John Fordley v. Joe Lizarraga ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN FREDRICK FORDLEY, No. 19-15691
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-01985-
MCE-EFB
JOE A. LIZARRAGA, Warden;
WINKFIELD, Officer; GARCIA,
Officer; WATSON, Sergeant; OPINION
SHRODE, Officer; CODER, Officer,
Defendants-Appellees,
and
MOORE, Officer; ANDREA, Officer,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted February 12, 2021
San Francisco, California
Filed November 10, 2021
Before: Marsha S. Berzon, Morgan Christen, and
Bridget S. Bade, Circuit Judges.
2 FORDLEY V. LIZARRAGA
Opinion by Judge Christen;
Dissent by Judge Bade
SUMMARY*
Prisoner Civil Rights/Administrative Exhaustion
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of prison officials for
failure to exhaust administrative remedies under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e, in an action
brought pursuant to 42 U.S.C. § 1983.
Plaintiff asserted that he was physically and sexually
assaulted in March of 2016 while he was an inmate at Mule
Creek State Prison. Plaintiff filed his first grievance (the
March grievance) in March 2016, which defendants failed to
process. Plaintiff submitted a second administrative
grievance (the May grievance) in May 2016 concerning
subsequent events, but which referred to the March assaults.
The district court reasoned that because the March assaults
were mentioned in the May grievance which was pending
when plaintiff filed his § 1983 action, an avenue of
administrative relief remained open as of the time plaintiff
filed his § 1983 complaint. Accordingly, the district court
ruled that plaintiff could not be excused from exhausting the
March grievance.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FORDLEY V. LIZARRAGA 3
The panel held that the prison’s failure to respond to
plaintiff’s March 2016 grievance concerning physical and
sexual assault rendered the administrative appeals process
“unavailable” within the meaning of the PLRA. Where
inmates take reasonably appropriate steps to exhaust but are
precluded from doing so by a prison’s erroneous failure to
process the grievance, the exhaustion requirement is satisfied.
The panel rejected defendants’ contention that the May
grievance had the effect of unexhausting the March
grievance. The panel held that a later-filed grievance that
alleges new complaints but refers to a previous and already-
exhausted grievance for context does not render the first
grievance unexhausted. Thus, the district court erred by
dismissing as unexhausted plaintiff’s claims premised on the
March 2016 grievance.
The panel agreed with the district court that plaintiff
failed to exhaust his claim against the warden because there
was no indication that any of plaintiff’s administrative
complaints suggested the warden was aware of the
defendants’ alleged conduct. The panel further held that
because the May 2016 grievance was still pending when
plaintiff filed his complaint, the district court properly
deemed the May 2016 grievance unexhausted.
Dissenting, Judge Bade stated that so long as there is a
possibility of some relief for the action complained of,
administrative remedies are available. Plaintiff’s May 2016
grievance clearly related to the March 2016 physical and
sexual assault claims, and it was still in process when plaintiff
filed suit. The administrative process was available because
plaintiff was actively using it at the time he filed suit and that
process provided potential remedies for his claims.
Therefore, plaintiff did not exhaust his claims that he was
4 FORDLEY V. LIZARRAGA
assaulted in March 2016, and the majority erred when it
allowed plaintiff to evade his obligation to do so. Because
plaintiff did not exhaust his claims, the defendants were
entitled to summary judgment.
COUNSEL
Margaret A. Upshaw, Latham & Watkins LLP, Washington,
D.C., for Plaintiff-Appellant.
Kevin A. Voth, Deputy Attorney General; Neah Huynh,
Supervising Deputy Attorney General; Monica N. Anderson,
Senior Assistant Attorney General; Rob Bonta, Attorney
General; Attorney General’s Office, San Francisco,
California; for Defendants-Appellees.
FORDLEY V. LIZARRAGA 5
OPINION
CHRISTEN, Circuit Judge:
John Fordley, a former inmate at California’s Mule Creek
State Prison, appeals the district court’s order dismissing his
Eighth Amendment claims against the Mule Creek warden
and several Mule Creek guards. The district court concluded
that Fordley did not satisfy the requirements of the Prison
Litigation Reform Act, 42 U.S.C. § 1997e. We affirm in part,
reverse in part, and remand.
The prison’s failure to respond to Fordley’s March 2016
grievance concerning physical and sexual assault rendered the
administrative appeals process “unavailable” within the
meaning of the PLRA. Thus, the district court erred by
dismissing as unexhausted Fordley’s claims premised on the
March 2016 grievance. But we agree that Fordley failed to
exhaust his claim against the warden, and we affirm the
district court’s dismissal of that claim.
Fordley filed a second grievance in May 2016
complaining of different abuse he suffered after returning to
Mule Creek from a crisis bed at a different prison facility.
That grievance was still pending when Fordley filed his
complaint, so the district court properly deemed the May
2016 grievance unexhausted. Fordley does not appeal the
dismissal of the claims that were premised on his May 2016
grievance.
6 FORDLEY V. LIZARRAGA
I
A
Fordley contends that he was physically and sexually
assaulted in March of 2016 while he was an inmate at Mule
Creek State Prison. He identified four correctional officers as
his attackers: Sergeant Watson and Officers Winkfield,
Garcia and Moore. Fordley’s version of events is that
defendants came to his cell on March 10 after Fordley
objected that he had not received medical supplies. The
defendants harshly rebuked Fordley for complaining and,
over his shouted protests, radioed the watch commander that
Fordley was unresponsive and entered his cell in full tactical
gear. Fordley describes being slammed to the ground and
beaten for a period of five to ten minutes, then being thrown
into a “cage” near the Sergeant’s office, where he remained
while the defendants laughed and bragged to passers-by about
the beating. Fordley claims he was later returned to his cell
without being allowed to receive medical treatment and
asserts that defendants falsified a report stating that he
refused medical attention. Fordley alleges that three of the
four officers returned the next day, wearing face and body
shields, and beat him again. This time, Officer Winkfield
allegedly held Fordley down while Officer Garcia rubbed a
baton on his body in sensitive areas and pressed it “against
[his] anal cavity.” Fordley alleges the officers laughed and
told him “next time the whole baton goes in your a-- .”
On March 15, Fordley was sent to a crisis bed at High
Desert State Prison. There, a nurse documented bruises on
his body and open wounds on his head. Fordley contends he
sustained the wounds in the March 10 and March 11 assaults.
When he returned to Mule Creek on March 24, Sergeant
FORDLEY V. LIZARRAGA 7
Watson and Officers Winkfield and Garcia continued to work
in the unit where Fordley was held. Fordley contends they
harassed him daily by giving him razor blades and
encouraging him to kill himself, threatening to kill him
themselves, threatening future sexual assaults, spitting in his
food, and withholding both meals and sheets.
Fordley filed his first grievance (the March grievance) on
March 27, 2016. He used California Department of
Corrections and Rehabilitation (CDCR) Form 602, the form
required for presenting “Inmate/Parolee Appeals.” Form 602
consists of multiple double-sided pages that are passed back
and forth between the inmate and the prison as the inmate’s
grievance proceeds through each level of review. Thus, as is
the case here, a single Form 602 may contain entries from an
inmate and various prison officials made over the course of
many weeks or even months. The confusing format of Form
602 requires a reader to carefully decipher the chronological
sequence of exchanges between an inmate and the prison to
understand the grievance and response. No copy of Fordley’s
March Form 602 is in the record, but other documents refer
to and describe the grievance. After reviewing the record, the
district court concluded that the grievance qualified as an
emergency grievance because of the nature of its allegations.
Fordley asserts the March grievance lodged complaints
against defendants Watson, Winkfield, Garcia and Moore
arising from the assaults that allegedly occurred on March 10
and 11.
On April 5, Fordley submitted a request for information
about the status of the March grievance using CDCR Form
22, the form for an “Inmate/Parolee Request.” Prison
officials responded the same day, stating: “The appeal you
reference having filed here has been received and will be
8 FORDLEY V. LIZARRAGA
processed in the order received.” A week later, having
received no further response or information about his March
grievance, Fordley submitted a second request for a status
report, using another CDCR Form 22. Fordley wrote that he
filed the March grievance “[b]ecause of safety concerns and
harassment [and] assault by CDCR staff which per (op) is
suposed to be processed immediately. But you[’re] denying
me that, you[’re] refusing to file both of my CDCR [Form]
602s I filed due to assault and discrimination.” In a written
response dated April 14, the prison again acknowledged
receiving Fordley’s March 27 grievance and also
acknowledged receiving his April 12 request for follow up:
“Your two appeals dated 3-27-16 and 4-13-16 have been
received [and] are being processed.” On April 15, Fordley
received another confirmation from the prison that his March
27 grievance had been received. The April 15 notice also
advised that the first-level review was in process, but did not
include a log number or other means of tracking the March
grievance. This notice was the last response Fordley received
concerning the March grievance.
Fordley submitted a second administrative grievance (the
May grievance) on May 8, 2016 concerning events that
occurred after he returned from the crisis bed. In the single
line provided on Form 602 for complainants to “State briefly
the subject of your appeal,” Fordley wrote
“Harassment/Giving me contraband - CDCR staff.” And in
the space that directed “Explain your issue,” Fordley reported
that the same officers who had assaulted him in March had
continued harassing him after he returned from the hospital:
I told you in 4 prior [Form] 602s and CDCR
[Form] 22s that my life was in danger. You
ignored it. I want out of here. There going to
FORDLEY V. LIZARRAGA 9
kill me. This assault and sexual assault took
place March 9th, 10th , 11th 2016. When
returning from the hospital these officers kept
harassing me and threatening me. On May
2nd (one of the COs who sexually assaulted
me on March 10th) became the regular in A5.
