Brown v. Valoff ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER BROWN,  No. 03-16502
Plaintiff-Appellee,
v.  D.C. No.
CV-01-06526-OWW
J. VALOFF,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted November 2, 2004*
San Francisco, California
ROBERT HALL, 
Plaintiff-Appellee,
v.
J. W. FAIRMAN, JR., No. 03-16552
Defendant, D.C. No.
and  CV-99-05780-AWI/
SMS
J. MATTINGLY; A. C. QUINONES; A.
VALENZUELA; C. DAVIS; L. R. OPINION
LOPEZ; C. SMITH; E. TOSTADO; G.
ZINANI,
Defendants-Appellants.

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
12343
12344 BROWN v. VALOFF
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted
November 2, 2004—San Francisco, California
Filed September 6, 2005
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Reinhardt
BROWN v. VALOFF 12347
COUNSEL
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Fran-
ces T. Grunder, Senior Assistant Attorney General, James E.
Flynn, Supervising Deputy Attorney General, and David A.
Carrasco, Deputy Attorney General, Sacramento, California,
for the defendant-appellant in Case No. 03-16502.
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Fran-
ces T. Grunder, Senior Assistant Attorney General, Sara
Tuner, Supervising Deputy Attorney General, and Barbara N.
Sutliffe, Deputy Attorney General, San Francisco, California,
for the defendants-appellants in Case No. 03-16552.
Peter Brown, pro se, Vacaville, California, plaintiff-appellee
in Case No. 03-16502.
Thomas L. Riordan, Thadd Blizzard, and Charles L. Post,
Weintraub Genshlea Chediak Sproul, Sacramento, California,
for the plaintiff-appellee in Case No. 03-16552.
12348 BROWN v. VALOFF
OPINION
BERZON, Circuit Judge:
We consider the application of the Prisoner Litigation
Reform Act’s (“PLRA”) exhaustion requirement, 42 U.S.C.
§ 1997e(a), to circumstances in which an inmate has filed a
grievance with a prison grievance system and, having
received some relief before the final level of review, does not
pursue his grievance further. In these two cases with similar
but somewhat different factual backgrounds, the district
courts certified interlocutory appellate review. We accepted
jurisdiction and have consolidated them for purposes of deci-
sion. We conclude that Peter Brown adequately exhausted the
available grievance process but Robert Hall did not.
BACKGROUND
We begin by providing a brief overview of the California
Department of Corrections’ (“Department”) internal griev-
ance system and of the factual background of each case.
1. Grievance system: California’s Department of Correc-
tions provides a four-step grievance process for prisoners who
seek review of an administrative decision or perceived mis-
treatment. Within fifteen working days of “the event or deci-
sion being appealed,” the inmate must ordinarily file an
“informal” appeal, through which “the appellant and staff
involved in the action or decision attempt to resolve the griev-
ance informally.” Cal. Code Regs., tit. 15, §§ 3084.5(a),
3084.6(c).1 If the issue is not resolved during the informal
appeal, the grievant next proceeds to the first formal appeal
1
There are eight situations in which attempted resolution at the informal
level is not required. See Cal. Code Regs., tit. 15, § 3084.5(a)(3). As rele-
vant here, the informal level is not required when a grievance involves
“[a]lleged misconduct by a departmental peace officer.” Id.
§ 3084.5(a)(3)(G).
 BROWN v. VALOFF 12349
level, usually conducted by the prison’s Appeals Coordinator.
Id. §§ 3084.5(b), 3084.6(c). Next are the second level, provid-
ing review by the institution’s head or a regional parole
administrator, and the third level, in which review is con-
ducted by a designee of the Director of the Department of Cor-
rections.2 Id. § 3084.5(e)(1)-(2).
2. Brown’s case: Appellee Peter Brown’s district court
complaint states that Correctional Officer Valoff used tear gas
and assaulted him on February 24, 1999. He claims that the
alleged assault violated his Fourteenth Amendment rights to
due process and equal protection and the Eighth Amend-
ment’s prohibition of cruel and unusual punishment.
Brown made the same allegations in his formal grievance
filed with prison officials in the summer of 1999.3 In the “Ac-
tion Requested” portion of the form, Brown stated simply: “I
respectfully request to be compensated for these abuses, and
2
Department of Corrections regulations provide that “[t]he decisions of
the Departmental Review Board which serve as the director’s level deci-
sion, are not appealable and conclude the inmate’s or parolee’s departmen-
tal administrative remedy pursuant to section 3376.1.” Cal. Code Regs.,
tit. 15, § 3084.1(a); see also id. § 3084.5(e)(2) (“Third level review consti-
tutes the director’s decision on an appeal, and shall be conducted by a des-
ignated representative of the director under supervision of the chief,
inmate appeals.”).
3
Brown’s description of the incident stated:
Correctional officer J. Valoff, with his actions, violated policy
and procedure, Use of Force, and, Use of Tear Gas. His deliber-
ate actions punished me with out affording me proper due process
and equal protection rights. Officer Valoff, subjected me to cruel
and unusual punishment by physically assaulting me, and, spray-
ing me with his “chemical agent”, o.c. spray without probeble
[sic] cause, or, any threat being made to his person by petitioner
which is supported by petitioner being found not guilty, and,
Officer Valoff’s floor partner’s statement, Officer S. Pulliam.
Brown then went on to describe the “[p]sychological, [e]motional,
[m]ental, [p]hysical pain and anguish” that he suffered as a result of the
incident.
12350 BROWN v. VALOFF
blatant disregard for my constitutional rights.” The response,
on the same form that Brown submitted,4 was marked “De-
nied.” The accompanying memorandum stated:
You have failed to provide compelling information
to substantiate your allegations of staff misconduct.
In the event of staff misconduct, the institutional
supervisory and administrative staff will take the
appropriate course of action. However, this would be
confidential information, which would not be
released to the appellant. Although the appellant has
the right to submit an appeal as a staff complaint, the
request for administrative action regarding the staff
or the placement of documentation in a staff mem-
bers [sic] personnel file is beyond the scope of the
appeals process.
Brown pursued the second level of review within a week of
receiving the first response. He continued to allege that Offi-
cer Valoff used excessive force against him.5 He received a
second level, Warden’s level decision on December 13, 1999,
stating that the “Appeal Decision” was “Partially Granted.”6
4
The Department’s grievance appeals process appears to require an
inmate to continue using the same pre-printed form at each level of review
with the option to submit attachments. When a decision is reached, a
Department official informs the grievant by marking one of four check-
boxes — “Granted,” “P. Granted,” “Denied,” and “Other” — and signs
and dates the form.
5
Brown also noted that he was found “not guilty” on charges related to
the events of February 24. We assume that he referred to the results of an
internal Department disciplinary hearing, a report of which is included in
the record, that indicates that Brown was found not guilty of battery
charges. In addition, the record includes a memorandum from the Kings
County District Attorney’s office indicating that it had declined to pursue
charges against Brown for assault.
6
The Corcoran Appeals Coordinator responded on the Warden’s behalf.
See Cal. Code Regs., tit. 15, § 3084.5(e)(1) (noting an institution head
may appoint a designee to respond to inmate appeals).
BROWN v. VALOFF 12351
Identifying the “Appeal Issue” as “Staff Complaint,” the
attached memorandum stated:
A thorough investigation will be conducted into your
allegations and evaluated in accordance with Depart-
mental Policies and Institutional Procedures. The
matter has been referred to the Office of Internal
Affairs. You shall be notified by the Office of Inter-
nal Affairs of the disposition of your complaint upon
completion of the investigation, in accordance with
[California Penal Code §] 832.7 and the Department
Operations Manual Section 31140.4.2.[7]
It is the Administration’s responsibility to determine
appropriate action taken against any employee, if
deemed necessary. Additionally, inmates are not
apprised of any disciplinary action that may have
been taken against a staff member. It is beyond the
7
We take judicial notice of the Department Operations Manual. See City
of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may
take judicial notice of a record of a state agency not subject to reasonable
dispute.”).
