1

Be advised that all parties shall have fourteen (14) days after service hereof to serve and file

any written objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings

or recommendations to which the objections are being made. The District Court need not consider

frivolous, conclusive or general objections. A party's failure to file such written objections to

proposed findings and recommendations contained in this report may bar the party from a de novo

determination by the District Judge of the proposed findings and recommendations. United States

v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file

written objections to the proposed findings and recommendations within fourteen (14) days after

being served with a copy may bar the aggrieved party from appealing the factual findings of the

Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140,

155 (1985); In re Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02576-WYD-MEH

CALVIN LYNIOL ROBINSON,

Plaintiff,

v.

DOCTOR DAVID ALLRED, Bureau of Prisons (BOP) Employee,

Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment [filed January 9, 2012;

docket #38]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. L.Civ.R 72.1C, the motion has

been referred to this Court for recommendation. The matter is briefed to the extent required by law,

and the Court finds that oral argument will not assist the Court in its adjudication of the motion. For

the reasons that follow and based on the entire record herein, the Court RECOMMENDS

Defendant’s motion be GRANTED.

1

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BACKGROUND

Plaintiff is a prisoner at the United States Penitentiary, who initiated this pro se action on

September 30, 2011. On November 14, 2011, Plaintiff filed an Amended Complaint as a matter of

course alleging generally that Defendant has failed to provide him proper medical treatment for “low

stomach acid,” which has resulted in level 10 pain, loss of vision, loss of teeth, a broken femur, open

wounds, diabetes, hypertension, high triglycerides, a minimal ability to function and the imminent

danger of liver, kidney and heart failure. Amended Complaint, docket #22 at 3. Plaintiff contends

that Defendant either has not tested his stomach acid or has ignored blood tests demonstrating low

stomach acid, and has failed to treat Plaintiff’s condition with a “simple $14.95 cost efficient

remedy,” Betaine Hcl. Plaintiff seeks injunctive relief requiring the Defendant to prescribe Betaine

Hcl, an over-the-counter food supplement, as well as several other supplements for his various

ailments, monetary damages totaling $5,000 for each of his six claims, and punitive damages in the

amount of $1,000,000.00. Id. at 11.

Before responding directly to Plaintiff’s Amended Complaint, Defendant filed the motion

at hand. Defendant asserts that Plaintiff has failed to exhaust the Bureau of Prison (BOP)

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) before filing this

action. Defendant acknowledges that Plaintiff filed an administrative remedy at the institution level

on September 14, 2011. Motion, ¶ 4, docket #38 at 2.) However, the warden did not respond to

the grievance until January 6, 2012, just three days before the present motion was filed. Id. at ¶ 5.

According to Defendant, Plaintiff must now appeal his administrative remedy to the Regional

Office. Id. at ¶ 6. However, because he had not filed such appeal, Defendant argues the Plaintiff

had not completed the BOP administrative remedy process. Id. at ¶ 7. 

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In response to Defendant’s motion, Plaintiff submitted an “Affidavit In Response to

Defendant’s Motion for Summary Judgment.” Affidavit, docket #60. In essence, Plaintiff attests

that he has consistently filed administrative remedy requests, both to the Florence facility and the

Springfield, MO facility, since 2008. Id., ¶ 6-9. Plaintiff contends that, despite having completed

the BOP administrative process from 2008 to 2010, Plaintiff filed an informal request on August 29,

2011 (id., ¶ 15), and a BP-9 form on September 14, 2011 (id., ¶ 16) concerning the matters raised

in his Amended Complaint. According to Plaintiff, he did not receive a response from the warden

on the October 4, 2011 due date (id., ¶ 18); therefore, on October 27, 2011, Plaintiff, allegedly in

compliance with BOP policy, filed the next level BP-10 form (id.). Plaintiff attests that, on

November 23, 2011, he received a rejection of the BP-10 form for failure to attach the warden’s

response to his BP-9 form; the rejection states, “I have talked with the Institution; please wait for

the Warden’s response before you appeal to this level.” Id., ¶ 19-20. That same day, Plaintiff filed

the next level BP-11 form on which he stated that the warden missed the deadline and, in accordance

with policy, Plaintiff filed a “proper” appeal. Id., ¶ 21. 

