NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYREL GERRARD BRANNON, 

Plaintiff-Appellant, 

 v. 

COVARRUBIAS, Sgt.; CELESTIN, L.V.N.; 

A. RODRIGUEZ, Correctional Officer; 

Floor Officer D-Yard; CELESTIN, Licensed 

Vocational Nurse, Salinas Valley State 

Prison; J. GONZALEZ; D DELGADILLO,

Defendants-Appellees.

No. 22-16728 

D.C. No. 3:21-cv-04671-JD 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

James Donato, District Judge, Presiding

Submitted March 19, 2024**

San Francisco, California

Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Tyrel Gerrard Brannon, a state prisoner proceeding pro se, sued Defendants 

for excessive force and deliberate indifference to his medical needs under 42 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

U.S.C. § 1983. Brannon appeals the district court’s order granting summary 

judgment to Defendants based on Brannon’s failure to exhaust his administrative 

remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). 

We have jurisdiction under 28 U.S.C. § 1291. We affirm.1

“We review de novo a district court’s summary judgment ruling that an 

inmate has not exhausted his claims within the meaning of the [PLRA].” Fordley v. 

Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021). A defendant bears the burden “to 

prove that there was an available administrative remedy, and that the prisoner did 

not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 

2014) (en banc). Once the defendant shows that such a remedy was generally 

available, the burden shifts to the prisoner to show “that there is something in his 

particular case that made the existing and generally available administrative 

remedies effectively unavailable to him.” Id.

1. California’s custody grievance process consists of two levels: (1) an 

institutional-level review conducted by the Office of Grievances; and (2) a 

headquarters-level review conducted by the Office of Appeals. Cal. Code Regs. tit. 

1

In his operative complaint, Brannon did not name Defendants California 

Department of Corrections and Rehabilitation, Bick, Orozco, or Pacheco. The

district court also dismissed Defendants Atchley, Ezeka, Gomez, Serrano-Jiminez, 

and Vega. As such, Appellees’ unopposed motion to dismiss these appellees from 

this appeal (Dkt. No. 14) is GRANTED. The Clerk shall amend the case caption to 

Tyrel Gerrard Brannon v. Covarrubias, et al.
3 

15, §§ 3481(a)–(b), 3482, 3483, 3486.2 Officials can reject claims if not timely 

submitted or if they substantially duplicate a prior claim submitted by the same 

inmate. Id. §§ 3483(i)(6), 3486(i)(6), 3487(a). A substantive decision on the merits 

from the Office of Appeals is required to exhaust a claim. Id. § 3486(m). 

Similarly, California’s healthcare grievance process consists of two levels: 

(1) an institutional-level review conducted by the Health Care Grievance Office; 

and (2) a headquarters-level review conducted by the Health Care Correspondence 

and Appeals Branch. Id. §§ 3999.225, 3999.227. Prisoners cannot add new claims 

during the grievance process. Id. §§ 3999.227(a), 3999.229(a)(3). Only issues 

addressed in the headquarters-level review are deemed exhausted. Id.

§ 3999.230(i)–(j).

It is undisputed that Brannon failed to submit two of his grievances for 

headquarters-level review: Grievance No. 114264 and Grievance No. MCSP HC 

21001759. Because Brannon failed to exhaust his administrative remedies as to 

these two grievances, the district court did not err in granting summary judgment 

in favor of Defendants. 

