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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN HARDNEY,

Plaintiff, No. CIV S-04-1897 LKK GGH P

vs.

TOM CAREY, 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. Pending before the court is defendants’ November 10, 2005, motion to

dismiss for failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b). After

carefully considering the record, the court recommends that defendants’ motion be granted.

Plaintiff’s Allegations

Plaintiff originally filed this action on September 10, 2004. This action is

proceeding on the amended complaint filed March 2, 2005. The defendants are Warden Carey,

Chief Deputy Warden Brown, Associate Warden Johns, Captain Scavetta, Lieutenant

Motschenbacher, Lieutenant Stewart, Sergeant Paradis and Correctional Officer Edwards. The

events alleged in the second amended complaint occurred at California State Prison-Solano

(CSP-S).

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Plaintiff alleges that in December 2003 he filed an employee misconduct

complaint against defendant Edwards for her verbal harassment and threatening conduct. On

December 28, 2003, defendant Paradis conducted a hearing regarding plaintiff’s complaint. At

the hearing, defendant Paradis told plaintiff that he should withdraw the complaint if he wanted

to remain housed in one-facility. Plaintiff then withdrew his complaint because he did not want

to be transferred.

On January 9, 2004, defendant Edwards filed a disciplinary report falsely alleging

that plaintiff had disobeyed an order by refusing to lock up. On January 26, 2004, plaintiff

appeared before defendant Stewart for his disciplinary hearing. In the middle of the hearing,

defendant Stewart stopped the hearing and said that he needed to conduct additional hearings. 

Plaintiff then filed a complaint against defendant Stewart for postponing the hearing. Plaintiff

believed he could not get a fair hearing from defendant Stewart, because he was romantically

involved with defendant Edwards.

On February 29, 2004, the disciplinary hearing reconvened. At that time, plaintiff

was found guilty of the charges.

On March 26, 2004, plaintiff was placed in administrative segregation (ad seg)

because defendant Edwards accused him of stalking her. On March 29, 2004, defendant Scavetta

conducted a hearing regarding the lock up order. Plaintiff told defendant Scavetta that defendant

Edwards had not identified the date that the alleged stalking occurred. Defendant Scavetta told

plaintiff that “she don’t want you at the facility. We will be transferring you.”

On March 30, 2004, defendants Scavetta and Brown conducted a classification

committee hearing. At the hearing, plaintiff stated that he wanted an investigative employee,

defendant Edwards to attend and several witnesses. Defendants Scavetta and Brown denied

plaintiff’s requests, and stated that they would grant defendant Edwards’ request for plaintiff’s

transfer.

/////

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3

On March 31, 2004, plaintiff received the rules violation report charging him with

stalking. The report stated that defendant Motschenbacher affirmed the charges. On April 7,

2004, plaintiff received a new report which changed the stalking charge to a harassment charge. 

Plaintiff was later found guilty of harassing defendant Edwards and appealed to defendant Carey. 

Defendant Carey denied his appeal.

On May 23, 2004, plaintiff filed a misconduct complaint with internal affairs

concerning the events that led to his harassment conviction. Two weeks later, Lieutenant Fields

told him that defendant Carey had appointed him to investigate plaintiff’s complaint. On July 23,

2004, defendant Carey decided to stop the investigation.

Plaintiff alleges that defendants Brown, Johns and Scavetta placed plaintiff on

walk alone exercise yards while he was in ad seg. While on walk alone yard, plaintiff received

only one hour of outdoor exercise per week. 

As legal claims, plaintiff alleges that defendants retaliated against him for filing

grievances when they found him guilty of failing to obey orders and harassing defendant

Edwards and placed and retained him in ad seg. Plaintiff also alleges that he did not receive

adequate outdoor exercise in violation of the Eighth Amendment.

Motion to Dismiss

42 U.S.C. § 1997e(a) provides that, “[n]o 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.” In order for California prisoners to exhaust administrative remedies, they must

proceed through several levels of administrative appeal: 1) informal resolution, 2) formal written

appeal on a CDC 602 inmate appeal form, 3) second level appeal to the institution head or

designee, and 4) third level appeal to the Director of the California Department of Corrections. 

Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 

\\\\\

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4

3084.5). A final decision from the Director’s level of review satisfies the exhaustion

requirement. Id. at 1237-38.

Administrative appeals alleging staff misconduct are processed differently. 

Brown v. Valoff, 422 F.3d 926, 939 (9 Cir. 2005). Administrative appeals alleging staff th

misconduct are logged by the appeals coordinator as Staff Complaints. 422 F.3d at 938. Once an

administrative appeal is categorized as a Staff Complaint, no further administrative remedies are

available because there is no possibility that it will be investigated, separately, through the

appeals process. Id. at 938-939. However, when an administrative appeal alleges staff

misconduct and other issues, then the inmate shall be notified that the other issues must be

separately appealed. Id. In this situation, further remedies are available as to these other issues. 

Id. at 938-939.

In Booth v. Churner, 121 S. Ct. 1819 (2001) the Supreme Court held that inmates

must exhaust administrative remedies, regardless of the relief offered through administrative

procedures. 121 S. Ct. at 1825. Therefore, inmates seeking money damages must completely

exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be

brought with respect to prison conditions until such administrative remedies as are available are

exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).

