Michael Fuqua v. Charles Ryan , 890 F.3d 838 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RAY FUQUA, AKA No. 16-15597
Michael Fuqua,
Plaintiff-Appellant, D.C. No.
2:15-cv-00286-
v. NVW
CHARLES L. RYAN, Warden, Director
of ADC Central Office; CAMIT, OPINION
Correctional Officer II at Special
Management Unit #1; FRANCISCO,
CO III at SMU #1; STERNS, Sgt. at
SMU #1; CLARK, Kitchen Manager
at Trinity Food Services; DANCE,
Disciplinary Coordinator Sgt. at
SMU #1; SCHITTER, Disciplinary
Captain at SMU #1; PEKCO, CO II
Kitchen Security at SMU #1; JAMES
O’NEIL, SMU #1 Eyman Complex
Deputy Warden; JEFF RODE, SMU
#1 Eyman Complex Associate
Deputy Warden; JENNIFER
HERNANDEZ, COIV at SMU #1
Eyman Complex; CARSON
MCWILLIAMS, ADOC Divisional
Director; UNKNOWN PARTIES,
ADOC Correctional Officers
employed at ADOC - in their official
and individual capacities, Central
Office COIII, Central Office COIV,
2 FUQUA V. RYAN
Central Office Deputy Warden, CO
II Kitchen Security at SMU #1,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted February 7, 2018
San Francisco, California
Filed May 18, 2018
Before: Sidney R. Thomas, Chief Judge, and A. Wallace
Tashima and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
FUQUA V. RYAN 3
SUMMARY*
Prisoner Civil Rights
The panel affirmed the district court’s dismissal of certain
defendants pursuant to 28 U.S.C. § 1915A and reversed the
district court’s summary judgment and remanded in a 42
U.S.C. § 1983 action brought by an Arizona prison inmate
alleging violations of his right to religious liberty under the
First Amendment and the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, and the
denial of due process.
Plaintiff is a devout Christian who was convicted of a
disciplinary violation and terminated from his kitchen job
assignment after he refused to work on a religious holiday.
The district court found that plaintiff did not satisfy the
exhaustion requirements of the Prison Litigation Reform Act
because he initiated, but failed to complete, the grievance
procedure by filing two inmate letters requesting an
adjustment in his work schedule. The district court further
determined that plaintiff’s appeal of his disciplinary
conviction did not satisfy the exhaustion requirement because
his religious accommodation claim was not within the scope
of, nor addressed on the merits by, his disciplinary appeal.
The panel held that although plaintiff’s letters requesting
a work schedule adjustment did not suffice to exhaust
administrative remedies, plaintiff sufficiently exhausted his
administrative remedies through the disciplinary process. The
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 FUQUA V. RYAN
panel noted that plaintiff had completed every step of the
disciplinary appeal process and repeatedly voiced his need for
religious accommodation. There was nothing ambiguous
about plaintiff’s request; defendants were clearly on notice of
the relief he sought. The panel concluded that on this record,
the purposes of the exhaustion requirement had been fully
served, and that plaintiff was not required to pursue a separate
administrative grievance on his religious accommodation
claim while simultaneously pursuing his disciplinary appeal.
The panel affirmed the district court’s decision to dismiss
certain defendants at the screening stage pursuant to 28
U.S.C. § 1915A, holding that plaintiff’s complaint had not
explained how the dismissed defendants violated his rights
under the First Amendment or the Religious Land Use and
Institutionalized Persons Act.
COUNSEL
James A. Sonne (argued), Supervisor; Kelsey A. Woodford
(argued), Jane E. Kessner (argued), Charles E.T. Roberts, and
Gilbert G. Walton, Elizabeth A. Callahan, Kevin C. Eaton,
and William C. Griscom, Certified Law Students; Zeba A.
Huq, Attorney; Religious Liberty Clinic, Stanford Law
School, Stanford, California; for Plaintiff-Appellant.
Gregory D. Cote (argued), McCarter & English LLP, Boston,
Massachusetts; Joseph E. Dylo (argued), Assistant Attorney
General; Mark Brnovich, Attorney General; Liability
Management Section, State Government Division, Office of
the Attorney General, Phoenix, Arizona; for Defendants-
Appellees.
