Opinion
Civil Action 22-cv-02905-PAB-STV
12-07-2023
WILLIAM B. LOVATO, Plaintiff, v. THOMAS LITTLE; DAVID LISAC; MAJ. JOHN/JANE DOE #1; LT. JAMES JOHNSON; LT. DANIEL DENT; SGT. WHITE; SGT. JACKIE SCHAAL; JOHN/JANE DOE #2; JOHN/JANE DOE#3; LARRY WEINGARDNER; DIANA TRAVIS; HALEY HANSON; and JAY LUSK, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United Stated Magistrate Judge
This matter is before the Court on Defendant William Little's Motion to Dismiss Plaintiff's Complaint (the “Motion to Dismiss”) [#44] and Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (the “Motion for Summary Judgment”) [#89] (collectively, the “Motions”). The Motions have been referred to this Court. [##45; 90] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART and that the Motion to Dismiss be DENIED AS MOOT.
I. BACKGROUND
The facts in this section are drawn from Plaintiff's Complaint [#1] and must be taken as true for the purposes of the Motion to Dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The allegations in Plaintiff's Complaint are also considered for the purposes of defining the issues raised in this civil action, as relevant for determining whether Plaintiff exhausted his administrative remedies.
Plaintiff currently is incarcerated at the Sterling Correction Facility (“SCF”). [#108 at 2] In November 1998, Plaintiff, then a member of the Chiqui-30s (“Chi-30s”) gang, was involved in a high-profile gang-related murder in Denver, which resulted in the death of an “Oldies-13” gang member. [#1 at 11 & n.1] Plaintiff's co-defendant, also a Chi-30s gang member, falsely implicated Plaintiff as the shooter in the incident. [Id. at 11-12] Plaintiff, in turn, testified against his co-defendant and provided the Denver District Attorney's Office and Denver Police Department with information on other Chi-30s gang members. [Id. at 11-12 & n.2] Following this incident, Plaintiff disengaged from the Chi-30s gang and was labeled a “snitch” by all Hispanic gangs active in Colorado. [Id. at 12] Plaintiff subsequently had several violent encounters with Chi-30s and Oldies-13 gang members, both inside of and outside of CDOC custody. [Id.]
In September 2005, Plaintiff was involved in another shooting and sentenced to 128 years of incarceration. [Id.] At his intake assessment at the Denver Reception and Diagnostic Center (“DRDC”) Plaintiff recounted his prior membership in, and subsequent disassociation from, the Chi-30s gang. [Id.] Plaintiff also provided information that he had testified against a Chi-30s gang member, he had been labeled a “snitch” by Chi-30s and Oldies-13 gang members, there was a “green light” on him, and he had been receiving death threats. [Id. at 12-13] The resulting “Diagnostic Narrative Summary” compiled by DRDC staff identified that Plaintiff had “custody issues” with members of multiple Hispanic gangs, was “victim prone” due to his previous gang affiliation and testimony against a Chi-30s gang member, and had several enemies. [Id. at 13] DRDC staff assured Plaintiff that they were aware of the relevant facts in his record, and that notations would be made in his files to keep him separate from Hispanic gang members while in CDOC custody. [Id.]
Between December 7, 2006 and December 5, 2019, Plaintiff transferred facilities at least thirteen times. [Id. at 13-20] Upon Plaintiff's arrival at a new facility, Plaintiff consistently recounted his high-risk history and informed staff that he feared for his safety if placed in general population with Hispanic gang members. [Id.] Plaintiff generally received assurance that facility staff was aware of the facts in Plaintiff's records and that Plaintiff would be kept separate from Hispanic gang members during his incarceration. [Id.] Nevertheless, Plaintiff was routinely placed in general population with active Hispanic gang members. [Id.] During this time, Plaintiff was assaulted by Hispanic gang members on eight occasions.[Id.]
On one such occasion, Plaintiff felt threatened by gang members moving towards him while carrying prison-made weapons, and he “moved (peremptorily) to stop the forthcoming assault against him by attacking the nearing gang member who threatened him.” [#1 at 16-17]
On December 5, 2019, Plaintiff was transferred to Colorado State Penitentiary (“CSP”). [Id. at 20] Plaintiff was interviewed by CSP “Intel/STG and Case Management staff,” and he again recounted his prior criminal history and gang involvement. [Id.] CSP staff assured Plaintiff that they were aware of the facts in the record and that Plaintiff would be kept separate from Hispanic gang members. [Id.] Plaintiff, however, was placed in general population and housed with active Hispanic gang members. [Id.] On February 27, 2020, Plaintiff was assaulted by two Hispanic gang members. [Id.] CSP Intel/STG staff interviewed Plaintiff after the assault. [Id.] Plaintiff stated that he had been receiving death threats and reported his fears of assault to housing unit staff but had been ignored, and that he feared for his safety if placed back in general population with Hispanic gang members due to his history and prior assaults. [Id.] Following this interview, Plaintiff was placed back in general population with the same Hispanic gang members. [Id.]
This was Plaintiff's second time to be transferred to CSP. Plaintiff had previously been transferred to CSP on September 13, 2013, was interviewed extensively regarding his high-risk status but was nevertheless placed in general population with active Hispanic gang members despite repeated concerns raised by Plaintiff and his family members. [Id. at 17] Plaintiff was eventually assaulted by the former co-defendant who Plaintiff had testified against. [Id. at 18] Plaintiff was transferred from CSP on October 6, 2015. [Id.]
