FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES JOHN MCBRIDE,

Plaintiff-Appellant,

v.

S. LOPEZ; R. RUGGLES; M. PEREZ; D.

LOPEZ; S. KOCH; R. ATHEY, Sgt.,

Defendants-Appellees.

No. 12-17682

D.C. No.

1:10-cv-02229-

AWI-BAM

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted

April 13, 2015—San Francisco, California

Filed June 30, 2015

Amended November 24, 2015

Before: Mary M. Schroeder and N. Randy Smith, Circuit

Judges and Roger T. Benitez,

*

 District Judge.

Order;

Opinion by Judge Schroeder

 

* The Honorable Roger T. Benitez, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.
2 MCBRIDE V. LOPEZ

SUMMARY**

Prisoner Civil Rights

The panel amended its prior opinion, filed on June 30,

2015, denied a petition for panel rehearing, denied a petition

for rehearing en banc on behalf of the court, and ordered that

no further petitions shall be entertained. 

The panel affirmed the district court’s order granting

defendants’ motion to dismiss a prisoner civil rights action

for failure to exhaust administrative remedies under the

Prison Litigation Reform Act. 

The panel held preliminarily that although exhaustion

issues must generally be decided on a motion for summary

judgment pursuant to Fed. R. Civ. P. 56, in this case there

was no need for further factual development. The panel

determined that this case turned on the adequacy of the

complaint to establish an objective basis for the plaintiff’s

fear of retaliation. It therefore fell into the category of “rare

cases” noted in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014)

(en banc), where the prisoner’s failure to exhaust is clear

from the face of the complaint and the result would not be

altered by discovery.

The panel held that fear of retaliation may be sufficient to

render an inmate grievance procedure effectively unavailable

and thereby excuse the prisoner’s failure to exhaust

administrative remedies. To determine whether failure to

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MCBRIDE V. LOPEZ 3

exhaust is excusable, the panel approved the test applied by

the Eleventh Circuit in Turner v. Burnside, 541 F.3d 1077,

1084–85 (11th Cir. 2008). Under the test, a prisoner must

provide both a subjective and objective basis for the fear of

retaliation. The panel held that in this case, there was no

objective indication that a reasonable inmate would have

understood the prison guard’s statements to be aimed at

deterring the inmate from filing a grievance. Though the

guards’ statements may have seemed threatening, an inmate

would not have reasonably understood that the guards

intended to retaliate for filing a grievance.

COUNSEL

Tom Wyrwich (argued), Davis Wright Tremaine LLP,

Seattle, Washington, for Plaintiff-Appellant.

Kamala D. Harris, AttorneyGeneral of California, Thomas S.

Patterson, Supervising Deputy Attorney General, Suzanne

Antley (argued) and Neah Huynh, Deputy Attorneys General,

San Diego, California, for Defendants-Appellees.
4 MCBRIDE V. LOPEZ

ORDER

The opinion filed on June 30, 2015 is amended as

follows:

Add the following after the last sentence of the first

paragraph on Slip Op. page 4, line 10:

This case turns on the adequacy of the

complaint to establish an objective basis for

the plaintiff’s fear of retaliation. It therefore

falls into the category of “rare cases” noted in

Albino, where the prisoner’s failure to exhaust

is clear from the face of the complaint and the

result would not be altered by discovery. See

id. at 1169.

Replace the following text on Slip. Op. page 11:

There was no objective indication the guards’

statements were aimed at deterring McBride

from filing a grievance. There is no allegation

or evidence that the guards believed McBride

was contemplating filing a grievance. 

McBride had not asked for materials

necessary to file a grievance or given any

indication to prison officials that he intended

to file a grievance.

With:

There was no objective indication that a

reasonable inmate would have understood the

statements to be aimed at deterring the inmate
MCBRIDE V. LOPEZ 5

from filing a grievance. Though the guards’

statements may have seemed threatening, an

inmate would not have reasonably understood

that the guards intended to retaliate for filing

a grievance.

The panel has voted to deny the petition for panel

rehearing. Judge N.R. Smith has voted to deny the petition

for rehearing en banc, and Judges Schroeder and Benitez have

so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied. Further petitions for rehearing

and rehearing en banc shall not be entertained.