FUQUA V. RYAN 5
OPINION
CHRISTEN, Circuit Judge:
Plaintiff-Appellant Michael Ray Fuqua is an Arizona
inmate and a Christian who was scheduled to work in the
prison kitchen on a religious holiday. Fuqua filed two inmate
letters requesting that the Arizona Department of Corrections
(ADOC) reschedule his kitchen shifts to accommodate the
holiday, but his shifts were not rescheduled. When Fuqua
refused to work on the holiday, he was returned to his cell
and notified that he was charged with a disciplinary violation.
After this incident, Fuqua was no longer scheduled to work as
part of the kitchen crew.
At his subsequent disciplinary hearing, Fuqua was found
guilty of Aggravated Refusal of an Assignment and several
sanctions were imposed, including the loss of his job,
disciplinary detention, and hours of extra duty.
Fuqua filed an unsuccessful disciplinary appeal, followed
by a pro se complaint in federal district court. His complaint
alleged violation of his right to religious liberty under the
First Amendment and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-
1. He also alleged that he was denied due process under the
Fifth and Fourteenth Amendments. The district court
dismissed the due process claims and a number of defendants
at the screening stage, and required the remaining defendants
to answer the complaint’s other allegations. At summary
judgment, defendants argued that Fuqua failed to exhaust his
administrative remedies as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a), because he did
not seek an accommodation of his religious practice through
6 FUQUA V. RYAN
ADOC’s prisoner grievance process. The district court
agreed and granted summary judgment to defendants. Fuqua
appeals the district court’s summary judgment ruling and its
decision to dismiss certain defendants at the screening stage
pursuant to 28 U.S.C. § 1915A(a).
We have jurisdiction under 28 U.S.C. § 1291. Because
we conclude that Fuqua did exhaust his administrative
remedies, we reverse and remand.
I. BACKGROUND
A. Factual History
Fuqua’s complaint alleges that he is a devout Christian
whose sincerely held beliefs require that he obey all biblical
laws.1 The exercise of his faith requires him to observe the
seventh-day Sabbath on Saturdays and eight High Sabbaths
throughout the year, including Passover and the Feast of
Trumpets.2
On September 21, 2014, prison staff informed Fuqua that
he had been assigned a new job in the kitchen. The same day,
Fuqua submitted a letter to Defendant Francisco, the
Corrections Officer III responsible for all inmate work
assignments, requesting that he not be scheduled to work on
Saturdays and High Sabbaths, including Wednesday,
1
Reviewing an order entering summary judgment, we construe the
events that follow in the light most favorable to Fuqua, the non-moving
party. See Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008).
2
The Feast of Trumpets is an Old Testament holiday observed by
some Christians. See Leviticus 23–25; Numbers 29:1.
FUQUA V. RYAN 7
September 24, the Feast of Trumpets. Fuqua offered to work
“all other days,” or “[e]ven more than 5 days a week,” if
necessary to allow him to observe his religious holidays.
On September 21, Fuqua reported to work as scheduled
and attempted to deliver a copy of his letter to a correctional
officer in the kitchen. He was instructed to give the letter to
his kitchen supervisor, Defendant Starns, the next day.
Fuqua returned to the kitchen for work on Monday,
September 22 and tried to give the letter to Sgt. Starns.
According to Fuqua, Starns said, “we don’t do that shit here,”
and refused to accept the letter.
On Tuesday, September 23, Fuqua again reported to the
kitchen for work. He spoke to the kitchen manager,
Defendant Clark, about his inability to work as scheduled on
the religious holiday, and explained his need for religious
accommodation. Defendant Clark instructed him to “do what
you have to do,” but cautioned that Fuqua “will not have a
job here.” Later on Tuesday, Francisco responded to Fuqua’s
September 21 letter and explained that because Fuqua already
had Saturdays and Sundays off, his supervisor (Starns) must
address scheduling for “specific days you need off for your
various religious needs.” Francisco’s response also
explained, “[o]ur kitchen must run 365 days a year.”
Wednesday, September 24, 2014 was the Feast of
Trumpets. Fuqua sent Francisco a second letter asking to
trade his shift with a fellow inmate. He professed that he
“want[ed] to work” and “[did] not want to get fired because
I have to choose between my God’s laws and [ADOC]’s
rules.” Fuqua reported to the kitchen “in order to again
attempt to reason with . . . Defendants Sgt. Starns and
8 FUQUA V. RYAN
Kitchen Manager Clark,” but he declined to work. Starns and
Clark denied Fuqua’s request to switch shifts with another
inmate, and he was verbally cited with a disciplinary
infraction for refusing to work. Fuqua was returned to his
cell, and his complaint alleges that he was suspended from
work as of September 24. Fuqua alleges he was orally
charged with Aggravated Refusal of an Assignment, a 01B
felony,3 via an Inmate Disciplinary Report the same day.4 On
September 29, Fuqua received a response to his second letter
in which Francisco again took the position that it was up to
Fuqua’s supervisor to resolve scheduling matters.
