Ward v. Altizer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–00233–NYW–MDB
DEMONTRAY LARELL WARD,
Plaintiff,
v.
ALITZER, A.W.
KREISMAN, Lt.,
MCGAUGH, Dr.,
AZZEZ, Officer,
BALES, Treat Specialist,
KAMMRAD, J., Nurse,
MARTIN, Psychologist,
STARR, Warden,
NEAL, Psychologist,
GREEN, Officer,
HOFFARTH, Officer,
TROUTMAN, Lt., and
WAGNER, Psychologist,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants’ Early Motion for Summary Judgment
Based on Plaintiff’s Failure to Exhaust Administrative Remedies (“Defendants’ MSJ,” Doc. No.
85). Pro se Plaintiff has filed a response to Defendants’ MSJ (“Plaintiff’s Response,” Doc. No.
91), to which Defendants have replied (Doc. No. 96). Further, with leave, the parties each filed
sur-replies (Doc. Nos. 106; 109).
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Also before the Court is Plaintiff’s Motion for Summary Judgment Based on the
Defendants Committing Perjury Under Oath (“Plaintiff’s MSJ,” Doc. No. 110). Defendants have
filed a response to Plaintiff’s MSJ (Doc. No. 113), to which Plaintiff has replied (Doc. No. 114).
After reviewing the briefings, docket, and relevant case law, the Court respectfully
RECOMMENDS that Defendants’ MSJ be DENIED in part and GRANTED in part and
Plaintiff’s MSJ be DENIED.
PRO SE PLAINTIFF SUMMARY
The Court is recommending that Defendants’ MSJ be granted in part and denied in part.
The Court is recommending that Defendants’ MSJ be granted as it applies to your failure to
protect/excessive force claim and that the claim be dismissed because you did not demonstrate
the applicable administrative remedy procedures were unavailable. However, the Court is
recommending that Defendants’ MSJ be denied as it applies to your deliberate indifference
claim, and that the claim be allowed to move forward because there are material factual disputes
as to whether you exhausted your administrative remedies on that claim prior to filing suit.
Finally, the Court is recommending that your motion for summary judgment be denied because it
is premature. This is only a summary of the Court’s Recommendation, which you should read in
full.
BACKGROUND
Plaintiff initiated this action by filing a “Letter” with the Court on January 26, 2023.
(Doc. No. 1.) Plaintiff then filed a Prisoner Complaint the following day, January 27, 2023.
(Doc. No. 4.) At the direction of Magistrate Judge Kristen L. Mix, Plaintiff filed a Second
Amended Complaint on June 12, 2023. (Doc. Nos. 24; 27.) Unprompted, Plaintiff then filed a
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Third Amended Complaint on June 20, 2023. (Doc. No. 28.) The Third Amended Complaint
(“TAC”) is the operative pleading in this matter. (Id.; Doc. No. 34 at 3.) On September 15, 2023,
Judge Lewis T. Babcock, ordered that the case be drawn from initial review to a presiding judge.
(Doc. No. 36.) Plaintiff’s remaining claims are an individual capacity Eighth Amendment
deliberate indifference claim based on the alleged assault of Plaintiff by a fellow inmate on
August 16, 2022,1 and an official capacity failure to protect/excessive force in relation to alleged
assaults that occurred in December 2022 and January 2023.2 (Doc. Nos. 28; 36.)
On January 30, 2024, Defendants filed the instant early summary judgment motion. (Doc.
No. 85.) They argue both of Plaintiff’s claims must be dismissed for failure to exhaust his
administrative remedies. (Id.) Plaintiff disputes this contention. (Doc. No. 91.) Plaintiff also filed
his own summary judgment motion in which he asks the Court to “hold the Defendants in
‘contempt of court’ for committing perjury” in connection with their summary judgment motion.
(Doc. No. 110 at 2.) He seeks “all the relief [he] requested in [his] lawsuit/complaint” or,
alternatively, asks the Court to set a trial date. (Id.)
LEGAL STANDARD
I. 	Summary Judgment
The Court may grant summary judgment if “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). The
moving party has the burden of showing an absence of evidence to support the nonmoving
1 This claim is brought against Defendants Bales, Martin, Wagner, Kammrad, and McGaugh.
(Doc. Nos. 28; 36.)
2 This claim is brought against Defendants Altizer, Azzez, Starr, Green, Hoffarth, Troutman,
Neal, and Kreisman. (Doc. Nos. 28; 36.)
