Hill v. Bina et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03428-CNS-KAS
DAVID E. HILL,
Plaintiff,
v.
CHRIS BINA, Medical Director of the Federal Bureau of Prisons (BOP),
T. ROGRIGUEZ, Chief Pharmacist of the BOP,
JAIME AUTEN, Central Office Pharmacist of BOP,
WILLIAM RESTO, Inst. Clinical Director of BOP,
KIESHA RESTO, Institutional Chief Pharmacist,
SEANA MALTEZO, Institutional Doctor, and
D. OBA, Institutional Doctor,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on several interrelated motions. First, Defendants
filed a Motion for Summary Judgment for Failure to Exhaust Administrative
Remedies [#22] (the “Motion for Summary Judgment”). Then, Defendants filed a Motion
for Extension of Time to Respond to Plaintiff’s Amended Complaint Until After the
Court Rules on Defendants’ Early Motion for Summary Judgment [#23] (the “Motion
for Extension of Time to Respond”). Plaintiff, who proceeds in this matter pro se,1 filed a
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972). In doing so, the Court should neither be the pro se litigant's advocate nor “supply
additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same
procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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Response [#29] in opposition to the Motion for Summary Judgment [#22], and Defendants
filed a Reply [#35].
Even though briefing on the Motion for Summary Judgment [#22] was closed,
Plaintiff 	filed 	a 	“Reply 	Brief 	to 	Defendant’s 	Reply” 	[#45] 	(the 	“Surreply”)
contemporaneously with a Motion for Extension of Time [#46] to file the Surreply [#45].
Defendants filed a Response [#51] in opposition to Plaintiff’s Motion for Extension of Time
[#46], as well as Defendants’ Motion to Strike Plaintiff’s Improperly Filed Sur-Reply
(ECF No. 45) [#50] (the “Motion to Strike”), to which Plaintiff filed no response. Plaintiff
later filed two letters containing supplemental authority. See Letters [#53, #54].
Separately, Plaintiff filed a Motion for Leave of Court to File a Supplemental
Pleading Setting Forth Exhaustion of All Administrative Remedies and Events that
Occurred After the Original Complaint [#30] (the “Motion for Leave”). Defendants filed
a Response [#37] in opposition to the Motion for Leave [#30], and Plaintiff filed a Reply
[#52].2 Meanwhile, Plaintiff filed a Motion to Withdraw the Supplemental Complaint
on File and Accept the Attached Supplemental Complaint Hereto [#41] (the “Motion
to Withdraw”) which was docketed as a Motion to Withdraw the Motion for Leave [#30].
Finally, Plaintiff filed a third Motion for Leave of Court to File a Supplemental Pleading
Setting Forth Exhaustion of All Administrative Remedies and Events that Occurred
After the Original and Amended Complaint [#42] (the “Motion to File Supplemental
Pleading”) 	along 	with 	a 	Proposed 	Prisoner 	Complaint 	[#42-1]. 	Defendant 	filed 	a
2 Because Plaintiff filed two “Motions for Leave of Court to File a Supplemental Pleading” [#30,
#42] the docket is unclear as to which motion the Reply [#52] relates—however, it was docketed
as a reply to Plaintiff’s Response [#37] to the Motion for Leave [#30]. In any case, the Court has
considered it, but it did not affect the Court’s conclusion.
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Response [#48] in opposition to the Motion to File Supplemental Pleading [#42] and
another Response [#49] clarifying its position on the Motion to Withdraw [#41].
The Motions [##22, 23, 30, 41, 42, 46, 50] have been referred to the undersigned.
See Memoranda [##25, 33, 44, 47, 56]. The Court has reviewed the briefs, the entire case
file, and the applicable law. The Court has also considered Plaintiff’s Surreply [#45] and
Letters [#53, #54], and discusses them to the extent relevant, though they did not change
the Court’s recommendation.
