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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02342-WJM-KLM

FRANKIE L. MCCONNELL,

Plaintiff,

v.

DEBRA REILLY,

Defendant.

_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant’s Motion for Summary Judgment

[Docket No. 42; Filed December 28, 2012] (the “Motion”). Plaintiff failed to file a Response

in opposition to the Motion, despite multiple opportunities to do so. See Minute Order

[#46]. The Motion is thus ripe for review. Pursuant to 28 U.S.C. § 636(b)(1) and

D.C.COLO.LCivR 72.1C.3, the Motion is referred to this Court for recommendation [#44].

Having reviewed the entire case file and being sufficiently advised, the Court

RECOMMENDS that the Motion [#42] be GRANTED.

I. Summary of the Case

Plaintiff, who proceeds pro se in this matter, was formerly a state prisoner

incarcerated at the Colorado Department of Corrections (“CDOC”) La Vista Correctional

Facility. Plaintiff’s claims arise from a fall that she allegedly suffered while working in the

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prison kitchen facility and subsequent alleged lack of medical treatment. Compl. [#9] at 3.

Plaintiff states that “[w]ith the combination of unadequate [sic] treatment of my back, and

head injuries sustained while engaged in prison work constitution [sic] cruel and unusual

punishment which violent [sic] Eighth Amendment.” Id. at 4. In her only remaining claim

against the only remaining Defendant, Plaintiff alleges that Defendant, Plaintiff’s medical

provider, failed to respond to several “kites,” or requests for follow-up treatment, and

refused to enter Plaintiff’s medical condition into CDOC’s computer records. Id. at 5. In

her request for relief, Plaintiff seeks compensatory damages in the amount of $5,000,000

for “mental anguish and pain suffering [sic]” and $2,000,000 for “failure to act negligence

[sic],” along with payment for “all rehabilitate’s [sic] cost” and any future medical treatment

that may be required. Id. at 8.

As an initial matter before detailing the presentation of facts behind the Motion, the

Court notes that Plaintiff has presented no evidence in support of her claim. Often, a

complaint submitted by a pro se litigant may be treated as an affidavit and used as

evidence on summary judgment if the complaint is sworn, dated, and signed under penalty

of perjury pursuant to 28 U.S.C. § 1746. See, e.g., Chytka v. Wright Tree Serv., Inc., No.

11-cv-00968-REB-KLM, 2012 WL 7151207, at *1 n.3 (D. Colo. Nov. 13, 2012). Here,

however, although Plaintiff signed her Amended Complaint [#9], she did not date it as

required by 28 U.S.C. § 1746. The Court is not obligated to treat an incomplete

“declaration” as an affidavit for purposes of establishing factual disputes in opposition to

a summary judgment motion. Hayes v. Marriott, 70 F.3d 1144, 1148 (10th Cir. 1995)

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(“Unsworn affidavits do not raise factual issues precluding summary judgment.” (citation

omitted)); see also Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 n.1 (10th Cir.

1994) (noting that unsworn affidavits may be used in summary judgment proceedings, but

only if they comply with the requirements of 28 U.S.C. § 1746 and are signed under penalty

of perjury). The Court therefore finds that the “declaration” is not an affidavit for the

purposes of resolving the summary judgment motion. See Sofford v. Schindler Elevator

Corp., 954 F. Supp. 1459, 1462 (D. Colo. 1997) (holding that unsworn witness statement

was not competent evidence for consideration in ruling on summary judgment motion); 10B

Charles Alan Wright et al., Federal Practice and Procedure § 2738, at 362-65, 372-74

(1998) (recognizing that affidavits which do not meet the requirements of Fed. R. Civ. P.

56(e) should not be given any probative force and are subject to being stricken).

Accordingly, the Court does not consider Plaintiff’s defective “affidavit” herein. 

Defendant is a Physician’s Assistant at Denver Women’s Correctional Facility. Ex.

B, Aff. of Reilly [#43-2] ¶ 2. On September 5, 2009, Plaintiff fell and sustained a

concussion requiring hospitalization at Denver Health Medical Clinic. Id. ¶ 10. Defendant

was assigned to Plaintiff as her medical provider after that fall. Id. ¶ 3. Plaintiff was treated

and no restrictions were placed on her when she was discharged. Id. Over the following

year, Plaintiff submitted a number of “kites,” i.e., forms titled “Request for Sick Call Form.”