Meanwhile, Plaintiff received the warden’s response to the original BP-9 form on January

11, 2012, and on January 15, 2012, he filed another BP-10 form to the Regional Office containing

the warden’s response. Id., ¶ 22. Plaintiff contends that Defendant’s Attachment 1, dated November

4, 2011, provides “prima facie evidence” that the BOP grievance procedure was exhausted, in that

it reflects grievances filed in 2008 requesting a “medical diet.” Id., ¶ 24; see also Administrative

Remedy Generalized Retrieval, docket #38-1 at 9-10.

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STANDARD OF REVIEW

I. Treatment of Pro Se Pleadings

As Plaintiff proceeds pro se, the Court must construe his “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not

supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory

on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations

and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably

read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor

syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the

proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see

also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188,

1197 (10th Cir. 1989)). 

II. Motion for Summary Judgment 

A motion for summary judgment serves the purpose of testing whether a trial is required.

Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant

summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits

show there is no genuine issue of material fact, and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The moving party bears the initial responsibility of providing to the Court the factual basis

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for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Maldonado v. City of Altus, 433

F.3d 1294, 1302 (10th Cir. 2006). “The moving party may carry its initial burden either by

producing affirmative evidence negating an essential element of the nonmoving party's claim, or by

showing that the nonmoving party does not have enough evidence to carry its burden of persuasion

at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only

admissible evidence may be considered when ruling on a motion for summary judgment. World of

Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

The non-moving party has the burden of showing there are issues of material fact to be

determined. Celotex, 477 U.S. at 322. If the movant properly supports a motion for summary

judgment, the opposing party may not rest on the allegations contained in the complaint, but must

respond with specific facts showing a genuine factual issue for trial. Hysten v. Burlington N. and

Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002); Fed. R. Civ. P. 56(e). These specific facts may

be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere

pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998)

(quoting Celotex, 477 U.S. at 324) (emphasis added). The Court must view the record and draw “all

favorable inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co.

of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. The BOP has a four-tiered administrative procedure for inmate grievances, which is codified

at 28 C.F.R. ¶ 542.10 et seq.

2. The first step is informal resolution with prison staff (28 C.F.R. ¶ 542.13); requests for

Informal Resolution forms (also known as BP-8 forms) are not assigned a tracking number.

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Declaration of Benjamin J. Brieschke, January 6, 2012 (“Brieschke Declaration”), ¶ 6,

docket #38-1.

3. The second step is the filing of a formal Request for Administrative Remedy (also known

as BP-9 form) at the institution at which the inmate is incarcerated. Id. (citing 28 C.F.R. ¶

542.14).

4. If the inmate feels the response to his BP-9 is not satisfactory, within 20 days of the date the

warden signs the response, the inmate may appeal the complaint to the Regional Director by

filing a Regional Office Administrative Remedy Appeal (also known as a BP-10). Id. (citing

28 C.F.R. ¶ 542.15(a)).

5. If dissatisfied with the Regional Director’s response, the inmate may appeal to the Director,

National Inmate Appeals in the Office of the General Counsel in Washington D.C. by filing

a Central Office Administrative Remedy Appeal (also known as a BP-11). Id. (citing 28

C.F.R. ¶ 542.15(b)(2)).

6. Appeal to the Office of the General Counsel is the final administrative appeal. Id. (citing 28

C.F.R. ¶ 542.15(a)).

7. On August 30, 2011, Plaintiff filed a BP-8, Informal Resolution Form, in which he

complains he has been denied medical nutrient treatment and equal protection. Informal

Resolution Form, August 30, 2011, docket #38-1 at 14. Plaintiff attached to this form a list

of “symptoms [that] stem from the low stomach acid” including pancreatic digestive

enzymes, macular eye degeneration, floaters, cataracts and glaucoma, and osteoporosis. Id.

at 15.

