OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

MARCIA S. KRIEGER, Chief District Judge.

THIS MATTER comes before the Court on the Defendant Alicia Vineyard's Motion for Summary Judgment (#54), Plaintiff Demetrius Freeman's Response (#57), and Ms. Vineyard's Reply (#58).

ISSUE PRESENTED

Mr. Freeman is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). At the time of the events giving rise to his claim in this action, he was incarcerated at the Federal Correctional Institution in Florence, Colorado ("FCI-Florence") at which the Defendant, Ms. Vineyard was employed as a Mid-Level Practitioner and Physician's Assistant. Mr. Freeman alleges that Ms. Vineyard violated his Eighth Amendment right to be free from cruel and unusual punishment by being deliberately indifferent to his medical needs in failing to provide him with proper medical treatment.

Ms. Vineyard moves for summary judgment, arguing that (1) Mr. Freeman failed to exhaust the administrative remedies available to him as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a); and, in the alternative, (2) Mr. Freeman's claims are barred by operation of the applicable statute of limitation. This is the second action brought by Mr. Freeman based on events that occurred in 2009.

MATERIAL FACTS

For purposes of this motion, the Court construes all controverted evidence most favorably to Mr. Freeman.1

A. The facts pertinent to this action

1. The Event

The medical event occurred on December 7, 2009. Mr. Freeman notified Ms. Vineyard that he was having a sickle cell crisis, but Ms. Vineyard refused to provide pain medication and failed to perform a blood test that would have demonstrated the emergency. This resulted in surgical removal of Mr. Freeman's spleen. After the surgery, Ms. Vineyard then denied Mr. Freeman access to rehabilitative equipment in contradiction of a surgeon's orders.

2. The Administrative Remedy Process

As a BOP inmate, Mr. Freeman is required to complete a four-tiered administrative remedy process prior to seeking judicial review. See 28 C.F.R. § 542.10-19. Ordinarily, the first level requires that an inmate seek informal resolution of his grievance with the staff of the institution in which he is incarcerated. See 28 C.F.R. § 542.13. The second level requires the inmate to submit a written Administrative Remedy Request to the institution's warden. See 28 C.F.R. § 542.14. If dissatisfied with the warden's response, an inmate may appeal to the Regional Director as the third level. See 28 C.F.R. § 542.15(a). Alternatively, if "the issue is sensitive and the inmate's safety or well-being would be placed in danger", an inmate may seek review directly from the Regional Director, and bypass informal resolution or review from the warden, See 28 C.F.R. § 542.14(d)(1). The fourth and final level of the administrative review process regardless of the prior steps is an appeal of the Regional Director's determination to the General Counsel in the Central Office. See id.

While housed at FCI-Florence, Mr. Freeman made several requests in the administrative remedy process with regard to Ms. Vinyard's actions:

Mr. Freeman was transferred from FCI Florence on December 28, 2011. Two years after his transfer he filed several requests and appeals regarding the treatment he received at FCI Florence:

B. The Previous Action

Mr. Freeman sued Ms. Vineyard in 2010 based on the same allegations alleging that she was deliberately indifferent to his medical needs when he sought treatment for his sickle cell condition in December 2009. See Freeman v. Vineyard, 10-cv-02690-MSK-CBS (D. Colo. 2010) (Freeman I).

In Freeman I, Ms. Vineyard moved for summary judgment, arguing that that Mr. Freeman failed to exhaust his administrative remedies based on the requests made by Mr. Freeman while at FCI-Florence. The Court granted the motion finding that Mr. Freeman did not demonstrate that he had exhausted his rights to administrative relief in a timely fashion. The decision focused on Mr. Freeman's request #594994-R1 made on June 18, 2010 and request #604190-R1 made on August 23, 2010. As to #594994-A1, Mr. Freeman initiated an appeal of the denial of on October 8, 2010 (designated #594994-R1). The appeal was untimely, however, having been due on September 30, 2010. As to #604190-R1, the parties disputed whether it conformed to BOP requirements, but because denial of this request was not appealed, the Court found that the administrative process was not exhausted

