Ellis v. Dalyrimple et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-00965-SKC-SBP
JOSHUA JAMES ELLIS,
Plaintiff,
v.
MESA COUNTY and
SHERIFF TODD ROWELL, Mesa County Sheriff,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This case is before the court on Defendants’ Motion to Dismiss Plaintiff’s Third
Amended Complaint [ECF No. 54] Pursuant to Fed. R. Civ. P. 12(b)(6) or, Alternatively, Fed. R.
Civ. P. 56. ECF No. 57 (“Motion”). Plaintiff Joshua James Ellis (“Plaintiff” or “Mr. Ellis”)
opposes the Motion. ECF No. 70. Defendants filed a reply. ECF No. 71. Plaintiff submitted an
unauthorized surreply (ECF No. 72), which this court later accepted when it also accepted
Defendants’ response to that filing. ECF No. 73-1. The Motion is referred to this court for a
recommendation. ECF No. 58. Because Plaintiff proceeds pro se, the court liberally construes his
filings, but it does not act as his advocate. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons that follow, this court
respectfully RECOMMENDS that the Motion be granted.
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BACKGROUND
This action arises from Plaintiff’s time as a pretrial detainee at the Mesa County
Detention Facility (“MCDF” or the “Facility”) in Grand Junction, Colorado. ECF No. 54 at 4.1
On September 12, 2020, while housed at MCDF, Plaintiff was stabbed in the neck by an inmate
named Miguel Angel Pasillas. Complaint ¶ 8. Following that attack, Pasillas pleaded guilty to
one count of second degree assault with a deadly weapon in violation of Colorado Revised
Statute § 18-3-203(1)(b), and was sentenced to a term of nine years in the Colorado Department
of Corrections. See July 18, 2022 Letter from Twenty-First Judicial District Attorney’s Office to
Ellis, ECF No. 70 at 4. 2
Plaintiff filed this action on April 20, 2022. He was then in custody at the Bent County
Correctional Facility, Complaint at 2, where he remains incarcerated. See CDOC Offender
Search (noting Plaintiff’s current facility assignment at Bent County and an estimated mandatory
release date of May 26, 2034); see also Doe v. Heil, 533 F. App’x 831, 833 n.2 (10th Cir. 2013)
(taking judicial notice of fact obtained from website of the Colorado Department of Corrections)
(citing N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n.22 (10th Cir.
1 For ease of reference, the court will refer to this pleading, which is the Third Amended
Complaint, as the “Complaint.”
2 Although the letter from the District Attorney’s Office was appended to Plaintiff’s response to
the Motion and not to the Complaint, the facts contained in that letter—reflecting information
contained in Colorado court records—are subject to judicial notice. See, e.g., St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (a court may take
judicial notice of filings in related cases, “both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue”); Hansen v. Harper Excavating, Inc.,
641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (court may may take judicial notice of court documents
as facts “capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned”) (citing Federal Rule of Evidence 201(b)(2)).
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2009)). In the Complaint, Plaintiff brings a municipal-liability claim against Mesa County and
Mesa County Sheriff Todd Rowell, in his official capacity,3 pursuant to 42 U.S.C. § 1983,
asserting that Defendants failed to protect him in violation of his Fourteenth Amendment rights.
Complaint at 4; see also Monell v. Dep’t of Social Serv., 436 U.S. 658, 690 (1978) (recognizing
that a plaintiff may sue local governing bodies directly for constitutional violations stemming
from the policies of the governing body). Specifically, Plaintiff challenges two alleged policies
or practices at the Facility: the “inmate classification process,” and the practice concerning
inmate searches, which Plaintiff describes as a “wide spread practice of Deputies failing to
perform their normal operational security searches” on “known violent gang members and other
violent offenders.” Complaint ¶¶ 4, 7. These allegedly deficient practices “allowed violent gang
members and other violent offenders to make, gather, possess and keep, lethal weapons,” id. ¶ 5,
including the one used by Pasillas in attacking Plaintiff. Id. ¶ 9.
In the instant Motion, Defendants move to dismiss the case pursuant to Federal Rule of
Civil Procedure 12(b)(6) or, alternatively, for summary judgment based on Plaintiff’s failure to
exhaust available administrative remedies before filing this lawsuit.4 The court will address both
3 While Plaintiff indicated on the prisoner complaint form that he sues Sheriff Rowell in both his
official and individual capacities, Complaint at 3, he subsequently confirmed in his surreply that
he sues the Sheriff in his official capacity only. ECF No. 72 at 2 ¶ 4 (“agree[ing] Sheriff Todd
Rowell is only a Defendant in his official capacity”) (emphasis added). Therefore, Plaintiff now
has voluntarily dismissed any individual-capacity claim.
4 Defendants also assert that neither of them was served with the Third Amended Complaint and,
therefore, this court lacks personal jurisdiction over them. Motion at 1-2 n.2. Nevertheless, the
Motion raises substantive arguments in support of Defendants’ requests for dismissal and for
entry of judgment in their favor. See generally id. Without deciding whether Defendants have
waived any argument concerning defective service, this court considers Defendants’ substantive
arguments and issues this recommendation accordingly.
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components of the Motion in this recommendation, beginning with Defendants’ request that
summary judgment be entered in their favor.
