F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A M E S J O H

N M C B R

I D E , Plaintiff-Appellant
,

v

.

S. L O P E Z ; R. R

U G G L E S ; M. P E R

E Z ; D. L O P E Z ; S. K O C H ; R. A T H E Y , Sg t.,

Defendants-Appellees

. N o. 12-17682

D.C. No. 1:10-cv-02229- AW I -B AM

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

Arg ued and Submitted April 13, 2015—San F rancisco, California

F iled J une 30, 2015 Amended November 24, 2015

B efore: Mary

M. Schroeder and N. Randy Smith, Circuit J udg es and Rog er T. B enitez
, * District J udg e.

Order; Opinion by

J udg e Schroeder

* T h e H o n o rab le Ro g er T

. Ben itez, District J u d g e f or th e U.S. District Co u rt f o r th e So u th ern District o f Calif o rn ia, sittin g b y

d esig n atio n

.M C B R I D E V

. L O P E Z 2

SUMMARY * *

P risoner Civil Rights

The p anel amended its prior opinion, filed on J une 30, 2015, denied a petition for panel r ehearing
, denied a petition for rehearing en b anc on behalf o f the court, and ordered that no further petitions shall be entertained.

The panel affirmed t h e district court’s order g ranting defendants’ motion to dismiss a prisoner civil rig hts action for failure to ex haust a dmin i strative remedies under the Prison L itig ation Reform Act.

The panel held p reliminarily that a l thoug h e x haustion issues must g e nerally b e decided on a mo t i on for summary judg ment pursuant to F ed. R. Civ. P. 56, in this cas e there

was no need for further factual development. The panel d e t e rm ined that this case turned on the adequacy of th e complaint to establish an objective basis for the plaintiff’s fear of retaliation. I t therefore fell into the categ ory of “rare cases” noted in Albino v. Baca
, 747 F .3d 1162 (9th Cir. 2 014) (en banc), where the p risoner’s f ai l u r e t o e x haust is clear from the face of the complaint a nd the r e sult would not be altered by discovery

.

The p anel h e l d that fear of retaliation may be sufficient to render an inmate g rievance procedure effectively unavailable and thereby ex cuse the prisoner’s f a i l u re to ex haust administrative remedies. To determine whether failure to

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M C B R I D E V

. L O P E Z 3

ex h aust is ex c usa b l e , the panel a pproved the test applied b y the Eleventh Circuit in Turner v. Burnside
, 541 F .3d 1077, 1 0 8 4 –85 (11th Cir. 2 008). Under the test, a p risoner m u s t provide both a subjective a nd objecti v e basis for the fear o f

r e t a l iation. The panel held that in this case, there w as n o

o b jective indication that a reasonable inmate w ould have understood the prison g uard’s statements to be aimed at deterring the inmate from f i l i n g a g rievance. Thoug h the
g uards’ statements may have s e emed threatening
, an inmate would not have r e a s onably understood that the g uards intended to retaliate for filing a g rievance.

COUNSEL

Tom W y r wich (arg

ued), Davis W r ig ht Tremaine L L P, Seattle, W ashing ton, for Plaintiff-Appellant.

Kamala D. H arris, Attorney General o f California, T h omas S. P at terson, Supervising D eputy Attorney General, Suz ann e Antley (arg

ued) and N eah Huy

nh, Deputy Attorney s General, San Dieg o, California, for Defendants-Appellees.M C B R I D E V

. L O P E Z 4

ORDER

The opi n ion filed o n J une 30, 2015 is amended a s follows:

Add the fo l lowing after the last sentence of the first
parag raph on Slip Op. pag e 4, line 10:

This case t urns o n the adequacy o f the complaint to establish an object i v e basis for the plaintiff’s f

e a r of retaliation. I t therefore falls into the categ ory o f “rare cases” noted in Albino
, where the prisoner’s failure to ex haust is clear from the face of the complaint and the result would not be a ltered by discovery

. See id. at 1169.

Replace the following

tex t on Slip. Op. pag e 11:

There was no objective indication the g uards’
statements w ere aimed a t deterring Mc B ride from filing a g rievance. There is no alleg ation

or evidence that the g uards believed McB ride

was contemplating f

i ling a g rievance. McB ride had not asked for materials
necessary to file a g rie vance or g iven any indication to prison officials that he int ended to file a g rievance.

