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Ninth Circuit Reinstates Prisoner’s Excessive Force Suit

On April 27, 2017, the Ninth Circuit Court of Appeals vacated a district court’s dismissal of a prisoner’s federal civil rights lawsuit alleging excessive use of force by a guard. The case had been dismissed for non-exhaustion of administrative remedies, but the appellate court held the failure of prison officials to process and respond to the plaintiff’s grievance rendered the process “unavailable” under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), excusing him from the exhaustion requirement.

Kevin Lamarr Andres, a California state prisoner, filed a grievance alleging a Donovan Correctional Facility (DCF) guard had used excessive force against him in January 2013. Over two months later, with the grievance still unanswered, Andres filed a state habeas petition complaining about DCF’s failure to process his grievance or a subsequently-filed appeal. After waiting another two months, he filed a pro se federal civil rights action pursuant to 42 U.S.C. § 1983, alleging excessive use of force and arguing that DCF’s failure to answer his grievance and appeal rendered that process unavailable to him.

Shortly thereafter, the state habeas court held an evidentiary hearing and granted the petition on October 10, 2014, finding that Andres had properly filed his grievance and appeal but prison staff had improperly refused to process the former or accept the latter. It ordered DCF to accept and process the grievance appeal.

Over three months later, the federal district court dismissed Andres’ case for failure to exhaust administrative remedies, even though he had asked the district court to take judicial notice of the state habeas ruling. He filed a pro se appeal.

The Ninth Circuit noted that the PLRA required exhaustion of “available” administrative remedies prior to filing suit. However, both circuit and Supreme Court precedent held that exhaustion was not required if it was rendered “effectively unavailable.” See: Ross v. Blake, 136 U.S. 1850 (2016) [PLN, July 2016, p.22].

In Blake, the Supreme Court “recognized three circumstances in which an administrative remedy was not capable of use to obtain relief despite being officially available to the inmate: (1) when the administrative procedure ‘operates as a simple dead end’ because officers are ‘unable or consistently unwilling to provide any relief to aggrieved inmates’; (2) when the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use’ because ‘no ordinary prisoner can discern or navigate it’; and (3) when prison administrators ‘thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’”

This was such a case, as unambiguously proven by the state habeas court’s findings. While the defendants contended that the “dismissal for failure to exhaust was proper ‘because Andres was still utilizing the grievance process at the time he filed suit,’” the Court of Appeals rejected that argument, explaining that exhaustion is measured at the time a case is filed, not whether administrative remedies are available afterwards.

The appellate costs were taxed to the defendants, the judgment of the district court was vacated and the case remanded. The Ninth Circuit panel issued an amended ruling on August 8, 2017, resulting in the same outcome. This case remains pending before the district court. See: Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017). 

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Related legal case

Andres v. Marshall