaintiff's property, including unspecified "medical supplies," were confiscated instead of following the Plaintiff to her new housing assignment. The claim against Defendant Dinet alleges that during a shakedown on February 6, 2004, Defendant Dinet confiscated the Plaintiff's medically-approved ice bag.
Although the Amended Complaint is not entirely clear, it would appear that this incident occurred on either February 6 or 7, 2004. It is possible that the "medical supplies" in the claim against Defendant Knight are, in fact, the ice bag seized by Defendant Dinet on February 6, 2004.
To state a claim for deprivation of rights secured by the Eighth Amendment, the Plaintiff must allege circumstances showing a "deliberate indifference" to her medical needs. Farmer v. Brennan, 511 U.S. 825, 828 (1994). To do so, the inmate must allege that: (i) her medical needs were serious, and (ii) prison officials were deliberately indifferent to those needs. Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996). In addition, in cases such as this one where the Plaintiff's treatment was delayed, rather than denied outright, the inmate must also show that she has suffered "substantial harm" as a result of the delay. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001). A medical need is serious if it has been diagnosed by a physician as requiring treatment or is so obvious that a layperson could recognize the need for a doctor's attention. Riddle, 83 F.3d at 1202. To show "deliberate indifference" to her needs, the Plaintiff must demonstrate each Defendant was aware of a substantial risk of serious harm resulting from their conduct, yet chose to ignore it. Farmer, 511 U.S. at 835; Garrett, 254 F.3d at 949 (defendant must be aware of facts giving rise to an inference of substantial risk of harm and must actually draw that inference). The inadvertent or even negligent failure to provide appropriate care does not arise to an Eighth Amendment violation. Riddle, 83 F.3d at 1203.
The Plaintiff has adequately alleged that she had serious medical needs, insofar as the Amended Complaint alleges that her medical supplies had been approved by the medical staff at the facility. Because a physician apparently directed the treatment the Plaintiff was receiving, the Court concludes that the Plaintiff has alleged the existence of a serious medical need. Next, she must allege that the Defendants were aware of a risk of harm that would result from their conduct, and that they chose to ignore it.
In the claim against Defendant Knight, the Court finds no such allegation. The crux of the Plaintiff's claim against Defendant Knight is that he did not properly itemize and document the Plaintiff's property while effectuating her transfer to another housing unit. Even reading the Amended Complaint broadly, the Court cannot draw any inference from the Plaintiff's allegations that Defendant Knight knew that he was depriving the Plaintiff of her medical supplies. Indeed, the Amended Complaint alleges that Defendant Knight did not perform an inventory of her property before he allowed it to be taken away. This would suggest that Defendant Knight did not even identify the property as being of a medical nature. At best, the Plaintiff's claim alleges that Defendant Knight was negligent in carrying out his administrative duty to account for her property. As stated above, negligence is not actionable under the Eighth Amendment even when such negligence is directly related to the medical care provided. Accordingly, the Plaintiff has failed to state a constitutional claim against Defendant Knight, and his motion to dismiss is granted.
The claim against Defendant Dinet is slightly different. The Plaintiff alleges that Defendant Dinet seized the ice bag after accusing the Plaintiff of using it for refrigeration, not medical use. Viewing the Amended Complaint in the light most favorable to the Plaintiff — as the Court must for both a motion under Fed.R.Civ.P. 12(b)(6) or a claim of qualified immunity, Smith, 339 F.3d at 1211 (court must give "favorable review" to the allegations in the complaint when assessing qualified immunity) — the Court concludes that the Plaintiff could allege that Defendant Dinet knew that the Plaintiff possessed the ice bag for medical purposes, particularly since possession of ice for refrigeration purposes appears to be prohibited. Once Defendant Dinet is assumed to have known that she was confiscating a medically-approved item, it is logical to infer that she did so with knowledge that such a confiscation would deprive the Plaintiff of the medical benefits of the ice bag, and that she did so despite being aware that such a denial could harm the Plaintiff. Under the deferential standard used for non-evidentiary motions to dismiss, this is sufficient for the Plaintiff to state a cognizable Eighth Amendment claim against Defendant Dinet.
Given the Plaintiff's pro se status, the Court reads the entire record broadly in interpreting her Amended Complaint. Although the ice bag incident is not described with great specificity in the Amended Complaint, the Plaintiff's Motion for Preliminary Injunction adds many relevant details which the Court will consider as part of the substantive claim.
