McBride v. Lopez

• Decision Date: 30 June 2015
• Docket Number: No. 12–17682.,12–17682.
• Citation: 791 F.3d 1115
• Parties: James John McBRIDE, Plaintiff–Appellant, v. S. LOPEZ; R. Ruggles; M. Perez; D. Lopez; S. Koch; R. Athey, Sgt., Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

791 F.3d 1115

James John McBRIDE, Plaintiff–Appellant,
v.
S. LOPEZ; R. Ruggles; M. Perez; D. Lopez; S. Koch; R. Athey, Sgt., Defendants–Appellees.

No. 12–17682.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2015.
Filed June 30, 2015.

[791 F.3d 1117]

Tom Wyrwich (argued), Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff–Appellant.

Kamala D. Harris, Attorney General of California, Thomas S. Patterson, Supervising Deputy Attorney General, Suzanne Antley (argued) and Neah Huynh, Deputy Attorneys General, San Diego, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Senior District Judge, Presiding. D.C. No. 1:10–cv–02229–AWI–BAM.
Before: MARY M. SCHROEDER and N. RANDY SMITH, Circuit Judges and ROGER T. BENITEZ,^* District Judge.

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

[791 F.3d 1118]

action by a prison guard had the effect of rendering the prison grievance system 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.

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 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 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.

[791 F.3d 1119]

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...