Harvey v. Jordan
| Decision Date | 11 May 2010 |
| Docket Number | No. 07-15023.,07-15023. |
| Citation | 605 F.3d 681 |
| Parties | Quillie L. HARVEY, Jr., Plaintiff-Appellant,v.G. JORDAN; E. Caden; A. Hedgpeth; L.E. Scribner; J. Celaya; R. Derr; B. Rankin; R.J. Bass; T. Variz; J.W. Luman; S. Gomez; T. Surges; N. Grannis, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Matthew C. Lapple, Covington & Burling LLP, San Diego, CA, for the plaintiff-appellant.
Timothy J. McDonough, Deputy Attorney General, San Francisco, CA, for defendants-appellees G. Jordan, A. Hedgpeth, L.E. Scribner, J. Celaya, R. Derr, B. Rankin, R.J. Bass, T. Variz, J.W. Luman, and S. Gomez.
Matthew M. Grigg (argued), Nancy E. Hudgins, Law Offices of Nancy E. Hudgins, San Francisco, CA, for defendant-appellee E. Caden.
Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CV-05-05398-CRB.
Before: DANIEL M. FRIEDMAN,* DOROTHY W. NELSON, and STEPHEN REINHARDT, Circuit Judges.
Plaintiff Quillie Harvey is a prisoner at Salinas Valley State Prison. Prison officials used pepper spray to extract him from his cell on July 29, 2004, during a building-wide search of all prisoners' cells. This appeal involves two claims arising from that cell extraction.
First, Harvey alleges that the use of chemical sprays was excessive and has caused him to suffer long-term health problems. He contends that he mistakenly attributed those problems to a cold until a prison medical worker informed him of the true cause on September 14, 2004. He filed a grievance five days later, but prison officials rejected it as untimely.
Second, Harvey alleges that he was denied due process in connection with a disciplinary charge for refusing to comply with the cell search. Prison officials failed to hold a hearing on the charge within the time allotted by prison rules. When Harvey filed a grievance complaining about the delay and requesting access to the videotape of the extraction, the prison officials granted the relief he requested, informing him in writing that a hearing would be provided and that he would be permitted to view the tape prior to the hearing. The decision was labeled a partial grant of the grievance because Harvey had stated that in the alternative he requested that the charge be dismissed. Five months later, Harvey complained that the hearing still had not been held and that he still had not been given the opportunity to view the tape. The prison officials construed that complaint as an appeal of their prior decision, and rejected it as untimely.
Harvey brought suit in district court. The defendants moved to dismiss his excessive force and due process claims for failure to exhaust administrative remedies under the Prison Litigation Reform Act, and the district court granted the motion. Harvey appeals that ruling. We have jurisdiction under 28 U.S.C. § 1291. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.2009). We affirm the dismissal of the excessive force claim, reverse the dismissal of the due process claim, and remand for further proceedings consistent with this opinion.
“The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.2009) (citing 42 U.S.C. § 1997e(a)). “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a prisoner must “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.2009) (quoting Ngo, 548 U.S. at 88, 126 S.Ct. 2378).
“The California prison system's requirements ‘define the boundaries of proper exhaustion.’ ” Marella, 568 F.3d at 1027 (quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)). A prisoner must file a grievance within fifteen working days of the event or decision that is the subject of his complaint, unless he lacked the opportunity and ability to file within the fifteen-day period. Id. Three levels of formal review are provided, and a prisoner exhausts the grievance process when he completes the third level. Cal.Code Regs. tit. 15 § 3084.1(a). Once he has been “ ‘reliably informed by an administrator that no remedies are available,’ ” however, a prisoner is “not required to ‘exhaust further levels of review.’ ” Marella, 568 F.3d at 1027 (quoting Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005)).
It is undisputed that Harvey did not file an excessive force grievance within fifteen working days of his cell extraction on June 29, 2004. Relying on Marella, however, Harvey argues that his failure to file a timely grievance does not defeat his claim. He contends that he lacked the opportunity to file a grievance until September 14, 2004, when he learned the true nature and origin of his injuries.
In Marella, the prisoner spent more than fifteen working days in the hospital, in the infirmary, and then in administrative segregation after the incident that gave rise to his complaint. 568 F.3d at 1026. The district court made no factual findings “as to whether Marella had access to the necessary forms and whether he had the ability to file during his stay in the hospital and prison infirmary, or during the administrative lockdown.” Id. at 1027. We held that if he had no opportunity to file a grievance during that time, his failure to comply with the fifteen-day deadline would not defeat his claim. Id.
Harvey argues that, just as a lack of access to the necessary forms deprived Marella of the opportunity to file a timely grievance, a lack of access to the necessary information as to the cause of his illness deprived him of the opportunity to file a timely grievance. He is in error. According to Harvey's own statements, he knew on the date of his cell extraction that prison officials had no justification for any of the cell searches conducted that day; that the pepper spray “worked its way into [the] vent system,” causing obnoxious and powerful fumes to circulate throughout the prison; that he did not refuse to comply with the search or obstruct the view through his cell window; and that the pepper spray grenade “nearly incapacitated” him when it was thrown into his cell. Because Harvey could have filed an excessive force grievance based on those allegations alone, he was not prevented from filing a timely grievance because of a lack of information.
The fifteen-day period for filing a grievance began to run from the date the excessive force was allegedly employed. Because Harvey did not file a grievance until well after that period had ended, he did not properly exhaust his administrative remedies. Accordingly, we affirm the district court's dismissal of the excessive force claim.
The district court determined that Harvey appealed the partial grant of his due process grievance “four and a half months too late,” and that his “untimely appeal did not satisfy the exhaustion requirement.” This analysis reflects a misunderstanding of the sequence of events related to Harvey's due process claim.
On August 12, 2004, prison officials gave Harvey a “115” notice of disciplinary charges for his alleged failure to comply with the July 29, 2004 search of his cell. Prison regulations require that a hearing must be provided within thirty days of such a notice. While the notice is pending, certain privileges are revoked; for example, a prisoner may not file a request to transfer to another prison.
On January 3, 2005, Harvey filed a grievance complaining that five months had passed and he still had not been given a disciplinary hearing. He alleged that the delay violated his right to due process and that the videotape of his cell extraction would prove that the disciplinary charges were unfounded. He wrote, ...
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