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party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets
this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead, must designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c).
“A ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan v.
Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). Whether there is a genuine dispute as to a material fact depends upon “whether the
evidence presents a sufficient disagreement to require submission to a jury,” or conversely,
whether the evidence “is so one-sided that one party must prevail as a matter of law.” Carey v.
U.S. Postal Serv., 812 F.2d 621, 623 (quoting Anderson, 477 U.S. at 251-52). A disputed fact is
“material” if “under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at
248). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return
a verdict for the nonmoving party. Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th
Cir. 2011) (citing 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 [nonmovant], there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
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In evaluating a motion for summary judgment, a court may consider admissible evidence
only. Johnson v. Weld Cnty., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The factual record and
reasonable inferences therefrom are viewed in the light most favorable to the party opposing
summary judgment. Concrete Works, 36 F.3d at 1517. However, this standard does not require
the Court to make unreasonable inferences in favor of the nonmoving party. Carney v. City &
Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). The nonmovant must establish, at a
minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994).
II. 	Pro Se Plaintiff
In applying the above principles, this Court is mindful that Plaintiff proceeds pro se and
the Court thus affords his papers and filings a liberal construction. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). But the Court cannot and does not act as his advocate, Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and substantive law to
Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir. 2008); Dodson v. Bd. of Cty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
I. 	Defendants’ MSJ
Defendants seek summary judgment due to Plaintiff’s alleged failure to exhaust his
administrative remedies prior to filing suit. (Doc. No. 85.) Before analyzing whether Defendants
have met their summary judgment burden, the Court will first discuss the Prison Litigation
Reform Act (“PLRA”) legal framework for administrative remedies, and the specific remedies
available at BOP.
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A. PLRA
Under the PLRA, “[n]o 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). “Any prisoner who seeks to bring a claim involving ‘general circumstances or
particular episodes’ of prison life must first exhaust the administrative remedies available to him
in prison.” May v. Segovia, 929 F.3d 1223, 1226–27 (10th Cir. 2019) (citing Porter v. Nussle,
534 U.S. 516, 532 (2002); Jones v. Bock, 549 U.S. 199, 211 (2007)). “Because the prison’s
procedural requirements define the steps necessary for exhaustion, 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) (internal citations omitted). “An inmate who
begins the grievance process but does not complete it is barred from pursuing a § 1983 claim [or
any other federal 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 (10th Cir. 2010) (internal quotation marks omitted). The defendant bears the burden of
proving the affirmative defense of failure to exhaust administrative remedies. Jones, 549 U.S. at
212.
“But the PLRA makes explicit that a prisoner must exhaust only available administrative
remedies.” Millbrook v. Sanchez, 2022 WL 356823, at *5 (D. Colo. Feb. 7, 2022) (citing 42
U.S.C. § 1997e(a)) (emphasis in original). Administrative remedies are “unavailable” if an
administrative procedure (1) “operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates,” (2) “exists to provide relief,
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but no ordinary prisoner can discern or navigate it,” or (3) “when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Ross v. Blake, 578 U.S. 632, 642, (2016). If Defendants demonstrate that
Plaintiff did not exhaust his administrative remedies, the burden shifts to Plaintiff “to show that
remedies were unavailable to him.” May, 929 F.3d at 1234; see also Williams v. Borrego, 2020
WL 1502296, at *7 (D. Colo. Mar. 30, 2020), aff’d sub nom. Williams v. Hansen, 5 F.4th 1129
(10th Cir. 2021) (“[T]he Tenth Circuit has established a high bar to show unavailability.”).
B. BOP Administrative Remedies
The BOP provides a four-tiered Administrative Remedy Program for inmate grievances.
The first tier requires informal resolution with prison staff, which the prisoner requests with a
form known as a BP-8. See 28 C.F.R. § 542.13(a). If no informal resolution is reached, the
prisoner must submit a formal inquiry, known as a BP-9 request, to the warden. See 28 C.F.R. §
542.14. The prisoner may appeal a warden’s unfavorable decision to the Regional Director by
filing a Regional Office Administrative Remedy Appeal, also known as a BP-10 request, within
twenty days of the warden’s dated response. See 28 C.F.R. § 542.15(a). The prisoner may appeal
the Regional Office’s decision by filing a Central Office Administrative Remedy Appeal, known
as a BP-11 request, within thirty days of the Regional Office’s denial. Id. At any level, an
official’s failure to respond within the time allotted constitutes a denial of the request or
appeal. 28 C.F.R. § 542.18. An administrative remedy is not fully exhausted until the inmate has
properly and timely sought review at each level. See Jones v. Bock, 549 U.S. 199, 218 (2007).
