Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1917 REB-MJW DENNIS MICHAEL BLAY, Plaintiff, v. JOHN REILLY, RICHARD GRAHAM, and CHARLIE PELLITIER, Defendants. _____________________________________________________________________ STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________ John Reilly, Richard Graham, and Charlie Pellitier ("State Defendants"), by and through their counsel, the Colorado Attorney General and Assistant Attorneys General Andrew M Katarikawe and William V. Allen, and pursuant to Fed. R. Civ. P. 56(b), submit this brief in support of their Motion for Summary Judgment: BACKGROUND At all times relevant to this action, Dennis Michael Blay ("Plaintiff") was a prisoner in the custody of the Colorado Department of Corrections ("DOC") and housed in the Limon Correctional Facility ("LCF"). Upon information and belief, Plaintiff was variously found guilty in Jefferson County, Colorado, of sexual assault on a child, contributing to the delinquency of a minor, aggravated incest, sexual assault on a child, and three counts of aggravated incest. He was sentenced to a total

1

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 2 of 11

of 72 years in prison, and has been incarcerated since 1993, with a scheduled discharge date in 2065 and a parole eligibility date of 2025. Between November 1998 and May 2001, Plaintiff worked in the DOC Correctional Industries' Graphics Design Shop ("Shop") at LCF. On December 18, 2000, he injured his left index finger with a razor blade tool while working in the Shop. He was treated and returned to work the following day. He did not file any grievance concerning the circumstances of his finger injury. On or about September 28, 2001, Plaintiff filed a Complaint under 42 U.S.C. § 1983 asserting ten claims against nine named defendants and "Any And All John And Jane Does".1 This Court dismissed all but two of the claims, pursuant to 28 U.S.C. § 1915(e)(2)(B), and dismissed all named defendants except John Reilly, Richard Graham and Charlie Pellitier. The first of Plaintiff's two surviving claims alleges injuries caused by the presence of chemical fumes in the shop and a lack of proper ventilation. The second arises from the cut to his finger. STANDARD OF REVIEW A district court's grant of summary judgment is reviewed de novo, applying the same standard used by the district court. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one which might affect the outcome of the dispute under the applicable law. Ullisey v.
1

Plaintiff filed the Complaint with Larry Kelton, his fellow inmate, but Kelton subsequently voluntarily dismissed his claims.
2

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 3 of 11

Schvartsman, 61 F.3d 805, 808 (10th Cir.1995). An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing a motion for summary judgment, the court reviews the record in the light most favorable to the non-moving party. Sealock v. State of Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The moving party bears the initial burden of showing that there is an absence of any genuine issues of material fact, Celotex, 477 U.S. at 327; Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), and "the relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52). Under Fed. R. Civ. P. 56(b), a defendant may use a motion for summary judgment, with or without supporting affidavits, to test an affirmative defense which entitles that defendant to a judgment as a matter of law. Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965). To prevail on summary judgment, the defendant must demonstrate that no disputed material fact exists regarding the affirmative defense asserted. Id. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 247.

3

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 4 of 11

To sustain the instant motion, State Defendants need not negate Plaintiff's claims, but need only point to an absence of evidence to support those claims. Celotex, 477 U.S. at 325; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. AT&T, 22 F.3d 1527, 1592 (10th Cir.), cert denied, 513 U.S. 1052 (1994). If State Defendants meet this burden, Plaintiff may not rest upon his pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to his case Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. STATEMENT OF UNDISPUTED MATERIAL FACTS The following material facts are undisputed: 1. Plaintiff was convicted of sexual assault on a child and contributing to

the delinquency of a minor in Jefferson County District Court. See Judgment, Case No. 92 CR 702, dated March 26, 1993, attached hereto as Exhibit 1. 2. Plaintiff was convicted of aggravated incest in Jefferson County

District Court. See Judgment, Case No. 87 CR 1076, dated March 26, 1993, attached hereto as Exhibit 2. 3. Plaintiff was convicted of sexual assault on a child and three counts of

aggravated incest in Jefferson County District Court. See Judgment, Case No. 92 CR 1555, dated March 26, 1993, attached hereto as Exhibit 3. 4. Plaintiff has been incarcerated by the DOC since 1993. See Affidavit

of Thomas Kolle, attached hereto as Exhibit 4. 5. Plaintiff is a prisoner within the meaning of the Prisoner Litigation

Reform Act, 42 U.S.C. § 1997e ("PLRA"). 4

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 5 of 11

6. 7.

