Knapp v. Hickman et al

Filing 190

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/20/09 RECOMMENDING that dfts' 175 motion to dismiss be granted in part and denied in part; dft Whittle's 177 motion for judgment on the pleadings be granted; certain claims, as stated in F&R, be dismissed as unexhausted; and dfts Ali, Fowler, Mesa, Nelson, O'Connor, Stewart, Vasquez, and Whittle be dismissed. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Previously, the court's captions listed Roderick Hickman as the lead defendant. This individual, however, has been terminated as a defendant to the action. N. Ali is the first remaining defendant listed on the court's docket and, therefore, is now the lead defendant.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ERIC CHARLES RODNEY KNAPP, Plaintiff, vs. N. ALI,1 et al., Defendants. /

No. CIV S-05-2520-FCD-CMK-P

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendants' motion to dismiss (Doc. 175) based on failure to exhaust administrative remedies; and (2) defendant Whittles' motion for judgment on the pleadings (Doc. 177).2 Plaintiff has filed oppositions to both motions. /// ///

Defendant Whittle has joined in the motion to dismiss. 1

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I. BACKGROUND This action proceeds on plaintiff's third amended complaint (Doc. 39). On February 21, 2008, the court issued findings and recommendations in which the court outlined the following background: Plaintiff . . . alleges the following general background facts: Plaintiff . . . is a prisoner within the California Department of Corrections and Rehabilitation ("CDCR"). He is also a plaintiff class member of Coleman v. Schwarzenegger, 912 F. Supp. 1282 (E.D. Cal. 1995), and Armstrong v. Schwarzenegger, 124 F.3d 1019 (9th Cir. 1997). He has been a patient in the CDCR's Mental Health Services Delivery System since 1996 with a consistent diagnosis of Post-Traumatic Stress Disorder and related conditions resulting from severe physical and psychological trauma he survived upon entering the prison system in 1994 as a former state peace officer and federal military police sergeant wrongly convicted of sexually assaulting a woman who has since come forward and admitted that she lied against him. Accordingly, he was specially transferred to Mule Creek State Prison . . . at the beginning of 1999 specifically for the purpose of facilitating his mental health condition . . . so he could be visited on a regular and frequent basis by his physically disabled mother and other loved ones residing in that area. Plaintiff's mother is director of a prison watchdog group called United for No Injustice, Oppression, Neglect ("UNION"). Since 1998, Plaintiff's mother has worked through UNION to educate, organize, and thus empower the family members and friends of California state prisoners to more effectively advocate against the mistreatment of prisoners and corruption plaguing the California prison system. Following Plaintiff's arrival at MCSP, especially beginning in the month of June 2000, Plaintiff, his activist mother, and their respective associates both in and out of prison lawfully exercised protected rights under the U.S. Constitution's 1st Amendment by speaking freely, peaceably associating and assembling toward a common good, and accessing available press, media, government officials, and courts to report, seek redress of, and otherwise publicly expose and denounce injustice, oppression, neglect, and other abuse of Plaintiff and other CDCR prisoners, particularly at MCSP.

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Plaintiff asserts 12 separate claims, each with numerous sub-claims, alleging acts of retaliation by defendants because plaintiff engaged in the following activities: (1) petitioned for redress of grievances; (2) associated with others; (3) assembled with others; (4) spoke freely; and (5) communicated through confidential mail. He asserts the following specific acts of retaliation: (1) confiscation and destruction of personal property; (2) unreasonable confiscation of mail; (3) frequent cell searches; and (4) nude body inspections. Plaintiff specifically states that he is complaining of specific acts which are part of a "3-year campaign of retaliatory abuse" and that this campaign continues "unabated." Plaintiff's complaint also asserts Eighth Amendment violations based on the following claims related to conditions of confinement while plaintiff was housed in administrative segregation between September 2000 and September 2001: (1) endangerment of personal safety; (2) intentional and/or negligent infliction of emotional anguish; (3) denial of clothing and/or warmth; (4) denial of sanitary conditions; (5) deliberate indifference toward known mental conditions; (6) deprivation of prescribed therapy and treatment; (7) excessive force; (8) denial of food; (9) experimental drugging; and (10) coercion, duress, and menace causing mental harm. In its December 13, 2006, order determining that service of the third amended complaint was appropriate for the named defendants, the court stated: . . . The gist of his complaint is that defendants at Mule Creek State Prison (MCSP) have retaliated against him for complaining about staff misconduct and working to improve prison conditions. Plaintiff alleges that defendants interfered with his prison grievances, interfered with his right to visitation, confiscated materials from a bulletin board, forced him to resign from the Men's Advisory Council, and forced other prisoners to deface a mural that plaintiff had painted. Finally, plaintiff alleges that his constitutional rights were violated by deplorable living conditions which he suffered during three separate placements in administrative segregation and by being served contaminated food. Plaintiff's claims concerning the conditions he alleged[ly] encountered in Administrative Segregation and his claims that he was served contaminated food state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). By themselves, the claims that defendants interfered with his prison grievances, interfered with his right to visitation, confiscated materials from a bulletin board, forced him to resign from the Men's Advisory Council, and forced other prisoners to deface a mural that plaintiff had painted do not state cognizable civil rights claims. However, to the extent that plaintiff alleges that the defendants engaged in the above-described actions as part of ongoing retaliatory conduct stemming from 3

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plaintiff's filing of a grievance (a constitutionally protected activity) concerning an incident in 2000, plaintiff does state a cognizable retaliation claim against defendants. The February 21, 2008, findings and recommendations were adopted in full on March 12, 2008. The March 12, 2008, order set forth the following rulings, among others, which now govern this action: 1. The continuing violation doctrine applies and none of plaintiff's retaliation claims are time-barred; Plaintiff's Eighth Amendment claims, which relate to the conditions of his confinement in administrative segregation between September 2000 and September 2001, are time-barred; Claim 8m does not present a stand-alone basis for liability but represents part of plaintiff's allegations of the damages he suffered; and This action proceeds on plaintiff's retaliation claims as against remaining defendants Ali, C. Brown, Danziger, Etheredge, Fowler, Gunning, Gutierrez, Hein, Hogan, Kaiser, Kanipe, Keeland, King, Lattimore, Marshall, Mesa, Murray, Nelson, O'Connor, Poe, Sauceda, Smith, Stewart, Vasquez, Warren, Warvarovski, and Whittle.3

II. APPLICABLE LEGAL STANDARDS A motion to dismiss based on a prisoner's failure to exhaust administrative remedies is properly the subject of an unenumerated motion under Federal Rule of Civil Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. Where the court looks beyond the pleadings to a factual record in deciding the motion to dismiss, which is ". . . a procedure closely analogous to summary judgment," the court must assure that the plaintiff has fair notice of his opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in Process directed to defendants Gunning, Marshall, and Murray was returned unexecuted on February 19, 2008 (Doc. 149). Defendant Warvarovski also remains unserved. By separate order, plaintiff will be directed to show cause why these defendants should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to effect timely service. 4
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Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court concludes that administrative remedies have not been exhausted, the unexhausted claims should be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007). Motions under Rule 12(c) are similar to motions under Rule 12(b) in that judgment on the pleadings is appropriate if ". . . it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). Rather than testing whether the factual allegations state a claim, motions under Rule 12(c) test whether, even if all the facts alleged in the complaint can be proved, defendants are nonetheless entitled to judgment as a matter of law. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). All non-conclusory factual allegations in the complaint must be assumed to be true. See Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967); see also McGlinchy, 845 F.2d at 810.