I told them for 2 months I wasn’t safe. Now
back in ASU, Officer Winfield [sic] and Sgt
Watson tried to have me kill myself by
handing me a orange razor and told me to kill
myself or they would. I turned it in to a Lt
who 206 told to see me on 5/5/2016 around
7:20 pm. then on 5/6/2016 at breakfast time I
was given another razor by Winfield [sic] and
Officer Garcia which I turned in again to the
same Lt approx: same time 7:20 pm After he
was seeing 206 again, they keep handing me
contraband to kill myself, and if I don’t they
will they say. 106-Mullens and 206 and 205
before they moved them are witnesses. they
refuse to give me meals, sheets . . . You trying
to kill me/set me up.
In short, the May grievance referred to the March assaults to
explain: (1) that Fordley had been expressing concern for his
safety for two months’ time; (2) that the staff involved in the
March assaults continued to work in the area where Fordley
was detained; and (3) that after he returned from the crisis
bed, the same prison guards were giving him contraband,
encouraging him to take his own life, threatening to kill him
themselves, and withholding meals and sheets.
The California regulations governing the process for
reviewing inmate grievances have changed since the time of
10 FORDLEY V. LIZARRAGA
these events, but the scheme that was in place when Fordley
filed his grievances required that inmate complaints
concerning imminent assaults or concerns for an inmate’s
physical safety be given priority and bypass first-level
review.1 See Cal. Code Regs. tit. 15 § 3084.9(a)(4) (2015).
Nevertheless, the response Fordley received on April 15
informed him that his March grievance was being reviewed
at the first level.
On May 19, 2016, Fordley received notice that his May
grievance had been routed directly to second-level review,
and he was interviewed regarding the March and May
incidents. But on July 5, the prison informed Fordley that it
had completed its investigation and determined the staff’s
actions were within department policy. Fordley appealed the
denial of the May grievance to the third level the next day,
strenuously arguing that the prison officials “always try to
push crap under the carpet,” and restating that the same
officers and sergeant who sexually and physically assaulted
him in March were threatening him and refusing to feed him
or give him medical supplies. Fordley wrote, “It took 1 ½
months to accept my complaints. A violation already,” and
went on to recount “being given orange . . . razors to kill
myself, the only way one gets these is from staff.”2
1
Unless otherwise indicated, we cite to the version of the California
Code of Regulations in effect at the time Fordley filed his March
grievance.
2
This portion of the administrative record is difficult to decipher, and
both parties seem to have misread it. We have carefully examined
Fordley’s grievances and the prison’s responses to accurately recount the
sequence of events.
FORDLEY V. LIZARRAGA 11
B
Fordley filed a pro se complaint in the Eastern District of
California pursuant to 42 U.S.C. § 1983 on August 22, 2016.
It alleged that Sergeant Watson and Officers Winkfield,
Garcia and Moore violated his Eighth Amendment right to be
free from cruel and unusual punishment, and that Warden
Lizarraga was deliberately indifferent to the violation of
Fordley’s constitutional rights.3 On March 10, 2017,
approximately ten months after it was filed, Fordley’s May
grievance was denied after the third-level review was
completed. Critically for purposes of this appeal, the third-
level decision limited its description of the May grievance to
staff giving Fordley a razor and telling him to kill himself,
and refusing to give him meals and sheets. The third-level
decision made no mention of the alleged March assaults.
Defendants filed a motion for summary judgment seeking
dismissal of plaintiff’s complaint on the grounds that the
complaint was filed before Fordley had exhausted his
administrative remedies. The district court first granted
summary judgment in favor of defendants on the claims that
Fordley raised for the first time in the May grievance; i.e.,
those concerning defendants’ alleged harassment of Fordley
after he returned from the crisis bed at a separate prison
facility. Fordley does not appeal the dismissal of those
claims.4
3
Fordley named other officers in his complaint, but the district court
dismissed them early in the litigation for improper service.
4
The district court adopted in full the findings and recommendations
of the magistrate judge. References to the district court’s findings
12 FORDLEY V. LIZARRAGA
The district court gave Fordley an opportunity to produce
any evidence he had of the missing March grievance so the
court could determine whether he should be excused from
exhausting his administrative remedies as to that grievance.
The court also allowed defendants twenty-one additional days
to file a supplemental reply after receiving Fordley’s
response.
As directed, Fordley filed a statement explaining the steps
he took to file the March grievance. He also filed the prison’s
April 5 response to the grievance in which the prison
acknowledged receipt of the March grievance and informed
Fordley that the grievance would be “processed in the order
received.” The district court described Fordley’s evidence as
“compelling” proof corroborating his contention that he had
submitted a grievance in March regarding “allegations of
staff assault and an allegation of staff sexual misconduct” by
the defendants. The prison neither produced the March
grievance nor explained what became of it, and the court
decided the prison failed to timely process it.
The district court considered the Ninth Circuit’s decision
in Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), and
concluded that the Ninth Circuit had not adopted a rule that
delay in responding to a grievance renders administrative
remedies per se unavailable. The court was persuaded by the
decisions of other district courts that a prison’s delay in
responding to an inmate complaint excuses a failure to
exhaust only where the inmate has waited a reasonable period
of time and received no response or explanation for the delay.
Applying that rule to the facts in Fordley’s case, the court
therefore refer to the findings of the magistrate judge, as adopted by the
district court.
FORDLEY V. LIZARRAGA 13
agreed with defendants that an avenue of administrative relief
remained open as of the time Fordley filed his complaint.
The court reasoned that the March 10 and 11 assaults were
mentioned in the May grievance and the May grievance was
still pending when Fordley filed his complaint. Accordingly,
the court ruled that Fordley could not be excused from
exhausting the March grievance. The order memorializes the
court’s impression that the “claims regarding the alleged
assaults were actually eventually exhausted in [the May
grievance].”
The district court also dismissed Fordley’s deliberate
indifference claim against Warden Lizarraga, concluding that
Fordley’s claims against the warden were not exhausted.
Fordley was released from prison in August 2020, but he
timely appealed the district court’s ruling. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the
district court’s judgment in part and affirm it in part.
II
We review de novo a district court’s summary judgment
ruling that an inmate has not exhausted his claims within the
meaning of the Prison Litigation Reform Act (PLRA). See
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en
banc). The PLRA’s exhaustion requirement is an affirmative
defense. Jones v. Bock, 549 U.S. 199, 216 (2007). The
defendant bears the burden of showing that an administrative
process was available to the inmate and that the inmate failed
to exhaust it. Draper v. Rosario, 836 F.3d 1072, 1079 (9th
Cir. 2016) (citing Albino, 747 F.3d at 1172). Once the
defendant shows that such a remedy was generally available,
the burden shifts to the inmate to show that something in his
14 FORDLEY V. LIZARRAGA
particular case made the generally available administrative
remedies effectively unavailable to him. Id. Because the
failure to exhaust is an affirmative defense that defendants
must plead and prove, the ultimate burden of proving that the
inmate has not exhausted his claims remains with the
defendants. Id.
III
A
Fordley argues the district court erred by granting the
defendants’ summary judgment motion because he fully
exhausted the available administrative remedies for his March
grievance. The PLRA requires inmates to exhaust their
administrative remedies before filing suit: “No action shall
be brought with respect to prison conditions . . . 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); see also Woodford v. Ngo, 548 U.S. 81,
90–91 (2006).
In Woodford, the Supreme Court explained that
exhaustion requires complying with a prison’s “critical
procedural rules” and it is justified by the need to “impos[e]
some orderly structure on the course of its proceedings.”
548 U.S. at 90–91. We recognized in Fuqua v. Ryan,
890 F.3d 838 (9th Cir. 2018), that requiring exhaustion serves
other important objectives, including “alert[ing] prison
officials to ‘the nature of the wrong for which redress [is]
sought,’” and allowing prisons “to take corrective action
where appropriate.” Id. at 844 (quoting Griffin v. Arpaio,
557 F.3d 1117, 1120 (9th Cir. 2009) and citing Reyes v.
Smith, 810 F.3d 654, 658 (9th Cir. 2016)). “Exhaustion also
FORDLEY V. LIZARRAGA 15
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.’” Id. (quoting Jones,
549 U.S. at 219).
After Woodford, the Supreme Court clarified in Ross v.
Blake, 136 S. Ct. 1850 (2016), that because the PLRA only
requires exhaustion of “available” remedies, “an inmate is
required to exhaust those, but only those, grievance
procedures that are capable of use to obtain some relief for
the action complained of.” Id. at 1858–59 (internal quotation
marks omitted) (quoting Booth v. Churner, 532 U.S. 731, 738
(2001)). To exhaust administrative remedies, inmates must
comply with the prison’s “deadlines and other critical
procedural rules.” Woodford, 548 U.S. at 90.
The Supreme Court has recognized three situations in
which an administrative remedy is unavailable: (1) “when
(despite what regulations or guidance materials may promise)
it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates”; (2) if it is “so opaque that it becomes, practically
speaking, incapable of use”; and (3) “when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross, 136 S. Ct. at 1859–60.
We have recognized specific circumstances that render
administrative remedies unavailable, see, e.g., Andres v.
