Roberts v. Barreras

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 16, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

ETH AN ERW IN RO BERTS,

Plaintiff-Appellant,

v. No. 05-2373

LAW RENCE BARRERAS, Senior
Director, Cornell Correctional
Institution/Santa Fe County Detention
C enter; WILFR ED RO M ER O,
Assistant Director, Cornell
Correctional Institution/SFCDC;
ROM ERO, Security Chief, Cornell
Correctional Institution/SFCDC;
HICKM AN, Supervisor, Cornell
Correctional Institution/SFCDC;
CAROLINE KINGSTON, Health
Services/Correctional M edical
Services, Inc./SFC DC ; D O N N A
DEM IN G, Health
Services/Correctional M edical
Services, Inc./SFCDC; STOLLER,
Health Services/Correctional M edical
Services, Inc./SFCD C; ERIN FIRE,
P.A.C., Health Services/Correctional
M edical Services, Inc./SFCDC;
ROBYNN BELL, Administrator,
Health Services/Correctional M edical
Services, Inc./SFCDC;
DESORM EAUX, Administrator,
Health Services/Correctional M edical
Services, Inc./SFCD C; AN NE H ALL,
Quality Assurance, Health
Services/Correctional M edical
Services, Inc./SFCD C; RICK PLO OF,
 Deputy U.S. M arshal, Operations
Supervisor, U.S. M arshal Service;
SAN TA FE CO UN TY, CO RN ELL
CORRECTIO NS, IN C.,
C ORREC TIO N A L M ED IC AL
SERVICES INC.; JOHN/JANE D OES,
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.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D . C t. No. 03-0686 LCS/M CA)

Submitted on the briefs:

Ethan Erwin Roberts, pro se.

Patrick D. Allen and April D. W hite, Yenson, Lynn, Allen & W osick, P.C.,
Albuquerque, New M exico for D efendants-A ppellees Cornell Corrections, Inc.,
Santa Fe County, Lawrence Barreras, and M ajor Romero. Deborah D. W ells,
Kennedy, M oulton & W ells, P.C., Albuquerque, New M exico for D efendant-
Appellee CM S. James R. W ood, M iller Stratvert P.A., Albuquerque, New
M exico for Defendant-Appellee Donna Deming.

Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges. *

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.

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M cCO NNELL, Circuit Judge.

Ethan Erwin Roberts, a federal corrections inmate, filed a claim in the

District of New M exico on June 9, 2003, pursuant to Bivens v. Six Unknown

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleges that

while under the care of the defendants, employees of a private prison in New

M exico, he was exposed to harmful secondhand smoke and denied access to legal

materials in violation of his constitutional rights. The district court dismissed M r.

Roberts’s claim on summary judgment based on a failure to comply with the

statute of limitations and failure to exhaust administrative remedies. W e reverse

and remand.

I. BACKGROUND

M r. Roberts was incarcerated from April 16, 1999 to June 8, 2000, as a

pretrial federal prisoner at the Santa Fe County Adult D etention Center.

According to his complaint, “[a]ll cells and the common day area . . . were

constantly saturated w ith environmental tobacco smoke from 14 to 20 hours a

day,” causing him to “suffer irreparable lung damage.” R. Vol. I, Doc. 1, at 2.

M r. Roberts also alleges that he was forbidden from using the facility’s law

library or materials.

M r. Roberts filed suit in the District of New M exico on June 9, 2003. The

district court dismissed the claims sua sponte at the summary judgment stage,

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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 M exico, the limitation on

personal injury claims is three years. N .M . Stat. Ann. § 37-1-8. The court held

that, in M r. Roberts’s case, the statute began running no later than September

1999, when M r. Roberts, in his own words, first “began to experi[e]nce serious

medical problems and sought treatment.” R. Vol. I, Doc. 5, at 3.

M r. 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. App’x

224 (10th Cir. 2004) (unpublished opinion). W e 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. W e

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 M r. Roberts

had filed administrative grievances sufficient to toll the statute of limitations. In

a detailed affidavit, M r. Roberts claimed that he filed approximately fourteen

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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.

M r. 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 otherw ise.

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. M r. 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. M s. LeCroy-Ortega testified that a review of

the institution’s records revealed that M r. Roberts filed six formal grievances.

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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 M r. 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 M arsh 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, D oc. 88, at 7-8. The court also held that the plaintiff had shown no proof

of administrative exhaustion, finding that M r. Roberts “failed to show that he ever

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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

M r. Roberts had failed to exhaust administrative remedies as required by the

Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). M r. Roberts timely

appealed.

