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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NORMAN TIMOTHY GREGORY,

Plaintiff, No. CIV S-04-2523 DFL PAN P

vs.

T. AYERS, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Plaintiff claims that defendants violated his constitutional rights by acting

with deliberate indifference to his serious medical needs, retaliating against him for filing inmate

grievances, and depriving him of due process in a prison disciplinary proceeding. This matter is

before the court on defendants’ motion to dismiss this action pursuant to the unenumerated

portion of Fed. R. Civ. P. 12(b) due to plaintiff’s failure to exhaust administrative remedies prior

to suit, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may

be granted.

On May 11, 2005, plaintiff received the notice required by Wyatt v. Terhune, 315

F.3d 1108 (9th Cir. 2003) with respect to the requirements for opposing a motion to dismiss for

failure to exhaust administrative remedies.

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 Defendant Ramirez is identified as “D. Ramerez” in the complaint filed November 29, 1

2004.

2

ALLEGATIONS OF THE COMPLAINT

Plaintiff’s complaint contains the following claims and allegations in support

thereof. First, on April 5, 2004, defendant Ramirez acted with deliberate indifference to 1

plaintiff’s serious medical needs by refusing to give him food as ordered by a physician after

plaintiff completed a medically directed fast in advance of lab tests. Second, on or about April

28, 2004 and April 29, 2004, defendants Reuter and Glensor retaliated against plaintiff and

interfered with his “right of access” by threatening to withhold plaintiff’s personal property

unless plaintiff dropped a inmate grievance that he had filed against defendant Ramirez. Third,

on April 30, 2004, defendants Reuter and Coombs retaliated against plaintiff for filing an inmate

grievance against defendants Reuter and Glensor by ordering plaintiff out of his cell, proceeding

to “tear up” plaintiff’s cell, and breaking plaintiff’s walkman. Fourth, defendants Phillips and

Clayton retaliated against plaintiff by filing false disciplinary charges against him. Finally,

defendants Gentry, Knowles, Clayton, Grannis, Shepherd, Ayers, Kelsch, Reuter, Coombs,

Phillips and Runnels “individually and collectively” conspired to, and did, cause plaintiff to

suffer, unlawful disciplinary action, unlawful retaliation, and chill his right to file administrative

appeals.

DEFENDANTS’ MOTION

Defendants make the following contentions in their motion to dismiss. First, 

plaintiff failed to exhaust his administrative remedies with respect to his Eighth Amendment

claim against defendant Ramirez, his claim of retaliation and filing a false disciplinary against

defendant Clayton, his conspiracy to chill his appeal rights against defendants Gentry, Knowles,

Clayton, Grannis, Shepherd, Ayers, Kelsch, Glensor, Reuter, Coombs, Phillips, and Runnels and

his denial of access and violation of due process claim against defendants Gentry, Knowles, 

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Clayton, Grannis, Shepherd, Ayers, Coombs, Phillips, and Runnels. Second, defendants contend

that plaintiff has failed to state any cognizable claim for relief against any defendant.

ANALYSIS

I. Failure to Exhaust Administrative Remedies

“Section 1997e(a) of Title 42 of the United States Code provides:

No action shall be brought with respect to prison conditions under

[42 U.S.C. § 1983], 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.

This exhaustion requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001).”

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Porter v. Nussle, 534 U.S.

516, 524 (2002). Exhaustion must precede the filing of the complaint and compliance with the

statute is not achieved by satisfying the exhaustion requirement during the course of an action. 

McKinney, 311 F.3d at 1199. Defendants have the burden of establishing that plaintiff failed to

satisfy the exhaustion requirement of 42 U.S.C. § 1997e(a). See Wyatt, 315 F.3d at 1120; Brown

v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). 

A. Plaintiff’s Claim Against Defendant Ramirez

In support of their motion to dismiss, defendants present evidence that on or about

April 12, 2004, plaintiff filed an inmate grievance, dated April 6, 2004, against defendant

Ramirez complaining that defendant Ramirez had denied him food on April 5, 2004 after

completion of medically ordered lab tests. (See Ex. B to Defendants’ Motion to Dismiss, filed

August 29, 2005, Declaration of A. Orozco, at ¶ 13 and Attachment 1 thereto.) The grievance

was assigned Log No. 04-0620. (Id.) Defendants contend both that plaintiff did not pursue this

grievance to the third and final level of administrative review, and that plaintiff did not claim

therein that defendant Ramirez had been deliberately indifferent to his serious medical needs.