Once the Plaintiff states a valid constitutional claim, the next step of the qualified immunity analysis is to determine whether the constitutional right at issue was "clearly established" at the time. A right is "clearly established" where, in light of the particular facts of the case, there is binding legal authority recognizing the existence of that constitutional right. Brosseau v. Hagen, 125 S.Ct. 596, 599 (2004). This Court need not conduct an expansive review of authority to recognize that the Eighth Amendment long-ago established that a prison official's seizure of items necessary for a medically-approved treatment without regard for the inmate's health is prohibited. See e.g. Andrews v. Hanks, 50 Fed. Appx. 766, 769 (7th Cir. 2002) (unpublished) ("instead of replacing or repairing the brace, Ashba declared his wrist to be fine and, contrary to doctor's orders, confiscated the brace, leaving his wrist without support . . . This was enough to state a claim for deliberate indifference, and the district court should have allowed Andrews to proceed with this claim"); Mitchell v. Alusi, 872 F.2d 577, 580-81 (4th Cir. 1989) (finding that inmate stated a viable Eighth Amendment claim when prescribed medication was confiscated from her without medical review). Indeed, the Court views situations involving the confiscation of medically-prescribed equipment by non-medical personnel to so clearly establish a potential constitutional violation as to fall within that segment of cases described in Brosseau as being "an obvious case [for which] a body of relevant case law" is unnecessary. 125 S.Ct. at 599. Accordingly, the Plaintiff has alleged a constitutional violation of a clearly established right, and Defendant Dinet is not entitled to qualified immunity.
Finally, the Court turns to the claim against Defendant Wallace. The gist of this claim is that, at some unspecified point in time, Defendant Wallace began restricting the Plaintiff's access to the grievance procedure in retaliation for her pursuit of claims against other prison officials. The precise constitutional basis for this claim is somewhat unclear. Defendant Wallace's brief views it as a Procedural Due Process claim, insofar as the Plaintiff is assumed to allege she was deprived of a liberty interest in access to the grievance procedure without notice and an opportunity to be heard. Defendant Wallace goes on to assert that the grievance process does not give rise to a liberty interest subject to constitutional protection. Although this statement is arguably correct in so far as access to a grievance procedure is not a right protected by the Due Process clause of the Fourteenth Amendment, see e.g. Walker v. Mich. Dept. of Corrections, 128 Fed. Appx. 441, 445 (6th Cir. 2005) (unpublished) (collecting cases), the Plaintiff's claim could nevertheless survive insofar as the denial of access to the grievance procedure effectively denies her access to the courts in violation of the First Amendment. See e.g. Purkey v. Green, 28 Fed.Appx. 736, 745-46 (10th Cir. 2001) (unpublished) ("Because a prisoner must first file a grievance in order to ultimately gain access to courts to state a claim for relief under 42 U.S.C. § 1997e, then punishing him for actually filing grievances by placing him in disciplinary segregation would state a claim for a both an access to courts and a First Amendment violation"). Contrary to Defendant Wallace's statement in his brief, the Plaintiff has alleged that the denial of access to the grievance procedure has actually deprived her of access to the Courts, both insofar as she lacks the ability to grieve certain confiscations of property she needs to pursue lawsuits, and insofar as Defendant Wallace himself has alleged that the Plaintiff cannot proceed in this case because she did not file a grievance as required by 42 U.S.C. § 1997e(a). Accordingly, the Court finds that the Plaintiff has sufficiently alleged a constitutional violation under the First Amendment.
Pursuant to 10th Cir. R. 36.3, the Court acknowledges that unpublished opinions from the 10th Circuit are not considered precedential. Nevertheless, the Court cites Purkey pursuant to 10th Cir. R. 36.3(b), insofar as it contains a persuasive discussion of the issue of whether retaliatory denial of access to a prison grievance system constitutes a constitutional violation, and the issue does not appear to be the subject of published decisions by the 10th Circuit. Pursuant to 10th Cir. R. 36.3(c), a copy of the Purkey decision is attached.
The Court also finds that at the time of the Amended Complaint, the right of inmates to be free from interference with their right of access to the courts through retaliatory interference with the grievance procedure was clearly established. Although Purkey is not precedential in this circuit, it cites cases such as Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (holding that retaliation for filing lawsuits and administrative grievances "violates both the inmate's right of access to the courts and the inmate's First Amendment rights") and Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) for that proposition. See also Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Accordingly, Defendant Wallace is not entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, Defendant Knight and Dinet's Motion to Dismiss (# 30) is GRANTED IN PART, insofar as all claims against Defendant Knight are DISMISSED for failure to state a claim, and DENIED IN PART, insofar as the Plaintiff has alleged a sufficient claim against Defendant Dinet. Defendant Wallace's Motion to Dismiss (# 32) is DENIED. The caption of this case shall be amended to omit Defendant Knight as a Defendant.