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Ortiz v. Torgenson

United States District Court, D. Utah

March 27, 2019

DANIEL ORTIZ, Plaintiff,
v.
OFFICER TORGENSEN et al., Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          JUDGE TENA CAMPBELL UNITED STATES DISTRICT COURT

         Plaintiff, Daniel Ortiz, is a pro se prisoner proceeding in forma pauperis. In this civil-rights complaint, 42 U.S.C.S. § 1983 (2019), he names the following Utah Department of Corrections (UDOC) defendants: Torgensen, Peterson, Pickett, Braithwait, Allred, George, Anderson, Ekkart, Burnham, Dennis, Sorensen and Sylvester.[1] He asserts his federal constitutional rights were violated when Defendants failed to protect him, retaliated against him for filing grievances, and provided inadequate medical care.

         Plaintiff was assaulted and injured by other inmates on July 29, 2015. (Doc. No. 47-16.) This assault is the subject of his failure-to-protect claim and the resulting injuries are the subject of his inadequate-medical-care claim.

         Defendants move for summary judgment. (Doc. No. 60.) Defendants support their motion with a Martinez report (including declarations, medical records, and grievance policy and history). (See Doc. Nos. 46-48.) Plaintiff responds to the motion, with briefing, declarations, and UDOC policy materials, (see Doc. Nos. 56, 65, 66, & 68). The Court rules for Defendants.

         SUMMARY-JUDGMENT STANDARD

         Summary judgment is proper 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). A party may support factual assertions by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Id. at 56(c)(1). Summary judgment's purpose “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         The movant has the “initial burden to demonstrate an absence of evidence to support an essential element of the non-movant's case.” Johnson v. City of Bountiful, 996 F.Supp. 1100, 1102 (D. Utah 1998). Once movant meets this burden, “the burden then shifts to the non-movant to make a showing sufficient to establish that there is a genuine issue of material fact regarding the existence of that element.” Id. To do so, the non-movant must “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1999) (citation omitted). In ruling on a summary-judgment motion, this Court must “examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Sealock v. Colorado, 218 F.3d1205, 1209 (10th Cir. 2000).

         This Court notified Plaintiff that, in response to a summary-judgment motion, “Plaintiff cannot rest upon the mere allegations in the complaint. Instead . . . Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial.” (Doc. No. 17, at 3.) In Plaintiff's response, he did not identify material facts in dispute.

         QUALIFIED IMMUNITY

         Defendants' assertion of qualified immunity modifies the summary-judgment review. Asserting qualified immunity, a state employee creates a rebuttable presumption that she is immune from the plaintiff's § 1983 claims. See Medina v. Cram, 252 F.3d 1124, 1129 (10th Cir. 2001). And rather than “focus[ing] on the existence of genuine disputes of material fact, ” the court must “'determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal questions before the court.'” Spencer v. Abbott, No. 16-4009, 2017 U.S. App. LEXIS 24668, at *10 n.6 (10th Cir. Dec. 5, 2017) (unpublished) (emphasis in original) (quoting Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015)).

         The qualified immunity analysis has two parts: first, whether, under the facts alleged by the plaintiff, the government officials violated a constitutional right; and second, “whether the right at issue was ‘clearly established' at the time of the defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the plaintiff fails to satisfy either element of his burden, the court must grant the defendant qualified immunity. See Medina, 252 F.3d at 1128. When the material facts are not disputed, the question of immunity “is a legal one for the court to decide.” Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). Such is the case here. Plaintiff fails to show that the government officials in this case violated his constitutional rights. The Court therefore need not address the “clearly established” prong.

         ANALYSIS

         I. FAILURE TO PROTECT

         Plaintiff asserts two claims of failure to protect: (1) that Defendants Anderson and Peterson called him a “snitch” in front of other inmates and that he has consequently since been threatened by other inmates; and, (2) he was assaulted and hurt by rival-gang-member inmates after warning Defendants Torgensen, Peterson, Pickett, Braithwait, Allred and George that the rival gang members were unsecured nearby and a threat to him.

         To succeed on a “failure to protect” theory for his Eighth Amendment claims of cruel and unusual punishment, Plaintiff would have to show that Defendants (i) actually knew about an “excessive risk” to his health or safety, Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000), and (ii) were deliberately indifferent to--i.e., consciously disregarded--that risk, Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001).

         A. “Snitch” Allegations

          It is undisputed that Plaintiff has not identified a physical harm to him stemming from Defendants Anderson and Peterson allegedly calling him a “snitch.” “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .” 42 U.S.C.S. §1997e(e) (2019). This claim is thus dismissed.

         B. Assault Allegations

         Defendants challenge Plaintiff's assault claim because he has not exhausted his administrative remedies in the prison grievance system.