Marshall, 867 F.3d 1076, 1078–79 (9th Cir. 2017), and on
more than one occasion have found administrative processes
effectively “unavailable even though they exist on the
16 FORDLEY V. LIZARRAGA
books,” Fuqua, 890 F.3d at 849. For example, in Marella v.
Terhune, 568 F.3d 1024 (9th Cir. 2009) (per curiam), we held
an administrative remedy was effectively unavailable because
the inmate did not have access to the proper grievance form
within the prison’s time limits for filing a grievance. Id.
at 1026. In Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010),
an administrative remedy was unavailable because the inmate
would have needed to access an unobtainable policy in order
to bring a timely administrative appeal. Id. at 1226. Our
court sitting en banc also concluded that administrative
remedies were unavailable where a manual describing the
complaint process was kept from inmates. Albino, 747 F.3d
at 1173–75.
Most relevant here, where inmates take reasonably
appropriate steps to exhaust but are precluded from doing so
by a prison’s erroneous failure to process the grievance, we
have deemed the exhaustion requirement satisfied. Andres,
867 F.3d at 1079; Sapp v. Kimbrell, 623 F.3d 813, 823 (9th
Cir. 2010) (“If prison officials screen out an inmate’s appeals
for improper reasons, the inmate cannot pursue the necessary
sequence of appeals, and administrative remedies are
therefore plainly unavailable.”). Where no administrative
relief is available, requiring exhaustion contradicts the
PLRA’s purpose and it is not required. See Andres, 867 F.3d
at 1079.
Fordley contends the prison never substantively
responded to his March grievance and that its failure to do so
rendered the generally available administrative remedies
effectively unavailable to him. Defendants counter that
because Fordley’s May grievance mentioned the alleged
March assaults—and because the May grievance had not been
finally denied when Fordley filed his complaint—there were
FORDLEY V. LIZARRAGA 17
still administrative remedies available and his complaint was
properly dismissed. Because this appeal requires us to decide
whether Fordley exhausted all of the administrative remedies
available to him, we describe in some detail the
administrative grievance process that was in effect when
Fordley attempted to grieve the assaults that allegedly
occurred on March 10 and 11.
B
The regulations in effect when Fordley filed the March
grievance required inmates to use Form 602 and established
a three-level review process that inmates initiated by filing
grievances with the prison’s appeals coordinator. Cal. Code
Regs. tit. 15, §§ 3084.2(a), 3084.7. The regulations required
inmates to submit their grievances within thirty calendar days
of “[t]he occurrence of the event or decision being appealed.”
§ 3084.8(b)(1).
The operative regulations generally required the prison to
respond to grievances within thirty working days.5 See
§§ 3084.7(h), 3084.8(c)(1)–(3). Inmates dissatisfied with the
prison’s first-level review were allowed to appeal to a second
level, § 3084.7(b), and then to a third-level review conducted
under the Appeals Chief’s supervision, §§ 3084.7(d)(3),
3084.8(c)(3). Prison administrators were allowed thirty
working days to respond to second-level grievances and sixty
working days to conduct third-level reviews. § 3084.8(c).
The operative regulations allowed prisons the discretion to
5
The regulations allowed the prison more time to respond to non-
emergency grievances, if the prison notified the inmate of the reason extra
time was needed and the inmate was given a new estimated response date.
Cal. Code Regs. tit. 15, § 3084.8(d), (e).
18 FORDLEY V. LIZARRAGA
dismiss inmates’ grievances if the inmates failed to comply
with any of their filing deadlines. § 3084.6(c)(4).
The regulations called for much more expedited review of
emergency grievances. Emergency grievances were those
raising “serious and imminent threat[s] to health or safety,”
such that “the regular appeal time limits would subject the
inmate . . . to a substantial risk of personal injury or cause
other serious and irreparable harm.” § 3084.9(a)(1). The
regulations required emergency grievances to be sent directly
to the second level, where prison administrators were allotted
just five working days to respond. § 3084.9(a)(4). If a
grievance was “received as an emergency” but prison
officials later determined that it did not meet the emergency
criteria, another regulation required the prison to notify the
inmate that the grievance would not be treated as an
emergency and also required the prison to give notice
whether the grievance was accepted for regular processing or
rejected. § 3084.5(b)(2).
C
After reviewing Fordley’s supplemental filing, the district
court determined that Fordley’s March grievance alleged
physical and sexual assault by defendants and that the prison
was required to treat Fordley’s March grievance as an
emergency.6 On appeal, defendants begin by arguing it
cannot be determined whether the grievance sufficiently
6
The district court mistakenly cited to newer regulations that require
a response to allegations of sexual assault within 48 hours. The regulation
in effect in March of 2016 required prison officials to respond to
emergency grievances within five working days. Cal. Code Regs. tit. 15,
§ 3084.9(a)(4).
FORDLEY V. LIZARRAGA 19
explained the nature of Fordley’s allegations without a copy
of the March grievance, and they suggest the March
grievance may not have demonstrated that it warranted
emergency processing. For several reasons, defendants’
arguments are unavailing.
First, the failure to exhaust administrative remedies is an
affirmative defense for which defendants bear the initial
burden of showing that an administrative process was
available. Albino, 747 F.3d at 1172. Defendants also bear
the ultimate burden of proof. Id. Although Mule Creek
generally had an administrative process for handling
emergency grievances, Fordley demonstrated that the
grievance process was effectively unavailable to him because
the prison never responded to the March grievance. See
Andres, 867 F.3d at 1079 (“When prison officials improperly
fail to process a prisoner’s grievance, the prisoner is deemed
to have exhausted available administrative remedies.”). The
prison acknowledged receipt of Fordley’s March grievance
three times, yet they failed to assign it a log number for
tracking purposes and never substantively respond to it. In
contrast, the prison’s response to Fordley’s May grievance
contains a log number, the date received, and a note that
“[l]og numbers are assigned to all appeals for tracking
purposes.” The record does not include the precise language
Fordley used to report the March assaults because the Form
602 was lost. The prison’s acknowledgment of the March
grievance only stated the date Fordley submitted it and
memorialized that the grievance was “in process.” But on
this record, the fact the March grievance is missing must be
attributed to a failure of the prison’s grievance processing
system.
20 FORDLEY V. LIZARRAGA
Defendants and the dissent speculate that the March
grievance may not have signaled that Fordley was reporting
an imminent risk to his health or safety. But as the district
court recognized, Fordley’s April follow-up inquiries
unambiguously put the prison on notice that he felt his life
was in danger. The only response he received from the prison
informed him that the grievance was “in process” at the first
level, contrary to § 3084.9(a)(4), which required the March
emergency grievance to bypass the first-level review
altogether.
On April 12, Fordley submitted a CDCR Form 22 in
another attempt to prompt a response to the March grievance.
He wrote that the March grievance raised “safety concerns
[and] harassment and assault by . . . staff,” (emphasis added),
and he alerted the prison that his grievance was to be
“processed immediately.” We read this record the way the
district court did, and conclude the April 5 and 12 follow-up
requests transparently communicated that Fordley’s
complaint was one that qualified as an emergency grievance
under the operative regulations. Further, the April requests
provide unrefuted evidence that Fordley contemporaneously
conveyed his sense of urgency to the officials at Mule Creek.
Defendants point to no evidence to support their suggestion
that Fordley’s characterization of the March grievance may
be a post hoc litigation strategy.
The May grievance also sheds light on how Fordley
described the March assaults. Though the dissent repeatedly
treats the May grievance as if it merely reasserted Fordley’s
complaint about the assaults that occurred in March, the May
grievance called prison officials’ attention to events that
allegedly transpired after the March assaults, and after
Fordley returned to Mule Creek from a crisis bed at a separate
FORDLEY V. LIZARRAGA 21
facility. In the process of explaining the harassment and
threats that allegedly transpired after Fordley returned from
the crisis bed, the May grievance asserted that the guards who
were harassing him in May were some of the same guards
who had physically and sexually assaulted him in March.
The May grievance also gave notice that Fordley felt his life
was in danger.7
The district court correctly ruled that the operative
regulations required the prison to treat the March grievance
as an emergency. See Cal. Code Regs. tit. 15 § 3084.9(a)(1)
(defining circumstances constituting an emergency). As
such, the prison was required to complete its second-level
review within five working days. § 3084.9(a)(4) (“If
emergency processing is warranted, . . . the second level
review shall be completed within five working days”
(emphasis added)); § 3000.5(c) (defining “shall” as
“mandatory”). Yet the prison did not respond.
7
The prison’s response confirms that it read the May grievance the
same way. As the Supreme Court explained in Woodford v. Ngo, 548 U.S.
81 (2006), an inmate must initially fill out two parts of Form 602: in part
A the inmate must describe the basis for his complaint; and in part B the
inmate must describe the relief he seeks. See id. at 85. Part C of Form
602 provides a space for the prison to respond to the inmate’s complaint,
and part D provides a space for the inmate to indicate whether he is
dissatisfied with the prison’s first-level response. In part E, the prison
notifies the inmate of its decision on second-level review, and in part F,
the inmate may request third-level review. Having carefully retraced the
language Fordley used in parts A and B of his May 8, 2016 grievance; the
prison’s response in part E dated July 5, 2016; and Fordley’s request for
third-level review in part F dated July 6, 2016; it is apparent that the initial
May grievance complained about events that occurred after Fordley
returned from the crisis bed, not the March 10 and 11 assaults.
22 FORDLEY V. LIZARRAGA
In Andres, our court considered whether an administrative
remedy was rendered unavailable to an inmate who had
submitted a first-level grievance, received no response for six
months, and then filed suit. 867 F.3d at 1077–78. We
concluded the grievance process was effectively unavailable
because the prison’s failure to respond thwarted the inmate
from taking advantage of the grievance system. Id. at 1079.