For the following reasons, the Court RECOMMENDS that Plaintiff’s Motion to
Supplement Pleading [#42] be DENIED on the basis of futility; that Defendants’ Motion
for Summary Judgment [#22] be GRANTED; and that Plaintiff’s claims be DISMISSED
WITHOUT PREJUDICE for failure to exhaust administrative remedies prior to filing suit.
The Court ORDERS that Defendants’ Motion for Extension of Time [#23] is
GRANTED; Plaintiff’s Motion for Leave [#30] and Motion to Withdraw [#41] are DENIED
AS MOOT; Plaintiff’s Motion for Extension of Time [#46] is GRANTED; and Defendants’
Motion to Strike [#50] is DENIED.
I. Background3
Plaintiff is a federal prisoner incarcerated at the United States Penitentiary,
Administrative Maximum, in Florence, Colorado (“ADX”). Motion for Summary Judgment
[#22] at 2, ¶ 1 (citing Decl. of Herbig [#22-1], ¶¶ 4, 5, 7). Plaintiff alleges that Defendants
Bina, Rodriguez, and Auten were deliberately indifferent to his serious medical needs by
3 For purposes of this Recommendation, the Court draws the factual background from proposed
undisputed facts in Defendants’ Motion for Summary Judgment [#22]; proposed undisputed facts
in Plaintiff’s Response [#29]; and the sworn Declaration of Jarad Herbig [#22-1] along with
attached authenticated Exhibits [##22-2, 22-3, 22-4, 22-5]. See Fed. R. Civ. P. 56(c)(1)(A) (stating
that parties may support facts by citing to “affidavits or declarations”).
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denying his request for Farxiga medication to treat his chronic kidney disease, in violation
of the Eighth Amendment. Id., ¶ 4; Response [#29] at 3-4, ¶ 3. He alleges that Defendants
William Resto, Kiesha Resto, Maltezo, and Oba were deliberately indifferent to his serious
medical needs by delaying prescription of empagliflozin to treat Plaintiff’s chronic kidney
disease, in violation of the Eighth Amendment. Motion [#22] at 2, ¶ 5; Response [#29] at
4, ¶ 4.
The Bureau of Prisons (“BOP”) has a four-tiered Administrative Remedy Program
for inmate grievances, codified at 28 C.F.R. § 542.10 et seq. Decl. of Herbig [#22-1], ¶
10. The first step is informal resolution, which is not tracked through BOP’s national
database, SENTRY. Id., ¶¶ 10, 10 n.1. The second step is filing a formal Request for
Administrative Remedy (also known as a BP-9) at the inmate’s institution. Id., ¶ 10. At the
third step, if the inmate is not satisfied with the response to his BP-9, “[w]ithin 20 calendar
days of the date the Warden signs the response, the inmate may then appeal the
complaint to the Regional Director, by filing a Regional Office Administrative Remedy
Appeal (also known as a BP-10).” Id. Finally, the fourth step occurs if an inmate is not
satisfied with the Regional Director’s response, in which case he may appeal to the
Director of National Inmate Appeals in the Washington, D.C.-based Central Office by filing
a Central Office Administrative Remedy Appeal (also known as a BP-11). Id. The second
through fourth steps are tracked in SENTRY. Id. An inmate has not exhausted his
administrative remedies until he has sought review at all three formal levels. Id., ¶ 12.
On March 22, 2023, Plaintiff filed with the warden an administrative remedy
request 	corresponding 	to 	the 	allegations 	in 	his 	operative 	complaint. 	Id., 	¶ 	17;
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Administrative 	Remedy 	Generalized 	Retrieval 	[#22-5] 	at 	16.4 The 	warden 	denied
Plaintiff’s administrative remedy request on March 27, 2023. Decl. of Herbig [#22-1], ¶
18; Administrative Remedy Generalized Retrieval [#22-5] at 16. On April 7, 2023, Plaintiff
appealed the warden’s denial of his administrative remedy request to the Regional Office.
Decl. of Herbig [#22-1], ¶ 19; Administrative Remedy Generalized Retrieval [#22-5] at 16.
