Silva v. Holly

• Decision Date: 14 January 2013
• Docket Number: No. 66302-0-I,66302-0-I
• Court: Washington Court of Appeals
• Parties: MATTHEW G. SILVA, Appellant, v. DEBORAH HOLLY, Respondent.

MATTHEW G. SILVA, Appellant, v. DEBORAH HOLLY, Respondent.

No. 66302-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: January 14, 2013

UNPUBLISHED OPINION

Verellen, J. — A civil case may be dismissed on the pleadings if the complaint fails to state a claim upon which relief can be granted. Although the superior court in this case erroneously dismissed Matthew Silva's civil rights action on the basis of collateral estoppel, dismissal was nevertheless proper because Silva's complaint fails to state a viable claim for relief. We therefore affirm.

FACTS

In July 2009, while incarcerated at the Monroe Correctional Complex, Silva filed three separate inmate grievances. The grievances alleged that certain correctional personnel had engaged in retaliatory conduct against him.

On August 14, 2009, Silva filed a complaint in superior court alleging that grievance counselor Deborah Holly violated his First Amendment and civil rights by refusing to process the three grievances unless he changed their content. Silvaalleged that Holly refused to process the first grievance because it raised "multiple unrelated issues."¹ He countered that the main allegation in the grievance involved a series of related actions. In refusing to process Silva's second grievance, Holly said he "could not state what [personnel] had told him and he could not cite [the] Revised Code of Washington (RCW) in his [grievance]."² Silva's complaint did not challenge Holly's reasons, but alleged that she lacked authority to decide the grievance because she was named in it. Holly refused to process Silva's third grievance on the ground that he "could only raise 'one issue per complaint.'"³ After Silva filed his complaint in this action, Holly processed the grievance.

The complaint alleged that Holly's refusal to process the grievances violated 42 U.S.C. § 1983 and caused Silva various injuries, including mental anguish, emotional distress, loss of sleep, and a "chilling" effect on his right to free speech.⁴ Silva sought monetary damages and declaratory and injunctive relief.

On August 19, 2009, the Attorney General filed an answer to the complaint on Holly's behalf. The answer admitted that Holly did not process the grievances due to noncompliance with grievance procedures, including requirements that grievances be based on personal knowledge and contain only one issue. The answer alleged that Holly's actions "furthered legitimate penological goals and are therefore constitutional even if they infringe upon a constitutional right."⁵

On July 14, 2010, Holly moved for judgment on the pleadings, arguing that Silva's action was barred by the doctrine of collateral estoppel, that the complaint failed to state a claim upon which relief could be granted, and that Holly was entitled to qualified immunity. In support of her collateral estoppel claim, Holly cited an unpublished federal district court decision, Silva v. Gregoire, No. C05-5731RJB, WL 1724957 (W.D. Wash. 2007). She argued that the court in that case had resolved the same legal issues presented in this action, and that Silva was barred from litigating those issues again.

On August 26, 2010, Silva filed a response to the motion to dismiss and an amended complaint. The amended complaint alleged that "[o]ne reason" Holly refused to process the grievances was that she knew about, and "was facilitating," the retaliatory or conspiratorial campaigns of others alleged in the grievances.⁶ It also alleged that her refusal to process the grievances was accompanied by an "evil motive."⁷ The amended complaint did not dispute Holly's assertions in her answer to the original complaint that the grievances were not processed due to noncompliance with prison policies and that Holly's actions regarding the grievances furthered legitimate penological interests.

The amended complaint also added a fourth cause of action alleging that Holly issued a baseless and retaliatory infraction against Silva after he served her with thecomplaint. Silva alleged that Holly issued the infraction with knowledge that the rule he was accused of violating had not been posted in the prison. He further alleged that the infraction was ultimately dismissed for lack of notice, that the infraction furthered no penological interest, and that one reason Holly issued it was to harass, intimidate and dissuade him from pursuing the instant action.