And in Brown, we specifically cautioned that “[d]elay in
responding to a grievance, particularly a time-sensitive one,
may demonstrate that no administrative process is in fact
available.” 422 F.3d at 943 n.18 (emphasis added). Every
circuit to have considered the issue has agreed that a prison’s
failure to respond renders an administrative remedy
unavailable.8 Our court has also expressly recognized that
8
See Hayes v. Dahlke, 976 F.3d 259, 270–71 (2d Cir. 2020); Shifflett
v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019) (“[W]e hold that as soon
as a prison fails to respond to a properly submitted grievance or appeal
within the time limits prescribed by its own policies, it has made its
administrative remedies unavailable and the prisoner has fully discharged
the PLRA’s exhaustion requirement.”); Moore v. Bennette, 517 F.3d 717,
725 (4th Cir. 2008) (holding an inmate who uses all available remedies
has exhausted “even if prison employees do not respond”); Boyd v. Corr.
Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (holding “that
administrative remedies are exhausted when prison officials fail to timely
respond to a properly filed grievance”); Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002) (“[T]he failure to respond to a grievance
within the time limits contained in the grievance policy renders an
administrative remedy unavailable . . . .”); Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002) (agreeing remedies are exhausted “when prison
officials fail to respond to inmate grievances because those remedies had
become unavailable,” because the court “refuse[d] to interpret the PLRA
so narrowly as to permit prison officials to exploit the exhaustion
requirement through indefinite delay in responding to grievances”
(internal quotation marks and alterations omitted)); Foulk v. Charrier,
262 F.3d 687, 698 (8th Cir. 2001) (agreeing inmate’s administrative
proceedings were not available when prison did not respond to complaint).
FORDLEY V. LIZARRAGA 23
once an administrative remedy is exhausted, a claimant need
not do more. See id. at 935 n.10 (observing that “over-
exhaustion” is not required); accord Williams v. Wexford
Health Sources, Inc., 957 F.3d 828, 833–34 (7th Cir. 2020)
(explaining inmates must complete the prison’s required
steps, but that “does not mean that [an] inmate must go
beyond the established system and guess at some other way
of attracting the attention of the prison authorities”).
Defendants next contend that, by filing his May
grievance, Fordley initiated a new round of administrative
review of the March assault allegations. Their argument is
that by accepting the May grievance and processing it, the
prison corrected its failure to respond to the March grievance
and provided an avenue for Fordley to secure administrative
relief. In other words, defendants contend that Fordley’s May
grievance had the effect of unexhausting the March
grievance.
The first problem with defendants’ argument is that it is
premised on a version of the facts that is not supported by the
administrative record. The record establishes that the
subjects of Fordley’s May grievance were events that
occurred after he returned to Mule Creek from the crisis bed
at a separate facility, not the March assaults. Beginning with
his succinct description in the space on the Form 602 that
directs inmates to “State briefly the subject,” Fordley wrote
that the May grievance concerned “Harassment/Giving me
contraband - CDCR staff,” and went on to describe actions
that allegedly took place after he returned from the hospital,
well after the alleged March 10 and 11 assaults.
The record does show that the prison responded to the
May grievance by interviewing Fordley twice. One interview
24 FORDLEY V. LIZARRAGA
concerned the March assaults and one addressed the events
that allegedly transpired after Fordley returned from the off-
site crisis bed. Defendants suggest that if an inmate files
duplicative grievance forms, the inmate is obliged to await
the prison’s response before filing suit. But defendants offer
no support for this proposition, and even if we were to accept
it, the text of Fordley’s May 8 grievance refutes the
applicability of such a rule here because Fordley’s May
grievance was not duplicative of his March grievance.
Fordley’s entries in parts A and B of the May 8 Form 602
show Fordley was grieving new threats and harassment. The
prison’s choice to respond to the May grievance by
interviewing Fordley about the March assaults cannot be
accurately described as an attempt by Fordley to give the
prison officials another shot at responding to the March
assaults. And contrary to the defendants’ argument on appeal
and the district court’s ruling, the prison’s third-level
response leaves no doubt that the prison did not consider the
May grievance to include the March allegations. The prison’s
third-level response stated:
I. Appellant’s Argument: It is appellant’s
position that Mule Creek State Prison (MCSP)
staff tried to have him kill himself by handing
him a razor. The appellant asserts that
Correctional Officer (CO) Winkfield and
Correctional Sergeant Watson gave him a
razor and told him to kill himself. The
appellant contends that he gave the razor to a
Correctional Lieutenant. The appellant claims
that on May 5, 2016, he was given another
razor by CO Winkfield and CO Garcia, which
he again gave to the same Correctional
Lieutenant. The appellant states they keep
FORDLEY V. LIZARRAGA 25
giving him contraband to kill himself and they
are refusing to give him meals and sheets.
The appellant requests that he be moved.
In short, the May grievance was not directed at the March
assaults and was not understood by the prison officials to be
a complaint about those assaults. Contrary to the district
court’s ruling, the prison’s third-level response expressly
resolved only the May grievance.
Even if the May grievance had comprised an
unambiguous, standalone reassertion of a grievance
concerning the March assaults, we have no case law
supporting defendants’ suggestion that an inmate’s
reassertion of a concern—especially a request for a response
to an ignored emergency grievance—somehow operates to
unexhaust a previously exhausted claim. Cf. Brown, 422 F.3d
at 935 n.10 (concluding that there is no requirement for “an
inmate to continue to appeal a grievance once relief is no
longer ‘available’”). Nor can we see how such a rule could
be reconciled with the PLRA’s goal of an orderly claims
process. See Fuqua, 890 F.3d at 844 (explaining one of the
PLRA’s purposes is to “impos[e] some orderly structure on
the course of its proceedings” (alteration in original) (quoting
Woodford, 548 U.S. at 90–91)).
We cannot agree with defendants’ suggestion that an
unexhausted second grievance that mentions the factual
context underlying an earlier, ignored grievance renders the
first grievance unexhausted. The unworkability of this
argument is best illustrated by considering how it would
apply to inmates who claim to have suffered retaliation in
response to filing a grievance. Where retaliation is alleged,
inmates typically file an initial grievance and follow it with
26 FORDLEY V. LIZARRAGA
a second grievance describing retaliatory action(s) taken in
response to the first grievance. It is unreasonable to expect
that an inmate would describe retaliatory conduct in a
subsequent grievance without mentioning the initial
grievance. Cf. Rhodes v. Robinson, 408 F.3d 559, 563 (9th
Cir. 2005). But by the defendants’ and dissent’s reckoning,
any mention of a first and unanswered grievance in a second
grievance would render the first grievance unexhausted.
Defendants and the dissent also overlook that their
interpretation of the regulations would leave Fordley with no
recourse after the defendants failed to respond to the March
grievance, a result entirely contrary to the goals and purpose
of the PLRA. It is undisputed that after he filed the March
grievance, the regulatory scheme severely cabined Fordley’s
options: it did not allow him to file a second grievance, Cal.
Code Regs. tit. 15, § 3084.6(b)(1), or a duplicate grievance,
§ 3084.6(c)(2), or an untimely grievance concerning the
March assaults, § 3084.6(c)(4). Further, as defendants
conceded at oral argument, Fordley would not have been
allowed to file an appeal to the next level of review because
he had not received a response from the prison. Fordley’s
only recourse to the prison’s silence was to file requests for
information using CDCR Form 22 (Inmate/Parolee
Request)—which he did—and to wait. After several months,
it was apparent that no substantive response to his March
grievance was forthcoming, and Fordley was permitted to file
suit.
Boiled down, defendants’ suggestion is that we should
consider the prison’s response time to be so flexible that an
administrative process would be deemed unexhausted when
a prison neither responds nor provides notice that additional
time is needed. Such a rule would obliterate the primary
FORDLEY V. LIZARRAGA 27
incentive for prisons to respond to inmates’ grievances and
leave inmates and courts guessing about whether and when
suit may be filed. Yet the Supreme Court has cautioned that
“no adjudicative system can function effectively without
imposing some orderly structure on the course of its
proceedings.” Woodford, 548 U.S. at 90–92.
Defendants’ fallback argument is that we should not
rigidly apply the response times in the regulations. See Cal.
Code Regs. tit. 15, §§ 3084.9(a)(4), 3000.5(c). They urge us
to consider California’s deadlines for prison responses to be
flexible because § 3000.5(f) “do[es] not create a right to have
[a] specified action taken within the time limits.” But the
regulations in effect in March 2016 prohibited prison officials
from obtaining extensions of time to respond to emergency
grievances. See § 3084.8(c), (f). Further, defendants’
suggestion that they can benefit from a flexible view of the
prison’s allowable response times appears to be based on
their contention that they were entitled to thirty working days
to respond to Fordley’s grievance. That assertion, in turn, is
premised on defendants’ continued and unavailing position
that the March grievance did not allege an emergency. We
agree with the district court that the record confirms the
grievance was submitted, and the prison was on notice that
Fordley was raising an emergency situation. From there, it
follows that regulations allowed the prison just five working
days to complete its second-level review. § 3084.9(a)(4).
Because the prison never responded, viewing the allowable
response times as flexible does not help the defendants in this
case. The prison was not just tardy in responding to the
March grievance; it never responded at all.
