Argued and Submitted En Banc, Seattle, Washington:
June 27, 2013.
Petition for certiorari filed at, 07/02/2014
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 2:08-cv-03790-GAF-MLG. Gary A. Feess, District Judge, Presiding.
Andrea Renee St. Julian (argued), San Diego, California, for Plaintiff-Appellant.
James C. Jardin (argued), Melinda W. Ebelhar, Catherine M. Mathers, Christian E. Foy Nagy, Collins Collins Muir & Stewart LLP, South Pasadena, California, for Defendants-Appellees.
Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, Kim McLane Wardlaw, William A. Fletcher, Richard C. Tallman, Jay S. Bybee, Milan D. Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher. N.R. SMITH, Circuit Judge, joined by TALLMAN and IKUTA, Circuit Judges, dissenting.
W. FLETCHER, Circuit Judge:
Juan Roberto Albino brought suit against Los Angeles County Sheriff Lee Baca, several Doe defendants, and Los Angeles County, alleging violations of 42 U.S.C. § 1983, as well as several state laws, arising out of injuries Albino suffered while confined in Los Angeles County jail. Albino's claims are subject to the Prison Litigation Reform Act (" PLRA" ), which requires that a prisoner challenging prison conditions exhaust available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). Defendants moved for summary judgment based, inter alia, on Albino's alleged failure to exhaust. The district court granted the motion, dismissing Albino's federal claims without prejudice. The court also dismissed his state claims without prejudice. See 28 U.S.C. § 1367(c). We reverse.
First, although it may be more a matter of a change of nomenclature than of practical operation, we overrule Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), in which we held that a failure to exhaust under § 1997e(a) should be raised by a defendant as an " unenumerated Rule 12(b) motion." We conclude that a failure to exhaust is more appropriately handled under the framework of the existing rules than under an " unenumerated" (that is, non-existent) rule. Failure to exhaust under the PLRA is " an affirmative defense the defendant must plead and prove." Jones v. Bock, 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.
Second, we hold that Albino has satisfied the exhaustion requirement of § 1997e(a). Defendants have failed to prove that administrative remedies were available at the jail where Albino was confined. Because no administrative remedies were available, he is excused from any obligation to exhaust under § 1997e(a). We therefore direct the district court to grant summary judgment to Albino on the issue of exhaustion.
I. Background and Proceedings Below
Albino proceeded pro se in the district court. The following narrative is based largely on the evidence submitted to the district court by both parties. It is based partly on allegations in Albino's verified first amended complaint that are uncontradicted by evidence in the record. Except where otherwise noted, the narrative is based on undisputed evidence.
Glendale Police officers arrested Albino for rape under California Penal Code § 261(a)(1). He was not arrested for a sexual crime against a minor. After his arrest, Albino was brought to the Los Angeles County Men's Central Jail. He alleges that when he arrived at the jail on May 11, 2006, deputies refused to place him in protective custody. Instead, they placed him in the general population of a high-medium security housing unit. Albino is 5 feet 3 inches tall. At the time, he weighed 123 pounds.
Albino alleges in his complaint that on June 16, 2006, an inmate approached him and said, " [T]he deputy said you committed sex acts with children." A group of several inmates then attacked Albino, beating him unconscious, cutting him severely, and raping him. Albino reported the assault to Deputy Jaquez, who wrote up an " Incident Report" dated June 17. Despite the one-day disparity in dates, it is clear that Albino's complaint and Deputy Jaquez's report deal with the same incident. Deputy Jaquez wrote that Albino " was holding a white piece of cloth over his right jaw and was bleeding profusely. He also had multiple cuts and redness throughout his entire facial area and he complained of pain to his face." Albino had " two lacerations approximately 6 [inches] in length across the side of his right cheek. . . . He also had multiple cuts and redness around his right eye." The lacerations were deep cuts in the form of a cross. Albino also suffered broken teeth, broken ribs, a broken shoulder, and damage to his hip.