The record also demonstrates that Brannon failed to comply with the 

grievance process with respect to his healthcare grievance, Grievance No. MCSP 

2 All citations to the California Code of Regulations are to the versions in effect 

from 2020 to 2021, when Brannon filed and appealed his grievances.
4 

HC 21001019/SVSP SC 21000054. Brannon’s grievance, filed in April 2021,

alleged that a nurse “attempted to cover up his injuries by claiming . . . there [were] 

no injuries” and requested that the nurse be “removed from her position.” The 

institutional-level review found that there was no need for intervention and denied 

Brannon’s request to remove the nurse from her position. Brannon then appealed, 

alleging for the first time that the nurse had “refused [him] medical attention in a 

time of need.” The headquarters-level review declined intervention and did not 

address Brannon’s new claim that the nurse had refused to treat him. Because 

prisoners cannot add new claims during the grievance process, see Cal. Code Regs. 

tit. 15, §§ 3999.227(a), 3999.229(a)(3), and since only issues addressed in the 

headquarters-level review are deemed exhausted, id. § 3999.230(i)–(j), Brannon 

failed to exhaust his claim that the nurse refused him medical attention.

2. We reject Brannon’s argument that administrative remedies were 

effectively unavailable as to his claims arising out of Grievance No. 112830 

because he received a “time expired” response to his appeal. In April 2021, 

Brannon submitted a grievance alleging that five correctional officers beat him on 

January 13, 2020, and that a nurse covered up his injuries by filing a false report. 

In May 2021, the Office of Grievances rejected Brannon’s grievance as untimely 

because he did not file it within 30 days of the incident. Brannon then submitted an 

appeal for a headquarters-level review. In January 2022, the Office of Appeals sent 
5 

Brannon a “time expired” decision stating that the headquarters-level review was 

not able to respond to the claim within 60 days as required under the California 

regulations, and that there would be no further response to Brannon’s grievance. 

See Cal. Code. Regs. tit. 15, §§ 3486(i)(10), 3487(a). As a result, the institutionallevel review decision finding Brannon’s grievance untimely served as the final 

response.

Here, the headquarters-level “time expired” decision did not change the fact 

that Brannon’s grievance was untimely. See id. § 3486(m) (“A claim is not 

exhausted if it was . . . rejected pursuant to subsection 3487(a).”); see also

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“Proper exhaustion demands 

compliance with an agency’s deadlines and other critical procedural rules. . . .”). 

And we have never adopted “a bright-line rule that any delay in a prison’s response 

to an inmate’s grievance is sufficient to render administrative remedies 

unavailable.” Fordley, 18 F.4th at 358. As such, the district court did not err in 

granting summary judgment in favor of Defendants. 

3. We also reject Brannon’s arguments that administrative remedies were 

effectively unavailable due to the threat of retaliation. In his initial grievance, 

Brannon alleged that “[i]t took a while for [him] to bring this to the light due to 

backlash.” In his headquarters-level appeal, Brannon clarified that he “didn’t make 

the time frame” because he “was getting major backlash,” and that he kept “qui[et] 
6 

until [he] felt safe to file paperwork.” But there is nothing in the record to support 

Brannon’s claims that the grievance process was unavailable to him.3 And the 

record shows that Brannon filed other grievances between January 2020 and April 

2021, further undercutting his contentions. 

AFFIRMED.4

3 Specifically, Brannon alleged that officers told him that his grievance forms 

“wouldn’t make it to the appeals office,” and that he “never got a response for any 

paperwork [he] filed.” Brannon also alleged that he “was sexually assaulted after 

he was beaten[] as well as threatened with a life sentence,” that he “tried to kill 

[him]self [and] was transferred” to another prison, that “when [he] spoke up [he] 

was forced to recant,” and that an officer told him that he “was go[ing to] spend the 

rest of [his] life with the blacks as a gay.” But there is no indication in the 

grievance or elsewhere in the record that these threats were related to Brannon’s 

use of the grievance process. See McBride v. Lopez, 807 F.3d 982, 988 (9th Cir. 

2015) (“There is no reason to allow inmates to avoid filing requirements on the 

basis of hostile interactions with guards when the interaction has no apparent 

relation to the use of the grievance system. Hostile interaction, even when it 

includes a threat of violence, does not necessarily render the grievance system 

‘unavailable.’”).

4 Brannon’s motion for a protective order (Dkt. No. 24) is unrelated to this case, 

and is therefore DENIED.