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

ANALYSIS

The PLRA requires a prisoner to exhaust available administrative remedies before bringing an action related to prison conditions. Exhaustion of administrative remedies is a "precondition" to filing a lawsuit. Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1140 (10th Cir. 2005). To properly exhaust administrative remedies, a prisoner must "complete the administrative review process in accordance with the applicable procedural rules," which are defined "by the prison grievance process itself." See Jones v. Bock, 549 U.S. 199, 218 (2007). In other words, to fully exhaust the administrative procedure, an inmate must pursue the grievance through all available levels of the process, either by completing all available appeals or by obtaining the relief sought at any stage. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Proper exhaustion requires compliance with an agency's deadlines and other procedural rules. See Woodfood v. Ngo, 548 U.S. 81, 90 (2006). Failure to satisfy the exhaustion requirement is an affirmative defense that a defendant must plead and prove. Bock, 549 U.S. at 216. However, the PLRA requires only that an inmate exhaust available remedies, and an inmate's failure to exhaust is excusable if the remedy becomes unavailable because of the action or inaction of prison officials. See Little v. Jones 607 F.3d 1245, 1250 (10th Cir. 2010).

Ms. Vineyard again asserts that Mr. Freeman did not complete the BOP's four-tiered administrative remedy process prior to initiating this action. Mr. Freeman makes several arguments. First, he argues that he satisfied the PLRA's exhaustion requirement with his October 8, 2010 (#594994-A1) appeal to the General Counsel's office. This is the same issue that the Court conclusively determined in Freeman I. Because the appeal was untimely, the administrative process was not exhausted. The doctrine of collateral estoppel prevents Mr. Freeman from re-raising the issue in this action.

Mr. Freeman next argues that after he was transferred from FCI Florence on December 28, 2011, he exhausted his administrative remedies with regard to several grievances. The first ia a "sensitive" level 3 request dated May 1, 2013. The record is not clear as to the number of this request or its outcome, but the Court assumes it was denied. Mr. Freeman initiated a level-4 appeal to the Central Office on May 31, 2013. However, this appeal was untimely under the BOP's procedural rules that required filing within "20 calendar days following the date on which the basis for the Request occurred." See 28 C.F.R. § 542.14(a). The parties dispute what the relevant date is — Ms. Vineyard asserts it to be December 7, 2009 when Mr. Freeman initially sought medical treatment, and Mr. Freeman asserts that it extended to December 28, 2011 because Ms. Vineyard's deliberate indifference did not end until he was transferred from FCI-Florence. The Court need not resolve such dispute, however, because according to the latest date, December 28, 2011, the May 1, 2013 request was untimely. And by similar reasoning, Mr. Freeman's five subsequent level three requests3 were also untimely.

Mr. Freeman sought informal resolution of another grievance on July 14, 2014, which he appealed with a level 4 appeal to the Central Office on October 7, 2014 (#800538-A1). The Central Office rejected this appeal on November 6, 2014 for being procedurally improper because Mr. Freeman had failed to complete the prerequisite steps of the administrative remedy process. Even more importantly, however, neither the grievance nor the resulting appeal mentions Ms. Vineyard or any claims against her. Accordingly, Mr. Freeman has failed to present sufficient, competent evidence, which if taken as true, would establish that he exhausted his administrative remedies before fining this action.

Finally, Mr. Freeman argues that the administrative remedy process was unavailable to him because the BOP has an "unofficial custom" of refusing to provide an inmate with the next sequential form in the administrative remedy process until after the inmate has been denied review of the pending request. In essence, he argues that he was deprived of the ability to comply with the administrative process because of the inaction of prison officials. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Even if there was such a custom — proof of which is not evident in this record — the Court cannot find that it caused Mr. Freeman's default in grievances filed after his transfer from FCI-Florence. As discussed above, after Mr. Freeman was transferred from FCI-Florence, the earliest administrative remedy request related to his claims against Ms. Vineyard was dated May 1, 2013. This request was untimely, but there is no showing that its untimeliness was due to not being provided an appropriate form in a timely fashion.

CONCLUSION

For the foregoing reasons, the Defendant's Motion for Summary Judgment (#54) is GRANTED. The Clerk shall enter judgment in favor of the Defendant and against the Plaintiff on all claims and close this case.