Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stevenson v. Cordova

United States District Court, D. Colorado

October 4, 2016

WILLIAM R. STEVENSON, Plaintiff,
v.
R. CORDOVA, in his individual and official capacities; D. NUNEZ, in his individual and official capacities; M. HOLLOWAY, in his individual and official capacities; K. TOPLISS, in his individual and official capacities; C. WILLIAMS, in his individual and official capacities; K. CLINKINBEARD, in his individual and official capacities; J. ESPINOZA, n his individual and official capacities; G. SULLIVAN, in his individual and official capacities; J. HANSON, in her individual and official capacities;[1]J. BUFMACK, in his individual and official capacities; M. BENAVIDEZ, in his individual and official capacities; and A. BELL, in his individual and official capacities; Defendants.

          MEMORANDUM OPINION REGARDING MOTIONS FOR SUMMARY JUDGMENT

          Craig B. Shaffer United States Magistrate Judge

         This Memorandum Opinion addresses the following motions: (1) Defendants Cordova, Nunez, Holloway, Topliss, Williams, Clinkinbeard, Espinoza, Bufmack, Benavidez, and Bell's Motion for Summary Judgment Based on Plaintiff's Failure to Exhaust Prison Administrative Remedies (doc. #117) (hereinafter the “Exhaustion Motion”) and (2) Defendants Cordova, Holloway, Williams, Clinkinbeard, Espinoza and Benavidez's Motion for Summary Judgment (doc. #118) (hereinafter the “Excessive Force Motion”), which were both filed on November 12, 2015. Plaintiff William R. Stevenson filed his Response to Defendants' Exhaustion Motion (doc. #146) on March 3, 2016, which was followed by Defendants' Reply (doc. #152) on April 14, 2016. Mr. Stevenson filed his Response to Defendants' Excessive Force Motion (doc. #147) on March 3, 2016, and Defendants tendered their Reply (doc. #153) on April 18, 2016.

         Also pending before the court are (3) Defendant Bell's Motion for Summary Judgment (doc. #119) and (4) Defendants Bufmack and Nunez's Motion for Summary Judgment (doc. #120), which were filed on November 12, 2015. After requesting and receiving multiple extensions of time to file his client's response briefs, see doc. #127, #128, #129, #130, #135 and #136, Mr. Stevenson's counsel moved on March 3, 2016 for Leave to File Out-Of-Time his Responses to Defendants' Four Outstanding Motions for Summary Judgment (doc. #145). In that motion, Plaintiff's counsel explained that health issues had prevented him from complying with previously set deadlines, and asked the court to accept the “four responses to Defendants' outstanding motions for summary judgment . . . filed contemporaneously with this motion.” The docket indicates, however, that counsel did not include responses to the summary judgment motions filed by Defendants Bell, Bufmack and Nunez. That oversight was noted in Defendants' Response in Opposition to Plaintiff's Motion for Leave to File Out-Of-Time (doc. #148) submitted on March 14, 2016, but was met with silence from Mr. Stevenson's attorney. In an Order issued on March 17, 2016, this court granted Plaintiff's Motion for Leave (doc. #145) and accepted the two response briefs filed on March 3, 2016 (doc. #146 and #147). However, in the same Order, the court indicated that no further response briefs from Mr. Stevenson would be accepted.

         The parties consented (doc. #85, #86 and #88) to the magistrate judge's jurisdiction to “conduct all further proceedings in this civil action, including trial, and to order the entry of a final judgment, ” pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. Accordingly, the case was referred to this court on March 3, 2015. After carefully considering the parties' briefs and attached exhibits, the entire case file, and the applicable law, this court decided the aforementioned motions and briefly explained the bases for its rulings during a hearing on September 29, 2016. This Memorandum Opinion elaborates upon those rulings from the bench.

         PROCEDURAL BACKGROUND

         Mr. Stevenson commenced this litigation on February 28, 2014 with the filing of a pro se Complaint, [2] pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, that asserted constitutional violations by 15 staff members at the Colorado Territorial Correctional Facility in Canon City, Colorado. Mr. Stevenson alleges in his Complaint that on February 29, 2012, Defendants Espinoza, Clinkinbeard, Hanson, Benavidez, and Sullivan subjected him to excessive force by:

excessively tasing him five times in rapid succession; by applying handcuffs more tightly than necessary; by dropping him on his face from approximately 2-3 feet in the air after he was handcuffed, shackled and otherwise subdued; by then pressing his face hard into the floor grinding his teeth on the concrete; by intentionally bending his wrist and pulling his arms while handcuffed and strapped to a back board; and by ignoring his repeated and reasonable complaints about the cuffs being too tight and refusing his requests to loosen the same.[3]

See Complaint (doc. #1) at 10. Mr. Stevenson further asserts that Defendants Holloway, Williams, and Cordova were present during the use of excessive force but failed to intervene. Id. at 20. Plaintiff insists that Defendants' use of force was unjustified because there was no emergency situation and no threat to anyone's safety. Id. at 19.