ANALYSIS
I. 	Motion for Summary Judgment
Defendants argue they are entitled to summary judgment on Plaintiff’s claims because he
failed to exhaust his administrative remedies before bringing suit, as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Motion at 10-13. Because exhaustion is
a threshold prerequisite to suit, this court first evaluates whether Plaintiff has succeeded in
raising a genuine dispute concerning his failure to exhaust—bearing in mind the Tenth Circuit’s
recent emphasis on the principle that “‘exhaustion is a precondition for bringing suit under the
plain language of § 1997e(a).” Estrada v. Smart, 107 F.4th 1254, 1262 (10th Cir. 2024) (quoting
Small v. Camden Cnty., 728 F.3d 265, 269 (3d Cir. 2013)); see also id. (joining the Second,
Third, Fifth, Seventh, Ninth, and Eleventh Circuits in holding “that judges may resolve factual
disputes relevant to the exhaustion issue without the participation of a jury”) (quoting Small, 728
F.3d at 271). As the PLRA states: “‘No action shall be brought with respect to prison conditions
. . . until such administrative remedies as are available are exhausted.’” 42 U.S.C. § 1997e(a)
(emphasis added). And “[u]ntil the issue of exhaustion is resolved, the court cannot know
whether it is to decide the case or the prison authorities are to.” Estrada, 107 F.4th at 1262
(quoting Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008) (recognizing that “[j]uries decide
cases, not issues of judicial traffic control”)).
A. 	Undisputed Facts
The court finds the following facts undisputed for purposes of the summary-judgment
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component of the Motion:
MCDF has a grievance procedure known as the “Administrative Remedy Procedure.”
Affidavit of Captain Art Smith, now Operations Division Chief at the Sheriff’s Office, dated
May 2, 2024 (the “Smith Aff.”), ECF No. 57-2 ¶ 2. For simplicity, this court will refer to Mr.
Smith as Captain Smith. The remedy process is described in an inmate handbook provided to all
MCDF inmates and pretrial detainees. Id. ¶ 4. At the first level of the process, an inmate or
detainee raises a complaint informally, by means of in-person contact with an MCDF official or
the submission of a written “kite,” which is the term MCDF uses “to refer to the documents
inmates and pre-trial detainees file to make ordinary, daily requests.” Id. ¶¶ 5-6. If the inmate or
detainee feels that his issue has not been resolved at the first, informal level, he must file a
written grievance. Id. ¶ 7. Written grievances are then reviewed by the appropriate MCDF
supervisory staff member, who provides a response. Id. ¶ 8. If the inmate or detainee is
dissatisfied with that response, he has a right to file an appeal, which is addressed by Captain
Smith, who serves as “the detention administrator for resolution.” Id. ¶¶ 3, 9. The appeal of a
grievance “is the final step of the Administrative Remedy Procedure” at MCDF. Id. ¶ 10.
Captain Smith searched MCFD records and found that, while Plaintiff has filed kites
related to the attack by Pasillas and Plaintiff’s classification at MCDF, he has “never filed an
appeal relating to issues with his classification or the attack.” Id. ¶ 15. Plaintiff also never filed
any kite, grievance, or appeal specifically concerning inadequate cell searches. Id. ¶ 14. And
while Plaintiff filed a grievance concerning the actions of a Deputy Dalrymple, who was earlier
dismissed from this case, ECF No. 44, 5 Plaintiff never appealed that grievance. Id. ¶ 16. Captain
5 Plaintiff did not name Dalrymple as a defendant in the Third Amended Complaint.
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Smith avers that Plaintiff did not complete all steps of the process—kite, grievance, and appeal—
for any of the matters at issue in the Complaint. Id. ¶ 17.
B. 	Legal Standards
1. 	Federal Rule of Civil Procedure 56
Summary judgment is warranted under Federal Rule of Civil Procedure 56 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); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). Only disputes over material facts can create a genuine issue for trial
and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th
Cir. 2005). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute
is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. “Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
When the moving party bears the burden of proof—as Defendants do on the affirmative
defense of failure to exhaust administrative remedies—it “must establish, as a matter of law, all
essential elements of the [affirmative defense on which summary judgment is sought] before the
nonmoving party can be obligated to bring forward any specific facts alleged to rebut the
movant’s case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). Once the motion has been
properly supported, “the burden shifts to the nonmoving party to demonstrate a genuine issue for
trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d
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1513, 1518 (10th Cir. 1994). “To avoid summary judgment, a nonmovant must offer evidence,
not bare allegations.” Estrada, 107 F.4th at 1262 (explaining that Federal Rule of Civil
Procedure 56(c)(1)(A) “set[s] forth how a party introduces summary judgment evidence,
including depositions and declarations, to support a factual assertion”); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (nonmovant may not rest solely on allegations, but must show,
by means of affidavits or other competent evidence, that summary judgment is not proper by
designating “specific facts showing that there is a genuine issue for trial”) (quotation omitted).
Ultimately, the court may not enter summary judgment unless the movant carries its burden
under Rule 56. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002); see also Fed. R.
Civ. P. 56(a).
2. 	Prison Litigation Reform Act
In the PLRA, Congress “impos[ed] a strict administrative-exhaustion requirement . . .
[on] civil-rights claims filed by prisoners.” Pakdel v. City & Cnty. of San Francisco, 594 U.S.