A disciplinary hearing was held on October 22. The
record contains little information about what occurred at the
hearing, but Fuqua was found guilty and assessed a penalty of
five days of disciplinary detention, 30 hours of extra duty,
and 30 days loss of privileges. Pursuant to Department Order
(D.O.) 803, loss of privileges includes loss of access to the
inmate store, telephone access, visitation, educational
opportunities, and (especially relevant here) work
opportunities. Fuqua filed a first-level disciplinary appeal
with the Deputy Warden the same day. Using a pre-printed
form, he checked boxes contesting the adequacy of proof and
the severity of his penalty, and he argued in a narrative that
he should not have been disciplined for observing a religious
3
ADOC’s Department Orders define “Aggravated Refusal of an
Assignment” as “[r]efusal of any work assignment, housing assignment
or classification assignment.”
4
Defendants argue Fuqua did not receive written notice of the
disciplinary charge until October 2.
FUQUA V. RYAN 9
holiday.5 The Deputy Warden upheld the disciplinary
decision, noting that the Feast of Trumpets “is not a holiday
observed by the Department of Corrections according to the
Chaplian’s [sic] Office.” Fuqua filed a second-level
disciplinary appeal with the ADOC Director, this time
checking the “due process,” “adequacy of proof,” and
“severity of penalty” boxes, and again asserting that he
should not have been disciplined for observing a religious
holiday.6 In a decision issued on December 17, 2014, the
ADOC Director stated he had considered the issues Fuqua
raised, but upheld the disciplinary findings and penalties and
issued a final denial of Fuqua’s appeal.
B. District Court Complaint
Fuqua filed a pro se complaint in federal district court
alleging violation of his rights to religious liberty under the
First Amendment of the United States Constitution and
RLUIPA, and violation of his rights to due process under the
Fifth and Fourteenth Amendments. The district court
dismissed the due process claims, and a number of
5
On his first-level appeal form, Fuqua did not check the box
indicating that he was raising a due process challenge.
6
In both his first- and second-level disciplinary appeal forms, Fuqua’s
handwritten narrative next to “adequacy of proof” explained, “I was
written up for observing the Feast of Trumpets, a High Sabbath in which
Yahweh (God) commands that no work be done,” and “[t]his is a violation
to my 1st Amendment right to freedom to exercise my religion;
8th Amendment & 9th Amendments to the U.S. Constitution.” His
narrative accompanying the “severity of proof” box on both forms
described the penalty he received, argued it was too severe, and asserted
he should not have received it because he was “observing a law of my
faith.”
10 FUQUA V. RYAN
defendants, pursuant to 28 U.S.C. § 1915A(a),7 and required
the remaining defendants to answer the First Amendment and
RLUIPA claims.8
Defendant Clark filed a motion for summary judgment
based on Fuqua’s failure to exhaust administrative remedies,
which Defendants Camit, Francisco, and Starns joined. The
district court granted the motion. First, the district court
observed that defendants met their initial burden of showing
there was an administrative remedy available to Fuqua (the
inmate grievance procedure) and that Fuqua did not complete
the administrative appeal process by filing and appealing a
grievance with the Warden or the ADOC Director concerning
his work schedule. The court ruled that the prison’s
Department Orders clearly outlined the remedies available
under the grievance procedure, and concluded that Fuqua did
not show that these remedies were “effectively unavailable”
to him.
The district court also rejected Fuqua’s argument that his
appeal of the disciplinary conviction exhausted his
administrative remedies. The court reasoned that Fuqua’s
“appeal of his disciplinary conviction did not address the
merits of his religious claims against Defendants, and it did
not afford him a remedy against Defendants for their alleged
7
Section 1915A(a) requires district courts to dismiss claims filed by
prisoners against government officials or entities that are “frivolous,
malicious, or fail[] to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(a).
8
The remaining defendants were Camit, Francisco, Starns, and Clark.
Fuqua’s complaint alleges Camit, like Starns, was one of Fuqua’s direct
supervisors in the kitchen, but it does not specify the role Camit played in
the disciplinary proceedings.
FUQUA V. RYAN 11
violations of his right to freely practice his religion.”
