Opinion
Civil Action 20-cv-02268-RBJ-KMT
08-25-2021
GAGE RIVERA, Plaintiff, v. DEPUTY QUINTANA, individual capacity as a Deputy Sheriff for Pueblo County Sheriff Office, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya, United States Magistrate Judge.
Before the court is Defendant's “Motion to Dismiss.” ([“Motion”], Doc. No. 17.) Plaintiff has responded in opposition to the Motion, and Defendant has replied. ([“Response”], Doc. No. 20; [“Reply”], Doc. No. 26.)
STATEMENT OF THE CASE
Pro se Plaintiff Gage Rivera [“Mr. Rivera”], a Colorado Department of Corrections [“CDOC”] inmate, who is also a former pretrial detainee at the Pueblo County Jail [“PCJ”], brings this action under 42 U.S.C. § 1983, asserting violations of his constitutional rights by a PCJ employee, Defendant Deputy Quintana [“Deputy Quintana”]. ([“Complaint”], Doc No. 1.) Specifically, Mr. Rivera alleges that, on November 13, 2018, while he was being held at PCJ- where he was awaiting sentencing on a charge relating to his prior escape from a CDOC prison-Deputy Quintana used “excessive force” against him, without justification, by “twisting the hand-cuffs on [his] wrist, ” and then “grabb[ing]” him and “slam[ing] [him] face first into a metal bunk, ” which caused Mr. Rivera “to be knocked completely unconscious.” (Id. at 4-7 ¶¶ 1-9.) Mr. Rivera further alleges that, as he lay “unconscious and cuffed-up” on the ground, Deputy Quintana “reache[d] down, ” “grabb[ed]” him “by the back part of his shirt collar, ” and then “began to drag” him for “several steps, ” until “[s]everal other inmates stepped in” and “made” Deputy Quintana “stop.” (Id. at 7 ¶¶ 10-11.) Plaintiff claims that Defendant's actions caused him to suffer “serious bodily injuries, ” including a “traumatic brain injury, ” as well as various forms of “mental and emotional trauma.” (Id. at 7-10 ¶¶ 12, 14, 18-19.)
Approximately one week after the use-of-force incident involving Deputy Quintana, on November 20, 2018, Mr. Rivera was sentenced in the criminal case for which he was being held at PCJ. (Id. at 11 ¶ 1.) Later that same day, Plaintiff was reportedly transferred from PCJ back into a CDOC facility. (Id. at 10 ¶ 17.)
Following these events, on July 31, 2020, Mr. Rivera commenced this § 1983 lawsuit, asserting two claims against Deputy Quintana, in his individual and official capacities: (1) an Eighth Amendment excessive force claim; and (2) a Fourteenth Amendment due process claim. (Id. at 2-4, 11.) As relief, Plaintiff seeks monetary damages, only. (Id. at 17.)
On October 8, 2020, Mr. Rivera's official capacity claims were all dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B), as legally frivolous. (Doc. No. 10; see Doc. No. 9.) Deputy Quintana now moves to dismiss the remaining individual capacity claims against him, pursuant to Federal Rule of Civil Procedure 12(b)(6), exclusively on the grounds that Mr. Rivera failed to exhaust his administrative remedies with respect to those claims, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. (Mot. 2-6.)
STANDARDS OF REVIEW
I. Legal Standard for Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a Rule 12(b)(6) motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” i.e., those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That being said, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court typically may not look beyond the pleadings. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). “Pleadings, ” for purposes of a Rule 12(b)(6) motion to dismiss, however, include attachments to the complaint, documents incorporated into the complaint by reference, and information subject to judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). Documents attached to a motion to dismiss are considered part of the pleadings, if they are referred to in the complaint, and are central to the plaintiff's claims. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
ANALYSIS
I. The PLRA's Exhaustion Requirement
The Prison Litigation Reform Act [“PLRA”] requires a “prisoner” to exhaust available administrative remedies before filing a lawsuit. 42 U.S.C. § 1997e(a). The term “prisoner, ” as defined by the PLRA, encompasses both convicted inmates and pretrial detainees. 42 U.S.C. § 42 U.S.C. § 1915e(h) (defining “prisoner” to include “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program”); see Peoples v. Gilman, 109 Fed.Appx. 381, 383 (10th Cir. 2004) (stating that the PLRA's exhaustion requirement applies to pretrial detainees). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 210-12 (2007).