OPINION

SCHROEDER, Circuit Judge:

The Prison Litigation Reform Act (“PLRA”) requires the

exhaustion of available prison administrative remedies before

a prisoner may file suit in federal district court. The

requirement may, however, be excused under certain limited

circumstances where the intervening actions or conduct by

prison officials render the inmate grievance procedure

unavailable. In this case, for the first time in our circuit, we

consider a claim that a threat of retaliatory action by a prison

guard had the effect of rendering the prison grievance system
6 MCBRIDE V. LOPEZ

unavailable so as to excuse the prisoner’s failure to meet the

time limitation for filing a grievance. We join other circuits

in holding that fear of retaliation may be sufficient to render

the inmate grievance procedure unavailable, and we approve

the test applied in the Eleventh Circuit that requires both a

subjective and objective basis for the fear. We hold in this

case that McBride failed to show an objective basis for his

belief that prison officials would retaliate against him for

filing a grievance. We therefore affirm the district court’s

dismissal of the complaint.

We observe as a preliminary matter that we decide this

appeal after our court’s decision in Albino v. Baca, 747 F.3d

1162 (9th Cir. 2014) (en banc), which overruled our prior

circuit practice of deciding exhaustion issues on the basis of

an “unenumerated motion” to dismiss pursuant to Federal

Rule of Civil Procedure 12(b). Id. at 1168. We held that

exhaustion issues must instead generally be decided on a

motion for summary judgment pursuant to Rule 56. Id. 

Albino does not affect our decision in this case because there

is no need for further factual development. This case turns on

the adequacy of the complaint to establish an objective basis

for the plaintiff’s fear of retaliation. It therefore falls into the

category of “rare cases” noted in Albino, where the prisoner’s

failure to exhaust is clear from the face of the complaint and

the result would not be altered by discovery. See id. at 1169.

BACKGROUND

The case arises out of an incident at Pleasant Valley State

Prison in California, where the plaintiff-appellant James

McBride was an inmate. On July 4, 2010, McBride allegedly

began an altercation with guards by throwing an unknown

“burning liquid” in the eyes of one guard, Lopez, after
MCBRIDE V. LOPEZ 7

McBride was told that he and other inmates were to be

housed in a different building. According to McBride,

several guards, including defendants Lopez and Ruggles, then

punched and kicked him repeatedly in the head, causing

bleeding and swelling. The guards stated in their reports of

the incident that they were using appropriate force to subdue

McBride, while McBride claims the force the guards used

was excessive. After the incident, McBride was placed in

administrative segregation or “ad-seg.”

McBride alleges that while he was in ad-seg, defendants

Ruggles and Lopez came by his cell and told him that he was

“lucky” because his injuries “could have been much worse.” 

According to McBride, the guards visited him with similar

comments on a number of occasions. He alleges he

interpreted these statements as threats and did not

immediately file a grievance against the defendants for

excessive force because he feared retaliation.

McBride further alleges that after over two months had

passed he began to fear that if he did not report the earlier

incident he might suffer harm, so he initiated the grievance

process by filing the Inmate/Parolee Appeal Form required

for grievances within the California state prison system. 

McBride filed the form on September 16, 2010,

approximately ten weeks after the incident. The filing was

therefore approximately two months late, since California

prison regulations then required grievances to be initiated

within fifteen days.

The prison’s appeals coordinator denied McBride’s

grievance on October 6, informing him that it was not timely

and that McBride needed to provide an explanation for why

he could not file in a timely fashion. McBride responded on
8 MCBRIDE V. LOPEZ

October 20, explaining that he did not file on time because he

was afraid of retaliation for reporting the incident, due to

threats he had received from Lopez and Ruggles. On October

25, the appeals coordinator again rejected McBride’s

grievance, stating that McBride had failed to provide an

adequate explanation for why he could not timely file.

McBride filed his pro se complaint in federal district

court, pursuant to 42 U.S.C. § 1983, in December 2010,

claiming violation of his Eighth Amendment rights by use of

excessive force in connection with the original altercation. 

He also attached the record of his grievances, including the

explanation he had submitted to the appeals coordinator as to

why he could not timely file.

The district court granted defendants’ motion to dismiss. 

