Herrera v. Ortega

Background

Joshua S. Herrera, a state prisoner proceeding without a lawyer, brought this civil-rights action under 42 U.S.C. § 1983. His remaining claims were retaliation claims under the First Amendment concerning a confidential memo allegedly placed in his prison file. The court had found claims against six defendants legally sufficient to proceed.

The motion addressed only Sgt. M. Valdez and Appeals Examiner G. Bickham. Herrera had fully exhausted a grievance about the confidential memo, but the court found that grievance did not properly raise separate claims that Valdez acted with retaliatory motive during an investigative interview or that Bickham acted with retaliatory motive when he denied the grievance at the final level of review. The court also noted that the record was unclear whether Herrera mistakenly treated Valdez as the second-level decision-maker; the documented record showed that Valdez interviewed Herrera, while another official issued the second-level decision.

Parties’ Positions

Valdez and Bickham argued that Herrera had not filed timely and sufficiently specific grievances about their alleged retaliatory conduct. Herrera argued that his exhausted grievance covered Valdez because of Valdez’s role in the review process. As to Bickham, Herrera relied on a grievance attempt made in 2022 and argued that the prison grievance process was unavailable because of timing conflicts and safety concerns.

Court’s Analysis

The Prison Litigation Reform Act requires a prisoner to properly exhaust available prison administrative remedies before bringing a federal action about prison conditions. Proper exhaustion requires compliance with applicable deadlines and other procedural rules. Under the California rules discussed by the court, a grievance was required to identify involved staff members and describe their involvement, and new people or issues generally could not be added at later review stages.

As to Valdez, the court held that Herrera needed to file a separate, timely grievance describing Valdez’s alleged retaliatory motive during the interview. Herrera did not do so. The court rejected the argument that Valdez was automatically included because he participated at an earlier stage of the grievance process. It also found that Herrera’s other grievance filings during the relevant period showed that administrative remedies were available, and that his general safety assertions did not establish otherwise.

As to Bickham, Herrera’s attempted grievance was filed in 2022, more than a year after the operative complaint and about 32 months after Bickham’s final-level decision. The court found that attempt untimely and held that the prison office’s refusal to revisit the old grievance did not show that a timely grievance would have been rejected. The court also rejected Herrera’s timing and safety arguments as unsupported.

Disposition

The court found no genuine dispute of material fact concerning exhaustion. It granted Valdez and Bickham’s motion for summary judgment. The claims against those two defendants were dismissed for failure to exhaust administrative remedies, and the clerk was ordered to terminate them from the action. The action continued on the claims against J. Ortega, Castillo, Duran, and Cardona. The court set deadlines for those defendants to file a dispositive motion or state that such a motion could not resolve the claims, followed by deadlines for opposition and reply briefs. Other relevant portions of the court’s earlier order remained in effect.