In relevant part, the cited regulation states that it is the responsibility of
the Department’s Hiring Authority to
[e]nsure that every complaint or allegation of employee miscon-
duct receives prompt and thorough attention including contact
with the complainant notifying them of the finding, i.e., sus-
tained, not sustained. This notification shall include the definition
of the finding as discussed in [Department Operations Manual]
31140.14. Since existing law prohibits disclosure of any specific
personnel action taken, the complainant may only be advised that
“appropriate administrative action has been taken.” Pursuant to
[California Penal Code] § 832.7 and 832.8 and EC 1043 through
1045(e), at no time should specifics relating to any personnel
action be discussed with a complainant in the matter.
Department of Operations Manual (“DOM”) § 31140.4.2, available at
http://www.corr.ca.gov/RegulationsPolicies/PDF/DOM/
00_dept_ops_maunal.pdf (last visited Aug. 26, 2005).
12352 BROWN v. VALOFF
scope of the appeals process to grant you monetary
compensation.
Brown did not proceed to the third level of review, that of
the Director of the Department of Corrections or his designee.
He did, however, inquire about the status of the promised
investigation by requesting information from the California
Office of the Inspector General. He received a letter from that
office stating,
This office contacted the California State Prison at
Corcoran, and learned that an investigation was in
fact conducted and completed. However, due to con-
fidentiality laws, Corcoran investigators were unable
to share the specific details of the investigation with
you. Confidentiality laws also prevent us from fur-
ther disclosing any information regarding this inves-
tigation.
Brown next proceeded, pro se and in forma pauperis, to
federal court, under 42 U.S.C. § 1983. As noted above, his
complaint alleged that Officer Valoff’s actions on February
24, 1999 violated the Eighth Amendment and his rights to due
process and equal protection under the Fourteenth Amend-
ment. After the case was transferred to the district court for
the Eastern District of California, Valoff filed a motion to dis-
miss, arguing that Brown had failed to comply with the PLRA
exhaustion requirement.
Magistrate Judge O’Neill made findings and recommenda-
tions suggesting that the district court deny Valoff’s motion.
He reasoned that Brown’s completion of second level review
was sufficient to comply with the PLRA exhaustion require-
ment, as “[t]he response contains no language suggesting that
plaintiff could appeal the decision to the third level of
review[, and] it is unclear what would be left to appeal, as
plaintiff’s appeal was partially granted and an investigation
was to be conducted.”
BROWN v. VALOFF 12353
Ruling on Valoff’s objections to the Magistrate’s report,
the district court agreed that Valoff was “not entitled to dis-
missal of this action.” The court explained that Brown had
exhausted his claims within the Department’s grievance sys-
tem because “[p]laintiff’s inmate appeal grieved the facts at
issue in this suit,” and “in granting plaintiff’s appeal in part
and referring the complaint for investigation by the Office of
Internal Affairs, plaintiff was provided all of the relief that the
administrative process could provide.”
The district court granted Valoff’s motion to certify his
interlocutory appeal to this court, and we accepted the appeal.
3. Hall’s case: Robert Hall is a former inmate of the
Department’s Corcoran Substance Abuse and Treatment
Facility. On September 2, 1998, Hall and his cellmate were,
allegedly, severely beaten and exposed to pepper spray during
a forced removal from their cell. Hall claims that he suffered
extensive injuries following the incident.
Hall filed a grievance, providing a detailed description of
his alleged mistreatment, on September 8, 1998. Under the
section marked “Action Requested,” Hall listed: (1) a $35,000
fine imposed on Sergeant Valenzuela and his removal or
demotion; (2) a $50,000 fine of the Corcoran Substance
Abuse Treatment Facility, and (3) an investigation of the
extraction team that assaulted him. Hall filed a second griev-
ance on December 4, 1998, virtually identical to the first
except that in the “Action Requested” section, Hall asked that
Sergeant Valenzuela be fined $30,000 instead of $35,000. In
both grievance forms Hall also complained that after the
alleged mistreatment, he did not receive adequate medical
treatment and his property was removed from his cell.
In response to Hall’s grievances, prison officials bypassed
the informal review level. Hall received a first level response
to his grievances on January 26, 1999.8 The memorandum
8
The Department consolidated Hall’s grievances and decided them
together in the first level response.
12354 BROWN v. VALOFF
issued to Hall described the “Appeal Issue” as follows: “You
request to have an Internal Affairs Investigation initiated and
to hold responsible Officials accountable for their actions.” In
the section marked “Appeal Decision,” the memorandum
stated that Hall’s requests were “Denied.” The memorandum
also described the treatment of “staff personnel matters.” It
stated:
All staff personnel matters are confidential in nature
and not privy to the inquiries of other staff, the gen-
eral public, or the inmate population. In the event of
staff misconduct, the institutional supervisory and
administrative staff will take the appropriate course
of action. However, this would be confidential infor-
mation, which would not be released to the appel-
lant. Although the appellant has the right to submit
an appeal as a staff complain [sic], the request for
administrative action regarding the staff or the place-
ment of documentation in a staff members [sic] per-
sonnel file is beyond the scope of the appeals
process.
The memorandum further counseled Hall, “[i]f you are dis-
satisfied with this decision, you may complete section ‘H’ of
your appeal and forward it for further review by following the
directions of your appeal form.” Hall did as advised, trigger-
ing further review at the second level.
A second level response was issued to Hall on March 18,
1999. The accompanying memorandum described the “Ap-
peal Issue” as follows:
You allege that Sgt. Valenzuela used excessive force
on you during the cell extraction on 9/2/98 and cal-
led you “nigger” as he beat you in your face with his
fists. You request that the cell extraction team be
investigated for excessive use of force, that Sgt.
BROWN v. VALOFF 12355
Valenzuela be demoted, that he be fined $30,000,
and that the warden be fined $50,000.
Under the section heading “Appeal Response,” the memoran-
dum stated, in part:
Your appeal is being answered as a staff complaint.
If the appeal contains other issues as well, i.e., disci-
plinary or property issues, the other issue(s) must be
appealed separately. This is in accordance with
Administrative Bulletin 98/10, issued August 21,
1998.[9]
Your allegations of staff misconduct have been
referred for investigation. You will be notified by the
Investigative Services Unit only of the conclusion of
the investigation.
The second level response memorandum included the same
9
We take judicial notice of the cited Administrative Bulletin. See
O’Neill, 386 F.3d at 1224 n.2. It sets forth Department procedures for
addressing allegations of staff misconduct in the grievance process, pro-
viding, in relevant part:
The hiring authority, or designee, shall review the allegation and
determine if:
The allegation warrants a formal . . . investigation. When an alle-
gation warrants a formal investigation, the appeals coordinator
shall bypass the First Level of Review, respond at the Second
Level of Review . . . and refer the case for formal investigation
as instructed by the hiring authority. The Second Level Response
shall note that the appeal was granted or partially granted
(depending upon the action requested by the appellant) and the
response shall consist of generic language . . . .
Processing of Inmate/Parolee Appeals, CDC Forms 602, Which Allege
Staff Misconduct, Cal. Dep’t of Corr. Administrative Bulletin 98/10, avail-
able at http://www.corr.ca.gov/regulationspolicies/PDF/ABs/1998ABs/98-
10%20Processing%20of%20Inmate%20Parolee%20Appeals%20
CDC%20Form%20602%20Whic.pdf (last visited Aug. 26, 2005).
12356 BROWN v. VALOFF
language on the treatment of “staff personnel matters” as had
the first level memorandum. Finally, the response stated:
“Considering the above information, your appeal is denied at
the second level of review. If you are dissatisfied with this
decision, you may complete section ‘H’ of your appeal and
forward it for further review by following the directions on
the back of your appeal form.”
On June 7, 1999, Hall filed a complaint, pro se, in the Dis-
trict Court for the Eastern District of California alleging
Eighth Amendment and due process violations. After several
amended complaints had been filed, the defendants submitted
a joint unenumerated Rule 12(b) motion asserting that Hall
had failed to exhaust administrative remedies as required by
§ 1997e(a).
