Fordley v. Lizarraga

• Citation: 18 F.4th 344
• Decision Date: 10 November 2021
• Docket Number: No. 19-15691,19-15691
• Parties: John Fredrick FORDLEY, Plaintiff-Appellant, v. Joe A. LIZARRAGA, Warden; Winkfield, Officer; Garcia, Officer; Watson, Sergeant; Shrode, Officer; Coder, Officer, Defendants-Appellees, and Moore, Officer; Andrea, Officer, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

18 F.4th 344

John Fredrick FORDLEY, Plaintiff-Appellant,

v. Joe A. LIZARRAGA, Warden; Winkfield, Officer; Garcia, Officer; Watson, Sergeant; Shrode, Officer; Coder, Officer, Defendants-Appellees,andMoore, Officer; Andrea, Officer, Defendants.

No. 19-15691

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2021 San Francisco, California

Filed November 10, 2021

Margaret A. Upshaw, Latham & Watkins LLP, Washington, D.C., for Plaintiff-Appellant.

Kevin A. Voth, Deputy Attorney General; Neah Huynh, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office, San Francisco, California; for Defendants-Appellees.

Before: Marsha S. Berzon, Morgan Christen, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Christen ; Dissent by Judge Bade

CHRISTEN, Circuit Judge

John Fordley, a former inmate at California's Mule Creek State Prison, appeals the district court's order dismissing his Eighth Amendment claims against the Mule Creek warden and several Mule Creek guards. The district court concluded that Fordley did not satisfy the requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e. We affirm in part, reverse in part, and remand.

The prison's failure to respond to Fordley's March 2016 grievance concerning physical and sexual assault rendered the administrative appeals process "unavailable" within the meaning of the PLRA. Thus, the district court erred by dismissing as unexhausted Fordley's claims premised on the March 2016 grievance. But we agree that Fordley failed to exhaust his claim against the warden, and we affirm the district court's dismissal of that claim.

Fordley filed a second grievance in May 2016 complaining of different abuse he suffered after returning to Mule Creek from a crisis bed at a different prison facility. That grievance was still pending when Fordley filed his complaint, so the district court properly deemed the May 2016 grievance unexhausted. Fordley does not appeal the dismissal of the claims that were premised on his May 2016 grievance.

I

A

Fordley contends that he was physically and sexually assaulted in March of 2016 while he was an inmate at Mule Creek State Prison. He identified four correctional officers as his attackers: Sergeant Watson and Officers Winkfield, Garcia and Moore. Fordley's version of events is that defendants came to his cell on March 10 after Fordley objected that he had not received medical supplies. The defendants harshly rebuked Fordley for complaining and, over his shouted protests, radioed the watch commander that Fordley was unresponsive and entered his cell in full tactical gear. Fordley describes being slammed to the ground and beaten for a period of five to ten minutes, then being thrown into a "cage" near the Sergeant's office, where he remained while the defendants laughed and bragged to passers-by about the beating. Fordley claims he was later returned to his cell without being allowed to receive medical treatment and asserts that defendants falsified a report stating that he refused medical attention. Fordley alleges that three of the four officers returned the next day, wearing face and body shields, and beat him again. This time, Officer Winkfield allegedly held Fordley down while Officer Garcia rubbed a baton on his body in sensitive areas and pressed it "against [his] anal cavity." Fordley alleges the officers laughed and told him "next time the whole baton goes in your a--."

On March 15, Fordley was sent to a crisis bed at High Desert State Prison. There, a nurse documented bruises on his body and open wounds on his head. Fordley contends he sustained the wounds in the March 10 and March 11 assaults. When he returned to Mule Creek on March 24, Sergeant Watson and Officers Winkfield and Garcia continued to work in the unit where Fordley was held. Fordley contends they harassed him daily by giving him razor blades and encouraging him to kill himself, threatening to kill him themselves, threatening future sexual assaults, spitting in his food, and withholding both meals and sheets.

