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Ninth Circuit: New Suit Not Required After Curing Failure to Exhaust Administrative Remedies

by David M. Reutter

On May 23, 2022, the U.S. Court of Appeals for the Ninth Circuit held that a prisoner whose complaint was dismissed for failure to exhaust administrative remedies need not file a new suit after completing that task. Rather, a supplemental pleading is sufficient, the Court said, to reopen the case and allow it to proceed.

At issue was the case of California prisoner Shikeb Saddozai, who was shot by a guard while held at San Quentin State Prison in 2018. Saddozai filed suit pro se in federal court for the Northern District of California under 42 U.S.C. § 1983 on September 11, 2018, accusing the guard of using excessive force in violation of his Eighth Amendment rights.

Before filing suit, Saddozai submitted a prison grievance on August 25, 2018. But the prison rejected it, saying he’d filed too many grievances within a 14-day window. He was told to refile after September 12, 2018, which he did. But that was also rejected for “pointless verbiage or voluminous unrelated documentation.” He filed again on October 2, 2018, and this time his grievance was accepted. When it was later denied, he appealed to the second-level review on November 6, 2018. When that was also denied, he appealed to the third-level review, receiving a final denial on February 5, 2019.

Meanwhile, the district court screened his complaint and dismissed it on January 16, 2019. An amended complaint was also dismissed on February 19, 2019. But a second amended complaint was accepted in August 2019 and amended again the following March. That’s when defendant prison officials moved to dismiss. Under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, Saddozai had to exhaust his administrative remedies before filing suit, which he did not do, they argued. The district court agreed and dismissed his case.

Picking up the aid of attorneys Katherine Cion, Christina Davis, and Easha Anand of the Roderick & Solange MacArthur Justice Center in Washington, DC and San Francisco, Saddozai appealed. The Ninth Circuit began by recalling Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), which said that under Federal Rules of Civil Procedure (FRCP) 15(d), a prisoner “can cure deficiencies through later filings, regardless of when he filed the original ‘action.’” It also “made clear that ‘[e]xhaustion requirements apply based on when the plaintiff files the operative complaint, in accordance with the [FRCP].’”

Saddozai’s most recently filed complaint was the “operative” one, dated well after he satisfied the PLRA exhaustion requirement, the Court noted. Also, the U.S. Supreme Court had cited Jackson favorably in Ramirez v. Collier, 142 S. Ct. 1264 (2022), holding that failure to exhaust in a prisoner’s complaint was a defect “arguably cured by . . . subsequent filings.” Moreover, forcing the prisoner to file a new suit “‘would promote the precise inefficiency the PLRA was designed to avoid.’” Thus the district court’s order was reversed. See: Saddozai v. Davis, 35 F.4th. 705 (9th Cir 2022).

The case has returned to the district court, where Plaintiff is once again proceeding pro se, and PLN will report developments as they are available. See: Saddozai v. Davis, USDC (N.D. Cal.), Case No. 5:18-cv-05558. 

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