Nesmith v. Roundy

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–01220–PAB–MDB
KEYON NESMITH,
Plaintiff,
v.
ADRIANNA ROUNDY,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendant’s Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies. ([“Defendant’s MSJ” or “Motion”], Doc. No. 43.)
Plaintiff filed a Response to the Motion, to which Defendant has replied. ([“Response”], Doc.
No. 58; [“Reply”], Doc. No. 64.) Plaintiff also filed a Sur-Reply.1 ([“Sur-Reply”], Doc. No. 65.)
After reviewing the Motion, briefing, and relevant law, the Court RECOMMENDS that
Defendant’s MSJ be GRANTED.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that Defendant’s Motion for Summary Judgment be granted.
To survive the motion, you must satisfy all three steps of the CDOC’s grievance process, or
1 Though sur-replies are generally not permitted, the Court considers Plaintiff’s sur-reply due to
his pro se status.
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satisfy your burden of showing the CDOC grievance process was unavailable to you. That
burden has not been satisfied here, and the case must be dismissed. This is only a high-level
summary of the Court’s Recommendation. The complete Recommendation, including
information about your right to object to it, is set forth below.
STATEMENT OF THE CASE
The following facts are undisputed2 unless otherwise noted.
Background
At all times relevant to his Complaint, Plaintiff was an inmate in the custody of the
Colorado Department of Corrections (“CDOC”). ([“Defendant’s Statement of Facts” or “Def.
SOF”], Doc. No. 43 at ¶ 1.) Plaintiff contends that on November 24, 2022, Defendant Adrianna
Roundy seized his Bible without legitimate justification and threatened to take more of his
religious materials if “[he] did not leave her alone.” (Id. at ¶¶ 2; 4.) Plaintiff then initiated this
action on May 15, 2023. (Doc. No. 1.) In his Second Amended Prisoner Complaint, Plaintiff
alleges Defendant’s seizure of his Bible violated his First Amendment right to practice his
religion, Fourth Amendment right against unreasonable seizure, and Fourteenth Amendment
right to religious liberty (Doc. No. 19 at 4-6.)
Defendant filed the instant Motion for Summary Judgment on May 13, 2024, arguing
Plaintiff’s claims should be dismissed for failure to exhaust his available administrative
2 Defendant’s MSJ includes a Statement of Undisputed Material Facts. ([“Defendant’s.
Statement of Facts” or “Def. SOF”], Doc. No. 43 at 2-5.) In his Response, Plaintiff does not
dispute or otherwise address these facts. However, Plaintiff raises three additional facts: (1)
Defendant denied Plaintiff grievance forms; (2) Plaintiff completed a Step 1 grievance, but it
“was never properly submitted by staff”; and (3) Defendant responded to and denied a grievance
about herself. (Doc. No. 58 at ¶¶ 1; 3.)
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remedies, as required under the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a).
Defendant contends the CDOC’s Grievance Officer, Anthony DeCesaro, reviewed the CDOC
grievance records, and found that Plaintiff did not file any grievances regarding Defendant’s
alleged illegal seizure of Plaintiff’s Bible on November 24, 2024. (Def. SOF at ¶¶ 21-22.)
In response, Plaintiff claims the CDOC’s grievance process was unavailable to him
because (1) Defendant denied him grievance forms; (2) his Step 1 grievance “was never properly
submitted by staff;” and (3) Defendant responded to and denied a grievance about herself. (Doc.
No. 58 at ¶¶ 1; 3-4.)
LEGAL STANDARD
I. Summary Judgment
Summary judgment is appropriate if “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of showing an absence of evidence to support the non-moving party’s case. Celotex, 477
U.S. at 325. “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 &
County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The
non-moving 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.
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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 Service, 812 F.2d 621, 623 (10th Cir. 1987) (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 non-moving party. Thomas v. Metropolitan 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 non-moving party, 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)).
When evaluating a motion for summary judgment, a court may only consider admissible
evidence. See Johnson v. Weld Cty., 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 non-moving party. Carney v.
City & Cty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). The non-movant 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
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In applying the above principles, this Court is mindful that Plaintiff proceeds pro se and
thus affords his papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1268
F.3d 855, 864 n.1 (10th Cir. 2019). But the Court cannot and does not act as his advocate, United
States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules
and substantive law to Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195,
1205 (10th Cir. 2018); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo.
2012).
ANALYSIS
Defendant seeks summary judgment on the basis of Plaintiff’s alleged failure to exhaust
his administrative remedies prior to filing this suit. (Doc. No. 43.) Before considering whether
Defendant has met her summary judgment burden, the Court will set forth the statutes,
regulations, and case law applicable to Plaintiff’s claims, including the Prison Litigation Reform
Act (“PLRA”), and the CDOC’s grievance process.