8. Plaintiff received a response to the BP-8 stating, “This issue was addressed by medical in

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a response to Inmate Request to Staff member, dated 8-15-11. The items you are asking for

have not been approved by the FDA, and cannot be prescribed to you.” BP-8 Response,

docket #38-1 at 13.

9. On September 1, 2011, Plaintiff filed a BP-9 form, received by the warden on September 14,

2011, on which Plaintiff attached the BP-8 dated August 30, 2011 and requests “medical

treatment.” Request for Administrative Remedy, September 1, 2011, docket #60-2 at 61.

10. Plaintiff initiated this lawsuit by filing a Prisoner Complaint on September 30, 2011. Docket

#1.

11. The warden’s response to Plaintiff’s BP-9 form was due October 4, 2011. Receipt,

Administrative Remedy, October 7, 2011, docket #60-3 at 4.

12. When the Plaintiff did not receive a response to the BP-9 from the warden, he filed a BP-10

appeal form on October 27, 2011. Regional Administrative Remedy Appeal, October 27,

2011, docket #60-3 at 3.

13. On or about November 23, 2011, Plaintiff received a Rejection Notice from the Regional

Office dated November 14, 2011, rejecting the BP-10 appeal for failing to provide a copy

of the BP-9 form or the warden’s response to the BP-9. See Rejection Notice -

Administrative Remedy, November 14, 2011, docket #60-3 at 2. The form states, “I have

talked with the institution, please wait for the warden’s response before you appeal to this

level.” Id.

14. On November 23, 2011, Plaintiff filed a BP-11 appeal to the Central Office stating that the

warden did not extend his time to respond to the BP-9 and such information was provided

on the BP-10 form. Central Office Administrative Remedy Appeal, docket #60-3 at 1.

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15. On January 6, 2012, the warden issued a response to the Plaintiff’s September 1, 2011 BP-9

grievance. BP-229 Response, January 6, 2012, docket #60-2 at 62.

16. Plaintiff filed another BP-10 regional appeal on February 15, 2012 arguing that the January

6, 2012 response from the warden is late, without extension, and does not resolve Plaintiff’s

issues. Regional Administrative Remedy Appeal, January 15, 2012, docket #60-2 at 60.

17. On January 20, 2012, the regional office issued a response to the January 15, 2012 BP-10

upholding the warden’s response and the institution’s medical care. Regional Administrative

Remedy Appeal - Response, January 20, 2012, docket #60-2 at 59.

18. On February 5, 2012, Plaintiff filed a BP-11 central office appeal of the BP-10 response.

Central Office Administrative Remedy Appeal, February 5, 2012, docket #60-2 at 56.

19. At the time of filing this Recommendation, the Plaintiff has received no responses

concerning either the February 5, 2012 BP-11 appeal or the November 23, 2011 BP-11

appeal.

ANALYSIS

“The burden of proof for the exhaustion of administrative remedies in a suit governed by the

PLRA lies with the defendant.” Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).

“Dismissal under § 1997e(a) for failure to exhaust administrative remedies therefore cannot usually

be made on pleadings without proof.” Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL

1597953, at *2 (D. Colo. Apr. 6, 2011) (citations omitted).

The PLRA requires the exhaustion of administrative remedies before an incarcerated person

may bring an action concerning prison conditions under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a).

The Supreme Court determined that “exhaustion is mandatory under the PLRA and [ ] unexhausted

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claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see also Porter v.

Nussle, 534 U.S. 516, 532 (2002) (“the PLRA’s exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances or particular episodes”). The

exhaustion of administrative remedies need not be pleaded in the complaint but must be raised as

an affirmative defense. Jones, 549 U.S. at 216. The rules governing exhaustion are not articulated

by the PLRA, but are defined by the respective prisons’ grievance process. Id. at 218. In order to

“properly exhaust” in satisfaction of the PLRA’s requirements, the plaintiff prisoner must comply

with prison grievance procedures. Id. Therefore, according to Jones, claims that have not

completed the prison grievance process may not be brought in federal court. 

