United States District Court, D. Colorado
AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M. Tafoya, United States Magistrate Judge.
case comes before the court on the defendants'
“Motion for Partial Summary Judgment” (Doc .No.
80 [Mot.], filed May 11, 2018. Plaintiff filed his response
on July 30, 3018 (Doc. No. 115 [Resp.]), and Defendants filed
their reply on August 13, 2018 (Doc. No. 116 [Reply]).
is an inmate housed at the United States
Penitentiary-Administrative Maximum (“ADX”) in
Florence, Colorado. (Doc. No. 76 [Am. Compl.], filed April
14, 2018, ¶ 4.) Plaintiff is serving four terms of life
imprisonment plus 50 years for his convictions for the
attempted use of a weapon of mass destruction on a commercial
airliner that landed in Detroit Michigan, and the attempted
murder of the 289 people on board. (Id., ¶1.)
ADX is the highest security prison operated by the Federal
Bureau of Prisons (“BOP”). (Id.) Before
transferring Plaintiff to long-term solitary confinement at
ADX, the United States government placed Plaintiff under
Special Administrative Measures (“SAMs”).
(Id., ¶ 7.) Plaintiff filed his Amended
Complaint alleging various claims related to his transfer to
ADX, the SAMs, the BOP's actions related to hunger
strikes in 2012 and 2014, and his conditions of confinement
at ADX. (See, generally, Am. Compl.)
move for summary judgment with respect to Plaintiff's
Claims 1, 6, 8-10, and 12, as well as with respect to
portions of Claims 2-5, 7, 11, 13, 14 and the allegations in
paragraph 147 of the Amended Complaint. (See Mot.)
accordance with Judge Moore's Practice Standards, the
parties have submitted their Statement of Undisputed Material
Facts and Response to Statement of Undisputed Material Facts
in Exhibit 1. The court addresses the facts as it addresses
each argument, infra.
judgment is appropriate if “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.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of showing an absence of evidence to support the nonmoving
party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). “Once the moving party meets this
burden, the burden shifts to the nonmoving party to
demonstrate a genuine issue for trial on a material
matter.” Concrete Works, Inc. v. City & County
of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing
Celotex, 477 U.S. at 325). The nonmoving party may
not rest solely on the allegations in the pleadings, but must
instead designate “specific facts showing that there is
a genuine issue for trial.” Celotex, 477 U.S.
at 324; see also Fed. R. Civ. P. 56(c). A disputed
fact is “material” if “under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute is “genuine” if the evidence is such that
it might lead a reasonable jury to return a verdict for the
nonmoving party. Thomas v. Metropolitan Life Ins.
Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing
Anderson, 477 U.S. at 248).
ruling on a motion for summary judgment, a court may consider
only admissible evidence. See Johnson v. Weld County,
Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed
in the light most favorable to the party opposing summary
judgment. Concrete Works, 36 F.3d at 1517. At the
summary judgment stage of litigation, a plaintiff's
version of the facts must find support in the record.
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312
(10th Cir. 2009). “When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007); Thomson,
584 F.3d at 1312.
move for summary judgment on Plaintiff's claims for
failure to exhaust his administrative remedies under the
Prison Litigation Reform Act of 1996 (“PLRA”), 42
U.S.C. § 1997e(a).
PLRA provides that “[n]o 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
“PLRA's exhaustion requirement applies to all
inmate suits about prison life.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). See also Booth v.
Churner, 532 U.S. 731, 731-32 (2001) (PLRA requires
exhaustion in all matters regardless of remedy sought and
availability of remedy at the agency level).
PLRA's requirement that an inmate exhaust all available
administrative remedies before initiating suit is mandatory.
See Woodford v. Ngo, 548 U.S. 81, 85 (2006)
(“Exhaustion is no longer left to the discretion of the
district court, but is mandatory.”). See also Jones
v. Bock, 549 U.S. at 210-212 (“There is no
question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”).
“To exhaust administrative remedies an inmate must
properly comply with grievance procedures; substantial
compliance is insufficient.” Fields v. Okla. State
Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).
“[T]o properly exhaust administrative remedies
prisoners must complete the administrative review process in
accordance with the applicable procedural rules, -rules that
are defined not by the PLRA, but by the prison grievance
process itself.” Bock, 549 U.S. at 218
(internal quotation marks and citation omitted). Thus, it is
the prison's own grievance procedures that set forth what
the prisoner must do to exhaust his or her administrative
remedies. 549 U.S. at 218 (citation omitted). After Jones
v. Bock, a failure to exhaust administrative remedies
constitutes an affirmative defense which must proved by
defendants. Roberts v. Barreras, 484 F.3d 1236, 1241
(10th Cir. 2007).
provides a four-tiered Administrative Remedy Program for
inmate grievances.28 C.F.R. § 542.13(a). The first step
requires a prisoner to present an issue of concern informally
to prison staff. 28 C.F.R. § 542.13(a). The prisoner has
20 days from the date of the incident to complete the
informal resolution and file a formal Administrative Remedy
Request, known as a BP-9.3 28 C.F.R. § 542.14(a). The
warden must respond within 20 days. If dissatisfied with the
warden's response, the prisoner may appeal to the
Regional Director by filing a Regional Office Administrative
Remedy Appeal, also known as a BP-10 request, within 20 days.
28 C.F.R. § 542.15(a). The Regional Director must
respond to the BP-10 within 30 days. 28 C.F.R. § 542.18.
Finally, if the prisoner is dissatisfied with the Regional
Director's response, he may appeal to the Director of
National Inmate Appeals by filing a Central Office
Administrative Remedy Appeal, known as a BP-11, within 30
days. 28 C.F.R. § 542.15(a). The Director of the Central
Office Administrative Remedy Appeal must respond within 40
days. 28 C.F.R. § 542.18. A prisoner has not exhausted
his administrative remedies until he has properly and timely
sought review at all three formal levels. 28 C.F.R. §
Claims 1 and 9 and Paragraph 147
Claim 1, Plaintiff alleges that his due process rights were
violated in his transfer to the ADX in 2012. (Compl. at
63-64.) In Claim 9, Plaintiff alleges that his rights under
the Religious Freedom Restoration Act (“RFRA”)
were violated because he was allegedly denied access to an
imam, denied a halal diet, and force-fed a non-halal
nutritional supplement. (Id. at 72-73.) In paragraph
147 of his Amended Complaint, Plaintiff alleges that, whether
due to SAMs or other ...