United States District Court, D. Colorado
DOUGLAS C. LEHMAN, Plaintiff,
BRIAN McKINNON, JAQUES, Correctional Officer Sgt., McCARROLL, Correctional Officer, Defendants.
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Recommendation on
Defendants' Motion for Summary Judgment [Docket No. 170]
filed on July 10, 2019. Magistrate Judge N. Reid Neureiter
recommends that defendants' motion for summary judgment
[Docket No. 117] be granted. Plaintiff filed objections on
July 29, 2019. Docket No. 173. Defendants filed a response to
plaintiff's objections on August 19, 2019. Docket No.
background facts have been set forth in the magistrate
judge's recommendation and will not be repeated here
except as relevant to resolving plaintiff's objections.
Plaintiff filed a pro se prisoner complaint alleging
violations of his Eighth Amendment rights as a result of an
altercation with Correctional Officer Brian McKinnon on
February 7, 2017 in the Limon Correctional Facility, which is
part of the Colorado Department of Corrections. Docket No. 40
at 6-7. On that date, plaintiff attacked Officer McKinnon in
the cafeteria. Docket No. 135 at 36, ¶ 4; Docket No. 147
at 2. Plaintiff claims that his Eighth Amendment rights were
violated by Officer McKinnon spraying him in the face with
pepper spray after plaintiff had been restrained. Docket No.
40 at 6. He also claims that the other defendants,
Correctional Officers Ryan Jaques and Patrick McCarroll,
failed to protect him from and report Officer McKinnon's
alleged assault. Id. at 12-14.
moved for summary judgment, arguing that plaintiff failed to
exhaust his administrative remedies under the Prison
Litigation Reform Act (“PLRA”) before filing his
lawsuit. Docket No. 117 at 6. Defendants contend that,
because plaintiff did not file a grievance reporting the
incident until January 26, 2018, eleven months later, he
failed to meet the requirement under DOC Administrative
Regulation 850-04 that an inmate must file his grievance
within 30 days of the date that the inmate knew, or should
have known, of the facts giving rise to the
grievance. Id. at 6-7. Because plaintiff
failed to follow this procedure, defendants argue, he did not
properly exhaust his administrative remedies. Id. at
contends that he timely filed his first grievance because he
was not aware of the underlying facts giving rise to his
grievance until January 1, 2018, when, in connection with a
criminal case filed against him for assaulting Officer
McKinnon, see Docket No. 117 at 4, ¶ 19; Docket
No. 135 at 3, ¶ 21, he watched a video of the incident.
Docket No. 135 at 3, ¶ 28-30. Plaintiff claims that,
because he was unconscious at some point during the incident,
it was not until he watched the video that he learned Officer
McKinnon had sprayed him with pepper spray after he was
restrained. Id. at 2, ¶ 15; at 3, ¶ 26.
Thus, according to plaintiff, he filed his first grievance
within the 30-day window and properly exhausted his
administrative remedies thereafter.
magistrate judge recommends that plaintiff's claims be
dismissed with prejudice for failure to exhaust his
administrative remedies. Docket No. 170 at 16. The magistrate
judge found that plaintiff's filing of his first
grievance, eleven months after the alleged assault, was not
timely filed within the 30-day filing deadline. Id.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997). Where “the moving party does
not bear the ultimate burden of persuasion at trial, it may
satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an
essential element of the nonmovant's claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111,
1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal
quotation marks omitted)). “Once the moving party meets
this burden, the burden shifts to the nonmoving party to
demonstrate a genuine issue for trial on a material
matter.” Concrete Works of Colo., Inc. v. City
& Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). The nonmoving party may not rest solely on
the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an
inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation
omitted). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to
the non-moving party. Id.; see McBeth v.
Himes, 598 F.3d 708, 715 (10th Cir. 2010).
reviewing a magistrate judge's recommendation on a
dispositive motion, the Court must “determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.” Fed.R.Civ.P. 72(b)(3). An
objection is “proper” if it is both timely and
specific. United States v. One Parcel of Real Property
Known as 2121 East 30th St., 73 F.3d 1057, 1059
(10th Cir. 1996). To be sufficiently specific, an objection
must “enable the district judge to focus attention on
those issues - factual and legal - that are at the heart of
the parties' dispute.” See Id. (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)).
raises twelve objections to the magistrate judge's
recommendation that defendants' summary judgment motion
be granted. See Docket No. 173. In his third
objection, plaintiff argues that he was unconscious when he
was pepper sprayed by Officer McKinnon and, for this reason,
he was not immediately aware that it had happened until he
watched the video. Docket No. 173 at 4-5; see also
Docket No. 135 at 3, ¶ 26. He argues that there is a
genuine dispute of material fact as to whether he was
unconscious and, accordingly, whether he timely filed his
grievance. Docket No. 173 at 4. For this reason, he argues
that summary judgment is inappropriate. Id.
argue that plaintiff's assertion that he was unconscious
when he was pepper sprayed by Officer McKinnon is
contradicted by the surveillance video. Docket No. 176 at
4-5; see also Docket No. 120 (the video).
Specifically, defendants contend that “[t]he video of
the incident shows that Plaintiff was conscious at all
times” because he “voluntarily put his hands
behind his back to be handcuffed, ” “rolled to
his right side, ” and raised his head. Docket No. 147
at 8. Thus, according to defendants, the Court should not
adopt plaintiff's version of the facts in ruling on the
motion for summary judgment. Id. (citing Scott
v. Harris, 550 U.S. 372, 380 (2007) (a court should not
adopt a version of the facts that is “blatantly
contradicted by the record, so that no reasonable jury could
Court concludes that a reasonable jury could find that
plaintiff was unconscious during the time that plaintiff was
apparently pepper sprayed by Officer McKinnon. In the video,
plaintiff stands against a wall in the cafeteria area,
appearing at first to comply with an order from Officer
McKinnon. Docket No. 120. Once Officer McKinnon is next to
plaintiff, plaintiff begins to hit Officer McKinnon several
times, at which time Officer McKinnon stumbles over a table.
Id. Plaintiff continues assaulting Officer McKinnon
as another corrections officer sprays plaintiff in the face
with pepper spray. Id. After Officer McKinnon grabs
plaintiff's legs to restrain him, plaintiff appears to
voluntarily lie down on the floor, face down, and puts his
hands behind his back. Id. At this point, two other
corrections officers restrain ...