The Regional Office notified Plaintiff that it needed a 30-day extension of time to respond,
and with that extension its response was due on June 6, 2023. Decl. of Herbig [#22-1],
¶¶ 20-21. The Regional Office did not respond to Plaintiff on or before June 6, 2023. Id.,
¶ 22. BOP regulations state that “[i]f an inmate does not receive a response within the
time allotted for reply, including extension, the inmate may consider the absence of a
response to be a denial at that level” and may appeal. Id. (citing Jan. 6, 2014,
Administrative Remedy Program Statement [#22-4] at 10; see also 28 C.F.R. § 542.18).
However, Plaintiff did not appeal to the Central Office prior to filing his Complaint [#1],
which he filed on December 26, 2023. Id., ¶ 23; Compl. [#1].
The Regional Office responded to Plaintiff’s administrative remedy request on
January 26, 2024. Decl. of Herbig [#22-1], ¶ 24. Plaintiff appealed to the Central Office
on February 20, 2024. Id., ¶ 25; Administrative Remedy Generalized Retrieval [#22-5] at
18. The Central Office responded to his appeal on March 22, 2024. Decl. of Herbig [#22-
1], ¶ 26; Administrative Remedy Generalized Retrieval [#22-5] at 18.
Defendants move for summary judgment, arguing that these undisputed facts
show that Plaintiff failed to exhaust administrative remedies before filing suit. See Motion
4 Because the exhibits to the Declaration of Herbig [#22-1] have cover pages, the page numbering
is inconsistent. For consistency throughout this Order and Recommendation, the Court cites to
the blue, court-stamped numbering at the top of each page.
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for Summary Judgment [#22] at 7. Plaintiff moves to file a supplemental complaint
pursuant to Fed. R. Civ. P. 15(d) that sets forth his post-filing exhaustion of remedies and
Defendants’ subsequent prescription of empagliflozin, which caused his condition to
improve. Motion to Supplement Pleading [#42] at 1; Prop. Supp. Compl. [#42-1] at 12. He
also purports to add a claim under the Administrative Procedures Act (“APA”), 5 U.S.C.
§§ 701-706. See Prop. Supp. Compl. [#42-1] at 3. Defendants oppose amendment or
supplementation of the complaint, arguing that it would be futile due to Plaintiff’s failure
to exhaust administrative remedies prior to filing suit, which also bars any purported APA
claim. See Response [#48] at 2.
II. Legal Standards
A. 	The Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust any
available administrative remedies before he can challenge prison conditions in federal
court. Woodford v. Ngo, 548 U.S. 81, 81 (2006) (citing 42 U.S.C. § 1997e(a)). This
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.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
An inmate may satisfy this exhaustion requirement by “properly following all of the
steps laid out in the prison system's grievance procedure,” including meeting deadlines
and complying with other critical procedural rules.5 Little v. Jones, 607 F.3d 1245, 1249
5 The primary exception to the exhaustion requirement is where the administrative remedies are
not “available” to the prisoner, such as where “prison officials prevent, thwart, or hinder a
prisoner's efforts to avail himself of an administrative remedy[.]” Little v. Jones, 607 F.3d 1245,
1250 (10th Cir. 2010). An exception may also be made where the grievance procedure is
“essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands[.]”
Ross v. Blake, 578 U.S. 632, 644 (2016) (citations omitted).
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(10th Cir. 2010) (citing Woodford, 548 U.S. at 90); see also Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002) (“An inmate who begins the grievance process but does not
complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his
administrative remedies.”). Importantly, a court must examine whether the exhaustion
requirement is satisfied before examining the merits of a plaintiff's claims. See, e.g., Jones
v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in court.”) (citation
omitted); Woodford, 548 U.S. at 85 (“Exhaustion is no longer left to the discretion of the
district court, but is mandatory.”).
