Ellis v. Dalyrimple et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:22-cv-00965-SKC-SBP
JOSHUA JAMES ELLIS,
Plaintiff,
v.
MESA COUNTY, and
SHERIFF TODD ROWELL, Mesa County Sheriff,
Defendants.
ORDER
Before the Court is the Recommendation of Magistrate Judge Susan Prose
(Dkt. 79) to grant Defendant Sheriff Rowell’s Motion to Dismiss Plaintiff’s Third
Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) or, alternatively, Fed. R.
Civ. P. 56 (Motion) (Dkt. 57). Plaintiff has filed an Objection to the Recommendation
(Dkt. 81) and Defendants filed a Response to the Objection (Dkt. 82). For the reasons
shared below, the Court accepts the Recommendation and incorporates it into this
Order by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 1 of 9

2
A. LEGAL PRINCIPLES
1. 	Review of a Magistrate Judge’s Recommendation
Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of a
magistrate judge’s recommendation that is properly objected to. An objection is
proper only if it is sufficiently specific “to focus the district court’s attention on the
factual and legal issues that are truly in dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “The filing of objections to a [magistrate
judge’s] report enables the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute, and gives the district court an
opportunity to correct any errors immediately.” Id. (cleaned up)). “In the absence of a
timely objection, the district court may review a magistrate’s report under any
standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991).
2. 	Treatment of a Pro Se Plaintiff’s Pleadings
A pro se litigant’s pleadings are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). But a pro se litigant must follow the
same rules of procedure that govern other litigants, and the Court does not supply
additional factual allegations to round out a complaint or construct legal theories on
behalf of a pro se litigant. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009). The Court may excuse a pro se plaintiff’s failure to cite proper legal authority,
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 2 of 9

3
confusion about various legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements, but it does not act as the pro se plaintiff’s
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. BACKGROUND
As set forth more fully in the Recommendation, Plaintiff was a pretrial
detainee at the Mesa County Detention Facility (MCDF) when another inmate
stabbed him. Dkt. 79, p.2; see also Dkt. 54, ECF p.6. Plaintiff then filed this lawsuit.
Dkt. 79, p.2. The Third Amended Complaint (“TAC”) is the present, operative
complaint. Dkt. 54. In it, Plaintiff sues Defendants Mesa County and Mesa County
Sheriff Todd Rowell, in his official capacity, alleging municipal liability claims
against them for failing to protect him in violation of his Fourteenth Amendment
rights. Dkt. 79, p.3; see also Dkt. 54, ECF pp.4-7. Their failures, according to Plaintiff,
resulted from two purported policies or practices at MCDF—the inmate classification
process and the inmate search process. Dkt. 79, p.3; see also Dkt. 54, ECF pp.4-7.
As mentioned, Defendant Rowell filed a Motion arguing the TAC should be
dismissed under Rule 12(b)(6) for failing to state a claim or, alternatively, under Rule
56 because Plaintiff failed to exhaust his administrative remedies. Dkt. 57. Plaintiff
filed a Response (Dkt. 70) and Defendants filed a Reply (Dkt. 71). In addition,
Plaintiff filed a Sur-Reply without leave of Court (Dkt. 72), to which Defendants filed
response to the Sur-Reply (Dkt. 73-1), both of which Judge Prose accepted. Dkt. 77.
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 3 of 9