III. DISCUSSION In their motion to dismiss, defendants argue that plaintiff failed to exhaust administrative remedies as to some, but not all, of the remaining claims. In his motion for judgment on the pleadings, defendant Whittle argues that claims against him are time-barred. A. Defendants' Motion to Dismiss Prisoners seeking relief under § 1983 must exhaust all available administrative remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 5

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Supreme Court recently addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint because lack of exhaustion is an affirmative defense which must be pleaded and proved by the defendants; (2) an individual named as a defendant does not necessarily need to be named in the grievance process for exhaustion to be considered adequate because the applicable procedural rules that a prisoner must follow are defined by the particular grievance process, not by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not all, claims are unexhausted. The Supreme Court also held in Woodford v. Ngo that, in order to exhaust administrative remedies, the prisoner must comply with all of the prison system's procedural rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, exhaustion requires compliance with "deadlines and other critical procedural rules." Id. at 90. Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance which affords prison officials a full and fair opportunity to address the prisoner's claims. See id. at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the quantity of prisoner suits "because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court." Id. at 94. A prison inmate in California satisfies the procedural rules of the administrative exhaustion requirement by following the process set forth in §§ 3084.1-3084.7 of Title 15 of the California Code of Regulations. In California, inmates "may appeal any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." Cal. Code Regs. tit. 15, § 3084.1(a). These regulations require the prisoner to proceed through several levels of appeal: (1) informal resolution; (2) formal appeal; (3) second level appeal to institution head; (4) third level appeal to the director of the California Department of Corrections and Rehabilitation. A decision at the third formal level, which is also referred to as the director's level, is not appealable and concludes a prisoner's departmental administrative 6

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remedy. See Cal. Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental appeals coordinators may summarily reject a prisoner's untimely administrative appeal. See Cal. Code Regs. tit. 15, §§ 3084.3(c)(6) and 3084.6(c). If a group of inmates intend to appeal the same decision or action, one grievance form is used and a list of the participating inmates must be attached. The list must be legible and state the inmates' names, departmental identification numbers, and housing assignment. The form must also be signed by all participating inmates. Currently, California regulations do not contain any provision specifying who must be named in the grievance. In certain circumstances, the regulations make it impossible for the inmate to pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d 926, 939 n. 11 (9th Cir. 2005). Where a claim contained in an inmate's grievance is characterized by prison officials as a "staff complaint" and processed through a separate confidential process, prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing Booth, 532 U.S. at 736 n. 4). Thus, the claim is exhausted when it is characterized as a "staff complaint." See id. at 940. If there are separate claims in the same grievance for which further administrative review could provide relief, prison regulations require that the prisoner be notified that such claims must be appealed separately. See id. at 939. The court may presume that the absence of such a notice indicates that the grievance did not present any claims which could be appealed separate from the confidential "staff complaint" process. See id. In their motion to dismiss, defendants concede that plaintiff has exhausted certain claims as follows: 1. The discreet issue raised in sub-claim 3g of whether the March 15, 2001, CDC 128-B was issued by Officer Kaiser in retaliation for the August 17, 2000, complaint filed by Plaintiff's visitor, Natalie Bolds; The discreet issue raised in sub-claim 4c of whether the work supervisor's report issued by Captain Brown on July 12, 2001, was intended to harass and retaliate against Plaintiff for his conduct as the MAC vice-chairman;

2.

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3.

The discreet issue raised in sub-claim 7a of whether Captain Warren's order to remove and to prohibit certain written materials posted on prison bulletin boards by Plaintiff in October 2001, was retaliatory in nature; The discreet issue raised in sub-claim 8h of whether Officer Poe issued RVR B09/02-013, and Lieutenant Gutierrez found him guilty of the offense, in retaliation for Plaintiff having exercised his First Amendment rights; The discreet issue raised in sub-claims 9c, 10f, m, o, r, and s of whether Captain Warren, Lieutenant Gutierrez, and Lieutenant Etheredge participated in Plaintiff's February 2003 ad-seg placement and subsequent rules violation report #B09/03-025, in retaliation for Plaintiff having exercised his First Amendment rights; and The discreet issues raised in sub-claims 12a and b of whether Captain Lattimore and Lieutenant Gutierrez caused Plaintiff to suffer retaliatory disciplinary actions, MCSP RVR #B06/03-035/SCP-Sac RVR A-03-07007, for expressing himself in a letter dated June 19, 2003, . . . and CSPSac RVR A-03-08-002 for expressing himself in a letter dated July 30, 2003. . . .

4.

5. 6 7 8 6. 9 10 11 12 13 14 15 16 17 18 19 20 21 claims:

Defendants argue that all other claims are unexhausted "on the basis of procedural defects, failure to give fair notice of his claims, and failure to either commence or complete the exhaustion process. . . ." The following is a summary of plaintiff's general allegations, as alleged in 12

Claim 1

Plaintiff alleges that various defendants identified in seven subclaims (Claims 1a-g) "deprived Plaintiff and his associates of secured rights, privileges, and immunities by causing them to begin suffering an oppressive campaign of retaliatory abuse that was directly linked to Plaintiff documenting KAISER's misconduct. . . ." Defendants argue that Claims 1a-f are unexhausted. They do not raise any specific argument as to Claim 1g. Plaintiff sets forth 12 sub-claims (Claims 2a-l) relating to events occurring in September and October 2000. Defendants argue that Claim 2 is unexhausted in its entirety. Plaintiff alleges in eight sub-claims (Claims 3a-h) that defendants continued to retaliate against him. Defendants argue that plaintiff failed to exhaust Claims 3a-c and Claims 3e-f. No specific arguments are raised as to Claim 3d and Claims 3g-h. As noted above, defendants concede that Claim 3g is exhausted. 8

