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Montgomery v. Wilson

United States District Court, D. Colorado

July 12, 2019

ROBERT MONTGOMERY, Plaintiff,
v.
K. WILSON, K. ALLEN, and JOHN DOES 1-3, Defendants.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Defendants Wilson and Allen seek summary judgment arguing that Plaintiff failed to exhaust his claims before filing the present action. 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.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.

         1. 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. 29-1.

         2. Plaintiff alleges that he was assaulted by another inmate in December 2016 while he was housed at USP Florence. ECF No. 10 at 7.[1]

         3. 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.

         4. 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.

         5. On 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 14-17.

         6. On 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.

         7. On 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).

         8. On 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).

         9. None 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.

         10. Plaintiff has never filed an administrative remedy request relating to any events or actions taken at USP ...


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