MACHIAVELLI v. ABBOTT JR et al
REPORT AND RECOMMENDED DECISION re 61 MOTION for Summary Judgment filed by ANTONIO MENDEZ, RANDALL LIBERTY, HAROLD ABBOTT JR, TROY ROSS. Objections to R&R due by 4/18/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HAROLD ABBOTT, JR., et al.,
RECOMMENDED DECISION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Anthony Machiavelli, currently incarcerated at the Maine
State Prison, alleges that Defendants – Warden Randall Liberty, Deputy Warden Troy
Ross, Captain Harold Abbott, Jr., and Unit Manager Antonio Mendez – violated his
constitutional rights when they denied him due process of law in connection with certain
disciplinary proceedings, and imposed sanctions in retaliation for Plaintiff’s pursuit of
The matter is before the Court on Defendants’ Motion for Summary Judgment.
(ECF No. 61.) Through the motion, Defendants argue that Plaintiff failed to exhaust the
available administrative remedies with respect to his retaliation claim, that the record lacks
any evidence of retaliatory intent, and that Plaintiff’s due process claim is moot because
the decision about which he complains was subsequently reversed.
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court grant the motion.
In 2014, Plaintiff was classified as medium custody, and was assigned to and
worked in the close custody unit managed by Defendant Mendez.1 (Defendants’ Statement
of Material Facts (DSMF), ECF No. 62, ¶ 2; Plaintiff’s Opposing Statement of Material
Facts (POSMF), ECF No. 78, ¶ 2; Supp. Decl. of Antonio Mendez, dated Jan. 12, 2017,
ECF No. 84-2, ¶ 2.) Plaintiff was employed on the close unit plumbing crew, for which
work he was paid $200 each month. He was one of the more highly compensated prisoners
at the prison. (DSMF ¶ 3.)
On September 26, 2014, based on information he received from a corrections officer
that Plaintiff deliberately attempted to disrupt the distribution of medication to prisoners in
the close unit by urging prisoners to slow down as they were released to receive their
medication, Defendant Mendez wrote a disciplinary report charging Plaintiff with
interference. (DSMF ¶ 5.)
Plaintiff continued to work pending the conclusion of
disciplinary proceedings that followed. (POSMF ¶ 4; Decl. of Antonio Mendez dated Jan.
1, 2017, ECF No. 84-1, ¶ 2; Plaintiff’s Statement of Additional Material Facts (PSAMF),
ECF No. 79, ¶¶ 2, 5 – 8.) According to Plaintiff, he actually worked “extra duty” in this
time. (POSMF ¶ 12; PSAMF ¶ 26.)
Following a hearing on the disciplinary report on October 24, 2014, Defendant
Abbott found Plaintiff guilty of the disciplinary violation. (DSMF ¶ 9; see also Summary
Plaintiff’s housing is reflected in an exhibit he filed in support of his statement of additional material facts.
(PSAMF, Ex. 1, ECF No. 79-2, PageID # 650.)
of Hearing, ECF No. 62-3, PageID # 459.) During the hearing, Defendant Abbott denied
Plaintiff the opportunity to present the witnesses he requested. (PSAMF ¶ 25.)
The Department’s Prisoner Discipline Policy 20.1, Procedure F, states:
Conduct constituting a disciplinary violation may result in changing a
prisoner’s custody level, housing status, and/or programs, or the taking of
any other action based on a determination that such action is in the interest
of the prisoner, in the interest of the prisoner population, or in the interest of
safety, security or orderly management of the facility, regardless of whether
the disciplinary process is initiated and, if initiated, regardless of whether the
conduct leads to an informal resolution or formal resolution of the violation.
A dismissal or a finding of not guilty does not preclude taking any such
action. Such action is not in the nature of punishment.
(DSMF ¶ 7.) Upon the guilty finding, Defendant Abbott imposed sanctions of lost good
time, a disciplinary restriction, and a $75 fine.2 (DSMF ¶ 9; see also Summary of Hearing,
ECF No. 62-3, PageID # 459.) The finding and sanction were affirmed administratively
on November 13, 2014. (Decision on Appeal, ECF No. 62-3, PageID # 478.)