The magistrate judge (in an order adopted by the district

court) first noted that while our court had not considered the

issue, a number of district courts in this circuit have ruled that

threats cannot excuse a failure to exhaust. The order then

reviewed the decisions of other circuits recognizing that

threats can excuse a failure to exhaust. The district court

concluded that even if it were to agree that threats can excuse

a failure to exhaust, the statements by Lopez and Ruggles

were not overtly threatening, but merely stating a fact when

they described McBride as being “lucky” that his injuries

were not worse. McBride appealed, and we appointed

counsel to represent him.

DISCUSSION

The Prison Litigation Reform Act states that “[n]o action

shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a
MCBRIDE V. LOPEZ 9

prisoner . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). This court

has previously emphasized that the PLRA requires only that

a prisoner exhaust available remedies, and that a failure to

exhaust a remedy that is effectively unavailable does not bar

a claim from being heard in federal court. In Nunez v.

Duncan, 591 F.3d 1217, 1225–26 (9th Cir. 2010), the official

rejecting the prisoner’s grievance mistakenly relied on a

particular regulation, and the prison obstructed the prisoner’s

efforts to obtain the regulation, resulting in delay. We held

that the mistake of the prison Warden “rendered [the

prisoner’s] administrative remedies effectively unavailable”

and that the prisoner’s failure to exhaust was therefore

“excused.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813,

823 (9th Cir. 2010), we held that a prison’s improper

screening of a grievance can also render administrative

remedies “‘effectively unavailable’ such that exhaustion is

not required under the PLRA.” Finally, in Albino, 747 F.3d

at 1177, we held that where a jail did not inform a prisoner of

the process for filing a complaint even after repeated

requests, the jail did not prove that there was any realistically

“available” remedy for the prisoner to exhaust.

While we have not yet explicitly addressed whether a

threat of retaliation may be sufficient to render an

administrative remedy “effectively unavailable,” other

circuits have. At least four have recognized that when a

prisoner reasonably fears retaliation for filing a grievance, the

administrative remedyis effectivelyrendered unavailable and

the prisoner’s failure to exhaust excused. See, e.g., Hemphill

v. New York, 380 F.3d 680, 688 (2d. Cir. 2004) (holding that

threats render ordinary grievance procedures effectively

unavailable when they are serious enough to deter “a

similarly situated individual of ordinary firmness”); Kaba v.
10 MCBRIDE V. LOPEZ

Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006) (citing with

approval the objective “ordinary firmness” test from

Hemphill); Turner v. Burnside, 541 F.3d 1077, 1084–85 (11th

Cir. 2008) (holding that remedies “that rational inmates

cannot be expected to use” because of threats are not

available, and adopting a two-part test); Tuckel v. Grover,

660 F.3d 1249, 1254 (10th Cir. 2011) (adopting the two-part

test from Turner).

Our recognition of such an exception today flows from

our prior cases, since we have previously cited with approval

the leading cases from the other circuits. See Sapp, 623 F.3d

at 823 (citing Turner, Kaba, and a case from the Second

Circuit that followed Hemphill); Nunez, 591 F.3d at 1224

(same). Recognizing such an exception therefore is fully

supported by our precedent.

There are important reasons for recognizing such an

exception. The PLRA imposes an exhaustion requirement in

order to give an agency the opportunity to correct its own

mistakes before being dragged into federal court and in order

to promote greater efficiency and economy in resolving

claims. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Requiring

inmates to first exhaust through the prison’s own process

gives inmates an incentive to use the available remedies, i.e.,

to “pursue administrative proceedings that they might

otherwise prefer to skip.” Sapp, 623 F.3d at 823 (citing Ngo,

548 U.S. at 90). At the same time, we must discourage

prisons from actions that might deter prisoners from using

grievance procedures. We therefore allow prison inmates to

bring these claims in federal court when prison officials have

rendered the grievance process effectively unavailable. This

provides an important incentive for the prison: to allow

prisoners to file grievances freely, and without fear of
MCBRIDE V. LOPEZ 11

retaliation. See Turner, 541 F.3d at 1085 (“[Recognizing that

threats can render administrative remedies unavailable] is

beneficial because it reduces any incentive that prison

officials otherwise might have to use threats to prevent

inmates from exhausting their administrative remedies, and

it thereby safeguards the benefits of the administrative review

process for everyone.”).

For these reasons it is now appropriate for our court to

recognize expressly that the threat of retaliation for reporting

an incident can render the prison grievance process

effectivelyunavailable and therebyexcuse a prisoner’s failure

to exhaust administrative remedies. Such recognition is

consistent with the overall aim of the PLRA, and with

providing efficient administration of the prison grievance

system.