Claim 2 22 23 Claim 3 24 25 26

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Claim 4

Plaintiff alleges in three sub-claims (Claims 4a-c) that defendants continued to retaliate against him, specifically because "Plaintiff was elected on 5/2/01 to represent his prison association under state law on the Men's Advisory Council (`MAC')." Defendants argue that all of Claim 4 is unexhausted, with the exception of that portion of Claim 4c relating to a July 12, 2001, work supervisor's report. In Claim 5, plaintiff presents four sub-claims (Claims 5a-d) relating to events occurring "after and because Plaintiff lawfully expressed himself in confidential mail prepared and sent following the East Coast terrorist attacks of 9/11/01." Defendants argue that all of Claim 5 is unexhausted. Plaintiff raises four sub-claims (Claims 6a-d) alleging continuing retaliation "which occurred after and because Plaintiff, at the insistence of his prisoner associates, lawfully sought re-election to the MAC." Defendants argue that all of Claim 6 is unexhausted. In Claim 7, plaintiff sets forth allegations concerning events on October 29, 2001, and October 31, 2001. Defendants argue this claim is unexhausted except to the extent plaintiff asserts that defendant Warren's order to remove information posted on a bulletin board was retaliatory in nature. Plaintiff sets forth 15 sub-claims (Claims 8a-n) of continuing retaliation "which occurred after and because Plaintiff exercised his protected rights in: (1) correspondence on 12/6/01 to GRAY and VASCONCELLOS stating that an investigation should be conducted into `the oppressive reign of mike KNOWLES' at MCSP; (b) filing suit on 1/16/02 against HICKMAN, KAISER, KING, KNOWLES, LAGUNA, MYNHIER, SILVA, VASQUEZ, and WARREN for their roles in his retaliatory and otherwise unlawful confinements in ad-seg on 9/22/00 and 9/22/01 . . .; and (c) mailing on 3/11/02 to GRAY, VASCONCELLOS, and others with the state senate a letter and 20-page compilation of grievances reflecting mismanagement by KNOWLES and other officials over MCSP." Defendants argue Claims 8a-d, 8g-h, 8j, and 8l-n are unexhausted. Defendants concede that the portion of Claim 8h relating to RVR B09/02-013 is exhausted. Defendants do not raise any specific arguments as to Claims 8e-f, 8i, and 8k. Plaintiff alleges in six sub-claims (Claims 9a-f) continuing acts of retaliation "after and because Plaintiff and his prisoner associates petitioned for redress of their food being repeatedly defiled by other prisoners." Defendants concede that Claim 9c, which relates to plaintiff's placement in administrative segregation, is exhausted. Otherwise, defendants argue that Claims 9b-c and 9e-f are unexhausted. They do not present any specific argument as to Claims 9a and 9d. 9

Claim 5

Claim 6

Claim 7 11 12 13 Claim 8 14 15 16 17 18 19 20 21 22 23 24 25 26 Claim 9

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Claim 10

In 24 sub-claims (Claims 10a-x), plaintiff alleges a continuing "campaign of retaliatory oppression . . . which occurred after and because Plaintiff and his associates documented, reported, publicized. . ., and otherwise grieved the recent food contaminations and related deliberate indifference, endangerment, and retaliatory acts alleged above at Claim 9." Defendants concede that Claims 10f, 10m, 10o, 10r, and 10s are exhausted, but only as to whether defendants Warren, Gutierrez, and Etheredge retaliated against plaintiff with respect to a February 2003 administrative segregation placement. Otherwise, defendants contend that Claims 10a-j, 10m, 10o, 10q-s, 10u-v, and 10x are unexhausted. They do not provide any specific arguments as to the remaining sub-claims. In Claim 11, plaintiff outlines 11 sub-claims (Claims 11a-k) of retaliation for ". . . petitioning for redress of the unlawful events, circumstances, and conditions alleged in Claims 1-10 above. . . ." Defendants do not present any specific arguments relating to Claim 11. In Claim 12, plaintiff sets forth three sub-claims (Claims 12a-c) alleging continuing retaliation occurring "after and because Plaintiff lawfully exercised his right to speak freely in writing after he had suffered retaliatory transfer to another prison." Defendants concede that Claims 12a and 12b are exhausted, but offer no argument as to Claim 12c.

Claim 11 8 9 10 Claim 12 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendants' specific arguments are addressed below. 1. Claims 1a-c

Plaintiff alleges that defendant Kaiser engaged in various acts of retaliation in June and July 2000. Defendants appear to concede that plaintiff submitted inmate grievances concerning the underlying events in June and July 2000, but argue that plaintiff's claims are not exhausted because "Plaintiff's appeal makes no claim of retaliation in connection with these incidents." Submitted with defendants' motion is appeal no. MCSP-B-00-01495, which concerns visit terminations on three occasions between July 2, 2000, and July 9, 2000.4 Defendants state that this grievance, however, "does not describe any retaliatory motives or actions" and conclude that, for this reason, plaintiff's retaliation claims in Claims 1a-c are unexhausted. Defendants argue that, because plaintiff failed to describe retaliatory conduct, his Defendants do not point to any evidence indicating that plaintiff failed to exhaust the claim alleged in Claim 1a regarding events in June 2000. 10
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grievance "did not give CDCR a fair and full opportunity to adjudicate these retaliation claims." The court does not agree with defendants' analysis, which reads too much specificity into the substantive requirement of exhaustion. As defendants correctly note, and as outlined above, the exhaustion requirement is meant to provide prison officials a full and fair opportunity to address grievances. The court does not interpret this to mean, however, that the prisoner can only properly exhaust a claim by outlining the legal theories in his inmate grievances, which is essentially the rule defendants ask the court to follow. Specifically, defendants argue that, by failing to describe retaliatory conduct in his prison grievances, plaintiff has not provided prison officials a full and fair opportunity to address plaintiff's claims relating to events in June and July 2000. However, plaintiff's grievances describe what plaintiff claims were improper visit terminations on specific dates. Plaintiff further names the officials who were responsible for the allegedly improper visit terminations. Thus, prison officials had a full and fair opportunity to address the grievance. In fact, based on prison officials' response to plaintiff's grievance concerning visit terminations, it appears that steps were taken to avoid unnecessary visit termination. Defendants would have the court adopt a rule which essentially requires prisoners to outline the legal bases of their eventual federal court claims in their inmate grievances. First, such a requirement would not provide any more of an opportunity for prison officials to address grievances than would be afforded by requiring prisoners to simply outline the factual bases of their claims in the grievance process. Second, demanding that inmates outline legal theories in inmate grievances would put prison officials in the role of deciding whether constitutional or statutory rights had been violated. This is more properly the role of the court in the context of a civil rights case such as this. All that the exhaustion requirement demands is that the prisoner provide prison officials an opportunity to address inmate complaints. The court finds that plaintiff's grievance in this case, which outlined specific occurrences of allegedly improper visit /// 11