On November 2, 2000, while the case was pending, the
investigation ordered as a result of Hall’s second level review
was completed. Hall received notice of the results of the inter-
nal affairs investigation on July 2, 2001. The notice stated that
Hall’s allegations had been “partially sustained.”
Magistrate Judge Snyder issued her findings and recom-
mendations to District Court Judge Ishii on February 18,
2003. She concluded that Hall had met the exhaustion require-
ment, finding that “the court cannot find that it was necessary
for him to continue pursuing his appeal.” Magistrate Judge
Snyder noted that she found the second level response to be
“inconsistent with a true and complete denial,” and concluded
that “[p]laintiff’s inmate appeal grieved the facts at issue in
this suit and to the extent the process could provide plaintiff
with relief on the complaint stated, it provided such relief
when plaintiff’s allegation of staff misconduct was referred
for investigation.”
On April 7, 2003, the district court adopted Judge Snyder’s
findings and recommendations in full. The district court later
BROWN v. VALOFF 12357
granted the defendant’s motion to allow an interlocutory
appeal, and we accepted the appeal.
DISCUSSION
I.
Congress, through the PLRA, changed in some significant
respects the rules that had been previously applicable in fed-
eral court for prisoner suits challenging the conditions of con-
finement. Of pertinence here is amended § 1997e(a), which
creates “a general rule of exhaustion” for prisoner civil rights
cases. Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002).
[1] Section 1997e(a) provides: “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 administra-
tive remedies as are available are exhausted.” The question
before us is whether Brown and Hall properly exhausted
“such administrative remedies as are available” before pro-
ceeding to the district court.
[2] Two Supreme Court decisions, Booth v. Churner, 532
U.S. 731 (2001), and Porter v. Nussle, provide substantial
guidance in discerning the meaning of § 1997e(a) as it per-
tains to this question. In Booth, a prisoner sought injunctive
relief and monetary compensation for alleged Eighth Amend-
ment violations. 532 U.S. at 734. The issue addressed was
whether the PLRA required Booth to exhaust the prison griev-
ance process even though it promised no hope of the mone-
tary relief he sought. Couched in terms of the statutory
language, the question was “whether or not a remedial scheme
is ‘available’ where the administrative process has authority
to take some action in response to a complaint, but not the
remedial action an inmate demands to the exclusion of all
other forms of redress.” Id. at 736 (emphasis added).
12358 BROWN v. VALOFF
[3] Booth concluded that prisoner plaintiffs must pursue a
remedy through a prison grievance process as long as some
action can be ordered in response to the complaint. The Court,
construing the statutory language, considered that “[i]t makes
no sense to demand that someone exhaust ‘such administra-
tive [redress]’ as is available; one ‘exhausts’ processes, not
forms of relief, and the statute provides that one must.” Id. at
739 (alteration in original). In light of this mandate, the Court
determined, prisoners are obligated to navigate all a prison’s
administrative review process “regardless of the fit between
a prisoner’s prayer for relief and the administrative remedies
possible.” Id. at 739-41. By thus enacting “an obviously
broader exhaustion requirement” than had existed previously,
Booth held, Congress meant to eliminate “a strong induce-
ment to skip the administrative process simply by limiting
prayers for relief to money damages not offered through
administrative grievance mechanisms.” Id. at 741.
[4] At the same time, Booth made quite clear that the statu-
tory language does not require exhaustion when no pertinent
relief can be obtained through the internal process. As the
Court noted, both parties in Booth so recognized: “Neither of
them denies that some redress for a wrong is presupposedly
the statute’s requirement of an ‘available’ remedy’; neither
argues that exhaustion is required where the relevant adminis-
trative procedure lacks authority to provide any relief or to
take any action whatsoever in response to a complaint.” Id. at
736. The Court agreed with the parties’ interpretation in this
regard, recognizing that “the modifier ‘available’ requires the
possibility of some relief for the action complained of.” Id. at
738; see also id. at 736 n.4 (“Without the possibility of some
relief, the administrative officers would presumably have no
authority to act on the subject of the complaint, leaving the
inmate with nothing to exhaust.”)
As to the basic legal question before us, Booth’s statutory
interpretation is dispositive: The obligation to exhaust “avail-
able” remedies persists as long as some remedy remains
BROWN v. VALOFF 12359
“available.” Once that is no longer the case, then there are no
“remedies . . . available,” and the prisoner need not further
pursue the grievance.
[5] The other circuits that have considered whether a pris-
oner continues to have an exhaustion obligation once it is
clear that no further relief is available have agreed with our
understanding that Booth decides this question in the nega-
tive. The Tenth Circuit has held that “[o]nce a prisoner has
won all the relief that is available under the institution’s
administrative procedures, his administrative remedies are
exhausted.” Ross v. County of Bernalillo, 365 F.3d 1181,
1187 (10th Cir. 2004). Similarly, the Second Circuit deter-
mined in Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004),
that further attempts at exhaustion are unnecessary when there
is “no further ‘possibility of some relief.’ ” Id. at 669 (quoting
Booth, 532 U.S. at 738). See also Dixon v. Page, 291 F.3d
485, 490-91 (7th Cir. 2002) (asserting that once it is shown
that there is no “possibility of relief,” then “administrative
remedies are not really available,” and exhaustion is no longer
required).
[6] We conclude, as have these other circuits, that a pris-
oner need not press on to exhaust further levels of review
once he has either received all “available” remedies at an
intermediate level of review or been reliably informed by an
administrator that no remedies are available.10
Although Booth’s textual analysis provides the basic legal
principle that governs the issue before us, some inquiry into
the purpose of the PRLA exhaustion requirement will aid our
10
That it may be advisable for an inmate to appeal every issue to the
highest level to avoid any question as to whether the administrative pro-
cess has been adequately exhausted does not alter our conclusion. While
“over-exhaustion” may be wise so as to expedite later litigation, the fact
remains that Booth does not require an inmate to continue to appeal a
grievance once relief is no longer “available.”
12360 BROWN v. VALOFF
later application of the no-relief limitation on that require-
ment. Porter summarized that purpose, expansively, as “af-
ford[ing] corrections officials time and opportunity to address
complaints internally before allowing the initiation of a fed-
eral case.” 534 U.S. at 525. By providing this opportunity,
Congress expected, frivolous cases might not be pursued,
“corrective action taken in response to an inmate’s grievance
might improve prison administration and satisfy the inmate,
thereby obviating the need for litigation,” and “for cases ulti-
mately brought to court, adjudication could be facilitated by
an administrative record that clarifies the contours of the con-
troversy.” Id.
None of these purposes are served by a requirement that a
prisoner continue to pursue administrative review after all
“available” relief has been accorded. At the same time, the
purposes can be served by relief accorded outside the usual
grievance process, so that awaiting the results of investiga-
tions triggered by the grievance process but outside of it can
serve the purposes of the exhaustion requirement.
Once there is no further possibility that “corrective action
[will be] taken in response to an inmate’s grievance,” id.,
there is no hope that the inmate might be satisfied by relief
other than that requested. As long as some such possibility
persists, however, the inmate might be satisfied, even if he
cannot participate further in the investigation that could yield
that result.
In addition, no further administrative record is likely to be
developed once the system has provided whatever relief it
can; prison administrators are unlikely to waste resources on
investigations leading nowhere. See Booth, 532 U.S. at 736
n.4 (“Without the possibility of some relief, the administrative
officers would presumably have no authority to act on the
subject of the complaint, leaving the inmate with nothing to
exhaust.”) As long as there is an ongoing investigation into
BROWN v. VALOFF 12361
the facts underlying the grievance, however, the prison offi-
cials may develop information useful should litigation ensue.