474, 481 (2021) (per curiam) (citing 42 U.S.C. § 1997e(a)). The PLRA unequivocally provides
that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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. § 1997e(a). As the
Supreme Court has repeatedly emphasized, “that language is ‘mandatory.’” Ross v. Blake, 578
U.S. 632, 638 (2016) (“An inmate ‘shall’ bring ‘no action’ (or said more conversationally, may
not bring any action) absent exhaustion of available administrative remedies.”) (citing Woodford
v. Ngo, 548 U.S. 81, 85 (2006); id. at 641 (“Exhaustion is no longer left to the discretion of the
district court.”) (quoting Woodford, 548 U.S. at 85)); Gray v. Sorrels, 818 F. App’x 787, 791
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(10th Cir. 2020) (“[T]he district court is not authorized to dispense with [the statutory exhaustion
requirement].”). “There is no question that . . . unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007); id. at 219-20 (“All agree that no unexhausted claim
may be considered.”). This exhaustion-first mandate “allows prison officials an opportunity to
resolve disputes concerning the exercise of their responsibilities before being haled into court.”
Id. at 204.
Exhaustion “requires compliance with deadlines and other critical procedural rules, with
no exceptions for special circumstances.” Ramirez v. Collier, 595 U.S. 411, 421 (2022) (cleaned
up); see also, e.g., Ross, 578 U.S. at 639 (“[T]he PLRA’s text suggests no limits on an inmate’s
obligation to exhaust—irrespective of any ‘special circumstances.’”); McNeil v. United States,
508 U.S. 106, 111, 113 (1993) (stating “[w]e are not free to rewrite the statutory text” when
Congress has strictly barred “claimants from bringing suit in federal court until they have
exhausted their administrative remedies”) (discussing exhaustion requirements under the Federal
Tort Claims Act). Exhaustion therefore must be completed “in accordance with the applicable
procedural rules”—rules which “are not defined by the PLRA, but by the prison grievance
process itself.” Jones, 549 U.S. at 218 (“[I]t is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.”). Thus, “an inmate may only exhaust by properly
following all of the steps laid out in the prison system’s grievance procedure.” Little v. Jones,
607 F.3d 1245, 1249 (10th Cir. 2010) (citing Woodford, 548 U.S. at 90) (emphasis added). “An
inmate who begins the grievance process but does not complete it is barred from pursuing a
§ 1983 claim under [the] PLRA for failure to exhaust his administrative remedies,” and the
“doctrine of substantial compliance does not apply.” Thomas v. Parker, 609 F.3d 1114, 1118
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(10th Cir. 2010) (quoting Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
A prisoner, however, is required to exhaust only “available” administrative remedies. 42
U.S.C. § 1997e(a). An available remedy is one “capable of use for the accomplishment of a
purpose.” Booth v. Churner, 532 U.S. 731, 737 (2001) (quotation omitted). An administrative
remedy is unavailable “when a prison official inhibits an inmate from utilizing an administrative
process through threats or intimidation,” Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir.
2011), or “[w]here prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself
of an administrative remedy[.]” Little, 607 F.3d at 1250; see also Ross, 578 U.S. at 643-44
(administrative procedure is unavailable when officers are “unable or consistently unwilling to
provide any relief”; the administrative scheme is “so opaque that it becomes, practically
speaking, incapable of use”; or “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation”). This
court is “obligated to ensure that any defects in exhaustion were not procured from the action or
inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.
2007).
Finally, once Defendants demonstrate that Plaintiff did not exhaust his administrative
remedies, the onus is on him “to show that remedies were unavailable to him.” May v. Segovia,
929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel, 660 F.3d at 1254); see also Williams v.
Borrego, No. 19-cv-00371-RBJ-MEH, 2020 WL 1502296, at *7 (D. Colo. Mar. 30, 2020)
(noting that inmates face a “high bar to show unavailability”), aff’d on other issues sub nom.
Williams v. Hansen, 5 F.4th 1129 (10th Cir. 2021).
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C. 	Application
Defendants argue that Plaintiff did not exhaust his Fourteenth Amendment failure-to-
protect claim. Motion at 10-11.6 They point to the sworn affidavit of Captain Smith, the then-
administrator of the Administrative Remedy Program at MCDF, who avers that he has examined
MCDF records and has found that—while Plaintiff used the Facility’s remedy procedures on
multiple occasions—he did not complete the process for the claims at issue here, having failed to
see the relevant grievances through to completion at the final, appeal level of the process. Smith
Aff. ¶¶ 12-17.
Plaintiff does not dispute those facts. Instead, in his response to the Motion, he says that
he submitted “several kites” concerning matters related to the attack, ECF No. 70 at 2, but a
“kite” is only the first step of MCDF’s three-tiered administrative remedy process. Smith Aff.
¶ 5. Critically, Plaintiff does not claim to have filed a second-level grievance or a third-level
appeal on these (or any other) issues. See generally ECF No. 70. Complete exhaustion is the
requirement; partial exhaustion does not suffice. See, e.g., Gray, 818 F. App’x at 791 (“Taking
some—but not all—of the steps in the grievance process does not constitute proper exhaustion.”)
(citing Thomas, 609 F.3d at 1118). Indeed, in his surreply, Plaintiff concedes that he did not
submit kites on the same subjects of which he now complains and argues “it would have been
pointless to have added failure to train/inadequate cell searches [because] those facts are more
6 Defendants assert that “[e]xhaustion of administrative remedies is a jurisdictional prerequisite
to suit,” ECF No. 71 at 4, but that is incorrect. The Supreme Court has long recognized that “the
[Prison Litigation Reform Act] exhaustion requirement is not jurisdictional[.]” Woodford, 548
U.S. at 101. Therefore, a motion for summary judgment is an appropriate procedural mechanism
for evaluating exhaustion.