W ith:

There was no objective i n d ication that a reasonable inmate would have understood the
statements to be aimed at deterring the inmateM C B R I D E V

. L O P E Z 5

from f iling a g rievan ce. Thoug h the g uards’
statements may have seemed threatening
, an inmate would not have reasonably understood that the g uards intended to retaliate f o r f iling
a g rievance.

The panel has v oted to deny the petition f or panel rehearing

. J udge N

. R

. Smith h as voted to deny the petition for rehearing e n b anc, and J udg es Schroeder and B enitez have so recommended.

The full court h as been advised of t he petition for rehea ri n g e n b anc and no judg e has requested a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition f

or panel rehe a ring and the petition for rehearing e n banc are denied

. F urther petitions for rehearing and rehearing

en banc shall not be entertained.

OP INION

SCHROEDER, Circuit J udg e:

The Prison L itig ation Reform Act (“PL RA”) requires the

ex h austion of a

v ailable prison a dministrative remedies before

a prisoner may file suit i n f ederal d istrict court. The requirement may , however, be ex cused under certain limited circums t a n ce s where the intervening actions or conduct b y prison officials render the inmate g ri evance procedure unavailable. I n this case, for the first time in our circuit, we consider a claim that a threat of retaliatory action by a prison
g uard had the effect o f rendering the prison g rievance sy stemM C B R I D E V

. L O P E Z 6

unavailable so as to ex cuse the prisoner’s failure to meet the time limitation for filing a g r ievance. W e join other circuits in holding that fear of retaliation may be sufficient to render the inmate g rievance procedure unavailable, and we approve the test applied in the Eleven t h C i r c u it that requires both a subjective and objectiv e b a s i s f or the fear. W e hold in this

case that McB ride f

ai l e d to show an o bjective basis for his belief that prison officials w ould retalia te ag ainst h im for fi l i n g a g rievance. W e therefore affirm the district court’s dismissal of the complaint.

W e o bserve as a preliminary matter that we decide th i s appeal after our court’s decision in Albino v. Baca
, 747 F .3d 1162 (9th Cir. 2014) (en banc), w h i c h overruled our prior circuit practice of deciding ex haustion issues on the basis of

an “unenumerated motion” to d i smiss pursuant to F ederal Rule o f Civil Procedure 12(b). Id. at 11 6 8

. W e held that

ex h austion issues must instead g ener a l l y be decided on a

m o t i o n for summary judg ment pursuant to Rule 56. Id. Albino does n o t affect our decision in this case because there is no need for further factual d evelopment. This case turns on the adequacy of the complaint to establish a n objective basis for the plaintiff’s fear of retaliation. I t therefore falls into the categ ory of “rare cases” noted in Albino
, where the prisoner’s failure to ex haust is clear from the f ace of the complaint a

nd the result would not be altered by discovery

. See id. at 1169.

BACK G ROUND

The c ase a

rises out of a

n incident at Pleasant Valley State Prison in California, where the plaintiff-appellan t J a mes McB ride was an inmate. On J uly 4, 2 010, McB ride alleg edly be g an an altercation with g u ards by throwing an unknown “burnin g liquid” in the ey es of one g uard, L opez , a fterM C B R I D E V

. L O P E Z 7

M c Br ide was told that he and other inmates were to b e housed in a different building

. Acc ording to McB ride, several g u a

rds, including defendants L opez and Rug g les, then
p u n ched and kicked him repeatedly in the head, c au s i n g bleeding and swelling

. The g u ar d s stated in their r eports o f the incident that they were using appropriate force to subdue McB ride, while McB ride claims the force the g uards used

was e x cessive. After the i n c i d ent, McB ride was placed in administrative seg reg ation or “ad-seg .”

McB ride alleg es that while he was in ad-seg
, defendants Rug g les and L opez came by h is cell and told him that h e was “lucky ” because his injuries “could have been much worse.” According to McB ride, the g uards visited him with similar
comments on a number of occasions. He alleg es he interpreted these statements as thr ea t s and did not immediately file a g rievance ag a i n st the defendants for

ex c e ssive force because he feared retaliation.