Lack of exhaustion is an affirmative defense that must be raised in response to a
prisoner's claim. Jones, 549 U.S. at 212. “Typically, a conclusion that a plaintiff failed to
exhaust [his] administrative remedies results in a dismissal without prejudice because
‘[f]ailure to exhaust administrative remedies is often a temporary, curable, procedural
flaw.’” Bivens v. McGaugh, No. 21-cv-00783-PAB-NYW, 2022 WL 672481, at *7 n.5 (D.
Colo. Mar. 7, 2022) (quoting Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212-13
(10th Cir. 2003), abrogated on other grounds by Jones, 549 U.S. 199); Dawson v.
Werholtz, No. 07-3165-JWL, 2008 WL 1773866, at *1 n.1 (D. Kan. Apr. 16, 2008) (citing
Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (stating that
dismissal of unexhausted claims on summary judgment should be without prejudice)). A
dismissal for failure to exhaust must be without prejudice, even if the time frame for
recourse has elapsed. See, e.g., Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139-
40 (10th Cir. 2005) (affirming dismissal of prisoner's claim on exhaustion grounds but
remanding for the district court “to either modify its opinion to specify that dismissal is
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without prejudice, or make a determination on the merits within its permissible scope to
do so”—even though “the time frame for recourse to administrative remedies has now
probably expired”).
B. 	Timing of Exhaustion
“The PLRA is unequivocal that ‘[n]o action shall be brought . . . until such
administrative remedies as are available are exhausted.’” Sheldon v. Bureau of Prisons,
No. 23-cv-00273-NYW-SBP, 2024 WL 3503039, at *10 (D. Colo. June 20, 2024) (quoting
42 U.S.C. § 1997e(a)), report and recommendation adopted, 2024 WL 3496826 (D. Colo.
July 22, 2024). “Since the PLRA makes exhaustion a precondition to filing a suit, an action
brought before administrative remedies are exhausted must be dismissed without regard
to concern for judicial efficiency.” Ruppert v. Aragon, 448 F. App’x 862, 863 (10th Cir.
2012) (holding that plaintiff’s claim 	was properly dismissed for failure to exhaust
administrative remedies even though the prison finished reviewing the underlying incident
by the time the case was “ripe for decision”) (citations omitted; emphasis in original).
Exhaustion “allow[s] a prison to address complaints about the program it administers
before being subjected to suit, reducing litigation to the extent complaints are satisfactorily
resolved[.]” Jones, 549 U.S. at 219.
Thus, an inmate’s failure to exhaust before filing suit cannot be cured by the filing
of an amended complaint after exhausting or by completing exhaustion after filing suit.
May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019) (“[The plaintiff’s] argument that ‘the
plaintiff’s operative [amended] complaint controls the analysis for a statutory exhaustion
requirement’ is likewise meritless.”); accord Snyder v. Harris, 406 F. App’x 313, 317 (10th
Cir. 2011) (“An inmate is not permitted to complete the administrative exhaustion process
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after he files suit.”). As Sheldon noted, “[c]ourts in this district have meticulously
implemented this pre-filing exhaustion mandate.” Sheldon, 2024 WL 3503039, at *10
(citing Hill v. Ciolli, No. 23-cv-02539-CNS-KAS, 2024 WL 2749652, at *5 (D. Colo. May
29, 2024) (collecting cases).
C. 	Supplemental Pleadings
In relevant part, Fed. R. Civ. P. 15(d) states that “[o]n motion and reasonable
notice, the court may, on just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented. The court may permit supplementation even though the
original pleading is defective in stating a claim or defense.” Rule 15(d) motions are
committed to the sound discretion of the trial court, though authorization should be
liberally granted unless good reason exists for denying leave. Walker v. United Parcel
Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). The court “should apply the same
standard for exercising its discretion under Rule 15(d) as it does for deciding a motion
under Rule 15(a).” Sw. Nurseries, LLC v. Florists Mut. Ins., Inc., 266 F. Supp. 2d 1253,
1256 (D. Colo. 2003) (citing First Sav. Bank v. U.S. Bancorp, 184 F.R.D. 363, 368 (D.
