Wimberly v. Cuevas

Background

Craig Ervin Wimberly, a prisoner representing himself, brought a civil-rights action under 42 U.S.C. § 1983 against correctional sergeant A. Cuevas. The remaining claim alleged retaliation. Wimberly said that he reported seeing Cuevas take six photo passes from a photo box for which Wimberly was responsible. According to Wimberly, Cuevas then told officers not to let him work on his days off, directed staff to keep him working until the end of a shift, and enlisted subordinates to issue him disciplinary reports.

The court had previously determined that Wimberly’s amended complaint stated a retaliation claim against Cuevas. It dismissed the other defendants and claims. One dismissed claim concerned crude sexual comments allegedly made by Cuevas; the court had determined that those comments were nonactionable verbal harassment.

Motion and exhaustion issue

Cuevas moved for summary judgment, arguing that Wimberly had not exhausted available administrative remedies before filing the action. Under the federal prison-litigation statute, a prisoner must properly complete available administrative remedies before bringing a federal action about prison conditions. In California’s grievance system applicable to the events at issue, a prisoner generally had to proceed through three formal levels of review. The grievance also had to identify involved staff members and describe the relevant facts.

Wimberly filed three inmate appeals between the start of the relevant period and the filing of this action. The first concerned a disciplinary report for failing to accept a housing change. The second challenged a disciplinary report for possessing a cell phone. Neither mentioned Cuevas, his conduct, or the visiting room.

The third appeal was the only one related to facts later mentioned in the amended complaint. It complained that Cuevas had made crude comments that amounted to workplace sexual harassment and requested that Cuevas stop sexually harassing Wimberly. The appeal also stated that Wimberly feared Cuevas might retaliate for reporting staff misconduct. The appeal proceeded through the available levels: at the second level, it was granted in that an inquiry was conducted, but the inquiry found no violation of California Department of Corrections and Rehabilitation policy; the appeal was denied at the third level.

Court’s reasoning

The court concluded that the third appeal did not properly exhaust the retaliation claim. Although Wimberly mentioned retaliation, the First Amendment, and retaliation-related cases, the court determined that the context showed he was explaining why his sexual-harassment complaint was late—not describing retaliation that had already occurred. The appeal did not state that Cuevas’s crude comments were retaliatory or describe the work restrictions and disciplinary actions that formed the basis of the retaliation claim.

The court explained that legal citations alone did not provide the facts needed to identify a retaliation claim. Because the appeal did not describe Cuevas’s alleged retaliatory acts or provide the required factual detail, no reasonable fact-finder could conclude that it exhausted the retaliation claim.

Wimberly alternatively argued that fear of retaliation made the grievance process unavailable. The court applied a test requiring evidence that the prisoner actually feared retaliation and that the fear was objectively reasonable—that is, a reasonable prisoner of ordinary firmness would have understood the official’s conduct as a threat of sufficiently serious retaliation for filing a grievance. The court found no evidence that Cuevas or anyone acting for him referred to inmate appeals or indicated that Wimberly would suffer payback for filing one.

Wimberly stated that, after he filed a citizen’s complaint, he asked Cuevas how they could resolve the situation, and Cuevas allegedly responded, “it’s too late for all that, you’ll see.” The court found the statement ambiguous because the record did not establish what “this situation” meant or whether Cuevas knew what Wimberly was referring to. The court also found that the statement appeared to refer to a course of action already chosen, rather than threatening retaliation if Wimberly filed an inmate appeal. At most, the evidence showed general hostility, not a threat that made the grievance system unavailable.

Disposition

The court held that Cuevas was entitled to judgment as a matter of law on the affirmative defense that Wimberly failed to exhaust administrative remedies for his § 1983 claim. The court granted Cuevas’s motion for summary judgment and dismissed the action without prejudice because Wimberly failed to exhaust available administrative remedies before filing. The clerk was ordered to close the file.