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
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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 inmate’s 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, No. 19-cv-02395-RM-NYW, 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, 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 the
defendant demonstrates the plaintiff did not exhaust his administrative remedies, the burden
shifts to the 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.”).
CDOC’s Grievance Process
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The CDOC’s formal three-step grievance process is set forth in Administrative
Regulation (AR) 850-04. An inmate must file a Step 1 grievance no later than thirty calendar
days from the date the inmate knew, or should have known, of the facts giving rise to the
grievance. AR 850-04 (IV)(F)(1). After a Step 1 grievance is properly received, the CDOC has
twenty-five days to submit a written response to the grievance. Id. If the inmate is not satisfied
with the response, he must file a Step 2 grievance within five days of receiving the response. Id.
In the event the twenty-five-day period expires without the inmate receiving a response from the
CDOC, he can proceed to the next step and file a Step 2 grievance within five calendar days of
the date the response would have been due. Id. Finally, if the inmate is unsatisfied with the
response to his Step 2 grievance, he must file a Step 3 grievance within five days of the date the
response to his Step 2 grievance was received or due. Id. An administrative remedy is not fully
exhausted until the inmate has properly and timely filed Step 1, 2, and 3 grievances. Id. at
(IV)(E)(3)(c)(2).
Exhaustion Analysis
As set forth above, Defendant bears the initial burden of establishing his prima facie case
for failure to exhaust. Jones, 549 U.S. at 212. Here, it is undisputed that Plaintiff did not exhaust
his administrative remedies with respect to his illegal seizure claim. The record demonstrates
Plaintiff did not file Step 1, 2, and 3 grievances about his claim in accordance with the CDOC’s
grievance process. (Def. SOF at ¶¶ 20-22.) Though Plaintiff argues he completed a Step 1
grievance that “was never properly submitted by staff,” he does not appear to dispute that he did
not fully exhaust his administrative remedies. (Doc. No 58 at ¶ 3.) See also Thomas, 609 F.3d at
1118 (holding “[a]n inmate who begins the grievance process but does not complete it” has not
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exhausted his administrative remedies). Because there is no genuine issue of material fact as to
whether Plaintiff failed to exhaust his administrative remedies, Defendant has met her initial
burden of establishing a prima facie case for failure to exhaust, and the burden shifts to Plaintiff.
Jones, 549 U.S. at 212.
Plaintiff must demonstrate a genuine issue of material fact as to whether his failure to
comply with the CDOC’s grievance process may be excused. May, 929 F.3d at 1234. He asserts
his failure to exhaust was excused because CDOC officers were “thwarting” his attempts to
follow the grievance process. Ross, 578 U.S. at 642. He makes three supporting arguments.
First, Plaintiff contends he was denied grievance forms by Defendant. (Doc. No. 58 at ¶
1.) He says he “repeatedly asked for the grievance forms need[ed] to file grievances and was
denied multiple times,” and asserts this shows the grievance process was “not always available.”
(Doc. No. 65 at 1-2.) As evidence, Plaintiff offers a Step 1 grievance he filed on March 15, 2023,
in which he alleged Defendant and two other officers denied him grievance forms that day. (Doc.
No. 59-1 at 2.) The grievance states, “[t]his was the second time.” (Id.)
However, this is insufficient to create a genuine issue of material fact as to whether the
CDOC grievance process was available to him for this particular incident.3 See Millbrook, 2022
WL 356823, at *8 (noting plaintiff must “demonstrate the administrative grievance procedure
3 And even if this evidence did concern this particular incident, it is an unsubstantiated allegation
that carries little-to-no weight at the summary judgment stage. Phillips v. Calhoun, 956 F.2d 949,
951 n.3 (10th Cir. 1992); see also Sparks v. Foster, 241 Fed. App’x. 467, 473-74 (10th Cir.
2007) (unpublished) (declining to find the grievance process unavailable when the plaintiff failed
to support his allegations with specific facts, sworn pleadings, affidavits, or other evidentiary
material); compare with Stine v. U.S. Fed. Bureau of Prisons, 508 F. App’x 727, 730 (10th Cir.
2013) (finding a genuine issue of material fact where plaintiff submitted affidavits from four
inmates that witnessed plaintiff being denied grievance forms).
