The federal appeals court based in Denver has dismissed an inmate’s civil rights lawsuit because he had not fully pursued his administrative grievance, even though prison officials rejected a virtually identical grievance he previously filed.

Arthur James Moore was incarcerated at Buena Vista Correctional Facility on June 10, 2019, when Sgt. Anthony Tresch allegedly told Moore that there was no law that could stop him from putting a gang member in Moore’s cell. Moore was previously charged with the attempted murder of a gang member while residing in a different prison, and Moore’s file reportedly noted that he was to be housed with non-gang members only.

Moore filed an administrative grievance the following day against Tresch. Around that same time, according to Moore, prison officials moved a gang member into his cell. They replaced the cellmate with a different gang member in September, and there was a physical altercation between Moore and his new cellmate. State prosecutors charged Moore with attempted murder and assault, but court records show the district attorney dismissed the charges.

Moore filed a federal lawsuit claiming violations of the Eighth Amendment for failing to protect his safety and the First Amendment, stemming from Tresch allegedly retaliating against Moore for his grievance by moving an “aggressive gangmember” into his cell.

In August 2020, U.S. District Court Chief Judge Philip A. Brimmer dismissed Moore’s case. Under the Prison Litigation Reform Act, inmates need to pursue their administrative grievances through the three available steps before they can sue. Moore had filed only a “Step 1” grievance without taking it to steps two and three, meaning he had not complied with the law.

However, one year prior to Moore’s Step 1 grievance against Tesch, he had followed the process in lodging a similar complaint. In May 2018, Moore filed a Step 1 grievance asking why he had been temporarily removed from the general population. But in his Step 2 and Step 3 grievances, he reiterated the requirement that he not be placed in a cell with a gang member.

The Step 3 grievance officer responded that Moore’s complaint was “not a grievable matter” and his grievances were “not a valid method for review of your issue.” The letter also referred Moore to an administrative regulation governing grievances, which at the time listed “cell and bunk assignment” as one of the topics not subject to a grievance. 

This week, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed that Moore was prohibited from pursuing his latest grievance to steps two and three.

“Moore argues that he was led to believe the grievance process was unavailable for his failure to protect claim because, when (the Colorado Department of Corrections) denied his Step 2 and 3 grievances requesting not to be celled with a gang member in 2018, it replied that his complaint was not subject to the grievance process,” wrote Judge Allison H. Eid in a March 2 order.

However, she explained, despite Moore’s mention of gang members at Step 2 and Step 3 of his 2018 complaint, the prison did not allow for inmates to add a “substantive issue” to their already-filed grievances. Therefore, the prison’s 2018 response to Moore’s Step 3 grievance was “irrelevant” to the 2019 complaint, given that his latest concern was about a safety issue that the grievance process did not bar.

The panel upheld the dismissal of Moore’s lawsuit. The case is Moore v. Tresch.