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Ninth Circuit Adopts Test to Excuse Exhaustion of Administration Remedies for Retaliatory Threats

The Ninth Circuit Court of Appeals joined other circuits in holding that a prisoner’s fear of retaliation may be sufficient to render the grievance procedure unavailable. The Court adopted a test that requires both a subjective and objective basis for such claims.

The case involved the dismissal of a civil rights complaint filed by California prisoner James McBride, who alleged he was subjected to excessive force by prison guards. McBride allegedly threw an unknown “burning liquid” into the eyes of guard S. Lopez on July 4, 2010 after he was told that he and other prisoners were to be housed in another building.

Several guards, including Lopez and R. Ruggles, “then punched and kicked him repeatedly in the head, causing bleeding and swelling.” After the incident, McBride was taken to administrative segregation and on a number of occasions Lopez and Ruggles visited McBride’s cell to tell him he was “lucky” because his injuries “could have been much worse.”

More than two months later, McBride filed a grievance alleging he was subjected to excessive force during the incident. The grievance was denied as untimely. McBride responded that he had delayed in filing the grievance due to the threatening statements made by Lopez and Ruggles. His grievance was again denied.

McBride then filed suit in federal court under 42 U.S.C. § 1983. The district court granted the defendants’ motion to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act.

The Ninth Circuit had never addressed whether a threat of retaliation may be sufficient to render an administrative remedy “effectively unavailable.” Four other circuit courts (the Second, Seventh, Tenth and Eleventh) had previously held that such a fear may excuse a prisoner’s failure to exhaust.

The Second and Seventh Circuits allow such an excusal where the threats of retaliation are serious enough to deter “a similarly situated individual of ordinary firmness.” The Tenth Circuit adopted the Eleventh Circuit’s test, which requires two conditions: “(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.”

In a June 30, 2015 ruling, the Ninth Circuit adopted the Eleventh Circuit’s test. In applying that test it determined that, contrary to the district court, McBride could have found the statements of Lopez and Ruggles to be sufficiently threatening. But while McBride satisfied the subjective prong of the test, he failed the objective prong because “the statements themselves make no reference to a grievance or to anything else, beyond the preexisting hostility that might trigger a future attack on the part of the guards.”

“Although the threat need not explicitly reference the grievance system in order to deter a reasonable inmate from filing a grievance,” the appellate court wrote, “there must be some basis in the record from which the district court could determine that a reasonable prisoner of ordinary firmness would have understood the prison officials’ actions to threaten retaliation if the prisoner chose[s] to utilize the prison’s grievance system.”

Since McBride had failed to make such a showing, the district courts’ order of dismissal was affirmed. An amended ruling was entered on November 24, 2015 that did not change the outcome in the case. See: McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015), rehearing and rehearing en banc denied

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Related legal case

McBride v. Lopez