United States District Court, D. Colorado
TERRANCE D. WILSON, Plaintiff,
SHERWIN PHILLIPS, STEPHEN FRANK, and JAMES FOX, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT ON THE ISSUE OF EXHAUSTION
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Sherwin Phillips, Stephen
Frank,  and James Fox's Motion for Summary
Judgment on the Issue of Exhaustion. (Doc. # 141.) For the
reasons detailed below, the Court grants Defendants'
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
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).
asserted the affirmative defense of exhaustion in their
Answers to Plaintiff's Complaints. See (Doc. #
24 at 7; Doc. # 42 at 7.)
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.
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.)
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.)
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.)
five-day jury trial on this matter is scheduled to begin on
June 24, 2019. See (Doc. # 137.)
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 ...