Ngo v. Woodford ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIET MIKE NGO, 
Plaintiff-Appellant, No. 03-16042
v.
 D.C. No.
CV-01-20674-JF
J. S. WOODFORD, Warden; A. P.
KANE, Chief Deputy, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
May 22, 2007—Pasadena, California
Filed August 21, 2008
Before: Alex Kozinski, Chief Judge, Harry Pregerson and
Jay S. Bybee,* Circuit Judges.
Opinion by Chief Judge Kozinski;
Concurrence by Judge Pregerson
*Circuit Judge Bybee was drawn to replace Senior District Judge John
S. Rhoades, Sr., who died after this case was submitted.
11355
NGO v. WOODFORD 11357
COUNSEL
Meir Feder, Kate Bushman and Sari H. Schneider, Jones Day,
New York, New York, for the plaintiff-appellant.
Kenneth Roost, Deputy Attorney General; Bill Lockyer,
Attorney General of the State of California; James M. Humes,
Chief Assistant Attorney General; Frances T. Grunder, Senior
Assistant Attorney General; Barbara C. Spiegel, Supervising
Deputy Attorney General, San Francisco, California, for the
defendants-appellees.
11358 NGO v. WOODFORD
OPINION
KOZINSKI, Chief Judge:
On remand from the Supreme Court, Woodford v. Ngo, 126
S. Ct. 2378 (2006), we consider whether a prisoner exhausted
his administrative remedies for purposes of the Prison Litiga-
tion Reform Act (PLRA).
Facts
Ngo, a prison inmate serving a life sentence, was placed in
administrative segregation on October 26, 2000, for inappro-
priate activity with a prison church volunteer. At a December
22, 2000, hearing, the prison classification committee
informed Ngo that he would be released from administrative
segregation the next day, but that he could not participate in
prison “special programs.” Three months later, on March 20,
2001, Ngo wrote to Deputy Warden Kane, asking whether he
could play on the prison’s baseball team and whether he was
“entitled to participate in any and all special programs.” Kane
explained that Ngo could participate in “any recreational pro-
grams,” and that the prison’s community resources manager
was authorized “to review [Ngo’s] request to participate in
any other program.” On June 18, 2001, Ngo submitted a for-
mal appeal to the prison’s Appeals Coordinator. This appeal
was denied as untimely under Cal. Code Regs. tit. 15,
§ 3084.6(c), which requires prisoners to “appeal within 15
working days of the event or decision being appealed.” Ngo
resubmitted his appeal one week later, arguing that his exclu-
sion from special programs was a continuing violation of his
constitutional rights. The next day the appeal was again
rejected as untimely.
Ngo sued in federal district court under 42 U.S.C. § 1983,
alleging First Amendment and due process violations. The
district court dismissed for failure to exhaust administrative
remedies. We reversed, holding that Ngo was not required to
NGO v. WOODFORD 11359
exhaust administrative remedies. Ngo v. Woodford, 403 F.3d
620, 626 (9th Cir. 2005). The Supreme Court then reversed
us, explaining that the PLRA requires “proper exhaustion of
administrative remedies,” Woodford v. Ngo, 126 S. Ct. at
2382, so “a prisoner must complete the administrative review
process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in fed-
eral court,” id. at 2384. We now consider whether Ngo
exhausted his administrative remedies.
Analysis
[1] 1. It was the December 22, 2000, order that barred Ngo
from participating in prison special programs. Pursuant to Cal.
Code Regs. tit. 15, § 3084.6(c), Ngo was required to appeal
within 15 working days of that order, or about January 16,
2001. Ngo didn’t appeal until June 18, 2001, long after the
limitations period expired.
[2] Ngo argues that the December 22 determination
resulted in a continuing denial of his constitutional rights, so
the 15-day limitations period restarts each day he is unable to
participate in prison special programs. We rejected this argu-
ment in Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001). Knox
held that a limitations period began running on the date of a
prison board’s initial determination, when a prisoner “had
notice of all of the wrongful acts she wished to challenge at
the time of the [initial determination].” Id. at 1014. Rejecting
a continuing violation theory, we explained that any continu-
ing effects are “nothing more than the delayed, but inevitable,
consequence of the [initial determination].” Id. And in the
context of employment discrimination, the Supreme Court
recently emphasized that limitations periods begin to run
when the “discrete act” adverse to the plaintiff occurs—“not
from the date when the effects of [that act] were felt.” Ledbet-
ter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2168
(2007). Here, the December 22 determination is the discrete
act adverse to Ngo, so the 15-working-day limitations period
11360 NGO v. WOODFORD
began running against him on that date rather than on the date
he actually felt the effects of the order.