“STG” stands for “Security Threat/Terrorist Group.” [See id. at 3]
On March 5, 2020, CSP staff recorded that Plaintiff's mother and sister had spoken with staff about the February 27, 2020 assault, and voiced concerns about Plaintiff's wellbeing. [Id.] The records note that Plaintiff's sister asked about Plaintiff being moved to a more secure location, but that staff's response was that Plaintiff “would need to complete the programs at CSP and progress.” [Id.]
On November 24, 2020, three Hispanic gang members gathered in the day hall and loitered outside of Plaintiff's cell while “gloving-up and readying their prison-made weapons.” [Id. at 21] One gang member was a relative of the victim in the November 1998 shooting. [Id. at 21 n.5] CSP housing staff then opened Plaintiff's cell door, which was not supposed to be opened, and allowed the gang members to enter Plaintiff's cell. [Id. at 21] The gang members stabbed Plaintiff repeatedly (the “November 20 stabbing”), then left his cell and celebrated in the middle of the day hall before they were ordered to leave by first responders. [Id.] Plaintiff sustained serious injuries as a result of the November 20 stabbing. [Id.] Plaintiff was transferred to Arkansas Valley Correctional Facility (“AVCF”) Protective Custody housing unit on January 12, 2021. [Id.]
The facts in this section are drawn, where possible, from the parties' statements of undisputed fact included in briefing and from the exhibits attached to the Motion for Summary Judgment and related briefing.
The CDOC maintains a three-part administrative remedy scheme that applies to claims relating to incidents of prison life. [#89-1 at ¶ 4]; see also CDOC Admin. Reg. No. 850-04 (“AR 850-04”). On March 12, 2021, Plaintiff filed a Step One grievance from AVCF. [#98 at 10] Plaintiff's Step One grievance reports that he had previously filed a separate Step One grievance at CSP “over how [Plaintiff] was ‘Set-Up' [to be] stabbed, and placed at risk by the C.S.P. Intel-Officers.” [Id.] Plaintiff's Step One grievance states that: “What happe[ne]d to me should never happen to anyone[.] C.S.P. Intel is responsible and I want an investigation into what happened to me done immediately[.] And to make sure it doesn't happen to anyone else.” [Id.] The response to Plaintiff's Step One grievance references an “AR 600-01G Custody Issue Statement” and notes that: “If an offender fails to give accurate, confirmable and valid information, custody issues cannot be added to your CDOC history.” [Id.] The response further states that if Plaintiff is “dissatisfied with the response to this grievance, [Plaintiff] may obtain further review by submitting the next step to the appropriate individual.” [Id.]
The Court may take judicial notice of CDOC regulations. Allen v. Clements, 930 F.Supp.2d 1252, 1260 n.2 (D. Colo. 2013) (citing Ray v. Aztec Well Serv. Co., 748 F.2d 888, 889 (10th Cir. 1984)).
On April 6, 2021, Plaintiff filed a Step Two grievance. [Id. at 11] Plaintiff's Step Two grievance states:
To be clear[,] I believe that C.S.P. Intel officers either set me up to be stabbed or they just straight up “failed” in every way to make sure it didn't happen. I was stabbed over 41-times because they didn't do the[ir] job, because they didn't do what they said when I was just assaulted 7-months before I was stabbed. I want what happened to me investigated and for those responsible for allowing it to be dealt with immediately per C.D.O.C. personal conduct policy. They let me almost get stabbed to death. Do everything to make sure it doesn't happen again to me.[Id.] The response to Plaintiff's Step Two grievance states:
The incident in which you have referred to regarding being stabbed has been thoroughly reviewed on multiple levels, and all information to include and STG/Intel has also been reviewed. There is no information that has been presented nor that confirms any claims of failure to properly execute duties by staff, and there has been no violation of the CDOC Conduct Policy by staff in the issue which you have brought forth.[Id.] The response further states that if Plaintiff is “dissatisfied with the response to this grievance, [Plaintiff] may obtain further review by submitting the next step to the appropriate individual.” [Id.]
On May 21, 2021, Plaintiff filed a Step Three grievance. [Id. at 12] Plaintiff's Step Three grievance states:
CDOC, its facilities[,] and its [Intel Department] have a . . . DUTY to protect inmates within its supervision. I was stabbed multiple times and left for dead, in what is SUPPOSE[D] to be the most “[c]ontrolled” enviro[n]ment in CDOC. To say that “there is no information to confirm that staff failed to execute their duty” is a slap in the face.... [The] scars now that crisscross my head and neck . . . are [] “Information that PROVE staff failed to properly
execute their duties.” CSP is suppose[d] to be the most monitored most secure facility the CDOC has to offer .... 41 TIMES I WAS STABBED . . . . The trauma I suffered makes it all but impossible for me to focus and complete a grievance . . . but I did state that .... I want[] t[he] incident[] to be investigated properly-as well as for those who could have stopped it to be compared ag[ain]st what CDOC claims is their Personal conduct policy.[Id. at 12] The response to Plaintiff's Step Three grievance states:
I have reviewed your Step 3 grievance that you filed with regard to [the] allegation that CSP Intel set you up for assault by other offenders (11/24/20). In review of this matter I contacted the CSP Administration for information. You were contacted by CSP Administration for background information that could assist with understanding why this assault took place. I agree with the Step 1 and Step 2 responses which contain correct and appropriate information. Staff were not involved with the incident on 11/24/20, except to assist with addressing your injuries and contacting medical. If an offender fails to give accurate, and valid information that can be confirmed, then custody issues cannot be addressed appropriately to avoid an assault. You have submitted no documentation to substantiate your claim. Based on the foregoing I cannot recommend any further relief. . . . It is your burden to prove your allegations stated in your Step 3 grievance. I have reviewed the facts of this case and determined that you did not meet this burden. There was no corroborating evidence to provide proof of your allegations. Your request for relief is denied. This is the final administrative response in this matter and you have exhausted your administrative remedies.[Id.]