Because the disciplinary appeal only “addressed whether
there was sufficient evidence to support [Fuqua’s]
disciplinary conviction, not whether [his] religious rights
were violated,” the district court concluded that Fuqua’s
disciplinary appeal did not exhaust the claim that defendants
violated his right to freely practice his religion. This appeal
followed.
II. STANDARD OF REVIEW
This court reviews de novo a district court’s order
granting summary judgment based on failure to exhaust.
Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en
banc). The defendants bear the burden to show an
administrative remedy was available and that Fuqua failed to
exhaust it. Id. at 1172. If the defendants make this showing,
“the burden shifts to the prisoner to come forward with
evidence showing there is something in his particular case
that made the existing and generally available administrative
remedies effectively unavailable to him.” Id. Because failure
to exhaust is an affirmative defense that the defendants must
plead and prove, the ultimate burden of proof remains with
the defendants. Jones v. Bock, 549 U.S. 199, 212 (2007).
III. DISCUSSION
A. The Exhaustion Requirement
Fuqua’s underlying claims arise from the First
Amendment and RLUIPA. The latter is a federal statute that
forbids prison officials from substantially burdening the
religious exercise of inmates in their care. 42 U.S.C.
§ 2000cc-1. RLUIPA’s requirements are not unlimited. If
12 FUQUA V. RYAN
“inmate requests for religious accommodations become
excessive, impose unjustified burdens on other
institutionalized persons, or jeopardize the effective
functioning of an institution,” a prison system may “resist the
imposition.” Cutter v. Wilkinson, 544 U.S. 709, 726 (2005).
But the Supreme Court has observed that RLUIPA provides
“very broad protection for religious liberty.” Holt v. Hobbs,
135 S. Ct. 853, 859 (2015) (quoting Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2760 (2014)).
RLUIPA incorporates the administrative exhaustion
requirements of the Prison Litigation Reform Act (PLRA),
42 U.S.C. § 1997e(a). See Albino, 747 F.3d at 1171; Brown
v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005). As pertinent
here, the PLRA mandates that:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
confined in any jail, prison, or other
correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a) (emphasis added).
Exhaustion requires complying with an agency’s “critical
procedural rules,” and it is justified by the agency’s need to
“impos[e] some orderly structure on the course of its
proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006).
In addition to complying with the strict letter of the PLRA,
requiring prisoners to exhaust administrative remedies serves
other important objectives. Administrative appeals alert
prison officials to “the nature of the wrong for which redress
[was] sought,” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
FUQUA V. RYAN 13
Cir. 2009) (citation and internal quotation marks omitted),
allowing them to take corrective action where appropriate.
Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016).
Exhaustion also allows a prison’s administration “to address
complaints about the program it administers before being
subjected to suit, reducing litigation to the extent complaints
are satisfactorily resolved, and improving litigation that does
occur by leading to the preparation of a useful record.”
Jones, 549 U.S. at 219; see also Woodford, 548 U.S. at 93–95
(“The PLRA attempts to eliminate unwarranted federal-court
interference with the administration of prisons, and thus seeks
to afford corrections officials time and opportunity to address
complaints internally before allowing the initiation of a
federal case” (alteration, citation, and internal quotation
marks omitted).).
“The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to
system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218; see also Wilkerson v.
Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). Considerable
deference is owed to those who administer prison systems,
and courts recognize that “[w]hen an administrative process
is susceptible of multiple reasonable interpretations, Congress
has determined that the inmate should err on the side of
exhaustion.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
Because this appeal requires us to decide whether Fuqua
exhausted his administrative remedies, we describe in some
detail ADOC’s separate processes for inmate grievances and
inmate disciplinary proceedings.
14 FUQUA V. RYAN
1. Grievance System (D.O. 802)
ADOC’s grievance system is detailed in D.O. 802. The
grievance procedure allows inmates to raise “complaints
related to any aspect of institutional life or condition of
confinement which directly and personally affects the inmate
grievant.” The grievance procedure is not, however, “a
duplicate appeal process or substitute appeal process” for
disciplinary proceedings outlined in D.O. 803. Inmates
receive instruction on how to use the grievance system at the
outset of their confinement and again each time they are
transferred to a different unit.
As detailed in D.O. 802, the grievance process involves
four key stages: (1) the filing of an informal complaint within
ten working days of the action that caused the complaint, to
which a Corrections Officer III responds; (2) the filing of a
formal grievance within five working days of receipt of the
Corrections Officer’s response, to which the Deputy Warden
responds; (3) the filing of a first-level appeal to the Warden;
followed by (4) a second-level appeal to the Director. Under
D.O. 802, “[t]he decision of the Director is final and
constitutes exhaustion of all remedies within the
Department.”
