United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge
the Court are three Motions for Summary Judgment filed by the
Defendants. ECF Nos. 141, 143, 145. Plaintiff's Third
Amended Complaint (“TAC”) brings one claim under
42 U.S.C. § 1983 for a violation of his Eighth Amendment
rights against each Defendant. Although Plaintiff asserts
these claims in a single lawsuit, the factual circumstances
supporting each claim are entirely distinct. Still, the three
motions raise a common argument in support of summary
judgment. Each Defendant argues Plaintiff has not exhausted
his administrative remedies for the claims, as required under
the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a). The Court finds that Plaintiff has
failed to meet his burden to show a genuine dispute of
material fact exists as to whether he exhausted his
administrative remedies. Therefore, the motions are
motion for summary judgment serves the purpose of testing
whether a trial is required. Heideman v. South Salt Lake
City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court
shall grant summary judgment if the pleadings, depositions,
answers to interrogatories, admissions, or affidavits show
there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the
outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
moving party bears the initial responsibility of providing to
the court the factual basis for its motion. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “The moving
party may carry its initial burden either by producing
affirmative evidence negating an essential element of the
nonmoving party's claim, or by showing that the nonmoving
party does not have enough evidence to carry its burden of
persuasion at trial.” Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
Only admissible evidence may be considered when ruling on a
motion for summary judgment. World of Sleep, Inc. v.
La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
movant properly supports a motion for summary judgment, the
non-moving party has the burden of showing there are issues
of material fact to be determined. Celotex, 477 U.S.
at 322. That is, the opposing party may not rest on the
allegations contained in his complaint, but must respond with
specific facts showing a genuine factual issue for trial.
Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372,
380 (2007) (“The mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.”); see also Hysten v.
Burlington N. & Santa Fe Ry., 296 F.3d
1177, 1180 (10th Cir. 2002). These specific facts may be
shown “‘by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves.'” Pietrowski v. Town of
Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting
Celotex, 477 U.S. at 324). “[T]he content of
summary judgment evidence must be generally admissible and .
. . if that evidence is presented in the form of an
affidavit, the Rules of Civil Procedure specifically require
a certain type of admissibility, i.e., the evidence
must be based on personal knowledge.” Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.
2005). “The court views the record and draws all
inferences in the light most favorable to the non-moving
party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
Darnell Emerson Washington is an inmate incarcerated in the
Colorado Department of Corrections (“CDOC”)
system. His TAC asserts an Eighth Amendment claim against
each Defendant based on factual events that are entirely
unrelated. Each Defendant now argues that summary judgment is
appropriate, because Plaintiff failed to exhaust his
administrative remedies as to each claim.
PLRA states that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title
. . . by a prisoner . . . until such administrative remedies
as are available are exhausted.” 42 U.S.C. §
1997e(a). The exhaustion requirement “is mandatory, and
the district court [i]s not authorized to dispense with
it.” Beaudry v. Corr. Corp. of Am., 331 F.3d
1164, 1167 n.5 (10th Cir. 2003). “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.” Jones v. Bock, 549 U.S. 199,
218 (2007) (citation omitted). “An inmate who begins
the grievance process but does not complete it is barred from
pursuing a [federal] claim under the PLRA for failure to
exhaust his administrative remedies.” Fields,
511 F.3d at 1112 (alteration in original) (quoting
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002)). Failure to exhaust is an affirmative defense, and
“the burden of proof for the exhaustion of
administrative remedies in a suit governed by the PLRA lies
with the defendant.” Roberts v. Barreras, 484
F.3d 1236, 1241 (10th Cir. 2007).
CDOC uses a three-step procedure for administrative appeals.
See ECF No. 141-6.Before initiating any step of the
grievance process, an inmate is required to informally
discuss a problem or complaint with the appropriate CDOC
employee. Id. ¶ IV.B.1. The prisoner may then
file the appropriate grievance form. Id. ¶
IV.C.5. A prisoner must file a step one grievance within
thirty days of the date he knew or should have known of the
facts giving rise to the claim. Id. ¶ IV.F.1.a.