Id. ¶¶ 11-26. In these kites, Plaintiff sought additional treatment and asked that Defendant

add certain medical codes requiring restriction of activities to Plaintiff’s CDOC computer

records. Id. Throughout that period, some temporary restrictions were placed on Plaintiff,

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such as a 60-day housing restriction for a low-tier bunk and no operation of heavy

machinery. Id. ¶¶ 15-18. Defendant avers that she never disregarded Plaintiff’s

restrictions or failed to enter a warranted restriction on Plaintiff’s electronic chart; rather,

Defendant asserts that Plaintiff’s medical condition did not require all of the work

restrictions Plaintiff sought in the kites. Id. ¶ 46.

Defendant seeks entry of summary judgment in her favor on Plaintiff’s Eighth

Amendment deliberate indifference claim. See [#42, #43]. First, Defendant asserts that

Plaintiff failed to exhaust her administrative remedies. [#43] at 9-10. Second, Defendant

argues that Plaintiff cannot establish an Eighth Amendment violation. Id. at 10-12. Third,

Defendant asserts that she is entitled to qualified immunity. Id. at 13-15. Finally,

Defendant argues that Plaintiff fails to allege a physical injury associated with her claims

against Defendant. Id. at 15-16. 

II. Standard of Review

The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to

assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

An issue is genuine if the evidence is such that a reasonable jury could resolve the issue

in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is material if it might affect the outcome of the case under the governing substantive

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law. Id.

The burden is on the movant to show the absence of a genuine issue of material

fact. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex,

477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at

trial, the “movant may make its prima facie demonstration [of the absence of a genuine

issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the

nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant

carries the initial burden of making a prima facie showing of a lack of evidence, the burden

shifts to the nonmovant to put forth sufficient evidence for each essential element of his

claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248;

Simms v. Okla. ex rel. Dep't. of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his

pleadings and provide admissible evidence, which the Court views in the light most

favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission

Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).

Conclusory statements based merely on conjecture, speculation, or subjective belief are

not competent summary judgment evidence. Bones v. Honeywell Int'l., Inc., 366 F.3d 869,

875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere

reargument of [the] case or a denial of an opponent's allegation” or it will be disregarded.

See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d

ed.1998).

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When considering Plaintiff's filings, the Court is mindful that it must construe the

filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be a pro

se litigant's advocate, nor should the Court “supply additional factual allegations to round

out [a pro se litigant's] complaint or construct a legal theory on [her] behalf.” Whitney v.

New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In

addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern

other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

As an additional preliminary matter, the Court “must accord substantial deference

to the professional judgment of prison administrators, who bear a significant responsibility

for defining the legitimate goals of a corrections system and for determining the most

appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

To this end, the Court notes the well-established law that prison management functions

should be left to the broad discretion of prison administrators to enable them to manage

prisons safely and effectively. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976).

Accordingly, courts should interfere with the management of prisons only under exceptional

and compelling circumstances. Taylor v. Freeman, 34 F.3d at 266, 268-70 (4th Cir. 1994).

Indeed, the Tenth Circuit has stated that it “abhor[s] any situation or circumstance requiring

the intervention of the federal courts in matters involving the administration, control and

maintenance by the sovereign states of their penal systems. It is a delicate role assigned

to the federal courts to display that restraint so necessary ‘in the maintenance of proper

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federal-state relations.’“ Battle v. Anderson, 564 F.2d 388, 392 (10th Cir. 1977) (citation

omitted). As such, “sweeping intervention in the management of state prisons is rarely

appropriate when exercising the equitable powers of the federal courts.” Taylor, 34 F.3d

at 269 (citations omitted).

III. Analysis

The Court first considers Defendant's argument concerning exhaustion of

administrative remedies. See Norton v. The City of Marietta, OK, 432 F.3d 1145, 1149-50

(10th Cir. 2005) (stating that exhaustion is mandatory and that the issue of administrative

exhaustion under the Prison Litigation Reform Act (“PLRA”) must be considered before

examining the merits of the plaintiff's claims).

The PLRA requires that a claim regarding prison conditions must first be exhausted

before a prisoner may challenge those conditions by filing suit. Porter v. Nussle, 534 U.S.