This action is subject to the PLRA. Plaintiff worked in the DOC Shop at LCF from November, 1998

through May, 2001. See Complaint, pp. 3a, 3b. 8. While working in the Shop on December 18, 2000, Plaintiff sustained a

cut to his left index finger. See Plaintiff's Response to Defendants' First Set of Interrogatories, Request for Production of Documents, and Requests for Admissions at p. 6, Response to Interrogatory No. 10, attached hereto as Exhibit 5, p. 6. 9. Plaintiff received immediate medical treatment for his left finger injury.

See, Affidavit of Charles Pelletier, attached hereto as Exhibit 6, p. 3, ¶¶ 10 and 12. 10. Plaintiff returned to work in the Shop the day following the injury to

his finger. Exhibit 6, p. 3, ¶ 13. 11. Plaintiff did not file a grievance concerning the circumstances

surrounding the injury to his finger. Exhibit 4, ¶ 9. 12. On September 28, 2001, Plaintiff and his fellow inmate Larry Gene

Kelton filed this action bringing ten claims against nine named defendants plus "Any And All Jane And John Does." See Complaint, caption. 13. This Court dismissed all but Claims III and IV of Plaintiff's Complaint

in an Order entered on December 10, 2001. See Order dated December 10, 2001, p. 10. 14. On December 10, 2001, this Court dismissed all claims against all

defendants except the within State Defendants: John Reilly, Richard Graham, and Charlie Pellitier. See Order dated December 10, 2001, p. 10.

5

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 6 of 11

15.

All of Plaintiff Kelton's claims were dismissed by an Order entered on

January 28, 2003. See Order dated January 28, 2003, p. 1. 16. The only surviving claims in this case stem from Plaintiff's finger

injury and his alleged illness purportedly caused by poor ventilation within the Shop. See Order dated December 10, 2001, p. 10. 17. At no time did Plaintiff ever file a grievance alleging poor ventilation

or chemical exposure in the Shop. Exhibit 4, ¶ 8. 18. DOC Administration Regulation #850-04 governs grievance

procedures for all DOC inmates. Exhibit 4 ¶ 5. ARGUMENT A. The Prisoner Litigation Reform Act Mandates Prisoners' Exhaustion Of Administrative Remedies Before Filing Suit The Prisoner Litigation Reform Act, 42 U.S.C. 1997e(a), provides in part that: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. The PLRA was enacted to prevent inmates from clogging the court system with frivolous lawsuits. See, e.g., Robbins v. Chronister, 402 F.3d 1047, 1051 (10th Cir. 2005) ("the unmistakable purpose of the [PLRA] legislation was to limit the rapidly increasing number of frivolous prisoner claims arising from alleged prisonrelated civil rights violations"). Before filing a lawsuit based on prison conditions, an inmate is required to first exhaust all administrative remedies available. Porter v. Nussle, 534 U.S. 516, 524 (2002) ("exhaustion in cases covered by § 1997e(a) is now

6

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 7 of 11

mandatory"); Jones v. Bock, --- U.S. --- , 127 S.Ct. 910, 914 (U.S. 2007) ("the PLRA . . . requires prisoners to exhaust prison grievance procedures before filing suit"). B. Failure to Exhaust Is An Affirmative Defense And Is Properly Raised In A Motion For Summary Judgment Failure to exhaust administrative remedies is an affirmative defense under the PLRA. Jones, 127 S.Ct. at 921. Affirmative defenses are properly raised in a motion for summary judgment. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) ("[a] defendant may use a motion for summary judgment to test an affirmative defense which entitles that party to a judgment as a matter of law. The defendant making such a motion must demonstrate that no disputed material fact exists regarding the affirmative defense asserted"). C. Exhaustion Is Determined By The Prison's Internal Procedures A prison's internal grievance process provides the administrative procedures that its prisoners must exhaust before they can file lawsuits consistent with the PLRA. Jones, 127 S.Ct. at 922-923 ("to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is ... required by the PLRA to properly exhaust") (internal citations omitted). The grievance process for DOC prisoners is governed by DOC's AR 850-04. Exhibit 4, ¶ 5. Under this process, DOC prisoners who wish to grieve prison conditions must do so by initiating a written grievance no later than thirty calendar days from the date they knew or should have known the facts giving rise to the grievance. Exhibits 4A-1 ,