4
Judge Prose, however, did not accept Plaintiff’s second proffered sur-reply (Dkt. 76).
Dkt. 77.
Addressing the Motion, Judge Prose first considered Defendants’ argument
that 	the 	claims 	should 	be 	dismissed 	under 	Rule 	56 	for 	failing 	to 	exhaust
administrative remedies and alternatively considered their Rule 12(b)(6) arguments.
She recommends the Motion be granted and Plaintiff’s claims dismissed under either
standard. The Court considers first Defendants’ Rule 56 arguments. In analyzing the
Recommendation and Plaintiff’s Objection, the Court trusts the parties are well-
versed in this dispute such that the Court will not recount every aspect of their
arguments here.
C. ANALYSIS
As a predicate matter, the Court finds that Plaintiff has not made specific
objections to the Recommendation. See Dkt. 81. Thus, even construing his Objection
liberally, his Objection is not due de novo review. See One Parcel, 73 F.3d at 1060.
Rather, the Court will instead consider the Objection to confirm no clear error on the
face of the record exists. See Thomas v. Arn, 474 U.S. 140, 150 (1985).
The purpose of objections is to focus the Court on “those issues—factual and
legal—that are at the heart of the parties’ dispute.” Id. Plaintiff’s Objection recycles
his argument from his Sur-Reply that Plaintiff
openly admits he was unable to properly grieve any issue or appeal any
grievance 	denial 	as 	he 	specifically 	states 	he 	was 	denied 	a 	paper
grievance form and the grievance app was inoperable to inmates during
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 4 of 9

5
this time at MCDF. The only working app was for kites not grievances
that means any appeal was inoperable as well.
Dkt. 81, p.1 (unaltered); compare with Dkt. 72, ECF p.1 (“MCDF’s deputies refusal of
written 	grievance 	forms 	leaving 	the 	only 	grievance 	option 	being 	an 	under
construction app on the facility tablet that was inoperable to inmates during
[Plaintiff’s] time at MCDF . . ..”). But he does not direct the undersigned with any
specificity to what error he believes Judge Prose committed, other than the outcome.
That is not a specific objection. See One Parcel, 73 F.3d at 1060.
Plaintiff also fails to point the undersigned to any evidence that contravenes
either of the sworn affidavits submitted from Captain Smith, the then-administrator
of the Administrative Remedy Program at MCDF. See Dkts. 57-2; 73-1, ECF pp.10-
14. Generally, these affidavits aver that Plaintiff did not take the required steps to
file grievances or appeals. See id. Indeed, Judge Prose addressed this specific issue—
the fact that Plaintiff failed to submit anything she could consider as evidence for her
recommendation. See Dkt. 79, p.11. Further, the undersigned agrees with Judge
Prose that, on at least one occasion, Plaintiff did in fact file a grievance, which negates
his assertion that he was unable to file any. Compare Dkt. 57-2, ¶16 with Dkt. 81,
p.1. Nor does Plaintiff direct the Court to any legal authority explaining what the
impact of his averments should be on the Court’s analysis. See generally Dkt. 81.
Because Plaintiff’s Objection lacks the requisite specificity, the Court’s review
seeks to confirm whether clear error on the face of the record exists. See Thomas, 474
U.S. at 150. The Court finds the Recommendation is detailed and thorough and
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 5 of 9

6
contains no clear error on the face of the record. Judge Prose correctly ascertained
and applied the law and appropriately construed Plaintiff’s claim liberally. She
correctly summarized the requirements of the Prison Litigation Reform Act, 42
U.S.C. 	§ 1997e(a), 	which 	requires 	incarcerated 	persons 	to 	exhaust 	their
administrative remedies before they can file a federal civil rights lawsuit. And she
correctly found the evidence supported a finding that Plaintiff had failed to exhaust
those administrative remedies, thus precluding him from pursuing this lawsuit.
Moreover, even under de novo review, the record indicates Plaintiff failed to
exhaust his administrative remedies, and thus, Plaintiff’s claims should be dismissed
under Rule 56. The PLRA requires prisoners to exhaust administrative remedies
before filing a civil rights action. The statute provides: “No action shall be brought
with respect to prison conditions under section 1983 of 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. § 1997e(a). The
exhaustion requirement applies to all suits by incarcerated persons concerning prison
life, whether they involve general circumstances or specific episodes. Woodford v.
Ngo, 548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001) (prisoners
must exhaust administrative remedies before filing a lawsuit regardless of the type
of relief prayed for in the complaint).
Exhaustion is an affirmative defense, which places the burden on defendants
to prove it by a preponderance of the evidence. Roberts v. Barreras, 484 F.3d 1236,
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 6 of 9

