United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge.
matter is before the Court on Defendants' Motion
for Summary Judgment [#36] (the “Motion”).
Plaintiff filed a two-page Response [#42] in opposition to
the Motion [#36], and Defendants filed a Reply [#43].
Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR
72.1(c), the Motion has been referred to the undersigned for
a recommendation regarding disposition. See [#38].
The Court has reviewed the Motion, the Response, the Reply,
the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Court respectfully
RECOMMENDS that the Motion [#36] be
Summary of the Case
times relevant to this lawsuit, Plaintiff was an inmate in
the custody of the Colorado Department of Corrections
(“CDOC”). Compl. [#1] ¶ 3. On July
5, 2018, Plaintiff, represented by counsel, filed his
Complaint [#1] against Defendants Correctional Officer Darren
Adame (“Adame”) and Sergeant Christopher Bongirno
(“Bongirno”), both in their individual and
official capacities, citing several constitutional violations
pursuant to 42 U.S.C. § 1983 as the basis for this
Court's jurisdiction. Id. ¶¶ 2, 4.
claims center on allegations that Defendants used excessive
force against him while they were preparing to transfer him
from his cell to a hearing on July 7, 2016.Id.
¶ 5. Upon arrival, Defendants handcuffed Plaintiff and
then instructed him to walk backwards out of his cell.
Id. ¶ 9. Plaintiff, however, suffers from
severe vertigo resulting from a pre-incarceration motorcycle
accident and cannot safely walk backwards. Id.
¶¶ 6, 8. Plaintiff further alleges that both
Defendants were aware of this disability prior to the date in
question. Id. ¶ 7. Nevertheless, in spite of
Plaintiff's protestations, Defendants ordered him to walk
backwards out of his cell, at which time he lost his balance
and began to fall. Id. ¶ 10-11. In response,
Defendant Adame allegedly put Plaintiff in a choke hold,
causing him to lose consciousness, and Defendant Bongirno
subsequently tased him. Id. ¶ 11. As a result
of Defendants' actions, Plaintiff alleges that he suffers
partial paralysis and other permanent disabilities relating
to his motor skills and neurological abilities. Id.
face of the Complaint [#1], Plaintiff presents the following
claims for relief: he states that “Defendants used
excessive force upon [him] in violation of the [Fourth],
[Fifth], [Eighth] and [Fourteenth] Amendments, causing both
sever [sic] and permanent injuries.” Id.
¶ 12. For relief, Plaintiff seeks money damages for the
physical and emotional pain he has suffered, as well as the
loss of future earning capacity, pursuant to 42 U.S.C. §
1988. Id. ¶¶ 13-14.
January 17, 2019, Defendants filed a Motion to Dismiss in
Part [#22], pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
On April 23, 2019, Defendants filed the instant Motion [#36],
arguing that they are entitled to summary judgment because
Plaintiff's failure to exhaust his administrative
remedies bars the current litigation, pursuant to the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e. See Motion [#36].
Standard of Review
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be
granted if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” An issue is
genuine if the evidence is such that a reasonable jury could
resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 477 U.S. at 248; Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go
beyond the allegations and denials of his pleadings and
provide admissible evidence, which the Court views in the
light most favorable to him. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)
(citing Celotex, 477 U.S. at 324). Conclusory
statements based merely on conjecture, speculation, or
subjective belief are not competent summary judgment
evidence. Bones v. Honeywell Int'l, Inc., 366
F.3d 869, 875 (10th Cir. 2004). The nonmoving party's
evidence must be more than “mere reargument of [his]
case or a denial of an opponent's allegation” or it
will be disregarded. See 10B Charles Alan Wright, et
al., Federal Practice and Procedure § 2738 at 356 (3d
addition, the Court “must accord substantial deference
to the professional judgment of prison administrators, who
bear a significant responsibility for defining the legitimate
goals of a corrections system and for determining the most
appropriate means to accomplish them.” Overton v.
Bazzetta, 539 U.S. 126, 132 (2003). To this end, the
Court notes the well-established law that prison management
functions should be left to the broad discretion of prison
administrators to enable them to manage prisons safely and
effectively. See, e.g., Meachum v. Fano, 427 U.S.
215 (1976). Accordingly, courts should interfere with the
management of prisons only under exceptional and compelling
circumstances. Taylor v. Freeman, 34 F.3d at 266,
268-70 (4th Cir. 1994). Indeed, the Tenth Circuit has stated
that it “abhor[s] any situation or circumstance
requiring the intervention of the federal courts in matters
involving the administration, control and maintenance by the
sovereign states of their penal systems. It is a delicate
role assigned to the federal courts to display that restraint
so necessary 'in the maintenance of proper federal-state
relations.'” Battle v. Anderson, 564 F.2d
388, 392 (10th Cir. 1977) (citation omitted). As such,
“sweeping intervention in the management of state
prisons is rarely appropriate when exercising the equitable
powers of the federal courts.” Taylor, 34 F.3d
at 269 (citations omitted).
Adame and Bongirno contend that they are entitled to summary
judgment in their favor because the undisputed facts
demonstrate that Plaintiff failed to exhaust his
administrative remedies before filing the suit, as required
by the PLRA. Motion [#36] at 2. The PLRA requires
that a prisoner exhaust all available administrative remedies
before he or she can bring any action with respect to prison
conditions. Porter v. Nussle, 534 U.S. 516, 520
(2002) (“1997e(a)'s exhaustion requirement applies
to all prisoners seeking redress for prison circumstances or
occurrences.”). Specifically, the exhaustion provision
No action shall be brought with respect to prison conditions
under [42 U.S.C. § 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).
is no question that exhaustion is mandatory under the PLRA
and that unexhausted claims cannot be brought in
court.” Jones v. Bock, 549 U.S. 199, 211
(2007); Woodford v. Ngo, 548 U.S. 81, 84 (2006)
(“Exhaustion is no longer left to the discretion of the
district court, but is mandatory.”). However, the
burden is not on the plaintiff to sufficiently plead
exhaustion or attach exhibits to the complaint proving
exhaustion. Jones, 549 U.S. at 215. Rather, the
burden is on defendants to assert ...