Plaintiff filed a petition for judicial review in state court pursuant to Maine Rule of
Civil Procedure 80C on November 20, 2014. The petition was served on the Office of the
Attorney General and the Maine Department of Corrections on November 14, 2014. (Id.
¶ 11.) Defendant Mendez terminated Plaintiff’s employment on December 5, 2014.3
(PASMF ¶ 20.) Defendant Mendez maintains that he had no knowledge of the Rule 80C
petition when he made his decision to terminate Plaintiff from the plumber position.
On February 28, 2015, and March 11, 2015, a total of $75 was deducted from Plaintiff’s prisoner trust
account to satisfy the monetary sanction. After the deductions, Plaintiff’s account showed an available
balance of $137.50. (Id. ¶ 10.)
Plaintiff’s statement erroneously states the year as 2015.
(DSMF ¶ 8.) Plaintiff, however, states he told Defendant Mendez that he had filed an
action. (POSMF ¶ 8.)
After Plaintiff filed his Rule 80C petition, the Department of Corrections, based on
advice from the Attorney General’s office, reversed its disciplinary decision and dismissed
the disciplinary charge against Plaintiff. The Department restored the good time, refunded
the monetary sanction and reimbursed Plaintiff’s court filing fee.4 (DSMF ¶ 12.) On
March 20, 2015, the Attorney General’s office filed a motion to dismiss the petition for
judicial review as moot. On June 1, 2015, the state court granted the motion over Plaintiff’s
objection. (Id. ¶ 13.)
The Maine Department of Corrections has in place a prisoner grievance policy that
allows prisoners to “request administrative review of any policy, procedure, practice,
condition of confinement, action, decision, or event that directly affects” the prisoner.
(DSMF ¶ 15.) The Prisoner Grievance Policy provides that “[t]he prisoner shall state, using
one grievance form only, as briefly and concisely as possible, the specific nature of the
complaint, including all the persons and dates involved.” (ECF No. 62-12, PageID # 522,
On June 24, 2015, Plaintiff filed a grievance in which he stated, “I was only fired
because I was found guilty for the report and for no other reason.” (DSMF ¶ 16; Grievance
On June 19, 2015, and July 6, 2015, Plaintiff’s account was credited with refunds totaling $225,
representing reimbursement of the previously imposed $75 sanction and reimbursement of the filing fee of
$150 in Maine Superior Court. (Id. ¶ 14.) Although not explicitly stated, Plaintiff was not restored to his
plumber position. (Id.; PSAMF ¶ 17.)
Paperwork (six exhibits), ECF No. 62-13.) Plaintiff did not mention a claim of retaliation
in the grievance. (Id.) The grievance process at the prison includes complaints for
unlawful retaliation. (DSMF ¶ 15.)
As part of the grievance, Plaintiff expressed a
willingness to “accept a different job with the same pay of $200.00 per month.” (PageID
# 529.) In response to the grievance, Defendant Mendez noted that an informal resolution,
which is the initial stage of the grievance process, was not available because Plaintiff was
not entitled to reinstatement, but could apply for the position when available. (Id.)
Grievance Review Officer Wendell Atkinson responded similarly to Plaintiff’s level 1
grievance. (PageID # 530.)
In his appeal from the level 1 denial of his grievance, Plaintiff argued that the
expungement of the guilty finding should result in his return to his work. He requested
that he be reinstated with back pay. (PageID # 531.) The appeal was denied, and the
reviewing officer determined that work supervisors have the authority to remove a prisoner
from a work assignment. (PageID # 532.) In his appeal from the level 2 denial, Plaintiff
contended that his “boss” had not fired him, but instead, after 71 days, fired him because
he lost his disciplinary appeal. (PageID # 533.) On August 12, 2015, Commissioner
Fitzpatrick denied the final appeal. According to Commissioner Fitzpatrick: “Termination
from a work assignment has its own appeal process and, therefore, this matter is not
grievable.” (PageID # 534.)