M c B ride further alleg e s that a fter o v er two months h ad passed he beg an to f

e a r that if h e did n ot report the earlier incident he mig ht suffer harm, so he initiated the g rievance
process by filing the I nmate/Parolee A ppea l Form r equired for g rievances within the California state prison sy stem. McB ride filed the f

o r m on September 1 6, 2010, approx imately ten wee k s a f t er the incident. The filing was therefore approx imately two months late, since California prison reg ulati o n s then required g r ievances to be initiated within fifteen day s.

The prison’s appeals coordinator denied McB ride’s
g rievance on October 6, informing him that it was not timely

a n d that McB ride n eeded to p rovide an ex planation fo r w h y he could not f

ile in a timely f

ashion. McB ride responded onM C B R I D E V

. L O P E Z 8

October 20, ex plaining that he did not file on time because he

was afraid o f retaliation for reporting the incident, d ue to threats he had received from L o pez and Rug g les. On October 25, the appeals c o ordinator ag ain rejected McB ride’s
g rievance, stating that McB ride h ad failed to p rovide a n adequate ex planation for why he could not timely

file.

McB ride filed his pro se c o mplaint in federal district court, pursuant to 42 U.S.C. § 1 9 8 3
, in December 2010, claiming violation of his E ig h th A mendment rig h ts by use o f

ex c e ssive force in connecti o n with the orig inal altercation. He also attached the r e c o r d of his g rievances, including the

ex p lanation he had submitted to the appeals coordinator as to why he could not timely

file.

The district court g ranted defendants’ motion to dismiss. The mag istrate judg e (in an order ad o p ted by the district court) first n oted that while o ur c o u rt had not considered the issue, a number of district courts in this circuit have r uled that threats cannot ex cuse a failure to e x ha u s t

. The order then reviewed the decisions of other circuits r ecog n iz ing that threats can ex cuse a failure to e x haust. The d istrict court concluded that even if it were to ag ree that threats can ex cuse

a failure to ex haust, the statements by L op e z and Rug g les

were not overtly t h r e a tening
, but merely stating a fact when they described McB r ide as being “lucky ” that h i s injuries

were not worse. McB ride a p p ealed, and we appointed counsel to represent him.

D ISCUSSION

The Prison L itig ation Reform Act states that “[ n] o action shall be broug ht with res p e c t t o p rison conditions under section 1983 of this tit l e , o r a ny o ther F ederal law, by aM C B R I D E V

. L O P E Z 9

prisoner

. . . until such administrative remedies as a re available ar e e x h a u sted.” 42 U.S.C. § 1997e(a). This court has previously emphasiz ed that the PL RA requires only that

a p r i s oner e x haust available remedies, and that a failure to

ex h aust a remedy that is e f fectively unavailable does not bar

a claim from being h e a

rd in fede ra l co u r

t. I n Nunez v

. Duncan
, 591 F .3d 1 217, 1225–26 (9th Cir. 2010), the official rejecting the prisoner’s g r i evance mistakenly relied on a particular reg ulation, and the prison obstructed the prisoner’s efforts to obtain th e r e g ulation, resulting in delay

. W e h eld that the mistake of the pri s on W arden “rendered [ the prisoner’s] administrative remedies effectively unavailable” and that the prisoner ’s failure to ex h aust was therefore “ex c used.” I

d

. at 1226. I n Sapp v. Kimbrell
, 623 F .3d 813, 823 (9th Cir. 2010 ), we held that a prison’s improper screening of a g rievance ca n also render administrative remedies “ ‘effectively unavailable’ such that ex h a ustion is
not r equired under the PL RA.” F inally
, in Al b i no , 747 F .3d
at 1 1 77, we held that where a jail did n o t inform a prisoner o f the process f

or filing a c omplaint e ven after repeated requests, the jail did n ot prove that there was any realistically “available” remedy

for the prisoner to ex haust.