         The Complaint also claims that Defendants Cordova, Holloway, and Clinkinbeard conspired to cover up this Eighth Amendment violation by falsely initiating a prison disciplinary action against Plaintiff for assault, and that Defendants Nunez, Bufmack, and Holloway refused to accurately document the extent of his injuries. On March 15, 2012, Defendant Cordova issued Plaintiff an incident report for assault and for advocating and creating a facility disruption, which purportedly contained several false allegations concerning Plaintiff's behavior during the use of force incident. Defendant Topliss, acting as a disciplinary hearing officer, found Plaintiff guilty of the unsubstantiated charges. Finally, Plaintiff alleges that Defendant Bell, Plaintiff's case manager, and Defendant Wolfe, the facility's grievance coordinator, interfered with his efforts to exhaust his administrative remedies.

         On May 20, 2015, Magistrate Judge Boyd Boland entered an Order dismissing Defendant Wolfe from this action and directing that the claims against Defendants Cordova, Nunez, Holloway, Topliss, C. Williams, H. Williams, Clinkenbeard, Espinoza, Sullivan, Hanson, Soto, Benavidez, and Bell be drawn to a presiding judge.

         The Complaint, minus the dismissed defendants, [4] remains the operative pleading in this action and asserts two claims for relief. The first claim alleges the “use of excessive force & deliberate indifference” in violation of the Eighth Amendment. The second claim asserts a “conspiracy to violate civil rights under the Due Process Clause of the Fourteenth Amendment.”

         ANALYSIS

         “Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Comm'rs, 637 F.Supp.2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted).

         The burden of persuasion under Rule 56 requires the moving party to “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. v. Catrett, 477 U.S. 317, 322-23 (1986)). A fact is “material” if under the substantive law it could have an effect on 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, Inc., 477 U.S. 242, 248 (1986)). While the moving party bears the initial burden of showing that there is an absence of any issues of material fact, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not negate the non-movant's claim. 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 non-moving party's claim, the non-moving party may not rest upon his pleadings, but must come forward with specific facts showing that there is 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).

         To defeat a properly supported motion for summary judgment, there must be evidence upon which the jury could reasonably find for the plaintiff. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“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.'”). Conclusory allegations will not create a genuine issue of material fact necessitating trial. Dobson v. City & Cty. of Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999), aff'd, 13 F. App'x 842 (10th Cir. 2001). Cf. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990), rehearing denied (Jan. 29, 1991) (acknowledging “conclusory allegations without specific supporting facts have no probative value”). Similarly, evidence that is not significantly probative and immaterial factual disputes will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo. 1998), aff'd, 185 F.3d 873 (10th Cir. 1999). The demonstration of “some metaphysical doubt as to the material facts” is not sufficient to establish a genuine issue of material fact. Forman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997) (quoting Matsushita, 475 U.S. at 957). After construing the factual record and drawing all reasonable inferences therefrom in the light most favorable to the non-moving party, Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996), rehearing denied (Sep. 5, 1996), the court ultimately 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. “The very purpose of a summary judgment action is to determine whether trial is necessary.” White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).

         Mr. Stevenson failed to respond to the summary judgment motions filed by Defendants Bell, Bufmack and Nunez. However, summary judgment may not be granted merely because the non-moving party failed to file a response. See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002). As the Tenth Circuit has explained, “summary judgment is ‘appropriate' under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c). If the evidence produced in support of the summary judgment motion does not meet this burden, ‘summary judgment must be denied even if no opposing evidentiary matter is presented.'” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61 (1970)) (emphasis added). But, “by failing to file a response within the time specified . . ., the nonmoving party waives the right to respond or to controvert the facts asserted in the summary judgment motion.” Reed, 312 F.3d at 1195.

         A. Defendants' Exhaustion Motion

         Defendants Cordova, Nunez, Holloway, Topliss, Williams, Clinkinbeard, Espinoza, Bufmack, Benavidez, and Bell have moved for summary judgment on the ground that Mr. Stevenson failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 (“PLRA”). Defendants contend that Plaintiff failed to exhaust his administrative remedies by not properly complying with Colorado Department of Corrections (“CDOC”) Administrative Regulation 850-04 (“AR 850-04") and, more specifically, by providing multiple “Step 3" grievance forms, by failing to properly incorporate “all issues and remedies” in subsequent steps in the grievance process, and by exceeding mandated page limitations. According to Defendants, these procedural errors preclude a finding that Mr. Stevenson properly exhausted his administrative remedies.