516, 520 (2002) (“1997e(a)'s exhaustion requirement applies to all prisoners seeking

redress for prison circumstances or occurrences.”). Specifically, the exhaustion provision

states:

No action shall be brought with respect to prison conditions under [42 U.S.C.

§ 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.

42 U.S.C. § 1997e(a).

“There is no question that exhaustion is mandatory under the PLRA and that

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

Woodford v. Ngo, 548 U.S. 81, 84 (2006) (“Exhaustion is no longer left to the discretion of

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the district court, but is mandatory.”). However, the burden is not on the plaintiff to

sufficiently plead exhaustion or attach exhibits to the complaint proving exhaustion. Jones,

549 U.S. at 215. Rather, the burden is on the defendant to assert the failure to exhaust in

a dispositive motion. Here, Defendant's failure to exhaust defense is analyzed pursuant

to Fed. R. Civ. P. 56. As such, if the evidence presented does not create a genuine issue

of material fact as to whether Plaintiff’s claim against Defendant was properly exhausted,

the Amended Complaint [#9] must be dismissed without prejudice. Arocho v. Lappin, No.

07-cv-02603-REB-KLM, 2011 WL 2292187, at *8 (D. Colo. Apr. 21, 2011) (citing Fields v.

Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (noting that dismissal of

unexhausted claims on summary judgment should be without prejudice)); cf. Kikumura v.

Osagie, 461 F.3d 1269, 1290 (10th Cir. 2006) (recognizing that dismissal of untimely

grievance should be with prejudice), overruled in part on other grounds as recognized in

Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008)).

The prison facility is tasked with the responsibility of establishing grievance

procedures. Jones, 549 U.S. at 218 (“[I]t is the prison's requirements, not the PLRA, that

define the boundaries of proper exhaustion.”). Defendant argues that Plaintiff failed to

exhaust her administrative remedies because she failed to file Step 1, Step 2, and Step 3

grievances for her claim against Defendant, as required by prison regulations concerning

CDOC's grievance procedures. See Ex. D, Aff. of Decesaro [#43-4] ¶¶ 4-12. 

Defendant presented evidence that Plaintiff filed two grievances but that neither one

pertains to Plaintiff’s allegations against Defendant. Id. ¶¶ 13-17. The first grievance

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describes Plaintiff’s complaints after her fall on September 5, 2009, i.e., that her fall was

caused by her over-sized boots and that she was subsequently ignored by infirmary and

hospital staff. Id. ¶ 15. In the second grievance, Plaintiff complains that she was ordered

to work in the dish room after her fall even though she was afraid of working there and

injuring herself again. Id. ¶ 16.

Neither of those grievances names Defendant. Id. ¶ 17. Neither one addresses

Plaintiff’s complaints against Defendant, i.e., that Defendant (or anyone else) failed to enter

work restrictions on Plaintiff’s electronic medical chart or that Defendant ignored kites

submitted by Plaintiff regarding medical treatment. Id. Further, there is no evidence that

Plaintiff submitted a third grievance pertaining to any related topic; thus, even if the first two

grievances could somehow be construed to relate to Plaintiff’s claim against Defendant,

there is no question that the third step of the grievance process was never completed. Id.

¶ 14. The Court therefore finds that there is no evidence that Plaintiff satisfied the

grievance process as to her claim regarding Defendant. Because exhaustion is mandatory

and unexhausted claims may not be brought in court, Jones, 549 U.S. at 211, and because

Plaintiff has failed to present evidence creating a genuine issue of material fact as to

whether this claim against Defendant was properly exhausted, her Eighth Amendment

claim must be dismissed without prejudice. See Arocho, 2011 WL 2292187, at *8 (citing

Fields, 511 F.3d at 1113 (noting that dismissal of unexhausted claims on summary

judgment should be without prejudice)).

Accordingly, the Court recommends that Plaintiff's Eighth Amendment claim against

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Defendant be dismissed without prejudice.

IV. Conclusion

For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion

[#42] be GRANTED.

IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have

fourteen (14) days after service of this Recommendation to serve and file any written

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

assigned. A party's failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop.,

73 F.3d 1057, 1060 (10th Cir. 1996).

Dated: February 26, 2013

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