CHARLES B. GOODWIN, Magistrate Judge.
Plaintiff Chad A. Coburn, a state prisoner appearing pro se and proceeding in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment of the United States Constitution. Chief United States District Judge Joe Heaton has referred this matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636.
Plaintiff initiated this action on June 1, 2015, alleging violation of his due process and equal protection rights based on the unlawful deprivation of personal property. See Compl. (Doc. No. 1); Pl.'s Am. Br. (Doc. No. 48). Defendants Mayhem, Amin, Battles, and Hilligoes
Plaintiff's claims arise from events that transpired following Plaintiff's transfer from CCF, a facility in Cushing, Oklahoma, operated by a company formerly known as Corrections Corporation of America ("CCA"), to Davis Correctional Facility ("DCF") in Holdenville, Oklahoma, which is also operated by CCA. Plaintiff alleges that CCF failed to send certain personal property items to DCF when Plaintiff was transferred on January 8, 2014. See Compl. at 6; Pl.'s Am. Br. at 5-8.
Asserting that Plaintiff failed to exhaust administrative remedies, Defendants have moved to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). See Defs.' Mot. at 1-5; Fed. R. Civ. P. 12(b)(6). "Although failure to exhaust is an affirmative defense, it may be raised in a motion to dismiss asserting a failure to state a claim when the grounds for this defense appear on the face of the complaint." Burnett v. Okla. Dep't of Corr., No. 17-6202, 2018 WL 2470909, at *1 (10th Cir. Jun. 4, 2018).
In analyzing a Rule 12(b)(6) motion, the court "accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient "to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; "they must be supported by factual allegations" to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
In evaluating Defendants' Motion, the undersigned has considered as Plaintiff's pleading the completed Complaint form submitted by Plaintiff and the "Brief" and exhibits attached by Plaintiff to that document. See Doc. No. 1, at 1-6; Doc. No. 1-1, at 1-14; id. at 15-25 (Plaintiff's Exhibits A through K); Fed. R. Civ. P. 10(c). The undersigned also has considered the revised (but largely duplicative) version of the "Brief" and exhibits that were submitted subsequently by Plaintiff, which are accepted as an amendment to Plaintiff's Complaint. See Doc. No. 48, at 1-9; Doc. Nos. 48-1 to -11 (refiled copies of Exhibits A through K to initial Complaint); Fed. R. Civ. P. 15(a)(1). Finally, the undersigned has considered the grievance policy that was provided by Defendants in the court-ordered Special Report, as the prison's lost-property remedies are referred to by Plaintiff in the Complaint and are central to Plaintiff's claims, and there is no dispute as to its authenticity. See Compl. at 1, 3; Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (noting that in a Rule 12(b)(6) review, the court may consider the complaint, "attached exhibits," "documents incorporated into the complaint by reference," and documents "referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity" (internal quotation marks omitted)); Burnett v. Okla. Dep't of Corr., No. CIV-16-609-M, 2017 WL 4077029, at *2 (W.D. Okla. June 22, 2017) (R. & R.) (considering exhaustion documents in special report when reviewing a Rule 12(b)(6) motion because the documents were "central to the issue" of exhaustion and Plaintiff referenced them in his complaint), adopted, 2017 WL 4054151 (W.D. Okla. Sept. 13, 2017).
The PLRA provides that no action under 42 U.S.C. § 1983 may be brought by a prisoner regarding conditions of confinement "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 90, 93-103 (2006) (explaining that § 1997e(a) requires "proper exhaustion"—i.e., "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)" (internal quotation marks omitted)). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Ngo, 548 U.S. at 90-91. The PLRA's exhaustion requirement "applies fully when the plaintiff is a federal or state inmate held in a privately operated facility." Ross v. Cty. of Bernalillo, 365 F.3d 1181, 1184 (10th Cir. 2004), abrogated on other grounds by Jones, 549 U.S. 199.
During the relevant period, CCF had adopted CCA's Policy Number 14-6: Inmate/Resident Property Policy ("CCA Property Policy") (eff. Mar. 14, 2007), through which a prisoner may seek administrative relief on property-related claims. See S.R. Ex. 1 (Doc. No. 57-1). To exhaust a claim under this policy that is related to lost, damaged, or stolen property, inmates are first required to request a claim investigation by submitting a 14-6D Lost/Damaged/Stolen Personal Property Claim form within seven days of the incident. See id. at 17-18, 21. The CCA Property Policy provides that if property is determined to be missing when an inmate is transferred from one CCA facility to another, "the 14-6D will be completed and forwarded to the sending facility" and "[t]he sending facility will initiate an investigation into the matter upon receipt of the completed 14-6D." S.R. Ex. 1, at 20; see Jackson v. Wilkinson, 671 F. App'x 717, 717 (10th Cir. 2016); see also Pl.'s Am. Br. Ex. 1, at 2 (stating that "the only remedy to exhaustion on a property issue is the Lost/Stolen Property Claim"). If the claim for replacement or reimbursement is denied, inmates can then appeal by submitting a 14-6E Denied Property Claim Appeal form to the Property Officer within seven days of receipt of the denial. See S.R. Ex. 1, at 18, 20, 21; see also Coburn v. Wilkinson, No. CIV-15-195-RAW-SPS, 2016 WL 4995480, at *2 (E.D. Okla. Sept. 19, 2016), aff'd, 700 F. App'x 834 (10th Cir. 2017).