         Plaintiff Stevenson argues, to the contrary, that the record before the court reveals genuine issues of material facts as to:

1) whether Mr. Stevenson submitted grievances in conformity with applicable Administrative Regulations at all three stages of the grievance process; 2) whether the grievances Mr. Stevenson submitted were procedurally defective; [and] 3) whether officials' mishandling of Mr. Stevenson's grievances or officials' failure to comply with their own obligations under the AR of Mr. Stevenson's grievances made administrative remedies “unavailable” to Mr. Stevenson.

See Plaintiff's Response to Defendants' Exhaustion Motion, at 1.

         A failure to exhaust administrative remedies constitutes an affirmative defense which must be pled and proved. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). Because Defendants have submitted evidence to support their exhaustion arguments, the burden shifts to Mr. Stevenson to show, by tendering competent evidence, that summary judgment is not proper. If he fails to demonstrate with specificity the existence of a disputed material fact, the affirmative defense bars his claim, and Defendants are entitled to summary judgment as a matter of law. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). In short, this court must determine whether Mr. Stevenson has come forward with specific facts to demonstrate a genuine issue of material facts on the issue of whether he properly complied with the PLRA's exhaustion requirement.

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The “PLRA's exhaustion requirement applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Booth v. Churner, 532 U.S. 731, 734, 741 (2001) (PLRA requires exhaustion in all matters regardless of remedy sought and availability of remedy at the agency level). Even where the “available” remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citing Booth, 532 U.S. at 740 (holding that even where an inmate sought money damages and the grievance process did not permit such awards, exhaustion was required as long as there was authority to take some responsive action)).

         The PLRA's requirement that an inmate exhaust all available administrative remedies before initiating suit is mandatory. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”). See also Jones v. Bock, 549 U.S. 199, 210-212 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). “To exhaust administrative remedies an inmate must properly comply with grievance procedures; substantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). The administrative review process that must be completed to properly comply with applicable grievance procedures is “not defined by the PLRA, but [rather] by the prison grievance process itself.” Jones, 549 U.S. at 218.

         The CDOC has a grievance procedure available to inmates which entails a formal three-step written grievance procedure. See Affidavit of Anthony DeCesaro (doc. #117-1) and AR 850-04 (doc. #117-2), both attached to Defendants' Exhaustion Motion.[5] Administrative Regulation 850-04 requires an inmate to file a Step 1 grievance, a Step 2 grievance, and a Step 3 grievance. See AR 850-04 Section IV.F.2 (doc. #117-2, at page 5 of 15). The inmate must state in writing the “basis for the grievance and the relief requested in the space provided on the [grievance form].”[6] See AR 850-04 Section IV.C.1.b. (doc. #117-2, at page 3 of 15).

1. Each grievance shall address only one problem or complaint and include a description of the relief requested. Problems that arise from the same incident or set of facts shall be grieved in one grievance, even though it may involve multiple DOC employees, contract workers, or volunteers.
2. A substantive issue or remedy may not be added at a later step if it has not been contained in each previous step of that particular grievance. All issues and remedies contained in the original grievance must be incorporated into each subsequent step of the grievance. Failure to renew each element of the complaint and/or requested relief in subsequent steps shall be deemed a waiver of those elements and/or requested remedy.

See AR 850-04 Section IV.D.1 and 2 (doc. #117-2, at page 4 of 15).

         A Step 1 grievance must be filed no later than thirty calendar days after the date the prisoner knew, or should have known, of the facts giving rise to the grievance. See AR 850-04 Section IV.H.1.a (doc. #117-2, at page 6 of 15). When an offender wishes to proceed to the next step in the process, the offender shall file the next step within five calendar days after receiving the response. See AR 850-04 Section IV.H.1.c (doc. #117-2, at page 6 of 15). In the event the time limit concerning any step of the process expires without a response, the offender may proceed to the next step within five calendar days of the date the response was due. See AR 850-04 Section IV.H.1.d (doc. #117-2, at page 6 of 15).

         A Step 3 grievance is the final step in the grievance process and the decision of the grievance officer on a Step 3 grievance constitutes final agency action. See AR 850-04 Section IV.G.1.c.4 (doc. #117-2, at page 5 of 15).

