Zirpolo v. Williams

Decision Date11 June 2020
Docket NumberCivil Action No. 19-cv-2024-WJM-KMT
PartiesDAVID ZIRPOLO, DAVID BANKS, DEMETRIUS HARPER, CLINTON STEWART, and COLORADO SPRINGS FELLOWSHIP CHURCH, Plaintiffs, v. E. WILLIAMS, Warden of FCI Florence, HUGH HIRWITZ, Acting Director of U.S. Bureau of Prisons, N. MORSE, Administrator of the Federal Prison Camp, FCI Florence, in their individual and official capacities, Defendants.
CourtU.S. District Court — District of Colorado

Judge William J. Martínez

ORDER GRANTING DEFENDANTS' EARLY PARTIAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS

This matter is before the Court on Defendants E. Williams, Hugh Hirwitz, and N. Morse's ("Defendants'") Early Partial Motion for Summary Judgment (ECF No. 37) and Motion to Dismiss (ECF No. 36) (the "Motions"). For the reasons set forth below, the Motions are granted.

I. BACKGROUND

Plaintiffs David Zirpolo, David Banks, Demetrius Harper, and Clinton Stewart are inmates of FCI Florence's minimum security prison camp, and members of Plaintiff Colorado Springs Fellowship Church ("Church"). The individual Plaintiffs allege that they have been denied access to Church DVDs in violation of their rights under the First Amendment, the Religious Freedom Restoration Act ("RFRA"), and the Colorado Constitution. (ECF No. 3.) The Church brings related claims. (Id.)

On November 4, 2019, Defendants filed the instant Motions. (ECF Nos. 36, 37.) Defendants seek judgment on certain claims on the basis that Plaintiffs failed to exhaust their administrative remedies before bringing suit, and on other claims because they are time-barred. (ECF No. 37.) Defendants seek dismissal of the remaining claims variously under Rules 12(b)(1), 12(b)(2), and 12(b)(6). (ECF No. 36.) On December 23, 2019, Plaintiffs filed their Responses to the Motions (ECF Nos. 46, 47), and on January 10, 2020, Defendants filed their Replies (ECF Nos. 54, 55).

II. LEGAL STANDARDS
A. Summary Judgment

Summary judgment is appropriate only if 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000). The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

B. Rule 12(b)(1) Motion to Dismiss

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is to test whether the Court has subject-matter jurisdiction to properly hear the case before it. It may take one of two forms: a facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint supported by affidavits and other documents, the Court makes its own factual findings and need not convert the motion to one brought pursuant to Rule 56. Id. at 1003.

C. Rule 12(b)(2) Motion to Dismiss

The purpose of a motion to dismiss under Rule 12(b)(2) is to determine whether the Court has personal jurisdiction over a defendant. The plaintiff bears the burden of establishing personal jurisdiction, and may satisfy this burden by making a prima facie showing that personal jurisdiction over the defendants obtains. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). If the presence or absence of personal jurisdiction can be established by reference to the complaint, the Court need not look further. Id. The plaintiff, however, may also make this prima facie showing by putting forth evidence that, if proven to be true, would support jurisdiction over the defendant. Id. "[A]ny factual disputes in the parties' affidavits must be resolved in plaintiff's favor." Id.

D. Rule 12(b)(6) Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss acause of action for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).

III. ANALYSIS
A. Defendants' Early Partial Motion for Summary Judgment
1. Administrative Exhaustion

Defendants contend that Plaintiffs Zirpolo, Banks, Harper, and Stewart failed to exhaust their administrative remedies before filing suit, and the Court agrees.

The Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust the administrative remedies available to them before challenging conditions of confinement in federal court. 42 U.S.C. § 1997e(a). "[A] court may not excuse a failure to exhaust, even to take [special] circumstances into account." Ross v. Blake, 136 S. Ct. 1850,1856-57 (2016). Defendants bear the burden of establishing that Plaintiffs have failed to exhaust their administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).

A person in custody of the U.S. Bureau of Prisons ("BOP") must comply with BOP's administrative remedy program as set forth in 28 C.F.R. §§ 542.10 et seq. See Garza v. Davis, 596 F.3d 1198, 1204 (10th Cir. 2010). BOP regulations first require that a prisoner seek informal resolution of his or her grievance with prison officials. 28 C.F.R. § 542.13. Assuming that this does not resolve the issue, the prisoner then must submit "a formal written Administrative Remedy Request." Id. § 542.14. The prisoner must subsequently appeal an adverse decision to the Regional Director, and then to the Central Office. Id. § 542.15.

While it appears that Plaintiffs made an effort to comply with BOP's administrative remedy program, it is clear to the Court that Plaintiffs ultimately did not satisfy their obligations to exhaust those remedies. Because "a court may not excuse a failure to exhaust," Defendants are entitled to judgment on all of Zirpolo, Banks, Harper, Stewart's claims. Ross, 136 S. Ct. at 1856-57.

The record reflects that Zirpolo filed a request for informal resolution of his grievance regarding the availability of Church DVDs on July 26, 2018. (ECF No. 47-1 at 3.) He proceeded to file a formal administrative remedy request on August 8, 2018. (Id. at 1.) Zirpolo's formal request was denied on August 23, 2018, on the basis that Zirpolo had failed to "provide a date in which the event, leading to [his] request, occurred." (Id. at 6.) The rejection notice also directed Zirpolo to "resubmit [his] request in proper form within 5 days of the date of this rejection notice." (Id. at 6.)

However, instead of resubmitting his request for administrative remedy to the prison as directed, it appears that on August 30, 2018, Zirpolo appealed the rejection to BOP's North Central Regional Office. (Id. at 5.) The appeal was denied, and the rejection notice states that Zirpolo "must first file a [proper administrative remedy] request through the institution for the warden's review and response before filing an appeal at this level." (Id. at 8.) Again, instead of starting over and resubmitting his request to the warden, Zirpolo appears to have appealed the Regional Office's rejection to the Central Office on September 20, 2018. (Id. at 2.) Unsurprisingly, Zirpolo received another rejection notice from the Central Office, which parrots the rejection notice sent by the Regional Office. (Id. at 7.) The record tells the same story as to Banks, Harper, and Stewart's efforts to exhaust their administrative remedies. (See ECF No. 3-2.)

On this record, the Court concludes there to be no genuine dispute that Plaintiffs failed to meet the exhaustion requirement set forth in 42 U.S.C. § 1997e(a) prior to bringing the claims asserted in this lawsuit. In response to the filing of their initial formal requests, BOP told Plaintiffs that sufficient information had not been provided to enable prison officials to investigate their grievances; Plaintiffs were further instructed that, in order to remedy this defect, Plaintiffs would need to resubmit their formal requests to prison officials and specify dates on which the events giving rise to the grievances occurred. Plaintiffs have offered nothing in evidence to suggest that they did so, and accordingly, there is no genuine dispute that Plaintiffs have failed to properly exhaust their administrative remedies. See Jones, 549 U.S. at 218 ("[T]o properly exhaustadministrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules."); Hinton v. Bowers, 458 F. App'x 755, 756 (10th Cir. 2012) ("[Plaintiff] never appropriately refiled any of these grievances, and this is enough to bar his claims under the PLRA."); Smith v....

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