United States District Court, D. Colorado
ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE CRAIG B. SHAFFER.
CHRISTINE M. ARGUELLO United States District
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);
STANDARD OF REVIEW
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).
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.
DEFENDANTS' MOTION FOR PARTIAL SUMMARY
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
Summary Judgment Standard
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.
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).
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