Fordley filed his first grievance (the March grievance) on March 27, 2016. He used California Department of Corrections and Rehabilitation (CDCR) Form 602, the form required for presenting "Inmate/Parolee Appeals." Form 602 consists of multiple double-sided pages that are passed back and forth between the inmate and the prison as the inmate's grievance proceeds through each level of review. Thus, as is the case here, a single Form 602 may contain entries from an inmate and various prison officials made over the course of many weeks or even months. The confusing format of Form 602 requires a reader to carefully decipher the chronological sequence of exchanges between an inmate and the prison to understand the grievance and response. No copy of Fordley's March Form 602 is in the record, but other documents refer to and describe the grievance. After reviewing the record, the district court concluded that the grievance qualified as an emergency grievance because of the nature of its allegations. Fordley asserts the March grievance lodged complaints against defendants Watson, Winkfield, Garcia and Moore arising from the assaults that allegedly occurred on March 10 and 11.

On April 5, Fordley submitted a request for information about the status of the March grievance using CDCR Form 22, the form for an "Inmate/Parolee Request." Prison officials responded the same day, stating: "The appeal you reference having filed here has been received and will be processed in the order received." A week later, having received no further response or information about his March grievance, Fordley submitted a second request for a status report, using another CDCR Form 22. Fordley wrote that he filed the March grievance "[b]ecause of safety concerns and harassment [and] assault by CDCR staff which per (op) is suposed to be processed immediately. But you['re] denying me that, you['re] refusing to file both of my CDCR [Form] 602s I filed due to assault and discrimination." In a written response dated April 14, the prison again acknowledged receiving Fordley's March 27 grievance and also acknowledged receiving his April 12 request for follow up: "Your two appeals dated 3-27-16 and 4-13-16 have been received [and] are being processed." On April 15, Fordley received another confirmation from the prison that his March 27 grievance had been received. The April 15 notice also advised that the first-level review was in process, but did not include a log number or other means of tracking the March grievance. This notice was the last response Fordley received concerning the March grievance.

Fordley submitted a second administrative grievance (the May grievance) on May 8, 2016 concerning events that occurred after he returned from the crisis bed. In the single line provided on Form 602 for complainants to "State briefly the subject of your appeal," Fordley wrote "Harassment/Giving me contraband - CDCR staff." And in the space that directed "Explain your issue," Fordley reported that the same officers who had assaulted him in March had continued harassing him after he returned from the hospital:

I told you in 4 prior [Form] 602s and CDCR [Form] 22s that my life was in danger. You ignored it. I want out of here. There going to kill me. This assault and sexual assault took place March 9th, 10th, 11th 2016. When returning from the hospital these officers kept harassing me and threatening me. On May 2nd (one of the COs who sexually assaulted me on March 10th) became the regular in A5. I told them for 2 months I wasn't safe. Now back in ASU, Officer Winfield [sic] and Sgt Watson tried to have me kill myself by handing me a orange razor and told me to kill myself or they would. I turned it in to a Lt who 206 told to see me on 5/5/2016 around 7:20 pm. then on 5/6/2016 at breakfast time I was given another razor by Winfield [sic] and Officer Garcia which I turned in again to the same Lt approx: same time 7:20 pm After he was seeing 206 again, they keep handing me contraband to kill myself, and if I don't they will they say. 106-Mullens and 206 and 205 before they moved them are witnesses. they refuse to give me meals, sheets ... You trying to kill me/set me up.

In short, the May grievance referred to the March assaults to explain: (1) that Fordley had been expressing concern for his safety for two months' time; (2) that the staff involved in the March assaults continued to work in the area where Fordley was detained; and (3) that after he returned from the crisis bed, the same prison guards were giving him contraband, encouraging him to take his own life, threatening to kill him themselves, and withholding meals and sheets.

The California regulations governing the process for reviewing inmate grievances have changed since the time of these events, but the scheme that was in place when Fordley filed his grievances required that inmate complaints concerning imminent assaults or concerns for an inmate's physical safety be given priority and bypass first-level review.¹ See Cal. Code Regs. tit. 15 § 3084.9(a)(4) (2015). Nevertheless, the response Fordley received on April 15 informed him that his March grievance was being reviewed at the first level.

On May 19, 2016, Fordley received notice that his May grievance had been routed directly to second-level review, and he was interviewed regarding the March and May incidents. But on July 5, the prison informed Fordley that it had completed its investigation and determined the staff's actions were within department policy. Fordley appealed the denial of the May grievance to the third level the next day, strenuously arguing that the prison officials "always try to push crap under the carpet," and restating that the same officers and sergeant who sexually and physically assaulted him in March were threatening him and refusing to feed him or give him medical supplies....