R. BROOKE JACKSON, District Judge.
This matter is before the Court on defendants' Motion to Dismiss or Alternatively Motion for Summary Judgment [ECF No. 54] and the recommendation of Magistrate Judge Kathleen M. Tafoya that the Court grant defendants' motion [ECF No. 78]. The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
The recommendation advised the parties that specific written objections were due within fourteen days after being served with a copy of the recommendation. ECF No. 78 at 9-10. In response to plaintiff's request, this Court extended the objections deadline to March 18, 2016. ECF No. 80. Plaintiff filed timely objections. ECF No. 82. The Court has reviewed all of the relevant pleadings and Magistrate Judge Tafoya's recommendation. After its de novo review, the Court accepts the recommendation, albeit on different grounds in some respects, and grants defendants' motion.
Plaintiff Juvencia D. Townsend, proceeding pro se, is a prisoner in the custody of the Colorado Department of Corrections (CDOC). She brings two claims for relief pursuant to 42 U.S.C. § 1983 asserting that defendants, CDOC employees, retaliated against her in violation of the First Amendment and denied her equal protection in violation of the Fourteenth Amendment. ECF No. 28. Ms. Townsend alleges the following timeline of events:
Ms. Townsend also claims that she was given work restrictions for medical reasons while she was working as an OCA, and, as a result, Sergeant Christ reduced her pay. Id. at 8. However, she does not allege a specific date for that event.
Ms. Townsend filed her Complaint on October 31, 2014. ECF No. 1. On several occasions she amended her pleadings as Magistrate Judges Boyd N. Boland and Gordon P. Gallagher requested that she clarify the parties she is suing and the claims she is asserting. Ms. Townsend's Third Amended Complaint is now the operative complaint. ECF No. 28. Pursuant to 28 U.S.C. § 1915A, Judge Lewis T. Babcock then reviewed Ms. Townsend's Third Amended Complaint in order to dismiss any portion that was legally frivolous or sought relief from a defendant who was immune from suit. ECF No. 30. Judge Babcock dismissed Ms. Townsend's due process claim as legally frivolous and her claims for damages against CDOC and the individual defendants in their official capacities as they are protected by Eleventh Amendment immunity. Id. Ms. Townsend retains her retaliation claim and her equal protection claim.
Following the issuance of a magistrate judge's recommendation on a dispositive matter, the district court judge must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). The district judge is permitted to "accept, reject, or modify the recommended disposition; receive further instruction; or return the matter to the magistrate with instructions." Id.
To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556.
The Court may grant summary judgment if "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). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
When a case involves a pro se party, courts will "review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys." Trackwell v. U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff's pleadings "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based . . . conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id. Pro se parties must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Ms. Townsend contends that defendants retaliated against her on five occasions, including when (1) Sergeant Christ fired her in November 2011; (2) Officer Roberts harassed her in the prison yard; (3) Sergeant Gamblin told her she was going to make sure she lost her job as an OCA; (4) defendants fired her again in August 2013; and (5) defendants placed her in segregation in September 2013. ECF No. 28 at 12-16; see ECF No. 30 at 3. Furthermore, Ms. Townsend claims that she was denied equal protection on three occasions when defendants (1) fired her in November 2011; (2) reduced her pay due to her medical restrictions; and (3) fired her again in August 2013. ECF No. 28 at 10-13, 17-18; see ECF No. 30 at 3. Defendants subsequently filed a motion to dismiss based on the following grounds: (1) the statute of limitations; (2) Eleventh Amendment immunity; (3) failure to state a cognizable claim; (4) failure to state a claim for damages; and (5) qualified immunity. ECF No. 54. Defendants also assert that the Court should rule as a matter of law that Ms. Townsend failed to exhaust her administrative remedies. Id.
Upon a thorough review of the record, Magistrate Judge Tafoya recommended to the Court that defendants' motion be granted. ECF No. 78. She determined that, as a matter of law, Ms. Townsend failed to exhaust her administrative remedies as to her claims of retaliation and discrimination. Id. Ms. Townsend filed a timely objection to Magistrate Judge Tafoya's conclusion that she failed to exhaust her remedies.