2. Disciplinary Appeal Process (D.O. 803)
ADOC employs a separate process (detailed in D.O. 803)
when inmates are charged with disciplinary infractions. The
disciplinary process addresses noncompliance with written
rules of inmate conduct, sanctions, and procedures for
charged violations. Under D.O. 803, any ADOC employee
may file an Inmate Disciplinary Report for alleged prisoner
violations. The reporting employee must generally complete
FUQUA V. RYAN 15
the first portion of the Inmate Disciplinary Report form
within 24 hours of the alleged violation or the date the
investigation was completed and submit the report to the on-
duty shift supervisor.
At a disciplinary hearing, the hearing officer has the
discretion to modify the charge to a less serious offense. The
hearing officer is responsible for reading the charge and
ensuring the inmate understands it. The hearing officer also
explains the range of possible penalties; asks if the inmate
pleads guilty or not guilty; determines whether to call staff or
inmate witnesses or whether written statements are adequate
or necessary; and reveals to the inmate all evidence used at
the hearing. At the conclusion of the hearing, the hearing
officer may dismiss the charge, find the inmate not guilty, or
find the inmate guilty and impose penalties as indicated in
Attachment B to D.O. 803. The shift supervisor reviews and
signs the report prior to forwarding it to the Disciplinary
Coordinator. The inmate has five calendar days to file a first-
level appeal. Within 20 calendar days, the Deputy Warden
determines whether the inmate received due process, whether
proof was adequate, and whether penalties were assessed
properly. If the Deputy Warden approves the findings of the
disciplinary hearing officer, the inmate may file a second-
level appeal to the ADOC Director. The Director’s review
considers the same questions examined by the Deputy
Warden. The Director’s decision is final, and “all
administrative remedies [are] considered exhausted” with the
conclusion of the second-level disciplinary appeal.
ADOC prisoners may not use D.O. 803 to pursue
grievances, nor use D.O. 802 to contest or appeal disciplinary
infractions. See D.O. 802.01 ¶ 1.3. The Department Orders
provide that if an inmate improperly initiates a D.O. 802
16 FUQUA V. RYAN
grievance related to a disciplinary charge, the inmate will be
redirected to the D.O. 803 procedure. See D.O. 802.01 ¶ 1.4
(inmates who attempt to file grievances for disciplinary
matters “will be instructed to follow the appeal process
outlined in” D.O. 803 unless the grievance “is outside the
scope of [that] . . . process”). But if an inmate attempts to
pursue a disciplinary appeal for a matter more appropriately
addressed by a grievance, the Department Orders do not
require ADOC to redirect the inmate to D.O. 802.
B. The District Court Ruled that Fuqua Failed to
Exhaust his Administrative Remedies
In part, the district court decided Fuqua did not satisfy the
exhaustion requirements of the PLRA because he initiated,
but failed to complete, the grievance procedure by filing two
inmate letters. The court also ruled that Fuqua’s disciplinary
appeal did not satisfy the exhaustion requirement because his
religious accommodation claim was not within the scope of,
nor addressed on the merits by, his disciplinary appeal.
Fuqua argues on appeal that the letters he wrote to request
that his kitchen shifts be rescheduled were not intended to be
grievances and that he exhausted his administrative remedies
by pursuing a disciplinary appeal in accordance with D.O.
803. He argues that, at every stage of the disciplinary
process, he explained that his religion prohibited him from
working on High Holy Days. More specifically, Fuqua
argues that his request for a religious accommodation was
within the scope of his disciplinary appeal because the
disciplinary appeal did address the merits of his religious
accommodation claim and because the disciplinary process
FUQUA V. RYAN 17
could have redressed his disciplinary conviction and the
resulting sanctions.9
1. Fuqua’s Letters Did Not Exhaust his
Administrative Remedies
We agree that Fuqua’s two inmate letters did not exhaust
his administrative remedies. Defendants are correct that
inmate letters are one of several ways ADOC inmates may
initiate a grievance, see D.O. 802.02, but even Fuqua does not
claim that the letters sufficed to exhaust his administrative
remedies. Nor could he. The letters requested only that
Fuqua’s shifts be swapped so he would not be scheduled to
work on his religious holiday. The letters did not request any
other sort of relief or religious accommodation. Because
Fuqua’s letters requested only an adjustment in his work
schedule, his subsequent suspension from the kitchen crew
mooted the request raised in the two letters.
