United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
order addresses defendants' motion for summary judgment,
the magistrate judge's recommendation that the motion be
granted, and plaintiff's objection to that
recommendation. Because the objection was timely filed, the
Court has conducted a de novo review. I agree with the
magistrate judge that the plaintiff did not exhaust his
administrative remedies, and therefore, the motion for
summary judgment is granted.
Robinson is an inmate in the Colorado Department of
Corrections. On July 7, 2016, preparing to transfer Mr.
Robinson to a hearing on an alleged Code of Penal Discipline
violation, the two defendant officers ordered him to back out
of his cell. Mr. Robinson informed the officers that he
suffered from vertigo which made walking backwards difficult.
He tried to comply, but he stumbled and collapsed as he
backed out. The officers then placed him in a choke hold and
tased him. Mr. Robinson alleges that he sustained a neck
21, 2016 Mr. Robinson filed a Step 1 grievance, thereby
commencing the CDOC's three-step grievance procedure. ECF
No. 46-1at 1. After reciting the facts, Mr. Robinson
requested that his complaint be reviewed by an investigator
with the Inspector General's Office. Id. The
department responded on August 2, 2016. Id. The
response indicated based on a “Use of Force After
Action Review, ” including consideration of staff
reports, video evidence, and a medical anatomical exam, it
had determined that the claims were unsubstantiated.
August 5, 2016 Mr. Robinson filed a timely Step 2 grievance.
After reciting the alleged facts, he again requested a review
by the Inspector General's Office, and he also requested
“a complaint form of Department of Corrections
Employees & Volunteers.” ECF No. 46-1 at 2. The
department responded on August 9, 2016. Id. The
grievance was again denied based on the department's
excessive force review. The response added, “In
accordance with Administrative Regulation 300-16, Use of
Force Options, a supervisor will conduct a DOC Employee
Conduct/Worker Complaint which will be forwarded to the
Office of the Inspector General upon it's [sic]
completion.” Id. Mr. Robinson acknowledge
receipt of the response on August 11, 2016. Id.
deadline established by AR 850-04 for filing a Step 3
grievance was August 16, 2016. However, he filed a Step 3
Grievance on October 18, 2016. After again reciting the
claimed facts, he asked that the incident report be expunged
from his records and that “an undisclosed amount of
funds be rewarded to me for my pain and suffering.”
Id. at 3. Anthony A. DeCesaro, Grievance Officer,
responded by letter dated November 3, 2016. His grievance was
denied because (1) it was untimely, and (2) damages for pain
and suffering are expressly excluded from remedies available
to offenders under AR 850-14. Id. at 4.
Robinson, represented by counsel, filed this lawsuit on July
5, 2018. He asserted that defendants used excessive force in
violation of the Fourth, Fifth, Eighth and Fourteenth
Amendments and sought damages for permanent disabilities,
physical and mental pain and suffering, and loss of future
earning capacity. Complaint, ECF No. 1. On April 23, 2019
defendants moved for summary judgment on the issue for
exhaustion of administrative remedies. ECF No. 36. I referred
the motion to United States Magistrate Judge Kristin L. Mix
for a report and recommendation. ECF No. 40.
full briefing Magistrate Judge Mix issued a written
recommendation on June 19, 2019. ECF No. 45. She noted that
exhaustion of administrative remedies is a mandatory
prerequisite to litigation. Prisoner Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(a). See Jones v.
Bock, 549 U.S. 199, 211 (2007). ECF No. 45 at 5-6. An
untimely grievance does not exhaust administrative remedies.
Woodford v. Ngo, 548 U.S. 81, 91 (2006)
(“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural
rules….). The CDOC's exhaustion procedure is set
forth in AR 850-04. Id. at 7-8. Mr. Robinson
admittedly filed an untimely Step 3 grievance under AR
850-04. Id. at 9. His argument is that the
exhaustion requirement does not apply because the relief he
sought at Step 3 was unavailable, citing Ross v.
Blake, 136 S.Ct 185, 1862 (2016) (the “only limit
to [the PLRA's exhaustion] mandate is the one baked into
its text: An inmate need exhaust only such administrative
remedies as are ‘available.'”). However,
Magistrate Judge Mix determined that the exception was
inapplicable here. Id. at 12-14. Accordingly, she
recommended that the motion for summary judgment be granted
and the claims be dismissed without prejudice for failure to
exhaust administrative remedies. Id. at
Robinson filed a timely objection, again arguing that he was
not required to exhaust if the remedy, damages, was
unavailable. ECF No. 46. Defendants filed a response to the
objection. ECF No. 47.
Steps 1 and 2 of the grievance process plaintiff claimed that
he was the victim of excessive force when he was removed from
his cell on July 7, 2016. He sought an independent review of
his grievance by the Office of the Inspector General.
Implicitly he requested that his complaint be upheld, and
that available remedies be provided. The CDOC reviewed staff
reports, video and medical records. Based on that
investigation it denied the grievance. At Step 2 the CDOC
again denied the grievance but also referred his complaint to
the Office of the Inspector General. I infer that the
grievance was unsuccessful there as well.
undisputed that plaintiff's Step 3 grievance was
untimely. Also, he requested new remedies, not mentioned at
Steps 1 and 2. In his words,
I request that the incident report be expunged, the negative
reports related to this incident be immediately removed from
my records and an undisclosed amount of funds be rewarded
to me for my pain and suffering. I request that all of
the restitution and medical fees from this incident be
reinstated to my funds. The officers [sic] actions were
unjustified because I was handcuffed and they were illegal