Upon a de novo review, the Court finds that Ms. Townsend failed to exhaust her administrative remedies as a matter of law with respect to her equal protection and retaliation claims relating to her (1) November 2011 termination; (2) November 2012 harassment by Sergeant Gamblin; (3) August 2013 termination; and (4) September 2013 transfer. Additionally, the Court concludes that her remaining claims—that Officer Roberts harassed her and Sergeant Christ reduced her pay after she was given medical restrictions—should be dismissed on other grounds.
Magistrate Judge Tafoya recommended that the Court rule as a matter of law that Ms. Townsend failed to properly exhaust her administrative remedies, thus barring her § 1983 claims in their entirety. ECF No. 78 at 9. Id. Following its de novo review, the Court finds that Ms. Townsend failed to exhaust her claims relating to her (1) November 2011 termination; (2) November 2012 harassment by Sergeant Gamblin; (3) August 2013 termination; and (4) September 2013 transfer.
Pursuant to the Prison Litigation Reform Act ("PLRA") a prisoner must exhaust her administrative remedies before bringing a suit in federal court. 42 U.S.C.A. § 1997e. The relevant portion of the PLRA states, "[n]o 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." Id. at § 1997e(a). The exhaustion requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). "[A] prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines[.]" Woodford v. Ngo, 548 U.S. 81, 88 (2006). Substantial compliance with grievance procedures is insufficient. Fields v. Oklahoma State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).
"[F]ailure to exhaust is an affirmative defense under the PLRA[.]" Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants "bear the burden of asserting and proving that the plaintiff did not utilize administrative remedies." Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once a defendant establishes that a plaintiff has failed to exhaust, the plaintiff has the opportunity to prove that the remedies were unavailable to her. Id.
The CDOC's grievance process is set forth in Administrative Regulation (AR) 850-04. ECF No. 54-1. It first provides inmates with an informal opportunity to engage in constructive dialogue. Id. at ¶ 4. If constructive dialogue does not resolve the issue, an inmate is required to file grievances in three formal steps. Id. at ¶ 5. An inmate must file a Step 1 grievance within thirty days of the incident complained about. Id. at ¶ 6. If the inmate is not satisfied with the result of the Step 1 grievance, she must file a Step 2 grievance within five days of receiving a response to the Step 1 grievance. Id. at ¶ 7. Finally, if an inmate is still unsatisfied with the response to her Step 2 grievance, she must file a Step 3 grievance within five days of receiving a response to the Step 2 grievance. Id. at ¶ 8. If the inmate fails to follow the process as detailed by AR 850-04, she has failed to exhaust her administrative remedies. Id. at ¶ 10.
Defendants assert the affirmative defense that Ms. Townsend failed to exhaust her administrative remedies as a matter of law. ECF No. 54 at 5. To carry their burden, defendants rely on the affidavit of CDOC Grievance Officer Anthony DeCesaro. ECF No. 54-1. Officer DeCesaro examined the grievance records "to determine whether [Ms. Townsend] filed grievances concerning her allegations of being (1) terminated from her prison job as an [OCA]; (2) harassed by staff in November of 2012; and (3) [transferred] between prisons in September of 2013."
Ms. Townsend first alleges that in November of 2011, defendants retaliated and discriminated against her by firing her from her job as an OCA. The Court finds that Ms. Townsend failed to properly exhaust this issue.
Ms. Townsend grieved this issue in Grievance R-DW11/12-00010508 submitted on December 13, 2011. ECF No. 54-3 at 1-4. She received a response to her Step 1 grievance on December 21, 2011
Ms. Townsend objects to Magistrate Judge Tafoya's determination that she failed to exhaust her remedies with respect to Grievance R-DW11/12-00010508, arguing that her Step 2 grievance was untimely through no fault of her own because the administrative remedy was temporarily unavailable to her. ECF No. 82 at 6-7.
