04-6131-pr

Macias v. Zenk

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006 3 (Submitted March 8, 2007 Decided July 26, 2007) 4 Docket No. 04-6131-pr 5

------------------------------------ 6 JUAN EDGAR LOERA MACIAS, 7 Plaintiff

- Appellant , 8

v. 9 MICHAEL ZENK, JOHN ANNESA, STEPHANIE 10 MIDDLETON and JOSEPH PARKER, 11

Defendants

- Appellees
. 12

------------------------------------ 13

B e f o r e: MESKILL, WINTER and STRAUB, Circuit Judges
. 14 15 Appeal from a judgment of the United States District 16 Court for the Eastern District of New York, Trager, J ., entered 17 on July 26, 2004, dismissing pro seprisoner’s Eighth Amendment 18 medical indifference claims against prison officials for failure 19 to exhaust administrative remedies under the Prison Litigation 20 Reform Act, 42 U.S.C. § 1997e(a). 21 Affirmed in part, and vacated and remanded in part. 22 Juan Edgar Loera Macias, Brooklyn, NY, 23 Appellant Pro Se
. 24 Roslynn R. Mauskopf, United States 25 Attorney, Eastern District of New York, 26 Varuni Nelson, Edward Newman, Assistant 27-2- United States Attorneys, Brooklyn, New 1 York, on the brief, 2 for Appellees
. 3 MESKILL, Circuit Judge : 4 Appeal from a judgment of the United States District 5 Court for the Eastern District of New York, Trager, J ., entered 6 on July 26, 2004, dismissing pro seprisoner’s Eighth Amendment 7 medical indifference claims against prison officials for failure 8 to exhaust administrative remedies under the Prison Litigation 9 Reform Act(PLRA), 42 U.S.C. § 1997e(a). 10 Affirmed in part, and vacated and remanded in part. 11 This appeal examines the scope of the PLRA exhaustion 12 requirement. Plaintiff Juan Edgar Loera Macias is a pro se 13 federal prisoner who alleges that Metropolitan Detention Center 14 (MDC) defendants Warden Michael Zenk, Health Service 15 Administrator Stephanie Middleton, Physician Assistant John 16 Annessa, and Corrections Officer Joseph Parker, were negligent 17 and deliberately indifferent to his medical needs in violation of 18 the Eighth Amendment’s proscription on cruel and unusual 19 punishment. Macias filed his pro se42 U.S.C. § 1983 civil 20 action in the United States District Court for the Southern 21 District of New York. His case was transferred to the Eastern 22 District of New York where Judge Trager dismissed Macias’ state 23 law tort and Eighth Amendment claims for failure to exhaust his 24 administrative remedies under the Federal Tort Claims Act (FTCA), 25-3-

28 U.S.C. § 2671 et seq ., and the PLRA
. 1 The district court’s judgment was entered before we 2 decided a series of cases examining the PLRA’s exhaustion 3 requirement. We vacate that judgment in part and remand to the 4 district court to consider whether the threats Macias alleges he 5 received rendered the United States Bureau of Prisons’ (BOP) 6 administrative grievance procedures unavailable to him, or 7 whether those threats estop defendants from raising Macias’ 8 failure to exhaust as an affirmative defense. We affirm the 9 district court’s judgment in all other respects. 10
BACKGROUND 11 For the purposes of this appeal, we discuss the facts 12 as alleged by Macias. Macias entered the MDC on February 16, 13 2002 as a pre-trial detainee. MDC medical personnel examined him 14 on March 15, 2002, March 19, 2002, April 5, 2002 and July 29, 15 2002. At these appointments Macias informed MDC personnel that 16 in 2001 he had undergone arthroscopic surgery on his right knee. 17 On October 8, 2002, while picking up his food tray in his housing 18 unit, Macias slipped and fell on a wet floor resulting in 19 injuries to his right knee, back and head. That same day 20 defendant Annessa examined Macias and prescribed medication and 21 bed rest and ordered an X-ray of his back, hip and right knee. 22 In early December 2002 Macias approached Annessa to request 23 additional pain medication. Annessa refused him and told him 24-4-