II. DISCUSSION

A. Standard of Review

W e 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). W e 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, answ ers 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

W hat might seem to be one question— whether M r. Roberts had exhausted

his administrative remedies— is really the foundation for two distinct legal issues:

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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 M r. 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

M exico law or federal law provides the appropriate rules— including, presumably,

the setting of the burden of proof— for equitable tolling. Roberts, 109 Fed. App’x

at 226. On remand, the district court seemed to assume without deciding that

federal law governed the standards for tolling. W e disagree. Our Court has held

that “state law governs limitations and tolling issues” in § 1983 cases. Garrett v.

Fleming, 362 F.3d. 692, 697 (10th Cir. 2004); Fratus v. DeLand, 49 F.3d 673,

675 (10th Cir. 1995); Wilson v. Garcia, 471 U.S. 261, 269 (1985) (“[T]he length

of the limitations period, and closely related questions of tolling and application,

are to be governed by state law.”) (superseded by statute on other grounds).

Under New M exico law, “the party claiming that the statute of limitations

should be tolled has the burden of setting forth sufficient facts to support its

position.” City of Carlsbad v. Grace, 966 P.2d 1178, 1181 (N .M . Ct. App. 1998).

Because it is M r. Roberts who seeks equitable tolling, it falls on him to prove that

his claim merits it.

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 This Circuit enunciated its rule for administrative exhaustion under the

PLRA in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003). Steele

adopted the language of the Sixth Circuit, characterizing administrative

exhaustion as a pleading requirement that fell on the plaintiff, rather than as an

affirmative defense. Id. at 1210. As a result, prisoner-plaintiffs w ere required to

“attach[] a copy of the applicable administrative dispositions to the complaint, or,

in the absence of written documentation, describe with specificity the

administrative proceeding and its outcome.” Id. (quoting Knuckles El v. Toom bs,

215 F.3d 640, 642 (6th Cir. 2000). The district court order in this case relies

heavily on Steele in rejecting M r. Roberts’s claims, finding that he “does not

adequately indicate that he has completed the formal grievance process.” R. Vol.

II, Doc. 88, at 9.

The Supreme Court recently rejected our rule in Steele, however, and set

forth a new standard to govern PLRA lawsuits: “failure to exhaust is an

affirmative defense under the PLRA, and . . . inmates are not required to specially

plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 127 S. Ct.

910, 921 (2007); see also Aquilar-Avellaveda v. Terrell, ___ F.3d ___, 2007 W L

646150 (10th Cir. M ar. 5, 2007).

Jones does not spell out the proper burden of proof to use in evaluating

exhaustion claims, but circuits that treated exhaustion as an affirmative defense

prior to Jones have all put the burden of proof on defendants, to the extent that

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they addressed the issue. See M unson v. Norris, 435 F.3d 877, 880 (8th Cir.

2006); Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 681 (4th

Cir. 2005); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ray v. Kertes,

285 F.3d 287, 295 (3d. Cir. 2002); M assey v. Helman, 196 F.3d 727, 735 (7th Cir.

1999). These holdings comport with the common-law premise that the burden of

proving all affirmative defenses rests on the defendant. Patterson v. New York,

432 U.S. 197, 202 (1977). “This common-law rule accords with the general

evidentiary rule that ‘the burdens of producing evidence and of persuasion with

regard to any given issue are both generally allocated to the same party.’” Dixon

v. United States, 126 S.Ct. 2437, 2443 (2006) (quoting 2 John W . Strong,

M cCormick on Evidence § 337, at 415 (5th ed. 1999)). W e therefore hold that the

burden of proof for the exhaustion of administrative remedies in a suit governed

by the PLRA lies with the defendant.

In sum, for equitable tolling of the statute of limitations, the burden lies

with the plaintiff; for administrative exhaustion under 42 U.S.C. § 1997, the

burden lies with the defendants.

C. Statute of Limitations

In our prior opinion in this case, 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.” Roberts, 109 Fed. App’x at

226. On remand, the district court applied the federal tolling standard applicable

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to habeas suits, holding that tolling “is only available w hen an inmate diligently

pursues his claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” R. Vol. II, Doc. 88, at 7 (citing

M arsh 223 F.3d at 1220).

As noted above, however, in a § 1983 suit, state tolling rules, not federal

ones, apply. Fratus, 49 F.3d at 675. That holds both for determining whether the

filing of mandatory grievances requires tolling at all, and, if so, how that tolling

is to be calculated. See Harris v. Hegmann, 198 F.3d 153, 156-59 (5th Cir.