         1. Affirmative Defense Requirements on Summary Judgment

         Defendants advancing an affirmative defense--i.e., failure to exhaust administrative remedies--must show that there is no disputed material fact as to any element of the affirmative defense when the evidence is seen in a light most advantageous to the plaintiff. Kramer v. Wasatch County Sheriff's Office, 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks and citation omitted); Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007). When defendants meet this burden, the plaintiff has a duty to cite evidence showing “with specificity the existence of a disputed material fact, ” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997), or “show that remedies were unavailable to him as a result of” the actions of prison officials. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Absent either showing, the defendants are entitled to summary judgment on the affirmative defense. Id. at 1254. If material facts are disputed, though, summary judgment must be denied. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).

         Again, on summary judgment, the Court must view the evidence in a light most favorable to Plaintiff. Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001). Evidence, including testimony in declarations, “must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

         2. Basic Exhaustion Law in Corrections Context

         Federal statute requires inmates attacking prison conditions in federal court to exhaust their administrative remedies in the prison grievance system: “No action shall be brought with respect to prison conditions under this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2019).

         The Supreme Court holds that exhaustion is not satisfied by filing of an untimely or otherwise procedurally infirm grievance, but must be “proper.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “Proper exhaustion” means “'using all steps the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002)) (emphasis in original); see also Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007) (“Substantial compliance is insufficient.”). In Ngo, the Supreme Court concedes “this will prevent certain prisoner cases from proceeding, but notes that a ‘centerpiece of the PLRA's effort to reduce the quantity . . . of prisoner suits is an “invigorated” exhaustion provision, § 1997e(a).' ‘Exhaustion is no longer left to the discretion of the district court, but is mandatory.'” Tung v. Hartley, No. 1:08-CV-457-AWI, 2012 U.S. Dist. LEXIS 30895, at *3 (E.D. Cal. Mar. 8) (citations omitted) (ellipses in original). Still, courts must ensure “any defects in exhaustion were not procured from the action or inaction of prison officials.” Aguilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see also Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable' and a court will excuse the prisoner's failure to exhaust.”).

         3. Applying Law to Facts Regarding Grievances

          UDOC's written policy requires grieving inmates to go through each of three levels by certain deadlines to exhaust the administrative process. (Doc. No. 46-5, at 12-14.) Defendants submitted the following documentation of Plaintiff's failure to meet these requirements: a copy of the grievance policy, (Doc. No. 46-5); the inmate grievance coordinator's declaration that she attached to the Martinez report “correct and accurate copies of [Plaintiff's] relevant grievance records, ” (Doc. No. 47-12, at 2); and the fact that none of the grievances attached were filed within the required “seven working days of an incident”--i.e., the assault on July 29, 2015. Defendants have carried their burden to show that Plaintiff did not comply with grievance policy. Booth, 532 U.S. at 741 n.6. The burden then shifts to Plaintiff to cite evidence specifically showing there is a disputed material fact.

         Plaintiff has two arguments to rebut Defendants' successful assertion of their affirmative defense based on failure to exhaust. First, he points to Grievance # 9908922519, which he fully exhausted. (Doc. No. 47-17, at 2-9.) But there are a couple fatal problems as to that grievance: The Level-One grievance was not filed until October 22, 2015--nearly three months after the assault. That is not even close to the seven working days he had to file his grievance. (Doc. No. 46-5, at 12.) His explanation is that the grievance responders never mentioned that his grievance was filed late, but instead treated the grievance's merits, and so tacitly legitimized his untimeliness. (Doc. No. 65, at 9.)

         That leads into the other problem with Grievance # 9908922519, which is that the grievance is actually about the separate issue of alleged retaliation, not failure to protect from the assault. So, the grievance responders would not have thought to deny the grievance as untimely based on the assault date. Plaintiff indeed mentions the assault in the grievance, but only as it relates to the alleged retaliation. (Doc. No. 47-17, at 2-3.) In the grievance, he gives examples of how he has been retaliated against. One of the incidents he states as “proof” that he was “being targeted” for writing grievances is (in Plaintiff's words) as follows:

I have written grievences on officers who have harrased me and also on the A-B schedule lockdown. After writting these grievences I get let out of my cell on July 29, 2015, on my A-B lockdown day. I get called to O.M.R. (to discuss my levels being droped after getting found not guilty for a write-up). I wasn't escorted out and no controlled movement was done as they are suppose to. After the Capt. and Lt. argue with me about why I shouldn't get my levels back, I am told to go back to my cell. As soon as I step out of the O.M.R. room two nortenos attack me and I get injured. This was no “accident” or “mistake, ” why wasn't procedure followed? And how did those guys know I was in O.M.R. and allowed out of their section to wait for me? I now believe this was done on purpose to retaliate on me. After this happened I wrote a grievence to get off the A-B schedule because of this incident, and was told by Lt. Peterson when he handled my grievence that I “had put a huge spotlight on me” and that, “it would go all bad for me if I pursue it.” (reffering to my grievence) I am now writing this grievence for retaliation based on the incidents which I have stated here.

