403 F.3d 620 (9th Cir. 2005), 03-16042, Ngo v. Woodford

Docket Nº:03-16042.
Citation:403 F.3d 620
Party Name:Viet Mike NGO, Plaintiff-Appellant, v. Jeanne S. WOODFORD, Warden; A.P. Kane, Defendants-Appellees.
Case Date:March 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 620

403 F.3d 620 (9th Cir. 2005)

Viet Mike NGO, Plaintiff-Appellant,


Jeanne S. WOODFORD, Warden; A.P. Kane, Defendants-Appellees.

No. 03-16042.

United States Court of Appeals, Ninth Circuit.

March 24, 2005.

Argued and Submitted Aug. 13, 2004

Page 621

Meir Feder, Jones Day, New York, NY, for the plaintiff and appellant.

Jennifer Perkell, Deputy Attorney General, San Francisco, CA, for the defendants and appellees.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-01-20674-JF.

Before: PREGERSON and KOZINSKI, Circuit Judges, and RHOADES, SR.,[*] District Judge.

PREGERSON, Circuit Judge.

We are asked to determine whether the district court properly dismissed a prisoner's complaint for failing to exhaust all

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available administrative remedies as required by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.), even though the prisoner's administrative appeal was deemed time-barred and no further level of appeal remained in the state prison's internal appeals process. This is an issue of first impression in our Circuit. We have jurisdiction under 28 U.S.C. § 1291, and reverse.

I. Background

Viet Mike Ngo is currently serving a life sentence at Avenal State Prison in California. Previously, Ngo was incarcerated at San Quentin State Prison. While at San Quentin, Ngo was placed in administrative segregation on October 26, 2000, as punishment for alleged "inappropriate activity" with volunteer Catholic priests. In December 2000, Ngo was placed back in the general prison population. As a condition of his release from administrative segregation, Ngo was restricted from participating in "special programs," such as evening fellowship and Bible study sessions. The prison also prohibited Ngo from corresponding with a former San Quentin Catholic Chapel volunteer.

On June 18, 2001, Ngo appealed the disciplinary action. The prison's Appeals Coordinator rejected Ngo's appeal as time-barred because Ngo had not filed his appeal within fifteen working days of "the event or decision being appealed." See Cal.Code Regs. tit. 15, § 3084.6(c); see also id. §§ 3084.3(c)(6), 3084.5(a)(1). Six days after the rejection, Ngo filed a second grievance contending that his appeal was in fact timely. Ngo claimed that because he was appealing the continuing nature of his punishment, there were a series of continuing violations, and his appeal should not be time-barred. The Appeals Coordinator again rejected his appeal on the same untimeliness ground.

After the prison's Appeals Coordinator rejected Ngo's appeal, Ngo filed this action in district court under 42 U.S.C. § 1983. Ngo claimed that the restrictions on his participation in "special programs" violated his First Amendment rights to free speech and the free exercise of his religion. Ngo also asserted that the restrictions lessened the possibility that he would become eligible for parole. Finally, Ngo alleged that the prison officials defamed him by alleging that he had "engaged in sexual relationships with Catholic volunteer priests."

The district court granted the defendants' motion to dismiss Ngo's complaint. The court ruled that Ngo failed to exhaust all of his administrative remedies as required by the Prison Litigation Reform Act ("PLRA") before seeking relief in federal court. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under[§ 1983] ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."). In addition, the district court found that there were no extraordinary circumstances to excuse Ngo from exhausting his administrative remedies. Ngo now appeals the district court's order dismissing his complaint.

II. Discussion

A. Standard of Review

We review a district court's determination that a prisoner failed to exhaust administrative remedies de novo, and factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003).

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The National Association of Attorneys General solicited lists of outrageously frivolous lawsuits from its members to catalyze the enactment of the PLRA. See Hon. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 Brook. L.Rev. 519, 520 (1996). Shortly after these lists of frivolous suits were distributed to media and Congress, the PLRA was attached as a rider to an omnibus appropriations bill and signed into law. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321 (1996).

