Ninth Circuit: Subjective Unawareness Insufficient to Excuse Non-Exhaustion

 

The Ninth Circuit Court of Appeals held that subjective unawareness of a grievance procedure does not render the administrative remedy "unavailable" under the Prison Litigation Reform Act (PLRA). The prisoner must prove, instead, that the grievance procedure is unknowable.

 

In 2006, Juan Roberto Albino was confined in the Los Angeles County Jail awaiting trial. Guards ignored Albino's requests for protective custody and placed him in general population. In June, July and September 2006, Albino was assaulted by other prisoners after guards revealed that he was a sex offender.

 

Albino brought federal suit, alleging that jail staff were deliberately indifferent to his safety and failed to protect him. Defendants moved for summary judgment, seeking dismissal for failure to exhaust available administrative remedies as required by 42 USC § 1997e(a) of the PLRA.

 

Albino admitted that he did not exhaust administrative remedies, but claimed that the jail's grievance procedure was "unavailable." The district court disagreed and dismissed for non-exhaustion.

 

The Ninth Circuit first explained that the district court incorrectly decided the non-exhaustion affirmative defense on a summary judgment motion. Rather, the court repeated that non-exhaustion "should be treated as a matter of abatement, which is subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment."

 

Unlike the de novo summary judgment standard of review, under Rule 12(b) the court reviews the lower court's factual findings for clear error. Since "there [were] no real factual disputes" however, the court found that its review was "effectively the same under either" standard and the error was harmless.

 

The court explained that the burden of establishing the affirmative defense of non-exhaustion falls on the defendants. However, "a defendant's burden of establishing an inmate's failure to exhaust is very low" and Defendants need only show the existence of an administrative remedy that Plaintiff failed to utilize. Once that showing is made, the burden shifts to Plaintiff to show that the administrative remedy was unavailable.

 

The Court found that defendants satisfied their burden of showing that Albino failed to exhaust, but he had failed to satisfy his burden.

 

A prisoner's "subjective unawareness of an administrative remedy and a prison's failure to expressly inform (him) of the remedy," alone, are insufficient to excuse exhaustion, the court held. Rather, the prisoner must "make reasonable, good-faith efforts to discover the appropriate procedure for complaining about prison conditions before unawareness may possibly make a procedure unavailable."

 

The court reiterated that affirmative actions of staff which prevent proper exhaustion, even if innocent, render administrative remedies unavailable. To illustrate, it noted cases excusing non-exhaustion when prison officials: refuse to provide requested grievance forms; fail to respond to properly filed grievances; incorrectly inform the prisoner that he must await the conclusion of an investigation before filing a grievance; and threaten retaliation for filing grievances. Albino offered no evidence, however, "that any jail official engaged in any misconduct that prohibited (him) from learning of or following the grievance procedure."

 

The court affirmed the lower court's dismissal "because Albino has not shown (1) that jail staff affirmatively interfered with his ability to exhaust administrative remedies or (2) that the remedies were unknowable." Therefore, "he has not met his burden of showing that the jail grievance procedure was 'unavailable."' See: Albino v. Baca, 697 F.3d 1023 (9th Cir. 2012).

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