Free Report and Recommendations - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 01-cv-02299-PSF-BNB F. DAVID SLUSHER, Plaintiff, v. JOHN W. SUTHERS, JOSEPH T. McGARRY, DONALD R. LAWSON, FRANK E. RUYBALID, JUDY JO BULLARD, TEDDY LAMAR LAURENCE, PHYLLIS P. GRISWOULD, MR. DELAYNE TORNOWSKI, JIM DAY, TREVOR WILLIAMS, ANTHONY A. DECESARO, AL ESTEP, SHANE JOHNSON, TOM O' BRIEN, and JOHN RIELLY, Defendants. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter is before me on the State Defendants'Motion to Dismiss [Doc. #233, filed September 20, 2005] (the " Motion to Dismiss" and the State Defendants'Motion for ) Summary Judgment [Doc. #231, filed September 20, 2005] (the " Motion for Sumary Judgment" 1 For the following reasons, I respectfully RECOMMEND that the State Defendants' ). The motions are brought by defendants Joseph McGarry, Judy Bullard, Delayne Tornowski, Richard Howard, Trevor Williams, Don Lawson, Phillis Griswould, Jim Day, Tamara Williams, Teddy Laurence, Edd C. Gillespie, John W. Suthers, Al Estep, Shane Johnson, Tom
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Motion to Dismiss Motion be GRANTED and that the Amended Complaint be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. I further RECOMMEND that the State Defendants' Motion for Summary Judgment be DENIED AS MOOT. I. BACKGROUND On November 29, 2001, F. David Slusher and Kipling Key filed their initial complaint. The complaint asserted seven claims against numerous defendants. On February 15, 2002, several of the defendants were dismissed from the action. Order dated February 15, 2002 (filed February 19, 2002). On December 8, 2003, the district judge dismissed Claims III through VII. Order dated December 8, 2003. On March 31, 2004, plaintiff Kipling Key withdrew from the action. Motion for Voluntary Dismissal, filed March 31, 2004. Because Claim II was brought solely on behalf of Mr. Kipling, it became moot. Consequently, Claim I was the only remaining claim. On April 29, 2004, the plaintiff moved to amend the complaint to reallege Claims III and VI, and to add Claims VIII through XIII. The plaintiff attached to his motion the proposed amended complaint (Doc. # 123). On December 13, 2004, the plaintiff was permitted to amend his complaint to add Claim III; the motion to amend was otherwise denied. On January 20, 2005, I ordered the Clerk of the Court to accept the Amended Complaint for filing, and I clarified that only Claims I and III of the Amended Complaint are extant.

O' Brien, and John Reilly. Only Claims I and III of the Amended Complaint remain pending, and defendants Richard Howard, Tamara Williams, and Edd. C. Gillespie are not named in either Claim I or Claim III. In addition, I note that Anthony DeCesaro is named as a defendant to Claim III, Amended Complaint, p. 7, ¶¶ 22-23, but it appears from the record that Mr. DeCesaro has not been served in this action. 2

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The defendants filed motions for summary judgment on July 26, 2004. The motions were denied as moot because they were filed prior to the Amended Complaint and, therefore, did not address the pending claims. Order issued February 14, 2005 (filed February 15, 2005). The instant motions were filed in response to Claims I and III of the Amended Complaint. Claims I and III of the Amended Complaint contain the following allegations: 1. At all times pertinent to the allegations of the Amended Complaint, the plaintiff was incarcerated by the Colorado Department of Corrections (" DOC" at the Limon Correctional ) Facility (" LCF" On June 7, 1999, the plaintiff was prescribed 400 mg. of ibuprofen to be taken ). three times a day for severe pain in his arm. Amended Complaint, p. 4, ¶¶ 1-4. On June 17, 1999, Dr. Khoi Pham, a neurologist, diagnosed the plaintiff with ulnar neuropathy. Id. at p. 5, ¶ 6. Dr. Pham agreed with the plaintiff that the condition was likely caused by the plaintiff' s concrete bed. Id. 2. On September 23, October 14, and November 23, 1999, the plaintiff was seen by a physical therapist. Id. at ¶ 8. The therapist agreed that the neuropathy was being caused by and exacerbated by the concrete bed, and he recommended that the plaintiff be provided with a more supportive mattress or that the plaintiff be allowed to purchase a more supportive mattress. Id. On January 14, 2000, Dr. Pham diagnosed the plaintiff with bilateral ulnar neuropathy and recommended that the plaintiff be permitted to purchase a more supportive mattress for his bed. Id. at ¶ 9. 3. On April 25, 2000, the plaintiff was seen by the LCF physician, Dr. Anita Bloor. Id. at ¶ 10. Dr. Bloor informed the plaintiff that her request for a supportive mattress had been refused by the LCF administration. Id. She provided the plaintiff with a wedge pillow to see if it would 3