C. Undisputed Material Facts
The following facts are undisputed:
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1. 	Plaintiff is a federal inmate at the United States Penitentiary in Florence, Colorado. (Doc.
No. 85 at ¶ 1 (citing Doc. No. 85-1 at ¶ 7).)
2. 	Since Plaintiff entered BOP custody, he has filed 32 administrative remedy requests or
appeals of those remedies. Two remedy requests are related to the allegations in the
Amended Complaint. (Id. at ¶¶ 4–5 (citing Doc. No. 85-1 at ¶ 11; Doc. No. 85-3).)
3. 	Remedy No. 1137670-R13
a. 	On or about October 17, 2022, Plaintiff filed Remedy No. 1137670-R1 at the
regional level (BP-10), alleging that he received inadequate medical care after an
assault. (Id. at ¶¶ 6 (citing Doc. No. 85-1 at ¶ 12; Doc. No. 85-3 at 16).)
b. 	Plaintiff’s BP-10 form reads, “I filed my BP-8 and BP-9 on the date of
09/06/2022 to Warden Starr an[d] it was never returned to me at all and it’s been
over 20 days, so I am going to the next step which is the BP-10.” (Doc. No. 91 at
1, 6.) Plaintiff has submitted what appears to be filled-out BP-8 (dated August 23,
2022) and BP-9 (dated September 6, 2022) forms regarding the alleged incident.
(Id. at 10, 12.) The alleged BP-8 form appears to be signed by a BOP staff
counselor and department head. (Id. at 10.)
c. 	Remedy No. 1137670-R1 was denied on October 18, 2022. The SENTRY4
database indicates the remedy was denied because there was no record that
3 This remedy is connected to Plaintiff’s deliberate indifference claim against Defendants Bales,
Martin, Wagner, Kammrad, and McGaugh.
4 According to Defendants, “SENTRY is the Bureau’s national database which tracks various
data regarding and inmate’s confinement, including but not limited to, an inmate’s institutional
history, sentencing information, participation in programs, administrative remedies, and
discipline history. (Doc. No. 85-1 at n.1.)
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Plaintiff filed the remedy at the institution level (BP-9) prior to filing it at the
regional level. (Id. at ¶ 7 (citing Doc. No. 85-1 at ¶ 12; Doc. No. 85-3 at 16).)
Plaintiff appealed the denial to the national level (BP-11). This appeal was denied
for the same reason on December 15, 2022. (Id. at ¶¶ 6–10 (citing Doc. No. 85-1
at ¶ 11–12; Doc. No. 85-3 at 16, 17).)
4. 	Remedy No. 1149385-R15
a. 	Plaintiff filed a new and unrelated BP-8 form alleging staff misconduct on
January 13, 2023. (Doc. No. 91 at 1.) He was interviewed by BOP staff in
connection with the BP-8 on or about January 19, 2023, and February 16, 2023.
(Id. at 1–2.)
b. 	Thereafter, on January 27, 2023, Plaintiff filed Remedy No. 1149385-R1 at the
regional level (BP-10), alleging staff misconduct. Plaintiff listed Remedy No.
1149385-R1 as “Sensitive.” Remedy No. 1149385-R1 was rejected that same day
for not satisfying the requirements of a “Sensitive” filing. (Doc. No. 85 at ¶¶ 12–
13 (citing Doc. No. 85-1 at ¶ 15; Doc. No. 85-3 at 17).)
c. 	Plaintiff has not appealed this denial to the national level or refiled this remedy at
the institution level. (Id. at ¶¶ 12–15 (citing Doc. No. 85-1 at ¶¶ 14; Doc. No. 85-3
at 17).)
D. Exhaustion Analysis
1. 	Remedy No. 1137670-R1 – Deliberate Indifference
5 This remedy is connected to Plaintiff’s failure to protect and/or excessive force claim against
Defendants Altizer, Azzez, Starr, Green, Hoffarth, Troutman, Neal, and Kreisman.