We hold that a later-filed grievance that alleges new
complaints but refers to a previous and already-exhausted
28 FORDLEY V. LIZARRAGA
grievance for context does not render the first grievance
unexhausted. Accordingly, while the district court correctly
ruled that an avenue of administrative relief remained open
for Fordley’s May grievance at the time Fordley filed his
complaint, Fordley’s May Form 602 did not render his March
grievance unexhausted. Defendants’ contrary rule would
thwart the orderly process Congress envisioned when it
required compliance with an agency’s internal administrative
rules, because inmates—and courts—must know when
remedies are exhausted. See Ross, 136 S. Ct. at 1859; Ahktar
v. Mesa, 698 F.3d 1202, 1211–12 (9th Cir. 2012) (reversing
dismissal of inmate’s complaint because he had exhausted the
grievance process; the exhaustion of another grievance
arising from the same issue, after the complaint was filed,
was “immaterial”). We need not and do not decide whether
to adopt a bright-line rule that any delay in a prison’s
response to an inmate’s grievance is sufficient to render
administrative remedies unavailable. Cf. Shifflett, 934 F.3d
at 366. Nor, contrary to the dissent’s assertion, do we suggest
that deeming Fordley’s March grievance exhausted is an
equitable or discretionary remedy. By any measure, the
prison’s failure to respond to Fordley’s emergency grievance
over the course of several months rendered Fordley’s
administrative remedies unavailable.
IV
Fordley’s complaint also asserted a deliberate
indifference claim against Warden Lizarraga for ignoring
defendants’ assaultive and harassing conduct. The district
court dismissed this claim for failure to exhaust because
Fordley’s grievances did not “name or refer to” the warden.
Fordley does not dispute that he did not name Warden
Lizarraga in his March grievance. Indeed, none of Fordley’s
FORDLEY V. LIZARRAGA 29
administrative filings named the warden, nor did they
describe the warden taking, or failing to take, actions that
deprived Fordley of any federally guaranteed right. Fordley
argues that his March grievance should have put the prison on
notice that he intended to assert a deliberate indifference
claim against the warden. “[W]hen a prison’s grievance
procedures are silent or incomplete as to factual specificity,
‘a grievance suffices if it alerts the prison to the nature of the
wrong for which redress is sought.’” Griffin, 557 F.3d
at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002)). Here, there was no indication that any of Fordley’s
administrative complaints suggested the warden was aware of
defendants’ alleged conduct. On this record, the district court
correctly ruled that Fordley did not exhaust his claim against
Warden Lizarraga.
REVERSED IN PART, AFFIRMED IN PART,
REMANDED.
BADE, Circuit Judge, dissenting:
In March, May, and June 2016, while he was an inmate at
Mule Creek State Prison in California, John Fordley filed a
series of three administrative grievances in which he alleged
that correctional officers assaulted and harassed him and that
the warden was deliberately indifferent to this conduct.1 In
1
Most of Fordley’s claims, which the majority describes at length, are
not at issue in this case. There is no dispute that Fordley failed to exhaust
administrative remedies for his claims that the defendants tampered with
his food, threatened future assaults, identified Fordley as a racist and sex
offender before other inmates, and provided him with razor blades and
30 FORDLEY V. LIZARRAGA
August 2016, while the claims he asserted in these grievances
were still pending in the administrative review process before
prison officials, Fordley sued the warden and several
correctional officers, pursuant to 42 U.S.C. § 1983, and
alleged that they subjected him to cruel and unusual
punishment in violation of his Eighth Amendment rights.
The district court granted summary judgment and
dismissed Fordley’s claims without prejudice because it
concluded that Fordley did not comply with the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, which
requires that a prisoner exhaust administrative remedies
before filing suit.2 As the district court correctly concluded,
at the time Fordley filed suit “an avenue of administrative
relief remained open to him on his claims—the third level of
review for” the grievance he filed in May 2016. Therefore,
Fordley had not exhausted administrative remedies before
filing suit.
The majority, however, concludes that because the prison
did not timely respond to Fordley’s earlier grievance, filed in
March 2016, “the administrative appeals process [was]
encouraged him to kill himself. The district court dismissed these claims
without prejudice, and Fordley did not challenge the dismissal of these
claims on appeal. Moreover, as the majority correctly concluded, Fordley
failed to exhaust remedies for his claim against Warden Lizarraga, and the
district court correctly dismissed this claim. Maj. Op. 28. Therefore, this
appeal addresses only his claims that he was physically and sexually
assaulted on March 10 and 11, 2016.
2
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 administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a).
FORDLEY V. LIZARRAGA 31
‘unavailable’ within the meaning of the PLRA.” Maj. Op. 5.
Remarkably, the majority reaches this conclusion even
though the prison was reviewing those claims on the merits
in response to Fordley’s subsequent grievance, filed in May
2016. See Maj. Op. 18, 27–28.
The majority relies, in part, on a characterization of
Fordley’s grievances that cannot be squared with the record.
Specifically, the majority asserts that Fordley did not assert
the claims at issue here—that he was physically and sexually
assaulted—in his May 2016 grievance, but instead only
alleged those claims in his March 2016 grievance. The
majority reasons that Fordley exhausted remedies for these
assault claims and that they were not “unexhausted” by his
subsequent grievance and the prison’s investigation of these
claims on the merits. Maj. Op. 23, 25, 27–28.
Thus, the majority wrongly concludes that courts can
deem a prisoner’s claims exhausted if prison officials failed
to timely respond to a grievance, even if administrative
remedies are available at the time the prisoner files suit.
Maj. Op. 22, 25–28. But in Ross v. Blake, the Supreme Court
rejected such equitable exceptions to the PLRA’s exhaustion
requirement and explained that the statute unambiguously
provides that “[n]o action shall be brought” absent exhaustion
of available administrative remedies. 136 S. Ct. 1850, 1856
(2016) (quoting 42 U.S.C. § 1997e(a)). Therefore, if
administrative remedies are available, a prisoner has not
exhausted his claims under the mandatory terms of the PLRA.
Id.
While I agree that in some circumstances a prison’s
failure to timely respond to a prisoner’s grievance may
prevent the prisoner from using the grievance system, thus
32 FORDLEY V. LIZARRAGA
rendering administrative remedies unavailable, see Maj.
Op. 22 & n.8, the majority’s holding goes far beyond that
unremarkable proposition. And although the majority
disavows any bright-line test, Maj. Op. 28, its exhaustion
analysis in effect establishes a rule that a prison’s failure to
timely respond to a grievance means a prisoner’s claims are
deemed exhausted, even if administrative remedies are
available. Maj. Op. 19, 22–23, 25–26, 27–28. Because the
majority mischaracterizes the record and its analysis cannot
be reconciled with the PLRA’s mandatory exhaustion
requirement and the Supreme Court’s explication of that
requirement in Ross, 136 S. Ct. at 1856–58, I respectfully
dissent.
I.
The majority mischaracterizes the record to assert that
Fordley alleged that he was physically and sexually assaulted
on March 10 and 11, 2016 only in the March grievance and
that he merely “referred to” or “mentioned” these alleged
assaults in the May grievance to provide context for his other
claims. Maj. Op. 9, 12, 16–17, 23–25, 27. Based on this
false premise, the majority asserts that even though prison
officials accepted Fordley’s May grievance and investigated
the merits of Fordley’s claims that on March 10 and 11, 2016
he was physically and sexually assaulted, the prison did not
respond to the March grievance and therefore administrative
remedies were unavailable to him. Maj. Op. 19, 21, 22–24.
Although lengthy, the following detailed examination of
Fordley’s grievances and the prison’s responses is necessary
to clarify the record.
As an initial matter, it is worth noting that Fordley
admitted in his complaint that his requests for administrative
FORDLEY V. LIZARRAGA 33
relief on his claims were “pending” and “still in Sacramento
at Chief of Appeals Office.”3 Even if we were to disregard
these sworn statements in Fordley’s complaint as mistaken,
we cannot disregard the record. And, as set forth below, the
record overwhelmingly supports Fordley’s admissions that he
did not exhaust his administrative remedies for his claims.
The record clearly establishes the following timeline for
Fordley’s March, May, and June 2016 administrative
grievances, including the specific claims in each of those
grievances.
1. March 2016 Grievance. The March 2016 grievance
is not in the record because neither party has possession of it,
but the defendants do not dispute that Fordley filed a
grievance on March 27, 2016, and that prison staff received
it on March 28, 2016. The only information in the record
about this grievance comes from Fordley’s subsequent
requests for information (CDCR Form 22s) that he filed on
April 5, 2016 and April 12, 2016.
a. On April 5, 2016, Fordley filed a request for
information that focused on a grievance about missing
property that he had filed at a different prison. But he
included a final sentence stating: “I filed a staff assult
complaint here in March havent heard noth.”4 Prison staff
responded to his statement about the March grievance by
3
In his complaint, Fordley asserted three claims and for each claim
stated that administrative remedies were available for his claims, that he
submitted a request for administrative relief, and that his “appeal [of his]
request for relief . . . to the highest level” was “pending.”
4
The quoted language from Fordley’s grievances, requests for
information, and other filings includes his errors in spelling, punctuation,
and grammar. I have omitted using “sic” to indicate these errors.
34 FORDLEY V. LIZARRAGA
stating: “The appeal you reference having filed here has been
received and will be processed in the order received.”
b. On April 12, 2016, Fordley filed another CDCR
22 stating:
I filed a CDCR 602 because of safty concerns
and harrassment & assult by CDCR staff
which per (op) is susposed to be processed
immediately. But your dening me that. Your
[illegible] to file both of my CDCR 602s I
filed due to assult and discrimination. Why?