2. Fuqua Exhausted Administrative Remedies
Through the Disciplinary Process
Fuqua argues that he employed D.O. 803 to exhaust his
administrative remedies. He asserts that prior to and
throughout the disciplinary process, he reiterated that his need
to observe a religious holiday was the sole reason for his
refusal to work. According to Fuqua, his religious exercise
was his defense—indeed, his only defense—to the charge that
he refused a work assignment.
9
The parties focused on whether Fuqua exhausted his RLUIPA claim.
We therefore address the PLRA’s exhaustion requirement only in the
context of RLUIPA, though the same analysis applies to the First
Amendment claim.
18 FUQUA V. RYAN
Defendants’ primary argument is that the limited scope of
disciplinary appeals only allows prison officials to consider
whether inmates received due process, whether findings made
at disciplinary hearings were supported by adequate proof,
and whether the penalties imposed were appropriate for the
violation and consistent with the guidelines provided in an
attachment to D.O. 803. See D.O. 803.09 ¶¶ 1.2.3.1.3, 1.2.4,
1.2.5. Given the circumscribed nature of the disciplinary
proceedings, defendants argue Fuqua could not have raised
his religious accommodation claim in his disciplinary appeal.
We disagree.
i. Defendants Did Consider Fuqua’s Request for
Accommodation in the Disciplinary Process
First, the contention that Fuqua was not allowed to raise
his religious practice as a defense to the charge that he
refused a work assignment contradicts the factual history of
Fuqua’s case. The record shows that Fuqua repeatedly raised
his need for a religious accommodation, and that prison
officials acknowledged that Fuqua’s religious tenets were the
basis for his refusal to work. His inmate letters and the prison
officials’ responses made plain that Fuqua was asking for a
religious accommodation. The disciplinary report from
September 24, 2014 reflected that Fuqua refused to conduct
his work assignment due to “a religious holiday,” and his
first- and second-level disciplinary appeals explained that his
religion mandates that “no work be done” on the Feast of
Trumpets. The Deputy Warden and ADOC Director both
considered and rejected Fuqua’s request for religious
accommodation in their responses to his first- and second-
level disciplinary appeals.
FUQUA V. RYAN 19
Second, though defendants’ briefs argued that Fuqua’s
religious exercise claim could not serve as a defense to the
disciplinary charge, defendants acknowledged at oral
argument before our court that Fuqua did raise his religious
exercise claim as an affirmative defense. See Oral Argument
at 14:57–15:30. Prison officials checked with the chaplain
about whether the Feast of Trumpets was a recognized
religious holiday before affirming his disciplinary sanction,
and defendants conceded at oral argument that the outcome
of the disciplinary process might have been different if the
holiday were one recognized by the prison chaplain, like
Easter or Christmas.10 See Oral Argument at 16:15–47. By
consulting with the prison chaplain to determine whether the
Feast of Trumpets is a recognized holiday, and by conceding
that Fuqua “probably would” have had a defense if the
holiday he sought to observe had been Easter or Christmas,
see Oral Argument at 16:23–46, defendants acknowledged
that Fuqua’s claim for religious accommodation was also his
defense to the charge that he refused to work, and was
therefore within the scope of the disciplinary appeal. Fuqua
checked the “adequacy of proof” and “severity of
punishment” boxes on his first- and second-level disciplinary
appeal forms, explained that he was “written up for observing
the Feast of Trumpets, a High Sabbath [o]n which Yahweh
(God) commands that no work be done,” described the
penalty he received, and explained that being fired from his
job and subjected to sanctions “for observing a law of my
faith . . . where I should have never been given any penalty,
is too severe.” This record makes plain that Fuqua was
challenging the adequacy of the proof that he refused a work
10
Defendants do not cite any law to support their proposed distinction
between widely recognized religious holidays and holidays not widely
recognized.
20 FUQUA V. RYAN
assignment and was also arguing that the sanctions imposed
were not appropriate. Without question, prevailing in his
disciplinary appeal could have allowed him to obtain the
relief he sought because it would have resulted in the
expungement of his conviction and the resulting sanctions.
See D.O. 803.09 ¶¶ 1.2.4 (scope of first-level appeal to
Deputy Warden is whether inmate received due process,
whether there was adequacy of proof, and whether penalties
were assessed appropriately), 1.2.5.1.1 (scope of second-
level appeal to Director involves the same considerations).