Deputy Jaquez wrote in his report that Albino recounted to him that he had told several inmates that he was in jail for rape, but that it had been his partner who
had raped a sixteen-year-old girl. Deputy Jaquez identified Albino's attackers, including an inmate named Rodriguez. Deputy Jaquez wrote that he spoke to Rodriguez, who admitted to having been one of those who had beaten Albino. Deputy Jaquez wrote that Rodriguez told him that " Albino . . . came in last night bragging about that he had raped a girl."
Albino was taken to the hospital for treatment. When he returned from the hospital, Albino again asked to be placed in protective custody. He states in a declaration, " After the first attack, I pleaded with many staff members for help but the only thing anyone told me was; it is your attorneys [sic] job to protect me." Albino states in another declaration:
Of the ap[p]rox. 10 or so times plaintiff begged defendant custodial deputies to be placed in segregation or for the[m] to help me, defendants responded that it was my attorney's job to protect me. As these were sworn peace officers, I was of the belief that I had to seek my trial attorney's help.
Despite Albino's pleas, deputies did not place him in protective custody upon his return from the hospital. Instead, they placed him in a different general-population housing unit. Sometime in mid-July, two inmates in the new unit attacked Albino, punching and kicking him " numerous times." Albino reported this second attack to Deputy Espinosa. This time Albino did not identify his attackers. In his " Incident Report," Deputy Espinosa wrote, " Swelling under his left eye, swelling to his left side of his forehead, and swelling to his right temple." Albino was taken to the jail clinic rather than the hospital. He alleges in his complaint that some of the wounds from the first attack had been opened, and that his treatment at the clinic consisted only of pain medication.
Albino alleges in his complaint that after the second attack he again requested protective custody, but a deputy told him it " wasn't needed." The deputy instead placed him in yet a third general-population housing unit. In September 2006, Albino was assaulted a third time. He was taken to the jail clinic. He alleges that he suffered " damage to old wounds, including plaintiff's right eye."
As a result of these attacks, Albino has suffered severe nerve damage on the right side of his face. He has also lost hearing in his right ear and most of the vision in his right eye. He now uses a hearing aid and a cane for the blind. He states in his declaration:
My trial attorney had to ask the court for 3 court orders to get me any medical care for my injuries, and dental care. It was not until I arrived at CDCR [California Department of Corrections and Rehabilitation] that [I received] a proper Examination, [and] the doctor told me it was too late to repair the nerve damage.
Albino states in a declaration filed in the district court that he was given no orientation when he was brought to the jail, that he never saw a manual describing complaint procedures, that he never saw complaint forms or a complaint box, and that when he complained and asked for help he was consistently told by deputies at the jail that he should talk to his attorney.
Defendants provided a declaration by Deputy Jason Ford, to which he attaches a copy of " Custody Division Manual § 5-12/010.00 'Inmate Complaints.'" They also provided a declaration in which Deputy Kevin Kelley describes the complaint process in the jail, describes complaint boxes and their placement, and recounts the manner in which complaint forms are made available.
Defendants moved for summary judgment. They contended that Albino had failed to exhaust his remedies at the jail system prior to filing suit, as required by
42 U.S.C. § 1997e(a). In the alternative, they contended on the merits that Albino had failed to show any constitutional violations. Albino did not cross-move for summary judgment.
In his Report and Recommendation, the magistrate judge recommended granting summary judgment to defendants on the ground that defendants had " an accessible administrative procedure for seeking redress of grievances," and that Albino did not exhaust his remedies under that procedure. The district court accepted the recommendation of the magistrate judge and granted summary judgment to defendants. The court dismissed Albino's complaint without prejudice for failure to exhaust. Neither the magistrate judge nor the district court reached the merits of Albino's claims.
A three-judge panel of this court affirmed, treating the defendants' summary judgment motion with respect to exhaustion as an unenumerated Rule 12(b) motion. Albino v. Baca, 697 F.3d 1023, 1029-30 (9th Cir. 2012). We vacated the panel decision and granted rehearing en banc. Albino v. Baca, 709 F.3d 994 (9th Cir. 2013). We now reverse.