C. This Lawsuit
Plaintiff initiated the instant action on November 7, 2022. [#1] Plaintiff names the following defendants: Thomas Little, Warden of CSP; David Lisac, Associate Warden of CSP; Major Doe #1, Custody Control/Security Supervisor at CSP; Lieutenant James Johnson, Intel Unit Supervisor at CSP; Lieutenant Daniel Dent, Intel Unit at CSP; Sergeant White, Intel Unit at CSP; Sergeant Jackie Schaal, Housing Unit Supervisor at CSP; Does #2 and #3, Corrections Officers at CSP; Larry Weingardner, Case Manager Supervisor at CSP; Diana Travis, Case Manager at CSP; Haley Hanson, Case Manager at CSP; and Jay Lusk, Investigator for the Colorado Department of Corrections (“CDOC”). [Id. at 2-11] Plaintiff alleges that each Defendant was deliberately indifferent to Plaintiff's custody issues and failed to protect him from serious harm in violation of Plaintiff's Eighth Amendment rights. [Id. at 21-32]
In Claim One, Plaintiff alleges that Warden Little failed to act on information available to him in order to protect Plaintiff, failed to adequately supervise CSP staff, and implemented the policies that caused Plaintiff to be placed in general population at CSP. [Id. at 22-24]
In Claim Two, Plaintiff alleges that Associate Warden Lisac, Doe #1, Lieutenant Dent, Sergeant White, and Lieutenant Johnson were personally responsible for and personally participated in: maintaining and updating Plaintiff's inmate and Intel records on STG issues; investigation, validating, and verifying Plaintiff's custody issues; and taking reasonable measures to confine, separate, or transfer inmates who had inflicted or threatened to harm Plaintiff. [Id. at 25] Plaintiff also alleges that Associate Warden Lisac, Doe #1, Lieutenant Dent, Sergeant White, and Lieutenant Johnson each had the authority to remove Plaintiff from general population and request review for protective custody placement, or recommend that Plaintiff request protective custody placement himself, but nevertheless allowed Plaintiff to be housed in general population under conditions posing a substantial risk of serious harm. [Id. at 26]
In Claim Three, Plaintiff alleges that Mr. Weingardner, Ms. Travis, and Ms. Hanson were personally responsible for maintaining and updating Plaintiff's case management records on STG issues and documenting Plaintiff's custody issues. [Id. at 27-28] Plaintiff also alleges that Mr. Weingardner, Ms. Travis, and Ms. Hanson each had the authority to remove Plaintiff from general population and request review for protective custody placement, or recommend that Plaintiff request protective custody placement himself, but nevertheless allowed Plaintiff to be housed in general population under conditions posing a substantial risk of serious harm. [Id. at 28]
In Claims Four and Five, Plaintiff alleges that Sergeant Schaal and Does #2 and #3 allowed three known prison gang members to loiter outside of Plaintiff's cell door while “wearing gloves” and “wielding” or “brandishing” prison-made weapons. [Id. at 29-30] Plaintiff alleges that Sergeant Schaal and Does #2 and #3 then opened Plaintiff's cell door (in violation of departmental and facility policies and certain keep-separate orders entered regarding Plaintiff), allowing the gang members to enter the cell and assault Plaintiff. [Id.] Plaintiff alleges that Sergeant Schaal and Does #2 and #3 had the authority to remove Plaintiff from general population and request review for protective custody placement, or recommend that Plaintiff request protective custody placement himself. [Id.]
In Claim Six, Plaintiff alleges that Mr. Lusk was responsible for investigating, verifying, and validating Plaintiff's history of custody issues across all of CDOC's facilities, and for taking all reasonable measures necessary to keep Plaintiff separate from inmates who had threatened to harm Plaintiff. [Id. at 31] Plaintiff alleges that Mr. Lusk had the authority to remove Plaintiff from general population and request review for protective custody placement, or recommend that Plaintiff request protective custody placement himself, but nevertheless allowed Plaintiff to be housed in general population under conditions posing a substantial risk of serious harm. [Id. at 32]
On March 21, 2023, Warden Little filed the Motion to Dismiss, seeking to dismiss Claim One. [#44] Plaintiff filed a response to the Motion to Dismiss [#84], and Warden Little has replied [#86]. On October 9, 2023, the Motion for Summary Judgment was filed on behalf of all Defendants who had made appearances by that date.[#89] Plaintiff has responded [#98] and Defendants have replied [#113].
