Lovato v. Willer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-02905-PAB-STV
WILLIAM B. LOVATO,
Plaintiff,
v.
THOMAS LITTLE;
DAVID LISAC;
MAJ. JOHN/JANE DOE #1;
LT. JAMES JOHNSON;
LT. DANIEL DENT;
SGT. WHITE;
SGT. JACKIE SCHAAL;
JOHN/JANE DOE #2;
JOHN/JANE DOE#3;
LARRY WEINGARDNER;
DIANA TRAVIS;
HALEY HANSON; and
JAY LUSK,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant William Little’s Motion to Dismiss
Plaintiff’s Complaint (the “Motion to Dismiss”) [#44] and Defendants’ Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies (the “Motion for Summary
Judgment”) [#89] (collectively, the “Motions”). 	The Motions have been referred to this
Court. 	[##45; 90] 	The Court has carefully considered the Motions and related briefing,
the entire case file, and the applicable case law, and has determined that oral argument
would not materially assist in the disposition of the Motions. 	For the following reasons,
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the Court respectfully RECOMMENDS that the Motion for Summary Judgment be
GRANTED IN PART and DENIED IN PART and that the Motion to Dismiss be DENIED
AS MOOT.
I. 	BACKGROUND
A. Plaintiff’s Allegations1
Plaintiff currently is incarcerated at the Sterling Correction Facility (“SCF”). [#108
at 2] In November 1998, Plaintiff, then a member of the Chiqui-30s (“Chi-30s”) gang, was
involved in a high-profile gang-related murder in Denver, which resulted in the death of
an “Oldies-13” gang member. 	[#1 at 11 & n.1] 	Plaintiff’s co-defendant, also a Chi-30s
gang member, falsely implicated Plaintiff as the shooter in the incident. 	[Id. at 11-12]
Plaintiff, in turn, testified against his co-defendant and provided the Denver District
Attorney’s Office and Denver Police Department with information on other Chi-30s gang
members. [Id. at 11-12 & n.2] Following this incident, Plaintiff disengaged from the Chi-
30s gang and was labeled a “snitch” by all Hispanic gangs active in Colorado. [Id. at 12]
Plaintiff subsequently had several violent encounters with Chi-30s and Oldies-13 gang
members, both inside of and outside of CDOC custody. [Id.]
In September 2005, Plaintiff was involved in another shooting and sentenced to
128 years of incarceration. [Id.] At his intake assessment at the Denver Reception and
Diagnostic Center (“DRDC”) Plaintiff recounted his prior membership in, and subsequent
1 The facts in this section are drawn from Plaintiff’s Complaint [#1] and must be taken as
true for the purposes of the Motion to Dismiss. See Wilson v. Montano, 715 F.3d 847,
850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
The allegations in Plaintiff’s Complaint are also considered for the purposes of defining
the issues raised in this civil action, as relevant for determining whether Plaintiff
exhausted his administrative remedies.
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disassociation from, the Chi-30s gang. 	[Id.] 	Plaintiff also provided information that he
had testified against a Chi-30s gang member, he had been labeled a “snitch” by Chi-30s
and Oldies-13 gang members, there was a “green light” on him, and he had been
receiving death threats. 	[Id. at 12-13] 	The resulting “Diagnostic Narrative Summary”
compiled by DRDC staff identified that Plaintiff had “custody issues” with members of
multiple Hispanic gangs, was “victim prone” due to his previous gang affiliation and
testimony against a Chi-30s gang member, and had several enemies. [Id. at 13] DRDC
staff assured Plaintiff that they were aware of the relevant facts in his record, and that
notations would be made in his files to keep him separate from Hispanic gang members
while in CDOC custody. [Id.]
Between December 7, 2006 and December 5, 2019, Plaintiff transferred facilities
at least thirteen times. 	[Id. at 13-20] 	Upon Plaintiff’s arrival at a new facility, Plaintiff
consistently recounted his high-risk history and informed staff that he feared for his safety
if placed in general population with Hispanic gang members. 	[Id.] 	Plaintiff generally
received assurance that facility staff was aware of the facts in Plaintiff’s records and that
Plaintiff would be kept separate from Hispanic gang members during his incarceration.
[Id.] 	Nevertheless, Plaintiff was routinely placed in general population with active
Hispanic gang members. [Id.] During this time, Plaintiff was assaulted by Hispanic gang
members on eight occasions.2 [Id.]
2 On one such occasion, Plaintiff felt threatened by gang members moving towards him
while 	carrying 	prison-made 	weapons, 	and 	he 	“moved 	(peremptorily) 	to 	stop 	the
forthcoming assault against him by attacking the nearing gang member who threatened
him.” [#1 at 16-17]
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On December 5, 2019, Plaintiff was transferred to Colorado State Penitentiary
(“CSP”).3 [Id. at 20] Plaintiff was interviewed by CSP “Intel/STG4 and Case Management
staff,” and he again recounted his prior criminal history and gang involvement. [Id.] CSP
staff assured Plaintiff that they were aware of the facts in the record and that Plaintiff
would be kept separate from Hispanic gang members. [Id.] Plaintiff, however, was placed
in general population and housed with active Hispanic gang members. [Id.] On February
27, 2020, Plaintiff was assaulted by two Hispanic gang members. 	[Id.] 	CSP Intel/STG
staff interviewed Plaintiff after the assault. [Id.] Plaintiff stated that he had been receiving
death threats and reported his fears of assault to housing unit staff but had been ignored,
and that he feared for his safety if placed back in general population with Hispanic gang
members due to his history and prior assaults. [Id.] Following this interview, Plaintiff was
placed back in general population with the same Hispanic gang members. [Id.]
On March 5, 2020, CSP staff recorded that Plaintiff’s mother and sister had spoken
with staff about the February 27, 2020 assault, and voiced concerns about Plaintiff’s
wellbeing. [Id.] The records note that Plaintiff’s sister asked about Plaintiff being moved
to a more secure location, but that staff’s response was that Plaintiff “would need to
complete the programs at CSP and progress.” [Id.]