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s help his condition. Id. The wedge pillow helped with the plaintiff' arm pain, but exacerbated the pain in his back. Id. 4. In May 2000, the plaintiff was notified that the pharmacy would no longer supply him with ibuprofen; he now had to purchase his ibuprofen from the canteen. Id. at p. 6, ¶ 11. He was forced to go without ibuprofen for two weeks until he was able to obtain it from the canteen. Id. at ¶ 13. The canteen would not sell the plaintiff sufficient amounts of ibuprofen to meet the prescribed dose. Id. at ¶ 14. 5. The plaintiff submitted grievances on the ibuprofen issue. Id. at ¶ 15. Defendants Griswould, Laurence, Bullard, and Ruybalid responded to the grievances. Id. These defendants did not investigate the matter. Id. Instead, they acquiesced in and approved of the denial of the plaintiff' ibuprofen. Id. They also suggested that the plaintiff supplement his ibuprofen with s medications that had been proven to be ineffective for the plaintiff' pain and are dangerous if s mixed with ibuprofen. Id. 6. On May 31, 2000, the plaintiff wrote letters to defendants Suthers and McGarry, informing them of his problems. Id. at ¶ 16. He received a response from Suthers through defendant Bullard, wherein Suthers acquiesced in the denial of ibuprofen and told the plaintiff he could purchase all of his needed medications from the canteen. Id. He did not receive a response from McGarry. Id. 7. On June 12, 2000, Dr. Bloor ordered an eggcrate mattress for the plaintiff " in fulfillment of the recommendations from Dr. Pham." Id. at ¶ 17. Three days later, Colorado Access denied Dr. Bloor' order. Id. at pp. 6-7, ¶ 17. Dr. Bloor informed the plaintiff of the s denial in mid-August. Id. at p. 7, ¶ 17. She further informed the plaintiff that he could appeal 4

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Colorado Access' denial of the mattress; that the appeal was the only administrative remedy available to him; and that the grievance procedure was not available to appeal the matter. 2 Id. The plaintiff appealed the matter to Colorado Access, but did not receive a response. Id. at ¶ 18. Dr. Bloor also appealed the matter to Colorado Access, but the appeal was denied. Id. 8. Dr. Bloor informed the plaintiff that he would not be permitted to purchase a mattress on his own, and the LCF Management Team prohibited the plaintiff from purchasing a mattress. Id. at ¶ 19. The plaintiff wrote letters to defendants Day and Estep " informing them of the facts in this matter, and requesting relief." Id. at ¶ 21. Relief was denied. Id. The plaintiff filed grievances against LCF Housing Officers regarding his inability to purchase a mattress. Id. Defendants Johnson, Tornowski, and DeCesaro responded to the grievances. Id. at ¶ 22. Defendants Bullard, Laurence, Griswould, Tornowski, Day, Williams, Johnson, Estep, O' Brien, and Reilly were " each part of the LCF Management Team that has refused to provide the physician-ordered supportive mattress or allow me to purchase same." Id. at ¶ 24. 9. As a direct result of the defendants' denial of treatment, the plaintiff' condition spread s to other parts of his body. Id. at ¶ 23. 10. Defendants Suthers, McGarry, and Lawson " created the health care directive and other policies, guidelines and procedures within the Colorado Department of Corrections, which led to the denial of [the plaintiff' prescribed, medically-necessary medications and mattress . . to s] effect cost savings." Id. at ¶ 25.

