United States District Court, D. Colorado
ORDER ON AMENDED RECOMMENDATION
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the Amended Recommendation of
United States Magistrate Judge (the
“Recommendation”) (ECF No. 120) to grant
Defendants’ “Motion for Partial Summary
Judgment” (the “Motion”) (ECF No. 80)
alleging that Plaintiff failed to exhaust his administrative
remedies under 42 U.S.C. § 1997e(a) of the Prison
Litigation Reform Act of 1966 (“PLRA”) as to
certain claims and allegations. Plaintiff filed an objection
(the “Objection”) (ECF No. 128) to which
Defendants filed a response (ECF No. 130). The matter is ripe
for resolution.
I.
LEGAL STANDARD
A.
Review of a Magistrate Judge’s Recommendations
When a
magistrate judge issues a recommendation on a dispositive
matter, Fed.R.Civ.P. 72(b)(3) requires that the district
court judge “determine de novo any part of the
magistrate judge’s [recommendation] that has been
properly objected to.” Upon review, “[t]he
district court judge may accept, reject, or modify the
recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Id. In the absence of a timely and specific
objection, “the district court may review a
magistrate’s report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991) (citations omitted); see also
Fed. R. Civ. P. 72 Advisory Committee’s Note
(“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
B.
Motions for Summary Judgment
The
Magistrate Judge correctly set forth the standards applicable
to motions filed under Fed.R.Civ.P. 56. Accordingly, the
Court incorporates them by reference.
C.
The PLRA
“The
PLRA attempts to eliminate unwarranted federal-court
interference with the administration of prisons.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). Therefore
it “seeks to afford corrections officials time and
opportunity to address complaints internally before allowing
the initiation of a federal case.” Id.
(quotations, alteration, and citation omitted). The prison
grievance system is to be given “a fair
opportunity” to consider the grievance and can do so
only if “the grievant complies with the system’s
critical procedural rules.” Id. at 94. Thus,
“proper exhaustion of administrative remedies is
necessary.” Id. at 84.
For
exhaustion to be proper, this means exhaustion is required
“even where the relief sought…cannot be granted
by the administrative process.” Id. at 82-83
(citing Booth v. Churner, 532 U.S. 731, 734 (2001)).
This also means starting the grievance process is not enough;
the process must be completed. Jernigan v. Stuchell,
304 F.3d 1030, 1032 (10th Cir. 2002). This also means that a
grievant is not excused from compliance with the process
based on his disagreement with prison officials as to the
appropriateness of a particular procedure or belief that he
should not have to correct a procedural deficiency. See
Thomas v. Parker, 609 F.3d 1114, 1119 (10th Cir. 2010).
The BOP
provides a four-tiered Administrative Remedy Program for
inmate grievances – one informal and three formal. The
required steps and their timing of these four tiers are not
disputed, including the requirement that the inmate has 20
days following the date on which the basis for the request
occurred to complete a first step informal resolution and
file a formal written Administrative Remedy Request known as
a BP-9. See 28 C.R.F. §§ 542.13(a) &
542.14(a). An inmate exhausts his administrative remedies
when he has properly and timely sought review at all three
formal levels. See 28 C.R.F. § 542.15(a)
“Failure
to exhaust is an affirmative defense.” Rachel v.
Troutt, 764 Fed.Appx. 778, 781 (10th Cir. 2019) (citing
Jones v. Bock, 549 U.S. 199, 216 (2007)).
Defendants’ Motion requesting dismissal is based on
such alleged failure.
II.
FACTUAL AND PROCEDURAL BACKGROUND[2]
Plaintiff
was convicted for the attempted use of a weapon of mass
destruction on a commercial airliner that landed in Detroit,
Michigan, and the attempted murder of the 289 people on
board. Plaintiff is from Nigeria and a Muslim. Plaintiff is
housed at the United States Penitentiary–Administrative
Maximum (“ADX”) in Florence, Colorado, and
serving four terms of life imprisonment plus 50 years for his
convictions. Prior to Plaintiff’s transfer to ADX, in
March 2012, the United States government placed Plaintiff
under Special Administrative Measures (“SAMs”).