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 Defendant Knowles’ determination was based on (1) denials by Lt. Glensor and Sgt. 2

Reuter that they threatened plaintiff to coerce him into dropping his grievance against defendant

Ramirez; (2) plaintiff had not presented any evidence to substantiate his claim that Sgt. Reuter

had threatened him; (3) plaintiff’s request for second level review was dated April 27, 2004, two

days before his discussion with Lt. Glensor and Sgt. Reuter; and (4) plaintiff had not submitted

his request for second level review through the proper institutional channels nor had he informed

the inmate Appeals Coordinator that he felt threatened and therefore did not timely seek second

level review. (Memorandum dated July 8, 2004, at 4-5.) 

4

In opposition to the motion, plaintiff contends that he was blocked from pursuing

this grievance through all levels of administrative review by the alleged actions of defendants

Reuter and Glensor, which are the subject of plaintiff’s second cause of action.

Attached to plaintiff’s complaint is a memorandum dated July 8, 2004 to plaintiff

from defendant Mike Knowles. In that memorandum, defendant Knowles considered and

rejected plaintiff’s administrative grievance charging defendants Glensor and Reuter with

threatening plaintiff with disciplinary action for pursuing a grievance against defendant Ramirez. 

(Attachment to Complaint, Memorandum dated July 8, 2004 (hereafter July 8, 2004

Memorandum, at 1.) The latter grievance was assigned Log No. FSP 04-00733. (Id.) In that

memorandum, defendant Knowles, inter alia, denied plaintiff’s request for review of grievance

Log. No. 04-0620 at the second level of review on the ground that such review was untimely. 

(July 8, 20004 Memorandum, at 5.) The memorandum specifically advised plaintiff that the 2

“issue” could be submitted for Director’s Level Review. (Id.) 

On October 14, 2004, defendant Grannis issue a Director’s Level Decision was

issued to plaintiff denying inmate grievance FSP 04-00733. (Attachment to Complaint,

Director’s Level Appeal Decision dated October 14, 2004.) Subsumed in that decision are

findings concerning the adequacy of review of plaintiff’s allegations, including those concerning

grievance Log No. 04-0620. (Id. at 2.)

After careful review of the record herein, this court finds that the proceedings on

Log No. FSP 04-00733 were sufficient to exhaust plaintiff’s administrative remedies with respect

to the allegations against defendant Ramirez contained in grievance Log No. 04-0620. 

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Moreover, the court further finds that the allegations of the latter grievance are sufficiently

similar to the claim raised in this action against defendant Ramirez to satisfy the exhaustion

requirement of 42 U.S.C. § 1997e. 

For all of the foregoing reasons, this court finds that plaintiff satisfied the

exhaustion requirement of 42 U.S.C. § 1997e(a) with respect to his claim against defendant

Ramirez. 

B. Plaintiff’s Claim Against Defendant Clayton

Defendants contend that plaintiff did not submit any inmate grievance against

defendant Clayton claiming retaliation or submission of a false disciplinary report against

plaintiff, and they present evidence to support this contention. (See Ex. A to Motion to Dismiss,

Declaration of N. Grannis, at ¶ 10; Ex. B to Motion to Dismiss, Orozco Declaration, at ¶ 15.) 

Plaintiff disputes this evidence, contending that his grievance Log No. 04-1094 includes

allegations against defendant Clayton.

The record reflects that defendant Clayton was the supervisor who reviewed and

signed off on a rules violation report by defendant Phillips charging plaintiff with making false

allegations against a peace officer. (Attachment to Complaint, Rules Violation Report dated

June 7, 2004.) Through grievance Log No. 04-1094, plaintiff exhausted administrative remedies

with respect to his contentions arising out of those disciplinary proceedings. (Attachment to

Complaint, Inmate/Parolee Appeal Form Log No. 04-1094.) Those administrative proceedings

were adequate to exhaust administrative remedies with respect to plaintiff’s claim against

defendant Clayton.

C. Plaintiff’s Fifth Claim for Relief

Defendants contend that plaintiff did not submit any inmate grievance against

defendants Gentry, Knowles, Clayton, Grannis, Shepherd, Ayers, Kelsch, Glensor, Reuter,

Coombs, Phillips or Runnels alleging conspiracy to chill his appeal rights, nor any grievance

against defendants Gentry, Knowles, Clayton, Grannis, Shepherd, Ayers, Coombs, Phillips or

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Runnels alleging denial of access or violation of due process and they present evidence to

support these contentions. (See Ex. A to Motion to Dismiss, Grannis Declaration, at ¶ 10; Ex. B

to Motion to Dismiss, Orozco Declaration, at ¶ 15.) 

In opposition to the motion, plaintiff contends that (1) all of his grievances were

merged into one grievance by defendants Gentry and Knowles, and (2) these claims were all

referred to at page 56 of plaintiff’s inmate grievance Log No. 04-1094, a copy of which is

attached to the complaint.

