United States District Court, D. Colorado
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
Wilson and Allen seek summary judgment arguing that Plaintiff
failed to exhaust his claims before filing the present
action. Although he was provided thirty-two days and ordered
to file a response to Defendants' motion on or before
March 11, 2019, see ECF No. 31, Plaintiff failed to
file any response or to seek an extension of time within
which to do so. The Court concludes that the undisputed
evidence demonstrates Plaintiff did not exhaust his claims
before filing this case. Plaintiff's failure to exhaust
his administrative remedies before bringing this action is
fatal to his claims and, thus, the Court grants
Defendants' motion for summary judgment and dismisses
Plaintiff's claims without prejudice.
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
Plaintiff was transferred to the United States Penitentiary
in Florence, Colorado (“USP Florence”) on
November 18, 2016. ECF No. 10 at 7; Declaration of Belinda
Shelton (“Shelton Decl.”) ¶ 10, ECF No.
Plaintiff alleges that he was assaulted by another inmate in
December 2016 while he was housed at USP Florence. ECF No. 10
Plaintiff alleges two claims against Defendants: (1)
deliberate indifference to substantial risk of harm in
violation of the Eighth Amendment against Defendants John
Does 1-3; and (2) failure to provide “reasonably safe
conditions” in violation of the Eighth Amendment with
regard to custody level and place of confinement, alleged
against Defendants Allen and Wilson. ECF No. 10 at 6-7.
Prior to his transfer to USP Florence on November 18, 2016,
Plaintiff was housed at the Federal Correctional Institution
in Greenville, Illinois (“FCI Greenville”). ECF
No. 2 at 15-16.
September 17, 2016, while Plaintiff was housed at FCI
Greenville, a Discipline Hearing Officer (“DHO”)
issued a report sanctioning Plaintiff based on a finding of
possession of drugs. ECF No. 2 at 7; see also ECF No. 2-2 at
October 31, 2016, Plaintiff filed an administrative remedy
request (BP-10) appealing the DHO's decision. ECF No. 2-2
at 18-22; Shelton Decl. ¶ 8.
August 2, 2017, Plaintiff filed an administrative remedy
request (BP-11) appealing the DHO's decision. ECF No. 2-2
at 27-30; Shelton Decl. ¶ 11(A).
September 18, 2017, Plaintiff filed a second administrative
remedy request (BP-10) appealing the DHO's decision. ECF
No. 2-2 at 31-33; Shelton Decl. ¶ 11(B).
of Plaintiff's administrative remedy requests mention a
December 2016 assault or seek relief associated with the
assault. ECF No. 2-2 at 18-21, 27-29, and 31-32; Shelton
Decl. ¶ 11.
Plaintiff has never filed an administrative remedy request
relating to any events or actions taken at USP ...