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Carbajal v. Keefer

United States District Court, D. Colorado

October 1, 2017

DEAN CARBAJAL, Plaintiff,
v.
ANDREW KEEFER, in his individual capacity, Defendant.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Deputy Keefer's Motion for Summary Judgment [Docket No. 293].[1] The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Because plaintiff is proceeding pro se, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

         I. BACKGROUND[2]

         On December 8, 2010, plaintiff Dean Carbajal was in the custody of the Denver Sheriff Department (“DSD”) at a Denver City and County courthouse before the start of a trial. Docket No. 293-1 at 1. According to a report filed on December 8, 2010 by defendant Andrew Keefer, a DSD deputy, defendant allowed plaintiff several opportunities to put on his tie before taking him to the courtroom, but, after plaintiff began the process again, defendant instructed plaintiff to leave the cell, which plaintiff refused to do. Id. Defendant attempted to escort plaintiff from the cell, but plaintiff “violently pulled his arm away . . . while screaming ‘don't touch me!'” Id. Defendant stated in his report:

I secured inmate Carbajal by his shirt at the collar and guided him to the wall at the back of the cell. I then instructed him to get on the ground and pulled him downward to the floor. Inmate Carbajal attempted to push off of the ground and I secured him to the floor by placing my elbow and forearm on his upper back. I used my radio to call for assistance from hall patrol in the [] detention area. I secured inmate Carbajal's right arm behind his back and applied the ‘goose neck' technique to his right hand.

Id. After securing plaintiff, defendant stated that two other officers responded and handcuffed plaintiff before escorting plaintiff out of his cell. Id.

On December 8, 2010, while preparing for trial, I was tying my tie when Deputy Keefer lunged at me and began to strike me repeatedly in the head and slammed me against the wall and then slammed on the ground, causing me extreme pain amongst other injuries.

Docket No. 298 at 35, ¶ 2. Defendant argues that summary judgment is appropriate because plaintiff failed to exhaust his administrative remedies by following the DSD grievance procedure.

         A. The Denver Sheriff Department Grievance Process

         The DSD has a multi-step grievance process, which is described in the DSD inmate handbook.[3] Docket No. 293-2. The handbook informs inmates that “[y]ou will be required to file your grievance within 10 calendar days of the incident in which you are aggrieved.” Docket No. 293-2 at 2. A grievance can be submitted on an “Inmate Grievance Form, ” which is a “triplicate carbon document that included a top (white) copy, middle (yellow) copy, and a back (pink copy), ” Docket No. 293-3 at 2, ¶ 5, or an inmate can submit a grievance on “plain paper.” Docket No. 293-2 at 3. With respect to the inmate grievance forms, the grievance procedure informs inmates that, “[i]f you did not keep the pink copy, you will have a copy returned to you after the Operations Unit has affixed the time stamp.” Docket No. 293-2 at 3. The “grievance form should be addressed to Operations, ” and a grievance “must provide” the date and time of the incident, a specific statement detailing the “act or condition giving rise to the grievance, ” the “specific remedy for the grievance, ” and a signature accompanied by the inmate's housing location and book-in number. Id.

         After submitting a grievance, the handbook provides that “[t]he Operations staff will provide a written dated response within 10 working days of receipt of the grievance.” Id. If an inmate is still aggrieved, the procedure informs the inmate: “you may write a sealed letter to the Division Chief stating your specific grievance and all previous steps you have taken. . . . The Division Chief will provide a written, dated response within 10 working days of receipt of the appeal.” Id. (emphasis in original). If the inmate is still aggrieved, the policy provides that “[y]ou may also write a personal letter to the Director of Corrections. . . . The Director will make the final resolution and will provide a written, dated response within 10 working days of receipt of the appeal.” Id.

         Grievances alleging serious misconduct can be handled in a different manner. See Docket No. 302-2 at 1. DSD department order 4810.1D, which was in effect on December 8, 2010, states that “[g]rievances filed on matters that fall under the investigative jurisdiction of the Internal Affairs Bureau [] will be referred to that unit and will be handled as complaints.” Id. According to the Internal Affairs Bureau's (“IAB”) procedures, “all allegations of unnecessary/excessive force . . . involving Denver Sheriff Department officers” are to be investigated by the IAB. Docket No. 298-1 at 109. However, when an inmate files a grievance alleging serious misconduct, a DSD supervisor is assigned to conduct an initial investigation and route the grievance appropriately. Docket No. 302-1 at 2, ¶ 7; see also Docket No. 298 at 72-73 (describing the routing process for grievances). After DSD staff investigates, the grievance matter may be referred to IAB. Docket No. 302-1 at 2, ¶ 7.

         While DSD policy provides that grievances alleging serious misconduct be referred to the IAB, see Docket No. 302-1 at 2, ¶ 7; Docket No. 298 at 72-73, plaintiff has submitted evidence to show that the referral system is defective. See, e.g., Docket No. 298 at 58-135. According to a report issued by the Office of the Independent Monitor (“OIM”) in 2013, of the fifty-four grievances alleging serious misconduct filed from January 1, 2011 to June 30, 2013, only nine resulted in IAB investigations. Docket No. 298 at 75. Of those nine investigations, only three were the result of referred grievances. Id. According to the OIM, “other serious grievances were not investigated at all, at the jails or otherwise.” Id.

         B. Plaintiff's Grievance(s)

         The parties dispute whether plaintiff submitted grievances in accordance with DSD policy. Defendant provides an inmate grievance form received by DSD on December 21, 2010 - 13 days after plaintiff alleges that defendant used excessive force against him. Docket No. 293-4. The grievance form appears to have been signed by plaintiff and provides a date and time of incident as “Dec. 8th-24th, 2010.” The grievance states:

I have Been in punished and taken of my general population priviledges since Dec. 8, 2010. Without justification or notice. I was tying my tie as I prepared to go to trial and an officer pulled my arm & squeez me, and then pushed & began to strike me in the back of my head. I never resisted nor did I antagonize the officer. It has now been 13 days and I have received to justification for the abuses taken against me.

Id. DSD received the greivance on December 21, 2010. Id. DSD never responded to plaintiff's grievance. Docket No. 293-5 at 2, ¶ 6. While plaintiff has submitted grievances related to other matters, see Docket No. 293-8 (collecting eight grievances related to other matters submitted on inmate grievance forms), the December 21, 2010 grievance is the only grievance in DSD records related ...


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