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Truby v. Denham

United States District Court, D. Colorado

November 30, 2017

ROBERT TRUBY, Plaintiff,
v.
DEBORAH DENHAM, Warden, F.C.I., MR. MOTCHAN, Health and Safety Manager, F.C.I., Defendants.

          ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE CRAIG B. SHAFFER.

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on the Recommendation of United States Magistrate Judge Craig B. Shaffer (Doc. # 64), wherein he recommends that this Court grant Defendants Denham's and Mr. Motchan's Partial Motion for Summary Judgment (Doc. # 47) and Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. # 48). For the following reasons, the Court affirms and adopts the Recommendation, which is incorporated herein by reference, and dismisses this case. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         I. STANDARD OF REVIEW

         Robert J. Truby, a pro se Plaintiff, has filed an Objection to the Recommendation, essentially challenging the Recommendation in its entirety. (Doc. # 68.) Federal Rule of Civil Procedure 72(b)(3) thus requires this Court to conduct a de novo review of the issues. In so doing, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Any arguments raised for the first time in objections are deemed waivable and need not be considered. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         II. BACKGROUND

         Plaintiff, who was formerly in the custody of the BOP at the Federal Correctional Institution, Englewood (“FCI Englewood”), initiated this this lawsuit on November 10, 2016, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403, U.S. 388 (1971). Plaintiff contends that the individual Defendants have violated his Eighth Amendment rights by failing to (1) provide him with appropriate medical care (Claim One); (2) provide him with humane conditions of confinement (Claim Two); and (3) supervise other employees under their jurisdiction (Claim Three). (Doc. # 15.) He seeks compensatory and punitive damages in the amount of 3.4 million dollars and requests that FCI Englewood be closed indefinitely. Id. at 19.

         III. DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

         Defendants contend that Plaintiff failed to properly exhaust his administrative remedies with respect to Claims One and Three. Magistrate Judge Shaffer agreed, recommending dismissal of those claims on that basis. Plaintiff objects to that recommendation, contending that “he tried his best at the time to comply with the proper procedures to exhaust all administrative remedies to which he received no results or responses to his complaints” and that exhaustion is futile. (Doc. # 68 at 6-8.) Having reviewed the issue de novo, the Court agrees with Magistrate Judge Shaffer that Plaintiff's Claims One and Three should be dismissed based on his failure to properly exhaust administrative remedies.

         A. LAW

         1. Summary Judgment Standard

         Summary judgment is warranted when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Turnkey Sols. Corp. v. Hewlett Packard Enter. Co., No. 15-cv-01541-CMA-CBS, 2017 WL 3425140, at *2 (D. Colo. Aug. 9, 2017). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Id. A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Id. When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Id.

         2. Administrative Exhaustion

         The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust administrative remedies before filing a civil rights action. The statute provides:

No 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 exhaustion requirement applies to all inmate suits concerning prison life, whether they involve general circumstances or specific episodes. Id. at 85; Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion of administrative remedies is mandatory and is intended to give corrections officials an opportunity to address complaints internally before initiation of a federal lawsuit. See Woodford v. Ngo, 548 U.S. 81, 93 (2006).

         The PLRA requires only that prisoners exhaust available remedies. 42 U.S.C. § 1997e(a). Thus, if an administrative remedy is not available, an inmate cannot be required to exhaust it. Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011). A remedy is “available” under the PLRA if it affords “the possibility of some relief for the action complained of.” Booth, 532 U.S. at 738. An administrative remedy is not “available” under the PLRA if “prison officials prevent, thwart, or ...


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