Grigsby v. Pfeiffer, et al.

Filing 77

ORDER ADOPTING 74 Findings and Recommendations and Granting 61 Defendant's Motion for Summary Judgment, signed by District Judge Dale A. Drozd on 07/19/2021. CASE CLOSED.(Maldonado, C)

Case 1:17-cv-01384-DAD-JLT Document 77 Filed 07/19/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN GRIGSBY,

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No. 1:17-cv-01384-DAD-JLT (PC)

Plaintiff,
v.
M. HERNANDEZ,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

Defendant.
(Doc. No. 61, 74)

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Plaintiff Jonathan Grisby is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 17, 2021, the assigned magistrate judge issued findings and recommendations,

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recommending that defendant’s motion for summary judgment be granted due to plaintiff’s

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failure to exhaust his administrative remedies prior to filing suit. In reaching that conclusion, the

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magistrate judge found that although plaintiff did exhaust his inmate grievance # KVSP-O-17-

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01027 , through the third level of review, with respect to his claim of the denial of family

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visitation brought in this action, that inmate grievance did not include plaintiff’s claim against

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defendant Hernandez for alleged retaliation in violation of the First Amendment—the sole claim

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remaining claim in this action and the only which the court found to be cognizable. (Doc. No.
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74.) The pending findings and recommendations were served on plaintiff and contained notice

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that any objections thereto were to be filed within fourteen (14) days after service and that any

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response to the objections were to be filed within fourteen (14) days after service of any

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objections. (Id. at 7–8.) On June 7, 2021, plaintiff’s objections to the findings and

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recommendations were docketed, and on June 10, 2021, defendant filed a response thereto.

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(Doc. Nos. 75, 76.)

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In his objections, plaintiff appears to argue that his retaliation claim brought against

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defendant Hernandez is subsumed in his inmate grievance # KVSP-O-17-01027. (Doc. No. 75 at

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1–4.) In support of his position, plaintiff has attached the appeal log for all three levels of review

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of his grievance # KVSP-O-17-01027. (Id.) Plaintiff also expresses his frustration generally at

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the concept of his case being dismissed due to failure to exhaust administrative remedies after so

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many years of litigation in this case. (Id.)

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Defendant’s response asserts that the appeal log for inmate grievance # KVSP-O-17-

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01027 demonstrates that plaintiff’s retaliation claim was not included in or addressed as part of

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that inmate grievance and thus, plaintiff has failed to raise a genuine dispute of material fact

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regarding his failure to exhaust administrative remedies with respect to that claim prior to

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bringing suit. (Doc. No. 76.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s

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objections and defendant’s response, the court concludes that the findings and recommendations

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are supported by the record and by proper analysis.

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The court concludes that the pending findings and recommendations correctly outlined

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that inmate grievance # KVSP-O-17-01027 concerned only the denial of plaintiff’s family

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visitation application, and his challenges to the purportedly mistaken history of violence and

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escape. (Doc. Nos. 74 at 7; 75 at 5–15.) That inmate grievance did not allege any engagement in

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protected activity by plaintiff or retaliation by defendant. Therefore, plaintiff did not exhaust his

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administrative remedies as to his retaliation claim brought in this civil action against defendant

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Hernandez. Thus, there are no genuine disputed issues of material fact related to plaintiff’s
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Case 1:17-cv-01384-DAD-JLT Document 77 Filed 07/19/21 Page 3 of 3
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exhaustion of administrative remedies as to that claim, and defendant is entitled to judgment as a

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matter of law.

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Accordingly,

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1.

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The findings and recommendations filed on May 17, 2021 (Doc. No. 74) are
adopted in full;

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The Defendant’s motion for summary judgment (Doc. No. 61) is granted due to

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plaintiff’s failure to exhaust his administrative remedies prior to filing suit with

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respect to his sole remaining claim of retaliation; and

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3.

The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

July 19, 2021
UNITED STATES DISTRICT JUDGE

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