747 F.3d 1162 (9th Cir. 2014), 10-55702, Albino v. Baca

Docket Nº:10-55702
Citation:747 F.3d 1162
Opinion Judge:W. FLETCHER, Circuit Judge:
Party Name:JUAN ROBERTO ALBINO, Plaintiff-Appellant, v. LEE BACA, Los Angeles County Sheriff; LOS ANGELES COUNTY, Defendants-Appellees
Attorney:Andrea Renee St. Julian (argued), San Diego, California, for Plaintiff-Appellant. James C. Jardin (argued), Melinda W. Ebelhar, Catherine M. Mathers, Christian E. Foy Nagy, Collins Collins Muir & Stewart LLP, South Pasadena, California, for Defendants-Appellees.
Judge Panel:Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, Kim McLane Wardlaw, William A. Fletcher, Richard C. Tallman, Jay S. Bybee, Milan D. Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher. N.R. SMITH, Circuit Judge,...
Case Date:April 03, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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747 F.3d 1162 (9th Cir. 2014)

JUAN ROBERTO ALBINO, Plaintiff-Appellant,

v.

LEE BACA, Los Angeles County Sheriff; LOS ANGELES COUNTY, Defendants-Appellees

No. 10-55702

United States Court of Appeals, Ninth Circuit

April 3, 2014

Argued and Submitted En Banc, Seattle, Washington: June 27, 2013.

Petition for certiorari filed at, 07/02/2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:08-cv-03790-GAF-MLG. Gary A. Feess, District Judge, Presiding.

Andrea Renee St. Julian (argued), San Diego, California, for Plaintiff-Appellant.

James C. Jardin (argued), Melinda W. Ebelhar, Catherine M. Mathers, Christian E. Foy Nagy, Collins Collins Muir & Stewart LLP, South Pasadena, California, for Defendants-Appellees.

Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, Kim McLane Wardlaw, William A. Fletcher, Richard C. Tallman, Jay S. Bybee, Milan D. Smith, Jr., Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher. N.R. SMITH, Circuit Judge, joined by TALLMAN and IKUTA, Circuit Judges, dissenting.

OPINION

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W. FLETCHER, Circuit Judge:

Juan Roberto Albino brought suit against Los Angeles County Sheriff Lee Baca, several Doe defendants, and Los Angeles County, alleging violations of 42 U.S.C. § 1983, as well as several state laws, arising out of injuries Albino suffered while confined in Los Angeles County jail. Albino's claims are subject to the Prison Litigation Reform Act (" PLRA" ), which requires that a prisoner challenging prison conditions exhaust available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). Defendants moved for summary judgment based, inter alia, on Albino's alleged failure to exhaust. The district court granted the motion, dismissing Albino's federal claims without prejudice. The court also dismissed his state claims without prejudice. See 28 U.S.C. § 1367(c). We reverse.

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First, although it may be more a matter of a change of nomenclature than of practical operation, we overrule Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), in which we held that a failure to exhaust under § 1997e(a) should be raised by a defendant as an " unenumerated Rule 12(b) motion." We conclude that a failure to exhaust is more appropriately handled under the framework of the existing rules than under an " unenumerated" (that is, non-existent) rule. Failure to exhaust under the PLRA is " an affirmative defense the defendant must plead and prove." Jones v. Bock, 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.

Second, we hold that Albino has satisfied the exhaustion requirement of § 1997e(a). Defendants have failed to prove that administrative remedies were available at the jail where Albino was confined. Because no administrative remedies were available, he is excused from any obligation to exhaust under § 1997e(a). We therefore direct the district court to grant summary judgment to Albino on the issue of exhaustion.

I. Background and Proceedings Below

Albino proceeded pro se in the district court. The following narrative is based largely on the evidence submitted to the district court by both parties. It is based partly on allegations in Albino's verified first amended complaint that are uncontradicted by evidence in the record. Except where otherwise noted, the narrative is based on undisputed evidence.

Glendale Police officers arrested Albino for rape under California Penal Code § 261(a)(1). He was not arrested for a sexual crime against a minor. After his arrest, Albino was brought to the Los Angeles County Men's Central Jail. He alleges that when he arrived at the jail on May 11, 2006, deputies refused to place him in protective custody. Instead, they placed him in the general population of a high-medium security housing unit. Albino is 5 feet 3 inches tall. At the time, he weighed 123 pounds.