Plaintiff was transferred from CCF to DCF on January 8, 2014. See Pl.'s Am. Br. at 5. Plaintiff submitted his 14-6D Claim Form pursuant to the CCA Property Policy on January 29, 2014. See Pl.'s Am. Br. Ex. 7, at 1 (identifying lost items as surge protector, television, watch, phone book, Koran, boots, canteen, headphones, and headphone extension).
At some point between February 7, 2014, and March 6, 2014, Plaintiff's mother contacted CCF regarding the whereabouts of Plaintiff's television but was told that all of Plaintiff's remaining property, including his television, had been sent to DCF. Pl.'s Am. Br. at 6-7; Pl.'s Am. Br. Ex. 10 (Doc. No. 48-10) at 1.
Defendants are entitled to dismissal based upon their theory of nonexhaustion if they show that it is evident from Plaintiff's pleading and other properly considered documents that administrative remedies for Plaintiff's property claims "were, in fact, available" and that Plaintiff failed to exhaust them. See Purkey v. CCA Det. Ctr., 263 F. App'x 723, 726 (10th Cir. 2008). Relying on Plaintiff's statement on his 14-6D Claim Form that he "found out" about the loss of property on January 8, 2014—his date of transfer—Defendants argue the CCA Property Policy required that form to have been filed seven days later—i.e., by January 15, 2014—and Plaintiff's January 29, 2014 filing failed to meet the deadline. See Defs.' Mot. at 4-5.
Liberally construing Plaintiff's pro se pleading, as the Court is required to do, the undersigned disagrees that it is plain from the face of that pleading that the "incident" triggering the seven-day claim period was Plaintiff's arrival at DCF without his property. Notwithstanding Plaintiff's notation of that date, the facts alleged plausibly suggest that property of a transferred inmate would be delivered to a transferee facility some time after the inmate's arrival, as indeed occurred here when much of Plaintiff's property was delivered to him on February 7, 2014. See Pl.'s Am. Br. Ex. 11, at 1. Thus, while Plaintiff may have known on January 8, 2014, that his property was not transferred with him on that date, the undersigned reasonably infers that it was not until some time later that Plaintiff would have concluded that some or all of his property would not be transferred at all. See Pl.'s Am. Br. Ex. 7, at 1 (Plaintiff stating, on 14-6D Claim Form, submitted January 29, 2014, "Found out on this day"). Viewing the allegations and reasonable inferences in favor of Plaintiff, the undersigned cannot say that Plaintiff's January 29, 2014 14-6D Claim Form was plainly untimely.
Alternatively, if the failure to deliver Plaintiff's property at the time of transfer (i.e., on January 8, 2014) is accepted as the triggering "incident" for the seven-day claim period, the facts alleged plausibly suggest that the lateness of Plaintiff's claim would have been obviated by Defendants' subsequent actions. As alleged by Plaintiff, Defendant did not deny Plaintiff's claim (or notify him of any such denial) as required by the CCA Property Policy but, instead, delivered much of Plaintiff's property to him approximately one week after the 14-6D Claim Form was submitted. See Pl.'s Am. Br. Ex. 11, at 1. Those actions are plausibly viewed as a decision to respond to the claim on the merits—by producing the property—which would waive any violation of the seven-day deadline. See Ross, 365 F.3d at 1186 ("If a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court."), abrogated on other grounds by Jones, 549 U.S. 199.
Accordingly, Defendants are not entitled to dismissal based upon their defense that Plaintiff failed to exhaust his administrative remedies by submitting an untimely claim.
The undersigned now turns to Plaintiff's motion for summary judgment and recommends that it also be denied.
A motion for summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The Court must grant summary judgment when "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). A party moving for summary judgment has the initial burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56(c), (e). If the moving party has the ultimate burden of persuasion at trial—e.g., when a plaintiff seeks summary judgment on its claim or a defendant on its affirmative defense—the moving party initially "must establish, as a matter of law, all essential elements of the issue before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case." Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2002); see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015).
Plaintiff's Motion fails to comply with the requirements of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1, including that he "identify[] each claim or defense—or the part of each claim or defense—on which summary judgment is sought" and support his statements with citations to material in the record. Fed. R. Civ. P. 56(a); see also LCvR 56.1(d) ("Each individual statement by the movant . . . shall be followed by citation, with particularity, to any evidentiary material that the party presents in support of its position to Fed. R. Civ. P. 56(c).").
As the moving party, Plaintiff "bears the initial burden of presenting evidence to show the absence of a genuine issue of material fact." Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 20002). Plaintiff "must support a claim that a fact is not genuinely disputed by citing to particular parts of materials in the record." Mayfield v. Harvey Cty Sheriff's Dep't, No. 17-3197, 2018 WL 2017250, at *3 (10th Cir. 2018) (internal quotation marks omitted). Here, Plaintiff fails to identify specific claims or cite to a single piece of evidentiary material.
For the foregoing reasons, the undersigned recommends that Defendants' Motion to Dismiss (Doc. No. 58) be DENIED. The undersigned also recommends that Plaintiff's Motion for Summary Judgment (Doc. No. 55) be DENIED.
The parties are advised of their right to file an objection to the Report and Recommendation with the Clerk of this Court by August 29, 2018, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the present case.