[3] Ngo had ample notice: At the December 22 hearing, he
was informed that he would be barred from all special pro-
grams after being released from administrative segregation.
This restriction was presumptively permanent. If a warden
bars a prisoner from activities and doesn’t set a date when this
restriction will lapse, the restriction remains in force until the
prisoner is transferred or the warden reconsiders. Here, nei-
ther Deputy Warden Kane nor the prison classification com-
mittee told Ngo that the restriction was temporary. Indeed,
Ngo’s March 20, 2001, letter recognized that the restriction
was still in effect when he asked for permission to play on the
prison’s baseball team and participate in special programs.
Deputy Warden Kane partially rescinded the restriction and
allowed Ngo to participate in recreational activities, but this
doesn’t change the fact that Ngo had notice on December 22
that he was subject to an indefinite restriction. If Ngo wanted
to challenge this restriction, he needed to appeal within 15
working days of the date he learned of it. Cal. Code Regs. tit.
15, § 3084.6(c). Having failed to do so, Ngo has not
exhausted his administrative remedies and so cannot sue in
federal court. See Woodford v. Ngo, 126 S. Ct. at 2384.
[4] 2. Ngo argues that 15 working days does not give him
a “meaningful opportunity,” id. at 2392, to exhaust. But see
id. at 2393 (recognizing “the informality and relative simplic-
ity of prison grievance systems like California’s”). We need
not determine whether California’s 15-working-day limita-
tions period for prisoner administrative appeals amounts to a
meaningful opportunity to exhaust, because Ngo waited
months after that period elapsed to challenge the restriction.
Even if we were to double or triple the 15-day period, Ngo
would still come nowhere close to meeting the deadline. Ngo
didn’t even question the restriction until three months after it
was imposed, and didn’t formally appeal it until five months
after the limitations period had elapsed. And Ngo had every
NGO v. WOODFORD 11361
opportunity to appeal earlier because he knew the restriction’s
scope and duration as soon as the prison classification com-
mittee imposed it. See pp.11359-60 supra. This is therefore
not a case where the plaintiff lacked a meaningful opportunity
to exhaust on the grounds that he “fail[ed] to appreciate the
. . . nature of [his] injuries.” Felder v. Casey, 487 U.S. 131,
146 (1988). Ngo sat on his grievance for months, so it is irrel-
evant here whether California’s 15-working-day limitations
period provides a meaningful opportunity to exhaust.
[5] 3. It is unclear whether we can read exceptions into the
PLRA’s exhaustion requirement. Compare Woodford v. Ngo,
126 S. Ct. at 2393 (Breyer, J., concurring in the judgment),
with Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Even
if we could, no such exception applies here. Ngo hasn’t
shown that administrative procedures were unavailable, that
prison officials obstructed his attempt to exhaust or that he
was prevented from exhausting because procedures for pro-
cessing grievances weren’t followed. Ngo argues that prison
officials didn’t follow procedures and misled him. However,
the acts he complains about took place only after Ngo sent his
March 20, 2001, letter to Deputy Warden Kane. As a result,
they could have no effect on Ngo’s ability to exhaust, as he
had already missed the deadline.
AFFIRMED.
PREGERSON, Circuit Judge, concurring:
I concur in the majority’s determination that Ngo did not
exhaust his administrative remedies because Ngo did not chal-
lenge the decision by prison authorities until three months
after the decision was made. I write separately, however, to
note my serious concerns about the constitutionality of Cali-
fornia’s prisoner grievance process. As Justice Stevens noted
in his dissent, the Supreme Court’s majority opinion in this
11362 NGO v. WOODFORD
case “le[ft] open the question whether a prisoner’s failure to
comply properly with procedural requirements that do not
provide a ‘meaningful opportunity for prisoners to raise meri-
torious grievances’ would bar the later filing of a suit in fed-
eral court.” Woodford v. Ngo, 548 U.S. 81, 120 (2006)
(Stevens, J., dissenting). It is not clear to me that California’s
system provides a meaningful opportunity for prisoners to
raise meritorious grievances.
In particular, I write to address two problems with the
grievance process: (1) the requirement that appeals must be
filed within fifteen days; and (2) the lack of clarity about how
appeals should be filed.
1.
The statute of limitations for § 1983 claims in California is
two years. Ngo v. Woodford, 403 F.3d 620, 630 n.4 (9th Cir.