The history of Fuqua’s case belies defendants’ argument that
D.O. 803 cannot account for a prisoner’s religious practice.
Finally, we note that the parties focused only on the
remedies provided by D.O. 802 and 803, but they included
D.O. 904 in the record and it appears to allow
accommodation of weekly “no-work” days, such as Sundays
and other weekly Sabbaths. And with 30 days notice, D.O.
904 allows prisoners to request “no-work” days that do not
recur each week, like the holiday at issue here. See D.O.
904.04 ¶ 1.2.4. Fuqua was assigned to his kitchen job just
three days before his religious holiday, so a request for relief
pursuant to D.O. 904 was not available to him. But another
provision of D.O. 904 makes clear that ADOC recognizes
there are times when requests for religious accommodation
must be addressed in the disciplinary process. See D.O.
904.04 ¶ 1.1.1.3 (requiring that inmates placed in disciplinary
isolation not be denied access to religious items or
opportunities).
FUQUA V. RYAN 21
ii. RLUIPA Mandates Consideration of Fuqua’s
Requested Accommodation
Defendants’ contention that a religious practice cannot be
raised as a defense to a disciplinary charge also contradicts
RLUIPA’s statutory mandate against the imposition of
“substantial burden[s] on the religious exercise” of
incarcerated individuals. 42 U.S.C. § 2000cc-1. It is worth
repeating that the only infraction for which Fuqua was
disciplined was his refusal to obey an order that directly
contravened the religious tenet that he not work on his
religious holiday. RLUIPA requires that if a prisoner
establishes that the government’s refusal to provide religious
accommodation substantially interfered with his religious
exercise, the burden shifts to the government to prove that its
action was “in furtherance of a compelling governmental
interest” and was the “least restrictive means of furthering
that compelling governmental interest.” Warsoldier v.
Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (quoting
42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b)); see also 42 U.S.C.
§ 2000cc-5 (defining “religious exercise” for the purpose of
RLUIPA to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief”);
Cutter, 544 U.S. at 725 n.13 (observing that RLUIPA requires
that prison officials focus their inquiries on “the sincerity of
a prisoner’s professed religiosity”).
We do not reach ADOC’s implied argument that it is at
liberty to decide which holidays are recognized, nor whether
Fuqua’s religious beliefs were sincere, nor whether Fuqua’s
request was somehow burdensome. Our task is to review
only the district court’s threshold determination that Fuqua
failed to exhaust his administrative remedies, and we reject
22 FUQUA V. RYAN
defendants’ contention that he could not have done so within
the confines of the disciplinary process.
3. Only Available Remedies Must Be Exhausted
By its terms, the PLRA requires only the exhaustion of
“available” administrative remedies, see 42 U.S.C.
§ 1997e(a), and on several occasions we have found
administrative processes unavailable even though they exist
on the books. In Marella v. Terhune, we reversed the district
court’s dismissal of a prisoner’s complaint for failure to
exhaust because the inmate did not have access to the proper
grievance form within the prison’s time limits for filing a
grievance. 568 F.3d 1024, 1026 (9th Cir. 2009) (per curiam).
In Nunez v. Duncan, we reversed a district court order
dismissing on exhaustion grounds a prisoner’s complaint
where the prisoner would have needed to access an
unobtainable policy in order to bring a timely administrative
appeal. 591 F.3d 1217, 1226 (9th Cir. 2010). And sitting en
banc in Albino v. Baca, we concluded that administrative
remedies were unavailable because prisoners were not given
access to, nor told about the existence of, a manual describing
the inmate complaint process. 747 F.3d at 1173.
More recently, the Supreme Court explained that
administrative procedures may be functionally unavailable if
“some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Ross, 136 S. Ct. at 1859.
The respondent in Ross sued two prison guards under
42 U.S.C. § 1983 for using excessive force and failing to take
protective action while moving him to a segregation unit. Id.
at 1855. The prisoner acknowledged that he had not sought
a remedy through the prison’s administrative remedy
procedure because he thought the prison system’s Internal
FUQUA V. RYAN 23
Investigative Unit, which conducted an inquiry into his
allegations, “served as a substitute for that otherwise standard
process.” Id. The Supreme Court noted that the PLRA
contains a “textual exception to mandatory exhaustion,”
namely, that prisoners “need not exhaust unavailable
[remedies],” id. at 1858 (emphasis added), and concluded that
the “available” remedies that must be exhausted are
procedures that are “capable of use to obtain some relief for
the action complained of,” id. at 1859 (citation and internal
quotation marks omitted). The Court identified three
circumstances in which an administrative procedure may be
deemed unavailable within the meaning of the PLRA,
including where the procedure is “so opaque that it becomes,
practically speaking, incapable of use.”11 Id. Because the
record in Ross suggested the state’s grievance procedure had
“some bewildering features,” the Court remanded the case for
further consideration of whether the respondent had available
remedies to exhaust. Id. at 1860, 1862.