The plaintiff was not permitted to file a grievance concerning Claim III to the extent it was asserted against Colorado Access because Colorado Access is not a DOC employee. Complaint, p. 25; Response to State Defendants'Motion to Dismiss (the " Response" p. 2. ), Defendant Colorado Access was dismissed from this action on February 19, 2002. Order to Dismiss in Part and to Draw Case to a District Judge and to a Magistrate Judge, p. 5. 5

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Claim I asserts that, in violation of the Eighth Amendment, the defendants were deliberately indifferent to the plaintiff' serious medical needs when the defendants withheld a s " physician-prescribed"medication from him. Id. at p. 4. Claim III alleges that the defendants were deliberately indifferent to his medical needs when they denied him a " physician-ordered supportive mattress." Id. II. THE STATE DEFENDANTS'MOTION TO DISMISS A. Standard of Review I have construed the Motion to Dismiss (the " Motion" as a motion for summary ) judgment, and I have ordered the plaintiff to respond to the motion pursuant to Rule 56, Fed. R. Civ. P. Minute Order issued October 3, 2005. In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion, and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). Rule 56(c), Fed.R.Civ.P., provides that summary judgment may be rendered if 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." A genuine issue of material fact exists " the if evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 447 U.S. 317, 323 6

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(1986). The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Id. at 324. In addition, because the plaintiff is proceeding pro se, I must liberally construe his pleadings. Haines v. Kerner, 104 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). B. Analysis The defendants assert that the Amended Complaint must be dismissed because the plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (the " PLRA" 3 Because the plaintiff' claims challenge prison conditions, they are governed by ). s the PLRA. 42 U.S.C. § 1997e(a). The PLRA provides: No action shall be brought with respect to prison conditions under section 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. Id. The Supreme Court has interpreted section 1997e(a) to require, prior to filing a lawsuit, that the inmate exhaust all available administrative remedies whether the inmate is seeking injunctive relief, monetary damages, or both. Booth v. Churner, 532 U.S. 731 (2001). The Supreme Court has stated: " [W]e stress the point . . . that we will not read futility or other

The Tenth Circuit Court of appeals does not characterize exhaustion as an affirmative defense that can be waived by the defendant. Steele v. Federal Bureau of Prisons, 335 F.3d 1204, 1209 (10th Cir. 2003). Rather, exhaustion may be raised and resolved at any time during the litigation. Id. 7

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exceptions into statutory exhaustion requirements where Congress has provided otherwise." Id. at 741 n.6. The Tenth Circuit Court of Appeals reiterated in Steele v. Federal Bureau of Prisons, 335 F.3d 1204 (10th Cir. 2003), the importance of the exhaustion requirement: The administrative review by correction officials is intended to reduce the quantity and improve the quality of prisoner suits. It should correct problems in meritorious cases, filter out some frivolous claims, and, in any event, facilitate adjudication by clarifying the contours of the controversy. Under the plain statutory language and the Supreme Court case law, the substantive meaning of § 1997e(a) is clear: resort to a prison grievance process must precede resort to a court. Id. at 1207 (citations and internal quotations omitted). Section " 1997e(a) gives prisons and their officials a valuable entitlement--the right not to face a decision on the merits." Id. at 1212-13 (emphasis in original) (citations and internal quotations omitted). Thus, the plaintiff may not bring this action unless he has exhausted all of the administrative remedies available to him through the DOC. Under the DOC grievance procedures, an inmate must first seek to resolve the matter informally through discussion with an appropriate staff member. Cover Page in Accordance with Rule V.H.6, filed May 22, 2006, second consecutive attachment, p. 4, § C1.4 The inmate may then file a formal grievance no later than thirty days after he knew or should have known of the

On April 28, 2006, I ordered the defendants to provide the Court with copies of the grievance procedures that were in effect at the time the plaintiff filed his grievances. In response, the defendants submitted a document entitled " Cover Page in Accordance with Rule V.H.6"to which they attached two copies of Administrative Regulation 850-04, the DOC' grievance s procedure. The first copy was effective October 1, 1999, and the second copy was effective August 1, 2003. Both copies are identical as to the informal and formal grievance procedures that I identify. For ease of reference, I cite only to the first copy. 8

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facts giving rise to the grievance or within thirty days after final action was decided which might result in a grievance being initiated, unless granted an extension of time after demonstrating that it was not feasible to file within the initial period. Id. at p. 4, § C2. The formal grievance procedure consists of three steps. First, the inmate must submit a Step 1 grievance to an appropriate staff member. Id. at § C4a. If not satisfied with the Step 1 response, the inmate may elect to proceed with a Step 2 grievance to the facility Administrative Head, appropriate Director, Health Services Director, or their designee. Id. at p. 5, § C4b. If the inmate concludes that the grievance has not been satisfactorily resolved at Step 2, he may submit a Step 3 grievance to the Grievance Officer. Id. at p. 5, § C4c. The defendants assert that the plaintiff failed to exhaust his administrative remedies because he did not name in his grievances many of the defendants that are named in this action. The Tenth Circuit Court of Appeals has not determined whether the PLRA requires an inmate to name each defendant in the grievance procedure in order to exhaust administrative remedies. Several other circuits, however, have addressed the issue. These circuits have formulated varied approaches to determine whether a grievance contains sufficient information to constitute exhaustion. The Sixth Circuit requires an inmate to " a grievance against [each] person he file ultimately seeks to sue"in order to assure " envisioned under the PLRA, that the prison as administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court." Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). The Eleventh Circuit found that the policies underlying the exhaustion requirement are best furthered by requiring " a prisoner provide with his grievance all relevant information that 9