Ive written the wardens office and internal
affairs as well as my attorney, Sacramento &
appeals coordinator due to this hatred &
discrimination against me.
In response, prison staff noted at the bottom of the form:
“Your two appeals dated 3-27-16 and 4-13-16 have been
received + are being processed.”
c. On April 15, 2012, prison staff sent Fordley a
CDCR Form 695, Screening for CDCR 602 Inmate/Parolee
Appeals, “RE: Screening at the FIRST level.” This form
advised Fordley as follows: “Appeal Received, 03/28/2016;
Appeal dated 03/27/16.” It further stated: “Be advised that
your appeal was previously received and is in process.”
From Fordley’s requests for information about the
processing of his March 2016 grievance, we can determine
only that he described his March 2016 grievance as alleging
that on some unspecified date or dates in March 2016,
unnamed CDCR staff subjected Fordley to safety concerns,
harassment, and assault—purportedly requiring immediate
FORDLEY V. LIZARRAGA 35
processing as a result—and that unnamed CDCR staff further
subjected him to “assult and discrimination” as well as
“hatred and discrimination.”5
2. May 2016 Grievance. On May 8, 2016, Fordley filed
a grievance on CDCR Form 602, and it was assigned Log No.
MCSP-C-16-01365. Near the top of the form, on the line
directing the filer to “State briefly the subject of your appeal
(Example: damaged TV, job removal, etc.),” Fordley wrote:
“Harrassment/Giving me Contraband—CDCR Staff.” In the
first section of the form, Section A, which instructs the filer
to “Explain your issue,” Fordley stated:
In March on the 26th 2016, I filed a sexual
assult complaint against officers in ASU
Building 12, I also filed a assult complaint
5
On this scant record, the majority suggests that we can determine
that Fordley’s March 2016 grievance asserted an emergency claim and
should have been processed in five days. Maj. Op. 18–21; Cal. Code
Regs. tit. 15, § 3084.9(a)(1), (4) (2015). The majority asserts that the
district court also reached this conclusion. Maj. Op. 21. But the district
court improperly relied on section 3084.9(a)(5), which was not in effect
at the time Fordley filed his March grievance. See Cal. Code Regs. tit. 15,
§ 3084.9(a)(5) (2016) (stating that “[a] grievance in whole or part
containing allegations of sexual violence or staff sexual misconduct shall
be processed as an emergency appeal”). Moreover, the majority does not,
and cannot, cite any support for its suggestion that because the prison did
not timely respond to an emergency appeal, administrative remedies were
not available to Fordley. Indeed, the majority’s argument is defeated by
Booth v. Churner, where the Court held that the unavailability of a
specific form of relief does not render administrative remedies
unavailable. 532 U.S. 731, 736, 738–41 & n.6 (2001) (holding that
prisoner had to exhaust available administrative procedures even though
they could not result in the relief he sought, namely damages). Here,
regardless of the availability of emergency processing, regular processing
provided the opportunity for some relief for Fordley’s claims. See id.36 FORDLEY V. LIZARRAGA
against officers in B Complex. All this assult
and sexual assult took place March 9th, 10th,
11th 2016, when returning from the hospital
these officers kept harrassing me and
threatening me. On May 2nd (one of the C/Os
who sexually assaulted me on March 10th
2016,) became the regular in A5. I told them
for 2 months I wasnt safe. Now back in ASU,
Officer Winfield and Sgt Watson tried to have
me kill myself by handing me a orange razor
and told me to kill myself or they would. I
turned it in to a Lt, who 206 told to see me on
5/5/2016 around 720 pm, then on 5/6/2016 at
breakfast time I was given another razor by
Winfield and Officer Garcia which I turned in
again to the same Lt Appret: same time 720
pm after he was seeing 206. Again, they keep
handing me contraband to kill myself, and if
I dont they will they say 106-Mullers and 206
and 205 before they moved them are
witnesses. They refuse to give me meals
sheets, ect. You trying to kill me/set me up.
a. On May 11, 2016, prison staff indicated in
Sections C and D of the May grievance form that the first
level of review was “bypass[ed].” That same day, prison
officials also sent Fordley a CDCR Form 695 Screening for
Inmate/Parolee Appeals, “RE: Screening at the FIRST level,”
for Log. No. MCSP-C-16-01365, “STAFF COMPLAINTS,
Sexual Misconduct, 05/11/2016.” This form stated: “Be
advised your appeal was received and is in process.”
b. On May 19, 2016, prison staff indicated in Section
E of the May grievance form that the grievance was accepted
FORDLEY V. LIZARRAGA 37
at the second level of review. That same day, prison officials
sent Fordley an Inmate Appeal Assignment Notice, regarding
Log No. MCSP-C-16-01365, identifying the appeal issue as
“Staff Complaints.”
c. On June 22, 2016, prison officials sent Fordley a
memorandum entitled “Staff Complaint Response—Appeal
# MCSP-C-16-01365 Second Level Response.” This
memorandum describes the “appeal issue,” in relevant part,
as follows6:
FORDLEY’s appeal alleges Correctional
Officer M. Winkfield, Correctional Officer K.
Garcia, and Sergeant J. Watson battered and
sexually assaulted him on March 10, 2016.
On this same date, FORDLEY alleges Sgt.
Watson taunted him while FORDLEY was
being held in a holding cell in Building 12.
FORDLEY alleges Officers Winkfield and
Officer Garcia battered and sexually assaulted
him on March 11, 2016.
This memorandum also advised Fordley that his claims were
“[b]eing processed as an Appeal Inquiry.”
Next, the memorandum summarized the appeal inquiry
and described, in detail, the two interviews Fordley had with
reviewer J. Carrillo on May 10, 2016 and June 7, 2016. In
6
I have omitted the description of Fordley’s allegations that on May
5 and 6, 2016, Officers Winkfield and Garcia gave him razor blades and
told him to kill himself and that staff in Building 12 refused to provide
him meals.
38 FORDLEY V. LIZARRAGA
the May 10, 2016 interview, Fordley described the physical
and sexual assaults on March 10 and 11, 20167:
On May 10, 2016, I conducted an interview
with you in ASU regarding your misconduct
allegations against staff in Building 12. You
stated on March 9, 2016, you arrived to
MCSP and subsequently remanded to ASU
after being involved in a physical altercation
with an inmate on Facility “B.” You state on
March 10, 2016, when you complained to
staff in Building 12 you were not receiving
your medical supplies, Sgt. Watson,
Winkfield and Garcia arrived at your door and
stated, “F-ck you. You’re not getting nothing.
We don’t put up with this crap over here.
Listen to us or we’re going to make you
listen.” Upon making this statement, you
claim Watson immediately announced (via
radio) that he had an unresponsive inmate and
proceeded to enter [your] cell with Winkfield
and Garcia. During the extraction, you claim
Winkfield utilized the shield and “cracked
your head open” after you rushed staff. You
stated after you were slammed to the floor,
staff began to punch and kick you. You claim
it was during this time, Winkfield placed his
7
In the June 7, 2016 interview, Fordley described his allegations that,
on May 5 and 6, 2016, Officers Winkfield and Garcia gave him
razorblades and implied that he should kill himself and that they told him
to kill himself or they would kill him. Fordley also described his
allegations that staff in Building 12 were refusing to feed him, and that he
had lost a substantial amount of weight and was emaciated.
FORDLEY V. LIZARRAGA 39
“knight stick” (baton) between [your]
buttocks and laughed and stated, “Next time
I’ll put it inside your a--.” You claim after
you were placed in handcuffs, you were
escorted out of the cell and placed in a
holding cell. You claim as you were in the
holding cell, Sgt. Watson began to taunt you
by bragging about the extraction. When asked
if you received medical attention, you stated
you refused medical attention even though
you were bleeding profusely. You stated you
were then escorted back to your cell without
incident. You stated the next morning, on
March 11, 2016, when you complained that
Officer Vasquez had turned off the water in
your cell, Winkfield, Garcia and an
unidentified Sergeant extracted you again.
You claim that during the extraction, you
again were beaten and had a baton placed
between your buttocks by Winkfield. When
asked if you were penetrated during the
incident(s), you clarified your anal cavity was
never penetrated.
Finally, the memorandum advised Fordley that several
correctional officers and inmates had been interviewed,
various documents were reviewed, and the appeal inquiry was
complete. The memorandum concluded that staff did not
violate CDCR policy with respect “to one or more of the
issues appealed.” The memorandum also advised Fordley:
“If you wish to appeal the decision and/or exhaust
administrative remedies, you must submit your staff
complaint appeal through all levels of appeal review up to,
and including, the Secretary’s/Third Level of Review. Once
40 FORDLEY V. LIZARRAGA
a decision has been rendered at the Third Level,
administrative remedies will be considered exhausted.”
d. On July 6, 2016, in Section F of the May
grievance form, which directs the filer, if dissatisfied with the
second-level response, to explain his reasons, attach
supporting documents, and mail it for third-level review,
Fordley stated:
Yes these people sexually and physically
assulted me. You mother f-ckers always try
to push crap under the carpet. You assulted
me, I have evidence the 7219 showing bodly
fluids that didn’t belong to me. You assulted
me on March 9th 2016 [illegible], March 10th
2016; you assulted me in ASU saying I was
unresponsive and again March 11th 2016. In
[illegible] you sexually assulted me and this
a--hole from ISU Sgt J Carrillo keep saying
on video on May 10th 2016 did they stick it in
your a--, how far how do you know its
sexually assult and now they harrass me
everyday the same officers and Sgt who
sexually assulted me and physically assulted
me, they refuse to feed me, give me medical
supplies and physically threaten me everyday
with beating me or sexually assulting me
again but you people always justifiey your
actions so a person hangs themselfs or kills
themselfs from the torture. You every f-cken
day keep torturing me. It took 1½ months to
accept my complaints, a violation already.