Defendants state that from January 1, 2004, to the present plaintiff has submitted

eleven grievances related to the issues of discipline, retaliation or administrative segregation that

were accepted for a Director’s Level Decision. See Motion to Dismiss, Grannis Declaration, ¶ 7;

Cervantes Declaration, ¶ 4. Only one of these grievances, i.e. 04-01040, was denied at the

Director’s Level prior to September 10, 2004, when plaintiff filed this action. Id. Although

plaintiff requested that several of his appeals be treated as staff misconduct complaints, these

grievances were processed through the regular administrative appeals process described above. 

Because plaintiff was required to exhaust his administrative remedies prior to bringing this

action, the court will only consider the grievance denied at the Director’s Level at the time

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 In his opposition, plaintiff argues that several of his grievances were denied at the 1

Director’s Level prior to the time he filed the amended complaint on which this action is

proceeding. Plaintiff was required to exhaust his administrative remedies prior to the time he

filed this action, rather than prior to the time he filed his operative complaint. 

5

plaintiff filed this action. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).1

In appeal no. 04-01040, plaintiff challenged his conviction for disobeying an

order. Defendants’ Exhibit 1. Plaintiff alleged that defendant Stewart improperly postponed his

disciplinary hearing. Id. Plaintiff also claimed that when the hearing reconvened, defendant

Stewart failed to ask plaintiff if he had any witnesses or evidence and should have appointed an

investigative employee. Id. Plaintiff also argued that insufficient evidence supported this

conviction. Id.

In the amended complaint, plaintiff claims that defendant Edwards charged

plaintiff with disobeying orders in retaliation for plaintiff’s filing of the misconduct complaint,

which he later withdrew. See also, plaintiff’s opposition, p. 4. Plaintiff claims, as made clear in

his opposition, that defendant Stewart conspired with defendant Edwards to retaliate against

plaintiff by finding him guilty of these charges. Id., p. 5. 

While plaintiff is not required to articulate his legal theories in his administrative

appeal, see Strong v. Davis, 297 F.3d 646, 650 (9 Cir. 2002), he is required to provide sufficient th

information so as to put prison officials on notice as to the facts at issue in his claim. See Porter

v. Nussle, 534 U.S. 516, 531, 122 S. Ct. 983 (2002) (emphasizing importance of providing prison

officials with notice and opportunity to take action before prisoner files suit). Appeal no. 04-

01040 contains no information which would have put prison officials on notice that plaintiff was

claiming that defendants Edwards and Stewart conspired to retaliate against him for filing a

misconduct complaint against defendant Edwards by finding him guilty of disobeying orders. 

The instant action challenges the validity of this disciplinary conviction on grounds different than

those raised in plaintiff’s administrative appeal. Accordingly, the court finds that this appeal

does not exhaust plaintiff’s administrative remedies regarding this claim.

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In his opposition, plaintiff argues that because he withdrew his December 2003

misconduct complaint against defendant Edwards under duress, this appeal should be deemed

exhausted. This argument fails for two reasons. First, this misconduct complaint alleged that

defendant Edwards verbally harassed and threatened plaintiff. The instant action contains no

separate claims based on these allegations. Instead, plaintiff is claiming that he was retaliated for

filing this complaint. Therefore, this complaint would have exhausted no claims raised in this

action. In addition, the court observes that after plaintiff withdrew this complaint, he filed 22

administrative appeals. Motion to Dismiss, Cervantes declaration, ¶ 4. Therefore, plaintiff’s

claim that he withdrew this complaint under duress is not particularly credible.

In his opposition, plaintiff argues that the claims raised in appeal no. 04-01663

should be deemed exhausted because the Director’s Level appeal was not denied within the

prescribed time limits. When prison officials fail to timely respond to an administrative

grievance, the prisoner has exhausted his administrative remedies. See Underwood v. Wilson,

151 F.3d 292 (5th Cir. 1998) (when a prisoner has undertaken all possible appeals but the prison

authorities fail to respond within the required time period, the prisoner has exhausted

administrative remedies); see also Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) (remedies

were not “available” to a prisoner when the warden did not respond to the inmate’s grievance

during the time period required by regulations). 

On July 19, 2004, appeal no. 04-01663 was denied at the second level of review. 

Motion to Dismiss, Exhibit 5. On March 14, 2005, appeal no. 04-01663 was denied at the

Director’s Level of review. Third level responses are due within 60 working days of the denial

of the second level response. Cal. Code Regs., tit. 15, § 3084.6(4). Sixty working days from

July 19, 2004, would be October 13, 2004. Plaintiff was required to wait until the 60 working

days had run before filing this action. Because plaintiff filed this action before the sixty working

days had run, he filed the instant action prior to exhausting the claims raised in appeal no. 04-

01663.

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In his opposition, plaintiff states that appeal no. 04-2621 is exhausted because it

was granted in full at the second level. This appeal was partially granted at the second level. 

Motion to Dismiss, Exhibit 8. Accordingly, plaintiff’s argument that this appeal is exhausted is

without merit.

For the reasons discussed above, the court finds that plaintiff has failed to exhaust

his administrative remedies. Defendants’ motion to dismiss should be granted. 

Accordingly, IT IS HEREBY RECOMMENDED that defendants’ November 10,

2005, motion to dismiss be granted.

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 twenty

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

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. 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: 6/2/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

har1897.mtd

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