The Doe Defendants have not been identified or served, despite the Court permitting early discovery into their identities. [See #75] Defendant Haley Hanson has not been served. [##42; 43]
II. STANDARD OF REVIEW
A. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath or conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. Summary Judgment
Summary judgment is appropriate only if “the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). If the moving party bears the burden of proof at trial, “the moving party must establish, as a matter of law, all essential elements of the [claim or defense upon which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the moving party “must support its motion with credible evidence showing that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). “Where, as here, a defendant moves for summary judgment to test an affirmative defense, ‘[t]he defendant . . . must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.'” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997)). “Once the defendant makes this initial showing, ‘the plaintiff must then demonstrate with specificity the existence of a disputed material fact.'” Id. (quoting Hutchinson, 105 F.3d at 564). “If the plaintiff cannot meet this burden, ‘the affirmative defense bars [her] claim, and the defendant is then entitled to summary judgment as a matter of law.'” Id. (quoting Hutchinson, 105 F.3d at 564).
A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
C. Pro se Pleadings
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Through the Motion to Dismiss, Warden Little seeks to dismiss Claim One of the Complaint for failure to state a claim. [#44] Through the Motion for Summary Judgment, Defendants seek summary judgment on all of Plaintiff's claims based upon Plaintiff's alleged failure to exhaust his administrative remedies through CDOC's grievance procedure. [#89] Although the exhaustion requirement from the Prison Litigation Reform Act of 1995 (“PLRA”) is not jurisdictional, Woodford v. Ngo, 548 U.S. 81, 101 (2006), the Court nonetheless begins with the Motion for Summary Judgment.
A. The Motion for Summary Judgment
Pursuant to the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The United States Supreme Court has made clear that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016). “[T]he PLRA's text suggests no limits on an inmate's obligation to exhaust,” except that “the remedies must indeed be ‘available' to the prisoner.” Id. at 639. As a result, “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Id.
Thus, “[a]ny prisoner who seeks to bring a claim involving general circumstances or particular episodes of prison life must first exhaust the administrative remedies available to him in prison.” May v. Segovia, 929 F.3d 1223, 1226-27 (10th Cir. 2019) (citations and quotation omitted). The PLRA's exhaustion requirement “‘seeks to affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'” Woodford, 548 U.S. at 93 (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). “The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules.” Id. at 95. The PLRA thus requires “proper exhaustion” of the prison's grievance process-i.e., “compliance with [the prison's] deadlines and other critical procedural rules.” Id. at 90, 93. As a result, “to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules,” which are “defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quotation omitted). The PLRA exhaustion requirement, however, “is an affirmative defense, not a pleading requirement.” May, 929 F.3d at 1229. Defendants thus “bear[] the burden of ‘proving that [Plaintiff] did not [exhaust his] administrative remedies.'” Id. at 1234 (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)).
The CDOC has a grievance procedure in place for handling inmate concerns, as set forth in AR 850-04. The grievance procedure can be invoked by inmates “for a broad range of complaints” including “policies, conditions, and incidents within the facility that affect the offender personally.”AR 850-04 § IV.D.1. After attempting informal resolution, the inmate must exhaust a three-step grievance process. See generally id. at § IV.E.3. This process requires that “[t]he grievance . . . clearly state the basis for the grievance and the relief requested in the space provided on the form.” Id. at § IV.D.9.b. The procedure further states that:
AR 850-04 does state that “the grievance procedure may not be used to seek review of . . . [f]acility placement, unit, cell and bunk assignment (including protective custody . . .) [or] [s]ecurity threat groups (STG) status.” AR 850-04 § IV.D.2.h. and i. (emphasis in original). The Court notes that these issues appear to be raised by Plaintiff's Complaint. As discussed below, however, Plaintiff does not argue that any administrative remedies were unavailable to him, and CDOC responded to the concerns raised in Plaintiff's grievances on the merits.
The [Step 3] grievance officer may deny the grievance substantively. When a grievance is denied after a review of the substantive issues, the grievance officer will certify in the response that the offender has exhausted the grievance process.Id. at § IV.E.3.c.1. Alternatively:
The [Step 3] grievance officer may deny the grievance on procedural grounds, without addressing the substantive issues if the grievance is incomplete, inconsistent with a former step, incomprehensible, illegible, requests relief that is not available, fails to request relief, or in any other way fails to comply with the provisions of this regulation. When a grievance is denied for a procedural error, the grievance officer will certify in the response that the offender has not exhausted the grievance process.Id. at § IV.E.3.c.2. (emphasis in original); see also id. at § IV.D.9.d. (specifically explaining that failure to adhere to Section IV.D.9.b. “may result in a procedural denial”).