Importantly, exhaustion must be completed “in accordance with the applicable procedural rules”-rules which “are not defined by the PLRA, but by the prison grievance process itself.” Id. at 218 (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Thus, “an inmate may only exhaust by properly following all of the steps laid out in the prison system's grievance procedure.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)). Proper exhaustion requires compliance with all of the prison's grievance procedures, including “deadlines and other critical procedural rules[, ] because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. “[S]ubstantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Exhaustion must be completed “[e]ven where the ‘available' remedies would appear to be futile at providing the kind of remedy sought.” Id.; see Booth v. Churner, 532 U.S. 731, 740 (2001) (holding that, even where an inmate sought money damages and the grievance process did not permit such awards, exhaustion was still required, as long as there was authority to take some responsive action). However, notably, “[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable' and a court will excuse the prisoner's failure to exhaust.” Little, 607 F.3d at 1250; accord May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (“Administrative remedies are deemed unavailable if, among other things, ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'”); see also Ross v. Blake, 578 U.S. 1174, 1859-60 (2016) (stating that remedies are also deemed to be “unavailable, ” where prison officials are “unable or consistently unwilling to provide any relief, ” or where “no ordinary prisoner can make sense of what [the grievance process] demands”).
“Failure to exhaust is an affirmative defense; a plaintiff is not required to plead or demonstrate exhaustion in the complaint.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (quoting Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007)); accord Jones, 549 U.S. at 216. Rather, “the burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant.” Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). Thus, whether the exhaustion requirement has been met in a given case is not typically determined at the pleading stage. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see also May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019) (“[T]he PLRA exhaustion requirement is an affirmative defense, not a pleading requirement.”). That being said, in certain “rare cases, ” the court may dismiss a prisoner's claims, if “it is clear from the face of the complaint that the prisoner has not exhausted his administrative remedies.” Aquilar-Avellaveda, 478 F.3d at 1225; see, e.g., Darris v. McCall, No. 12-cv-02685-REB-CBS, 2013 WL 3381273, at *4 (D. Colo. July 8, 2013) (dismissing a prisoner's § 1983 complaint for failure to exhaust administrative remedies, where it was “clear, ” based on the dates set forth in the complaint, that the prisoner filed the lawsuit “the day after the alleged events took place, before pursuing any prison-mandated grievance procedures”). In evaluating whether such dismissal of a prisoner's complaint is warranted, “courts are obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.” Aquilar-Avellaveda, 478 F.3d at 1225-26 (cautioning that district courts “must exercise caution” when addressing exhaustion at the pleading stage, and observing that the determination as to “whether an inmate has exhausted his administrative remedies requires an understanding of the remedies available and thus likely would require information from the defendant as well as the inmate”); see also Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011) (observing that this obligation arises from the fact that an administrative remedy is not deemed to be “available” under the PLRA, where prison officials have obstructed the prisoner's attempts at exhaustion).
II. Whether Mr. Rivera Exhausted his Administrative Remedies
Here, in the Complaint, Mr. Rivera checked a series of boxes indicating that he had, in fact, exhausted his administrative remedies. (Compl. 16.) However, in the righthand margin directly next to those boxes, Mr. Rivera also wrote: “Started but immediately taken to state prison.” (Id.) Deputy Quintana argues that this statement amounts to an admission by Mr. Rivera that “he did not exhaust the administrative remedies available from the Pueblo County Jail.” (Mot. 3.) Defendant thus contends that it is clear from the face of the pleading that Plaintiff did not fully exhaust his administrative remedies. (Id. at 3, 5-6.)
Mr. Rivera, in his Response, concedes that he did not fully exhaust his administrative remedies prior to filing this lawsuit. (Resp. 1-2.) However, Plaintiff claims that when he attempted to invoke the grievance process at PCJ, he was immediately “transported in retaliation” to Bent County Correctional Facility, where he had “no access to Pueblo County's grievance system.” (Id. at 1-2.) Mr. Rivera argues that his failure to exhaust administrative remedies in this case should therefore be excused, because jail officials, by way of “intimidation and machination, ” deliberately obstructed his exhaustion attempts, causing his administrative remedies to become “unavailable.” (Id. at 2.)
Deputy Quintana counters that Mr. Rivera “provides no evidence to support this allegation beyond the allegation itself.” (Reply 4.) Defendant likewise contends that Plaintiff “fails to explain how the Pueblo County grievance procedure was allegedly unavailable to him after he was transferred to Bent County, ” and “fails to allege that he attempted to continue the Pueblo County grievance procedure from Bent County and that his attempt was denied.” (Id.) Deputy Quintana cites numerous cases for the proposition that a prisoner's transfer to another facility does not relieve him of the requirement to fully exhaust his administrative remedies. (Mot. 3-5; Reply 3-5.) However, all but two of the cases relied upon by Deputy Quintana addressed exhaustion within the context of a motion for summary judgment. As such, those cases are procedurally inapposite.