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Defendants argue Plaintiff’s deliberate indifference claim must be dismissed due to his
failure to exhaust administrative remedies prior to filing suit. Defendants’ MSJ argument is
straightforward: Plaintiff improperly bypassed the BP-8 and BP-9 stages and initiated Remedy
No. 1137670-R1 by filing a BP-10 grievance directly to the regional level. Thus, Plaintiff could
not have exhausted his administrative remedies. (Doc. No. 85 at 8–9.) In support of this position,
Defendants point to Plaintiff’s SENTRY file, which lacks documentation of any BP-8 or BP-9
filing in connection with this Remedy. (Doc. No. 85-3.)
In response, Plaintiff argues he indeed did initiate Remedy No. 1137670-R1 by filing BP-
8 and BP-9 forms. To this end, Plaintiff submits a copy of his BP-10 grievance, which states, “I
filed my BP-8 and BP-9 on the date of 09/06/2022 to Warden Starr an[d] it was never returned to
me at all and it’s been over 20 days, so I am going to the next step which is the BP-10.” (Doc.
No. 91 at 6.) Moreover, Plaintiff submits what appear to be filled out BP-8 (dated August 23,
2022) and BP-9 (dated September 6, 2022) forms regarding the alleged incident. (Id. at 10, 12.)
In other words, Plaintiff implicitly argues—and provides evidence to support—that the SENTRY
system records are inaccurate and that Defendants cannot rely on them to show a failure to file a
BP-8 or BP-9, or to show his administrative remedies on this claim indeed are not yet exhausted.
In reply Defendants state:
Plaintiff contends that he “exhausted his administrative remedies at the institution
level” for claim 1, i.e., BP-9 level. But Plaintiff is required to exhaust his
administrative remedies through the Central Level, i.e., BP-11 level. Thus, as
[BOP] records confirm, by taking his claims to federal court before he had
completed the administrative remedy program for Claim 1, Plaintiff failed to
comply with the PLRA’s mandatory exhaustion requirement and denied the BOP
the opportunity to “address [his] complaints about the program it administers”
until after it was subjected to suit.
(Doc. No. 96 at 2 (emphasis in original) (cleaned up) (internal citations omitted).)
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Defendants’ reply argument is somewhat puzzling. First, Defendants’ MSJ’s “Statement
of Undisputed Material Facts” concedes Plaintiff filed a regional level BP-10 and national level
BP-11.6 (Doc. No. 85 at ¶¶ 6–10.) Indeed, Defendants’ MSJ argument is that Plaintiff failed to
exhaust his administrative remedies because he only filed a BP-10 and BP-11. (See Doc. No. 85-
1 at ¶ 11–13 (Declaration of Pamela K. Klemp) (averring that Plaintiff’s grievance was filed at
the regional and national level, but not the institution level).). It’s unclear why Defendants now
claim Plaintiff filed an institutional level BP-9 but failed to exhaust his remedies through the BP-
11 stage. The reply seems to contradict Defendants’ MSJ. Second, Defendants’ reply does not
challenge the authenticity of the BP-8 and BP-9 forms Plaintiff attaches to his response. If
anything, Defendants implicitly admit the forms are authentic by now stating Plaintiff exhausted
his administrative remedies at the institution level. And finally, Defendants provide no response
to Plaintiff’s implicit argument that the SENTRY system incorrectly represented that a BP-8 and
BP-9 form were never filed in connection with this Remedy.7
Based on the foregoing, the Court finds clear material factual disputes in the record
regarding the administrative exhaustion of Plaintiff’s deliberate indifference claim. Accordingly,
the Court recommends Defendants’ MSJ be denied insofar as it seeks the dismissal of this claim.
6 Plaintiff does not challenge these statements. (See Doc. No. 91.)
7 The Court notes that Defendants’ sur-reply appears to revert to their original argument, that
Plaintiff filed a BP-10 and BP-11 on this claim but did not file anything at the institutional level.
(Doc. No. 109 at 2.) This adds to the Court’s confusion regarding the argument made in
Defendants’ reply. Moreover, Defendants’ sur-reply incorrectly states, “[i]n the Response,
Plaintiff does not contend that he filed a BP-9 for this remedy.” (Id.) As the Court noted, Plaintiff
indeed contends he filed a BP-9, and he submits an alleged copy of the BP-9 in question. (Doc.
No. 91 at 1, 10, 12.)
