Free Motion for Summary Judgment - District Court of Colorado - Colorado

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

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Filed 01/28/2008

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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. _____________________________________________________________________ DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________ Pursuant to Fed. R. Civ. P. 56(b) and (c), 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, move this Court for an Order granting summary judgment in their favor. As grounds therefor, Defendants state as follows: 1. Dennis Blay ("Plaintiff") filed his Complaint against State Defendants

and other named defendants in this Court on or about September 28, 2001, alleging violations of his First, Fifth, Eighth and Fourteenth Amendment rights. 2. On December 7, 2001, this Court issued an Order dismissing all claims

contained in Plaintiffs' Complaint except for Claims III and IV, and dismissing all named defendants except John Reilly, Richard Graham, and Charlie Pellitier.

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3.

On July 19, 2004, this Court granted State Defendants' Motion for

Summary Judgment and dismissed Plaintiff's Complaint, finding that Plaintiff had failed to show the existence of a genuine issue of material fact. The Court of Appeals for the 10th Circuit affirmed the dismissal on the grounds that Plaintiff had failed to adequately plead compliance with 42 U.S.C.A. § 1997e(a) ("PLRA"). In doing so, the Court of Appeals relied on its precedent in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir.2003)1, which held that the PLRA imposed upon the prisoner a mandatory and unwaivable pleading requirement because exhaustion was a pleading requirement and not an affirmative defense, and that an inmate plaintiff's failure to allege the requisite exhaustion of remedies was tantamount to failure to state a claim upon which relief could be granted. 4. On February 20, 2007, the U.S. Supreme Court granted certiorari,

vacated the 10th Circuit's judgment, and remanded the matter for consideration in light of its ruling in Jones v. Bock, 127 S.Ct 910 (2007), which held that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. 5. On remand, the 10th Circuit recalled its mandate and proceeded to the

merits of Plaintiff's appeal and, on August 15, 2007, reversed this Court's grant of summary judgment. 6. Plaintiff can prove no set of facts that support any of his claims and,

consequently, is not entitled to the relief he seeks.
1

Steele was subsequently abrogated by the U.S. Supreme Court's decision in Jones v. Bock, 127 S.Ct 910 (2007)

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7.

Pursuant to Fed. R. Civ. P. 56(b), State Defendants are entitled to

summary judgment as a matter of law. 8. A brief in support of this motion is being filed concurrently. WHEREFORE, State Defendants respectfully request this Court to enter an Order granting summary judgment in their favor and against Plaintiff. 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 Tort Litigation Unit Attorneys for State Defendants 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866-5327 *Counsel of Record

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

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CERTIFICATE OF SERVICE This is to certify that I have duly served the within STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT upon all parties herein by depositing copies of same in the United States mail, first-class postage prepaid, at Denver, Colorado, this 28th day of January, 2008, addressed as follows:

Dennis Michael Blay #80434 Crowley County Correctional Facility 6564 State Hwy 96 Olney Spgs, C0 81062-8700

Courtesy Copy: Cathie Holst, Legal services Department of Corrections 2862 S. Circle Drive, Room 400 Colorado Springs 80906 s/ Mary A. Brown _______________________________________ Mary A. Brown