W h ile we have n ot y e t ex plicitly addressed whether a threat o f retaliation may b e sufficient to render an administrative remedy “ effectively unavail a b le,” other circuits have. At least f our h ave recog niz ed t h a t w h e n a prisoner r easonably fears retaliation for filing a g rievance, the administrative remedy is effectively rendered unavailable a nd the p risoner’s failure to ex haust ex cused. See, e.g. , Hemphill

v. New Y ork
, 380 F .3d 680, 688 ( 2d. Cir. 2004) (holding that threats render ordinar y grievance procedures effectively unavailab l e w hen they are serious e noug h to deter “a similarly situated individual of ordi nary firmness”); Kaba v

.M C B R I D E V

. L O P E Z 10

Stepp
, 458 F .3d 678, 684–86 ( 7th Cir. 200 6 ) (citing with approval the objective “ordinary firmness” test from Hemphill ) ; Turner v. Burnside
, 5 4 1 F .3d 1077, 1084–85 (11th Cir. 2008) (holding that remedies “ that rational i n m at e s cannot be ex pected to use” because o f threats are not available, and adoptin g a two-part test); Tuckel v. Grover
, 660 F .3d 1249, 1254 (10th Cir. 2 011) (adopting the two-part test from Turner ).

Our recog n ition of such an ex ception today f lows from

our p rior cases, since we have previously cited with approval the leading cases from the o ther c ircuits. See Sapp
, 623 F .3d
at 823 (citi n g Turner
, Kaba
, and a case from the Second Circuit that followed He m p hill ); Nunez
, 591 F .3d at 1224 (same). Recog niz ing such an ex cep t ion therefore is f ully supported by our precedent.

There are i m portant reasons f or recog niz ing such an

ex c e ption. T he PL RA imposes an ex haustion requirement in order to g ive an ag e ncy the opportunit y to correct its o wn mistakes before b eing drag g ed into federal court and in order
to promote g re at e r efficiency and economy in resolving claims. W

oodford v. Ngo
, 548 U.S. 8 1, 89 (2006). Requiring inmates to first ex haust throug h the prison ’ s o w n process g ives inmates a

n incentive to use the available remedies, i.e.,
to “pursue ad m i n istrative proceeding s that they mig ht otherwise prefer to skip.” Sapp
, 623 F .3d at 8 23 (citing Ngo
, 54 8 U. S

. a t 90). At the same time, we must discourag e prisons from a ctions that migh t deter prisoners f r om using
g rievance procedures. W e therefore allow prison inmates to bring these claims in federal court when prison officials have rendered the g r ievance process effectively unavailable. This provides an important inc e n t i v e for the prison: to allow prisoners to file g rievances freely
, and without f e ar o fM C B R I D E V

. L O P E Z 11

retaliation. See Turner
, 541 F .3d at 1085 (“[ Recog niz ing that
t hreats can render administrative remedies unavailable] i s beneficial becaus e i t reduces any incentive that prison officials otherwise mig ht have to use threats to p r event inmates from e x hausting their administrative remedies
, and it thereby safeg

uards the benefits of the a dministrative r eview process for every

one.”).

F or these r e a s o ns it is now appropriate for our court to recog niz e ex pressly that the threat of retaliation for reporting

an incident can rende r the prison g rievance process effectively unavailable a

n d thereby ex cuse a prisoner’s failure
to ex haust administra t ive r emedies. Such r ecog nition is consisten t wi t h the overall a im o f the PL RA, a nd with providing efficient administration of the p r i son g rievance
sy stem.

W h en we turn to the question of how to determine when

a failure to ex haust is ex cusable, we find that the formulation of the test to determine ex cusability is not th e s a m e for all circuits. The Tenth and Eleventh Circuits apply a test that has both subjective and objective components, while the Second and the Seventh have a more g e n e r a liz ed one-part test. The Eleventh Circuit test, later a d o pted by the Tenth, requires that
two c onditions be met: “(1) the threat [ of retaliation] actually did deter the p laintiff inmate f r o m lodg ing a g rievance o r pursuing a p articular part of the process; and (2) the threat is

one that would deter a reasonable inmate of ordinary firmness and fortitude from lodg ing a g rievance or pursuing the p art o f the g rievance process that the inmate f ailed to ex haust.” Id

. B y contrast, the Second and Seventh Circuits hold that threats of r etaliation may ex cuse a failure to ex haust when the threats

are serious enoug h to deter “a similarly situated individual o fM C B R I D E V

. L O P E Z 12

ordinary firmness.” Hemphill
, 380 F .3d a t 6 8 8 (internal quotation marks omitted).