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2. 	Remedy No. 1149385-R1 – Failure to Protect/Excessive Force
In contrast to his deliberate indifference claim, there is no dispute as to whether Plaintiff
exhausted his administrative remedies with respect to his failure to protect/excessive force claim.
(See Doc. No. 85 at ¶ 16; Doc. No. 91 at 1.) Indeed, Plaintiff admits that he did not. (See Doc.
No. 91 at 1 (“The Plaintiff did not have to exhaust his administrative remedies for Claim 2 after
he was interviewed by S.I.A. Perez.”).)
Instead, Plaintiff argues he was exempt from exhausting his administrative remedies due
to an alleged internal investigation related to his failure to protect/excessive force BP-8
grievance.8 (Doc. No. 91 at 1.) And while Defendants appear to concede that Plaintiff was
interviewed by BOP staff subsequent to Plaintiff filing his BP-8, (see Doc. No. 96), it is unclear
whether a formal internal investigation was actually conducted. In any event, the Court rejects
Plaintiff’s contention that Ross v. Blake. 578 U.S. 632 (2016) creates a bright-line rule exempting
inmates from the PLRA’s exhaustion requirement whenever an inmate’s complaint leads to an
internal investigation.
In Ross, a state of Maryland inmate alleged he was the victim of excessive force by two
correctional officers. Id. at 636. The inmate complained about the incident to a senior corrections
officer, who referred the complaint to the Maryland prison system’s Internal Investigative Unit
(“IIU”). The IIU issued a report condemning one of the officers, and the inmate subsequently
sued both guards under 42 U.S.C. § 1983. Id. However, the district court dismissed certain
claims, finding that the inmate had failed to exhaust his administrative remedies and determining
8 Plaintiff says he was interviewed by “S.I.A. Perez” on or around January 19, 2023. (Doc. No.
91 at 1.) Plaintiff says S.I.A. Perez then submitted findings to the Office of the Inspector General
(“OIG”), and an unnamed OIG agent interviewed Plaintiff on February 16, 2023. (Id. at 2.)
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that the commencement of an internal investigation did not relieve the inmate from the PLRA’s
exhaustion requirements. Id. On appeal, the Fourth Circuit reversed the district court, “stating
that the PLRA’s ‘exhaustion requirement is not absolute,’” and finding that certain “special
circumstances” could exempt a prisoner from completing available administrative processes. Id.
at 637 (quoting Blake v. Ross, 787 F.3d 693, 698 (4th Cir. 2015). However, the Supreme Court
overturned the Fourth Circuit’s holding, reiterating that the only exception to mandatory
exhaustion under the PLRA is the “unavailability” of administrative remedies. Id. at 642–45. The
Court then remanded the case such that the district court could consider whether policies and
practices specific to Maryland’s prison system rendered the administrative process unavailable
while a parallel internal investigation was ongoing. Id. at 646–49; see id. at 646 (noting filings
suggesting “that Maryland wardens routinely dismiss [administrative] grievances as procedurally
improper when parallel IIU investigations are pending”).
Plaintiff’s contention—that Ross creates a bright-line rule exempting inmates from the PLRA’s
exhaustion requirement when an inmate’s complaint leads to an internal investigation—is wrong.
(Doc. No. 91.) In Ross, the Court made clear that the ultimate question is not whether an internal
investigation was opened, but whether—under the circumstances of the case—a particular
remedy was unavailable. See also Pavey v. Conley, 663 F.3d 899, 905 (7th Cir. 2011) (noting
“[t]he Sixth Circuit and the Ninth Circuit have held that an internal-affairs investigation is no
substitute for an available grievance process” and describing those decisions as “persuasive”
(citing Panaro v. City of N. Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005); Thomas v.
Woolum, 337 F.3d 720, 734 (6th Cir. 2003), abrogated on other grounds by Woodford v.
Ngo, 548 U.S. 81, 87 (2006))). In other words, Ross, in and of itself, does not relieve Plaintiff of
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the PLRA’s exhaustion requirement.9
Thus, the question for this Court to resolve is whether in this case administrative
remedies were unavailable due to the alleged internal investigation. Plaintiff has not presented
sufficient evidence for the Court to conclude the administrative remedy process was unavailable
to him while the alleged internal investigation into his complaint was ongoing. Tuckel v. Grover,
660 F.3d 1249, 1251 (10th Cir. 2011) (“[T]he onus falls on the plaintiff to show that remedies
were unavailable to him.”); see May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019)
(“Although a defendant bears the burden of ‘proving that the plaintiff did not [exhaust his]
administrative remedies,’ once the defendant has carried that burden, ‘the onus falls on the
plaintiff to show that remedies were unavailable to him.’” (citing Tuckel, 660 F.3d at 1254)).