The CDOC must respond to the grievance within twenty-five
calendar days. Id. ¶ IV.F.1.b. After receiving
the response, the prisoner has five days to file a step two
grievance. Id. ¶ IV.F.1.d. Again, the CDOC must
respond within twenty-five days. Id. ¶
IV.F.1.b. The prisoner must file the step three grievance
within five days of the response, and the CDOC then has
forty-five days to respond. Id. ¶ IV.F.1.c-d. A
step one grievance is investigated by a CDOC employee,
contract worker, or volunteer appointed by the administrative
head or designee. Id. ¶ IV.E.3.a. A step two
grievance is investigated by the administrative head or
designee. Id. ¶ IV.E.3.b. A step three
grievance is investigated by the grievance officer.
Id. ¶ IV.E.3.c. When a grievance is
substantively denied at step three, the prisoner has
exhausted his administrative remedies. Id. ¶
Defendant argues that summary judgment is appropriate,
because Plaintiff failed to exhaust his administrative
remedies. For support, Defendants provide the declaration of
Anthony DeCesaro, a Grievance Officer at the CDOC Office of
Legal Services. ECF No. 141-5. Mr. DeCesaro attests that
Plaintiff did not exhaust his administrative remedies
regarding the events alleged in his Complaint. Id.
evidence shifts the burden to Plaintiff to show the existence
of a disputed fact, but his responses to the motions do not
address the exhaustion argument. See ECF Nos. 156,
158-59. Defendants each emphasize this point in their replies
and reiterate that Plaintiff's failure warrants summary
judgment. See ECF Nos. 163-65. Soon after the
motions were fully briefed, Plaintiff filed five documents
that further addressed the merits of Defendants' motions.
See ECF Nos. 170-74. The Court construed each of
these documents as a “surreply” to the motions
and struck them, because the Local Rules of Practice for this
Court do not permit a party to file a surreply without first
seeking leave of the Court. ECF No. 175. Plaintiff promptly
filed a document the Court construed as a motion for leave to
file a surreply to Defendants' replies. ECF No. 176. The
Court granted the motion but forewarned Plaintiff that,
consistent with the caselaw in this District, the Court would
consider the new filings only to the extent that they
addressed arguments Defendants raised for the first time in
their reply briefs.
filed a surreply on June 12, 2019. ECF No. 182. In this
document, Plaintiff, for the first time, responds to
Defendants' arguments that he did not exhaust his
administrative remedies. He appears to concede that he has
not exhausted his remedies for these claims. See,
e.g., ECF No. 182 at 4 (“The only reason I have
not [completed] the PLRA is because I stop gettin[g] my
grievances responded to.”); id. (“This
is why PLRA was not met.”). Plaintiff then argues that
the Court should allow the claims to proceed despite the
failure. See Id. at 4, 9.
Court cannot consider these arguments, because, just as the
Court advised Plaintiff when he sought leave to file the
surreply, see ECF No. 177, a court may consider
arguments in a surreply only to the extent they address
issues the opposing party raised for the first time in its
reply brief. See Green v. New Mexico, 420 F.3d 1189,
1196 (10th Cir. 2005) (affirming a trial court's denial
of a motion for leave to file a surreply, because the movant
did not raise new arguments in the reply brief). Here, the
Defendants raised the failure-to-exhaust argument in their
motions, not in their reply briefs. See ECF No. 141
at 13-15; ECF No. 143 at 15-17; ECF No. 145 at 17-19. Because
Plaintiff has not responded to the argument absent the
surreply, he has not met his burden of showing the existence
of a genuine dispute of material fact as to whether he
exhausted his administrative remedies. See Abdulmutallab
v. Sessions, No. 17-cv-02493-RM-KMT, 2019 WL 1058184, at
*3 (D. Colo. Mar. 6, 2019) (granting summary judgment when a
prisoner plaintiff did not dispute evidence that he had not
exhausted his administrative remedies). Accordingly, summary