You gave me orange state razors to kill
FORDLEY V. LIZARRAGA 41
myself. The only way one gets these is from
staff.
e. On August 15, 2016, while his appeal to the third-
level review was still pending, Fordley filed his civil rights
complaint in the district court.
f. On March 10, 2017, prison officials issued the
Third Level Appeal Decision and denied Fordley’s appeal.
The third-level decision considered “[a]ll submitted
documentation and supporting arguments of the parties,”
explained that “[t]he Second Level of Review (SLR)
identified and addressed the appellant’s allegations of staff
misconduct,” and concluded that at the third level of review
“the appellant’s allegations were appropriately reviewed and
evaluated by administrative staff.” The Third Level Appeal
Decision also stated that “[t]his decision exhausts the
administrative remedy available to the appellant within
CDCR.”
In contrast to the repeated and explicit allegations—
throughout Fordley’s May grievance, his appeals of that
grievance, and the responses to that grievance—that he was
physically and sexually assaulted in March 2016, the majority
asserts that “the May grievance was not directed at the March
assaults and was not understood by the prison officials to be
a complaint about those assaults.” Maj. Op. 25. But given the
prison’s repeated statements about the appeal inquiry, that
assertion strains credulity. It is beyond dispute that Fordley
asserted his claims that he was physically and sexually
assaulted in his appeals to the second and third levels of
42 FORDLEY V. LIZARRAGA
review and the prison accepted these claims and investigated
them on the merits.8
Fordley’s May grievance clearly related to the March
2016 physical and sexual assault claims, and it was still in
process when Fordley filed suit. Thus, Fordley had not
exhausted his administrative remedies because the
“administrative process ha[d] authority to take some action in
response to [his] complaint,” specifically a review of the
second-level decision. Brown v. Valoff, 422 F.3d 926, 934
(9th Cir. 2005) (quoting Booth v. Churner, 532 U.S. 731, 736
(2001)); see id. at 942 (“[A] prisoner may not proceed to
federal court while exhausting administrative remedies . . . .”
(citation omitted)).
3. June 2016 Grievance. In the meantime, on June 12,
2016, while his May grievance was still pending in the
administrative process, Fordley filed a third grievance,
assigned Log No. MCSP-C-16-01704, and in Section A of the
CDCR 602 alleged that Officer Winkfield harassed him and
“mess[ed] with [his] food” because on June 8, 2016, the day
8
The majority also argues that the third level of review did not
explicitly discuss Fordley’s physical and sexual assault claims. Maj. Op.
23–25. But even if the broad statements in the third-level decision were
not sufficient to encompass Fordley’s assault claims, the second-level
decision clearly addressed these claims, as the majority acknowledges.
Maj. Op. 21 n.7, 23–24. And where “there is an ongoing investigation
into the facts underlying the grievance, . . . prison officials may develop
information” that could lead to corrective action, and thus, the availability
of relief. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). Thus,
because the second-level response to the May grievance addressed
Fordley’s claims that he was physically and sexually assaulted in March
2016, Fordley appealed that response, and the third-level response had not
been issued when Fordley filed his complaint, Fordley had available
administrative remedies.
FORDLEY V. LIZARRAGA 43
after his second interview with J. Carrillo in ISU, Winkfield
gave him a paper tray instead of a regular tray.9 Fordley
further stated:
this harrassment, mental/sexual/physical will
continue until you get me out of here or I kill
myself or the court intervens, everyday I’m
being harrassed by Officer Winfield and now
he has other officers doing his dirty work. I
believe ISU is involved, the Sgt of ISU kept
asking me how far did they stick the stick in
your a--, that isn’t helping its harrassing me.
A paper trail is a mother f-cker.
The appeal bypassed the first level of review and was
accepted for the second level of review.
a. On July 15, 2016, prison officials sent Fordley a
memorandum entitled “Staff Complaint Response—Appeal
# MCSP-C-16-01704 Second Level Response.” The
memorandum described the “Appeal Issue” as “Inmate
FORDLEY alleges Correctional Officer M. Winkfield is
threatening and harassing him.” The memorandum further
explained that Lt. Altschuler interviewed Fordley on July 9,
2016, and Fordley stated that “everything is in the CDCR
602” and answered questions. Fordley’s appeal was denied
at the second level of review, and the second-level decision
advised him of his rights “to appeal the decision and/or
exhaust administrative remedies” and that he must submit his
complaint through all levels of appeal review up to and
including the third level of review.
9
Fordley identifies this corrections officer as “Winfield” and
“Winkfield,” but the prison identifies him as “Winkfield.”
44 FORDLEY V. LIZARRAGA
b. On August 1, 2016, Fordley appealed the second-
level decision to the third level of review. In Section F of the
June grievance he stated:
I am dissatisfied. Officer Winkfield and
Garcia always sexual harrass me and threaten
me daily. They grab there nuts and tell me its
my next meal. But you f-cken people don’t
want to know the truth because your afraid
what the truth will tell you: look at the weight
loss on my chart. They spit in my food, and I
pull it out or save the tray and you refuse to
come get the evidence, they gave me paper
trays for no reason 2½ months and tell me to
enjoy my food, they spiced it up, they
constantly grab there nuts and tell me its my
next meat or they say there going to rape me
with the paton again only next time the whole
stick goes up my a--. I can’t handle it[,] they
say I don’t come out of my cell for nothing, I
cut my arm 5 times and put blood on the
window while I [illegible] up on there s-it.
Everyday they walk by, by saying let him kill
himself, they gave me orange razors on May
5 and 6 to kill myself, this is harrassment,
mental and physical and sexual harrassment
everyday on 2nd watch and you people think,
well I’ll talk to the inmate and that will
conclude my investigation.
Fordley’s appeal was accepted at the third level of review but
later denied.
FORDLEY V. LIZARRAGA 45
c. On August 15, 2016, while Fordley’s appeal of his
June grievance to the third level of review was pending,
Fordley filed his civil rights complaint.
d. On January 23, 2017, prison officials issued the
Third Level Appeal Decision and denied Fordley’s appeal.
“This decision exhaust[ed] the administrative remedy
available to the appellant within CDCR.”
***
The May and June grievances demonstrate that Fordley
repeatedly raised his claims that he was physically and
sexually assaulted in March 2016. In contrast to the
majority’s speculation that the prison could have canceled
Fordley’s claims as untimely or duplicative, Cal. Code Regs.
tit. 15, § 3084.6(c)(2), (4) (2015), Maj. Op. 26, the history of
Fordley’s grievances and the appeals process clearly
establishes that it did not do so and that it did not take any
action to improperly screen Fordley’s claims. Rather, the
prison processed and responded to his claims of physical and
sexual assault on the merits. The majority simply misstates
the record by suggesting that the prison did not do so.
II.
The majority, however, does not rely solely on its
mischaracterization of the history of Fordley’s grievances.
Instead, it argues that “[e]ven if the May grievance had
comprised an unambiguous, standalone reassertion of a
grievance concerning the March assaults, we have no case
law supporting defendants’ suggestion that an inmate’s
reassertion of a concern—especially a request for a response
to an ignored emergency grievance—somehow operates to
46 FORDLEY V. LIZARRAGA
unexhaust a previously exhausted claim.” Maj. Op. 25. The
majority then repeatedly states in various formulations
throughout the opinion the basic premise of its exhaustion
analysis: an exhausted grievance cannot be “unexhausted.”
Maj. Op. 23, 25, 27–28. This premise is flawed because it
imports a fairness analysis into the PLRA’s mandatory
exhaustion requirement, it focuses the exhaustion analysis at
some time other than when the prisoner files his complaint in
federal court, and it assumes circumstances that are not
present in this case.
A.
The majority’s conclusion that an exhausted claim cannot
be “unexhausted” adopts Fordley’s reasoning that it was
unfair to consider his second grievance, and the availability
of administrative remedies for the claims in that grievance,
when determining if he exhausted his claims. As Fordley
stated in his opening brief, his “decision to file a second
grievance did not somehow excuse the prison’s failure to
process the first grievance. [He] was under no obligation to
file that grievance and should not be penalized for his good
faith efforts to continue working within the prison grievance
system.”
The majority makes its fairness analysis of the exhaustion
requirement even more explicit when it states that “[t]he
prison’s choice to respond to the May grievance by
interviewing Fordley about the March assaults cannot be
accurately described as an attempt by Fordley to give the
prison officials another shot at responding to the March
assaults.” Maj. Op. 24. Thus, the majority essentially adopts
the reasoning of the Third Circuit in Shifflett v. Korszniak that
it is unfair to require a prisoner to exhaust available remedies
FORDLEY V. LIZARRAGA 47
if prison officials have not strictly complied with their own
regulations. 934 F.3d 356, 367 (3d Cir. 2019) (“The PLRA
requires strict compliance by prisoners seeking redress of
their grievances, and by the same token we hold that it
requires strict compliance by prison officials with their own
policies.”).
By applying a fairness analysis to deem a claim exhausted
even if administrative remedies are available at the time a
prisoner files suit, the majority applies a form of “judicial
discretion” to modify the PLRA’s exhaustion requirement.
