FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 9, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SAM ROZENBERG,
Plaintiff - Appellant,
No. 13-1174
v. (D.C. No. 1:12-CV-00431-WJM-CBS)
(D. Colo.)
JUDITH KNIGHT; MIKE PEREZ,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges. **
Plaintiff-Appellant Sam Rozenberg, proceeding pro se, appeals from the
district court’s grant of summary judgment in favor of Defendants-Appellees,
employees of the Colorado Department of Corrections (“CDOC”). Rozenberg v.
Knight, 2013 WL 1320779 (D. Colo. Mar. 29, 2013). Our jurisdiction arises
under 28 U.S.C. § 1291 and we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Background
In this civil rights action, Mr. Rozenberg alleges violations of the Eighth
Amendment while incarcerated at the Arkansas Valley Correctional Facility. 42
U.S.C. § 1983. Mr. Rozenberg’s claims stem from an attack by a fellow inmate
on February 17, 2010. He asserts that Defendants, Lt. Judith Knight and Sgt.
Mike Perez, failed to adequately protect him from and intervene to stop the
attack.
The district court adopted the findings of the magistrate judge and held that
(1) Mr. Rozenberg’s claims against Defendants in their official capacities were
barred by the Eleventh Amendment, (2) claims arising out of events that occurred
before February 15, 2010, were barred by limitations, (3) the claims against
Defendant Perez should be dismissed for failure to exhaust administrative
remedies, and (4) the claims against Defendant Knight should be dismissed for
failure to state a claim upon which relief can be granted. Mr. Rozenberg appeals
findings (1), (3), and (4).
Discussion
A. Waiver of Eleventh Amendment Objection
As the district court noted, Mr. Rozenberg did not object to findings (1) or
(2) in the magistrate judge’s recommendation. As such, his argument on appeal
that the district court erred in granting Defendants Eleventh Amendment
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immunity is barred by our firm waiver rule. See Duffield v. Jackson, 545 F.3d
1234, 1237 (10th Cir. 2008). Although the firm waiver rule does not apply when
the magistrate judge does not inform a pro-se litigant about objecting or when the
interests of justice require consideration of a claim, id., neither exception applies
here.
The magistrate judge clearly advised Mr. Rozenberg that he had 14 days
from service of a copy of the recommendation to object to the proposed findings.
Rozenberg v. Knight, No. 12-cv-00431, 2012 WL 7827998 at *11 (D. Colo. Nov.
19, 2012). Moreover, the “interests of justice” do not favor review here. Mr.
Rozenberg requested and received four separate 14-day extensions before filing
his objections on February 1, 2013—more than two months after the magistrate
issued the recommendation. The magistrate’s finding that suit against the
Defendants in their official capacities is barred by the Eleventh Amendment is not
akin to plain error. Rozenberg, 2013 WL 1320779 at *4.
B. Exhaustion of Administrative Remedies as to Defendant Perez
The district court found that Mr. Rozenberg failed to exhaust his
administrative remedies against Defendant Perez as required by 42 U.S.C.
§ 1997e(a) and dismissed the claims against Perez in his individual capacity
without prejudice. Rozenberg, 2013 WL 1320779 at *3. We review de novo a
district court’s finding of failure to exhaust administrative remedies. Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
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The assault in question occurred on February 17, 2010. The next day, after
complaining to the Inspector General of poor supervision in the kitchen where he
worked, Mr. Rozenberg was removed from kitchen duties. On February 22, Mr.
Rozenberg filed a Step 1 grievance against Defendant Perez, asserting that Perez
was negligent in failing to discipline prisoners who had harassed Mr. Rozenberg. 1
The grievance was denied. Id. On March 31, Mr. Rozenberg filed a Step 2
grievance against Defendant Perez, which was ruled identical to the first
grievance. Mr. Rozenberg attempted but failed to file a Step 3 grievance within
the time limit required by CDOC administrative regulations, thus failing to
exhaust his administrative remedies.
