Ybarra v. Dick

Appellate Case: 21-1273 Document: 010110743146 Date Filed: 09/22/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 22, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WESTLEY YBARRA,

Plaintiff - Appellant,

v. No. 21-1273
(D.C. No. 1:19-CV-01828-PAB-NRN)
ROBERT DICK, Case Manager III, (D. Colo.)
Sterling Correctional Facility; JOHN/JANE
DOE, #1, Intelligence Officer, Sterling
Correctional Facility; JOHN/JANE DOE,
#2, Associate Warden, Sterling
Correctional Facility; JOHN/JANE DOE,
#3, Warden, Sterling Correctional Facility;
JOHN/JANE DOE, #4, Intelligence
Officer, Colorado State Penitentiary;
JOHN/JANE DOE, #5, Manager III,
Colorado State Penitentiary; JACKIE
MCCALL, Associate Warden, Colorado
State Penitentiary; STEVE OWENS,
Warden, Colorado State Penitentiary; EVA
LITTLE, Lieutenant, Colorado Department
of Corrections,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
Appellate Case: 21-1273 Document: 010110743146 Date Filed: 09/22/2022 Page: 2

_________________________________

Westley Ybarra, proceeding pro se,1 appeals the district court’s dismissal of

this 42 U.S.C. § 1983 action. The district court found the mandatory administrative

exhaustion provisions of the Prison Litigation Reform Act of 1995 (PLRA) applied

and rejected Mr. Ybarra’s arguments that he had no available administrative

remedies. It therefore dismissed the case because Mr. Ybarra failed to exhaust his

available administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

I. Background

Mr. Ybarra is an inmate housed by the Colorado Department of Corrections

(CDOC). Before he entered CDOC custody, Mr. Ybarra testified against a member

of the 211 gang in a murder trial. While in CDOC custody, members of the 211 gang

allegedly assaulted him several times over the course of about a decade.

During this timeframe, Mr. Ybarra “submitted informal grievances to CDOC

officials requesting that he be placed in protective custody and was told by CDOC

personnel that there was nothing they could do.” R. at 70. Mr. Ybarra never filed a

formal grievance relating to the CDOC’s failure to protect him from harm at the

hands of other inmates. See id. at 64–67, 70. He brought this § 1983 action,

1
Because Mr. Ybarra proceeds pro se, we construe his filings liberally but do
not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).

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claiming various CDOC employees violated his constitutional rights by failing to

protect him from harm at the hands of other prisoners.2

Various defendants moved to dismiss the case because Mr. Ybarra failed to

exhaust his administrative remedies. The magistrate judge converted the motion into

a motion for summary judgment and recommended that it be granted. Mr. Ybarra

objected to the magistrate judge’s recommendation. The district court overruled Mr.

Ybarra’s objections and adopted the magistrate judge’s recommendation in the order

on appeal.

II. Discussion

A. Standard of Review

“We review the grant of summary judgment de novo . . . .” Est. of Beauford v.

Mesa Cnty., 35 F.4th 1248, 1261 (10th Cir. 2022). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“While the movant bears the burden of showing the absence of a genuine issue of

material fact, the movant need not negate the non-movant’s claim, but need only

point to an absence of evidence to support the non-movant’s claim.” Wolf v.

Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). “Once the moving

party has identified a lack of a genuine issue of material fact, the nonmoving party

has the burden to cite to specific facts showing that there is a genuine issue for trial.”

2
CDOC officials transferred Mr. Ybarra to protective custody before he filed
this suit.
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May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (internal quotation marks

omitted). “The summary judgment standard requires us to construe the facts in the

light most favorable to the nonmovant and to draw all reasonable inferences in its

favor.” Est. of Beauford, 35 F.4th at 1261.

“We also review de novo the finding that [Mr. Ybarra] failed to exhaust his

administrative remedies.” May, 929 F.3d at 1234 (internal quotation marks omitted).

B. Legal Background

The PLRA provides “[n]o 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.” 42 U.S.C. § 1997e(a). The PLRA’s

exhaustion requirement is mandatory; an inmate may not bring any action “absent

exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S.

632, 638 (2016); see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA’s

exhaustion requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.”). To exhaust administrative remedies an

inmate “must complete the administrative review process in accordance with the

applicable procedural rules—rules that are defined not by the PLRA, but by the

prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (citation

and internal quotation marks omitted). And “[a]n inmate who begins the grievance

process but does not complete it is barred from pursuing a § 1983 claim under [the]

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PLRA for failure to exhaust his administrative remedies.” Thomas v. Parker, 609

F.3d 1114, 1118 (10th Cir. 2010) (internal quotation marks omitted).

“The only limit to § 1997e(a)’s mandate is the one baked into its text: An

inmate need exhaust only such administrative remedies as are ‘available.’” Ross,

578 U.S. at 648. “Although a defendant carries the burden of proving that the

plaintiff did not exhaust his administrative remedies, once the defendant has carried

that burden, the onus falls on the plaintiff to show that remedies were unavailable to

him.” May, 929 F.3d at 1234 (brackets and internal quotation marks omitted). The

Supreme Court considers three types of administrative remedies to be unavailable,

“although [they are] officially on the books”: (1) a procedure hindered by officers’

inability or unwillingness to provide relief, (2) an administrative scheme “so opaque

that it becomes, practically speaking, incapable of use,” and (3) a remedy thwarted by

prison administrators’ “machination, misrepresentation, or intimidation.” Ross,

578 U.S. at 643–44.

C. Analysis

Mr. Ybarra does not dispute the district court’s finding that the PLRA’s

exhaustion provision, 42 U.S.C. § 1997e(a), required him to exhaust his available

administrative remedies before filing suit. Nor does he dispute the district court’s

finding that he “did not use the required grievance procedures to complain

administratively about the claims he makes in this lawsuit.” R. at 79. But he argues

§ 1997e(a) does not bar his suit because (1) the CDOC did not countenance use of the

grievance system for seeking his desired remedy of a transfer to protective custody,

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(2) he followed the informal procedures required to request protective custody, and

(3) he should be excused from the exhaustion requirement because CDOC officials

engaged in machinations designed to deceive him into believing he had no available

administrative remedies.

