Opinion
Civil Action No. 17-cv-02453-RM-SKC
02-12-2020
LARRY HOOVER, Plaintiff, v. KELLY, ADX SIS Tech., D. BILBREY, ADX SIS Tech., WARDEN FOX, ADX, and BUREAU OF PRISONS, Defendants.
REPORT & RECOMMENDATION RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [#36]
This report and recommendation addresses Defendants' Motion for Partial Summary Judgment [#36] ("Motion"). District Judge Raymond P. Moore referred the Motion to this Court. [#38.] The Court has reviewed the Motion, Plaintiff's Response [#43], Defendants' Reply [#53], all exhibits, and applicable case law. No hearing is necessary. For the following reasons, the Court RECOMMENDS the Motion be GRANTED.
The Court uses "[#___]" to refer to specific docket entries in CM/ECF.
A. BACKGROUND & PROCEDURAL HISTORY
All facts in this Recommendation are undisputed unless otherwise noted. The Court construes the factual record in the light most favorable to Hoover, the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996).
Plaintiff Larry Hoover ("Hoover") is currently incarcerated at the Bureau of Prison's ("BOP") Administrative Maximum facility in Florence, Colorado. [See generally #19.] In August 2017, Defendant D. Bilbrey ("Bilbrey"), a Special Investigative Services Technician for the BOP, placed Hoover on a communication restriction ("2017 Restriction"). [#19 at p.6; #36-1 at p. 3.] Bilbrey's justification for the restriction was that Hoover "made multiple statements relating to known members of the gang 'The Gangster Disciples'" during an August 6, 2017 social visit. [#36-1 at p. 3; see #19 at p. 6 (acknowledging the justification and denying its truthfulness).] The 2017 Restriction banned Hoover from all mail, phone, and in-person communication with "his common law wife, son, nieces, nephews[,] and grandkids." [#19 at p. 6.]
The BOP has a four-step grievance process for inmates to follow in order to exhaust their administrative remedies before bringing a civil action ("BOP Grievance Procedure"). [#36-1 at p. 6.] First, an inmate must seek informal resolution with the prison staff ("Step 1"). [Id.] Second, the inmate must file a formal request (a "BP-9" request) with the facility of their incarceration ("Step 2"). [Id.] Third, if a BP-9 is denied, the inmate must then file an appeal ("BP-10") to the Regional Director ("Step 3"). [Id.] Fourth, if denied by the Regional Director, the inmate must then appeal to the "Director, National Inmate Appeals, in the Office of the General Counsel in Washington D.C." ("BP-11") ("Step 4"). [Id.] Inmates must comply with each step of these procedures to successfully exhaust their administrative remedies prior to filing a lawsuit. [Cf. id. at p. 4; cf. #43 at pp. 6-10.]
Hoover's only challenge to the 2017 Restriction began in August or September of 2017. [See #36-1 at pp. 3-5.] He completed Step 1 of the BOP Grievance Procedure after the Unit Disciplinary Committee ("UDC") found him guilty of having gang-related conversations during an August 6, 2017 social visit. [Id. at p. 3.] Hoover invoked Step 2 and filed his BP-9 on September 29, 2017. [Id. at p.4.] The Warden denied the BP-9 on November 3, 2017. [Id. at p. 3.] Hoover then invoked Step 3 and filed his BP-10 on November 20, 2017, which the BOP Regional Office denied on January 10, 2018. [Id. at pp. 3-4.] Hoover then invoked Step 4 and filed his BP-11 final appeal in early 2018. [Id. at pp. 4-5.] This was Hoover's only attempt at challenging the 2017 Restriction administratively. He filed his original Prisoner Complaint ("Original Complaint") [#1] in this matter on October 12, 2017 - 13 days after filing his BP-9, and before completing the BOP Grievance Procedure. [Compare #1 with #36-1 at p. 3.] In pertinent part, the Original Complaint asserted a First Amendment claim against Bilbrey for imposing the 2017 Restriction. [Id. at p. 11.] That claim continued and presents in the operative complaint—the Second Amended Prisoner Complaint [#19] ("SAC")—as Claim Three. Defendants now seek judgment in their favor on Claim Three and that portion of Claim Six that involves the 2017 Restriction. [See generally #36.]
Hoover originally filed the BP-11 on February 20, 2018 without attaching required documents. [#36-1 at pp. 4-5.] He asserts he refiled the document on April 5, 2018. [#43 at p. 7.] As explained below, the timing of Hoover's BP-11 appeal is immaterial for purposes of the Motion. See Ayon v. Gourley, 47 F. Supp. 2d 1246, 1252 (D. Colo. 1998) (immaterial factual disputes will not defeat a motion for summary judgment).
B. STANDARD OF REVIEW
1. Motion for Summary Judgment
Summary judgment is appropriate only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). To meet the burden of persuasion required to support summary judgment, the movant must "point to those portions of the record that demonstrate an absence of a genuine issue of material fact, given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp., 477 U.S. at 322-23 (1986)). A fact is "material" if under the substantive law it could affect the outcome of the lawsuit. Equal Emp't Opportunity Comm'n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248.
