Albino v. Baca

Decision Date21 September 2012
Docket NumberNo. 10–55702.,10–55702.
Citation697 F.3d 1023
PartiesJuan Roberto ALBINO, Plaintiff–Appellant, v. Lee BACA, Los Angeles County Sheriff; Los Angeles County, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Andrea R. St. Julian, San Diego, CA, for the plaintiff-appellant.

Christian E. Foy Nagy and James C. Jardin (argued), Collins Collins Muir + Stewart, LLP, South Pasadena, CA, for the defendant-appellee.

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


Opinion by Judge N.R. SMITH; Dissent by Judge GILMAN.


N.R. SMITH, Circuit Judge:

An inmate's lack of awareness of a correctional institution's grievance procedure does not make the administrative remedy “unavailable” for purposes of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), unless the inmate meets his or her burden of proving the grievance procedure to be unknowable. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir.1996); Goebert v. Lee Cnty., 510 F.3d 1312, 1322–24 (11th Cir.2007). Because Albino has not met his burden of proof, we affirm the district court's grant of summary judgment.

A. Facts

No party disputes that, during all relevant periods at issue in this case, the Los Angeles County jails had a grievance procedure outlined in the Custody Division Manual § 5–12/010.00. According to the grievance procedure, inmates could file grievances (or complaints) regarding the conditions of confinement, including grievances related to classifications. All inmates were permitted to submit a written complaint; formal Inmate Complaint Forms were supplied to facilitate complaint filings. Each housing unit in the jail was required to have an adequate supply of Inmate Complaint Forms, and inmates were required to have unrestricted access to these forms. However, inmates were not required to use the formal Inmate Complaint Forms; they could make a complaint on any medium as long as it was written. Further, each housing area also maintained a locked repository box accessible to inmates so that they could deposit their written complaints unhindered.

On May 11, 2006, Juan Albino was arrested for rape and incarcerated in the Los Angeles County Sheriff's Department's main jail (“LASD Jail” or the “jail”). Upon arriving at the LASD Jail, Albino was booked into the jail. As part of that processing, jail staff determined the appropriate custody and security level classification for inmates based on a number of factors, including the nature of their charge. After evaluation of the factors for Albino, especially Albino's charge of rape, Albino was assigned a custody and security level consistent with placing him with the general inmate population.1 After he was assigned to the general population, Albino alleges that he orally asked to be placed in protective custody. However, sheriff's deputies refused and instead assigned him to the general population, consistent with the custody and security level classification calculated during processing.

In June 2006, Albino claims that he was physically assaulted and raped by fellow inmates after the inmates were allegedly informed by deputies that Albino was a sex offender. Albino was taken to the county hospital for treatment of the injuries he sustained. After returning from the hospital, Albino claims to have again orally asked for protective custody. Though his request was rejected, deputies told Albino to contact his public defender for assistance (Albino alleges specifically that the deputies stated, “it is your attorneys [sic] job to protect [you]). However, without any written request from Albino or his attorney, the jail relocated him to another housing location for his safety.

Albino alleges that he was subsequently assaulted on two separate occasions, once in July 2006 and once in September 2006. He acknowledges that he was taken to the jail clinic for treatment after each of these incidents. Albino claims to have orally asked for protective custody after each incident. While the oral requests were denied, he was again relocated to a different housing unit for his safety after the July 2006 incident.

The record includes incident reports created by LASD Jail personnel for the June and July incidents. The incident reports indicate that Albino was rehoused for his safety, and the reports provide no indication that Albino was dissatisfied with this action. There is no evidence that Albino filed (or made any effort to file) a written request for protective custody or any sort of written complaint. Instead, Albino made only oral requests for protective custody, and jail staff directed him to talk to his public defender. No evidence suggests he ever talked to his public defender about protective custody or complaining of his situation. The incident reports also provide no information concerning whether Albino was informed of the grievance procedure. Therefore, in reviewing this motion, we conclude that he was personally unaware of the grievance procedure and he was not expressly informed of the LASD Jail's grievance procedure by the jail.

B. Procedural History

Albino filed suit against Los Angeles County, Sheriff Lee Baca (Baca), and other John Doe defendants (collectively Defendants) under 42 U.S.C. § 1983.2 Albino “allege[d] that his Constitutional rights were violated by Defendants' failure to protect him from other inmates and by Defendants' deliberate indifference to his serious medical needs.” In addition, Albino claimed that Baca failed to adequately train and supervise his deputies. Lastly, Albino alleged the state law claims of intentional infliction of emotional distress and gross negligence.

On August 7, 2009, Baca filed a motion for summary judgment. Baca claimed that Albino's lawsuit must be dismissed, because Albino failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Albino did not dispute that he failed to file a written complaint. Instead, Albino argued that the grievance procedure was “unavailable.” Specifically, Albino argued that (1) he was never given an orientation by jail staff; (2) he never saw Custody Division Manual § 5–12/010.00, or, if he did, it was not in Spanish and he did not understand what it was; (3) he has never spoken to anyone who has heard of Custody Division Manual § 5–12/010.00; (4) he has never seen or heard of a complaint form; (5) he never noticed any complaint box and no one ever mentioned such a box; and (6) he was locked down to such a degree that he never learned of the procedures. In essence, Albino “contend[ed] that even if a grievance procedure existed, the failure to explicitly inform him of it obviates his need to exhaust,” because the failure to inform him of the grievance procedure (even though he never asked) rendered it unavailable.

The magistrate judge agreed with Baca and recommended granting the motion for summary judgment. First, the magistrate judge found “no genuine issue of material fact as to the existence of a grievance procedure at the jail, its accessibility to inmates, or [Albino's] failure to avail himself of it.” Specifically, based on the evidence regarding the LASD Jail's grievance procedure, the magistrate judge found that the LASD Jail “had an accessible administrative procedure for seeking redress of grievances at the time of the incidents.”

Second, the magistrate judge assumed that Albino was not aware of the grievance procedure and that the jail failed to inform him of such procedure. The magistrate judge noted that the Ninth Circuit has not yet addressed whether an inmate's lack of awareness of a jail's grievance procedure and a jail's failure to inform an inmate together excuse exhaustion. The magistratejudge also noted that “other Circuit Courts of Appeals have held that neither a lack of awareness of available grievance procedures nor a prison's failure to inform an inmate of them excuses his failure to exhaust.” The magistrate judge then adopted the out-of-circuit approach. Therefore, the magistrate judge concluded that Albino's “lack of awareness of jail grievance procedures does not excuse his admitted failure to exhaust administrative remedies prior to bringing suit.” 3

The district court accepted and adopted the magistrate judge's findings and recommendations in full. Hence, the district court agreed that Albino had failed to exhaust his administrative remedies, because administrative remedies were “available” within the meaning of 42 U.S.C. § 1997e(a), notwithstanding Albino's lack of awareness of the grievance procedure and LASD Jail's failure to inform Albino of such a procedure.

Albino timely filed this appeal.


We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). On summary judgment [w]e must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. (quoting EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 746 (9th Cir.2003)) (internal quotation marks omitted).

Here, Baca asserted the affirmative defense of nonexhaustion in his answer. Later, he filed a motion for summary judgment, and the magistrate judge reviewed the case under the summary judgment standard. However, this was error. [W]e have held that the failure to exhaust nonjudicial remedies that are not jurisdictional [such as a prison's grievance procedures] should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion...

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