1. The grievance officer may deny the grievance substantively. When a grievance is denied after a review of the substantive issue, the grievance officer shall certify in the response that the offender has exhausted the grievance process.
2. The grievance officer may deny the grievance on procedural grounds, without addressing the substantive issues, if the grievance is incomplete, inconsistent with a former step, 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 shall certify in the response that the offender has not exhausted the grievance process.

See AR 850-04 Section IV.G.1.c.1 and 2 (doc. #117-2, at page 5 of 15) (emphasis in original).

         1. Undisputed Facts

         The record before the court discloses the following undisputed facts. Mr. Stevenson filed a Step 1 grievance on March 27, 2012, 27 days after the alleged incident involving excessive force. In his Step 1 grievance, Mr. Stevenson stated that he was “dog-piled by several officers, ” “tazed 5 times in rapid succession by Sgt. Espinoza and I believe by one other officer, ” and subjected to excessive force by being handcuffed too tightly, by having his arms pulled forcefully, and by being dropped on his face while his hands were cuffed. The Step 1 grievance also asserted that Plaintiff had been subjected to unreasonable and excessive force in violation of the Eighth Amendment and that the “following staff were present: Capt. Cordova, Lts. Holloway and Williams, Sgts. Benevedes, Clinkbeard, Espinosa and Sullivan, and C/Os Hanson and Moschetti.”[7] See Exhibit A-2 (doc. 117-3) attached to Defendants' Exhaustion Motion.

         Plaintiff's Step 1 grievance was received on March 29, 2012.

The response to Mr. Stevenson's Step 1 grievance is dated May 11, 2012.[8] That response, apparently prepared by Donald Nunez, concluded that The findings of the Use of Force [Plaintiff] was involved in states the amount of force utilized in this incident was necessary, justified, and appropriate. It was your actions Mr. Stevenson, which caused the staff to exercise a level of control needed to control and restrain you during the incident in which you were verbally abusive and physically resistive. After reviewing all the documentation associated with this incident, I have determined your complaint to be without merit or creditability.

See Exhibit A-3 (doc. 117-4) attached to Defendants' Exhaustion Motion.

         Mr. Stevenson submitted a Step 2 grievance on May 4, 2012, in which he noted that “[o]n March 29, 2012, I submitted a staff conduct grievance to Case Manager Harding . . . regarding the excessive use of force occurring on February 29, 2012. . . . It has been well over 30 days and there has been no response.” Plaintiff, in his Step 2 grievance, specifically invoked AR 850- 04.IV.D.2 and “renew[ed] and incorporate[d] all issues and remedies that were contained in the original grievance.” See Exhibit A-4 (doc. 117-5) attached to Defendants' Exhaustion Motion. This Step 2 grievance apparently was received by DOC personnel on May 7, 2012.

         On May 18, 2012, Mr. Stevenson submitted an additional grievance form that he denominated for “information only.” In the narrative portion of the form, Plaintiff explained:

Just for the record, the response to this [Step 1] grievance was late. The grievance was submitted to Case Manager Harding on March 29, 2012 and was received by the grievance coordinator on April 5, 2012. The [Step 1] grievance was not responded to until May 11, 2012, well over the 30 day limit. There was no notice of delay. As stated in my Step 2, since there was no timely response, as a matter of course pursuant to AR 850-04(h)(1)(d), the Step 2 was timely submitted to the next level, and pursuant to AR 850-04(D)(2), all issues and remedies that were contained in the original grievance were renewed and incorporated into the Step 2, which was submitted to Case Manager Bell on May 7, 2012.

See Exhibit A-6 (doc. 117-7) attached to Defendants' Exhaustion Motion. Case Manager Bell apparently received the “information only” submission on May 21, 2012.[9]

         The actual Step 2 grievance dated May 4, 2012 generated a response from Lance Miklich on June 1, 2012 which in turn was received by Mr. Stevenson on June 18, 2012. Mr. Miklich concluded that Plaintiff's “claims of excessive force was not founded through the review process . . . . [and] I have found no evidence to support your allegations. . . . Your choices and actions resulted in events occurring to ensure the safety of employees and your self.” See Exhibit A-5 (doc. 117-6) attached to Defendants' Exhaustion Motion.

