Roberts v. Barreras

Decision Date16 April 2007
Docket NumberNo. 05-2373.,05-2373.
PartiesEthan Erwin ROBERTS, Plaintiff-Appellant, v. Lawrence BARRERAS, Senior Director, Cornell Correctional Institution/Santa Fe County Detention Center; Wilfred Romero, Assistant Director, Cornell Correctional Institution/SFCDC; Romero, Security Chief, Cornell Correctional Institution/SFCDC; Hickman, Supervisor, Cornell Correctional Institution/SFCDC; Caroline Kingston, Health Services/Correctional Medical Services, Inc./SFCDC; Donna Deming, Health Services/Correctional Medical Services, Inc./SFCDC; Stoller, Health Services/Correctional Medical Services, Inc./SFCDC; Erin Fire, P.A.C., Health Services/Correctional Medical Services, Inc./SFCDC; Robynn Bell, Administrator, Health Services/Correctional Medical Services, Inc./SFCDC; Desormeaux, Administrator, Health Services/Correctional Medical Services, Inc./SFCDC; Anne Hall, Quality Assurance, Health Services/Correctional Medical Services, Inc./SFCDC; Rick Ploof, Deputy U.S. Marshal, Operations Supervisor, U.S. Marshal Service; Santa Fe County, Cornell Corrections, Inc., Correctional Medical Services Inc.; John/Jane Does, unknown at time of filing of this complaint and having a nexus to the damages of the plaintiff; all parties listed above are sued in their individual capacities and/or official capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.*

McCONNELL, Circuit Judge.

Ethan Erwin Roberts, a federal corrections inmate, filed a claim in the District of New Mexico on June 9, 2003, pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He alleges that while under the care of the defendants, employees of a private prison in New Mexico, he was exposed to harmful secondhand smoke and denied access to legal materials in violation of his constitutional rights. The district court dismissed Mr. Roberts's claim on summary judgment based on a failure to comply with the statute of limitations and failure to exhaust administrative remedies. We reverse and remand.

I. BACKGROUND

Mr. Roberts was incarcerated from April 16, 1999 to June 8, 2000, as a pretrial federal prisoner at the Santa Fe County Adult Detention Center. According to his complaint, "[a]ll cells and the common day area . . . were constantly saturated with environmental tobacco smoke from 14 to 20 hours a day," causing him to "suffer irreparable lung damage." R. Vol. I, Doc. 1, at 2. Mr. Roberts also alleges that he was forbidden from using the facility's law library or materials.

Mr. Roberts filed suit in the District of New Mexico on June 9, 2003. The district court dismissed the claims sua sponte at the summary judgment stage, finding that the statute of limitations had expired before the filing of the plaintiff's claim. A Bivens action is subject to the limitation period for an action under 42 U.S.C. § 1983, and that limitation period is set by the personal injury statute in the state where the cause of action accrues. Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir.1994); Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir.1984). In New Mexico, the limitation on personal injury claims is three years. N.M. Stat. Ann. § 37-1-8. The court held that, in Mr. Roberts's case, the statute began running no later than September 1999, when Mr. Roberts, in his own words, first "began to experi[e]nce serious medical problems and sought treatment." R. Vol. I, Doc. 5, at 3.

Mr. Roberts appealed from the ruling to this Court, and a panel of this Court reversed, finding that the district court had failed to consider equitable tolling when calculating the elapsed time. Roberts v. Barreras, 109 Fed.Appx. 224 (10th Cir. 2004) (unpublished opinion). We noted that "[e]very circuit to address the issue has held that the filing of a mandatory administrative grievance tolls the statute of limitations for § 1983 and Bivens claims." Id. at 226. We remanded to the district court with instructions to consider whether the statute of limitations should have been tolled. Id.

On remand, both parties presented evidence relating to whether Mr. Roberts had filed administrative grievances sufficient to toll the statute of limitations. In a detailed affidavit, Mr. Roberts claimed that he filed approximately fourteen grievance forms. Among them, he attests, were a grievance in June or July of 1999 complaining of lack of access to legal materials and a grievance "no later than early September 1999" complaining of exposure to high levels of secondhand smoke. R. Vol. I, Doc. 69, at 2. He asserts that he received no receipts upon submission of his grievances, nor any written responses to them.

Mr. Roberts also provided a copy of an investigation of the Santa Fe County Adult Detention Center conducted by the United States Department of Justice in 2002. The report noted that:

The County is not providing inmates the tools needed [to challenge their sentences or the conditions of their confinement] through a law library, legal assistance, forms system or otherwise.

The grievance system at the Detention Center is not providing a meaningful path for redress of inmate complaints. . . . [T]he facility fails to document its actions in response to inmates' complaints and fails to let the inmate know how it has responded.

R. Vol. I, Doc. 7, Ex. M, at 5. Mr. Roberts requested an evidentiary hearing, arguing that a number of witnesses could testify to the fact that they had seen him fill out and file grievance forms.

In response, the defendants offered an affidavit from Linda LeCroy-Ortega, the institution's records custodian. Ms. LeCroy-Ortega testified that a review of the institution's records revealed that Mr. Roberts filed six formal grievances. Appellee App. at 59-60, 61-74. Then, in the words of the defendants' brief, "[s]everal weeks later, while searching for documents in an unrelated case, counsel for the SFCADC Defendants located two additional documents which . . . reflected the possibility that Roberts may have filed a seventh administrative grievance." Appellees' Joint Answer Br. at 17. None of the seven grievances produced by the Defendants related to the subjects of Mr. Roberts's suit.

The Defendants conceded that they do not maintain full records of the grievance process: "Given the amount of time that has transpired since these alleged incidents and the retirement of individuals formerly charged with the responsibility for managing these records, it is unclear what the disposition of Roberts' grievances actually was." Id. at 18-19. They also noted that, despite searching their records, they were unable to locate any of the institution's grievance logs or summaries.

The district court again granted summary judgment to the defendants, adopting in full the recommendations of the magistrate judge. The magistrate judge found that equitable tolling did not apply because the Plaintiff did not show that he had, in the language of Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000), "diligently pursue[d] his claims and demonstrate[d] that the failure to timely file was caused by extraordinary circumstances beyond his control." R. Vol. II, Doc. 88, at 7-8. The court also held that the plaintiff had shown no proof of administrative exhaustion, finding that Mr. Roberts "failed to show that he ever filed a grievance related to the subject matter of this lawsuit." Id. at 8. As a result, the court concluded both that the statute of limitations had expired and that Mr. Roberts had failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Mr. Roberts timely appealed.

II. DISCUSSION
A. Standard of Review

We review a district court's grant of summary judgment de novo, using the same standards applied by the district court. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir.2005). We view the evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party, id., and will affirm a grant of summary judgment only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Because legal sufficiency is a question of law, we review the district court's disposition of a summary judgment dismissal de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).

B. Burden of Proof

What might seem to be one question — whether Mr. Roberts had exhausted his administrative remedies — is really the foundation for two distinct legal issues: whether equitable tolling applies to halt the statute of limitations, and whether the Plaintiff met the PLRA's exhaustion requirement before filing suit. Both questions rely on Mr. Roberts's use of the institutional grievance process, and both must be answered in the affirmative in order for his suit to proceed. But although these two issues ask the same question of the same set of facts, they entail different burdens of proof.

In the prior appeal in this case, we left open the question of whether New Mexico law or federal law provides the appropriate rules — including, presumably, the setting of the burden of proof — for equitable tolling. Roberts, 109 Fed.Appx. at 226. On remand, the district court seemed to assume without deciding that federal law governed...

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