Although Plaintiff was classified as a medium-custody inmate, he was assigned to
the close unit in a single-occupancy cell, principally because he has a colostomy bag.
(PSAMF ¶ 24; Client Classification Form, ECF No. 79-3, PageID # 651.) According to
Plaintiff, on July 13, 2015, he gave Defendants Abbott, Mendez and Ross a copy of his
complaint in this matter before he filed it on August 20, 2015. On July 17, 2015, Plaintiff’s
housing classification was changed and he was moved to a double cell in the medium
custody unit. (Addendum to Complaint, ECF No. 1-2, PageID # 21; POSMF ¶ 23.)5
Defendant Mendez asserts that he was unaware of this federal case when he decided to
transfer Plaintiff to the medium unit. (DSMF ¶ 23.)
Most prisoners who were transferred to the medium unit at the time were required
to double-bunk, although the specific assignments were made by the medium unit manager.
A number of prisoners, particularly those who had been accustomed to living in a single
cell for a long time, voiced strong complaints about the change. (DSMF ¶ 21.) While
Defendant Mendez asserts that Plaintiff’s transfer in July 2015 was related to a decision to
reclassify Plaintiff to medium custody in February 2015 (DSMF ¶ 22), Plaintiff in fact was
already classified as medium. In addition, although Defendant Mendez stated that on July
17, 2015, he selected eleven prisoners, including Plaintiff, to be transferred to the medium
unit (id.), for several months prior to Plaintiff’s transfer, the prison administration had been
making an effort to move as many eligible prisoners as possible from the close unit to the
medium unit due to an increase in the number of prisoners at the prison and reductions in
staff. (Id. ¶ 23.)
According to Plaintiff’s records, he was in the medium unit for one night. He was
“written up” because he threatened to throw the contents of his colostomy bag if he had to
Plaintiff’s complaint and the addenda attached to it are not verified. However, Plaintiff’s opposing
statement is sworn and notarized.
remain in a double-cell. As a result of this incident, he was placed briefly in Emergency
Observation Status and then returned to the close unit. He has remained in a single cell in
the close unit. (Id. ¶ 24.)
Plaintiff filed a grievance based on the night he was required to double-bunk, but he
did not assert that Defendant Mendez required him to double-bunk in retaliation for
Plaintiff’s participation in a protective activity. (Id. ¶ 25.) He asserted the reassignment
was “discrimination” and “punishment.” (POSMF ¶ 25.) The grievance process was
exhausted, and ended when Commissioner Fitzpatrick denied Plaintiff’s level 3 appeal on
September 21, 2015. (ECF No. 62-14.)
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving party,
resolving evidentiary conflicts and drawing reasonable inferences in the non-movant’s
favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the record
reveals evidence sufficient to support findings in favor of the non-moving party on one or
more of his claims, a trial-worthy controversy exists and summary judgment must be
denied as to any supported claim. Id. (“The district court’s role is limited to assessing
whether there exists evidence such that a reasonable jury could return a verdict for the
nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986) (“One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses.”).
Plaintiff asserts the following claims: (1) a due process claim based on the denial
of his request to present certain witnesses during a disciplinary proceeding that resulted in
a $75 monetary sanction; (2) a retaliation claim based on the decision to remove Plaintiff
from his plumber position after Plaintiff filed a Rule 80C petition in state court; and (3) a
retaliation claim based on the decision to transfer Plaintiff to the medium unit, and a
double-bunk, after Plaintiff filed this federal court action.6
The Due Process Claim
Due process requires that an inmate who is to be deprived of an interest protected
by the Due Process Clause first receive (1) advance written notice of the charges, (2) an
opportunity, when consistent with institutional safety and correctional goals, to call
witnesses and present documentary evidence in his defense, and (3) a written statement
Although Plaintiff previously asserted additional claims against more defendants, the claims asserted are
the result of the Court’s review, pursuant to 28 U.S.C. §§ 1915 and 1915A, of Plaintiff’s complaint and
amended complaint (Amended Recommendation, ECF No. 9; Order Adopting Amended Recommended
Decision, ECF No. 16; Recommended Decision on Amended Complaint, ECF No. 28; Order Adopting
Recommended Decision, ECF No. 33), and the result of the Court’s decision on Plaintiff’s motion to
supplement his complaint. (Memorandum of Decision, ECF No. 57.)