that there was nothing further he could do to help him. Macias 1 filed an administrative tort claim shortly thereafter, numbered 2 TRT-NER-2003-00954 and received by the BOP on December 12, 2002, 3 alleging that his injuries were caused by defendants’ negligence, 4 and that 57 days had passed since his injury and he still had not 5 received proper medical care. 6 On January 3, 2003 an MDC physician diagnosed Macias 7 with a right medial collateral ligament tear and ordered an MRI. 8 The results of the MRI indicated that Macias’ knee had a lateral 9 and medial meniscal tear, an anterior collateral ligament tear 10 and degenerative arthritis. After his MRI, Macias was seen 11 several more times by MDC medical personnel. Macias’ pain 12 medication was intermittently discontinued and he had difficulty 13 obtaining additional treatment. 14 On January 24, 2003 defendant Parker denied Macias 15 access to his medication during a cell search causing him to 16 collapse. Parker also denied Macias food by ordering him not to 17 ask other inmates to help him with his lunch tray and by telling 18 him that if he could go to the law library on crutches, he could 19 carry his food tray on crutches. Macias filed an administrative 20 tort claim against Parker on March 13, 2003, numbered TRT-NER21 2003-01619, alleging emotional damages as a result of Parker’s 22 mistreatment. 23 Macias then filed this pro seaction in the United 24-5-

States District Court for the Southern District of New York, 1 alleging that defendants were deliberately indifferent to his 2 medical needs and negligent in causing his injuries and emotional 3 distress. On May 27, 2003 Macias’ lawsuit was transferred to the 4 United States District Court for the Eastern District of New 5 York. While his case was pending Macias filed a motion for a 6 temporary restraining order claiming that the MDC had again 7 discontinued his pain medication, that he reinjured his right 8 knee when his wheelchair collapsed, and that he had not been 9 provided with prescribed rehabilitative physical therapy. Macias 10 asked the district court to order the MDC to reissue his 11 medication and to enjoin the defendants from retaliating against 12 him. 13 The district court construed Macias’ 42 U.S.C. § 1983 14 lawsuit liberally, see McEachinv. McGuinnis , 357 F.3d 197, 200 15 (2d Cir. 2004) (“when [a] plaintiff proceeds pro se. . . a court 16 is obliged to construe his pleadings liberally, particularly when 17 they allege civil rights violations”), and found that Macias had 18 stated Eighth Amendment claims under Bivens v. Six Unknown Named 19 Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), and tort 20 claims under the FTCA. Defendants moved to dismiss the lawsuit 21 pursuant to Fed. R. Civ. P. 12(b)(6) because, inter alia , Macias 22 had failed to comply with the PLRA’s exhaustion requirement 23 before filing both his Bivens claims and his motion for a 24-6-

temporary restraining order, and because he had failed to comply 1 with the FTCA’s exhaustion requirement before filing his tort 2 claims. 3 In a decision entered on July 26, 2004 the district 4 court granted defendants’ motion and dismissed the lawsuit in 5 full. Judge Trager dismissed Macias’ state law tort claims 6 without prejudice because Macias filed his complaint while his 7 two administrative tort claims were pending. The court dismissed 8 Macias’ Eighth Amendment Bivens claims and his motion for a 9 temporary restraining order because Macias had never availed 10 himself of the BOP’s administrative remedy system. 11 On appeal, Macias contends that his Bivens claims 12 should not have been dismissed for failing to comply with the 13 PLRA’s exhaustion requirement because (1) he did not need to use 14 the BOP’s administrative remedy system because the BOP is not 15 authorized to provide some of the relief he seeks, (2) his 16 administrative tort claims and other informal complaints put the 17 prison officials on notice of the nature of his grievance, and 18 (3) defendant Parker’s alleged threats rendered the BOP’s 19 administrative remedy system unavailable to him, or in the 20 alternative, those threats estop defendants from raising his 21 failure to exhaust as an affirmative defense. Macias does not 22 challenge either the dismissal of his tort claims pursuant to the 23 FTCA or the dismissal of his motion for a temporary restraining 24-7-

