Ninth Circuit: California DOC's 15-Day Administrative Appeal Filing-Time-Limit Applies to Initial Instance of Grievance - Not To Ongoing Recurrence
The Ninth Circuit U.S. Court of Appeals, following remand from the U.S. Supreme Court, held that a California prisoner had not exhausted his administrative remedies when he failed to file his initial grievance (Form 602) within the 15-working-day time constraint levied by California Department of Corrections and Rehabilitation (CDCR) administrative regulations. The court further held that when a grievance is ongoing, the time constraint does not slide along in time so as to extend the period for filing the 602.
Viet Mike Ngo, a life prisoner at San Quentin State Prison, was put in administrative segregation on October 26, 2000 for alleged "inappropriate activity with a prison church volunteer." At his classification hearing on December 22, 2000, he was released back to the general population, but with the restriction that he could not participate in any prison "special programs." On March 20, 2001, Ngo wrote Chief Deputy Warden Anthony Kane asking for permission to participate in prison recreational programs. Kane replied that Ngo could participate in the prison's baseball team, but that participation in any other programs would be at the discretion of San Quentin's Community Resources Manager.
On June 18, 2001, Ngo filed a Form 602 to the appeals coordinator challenging Kane's response. The 602 was rejected as untimely under Cal. Code Reg. Title 15, § 3084.6(c), which requires prisoners to "appeal within 15 working days of the event or decision being appealed." Ngo resubmitted his 602 the next week, but it was again rejected as untimely.
Ngo sued in a 42 U.S.C. § 1983 complaint on First Amendment and Due Process grounds. The U.S. District Court dismissed for failure to exhaust administrative remedies. The Ninth Circuit reversed, holding that Ngo was not so required. Ngo v. Woodford, 493 F.3d 620 (9th Cir. 2005). On certiorari, the U.S. Supreme Court reversed, holding that the Prison Litigation Reform Act required exhaustion. Woodford v. Ngo, 126 S.Ct. 2378 (2006).
On remand, the Ninth Circuit considered whether Ngo had in fact exhausted his remedies. Ngo argued that because the denial of participation in special programs was an ongoing disability, the "15 day clock" reset anew with each denied request.
The Ninth Circuit rejected this "continuing violation theory," opining that it would only serve to delay the inevitable consequence of the initial determination. Thus, timing begins upon the discrete event (here, the December 22, 2000 classification hearing), not from the date when the effects were felt.
Finally, Ngo argued that 15 days wasn't long enough to give him a "meaningful opportunity" to research and prepare an administrative appeal. The court found this point irrelevant after observing that Ngo's initial 602 was filed five months after the 15 day period had expired. Thus, the court reasoned, even if it ordered this period doubled or tripled, it would not have saved Ngo's complaint.
In a concurring opinion, Circuit Judge Pregerson opined that CDCR's appeals process was seemingly self-contradictory in this regard, and called the 15-day limit both unjustified and Draconian. See: Ngo v. Woodford, 539 F.3d 1108 (9th Cir. 2008).
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Related legal case
Ngo v. Woodford
|Cite||539 F.3d 1108 (9th Cir. 2008)|
|Level||Court of Appeals|