Colorado state prisoner Michael Whitington filed a § 1983 complaint that accused the Colorado Department of Corrections (CDOC) of forcing him to choose between hygiene and dental care or access to the courts. In 2003, the CDOC reduced the maximum daily wage for employed prisoners to $.28 from $2.03 – an 86 percent reduction. After deductions for restitution, child support and/or court fees, little is left for even basic hygiene items that the state does not provide. Further, medical care surcharges for prisoners increased from $.50 to $5.00 per visit ($10 for emergencies), and legal photocopy fees rose 400 percent in 2008.
Under this tight financial squeeze, Whitington labored to pay his court expenses while maintaining basic hygiene. The CDOC provided only one roll of toilet paper per week unless the prisoner was “indigent,” which, by the CDOC’s own definition, occurs only if the prisoner receives no pay. Since all prisoners receive some form of pay – even unemployed prisoners receive $.23 per weekday – no prisoner could be considered indigent under the CDOC’s policies.
Whitington’s original complaint listed a 230-day period during which CDOC guards refused to provide him with hygiene items, which he claimed resulted in a gum infection, loss of a tooth, contracting MRSA with subsequent surgeries, rashes, weight loss from an inability to eat, pain from those ailments and the indignation and humiliation of being forced to remain unwashed, filthy and stinking.
Meanwhile, Whitington’s CDOC trust account maintained a large negative balance due to mandatory deductions for court filing fees, postage, legal copy fees and restitution. Fully one-half of his monthly pay immediately went to partially satisfy his negative balance, then 40 percent went to satisfy mandatory deductions for court fees and restitution (20 percent each), leaving Whitington with only pennies each month from his average $5.00 monthly pay. He sought compensatory and punitive damages plus injunctive and declatory relief for Eighth Amendment violations.
Initially, the U.S. District Court ruled that Whitington had not exhausted his administrative remedies and dismissed the complaint. Colorado has a three-step grievance process governed by Administrative Regulation (AR) 850-04, which provides strict time limits for filing, responding to and completing the grievance process.
Whitington complied with the process through the final Step III grievance. AR 850-04 proves a 45-day time frame for the CDOC grievance officer to respond. Because the Step III officer was so backlogged, it took 231 days to provide a response. Whitington had waited 196 days before filing his § 1983 complaint.
The Tenth Circuit reversed the dismissal on appeal, holding that all available remedies had been exhausted. Based on the language of AR 850-04, a prisoner may proceed to Step II when the time for a Step I response has expired without a response from the CDOC; likewise when moving from Step II to Step III. Since Step III is the end of the grievance process, a prisoner’s administrative remedies are effectively exhausted when the CDOC fails to timely respond. See: Whitington v. Ortiz, 472 F.3d 804 (10th Cir. 2007).
On remand the defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6), and the district court dismissed the suit based on Whitington’s failure to state a claim. In reaching this determination, the court did not analyze Whitington’s claims under the Eighth Amendment’s two-pronged deliberate indifference standard, but rather concluded that there was no deprivation of hygiene items by the defendants because Whitington chose to spend his funds on costs associated with legal work rather than on hygiene. Thus, the harm was self-inflicted. In support of its conclusion, the court cited several Tenth Circuit decisions involving similar claims where relief was denied.
Whitington again appealed and the Tenth Circuit again reversed, holding that however inartfully pleaded, Whitington did in fact recite sufficient facts to state a claim “for the prolonged denial of hygiene products as a result of the pursuit of constitutionally protected litigation with its associated expenses.” The Court of Appeals distinguished each of its prior rulings in similar cases, in essence finding that Whitington simply did a better job of pleading facts sufficient to support his claims, or that he presented a higher degree of injury resulting from his claims.
While reversing the district court’s dismissal of the case, the Tenth Circuit also affirmed the dismissal of then-CDOC director Joe Ortiz in his individual capacity, as there was no showing of his personal involvement, and in his official capacity for monetary damages based on immunity. The Court of Appeals left only the official capacity claim for injunctive relief. The Court reversed the dismissal of Warden Al Estep in his individual capacity based on Whitington’s showing that Estep may have had “the flexibility to remedy the individual inmate account or hygiene problems” beyond the dictates of the Administrative Regulations. See: Whitington v. Ortiz, 307 Fed.Appx. 179 (10th Cir. 2009) (unpublished).
On remand, Whitington filed a second amended complaint correcting the deficiencies noted by the Tenth Circuit and clarifying the issues, which prompted the defendants to again move to dismiss, on the specious grounds that the court lacked subject matter jurisdiction and re-raising the defenses of sovereign immunity, qualified immunity and demurrer.
The district court granted the defendants’ motion for summary judgment on July 18, 2010, dismissing the case. The court agreed with the defendants, including current CDOC director Aristedes Zavaras, that the case was moot “as a result of the CDOC’s voluntary change of its policy regarding hygiene items. The CDOC policy regarding hygiene items was amended effective December 15, 2009.” Thus, Whitington’s “claims for declaratory and injunctive relief are moot in light of CDOC’s change of its policy to allow inmates to obtain hygiene items regardless of their indigency status.”
Whitington has once again appealed the dismissal to the Tenth Circuit, where it remains pending. See: Whitington v. Ortiz, U.S.D.C. (D. Col.), Case No. 1:06-cv-00759-LTB-CBS.
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