On November 24, 2020, three Hispanic gang members gathered in the day hall
and loitered outside of Plaintiff’s cell while “gloving-up and readying their prison-made
3 This was Plaintiff’s second time to be transferred to CSP. Plaintiff had previously been
transferred to CSP on September 13, 2013, was interviewed extensively regarding his
high-risk status but was nevertheless placed in general population with active Hispanic
gang members despite repeated concerns raised by Plaintiff and his family members. [Id.
at 17] 	Plaintiff was eventually assaulted by the former co-defendant who Plaintiff had
testified against. [Id. at 18] Plaintiff was transferred from CSP on October 6, 2015. [Id.]
4 “STG” stands for “Security Threat/Terrorist Group.” [See id. at 3]
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weapons.” 	[Id. at 21] 	One gang member was a relative of the victim in the November
1998 shooting. [Id. at 21 n.5] CSP housing staff then opened Plaintiff’s cell door, which
was not supposed to be opened, and allowed the gang members to enter Plaintiff’s cell.
[Id. at 21] The gang members stabbed Plaintiff repeatedly (the “November 20 stabbing”),
then left his cell and celebrated in the middle of the day hall before they were ordered to
leave by first responders. 	[Id.] 	Plaintiff sustained serious injuries as a result of the
November 20 stabbing. 	[Id.] 	Plaintiff was transferred to Arkansas Valley Correctional
Facility (“AVCF”) Protective Custody housing unit on January 12, 2021. [Id.]
B. The Grievance Process5
The CDOC maintains a three-part administrative remedy scheme that applies to
claims relating to incidents of prison life. [#89-1 at ¶ 4]; see also CDOC Admin. Reg. No.
850-04 (“AR 850-04”).6 	On March 12, 2021, Plaintiff filed a Step One grievance from
AVCF. 	[#98 at 10] 	Plaintiff’s Step One grievance reports that he had previously filed a
separate Step One grievance at CSP “over how [Plaintiff] was ‘Set-Up’ [to be] stabbed,
and placed at risk by the C.S.P. Intel-Officers.” [Id.] Plaintiff’s Step One grievance states
that: 	“What happe[ne]d to me should never happen to anyone[.] 	C.S.P. Intel is
responsible and I want an investigation into what happened to me done immediately[.]
And to make sure it doesn’t happen to anyone else.” [Id.] The response to Plaintiff’s Step
One grievance references an “AR 600-01G Custody Issue Statement” and notes that: “If
5 The facts in this section are drawn, where possible, from the parties’ statements of
undisputed fact included in briefing and from the exhibits attached to the Motion for
Summary Judgment and related briefing.
6 The Court may take judicial notice of CDOC regulations. 	Allen v. Clements, 930 F.
Supp. 2d 1252, 1260 n.2 (D. Colo. 2013) (citing Ray v. Aztec Well Serv. Co., 748 F.2d
888, 889 (10th Cir. 1984)).
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an offender fails to give accurate, confirmable and valid information, custody issues
cannot be added to your CDOC history.” [Id.] The response further states that if Plaintiff
is “dissatisfied with the response to this grievance, [Plaintiff] may obtain further review by
submitting the next step to the appropriate individual.” [Id.]
On April 6, 2021, Plaintiff filed a Step Two grievance. 	[Id. at 11] 	Plaintiff’s Step
Two grievance states:
To be clear[,] I believe that C.S.P. Intel officers either set me up to be
stabbed or they just straight up “failed” in every way to make sure it didn’t
happen. 	I was stabbed over 41-times because they didn’t do the[ir] job,
because they didn’t do what they said when I was just assaulted 7-months
before I was stabbed. 	I want what happened to me investigated and for
those responsible for allowing it to be dealt with immediately per C.D.O.C.
personal conduct policy. 	They let me almost get stabbed to death. 	Do
everything to make sure it doesn’t happen again to me.
[Id.] The response to Plaintiff’s Step Two grievance states:
The incident in which you have referred to regarding being stabbed has
been thoroughly reviewed on multiple levels, and all information to include
and STG/Intel has also been reviewed. 	There is no information that has
been presented nor that confirms any claims of failure to properly execute
duties by staff, and there has been no violation of the CDOC Conduct Policy
by staff in the issue which you have brought forth.
[Id.] 	The response further states that if Plaintiff is “dissatisfied with the response to this
grievance, [Plaintiff] may obtain further review by submitting the next step to the
appropriate individual.” [Id.]
On May 21, 2021, Plaintiff filed a Step Three grievance. [Id. at 12] Plaintiff’s Step
Three grievance states:
CDOC, its facilities[,] and its [Intel Department] have a . . . DUTY to protect
inmates within its supervision. 	I was stabbed multiple times and left for
dead, in what is SUPPOSE[D] to be the most “[c]ontrolled” enviro[n]ment in
CDOC. 	To say that “there is no information to confirm that staff failed to
execute their duty” is a slap in the face. . . . [The] scars now that crisscross
my head and neck . . . are [] “Information that PROVE staff failed to properly
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execute their duties.” 	CSP is suppose[d] to be the most monitored most
secure facility the CDOC has to offer . . . . 41 TIMES I WAS STABBED . . .
. 	The trauma I suffered makes it all but impossible for me to focus and
complete a grievance . . . but I did state that . . . . I want[] t[he] incident[] to
be investigated properly—as well as for those who could have stopped it to
be compared ag[ain]st what CDOC claims is their Personal conduct policy.
[Id. at 12] The response to Plaintiff’s Step Three grievance states:
I have reviewed your Step 3 grievance that you filed with regard to [the]
allegation 	that 	CSP 	Intel 	set 	you 	up 	for 	assault 	by 	other 	offenders
(11/24/20). In review of this matter I contacted the CSP Administration for
information. 	You were contacted by CSP Administration for background
information that could assist with understanding why this assault took place.
