Jason Harmon v. Lewandowski ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON HARMON, No. 22-55396
Plaintiff-Appellant, D.C. No.
2:20-cv-09437-MEMF-MRW
v.
LEWANDOWSKI; et al., MEMORANDUM*
Defendants-Appellees,
and
VAUGHN; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Maame Ewusi-Mensah Frimpong, District Judge, Presiding
Argued and Submitted February 14, 2023
Pasadena, California
Before: O’SCANNLAIN, HURWITZ, and BADE, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge HURWITZ.
Jason Harmon appeals from the district court’s entry of summary judgment
in this 42 U.S.C. § 1983 action in favor of three prison officials based on Harmon’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. The district court correctly concluded that Harmon failed to exhaust
any claims against Bridgeforth in Grievance 0896. The Prison Litigation Reform
Act “requires inmates to both substantively and procedurally exhaust all claims
through administrative avenues before filing a suit in court.” Wilkerson v.
Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). “[T]he prison’s
requirements . . . define the boundaries of proper exhaustion.” Jones v. Bock, 549
U.S. 199, 218 (2007). Therefore, an inmate must comply with the prison’s
grievance process to satisfy the exhaustion requirement. See id. (“Compliance
with prison grievance procedures, therefore, is all that is required by the [Prison
Litigation Reform Act] to ‘properly exhaust.’”).
California regulations in effect at the time required inmates to “list all staff
member(s) involved” in an issue, including “the staff member’s last name, first
initial, title or position, if known, and the dates of the staff member’s involvement
in the issue under appeal.” Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2018). If
inmates did not have this information, they were to “provide any other available
information that would assist the appeals coordinator in making a reasonable
attempt to identify the staff member(s) in question.” Id.Harmon’s Grievance 0896 did not refer to Bridgeforth by name or provide
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any other information from which the prison could identify Bridgeforth, such as
the date or time of the incident, or Bridgeforth’s race, gender, or physical
attributes. Instead, Harmon identified another prison employee by name in
Grievance 0896, Vaughn, but did not identify Bridgeforth and included only a
vague statement about complaints to “floor staff.” This reference to “floor staff,”
without any other identifying information, did not comply with the regulation’s
requirements to exhaust a claim against Bridgeforth (or any other prison employee
besides Vaughn). See Jones, 549 U.S. at 218; see also Sapp v. Kimbrell, 623 F.3d
813, 824 (9th Cir. 2010) (stating that “[t]o provide adequate notice” of an issue, an
inmate must “provide the level of detail required by the prison’s regulations”).
Further, the prison did not ignore procedural defects in order to process
Grievance 0896 on the merits as a claim against Bridgeforth. See Reyes v. Smith,
810 F.3d 654, 658 (9th Cir. 2016) (holding that an inmate exhausts administrative
remedies “despite failing to comply with a procedural rule if prison officials ignore
the procedural problem and render a decision on the merits of the grievance”).
Rather, the prison’s conclusion that “staff did not violate policy” referred to the
staff that the prison was on notice to investigate based on Harmon’s grievance—
Vaughn. With no information from which to identify Bridgeforth (or any other
employee), the prison had no reason to investigate her conduct, and it was not
required to speculate about the identities of any additional prison employees whose
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alleged conduct might be at issue, or to assume that Harmon intended to assert a
grievance against additional unidentified employees and thus reject the grievance
on procedural grounds. Accordingly, Harmon’s claims against Bridgeforth were
not exhausted.
2. The district court correctly concluded that Harmon failed to exhaust
any claims against Lewandowski in Grievance 1244. The prison rejected
Harmon’s grievance against Lewandowski for reasons consistent with and
supported by applicable regulations. See Sapp, 623 F.3d at 824 (explaining that
exhaustion may be excused when, among other things, prison officials screened the
grievance “for reasons inconsistent with or unsupported by applicable
regulations”); Cal. Code Regs. tit. 15, § 3084.3(c) (2018).
Although we have left open “the possibility” that exhaustion might be
excused “where repeated rejections of an inmate’s grievances at the screening
stage give rise to a reasonable good faith belief that administrative remedies are
effectively unavailable,” Sapp, 623 F.3d at 826, Harmon did not have “a
reasonable good faith belief” that administrative remedies were unavailable.
Harmon claims not to have received the second notice rejecting Grievance 1244.
If true, then Harmon could not reasonably have believed that the grievance was
“repeatedly rejected” so as to render administrative remedies unavailable.
Alternatively, if Harmon did receive the notice, the notice included instructions to
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correct and resubmit the grievance and, if it were again rejected, separately appeal
that decision. See Cal. Code Regs. tit. 15, § 3084.6(e) (2018); Sapp, 623 F.3d at
826 (concluding inmate could not have a reasonable belief that remedies were
unavailable because he was “specifically instructed” on how to seek medical care
and “on how to appeal any denial of care” but “did not follow those instructions”).
Therefore, there is no dispute that remedies were available, but Harmon failed to
exhaust them.
3. The district court correctly concluded that Harmon failed to exhaust
any claims against Rosales. Harmon never filed a grievance with respect to
Rosales. Although “the threat of retaliation for reporting an incident” can “excuse
a prisoner’s failure to exhaust,” Harmon lacked a subjective fear of retaliation by
Rosales after transferring to another prison. McBride v. Lopez, 807 F.3d 982, 987–
89 (9th Cir. 2015). After the transfer, Harmon filed similar grievances against
other officers from Los Angeles County and stated that “[t]he only reason”
Harmon felt comfortable doing so was because Harmon “had been transferred out
of” Los Angeles County. Harmon’s willingness to file similar grievances post-
transfer defeats any claim that Harmon “was actually deterred from filing a
grievance.” Id. at 988.
AFFIRMED.
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FILED
Jason Harmon v. Lewandowski, No. 22-55396 MAR 20 2023
MOLLY C. DWYER, CLERK
HURWITZ, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur in the memorandum disposition’s conclusion that Harmon failed to
exhaust their claims against Lewandowski and Rosales.
I respectfully dissent, however, from the disposition’s holding that Harmon’s
claims against Bridgeforth were not exhausted. A prison grievance is exhausted if
“prison officials ignore [a] procedural problem and render a decision on the merits
. . . at each available step of the administrative process.” Reyes v. Smith, 810 F.3d
654, 658 (9th Cir. 2016). It is undisputed that prison officials rendered merits
decisions on Grievance 0896 at all available levels.
Although Grievance 0896 did not identify Bridgeforth by name, it “plainly
put prison officials on notice of the nature of the wrong alleged in [the] federal
suit”—the failure to properly respond to threats of sexual violence by Harmon’s
cellmate. Id. at 659. It also clearly accused members of the “floor staff” of that
failure to respond. Had prison authorities needed additional information to process
Grievance 0896, they could have requested it. Indeed, that is exactly what occurred
with Grievance 1244. But “instead of enforcing a procedural bar,” the prison
“address[ed] the merits” of Grievance 0896. Id. at 657. Therefore, “the state's
interests in administrative exhaustion have been served.” Id.