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Ordonez v. Burnham

United States District Court, D. Utah

March 29, 2017

DR. BRUCE O. BURNHAM, Defendant.


          Ted Stewart District Judge

         This matter is before the Court on Defendants' Motions for Summary Judgment. (See Docket Entry # 48 & 62.) For the reasons discussed below, the Court denies Beaver County Jail (BCJ) Defendants' motion and grants Defendant Burnham's motion.


         Plaintiff was an inmate at Beaver County Jail (BCJ). Defendants Bastian and Sidwell were officers working at BCJ.[1] Defendant Burnham was a Utah Department of Corrections (UDOC) doctor who cared for inmates at BCJ once per week.

         On August 7, 2010, Inmate M punched Plaintiff in the face, injuring Plaintiff's nose. BCJ Defendants were on duty during the attack and took Plaintiff to see the nurse right away. Plaintiff later saw Defendant Burnham for medical treatment regarding his nose injury.


         Plaintiff's Complaint, (Docket Entry # 6), alleges Defendants violated his Eighth (cruel and unusual punishment) and Fourteenth (equal protection) Amendment rights under the Federal Constitution. Responding to the Complaint, as ordered by the Court, (Docket Entry # 13), Defendants filed Martinez reports, (Docket Entry #s 43, 45, 52, 53, 55, & 56), and Motions for Summary Judgment, (Docket Entry #s 48 & 62). Plaintiff responded to the reports and motions. (See Docket Entry #s 64, 69, 72, 73.) The Court has thoroughly reviewed these documents and all others on the docket in rendering this decision.


         “‘[I]f the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law'” summary judgment is appropriate. Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (10th Cir. 2009) (quoting Fed.R.Civ.P. 56). The moving party has the original burden to show an absence of evidence supporting a crucial element of the opposing party's case. Johnson v. City of Bountiful, 996 F.Supp. 1100, 1102 (D. Utah 1998); see also Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (“The moving party need not affirmatively negate the nonmovant's claim in order to obtain summary judgment. Instead, the movant only bears the initial burden of showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” (Internal quotation marks & citations omitted.)). The Court must consider the factual record and the inferences derived from those facts in the light most favorable to the nonmoving party. Johnson, 996 F.Supp. at 1102.

         If the movant carries its initial burden, the nonmovant cannot rest upon his pleadings, but must “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (quoting Fed R. Civ. P. 56(e)). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004) (citation omitted).



         Defendants first argue Plaintiff's claims should be dismissed based on the four-year statute of limitations applicable to federal civil-rights cases filed in this Federal Court. See Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir. 1995) (holding that four-year statute of limitations now codified at Utah Code Ann. § 78B-2-307 (2016) applies to federal civil-rights actions).

         Plaintiff's claims apparently accrued starting on August 7, 2010, the day of the attack. Defendants point out that his civil-rights complaint was not “filed” until September 2, 2014; however, there is also a date stamp of August 1, 2014, on the first page of the Complaint that says, “RECEIVED CLERK.” Defendants do not flesh out how that may affect the statute of limitations, including an argument about the mailbox rule or any other applicable principle.

         Summary judgment is thus denied on this issue.


         There is potentially a dispute of material facts on this issue. To be sure, Defendants have offered documentary evidence that Plaintiff did not properly exhaust. Their evidence--including declarations, the grievance policies for both BCJ and UDOC, and actual copies of Plaintiff's level-one grievance at BCJ and BCJ's response--is impressive.

         It is contested by Plaintiff's sworn affidavit in which he gives very specific information about the grievances he filed. “On Wendesday, August 11, 2010, my friends helped me to filed a grievance, (which at the time, I didn't know the grievance process) . . . . (This was grievance Level # 1).” [Sic] (Plaintiff's aff., Docket Entry # 11, at 3.) This would have apparently met the seven-day deadline for filing a grievance regarding the attack. Plaintiff goes on to aver that on August 17, 2010, “Caseworker Jay Barton, Lt. Draper, Sgt. Messenger and other officers . . . told [Plaintiff] that [his] grievance was denied.” (Id.)

         He further states that he filed “grievance # 2 . . . on 8-18-10, . . . which it got denied or rejected stating that I couldn't filed grievance # 2 because grievance # 1 had been denied!” (Id. at 7.) By August 23, 2010, he still “hadn't received any written response to [his] grievance # 2, ” but asserts that on August 20, 2010, he “got yelled at by Lt. Draper and Sgt. Messinger to stop sending grievances.” (Id. at 8.) His story continues that he was helped by another inmate “who was coaching [him] in this matter” and told him “to wait for 21 days (working days) for a response if [he] didn't get a response or if [he] got a response in 21 working days” then “if [he] didn't like it to filed grievance # 3.” (Id.)

         Plaintiff says that “[o]n or about September 15, 2010, after waiting for a response from the grievance coordination, which I never got, my friend helped me to filed Level 3 grievance, asking for the same thing.” [Sic] (Id. .) He says that “after [his] level 3 grievance, nothing was ever the same for [him], the guards made sure that [he] was living hell and they made things up just to keep me in the hole.” (Id. at 9-10.)

         Plaintiff also explains why he has not submitted copies of these grievances to offset Defendants' very different story of his grievance process (submitted at level one only):

On about December 5, 2011, I was transferred out of Beaver County, but the guards confiscated all my legal paper work stating that I was not allowed to carry anything that was conserning Beaver County Jail, so they only let me take with me personal letters from my family and friends, but everything else they kept, . . . Therefore I don't have any records of my grievances and I have requested them in a grama to Records, but those records have been denied to me, and I have written to Beaver County Jail asking for copies of my grievances, but, I have not ...

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