An inmate may overcome a failure to exhaust with evidence that demonstrates that the administrative remedy was not "available" to the inmate.
Ms. Townsend also claims that Sergeant Gamblin retaliated against her in November of 2012 for exercising her First Amendment rights. ECF No. 28 at 12. Specifically, she contends that Sergeant Gamblin threatened to have her terminated from her job because she had filed grievances against other officers. Id. The Court finds that Ms. Townsend did not properly grieve this issue.
Ms. Townsend grieved a related issue in Grievance R-DW12/13-0003491. ECF No. 54-3 at 5-8. Ms. Townsend's grievance is difficult to read, but from what the Court can gather, Grievance R-DW12/13-0003491 generally addresses Sergeant Gamblin's "issues" with her. Id. However, the conduct addressed in the grievance is not the kind of retaliatory conduct she alleges in her pleadings. Id. For example, at Step 1 Ms. Townsend stated that Sergeant Gamblin disciplined her unnecessarily. Id. at 5. She claimed that "Sgt. Gamblin has always had personal `issues,' with me because in may of 08 I threw a cup of urine on her so shes never been able to get over that[.]" Id. at 5. Therefore, she failed to address the First Amendment retaliation she alleges in her Complaint relating to Sergeant Gamblin's disdain for Ms. Townsend's use of the grievance system.
In her objections Ms. Townsend argues that she was not required to grieve this issue with Sergeant Gamblin because "you cannot grieve a C.O.P.D. write up." ECF No. 82 at 5. While Ms. Townsend is correct that the grievance procedure may not be used to seek review of COPD convictions, it may be used to seek review of a staff member's retaliatory use of the disciplinary system. ECF No. 54-1 at ¶ 11; Zarska v. Higgins, 171 F. App'x 255, 258 n.2 (10th Cir. 2006) ("An allegation of retaliation by the filing of a disciplinary charge does not necessarily require an attack on the disciplinary charge itself.").
Additionally, Ms. Townsend alleges that she was terminated from her job for the second time in August 2013 for a pretextual reason relating to her history of institutional violence. ECF No. 28 at 17. Ms. Townsend grieved this matter in Grievance R-DW13/14-00044998. ECF No. 54-3 at 13-16. However, she failed to timely file her Step 2 grievance. Id. at 16. She received a response to her Step 1 grievance on September 10, 2013, but she did not file her Step 2 grievance until September 30, 2013—well past the five-day deadline.
Finally, Ms. Townsend asserts that she was placed in segregation in September 2013 in retaliation for her refusal to transfer to another facility. ECF No. 28 at 13. She grieved a related issue in Grievance R-LV13/14-00052643. ECF No. 69-1 at 49-52. At Step 1, Ms. Townsend addressed the fact that she had been moved to a new facility, however, she failed to mention a placement in segregation or any retaliation. Id. Instead, her grievance addressed her concerns about a washcloth that went missing during her move. Id. Moreover, Ms. Townsend's Step 1 grievance was untimely. Id. She claims that she was placed in segregation from September 6 until September 20, 2013 and then subsequently moved to La Vista Correctional Facility on November 6, 2013. Id.; ECF No. 28 at 13. However, she did not file her grievance until February 26, 2014—well past the 30-day deadline. ECF No. 69-1 at 49-52. Consequently, Ms. Townsend failed to exhaust this issue.
Defendants argue that the statute of limitations bars plaintiff from filing suit regarding her remaining allegations that she was: (1) harassed by Officer Roberts in February 2012 in retaliation for filing a grievance against him; and (2) denied equal protection when her pay was reduced due to her medical restrictions. ECF No. 54 at 4-5. Ms. Townsend did not respond to this argument. The Court finds that the statute of limitations bars plaintiff's February 2012 retaliation claim. However, it is not clear from the face of the Complaint that her equal protection claim is untimely.