See Ross, 136 S. Ct. at 1857. In Ross, the Court rejected a
similar “extra-textual” or “judge-made” exception to the
PLRA’s “mandatory” exhaustion requirement. Id.
at 1856–58. The Court held that “special circumstances,”
such as a prisoner’s mistaken but reasonable belief that he
had sufficiently exhausted remedies, could not limit the
prisoner’s obligation to exhaust remedies.10 Id. at 1858.
10
The Court further explained that in enacting the PLRA Congress
substituted an “invigorated” exhaustion requirement in place of the
“discretionary” and “inadequate” exhaustion provisions of the Civil Rights
of Institutionalized Persons Act (CRIPA), which required exhaustion only
if a state provided “plain, speedy, and effective” remedies, and only then,
if exhaustion were deemed “appropriate and in the interests of justice.”
Ross, 136 S. Ct. at 1858–59 (citation omitted). The Court concluded that
a “special circumstances” exception to exhaustion, even if limited to cases
in which a prisoner makes a reasonable mistake about the meaning of
grievance procedures, “would resurrect CRIPA’s scheme” by
reintroducing the “requirement that the remedial process be ‘plain.’” Id.
at 1858. Similarly, the majority’s conclusion here that a prison’s failure
to timely respond to a grievance renders remedies unavailable improperly
reintroduces the requirement that the remedial process be “speedy.” See
id.
48 FORDLEY V. LIZARRAGA
In rejecting such exceptions, the Supreme Court explained
that “courts have a role in creating exceptions only if
Congress wants them to.” Id. at 1857. Thus, “mandatory
exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.” Id.
(citation omitted). The Court further explained that “[t]ime
and again, this Court has taken such statutes at face
value—refusing to add unwritten limits onto their rigorous
textual requirements.” Id. (citations omitted). And, as
particularly relevant here, the Court stated that “the PLRA
prevent[s] a court from deciding that exhaustion would be
unjust or inappropriate in a given case.” Id. at 1858.
Therefore, “all inmates must now exhaust all available
remedies: ‘Exhaustion is no longer left to the discretion of
the district court.’” Id. (quoting Woodford v. Ngo, 548 U.S.
81, 85 (2006)).
The exhaustion “edict” of the PLRA has only one
qualifier—“the remedies must indeed be ‘available’ to the
prisoner.”11 Id. at 1856. Thus, the PLRA’s “exhaustion
requirement hinges on the ‘availab[ility]’ of administrative
remedies.” Id. at 1858 (alternation in original).
Administrative remedies are available under § 1997e(a) when
they “are ‘capable of use’ to obtain ‘some relief for the action
complained of.’” Id. at 1858–59 (citation omitted) (applying
11
The Court identified three circumstances in which administrative
remedies, “although officially on the books,” would not be available:
(1) when an administrative procedure operates as a “dead end” and prison
officials are “unable or consistently unwilling to provide any relief”;
(2) when an administrative scheme is “so opaque that it becomes . . .
incapable of use”; and (3) “when prison administrators thwart inmates
from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859–60 (citation
omitted). These circumstances are not present in this case.
FORDLEY V. LIZARRAGA 49
ordinary meaning of the word “available” and collecting
dictionary definitions).
We have applied a similar explanation of available
remedies, stating that administrative relief is available when
“the administrative process has authority to take some action
in response to a complaint.” Brown, 422 F.3d at 934 (quoting
Booth, 532 U.S. at 736). Indeed, we held that a prisoner must
“press on to exhaust further levels of review” until “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.” Id. at 935. Therefore, a
prisoner’s “obligation to exhaust ‘available’ remedies persists
as long as some remedy remains ‘available.’”12 Id. And it is
Fordley’s burden to bring forward evidence to create a
material dispute of fact on whether prison staff’s delay in
responding to the March 2016 grievance meant that there was
no “possibility of some relief for the action complained of.”
Id. (quoting Booth, 532 U.S. at 738; other citation omitted);
see Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en
banc).
Here, as detailed in the history of the grievance processes
in Section I, it is beyond dispute that administrative remedies
were available to Fordley when he filed his complaint.
Indeed, as Fordley admitted in his complaint, prison officials
were addressing his claims on the merits when he decided not
12
In Brown, we considered whether two prisoners, Brown and Hall,
had exhausted administrative remedies before filing suit. See 422 F.3d
926. We concluded that while Brown had exhausted such remedies, Hall
had not, in part, because he filed suit before the conclusion of a staff
misconduct investigation, which was not part of the prison grievance
process. Id. at 940, 942–43.
50 FORDLEY V. LIZARRAGA
to wait for the conclusion of that process before filing suit.
Consequently, Fordley did not exhaust administrative
remedies and the district court properly granted the
defendants’ motions for summary judgment.
B.
Moreover, the majority’s premise that an exhausted claim
cannot be unexhausted also conflicts with our precedent
because it attempts to focus the exhaustion analysis on some
time other than when the prisoner files suit. But our case law
establishes that we examine the availability of administrative
remedies “at the time the action is filed.” Andres v. Marshall,
867 F.3d 1076, 1079 (9th Cir. 2017) (per curiam) (citation
omitted); see also Brown, 422 F.3d at 942 (“[A] prisoner may
not proceed to federal court while exhausting administrative
remedies . . . .” (citation omitted)). Even Fordley concedes
that “the exhaustion inquiry looks to the state of the world at
the time the complaint was filed.”
The majority nonetheless justifies determining exhaustion
at a time other than when the prisoner filed his complaint by
stating that “once an administrative remedy is exhausted, a
claimant need not do more.” Maj. Op. 22–23 (citing Brown,
422 F.3d at 935 n.10; other citation omitted). But the
majority necessarily assumes that Fordley’s claims were
exhausted as soon as prison officials failed to timely respond
to his initial grievance.13 Under some circumstances that may
13
The majority’s analysis is based on the fundamental misconception
that the prison’s failure to timely respond to the March grievance under
the prison’s own regulations, in and of itself, rendered administrative
remedies unavailable. Maj. Op. 27. But the applicable regulations
provide that “time limits are directory, and the failure to meet them does
FORDLEY V. LIZARRAGA 51
be true. However, here, prison officials accepted Fordley’s
subsequent grievances and processed them on the merits,
demonstrating that the prison’s failure to timely respond to
Fordley’s first grievance did not render administrative
remedies unavailable.14
The majority’s analysis does not consider whether
administrative remedies were available after prison officials
failed to timely respond to a grievance and whether those
remedies remained available at the time he filed suit. But we
must view the availability of administrative relief from the
lens of “how the prison viewed and treated the[] complaint
based on its own procedures,” Brown, 422 F.3d at 942 n.17,
especially considering that it is “difficult to imagine an
activity in which a State has a stronger interest, or one that is
not preclude taking the specified action beyond the time limits.” Cal.
Code Regs. tit. 15, § 3000.5(f) (2015).
14
For example, the majority argues that after the prison failed to
timely respond to the March 2016 grievance Fordley had “no recourse”
because the regulatory scheme did not allow him to file a second,
duplicative, or untimely grievance. Maj. Op. 26. But the regulatory
provisions allowing cancellation of grievances are not mandatory.
Instead, by their terms, these procedures are discretionary. The
regulations state that the appeals coordinator “may” cancel grievances for
many reasons. See Cal. Code Regs. tit. 15, § 3084.6(c)(2), (4) (2015).
Thus, because prison officials had discretion in determining whether to
cancel the May grievance, there was a possibility of some relief and the
PLRA required that Fordley wait for the completion of the processes he
invoked by filing that grievance. See Brown, 422 F.3d at 935. Moreover,
the regulations provide that the cancellation of a grievance may be
separately appealed, Cal. Code Regs. tit. 15, § 3084.6(e), thereby
providing another potential avenue for relief had the prison canceled
Fordley’s May grievance. At bottom, the majority’s analysis “hinges” not
on the availability of relief but instead on hypotheticals founded on
nothing in the record. See Ross, 136 S. Ct. at 1858.
52 FORDLEY V. LIZARRAGA
more intricately bound up with state laws, regulations, and
procedures, than the administration of its prisons,” Woodford,
548 U.S. at 94 (citation omitted).
Here, even if prison officials could have rejected
Fordley’s May 2016 grievance on procedural grounds, they
did not do so. Instead, they accepted the May grievance,
granted partial relief, initiated an investigation, and responded
to it on the merits. Thus, the May 2016 grievance triggered
the possibility of administrative remedies, and “[w]e are
bound by the literal command of the PLRA, which precludes
an action by a prisoner ‘until such available administrative
remedies as are available have been exhausted.’” Panaro v.
City of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005)
(quoting 42 U.S.C. § 1997e(a)). Fordley’s failure to do so
means he did not exhaust his administrative remedies. See
Brown, 422 F.3d at 936, 941–43.
III.
Administrative remedies are exhausted when they are no
longer available. See Ross, 136 S. Ct. at 1856, 1859–60. So
long as there is a “possibility of some relief for the action
complained of,” remedies are available. Brown, 422 F.3d
at 935 (citations omitted). The administrative process was
available here because Fordley was actively using it at the
time he filed suit and that process provided potential remedies
for his claims. Therefore, Fordley did not exhaust his claims
that he was assaulted in March 2016, and the majority errs
when it allows Fordley to evade his obligation to do so.
Because Fordley did not exhaust his claims, the defendants
were entitled to summary judgment. I respectfully dissent.