         Plaintiff submitted a Step 3 grievance form on June 14, 2012, in which he wrote “[i]t has been over 30 days since your receipt of my Step 2 Grievance regarding the use of excessive force and no reply has been received and no notice of delay.” Mr. Stevenson stated that “all issues and remedies that were contained in the original Grievance are renewed and incorporated herein.” He also stated that “since I have the burden of proof, I submit the attached affidavit in support of my allegations” and asked the grievance officer to also “[s]ee both Clinical Services Anatimical (sic) Forms, dated 2/29/12 (2 pages) and 3/7/12 (1 page), and Conduct Complaint (Form 300-16 RDD, dated 3/14/12 and submitted to Mrs. Mary Ann Aldrich on 3/13/12, incorporated herein.”[10] See Exhibit A-7 (doc. 117-8) attached to Defendants' Exhaustion Motion. The Step 3 grievance bears the signature “A Bell” but has the printed name “S. Cadwallader.” The box bearing the legend “Date received” is blank.

         On June 21, 2012, Grievance Officer Anthony DeCesaro responded to Mr. Stevenson's Step 3 grievance and concluded that Plaintiff had not exhausted his administrative remedies “in this matter based upon your failure to satisfactorily request allowable relief.” According to Mr. DeCesaro,

The grievance procedure is outlined in Administrative Regulation 850-04, it states in pertinent part that, “All issues and remedies contained in the original grievance must be incorporated into each subsequent step of the grievance. Failure to renew each element of the complaint and/or requested relief in subsequent steps shall be deemed a waiver of those elements and/or requested relief.” You have failed to follow the grievance procedure by not renewing your complaint and your remedy in the Step 3 grievance as required; therefore this grievance is procedurally denied. The time constraints outlined in AR #850-04 are now expired regarding these events, so there will be no further review of this matter.

See Exhibit A-8 (doc. 117-9) attached to Defendants' Exhaustion Motion (emphasis in original).

         On June 26, 2012, Mr. Stevenson responded to Grievance Officer DeCesaro's June 21, 2012 memorandum. In a lengthy recitation of the procedural history surrounding his grievance, Plaintiff explained

You state that you have received my Step 3 grievance. What you have reviewed and responded to was not my Step 3 grievance, but only an “informational” which I submitted after receiving the late Step 2, in which I explained and clarified that the Step 1 was late and that I had proceeded to the next Step.
My Step 3 was submitted to Case Manager Bell on June 15, 2012 after there had been no timely response to the Step 2. And the Step 3 did indeed renew and incorporate all issues and remedies that were contained in the original Step 1 (as all my grievances do), and was accompanied by my sworn affidavit which was notarized by Case Manager Jordon, and I incorporated by reference the two Clinical Service Anatomical forms (dated 2/29/12 and 3/7/12 respectively) and the Conduct Complaint form (300-16 RDD) dated 3/14/12.
The computer shows that you did not receive my Step 2 grievance until 6/19/12. Further you state that you have received my Step 3, yet you attach not the Step 3, but the “informational” I submitted to Case Manager Bell on May 21, 2012. You also state that failure to renew each element of the complaint and/or request relief in subsequent steps shall be deemed a waiver of those elements and/or requested remedy. Based on this statement, it is apparent that you are not responding to my Step 3 grievance, because in my Step 3 grievance, I specifically stated, “Pursuant to AR 850-04 (D)(2), all issues and remedies that were contained in the original grievance are renewed and incorporated herein.”

See Exhibit A-9 (doc. 117-10) attached to Defendants' Exhaustion Motion (emphasis in original).

         Mr. DeCesaro responded to Mr. Stevenson on July 26, 2012. Mr. DeCesaro declined Plaintiff's request to reconsider his earlier declination. According to Mr. DeCesaro,

There are three steps to the grievance process. Per AR-850-04 D.2. All issues and remedies contained in the original grievance must be incorporated into each subsequent step of the grievance. You did not do that. Furthermore, I have yet to receive a step 3 from you. I did receive two step 2s, one labeled as information only. It was processed as a Step 3. There is no such think as an “Information Only” step in the grievance process.
I will not reconsider the Step 3 grievance response as I have no authority to do (sic) under Administrative Regulation 850-04. The decision of the Step 3 Grievance Officer is the final decision in this matter and there are no appeals from that decision. I cannot reopen any grievance.
If there were missing evidence or inaccurate information presented, those matters should have been cured, prior to the Step 3 filing.

See Exhibit A-10 (doc. 117-11) attached to Defendants' Exhaustion Motion (emphasis in original).

         In another letter dated September 25, 2012, Mr. DeCesaro responded to further communications from Mr. Stevenson.

I have reviewed your Step 3 response and again find it is not in compliance with AR 850-04. As stated in the AR, “all issues and remedies contained in the original grievance must be incorporated into each subsequent step of the grievance. Failure to renew each element of the complaint and/or requested relief in subsequent steps shall be deemed a waiver of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.