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Ninth Circuit: Prisoner Filing a New Grievance That Makes New Claims Does Not Render Previous Grievance ‘Unexhausted’

by David M. Reutter

In May 2022, after a ruling in his favor by the U.S. Court of Appeals for the Ninth Circuit, a former California prisoner accepted a settlement over an alleged assault by guards at Mule Creek State Prison. Importantly, the Court’s ruling held that a grievance alleging new complaints, but which also refers to an already-exhausted grievance for context, does not render the first grievance “unexhausted.”

The appeal was won by John Fordley in a challenge to a decision by the federal court for the Eastern District of California, which dismissed his claim for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e.

Fordley said he was physically and sexually assaulted by four guards on March 10, 2016. He filed his first grievance about it on March 27, 2016, submitting a request for a status update eight days later.

Meanwhile, the guards who allegedly assaulted Fordley continued to harass him, he said, even giving him razors and threatening to kill him if he didn’t kill himself. For that, Fordley filed a second grievance on May 8, 2016. In it, he cited the incident from the March grievance as well as detailing the new facts.

The new grievance was routed to a level-two review. Fordley was interviewed regarding both the March and May incidents. After the grievance was denied on July 5, 2016, Fordley appealed for a third-level review the next day. He then filed his pro se federal civil rights complaint on August 22, 2016.

The district court granted Defendants summary judgment on the May incident because the grievance concerning those claims was still pending when Fordley filed his complaint. Further, the court added, since the March assaults were mentioned in the later grievance, Fordley could not be excused from exhausting the earlier one, either. In other words, the first grievance could not be exhausted before any later one that mentioned the same assault.

With the aid of appointed counsel Margaret A. Upshaw of Latham & Watkins LLP in Washington, DC, Fordley appealed. He argued that his March grievance was exhausted because prison officials failed to respond to it. Defendants countered that by filing the May grievance, Fordley initiated a new administrative review of the March allegations, which had the effect of leaving the March grievance “unexhausted.” In a decision on November 21, 2021, the Ninth Circuit sided with Fordley.

First the Court noted that prison officials were required by Cal. Code Regs. Tit. 15 § 3084(a)(1) to treat the March grievance as an emergency, prompting an immediate second-level review within five working days. Yet prison officials never substantially responded to that grievance at all. “Every circuit to have considered the issue has agreed that a prison’s failure to respond renders an administrative remedy unavailable,” the Court recalled.

As the Court also noted, “[T]he prison’s third-level response [to the May grievance] leaves no doubt that the prison did not consider the May grievance to include the March allegations.” Additionally, there was “no case law supporting defendants’ suggestion that an inmate’s reassertion of a concern — especially a request for a response to an ignored emergency grievance — somehow operates to unexhaust a previously exhausted claim.”

In her dissent, Judge Bridget S. Bade allowed that “in some circumstances a prison’s failure to timely respond to a prisoner’s grievance may prevent the prisoner from using the grievance system, thus rendering administrative remedies unavailable.” But she chided the majority for going “far beyond that unremarkable proposition” in this case. After all, she said, Fordley still had a “possibility of some relief for the action complained of,” citing Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005).

However, Defendants conceded that Fordley would not have been allowed to appeal the March grievance to the next level of review because he had not received a response to it from the prison. Since the majority found this convincing, the Court held it was error for the district court to conclude the March grievance was “unexhausted.”

However, the Court said the district court was correct to dismiss the prison warden from the complaint because the grievance never alleged he was aware of the assaults. That part of the order was affirmed, while dismissal of Fordley’s claims from his first grievance was reversed. See: Fordley v. Lizarraga, 18 F.4th 344 (9th Cir. 2021).

That was enough to get officials with the state Department of Corrections and Rehabilitation to the settlement table. On May 17, 2022, they signed an agreement to pay Fordley $3,000 to resolve his claims. See: Fordley v. Lizarraga, USDC (E.D. Ca.), Case No. 2:16-cv-01985. 

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