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Gillings v. Banvelos

United States District Court, D. Colorado

August 11, 2017

LT. BANVELOS; LT. YAGAR; and H. WALKER, Defendants.


          Marcia S. Krieger Chief United States District Judge.

         THIS 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 (#111).


         The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1331.


         The 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.

         Mr. Gillings, who appears pro se, [1] 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.

         The 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 library.

         That night, prison officers escorted Mr. Gillings to a “cage”[2] 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 provided.

         In the 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” to sleep.

         After 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.

         Based 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 action.


         Mr. 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.

         The 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.[3] The Defendants move to dismiss Mr. Gillings' second claim as moot.

         The 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.

         Mr. 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.

         As to 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 so.


         A. Standard of Review Applicable to the Objection to the Magistrate Judge's Recommendation

         Pursuant to Federal Rule of Civil Procedure 72(b), the Court reviews the objected-to portions ...

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