On October 18, 2010, the superior court simultaneously granted Silva's motion to amend his complaint and dismissed his action "on the basis of collateral estoppel."⁸

In a motion for reconsideration, Silva argued that collateral estoppel did not apply because his amended complaint included an allegation of retaliation, and because federal courts had recognized exceptions to the rule followed in Silva v. Gregoire. The court denied the motion. Silva appeals.

DECISION

An action may be dismissed under CR 12(c) if "it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery."⁹ In making this determination, we must presume the plaintiff's allegations are true and may consider hypothetical facts not included in the record.¹⁰ Dismissal should be granted only when the plaintiff's allegations "'show on the face of the complaint that there is some insuperable bar to relief.'"¹¹ We review a CR 12(c) dismissal de novo.¹²

For the reasons set forth below, we conclude the superior court did not err in dismissing Silva's complaint because it failed to set forth claims upon which relief could be granted.

Collateral Estoppel

Silva first contends the superior court erred in ruling that his claims are barred by the doctrine of collateral estoppel. We agree.

Collateral estoppel bars "a second litigation of issues between parties, even though a different claim or cause of action is asserted."¹³ To invoke this bar, a party must show, among other things, that the issue decided in the prior litigation was identical to the issue in the current litigation.¹⁴ Here, the parties dispute whether Silva v. Gregoire, a federal court decision involving other grievances filed by Silva, has collateral estoppel effect in this case. The parties agree that count 4 in Silva's current action, a retaliatory infraction claim, is not barred by collateral estoppel. They disagree, however, as to whether the three grievance-based claims are barred.

Holly contends the grievance-based claims are identical to the claims litigated in Silva v. Gregoire. In that case, a federal court dismissed Silva's civil rights claims for theft of, and failure to process, a different set of grievances. Relying on established federal law, the court ruled that Silva's civil rights claims failed because inmates have no constitutional right to a prison grievance system.¹⁵ While the present case alsoinvolves the processing of prison grievances, it differs from Silva's federal court claims in that the complaint alleges retaliatory, content-based grievance restrictions and a retaliatory infraction. Inmates retain First Amendment protections during the grievance process,¹⁶ and those protections apply to the content of grievances¹⁷ and acts of retaliation occurring during the grievance process.¹⁸ Thus, Silva's potential § 1983 claims in this lawsuit are distinguishable from the claims in Silva v. Gregoire, and are not barred by collateral estoppel.

Holly argues in the alternative that the dismissal of Silva's claims can be sustained on any ground supported by the record, and that Silva's complaint fails to state claims upon which relief can be granted. We agree.¹⁹

Dismissal of Grievance-Based Claims

Silva's grievance-based claims, counts 1through 3, do not state a claim on which relief can be granted. The allegations in the amended complaint do not state a challenge to the constitutionality of any applicable grievance policies. In order to bring either a facial or "as-applied" challenge to a grievance policy on First Amendmentgrounds, Silva would have to allege the absence of a legitimate penological basis for any such policy or its application.²⁰ Silva's amended complaint does not acknowledge, let alone challenge, any applicable grievance policy. Nor does it allege the absence of a legitimate penological basis for any applicable policies or their application. It thus fails to state a facial or "as applied" challenge to any grievance policies.

The grievance-based claims also fail to state a claim for retaliatory refusal to process Silva's grievances. In the prison context, a viable claim of First Amendment retaliation under 42 U.S.C. § 1983 entails five elements: "(1) An assertion that a state actor took some adverse action against a [prisoner] (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the [prisoner's] exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal."²¹ Silva's amended complaint fails to allege the first, fourth, and fifth elements.

The first and fourth elements require an adverse act that is more than a de minimis inconvenience.²² An action taken by prison officials is considered "adverse"only if it "would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . . Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection."²³ The de minimis standard

achieves the proper balance between the need to recognize valid retaliation claims and the danger of "federal courts embroil[ing] themselves in every disciplinary act that occurs in state penal institutions." The purpose of allowing inmate retaliation claims under § 1983 is to ensure that prisoners are not unduly discouraged from exercising constitutional rights. Some acts, though maybe motivated by retaliatory intent, are so de minimis that they would not deter the ordinary person from further exercise of his rights. Such acts do not rise to the level of

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