Susan Polk v. Mary Lattimore

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2024
• Docket: 22-16706
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSAN MAE POLK, No. 22-16706

Plaintiff-Appellant, D.C. No. 1:12-cv-01156-ADA-BAM v.

M. BARON, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Ana de Alba, District Judge, Presiding

Submitted March 27, 2024** San Francisco, California

Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Susan Mae Polk appeals the district court orders dismissing her claims for

declaratory and injunctive relief and granting summary judgment against her for

failure to exhaust her administrative remedies under the Prison Litigation Reform

Act. See 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). affirm.1

Polk alleges that in July 2008, prison officer Baron placed a “snitch jacket”

on her by informing inmate Miranda that Polk was “602ing” (filing grievances

against) staff members and that Polk had complained that Miranda was threatening

Polk. Polk alleges that Miranda attacked her as a result. Polk sued Baron under 42

U.S.C. § 1983 for violations of her constitutional rights, seeking damages as well

as declaratory and injunctive relief. Polk argues that she exhausted this claim

through grievance CCWF C-08-01260 or, in the alternative, that the grievance

process was unavailable to her.

1. Grievance CCWF C-08-01260 and the attached letters did not exhaust

the claim because they do not provide sufficient notice to prison officials of the

alleged wrong. “[A] grievance suffices if it alerts the prison to the nature of the

wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th

Cir. 2009) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).

Grievance CCWF C-08-01260 was an appeal of a disciplinary charge against Polk

arising from a February 2008 incident—it was not focused on the July 2008 attack

by Miranda. In a letter attached to the grievance, Polk discussed a number of other

problems, including her inability to find a quiet location to work on legal filings,

1 In her operative complaint, Polk sued only Defendant M. Baron. The motion to dismiss the remaining appellees from this appeal is granted. The clerk shall amend the case caption to Susan Polk v. M. Baron.

2 and attacks by other inmates. The letter does discuss the attack by Miranda, and it

later says that another inmate (not Miranda) had been “inciting violence against

me, since c/o Baron put a snitch jacket on me.” But there is nothing connecting the

“snitch jacket” allegation with Miranda’s attack—and, indeed, the letter states that

Miranda’s attack was “unprovoked.” The singular reference to the “snitch jacket,”

buried among a number of other complaints and attached to a grievance appealing

a disciplinary charge involving another incident, was not enough to put prison

officials on notice of the wrong alleged in Polk’s present complaint.

Polk states that, in the mandatory interview related to the grievance, she told

the appeals coordinator about the attack and the snitch jacket, but she gives no

other details about what she said to the coordinator. Aside from this statement,

there is no other indication that Polk discussed the incident with the coordinator.

The prison’s Second Level Response, filed after the interview, summarizes Polk’s

discussion with the coordinator, but it includes no mention of the snitch jacket or

Baron. In appealing the Second Level Response, Polk again did not mention the

snitch jacket or Baron. Her statements instead focused on the February incident.

Polk’s “conclusory, self-serving statement[ ]” that she told the coordinator about

her allegations against Baron “lack[s] detailed facts and any supporting evidence,”

so it “is insufficient to create a genuine issue of material fact” about whether prison

officials were on notice of the alleged wrong. FTC v. Publ’g Clearing House, Inc.,

3 104 F.3d 1168, 1171 (9th Cir. 1997).

2. Polk also argues that the appeals process was unavailable to her for

several reasons. First, under the prison’s regulations, a prisoner was required to

submit a grievance within fifteen working days of the action or policy giving rise

to the grievance, and a prisoner was limited to filing one non-emergency grievance

per seven calendar days. Cal. Code Regs. tit. 15, §§ 3084.4(a), 3084.6(c) (2008).

Polk received notice of the guilty finding regarding the February incident around

the time that she alleges Baron put her in the “snitch jacket” and Miranda attacked

her. She argues that, given the prison’s regulations, she was effectively required to

choose between grieving the guilty finding and grieving the incident with Miranda

and Baron. Polk’s arguments regarding the timing of these incidents do not line

up. She was allegedly attacked by Miranda on July 20, and she received notice of

the guilty finding on July 26. Even assuming that she could not have filed a

grievance against Baron as an “emergency grievance” (not subject to the one-

grievance-per-week rule), she has not explained why she could not file one

grievance during the week of July 28 and another grievance during the week of

August 4.

Polk next argues that she was thwarted from filing the grievance by prison

officials. She primarily argues that another staff member, Brown, was obstructing

the grievance process by improperly screening Polk’s appeals, warning her that she

4 should not abuse the appeals process, and mislabeling emergency appeals as non-

emergency appeals. She does not connect these assertions to the incident with

Baron specifically, and they are undermined by the record, which shows that

Grievance CCWF C-08-01260 was processed along with twenty-three other

appeals by Polk during a two-year span. Polk suggests in passing that Baron

thwarted her from filing grievances, but she offers no detail to support this

assertion, and it is undermined by her own contrary assertions that she did

complain to prison officials about Baron.

3. The district court properly dismissed Polk’s claims for declaratory and

injunctive relief. Both forms of forward-looking relief were mooted by Polk’s

transfer to a prison where Baron does not work. Johnson v. Moore, 948 F.2d 517,

519 (9th Cir. 1991) (per curiam).

AFFIRMED.