In support of the Motion for Summary Judgment, Defendants submitted a declaration of Step 3 Grievance Officer Anthony DeCesaro. [#89-1] Mr. DeCesaro testified that all grievances submitted by inmates are logged into the CDOC's electronic grievance database and assigned a tracking number for reference. [Id. at ¶¶ 11-12] He further testified that he had reviewed the CDOC's records of grievances filed by Plaintiff and that he did not find any grievances filed by Plaintiff concerning the allegations at issue regarding the Defendants identified in the Complaint. [Id. at ¶¶ 17-18] Defendants, in turn, assert in their Motion for Summary Judgment that “[Plaintiff] did not file any grievances regarding Defendants' purported actions or inactions following the incident on November 24, 2020” and argue that “Plaintiff did not use the administrative grievance process to allow CDOC to address the substance of his allegations against Defendants and, therefore, did not exhaust his administrative remedies.” [#89 at 3, 9]
In response, Plaintiff asserts that he “did exhaust his administrative remedies by filing all 3 steps of CDOC's grievance procedure concerning the November 24, 2020 murder attempt.” [#98 at 3] Plaintiff attaches as support copies of the three grievances detailed in Section I.B. of this Recommendation. [Id. at 10-13]
In reply, Defendants attach a Supplemental Declaration from Mr. DeCesaro. [#113-1] Mr. DeCesaro concedes that the grievances attached to Plaintiff's response did not appear in his original search, and that the grievances and responses attached to Plaintiff's response are true and accurate copies. [Id. at ¶¶ 7-8] Defendants maintain, however, that Plaintiff's grievances nevertheless fail to satisfy the rules of the CDOC's grievance process because they fail to clearly state the basis and subject of the grievance, provide identifying data, and provide a description of the relief requested, as required by
The supplemental declaration clarifies that Mr. DeCesaro's original search was limited to “approximately ten days before to over ninety days after the alleged incident” [Id. at ¶ 7], a time parameter that was not disclosed in his original declaration [see #89-1 at ¶¶ 1718 (“I have reviewed the CDOC's records of grievances filed by [Plaintiff], to determine whether he filed any grievances concerning his allegations that CDOC employees, including [the named Defendants,] failed to protect him on November 24, 2020. I have found no grievances at all filed by [Plaintiff] concerning the above allegations.”)]. Plaintiff's Response includes a request to sanction Mr. DeCesaro and the Defendants for falsely asserting that Plaintiff did not file any relevant grievances. [See #98 at 5-6] Pursuant to Federal Rule of Civil Procedure 7(b)(1), “[a] request for a court order must be made by motion.” Pursuant to D.C.COLO.LCivR 7.1(d), “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” Accordingly, the Court will not consider Plaintiff's requests absent a proper motion. Moreover, while not impressed with Mr. DeCesaro's omission of the search parameters from his original Declaration, the Court is satisfied for the purposes of the Motion before the Court by Mr. DeCesaro's clarification of the search parameters originally used and their rationale. [See #113-1 at ¶¶ 4-7]
CDOC rules. [See #113 at 6-8] Defendants point out that Plaintiff's grievances only assert that he was placed at risk by unidentified CSP “Intel” officers, and do not specifically identify the Warden, Associate Warden, housing supervisors, case management staff, or investigators. [Id. at 8-10] Accordingly, Defendants argue that Plaintiff “did not provide enough information in his grievances with respect to these Defendants to allow CDOC to investigate their involvement and address the allegations internally.” [Id. at 9] Defendants further argue that Plaintiff's allegations in the grievances are too vague to satisfy CDOC grievance rules, even as to the any “Intel” officers named in the Complaint-specifically Lieutenant Johnson, Lieutenant Dent, and Sergeant White. [Id. at 10-12] In sum, Defendants assert that Plaintiff's grievances fail to exhaust his remedies as to any named Defendant because Plaintiff failed to adhere to CDOC rules governing the grievance process. [Id. at 9-10 (“Put simply, [Plaintiff] provided no allegations in his Step 1, 2, and 3 grievances indicating any basis whatsoever against Defendants Little, Lisac, Schaal, Weingardner, Travis, or Lusk, nor did he include any identifying data to determine whether any of these Defendants were involved in actions or inactions related to the November 24, 2020 assault. [Plaintiff] failed to comply with the requirement of AR 850-04 and did not exhaust his administrative remedies against these Defendants as a result.”), 11-12 (“[T]o the extent [Plaintiff] claims his inclusion of allegations against ‘CSP Intel Officers' exhausted his administrative remedies against Defendants Johnson, Dent, and White, this argument is misplaced because he did not provide identifying data and he failed to provide the basis of his grievance as required under AR 850-04.”)]
A court “generally does not review issues raised for the first time in a reply brief.” In re Gold Res. Corp. Sec. Litig., 957 F.Supp.2d 1284, 1291 (D. Colo. 2013), aff'd, 776 F.3d 1103 (10th Cir. 2015) (quoting Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1166 n.3 (10th Cir. 2003)). There is an exception, however, “when the new issue argued in the reply brief is offered in response to an argument raised in the [plaintiff's] brief.” Id. (quoting Beaudry, 957 F.3d at 1166 n.3). The Court will therefore consider the arguments raised in Defendants' Reply. Defendants' argument that the specific grievances cited by Plaintiff are insufficient to exhaust Plaintiff's administrative remedies was raised in response to Plaintiff's brief, and Defendants' Reply makes the same generally consistent argument that Plaintiff failed to exhaust his administrative remedies because he did not adequately complete the grievance process with respect to the specific claims raised in his Complaint.