Finally, requiring entirely pointless exhaustion, when no
possible relief is available, is more likely to inflame than to
“mollify passions,” Booth, 532 U.S. at 737, and thus is
unlikely to “ ‘filter out some frivolous claims.’ ” Porter, 534
U.S. at 525. Once an agency has granted some relief and
explained that no other relief is available, “the administrative
process has not been obstructed. It has been exhausted,” Jasch
v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002). Insisting that
a prisoner nonetheless continue to make appeals to adminis-
trators who will not read or consider them cannot provide the
satisfaction that “very fact of being heard” Booth, 532 U.S. at
737, can sometimes provide.
With those considerations in mind, we turn to the applica-
tion of these principles to the facts of these cases.
II.
In deciding whether the PRLA exhaustion standard has
been met in the cases before us, it is of central importance that
§ 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315
F.3d 1108, 1119 (9th Cir. 2003) cert. denied, 540 U.S. 810
(2003). As we explained in Wyatt, “defendants have the bur-
den of raising and proving the absence of exhaustion.” Id. As
we have concluded that there can be no “absence of exhaus-
tion” unless some relief remains “available,” a defendant must
demonstrate that pertinent relief remained available, whether
at unexhausted levels of the grievance process or through
awaiting the results of the relief already granted as a result of
that process. See Brown v. Croak, 312 F.3d 109, 112 (3d Cir.
2002) (holding that because failure to exhaust is an affirma-
tive defense under the PLRA, a complaint cannot be dis-
missed where the prisoner submits evidence showing, and the
defendants do not disprove, that no remedy was “available”).
Relevant evidence in so demonstrating would include statutes,
12362 BROWN v. VALOFF
regulations, and other official directives that explain the scope
of the administrative review process; documentary or testimo-
nial evidence from prison officials who administer the review
process; and information provided to the prisoner concerning
the operation of the grievance procedure in this case, such as
in the response memoranda in these cases. With regard to the
latter category of evidence, information provided the prisoner
is pertinent because it informs our determination of whether
relief was, as a practical matter, “available.” See id. at 113
(relying on directives given by prison officials to the inmate
regarding the grievance procedure because “ ‘[a]vailable’
means ‘capable of use; at hand,’ and if prison officials inform
the prisoner that he cannot file a grievance, the formal griev-
ance proceeding . . . was never ‘available’ . . . within the
meaning of 42 U.S.C. § 1997e”); cf. Johnson v. Testman, 380
F.3d 691, 697 (2d Cir. 2004) (remanding to consider whether
the regulations covering the grievance procedures were “suffi-
ciently confusing so that a prisoner . . . might reasonably have
believed that he could raise his claim against [the defendant]
as part of his defense in disciplinary proceedings.”); Giano v.
Goord, 380 F.3d 670, 673-74 (2d Cir. 2004) (holding that an
inmate’s reasonable interpretation of prison regulations justi-
fied his failure to exhaust when he raised allegations of retal-
iatory staff misconduct as a defense in disciplinary
proceedings brought against him, rather than affirmatively
pursuing the independent grievance system).
With that background, we turn to the facts of each of the
cases before us.
1. Brown: Considering carefully the record before us, we
conclude that the Department of Corrections did not establish
that once it had ordered an investigation into Officer Valoff’s
alleged misconduct through the separate “staff complaint”
process, it had any remaining “authority to act on the subject
of the complaint,” Booth, 532 U.S. at 736 n.4, through the
grievance procedure.
BROWN v. VALOFF 12363
The second level response memorandum characterized the
“appeal issue” as “Staff Complaint” and stated that the “Ap-
peal Decision” was “Partially Granted.” Under “Summary of
Investigation,” the memorandum stated that a thorough inves-
tigation would be conducted through the Office of Internal
Affairs; that the Administration would decide on the “appro-
priate action” to be taken if necessary: that Brown would not
be apprised of any disciplinary action taken as a result of this
complaint; and that monetary compensation is beyond the
scope of the appeals process. Under “Appeal Decision,” the
memorandum stated: “Your appeal is partially granted at the
second level of review, in that your appeal will be investi-
gated by the Office of Internal Affairs, at which time you will
be personally interviewed.” The memorandum did not counsel
that any further review was available.
[7] Even read in isolation, the reasonable import of this
memoranda is that no further relief will be available through
the appeals process, but the confidential staff complaint inves-
tigation would go forward and could result in some adminis-
trative action based on Brown’s complaint. That Brown could
reasonably have so understood the communications to him is
itself a strong indication that no further relief was “available”
other than the staff complaint investigation and (confidential)
result. See Brown, 312 F.3d at 112.
[8] Further, the Department’s governing directives confirm
that this reasonable interpretation of the response memoran-
dum reflects its actual procedures. The Administrative Bulle-
tin of the Department of Corrections, issued on August 21,
1998, before Brown’s second level response, states unequivo-
cally that “ALL complaints which allege any misconduct by
a staff member shall be logged by the appeals coordinator as
a Staff Complaint.” (bold in the original) See also id., section
3 (“It is . . . important that appeals coordinators do not log
allegations of staff misconduct into other appeal catego-
ries[ than “staff complaint.”]) (bold in the original). The Bul-
letin then goes on to prescribe that if — as the second level
12364 BROWN v. VALOFF
response stated with respect to Brown’s grievance — a staff
complaint “warrants a formal investigation,” then the second
level response “shall note that the appeal was granted or par-
tially granted (depending upon the action requested by the
appellant).” (Emphasis added.) Finally, after suggesting the
use in the second level response of language quite similar to
that used in the second level response to Brown, the Bulletin
advised that “[w]hen an appeal alleges staff misconduct and
other issues; e.g. dismissal of a Rules Violation Report or
property loss . . . the inmate/parolee shall be notified . . . that
the other issue(s) must be appealed separately.” (Emphasis
added.)
The Department’s Operations Manual explains the staff
complaint procedure referenced in the Bulletin in some detail:
A staff investigation “is a systematic gathering of all facts and
evidence concerning an allegation of misconduct. All allega-
tions, facts, evidence, and findings shall be verified and docu-
mented.” DOM § 31140.9. Only after such an investigation
may an adverse personnel action be taken against a Depart-
ment employee. See id. § 31140.15. An investigation results
in a specific finding as to each allegation: “no finding,” “not
sustained,” “unfounded,” “exonerated,” or “sustained.” Id.
§ 31140.14. Critically, for present purposes, investigative
records are “afforded the highest degree of confidentiality,”
id. § 31140.11, and “[t]he Hiring Authority [must] ensure the
proper maintenance and security of investigation/inquiry
records and files pursuant to [California Penal Code §§] 832.5
and 832.7.” Id., § 31140.16. As part of this confidentiality
policy, “the complainant may only be advised that ‘appropri-
ate administrative action has been taken . . . [A]t no time
should specifics relating to any personnel action be discussed
with a complainant.” Id., §31140.4.2. As this summary indi-
cates, this confidential investigation is intended to develop all
the facts concerning staff misconduct, and to keep both the
factual findings and the relief accorded confidential.
BROWN v. VALOFF 12365
These directives, taken together, lead us to conclude that no
further relief was in fact “available” through the appeals pro-
cess, although the staff complaint process to which the griev-
ance was directed instead had not yet run its course. The
Operations Manual specifies an extensive investigation where
the staff complaint process is triggered. The Bulletin explains
that staff misconduct grievances are to be investigated only
through the staff complaint process, thereby negating any pos-
sibility of a parallel investigation through the appeal process.
Thus, once Brown’s grievance was categorized as a “Staff
Complaint” — which the entry in the “appeal issue” box indi-
cates that it was — there was no possibility that it would be
investigated again, separately, through the appeal process.11
Further, the Bulletin explains the meaning of the “Partially
Granted” designation: Whether an appeal directed to the staff
complaint procedure is given a “granted” or “partially grant-
ed” response depends not on whether there remains some pos-
sibility of obtaining relief through the appeals process, but on
“the action requested by the appellant.” Here, the “action
requested by the appellant” was monetary compensation,
which was, as the response informed him right after telling
him that his staff complaint would be thoroughly investigated,
“beyond the scope of the appeals process. . . .”