The court has carefully reviewed Log No. 04-1094, a copy of which is attached to

plaintiff’s complaint. Therein, plaintiff alleges, inter alia, that defendant Kelsch “deliberately

deleted [plaintiff’s] written statement, documents and physical evidence to assist Lt. Phillips, Lt.

Glensor, Sgt. Reuter and C/O Coombs in retaliating against [plaintiff.].” (Attachment to

Complaint, Log No. 04-1094, at 2.) Those allegations, without more, are insufficient to state a

cognizable claim of conspiracy to chill plaintiff’s appeal rights. Moreover, the gravamen of the

complaint raised in Log No. 04-1094 is a challenge to the disciplinary conviction that followed

defendant Philllips’ issuance of the rules violation report for making false charges against a peace

officer. The hyperbole in the grievance notwithstanding, this court does not find that plaintiff

exhausted administrative remedies with respect to any conspiracy claim against defendants

Gentry, Knowles, Clayton, Grannis, Shepherd, Ayers, Kelsch, Glensor, Reuter, Coombs, Phillips

or Runnels. Moreover, for the reasons set forth in section IID, infra, this court finds that the

complaint does not state a cognizable conspiracy claim against any named defendant. For these

reasons, this aspect of plaintiff’s fifth claim for relief should be dismissed. 

Liberally construed, the allegations of grievance Log No. 04-1094 are sufficient to

exhaust administrative remedies with respect to plaintiff’s claim that defendants Kelsch, Phillips,

Glensor, Reuter, Coombs and Gentry violated plaintiff’s right to due process when they affirmed

the disciplinary conviction during the grievance process. However, for the reasons set forth in

section IIC and D, infra, such a claim is not cognizable in this § 1983 action. 

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In addition, to the extent that the claimed “denial of access” is a claim that said

defendants by their actions attempted to chill plaintiff’s right to file inmate grievances, the

allegations of grievance Log No. 04-1094 is insufficient to exhaust such a claim against

defendants Knowles, Grannis, Shepherd, or Ayers. Even if the allegations of the grievance are

sufficient to exhaust that claim against defendants Kelsch, Phillips, Clayton, Glensor, Reuter,

Coombs and Gentry, for the reasons set forth in section IID, infra, the allegations are insufficient

to state a claim upon which relief may be granted.

For these reasons, plaintiff’s fifth claim for relief should be dismissed as to all

defendants. 

II. Failure to State A Claim

Defendants also contend that none of the allegations of the complaint are

sufficient to state a cognizable claim for relief. In considering a motion to dismiss, the court

must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex

Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to

the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v.

McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). Moreover, pro se pleadings

are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S.

519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it

appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would

entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651

F.2d 1289, 1294 (9th Cir. 1981).

A. Defendant Ramirez

Defendants first contend that plaintiff’s allegations that, despite a doctor’s order,

defendant Ramirez denied him breakfast and a sack lunch on April 5, 2004 following a

medically-ordered fast are insufficient to state a cognizable claim for violation of plaintiff’s

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Eighth Amendment rights. Defendants contend that deprivation of one or two meals on a single

day does not violate the constitution, and that plaintiff has failed to allege that the alleged denial

of meals caused him any harm or injury.

Plaintiff’s claimed deprivation of breakfast and lunch on one day is insufficient to

state a cognizable claim for violation of his right to adequate nutrition under the Eighth

Amendment. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9 Cir. 1993) (quoting Hudson v. th

McMillian, 503 U.S. 1, 9 (1992) (“extreme deprivations are required to make out a conditions-of

confinement claim. . . .”). Nor are the allegations sufficient to state a cognizable claim for

deliberate indifference to a serious medical need in violation of the Eighth Amendment. See

Farmer v. Brennan, 511 U.S. 825, 838 (1994) (in order to state cognizable claim inmate must

allege facts which show prison official knew of and disregarded an excessive risk to an inmate’s

health). Accordingly, the court will recommend dismissal of plaintiff’s claim against defendant

Ramirez.

B. Retaliation Claims

Defendants contend that plaintiff has failed to state cognizable retaliation claims

against either defendants Reuter or Glensor based on the alleged refusal to return plaintiff’s radio

unless he dropped his grievance against defendant Ramirez, or defendants Reuter and Coombs

for the alleged retaliatory cell search and destruction of plaintiff’s walkman. This aspect of

defendants’ motion, however, is based on argument from their version of the facts and not on the

allegations of the complaint as viewed in a light favorable to the plaintiff. The allegations of the

complaint are sufficient to state cognizable retaliation claims against these three defendants. 

