Court Opinion: 10th Circuit Court of Appeals Opinion for July 14

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Wright v. Gess

In this Eighth Amendment case, Victoria Wright appealed from a district court order granting Sergeant Robert Gess’ motion for summary judgment. Exercising jurisdiction, the 10th Circuit affirmed.

Wright alleged on Sept. 25, 2018, while she was incarcerated in the Denver Women’s Correctional Facility, Gess injured her when escorting her down a hallway. She claimed that she began to fall and rather than preventing her fall, Gess “threw/pushed [her] [the] remainder of the way onto [the] concrete floor,” severely injuring her. Wright was taken to a hospital where she received stitches for lacerations to her head.

Wright alleged she submitted an informal resolution form to her case manager two days after the incident. On the form, Wright described what happened and requested, among other things, an investigation, additional medical care and monetary compensation. She didn’t receive a response.

Wright then initiated the Colorado Department of Corrections’ grievance process against Gess. Under that process, “[o]ffenders will file Step 1, Step 2, and Step 3 grievances . . . with their case manager,” who must “record the date that he/she received the grievance . . . on the grievance form” and then “forward [it] to the grievance coordinator” for processing. 

According to Wright, she submitted a step-one grievance to her case manager on Oct. 7, 2018, by placing it in the prison mail system. In the grievance, she again described the incident and requested the same relief she had identified in her request for informal resolution.

The grievance regulations require CDOC to respond in writing to a step-one grievance “within 25 calendar days of its receipt by the case manager.” If CDOC doesn’t respond, “the offender may proceed to the next step within five calendar days of the date the response was due.” 

The 25-day deadline for CDOC’s response to Wright’s step-one grievance was Nov. 1, assuming it was received on the same day Wright submitted it. When CDOC didn’t respond, the grievance regulations allowed Wright to proceed to the next step within five calendar days of Nov. 1. 

On Oct. 17, Wright submitted a step-two grievance, and on Oct. 27, she submitted a step-three grievance. Her step-two and step-three grievances largely mirrored her initial grievance. Wright sent handwritten “duplicate cop[ies]” of her grievances to her criminal appellate attorney, Suzan Almony, and said she obtained no response to any of her submissions. On Nov. 11, 2018, Almony mailed the grievance copies to Wright’s case manager but received no response.

On Dec. 26, 2018, Wright filed a pro se civil-rights complaint in federal district court in Colorado against Gess and other CDOC defendants regarding the incident and other matters. She alleged Gess used excessive force by intentionally slamming her onto the concrete floor with “the maximum degree of force [he] could physically generate,” causing her to lose consciousness. She further alleged CDOC failed to investigate the incident and withheld video-surveillance evidence of the incident from Almony. Wright also raised claims about access to a proper Messianic Jewish diet, her vindication in a criminal case alleging she assaulted a corrections officer and her inability to afford postage stamps for non-legal mail.

The district court granted Wright in forma pauperis status, screened her complaint and ordered her to file an amended complaint to address various deficiencies. After Wright filed an amended complaint, the district court sua sponte dismissed all of the claims except her excessive-force claim against Gess.

Gess then moved to dismiss the amended complaint, arguing Wright failed to exhaust her administrative remedies, as CDOC could find no grievances pertaining to his use of force. The district court denied the motion, explaining Wright alleged proper exhaustion in her amended complaint. The district court also ordered the appointment of counsel for Wright.

Gess filed an answer and then moved for summary judgment on the issue of exhaustion. According to Gess, CDOC’s grievance officer could find no grievance filed by Wright against him. Wright opposed summary judgment, asserting through appointed counsel CDOC’s failure to respond to her step-one grievance rendered the grievance process unavailable; her and Almony’s declarations show “that she completed the grievance process according to the terms of the Grievance Policy;” and whether she submitted grievances presented a factual dispute that should be resolved by a jury. In reply, Gess argued there was no exhaustion because, even assuming Wright submitted grievances related to the incident, she failed to follow the grievance process when she submitted her step-two and step-three grievances before CDOC’s step-one response was due.

The district court granted Gess’s motion for summary judgment, concluding Wright failed to exhaust her excessive-force claim. First, the district court explained Wright’s own evidence showed she failed to comply with the grievance process by submitting her step-two grievance before CDOC’s step-one response was due. Next, the district court concluded CDOC’s failure to respond didn’t render the process unavailable because the regulations allow an inmate to proceed to the next step absent of a response.

Wright sought reconsideration but was unsuccessful, the opinion noted. Then she filed this appeal.

The 10th Circuit reviewed de novo an order granting summary judgment, affirming if “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law,” the opinioned cited from the 10th Circuit Court of Appeals decision Cruz v. Farmers Ins. Exch. A prisoner’s failure to exhaust administrative remedies is an affirmative defense, the court wrote, citing the decision Jones v. Bock.

“Where, as here, a defendant moves for summary judgment to test an affirmative defense, the defendant must demonstrate no disputed material fact exists regarding the affirmative defense asserted” the opinion cited from the 10th Circuit Court of Appeals decision Helm v. Kansas. If the defendant satisfies that burden and the plaintiff cannot “then demonstrate with specificity the existence of a disputed material fact,” the defendant’s “affirmative defense bars her claim,” warranting summary judgment. 

Under the circumstances and evidence presented, the 10th Circuit concluded CDOC’s failure to respond to Wright’s grievance didn’t render administrative remedies unavailable.

The 10th Circuit affirmed the district court’s judgment.

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