To support his first argument, Mr. Ybarra asserts he wanted a transfer to

protective custody. And he contends that because CDOC grievance procedures do

not apply to transfer requests, the grievance procedures were not an applicable

avenue for exhausting his claims. We reject this argument.

Each claim in the amended complaint asserted officials were “deliberately

indifferent to [Mr. Ybarra’s] security issues and failed to protect him from harm at

the hands of other prisoners in violation of the cruel and unusual punishment clause

of the Eighth Amendment to the United States Constitution.” R. at 28, 30, 32–34, 37.

It is undisputed that CDOC grievance procedures allowed Mr. Ybarra to “file a

grievance for placing him in an unsafe living condition or failing to protect him.” Id.

at 87 (citing id. at 66). We therefore agree with the district court that because Mr.

Ybarra’s suit “allege[d] failure to protect and placement in unsafe living conditions,

which are grievable issues,” “the grievance procedure was available to [Mr. Ybarra]

and he was required to administratively exhaust before bringing suit.” Id. at 87–88.

This result obtains even though Mr. Ybarra could not seek his preferred

remedy of transfer to protective custody through the grievance procedure. See Booth

v. Churner, 532 U.S. 731, 734 (2001) (holding inmate had to “complete a prison

administrative process that could provide some sort of relief on the complaint stated,

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but no money,” even though the inmate’s suit sought only money damages); Jernigan

v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“Even where the ‘available’

remedies would appear to be futile at providing the kind of remedy sought, the

prisoner must exhaust the administrative remedies available.”). “[O]ne of the

purposes of the exhaustion requirement is to force an inmate to go through the

administrative process which in turn might afford prison officials the opportunity to

take some corrective action that would preclude litigation.” Beaudry v. Corr. Corp.

of Am., 331 F.3d 1164, 1167 (10th Cir. 2003). Had Mr. Ybarra attempted to grieve

the CDOC’s alleged failure to put him in safe living conditions or protect him from

an assault by the 211 gang, it is reasonable to expect that CDOC officials could have

applied their professional expertise to devise a solution to the problem. See id. at

1167 (“[T]he fact that prison authorities did have the power to render some of the

relief requested by plaintiffs puts this case squarely within the ambit of Booth.”).

Mr. Ybarra next argues his informal requests for protective custody satisfied

the exhaustion requirement. We disagree. “[E]xhaustion of administrative remedies

. . . means using all steps that the agency holds out.” Woodford v. Ngo, 548 U.S. 81,

90 (2006) (emphasis added); see also Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.

2010) (“[A]n inmate may only exhaust by properly following all of the steps laid out

in the prison system’s grievance procedure.” (emphasis added)). As just discussed,

the CDOC’s formal grievance procedures provided Mr. Ybarra with an available

avenue for seeking redress beyond seeking transfer to protective custody. See Booth,

532 U.S. at 736 (“[A] remedial scheme is ‘available’ where . . . the administrative

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process has authority to take some action in response to a complaint, but not the

remedial action an inmate demands to the exclusion of all other forms of redress.”).

And because Mr. Ybarra did not pursue that avenue, he did not exhaust his available

remedies. Cf. Ross v. Cnty. of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004)

(“When there is no possibility of any further relief, the prisoner’s duty to exhaust

available administrative remedies is complete.”), abrogated on other grounds by

Jones v. Bock, 549 U.S. 199 (2007).

Mr. Ybarra finally argues CDOC officials “‘thwart[ed] [him] from taking

advantage of [the] grievance process through machination,’” Aplt. Opening Br. at 3c

(quoting Ross, 578 U.S. at 644). He contends the CDOC “set up [its] grievance

system in such a way as to deter, or trick, inmates into believing that their issues are

not grievable” so that it can use the inmates’ failure to administratively exhaust

claims to secure victory in any suit the inmates might bring. Id.

To succeed on this argument, Mr. Ybarra had to point to evidence showing

“(1) the . . . machination . . . actually did deter him from lodging a grievance and

(2) the . . . machination . . . would deter a reasonable inmate of ordinary firmness and

fortitude from lodging a grievance.” May, 929 F.3d at 1235 (brackets and internal

quotation marks omitted). The district court found that Mr. Ybarra failed to make the

required showing on the second prong. Mr. Ybarra does not challenge this finding on

appeal, so we affirm it. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366,

1369 (10th Cir. 2015) (stating that the appellant must “explain what was wrong with

the reasoning that the district court relied on in reaching its decision” and affirming

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district court’s decision where the “opening brief contain[ed] nary a word to

challenge the basis of” that decision); see also Garrett, 425 F.3d at 840–41 (stating

that even unrepresented litigants must present an argument citing the record and

providing legal authority).

III. Conclusion

We affirm the district court’s judgment. We grant Mr. Ybarra’s motion for

leave to proceed on appeal without prepayment of costs and fees, but he must

continue making partial payments until the entire filing fee has been paid. See 28

U.S.C. § 1915(b)(1).

Entered for the Court

Veronica S. Rossman
Circuit Judge

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