I agree with the Step 1 and Step 2 responses which contain correct and
appropriate information. 	Staff were not involved with the incident on
11/24/20, except to assist with addressing your injuries and contacting
medical. If an offender fails to give accurate, and valid information that can
be confirmed, then custody issues cannot be addressed appropriately to
avoid an assault. 	You have submitted no documentation to substantiate
your claim. Based on the foregoing I cannot recommend any further relief.
. . . It is your burden to prove your allegations stated in your Step 3
grievance. I have reviewed the facts of this case and determined that you
did not meet this burden. There was no corroborating evidence to provide
proof of your allegations. Your request for relief is denied. This is the final
administrative response in this matter and you have exhausted your
administrative remedies.
[Id.]
C. This Lawsuit
Plaintiff initiated the instant action on November 7, 2022. [#1] Plaintiff names the
following defendants: Thomas Little, Warden of CSP; David Lisac, Associate Warden of
CSP; Major Doe #1, Custody Control/Security Supervisor at CSP; Lieutenant James
Johnson, Intel Unit Supervisor at CSP; Lieutenant Daniel Dent, Intel Unit at CSP;
Sergeant White, Intel Unit at CSP; Sergeant Jackie Schaal, Housing Unit Supervisor at
CSP; Does #2 and #3, Corrections Officers at CSP; Larry Weingardner, Case Manager
Supervisor at CSP; Diana Travis, Case Manager at CSP; Haley Hanson, Case Manager
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at CSP; and Jay Lusk, Investigator for the Colorado Department of Corrections (“CDOC”).
[Id. at 2-11] Plaintiff alleges that each Defendant was deliberately indifferent to Plaintiff’s
custody issues and failed to protect him from serious harm in violation of Plaintiff’s Eighth
Amendment rights. [Id. at 21-32]
In Claim One, Plaintiff alleges that Warden Little failed to act on information
available to him in order to protect Plaintiff, failed to adequately supervise CSP staff, and
implemented the policies that caused Plaintiff to be placed in general population at CSP.
[Id. at 22-24]
In Claim Two, Plaintiff alleges that Associate Warden Lisac, Doe #1, Lieutenant
Dent, Sergeant White, and Lieutenant Johnson were personally responsible for and
personally participated in: 	maintaining and updating Plaintiff’s inmate and Intel records
on STG issues; investigation, validating, and verifying Plaintiff’s custody issues; and
taking reasonable measures to confine, separate, or transfer inmates who had inflicted or
threatened to harm Plaintiff. [Id. at 25] Plaintiff also alleges that Associate Warden Lisac,
Doe #1, Lieutenant Dent, Sergeant White, and Lieutenant Johnson each had the authority
to remove Plaintiff from general population and request review for protective custody
placement, or recommend that Plaintiff request protective custody placement himself, but
nevertheless allowed Plaintiff to be housed in general population under conditions posing
a substantial risk of serious harm. [Id. at 26]
In Claim Three, Plaintiff alleges that Mr. Weingardner, Ms. Travis, and Ms. Hanson
were personally responsible for maintaining and updating Plaintiff’s case management
records on STG issues and documenting Plaintiff’s custody issues. [Id. at 27-28] Plaintiff
also alleges that Mr. Weingardner, Ms. Travis, and Ms. Hanson each had the authority to
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remove Plaintiff from general population and request review for protective custody
placement, or recommend that Plaintiff request protective custody placement himself, but
nevertheless allowed Plaintiff to be housed in general population under conditions posing
a substantial risk of serious harm. [Id. at 28]
In Claims Four and Five, Plaintiff alleges that Sergeant Schaal and Does #2 and
#3 allowed three known prison gang members to loiter outside of Plaintiff’s cell door while
“wearing gloves” and “wielding” or “brandishing” prison-made weapons. 	[Id. at 29-30]
Plaintiff alleges that Sergeant Schaal and Does #2 and #3 then opened Plaintiff’s cell
door (in violation of departmental and facility policies and certain keep-separate orders
entered regarding Plaintiff), allowing the gang members to enter the cell and assault
Plaintiff. [Id.] Plaintiff alleges that Sergeant Schaal and Does #2 and #3 had the authority
to remove Plaintiff from general population and request review for protective custody
placement, or recommend that Plaintiff request protective custody placement himself.
[Id.]
In Claim Six, Plaintiff alleges that Mr. Lusk was responsible for investigating,
verifying, and validating Plaintiff’s history of custody issues across all of CDOC’s facilities,
and for taking all reasonable measures necessary to keep Plaintiff separate from inmates
who had threatened to harm Plaintiff. 	[Id. at 31] 	Plaintiff alleges that Mr. Lusk had the
authority to remove Plaintiff from general population and request review for protective
custody placement, or recommend that Plaintiff request protective custody placement
himself, but nevertheless allowed Plaintiff to be housed in general population under
conditions posing a substantial risk of serious harm. [Id. at 32]
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On March 21, 2023, Warden Little filed the Motion to Dismiss, seeking to dismiss
Claim One. [#44] Plaintiff filed a response to the Motion to Dismiss [#84], and Warden
Little has replied [#86]. On October 9, 2023, the Motion for Summary Judgment was filed
on behalf of all Defendants who had made appearances by that date.7 [#89] Plaintiff has
responded [#98] and Defendants have replied [#113].
II. 	STANDARD OF REVIEW
A. 	Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath or conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
7 The Doe Defendants have not been identified or served, despite the Court permitting
early discovery into their identities. 	[See #75] 	Defendant Haley Hanson has not been
served. [##42; 43]
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1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. 	Summary Judgment
Summary judgment is appropriate only 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);
Henderson v. Inter–Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). 	If the moving
party bears the burden of proof at trial, “the moving party must establish, as a matter of
law, all essential elements of the [claim or defense upon 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).