The SAMs have been renewed every year, with some
modifications.
Plaintiff
brought this action asserting the following 14 claims for
relief arising from his transfer to ADX, his SAMs, and his
conditions of confinement at ADX. Defendants’ Motion
argues Plaintiff failed to exhaust his administrative
remedies as to certain claims and allegations. The Magistrate
Judge agreed and recommended granting the Motion and
dismissing certain claims and allegations. Plaintiff’s
Objection followed. The matters at issue and their
recommended disposition are as follows:
-
Claim #
|
Summary of claim or allegation
|
Recommendation
|
1
|
Plaintiff’s transfer to ADX in 2012 in
deprivation his liberty without due process in
violation of the Fifth Amendment
|
Dismiss entirely
|
2-5
|
The imposition of SAMs in violation of the First
Amendment and in violation of substantive due
process rights under the Fifth Amendment
|
Dismissal as to allegations of restricting
communications with 13 nieces and nephews
|
6
|
Retaliation against Plaintiff by confining him in
Special Housing Unit in Range 13, for engaging in
hunger strike to protest his conditions of
confinement in violation of the First Amendment;
|
Dismiss entirely
|
7
|
Denial of Plaintiff’s right to refuse medical
treatment, i.e., the force feeding of nutrients
related to his hunger strikes, in violation of the
Fifth Amendment;
|
Dismissal to extent alleges forced feeding without
medical necessity, for purposes of retaliation,
and/or without following the BOP’s procedures
on force-feeding
|
8
|
Denial of access to group prayer in violation of
the Religious Freedom Restoration Act
(“RFRA”)
|
Dismiss entirely
|
9
|
Failure to provide meaningful access to an imam in
violation of RFRA
|
Dismiss entirely
|
10
|
Denial of a halal diet in violation of RFRA
|
Dismiss entirely
|
11
|
Responding to hunger striking by force feeding in
violation of RFRA
|
Dismissal to extent alleges forced feeding without
medical necessity, for purposes of retaliation,
and/ without following the BOP’s procedures
on force-feeding
|
12
|
Force feeding non-halal nutritional supplement in
violation of RFRA
|
Dismiss entirely
|
13
|
Excess force by force feeding in violation of the
Eighth Amendment
|
Dismissal to extent alleges forced feeding without
medical necessity, for purposes of retaliation,
and/without following the BOP’s procedures on
force-feeding
|
14
|
Cruel and unusual punishment under totality of
circumstances in violation of the Eighth Amendment
|
Dismissal to the extent it relies on unexhausted
allegations
|
¶ 147
|
Allegations that the BOP restricted
Plaintiff’s access to certain books,
identifying two books that allegedly were not
delivered.
|
Dismissal of allegation
|
Plaintiff
objects to the recommended dismissals of paragraph 147 and of
portions of claims 2-5, 7, 11, 13, and 14. Plaintiff’s
arguments are three-fold. First, Plaintiff argues that
dismissal of allegations or portions of claims is
impermissible. Next, Plaintiff contends there are disputes of
material facts which preclude summary judgment in favor of
Defendants as to whether such issues or allegations were
exhausted. Finally, Plaintiff asserts there are factual
disputes as to whether there were “available”
administrative remedies because there is a factual issue of
whether Defendant Bureau of Prison (“BOP”) had
authority to address concerns regarding SAMs (claims 2-5) and
because Plaintiff was in the hospital when he had to submit
administrative remedies based on the force feeding in 2012
and 2015 (claims 7, 11, and 13).
III.
ANALYSIS
A.
Matters to which there are no objections
Plaintiff
does not object to the recommended dismissal of claims 1, 6,
8, 9, 10, and 12.[3]After conducting a review of the record and
finding no clear error, the Court accepts the recommended
dismissal of claims 1, 6, 8, 9, 10, and 12.
B.
Matters to which there are objections
1.
Exhaustion of claims ...