United States District Court, D. Colorado
RUSSELL M. BOLES, Plaintiff,
P.A. ALLEN; ANGIE, RN; and NURSE ALLA, Defendants.
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
S. Krieger Chief United States District Judge
MATTER comes before the Court pursuant to the
Defendants' Motion for Summary Judgment (#
46), Mr. Boles' response (#
53), and the Defendants' reply (#
56). Also pending are several motions by Mr. Boles
(# 44, 57, 61) that the Court understands
simply seek to move the case along and which seek no
Boles is an inmate in the custody of the Colorado Department
of Corrections (“CDOC”). As narrowed by Senior
Judge Babcock's May 16, 2017 Order (#
22), Mr. Boles' pro se Amended Complaint
(# 21) alleges a claim under 42 U.S.C.
§ 1983, in that the Defendants violated his
8th Amendment rights to be free from deliberate
indifference to his medical needs. He alleges that Defendants
Angela Kistler (Defendant “Angie, RN”) and Alla
Shkolnik (Defendant “Nurse Alla') confiscated
“all of [his] oxygen supplies including his pulsating
oxygen regulator . . . along with [a] wheelchair.” That
deprivation caused Mr. Boles to be “completely
non-functional for several days, ” until another nurse
provided him with another oxygen concentrator and a walker.
Later, when a prescription Mr. Boles had for Naproxen was on
the verge of expiring, he asked Ms. Shkolnik to renew it. She
replied that he would have to buy Naproxen from the Canteen
instead, but the Canteen does not carry the particular
medicine Mr. Boles requires. He alleges that taking the
medicine available in the Canteen causes him to vomit and
experience blood in his stool.
Defendants move (# 46) for summary judgment,
arguing that Mr. Boles failed to exhaust his administrative
remedies as required by 42 U.S.C. §1997e(a). They also
contend that Mr. Boles' claims for declaratory and
injunctive relief are not moot, as he has been transferred to
another CDOC facility and is no longer at the facility where
Standard of review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). A factual dispute is “genuine” and summary
judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
Prisoner Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a), requires that inmates seeking to
bring civil claims first exhaust any administrative remedies
available to them. Exhaustion is required even if the relief
the inmate seeks - e.g. money damages - might not be
recoverable under the administrative scheme. Woodford v.
Ngo, 548 U.S. 81, 85 (2006). However, an inmate is not
required to exhaust remedies that are not
“available” to them for various reasons, such as
where prison officials prevent the inmate from taking the
required steps. Ross v. Blake, 136 S.Ct. 1850, 1860
(2016). Failure to exhaust is an affirmative defense on which
the Defendants bear the burden of proof. Jones v.
Bock, 549 U.S. 199, 212 (2007).
Defendants have established that CDOC has a four-step
grievance procedure: the inmate first attempts an informal
resolution with the staff. If that is unsuccessful, within 30
days of the incident, the inmate must file a formal
grievance, and if that grievance is denied, the inmate has 5
days to appeal that grievance to a “Step 2, ”
and, ultimately, to a “Step 3, ” after which the
grievance is deemed exhausted. Mr. Boles does not dispute the
existence of this system.
Defendants have come forward with evidence that Mr. Boles
filed a single formal grievance on January 4, 2016. That
grievance alleged that the Defendants “were involved in
stopping both my treatment and medication which controls
inflammation in the brain. The result is repeated hypoxia
causing swelling and dying flesh in lower extremities.”
Mr. Boles requested as a remedy that they “reinstate
all treatment and medication immediately and have the
[Defendants] jailed and fired.” The record appears to
indicate that the grievance was responded to initially by
Nicole Wilson on February 5, 2017, informing Mr. Boles that
“You were recently seen by a provider on January 20.
Currently, you only have one medication that you take,
Naproxen 500 mg twice a day as needed . . . Your property
list indicates that you have an O2 concentrator as of
1/26/17. . . . It is suggested that you put in a kite to your
provider and talk to him or her about any other physical
concerns.” It appears that Mr. Boles received this
response on March 3, 2017. His signature appears below a
paragraph reading “If you are dissatisfied with the
response to this grievance, you may obtain further review by
submitting the next step to the appropriate
individual.” The Defendants assert that Mr. Boles never
appealed this grievance to Step 2 or Step 3, and never filed
any other grievances concerning his medical treatment.
Boles' response contends that the CDOC grievance
procedure was not “available” to him after his
initial grievance. He contends that, by the time he received
the response to his grievance, he had been transferred to a
different facility and that the grievance procedure “is
not clear on how to file a grievance pertaining to a previous
facility.” Mr. Boles states that he mailed his Step 2
appeal to the Medical Administrator, Gloria Barkley, as a