from the factfinder of the evidence relied upon and the reason for the disciplinary
action. See Superintendent v. Hill, 472 U.S. 445, 454 (1985). There must also be “some
evidence in the record” to support a disciplinary finding. Id.
Plaintiff alleges he was denied due process because he was not allowed to present
material witnesses at the disciplinary hearing that resulted in a sanction of $75. Defendants
argue the claim is moot because the Department of Corrections, within a period of four
months while the matter was subject to judicial review in state court, expunged the
disciplinary matter and restored the amount Plaintiff paid as a sanction. (Motion at 12 –
The Fourteenth Amendment prohibits state deprivation of property or liberty
without due process of law. “To establish a procedural due process claim under § 1983, a
plaintiff must [demonstrate] that [he] was deprived of a property interest by defendants
acting under color of state law and without the availability of a constitutionally adequate
process.” Maymi v. P.R. Ports Auth., 515 F.3d 20, 29 (1st Cir. 2008). Ordinarily, a
procedural due process violation is complete when a deprivation is imposed through an
established state procedure that does not comply with constitutional procedural standards.
Godin v. Machiasport Sch. Dep’t Bd. of Directors, 831 F. Supp. 2d 380, 389 – 90 (D. Me.
2011); see also Zinermon v. Burch, 494 U.S. 113, 132 (1990) (“In situations where the
Defendants also argue that the “atypical and significant hardship” standard of Sandin v. Conner, 515 U.S.
472 (1995), should apply to bar due process claims involving low-value monetary sanctions. Defendants
do not cite any specific authority that would support this approach. The holding of Sandin is based on the
limited liberty interest that a prisoner who is subject to a lawful sentence of incarceration has. Id. at 480,
483 – 84. While incarceration necessarily involves the loss of liberty, incarceration does not deprive a
prisoner of access to the prisoner’s funds in accordance with the institution’s regulations.
State feasibly can provide a predeprivation hearing before taking property, it generally
must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for
Postdeprivation remedies can in some situations cure a failure to observe procedural
standards, but the situations are generally limited to “random and unauthorized”
deprivations. San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 480 (1st
Cir. 2012). Where the deprivation is the product of an established state procedure, such as
a prison disciplinary hearing overseen by an authorized state official, the official’s failure
to follow a procedural standard cannot be characterized as random and unauthorized. Lowe
v. Scott, 959 F.2d 323, 340 (1st Cir. 1992).
Nevertheless, citing Whitmore v. Hill, 456 F. App’x 726 (10th Cir. 2012), and
Ragand v. Lynch, 113 F.3d 875 (8th Cir. 1997), Defendants argue that Plaintiff’s due
process claim is moot because Defendants restored Plaintiff’s funds and cured any alleged
procedural violation in the context of state-provided direct judicial review. (Motion at 12
– 13.) The courts in Whitmore and Ragand reasoned that given the result of the subsequent
process, the plaintiffs were not deprived of any interest without due process. Ragan, 113
F.3d at 877 (“Any defect in the committee’s process has been remedied, and Ragan has
suffered no deprivation without due process. It follows that he is not entitled to damages.”);
Whitmore, 456 F. App’x at 729 (“[T]he reversal of his disciplinary conviction, the
refunding of any fine he had already paid, and the elimination of any unpaid fine cured any
due process violation that may have occurred during the initial disciplinary hearing and
thus afforded Whitmore the process he was due.”).