The Eleventh Circuit’s test is straig htforward a nd conceptually simple to a

p ply

. T o show that a threat rendered the prison g rievance sy stem unavailable, a prisoner must provide a basis for the court to find that he actually believed prison o fficials would r etaliate ag a inst him if he filed a g rievance. I f the prisoner makes this showing
, he must then demonstrate that his belief was objectively reasonable. That is, there must b e some basis in the record for the district court to c o n c l ude that a reasonable prisoner o f ordinary firmness would have believed that the prison official’s action communicated a th r e at not to use the prison’s g rievance procedure and that the threatened retaliation was of sufficient severity to d eter a reasona b l e p r isoner from filing a g rievan c e

. I n oral arg ument, both parties in the case before

us indicated their satisfaction w ith the appl i c at i on of the Eleventh Circuit’s a test. W e therefore adopt it.

Apply in g t h e subjective prong of the test to McB ride’s
case, we consider whether McB ride has sufficiently alleg ed that he w as a ctually deterr ed from filing a g rievance by the
g uards’ threats. Construing the facts in the lig ht mo s t favorable to McB ride, his a lleg ation that he perceived the
statement that h e was “lucky ,” in that his injuries “could have been much worse,” to be a threat n ot to use the p rison
g rievance sy stem is sufficient to satisfy the subjective p rong

. Given the circumstance that McB ride ha d recently been beaten by the sa m e guards making the statements, McB ride could have believed the g uards b ore him considerable hostility and therefore the statements could be interpreted a s t h r e a t e n ing

. To the ex tent the d istrict court ruled to the contrary , we disag ree.M C B R I D E V

. L O P E Z 13

Turning to the objective prong , we conclude that McB ride failed to make the requisite showing. E v e n if McB ride actually viewed the statements as threatening
, the issue before

us is whether the g uards’ statements c ould reasonably be viewed as threats of retaliation if McB ride filed a g rievance. As the district court r e cog niz e d, the statements themselves make no reference to a g r ievance or to any thing e lse, bey ond the preex isting hostility
, that mig ht trig g er a future attack on the part of the g uards. McB ride’s case stands in stark contrast to the threa t s m a d e to prisoners in Turner and H emphill
, which ex plicitly threatened retaliation if the prisoner used the prison’s g rievance sy stem. See T u r n er , 541 F .3d at 1081; Hemphill
, 380 F .3d at 6 8 4. Althoug h the threat need not

ex p licitly reference the g ri evance sy stem in order to deter a reasonable inmate from filing a g rievance, c.f. Brodhe i m v

. Cry
, 584 F .3d 1262, 1270 (9th Cir. 2009), there must be some basis in the record from which t h e district court could determine that a reasonable prisoner o f o r dinary firmness would have understood the prison official’s act i o n s to threaten r e taliation if the prisoner chose to utiliz e the p rison’s
g rievance sy stem. Only then will the threat render the prison
g rievance sy stem effectively unavailable.

There was no objective indication tha t a r easonable inmate would h ave understood the statements to be aimed at deterring the inmate from filing a g r ievance. T h o u gh the
g uards’ statements may have seemed threatening, an inmate would n o t have reasonably understood that the g uards intended to retaliate for filing a g rievance. The only potentially r ele vant fact McB ride alleg es is that he was beaten, and that the g uard s (w ho beat him) made the
statements. I f this fact, standing alone, were sufficien t , any h ostile interaction between a prisoner and prison officials would render the prison’s g r ievance sy stem unavailable.M C B R I D E V

. L O P E Z 14

There is no reason to allow inmates to a void filing requirements on the basis of hostile interactions with g uards when the interaction has n o apparent relation to the use of the
g rievance sy stem. H ostile interaction, even when it includes

a threat of violence, does not necessarily render the g rievance
sy stem “unavailable.”

According ly
, McB ride has failed to demonstrate that the prison’s g rievance sy stem was rendere d effectively unavailable by the conduct of prison officials. Thus, he was required to ex haust his a dministrative remedies. B y failing to timely file a g rievance, McB ride failed to satisfy this threshold requirement to r eview o f his claims in federal court. The district court did not err by dismissing his complaint.

AF F IRMED

.