Indeed, Plaintiff does not attempt to explain how or why the administrative grievance process
was unavailable to him due to the alleged internal investigation.10 See Ross, 578 U.S. at 639
(“[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes,
foreclosing judicial discretion.”). Accordingly, the Court recommends Defendants’ MSJ be
granted insofar as it seeks the dismissal of this claim.
9 Plaintiff also cites Porter v. Nussie, 534 U.S. 516 (2002) and Noguera v. Hasty, 2000 WL
1011563 (S.D.N.Y., July 21, 2000). However, neither case impacts the Court’s analysis. See
Porter, 534 U.S. at 532 (finding “the PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong”); Noguera, 2000 WL 1011563 (a pre-Ross case
finding that under the “unusual” fact pattern of that case “there was no need” for the inmate to
“pursue the entire [grievance process] in order to exhaust her administrative remedies”).
10 The Court notes that Plaintiff’s sur-reply states, “Plaintiff was not given a BP-9 by the
counselor so the Plaintiff filed a BP-10.” (Doc. No. 110 at 1.) However, this conclusory
statement is unexplained and unsupported by evidence, and thus falls well short of demonstrating
unavailability.
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II. 	Plaintiff’s MSJ
Plaintiff’s MSJ seeks “all the relief [he] requested in [his] lawsuit/complaint” or,
alternatively, asks the Court to set a trial date. (Doc. No. 110.)
“Although a party may move for summary judgment prior to the conclusion of discovery,
courts often deny motions for summary judgment or motions for judgment on the pleadings as
premature when no discovery has been conducted.” Fleming v. Sims, 2017 WL 8294286, at *3
(D. Colo. Dec. 5, 2017) (collecting cases); see also Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110
(10th Cir. 2017) (“[S]ummary judgment [should] be refused where the nonmoving party has not
had the opportunity to discover information that is essential to his opposition.”)
(quoting Anderson, 477 U.S. at 250 n.5 (1986))).
Unlike Defendants’ MSJ, Plaintiff’s MSJ requests relief that would require full-blown
merits discovery. Butthe Court has not entered a scheduling order and the discovery phase has
not commenced.11 See Celotex, 477 U.S. at 322 (“[T]he plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion[.]”) This
case is in the earliest stages of litigation, and Plaintiff’s MSJ is therefore premature. Thus, the
Court recommends denying Plaintiff’s MSJ without prejudice.12
CONCLUSION
11 Indeed, Defendants are yet to file a substantive response to the operative Complaint.
12 Additionally, to the extent Plaintiff seeks some sort of sanction against Defendants, (see Doc.
No. 110 at 2 (asking the Court to “hold the Defendants in ‘contempt of court’ for committing
perjury” in connection with their summary judgment motion)), the Court does not see a sufficient
basis for the request. Though the Court has noted some inconsistencies and apparent errors in
Defendants’ briefing, none of it rises to the level of sanctionable conduct.
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For the foregoing reasons, the Court RECOMMENDS Defendants’ Early Motion for
Summary Judgment Based on Plaintiff’s Failure to Exhaust Administrative Remedies (Doc. No.
85) be DENIED in part and GRANTED in part as follows:
• 	The Motion be denied to the extent it seeks dismissal of Plaintiff’s deliberate
indifference claim.
• 	The Motion be granted to the extent it seeks dismissal of Plaintiff’s failure to
protect/excessive force claim, and Defendants Altizer, Azzez, Starr, Green,
Hoffarth, Troutman, Neal, and Kreisman be dismissed from this action.
The Court further RECOMMENDS Plaintiff’s Motion for Summary Judgment Based on
the Defendants Committing Perjury Under Oath (Doc. No. 110) be DENIED without prejudice.
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Demontray Ward
#45499-379
FLORENCE HIGH
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 7000
FLORENCE, CO 81226
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Case No. 1:23-cv-00233-NYW-MDB Document 142 filed 06/26/24 USDC Colorado
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Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 26 th day of June, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
Case No. 1:23-cv-00233-NYW-MDB Document 142 filed 06/26/24 USDC Colorado
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