Kan. 1998)). “While Fed. R. Civ. P. 15(a) requires that leave to amend be freely given,
that requirement does not apply where an amendment obviously would be futile.” Id.
(citing T.V. Commc’ns Network v. Turner Network Television, Inc., 964 F.2d 1022, 1028
(10th Cir. 1992)).
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III. Analysis
The Court considers the Motion for Summary Judgment [#22] before turning to
Plaintiff’s proposed supplementation of his Complaint [#5] because the substantive
exhaustion analysis demonstrates why supplementation would be futile.
A. 	Motion for Summary Judgment [#22]
Here, the undisputed facts show that Plaintiff did not exhaust his administrative
remedies before filing suit. Plaintiff does not dispute this; rather, he argues that
Defendants “obstructed his ability to exhaust his administrative remedies by failing to
respond by the June 6, 2023, due date by the regional director prior to [Plaintiff] initiat[ing]
this lawsuit.” Response [#29] at 4-5. Defendants argue that the Regional Office’s failure
to respond did not obstruct Plaintiff’s ability to exhaust administrative remedies because
BOP regulations clearly permitted him to treat its non-response as a denial at that level,
from which he could have appealed. Reply [#35] at 5-6 (citing 28 C.F.R. § 542.18).
Plaintiff “admits he did not consider the Regional Director’s failure to respond as a
denial” but argues that the regulations do not require that. Response [#29] at 10; Surreply
[#45] at 4 (same). Plaintiff is correct, to a point—he may, but is not required to, treat the
Regional Director’s failure to respond as a denial and immediately appeal. See 28 C.F.R.
§ 542.18 (“If the inmate does not receive a response within the time allotted for reply,
including extension, the inmate may consider the absence of a response to be a denial
at that level.”) (emphasis added). However, to the extent Plaintiff opted not to consider
the Regional Office’s non-response to be a denial, there was nothing to appeal until he
received a denial, after which time he could (and did) continue exhausting administrative
remedies. As Defendants note, “Plaintiff’s decision to not treat the failure to respond as a
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denial does not show that the BOP prevented him from completing the process.” Reply
[#35] at 6 (emphasis in original). Moreover, the Court notes that Plaintiff is no stranger to
the administrative remedy process: “[Plaintiff] has filed a total of 250 Administrative
Remedies, as of April 12, 2024, while in custody of the BOP.” Decl. of Herbig [#22-1], ¶
16.
The Regional Office’s non-response is Plaintiff’s only support for his argument that
the BOP obstructed his ability to exhaust administrative remedies, but that is not enough.
Moreover, Plaintiff’s cited cases are all distinguishable. See Response [#29] at 9 (citing
Baughman v. Harless, 142 F. App’x 354, 359 (10th Cir. 2005)); Surreply [#45] at 4-5 (citing
Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011); Little v. Jones, 607 F.3d 1245, 1249-
50 (10th Cir. 2010); Baughman, 142 F. App’x at 359; Johnson v. Jones, 340 F.3d 624,
628 (8th Cir. 2003); Georgacarakos v. Wiley, No. 07-cv-01712-MSK-MEH, 2010 WL
1291833 (D. Colo. Mar. 30, 2010)).
In Baughman v. Harless, the relevant Oklahoma grievance procedure “did not
require or provide for further process of an unanswered grievance appeal” but here,
applicable BOP regulations allowed Plaintiff to treat the Regional Office’s non-response
as a denial and immediately appeal to the Central Office. Baughman, 142 F. App’x at 359;
but see 28 C.F.R. § 542.18. In Risher v. Lappin, the inmate-plaintiff “attempted to follow
the Bureau’s regulations by treating the Regional Director’s failure to respond to his
appeal as a denial, as he was instructed he could do by 28 C.F.R. § 542.18, and appealing
that denial to the Central Office.” Risher, 639 F.3d 240. Here, by Plaintiff’s own admission,
he did not treat the failure to respond as a denial and did not appeal that denial. Response
[#29] at 10.
