United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Clay Bradshaw 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.
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
During all relevant times, Plaintiff was incarcerated at
Sterling Correctional Facility (“SCF”).
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
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.
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.
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.
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
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
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)).
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).
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.”).
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. ...