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suitable for the 42 U.S.C. § 1983 Prisoner Complaint.” ECF No. 72 at 1. But in so arguing,
Plaintiff simply disagrees with the PLRA exhaustion requirement. This is not persuasive.
In his surreply, Plaintiff also argues that he was unable to appeal because the MCDF
deputies refused “written grievance forms leaving the only grievance option being an under
construction app on the facility tablet that was inoperable to inmates during Ellis’s time at
MCDF.” Id. He thus argues that “he was unable to file any appeal but did actually exhaust his
only administrative remedies through kites that unfortunately were not taken seriously until the
final kite stating intent to sue.” Id. However, Plaintiff does not sign his surreply under penalty of
perjury, as required for a declaration under 28 U.S.C. § 1746. See, e.g., Complaint at 6 § H (the
requisite language of a declaration is included in the form prisoner complaint). Nor does he sign
the surreply under oath before a notary public, as required for an affidavit. Nor does he request a
hearing.
This court finds an evidentiary hearing unnecessary because as noted above, “[t]o avoid
summary judgment, a nonmovant must offer evidence, not bare allegations.” Estrada, 107 F.4th
at 1262. “Applied here, that standard means once [Defendants] introduced evidence showing that
[Plaintiff] had filed . . . other grievances but none about the [claims he now brings], the burden
shifted to [Plaintiff] to ‘do more than refer to allegations . . . contained in a brief to withstand
summary judgment.” Id. at 1262-63. This court recognizes that unlike the plaintiff in Estrada,
Plaintiff is pro se. But this does not excuse him from providing a sworn statement or declaration
under penalty of perjury, as Rule 56 requires. See Fed. R. Civ. P. 56(c)(1)(A) (“citing to
particular parts of materials in the record, including . . . affidavits or declarations”); Barnes v.
United States, 173 F. App’x 695, 697-98 (10th Cir. 2006) (finding no error in district court’s
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declining to consider pro se litigant’s exhibits for which he did not provide a sworn statement in
support, as required by then-Rule 56(e)). Cf. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
Cir. 2010) (“while pro se litigants are entitled to a liberal reading of their filings . . . they still
must follow the established procedures governing Rule 56[] motions,” and finding no error in
district court’s declining to consider a pro se litigant’s “conclusory declaration under penalty of
perjury [that] failed to provide the specific information required for relief under [then] Rule
56(f)”).
In addition, even if this court could excuse Plaintiff from Rule 56’s requirement of a
declaration or affidavit, Plaintiff’s assertions are self-contradictory. Plaintiff asserts that appeals
were unavailable to him because of the “under construction” app on an inoperable tablet, but
Plaintiff also asserts that deputies required grievances to be filed using that app. Yet Plaintiff
recognizes that he did submit several grievances. Plaintiff’s surreply thus does not explain why
or how the allegedly inoperable tablet would have prevented him from filing appeals.
Defendants also rebut Plaintiff’s surreply with a responsive affidavit from Captain Smith,
dated January 9, 2025. See ECF No. 73-1 at 10-19 (the “Second Smith Aff.”). Captain Smith
avers, among other facts, that:
The process for requesting an appeal form [at MCDF] is that an inmate requests the
form using one of the available systems—tablet kite, paper kite, verbal request—
and a supervisor, typically a Sergeant, responds in-person and provides a
pre-numbered appeal form to the inmate. The appeal forms are numbered and
tracked in the MCDF system such that, if an appeal form is requested, the form
number is logged when it is issued so that any forms requested can be easily
identified.
If, for some reason, an inmate was improperly refused a grievance or appeal
form––something I have not seen in all my time working at the MCDF––the inmate
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would have a remedy; namely filing a personnel complaint via a jail kite or
grievance alerting staff to the situation.
After a reasonable and diligent search of the records at MCDF, no
appeal form was ever issued to Mr. Ellis and he never filed a personnel
complaint jail kite, grievance, or other document indicating that he requested
and was denied an appeal form.
Similarly, the inmate activity logs for Mr. Ellis do not indicate that he
requested an appeal form (verbally or in any other way), or even mentioned an
appeal, at any time during his incarceration at the MCDF. Such requests would be
logged in this log.
Second Smith Aff. ¶¶ 9-13 (emphasis added; certain paragraph breaks omitted). Captain Smith’s
second affidavit only underscores the self-contradictory and conclusory nature of Plaintiff’s
argument that administrative appeals were unavailable.
In short, Plaintiff does not show that the administrative remedy process at MCDF was
unavailable to him. See May, 929 F.3d at 1234 (burden falls on plaintiff to show that remedies
were unavailable). To the contrary, it is apparent from the undisputed facts that Plaintiff did
successfully utilize the remedy process when he was incarcerated at MCDF (albeit on issues
other than the ones he raises in the Complaint) and that he had ample time to complete that
process during the fifteen months he remained at the Facility following the assault. See Smith
Aff. ¶¶ 13, 15; see also id. ¶ 18 (Ellis incarcerated at MCDF from July 30, 2020, to December 1,
2021). He therefore fails to surmount the high bar to show unavailability of the Administrative
Remedy Program. Likewise has he failed to come forward with evidence to demonstrate a
genuine issue for trial on his failure to comply with the PLRA’s exhaustion requirement and to
avail himself of the exhaustion process available to at MCDF.