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In Johnson v. Jones, the Eighth Circuit took the unusual step of declining to dismiss
inmate-plaintiffs’ complaints where there was “nothing else for these inmates to do” after
they exhausted remedies during litigation, but the court expressly cabined its decision to
the case at bar and “only to avoid the expenditure of additional resources on the part of
the parties and the court.” 	Johnson, 340 F.3d at 628. In so doing, however, the court
“reiterate[d] that should the district court be faced with identical circumstances in the
future, 	dismissal 	is 	required 	under 	[the 	PLRA].” 	Id. 	(emphasis 	added). 	Thus,
notwithstanding the result, Johnson directed future courts not to consider judicial
efficiency where there is a failure to exhaust. In Little v. Jones, the prisoner-plaintiff had
“attempted to comply with all four steps of the grievance process” but at the last step, his
appeal was rejected for raising more than one issue and he was not provided an
opportunity to resubmit it Little, 607 F.3d at 1249. Thus, the improper rejection of the
prisoner-plaintiff’s final appeal obstructed his ability to complete the process. Id. Here,
Plaintiff did not attempt to appeal to the Central Office until after he had already filed suit,
and 	the 	availability 	of 	this 	subsequent 	appeal 	undercuts 	his 	argument 	that 	BOP
obstructed his ability to exhaust remedies.
Finally, Georgacarakos v. Wiley did not involve “the classic situation in which an
inmate utterly failed to exhaust the administrative grievance process with regard to his
claims”; rather, it involved “the more unusual situation” where the inmate filed a motion to
add 	a 	claim 	before 	he 	had 	completed 	the 	administrative 	exhaustion 	process.
Georgacarakos, 2010 WL 1291833, at *23-24. Thus, the inmate’s exhaustion was not
“deficient in any substantive respect”; rather, the inmate sought to add a claim to the
complaint prematurely, i.e., before he exhausted administrative remedies with respect to
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that claim. Id. at *24. Here, by contrast, the court is faced with the “classic situation” where
Plaintiff failed to exhaust administrative remedies before filing suit.
There 	is 	simply 	no 	evidence 	that 	BOP 	obstructed 	Plaintiff’s 	access 	to
administrative remedies in any way, aside from its failure to timely respond, which is not
obstruction at all because Plaintiff could have treated the non-response as a denial and
immediately appealed. “A finding of exhaustion based on a failure to respond at [a lower]
level—without requiring plaintiffs to pursue further administrative review as provided for
in federal regulations—would run counter to the PLRA’s purpose.” Adams v. Fochee, No.
12-cv-01076-PAB-CBS, 2013 WL 3093479, at *2 (D. Colo. June 18, 2013). Thus, “the
failure to appeal a grievance to which no response has been received precludes
administrative exhaustion.” Id. Plaintiff’s decision not to treat the Regional Office’s non-
response as a denial cannot be blamed on BOP. Accordingly, the undisputed material
facts do not show any obstruction of Plaintiff’s ability to exhaust his administrative
remedies.
Finding no obstruction by BOP, the undisputed facts show (and Plaintiff admits)
that Plaintiff filed suit before he received a response from the Regional Office, before he
appealed to the Central Office, and before he received a response from the Central Office.
See Response [#29] at 2; Decl. of Herbig [#22-1], ¶¶ 22-26. He thus bypassed the “fourth
step” of BOP’s administrative remedy process. Decl. of Herbig [#22-1], ¶ 10 (“The fourth
step occurs if an inmate is dissatisfied with the Regional Director’s response. In that event,
an inmate may appeal to the Director . . .by filing a Central Office Administrative Remedy
Appeal (also known as a BP-11).”). However, an inmate has not exhausted administrative
remedies until he has “properly and timely sought review at all three formal levels[.]” Id.,
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¶ 12. Plaintiff only sought review at two formal levels before he filed suit, therefore, as a
matter of law, he failed to exhaust administrative remedies and summary judgment should
enter in Defendants’ favor.