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terminations by specific individuals, did just that.5 2. Claim 1d

In Claim 1d, plaintiff alleges that, on July 12, 2000, defendants "caused Plaintiff to suffer retaliatory and false disciplinary action. . ." as a result of his grievances relating to defendant Kaiser. Defendants provide the court with grievance no. MCSP-B-00-01764 which they state "is Plaintiff's appeal from RVR B07/00-12 for disobeying a direct order during visitation on July 4, 2000, which resulted in 30 day credit forfeiture." Defendants add: "In this appeal, Plaintiff describes the problem as his having been unjustly found guilty of this rules violation." As with Claims 1a-c, defendants conclude that, because plaintiff did not specifically mention retaliation, he failed to exhaust Claim 1d. For the reasons stated above, the court does not agree. Because, as defendants concede, plaintiff's grievance outlined the facts concerning the allegedly improper rules violation charge, he sufficiently provided prison officials an opportunity to address the grievance. 3. Claims 1e-f

In these claims, plaintiff complains of allegedly retaliatory conduct occurring on July 28, 2000. Defendants state that plaintiff failed to disclose in his responses to their discovery requests any grievances filed within 15 working days of July 28, 2000. They conclude that, because plaintiff failed to comply with the procedural requirement of submitting a timely

This conclusion is not inconsistent with the court's statement in Cooper v. Tuggle, 2007 WL 570200 (E.D. Cal. 2007), cited by defendants, that: "To comply with the PLRA exhaustion requirement, a state prisoner in California must file an inmate appeal on each claim concerning prison conditions or events and must proceed to the highest level of administrative review available to him before he seeks judicial relief, regardless of the relief desired by the prisoner." In that case, the court ultimately concluded that the plaintiff had failed to satisfy the exhaustion requirement because he did not file an individual grievance regarding the events alleged in the complaint, nor did he join in a separate group grievance concerning such events. The court held: "Because plaintiff failed to comply with the prison system's grievance procedure, he did not notify prison officials of his grievance, much less give prison officials a fair opportunity to consider his grievance." Thus, the court in Cooper, as in the case at bar, was concerned with whether the prisoner's inmate grievance sufficiently described the underlying facts of the complaint, not whether the grievance set forth specific legal theories. 12

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grievance, Claims 1e-f are unexhausted. According to plaintiff's responses to discovery, the court must agree with defendants and conclude that these claims are unexhausted.6 4. Claim 1g

As noted above, defendants do not provide any specific arguments concerning Claim 1g, in which plaintiff complains of continuing retaliation by various defendants apparently from July 28, 2000, "[u]ntil 9/22/00."7 Therefore, defendants cannot meet their burden of establishing that any claim set forth in Claim 1g is unexhausted. 5. Claims 2a-e

In Claim 2a, plaintiff alleges that, on September 4, 2000, various defendants "caused Plaintiff to be falsely told by KAISER that only he could no longer `conversate' with fellow prisoners in the visiting room." In Claim 2b, plaintiff asserts that, on September 8, 2000, defendant King told plaintiff: "Stay the fuck away from KAISER!" and "I'd like to throw your ass into the hole." In Claim 2c, plaintiff alleges that, on September 14, 2000, he was threatened with a write-up for asking about "secret allegations" against him. Plaintiff states in Claim 2d that, on September 20, 2000, false allegations had been "solicited from prisoners about Plaintiff supposedly gloating to others about KAISER's removal from visiting after the complaint by Plaintiff's fiancé on 8/17/00." In Claim 2e, plaintiff states that, on September 21, 2000, defendant Kaiser threatened to no longer report to work and file a "stress claim" against prison officials if they did not stop investigating the complaint filed by Plaintiff's fiancé. /// ///

In his opposition to defendants' motion, plaintiff does not identify any prison grievance concerning the events of July 28, 2000. The court notes that the only remaining defendant named in Claim 1g is defendant Marshall, who has not been served. By separate order the court will direct plaintiff to show cause why defendant Marshall should not be dismissed for failure to effect timely service of process. 13
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Defendants argue that none of these claims are exhausted. They reference grievance no. MSCP-B-00-02016, concerning the special purchase of a television, MCSP-B-0002533, concerning a book being held in the mailroom as contraband, and two other inmate appeals which were screened out for procedural defects. Defendants add: "There are no other appeals submitted within 15 working days of the period between September 4 and 21, 2000, concerning the events alleged in sub-claims 2a-e." Based on his opposition, plaintiff appears to claim that he submitted "written and verbal reports," "miscellaneous documentation," and a "citizen's complaint," and that these efforts should satisfy the exhaustion requirement. He then references numerous pages purporting to represent his "related communications with . . . ranking CDCR officials and/or external structures of other authority through confidential mail." The court finds that plaintiff failed to satisfy the exhaustion requirement as to Claims 2a-e. As outlined above, prisoners in California are required to follow a specified grievance process and compliance with procedural rules is required to satisfy the exhaustion requirement. By plaintiff's own admission, he did not do so. Plaintiff's claim that other efforts he undertook should suffice is unavailing. 6. Claims 2f-l

In Claims 2f-l, plaintiff complains of retaliatory confinement in administrative segregation from September 22, 2000, through October 6, 2000. Plaintiff outlines specific allegations of retaliation in Claims 2f-h. Specifically, plaintiff alleges that, while in administrative segregation during this period, defendants "caused Plaintiff to suffer repeated humiliation and degradation by being forced while locked inside the narrow cages to strip naked and awkwardly contort his body so guards could look at his intimate body parts." He also asserts that during this period of administrative segregation confinement, the following additional retaliatory conduct occurred: (1) he was deprived of all personal property; (2) minimum required clothing and bedding was denied; (3) he was treated without distinction from prisoners who were in administrative segregation for punitive reasons; (4) he was only allowed limited and restricted 14