Here, the undisputed facts demonstrate that the Plaintiff did not exhaust administrative

remedies before he filed this lawsuit on September 30, 2011. In fact, while Plaintiff submitted a BP9 complaint before filing this action, the warden’s response was not even due until after he filed the

Complaint. Even if the Plaintiff is correct that he properly filed a BP-10 in October 2011 after the

warden failed to respond (see 28 C.F.R. § 542.18), he still has failed to exhaust. Not only has the

Plaintiff still not received a response to his Central Office appeal submitted November 23, 2011, but

again, this lawsuit was filed well before a response to the second step was due. To the extent that

the warden’s January 6, 2012 response was timely submitted, Plaintiff still has not received a

response to his February 5, 2012 Central Office appeal. Therefore, the unrebutted evidence reflects

the Plaintiff has failed to exhaust the required BOP administrative remedies and this Court is barred

from hearing Plaintiff’s claims. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is no longer

left to the discretion of the district court, but is mandatory.”); see also Jones, 549 U.S. at 220 (“All

agree that no unexhausted claim may be considered.”). 

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The Court notes that the BOP administrative process for this particular complaint occurred

February-November 2008. See Response, Exhibits A & B, docket #60 at 19-74 and #60-1 at 1-36.

While the Plaintiff complains of ailments similar to those alleged here, including diabetes,

hypertension and eye degeneration, Plaintiff seeks in the 2008 complaint a specific “diet” suggested

by a doctor he heard on the radio. Moreover, the complaint was submitted in February 2008, well

more than three years before Plaintiff filed the instant action. See Appleby-El v. Catron, 84 F. App’x

9, 10 (10th Cir. 2003) (Bivens claims are subject to a two-year statute of limitations).

10

The Court notes that the federal regulations provide for exceptions to the requirement to file

a BP-9 complaint at the institution level. See 28 C.F.R. § 542.14(d). However, the Plaintiff raises

no argument concerning these exceptions and the Court finds that none apply.

Plaintiff argues that he exhausted the required remedies in 2008, 2009 and 2010; the Court

is not persuaded. Plaintiff attached copies of several administrative complaints and appeals he filed

during those years; however, while one or two involved Plaintiff’s request for a religion-based

“common fare” meal or a “medical nutrient diet,”2

 none of them relate to Plaintiff’s claims here

concerning his low stomach acid, the symptoms he claims to suffer as a result, and his request for

an order requiring certain prescriptions for several supplements to alleviate his ailments. The only

administrative complaints and appeals submitted by the Plaintiff relating to the subject of this action

are those listed in the Statement of Facts herein. Because the Plaintiff has not exhausted

administrative remedies concerning Plaintiff’s claims raised in his Amended Complaint, this Court

should not interfere with the BOP administrative process. See Woodford, 548 U.S. at 93 (the PLRA

“seeks to afford corrections officials time and opportunity to address complaints internally before

allowing the initiation of a federal case.”) (citation and quotations omitted).

The Court finds that Plaintiff fails to raise a genuine issue of material fact as to whether he

fully exhausted administrative remedies, and Defendant meets his burden of demonstrating that

Plaintiff did not exhaust. Therefore, the Defendant’s motion should be granted, and Plaintiff’s

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complaint dismissed without prejudice for failure to comply with the PLRA’s exhaustion

requirement.

CONCLUSION

Accordingly, the Court respectfully RECOMMENDS that Defendant’s Motion for

Summary Judgment [filed January 9, 2012; docket #38] be GRANTED. Plaintiff’s complaint

should be dismissed without prejudice in its entirety due to Plaintiff’s failure to exhaust

administrative remedies as required by the PLRA. As such, this Court also recommends that

Plaintiff’s Motion for Temporary Restraining Order [filed November 28, 2011; docket #27],

Plaintiff’s Motion for Leave to Amend Complaint [filed January 12, 2012; docket #45], and

Defendant’s Motion to Dismiss [filed January 23, 2012; docket # 48] be DENIED AS MOOT.

Respectfully submitted at Denver, Colorado, this 21st day of February, 2012.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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