Leon Thomas v. A. Jurgensen

FILED
NOT FOR PUBLICATION
JUN 4 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEON THOMAS, No. 19-55937
Plaintiff-Appellant, D.C. No.
2:10-cv-02671-JGB-MRW
v.
A. W. JURGENSEN, Associate MEMORANDUM*
Warden/Acting Warden, official capacity,
Defendant-Appellee,
and
K. LOPEZ; C. ZUMKHER; JEFFREY
ALLEN; FRANCISCO QUINTANA,
Defendants.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 20, 2020
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: LINN,** RAWLINSON, and FORREST, Circuit Judges.
Appellant Leon Thomas (Thomas) appeals the district court’s grant of
judgment on the pleadings and summary judgment in favor of Appellee A.W.
Jurgensen (Jurgensen). Thomas contends that the district court erred in finding his
claim unexhausted under the Prison Litigation Reform Act (PLRA). Thomas
maintains that Jurgensen consistently represented over the course of this protracted
litigation that Thomas exhausted his claim.
We agree that the district court erred in granting judgment on the pleadings.
Although the district court held that Thomas failed to sufficiently plead that his
claim was exhausted, exhaustion under the PLRA “is not a jurisdictional
requirement that the plaintiff must plead and establish. Instead [the PLRA]
establishes an affirmative defense, waived if the defendant does not raise it.” Lira
v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005) (citation omitted).
We also reverse the district court’s grant of summary judgment in favor of
Jurgensen because Jurgensen waived any reliance on an exhaustion defense.
“[T]he defendant in a PLRA case must plead and prove nonexhaustion as an
affirmative defense.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en
**
The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
2
banc) (citation omitted). Although Thomas did not distinctly assert that Jurgensen
waived any reliance on an affirmative defense of exhaustion, we may exercise our
discretion to address this issue of law under our de novo review. See Ruiz v.
Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012) (explaining that we
have discretion to address an issue “not presented to the district court . . . when the
issue presented is purely one of law and either does not depend on the factual
record developed below, or the pertinent record has been fully developed”)
(citations omitted).
The clearest statement of waiver was in Jurgensen’s motion in limine, where
he asserted that: “[Thomas’] exhausted [claim] . . . define[d] the scope of
[Thomas’] action at trial and, consequently, the scope of his evidentiary
presentation.” Jurgensen maintained that “evidence of claims outside the scope of
[the exhausted claim][was] further inadmissible because it would be unduly
confusing and prejudicial.” Jurgensen sought “an order precluding [Thomas] from
introducing evidence or testimony regarding any claims that [were] not identified
in [Thomas’] Administrative Remedy ID 566304 (AR 566304), the only exhausted
claim at issue in this case.” In a supporting declaration, a paralegal for the Bureau
of Prisons confirmed that Thomas “exhausted the administrative remedy request
regarding his request in Administrative Remedy ID 566304.”
3
Although Jurgensen raised exhaustion as an affirmative defense in his
answers to Thomas’ complaints, Jurgensen intentionally relinquished any reliance
on this defense in his motion in limine and supporting representations. See Gordon
v. Deloitte & Touche, LLP Grp. Long Term Disability Plan, 749 F.3d 746, 752 (9th
Cir. 2014) (describing waiver as “the intentional relinquishment of a known right”)
(citation omitted). Jurgensen’s litigation position that Thomas’ claim was
exhausted waived any exhaustion defense. See id.1
REVERSED and REMANDED.
1
Because we hold that Jurgensen waived his exhaustion defense, we need
not and do not address Thomas’ contentions premised on laches, equitable
estoppel, and judicial admissions.
4