1

 “[#99]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s electronic case filing and management system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Case No.11-cv-02291-REB-MJW

VERNE JAY MERRELL,

Plaintiff,

v.

DAVID ALLRED, D.O. FCC Health Services, and

PATRICIA MITCHELL, Program Mgt [sic] Officer, Health Services,

in their individual and professional capacities,

Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING 

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Blackburn, J.

The matters before me are (1) the Recommendation on Defendants’ Motion

for Summary Judgment [#99],1

 filed January 17, 2013; and (2) Plaintiff’s Objection

to Magistrate’s Recommendation (doc. #99) and Notice of Intention To Appeal

[#101], filed February 4, 2013. I overrule the objections, approve and adopt the

recommendation, grant defendants’ motion for summary judgment, deny the other

pending motions as moot, and dismiss plaintiff’s remaining claim for failure to exhaust

administrative remedies. 

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the

recommendation to which objections have been filed. I have considered carefully the

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2

 Under similar provisions of the Federal Tort Claims Act, the Tenth Circuit has held that even the

filing of an amended complaint once exhaustion has been perfected will not cure the pre-filing failure to

fully exhaust. Hill v. Pugh, 75 Fed. Appx. 715, 717 (10th Cir. Sept. 11, 2003); Duplan v. Harper, 188 F.3d

1195, 1199 (10th Cir. 1999); Stine v. Swanson, 2008 WL 4330568 at *8-9 (D. Colo. Sept. 18, 2008). (In

Duplan, the court made an exception based on the government’s acknowledgment that the amended

complaint constituted a new action and agreement to administrative closure of the first action pending

exhaustion. See Duplan, 188 F.3d at 1199-1200. No such agreement is operative here.)

2

recommendation, objections, and applicable caselaw. 

Plaintiff is proceeding pro se. Thus, I have construed his pleadings more liberally

and held them to a less stringent standard than formal pleadings drafted by lawyers. 

See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081

(2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92

S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). 

The recommendation is detailed and well-reasoned. Plaintiff does not dispute

that he failed to properly exhaust his administrative remedies as to his 2008 and 2009

grievances. Defendants’ response, which I adopt and incorporate by this reference,

articulates the specific manner in which plaintiff’s attempts in 2010 to appeal the

decision of the Discipline Hearing Officer were not compliant with the requisite

grievance procedures and attendant deadlines required by the applicable Bureau of

Prisons regulations. Thus, I agree with the magistrate judge that the 180-day clock for

processing of the grievance did not begin until April 12, 2011. Plaintiff’s filing of this suit

prior to expiration of that deadline on October 9, 2011, without first receiving a final

decision from the BOP constitutes a failure to fully exhaust this claim, which

necessitates dismissal. Ruppert v. Aragon, 448 Fed. Appx. 862, 863, (10th Cir. Feb. 9,

2012), cert. denied, 133 S.Ct. 137 (2012).2

 

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THEREFORE, IT IS ORDERED as follows:

1. That the objections stated in Plaintiff’s Objection to Magistrate’s

Recommendation (doc. #99) and Notice of Intention To Appeal [#101], filed

February 4, 2013, are OVERRULED;

2. That the Recommendation on Defendants’ Motion for Summary

Judgment [#99], filed January 17, 2013, is APPROVED and ADOPTED as an order of

this court; 

3. That Defendants’ Motion for Summary Judgment on the Issue of

Exhaustion of Administrative Remedies [#68], filed September 5, 2012, is

GRANTED;

4. That Plaintiff’s Motion for Summary Judgment [#70], filed September 13,

2012, is DENIED AS MOOT;

5. That Plaintiff’s Motion for a Preliminary Injunction (Renewed) [#92], is

DENIED AS MOOT;

6. That plaintiff’s claim under the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) is DISMISSED WITHOUT PREJUDICE for failure to exhaust

administrative remedies;

7. That judgment SHALL ENTER on behalf of defendants, David Allred, D.O.

FCC Health Services; and Patricia Mitchell, Program Mgt. Officer, Health Services, in

their individual and professional capacities, against plaintiff, Verne Jay Merrell, as to

plaintiff’s claim under RLUIPA; provided, that the judgment as to this claim shall be

without prejudice;

Case 1:11-cv-02291-REB-MJW Document 109 Filed 04/04/13 USDC Colorado Page 3 of 4
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8. That judgment SHALL ENTER in accordance with my Order Adopting

Recommendation of the United States Magistrate Judge [#66], filed August 24,

2012; provided, that the judgment as to plaintiff’s Bivens claim, to the extent his

complaint can be read to assert one, shall be without prejudice; and

9. That defendants are AWARDED their costs to be taxed by the clerk of the

court in the time and manner provided under Fed. R. Civ. P. 54(d)(1) and

D.C.COLO.LCivR 54.1.

Dated April 4, 2013, at Denver, Colorado.

BY THE COURT:

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