The two non-summary judgment cases cited by DefendantMedina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 2002), and Sims v. Kan. Dep't of Corr., No. 18-01259-EFM-KGG, 2020 WL 707989 (D. Kan. Feb. 12, 2020)-are equally unavailing, as they are both factually distinguishable from the present case. (Mot. 3-4.) In Medina-Claudio, the First Circuit affirmed the dismissal of a prisoner's complaint for failure to exhaust, and explicitly rejected the prisoner's argument that his administrative remedies were made “unavailable” when he was transferred to another facility. 292 F.3d at 34-36. However, the First Circuit's ruling was based almost entirely on its reading of the applicable grievance policy, which the prisoner specifically referenced in his own briefing. Id. at 35. In this case, neither party has referenced any portion of the applicable grievance procedures. As such, unlike the court in Medina-Claudio, this court is unable to determine from the present record whether administrative remedies were, in fact, unavailable to Mr. Rivera. See King v. Coleman, No. CIV S-04-1158 MCE KJM P, 2007 WL 2330767, at *3 (E.D. Cal. Aug. 13, 2007) (declining to decide exhaustion at the pleading stage, where the court lacked sufficient information regarding the applicable grievance procedure, and distinguishing the case from Medina-Claudio on that basis). Deputy Quintana also references Sims, in which the District of Kansas found no clear error or manifest injustice in its previous dismissal of an inmate's claims for failure to exhaust, and explicitly rejected the inmate's assertion that his transfer to another facility rendered his administrative remedies unavailable. 2020 WL 707989, at *4-5. Notably, however, the plaintiff in Sims did not allege either “that he attempted informal resolution or sought assistance in pursuing administrative remedies from any prison official, ” or “that he requested a grievance form and was refused that request.” Id. at *5 (“Absent any allegation that Sims sought redress through the administrative process, the Court cannot conclude that prison officials prevented, thwarted, or hindered his efforts.”). Here, by contrast, Mr. Rivera alleges that jail officials obstructed his exhaustion attempts. (Resp. 2; see Compl. 16.)
Having carefully considered the parties' respective arguments, the court does not find the resolution of the exhaustion issue, in Deputy Quintana's favor, to be appropriate at this stage of the proceedings. First, to the extent that Deputy Quintana argues that Mr. Rivera has failed to allege or prove the exhaustion of his administrative remedies, the United States Supreme Court has unequivocally held that “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216; see Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007) (observing that, in the wake of Jones, “it is no longer appropriate for the district court to require an affirmative showing of exhaustion at [the pleading] stage of the case”); see also Lax v. Corizon Med. Staff, 766 Fed.Appx. 626, 628 (10th Cir. 2019) (holding that a prisoner's failure to address exhaustion in his form complaint, at all, still did not make it “clear” that the prisoner failed to exhaust his administrative remedies, and observing that the complaint was “simply silent on the question”).
Further, accepting Mr. Rivera's allegations concerning exhaustion as true, and looking only to the four corners of his Complaint, the court cannot rule out the possibility that Mr. Rivera was prevented by PCJ officials from pursuing administrative relief. Without additional information concerning Mr. Rivera's attempts at exhaustion, or the applicable grievance procedure, the court is unable to definitively conclude on the pleadings that Mr. Rivera failed to exhaust his administrative remedies. Aquilar-Avellaveda, 478 F.3d at 1225 (cautioning that “only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies, ” and observing that “[t]he facts ordinarily pled in allegations concerning prison conditions frequently will not give a definitive answer as to whether a prisoner has completed his internal grievance process or whether he was thwarted in his attempted to do so”); see Harris v. Polis, No. 20-cv-02999-CMA-STV, 2021 WL 3024664, at *2 n.6 (D. Colo. June 23, 2021) (declining to decide exhaustion on a motion to dismiss, where the plaintiff “marked on his original prisoner complaint form that he did not do so, ” but “also asserted on that [same] form that his claims were not eligible for the administrative grievance process”); Michael v. Newton-Embry, No. CIV-10-1064-F, 2011 WL 4007335, at *4 (W.D. Okla. June 15, 2011) (finding dismissal of a prisoner's complaint for failure to exhaust to be inappropriate, where the complaint “did not identify the administrative processes open to [the prisoner] or concede the failure to properly perfect an administrative appeal”); c.f. Gallagher, 587 F.3d at 1068 (affirming the dismissal of a complaint for failure to exhaust administrative remedies, where the plaintiff “did not contest his failure to exhaust administrative remedies, nor did he contend he was prevented from pursuing administrative relief”).
On this record, then, Deputy Quintana has failed to meet his burden of proving the affirmative defense of failure to exhaust administrative remedies, solely from the face of Mr. Rivera's operative pleading. Aquilar-Avellaveda, 478 F.3d at 1225. Accordingly, Defendant's motion to dismiss should be denied.
WHEREFORE, for the foregoing reasons, this court respectfully RECOMMENDS that the “Motion to Dismiss” (Doc. No. 17) be DENIED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).