In other words, the moving party “must support its motion with credible evidence showing
that, if uncontroverted, the moving party would be entitled to a directed verdict.” 	Rodell
v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3
(D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). “Where, as here, a
defendant moves for summary judgment to test an affirmative defense, ‘[t]he defendant
. . . must demonstrate that no disputed material fact exists regarding the affirmative
defense asserted.’” 	Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011) (quoting
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997)). “Once the defendant makes this
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initial showing, ‘the plaintiff must then demonstrate with specificity the existence of a
disputed material fact.’” Id. (quoting Hutchinson, 105 F.3d at 564). “If the plaintiff cannot
meet this burden, ‘the affirmative defense bars [her] claim, and the defendant is then
entitled to summary judgment as a matter of law.’” Id. (quoting Hutchinson, 105 F.3d at
564).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable juror could return a verdict for either 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., 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, 288 (1968)). In reviewing a motion for summary judgment, the
Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most
favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1216 (10th Cir. 2002).
C. 	Pro se Pleadings
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
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III. 	ANALYSIS
Through the Motion to Dismiss, Warden Little seeks to dismiss Claim One of the
Complaint for failure to state a claim. [#44] Through the Motion for Summary Judgment,
Defendants seek summary judgment on all of Plaintiff’s claims based upon Plaintiff’s
alleged failure 	to 	exhaust his 	administrative 	remedies 	through CDOC’s 	grievance
procedure. [#89] Although the exhaustion requirement from the Prison Litigation Reform
Act of 1995 (“PLRA”) is not jurisdictional, Woodford v. Ngo, 548 U.S. 81, 101 (2006), the
Court nonetheless begins with the Motion for Summary Judgment.
A. 	The Motion for Summary Judgment
Pursuant to the PLRA, “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983] . . . 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 United States Supreme Court has made clear that the PLRA’s
exhaustion requirement “is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said more
conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” 	Ross v. Blake, 578 U.S. 632, 638 (2016). 	“[T]he PLRA’s text suggests no
limits on an inmate’s obligation to exhaust,” except that “the remedies must indeed be
‘available’ to the prisoner.” Id. at 639. 	As a result, “a court may not excuse a failure to
exhaust, even to take [special] circumstances into account.” Id.
Thus, “[a]ny 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)
(citations and quotation omitted). The PLRA’s exhaustion requirement “‘seeks to affor[d]
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corrections officials time and opportunity to address complaints internally before allowing
the initiation of a federal case.’” Woodford, 548 U.S. at 93 (quoting Porter v. Nussle, 534
U.S. 516, 525 (2002)). 	“The prison grievance system will not have such an opportunity
unless the grievant complies with the system’s critical procedural rules.” 	Id. at 95. The
PLRA 	thus 	requires 	“proper 	exhaustion” 	of 	the 	prison’s 	grievance 	process—i.e.,
“compliance with [the prison’s] deadlines and other critical procedural rules.” 	Id. at 90,
93. 	As a result, “to properly exhaust administrative remedies prisoners must complete
the administrative review process in accordance with the applicable procedural rules,”
which are “defined not by the PLRA, but by the prison grievance process itself.” Jones v.
Bock, 549 U.S. 199, 218 (2007) (quotation omitted). The PLRA exhaustion requirement,
however, “is an affirmative defense, not a pleading requirement.” May, 929 F.3d at 1229.
Defendants thus “bear[] the burden of ‘proving that [Plaintiff] did not [exhaust his]
administrative remedies.’” 	Id. at 1234 (quoting Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011)).
The CDOC has a grievance procedure in place for handling inmate concerns, as
set forth in AR 850-04. The grievance procedure can be invoked by inmates “for a broad
range of complaints” including “policies, conditions, and incidents within the facility that
affect the offender personally.”8 AR 850-04 § IV.D.1. After attempting informal resolution,
the inmate must exhaust a three-step grievance process. See generally id. at § IV.E.3.
8 AR 850-04 does state that “the grievance procedure may not be used to seek review
of . . . [f]acility placement, unit, cell and bunk assignment (including protective custody . .
. ) [or] [s]ecurity threat groups (STG) status.” AR 850-04 § IV.D.2.h. and i. (emphasis in
original). The Court notes that these issues appear to be raised by Plaintiff’s Complaint.
As discussed below, however, Plaintiff does not argue that any administrative remedies
were unavailable to him, and CDOC responded to the concerns raised in Plaintiff’s
grievances on the merits.
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This process requires that “[t]he grievance . . . clearly state the basis for the grievance
and the relief requested in the space provided on the form.” 	Id. at § IV.D.9.b. 	The
procedure further states that:
The [Step 3] grievance officer may deny the grievance substantively. When
a grievance is denied after a review of the substantive issues, the grievance
officer will certify in the response that the offender has exhausted the
grievance process.
Id. at § IV.E.3.c.1. Alternatively:
The [Step 3] grievance officer may deny the grievance on procedural
grounds, without addressing the substantive issues if the grievance is
incomplete, inconsistent with a former step, incomprehensible, illegible,
requests relief that is not available, fails to request relief, or in any other way
fails to comply with the provisions of this regulation. 	When a grievance is
denied for a procedural error, the grievance officer will certify in the
response that the offender has not exhausted the grievance process.
Id. at § IV.E.3.c.2. (emphasis in original); see also id. at § IV.D.9.d. (specifically explaining
that failure to adhere to Section IV.D.9.b. “may result in a procedural denial”).