Notwithstanding these patent defects in exhaustion, Plaintiff asserts that he complied with
the exhaustion mandate because he made MCDF officials aware of his intention to file a lawsuit.
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ECF No. 70 at 2 (stating that, “within a week of the incident,” Plaintiff “did in fact give intent to
sue in writing and in a verbal interview where the Sheriff investigates how Ellis will proceed
after the attack occurred”). Assuming the veracity of Plaintiff’s statement for purposes of the
Motion, his argument is unavailing. Such actions fail to demonstrate compliance with the MCDF
remedy process to which he was required to adhere. Little, 607 F.3d at 1249 (“the prison’s
procedural requirements define the steps necessary for exhaustion,” and an inmate must follow
“all of the steps laid out in the prison system’s grievance procedure”). Whatever threat about a
lawsuit Plaintiff might have conveyed shortly after the incident, whether verbally or in writing,
those communications lie outside the parameters of MCDF’s exhaustion process and are no
substitute for complete compliance with the mandatory grievance procedures. Too, such
actions—extraneous to the administrative exhaustion process as they are—necessarily deprived
the institution of a key benefit of full compliance with the particulars of exhaustion: promoting
efficiency “by encouraging parties to resolve their disputes without litigation.” See Santos-
Zacaria v. Garland, 598 U.S. 411, 418 (2023) (citing Jones, 549 U.S. at 219). Put simply,
Plaintiff’s conversations with prison officials outside the Administrative Remedy Program do not
fulfill his obligation to exhaust.
Having viewed all the evidence and liberally construed Plaintiff’s filings, the court finds
that the undisputed facts compel the conclusion that Plaintiff failed to complete all steps of the
MCDF Administrative Remedy Program—a process that was available to him—before filing this
lawsuit, and Defendants therefore have shown Plaintiff has not exhausted his administrative
remedies. Moreover, as noted above, because Plaintiff has failed to demonstrate a genuine issue
for trial on a material matter concerning his failure to exhaust, there is no need for the court to
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conduct an evidentiary hearing, and no party has requested one. See Estrada, 107 F.4th at 1263
(“If the plaintiff establishes a disputed issue of material fact, an evidentiary hearing should
usually be held. If the district court declines to conduct a hearing, it should explain why one is
unnecessary. But if neither party requests an evidentiary hearing, a district court is not obligated
to raise the topic sua sponte.”).
In sum, the court respectfully RECOMMENDS that Defendants’ motion for summary
judgment be granted and that Plaintiffs’ claims against both Mesa County and Sheriff Rowell be
dismissed without prejudice. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009)
(“Ordinarily, a dismissal based on a failure to exhaust . . . should be without prejudice”).
II. 	Motion to Dismiss
Even if the threshold defect of failure to exhaust did not dispose of this matter, the
municipal-liability claims against both Defendants should be dismissed. Because this is a
recommendation, and in the interest of providing a complete analysis for Judge Crews’s
consideration, the court proceeds to address these alternative grounds for dismissal.
As an initial matter, the court agrees with Defendant Mesa County that it is not a proper
party to this case because “[a] county may only be sued in the name of the Board of County
Commissioners of the county.” Motion at 14 (citing Est. of Blodgett v. Correct Care Solutions,
LLC, No. 17-cv-02690-WJM-NRN, 2018 WL 6528109, at *8 (D. Colo. Dec. 12, 2018)). Under
Colorado Revised Statute § 30-11-105, “the name in which the county shall sue or be sued shall
be, ‘The board of county commissioners of the county of …….’”. As the Tenth Circuit has
recently reiterated, “[t]his statutory provision provides the exclusive method by which
jurisdiction over a county can be obtained. An action attempted to be brought under any other
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designation is a nullity, and no valid judgment can enter in such a case.” Est. of Alire by Alire v.
Wihera, No. 23-1213, 2024 WL 5183300, at *6 (10th Cir. Dec. 20, 2024) (unpublished) (quoting
Gonzales v. Martinez, 403 F.3d 1179, 1182 n.7 (10th Cir. 2005)).7 This court cannot overlook
this jurisdictional flaw. Citizens Concerned for Separation of Church & State v. City & Cnty. of
Denver, 628 F.2d 1289, 1301 (10th Cir. 1980) (“A federal court must in every case, and at every
stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the
acts or pleadings of the parties.”). The court therefore respectfully RECOMMENDS that Mesa
County be dismissed from this action.
Nevertheless, Plaintiff has brought an identical municipal-liability claim against a
technically proper defendant: the Sheriff in his official capacity. See, e.g., Myers v. Oklahoma
Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998) (“A section 1983 suit
against a municipality and a suit against a municipal official acting in his or her official capacity
are the same.”) (quotation omitted); Moss v. Kopp, 559 F.3d 1155, 1168 n.13 (10th Cir. 2009)
(“The Supreme Court has determined that an official-capacity suit brought under § 1983
‘generally represent[s] only another way of pleading an action against an entity of which an
officer is an agent,’ and ‘as long as the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity.”) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). The court therefore
7 “Unpublished opinions are not precedential, but may be cited for their persuasive value.” 10th
Cir. R. 32.1(A). “[I]f an unpublished opinion or order and judgment has persuasive value with
respect to a material issue in a case and would assist the court in its disposition, [the Tenth
Circuit] allow[s] citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th
Cir. 2005).