Finally, the Bulletin also specifies the language to be used
if there is some separate matter that can still be pursued
through the appeals process: In that event, “the inmate/parolee
shall be notified that the staff complaint is being handled and
that the other issue(s) must be appealed separately.” Brown
11
The partial dissent criticizes our conclusion on the basis that the con-
sequence will be that allegations of staff misconduct will never be able to
be pursued through the prison’s administrative appeals process. See Con-
curring and dissenting op. at 12380. This result, however, is dictated by
the Department’s own Administrative Bulletin, which shunts off such
grievances into the Staff Complaint process. The dissent’s quarrel, then,
is not with our holding, but instead with the system designed by the Cali-
fornia Department of Corrections.
12366 BROWN v. VALOFF
was given no such advice, indicating — correctly, as we read
his appeals — that there was no issue other than staff miscon-
duct, and therefore no matter “that must be appealed separate-
ly.”
No other evidence in the record contradicts the conclusion
that no further relief was “available” through the appeals pro-
cess once the staff misconduct investigation was opened.12
While Valoff argues that an appeal to the Director’s level
might have netted additional relief to Brown, he produced no
evidence — which would have had to contradict his own
directives — that it could have.
The evidence Valoff submitted consisted of a declaration
from the Chief of the Inmate Appeals Branch confirming that
Brown did not file an appeal relating to this case at the third
level and an appeal Brown did file at the third level regarding
an entirely separate incident, involving a different corrections
officer.13 This evidence does not demonstrate that the appeals
process could have, or did, yield any relief under circum-
stances similar to those here.
In lieu of evidence, Valoff now proffers that, “[o]ne can
easily imagine actions that [the Department] could have taken
12
Valoff relies on Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001), to
support his contrary position. In that case, however, the plaintiff did not
contend that his complaint was “beyond the authorized jurisdiction” of the
prison’s administrative process, and the court held that there was “no
question that some action could have been taken in response to the com-
plaint.” Id. at 723.
13
The district court decided this case before we clarified our earlier
opinion in Wyatt v. Terhune, 280 F.3d 1238 (9th Cir. 2002), by specifying
that an affirmative defense for failure to exhaust can be raised through an
unenumerated Rule 12(b) motion, and can therefore rely on evidence out-
side the record. Wyatt v. Terhune, 315 F.3d at 1119-20. Consequently, the
district court was in error, although understandably so, in refusing to con-
sider the evidence outside the record submitted by the defendant. We do
consider that evidence, although we do not find that it illuminates the issue
before us.
BROWN v. VALOFF 12367
to provide relief to Brown. For example, the [Department]
could have transferred Valoff to a different post, transferred
Brown to a different cell or prison, or modified its policies
and procedures concerning the use of pepper spray. At a mini-
mum, CDC could have afforded Brown another opportunity
to be heard.” (Emphasis added.) Establishing, as an affirma-
tive defense, the existence of further “available” administra-
tive remedies requires evidence, not imagination.
Moreover, the evidence that is in the record is not consis-
tent with Valoff’s speculations. It is clear, for example, from
the Department’s general directives and from its responses in
this case, that only after the staff misconduct investigation,
through which Brown’s allegations were considered, would
the Department of Corrections have determined whether Val-
off’s transfer to another institution was appropriate. Those
documents emphasize that all investigations into staff miscon-
duct are to take place through the staff complaint process; that
the choice of relief in the event a complaint is sustained is up
to the Department; and that the results of the staff complaint
process are confidential. For similar reasons, any transfer of
Brown because of Valoff’s behavior would depend on sus-
taining the complaints about that behavior and thus could not
come through the appeals process.
Valoff also posits a change in the pepper spray policy as a
possible remedy following an appeal to the Director’s level.
Brown did not, however, complain about the pepper spray
policy; rather, his complaint was that the policy had been violat-
ed.14 As Brown’s grievance in no way challenged the pepper
spray policy, we can conceive no reason the Director would
reconsider that policy in response to Valoff’s grievance. See
Booth, 532 U.S. at 736 n.4 (“Without the possibility of some
relief, the administrative officers would presumably have no
14
Brown’s grievance stated in relevant part: “Correctional Officer J.
Valoff, with his actions, violated policy and procedure, Use of Force, and
Use of Tear Gas.”
12368 BROWN v. VALOFF
authority to act on the subject of the complaint, leaving the
inmate with nothing to exhaust.” (emphasis added)). For that
same reason, the notion that “[a]t a minimum, CDC could
have afforded Brown another opportunity to be heard,” is not
true, on the present record. An “opportunity to be heard”
means that someone must be listening. Yet, all indications are
that on a third level appeal, no one would be listening —
because the investigation and consideration of the grievance
had been directed, in their entirety, to the staff complaint pro-
cess.
We note, finally, that Brown did give the process to which
his complaint was directed a full opportunity to develop the
facts and reach a conclusion. When he was not notified of the
results of the staff complaint process, he made inquiry of the
California Office of the Inspector General. In a letter dated
before the federal court complaint was filed the Inspector
General notified Brown that “an investigation was in fact con-
ducted and completed.” The Department, consequently, had a
full opportunity to consider and investigate the complaint
before this suit was filed, in accord with its own processes. As
those processes did not involve any further appeals, Brown
had no obligation to pursue the third level appeal before pro-
ceeding to court.
[9] We conclude that Brown did exhaust “such administra-
tive remedies as are available.” Section 1997e(a) therefore
creates no barrier to Brown’s pursuit of monetary relief. The
decision of the district court must therefore be affirmed.
2. Hall: Hall’s case differs from Brown’s in two critical
respects, both of which we deem to support a conclusion that
he, unlike Brown, did not meet the PRLA exhaustion require-
ment.
First, while Hall, like Brown, was informed in his second
level response memorandum that his “appeal is being
answered as a staff complaint,” Hall, unlike Brown, was also
BROWN v. VALOFF 12369
informed that “[i]f the appeal contains other issues as well,
i.e., disciplinary or property issues, the other issue(s) must be
appealed separately. This advice is in accordance with
Administrative Bulletin 98/10, issued August 21, 1998.” Hall
was also advised that “[i]f . . . dissatisfied with th[e] deci-
sion,” “further review” was available. Finally, Hall’s second
level response was marked “Denied” rather than “Partially
Granted.”
These differences in the second level response reflect a dif-
ference in the nature of Hall’s grievance, as compared to
Brown’s. Both Hall’s grievance and his federal court com-
plaint, unlike Brown’s, raised issues other than those relating
to the misconduct of the correctional officers who assertedly
used excessive force. Hall also complained in his grievance
that he did not receive adequate medical care after the exces-
sive use of force and that he was “returned to an empty cell
with no property.” Similar allegations were repeated in Hall’s
complaint in this suit: “[P]laintiff[ ] . . . received no medical
attention [although he] had complained . . . during medical
deliveries that he was in severe pain . . . and need [sic] to be
seen by a doctor . . . ;” “[P]rison officials had confiscated . . .
Plaintiff’s personal property.”15
15
The partial dissent argues that Brown’s complaint is indistinguishable
from Hall’s because it also contained allegations of inadequate medical
care. Concurring and dissenting op. at 12374-75 n.1. This argument is
based on the following language from Brown’s complaint:
As a result of being sprayed in my left eye by Officer Valoff, I
now have three little spots in my left eye, which I complained
about to staff, Captain Sanchez, who heard my 114D lock up
order the following day, Sgt. Flores, Ad, Seg Sgt., RN Bengi, and
several MTA’s and nurses that I can’t identify by name, but, can
recognize. I complained in my first ICC committee hearing, and
no one responded with any interest. I submitted several sick call
application, and met again with cancellations and excuses about
not receiving my submitted medical applications. With such neg-
ative results, I kept this information to myself until I could find
someone who would listen.