order. Therefore, our review is limited to the district court’s 1 decision to dismiss Macias’ Bivens claims. For the following 2 reasons, we affirm in part, and vacate and remand in part. 3
DISCUSSION 4 Federal jurisdiction is based on this Bivens action 5 arising under the Eighth Amendment to the United States 6 Constitution. 28 U.S.C. § 1331. We have appellate jurisdiction 7 under 28 U.S.C. § 1291. 8 We review the district court’s dismissal of Macias’ 9 complaint for failure to state a claim de novo“accepting as true 10 all facts alleged in the complaint and drawing all inferences in 11 favor of the plaintiff.” Faulknerv. Beer , 463 F.3d 130, 133 (2d 12 Cir. 2006) (internal quotation marks omitted). 13 The PLRA provides that a prisoner may not bring an 14 action under federal law “with respect to prison conditions . . . 15 until such administrative remedies as are available are 16 exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held 17 that “the PLRA's exhaustion requirement applies to all inmate 18 suits about prison life, whether they involve general 19 circumstances or particular episodes, and whether they allege 20 excessive force or some other wrong.” Porterv. Nussle , 534 U.S. 21 516, 532 (2002). 22 We recently decided a series of cases examining the 23 scope of the PLRA's exhaustion requirement. See Gianov. Goord , 24-8-

380 F.3d 670 (2d Cir. 2004); Abneyv. McGinnis , 380 F.3d 663 (2d 1 Cir. 2004); Johnsonv. Testman , 380 F.3d 691 (2d Cir. 2004); 2 Ortiz v. McBride , 380 F.3d 649 (2d Cir. 2004); Ziembav. Wezner , 3 366 F.3d 161 (2d Cir. 2004); Hemphill v. New York , 380 F.3d 680 4 (2d Cir. 2004). In Hemphill we "read together" Giano , Abney , 5
Johnson , Ortiz and Ziembaand formulated a three-part test: 6 Dependingon the i nmate's explanation for the alleged 7 failureto exhaust, the court must a sk whether 8 administrativereme d ies were in fact available to the 9 prisoner. The court should also inquire as to whether 10 thedefendants may have forfeited the affirmativedefense 11 ofnon-exhaustionby failing toraise or preserve it, or 12 whetherthe defendants' own actions inhibiting the 13 inmate's exhaustion ofremedies may estop one or more of 14 thedefend ants from raising the plaintiff's failure to 15 exhaustas a defense. If the court finds that 16 administrativeremedies were available to the plaintiff, 17 andthat the defendants are not estopped and have not 18 forfeitedtheir non-exhaustion defense, but that the 19 plaintiffnevertheless did not exhaust available 20 remedies, the court should consider whether special 21 circumstances have been plausibly alleged that justify 22 theprisoner's failure to comply with administrative 23 procedural requirements. 24 Hemphill , 380 F.3d at 686 (internal quotation marks and citations 25 omitted). Because the parties did not address Hemphill , we 26 ordered supplemental briefing in this appeal. Macias responded 27 by reiterating his argument that he did not need to use the BOP’s 28 administrative remedy system because the BOP was only authorized 29 to provide some of the relief he seeks. In addition, Macias 30 argued for the first time that under Hemphill he had exhausted 31 his claims by putting prison officials on notice of the nature of 32 his grievance, that the BOP’s administrative remedy system was 33-9-