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reasonably available to him." Brown v. Sikes, 212 F.3d 1205, 1208 (11th Cir. 2000).5 The Eleventh Circuit reasoned that the policies underlying the exhaustion requirement are not " furthered by requiring a prisoner to do anything more than that--by shutting the courthouse door to a prisoner who, at the time he filed his grievance, did not know and could not readily ascertain the identify of the individuals responsible for the alleged injury or deprivation." Id. The Third and Seventh Circuits look to the requirements of the prison' grievance s procedure to determine how much information an inmate must provide in his grievance. Spruill v. Gillis, 372 F.3d 218, 233 (3rd Cir. 2004); Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002). When the prison' grievance procedure is silent, as it is in this case,6 the Seventh Circuit has found s that " grievance suffices if it alerts the prison to the nature of the wrong for which redress is a sought." Strong, 297 F.3d at 649.

The Eleventh Circuit identifies " seven important policies favoring an exhaustion of remedies requirement" : (1) to avoid premature interruption of the administrative process; (2) to let the agency develop the necessary factual background upon which decisions should be based; (3) to permit the agency to exercise its discretion or apply its expertise; (4) to improve the efficiency of the administrative process; (5) to conserve scarce judicial resources, since the complaining party may be successful in vindicating rights in the administrative process and the courts may never have to intervene; (6) to give the agency a chance to discover and correct its own errors; and (7) to avoid the possibility that frequent and deliberate flouting of the administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. Id. (internal quotations and citations omitted). Cover Page in Accordance with Rule V.H.6, filed May 22, 2006, second and third consecutive attachments. 10
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Citing Strong, the Second Circuit has held that in order to exhaust administrative remedies, an inmate " must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Johnson v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004). The Fifth Circuit also looks to the prison system' grievance procedure for guidance as to s how much detail the inmate is required to provide in a grievance. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). However, the Fifth Circuit first looks to the purpose of the exhaustion requirement: In deciding how much detail is required in a given case, we believe that a court must interpret the exhaustion requirement in light of its purposes, which include the goal of giving officials " time and opportunity to address complaints internally,"Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Thus, a grievance should be considered sufficient to the extent that the grievance gives officials a fair opportunity to address the problem that will later form the basis of the lawsuit. Further, as a practical matter, the amount of information necessary will likely depend to some degree on the type of problem about which the inmate is complaining. If an inmate claims that a guard acted improperly, we can assume that the administrators responding to the grievance would want to know-and a prisoner could ordinarily be expected to provide-details regarding who was involved and when the incident occurred, or at least other available information about the incident that would permit an investigation of the matter. In contrast, a grievance in which an inmate says that his cell is habitually infested with vermin, or that the prices in the commissary are too high, could adequately alert administrators to the problem whether or not the grievance names anyone. Id. at 516-17. I find that the plaintiff has failed to exhaust his administrative remedies under all of these approaches.

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1. Claim I Claim I addresses the plaintiff' failure to obtain adequate pain medication. The plaintiff s states that copies of his grievances regarding Claim I are found in Exhibit 12 of his Motion for Summary Judgment (Doc. #46). Response to State Defendants'Motion to Dismiss (the " Response" p. 2. ), Exhibit 12 reveals that the plaintiff filed an informal grievance regarding the medication issue on May 30, 2000. Motion for Summary Judgment, filed August 30, 2002, Exhibit 12, p.1. s denying me any further access to the prescribed Id. The plaintiff' informal grievance states that " medication, and suggesting that I needed to purchase it from the canteen"is a violation of law. The informal grievance further states that the plaintiff will have to wait two weeks before he can get any medication from the canteen, and that he can only get a fraction of the medication that he needs from the canteen. Id. The informal grievance does not name any of the defendants. The plaintiff filed a Step I grievance to the Warden on June 20, 2000. Id. at p. 2. The Step I grievance states that the plaintiff' medication must be provided free of charge; he was s forced to do without any pain medication for two weeks; and the canteen has refused to grant his full request for the medication. Id. The Step I grievance does not name any defendants. Defendant Laurence responded to the grievance. Id. at p. 3. The plaintiff filed a Step II grievance on June 25, 2000. Id. at p. 4. The Step II grievance states that Mr. Laurence' response to his Step I grievance " s demonstrates not only his incompetence, but also his untruthfulness." Id. The plaintiff disagrees with Laurence' statement s that a policy had been posted regarding the dispensation of medication. The plaintiff accuses