12370 BROWN v. VALOFF
[10] It thus appears that in Hall’s case, unlike in Brown’s,
there were matters separate from the staff complaint about
excessive force — i.e., allegations regarding lack of medical
care and deprivation of property — that, according to both the
Administrative Bulletin referenced in the second level
response and the response itself, “must be appealed separate-
ly.” That is why, presumably, the response memorandum to
Hall, unlike the response to Brown, did note the possibility of
further appeal.16 We conclude that both a reasonable interpre-
tation of the responses made to Hall and the Department’s
When read in context, it is evident that Brown’s discussion of his treat-
ment by medical staff was not raised as a separate complaint, but rather
as a way of explaining the steps Brown took to complain about the mis-
treatment and, in support of his request for damages, the medical impact
of the alleged attack. Hall, in contrast, stated in his complaint that “[i]t
must be noted that, myself nor my cellie (Petillo) was given adequate
medical care, we were merely questioned about our injuries, but medical
staff did not apply proper medical aid to me after brutal cell extraction
also. (emphasis in original). That Hall’s intention in making this statement
was to raise a separate claim of improper medical care, along with his alle-
gations of excessive force and property loss, is reinforced by the fact that
in his federal complaint, Hall reasserted his complaints about medical care
and confiscation of personal property. In contrast, Brown’s federal com-
plaint does not assert issues surrounding his medical treatment.
Furthermore, contrary to our dissenting colleague’s claim that Hall
made no “specific allegation as to what property was taken,” Concurring
and dissenting op. at 12375 n.1, Hall’s grievance form states that he was
returned to a cell with “no sheets, no mattresses, no blankets. And no other
article of clothing except boxer shorts.”
16
We do not rely on the fact that Hall’s appeal was marked “denied.”
This notation may simply reflect the fact that “partially granted” seems to
have been reserved for situations like Brown’s, in which there was other
relief requested for the same set of alleged facts but that relief is not avail-
able through the appeals grievance. Whether that is so or not, we agree
with the district court that the notation used is not controlling. Here, Hall
was granted the same relief — a full staff complaint investigation — that,
in Brown’s case, was denominated a partial grant. Characterizing Hall’s
appeal as “denied” was inaccurate or, at least, misleading, and not entitled
to weight.
BROWN v. VALOFF 12371
actual practices as reflected in the governing directives indi-
cate that, as to certain aspects of Hall’s grievance, some relief
might have been available had he pursued his third level appeal.17
[11] Second, unlike Brown, Hall filed his federal court
complaint in June 1999, before the staff complaint investiga-
tion was completed on November 2, 2000, and before he was
notified on July 2, 2001 that “[t]he findings of said allega-
tion(s) were partially sustained.” Until the staff misconduct
investigation was completed, the Department had not had a
full opportunity to investigate the complaint and to develop an
understanding of the facts underlying it. Moreover, even
absent any specific information regarding the results of the
investigation, it is conceivable that a prisoner who learns that
his allegations were “partially sustained” would be satisfied
that he had been heard and proceed no further.
We recognize that, as the facts of this case illustrate, await-
ing the results of a staff misconduct investigation can substan-
tially expand the time required to exhaust the Department’s
available administrative remedies. Unlike the grievance pro-
cess, through which prompt responses are ordinarily required,
see Cal. Code Regs., tit. 15, §§ 3084.5(I) & 3084.6(b), inter-
nal regulations mandate only that the Department complete an
investigation within one year. See DOM § 31140.8.
17
Our dissenting colleague relies on the fact that the pre-printed inmate
appeal form used by both Brown and Hall contained a notation that a
Director’s level review existed. Concurring and dissenting op. at 12374.
This argument misses the point. The “availability” of relief does not turn
on what the prisoners might have been told at the time they filed their
complaints, but rather on how the prison viewed and treated their com-
plaint based on its own procedures. The Administrative Bulletin states that
where the inmate raises both staff complaint and other issues, the prison
is to inform the inmate that those issues “must be appealed separately.”
The fact that Hall was so advised supports our conclusion that officials
viewed his complaint, unlike Brown’s, as containing issues for which
relief was still available. The informative factor, then, is the difference in
treatment of the two complaints, not the pre-printed language found on the
appeal form.
12372 BROWN v. VALOFF
We have held that a prisoner may not proceed to federal
court while exhausting administrative remedies, see McKin-
ney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per
curiam). At the same time, awaiting the completion of a staff
misconduct investigation could, absent some adjustment,
endanger the prisoner’s ability to file his court complaint
within the limitations period. See Cal. Civ. Proc. Code
§ 335.1; Maldonado v. Harris, 370 F.3d 945, 954 55 (9th Cir.
2004), cert. denied sub nom. Kempton v. Maldonado, 125
S. Ct. 1725 (2005) (holding that there is a two year statute of
limitations in California in §1983 cases). We do not regard
the intersection of the exhaustion and statute of limitations
requirements as creating a problem for prisoners, however, as
we agree with the uniform holdings of the circuits that have
considered the question that the applicable statute of limita-
tions must be tolled while a prisoner completes the mandatory
exhaustion process. See Johnson v. Rivera, 272 F.3d 519, 522
(7th Cir. 2001) (“We thus hold that in the ordinary case, a fed-
eral court relying on the Illinois statute of limitations in a
§ 1983 case must toll the limitations period while a prisoner
completes the administrative grievance process.”); Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (tolling is appro-
priate while prisoner completes mandatory exhaustion); Har-
ris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir. 1999) (same).18
18
We also note that, again like all the other circuits that have considered
the question, “we refuse to interpret the PLRA ‘so narrowly as to . . . per-
mit [prison officials] to exploit the exhaustion requirement through indefi-
nite delay in responding to grievances.” Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002). See also Jernigan v. Stuchell, 304 F.3d 1030
(10th Cir. 2002); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001);
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam).
Delay in responding to a grievance, particularly a time-sensitive one, may
demonstrate that no administrative process is in fact available. See Jerni-
gan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“[F]ailure to
respond to a grievance within the time limits contained in the grievance
policy renders an administrative remedy unavailable . . . .”); Foulk v.
Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (affirming district court deci-
sion not to dismiss for failure to exhaust when a Department of Correc-
tions’ failure to respond to a preliminary grievance precluded the plaintiff
from pursuing a formal grievance). Here, however, there are no facts sug-
gesting that Hall was prejudiced by the long time it took to conclude the
investigation into his staff complaint.
BROWN v. VALOFF 12373
[12] Hall did not await the completion of the staff miscon-
duct investigation before filing his complaint in district court.
For that reason, as well as because his grievance and federal
court complaint both address issues separate from the exces-
sive force staff complaint as to which a full investigation was
conducted, the defendants of his case have met their burden
of demonstrating that Hall did not exhaust “such administra-
tive remedies as are available.” The district court’s decision
is, therefore, reversed as to Hall.
Conclusion
We AFFIRM in Brown’s case and remand for further pro-
ceedings consistent with this opinion. We REVERSE in
Hall’s case.
REINHARDT, Circuit Judge, concurring in part, and dissent-
ing in part:
Because neither Brown nor Hall exhausted all of the
administrative relief that was available through the California
Department of Corrections’ grievance process and because
Booth v. Churner, 532 U.S. 731 (2001), requires that in such
circumstances their complaints be dismissed, I respectfully
concur as to Hall and dissent as to Brown.
Notwithstanding the majority’s attempt to distinguish
Brown’s case from Hall’s, the factual and legal similarities
between these two cases are overwhelming. Hall and Brown
were inmates at the same prison at the time of the alleged
assaults. In both cases, the plaintiffs were physically
assaulted; they were pepper sprayed; and they suffered inju-
ries for which both sought and allegedly failed to receive
proper medical treatment. Both plaintiffs sought relief for
their grievances through the Department of Corrections’
12374 BROWN v. VALOFF
administrative appeals process; both sought compensation for
their injuries and the alleged violations of their rights.
After their appeals were received by the appropriate offi-
cials, both inmates bypassed the informal and formal levels
and both appeals were denied at the first level. At the second
level, both were notified that their complaints of staff miscon-
duct would be investigated, but that as inmates they would be
informed only of the conclusion of the investigation.
