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Lehman v. McKinnon

United States District Court, D. Colorado

September 16, 2019

BRIAN McKINNON, JAQUES, Correctional Officer Sgt., McCARROLL, Correctional Officer, Defendants.



         This 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. 176.

         I. BACKGROUND

         The 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.

         Defendants 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.[1] Id. at 6-7. Because plaintiff failed to follow this procedure, defendants argue, he did not properly exhaust his administrative remedies. Id. at 7.

         Plaintiff 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.

         The 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. at 14.


         Summary 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).

         When 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)).

         III. ANALYSIS

         Plaintiff 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.

         Defendants 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 believe it.”).

         The 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 ...

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