However, because Plaintiff later moved to supplement his Amended Complaint
[#5] to allege post-filing exhaustion, the Court turns to that related issue.
B. 	Motion to Supplement Pleading [#42]
Plaintiff moves to supplement his Amended Complaint [#5] to show post-filing
exhaustion, arguing that Rule 15(d) “permits a plaintiff to cure a deficiency based on
subsequent exhaustion by filing a supplemental pleading, and such facts are deemed to
be part of the complaint that the plaintiff initially presented to the court.” Reply [#52] at 2-
3 (citing Korb v. Haystings, 860 F. App’x 222, 226 n.4 (3d Cir. 2021)). Defendants argue
that supplementation should be denied as futile because it would not change the fact that
Plaintiff did not exhaust his administrative remedies prior to filing suit, and his claims still
would be subject to dismissal. Response [#48] at 2.
As already noted, the law interpreting and applying the PLRA is clear: an inmate
may not file suit if he has not first exhausted his administrative remedies by completing
the grievance process on the asserted claim(s). Jernigan, 304 F.3d at 1032. And a post-
filing amendment post-exhaustion will not cure the failure to exhaust at the outset. See
May, 929 F.3d at 1229 (holding that amendment could not cure the plaintiff’s failure to
exhaust because “[t]he question under the PLRA is the timing of the claim alleged, not
the sufficiency of the allegations.”); Ruppert, 448 F. App’x at 863 (affirming dismissal of
claims unexhausted prior to lawsuit’s filing). If an inmate could file suit before exhausting
administrative remedies and then supplement his complaint under Rule 15(d) to allege
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post-filing exhaustion, the exhaustion requirement would be toothless and binding Tenth
Circuit precedent would be meaningless.
Plaintiff only cites out-of-circuit cases to the contrary, most from the Third Circuit
and one from the Ninth Circuit. See Motion [#42] at 4 (citing Garrett v. Wexford Health,
938 F.3d 69, 82 (3d Cir. 2019); Reply [#52] at 2-3 (citing Korb, 860 F. App’x at 226 n.4);
Letter [#53] (offering as supplemental authority Showers v. Rodgers, No. 23-1241, 2024
WL 1877028 (3d Cir. 2024)); Letter [#54] (offering as supplemental authority Saddozai v.
Davis, 35 F.4th 705, 708-10 (9th Cir. 2022)). Even if Plaintiff’s reading of these cases is
correct, the Tenth Circuit disagrees. See Little, 607 F.3d at 1249 (“Under the [PLRA], a
prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison
conditions in federal court. . . Indeed, ‘unexhausted claims cannot be brought in court.”)
(citations omitted). This Court cannot accept Plaintiff’s invitation to disregard Tenth Circuit
precedent or adopt his preferred case law from the Third or Ninth Circuit.
Thus, Plaintiff’s proposed supplemental pleading would be futile because it cannot
alter the fact that he filed suit before exhausting administrative remedies. Cf. May, 939
F.3d at 1229. Plaintiff’s post-filing exhaustion is already undisputed in this case. See
supra, § I. As May noted, even if Plaintiff were permitted to supplement, “the district court
reviewing an amended complaint filed under Rule 15(d) would have the responsibility,
when 	the 	exhaustion 	defense 	is 	raised, 	to 	distinguish 	between 	claims 	that 	are
exhausted—or to which the exhaustion requirement does not apply . . .—and claims that
are unexhausted, dismissing the latter and allowing the former to proceed.” May, 929 F.3d
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at 1232. The Court has already done so and has found that Plaintiff’s claims are
unexhausted and must be dismissed.6
Accordingly, 	the 	Court 	recommends 	that 	Plaintiff’s 	Motion 	to 	Supplement
Pleading [#42] be denied based on futility; that the Motion for Summary Judgment [#22]
be granted; and that Plaintiff’s claims be dismissed without prejudice. See, e.g.,
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.”) (citation
omitted).
