Moore v. C. Grieco

          FINDINGS AND RECOMMENDATIONS THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BE GRANTED AND PLAINTIFF'S CASE DISMISSED WITHOUT PREJUDICE (ECF NO. 43)

         Plaintiff Xzavr Moore aka Amber Moore (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 against Defendant C. Grieco (“Defendant”) for First Amendment retaliation.

         On September 27, 2019, Defendant filed a motion for summary judgment, arguing that Plaintiff failed to exhaust available administrative remedies prior to filing suit. (ECF No. 43.) For the reasons that follow, the Court recommends that Defendant's motion for summary judgment be granted and that Plaintiff's case be dismissed without prejudice for failure to exhaust available administrative remedies prior to filing suit.

         I. BACKGROUND

         a. Procedural Background

         Plaintiff originally filed this suit against Correctional Officers S. Torres, M. Quandt, and D. Glazner. (ECF No. 1.) Plaintiff alleged that S. Torres and M. Quandt filed a false rules violation report against him, and that D. Glazner, as hearing officer for the false disciplinary report, was biased against him.^[1]

         On August 21, 2018, the Court screened the Complaint and found that it stated a claim against Defendant D. Glazner for violation of Plaintiff's procedural due process rights under the Fourteenth Amendment but failed to state any other claims. (ECF No. 9.)

         On September 11, 2018, Plaintiff filed a First Amended Complaint. (ECF No. 12.) Upon screening, the Court found that Plaintiff stated a claim against Defendant for First Amendment retaliation. More specifically, Plaintiff claims that Defendant filed a false rules violation report against him in retaliation for the filing of this lawsuit.

         Defendant answered the First Amended Complaint on April 11, 2019. (ECF No. 28.) Defendant's answer contained an affirmative defense stating that Plaintiff failed to properly exhaust administrative remedies prior to filing the First Amended Complaint.

         On September 27, 2019, Defendant filed a motion for summary judgment based on Plaintiff's failure to exhaust available administrative remedies. (ECF No. 43.) Plaintiff filed an opposition on November 6, 2019. (ECF No. 45.) Defendant filed a reply on November 13, 2019. (ECF No. 46.)

         b. Factual Background Related to Exhaustion Defense

         Defendant submits the Declaration of J. Thissen, the Appeals Coordinator at the Central California Women's Facility (“CCWF”), where Plaintiff is an inmate. Thissen is responsible for screening, logging, and processing non-healthcare related appeals submitted by inmates at CCWF. Thissen explains that the CCWF maintains a record of submitted inmate grievances filed at the institution and an electronic database for tracking said grievances. Thissen's office conducted a search for grievances submitted by Plaintiff, particularly those accepted on or after July 1, 2018, (the date of Defendant's alleged misconduct) through September 11, 2018 (the date Plaintiff filed his First Amended Complaint). In addition, Thissen's office researched systems files related to the following: allegations that Defendant, on July 1, 2018, retaliated against and/or made false accusations against Plaintiff. The search revealed that Plaintiff filed one grievance accepted for first or second level review between July 1, 2018 and September 11, 2018, which was grievance no. CCWF-18-02585 (sometimes referred to herein as “the grievance” or “CCWF-18-02585”). Plaintiff submitted the grievance on August 26, 2018. The grievance addressed an incident that occurred on July 1, 2018, in which Defendant allegedly issued a false rules violation report against Plaintiff. The first level of review for the grievance was bypassed. The grievance was granted in part and denied in part at the second level of review on October 2, 2018. The second level review indicated that all issues were adequately addressed, and that institutional staff did not violate CDCR policy with respect to one or more of the issues appealed.

         Defendant attaches authenticated copies of Plaintiff's August 26, 2018 grievance, as well as the second level response issued on October 2, 2018, to Thissen's Declaration.

         Defendant also submits the Declaration of J. Spaich, the Acting Chief of the Office of Appeals (“OOA”). Spaich explains that the OOA receives, reviews, and maintains non-healthcare inmate grievances submitted for third level review, which is the final stage of review in the CDCR's inmate grievance process. Spaich explains that the OOA keeps an electronic record of each inmate grievance that has proceeded through to the third and final level of review.

         The OOA searched system files for any and all third level inmate grievances submitted by Plaintiff and accepted on or after July 1, 2018, and completed through September 11, 2018, in which Plaintiff complained about Defendant. In addition, the OOA researched system files related to the following: allegations that Defendant, on July 1, 2018, retaliated against and/or made false allegations against Plaintiff. Based on those parameters, a search of OOA records revealed that Plaintiff did not submit an appeal for third level review between July 1, 2018 and September 11, 2018.

         According to Spaich, the OOA received Plaintiff's request for third level review of CCFW-18-02585 on October 24, 2018. On February 14, 2019, CCFW-18-02585 was cancelled in accordance with California Code of Regulations, Title 15, section 3084.6 because Plaintiff failed to file the grievance within thirty days of the pertinent incident or conduct as mandated by California Code of Regulations, Title 15, section 3084.6, even though he had the opportunity to do so. Spaich further declares that, although Plaintiff was afforded a decision at the Second Level of Review, California Code of Regulations, Title 15, section 3084.6(a)(5) states, “[e]rroneous acceptance of an appeal at the lower level does not preclude the next level of review from taking appropriate actions, including rejections and cancellation of appeal.” Plaintiff was advised that a separate appeal could be filed regarding the cancellation decision. Plaintiff was further advised that the original appeal could only be resubmitted if the appeal of the cancellation was granted.

         There is, however, some confusion regarding the third level review of Plaintiff's grievance. Plaintiff maintains that he submitted the grievance for third level review on October 18, 2018 and requested an update as to the status of the third level review on February 28, 2019, as he had still not received a response by that date. On March 5, 2019, Plaintiff received a response that the “appeal was granted in part and returned to you via institutional mail on 10/11/18.” Plaintiff also received another package from the “Chief of Appeals Office” which appears to have contained a copy of the February 14, 2019 cancellation decision, as well as a letter from another inmate, Denell Cavers addressed to the “Chief Inmate Appeals Branch, CDCR.” (ECF No. 45. p. 1 & Exhibit B.) Mr. Cavers's letter states that “on 2-25-19 I received my third level response and this 602 was attached to my 602. I'm sending it back so it can be mailed to the right person.” It is unclear on what day Plaintiff received this package; it is also unclear what 602 document Mr. Cavers is referencing.

         Plaintiff then, in contravention to the instructions accompanying the February 14, 2019 cancellation, re-submitted CCFW-18-02585 for third level review on March 4, 2019. According to Spaich, Plaintiff also attached a copy of what appears to be Mr. Caver's February 26, 2019 letter. It was determined that Plaintiff was attempting to submit an appeal that had been previously cancelled in violation of ...