To the extent that Defendants contend that Plaintiff's grievances fail to exhaust his remedies due to failure to comply with CDOC rules, this argument has been forfeited by CDOC's determination of Plaintiff's grievances on the merits. To be sure, the PLRA requires “proper” exhaustion. Woodford, 548 U.S. at 84. But “[c]ompliance with prison grievance procedures . . . is all that is required by the PLRA to ‘properly exhaust,'” and “[t]he level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements . . . that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. And as the Sixth Circuit has persuasively explained:
When prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will [the court]. In that setting, the State, as the promulgator of the rules, has had a chance to provide a remedy for the inmate and to decide whether the objectives of the review process have been served. When the State nonetheless decides to reject the claim on the merits, who [is a court] to second guess its decision to overlook or forgive its own procedural bar? The rules serve the State's interests: its interest in creating a prison grievance system, its interest in reviewing a complaint before another sovereign gets involved and its interest in deciding when to waive or enforce its own rules. And the State's decision to review a claim on the merits gives [the court] a warrant to do so as well, even when a procedural default might otherwise have resolved the claim.Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (internal citation omitted) (emphasis in original); see also Morgan v. Trierweiler, 67 F.4th 362, 371 (6th Cir. 2023) (holding that because prison officials responded to a grievance on the merits, they waived the application of a rule requiring that “[d]ates, times, places, and names of all those involved in the issue being grieved are to be included”); Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (overlooking the untimeliness of a grievance, over the objection of the defendants, where prison officials reviewed grievance on the merits), abrogated on other grounds by Jones, 549 U.S. 199; Jewkes v. Shackleton, No. 11-CV-00112-REB-BNB, 2012 WL 5332197, at *4-5 (D. Colo. Oct. 29, 2012) (same, explaining that “if the CDOC forfeits enforcement of certain of its grievance procedures, and processes a grievance despite a deviation from the rules, [the defendant] is bound by that forfeiture”).
CDOC rules require that grievances “clearly state the basis for the grievance and the relief requested in the space provided on the form.” AR 850-04 § IV.D.9.b. Failure to do so (or failure to comply with any other provision of AR 850-04) constitutes grounds for a procedural denial, which must contain a certification “that the offender has not exhausted the grievance process.” Id. § IV.E.3.c.2. (emphasis in original); see also id. at § IV.D.9.d. Here, Plaintiff's grievances were not procedurally denied, but received responses on the merits. In response to Plaintiff's grievances, the CDOC noted that it “thoroughly reviewed” the November 20 stabbing “on multiple levels, and all information to include any STG/Intel has also been reviewed.” [#98 at 11] The CDOC determined that “[s]taff were not involved with the incident on 11/24/20, except to assist with addressing [Plaintiff's] injuries and contacting medical.” [Id. at 12] Plaintiff was informed that he did not meet his “burden to prove [his] allegations”-not that his allegations could not be understood. [Id.] Indeed, Plaintiff received certification that: “[Y]ou have exhausted your administrative remedies.” [Id.]; see also AR 850-04 § IV.E.3.c.1. (“When a grievance is denied after a review of the substantive issues, the grievance officer will certify in the response that the offender has exhausted the grievance process.”). Thus, “the State's decision to review a claim on the merits gives [the Court] a warrant to do so as well.” Reed-Bey, 603 F.3d at 325.
Defendants also argue that, while Plaintiff's grievances may have exhausted his administrative remedies as to some hypothetical claims, he did not exhaust his remedies as to the specific claims in the Complaint. [See, e.g., #113 at 8 (“Although the Step 3 grievance responses state that [Plaintiff] exhausted his administrative remedies with respect to the allegations in those grievances, [CDOC] could not have informed [Plaintiff] that he exhausted his administrative remedies on claims that were not sufficiently alleged as part of the underlying grievance.”)] “A grievance [does not] exhaust administrative remedies for all future complaints of the same general type.” Ross, 365 F.3d at 1188; see also Sayed v. Profitt, 415 Fed.Appx. 946, 949 n.4 (10th Cir. 2011) (prisoner who had raised and exhausted the issue of a right to perform partial ablution did not also raise the issue of a right to perform full ablution, despite the similarity of the issue). The Tenth Circuit has explained that, to exhaust a prisoner's specific claims, a grievance must “provide enough information for officials to investigate and address the actual issue raised in his civil complaint.” Barnes v. Allred, 482 Fed.Appx. 308, 312 (10th Cir. 2012).
As discussed above, any failure by Plaintiff to comply with CDOC procedural rules regarding identification or specificity has been waived. The question instead is whether the claims that Plaintiff exhausted in his grievance are the same ones he raises in his Complaint. Liberally construed, Plaintiff's Complaint fairly raises two categories of issues-first, that various facility and department officers failed to protect Plaintiff by housing Plaintiff in general population with other Hispanic gang members despite Plaintiff's documented and reported safety risks [see #1 at 21-32]; and second, that CSP housing staff failed to protect Plaintiff by permitting three known gang members to congregate outside of Plaintiff's cell while wielding prison-made weapons, and then opening Plaintiff's cell door to allow the gang members to enter and assault Plaintiff [see id. at 28-31]. The Court must determine whether Plaintiff's grievances provided enough information for prison officials to investigate and address these specific issues. See Barnes, 482 Fed.Appx. at 312.