not available to him, and that defendants should be estopped from 1 raising his failure to exhaust as an affirmative defense. 2 After we received the parties’ supplemental briefs, the 3 Supreme Court decided Woodfordv. Ngo , 126 S.Ct. 2378 (2006). In 4
Woodford , a prisoner argued that his lawsuit was improperly 5 dismissed under the PLRA because the administrative grievance he 6 filed was rejected by the prison authorities as untimely. 126 7 S.Ct. at 2384. The prisoner claimed that he had exhausted his 8 administrative remedies because after the prison rejected his 9 grievance, no other administrative remedies were available. Id
. 10 The Supreme Court rejected this argument explaining that the PLRA 11 requires “proper exhaustion,” meaning that a prisoner must 12 “compl[y] with the system's critical procedural rules” because 13 “[a] prisoner who does not want to participate in the prison 14 grievance system will have little incentive to comply with the 15 system's procedural rules unless noncompliance carries a 16 sanction” and “[t]he benefits of exhaustion can be realized only 17 if the prison grievance system is given a fair opportunity to 18 consider the grievance.” Id . at 2387-88. We now turn to each of 19 Macias’ arguments and, when necessary, we examine Woodford ’s 20
effect on our PLRA decisions. 21
A. Whether Macias’ Failure to Exhaust is Excused by the BOP’s 22 Inability to Provide All of the Relief He Seeks
. 23 Macias seeks $4 million in damages as well as his 24 “immediate and unco[n]ditional . . . release” from prison. In 25-10-

addition, in his motion for a temporary restraining order and in 1 other requests for relief submitted to the district court, Macias 2 asked for various forms of injunctive relief, including more 3 responsive medical care and continuous administration of pain 4 medication. Macias argues that he was not required to use the 5 BOP’s administrative remedy system to exhaust these claims 6 because the BOP is not authorized to award $4 million in response 7 to an administrative grievance. We do not agree with his 8 argument that exhaustion is not required. 9 The BOP has a three-tiered administrative remedy system 10 with the stated purpose of “allow[ing] an inmate to seek formal 11 review of an issue relating to any aspect of his/her own 12 confinement.” 28 C.F.R. § 542.10(a). The first tier requires 13 the inmate to report informally the issue to the staff, the 14 second tier requires the inmate to file a written remedy request 15 with the Warden, and the third tier requires the inmate to file 16 appeals with the appropriate Regional Director and then with the 17
General Counsel. See28 C.F.R. §§ 542.13-.15; Johnson , 380 F.3d 18 at 693 (discussing the BOP’s administrative remedy system). 19 It is undisputed that Macias never proceeded beyond the 20 first tier of the BOP’s administrative remedy system. 21 Nevertheless, Macias argues that because the BOP’s administrative 22 remedy system was authorized to provide only some of the relief 23 he sought, he did not need to file a grievance . The Supreme 24-11-

Court squarely addressed and rejected Macias’ argument in Booth 1

v. Churner , 532 U.S. 731 (2001). In Booth , a state prisoner 2 brought a 42 U.S.C. § 1983 lawsuit alleging that corrections 3 officers had violated his Eighth Amendment rights by using 4 excessive force and failing to provide adequate medical care. 5 532 U.S. at 734. The prisoner sought injunctive relief and money 6 damages. Id . The state administrative grievance system did not 7 provide for recovery of money damages. Id . at 741. However, the 8 Supreme Court held that under the PLRA the prisoner was still 9 required to file a grievance and complete all three stages of the 10 state’s grievance system before proceeding to federal court. Id
. 11 Macias seeks both injunctive relief and money damages. 12 There is no question that the BOP could have provided the 13 additional medical care and some of the other relief he seeks by 14 responding to a properly filed administrative grievance. 15 However, like the prisoner in Booth , Macias cannot “skip the 16 administrative process simply by limiting prayers for relief to 17 money damages” regardless of whether the BOP was authorized to 18 provide them. Id .; see also Ruggierov. County of Orange , 467 19 F.3d 170, 177 (2d Cir. 2006) (“[ Booth ] make[s] plain [that under 20 the PLRA] so long as some remedy remains available, failure to 21 exhaust is not excused.”). 22-12-