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non-contact visitation; and (5) he was not allowed phone calls. In Claims 2i-l, plaintiff alleges that defendants obstructed his access to the prison grievance process with respect to his complaints concerning the September-October administrative segregation confinement. Defendants argue that these claims were previously determined to be unexhausted in Knapp v. Knowles, E. Dist. Cal. case no. CIV-S-02-0175. They assert that, because similar claims relating to plaintiff's administrative segregation confinement beginning on September 22, 2000, were determined to be unexhausted in that case, plaintiff is precluded from litigating those issues in this case. Defendants also reference two grievances concerning these claims, which were screened out at the first level, one because too many issues were raised in a single grievance, and the other because documentation to support the grievance was not attached. According to defendants, plaintiff did not re-submit his grievances concerning the SeptemberOctober 2000 administrative segregation placement and, thus, abandoned his claims. Defendants conclude that Claims 2f-h are unexhausted because plaintiff did not complete the prison grievance process. In his opposition, plaintiff refers to the grievances attached by defendants as exhibits to their motion and asserts that prison officials improperly rejected his grievances related to Claims 2f-h. He also states that, "[i]mmediately after and because Plaintiff submitted the [grievances], defendant CDCR personnel essentially granted everything he had requested therein by bringing him before a special classification hearing and releasing him from ad-seg on 10/6/00 and restoring him to his former cell location and position on the Men's Advisory Council." Plaintiff does not otherwise indicate that he re-submitted the rejected grievances or pursued his claims through all the levels of review set forth in applicable state regulations. Regardless of whether the termination of plaintiff's administrative segregation placement in October 2000 was motivated by his having submitted grievances which were screened out, it is clear that plaintiff did not pursue his complaints regarding such placement through the final level of administrative review. Thus, even if prison officials ultimately 15

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addressed plaintiff's concerns substantively, procedurally he did not comply with the requirements of the regulations. As outlined above, exhaustion requires compliance with all state procedural rules. Because plaintiff did not complete the grievance process through the final level of review with respect to the issues outlined in Claims 2f-h, these claims are unexhausted. In Claims 2i-l, plaintiff appears to contend that prison officials obstructed his access to the grievance process with respect to his grievances concerning the issues outlined in Claims 2f-h. While the Ninth Circuit has recognized a limited exception to the exhaustion requirement where the ability to file grievances has been obstructed, see Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008), plaintiff does not present any evidence to support the applicability of such an exception. In particular, he states that his initial grievances were improperly rejected, but he does not state that he attempted to re-submit his grievances after correcting the procedural deficiencies which resulted in their rejection in the first instance. Had plaintiff's grievances been rejected notwithstanding his attempts to correct the noted procedural defects, this would have provided some evidence to support his contention. For these reasons, the court concludes that plaintiff has failed to comply with the exhaustion requirement as to Claims 2f-h, and that he failed to establish an exception based on alleged obstruction, as set forth in Claims 2i-l.8 7. Claim 3a

In Claim 3a, plaintiff asserts that, on October 13, 2000, he discovered that defendants "caused KAISER to make a different prisoner also deface the mural Plaintiff had painted in the visiting room." Defendants argue that this claim is unexhausted because he did not submit any grievance relating to the painting in the visiting room within 15 working days of discovery of the basis of the claim on October 13, 2000. Defendants provide evidence that the first grievance plaintiff submitted after this date was log no. MCSP-B-00-03144, dated To the extent plaintiff attempts to state in Claims 2i-l stand-alone claims relating to prison grievance process, the court has previously concluded that he cannot state such a claim. 16
8

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November 12, 2000, which related to unauthorized conversations in the visiting room. Plaintiff claims that his ability to file a timely grievance concerning the visiting room painting was obstructed by defendants. In support of this contention, plaintiff references pages of his declaration, attached as Attachment A to his opposition brief. In the referenced pages, plaintiff states at paragraph 95, that he and his fiancé discovered the defaced painting on October 13, 2000. At paragraph 96, he states that, on November 3, 2000, he and his fiancé were forbidden to converse. At paragraph 97, plaintiff adds that, on November 9, 2000, he was charged with a false rules violation. His declaration continues to outline various claims occurring throughout November and December 2000. Plaintiff does not, however, indicate any attempt to file a grievance within 15 working days of October 13, 2000, which was obstructed in any way. Nor does plaintiff reference any such grievance in his responses to defendants' discovery requests. The court finds that plaintiff has failed to establish an obstruction exception to the exhaustion requirement as to his claim concerning the visiting room painting. 8. Claims 3b-c

In these claims, plaintiff alleges that, on November 9, 2000, he received an "unauthorized write-up" for failing to heed defendant Kaiser's November 3, 2000, order that he and his fiancé could not "conversate" in the visiting room. Defendants argue that these claims are unexhausted because appeal log no. "MCSP-B-00-03144 appeals the . . . November 3, 2000, custodial counseling chrono, but makes no claim of retaliatory misconduct." While defendants concede that "[t]his appeal was exhausted at the second level" because it was granted in part in that the November 3, 2000, chrono was removed from plaintiff's file, defendants argue that Claims 3b-c are nonetheless unexhausted because plaintiff's grievance makes no reference to a retaliatory motivation. /// /// /// 17

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Defendants are again asking the court to adopt a rule that would require, as part of the exhaustion process, the plaintiff to set forth legal theories in the prison grievances. For the reasons discussed above, the court declines to do so. A review of log no. MCSP-B-00-03144, which is provided as an exhibit to defendants' motion, reveals that plaintiff in fact complained about the allegedly improper rules violation charge of November 9, 2000. Further, as defendants concede, prison officials granted the appeal at the second level. Thus, it is clear that plaintiff's grievance was sufficient to provide officials a full and fair opportunity to address plaintiff's grievance. Therefore, the court finds that Claims 3b-c are exhausted. 9. Claim 3d

Defendants do not offer any specific argument as to Claim 3d, in which plaintiff asserts that defendants impeded his efforts to submit inmate grievances. Therefore, defendants cannot meet their burden of establishing that this claim is unexhausted.9 10. Claims 3e-f

In Claim 3e, plaintiff alleges that, on December 29, 2000, defendants "caused Plaintiff to suffer with his fiancé being capriciously singled out in the visiting room with an arbitrary order from KAISER for just Plaintiff to change the direction of his chair only a mere 15E among several prisoners whose chairs were and remained similarly facing." In Claim 3f, plaintiff alleges that, on December 30, 2000, defendants "caused KAISER to further try inciting prisoners against Plaintiff . . . so he would either make his fiancé withdraw the 8/17/00 complaint . . . or suffer assault, confinement back in ad-seg, transfer, and/or adverse consequences." Defendants argue that these claims are unexhausted because the next inmate grievance submitted by plaintiff following December 29th and 30th, 2000, was a January 31, 2001, grievance related to an error in the handling of his mail. Defendants present evidence in