A defendant may raise an affirmative defense in a Rule 12(b)(6) motion "[i]f the defense appears plainly on the face of the complaint itself." Lee v. Rocky Mountain UFCW Unions & Emp'rs Trust Pension Plan, 13 F.3d 405 (10th Cir. 1993) (internal quotations and citations omitted). Therefore, even though "a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss `when the dates given in the complaint make clear that the right sued upon has been extinguished.'" Radloff-Francis v. Wyoming Med. Ctr., Inc., 524 F. App'x 411, 413 (10th Cir. 2013) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.1980)).
"In § 1983 actions [courts] apply the forum state's statute of limitations for personal-injury claims[.]" Canfield v. Douglas Cty., 619 F. App'x 774, 777 (10th Cir. 2015). The forum state here, Colorado, "provides a two-year statute of limitations for personal-injury claims." Id. (citing Colo. Rev. Stat. § 13-80-102). For the accrual date, federal courts look to federal law. Id. "Under federal law, `[a] civil rights action accrues when facts that would support a cause of action are or should be apparent.'" Id. (quoting Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995)).
Here, plaintiff's retaliation claim accrued in February 2012 when the harassment took place. Ms. Townsend alleges that Officer Roberts stopped her in the yard and proceeded to harass her. ECF No. 28 at 12. Further, she claims that when she "would not feed into his harassment he started cussing at me." Id. She then reported Officer Roberts for his retaliatory conduct. Id. Therefore, Ms. Townsend's alleged injury became evident during or shortly after her interaction with Officer Roberts in February 2012. Because she did not file this action until October 31, 2014—more than two years after the accrual of her claim—Ms. Townsend's retaliation claim is barred by the statute of limitations.
In contrast, it is not evident from Ms. Townsend's pleadings when her equal protection claim regarding a reduction in her pay accrued. Id. at 8. She claims that she was put on medical restrictions for work due to having gallstones, and as a result, Sergeant Christ lowered her pay. Id. Defendants assume that this took place in November 2011, however, Ms. Townsend's Complaint does not identify a timeframe of any kind for this event. Compare ECF No. 54 at 2 with ECF No. 28 at 8.
Therefore, on the face of her Complaint, Ms. Townsend's allegation that she was harassed by Officer Roberts is deemed untimely, however, her contention that Sergeant Christ discriminated against her is not.
Defendants assert that Ms. Townsend fails to state an equal protection claim. ECF No. 54 at 10-12, 13-17. I agree.
The Equal Protection Clause of the Fourteenth Amendment protects inmates from discrimination. Denson v. Maufeld, No. 09-CV-02087-WYD-KLM, 2010 WL 3835830, at *2 (D. Colo. 2010). Where an equal protection claim is not based on a suspect classification or a membership in a protected class, a plaintiff must allege: "(1) that Defendants acted with discriminatory intent; (2) Plaintiff is similarly situated to other inmates who were treated differently, and (3) the difference in treatment bears no rational relationship to legitimate penological objectives of the prison." Owen v. Medina, No. 12-CV-00094-RM-CBS, 2013 WL 10445705, at *5 (D. Colo. 2013) report and recommendation adopted, No. 12-CV-00094-RM-CBS, 2015 WL 1524766 (D. Colo. 2015) (citing Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994)).
Here, Ms. Townsend's alleged facts do not state a plausible claim. She claims that she was put on medical restrictions for work due to having gallstones. ECF No. 28 at 8. As a result, Sergeant Christ lowered her "OCA level" from an OCA II to an OCA I, and her pay was cut in half. Id. She also claims that the other female offenders with medical restrictions did not receive a reduction in pay. Id. Ms. Townsend does not assert that Sergeant Christ acted with discriminatory intent. Furthermore, she fails to allege that the difference in pay between her and the other inmates with medical restrictions bore no rational relationship to legitimate penological objectives of the prison.
In sum, Ms. Townsend's equal protection claim regarding her reduction in pay fails to state a claim upon which relief can be granted.
Accordingly, the Recommendation of the United States Magistrate Judge [ECF No. 78] is ADOPTED and defendants' Motion to Dismiss or Alternatively Motion for Summary Judgment [ECF No. 54] is GRANTED.