1999).

i. Time Calculation

M r. R oberts w as removed from the Cornell facility on June 8, 2000. He

filed this suit three years and one day later, on June 9, 2003. Under New M exico

law, as under federal law, the day of release is not included when calculating the

statute of limitations, and when the period ends on a Saturday or Sunday, the

deadline is extended to the following M onday. N.M .R.A., 1-006; Fed. R. Civ. P.

6. June 8, 2003 was a Sunday. Therefore, if tolling is found to apply for the

length of M r. Roberts’ stay in the Santa Fe facility, his suit will not be time-

barred.

ii. Equitable Tolling

New M exico has both statutory and equitable tolling provisions. Gathman-

M atotan Architects and Planners, Inc. v. State, 787 P.2d 411, 414 (N .M . 1990).

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The state’s equitable tolling provision applies both before the commencement of

an action and after the filing of a complaint. Gathman-M atotan, 787 P.2d at 414.

“Equitable tolling typically applies in cases where a litigant was prevented from

filing suit because of an extraordinary event beyond his or her control.” Ocana v.

American Furniture Co., 91 P.3d 58, 66 (N.M . 2004). Such “extraordinary

event[s]” include conduct by a defendant that caused the plaintiff to refrain from

filing an action during the applicable period. In re Drummond, 945 P.2d 457, 462

(N .M . Ct. App. 1997); M olinar v. City of Carlsbad, 735 P.2d 1134, 1137 (N .M .

1987). This, then, seems the appropriate provision under w hich to consider M r.

Roberts’s claim that he was prevented from accessing the law library for the

majority of his incarceration.

The complaint and its appendices contain allegations that M r. Roberts was

denied the ability to use the prison’s library or legal materials in order to draft a

complaint against the defendants. M r. Roberts alleges that, after being permitted

to use the library twice in M ay and June, 1999, he repeatedly asked again to use

the library, and was told that “the U.S. M arshals Office has ordered [the

institution] to prohibit all federal prisoners from using the law library.” R. Doc.

1, at 4-B-1. Allegedly, further inquiries obtained similar responses. Appellant

notes that, without the use of the library, he w as unable to “learn the necessary

elements to establish and support his claims and the law and procedures necessary

for him to proceed in a timely manner.” Id. at 4-B-2. In other words, the

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plaintiff’s lack of access to the library kept him from researching the very

question at issue in this appeal: the applicable statute of limitations.

In a federal habeas proceeding, the Antiterrorism and Effective Death

Penalty Act permits tolling only “‘in rare and exceptional circumstances,’” and

thus a claim of insufficient access to relevant legal resources is not enough to

support equitable tolling. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)

(quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). That principle is

not controlling here.

W e are not aware of any New M exico caselaw determining whether an

inmate’s lack of access to a law library is a sufficient basis for equitable tolling.

Nonetheless, even on the heuristic assumption that it is sufficient, we conclude

that M r. Roberts is not entitled to equitable tolling under New M exico law. In

New M exico law, equitable tolling— sometimes referred to as fraudulent

concealment— only applies when the defendant is prevented from filing

throughout the entire length of the statutory period: “[I]f a plaintiff discovers the

injury within the time limit, fraudulent concealment does not apply because the

defendant’s actions have not prevented the plaintiff from filing the claim within

the time period and the equitable remedy is not necessary.” Tomlinson v. George,

116 P.3d 105, 111 (N.M. 2005). W hen M r. Roberts w as released from the Cornell

correctional facility, a full two years remained for him to file suit under the

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statute of limitations. Accordingly, equitable estoppel as a result of denial of

library access is not sufficient to prevent any of his claims from expiring.

iii. Statutory Tolling

The state’s statutory tolling provision, however, does appear to apply to

M r. Roberts’s use of the grievance process. A New M exico statute requires that,

“[w]hen the commencement of any action, shall be stayed or prevented by

injunction order or other lawful proceeding, the time such injunction order or

proceeding shall continue in force shall not be counted in computing the period of

limitation.” N.M . Stat. Ann. § 37-1-12, 1978. Although New M exico has no

caselaw specifically addressing the tolling requirements upon the filing of

mandatory administrative grievances, the language of the statute (“any . . . lawful

proceeding”) seems to encompass mandatory grievance proceedings.

W e cannot agree with the district court that M r. Roberts failed to show that

he filed an administrative grievance on the issue of environmental smoke.

Although neither a copy of the grievance nor a response is part of the record, M r.