2005). California regulations, however, require an inmate to
appeal a decision made by prison authorities “within 15 work-
ing days of the event or decision being appealed.” Cal. Code
Regs. tit. 15, § 3084.6(c). There does not appear to be any jus-
tification for such a short filing deadline. The Supreme Court
has noted that shortened timelines for filing prisoner suits
may be appropriate for instances of urgency. See McCarthy v.
Madigan, 503 U.S. 140, 152 (1992). However, there does not
appear any urgency or exigency justifying such draconian
timetables for filing prisoners’ § 1983 claims.
While a fifteen day statute of limitations would be
extremely short under any circumstances, it is especially
problematic in the prison context. One issue with such a short
timeline is the informal nature of the prison discipline pro-
cess. In this case, for example, Ngo never received a written
explanation of the restrictions imposed on him. In such a situ-
ation, fifteen days could pass before a prisoner is able to clar-
ify the scope of the sanction against him.1 This fifteen day
1
In this case, for example, the duration of the restriction against Ngo
was not clear. If Ngo had attempted to clarify the restriction, it could eas-
ily have consumed a significant portion of the fifteen days.
NGO v. WOODFORD 11363
timeline might also prove insufficient where a decision made
by prison authorities does not even affect the prisoner in the
first fifteen days. Further, even if prisoners are aware of the
scope of the sanction against them, it may take more than fif-
teen days to formulate a grievance. If a prisoner researches his
rights before filing the grievance, the short time frame might
not allow for enough time in the prison library. Prison offi-
cials, meanwhile, have significant incentive to find that claims
are procedurally barred, given the large number of prisoner
grievances.
In sum, it is difficult to see how due process would allow
such a draconian timeline to prevent a prisoner from vindicat-
ing important constitutional rights.
2.
The rule that prisoners must properly exhaust their adminis-
trative remedies also raises difficult questions about what con-
stitutes compliance with the confusing California prisoner
grievance system. I do not believe that California regulations
adequately inform prisoners of the required process. The reg-
ulations explain that prisoners are to complete a Form 602
when making a grievance. Cal. Code Regs. tit. 15 § 3084.2(a).
The regulations also indicate, though, that there is an informal
attempt prerequisite. Id. § 3084.2(b). Section 3084.5(a),
explains that “[t]he informal level is that at which the appel-
lant and staff involved in the action or decision attempt to
resolve the grievance informally.” Read together, these code
subsections indicate that the informal process does not
involve the filing of a Form 602, especially given that filing
forms with prison officials is not logically an “informal” pro-
cess.2 Other code sections, however, belie the assumption that
2
The summary of the process used by many California district courts
appears to assume that the informal stage does not require a Form 602.
See, e.g., Cockcroft v. Kirkland, ___ F. Supp. 2d ___, 2008 WL 683446(N.D.Cal. 2008) (citing Barry v. Ratelle, 985 F.Supp. 1235, 1237
(S.D.Cal.1997)) (describing the four levels of appeal as “(1) informal reso-
lution, (2) formal written appeal on a CDC 602 inmate appeal form, (3)
second level appeal to the institution head or designee, and (4) third level
appeal to the Director of the California Department of Corrections.”).
11364 NGO v. WOODFORD
a Form 602 is not necessary for an informal appeal. For exam-
ple § 3084.5(a)(2) explains that when a petitioner attempts to
obtain review at the informal level, the prison employee
involved “shall review and if practical resolve the grievance.
The employee shall report the action taken in the response
space provided on the appeal form, and shall sign and date the
form.” This implies that Form 602 is part of the informal
review process.
Given these contradictory provisions, a prisoner could
hardly know from the regulations whether a Form 602 is
required for an informal appeal. It is also not clear whether
the prisoner has exhausted his administrative remedies by fil-
ing an informal appeal in cases where the informal step could
be waived under the regulations. The regulations provide that
the informal level of appeal is waived for certain types of
appeals, including classification committee actions. Cal. Code
Regs tit. 15 § 3084.5(a)(3)(A). Here, Ngo could have
bypassed the informal appeal stage because he was challeng-
ing a classification committee action, but he chose to first
approach the warden in an informal capacity. The regulations
offer no clarity as to whether, in such circumstances, a pris-
oner is required, or simply allowed, to skip the informal
appeal step.
Given the Supreme Court’s directive that prisoners must
properly exhaust state administrative remedies, the lack of
clarity in the California regulations is troublesome. The con-
stitutional rights of prisoners should not be taken away based
on a confusing administrative process with such a short time-
line.