In 	support 	of 	the 	Motion 	for 	Summary 	Judgment, 	Defendants 	submitted 	a
declaration of Step 3 Grievance Officer Anthony DeCesaro. 	[#89-1] 	Mr. DeCesaro
testified that all grievances submitted by inmates are logged into the CDOC’s electronic
grievance database and assigned a tracking number for reference. [Id. at ¶¶ 11-12] He
further testified that he had reviewed the CDOC’s records of grievances filed by Plaintiff
and that he did not find any grievances filed by Plaintiff concerning the allegations at issue
regarding the Defendants identified in the Complaint. 	[Id. at ¶¶ 17-18] 	Defendants, in
turn, assert in their Motion for Summary Judgment that “[Plaintiff] did not file any
grievances regarding Defendants’ purported actions or inactions following the incident on
November 24, 2020” and argue that “Plaintiff did not use the administrative grievance
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process to allow CDOC to address the substance of his allegations against Defendants
and, therefore, did not exhaust his administrative remedies.” [#89 at 3, 9]
In response, Plaintiff asserts that he “did exhaust his administrative remedies by
filing all 3 steps of CDOC’s grievance procedure concerning the November 24, 2020
murder attempt.” [#98 at 3] Plaintiff attaches as support copies of the three grievances
detailed in Section I.B. of this Recommendation. [Id. at 10-13]
In reply, Defendants attach a Supplemental Declaration from Mr. DeCesaro.
[#113-1] Mr. DeCesaro concedes that the grievances attached to Plaintiff’s response did
not appear in his original search,9 and that the grievances and responses attached to
Plaintiff’s response are true and accurate copies. 	[Id. at ¶¶ 7-8] 	Defendants maintain,
however, that Plaintiff’s grievances nevertheless fail to satisfy the rules of the CDOC’s
grievance process because they fail to clearly state the basis and subject of the grievance,
provide identifying data, and provide a description of the relief requested, as required by
CDOC rules. 	[See #113 at 6-8] 	Defendants point out that Plaintiff’s grievances only
9 The supplemental declaration clarifies that Mr. DeCesaro’s original search was limited
to “approximately ten days before to over ninety days after the alleged incident” [Id. at ¶
7], a time parameter that was not disclosed in his original declaration [see #89-1 at ¶¶ 17-
18 (“I have reviewed the CDOC’s records of grievances filed by [Plaintiff], to determine
whether he filed any grievances concerning his allegations that CDOC employees,
including [the named Defendants,] failed to protect him on November 24, 2020. 	I have
found no grievances at all filed by [Plaintiff] concerning the above allegations.”)].
Plaintiff’s Response includes a request to sanction Mr. DeCesaro and the Defendants for
falsely asserting that Plaintiff did not file any relevant grievances. 	[See #98 at 5-6]
Pursuant to Federal Rule of Civil Procedure 7(b)(1), “[a] request for a court order must be
made by motion.” Pursuant to D.C.COLO.LCivR 7.1(d), “[a] motion shall not be included
in a response or reply to the original motion. A motion shall be filed as a separate
document.” 	Accordingly, the Court will not consider Plaintiff's requests absent a proper
motion. 	Moreover, while not impressed with Mr. DeCesaro’s omission of the search
parameters from his original Declaration, the Court is satisfied for the purposes of the
Motion before the Court by Mr. DeCesaro’s clarification of the search parameters
originally used and their rationale. [See #113-1 at ¶¶ 4-7]
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assert that he was placed at risk by unidentified CSP “Intel” officers, and do not
specifically 	identify 	the 	Warden, 	Associate 	Warden, 	housing 	supervisors, 	case
management staff, or investigators. 	[Id. at 8-10] 	Accordingly, Defendants argue that
Plaintiff “did not provide enough information in his grievances with respect to these
Defendants to allow CDOC to investigate their involvement and address the allegations
internally.” [Id. at 9] Defendants further argue that Plaintiff’s allegations in the grievances
are too vague to satisfy CDOC grievance rules, even as to the any “Intel” officers named
in the Complaint—specifically Lieutenant Johnson, Lieutenant Dent, and Sergeant White.
[Id. at 10-12] 	In sum, Defendants assert that Plaintiff’s grievances fail to exhaust his
remedies as to any named Defendant because Plaintiff failed to adhere to CDOC rules
governing the grievance process.10 	[Id. at 9-10 (“Put simply, [Plaintiff] provided no
allegations in his Step 1, 2, and 3 grievances indicating any basis whatsoever against
Defendants Little, Lisac, Schaal, Weingardner, Travis, or Lusk, nor did he include any
identifying data to determine whether any of these Defendants were involved in actions
or inactions related to the November 24, 2020 assault. [Plaintiff] failed to comply with the
requirement of AR 850-04 and did not exhaust his administrative remedies against these
10 A court “generally does not review issues raised for the first time in a reply brief.” In re
Gold Res. Corp. Sec. Litig., 957 F. Supp. 2d 1284, 1291 (D. Colo. 2013), aff’d, 776 F.3d
1103 (10th Cir. 2015) (quoting Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1166 n.3
(10th Cir. 2003)). 	There is an exception, however, “when the new issue argued in the
reply brief is offered in response to an argument raised in the [plaintiff's] brief.” Id. (quoting
Beaudry, 957 F.3d at 1166 n.3). The Court will therefore consider the arguments raised
in Defendants’ Reply. Defendants’ argument that the specific grievances cited by Plaintiff
are insufficient to exhaust Plaintiff’s administrative remedies was raised in response to
Plaintiff’s brief, and Defendants’ Reply makes the same generally consistent argument
that Plaintiff failed to exhaust his administrative remedies because he did not adequately
complete the grievance process with respect to the specific claims raised in his
Complaint.
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Defendants as a result.”), 11-12 (“[T]o the extent [Plaintiff] claims his inclusion of
allegations against ‘CSP Intel Officers’ exhausted his administrative remedies against
Defendants Johnson, Dent, and White, this argument is misplaced because he did not
provide identifying data and he failed to provide the basis of his grievance as required
under AR 850-04.”)]