B. Whether Macias Procedurally Exhausted His Claims By Filing 1 Administrative Tort Claims and Making Informal Complaints to 2 Prison Officials
. 3 Macias filed two administrative tort claims before he 4 filed his complaint in federal court. Taken together, Macias’ 5 tort claims allege that he repeatedly requested medical care for 6 his injuries but the MDC did not provide any, that defendant 7 Annessa refused to provide him with pain medication, that his 8 injuries were getting worse because of the lack of medical care, 9 and that defendant Parker caused him to collapse during a cell 10 search by refusing to allow Macias access to his medication. 11 Macias also alleges that he sent more than 20 sick calls 12 complaining about his lack of medical treatment. Macias argues 13
that under Johnson , his two administrative tort claims and his 14 informal requests for medical attention excuse his failure to 15 exhaust because, although he did not use the BOP’s administrative 16 remedy system, his actions “provide[d] enough information about 17 the conduct of which [he] complain[ed] to allow prison officials 18 to take appropriate responsive measures.” Johnson , 380 F.3d at 19 697. Macias’ reliance on Johnsonis misplaced. 20
In Johnsonwe considered whether a prisoner could 21 satisfy the PLRA’s exhaustion requirement by raising his 22 grievance in the BOP’s disciplinary proceedings and appeals 23 process. 380 F.3d at 694. We remanded the case so that the 24 district court could consider (1) whether under Hemphill , 380 251For this reason, we need not decide what effect Woodford

has on Hemphill ’s holding that where administrative procedures are confusing “a reasonable interpretation of prison grievance regulations may justify an inmate’s failure to follow procedural rules to the letter.” Hemphill , 380 F.3d at 690 (citing Giano ). -13- F.3d 680, and Giano , 380 F.3d 670, the prisoner was justified in 1 believing that his complaints in the disciplinary appeal 2 procedurallyexhausted his administrative remedies because the 3 prison’s remedial system was confusing, and (2) whether the 4 prisoner’s submissions in the disciplinary appeals process 5 exhausted his remedies “ in a substantive sense ” by “afford[ing] 6 corrections officials time and opportunity to address complaints 7 internally.” Johnson , 380 F.3d at 696-98 (emphasis added; 8 alteration omitted). Thus, in Johnsonwe saw the prisoner’s 9 argument as raising two distinct questions -- the former 10 addressed whether the prisoner procedurallyexhausted his claims 11 while the latter addressed whether the prisoner substantively 12 exhausted his claims. 13 Macias does not argue that the BOP’s administrative 14 remedy system was so confusing that he reasonably believed he had 15 satisfied the PLRA’s exhaustion requirement by filing tort claims 16 and by complaining informally to prison staff. 1Instead, Macias 17 argues that he procedurally exhausted his claims because his 18 informal complaints and administrative tort claims put the prison 19 on notice of the nature of his grievance. Macias’ argument 20
conflates Johnson ’s distinction between procedural exhaustion and 21-14-

substantive exhaustion. Regardless of whether his tort claims or 1 informal complaints put the prison officials on notice of his 2 grievance “ in a substantive sense ,” Johnsonmakes clear that to 3 satisfy the PLRA a prisoner must also procedurallyexhaust his 4 available administrative remedies. Johnson , 380 F.3d at 697-98 5 (emphasis added). Because Macias does not argue that the BOP’s 6 administrative remedy system was so confusing that he justifiably 7 believed his administrative tort claims and informal complaints 8 were his only available remedies, Macias has no ground to argue 9 that he procedurally exhausted his claims under Johnson
. See 10
also Woodford , 126 S.Ct. at 2388 (holding that a prisoner must 11 procedurally exhaust his claims by “compl[ying] with the system's 12 critical procedural rules”). 13 Furthermore, while our decision in Brahamv. Clancy , 14 425 F.3d 177, 183 (2d Cir. 2005), might have provided some 15 support for Macias’ argument that he procedurally exhausted his 16 claims by providing enough information about his grievance to 17 allow prison officials to take responsive measures, we conclude 18
that Brahamdoes not survive Woodford . In Braham , a pro se 19 prisoner alleged that prison officials violated his Eighth 20 Amendment rights by refusing to grant his request for a cell 21 change. 425 F.3d at 179. The district court dismissed the 22 prisoner’s lawsuit under the PLRA for failure to exhaust 23 administrative remedies. Id . at 181. On appeal, the prisoner 24-15-