The reasoning of the courts in Whitmore and Ragan is sound. Assuming, arguendo,
that Plaintiff’s inability to call witnesses at the disciplinary hearing constitutes inadequate
predeprivation process, Plaintiff received constitutionally sufficient process from the State
of Maine when the Department of Corrections, during the course of a direct judicial appeal,
expunged the disciplinary matter and restored to Plaintiff the funds of which he was
deprived. As with the plaintiffs in Whitmore and Ragan, Plaintiff was not deprived of an
interest without due process. Accordingly, Defendants are entitled to summary judgment
on Plaintiff’s procedural due process claim.
Plaintiff’s Retaliation Claims
To support a claim of first amendment retaliation, an inmate must establish (1) that
the inmate engaged in conduct protected by the First Amendment; (2) that the defendant
took adverse action against the inmate because of the protected conduct; and (3) that the
adverse action was more than de minimis, i.e., was sufficient to deter an inmate of ordinary
firmness from exercising his or her first amendment rights. Hannon v. Beard, 645 F.3d 45,
48 (1st Cir. 2011); Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003); Thaddeus-X v.
Blatter, 175 F.3d 378, 398 (6th Cir. 1999). “[T]his objective test applies even where a
particular plaintiff was not himself subjectively deterred; that is, where he continued to file
grievances and lawsuits.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004); see
also Ayotte v. Barnhart, 973 F. Supp. 2d 70, 82 (D. Me. 2013).
Defendants argue that the retaliation claims are barred because Plaintiff did not
exhaust the available administrative remedies. Alternatively, they argue the record will
not support a finding of retaliation.
Federal law requires a prisoner to exhaust the available administrative remedies
before initiating a lawsuit based on 42 U.S.C. § 1983. Specifically, the Prison Litigation
Reform Act provides: “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.”); Booth v. Churner, 532 U.S. 731, 734 (2001)
(affirming dismissal of action without prejudice based on prisoner’s failure to completely
exhaust available process even though the relief he sought was unavailable in that process).
“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Because under the PLRA exhaustion is a precondition to filing suit, a plaintiff
cannot proceed on a claim regarding prison conditions if the plaintiff initiates the lawsuit
before the plaintiff has exhausted the available administrative remedies.
Wisconsin Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999); see also Ruppert v. Aragon,
448 F. App’x 862, 863 (10th Cir. 2012) (“Since the PLRA makes exhaustion a precondition
to filing a suit, an action brought before administrative remedies are exhausted must be
dismissed without regard to concern for judicial efficiency.”).
“The Supreme Court held in Jones v. Bock that a prison’s own grievance process,
not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion
requirement.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citing Jones v. Bock,
549 U.S. at 218). The Department of Corrections’ Prisoner Grievance Policy requires the
prisoner to state, “as briefly and concisely as possible, the specific nature of the complaint,
including all the persons and dates involved.” (PageID # 522, ¶ 12.)
The generally accepted rule is that a prisoner has provided sufficient detail if the
grievance “alerts the prison to the nature of the wrong for which redress is sought.” Id.
(quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002), and collecting additional
supportive precedent from the Fifth, Sixth, and Tenth Circuits).8 The standard is “unlikely
to demand more information than prison procedures permit.” Id. In particular, “[a]
grievance need not include legal terminology or legal theories unless they are in some way
needed to provide notice of the harm being grieved.” Id. “The primary purpose of a
grievance is to alert the prison to a problem and facilitate its resolution, not to lay
groundwork for litigation.” Id.; see also Jones, 549 U.S. at 219 (citing with approval
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“[T]he grievance must provide
administrators with a fair opportunity under the circumstances to address the problem that
will later form the basis of the suit”)).9
In Strong, the Seventh Circuit reasoned that, “[a]s in a notice pleading system, the grievant need not lay
out the facts, articulate legal theories, or demand particular relief,” but must simply “object intelligibly to
some asserted shortcoming.” 297 F.3d at 650. See also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004) (characterizing the Strong approach as “a sound one”).