Although Brown’s appeal was “partially granted” and Hall’s
appeal was “denied” at the second level, the majority agrees
that the Hall label is erroneous. See Maj. op. at 12370 n.16.
Hall’s appeal should also have been labeled “partially grant-
ed.” Although the majority opinion states that the second level
Brown memorandum “did not counsel that any further review
[was] available,” Maj. op. at 12363, Brown, like Hall, was in
fact notified on his appeal form that if he was dissatisfied
with the second level response, he could appeal to the Direc-
tor’s Level for review. Given these similarities, I simply can-
not see how the majority can dispose of these cases differently
under Booth.1
1
Both Brown and Hall’s complaints resulted in the treatment of their
grievances as “Staff Complaints.” Both were referred for investigation of
the officers’ conduct. The majority suggests that Hall’s grievance was dif-
ferent in that he also complained that he did not receive adequate medical
care and that his property was taken. See Maj. op. at 12369. First, notwith-
standing the separation under the administrative procedures of the staff
complaint (which I will discuss later), both Brown and Hall were left with
complaints that they had been deprived of their rights by virtue of the use
of excessive force. The complaints were not fully remedied by the institu-
tion of personnel proceedings with respect to the offending guards. Other
relief could have been afforded to the prisoners had they continued with
the administrative appeals process. Second, as to the statement that “Hall
also complained that he did not receive adequate medical care . . . and that
his property was taken,” that fact is of no consequence. Brown too com-
plained about inadequate medical care. He alleged that he attempted to get
medical appointments regarding the injury he suffered, but that each time
they were cancelled and (false) excuses were made that his applications
were not received. Surprisingly, the majority refuses to acknowledge
BROWN v. VALOFF 12375
The issue in Booth was “whether an inmate seeking only
money damages must complete a prison administrative pro-
cess that could provide some sort of relief on the complaint
stated, but no money.” 532 U.S. at 733. The Court explained
that, as with the two cases before us, “[t]he meaning of the
phrase ‘administrative remedies . . . available’ [in 42 U.S.C.
§ 1997e(a)] is the crux of the case . . . The dispute . . . comes
down to whether or not a remedial scheme is ‘available’
where . . . the administrative process has authority to take
some action in response to a complaint, but not the remedial
action an inmate demands to the exclusion of all other forms
of redress.” Id. at 736 (emphasis added).
In Booth, the Court defined available relief broadly. “[A]n
inmate must exhaust irrespective of the forms of relief sought
and offered through administrative avenues.” Id. at 741 n.6.
The Court specifically rejected any attempt to “read futility or
other exceptions” into the requirement of exhaustion. Id. It
held that as long as some relief is available through the
administrative process, regardless of whether it is the relief a
prisoner seeks, the prisoner must exhaust the process. The
Court said that as long as the Department’s grievance system
“has authority to take some responsive action,” relief is avail-
able. Id. at 736 n.4.
Although the Court did not specify precisely what consti-
tutes available relief, it noted the argument that Congress
must have accorded weight to the non-compensatory benefits
of total exhaustion:
Brown’s complaint about his medical treatment because it is not separately
stated. See Maj. op. at 12369 n.15. We do not ordinarily read a prisoner’s
handwritten submission of his grievances to prison authorities with so fine
and legalistic an eye. Brown clearly complained about his medical treat-
ment. As to Hall’s property loss, the form includes a brief general state-
ment that when he returned to his cell it was empty, but no specific
allegation as to what property was taken or that his property was retained
by prison officials for an undue time.
12376 BROWN v. VALOFF
[R]equiring exhaustion in [ ] circumstances [where
the prison’s process cannot satisfy the inmate’s sole
demand] would produce administrative results that
would satisfy at least some inmates who start out
asking for nothing but money, since the very fact of
being heard and prompting administrative change
can mollify passions even when nothing ends up in
the pocket. And one may suppose that the adminis-
trative process itself would filter out some frivolous
claims and foster better-prepared litigation once a
dispute did move to the courtroom, even absent for-
mal factfinding.
Id. at 737. Under this view, even when a prisoner requests
only relief that is not available through the administrative pro-
cess, the threshold for determining what constitutes available
relief is so low that “the very fact of being heard and prompt-
ing administrative change” may be sufficient in itself to
require exhaustion of the administrative process. See id.
Given that the mere existence of an additional hearing or pro-
cess may be sufficient to constitute an available administra-
tive remedy under Booth, any question as to whether there are
in fact other types of available relief is inconsequential. (See
list of relief available for Brown, infra Dissent at 12376-77).
All that the defendant need establish generally is that an addi-
tional hearing was available. The key to Booth is that the
Court held explicitly that for relief to be “available” in the
administrative process it need not be “effective”; nor need it
be desired by the prisoner. As long as some administrative
action can be ordered, the prisoner must exhaust the process.
I believe that Booth squarely controls the outcome of both
appeals here. Brown, like Booth, was an alleged victim of a
prison guard assault and was allegedly denied adequate medi-
cal treatment. Brown, like Booth, was clear in his request for
relief: “I respectfully request to be compensated for these
abuses, and blatant disregard for my constitutional rights.”
Brown, like Booth, sought compensation for his physical inju-
BROWN v. VALOFF 12377
ries. Moreover, Brown, like Hall, was informed that further
relief was available at the time the second level decision was
communicated to him. Brown, like Hall, was told that he had
a right to appeal to the third level. However, Brown admits
that he chose not to appeal to the third level because of the
delay in the administrative appeals process. Although we may
assume that Brown could not have requested any further per-
sonnel investigation with respect to Valoff’s conduct and that
he could not have sought greater discipline of Valoff, he
unquestionably might have received some relief for himself at
the Director’s level had he done what he was advised to do
— file an appeal with the Director. For example, Brown
might have received the medical treatment that had been with-
held, and/or a transfer to a different correctional facility away
from his “persecutor,” and/or a change in the prison’s pepper
spray policy, and/or the adoption of new disciplinary proce-
dures or regulations governing prisoner’s rights, and/or cor-
rection of his prison records and/or the restoration of good-
time credits, and/or an apology from the Warden. There is no
question that had Brown appealed he would have received an
opportunity “to be heard and to prompt administrative
change.” Booth, 532 U.S. at 737. Each of the remedies men-
tioned constitutes available relief that Brown could have
received at the third level of the administrative appeals pro-
cess. In light of Booth, I believe that the majority opinion is
simply incorrect in its statement that no further relief was
available to Brown.
My colleagues suggest that there are circumstances in
which a prisoner need not proceed through the whole admin-
istrative process because no relief would be available. I agree.
There are two principal examples that I would offer, neither
of which is applicable here. The first situation in which a pris-
oner may be excused from exhausting all steps in the process
occurs when the prisoner’s request is fully granted prior to the
final level of the administrative process. See Abney v. McGin-
nis, 380 F.3d 663 (2d Cir. 2004); Ross v. County of Ber-
nalillo, 365 F.3d 1181, 1187 (10th Cir. 2004); Dixon v. Page,
12378 BROWN v. VALOFF
291 F.3d 485, 490-91 (7th Cir. 2002). The majority relies on
these cases for the conclusion that “[t]he other circuits that
have considered whether a prisoner continues to have an
exhaustion obligation once it is clear that no further relief is
available have agreed with our understanding that Booth
decides this question in the negative.” Maj. op. at 12359. To
the contrary, those cases hold only that an inmate need not
continue to exhaust the administrative process once his
administrative appeal has been fully granted. See Abney, 380
F.3d at 665 (Abney’s request for orthopedic footwear was
fully granted); Ross, 365 F.3d at 1187 (Ross’ request for
shower mats was fully granted); Dixon, 291 F.3d at 490-91
(Dixon’s request for a transfer was fully granted). These cases
are inapposite. At the second level, Brown’s request was “par-
tially granted” but, more important, was necessarily also par-
tially denied. The denial pertained to the part of the request
that sought a remedy for the violation of Brown’s rights. No
court has held after Booth that a prisoner whose appeal is
denied or partially denied is excused from exhausting the
administrative process if that process could offer him some
additional relief. Here, there is no question that the adminis-
trative process could have afforded Brown and Hall further
relief — even though that relief was not the relief they
requested. The institution of an investigation of a guard is
hardly all the available relief when a prisoner’s constitutional
rights have been violated. In fact, such a personnel proceeding
is not a “remedy” at all. It does not provide relief to the pris-
oner. It is simply the state’s internal administration of its own
personnel policies for its own benefit.
