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Exhaustion Excused Where Warden Misled Prisoner During Grievance Process

Failure to exhaust administrative remedies may be excused when prison officials mislead a prisoner during the grievance process, the U.S. Court of Appeals for the Ninth Circuit decided on January 11, 2010.

In May 2002, prisoner Gerson Nunez was strip-searched upon his return to the Federal Prison Camp (FPC) in Sheridan, Oregon from his work assignment cleaning the visitation room at the adjacent medium-security institution.

Nunez filed a grievance the next day, claiming the search violated his Fourth Amendment rights because a guard had selected Nunez for the search after asking him and another prisoner to pick a number between one and ten. Nunez picked four, which was closest to five, the number the guard had selected, so Nunez was the winner of the strip search “lottery.”

The warden denied Nunez’s grievance, citing a Bureau of Prisons’ (BOP) program statement that supposedly authorized the strip search. The warden referenced the wrong program statement in his response, however, causing Nunez to go on a ten-month wild goose chase for the incorrectly-cited statement, which was restricted and not available to prisoners.

Nunez finally learned of the warden’s error, but by then his grievance appeals to the Regional Director and Central Office were deemed untimely.

Nunez sued the guard who conducted the strip search along with numerous other BOP officials. The district court granted summary judgment to the defendants on the merits and on exhaustion grounds.

On appeal, the Ninth Circuit, in a 2-1 opinion, decided that Nunez was excused from exhausting administrative remedies due to the warden’s error in citing the wrong program statement which purportedly authorized the strip search.

Under the Prison Litigation Reform Act, prisoners are only required to exhaust “available” administrative remedies, the appellate court wrote. In Nunez’s case, available remedies did not exist due to the warden’s erroneous citation to the wrong program statement.

“Rational inmates,” the Court of Appeals explained, “cannot be expected to use grievance procedures to achieve the procedures’ purpose when they are misled into believing they must respond to a particular document in order to effectively pursue their administrative remedies and that document is then not available.”

As such, the Ninth Circuit excused Nunez’s failure to exhaust because he “could not reasonably be expected to exhaust his administrative remedies without the Program Statement that the Warden claimed to mandate the strip search, and because Nunez timely took reasonable and appropriate steps to obtain it.”

On the merits, though, the appellate court concluded that Nunez’s strip search did not violate the Fourth Amendment because it was objectively reasonable, and the district court’s grant of summary judgment to the defendants was therefore affirmed. See: Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010).

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Related legal case

Nunez v. Duncan