Albino alleges in his complaint that on June 16, 2006, an inmate approached him and said, " [T]he deputy said you committed sex acts with children." A group of several inmates then attacked Albino, beating him unconscious, cutting him severely, and raping him. Albino reported the assault to Deputy Jaquez, who wrote up an " Incident Report" dated June 17. Despite the one-day disparity in dates, it is clear that Albino's complaint and Deputy Jaquez's report deal with the same incident. Deputy Jaquez wrote that Albino " was holding a white piece of cloth over his right jaw and was bleeding profusely. He also had multiple cuts and redness throughout his entire facial area and he complained of pain to his face." Albino had " two lacerations approximately 6 [inches] in length across the side of his right cheek. . . . He also had multiple cuts and redness around his right eye." The lacerations were deep cuts in the form of a cross. Albino also suffered broken teeth, broken ribs, a broken shoulder, and damage to his hip.

Deputy Jaquez wrote in his report that Albino recounted to him that he had told several inmates that he was in jail for rape, but that it had been his partner who

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had raped a sixteen-year-old girl. Deputy Jaquez identified Albino's attackers, including an inmate named Rodriguez. Deputy Jaquez wrote that he spoke to Rodriguez, who admitted to having been one of those who had beaten Albino. Deputy Jaquez wrote that Rodriguez told him that " Albino . . . came in last night bragging about that he had raped a girl."

Albino was taken to the hospital for treatment. When he returned from the hospital, Albino again asked to be placed in protective custody. He states in a declaration, " After the first attack, I pleaded with many staff members for help but the only thing anyone told me was; it is your attorneys [sic] job to protect me." Albino states in another declaration:

Of the ap[p]rox. 10 or so times plaintiff begged defendant custodial deputies to be placed in segregation or for the[m] to help me, defendants[] responded that it was my attorney's job to protect me. As these were sworn peace officers, I was of the belief that I had to seek my trial attorney's help.

Despite Albino's pleas, deputies did not place him in protective custody upon his return from the hospital. Instead, they placed him in a different general-population housing unit. Sometime in mid-July, two inmates in the new unit attacked Albino, punching and kicking him " numerous times." Albino reported this second attack to Deputy Espinosa. This time Albino did not identify his attackers. In his " Incident Report," Deputy Espinosa wrote, " Swelling under his left eye, swelling to his left side of his forehead, and swelling to his right temple." Albino was taken to the jail clinic rather than the hospital. He alleges in his complaint that some of the wounds from the first attack had been opened, and that his treatment at the clinic consisted only of pain medication.

Albino alleges in his complaint that after the second attack he again requested protective custody, but a deputy told him it " wasn't needed." The deputy instead placed him in yet a third general-population housing unit. In September 2006, Albino was assaulted a third time. He was taken to the jail clinic. He alleges that he suffered " damage to old wounds, including plaintiff's right eye."

As a result of these attacks, Albino has suffered severe nerve damage on the right side of his face. He has also lost hearing in his right ear and most of the vision in his right eye. He now uses a hearing aid and a cane for the blind. He states in his declaration:

My trial attorney had to ask the court for 3 court orders to get me any medical care for my injuries, and dental care. It was not until I arrived at CDCR [California Department of Corrections and Rehabilitation] that [I received] a proper Examination, [and] the doctor told me it was too late to repair the nerve damage.

Albino states in a declaration filed in the district court that he was given no orientation when he was brought to the jail, that he never saw a manual describing complaint procedures, that he never saw complaint forms or a complaint box, and that when he complained and asked for help he was consistently told by deputies at the jail that he should talk to his attorney.

Defendants provided a declaration by Deputy Jason Ford, to which he attaches a copy of " Custody Division Manual § 5-12/010.00 'Inmate Complaints.'" They also provided a declaration in which Deputy Kevin Kelley describes the complaint process in the jail, describes complaint boxes and their placement, and recounts the manner in which complaint forms are made available.

Defendants moved for summary judgment. They contended that Albino had failed to exhaust his remedies at the jail system prior to filing suit, as required by

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42 U.S.C. § 1997e(a). In the alternative, they contended on the merits that Albino had failed to show any constitutional violations. Albino did not cross-move for summary judgment.

In his Report and Recommendation, the magistrate judge recommended granting summary judgment to defendants on the ground that...

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