The Court begins with the second category of issues raised in the Complaint-that CSP housing officers failed to protect Plaintiff on the day of the assault by permitting gang members to congregate outside of Plaintiff's cell and by improperly opening Plaintiff's cell door. The Court finds that Plaintiff's grievances permitted a fair investigation into this issue by prison officials. Plaintiff's grievances complained of staff either “set[ting] [Plaintiff] up to be stabbed,” or “fail[ing] in everyway to make sure it didn't happen.” [#98 at 11; see also id. at 12] Defendants fault Plaintiff's grievances for failing to identify any of Plaintiff's housing officers and failing to allege how these officers were involved. [#113 at 8-9] But after Plaintiff provided clarification in his Step 2 grievance,CDOC officers were plainly able to investigate the conditions surrounding the November 20 stabbing- or, in their words, “thoroughly review[] [the incident] on multiple levels.” [#98 at 11] Moreover, it is clear that the CDOC's review ultimately went beyond “Intel” officers. While one response did specifically note that “all information to include any STG/Intel has also been reviewed,” CDOC determined that “[t]here is no information that has been presented nor that confirms any claims of failure to properly execute duties by staff.” [Id. (emphasis added); see also id. at 12 (“Staff were not involved with the incident on 11/24/20, except to assist with addressing your injuries and contacting medical.” (emphasis added))] Indeed, Defendants concede that Plaintiff's allegations “allowed CDOC to look at the events immediately surrounding the attack itself.” [#113 at 11] Plaintiff's grievances, while perhaps not as detailed as CDOC regulations call for, nevertheless permitted CDOC to fairly investigate and address the conditions immediately surrounding Plaintiff's assault and therefore met the notice requirements of the PLRA. Accordingly, the Court finds that Plaintiff has exhausted his administrative remedies as to his claims that CSP housing officers failed to protect Plaintiff on the day of the assault by permitting gang members to congregate outside of Plaintiff's cell and by improperly opening Plaintiff's cell door.
While an inmate may not raise a new or inconsistent claim in later steps of the grievance process, courts often consider the clarifying allegations raised across all of an inmate's grievances as a whole when the issue raised remains consistent. See, e.g., Holmes v. Rudd, No. 20-CV-00016-NYW, 2020 WL 7868466, at *9 (D. Colo. Dec. 31, 2020); Saleh v. Wiley, No. 09-CV-02563-PAB-KLM, 2012 WL 4356219, at *2 (D. Colo. Sept. 24, 2012), aff'd sub nom., Saleh v. U.S. 588 Fed.Appx. 758 (10th Cir. 2014); see also Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003) (explaining that, under a particular department's grievance rules, an inmate is not “preclude[d] . . . from presenting additional factual detail at Step II and Step III that clarifies an allegation made at Step I as a means of justifying an appeal”), abrogated on other grounds by Jones, 549 U.S. 199. And Defendants do not argue that Plaintiff raised inconsistent issues across his grievances, or that the Court should disregard any allegations raised in Plaintiff's Step II or Step III grievances. [See #113]
The Court now turns to Plaintiff's allegations that Defendants failed to protect Plaintiff by improperly housing Plaintiff in general population and failing to keep Plaintiff separate from Hispanic gang members despite knowledge of the severe risk of assault that Plaintiff faced. Plaintiff makes this allegation against every Defendant. [See #1 at 21-32] The Court finds that Plaintiff's grievances exhausted his administrative remedies as to Lieutenant Johnson, Lieutenant Dent, and Sergeant White-the three defendants that Plaintiff identifies as members of the “Intel Unit.” [Id. at 4-6] Plaintiff's grievances are specifically directed against “CSP Intel Officers.” [#98 at 10-13] Plaintiff's grievances allege that he was “placed at risk” by “Intel” staff, that “Intel” staff “didn't do what they said” after Plaintiff had been assaulted seven months prior to the stabbing, and that “Intel” staff “failed in everyway to make sure [the assault] didn't happen.” [Id. at 10-11] Again, Plaintiff's grievances were not procedurally denied for a failure to adequately identify the involved officers or sufficiently describe the event. [See id. at 12] In his Complaint, Plaintiff alleges that the three identified “Intel Unit” officers are generally responsible for gathering intelligence on, investigating, and monitoring inmates who participate in “Security Threat/Terrorist Group” (“STG”) behavior, and taking reasonable measures necessary to confine, separate, or transfer inmates who actively participate in STG behavior. [#1 at 4-6] In light of these responsibilities and Plaintiff's specific allegations in his grievances that the stabbing was caused by the failures of Intel Officers, the Court finds that the issue raised in Plaintiff's grievances fairly extends to and gave CDOC notice of the issue raised in the Complaint against Lieutenant Johnson, Lieutenant Dent, and Sergeant White-namely that these individuals failed to ensure proper and safe placement for Plaintiff within the facility leading up to the stabbing. [See #98 at 11 (“[A]ll information to include any STG/Intel has also been reviewed.”)]