To the extent that Defendants contend that Plaintiff’s grievances fail to exhaust his
remedies due to failure to comply with CDOC rules, this argument has been forfeited by
CDOC’s determination of Plaintiff’s grievances on the merits. 	To be sure, the PLRA
requires “proper” exhaustion. 	Woodford, 548 U.S. at 84. 	But “[c]ompliance with prison
grievance procedures . . . is all that is required by the PLRA to ‘properly exhaust,’” and
“[t]he level of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements . . . that
define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. And as the Sixth
Circuit has persuasively explained:
When prison officials decline to enforce their own procedural requirements
and opt to consider otherwise-defaulted claims on the merits, so as a
general rule will [the court]. In that setting, the State, as the promulgator of
the rules, has had a chance to provide a remedy for the inmate and to
decide whether the objectives of the review process have been served.
When the State nonetheless decides to reject the claim on the merits, who
[is a court] to second guess its decision to overlook or forgive its own
procedural bar? The rules serve the State’s interests: its interest in creating
a prison grievance system, its interest in reviewing a complaint before
another sovereign gets involved and its interest in deciding when to waive
or enforce its own rules. And the State's decision to review a claim on the
merits gives [the court] a warrant to do so as well, even when a procedural
default might otherwise have resolved the claim.
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (internal citation omitted)
(emphasis in original); see also Morgan v. Trierweiler, 67 F.4th 362, 371 (6th Cir. 2023)
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(holding that because prison officials responded to a grievance on the merits, they waived
the application of a rule requiring that “[d]ates, times, places, and names of all those
involved in the issue being grieved are to be included”); Ross v. County of Bernalillo, 365
F.3d 1181, 1186 (10th Cir. 2004) (overlooking the untimeliness of a grievance, over the
objection of the defendants, where prison officials reviewed grievance on the merits),
abrogated on other grounds by Jones, 549 U.S. 199; Jewkes v. Shackleton, No. 11-CV-
00112-REB-BNB, 2012 WL 5332197, at *4-5 (D. Colo. Oct. 29, 2012) (same, explaining
that “if the CDOC forfeits enforcement of certain of its grievance procedures, and
processes a grievance despite a deviation from the rules, [the defendant] is bound by that
forfeiture”).
CDOC rules require that grievances “clearly state the basis for the grievance and
the relief requested in the space provided on the form.” AR 850-04 § IV.D.9.b. Failure to
do so (or failure to comply with any other provision of AR 850-04) constitutes grounds for
a procedural denial, which must contain a certification “that the offender has not
exhausted the grievance process.” Id. § IV.E.3.c.2. (emphasis in original); see also id. at
§ IV.D.9.d. 	Here, Plaintiff’s grievances were not procedurally denied, but received
responses on the merits. 	In response to Plaintiff’s grievances, the CDOC noted that it
“thoroughly reviewed” the November 20 stabbing “on multiple levels, and all information
to include any STG/Intel has also been reviewed.” 	[#98 at 11] 	The CDOC determined
that “[s]taff were not involved with the incident on 11/24/20, except to assist with
addressing [Plaintiff’s] injuries and contacting medical.” [Id. at 12] Plaintiff was informed
that he did not meet his “burden to prove [his] allegations”—not that his allegations could
not be understood. 	[Id.] 	Indeed, Plaintiff received certification that: 	“[Y]ou have
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exhausted your administrative remedies.” [Id.]; see also AR 850-04 § IV.E.3.c.1. (“When
a grievance is denied after a review of the substantive issues, the grievance officer will
certify in the response that the offender has exhausted the grievance process.”). 	Thus,
“the State’s decision to review a claim on the merits gives [the Court] a warrant to do so
as well.” Reed-Bey, 603 F.3d at 325.
Defendants also argue that, while Plaintiff’s grievances may have exhausted his
administrative remedies as to some hypothetical claims, he did not exhaust his remedies
as to the specific claims in the Complaint. 	[See, e.g., #113 at 8 (“Although the Step 3
grievance responses state that [Plaintiff] exhausted his administrative remedies with
respect to the allegations in those grievances, [CDOC] could not have informed [Plaintiff]
that he exhausted his administrative remedies on claims that were not sufficiently alleged
as part of the underlying grievance.”)] 	“A grievance [does not] exhaust administrative
remedies for all future complaints of the same general type.” 	Ross, 365 F.3d at 1188;
see also Sayed v. Profitt, 415 F. App’x 946, 949 n.4 (10th Cir. 2011) (prisoner who had
raised and exhausted the issue of a right to perform partial ablution did not also raise the
issue of a right to perform full ablution, despite the similarity of the issue). 	The Tenth
Circuit has explained that, to exhaust a prisoner’s specific claims, a grievance must
“provide enough information for officials to investigate and address the actual issue raised
in his civil complaint.” Barnes v. Allred, 482 F. App’x 308, 312 (10th Cir. 2012).
As discussed above, any failure by Plaintiff to comply with CDOC procedural rules
regarding identification or specificity has been waived. The question instead is whether
the claims that Plaintiff exhausted in his grievance are the same ones he raises in his
Complaint. 	Liberally construed, Plaintiff’s Complaint fairly raises two categories of
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21
issues—first, that various facility and department officers failed to protect Plaintiff by
housing Plaintiff in general population with other Hispanic gang members despite
Plaintiff’s documented and reported safety risks [see #1 at 21-32]; and second, that CSP
housing staff failed to protect Plaintiff by permitting three known gang members to
congregate outside of Plaintiff’s cell while wielding prison-made weapons, and then
opening Plaintiff’s cell door to allow the gang members to enter and assault Plaintiff [see
id. at 28-31]. The Court must determine whether Plaintiff’s grievances provided enough
information for prison officials to investigate and address these specific issues. 	See
Barnes, 482 F. App’x at 312.