(Id. at 3.)

         So, Grievance # 9908922519 does not get Plaintiff where he wants to be. But it does segue into Plaintiff's second argument rebutting Defendants' affirmative defense. It involves Defendant Peterson allegedly intimidating Plaintiff to keep him from grieving the assault incident. The argument is based solely on Plaintiff's own declarations. He produces no corroborating documents, like grievance copies or even grievance numbers that could be traced.

         This is the relevant content of his declaration (in his own words):

On Auguest 6, 2015 I filed a grievance concerning the incident on July 29, 2015. On Auguest 13, 2015 I met with defendant Roger Peterson, in his office, to address my grievance. During this meeting, defendant Peterson began to intimidate me about resolving this grievance. He began telling me how he took the blame for what happened to me and told me how he had gotten “in trouble” for it. He mentioned that I had brought a huge spotlight, from Draper, to all of Birch staff and to myself, because of my grievance. He stated they were trying to handle ‘my incident' in-house but because of my grievance the Draper prison now knows what happened to me. He stated, “People who complain get transferred to a worst place, ” and brought up an inmate who goes by “Uno, ” who got moved out of Birch for complaining. I told defendant Peterson that I wasn't trying to cause any trouble and that I just wanted to continue with the grievance process. And then he told me, “It will go all bad for you if you persue it.” Because of the defendants words to me and the intimidation, I was compelled to circle the “yes” part of the grievance resolve form, in front of defendant Peterson, so he would see that I “resolved” my issues. I didn't want anything else to happen to me because of me writing this grievance and was scared to continue with it.
On October 10, 2015, a month after my encounter with defendant Peterson “handling” my grievance, I was given two disciplinary write-ups, placed on T.R.O. lockdown and then moved out of Birch housing to a more restrictive housing in Dogwood housing S.M.U. (Severe Management Unit). At this time I filed another grievance on being retaliated on and threatened by defendant Peterson. On this grievance, I again brought up the issue and assaut incident of July 29, 2015, and was allowed by the Grievance Coordinator to continue with the Administrative Remedy Process on the issues in this grievance. I was permitted to appeal the Grievance Process and decisions until the Administrative Remedy Process was exhausted. Therefore, all issues pertaining to the assault of July 29, 2015 were exhausted in Grievance # 990892519.

(Doc. No. 56, at 4-5 (signed July 13, 2018).)

         This narrative (prepared strictly with an eye to furthering this litigation three years after the assault) is undercut by Plaintiff's assault-contemporaneous, detailed, handwritten account in Grievance # 9908922519 produced by Defendants above:

After [the assault] happened I wrote a grievence to get off the A-B schedule because of this incident, and was told by Lt. Peterson when he handled my grievence that I “had put a huge spotlight on me” and that, “it would go all bad for me if I pursue it.” (reffering to my grievence) I am now writing this grievence for retaliation based on the incidents which I have stated here.

(Doc. No. 47-17, at 3 (signed Oct. 21, 2015) (emphasis added).) So it appears that the issue that Plaintiff addressed in the grievance after the assault and discussed in the confrontation with Defendant Peterson was a request to “get off the A-B schedule, ” not Plaintiff's current claim of failure to protect.

         Setting aside Plaintiff's wobbly argument that Defendant Peterson deterred him from exhausting a timely grievance about failure to protect from the assault, there is another obstacle to Plaintiff's quest to carry his burden of showing that an issue of material fact jeopardizes Defendants' affirmative defense of exhaustion.

To the extent plaintiff's argument is that . . . staff threatened or intimidated him into not exhausting his remedies, plaintiff must show: “(1) that the threat or intimidation actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the prison administrative process; and (2) that the threat or intimidation would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the prison administrative process that the inmate failed to exhaust.”

Carbajal v. Keefer, No. 12-cv-03231-PAB-KLM, 2017 U.S. Dist. LEXIS 159512, at *17-18 (D. Colo. Sept. 27, 2017) (quoting Tuckel, 660 F.3d at 1254). So, the timing and volume of grievances filed by Plaintiff after Defendant Peterson's “intimidation” also undermines Plaintiff's contention. See id. at *18 (noting after alleged threats and intimidation “Plaintiff filed at least one grievance and alleges that he filed many more”).

         According to Plaintiff, at the risk of being repetitive:

On October 10, 2015, a month after my [intimidating] encounter with defendant Peterson “handling” my grievance, I was given two disciplinary write-ups, placed on T.R.O. lockdown and then moved out of Birch housing to a more restrictive housing in Dogwood housing S.M.U. (Severe Management Unit). At this time I filed another grievance on being retaliated on and threatened by defendant Peterson. On this grievance, I again brought up the issue and assaut incident of July 29, 2015, and was allowed by the Grievance Coordinator to continue with the Administrative Remedy Process on the issues in this grievance. I was permitted to appeal the Grievance Process and ...

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