As noted above, the court has previously concluded that plaintiff cannot state a stand-alone claim related to the prison grievance system. In any event, Claim 3d is no longer before the court because all specific defendants named in that sub-claim have been dismissed. 18

9

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the form of logs documenting plaintiff's various inmate grievances indicating that he did not submit any complaints concerning events on December 29th and 30th, 2000, within 15 working days of the incidents. Referencing the same pages of his declaration discussed above in the context of plaintiff's opposition declaration with respect to Claim 3a, plaintiff again asserts that defendants impeded his efforts to file grievances as to the matters alleged in Claims 3e-f. However, as noted above, plaintiff's declaration does not support his contention that he was impeded from filing grievances. Other than the conclusory statement that "[d]efendants' threatening, intimidating, and/or otherwise oppressive conduct . . . within 15 working days following the allegation(s) in Count 3e . . . effectively inhibited Plaintiff from filing any [inmate grievances]," plaintiff does not offer any specifics to support this contention. In particular, he does not state what defendants did that prevented him from filing grievances, nor does plaintiff outline any efforts he undertook to file a timely grievance. The court finds that plaintiff's argument that his ability to exhaust was thwarted is unpersuasive and concludes that plaintiff failed to exhaust Claims 3e-f. 11. Claim 3g

Defendants concede Claim 3g is exhausted as to the issue whether "the March 15, 2001, CDC 128-B was issued by Officer Kaiser in retaliation for the August 17, 2000, complaint filed by Plaintiff's visitor, Natalie Bolds." In Claim 3g, plaintiff asserts: Beginning 1/28/01, [various defendants] caused Plaintiff to be retaliated against further by KAISER with "Harassment" under state law which included a perjured write-up merely for having slight (if any) beard stubble when twice surprised by unexpected visitors. (emphasis in original). It is unclear whether the "write-up" referenced by plaintiff is the March 15, 2001, CDC 128-B referenced by defendants. To this extent this claim is different than the claim defendants concede is exhausted, defendants do not present the court with any particular arguments concerning exhaustion, other than their concession. Therefore, the court must conclude that this claim is exhausted. 19

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12.

Claim 3h

Defendants do not offer any specific argument as to Claim 3h, in which plaintiff asserts that defendants impeded his efforts to submit inmate grievances. Therefore, defendants cannot meet their burden of establishing that this claim is unexhausted.10 13. Claim 4

In Claim 4, plaintiff alleges that, between May 3, 2001, and September 12, 2001, defendants engaged in retaliatory conduct following plaintiff's election on May 2, 2001, to the MAC. In particular, plaintiff asserts in Claim 4c that "[defendants] jointly caused Plaintiff to repeatedly suffer retaliatory harassment, intimidation, & deprivation of guaranteed rights & liberties under state law regarding the performance of his authorized/required duties . . . as . . . MAC vice-chairman . . . on 7/12/01 with STANLEY unlawfully restraining/impeding his performance. . . ." Defendants concede that Claim 4c is exhausted "as to the discreet issue . . . of whether the work supervisor's report issued . . . on July 12, 2001, was intended to harass and retaliate against Plaintiff for his conduct as the MAC vice-chairman." Defendants otherwise argue that the remainder of Claim 4 is unexhausted. Addressing plaintiff's claims in Claim 4 relating to the period from May 3, 2001, through July 24, 2001, defendants provide evidence indicating that the only grievance submitted by plaintiff within 15 working days of any date in this period was a July 25, 2001, grievance concerning the work supervisor's report. As to the period from July 25, 2001, through September 12, 2001, the log of plaintiff's inmate grievances reflects that plaintiff submitted a grievance on August 7, 2001, complaining of a late response to an earlier appeal, but not relating to any of the allegations set forth in Claim 4. Plaintiff's next inmate grievance concerned receipt of a copy of his administrative segregation placement notice and was resolved informally on October 18, 2001. This grievance did not relate to any of the claims alleged in Claim 4. Plaintiff's next three As with Claim 3d, Claim 3h is no longer before the court because all defendants named in this sub-claim have been dismissed. 20
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grievances were submitted on October 23, 2001, November 1, 2001, November 4, 2001. Defendants conclude that, because none of these was submitted within 15 working days of September 12, 2001, none of them operates to exhaust any of the claims in Claim 4. Again, referring this time to pages A-28 through A-32 of the declaration attached to his opposition brief, plaintiff asserts that defendants thwarted his ability to file grievances concerning the claims outlined in Claim 4. However, as with plaintiff's other assertions that his grievances were thwarted, plaintiff does not offer any specificity of the attempts he made to file grievances or what defendants did to thwart his attempts to do so. The matters set forth in the referenced pages of plaintiff's declaration appear to be a recitation of the allegations in the third amended complaint and do not provide any specificity as to thwarted grievances. Plaintiff's repeated citations to Hemphill v. New York, 380 F.3d 680 (2nd Cir. 2004), in support of his argument that defendants thwarted his efforts to exhaust are unpersuasive. In Hemphill, the Second Circuit Court of Appeals concluded that a three-part inquiry should be undertaken by the district court when "a prisoner plaintiff plausibly seeks to counter defendants' contention that the prisoner has failed to exhaust available administrative remedies." Id. at 686 (emphasis added). The court finds that the word "plausibly" is significant in that the inquiry suggested in Hemphill is not required unless the plaintiff's counter to a nonexhaustion argument is plausible in the first instance. Here, plaintiff's arguments are entirely conclusory and, therefore, not plausible. To be plausible, plaintiff would, as discussed above, have to present the court with specific factual allegations (i.e., as to his attempted efforts to file grievances and what defendants allegedly did to thwart those efforts) which would take his contention out of the realm of mere speculation. /// /// /// /// 21

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14.