Mr. Rozenberg argues that he is excused from exhaustion of administrative
remedies because the Inspector General alleviated his grievance by removing him
from kitchen duty. A prisoner who obtains all the relief available to him is “not
required to file additional complaints or appeal favorable decisions.” Ross v.
Bernalillo Cty., 365 F.3d 1181, 1187 (10th Cir. 2004). But Mr. Rozenberg did
not receive the relief he requested in his grievances against Defendant Perez,
which sought reprimand and reform of how Perez supervised the kitchen. Thus,
he did not obtain all the relief available to him. As the district court noted, Mr.
Rozenberg’s filing of a Step 1 grievance after the Inspector General removed him
from the kitchen belies his argument that removal from the kitchen constituted all
1
The CDOC grievance process consists of three steps. 1 R. 76-77.
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the relief he could or wanted to achieve. Rozenberg, 2013 WL 1320779 at *3.
C. Failure to State a Claim as to Defendant Knight
Mr. Rozenberg next argues that the district court erred in dismissing his
claims against Defendant Knight. The district court found that Mr. Rozenberg
failed to allege personal participation or supervisory liability under § 1983 for the
alleged Eighth Amendment violations. Rozenberg, 2013 WL 1320779 at *3-4.
We review a district court’s dismissal under Rule 12(b)(6) de novo. Childs
v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). Because Mr. Rozenberg is pro
se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam). However, pro se status “does not relieve the plaintiff of the
burden of alleging sufficient facts on which a recognized legal claim could be
based. . . . [C]onclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Fogle v. Pierson, 435
F.3d 1252, 1263 n.7 (10th Cir. 2006) (quotation omitted).
To state a claim under § 1983, “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Government officials cannot be held liable merely by the fact of their supervisory
position. Grimsley v. McKay, 93 F.3d 676, 679 (10th Cir. 1996). However,
plaintiffs may hold defendants who are supervisors liable under a theory of
supervisory liability by showing: “(1) the defendant promulgated, created,
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implemented or possessed responsibility for the continued operation of a policy
that (2) caused the complained of constitutional harm, and (3) acted with the state
of mind required to establish the alleged constitutional deprivation.” Pahls v.
Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Dodds v. Richardson, 614
F.3d 1185, 1199 (10th Cir. 2010)). Because Mr. Rozenberg alleges violation of
his Eighth Amendment rights, the mental state he must show is “one of deliberate
indifference.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). This
requires that the defendant “actually be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. (internal quotation omitted).
Mr. Rozenberg does not allege that Defendant Knight personally
participated in the attack. He makes clear that she was not present when it took
place. To the extent Mr. Rozenberg seeks to allege supervisory liability, he has
failed to do so. While Mr. Rozenberg alleges in his amended complaint that
Defendant Knight “allowed her staff” to leave prisoners unattended in locked
dining rooms, he does not allege that Knight personally created or implemented
this policy. Moreover, he has not alleged with specificity that Knight was aware
of or deliberately indifferent to a substantial risk of harm to him. While Mr.
Rozenberg states that the offending inmate on prior occasions made jokes about
him and touched him inappropriately in Knight’s presence, he does not allege any
facts supporting an inference that Knight was aware of a particular risk to him on
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February 17, 2010. Nor does he allege Knight consciously disregarded a
substantial risk that night by leaving him unattended; he states that Knight was
tending to a broken dishwasher when the assault occurred. See Tafoya, 516 F.3d
at 916 (“An official’s failure to alleviate a significant risk of which he was
unaware, no matter how obvious the risk or how gross his negligence in failing to
perceive it, is not an infliction of punishment and therefore not a constitutional
violation.”). Because he failed to allege the required mental state, Mr. Rozenberg
has not adequately pleaded supervisory liability under § 1983 or a prima facie
case of violation of his Eighth Amendment rights.
AFFIRMED. Mr. Rozenberg’s request to proceed in forma pauperis on
appeal is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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