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proceeds to evaluate whether Plaintiff’s allegations suffice to plead a municipal-liability claim
against the Sheriff and finds that they do not.
A. 	Standard of Review
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.
12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-
pleaded factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (citation omitted). But the
Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). And “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. at 678 (internal quotation marks omitted).
B. 	Municipal Liability for Sheriff Rowell
Under Monell, a plaintiff may sue local governing bodies directly for constitutional
violations stemming from the policies of the governing body. See 436 U.S. at 690. However,
§ 1983 does not countenance respondeat superior liability against an entity. “A municipality
may not be held liable under § 1983 solely because its employees inflicted injury on the
plaintiff.” Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton
v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, a municipality may only be
liable under § 1983 “only for its own unconstitutional or illegal policies and not the tortious acts
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of its employees.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (emphasis added).
In evaluating Plaintiff’s municipal-liability claim, the court also bears in mind that, “[i]n the
Tenth Circuit, while unusual, municipal liability may exist without individual liability: for
example, for a systemic failure of medical policies and procedures.” Lucas v. Turn Key Health
Clinics, LLC, 58 F.4th 1127, 1144 (10th Cir. 2023) (citing Crowson v. Washington Cnty., Utah,
983 F.3d 1166, 1191-92 (10th Cir. 2020); Garcia v. Salt Lake Cnty., 768 F.2d 303, 306-07 (10th
Cir. 1985)).
“To state a claim against a municipal entity, a plaintiff must allege facts showing (1) an
official policy or custom, (2) causation, and (3) deliberate indifference.” Lucas, 58 F.4th at 1145
(citing Crowson, 983 F.3d at 1184). With regard to the first element, the Tenth Circuit has
explained that an official policy or custom may take any of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or usage
with the force of law; (3) the decisions of employees with final policymaking
authority; (4) the ratification by such final policymakers of the decisions—and the
basis for them—of subordinates to whom authority was delegated subject to these
policymakers’ review and approval; or (5) the failure to adequately train or
supervise employees, so long as that failure results from deliberate indifference to
the injuries that may be caused.
Id. (quoting Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019)).
To satisfy the causation element, Plaintiff must allege facts plausibly showing that “the
municipality was the ‘moving force’ behind the injury alleged.” Schneider v. City of Grand
Junction Police Dep’t., 717 F.3d 760, 770 (10th Cir. 2013) (quoting Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 404 (1997)). On the deliberate-indifference prong of the test, the well-
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pleaded facts must support a reasonable inference that “the policy was enacted or maintained
with deliberate indifference to an almost inevitable constitutional injury.” Id. at 769 (citing
Brown, 520 U.S. at 403; City of Canton v. Harris, 489 U.S. 378, 389 (1989)). “Deliberate
indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Waller, 932 F.3d at 1284 (quoting Connick v.
Thompson, 563 U.S. 51, 61 (2011)). The standard “may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.”
Id. (emphasis added, quoting Barney, 143 F.3d at 1307). While notice may be established by
proving a pattern of tortious conduct, “[i]n a narrow range of circumstances, . . . deliberate
indifference may be found absent a pattern of unconstitutional behavior if a violation of federal
rights is a highly predictable or plainly obvious consequence of a municipality’s action or
inaction[.]” Id. (quoting Barney, 143 F.3d at 1307-08) (internal quotation marks omitted).
Recall that Plaintiff advances two theories of allegedly constitutionally deficient policies
as a basis for municipal liability: first, the “inmate classification process” at the Facility that
created a risk of “harm to specific inmates being housed in the MCDF, some class based due to
the nature of their charges,” Complaint ¶ 7, and second, a “wide spread practice of Deputies
failing to perform their normal operational security searches” on “known violent gang members
and other violent offenders.” Id. ¶ 4. As to each purported policy, Plaintiff’s claim founders on
all three elements of a municipal-liability claim: (1) policy or custom, (2) causation, and (3)
deliberate indifference.
Inmate classification. To start with Plaintiff’s “inmate classification” theory of
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municipal liability, he contends that there is such a policy at MCDF and that it “creates [a]
known risk of harm to specific inmates being housed in the MCDF.” Complaint ¶ 7. But these
are merely conclusory proclamations lacking specific supporting facts, which this court must set
aside. See Iqbal, 556 U.S. at 678. To the extent Plaintiff attempts to allege that there is a well-
settled custom or practice of improperly classifying inmates at MCDF, that allegation also is not
sufficiently pled. Plaintiff pleads no facts indicating that any inmate other than him was ever
“classified” in such a manner as to trigger his being attacked by another inmate. See generally id.
And a single instance of an inmate-on-inmate assault stemming from some classification issue—
the incident involving Plaintiff—is insufficient to allege a well-established custom or practice.
See, e.g., Sexton v. City of Colorado Springs, 530 F. Supp. 3d 1044, 1071 (D. Colo. 2021)
(finding two incidents “insufficient to show a practice so permanent and well settled that it
constitutes a custom or usage with the force of law”) (citing Lankford v. City of Hobart, 73 F.3d
283, 287 (10th Cir. 1996) (noting that “isolated and sporadic acts” do not establish municipal
liability under § 1983); Waller, 932 F.3d at 1290 (“[D]escribing only one similar incident of
excessive force prior to his own injuries—fall[s] far short of plausibly alleging a ‘widespread
practice’ of excessive force, much less a practice ‘so permanent and well settled as to constitute a
custom or usage with the force of law.’”) (quoting Bryson, 627 F.3d at 788)). Therefore, Plaintiff
has not pleaded an allegedly defective policy concerning inmate classification at MCDF pursuant
to an informal custom.
