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Ninth Circuit Reverses Untimely California Exhaustion Dismissal in Failure to Protect Suit

By Mark Wilson

The Ninth Circuit Court of Appeals reversed a lower court’s dismissal of a California prisoner’s §1983 action for failure to exhaust administrative remedies.

California prisoner Leonard Marella was stabbed by fellow prisoners. After two days in a hospital, he was transferred to the infirmary and then to administrative segregation. He blamed prison officials for the attack but was initially not able to obtain or complete a grievance. Thirty-three days after the attack, Marella filed a grievance, but it was denied as untimely. The grievance was not appealable, but Marella appealed “to the Director of Corrections (the third and final level of review within the California prison system), and was informed that his appeal was rejected because he did not first complete a second level of review.”

Marella sued in federal court, and prison officials moved for summary judgment. Defendants did not assert the affirmative defense of non-exhaustion under 42 USC §1997e(a) of the Prison Litigation Reform Act (PLRA).

Pursuant to Rand v. Rowland, 154 F3d 952 (9th Cir. 1998) (en banc), the court notified Marella that he was required to oppose Defendants’ motion with evidence. While the motion was pending, the court “requested that prison officials supplement their motion with information regarding whether Marella exhausted administrative remedies. The prison officials took the position that Marella had not exhausted … because his first formal grievance was untimely filed.” The court agreed, concluding that no exceptions to the timely filing requirement existed. It also found non-exhaustion for failing “to appeal his grievance properly through the third and final level of the prison grievance system.”

The Ninth Circuit reversed, concluding that the district court “erred in concluding that, as a matter of law, no exceptions to the timely filing requirement exist.” Rather, “the prison’s regulations explicitly create an exception to the timely filing requirement. If Marella was unable to file within the fifteen-day filing period, his failure to file timely does not defeat his claim.” The court instructed the lower courts to “consider whether Marella had the opportunity to file within fifteen days following the assault.” The court also reversed the dismissal for failing to exhaust all appellate levels of the grievance process, “because Marella had been informed that the appeals process was unavailable to him. See: Brown v. Valoff, 422 F3d 926, 935 (9th Cir. 2005).”

Finally, the court determined that the order for supplemental briefing injected “renewed uncertainty and complexity into the summary judgment procedure.”
Accordingly, “the previously issued Rand notice did not effectively give Marella fair notice that he should have submitted evidence regarding exhaustion of remedies. See: Wyatt v. Terhune, 315 F3d 1108, 1115 (9th Cir. 2003). On remand, Marella should be allowed to submit evidence regarding exhaustion of remedies.” See: Marella v. Terhune, 562 F.3d 983 (9th Cir. 2009), amended 568 F.3d 1024 (9th Cir. 2009).

It should also be noted that exhaustion is not jurisdictional, but rather is an affirmative defense which must be asserted, or waived, by Defendants. Therefore, it appears the district court erred in asserting the defense when Defendants had failed to do so.

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Related legal case

Marella v. Terhune