United States District Court, D. Colorado
TERRANCE M. FARRELL III, Plaintiff,
CELIA SCHWARTZ, Defendant.
ORDER ON OBJECTIONS TO MAGISTRATE JUDGE’S RECOMMENDATION
Marcia S. Krieger United States District Court
THIS MATTER comes before the Court on the Magistrate Judge’s Recommendation (#64) that Defendant’s Motion to Dismiss (#29) be granted and that all claims dismissed. The Plaintiff filed Objections (#66) and the Defendants responded to those Objections (#68).
Pro se Plaintiff, Terrance M. Farrell III, was an inmate at the Buena Vista Correctional Facility (BVCF) during the time pertinent to this action. He asserts one claim for First Amendment retaliation against Defendant Celia Schwartz, a law librarian at the BVCF.
The relevant facts or factual allegations are as follows. The CDOC employs an administrative grievance process that all inmates claiming constitutional violations against correctional officers or the CDOC must follow before filing a lawsuit. The CDOC grievance process is set forth in Administrative Regulation No. 850-04 (“AR-850”). An inmate is first given the opportunity to informally resolve a complaint. If the inmate is not satisfied with the informal resolution, he or she must proceed to the three-step Formal Grievance and Response Procedure. See AR 850-04, Section IV. C. 2. The formal process involves a Step 1 grievance, an appeal at Step 2, and eventually, a final appeal at Step 3. See AR 850-04, Section IV. C. 2.
On August 12, 2014, Mr. Farrell used a law library computer to create a document that he considered to be an “administrative communication . . . related to a legal matter.” Complaint (#10), 21, ¶ 4. Ms. Schwartz deleted the file because she did not consider it a legal document. Mr. Farrell made two requests for informal resolution regarding this incident and other concerns related to Ms. Schwartz’s actions. On September 9, Mr. Farrell submitted an informal resolution form in which he complained that Ms. Schwartz neglected to schedule, or lost, his requests for time in the law library. On September 20, he submitted a second request for an informal resolution, complaining that Ms. Schwartz copied and deleted his legal documents. The Complaint does not state the outcome of these requests.
On September 30, 2014, Ms. Schwartz filed a disciplinary report, in which she claimed that Mr. Farrell threatened her. This report was dismissed by the disciplinary committee. On October 19, 2014, Mr. Farrell filed a Step 1 grievance alleging that after he used the administrative remedy system, Ms. Schwartz filed a “frivolous COPD report for ‘threats, ’” in unlawful retaliation for his exercise of his First Amendment rights. See #47-1, page 5. Mr. Farrell initiated this lawsuit five days later, on October 24, 2014. There is no evidence that he sought informal resolution or that he completed Steps 2 and 3 of the grievance process.
Ms. Schwartz moved to dismiss Mr. Farrell’s remaining claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6), and Mr. Farrell responded (#39). On referral from this Court, the Magistrate Judge recommended that the Motion to Dismiss be granted, and Mr. Farrell objects.
II. Standard of Review
The Court reviews objected-to portions of a Magistrate Judge’s recommendation de novo. See Fed. R. Civ. P. 72(b)(3); United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Because Mr. Farrell appears pro se, the Court reviews his pleadings (including his Complaint and objections) liberally, and holds them to a less stringent standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Trackwell v. United States Government, 472 F.3d 1242, 1243 (10th Cir. 2007).
Ms. Schwartz’s Motion to Dismiss (#29) requests that Mr. Farrell’s claim against Ms. Schwartz be dismissed under Fed.R.Civ.P. 12(b)(1) because Mr. Farrell failed to exhaust his administrative remedies before bringing this suit. The Magistrate Judge agreed, finding that although Mr. Farrell initiated the administrative grievance process, he did not complete it before filing this lawsuit. This Court agrees.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e (the PLRA) requires inmates to exhaust all available administrative remedies before filing a civil lawsuit. See 42 U.S.C. § 1997e(a). This requirement is mandatory; the Court lacks jurisdiction over claims that have not been exhausted. See Jones v. Bock, 549 U.S. 199, 219-20 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). In determining jurisdiction under Rule 12(b)(1), the Court may consider documents outside the complaint; wide discretion is afforded to the court to examine affidavits and other evidence to resolve a jurisdictional dispute. Wheeler v. Hurdman, 825 F.2d 257, 259 at n. 5 (10th Cir. 1987).
To exhaust administrative remedies, an inmate-plaintiff must comply with the full administrative process. Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010). Before bringing a claim in district court, an inmate must not only commence the CDOC grievance process, but must also complete it. Id.; Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). To complete the CDOC process, as ...