The Court begins with the second category of issues raised in the Complaint—that
CSP housing officers failed to protect Plaintiff on the day of the assault by permitting gang
members to congregate outside of Plaintiff’s cell and by improperly opening Plaintiff’s cell
door. 	The Court finds that Plaintiff’s grievances permitted a fair investigation into this
issue by prison officials. 	Plaintiff’s grievances complained of staff either “set[ting]
[Plaintiff] up to be stabbed,” or “fail[ing] in everyway to make sure it didn’t happen.” [#98
at 11; see also id. at 12] 	Defendants fault Plaintiff’s grievances for failing to identify any
of Plaintiff’s housing officers and failing to allege how these officers were involved. [#113
at 8-9] 	But after Plaintiff provided clarification in his Step 2 grievance,11 CDOC officers
11 	While an inmate may not raise a new or inconsistent claim in later steps of the
grievance process, courts often consider the clarifying allegations raised across all of an
inmate’s grievances as a whole when the issue raised remains consistent. 	See, e.g.,
Holmes v. Rudd, No. 20-CV-00016-NYW, 2020 WL 7868466, at *9 (D. Colo. Dec. 31,
2020); Saleh v. Wiley, No. 09-CV-02563-PAB-KLM, 2012 WL 4356219, at *2 (D. Colo.
Sept. 24, 2012), aff’d sub nom., Saleh v. U.S. 588 F. App’x 758 (10th Cir. 2014); see also
Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003) (explaining that, under a particular
department’s grievance rules, an inmate is not “preclude[d] . . . from presenting additional
factual detail at Step II and Step III that clarifies an allegation made at Step I as a means
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22
were plainly able to investigate the conditions surrounding the November 20 stabbing—
or, in their words, “thoroughly review[] [the incident] on multiple levels.” 	[#98 at 11]
Moreover, it is clear that the CDOC’s review ultimately went beyond “Intel” officers. While
one response did specifically note that “all information to include any STG/Intel has also
been reviewed,” CDOC determined that “[t]here is no information that has been presented
nor that confirms any claims of failure to properly execute duties by staff.” [Id. (emphasis
added); see also id. at 12 (“Staff were not involved with the incident on 11/24/20, except
to assist with addressing your injuries and contacting medical.” (emphasis added))]
Indeed, Defendants concede that Plaintiff’s allegations “allowed CDOC to look at the
events immediately surrounding the attack itself.” 	[#113 at 11] 	Plaintiff’s grievances,
while perhaps not as detailed as CDOC regulations call for, nevertheless permitted CDOC
to fairly investigate and address the conditions immediately surrounding Plaintiff’s assault
and therefore met the notice requirements of the PLRA. Accordingly, the Court finds that
Plaintiff has exhausted his administrative remedies as to his claims that CSP housing
officers failed to protect Plaintiff on the day of the assault by permitting gang members to
congregate outside of Plaintiff’s cell and by improperly opening Plaintiff’s cell door.
The Court now turns to Plaintiff’s allegations that Defendants failed to protect
Plaintiff by improperly housing Plaintiff in general population and failing to keep Plaintiff
separate from Hispanic gang members despite knowledge of the severe risk of assault
that Plaintiff faced. 	Plaintiff makes this allegation against every Defendant. 	[See #1 at
of justifying an appeal”), abrogated on other grounds by Jones, 549 U.S. 199. 	And
Defendants do not argue that Plaintiff raised inconsistent issues across his grievances,
or that the Court should disregard any allegations raised in Plaintiff’s Step II or Step III
grievances. [See #113]
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23
21-32] The Court finds that Plaintiff’s grievances exhausted his administrative remedies
as to Lieutenant Johnson, Lieutenant Dent, and Sergeant White—the three defendants
that Plaintiff identifies as members of the “Intel Unit.” 	[Id. at 4-6] 	Plaintiff’s grievances
are specifically directed against “CSP Intel Officers.” [#98 at 10-13] Plaintiff’s grievances
allege that he was “placed at risk” by “Intel” staff, that “Intel” staff “didn’t do what they
said” after Plaintiff had been assaulted seven months prior to the stabbing, and that “Intel”
staff “failed in everyway to make sure [the assault] didn’t happen.” [Id. at 10-11] Again,
Plaintiff’s grievances were not procedurally denied for a failure to adequately identify the
involved officers or sufficiently describe the event. 	[See id. at 12] 	In his Complaint,
Plaintiff alleges that the three identified “Intel Unit” officers are generally responsible for
gathering intelligence on, investigating, and monitoring inmates who participate in
“Security Threat/Terrorist Group” (“STG”) behavior, and taking reasonable measures
necessary to confine, separate, or transfer inmates who actively participate in STG
behavior. [#1 at 4-6] In light of these responsibilities and Plaintiff’s specific allegations in
his grievances that the stabbing was caused by the failures of Intel Officers, the Court
finds that the issue raised in Plaintiff’s grievances fairly extends to and gave CDOC notice
of the issue raised in the Complaint against Lieutenant Johnson, Lieutenant Dent, and
Sergeant 	White—namely 	that 	these 	individuals 	failed 	to 	ensure 	proper 	and 	safe
placement for Plaintiff within the facility leading up to the stabbing. [See #98 at 11 (“[A]ll
information to include any STG/Intel has also been reviewed.”)]
In contrast, the Court finds that Plaintiff has failed to exhaust his administrative
remedies with respect to his allegations of improper placement as to the remaining
Defendants. Again, Plaintiff’s grievances only cite failures by “CSP Intel Officers.” [Id. at
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24
10-12] 	And, unlike Plaintiff’s claims against his housing supervisors (which arise from
actions taken or not taken in immediate temporal proximity to the stabbing), Plaintiff’s
improper placement claims are more attenuated to the incident. Put differently, Plaintiff’s
grievances gave CDOC obvious cause to investigate the circumstances immediately
surrounding the incident—which CDOC did, including the actions of staff not designated
as “Intel.” [See id. at 11] Plaintiff’s grievances, however, did not give rise to any apparent
need to investigate the actions of each individual involved in keeping Plaintiff’s records or
with the alleged ability to impact Plaintiff’s placement in the months leading up to the
stabbing, when those individuals are in no way implicated on the face of Plaintiff’s
grievances. 	See Saleh v. Wiley, No. 09-CV-02563-PAB-KLM, 2012 WL 4356219, at *2
(D. Colo. Sept. 24, 2012) (explaining, in the context of a failure to protect claim arising
from an inmate’s placement in a housing unit with gang members who had labelled the
inmate a “snitch,” that: “Plaintiff cannot exhaust his administrative remedies for a discrete
claim against a single prison official simply by mentioning the Eighth Amendment and
various other legal terms”), aff’d sub nom., Saleh v. U.S., 588 F. App’x 758 (10th Cir.