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was unavailable to [p]laintiff with respect to this lawsuit.”). Said another way, Plaintiff’s
grievance—filed several months after the incident—at most demonstrates he was denied
grievance forms at some point in time. It does not offer specific dates or details about the denials,
such as how many times he requested grievance forms, how the officers responded, when the
denials occurred, and the context in which such denials occurred. Without that information, the
Court cannot find there is a genuine issue of material fact as to whether Plaintiff was denied
access to the forms. Cf. Millbrook, 2022 WL 356823, at *10 (finding a genuine issue of material
fact where plaintiff identified which grievance forms he requested, who specifically denied him
forms, when such denials occurred, and the context in which such denials occurred); Bradley v.
U.S. Fed. Bureau of Prisons, No. 14-cv-00013-MSK-MJW, 2014 WL 5601118, at *3 (D. Colo.
Nov. 4, 2014) (finding a genuine issue of material fact where plaintiff stated a staff member
refused to prove him with grievance forms because he “already had other issues pending in the
administrative remedy process”).4
Second, Plaintiff argues he completed a Step 1 grievance, but it “was never properly
submitted by staff.” (Doc. No. 58 at ¶ 3.) Plaintiff offers as evidence a Step 1 grievance he
completed on December 8, 2022, concerning the November 24, 2022 seizure of his Bible. (Doc.
No. 59-1 at 1.) But offering the form itself is not evidence that his grievance “was never properly
submitted by staff.” (Doc. No. 58 at ¶ 3.) His grievance form is not signed by a CDOC official,
and the “date received” section is empty. (Doc. No. 51-1 at 1.) Without more evidence,
4 Moreover, Plaintiff’s own statements contradict the notion that he was denied grievance forms
with respect to this incident because Plaintiff argues he completed a Step 1 grievance in
connection with this incident. (Doc. No. 58 at ¶ 3.)
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Plaintiff’s arguments and the form he filled out amount to unsubstantiated allegations that are
insufficient to create a genuine disputed issue of fact as to whether CDOC officers were
thwarting Plaintiff’s attempts to follow the grievance process. See McMiller v. Corr. Corp. of
Am., 695 F. App’x 344, 348 (10th Cir. 2017) (noting plaintiff’s “unsubstantiated allegations fail
to create a material factual dispute” as to whether prison official improperly denied plaintiff’s
grievance).
Finally, Plaintiff contends the grievance process was unavailable to him because
Defendant responded to and denied a grievance about herself. (Doc. No. 58 at ¶ 4.) He argues
“Lt. Roundy responding to a filed grievance personally is also material facts/evidence of the
grievance process being impartial in this case,” and shows “the grievance process in this case
was [unavailable].” (Doc. No. 65 at 3.) However, Plaintiff does not offer evidence, case law, or a
logical link in support of the argument that because Defendant responded to the grievance, it
means the process was unavailable to Plaintiff. And to the extent Plaintiff intends to argue that
Defendant’s involvement interfered with his right to appeal Defendant’s decision, there is no
indication that Plaintiff attempted to appeal that decision. In any event, the record suggests that
the reason Defendant responded to the grievance herself, was because she had personal
knowledge of how the issue was resolved. (Doc. No. 59-1 at 2 (demonstrating that on March 15,
2023 Plaintiff filed a grievance stating Defendant denied him grievance forms, and on April 14,
2023 Defendant responded by stating she had “given the forms that day as requested.”).)
This case is distinguishable from the case Plaintiff cites to, Silva v. Huss, No. 22-cv-20,
2023 WL 3353923, at *5-6 (W.D. Mich. Apr. 11, 2023), report and recommendation adopted,
No. 22-cv-20, 2023 WL 3339063 (W.D. Mich. May 10, 2023). There, the court found a genuine
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issue of material fact because an officer falsely stated to plaintiff that his claim fell outside the
grievance policy. Id. That is not the case here. Other than Plaintiff’s unsubstantiated contention
that he was denied some forms—a contention contradicted by his own statement that he filled
out a Step 1 form—Plaintiff offers no evidence that the forms were denied, or that the grievance
process was thwarted. Thus, Plaintiff has not met his burden of establishing a genuine issue of
material fact as to unavailability, and the Court finds Defendant is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendant’s
Motion for Summary Judgement for Failure to Exhaust Administrative Remedies (Doc. No. 43)
be GRANTED and that the case be DISMISSED without prejudice.5
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Keyon Nesmith
1342 Connor Road
Manning, SC 29102
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
5 A dismissal based on failure to exhaust or file a certificate of review should be without
prejudice. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (“Ordinarily, a
dismissal based on a failure to exhaust administrative remedies should be without prejudice.”)
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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.
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 31st day of December, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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