Jones v. Bradshaw

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Defendant Clay Bradshaw^[1] seeks an order of dismissal arguing that Plaintiff failed to exhaust his administrative remedies at the prison facility before filing the present action. In support of his argument, Defendant attached to his motion an affidavit and copies of grievance forms filed by the Plaintiff. Accordingly, the Court notified the parties that it would convert the motion to dismiss to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d). Plaintiff filed a response brief to which he attached additional exhibits, and Defendant filed a reply in support of his motion. The Court concludes that Plaintiff has failed to raise a genuine issue of material fact as to whether he properly exhausted his administrative remedies before bringing this action and, thus, grants Defendant's motion and dismisses Plaintiff's claim 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. During all relevant times, Plaintiff was incarcerated at Sterling Correctional Facility (“SCF”).

         2. On April 28, 2017, Plaintiff filed a Step One grievance complaining that, on April 13, 2017, he was eating in the cafeteria when Defendant approached and told Plaintiff to move to a “handicap table”; when Plaintiff asked whether it was required that he move, Defendant answered no. Grievance Form, ECF 21-1 at 23. Plaintiff notes that he asked to see a shift commander, but Defendant denied the request and left. Id. Defendant returned and told Plaintiff to go outside, but Plaintiff continued to eat; Defendant then directed Plaintiff to “cuff up.” Id. Plaintiff contends that when he turned around to cuff up, Defendant “sprayed” him with pepper spray and “did not use proper procedure.” Id. Plaintiff's requested remedy was that Defendant “be fired.” Id.

         3. Nathan Wagner responded to the Step One grievance saying, “Thank you for bringing this issue to our attention. This issue has been addressed at the supervisory level. Your grievance is denied on a procedural basis. The remedy requested does not meet the criteria in AR 850-04 Grievance Procedure which states ‘DOC employee, contract worker, or volunteer discipline/reprimand, damages for pain and suffering, and exemplary or punitive damages are not remedies available to offenders.'” Id.

         4. On June 2, 2017, Plaintiff filed a Step Two grievance form on which he copied the same information contained in his Step One grievance. Grievance Form, ECF 21-1 at 24. Plaintiff also requested that Defendant “be fired.” Id.

         5. Gary Little responded to the Step Two grievance saying, “This issue has been addressed at the supervisory level with Sergeant Bradshaw and the necessary steps taken to minimize similar incidents in the future. As explained to you, your grievance is denied on a procedural basis. The remedy you requested is that Sergeant Bradshaw be terminated. The remedy requested does not meet the criteria in AR 850~04 (Grievance Procedure), which states ‘DOC employee, contract worker, or volunteer discipline/reprimand, damages for pain and suffering, and exemplary or punitive damages are not remedies available to offenders.'” Id.

         6. On June 22, 2017, Plaintiff filed a Step Three grievance form on which he copied the same information contained in his Step One and Step Two grievances. Grievance Form, ECF 21-1 at 25. Again, Plaintiff requested that Defendant “be fired.” Id.

         7. Anthony DeCesaro responded to the Step Three grievance providing the same information as that provided by Mr. Wagner and Mr. Little and saying, “The time constraints outlined in AR# 850-04 are now expired regarding these events, so there will be no further review of this matter. You have not exhausted your administrative remedies in this matter based upon your failure to satisfactorily request allowable relief. This is the final administrative action in this matter.” July 14, 2017 Letter, ECF 21-1 at 26.

         LEGAL STANDARDS

         A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No genuine issue of material fact exists “unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1098 (10th Cir. 2019) (quoting Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)).

         The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

         The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (citation omitted); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “ ‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and...if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005); see also Hasan, 935 F.3d at 1098 (““Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”).

         “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. ...