Claim 5

In Claim 5a, plaintiff states that, between September 22, 2001, and September 26, 2001, he suffered retaliatory placement in administrative segregation. In Claim 5b, plaintiff outlines various specific alleged instances of retaliatory treatment he suffered while in administrative segregation in late September 2001. In particular, he states that: (1) he was forced to strip naked and awkwardly contort his body while locked in a small cage; (2) he was deprived of all personal property; (3) he was denied minimum laundry and bedding; (4) he was treated without distinction from prisoners who were in administrative segregation for punitive reasons; and (5) he was not allowed any phone calls. In Claim 5c, plaintiff alleges that, following his release from administrative segregation on September 26, 2001, various defendants "caused a perjured document to be placed in Plaintiff's permanent record to inaccurately reflect false justification for his above confinement in ad-seg." Finally, in Claim 5d, plaintiff asserts that defendants obstructed his ability to file inmate grievances regarding his confinement in administrative segregation in late September 2001. Defendants contend that these claims are all unexhausted. Defendants' evidence reveals that the next grievance filed after plaintiff's release from administrative segregation at the end of September 2001 was submitted on November 4, 2001. This appeal ­ log no. MCSP-B-0103110 ­ challenges the reasons he was placed in administrative segregation on September 22, 2001, the reasons for his release on September 26, 2001, and the veracity of various documents placed in his central file concerning the September 2001 administrative segregation placement. Defendants conclude that this grievance fails to satisfy the exhaustion requirement because it "makes no claim of retaliation in connection with Plaintiff's placement in ad-seg . . ., his conditions of confinement, his ad-seg. placement review, or the contents of forms CDC-114-D and CDC 128G." /// /// 22

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A review of the grievance referenced by defendants reveals that plaintiff complains of three alleged falsehoods contained in a November 1, 2001, "CDC 128-G classification chrono." The essence of plaintiff's grievance was that he was improperly placed in administrative segregation between September 22, 2001, and September 26, 2001, and the reasons reflected in the classification chrono for his placement were not correct. This comports with the general claim set forth in Claim 5c regarding the allegedly "perjured document" placed in plaintiff's file following his release from administrative segregation. Therefore, Claim 5c is exhausted. As defendants note, plaintiff makes no reference to the conditions of his confinement in administrative segregation in late September 2001. Therefore, plaintiff failed to exhaust administrative remedies as to the allegations set forth in Claim 5b. As to plaintiff's general claim that he was improperly placed in administrative segregation, as set forth in Claim 5a, the court finds that this claim is sufficiently exhausted and again rejects defendants' suggestion that the court adopt a rule requiring the plaintiff to state legal theories (i.e., retaliatory motive) in his administrative appeals. Finally, as to Claim 5d, in which plaintiff alleges that his attempts to file grievances were thwarted, plaintiff fails to provide any specificity upon which this court can conclude that exhaustion should be excused. Based on the foregoing, the court concludes that the claims set forth in Claim 5b are unexhausted but that, otherwise and to the extent the remaining sub-claims in Claim 5 state a stand-alone claim based on retaliation, such claims are exhausted. 15. Claim 6

In Claim 6a, plaintiff alleges that, on October 3, 2001, various defendants "jointly caused Plaintiff to suffer being coerced by WARREN to not seek election to a vacant MAC position." In Claim 6b, plaintiff asserts that, on October 22, 2001, various defendants "jointly caused Plaintiff to suffer being falsely & otherwise unlawfully told by WARREN that he was banned from the MAC and not allowed to retain the position he had been lawfully elected to on 10/19/01." In Claim 6c, plaintiff alleges that, on March 3, 2002, various defendants improperly 23

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ordered an election be held for the MAC seat he won in February 2002. In Claim 6d, plaintiff asserts that he was manipulated into withdrawing his grievance by threats of further retaliation. Defendants argue that Claims 6a-b are unexhausted because plaintiff's grievance at log no. MCSP-B-01-03021: (1) did not mention retaliatory motivation; and (2) the grievance was withdrawn at the second level and was not advanced through the final level of review. As to Claims 6c-d, defendants argue that, while plaintiff submitted a grievance on March 1, 2002, the grievance made no mention of retaliation and was withdrawn on March 7, 2002. For the reasons discussed above, the court rejects defendants' argument that the lack of reference to retaliation in his prison grievances renders the claims unexhausted. As to plaintiff's contention that he was coerced into withdrawing the grievance, the documents submitted by defendants indicate that plaintiff withdrew the appeal because there was no opposition to his appointment as a representative on the MAC, and that plaintiff agreed not to seek re-election to the MAC until September 2002. Further, plaintiff does not provide any detail as to the alleged coercion such that the court could conclude that the exhaustion requirement should be excused. Because, however, plaintiff voluntarily withdrew the relevant grievances, and because he has not presented any specific evidence as to coercion, the court finds that Claim 6 is unexhausted in its entirety. 16. Claim 7

In Claim 7, plaintiff alleges that, on October 29, 2001, and October 31, 2001, various defendants "jointly caused the lawful information to be arbitrarily and capriciously confiscated for no legitimate reason which served a valid penological objective." Generally, plaintiff complains of information he posted on a prisoner bulletin board being removed. Of the defendants named in Claim 7, only defendants Hogan and Warren remain. Defendants concede that the claim is exhausted as to defendant Warren, but contend that "in the absence of a claim that the confiscation of his written material by Officer Hogan was retaliatory in nature, Plaintiff failed to comply with the PLRA exhaustion requirement . . . ." The court does not agree. First, as discussed above, the PLRA does not require prisoners to allege legal theories in their inmate 24

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grievances. Second, the procedural requirements for prison grievances set out in the applicable California regulations do not require prisoners to name specific officials. Therefore, given that plaintiff submitted a grievance as to the removal of items from the bulletin board in October 2001, and pursued that grievance through to the final level of review ­ as defendants concede ­ the court finds that Claim 7 is exhausted. 17. Claims 8a-d

In Claim 8a, plaintiff alleges that on May 29, 2002 ­ one week after a January 2002 lawsuit by plaintiff was served on various defendants ­ plaintiff filed a grievance because he was being required to have his ID card "out of his pocket and in hand" each time he entered the dining facility even though state regulations only require an ID card be shown upon being asked by a prison guard to do so. In Claim 8b, plaintiff asserts that, on May 30, 2002, he was forced to eat dinner while standing and locked in a small cage. In Claim 8c, plaintiff states that, on May 31, 2002, he filed another grievance, but that various defendants "committed obstruction of justice by jointly causing review of the matter to be illegally impeded and otherwise conducted in violation of Plaintiff's guaranteed grievance rights." In Claim 8d, plaintiff alleges that, on June 7, 2002, and June 8, 2002, he was "subject . . . to physical, verbal, & mental coercion, duress, menace, & threats of retaliatory & otherwise unlawful disciplinary action for not withdrawing the above grievance of 5/31/02."11 /// /// /// /// /// It appears that this grievance was never withdrawn. Given that plaintiff did not withdraw the May 2002 grievance despite alleged coercion to do so, plaintiff's contention that he was coerced into withdrawing the grievance discussed above in the context of Claim 6 is even less tenable. 25
11