Second, as for the causation element, in light of Plaintiff’s failure plausibly to allege the
existence of any policy or custom, it is also the case that that he has not alleged that this non-
existent policy or custom was the “moving force” behind his injuries. See Schneider, 717 F.3d at
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770.
Finally, the well-pleaded facts do not plausibly support an inference of deliberate
indifference. Plaintiff asserts that something about the classification of inmates “due to the nature
of their charges” is harmful, Complaint ¶ 7, but the court can draw no inference of deliberate
indifference on the Sheriff’s part from this unsupported statement. Plaintiff pleads no factual
particulars—either about himself or inmate Pasillas—that might plausibly show the inmate
classification process at MCDF was implemented with deliberate indifference to inmate safety.
Plaintiff’s sole specific contention is that Pasillas “was being detained in the MCDF pursuant to
Mesa County Case, Number: 20cr27103,” id. ¶ 8, 8 but that bare assertion does not plausibly
suggest that the Sheriff acted with deliberate indifference to any risk in classifying inmates at
MCDF. Even if, at the time of the assault, Pasillas had pending charges on a crime of violence—
murder or attempted murder, say—Plaintiff alleges no facts plausibly suggesting that such
charges, by definition, would have put the Sheriff on notice that Pasillas would pose a threat to
other inmates generally or to Plaintiff specifically. Jails are inherently dangerous places,
populated by persons who are accused, and convicted of, violent crimes. Indeed, on September
23, 2021, Plaintiff himself Pleaded guilty to a count of first degree assault with a deadly weapon
with intent to cause serious bodily injury, a class 3 felony, in violation of Colo. Rev. Stat. § 18-3-
202(1)(a). See People v. Joshua James Ellis, No. 2020 CR 001009 (Mesa County Dist. Ct.); see
also St. Louis Baptist Temple, 605 F.2d at 1172 (permitting judicial notice of state court records).
Also notably missing from Plaintiff’s pleading is that inmate Pasillas had a known prior
8 This court has located no case with this number in the publicly-available records for Mesa
County District Court.
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history of attacking inmates. See Dugar v. Bd. of Cnty. Comm’rs for Clear Creek Cnty., No. 20-
cv-3053-WJM-NYW, 2021 WL 4426952, at *3 (D. Colo. Sept. 27, 2021), aff’d, No. 21-1380,
2022 WL 4857167 (10th Cir. Oct. 4, 2022) (finding that plaintiff failed to plausibly allege
deliberate indifference to the threat of placing an inmate in a “general detention” population,
where the plaintiff alleged no facts suggesting that murder charges “indicate that an inmate is
necessarily a threat to other inmates” and no facts indicating the existence of “similar, prior
events”). Neither does Plaintiff allege that there were similar prior events involving other
inmates, see id., negating any inference of some systemic failure in MCDF procedures. Put
simply, giving Plaintiff’s allegations the maximum possible credit, he does not plausibly allege
that the attack on Plaintiff by inmate Pasillas was anything other than an isolated incident. The
well-pleaded facts do not show that the Sheriff had “actual or constructive notice that his action
or failure to act was substantially certain to result in a constitutional violation”—let alone that he
“consciously or deliberately chose to disregard the risk of harm.” Barney, 143 F.3d at 1307. The
Complaint fails to satisfy the deliberate-indifference prong as to Plaintiff’s “inmate
classification” theory of Monell liability.
The court thus concludes that Plaintiff has not met his pleading burden so as to state a
Monell claim based on inmate classification at MCDF. Additionally, insofar as the Complaint
could be construed as attempting to assert a policy or custom based on a ratification theory, see
Complaint ¶ 8, the court begins with the principles that “[r]atification is more than
acquiescence,” and “a municipality will not be found liable under a ratification theory unless a
final decisionmaker ratifies an employee’s specific unconstitutional actions, as well as the basis
for these actions.” Kowalski v. Shrader, No. 21-cv-00827-NYW, 2022 WL 19422, at *21 (D.
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Colo. Jan. 3, 20222) (quoting Bryson, 627 F.3d at 790) (other quotation omitted, emphasis in
original).
Here, there are no allegations from which the court could conclude that the Sheriff (or
any other official) ratified the conduct alleged in the Complaint, including with regard to inmate-
classification decision. Indeed, Plaintiff has not adequately alleged that the Sheriff was even
aware of the supposed “classification” policy or the circumstances surrounding the assault on
Plaintiff by Pasillas. Absent such allegations, Plaintiff fails to plausibly plead that the Sheriff, as
a final policy maker, ratified any conduct at issue in this matter. His unadorned references to
ratification, see Complaint ¶¶ 6, 8, are wholly conclusory, as are his allegations concerning
deficiencies in the Sheriff’s supervision of MCDF personnel. See id. (asserting that the Sherrif
was “derelict in his supervisory” duties). To sum up, the defect in Plaintiff’s pleading is that he
has not alleged “any facts regarding any supposed supervisory deficiencies” at MCDF. Waller,
932 F.3d at 1289 (emphasis added). Plaintiff accordingly has failed to “state a claim to relief that
is plausible on its face,” Twombly, 550 U.S. at 570, with respect to a purported ratification or
failure to supervise in connection with supervision procedures at MCDF.