Roberts submitted an affidavit describing with specificity the grievances that he

filed and the dates on which he filed them, and adequately explained why he

could provide no paper documentation. He also proffered testimony by fellow

inmates that he filled out and filed forms, along with a report from a Department

of Justice investigation to the effect that the facility “fails to document its actions

in response to inmates’ complaints and fails to let the inmate know how it has

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responded.” The defendants, in their answer, virtually admit that the institution’s

record-keeping is so incomplete that it cannot conclusively deny that M r. Roberts

filed the grievances.

The defendants argue that, even assuming M r. Roberts properly filed an

administrative grievance regarding environmental smoke, the tolling period would

last only 32 days, and Appellant’s claims w ould still be time-barred. This is, in

effect, a request that we affirm on alternative grounds.

Under the New M exico statute, tolling occurs only so long as “such

injunction order or proceeding shall continue in force.” N.M . Stat. Ann. §

37-1-12, 1978. Our habeas corpus precedent concerning the grievance process,

though not binding in the context of § 1983 actions, is instructive. It holds “the

failure to respond to a grievance within the time limits contained in the grievance

policy renders an administrative remedy unavailable.” Jernigan v. Stuchell, 304

F.3d 1030, 1032 (10th Cir. 2002). In order to determine how long M r. Roberts’s

claim should be tolled, we must know how long his grievance remained viable

under the institution’s grievance procedures in effect at the time of M r. Roberts’s

grievance.

The extant grievance forms filled out by the Appellant incorporate the

institution’s grievance policy by reference. They all read, in part, “Policy and

Procedure #30500/30501 explain Cornell’s grievance process. Familiarize

yourself with the guidelines outlined within the policy.” Appellees’ A pp. at 65.

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The forms are all signed and dated by M r. Roberts, and the dates range from

October 6, 1999 to M ay 26, 2000. M r. Roberts alleges, and we accept as true for

the purposes of summary judgment, that he filed a secondhand-smoke grievance

in September 1999.

The Appellees argue the entire grievance process, if properly followed by

the institution, takes no more than thirty-two days. In support of that contention,

Appellees provide a copy of a grievance policy labeled “Policy Number: 246-1.”

Appellee’s App. at 49-55. The corner of the document reads “Revised 11/99.”

Appellees also provide a blank grievance form, identical to the ones filled out by

the Appellant, with one exception. In place of the sentence “Policy and

Procedure #30500/30501 explain Cornell’s grievance process,” it reads “Policy

and Procedure SFCDC 246-1 explain Cornell’s grievance process.” A ppellee’s

App. at 56. Appellees provide an affidavit from Linda Lecroy-Ortega, the former

records custodian at the institution, stating that the above documents “constitute

the policies and procedures pertaining to inmate grievances that were in effect at

the time of the incident which gives rise to Plaintiff’s Complaint.” A ppellee’s

App. at 60.

Appellees provide no explanation, however, of what policy is contained by

forms 30500 and 30501, which were represented as the institution’s grievance

policy on the grievances filled out by the plaintiffs. Nor do they explain how or

why the grievance policy they provided was “Revised 11/99,” as noted on form

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246-1, or how to square that language with M s. Lecroy-Ortega’s assertion that the

grievance policy remained unchanged from April 1999 to June 2000.

The Appellant claims that his grievance was filed under an earlier

grievance process, presumably 30500/30501, which was not provided as part of

the record. M oreover, M r. Roberts claims in an affidavit that, despite multiple

requests, he was never provided with any copy of any grievance policy.

In short, the accounts of the grievance process, and of M r. Roberts’s access

to it, are inconsistent and incomplete. W e may affirm on alternative grounds only

when those grounds are “dispositive, indisputable,” and appear clearly in the

record. Colorado Property Acquisitions, Inc. v. United States, 894 F.2d 1173,

1175 n.5 (10th Cir. 1990). W e find the record unclear as to what grievance

process was in place at the time M r. Roberts allegedly filed his grievance. W e

therefore find it necessary to remand to the district court with instructions to

determine the nature of the grievance process, as conveyed to M r. Roberts, in

September 1999.

E. Exhaustion of Administrative Remedies

Because M r. Roberts had no affirmative requirement to prove exhaustion

for purposes of 42 U.S.C. § 1997, we reverse the district court’s ruling that he had

not exhausted his administrative remedies. Jones, 127 S.Ct. at 921. On remand,

the defendants are entitled to raise exhaustion as an affirmative defense. W e

remind the district court that, under the newly announced rules of Jones,

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administrative exhaustion on one claim does not warrant dismissal of the entire

action. Id. at 923.

III. CONCLUSION

The judgment of the United States District Court for the District of

New M exico is R EV ER SE D and REM AND ED. Appellant’s motion to “File

Previously Stricken Briefs” is denied.

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