In contrast, the Court finds that Plaintiff has failed to exhaust his administrative remedies with respect to his allegations of improper placement as to the remaining Defendants. Again, Plaintiff's grievances only cite failures by “CSP Intel Officers.” [Id. at 10-12] And, unlike Plaintiff's claims against his housing supervisors (which arise from actions taken or not taken in immediate temporal proximity to the stabbing), Plaintiff's improper placement claims are more attenuated to the incident. Put differently, Plaintiff's grievances gave CDOC obvious cause to investigate the circumstances immediately surrounding the incident-which CDOC did, including the actions of staff not designated as “Intel.” [See id. at 11] Plaintiff's grievances, however, did not give rise to any apparent need to investigate the actions of each individual involved in keeping Plaintiff's records or with the alleged ability to impact Plaintiff's placement in the months leading up to the stabbing, when those individuals are in no way implicated on the face of Plaintiff's grievances. See Saleh v. Wiley, No. 09-CV-02563-PAB-KLM, 2012 WL 4356219, at *2 (D. Colo. Sept. 24, 2012) (explaining, in the context of a failure to protect claim arising from an inmate's placement in a housing unit with gang members who had labelled the inmate a “snitch,” that: “Plaintiff cannot exhaust his administrative remedies for a discrete claim against a single prison official simply by mentioning the Eighth Amendment and various other legal terms”), aff'd sub nom., Saleh v. U.S., 588 Fed.Appx. 758 (10th Cir. 2014).
In sum, the Court finds that Plaintiff exhausted his administrative remedies with respect to his claims that: (1) Sergeant Jackie Schaal and Defendants Doe #2 and #3failed to protect Plaintiff by permitting gang members to loiter outside of Plaintiff's cell while wielding prison weapons, and then improperly opened the door to Plaintiff's cell to allow entry into Plaintiff's cell; and (2) Lieutenant Johnson, Lieutenant Dent, and Sergeant White failed to protect Plaintiff by improperly responding to known safety risks caused by Plaintiff's placement in general population with known gang members. Accordingly, the Court respectfully RECOMMENDS that Defendants' Motion for Summary Judgment be DENIED to the extent that it seeks summary judgment on these claims. In contrast, the Court finds that Plaintiff has failed to exhaust his administrative remedies as to his remaining claims, and that Plaintiff has failed to meet his burden of establishing that such remedies were not available to him. Accordingly, the Court respectfully RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED as to Plaintiff's claims against Warden Little, Associate Warden Lisac, Major Doe #1, Larry Weingardner, Diana Travis, Haley Hanson, and Jay Lusk.
Summary Judgment was not sought on behalf of Defendants Doe #2 and #3. [#89 at 1] Plaintiff alleges that these Defendants, along with Sergeant Schaal, were personally responsible for ensuring the safety and security of inmates in Plaintiff's housing unit but permitted gang members to loiter outside of Plaintiff's cell and opened the door to Plaintiff's cell allowing the gang members to assault Plaintiff. [See #1 at 29-30]
This recommendation is not based on the existence of any factual dispute, and the Court finds no cause to hold an evidentiary hearing on the issue of exhaustion, as requested by Defendants. [#113 at 12]
While the PLRA's exhaustion requirement is mandatory, it only requires the exhaustion of “available” remedies. Ross, 578 U.S. at 642-44. “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. at 642 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “Although a defendant bears the burden of ‘proving that the plaintiff did not [exhaust his] administrative remedies,' once the defendant has carried that burden, ‘the onus falls on the plaintiff to show that remedies were unavailable to him.'” May, 929 F.3d at 1234 (quoting Tuckel, 660 F.3d at 1254). Here, Plaintiff makes no argument that administrative remedies were unavailable to him as to the claims raised in his Complaint, instead arguing that he successfully exhausted his administrative remedies as to all of this claims. [See #98 at 3 (“[Plaintiff] did exhaust his administrative remedies by filing all 3 steps of CDOC's grievance procedure concerning the November 24, 2020 murder attempt on his life and CDOC officials failing to protect him.”)]
Summary Judgment was not sought on behalf of Defendants Major Doe #1 or Haley Hanson [#89 at 1], who have not yet made appearances. The Court notes that these Defendants are not alleged to be members of the Intel Unit nor alleged to have any involvement in the events immediately surrounding the November 20 stabbing. [See #1 at 24-28] As such, the Court's rationale for granting summary judgment in part applies with equal force to Defendants Major Doe #1 and Haley Hanson.
B. The Motion to Dismiss
The Motion to Dismiss only seeks to dismiss Claim One, which is Plaintiff's only claim against Warden Little. [#44 at 1 n.1] As outlined above, the Court concludes that Plaintiff has failed to exhaust his administrative remedies as to his claim against Warden Little. As a result, the Court has recommended Summary Judgment be granted as to Plaintiff's claim against Warden Little. If that recommendation is adopted, the Court respectfully RECOMMENDS that the Motion to Dismiss be DENIED AS MOOT.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies [#89] be GRANTED IN PART and DENIED IN PART. Specifically, the Court respectfully RECOMMENDS that summary judgment be GRANTED as to all claims in Plaintiff's Complaint [#1] EXCEPT Plaintiff's claims that:
(1) Sergeant Jackie Schaal and Defendants Doe #2 and #3 failed to protect Plaintiff by permitting gang members to loiter outside of Plaintiff's cell while wielding prison weapons, and then improperly opened the door to Plaintiff's cell to allow entry into Plaintiff's cell; and
(2) Lieutenant Johnson, Lieutenant Dent, and Sergeant White failed to protect Plaintiff by improperly responding to known safety risks caused by Plaintiff's placement in general population with known gang members.
The Court further RECOMMENDS that Defendant William Little's Motion to Dismiss [#44] be DENIED AS MOOT.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).