We have said that the particular circumstances of the
prisoner’s case must be considered when deciding whether
administrative remedies were properly exhausted. Albino,
747 F.3d at 1172. Under the particular circumstances of
Fuqua’s case, we do not hesitate to conclude that ADOC’s
11
The Ross decision was issued after the district court ruled in this
case. In Ross, the Court concluded that an administrative procedure is
unavailable when: (1) “it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief,” or “where the
relevant administrative procedure lacks authority to provide any relief”;
(2) it is “so opaque that it becomes, practically speaking, incapable of use
. . . so that no ordinary prisoner can make sense of what it demands”; or
(3) “administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Ross,
136 S. Ct. at 1859–60 (citations and internal quotation marks omitted).
24 FUQUA V. RYAN
expectation that Fuqua would exhaust his religious
accommodation claim by pursuing a grievance pursuant to
D.O. 802, while simultaneously pursuing a D.O. 803
disciplinary appeal, is precisely the sort of “essentially
‘unknowable’” procedure that the Ross Court had in mind.
Ross, 136 S. Ct. at 1859.
First, we are at a loss to divine what the substance of
Fuqua’s grievance would have been. Fuqua was assigned to
his new job in the kitchen on September 21. D.O. 904 would
have required that he provide 30 days notice of his request to
be rescheduled, but Fuqua did not have 30 days notice that he
would be ordered to work on the Feast of Trumpets. Second,
the two letters Fuqua drafted on September 21 and 24 only
sought shift changes. He did not receive a response to his
second letter until September 29, five days after he was
suspended from work. At that point, no purpose would have
been served by grieving the denial of his requests to be
rescheduled, because Fuqua was no longer scheduled to work
in the kitchen; he had already been suspended. Even if Fuqua
had filed a formal grievance prior to the disciplinary hearing
to address his suspension from the kitchen crew, the loss of
his job was imposed as a disciplinary sanction after he was
convicted of the disciplinary infraction, along with other
sanctions, and ADOC policy is absolutely clear that
grievances may not be used as substitutes for appealing
disciplinary convictions or sanctions. See D.O. 802.01 ¶¶ 1.3,
1.4 (providing that inmates may not file a grievance unless
the issue raised in the grievance is “outside the scope” of any
disciplinary action). The only path for contesting the
conviction and sanctions was by exhausting a disciplinary
appeal. Fuqua completed every step of the disciplinary
appeal process and repeatedly voiced his need for religious
accommodation. There was nothing ambiguous about
FUQUA V. RYAN 25
Fuqua’s request; defendants were clearly on notice of the
relief he sought. See Griffin, 557 F.3d at 1120. On this
record, we conclude “the purposes of the PLRA exhaustion
requirement have been fully served.” Reyes, 810 F.3d at 658.
C. Reinstatement of Screened Defendants
Fuqua does not appeal the dismissal of his due process
claims, but he urges us to direct the district court to reinstate
certain defendants who were dismissed at the screening stage.
We decline to do so. Because Fuqua’s complaint does not
explain how the dismissed defendants violated his rights
under the First Amendment or RLUIPA, we affirm the district
court’s dismissal of the defendants. See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
IV. CONCLUSION
We reverse the district court’s ruling that Fuqua failed to
exhaust his available administrative remedies. The claims
Fuqua exhausted are limited to: (1) the request to have his
shifts rescheduled; (2) the defense that his refusal to work in
the kitchen on September 24, 2014 was because of his
religious exercise; and (3) the argument that the conviction
and sanctions should be expunged as violative of the First
Amendment and RLUIPA. We affirm the district court’s
§ 1915A screening decision, and remand for consideration of
the merits of Fuqua’s First Amendment and RLUIPA claims.
Fuqua is awarded his costs on appeal. See Fed. R. App. P.
39(a)(4).
AFFIRMED in part, REVERSED in part, and
REMANDED.