2014).
In sum, the Court finds that Plaintiff exhausted his administrative remedies with
respect to his claims that: (1) Sergeant Jackie Schaal and Defendants Doe #2 and #312
failed to protect Plaintiff by permitting gang members to loiter outside of Plaintiff’s cell
while wielding prison weapons, and then improperly opened the door to Plaintiff’s cell to
12 Summary Judgment was not sought on behalf of Defendants Doe #2 and #3. [#89 at
1] 	Plaintiff alleges that these Defendants, along with Sergeant Schaal, were personally
responsible for ensuring the safety and security of inmates in Plaintiff’s housing unit but
permitted gang members to loiter outside of Plaintiff’s cell and opened the door to
Plaintiff’s cell allowing the gang members to assault Plaintiff. [See #1 at 29-30]
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25
allow entry into Plaintiff’s cell; and (2) Lieutenant Johnson, Lieutenant Dent, and Sergeant
White failed to protect Plaintiff by improperly responding to known safety risks caused by
Plaintiff’s placement in general population with known gang members. 	Accordingly, the
Court respectfully RECOMMENDS that Defendants’ Motion for Summary Judgment be
DENIED to the extent that it seeks summary judgment on these claims.13 In contrast, the
Court finds that Plaintiff has failed to exhaust his administrative remedies as to his
remaining claims, and that Plaintiff has failed to meet his burden of establishing that such
remedies 	were 	not 	available 	to 	him.14 	Accordingly, 	the 	Court 	respectfully
RECOMMENDS that Defendants’ Motion for Summary Judgment be GRANTED as to
Plaintiff’s claims against Warden Little, Associate Warden Lisac, Major Doe #1, Larry
Weingardner, Diana Travis, Haley Hanson, and Jay Lusk.15
13 This recommendation is not based on the existence of any factual dispute, and the
Court finds no cause to hold an evidentiary hearing on the issue of exhaustion, as
requested by Defendants. [#113 at 12]
14 While the PLRA’s exhaustion requirement is mandatory, it only requires the exhaustion
of “available” remedies. 	Ross, 578 U.S. at 642-44. 	“Accordingly, an inmate is required
to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain
‘some relief for the action complained of.’” Id. at 642 (quoting Booth v. Churner, 532 U.S.
731, 738 (2001)). “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.’” May, 929
F.3d at 1234 (quoting Tuckel, 660 F.3d at 1254). Here, Plaintiff makes no argument that
administrative remedies were unavailable to him as to the claims raised in his Complaint,
instead arguing that he successfully exhausted his administrative remedies as to all of
this claims. [See #98 at 3 (“[Plaintiff] did exhaust his administrative remedies by filing all
3 steps of CDOC’s grievance procedure concerning the November 24, 2020 murder
attempt on his life and CDOC officials failing to protect him.”)]
15 Summary Judgment was not sought on behalf of Defendants Major Doe #1 or Haley
Hanson [#89 at 1], who have not yet made appearances. 	The Court notes that these
Defendants are not alleged to be members of the Intel Unit nor alleged to have any
involvement in the events immediately surrounding the November 20 stabbing. [See #1
at 24-28] 	As such, the Court’s rationale for granting summary judgment in part applies
with equal force to Defendants Major Doe #1 and Haley Hanson.
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B. 	The Motion to Dismiss
The Motion to Dismiss only seeks to dismiss Claim One, which is Plaintiff’s only
claim against Warden Little. [#44 at 1 n.1] As outlined above, the Court concludes that
Plaintiff has failed to exhaust his administrative remedies as to his claim against Warden
Little. 	As a result, the Court has recommended Summary Judgment be granted as to
Plaintiff’s claim against Warden Little. 	If that recommendation is adopted, the Court
respectfully RECOMMENDS that the Motion to Dismiss be DENIED AS MOOT.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	this 	Court 	respectfully 	RECOMMENDS 	that
Defendant’s 	Motion 	for 	Summary 	Judgment 	for 	Failure 	to 	Exhaust 	Administrative
Remedies [#89] be GRANTED IN PART and DENIED IN PART. Specifically, the Court
respectfully RECOMMENDS that summary judgment be GRANTED as to all claims in
Plaintiff’s Complaint [#1] EXCEPT Plaintiff’s claims that:
(1) 	Sergeant Jackie Schaal and Defendants Doe #2 and #3 failed to protect
Plaintiff by permitting gang members to loiter outside of Plaintiff’s cell while
wielding prison weapons, and then improperly opened the door to Plaintiff’s
cell to allow entry into Plaintiff’s cell; and
(2) 	Lieutenant Johnson, Lieutenant Dent, and Sergeant White failed to protect
Plaintiff by improperly responding to known safety risks caused by Plaintiff’s
placement in general population with known gang members.
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The Court further RECOMMENDS that Defendant William Little’s Motion to Dismiss [#44]
be DENIED AS MOOT.16
DATED: December 7, 2023 BY THE COURT:
s/Scott T. Varholak
United Stated Magistrate Judge
16 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, 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); Griego v. Padilla
(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. 2121 East 30th Street, 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 of fact, legal
conclusions, 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 of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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