The second circumstance in which relief would be unavail-
able occurs when the prisoner is explicitly told, or the regula-
tions make it plain, that there is no further relief available to
him. No such statement was made to Brown or Hall. Nor do
the regulations so provide. Although Brown was told that
monetary compensation was “beyond the scope of the appeals
process” and that he would not be informed of any disciplin-
ary action taken against Valoff, he was at no time told that the
BROWN v. VALOFF 12379
administrative appeals process could offer him no further
relief. In fact, there is no reason he could not have been
afforded various forms of relief. See supra Dissent at p.
12377. The prison officials certainly had the authority to do
so.2
Relying on Administrative Bulletin 98/10, the majority
concludes that because Brown alleged staff misconduct, his
grievance was categorized as a “Staff Complaint” and that the
issue of staff misconduct is investigated separately and apart
from the ordinary appeal process. I do not dispute this conclu-
sion. The Administrative Bulletin does appear to create a sep-
arate and collateral administrative procedure for allegations
of staff misconduct for the administration of its own person-
nel proceedings. See Admin. Bulletin 98/10 (“ALL com-
plaints which allege any misconduct by a staff member shall
be logged by the appeals coordinators as a Staff Complaint,
Category 7.”).3 Nevertheless, I disagree with the majority’s
conclusion that “all indications are that on a third level
appeal, no one would be listening — because the investigation
and consideration of the grievance had been directed, in their
entirety, to the staff complaint process.” Maj. op. at 12368. At
no time was Brown informed that the Department “was not
2
An example of when an agency would not have the authority to offer
a prisoner any relief and the prisoner could proceed directly to the district
court would be if a prisoner’s grievance pertained to an act that prison
officials are required to perform pursuant to a statute and as to which no
non-statutory relief was possible.
3
Both Brown’s and Hall’s complaints were labeled by the prison author-
ities initially as Category 7A and, thus, as staff complaints. See Admin.
Bulletin 98/10. Both were considered and denied at level one by the Divi-
sion head. Both then appealed, and both appeals were then considered and
decided by the Warden. Both responses at the second level stated that the
appeals were being treated as staff complaints. Nothing in the prison regu-
lations or procedures suggests that some appeals are deemed exhausted
after the second level and that others must be processed through the third
level (except for appeals from disciplinary actions taken against the pris-
oner. See Cal. Code Regs. tit. 15, § 3084.7(b). If Hall was required to
appeal to the third level, as the majority and I agree, so was Brown.
12380 BROWN v. VALOFF
going to listen” to his medical complaints or even to his alle-
gations of physical mistreatment and violations of his consti-
tutional rights. Requests for relief arising out of those
complaints might have been denied at the third level, but the
prison authorities would have been required to listen to the
complaints and the appeals might well have resulted in some
remedial response, even if one that did not satisfy Brown.
Because Brown was informed that he could be afforded no
further relief with respect to any request to have Valoff inves-
tigated or disciplined, the Staff Complaint portion of his griev-
ance was granted; but his entire appeal was only “partially
granted,” as no administrative relief directly benefitting him
or addressing the violations of his rights or the injuries he
incurred was afforded.
The basic problem with the majority’s approach is that its
interpretation of Administrative Bulletin 98/10 would lead to
the conclusion that the administrative appeals process is
unavailable in California for all complaints of mistreatment of
prisoners by prison staff. Yet, that is likely the principal rea-
son for the existence of the administrative appeals process.
The appeal form used by both Brown and Hall begins, “You
may appeal any policy, action or decision which has a signifi-
cant adverse affect upon you.” (Emphasis added). This would
clearly appear to include the deprivation of a prisoner’s con-
stitutional rights by prison officials. However, under the
majority’s view, when a prisoner’s grievance identifies
improper actions by prison guards or other officials, it must
be treated as a “Staff Complaint” and removed from the nor-
mal appeals process. According to the majority’s view of the
process, when prisoners complain that their constitutional
rights have been violated by the prison staff, they will simply
be told that an investigation will be conducted and that they
will later learn of its conclusion, although not of the specific
actions taken, if any. Under that view, prisoners would have
no opportunity within the ordinary administrative appeals pro-
cess to have their complaints of mistreatment, including con-
stitutional deprivations, considered and remedied.
BROWN v. VALOFF 12381
My view is to the contrary. I believe that, under the Califor-
nia regulations, a personnel complaint is separated out and is
treated as being of no direct consequence to the prisoner or,
put differently, as affording no direct relief to the prisoner.
Such a complaint is viewed as initiating an internal state pro-
cess, part of the state’s own personnel procedures. That is
hardly the end of the matter, however. The prisoner’s griev-
ance concerning his abuse or mistreatment and the questions
as to what relief, if any, should be afforded him as a result of
the violation of his rights continue to proceed within the
administrative appeals process, regardless of what happens on
the separate track with the personnel complaint. Thus, the
prisoner is, under my view of the process, afforded an oppor-
tunity to obtain a remedy for the constitutional violation he
suffered. His use of the administrative process is not termi-
nated simply because prison officials are investigating a per-
sonnel complaint. It is not simply a question of whether a
prisoner must take the third appeal as Brown failed to do. The
personnel complaint could as easily be filed directly, or segre-
gated out, at the very first step of the process or even earlier.
See Admin. Bulletin 98/10 at ¶ 4. In such case, under the
majority’s theory, the entire appeals process would be
unavailable with respect to the entire complaint, not just with
respect to the personnel proceedings; and the prisoner could
proceed directly to the court in all cases.
The question the majority’s decision poses is fundamental.
Is the administrative appeals process limited to complaints by
prisoners about general policies and other matters that do not
involve the deprivation of prisoners fundamental rights by
prison staff? I hardly think so. I think that a complaint regard-
ing the deprivation of such rights is precisely the type of com-
plaint the appeals process is designed to encompass.
Once the personnel aspect of Brown’s complaint is
removed to its separate track, the complaint is remarkably
similar to Booth’s. Both prisoners sought monetary relief;
indeed, such was the only relief requested in each case.
12382 BROWN v. VALOFF
Brown was told at step two that the “monetary compensation”
he sought was “beyond the scope of the appeals process.” The
Booth Court expressly determined that the fact that monetary
compensation is “beyond the scope of the appeals process” is
inconsequential to the prisoner’s obligation to continue to pur-
sue his appeal. See Booth, 532 U.S. at 733, 736-38. The Booth
Court clearly held that, when the administrative process can
offer any relief, prisoners must continue to exhaust adminis-
trative procedures regardless of the relief requested, regard-
less of the relief offered, and regardless of the futility of
exhaustion. See Booth, 532 U.S. at 741, 741 n.6. As I see it,
Booth controls our resolution of these appeals. Although I
find Booth extremely troubling and would have decided it dif-
ferently, it is precedent and it is clearly applicable; and it is
binding on us.
In sum, Brown was informed that he could appeal the sec-
ond level decision to the director’s level. Apart from the fact
that California removes from the normal appellate process the
portion of the case that pertains to disciplinary action against
the prison staff (including any disciplinary investigation),
Brown’s case is identical to Booth’s. Both were allegedly
assaulted by prison guards. Brown’s request for relief is no
different than Booth’s. Both limited their requests for relief to
compensation. Both are required to exhaust the administrative
process, even if that process is futile. See Booth, 532 U.S. at
741 n.6. So, too, is Hall. Because neither Brown nor Hall
exhausted all of the administrative relief that was available
through the Department of Corrections’ administrative
appeals process, Booth requires that both of their complaints
be dismissed. I therefore respectfully concur as to Hall and
dissent as to Brown.