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Laurence of deliberate indifference for suggesting that he supplement his Motrin with medications he cannot tolerate and medications that are not supposed to be taken with Motrin. The plaintiff filed a Step III grievance on July 9, 2000. Id. at p. 6. In his Step III grievance, the plaintiff complains that unspecified persons informed him that he could purchase additional Motrin; he was not allowed to purchase sufficient dosages of Motrin; he was not informed in advance that his medication would be discontinued; and he was still in substantial pain. Id. Although the Step III grievance repeatedly refers to " they"and " them,"it does not name any specific person or persons. The identity of " they"or " them"is not clear from the context of grievance. The plaintiff is suing defendants Suthers, McGarry, and Lawson because they " created the health care directive and other policies, guidelines and procedures within the Colorado Department of Corrections, which led to the denial of [the plaintiff' prescribed, medicallys]
7 necessary medications and mattress . . to effect cost savings." The plaintiff' grievances do not s

inform prison officials that defendants Suthers, McGarry, and Lawson created health care policies that denied " prescribed, medically-necessary medications"in order to save money for the prison. Indeed, the allegations in the grievances are premised on an entirely different legal theory against entirely different prison officials. Consequently, the grievances did not alert prison officials to the nature of the wrongful behavior he now alleges. Moreover, the plaintiff has not shown that he

In his deposition dated June 9, 2004, the plaintiff states that he is suing defendants Suthers, McGarry, and Lawson because they did not correct a misinterpretation of their medication policy--not because they created the policy to effect cost savings. Motion, first consecutive attachment, p. 170, ll. 1-11. The plaintiff did not assert these allegations in his Amended Complaint, nor has he sought leave to amend the Amended Complaint to add these allegations. Therefore, in my analysis of the Motion, I do not consider the allegations made by the plaintiff in his deposition. 13

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" could not reasonably have known the identity"of these defendants or " information relating to his claims against them." Mohamed v. Conner, No. 03-cv-3197, 2004 WL 1047925 at *6 (D.Kan. May 7, 2004). Under the most lenient of circuit approaches, the information in the plaintiff' s grievances would not be sufficient to constitute exhaustion as to defendants Suthers, McGarry, and Lawson. See Spruill, 372 F.3d at 233; Strong, 297 F.3d at 649; Testman, 380 F.3d at 697. See also Lopez v. Ortiz, No. 04-cv-1790, 2005 WL 2304733 (D.Colo. Sept. 21, 2005); Mohamed v. Conner, No. 03-cv-3197, 2004 WL 1047925 (D.Kan. May 7, 2004). Similarly, the plaintiff' grievances do not address wrongful denial of grievances or failure s to investigate grievances.8 The plaintiff is suing defendants Griswould, Laurence, Bullard, and Ruybalid because they denied his grievances and because they did not investigate his allegations, however. Therefore, the plaintiff' grievances do not suffice to exhaust his administrative s remedies as to these claims. 2. Claim III Claim III addresses the plaintiff' inability to obtain a " s physician-ordered supportive mattress." The plaintiff states that copies of his grievances regarding Claim III are found in Exhibit 29 of his Amended Complaint (Doc. #123).9 Response to State Defendants'Motion to Dismiss (the " Response" p. 2. ),

