United States District Court, E.D. California
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 ...