Wilson v. Phillips

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF EXHAUSTION

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         Currently before the Court is Defendants Sherwin Phillips, Stephen Frank, ^[1] and James Fox's Motion for Summary Judgment on the Issue of Exhaustion. (Doc. # 141.) For the reasons detailed below, the Court grants Defendants' Motion.

         I. BACKGROUND

         A. PROCEDURAL HISTORY

         This Court's November 26, 2018 Order provides a thorough recitation of the factual and procedural background of this case. See (Doc. # 122.) That Order is incorporated herein by reference, and the facts will be repeated only to the extent necessary to address the instant Motion for Summary Judgment.

         Plaintiff Terrance Wilson's 42 U.S.C. Section 1983 claims for violation of the Eighth Amendment are subject to the provisions of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. Section 1997e. The PLRA prohibits a prisoner from bringing an action “with respect to prison conditions under [S]ection 1983 of this title, or any other Federal law” until “administrative remedies as are available are exhausted.” 42 U.S.C. §1997e(a).

         Defendants asserted the affirmative defense of exhaustion in their Answers to Plaintiff's Complaints. See (Doc. # 24 at 7; Doc. # 42 at 7.)

         Defendants moved for summary judgment on November 2, 2015, on the grounds that they were entitled to qualified immunity, that Plaintiff could not prove his Eighth Amendment claims, and that Plaintiff could not prove that Defendants personally participated in the alleged constitutional violations. (Doc. # 80.) Defendants did not address the issue of exhaustion in their 2015 Motion for Summary Judgment. See (id.) After a remand from the Court of Appeals for the Tenth Circuit (Doc. # 100), and discovery by and supplemental briefing from both parties, see, e.g., (Doc. ## 104, 105, 118), the Court ultimately denied Defendants' 2015 Motion for Summary Judgment (Doc. # 122). The Court did not address the issue of exhaustion because the parties did not raise it in their briefing.

         United States Magistrate Judge N. Reid Neureiter entered the Final Pretrial Order for this case on March 12, 2019. (Doc. # 136.) The Final Pretrial Order states that, relevant here, Defendants assert an affirmative defense that “Plaintiff's claims are barred in whole or in part by [PLRA], including, but not limited to, the exhaustion requirements of [PLRA].” (Id. at 4.)

         On March 8, 2019, Defendants filed their Motion for Leave to File Motion for Summary Judgment on the Issue of Exhaustion. (Doc. # 134.) Plaintiff responded in opposition to Defendants' Motion for Leave on March 29, 2019. (Doc. # 138.) In the interest of conserving significant judicial resources, the Court granted Defendants' Motion for Leave so that it could address the issue of exhaustion prior to trial. (Doc. # 140.)

         Defendants moved for summary judgment on April 22, 2019, on the grounds that Section 1997e barred Plaintiff's claims due to his failure to exhaust administrative remedies as required under the PLRA because he belatedly filed his first step grievance in contravention of the Colorado Department of Correction's (“CDOC”) grievance procedure. (Doc. # 141.) Plaintiff responded that his failure to exhaust his administrative remedies should be excused because his allegations “constituted extraordinary circumstances that justified equitable tolling of the deadline for the filing of a grievance.” (Doc. # 145 at ¶ 14.)

         A five-day jury trial on this matter is scheduled to begin on June 24, 2019. See (Doc. # 137.)

         B. FACTUAL BACKGROUND

         During the relevant time period, Plaintiff was an inmate in the custody of the CDOC. The CDOC provides inmates with administrative remedies pursuant to a formalized three-step grievance procedure (“Grievance Procedure”). (Doc. # 141-2 at 1, ¶ 3, 4-20.) The ...