7

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 8 of 11

4A-2, 4A-3. 4A-4, and 4A-5, p. 4, AR 850-04.IV.C.2.a. Written grievances are initiated by filing of a formal grievance form. Exhibits 4A-1 , 4A-2, 4A-3. 4A-4, and 4A-5, Attachment A to AR 850-04, DC Form 850-4A Offender Grievance Form. D. Plaintiff Did Not Exhaust Administrative Remedies 1. Plaintiff did not grieve alleged poor ventilation conditions in the Shop Plaintiff alleges that Defendants failed to provide adequate ventilation in the Shop's work area where inmates were using volatile and dangerous chemicals, or to provide dust control ventilation. See Complaint, p. 3d, Claim III. In his verified response to State Defendants' Interrogatory No. 10, he states that those conditions were making him ill as early as 1999: "[s]tarting sometime in 1999, Plaintiff was examined by LCF Clinical Service Practitioners and Dr. Bloor about headaches I attribute to the exposure to chemical fumes and plastic, wood, and metal particulates." See Plaintiff's response to State Defendants' Interrogatory No. 10, Exhibit 5, p. 6. Pursuant to DOC grievance procedures, Plaintiff had thirty days from the date he first knew the cause of his illness to file a formal grievance. He did not. In fact, Plaintiff never filed a grievance related to ventilation or dust control, whether timely or not. 2. Plaintiff did not grieve the Shop's alleged lack of training on use of tools Plaintiff further contends that inmates were instructed to perform tasks using tools and equipment without training or warning of possible dangers associated with the use of said tools and equipment. See Complaint, p.3, Claim IV. Plaintiff also alleges that DOC's failure to operate the Shop safely was the cause of the injury to his left index finger. See Response to State Defendants' Interrogatory No. 15, Exhibit 5,

8

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 9 of 11

pp. 12-13. In his verified response to State Defendants' interrogatories, Plaintiff states that the finger injury occurred on December 18, 2000. See Response to State Defendants' Interrogatory No. 10, Exhibit 5, p. 6. Under DOC's grievance procedures, he had thirty days from that date, i.e. until January 17, 2001, to file a formal grievance. He never did. E. Plaintiff's Claims Must Be Dismissed For Failure To Exhaust Administrative Remedies The PLRA mandates dismissal of Plaintiff's claims because he did not first pursue, let alone exhaust, administrative remedies availed to prisoners in DOC custody. Jones, 127 S.Ct. at 918-919 ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). F. Since There Is No Genuine Issue Of Material Fact, State Defendants Are Entitled To Judgment As A Matter Of Law Even viewing the record in the light most favorable to Plaintiff, as courts must on a motion for summary judgment, the evidence that Plaintiff did not exhaust DOC administrative procedures here is "so one-sided that [State Defendants] must prevail as a matter of law," as it leaves no "disagreement to require submission to a jury." Bingaman, 1 F.3d at 980. CONCLUSION For the reasons set forth above, State Defendants request this Court to grant summary judgment in their favor and dismiss all claims against them with prejudice.

9

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 10 of 11

Respectfully submitted this 28th day of January 2008. JOHN W. SUTHERS, Attorney General s/ Andrew M Katarikawe ANDREW M KATARIKAWE* WILLIAM V. ALLEN* Assistant Attorneys General Litigation Section Attorneys for Defendants 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866-5327 FAX: (303) 866-5443 *Counsel of Record

10

Case 1:01-cv-01917-REB-MJW

Document 196

Filed 01/28/2008

Page 11 of 11

CERTIFICATE OF SERVICE This is to certify that I have duly served the within STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT upon all parties herein by depositing copies of same in the United States Mail, with first class postage prepaid, at Denver, Colorado, this 28th day of January, 2008 addressed as follows: Dennis M. Blay Inmate No. 80434 Crowley County Correctional Facility 6564 State Hwy 96 Unit 1-A-3134 Olney Spgs, CO 81062-8700 Courtesy copy to: Cathie Holst, Legal Services Colorado Department of Corrections 2862 S. Circle Dr., Rm. 400 Colorado Springs, CO 80906

s/ Mary A. Brown __________________________________________ Mary A. Brown

11