From Casetext: Smarter Legal Research

Andres v. Marshall

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Apr 21, 2017
867 F.3d 1076 (9th Cir. 2017)

Summary

holding exhaustion is measured at the time the action is filed

Summary of this case from Washington v. Cal. Dep't of Corr. & Rehab.

Opinion

No. 15-56057

04-21-2017

Kevin Lamarr ANDRES, Plaintiff–Appellant, v. MARSHALL, Correctional Officer at RJ Donovan; R. Olson, CCII Appeals Coordinator; J. Ramirez, CCII Appeals Coordinator; Briggs, Chief of Appeals, Defendants–Appellees.

Kevin Lamarr Andres, Imperial, California, pro se Plaintiff–Appellant. Sylvie P. Snyder, Deputy Attorney General; Neah Huynh, Acting Supervising Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; William C. Kwong, Acting Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants–Appellees.


Kevin Lamarr Andres, Imperial, California, pro se Plaintiff–Appellant.

Sylvie P. Snyder, Deputy Attorney General; Neah Huynh, Acting Supervising Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; William C. Kwong, Acting Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants–Appellees.

Before: J. Clifford Wallace, Edward Leavy, and Raymond C. Fisher, Circuit Judges.

ORDER

The opinion filed April 21, 2017, and published at 854 F.3d 1103, is amended. An amended opinion is filed concurrently with this order.

Defendants–Appellees' petition for rehearing, filed June 2, 2017 (Dkt. 32), is denied as moot.

Appellant's "Response to Defendant's Appeal," filed June 16, 2017 (Dkt. 33), is construed as an unrequested answer to the petition for panel rehearing and, as such, is ordered stricken. See Fed. R. App. P. 40(a)(3) ("Unless the court requests, no answer to a petition for panel rehearing is permitted.").

Petitions for rehearing may be filed regarding the amended opinion.

OPINION

PER CURIAM:

California state prisoner Kevin Lamarr Andres appeals pro se from the district court's summary judgment in his 42 U.S.C. § 1983 action alleging excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de novo legal rulings on exhaustion. Albino v. Baca , 747 F.3d 1162, 1171 (9th Cir. 2014). We vacate and remand.

We address Andres' remaining claims in a concurrently filed memorandum disposition.

This action arises from Andres' allegations that defendant Marshall used excessive force against him on January 23, 2013, while Andres was incarcerated at the Donovan Correctional Facility ("DCF"). Two days after the incident, Andres filed a 602 grievance regarding the alleged excessive force, but never received a response from DCF staff.

On April 4, 2013, Andres filed a petition for writ of habeas corpus in state court regarding his attempt to exhaust his excessive force claim. On July 24, 2013, Andres filed his original complaint in the instant action, alleging, in part, an excessive force claim and arguing that his administrative remedies were effectively unavailable because DCF failed to process his 602 grievance. The state habeas court held an evidentiary hearing and, on October 10, 2014 (nunc pro tunc to August 22, 2014), granted Andres' petition, holding that Andres had timely filed a grievance and ordering DCF to accept and process Andres' 602 appeal.

The California Court of Appeal later affirmed the superior court's order. See In re Andres, 244 Cal.App.4th 1383, 198 Cal.Rptr.3d 878 (2016).
--------

Following the grant of Andres' habeas petition, the parties requested that the district court take judicial notice of the state habeas proceedings. In December 2014, a magistrate judge recommended that the district court dismiss the excessive force claim for failure to exhaust because exhaustion was not complete at the time Andres filed this action. In March 2015, the district court adopted the magistrate judge's recommendation and dismissed the claim under McKinney v. Carey , 311 F.3d 1198 (9th Cir. 2002). The district court never formally ruled on the judicial notice request, but the record makes clear that the court considered the state court documents. We therefore treat those documents as part of the record on appeal. In June 2015, the district court entered judgment.

The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In McKinney , we addressed the question of whether a district court must dismiss an action involving prison conditions when the plaintiff had not exhausted his administrative remedies prior to filing an action but was in the process of doing so when a motion to dismiss was filed. See id. at 1199. We concluded that exhausting available remedies during the course of litigation did not comply with § 1997e(a)'s requirements and held that a plaintiff must exhaust his administrative remedies prior to filing an action. See id.