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As to plaintiff's complaints regarding ID cards set forth in Claim 8a, defendants note that plaintiff filed two inmate grievances concerning this issue. The first was granted at the first level and not pursued further.12 The second, was screened out as duplicative.13 Thus, defendants conclude plaintiff failed to exhaust his administrative remedies as to this claim. The court does not agree. The first grievance was essentially designated a staff complaint. As such, once prison officials responded at the first level that appropriate action would be taken against the officers, plaintiff had no further ability to pursue the matter and it must be considered exhausted. Therefore, Claim 8a is exhausted. Regarding plaintiff's allegation in Claim 8b that he was required to eat while standing in a small cage, defendants' evidence indicates that a May 31, 2002, grievance ­ in which plaintiff complained of both the ID issue and the eating issue ­ was screened out as duplicative. Specifically, at page 207 of Exhibit A, an "Inmate/Parolee Appeals Screening" form dated June 10, 2002, states: "Currently, we are processing an appeal you submitted for this same issue on 6/3/02." It is unclear, however, whether "this same issue" refers to the ID issue or the eating issue. As discussed above, the ID issue was exhausted by the first grievance. To the extent "this same issue" refers to the eating issue, and to the extent that issue is the subject of the June 3, 2002, grievance, it is possible that plaintiff exhausted the eating issue via the June 3rd grievance. Given that defendants do not discuss the June 3rd grievance, defendants have not met their burden of establishing that the eating issue outlined in Claim 8b is unexhausted. /// /// ///

The first level response indicates that "[a]ppropriate disciplinary action was taken against the officers. . . ." In the second grievance, plaintiff also complained about being made to eat while standing in a small cage. 26
13

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Turning to Claim 8d, which relates to events on June 7, 2002, and June 8, 2002, defendants state that the issue is unexhausted because plaintiff did not submit any grievances within 15 working days of June 8, 2002. The court agrees and finds that plaintiff's contentions that defendants thwarted his efforts to file grievances are unpersuasive. Therefore, Claim 8d is unexhausted. 18. Claims 8e-f

Defendants do not provide the court with any specific arguments or evidence concerning Claims 8e-f, in which plaintiff alleges continuing retaliation on June 9, 2002, and again on July 8, 2002. Therefore, even though defendants argue generally that all of Claim 8, with the exception of a portion of Claim 8h, is unexhausted, defendants cannot meet their burden of establishing that Claims 8e-f are unexhausted.14 19. Claims 8g-h

In Claim 8g, plaintiff alleges that, on July 17, 2002, defendants "jointly caused a convicted cop murderer . . . to be unlawfully used to further terrorize and otherwise retaliate against Plaintiff after Plaintiff reported a violent knife threat [against] him on 7/15/02. . . ." In Claim 8h, plaintiff states that, on September 6, 2002, plaintiff was falsely accused of a disciplinary violation "merely because he had freely expressed himself to POE from behind a solid metal door of his locked cell." Defendants concede that Claim 8h is exhausted except as to the portion of the claim relating to defendant Lattimore. As to Claim 8g, defendants argue that plaintiff's next inmate grievance after July 17, 2002, was submitted on August 18, 2002, and did not concern any of the allegations in Claim 8g. The inmate referenced in Claim 8g is inmate Porter. The August 18, 2002, grievance concerns alleged harassment by inmate Woodward, not Porter, and was granted at the second level and not pursued further by plaintiff. Defendants conclude that Claim 8g is unexhausted Though the claim is exhausted, Claim 8e is no longer before the court because all defendants named in that sub-claim have been dismissed. 27
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because plaintiff did not submit any timely grievance concerning inmate Porter. The court agrees. As to Claim 8h, defendants argue that the claim is unexhausted as to defendant Lattimore's "review of the rules violation hearing documentation. . ." because plaintiff's grievance "does not claim that Captain Lattimore's review of the rules violation hearing documentation was retaliatory in nature." The court rejects this reasoning and concludes that plaintiff's failure to mention retaliatory motive by Lattimore in his inmate grievance does not render the claim unexhausted. 20. Claim 8i

Defendants provide no specific argument or evidence regarding Claim 8i, in which plaintiff alleges that defendants obstructed review of his grievances.15 21. Claim 8j

In Claim 8j, plaintiff asserts that, beginning on October 23, 2002, he was issued a false rules violation report "after and because he had reported all the misconduct and violations of state law committed by GUTIERREZ in adjudicating the retaliatory & otherwise illegal disciplinary action above which began on 9/6/02." Defendants' evidence indicates that plaintiff submitted a grievance concerning allegedly false disciplinary reports on October 30, 2002, and re-submitted the same grievance on December 11, 2002. The first grievance was screened out as procedurally defective, and the second was screened out as untimely. Because plaintiff did not re-submit the initially defective appeal within a timely manner, he failed to comply with the applicable procedural requirements and, for this reason, Claim 8j is unexhausted. /// /// /// This claim is no longer before the court because all specifically named defendants have been dismissed. 28
15

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22.

Claim 8k

Defendants do not provide any specific arguments as to Claim 8k, in which plaintiff states that his attempts to submit grievances were thwarted.16 23. Claims 8l-n

In Claim 8l, plaintiff alleges that, on November 6, 2002, and November 9, 2002, he again suffered retaliatory disciplinary charges "for posting lawful information on a bulletin board. . . ." In Claim 8m, plaintiff alleges that, "[b]y 11/21/02, all defendants thus far named herein . . . jointly caused Plaintiff's mental health to be so badly eroded because of the retaliatory campaign of oppression . . . ." In Claim 8n, plaintiff asserts that, on December 13, 2002, various defendants caused him to be denied breakfast by withholding eating utensils. As to Claim 8l, defendants argue the claim is unexhausted because the appeal logs do not show that plaintiff filed any grievances within 15 working days of November 9, 2002, concerning allegedly false disciplinary charges. Defendants reference a grievance submitted on November 18, 2002, but this grievance concerned plaintiff's claim that the appeals coordinator had improperly screened out his prior grievances concerning Gutierrez. The court agrees with defendants that Claim 8l is unexhausted. Plaintiff's argument that a grievance submitted on November 1, 2001, in connection with complaints outlined in Claim 7 provided prison officials sufficient opportunity to "address, resolve, and thereby prevent any future violation(s)" is unpersuasive because plaintiff's November 2001 grievance could not have addressed the specific instances of alleged misconduct in November 2002 which had not yet occurred. As to Claim 8m, the court has previously concluded that this is not a separate claim for relief, but an allegation as to plaintiff's alleged damages. Exhaustion is not an issue as to this claim. Again, this assertion strikes the court as untenable given that plaintiff clearly was able to file numerous grievances, many of which were timely and otherwise procedurally adequate. In any even