When we turn to the question of how to determine when

a failure to exhaust is excusable, we find that the formulation

of the test to determine excusability is not the same 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 generalized one-part test. The

Eleventh Circuit test, later adopted by the Tenth, requires that

two conditions be met: “(1) the threat [of retaliation] actually

did deter the plaintiff inmate from lodging a grievance or

pursuing a particular part of the process; and (2) the threat is

one that would deter a reasonable inmate of ordinary firmness

and fortitude from lodging a grievance or pursuing the part of

the grievance process that the inmate failed to exhaust.” Id. 

By contrast, the Second and Seventh Circuits hold that threats

of retaliation may excuse a failure to exhaust when the threats

are serious enough to deter “a similarly situated individual of
12 MCBRIDE V. LOPEZ

ordinary firmness.” Hemphill, 380 F.3d at 688 (internal

quotation marks omitted).

The Eleventh Circuit’s test is straightforward and

conceptually simple to apply. To show that a threat rendered

the prison grievance system unavailable, a prisoner must

provide a basis for the court to find that he actually believed

prison officials would retaliate against him if he filed a

grievance. If the prisoner makes this showing, he must then

demonstrate that his belief was objectively reasonable. That

is, there must be some basis in the record for the district court

to conclude that a reasonable prisoner of ordinary firmness

would have believed that the prison official’s action

communicated a threat not to use the prison’s grievance

procedure and that the threatened retaliation was of sufficient

severity to deter a reasonable prisoner from filing a

grievance. In oral argument, both parties in the case before

us indicated their satisfaction with the application of the

Eleventh Circuit’s a test. We therefore adopt it.

Applying the subjective prong of the test to McBride’s

case, we consider whether McBride has sufficiently alleged

that he was actually deterred from filing a grievance by the

guards’ threats. Construing the facts in the light most

favorable to McBride, his allegation that he perceived the

statement that he was “lucky,” in that his injuries “could have

been much worse,” to be a threat not to use the prison

grievance system is sufficient to satisfy the subjective prong. 

Given the circumstance that McBride had recently been

beaten by the same guards making the statements, McBride

could have believed the guards bore him considerable

hostility and therefore the statements could be interpreted as

threatening. To the extent the district court ruled to the

contrary, we disagree.
MCBRIDE V. LOPEZ 13

Turning to the objective prong, we conclude that McBride

failed to make the requisite showing. Even if McBride

actuallyviewed the statements as threatening, the issue before

us is whether the guards’ statements could reasonably be

viewed as threats of retaliation if McBride filed a grievance. 

As the district court recognized, the statements themselves

make no reference to a grievance or to anything else, beyond

the preexisting hostility, that might trigger a future attack on

the part of the guards. McBride’s case stands in stark contrast

to the threats made to prisoners in Turner and Hemphill,

which explicitly threatened retaliation if the prisoner used the

prison’s grievance system. See Turner, 541 F.3d at 1081;

Hemphill, 380 F.3d at 684. Although the threat need not

explicitly reference the grievance system in order to deter a

reasonable inmate from filing a grievance, c.f. Brodheim v.

Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), there must be some

basis in the record from which the district court could

determine that a reasonable prisoner of ordinary firmness

would have understood the prison official’s actions to

threaten retaliation if the prisoner chose to utilize the prison’s

grievance system. Only then will the threat render the prison

grievance system effectively unavailable.

There was no objective indication that a reasonable

inmate would have understood the statements to be aimed at

deterring the inmate from filing a grievance. Though the

guards’ statements may have seemed threatening, an inmate

would not have reasonably understood that the guards

intended to retaliate for filing a grievance. The only

potentially relevant fact McBride alleges is that he was

beaten, and that the guards (who beat him) made the

statements. If this fact, standing alone, were sufficient, any

hostile interaction between a prisoner and prison officials

would render the prison’s grievance system unavailable. 
14 MCBRIDE V. LOPEZ

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.”

Accordingly, McBride has failed to demonstrate that the

prison’s grievance system was rendered effectively

unavailable by the conduct of prison officials. Thus, he was

required to exhaust his administrative remedies. By failing to

timely file a grievance, McBride failed to satisfy this

threshold requirement to review of his claims in federal court. 

The district court did not err by dismissing his complaint.

AFFIRMED.