United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 60] issued on May 8, 2014. The magistrate judge recommends that the Court grant the Motion for Summary Judgment [Docket No. 40] filed by defendant Charles Daniels,  deny the Motion for Default Judgment [Docket No. 56] filed by plaintiff Corey Burgess, and dismiss plaintiff's complaint without prejudice. Docket No. 60 at 15.
On June 20, 2014, plaintiff filed two documents. The first is entitled "Objections to Magistrate's Order Granting Defendant's Motion for Summary Judgment and Denying Plaintiff's Motion for Entry of Default Judgment" (the "objection") and is 56 pages in length. See Docket No. 67 at 1-45; Docket No. 67-1 at 1-11. The second is entitled "Reply to Defendant's Motion for Default Judgment, Alternatively Objections to Magistrates [sic] F/R" (the "reply") and is 31 pages in length. See Docket No. 67-1 at 12-43. The Court will consider each filing in turn.
Plaintiff's objection is timely. See Docket No. 65. However, even taking into account the fact that plaintiff's filing is handwritten, plaintiff's 56 page objection clearly exceeds the page limits imposed by this Court's Practice Standards. See Practice Standards (Civil cases), Judge Philip A. Brimmer § III.A ("All... objections (including objections to the recommendations or orders of United States Magistrate Judges)... shall not exceed fifteen pages.... Replies shall not exceed ten pages."). Thus, the first issue is whether plaintiff's objection should be stricken for failure to comply with this Court's Practice Standards. Plaintiff, as a pro se litigant, is not excused from complying with the Court's Practice Standards. Nonetheless, in light of plaintiff's pro se status, the Court must liberally construe his filings. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991). In this case the Court finds that striking plaintiff's filing in its entirety is too harsh a sanction for violating this Court's Practice Standards.
Given that plaintiff has filed a timely objection, the Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). However, while plaintiff's objection was timely, "a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue of de novo review by the district court...." United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added). To be sufficiently specific, an objection must "enable the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." See id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings").
Plaintiff's objection raises several arguments that do not concern the Recommendation currently before the Court and do not trigger the right to de novo review under Rule 72(b)(3). For example, plaintiff seeks to relitigate issues already decided in the Order to Dismiss in Part and Draw Case to a District Judge and Magistrate Judge [Docket No. 17]. See, e.g., Docket No. 67 at 1-17, 31. Plaintiff asserts that the magistrate judge improperly granted defendant leave to file a motion for summary judgment on the issue of failure to exhaust administrative remedies [Docket No. 39] and that the magistrate judge erred in resolving other matters that do not bear any relation to the Recommendation. See, e.g., Docket No. 67 at 24-27, 31. Plaintiff argues that the magistrate judge, during a February 20, 2014 status conference, and the district court were biased against plaintiff, but fails to cite specific examples relating to the Recommendation. Id. at 23-26, ¶¶ 35, 39. Plaintiff makes several arguments related to the merits of his claims, which are not currently at issue. See, e.g., id. at 23, 29. Other objections are too general so as to identify specific issues for de novo review. See, e.g., Docket No. 67 at 30, ¶ 45 ("Defendants failed to properly support its assertion of fact and fails to properly address Plaintiff's assertion(s) of facts, as required by Rule 56(c)."). To the extent plaintiff fails to properly object to issues raised by the Recommendation, plaintiff's objection is overruled.
Plaintiff argues that he was not given an opportunity to file a response to defendant's motion for summary judgment. Docket No. 67 at 26-28. However, plaintiff fails to take into account the fact that his response to defendant's motion for leave to file a summary judgment motion incorporated substantive responses to defendant's motion for summary judgment, which was attached to defendant's motion for leave to file, and also the fact that plaintiff filed an affidavit in support of his opposition to defendant's summary judgment motion that same day. See Docket Nos. 35, 36. Moreover, plaintiff does not indicate what additional arguments he was precluded from raising. The Court does not find that plaintiff was prohibited from meaningfully responding to defendant's motion for summary judgment and will overrule that aspect of plaintiff's objection.
Ultimately, however, the Court need not parse plaintiff's voluminous objection to determine whether it is sufficient to preserve de novo review. Even under that standard, the Court finds no error in the Recommendation's conclusion that plaintiff failed to exhaust his administrative remedies.
The Prison Litigation Reform Act ("PLRA") directs that "[n]o action shall be brought with respect to prison conditions... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement is an affirmative defense, which defendant bears the burden of proving. Jones v. Bock, 549 U.S. 199, 216 (2007); Roberts v. Barreras, 484 F.3d 1236, 1240-41 (10th Cir. 2007). A remedy is not exhausted if the prisoner fails to follow prison procedures for pursuing administrative remedies. Woodford v. Ngo, 548 U.S. 81, 95 (2006). The Supreme Court has interpreted the PLRA as requiring prisoners "to exhaust prison grievance procedures before filing suit. " Jones v. Bock, 549 U.S. 199, 202 (2007) (emphasis added). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Id. at 211. This requirement is consistent with the purpose of the PLRA to "eliminate unwarranted federal-court interference with the administration of prisons" and "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)). Exhaustion of administrative remedies under the PLRA is a question of law for the Court to decide. Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010).
Plaintiff's sole remaining claim (claim three) in this case is that defendants violated his Fifth Amendment right to due process by interfering with plaintiff's ability to access the administrative grievance process related to an alleged assault that took place on November 8, 2012 while he was at the Federal Transfer Center in Oklahoma City, Oklahoma. Docket No. 17 at 6. After the alleged assault, the Bureau of Prisons transported plaintiff to the United States Penitentiary in Florence, Colorado ("USP-Florence"). Id. On November 16, 2012, plaintiff arrived at USP Florence from Oklahoma. Docket No. 40-1 at 5. Plaintiff claims that defendant, after plaintiff arrived at USP-Florence, was aware that plaintiff did not have access to the documents necessary for him to initiate the administrative grievance process while he was in transit to USP-Florence, yet defendant nevertheless denied AR 715831, plaintiff's administrative remedy request ("AR"), as untimely. Docket No. 17 at 6; Docket No. 1 at 25; see also Docket No. 67 at 33 ("Plaintiff's Bivens action is pursuant to his attempts to exhaust administrative remedies from incident of assault/battery/denial of medical treatment [at USP Florence], which arose at FTC Oklahoma.").
In order to determine whether plaintiff has exhausted his administrative remedies as to his third claim, the Court will first identify plaintiff's administrative remedy requests that are both (1) exhausted and (2) were initiated after arriving at USP Florence, but exhausted before this suit was filed on August 14, 2013. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) ("inmate who begins the grievance process but does not complete it is barred from pursuing a... claim under [the] PLRA for failure to exhaust his administrative remedies.").
Defendant submits a declaration from Kara Lundy, senior attorney at the BOP, who states that she is familiar with the four levels of the administrative grievance procedure and has access to records of administrative remedy requests submitted by inmates and maintained in the BOP's national database. Docket No. 40-1 at 1. Ms. Lundy attaches to her declaration a list of the 186 administrative remedy requests that plaintiff has filed while an inmate in the BOP. See id. at 15-109. Her declaration includes a table of those administrative remedy requests that ...