admitted that he had never filed a formal administrative 1 grievance, but argued that he had satisfied the PLRA’s exhaustion 2 requirement by submitting several inmate request forms and by 3 complaining informally to prison staff during a disciplinary 4 proceeding. Id . at 183. We remanded the case for the district 5 court to consider whether the prisoner’s inmate request forms or 6 the complaints he made during the disciplinary proceeding 7 “provided sufficient notice to the prison officials ‘to allow 8 [them] to take appropriate responsive measures.’” Id . at 183 9 (quoting Johnson , 380 F.3d at 697) (alteration omitted). 10
Brahamexpanded Johnsonby allowing prisoners to 11 procedurally exhaust their claims by taking “‘enough’” informal 12 steps “‘to put prison officials on notice’” of their concerns, 13 regardless of whether they utilize the prison’s formal grievance 14 procedures. Braham , 425 F.3d at 183 (quoting Johnson , 380 F.3d 15 at 696). However, after Woodford , notice alone is insufficient 16 because “[t]he benefits of exhaustion can be realized only if the 17 prison grievance system is given a fair opportunity to consider 18 the grievance” and “[t]he prison grievance system will not have 19 such an opportunity unless the grievant complies with the 20 system's critical procedural rules. ” Woodford , 126 S.Ct. at 21 2388. Macias did not comply with the BOP’s critical procedural 22 rules, and under Woodford , he cannot satisfy the PLRA’s 23 exhaustion requirement solely by filing two administrative tort 24-16-

claims, or by making informal complaints to the MDC’s staff. 1 “[A]lert[ing] the prison officials as to the nature of the wrong 2 for which redress is sought,” Braham , 425 F.3d at 184 (internal 3 quotation marks omitted), does not constitute “proper exhaustion” 4
under Woodford
. See Woodford , 126 S.Ct. at 2388. Therefore, to 5
the extent that Brahamallowed for less than “proper exhaustion” 6 of claims under the PLRA, Brahamhas been overruled
. 7
C. Whether the Threats Macias Alleges He Received Rendered the 8 BOP’s Administrative Remedies Unavailable, or Whether Those 9 Threats Should Estop Defendants From Raising the Affirmative 10 Defense of Non-exhaustion
. 11 Macias alleges in his complaint that on January 24, 12 2003 defendant Parker denied Macias access to his medication 13 during a cell search causing him to collapse. Macias also 14 alleges that Parker denied him food by ordering him not to ask 15 other inmates to help him with his lunch tray and by telling him 16 that if he could go to the law library on crutches, he could 17 carry his food tray on crutches. In response to our order to 18 provide supplemental briefing discussing the impact Hemphill and 19
Johnsonhad on his case, Macias argued for the first time that 20 Parker threatened him during the course of the January 24 21 incident and that these threats, under Hemphill , rendered his 22 administrative remedies unavailable, or in the alternative, that 23 those threats estop defendants from raising the affirmative 242 We consider Macias’ argument regarding Parker’s alleged