We have also recognized that the PLRA does not require exhaustion when circumstances render administrative remedies "effectively unavailable." Nunez v. Duncan , 591 F.3d 1217, 1226 (9th Cir. 2010). In Ross v. Blake , the Supreme Court agreed, holding that § 1997e(a) requires an inmate to exhaust only those grievance procedures "that are capable of use to obtain some relief for the action complained of." ––– U.S. ––––, 136 S.Ct. 1850, 1859, 195 L.Ed.2d 117 (2016) (citation and internal quotation marks omitted). By way of a non-exhaustive list, the Court recognized three circumstances in which an administrative remedy was not capable of use to obtain relief despite being officially available to the inmate: (1) when the administrative procedure "operates as a simple dead end" because officers are "unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) when the administrative scheme is "so opaque that it becomes, practically speaking, incapable of use" because "no ordinary prisoner can discern or navigate it"; and (3) when prison administrators "thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859–60.

Andres argues that his administrative remedies for his excessive force claim were rendered effectively unavailable by defendants' actions. We agree. The state habeas court held an evidentiary hearing and found that defendants improperly failed to process Andres' timely filed grievance. Under the circumstances present here, Andres exhausted his available administrative remedies prior to filing this action, thereby satisfying Ross and McKinney . When prison officials improperly fail to process a prisoner's grievance, the prisoner is deemed to have exhausted available administrative remedies. In such circumstances, prison officials have "thwart[ed] inmates from taking advantage of [the] grievance process," making that process unavailable. Ross , 136 S.Ct. at 1859 ; cf. Brown v. Valoff , 422 F.3d 926, 943 n.18 (9th Cir. 2005) ("Delay in responding to a grievance, particularly a time-sensitive one, may demonstrate that no administrative process is in fact available."); cf. also Robinson v. Superintendent Rockview SCI , 831 F.3d 148, 153 (3d Cir. 2016) (joining other circuits in holding "a prison's failure to timely respond to an inmate's properly filed grievance renders its remedies ‘unavailable’ under the PLRA"); Boyd v. Corr. Corp. of Am. , 380 F.3d 989, 996 (6th Cir. 2004) ("Following the lead of the four other circuits that have considered this issue, we conclude that administrative remedies are exhausted when prison officials fail to timely respond to a properly filed grievance."); Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) ("[T]he failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable."); Lewis v. Washington , 300 F.3d 829, 833 (7th Cir. 2002) ("[W]e refuse to interpret the PLRA so narrowly as to permit prison officials to exploit the exhaustion requirement through indefinite delay in responding to grievances." (alterations and internal quotation marks omitted)).

The state contends dismissal for failure to exhaust was proper "because Andres was still utilizing the grievance process at the time he filed suit." We disagree. The PLRA states that "[n]o action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). We therefore measure exhaustion at the time the action is filed. See McKinney , 311 F.3d at 1199. The district court focused on the fact that, "as of August 22, 2014, administrative remedies remained available to [Andres] on his claim against Defendant Marshall." Andres, however, brought this action in July 2013; at that time, these remedies were unavailable.

We reverse the district court's dismissal of Andres' excessive force claim for failure to exhaust, vacate the judgment and remand for further proceedings.

Appellees shall bear the costs on appeal.

VACATED AND REMANDED.


Summaries of

Andres v. Marshall

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Apr 21, 2017
867 F.3d 1076 (9th Cir. 2017)

holding exhaustion is measured at the time the action is filed

Summary of this case from Washington v. Cal. Dep't of Corr. & Rehab.

holding that "when prison officials improperly fail to process a prisoner's grievance, the prisoner is deemed to have exhausted available administrative remedies" because "[i]n such circumstances, prison officials have ‘thwart[ed] inmates from taking advantage of grievance process,’ making that process unavailable."