Search procedures. Plaintiff’s second municipal-liability theory is that “Sheriff’s
Deputies, under Sheriff Rowell’s direct or constructive supervision adopted an ongoing policy,
custom or wide spread practice” of “failing to perform their normal operational security cell
searches” and “normal operational strip and/or pat-searches.” Complaint ¶ 4. As with the
classification aspect of Plaintiff’s Monell claim, these conclusory allegations are insufficient to
plead the existence of a policy or custom, causation, and deliberate indifference.
Here, again, Plaintiff has failed to allege that any inadequacies in searches by deputies
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were pursuant to “a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by [Sheriff’s] officers.” Monell, 436 U.S. at 690. He merely declares that there was
“an ongoing, custom or wide spread practice,” Complaint ¶ 4, but there are no facts to support
this conclusory pronouncement—exposing it as just a “formulaic recitation” that is insufficient to
plead the first element of a municipal-liability claim. See Twombly, 550 U.S. at 555; see also
Mocek v. City of Albuquerque, 813 F.3d 912, 934 (10th Cir. 2015) (upholding the dismissal of a
municipal-liability claim that alleged a city had a “policy and custom of prohibiting lawful
photography at the airport and retaliating against those who filmed at the airport,” because the
plaintiff “cites no particular facts in support of these ‘threadbare recitals of the elements of a
cause of action’”) (citing Iqbal, 556 U.S. at 678). And in failing to allege facts plausibly
indicating the existence of any specific policy, custom, or failure in searches, it goes without
saying that Plaintiff likewise has not sufficiently alleged that any official policy or custom was
the moving force behind his injury at the hands of inmate Pasillas. Put another way, “[a]side
from conclusory statements, no allegations in the complaint give rise to an inference that the
[Sheriff himself] established a deliberate policy or custom that caused [Plaintiff’s] injuries.”
Mocek, 813 F.3d at 934.
Neither are Plaintiff’s allegations adequate to demonstrate the “stringent standard of
fault” that amounts to deliberate indifference, which “requir[es] proof that a municipal actor
disregarded a known or obvious consequence of his action.” Waller, 932 F.3d at 1284. To be
sure, Plaintiff was attacked by another inmate who managed to possess a weapon that eluded the
view of deputies, but the fact that an assault occurred does not plausibly indicate that the Sheriff
had “actual or constructive notice” that his “action or failure to act” with regard to searches was
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“substantially certain to result in a constitutional violation”—or that he consciously or
deliberately disregarded such a risk. Barney, 143 F.3d at 1307. Here, again, his pleading is
marked by the same deficiencies that warrant dismissal of his inmate-classification theory. He
pleads no facts concerning any other inmate-on-inmate attack using a secreted weapon. He
pleads no facts suggesting a pattern of any like tortious conduct, let alone a “widespread”
pattern. Waller, 932 F.3d at 1287. He pleads no facts suggesting that his assault at the hands of
Pasillas was a highly predictable or plainly obvious consequence of anything the Sheriff did or
did not do with regard to search procedures. Schneider, 717 F.3d at 771. And he pleads no facts
identifying a systemic pattern of behavior that would indicate that MCDF were following an
official policy regarding MCDF search procedures. Lucas, 58 F.4th at 1144.
To the contrary, the lack of well-pleaded facts in the Complaint concerning any other
inmate attacks similar to what Plaintiff experienced does allow the court to reasonably infer that
Pasillas’s attack on Plaintiff was a one-off, the unfortunate result of a specific inmate
successfully avoiding the scrutiny of MCDF deputies on a single occasion. At bottom, this does
not support an inference of deliberate indifference. See Iqbal, 556 U.S. at 678 (“Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’”) (quoting Twombly, 550
U.S. at 557).
Finally, in light of these pleading flaws and consistent with the court’s analysis in
connection with the alleged inmate-classification policy, the court also finds that Plaintiff’s
conclusory allegations do not suffice to state a Monell claim under ratification or failure-to-
supervise theories. There are simply no allegations from which the court could conclude that a
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final municipal policymaker ratified the conduct alleged in the Complaint, or precipitated that
alleged conduct by failing to supervise a lower-level employee. Instead, Plaintiff simply presents
the conclusion that there was an official policy or practice that caused him to be assaulted at the
hands of another inmate. However, “at the pleading stage, the existence of a Monell policy is a
‘conclusion’ to be built up to, rather than a ‘fact’ to be baldly asserted.” Erickson v. City of
Lakewood, 489 F. Supp. 3d 1192, 1206 (D. Colo. 2020) (quoting Griego v. City of Albuquerque,
100 F. Supp. 3d 1192, 1215 (D.N.M. 2015)).
In sum, even if the threshold defects of failure to exhaust and lack of jurisdiction over
Mesa County did not compel dismissal of the case, Plaintiff has not plausibly stated a Monell
claim under any of his proffered theories. The court therefore respectfully RECOMMENDS that
the Motion be granted for this alternative reason.
CONCLUSION
Consistent with the foregoing analysis, this court respectfully RECOMMENDS that
Defendants’ Motion (ECF No. 57) be granted.9
9 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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DATED: February 5, 2025 	BY THE COURT:
Susan Prose
United States Magistrate Judge
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