Defendants’ motion to dismiss plaintiff’s second and third claims for relief should be denied.

C. Fourth Claim for Relief

In his fourth claim for relief, plaintiff claims that defendants Phillips and Clayton

retaliated against him by filing false disciplinary charges against plaintiff in retaliation for

plaintiff’s filing of an inmate grievance. Defendants seek dismissal of this claim on several

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grounds, including that it is barred by the rule announced in Edwards v. Balisok, 520 U.S. 641

(1997). In Edwards, the U.S. Supreme Court extended the rule announced in Heck v. Humphrey,

512 U.S. 477 (1994), to prison disciplinary proceedings. Specifically, the court held that a suit

for damages on a civil rights claim concerning an allegedly unconstitutional disciplinary

conviction that necessarily implies the invalidity of the deprivation of good-time credits is not

cognizable in a § 1983 action unless the conviction has been reversed or expunged or the lost

time credits have been restored.

The record reflects that plaintiff lost sixty days of good time credits as a result of

the disciplinary conviction that resulted from the rules violation report issued by defendant

Phillips and approved by defendant Clayton. (See Attachment to Complaint, Log. No. 04-1094,

at 6.) Plaintiff’s claim against these defendants implicates the validity of that credit loss, and

there is no evidence that those lost credits have been restored or that the disciplinary conviction

has been set aside. Plaintiff’s fourth claim for relief should therefore be dismissed without

prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9 Cir. 1995) (holding that th

§1983 claims barred by Heck should be dismissed without prejudice).

D. Fifth Claim for Relief

Defendants seek dismissal of the conspiracy claim raised in plaintiff’s fifth claim

for failure to state a cognizable claim. For the reasons set forth supra, plaintiff failed to exhaust

administrative remedies with respect to any claim that defendants conspired to violate his

constitutional rights. Moreover, the allegations of conspiracy are too vague and conclusory to

support such a claim in this § 1983 action. For these reasons, plaintiff’s conspiracy claim should

be dismissed.

Defendants also contend that plaintiff has failed to state a cognizable claim for

“denial of access.” Defendants contend that the record shows that plaintiff was in fact permitted

to take his grievances to the third and final level of administrative review, and that he was not

prevented from bringing any civil rights action arising from the events complained of. 

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 It is true that plaintiff’s initial grievance against defendant Ramirez was not pursued

3

directly to the final level of administrative review. It was, however, presented and considered in

conjunction with his grievance against defendants Reuter and Glensor for alleged retaliation.

10

In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held

that prison inmates have a constitutionally protected right to access the courts to bring civil rights

actions to challenge their conditions of confinement and to bring challenges to their criminal

convictions. Lewis v. Casey, 518 U.S. at 351. The right of court access also includes the right to

access prison grievance procedures. See Bradley v. Hall, 64 F.3d 1276, 1279 (9 Cir. 1995). th

However, the right of access to the courts “guarantees no particular methodology but rather the

conferral of a capability -- the capability of bringing contemplated challenges to sentences or

conditions of confinement before the courts.” Id. at 356. To state a cognizable claim for

violation of this right, plaintiff must allege facts that show that defendants by their acts

prevented him from bringing, or caused him to lose, an actionable claim of this type. Id. 

The record demonstrates that plaintiff ultimately was able to pursue his inmate

grievances through all levels of administrative review and that no action by any defendant 3

prevented plaintiff from bringing this civil rights action. Plaintiff’s claim for denial of access

should therefore be dismissed.

Finally, plaintiff alleges in conclusory fashion that several defendants violated his

right to due process. These allegations are only cognizable, if at all, in connection with a claim

that there was insufficient evidence to support his disciplinary conviction. For the reasons set

forth in section IIC, supra, however, such a claim is barred by Edwards v. Balisok.

For all of the foregoing reasons, plaintiff’s fifth claim for relief does not state a

cognizable claim for relief against any defendant named therein. It should therefore be

dismissed. 

In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ August 29, 2005 motion to dismiss be denied as to plaintiff’s

retaliation claims against defendants Reuter, Glensor, and Coombs, and granted in all other

respects;

2. Plaintiff’s claims arising out of his June 30, 2004 disciplinary conviction on

charges of making false allegations against a peace officer be dismissed without prejudice; and

3. Defendants Reuter, Glensor and Coombs be directed to answer the second and

third claims raised in plaintiff’s complaint within twenty days from the date of any order by the

district court adopting these findings and recommendations.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

days after being served with these findings and recommendations, any party may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge's

Findings and Recommendations.” The parties are advised that failure to file objections within

the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED: March 2, 2006. 

12

greg2523.mtd

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