United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
TENA CAMPBELL UNITED STATES DISTRICT COURT
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. 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.
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.
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.
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).
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).
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.
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)).
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.
FAILURE TO PROTECT
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.
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).
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.
challenge Plaintiff's assault claim because he has not
exhausted his administrative remedies in the prison grievance
Affirmative Defense Requirements on Summary Judgment
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).
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).
Basic Exhaustion Law in Corrections Context
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).
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
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.
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.)
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.)
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.
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 #
(Doc. No. 56, at 4-5 (signed July 13, 2018).)
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
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
(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.
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
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 ...