I note that the plaintiff complains in his Step II grievance that Laurence wrongfully denied his Step I grievance. However, he did not pursue this issue in an informal, Step I, or Step III grievance. Therefore, he did not fully exhaust his administrative remedies as to Laurence' s alleged wrongful denial of his Step I grievance. The plaintiff appealed Colorado Access' denial of his mattress request. Response, p. 2. Copies of the appeal are found in Exhibit 18 of his Motion for Summary Judgment (Doc. # 46) and Exhibit 4 of his Response to Defendants' Motion to Dismiss (Doc. # 48). Because Colorado Access is no longer a defendant in this case, I do not consider these exhibits. 14
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Exhibit 29 does not contain a copy of an informal grievance regarding the mattress issue. Amended Complaint (Doc. #123), Exhibit 29. It does contain copies of Step I through Step III grievances regarding the mattress issue, however. Id. In his Step I grievance, filed on March 31, 2004, the plaintiff states that two doctors recommended that he be provided, or that he be allowed to purchase, a more supportive mattress. He complains that he was not provided a new mattress until the summer of 2003; the new mattress was of poor quality and lost its supportiveness after eight months; and his condition and pain have worsened. Id. at first consecutive page. The plaintiff requests that he be provided or allowed to purchase a supportive mattress. The Step II grievance was filed on April 11, 2004. Id. at second consecutive page. The Step II grievance thanks Captain Shane Johnson for his polite, but inadequate response to the Step I grievance. Id. The plaintiff then states that replacing his old mattress with another similar mattress will not solve the problem; the mattress must be more supportive. Id. He again requests to be provided with a supportive mattress " capable of withstanding years of use, adequate to my serious medical needs." Id. The plaintiff filed a Step III grievance on April 25, 2004. Id. at third consecutive page. The Step III grievance states that a more supportive mattress was ordered by medical personnel and that his current mattress is inadequate. Id. He requests immediate relief. Id. The plaintiff is suing defendants Day and Estep on the basis that he informed them of the matter and they denied relief. The plaintiff is suing defendants Johnson, Tornowski, and DeCesaro for denying his grievances on the issue. Defendants Bullard, Laurence, Griswould, Tornowski, Day, Williams, Johnson, Estep, O' Brien, and Reilly are being sued because they were 15

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" each part of the LCF Management Team that has refused to provide the physician-ordered supportive mattress or allow me to purchase same." Defendants Suthers, McGarry, and Lawson are being sued because they " created the health care directive and other policies, guidelines and procedures within the Colorado Department of Corrections, which led to the denial of [the plaintiff' prescribed, medically-necessary medications and mattress . . to effect cost savings." s] As with Claim I, the plaintiff' grievances regarding Claim III do not provide sufficient s information to alert prison officials that his grievances were being wrongfully denied. Nor do they provide sufficient information that defendants defendants Suthers, McGarry, and Lawson created a policy that led to the denial of the plaintiff' mattress in effort to save money for the prison. s Therefore, the plaintiff' grievances do not suffice to exhaust his administrative remedies as to s these claims under any of the circuit courts' approaches. The plaintiff has failed to create a material fact dispute regarding whether he exhausted all of the claims he brings in this court. Therefore, the Amended Complaint must be dismissed without prejudice: [T]he policies underlying the PLRA point toward a requirement of total exhaustion. In the PLRA context, a total exhaustion rule would encourage prisoners to make full use of inmate grievance procedures and thus give prison officials the first opportunity to resolve prisoner complaints. It would facilitate the creation of an administrative record that would ultimately assist federal courts in addressing the prisoner's claims. Moreover, it would relieve district courts of the duty to determine whether certain exhausted claims are severable from other unexhausted claims that they are required to dismiss. Prisoners suing under § 1983, no less than habeas petitioners, can be expected to adhere to this straightforward exhaustion requirement. Finally, the total exhaustion rule will not increase the burden on federal courts, but will instead tend to avoid at least some piecemeal litigation.

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The policies of the PLRA thus strongly support a reading of that statute that requires inmates to exhaust fully all of their claims before filing in federal court. If a prisoner does submit a complaint containing one or more unexhausted claims, the district court ordinarily must dismiss the entire action without prejudice. Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004) (citations omitted). II. THE STATE DEFENDANTS'MOTION FOR SUMMARY JUDGMENT The Motion for Summary Judgment seeks summary judgment on the merits of Claims I and III. Because I recommend that the Amended Complaint be dismissed for failure to exhaust administrative remedies, the Motion for Summary Judgment is moot. I respectfully RECOMMEND that the Motion for Summary Judgment be DENIED AS MOOT. I11. CONCLUSION For all of these reasons, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED and that the Amended Complaint be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. FURTHER IT IS RECOMMENDED that the Motion for Summary Judgment be DENIED AS MOOT. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party' failure to serve and file specific, written objections waives s 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. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party' objections to this recommendation must be both timely and specific to preserve an issue s 17

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for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Dated June 6, 2006. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge

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