Summary of this case from Harvard v. Inch

finding that "[w]hen prison officials improperly fail to process a prisoner's grievance," the grievance process is unavailable

Summary of this case from McCoy-Gordon v. Hernandez

finding that "[w]hen prison officials improperly fail to process a prisoner's grievance, the prisoner is deemed to have exhausted available administrative remedies. In such circumstances, prison officials have 'thwarted inmates from taking advantage of the grievance process; making that process unavailable."

Summary of this case from Brown v. Reif

finding inmate's administrative remedies effectively unavailable when a state court found that prison improperly failed to process plaintiff's timely filed grievance

Summary of this case from Sims v. Walker

reversing dismissal where defendants improperly failed to process plaintiff's timely filed grievance

Summary of this case from Bruister v. Asuncion

describing Ross examples as "non-exhaustive"

Summary of this case from Eaton v. Blewett

In Andres, our court considered whether an administrative remedy was rendered unavailable to an inmate who had submitted a first-level grievance, received no response for six months, and then filed suit.

Summary of this case from Fordley v. Lizarraga

describing the limited circumstances under which exhaustion may be effectively unavailable

Summary of this case from Cervantes v. Burciaga

describing the three categories as "non-exhaustive"

Summary of this case from Rinaldi v. United States

In Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017), for example, the Ninth Circuit held that the administrative remedies for the plaintiff's excessive force claim were rendered effectively unavailable because the defendants had improperly failed to process the plaintiff's timely grievance, thereby thwarting the plaintiff's attempt to pursue the grievance process.

Summary of this case from Kohler v. Or. Dep't of Corr.

In Andres, the Ninth Circuit held that when prison officials fail to respond to a prisoner's grievance, the prisoner is deemed to have exhausted his administrative remedies.

Summary of this case from Lopez v. N. Kern State Prison

discussing Ross, 578 U.S. at 643-44

Summary of this case from Johnson v. Missoula Cnty. Det. Facility

In Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017), unlike here, the plaintiff submitted a grievance properly, but the prison lost it.

Summary of this case from Gilbert v. Allison

considering exhaustion when the complaint is brought, and not at some later date

Summary of this case from Drake v. Kernan

describing the three examples in Ross as a "non-exhaustive list"

Summary of this case from Valentine v. Collier

discussing consensus among circuits that failure to respond to a grievance within time limits renders administrative remedies "effectively unavailable"

Summary of this case from Washington v. Cal. Dep't of Corr. & Rehab.

stating that exhaustion is measured "at the time the action is filed"

Summary of this case from Miller v. Flores

In Andres, the inmate filed a 602 grievance regarding alleged excessive force, but never received a response from prison officials.

Summary of this case from Singh v. Nicolas

In Andres, the inmate filed a 602 grievance regarding alleged excessive force, but never received a response from prison officials.

Summary of this case from Singh v. Nicolas

noting that the "exhausti[on of] available remedies during the course of litigation d[oes] not comply with § 1997e's requirements," and that a prisoner "must exhaust his administrative remedies prior to filing an action."

Summary of this case from McCloud v. C/O T. Bird-Hunt

In Andres, for example, the prison failed entirely to process the California prisoner's 602 Form, id. at 1078, but that is not the case here.

Summary of this case from Peasley v. Spearman

In Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (per curiam), the Ninth Circuit characterized the list in Ross as "non-exhaustive."

Summary of this case from Holden v. Nevada ex rel. Nev. Dep't of Corr.

In Andres, a California state prisoner brought a federal § 1983 claim against a correctional officer for excessive use of force.

Summary of this case from Beattie v. Romero
Case details for

Andres v. Marshall

Case Details

Full title:KEVIN LAMARR ANDRES, Plaintiff-Appellant, v. MARSHALL, Correctional…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Apr 21, 2017

Citations

867 F.3d 1076 (9th Cir. 2017)

Citing Cases

McCoy-Gordon v. Hernandez

These circumstances include: "(1) when the administrative procedure 'operates as a simple dead end' because…

Fordley v. Lizarraga

Ross , 136 S. Ct. at 1859–60. We have recognized specific circumstances that render administrative remedies…