By way of example, in Griffin the Ninth Circuit held that the plaintiff had not failed to exhaust by failing
to use “deliberate indifference” terminology in his complaint, where “his problem concerned his
unsatisfactory bunking situation,” and that the plaintiff could notify prison officials of the problem without
alleging that it “resulted from deliberate indifference.” Id. The court, however, held that the plaintiff failed
to exhaust by omitting relevant factual information, specifically the fact that officers were disregarding the
medical order that the plaintiff receive a lower bunk. Id. at 1121. Because the “officials responding to his
grievance reasonably concluded that the nurse’s order … solved [the] problem,” the plaintiff’s repeated
As articulated by the Second Circuit:
Uncounselled inmates navigating prison administrative procedures without
assistance cannot be expected to satisfy a standard more stringent than that
of notice pleading. Still, the PLRA’s exhaustion requirement does require
that prison officials be “afford[ed] ... time and opportunity to address
complaints internally.” Porter, 534 U.S. at 524–25. In order to exhaust,
therefore, inmates must provide enough information about the conduct of
which they complain to allow prison officials to take appropriate responsive
Johnson, 380 F.3d at 697.
The gravamen of Plaintiff’s grievance regarding the loss of his employment was
that Defendant Mendez terminated his employment because of the adverse result of the
disciplinary proceedings. While Plaintiff argued he should be restored to the same or
similar employment because the disciplinary determination was expunged, he did not
allege any retaliatory motive. In other words, even under a notice pleading standard,
Plaintiff did not assert that Defendant Mendez terminated his employment because he
engaged in a protected activity.
Plaintiff’s grievance activity regarding his transfer to a medium custody shared cell
also failed to notify Defendants that he claimed Defendant Mendez’s decision to transfer
him was retaliatory. In his grievance paperwork, Plaintiff asserted the transfer constituted
“discrimination” and “punishment.” Under the circumstances, a reasonable official would
have understood “discrimination” to refer to Plaintiff’s disability, i.e., the basis (colostomy)
upon which Plaintiff asserted a right to a single cell, and would have understood
demands for a ladder to reach the top bunk did not provide sufficient information “to allow prison officials
to take appropriate responsive measures.” Id. (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
“punishment” to refer to Plaintiff’s contention that he could not be punished for the
underlying disciplinary matter. The grievance would not have notified Defendants that
Plaintiff claimed his transfer was motivated by retaliation for Plaintiff’s participation in a
The lack of any reference in Plaintiff’s grievances to retaliation or to any facts that
could reasonably suggest Plaintiff’s grievances included a retaliation claim supports
Defendants’ exhaustion argument. Indeed, the Fifth Circuit determined that even “vague
references to retaliation” in a grievance did not give prison officials sufficient notice of the
basis for a retaliation claim. Zebrowski v. U. S. Fed. Bureau of Prisons, 558 F. App’x 355,
359 – 60 (5th Cir. 2014).
Because Plaintiff’s grievance activity did not “provide
administrators with a fair opportunity under the circumstances to address the problem that
will later form the basis of the suit,” Johnson, 385 F.3d at 522, Plaintiff failed to exhaust
administrative remedies with respect to his retaliation claims.11 Accordingly, Plaintiff
cannot proceed on his retaliation claims.
Based on the foregoing analysis, I recommend the Court grant Defendants’ Motion
for Summary Judgment. (ECF No. 61.) In particular, I recommend the Court dismiss
Even if the reference to discrimination and punishment was enough to suggest to officials that they
investigate whether Mendez had retaliated on the basis of Plaintiff’s litigation activity, Plaintiff ultimately
spent only one day in a shared cell. One day in a shared cell was not sufficiently adverse to chill a
reasonably hardy, similarly situated prisoner’s exercise of first amendment rights.
In opposition to Defendants’ motion, Plaintiff relies on his grievance paperwork to demonstrate
exhaustion. In addition to failing to demonstrate proper exhaustion of his retaliation claims through that
process, Plaintiff has not provided evidence that he exhausted administrative remedies through any other
available process, such as a classification or transfer appeal process.
Plaintiff’s retaliation claims pursuant to 42 U.S.C. § 1997e(a), and enter judgment for
Defendants on Plaintiff’s due process claim.
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 4th day of April, 2017.
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