While the moving party bears the initial burden of showing an absence of disputed issues of material fact, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not disprove the claim(s). See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Once the moving party points to an absence of evidence to support the claim(s), the non-moving party must present specific facts showing the existence of a genuine issue for trial as to the elements essential to the non-moving party's case. See Fed. R. Civ. P. 56(e). See also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010). If the non-moving party bears the burden of proof at trial, they must come "forward with sufficient competent evidence to establish a prima facie claim." Green Earth Wellness Ctr., LLC v. Atain Specialty Ins. Co., 163 F. Supp. 3d 821, 825 (D. Colo. 2016). Conclusory allegations do not create genuine issues of material fact requiring a trial. Dobson v. City & Cty. of Denver, 81 F. Supp. 2d 1080, 1083 (D. Colo. 1999); cf. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (acknowledging "conclusory allegations without specific supporting facts have no probative value"). Evidence that is not significantly probative and immaterial factual disputes will also not suffice. Ayon v. Gourley, 47 F. Supp. 2d 1246, 1252 (D. Colo. 1998). Demonstration of "some metaphysical doubt as to the material facts" is insufficient to establish a genuine issue of material fact for trial. Foreman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997).
The Court must construe the factual record and reasonable inferences from it in the light most favorable to the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). "[A] 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). Ultimately, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. 2. Pro Se Parties
The Court acknowledges that Hoover is not an attorney. Consequently, his pleadings and other papers are construed liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. But the Court cannot act as a pro se litigant's advocate. Id. The Court may not "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting matters that were not pleaded. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). At the end of the day, pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Hoover obtained Counsel after filing the SAC and Response. [See #91.] Thus, for purposes of the Motion, the Court employs the liberal-construction standard afforded to pro se parties. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). --------
C. ANALYSIS
Defendants contend that the undisputed facts entitle them to judgment as a matter of law on Claim Three and the portion of Claim Six that challenges the 2017 Restrictions, based on Hoover's failure to exhaust administrative remedies.
Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions [under 42 U.S.C. § 1983], or any other Federal law, 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) (emphasis added). The PLRA bars all claims by an inmate that have not been properly exhausted before filing a lawsuit. See Ruppert v. Aragon, 448 F. App'x 862, 863 (10th Cir. 2012) (affirming dismissal of a claim where, "contrary to the PLRA'S exhaustion rules, [plaintiff] brought his federal suit before the prison had finished its review" of the incident at issue) (emphasis added). The Supreme Court has been direct in holding that each step in the exhaustion process must be completed before suit is filed. See Porter v. Nussle, 534 U.S. 516, 523-24 ("All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.") (internal citations and quotations omitted). The PLRA requires "proper exhaustion, . . . which means using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (emphasis omitted); see also Jones v. Bock, 549 U.S. 199, 218 (2007). "[S]ubstantial compliance is insufficient." Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Thus, "[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a . . . claim under PLRA for failure to exhaust his administrative remedies." Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
Here, Hoover filed this lawsuit challenging the 2017 Restriction in the Original Complaint. [See #1 at pp. 11-12.] The issue before the Court then is whether Hoover completed each step of the BOP Grievance Procedure before filing the Original Complaint on October 12, 2017. Ruppert, 448 F. App'x at 863.
There is no dispute that Hoover failed to complete the BOP Grievance Procedures over the 2017 Restriction before he field the Original Complaint on October 12, 2017—the date he filed a claim challenging the 2017 Restriction. [#36-1 at pp. 2-4; see generally #43 at pp. 6-9.] Hoover has not provided any evidence to demonstrate disputed issues of fact over his failure to exhaust. [See generally #43.]
Hoover's arguments in the Response not only misconstrue the issue, but they also effectively concede his lack of exhaustion. [See generally #43 at pp. 6-9.] Hoover argues that he timely exhausted his administrative remedies in April 2018 after the BOP failed to respond to his BP-11. [Id. at p. 9 (citing Stine v. U.S. Fed. Bureau of Prisons, 508 F. App'x 727 (10th Cir. 2013)).] First, this argument fails to acknowledge Tenth Circuit precedent in Ruppert holding that every stage of the grievance process must be completed before a claim is brought in federal court. 448 F. App'x at 863. Thus, Hoover's attempts to complete the BOP Grievance Procedures after he filed the original complaint cannot create disputed issued of material fact over whether he completed those procedure before filing suit. Cf. id.
Hoover acknowledges that he "did not complete the administrative remedy process regarding his challenge to the August 2017 [Restriction] . . . ." [#36-1 at p. 6; see generally #43.] Indeed, he affirmatively asserts that he was still navigating the BOP Grievance Procedures in April of 2018 - six months after he filed the Original Complaint. [See #43 at pp.7-9; see also #1 at p. 11.] By doing so, he concedes he failed to exhaust his administrative remedies concerning his challenge to the 2017 Restriction as of the time he filed the Original Compliant on October 12, 2017.
Therefore, the Court recommends finding that the undisputed material facts show that Hoover failed to properly exhaust his administrative remedies, and the PLRA bars Claim Three and the portion of Claim Six challenging the 2017 Restriction as a matter of law. Thus, Defendants are entitled to summary judgment on their affirmative defense of failure to exhaust. See Woodford, 548 U.S. at 83-84.
D. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Defendants' Motion for Partial Summary Judgment [#36] be GRANTED.
DATED: February 12, 2020.
BY THE COURT:
/s/_________
S. Kato Crews
U.S. Magistrate Judge NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).