United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION TO DISMISS THE
S. Krieger Chief United States District Judge.
MATTER comes before the Court on the Magistrate
Judge's April 12, 2017 Recommendation
(#110) that the Defendant's Motion to
Dismiss and for Summary Judgment (#84) be
granted and the Plaintiff's timely filed Objection
Court exercises jurisdiction over this matter pursuant to 28
U.S.C. § 1331.
Court offers a brief summary of the facts here and elaborates
as necessary in its analysis. All evidence is construed most
favorably to Mr. Gillings.
Gillings, who appears pro se,  is currently
incarcerated in Florida, but previously had been incarcerated
in the United States Penitentiary in Florence, Colorado. On
May 20, 2012, while at the United States Penitentiary, Mr.
Gillings' cellmate informed him and prison officials that
demons almost caused him to kill Mr. Gillings in his sleep.
Prison officials removed Mr. Gillings from the cell, and Lt.
Yagar placed him in an unoccupied cell for the night.
next day, Lt. Banvelos escorted Mr. Gillings to a different
cell occupied by Ellis Rosado. Mr. Gillings refused to share
the cell with Mr. Rosado because Mr. Rosado had been
assaulted by Mr. Gillings' former cellmate and Mr.
Gillings feared that Mr. Rosado would retaliate against him.
Instead, Mr. Gillings asked to return to the unoccupied cell.
Lt. Banvelos refused and took Mr. Gillings to the law
night, prison officers escorted Mr. Gillings to a
“cage” outside the prison's special housing
unit (“SHU”). He was given a mattress, pillow,
blanket, a bottle in which to urinate, a bag in which to
defecate and was locked in for the night. During the night,
Mr. Gillings asked for an additional blanket, which was
morning, Mr. Gillings was escorted to the law library and
later to the multipurpose room. He told Lt. Burton that he
had not bathed, had urinated in bottles, and had defecated in
bags even though there was an unoccupied cell available. Lt.
Burton allowed Mr. Gillings to shower and use the restroom,
but Mr. Gillings was then returned to the “cage”
spending a second night in the “cage”, Mr.
Gillings was taken to the multipurpose room. He asked Lt.
Burton if he could sleep in the unoccupied cell. His request
was denied, but he was allowed to sleep in the multipurpose
room. The following day, Mr. Gillings agreed to share a cell
with Mr. Rosado.
on these events, Mr. Gillings submitted an informal
administrative grievance to prison officials. When he did not
receive a response, he filed a formal administrative
grievance with the warden. Again, he received no response.
Over the course of approximately two years, he filed
additional administrative grievances and sent various letters
complaining of this incident. He states that he never
received a response from local officials, and after being
told by regional and national officials that he need to file
his grievances with his local officials, he filed this
Gillings asserts two claims. His first claim seeks an award
of monetary damages against Lt. Banvelos and Lt. Yagar for
violation of his Eighth Amendment rights. The second claim
seeks mandatory injunctive relief in the form of a sentence
reduction or restoration of good-conduct time that he lost as
a result of an incident report that he contends was false.
Defendants have included several requests in their motion.
(#84). With regard to Mr. Gillings'
first claim for relief, they seek dismissal due to failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
In addition, they seek dismissal under the doctrine of
qualified immunity. They also seek summary judgment due to
Mr. Gillings failure to exhaust his administrative remedies
and failure to bring this action within the period specified
in the applicable statute of limitation. The Defendants
move to dismiss Mr. Gillings' second claim as moot.
Court referred the motion to the Magistrate Judge for a
recommendation. On April 12, 2017, the Magistrate Recommended
(#110) that Mr. Gillings' first claim be
dismissed for failure to exhaust administrative remedies and
that Mr. Gillings' second claim be dismissed as moot.
Gillings timely filed his Objection (#111)
to the Magistrate Judge's Recommendation. He nominally
asserts sixteen factual objections to the dismissal of his
first claim but none as to the second claim. There being no
objection to dismissal of the second claim and no clear
error, the Court adopts the Magistrate Judge's
Recommendation in that regard.
the first claim, Mr. Gilling's objections fall into two
categories. First, he argues that the evidence shows that he
exhausted his administrative remedies. Second, to the extent
that he did not exhaust all available remedies, he argues
that his failure to exhaust was excused because officials
working for the Bureau of Prisons thwarted his ability to do
Standard of Review Applicable to the Objection to the
Magistrate Judge's Recommendation
to Federal Rule of Civil Procedure 72(b), the Court reviews
the objected-to portions ...