7
1241 	(10th 	Cir. 	2007). 	When 	the 	affirmative 	defense 	of 	failure 	to 	exhaust
administrative remedies is asserted in a motion for summary judgment, defendants
“must demonstrate that no disputed material fact exists regarding the affirmative
defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). “If the
defendant[s] meet[ ] this initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact.” Id. “If the plaintiff fails to make
such a showing, the affirmative defense bars his claim, and the defendant[s] [are]
then entitled to summary judgment as a matter of law.” Id.; see also Roberts, 484 F.3d
at 1241 (defendants bear the burden of proving their affirmative defense that
Plaintiff failed to exhaust available administrative remedies).
If an administrative remedy is not available, however, an inmate cannot be
required to exhaust it. Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011). But it
is a plaintiff’s burden “to show that remedies were unavailable to him.” Id. at 1254.
A remedy is “available” under the PLRA if it affords “the possibility of some relief for
the action complained of.” Booth v. Churner, 532 U.S. 731, 738 (2001). In the Tenth
Circuit, an administrative remedy is not “available” under the PLRA “when prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850,
1860 (2016). Based on this principle, the Court must “ensure that any defects in
exhaustion [are] not procured from the action or inaction of prison officials.” Aquilar–
Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 7 of 9

8
The Court finds that Plaintiff failed to offer evidence the Court can consider
concerning whether he exhausted his administrative remedies. See Dkts. 70, 72
(Plaintiff’s Response and Sur-Reply, each lacking any averment it was sworn under
penalty of perjury or before a notary). On the contrary, only Defendants offered
competent 	evidence 	for 	purposes 	of 	summary 	judgment. 	See 	Fed. 	R. 	Civ. 	P.
56(c)(1)(A). And that evidence is that the MCDF has an administrative remedies
procedure that requires inmates to first submit a kite, then a written grievance, and
finally a grievance appeal. Dkt. 57-2, ¶¶4-10. Plaintiff availed himself of this process,
albeit incompletely. See id. at ¶¶15-17. While he filed some kites that addressed at
least some of his claims underlying this litigation, he did not file a kite concerning
his claim of inadequate cell searches. Id. at ¶15. And he failed to complete the
administrative remedy process for other kites by filing grievance appeals. Id.
Further, the Court finds that Plaintiff has not carried his burden to show that
the administrative exhaustion process was unavailable to him. On the contrary,
Defendants submitted uncontroverted evidence explaining:
1. 	MCDF could track whether an inmate had requested a grievance appeal
form;
2. 	MCDF keeps an inmate activity log showing no grievance appeal form was
ever issued to Plaintiff;
3. 	if an inmate were refused such a form, the inmate could bring such a refusal
to authorities’ attention by filing a kite about the refusal; and
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 8 of 9

9
4. 	Captain Smith, who administered the administrative exhaustion process at
MCDF, had “not seen in all my time working at the MCDF” an inmate being
improperly refused a grievance or appeal form.
Dkt. 73-1, ECF pp.11-12. Consequently, the Court, even under de novo review, would
grant that portion of the Motion seeking judgment under Rule 56 for Plaintiff’s failure
to exhaust his administrative remedies.
For these reasons, the Court finds no error in the Recommendation, clear or
otherwise.
* 	* 	*
For 	the 	reasons 	shared 	above, 	the 	Court 	OVERRULES 	the 	Objections
(Dkt. 81), ACCEPTS and ADOPTS the Recommendation (Dkt. 79) and GRANTS the
Motion (Dkt. 57). The Plaintiff’s TAC is DISMISSED WITHOUT PREJUDICE. The
Clerk of Court is ORDERED to terminate this case.
DATED: March 18, 2025
BY THE COURT:
______________________________
S. Kato Crews
United States District Judge
Case No. 1:22-cv-00965-SKC-SBP Document 83 filed 03/18/25 USDC Colorado
pg 9 of 9