II. Standard of Review
We review de novo a district court's grant of summary judgment. Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). A grant of summary judgment is appropriate when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In our de novo review of a district court's summary judgment ruling, we view the evidence in the light most favorable to the non-moving party. San Diego Police Officers' Ass'n v. San Diego City Emps.' Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009).
We decide two questions. First, we hold that an unenumerated motion under Rule 12(b) is not the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted under the PLRA. See 42 U.S.C. § 1997e(a). To the extent evidence in the record permits, the appropriate device is a motion for summary judgment under Rule 56. If summary judgment is not appropriate, the district judge may decide disputed questions of fact in a preliminary proceeding. Second, we hold that defendants are not entitled to summary judgment that Albino failed to exhaust available administrative remedies. Further, we hold sua sponte that Albino is entitled to summary judgment that there were no available administrative remedies at the jail within the meaning of the PLRA, and that he therefore satisfied § 1997e(a)'s exhaustion requirement.
A. Summary Judgment or Unenumerated Rule 12(b)
In holding that the proper procedural device for defendants to raise an exhaustion defense is an unenumerated Rule 12(b) motion, the panel followed our decision in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Wyatt is a PLRA prison-conditions case in which we held that " the failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Id. at 1119. After we decided Wyatt, the Supreme Court held in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), that exhaustion under § 1997e(a) is an affirmative defense that must be pled and proved by a defendant. Id. at 216. In reaching this
conclusion, the Court wrote that " courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns." Id. at 212. " [T]he PLRA's screening requirement does not--explicitly or implicitly--justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself." Id. at 214.
The Court in Jones cited our decision in Wyatt approvingly for its conclusion that PLRA exhaustion is an affirmative defense, but it did not comment on our use of an unenumerated Rule 12(b) motion for determining whether administrative remedies had been exhausted. Id. at 204 n.2. While Wyatt 's use of an unenumerated Rule 12(b) motion is consistent with PLRA's purpose of limiting prisoner litigation by screening cases at the outset of the litigation, see id. at 202, it is in tension with the Court's admonition in Jones against deviating from " the usual practice under the Federal Rules." Id. at 212. The very phrase we used in Wyatt --" an unenumerated Rule 12(b) motion" --is a concession that such a motion is not contemplated by the rules. We conclude that Wyatt is no longer good law after Jones (if it ever was good law), and that we should treat an exhaustion defense under the PLRA within the framework of the Federal Rules of Civil Procedure.
In a few cases, a prisoner's failure to exhaust may be clear from the face of the complaint. However, such cases will be rare because a plaintiff is not required to say anything about exhaustion in his complaint. As the Court wrote in Jones, " failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Id. at 216. But in those rare cases where a failure to exhaust is clear from the face of the complaint, a defendant may successfully move to dismiss under Rule 12(b)(6) for failure to state a claim. See id. at 215-16; Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam) (" [A]ffirmative defenses may not be raised by motion to dismiss, but this is not true when, as here, the defense raises no disputed issues of fact." (citation omitted)); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (" [O]nly in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse." ).
In a typical PLRA case, a defendant will have to present probative evidence--in the words of Jones, to " plead and prove" --that the prisoner has failed to exhaust available administrative remedies under § 1997e(a). Jones, 549 U.S. at 204. The procedure under which a defendant must do so is provided by the Federal Rules. The general outlines of that procedure, applicable to all civil cases, are well understood. If the evidence permits, the defendant may move for summary judgment under Rule 56. If there is a genuine dispute about material facts, summary judgment will not be granted.
The Court in Jones cautioned that we should not alter the ordinary procedural practices and rules in order to serve the policy aims of the PLRA. Id. at 214. At the same time, however, the Court recognized that " the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit." Id. at 202. A rule requiring exhaustion of prescribed administrative remedies " serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." McCarthy v. Madigan, 503 U.S. 140, 145,
112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds as stated in Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Courts have exercised substantial discretion in fashioning exhaustion rules, though " appropriate deference to Congress' power to prescribe the basic procedural scheme . . . requires fashioning of ...