threats, which he did not raise before the district court, because we decided Hemphill after the district court issued its decision, and in the proceedings below Macias “justifiably tried to counter the arguments defendants made and did so on the basis of the law as it was then established.” Hemphill , 380 F.3d at 688. -17- defense of non-exhaustion. 2 1 When the district court dismissed Macias’ suit we had 2 not decided Hemphill , 380 F.3d 680, and we had only recently 3 decided Ziemba , 366 F.3d 161. These two cases considered the 4 effect that prison officials’ threats might have on the PLRA’s 5 exhaustion requirement. In Hemphill , the prisoner filed suit 6 under 42 U.S.C. § 1983 alleging that prison administrators denied 7 him medical attention in violation of the Eighth Amendment. 380 8 F.3d at 681. The prisoner also claimed that he had been 9 threatened by corrections officers and beaten prior to filing his 10 complaint. Id . at 684. The district court dismissed the 11 prisoner's suit in its entirety for failure to procedurally 12 exhaust his medical indifference claim. Id . at 682. On appeal, 13 the prisoner argued that his failure to exhaust should be excused 14 because the threats he endured rendered "procedures that would 15 ordinarily be available . . . effectively unavailable." Id . at 16 687. We remanded the case because “[a]s a court of appeals 17 dealing with a limited record” we could not say “whether some 18 seemingly available remedies were rendered unavailable by the 19 threats Hemphill received.” Id . at 688. 20-18- As in Hemphill , here we also cannot determine whether 1 the remedies offered to Macias were rendered unavailable by 2 Parker’s alleged threats , or whether some of the MDC defendants 3 should be estopped from asserting non-exhaustion as a defense. 4 Hemphill , 380 F.3d at 688-89; see also Ziemba , 366 F.3d at 163 5 (holding that a defendant’s exhaustion defense is subject to 6 estoppel where a prisoner claimed that he was beaten, threatened, 7 and denied grievance forms and writing materials). However, 8 because Macias alleges that Parker did not threaten him until 9 January 24, 2003, even if Macias can establish that he was 10 threatened, those threats are only relevant to events that 11 occurred after January 4, 2003. Macias could not have been 12 deterred, and defendants should not be estopped, for earlier 13 conduct that did not impact his ability to file a timely 14 grievance. See28 C.F.R. § 542.14(a) (a formal administrative 15 remedy must be submitted to the warden within 20 days of the 16 event complained of). 17
D. Whether the District Court’s Judgment Should be Affirmed on 18 Alternative Grounds Presented to But Not Reached by the 19 District Court
. 20 Defendants contend that we should affirm the district 21 court’s judgment on grounds that were presented to but not 22 reached by the district court, arguing that Macias failed to 23 state an Eighth Amendment claim for medical indifference and that 24 some defendants are entitled to qualified immunity or absolute 25-19-

immunity. However, at this stage in the proceedings, and taking 1 all of Macias’ factual allegations as true and drawing all 2 reasonable inferences in his favor, see Faulkner , 463 F.3d at 3 133, we cannot say at this time that defendants were immune from 4 suit or that Macias has failed to state a Bivens claim. 5 Therefore, we must leave the resolution of these issues in the 6 first instance to the district court on remand. 7
CONCLUSION 8 For the foregoing reasons, the judgment of the district 9 court is affirmed in part, vacated in part, and the case is 10 remanded for further proceedings. On remand the district court 11 should consider whether the BOP’s administrative procedures were 12 rendered unavailable by Parker’s allegedly threatening behavior. 13 “The test for deciding whether the ordinary grievance procedures 14 were available must be an objective one: that is, would a 15 similarly situated individual of ordinary firmness have deemed 16 them available.” Hemphill , 380 F.3d at 688 (internal quotation 17 marks omitted). The district court should also consider whether 18 the MDC defendants’ non-exhaustion defense is barred by equitable 19 estoppel and “depending on the facts pertaining to each 20 defendant, it is possible that some individual defendants may be 21 estopped, while others may not be.” Id . Of course, we take no 22 position on whether Macias can establish that his remedies were 23 rendered unavailable or whether some of the MDC defendants should 24-20-

be estopped from asserting non-exhaustion. We affirm the 1 district court’s judgment in all other respects. 2