The PLRA significantly altered how and when prisoners could file suits in federal courts to challenge the conditions of their confinement. Despite the PLRA's impact on more than a million prisoners, hardly any legislative history exists behind its enactment. See 142 Cong. Rec. S2285-02 at S2296 (daily ed. Mar. 19, 1996) (statement of Sen. Kennedy) ("[T]he PLRA was ... never the subject of a committee mark-up, and there is no Judiciary Committee report explaining the proposal. The PLRA was the subject of a single hearing in the Judiciary Committee, hardly the type of thorough review that a measure of this scope deserves."); id. at S2297 (statement of Sen. Simon) ("I am very discouraged that this legislation was considered as one of many issues on an appropriations bIll. Legislation with such far reaching implications certainly deserves to be thoroughly examined by the committee of jurisdiction and not passed as a rider to an appropriations bIll.").

Overall, the PLRA was intended to reduce judicial micro management of correctional facilities and to respond to what was perceived as a flood of frivolous lawsuits filed by prisoners.1 See 141 Cong. Rec. S14611-01 at S14626 (daily ed. Sept. 29, 1995) (statement of Sen. Dole) (stating that the amendment would put an end to "inmate litigation fun-and-games" and restrain micromanagement of state and local prison systems). To achieve these goals, the PLRA erected procedural hurdles designed to filter out frivolous prisoner claims. See, e.g., id. at S14627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch) ("Indeed, I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised. The legislation will, however, go far in preventing inmates from abusing the Federal judicial system."). Even so, this was a dramatic departure from established Supreme Court precedent. Compare Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (declaring that inmates "are not held to any stricter standard of exhaustion [of remedies]" than other civil rights litigants), with id. § 1997e(a).

The procedure at issue in the present case is the PLRA's exhaustion requirement. This requirement prohibits prisoners from bringing suits in district court before first exhausting all available administrative

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remedies. See 42 U.S.C. § 1997e(a).

During congressional hearings, the Department of Justice declared that the PLRA would make the exhaustion requirement applicable to prisoners consistent with other exhaustion requirements. The PLRA was to "strengthen[ ] the administrative exhaustion rule in this context-and bring[ ] it more into line with administrative exhaustion rules that apply in other contexts-by generally prohibiting prisoner § 1983 suits until administrative remedies are exhausted." Prison Reform: Enhancing the Effectiveness of Incarceration: Hearings on S. 3, S. 38, S. 400, S. 866, S. 930, H.R. 667 Before the Senate Comm. on the Judiciary, 104th Cong. 20-21 (1995) (statement of Associate Attorney General John R. Schmidt).

In short, administrative exhaustion rules have two principal purposes. See McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (superseded by amendment of § 1997e(a)). The first is to protect an administrative agency's authority by giving the agency the first opportunity to resolve a controversy before a court intervenes in the dispute. See id. The second is to pro mote judicial efficiency by either resolving the dispute outside of the courts, or by producing a factual record that can aid the court in processing a plaintiff's claim. Id. at 145-46, 112 S.Ct. 1081.

C. Ngo Exhausted All Available Administrative Remedies as Required by the PLRA

To appeal a state prison's administrative decision, a California inmate must go through a four-step process.

Step 1: With exceptions not relevant here, within fifteen working days of "the event or decision being appealed," the inmate must first file an "informal" appeal, whereby "the appellant and staff involved in the action or decision attempt to resolve the grievance informally." See Cal.Code Regs. tit. 15, §§ 3084.5(a), 3084.6(c).

Step 2: Following rejection of the informal appeal, an inmate may file a first formal appeal with the prison's Appeals Coordinator within fifteen working days. See id. §§ 3084.5(b), 3084.6(c). The Appeals Coordinator, charged with screening and categorizing appeals, "may" reject appeals if "[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Id. § 3084.3(c)(6). The regulations do not provide for review of an appeal at a higher administrative level if it has first been rejected on this procedural ground. See id. § 3084.3. But the prisoner may file a challenge with the Appeals Coordinator if he feels that the procedural ground was inaccurate. See id.

Steps 3 and 4: The second formal appeal is reviewed by the institution's head or regional parole...

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