C. 	Other Filings [#23, #30, #41, #46, #50]
Defendants have moved to extend the answer deadline until after a decision on
the Motion for Summary Judgment [#22]. See Motion for Extension of Time [#23]. The
Court finds good cause for the request and finds that further extension is warranted until
the Court resolves the Motion for Summary Judgment [#22], following any objections to
this Recommendation. Accordingly, the Motion for Extension of Time [#23] is GRANTED.
Plaintiff filed a previous Motion for Leave of Court to File a Supplemental Pleading
Setting Forth Exhaustion of All Administrative Remedies and Events that Occurred After
the Original and Amended Complaint [#30], before filing a Motion to Withdraw the
Supplemental Complaint on File and Accept the Attached Supplemental Complaint
Hereto [#41]. Because Plaintiff later filed another Motion to Supplement Pleading [#42]
6 Plaintiff’s purported APA claim is foreclosed on the same basis. “[P]laintiffs must exhaust
administrative remedies and challenge a final agency action” before the court may review an
agency action. Blackbear v. Norton, 93 F. App’x 192, 193-94 (10th Cir. 2004) (citing United Tribe
of Shawnee Indians v. United States, 253 F.3d 543, 549 (10th Cir. 2001)). Here, Plaintiff did not
exhaust administrative remedies before filing and, because he had not received a denial from the
Regional Office or the Central Office before filing, there was no “final agency action” upon which
he could base an APA claim. Id.
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along with a proposed Supplemental Complaint [#42-1], the Motion for Leave [#30] and
the Motion to Withdraw [#41] are both DENIED AS MOOT.
Finally, Plaintiff filed a Motion for Extension of Time [#46] to file a Surreply [#45],
though he did not seek leave to file his Surreply [#45] in advance. In their Motion to Strike
[#50], Defendants argue that a surreply was unwarranted because they raised no new
arguments in their reply brief. See Motion to Strike [#50] at 2 (citing Pirnie v. Key Energy
Servs., LLC, No. 08-cv-01256-CMA-KMT, 2009 WL 1386997, at *1 (D. Colo. May 15,
2009)). The Court agrees that a surreply was unnecessary because Defendants did not
raise any new arguments; instead, they pointed out perceived deficiencies in Plaintiff’s
Response [#29]. Nevertheless, as part of its review and in its discretion, the Court has
considered Plaintiff’s Surreply [#45], which does not change its analysis or conclusions.
Cf. Hill v. Ciolli, No. 23-cv-02539-CNS-KAS, 2024 WL 4338030, at *6 (D. Colo. Aug. 29,
2024) (choosing to consider plaintiff’s improper surreply), report and recommendation
adopted, 2024 WL 4333367 (D. Colo. Sept. 27, 2024). Therefore, Plaintiff’s Motion for
Extension of Time [#46] is GRANTED, the Surreply [#45] is accepted as timely, and the
Motion to Strike [#50] is DENIED.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that Plaintiff’s Motion to Supplement Pleading
[#42] be DENIED as futile.
IT IS FURTHER RECOMMENDED that the Motion for Summary Judgment [#22]
be GRANTED and that Plaintiffs’ claims be DISMISSED WITHOUT PREJUDICE.
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IT IS FURTHER ORDERED that the Defendants’ Motion for Extension of Time to
File Answer [#23] is GRANTED. Defendants’ deadline to answer or otherwise respond to
Plaintiff’s operative complaint is extended to 14 days after any court order allowing
Plaintiff’s claims to proceed, in whole or in part.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave of Court [#30] and
Plaintiff’s Motion to Withdraw [#41] are DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time [#46] is
GRANTED and that Plaintiff’s Surreply [#45] is ACCEPTED as timely filed.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike [#50] is DENIED.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[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 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
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DATED: October 10, 2024 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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