~QiJUdJournQI

Daily Appellate Report
SUPPLEMENT TO THE LOS ANGaES DAILY JOURNAL SAN FRANCISCO DAlLY JOURNAL AND THE DAilY RECORDER. TUESDAY, SEPTEMBER 28; 20:lQ

PAGES

Contents

DISTR!CT

SUMMARY OPINION

u.s. Supreme Court
TORTS
Philip Morris USA Inc. v. Scott
Stay is granted for judgment pending
certiorari review wli~tedue pro$ess
violation issuewillJjkely be. gr"flted
review with possibility of rever$;il.

USSC

v

15076

CDCA

vi

15100

9th U.S. Circuit Court of Appeals
OiVl1. PROOEDURE
Satem"n v. American MultI-Cinema Inc.
Court may not deny class certification
based on disproportionality of potential
damages and actual harm.
ORiMINAL LAW AND PROOEDURE
Martinez v. Scllrlro
No federal right to assistance of
post-eonviction counsel exists for stare
collateral proceedings, even where
proceedings constitute first review
for specific claim.
II.S. v. Briggs
Guilty plea forecloses c1111m that
goverument set amount of drugs in
fictional stash house at arbitrarily high
level to impact senteuce.

15131

D AZ

EDWA

vII

15138

continued

How long did it
take you to get ta
Court klday?

Civil • Family' Probate • Bankruptcy' Criminal

jj)

PAGES

Contents continued from front page

9th U,S. Circuit

DISTRICT

SUMMARY OPINION

of

u.s. Y. Mayweathe,

15117

CDCA

vii

ND CA

vii

EDWA

vIII

1.5109

CD CA

viII

15122

EO CA

IX

IJ AZ

lX

Plea withdrawal is properly denied
where defendant had kllowk:dge of
proffered reasons for withdrawal before
entering guilty
EDue/mON
Renee v. Duncan

Federal reb,,TUlat1011 de!iini'Ilg
'highly qualified teachers' as pt.'fSDHS
in progress
lull celctilkauojl
under No Child Left Behind Act is invalid.

EMPLOYMENT lAW
Sullivan v. Dolla, Tre" Stores Inc.

Employee is ineligible for nnlh"ticm
under Family and Medical Leave Act
because new
is not 'successor
in interest' to former employer.
v. Chinese

News Inc.

Journalists who
do allY im'estigatil/e
reporting do not qualify under 'creative
professional exemption' and are
entitled to overtime pay.
!SONERS' RIGHTS
Sapp v. KImbrell

Prisoner is not excused from adJlllllistTative
remedy exhaustion H1lwireil!leIlt where he
q
wimro ,;
suit,

15085

does not violate nrismwr's
becausE' prisOller
have current possessory
in funds.
ORDERS
Nunez~Reyes

1},5,

v. Holder

v. Weyll,auoll,

En bane

1I5SC

~

15077
15142

continued on next page

Daily Appellate Report

15078

PRISONERS' RIGHTS

Prisoner is not excused from administrative
remedy exhaustion requirement where
he fails to show improper screening
ofgrievances before filing suit.
Cite as 2010 DJDAR 15078

Tuesday, September 28, 2010

condition. He never exhausted these grievances,
however, because a prison official screened the:n
out for various reasons, Sapp rnti:fuately filed this
suit under 42 U.S.C. § 1983, which the district
coutt disfuissed because Sapp had not exhausted
his administrative remedies, as requjred
Prison litigation Reform Act ePl.RA'1.

by the

In this appeal f we must decide
prison official's improper screening ofan
re
administrativeappeaIsexcusestheinma
to exhaust under the PLRA and. if so, weer
Sapp"s appeals were improperly screened. We

IVA."! TERRANCE SAPP,

Plaintiff·Appellant,
v,
D. KIMBRELL;
DOUGlAS PETERSON;
P.VAN COR;
C. CRAPOTIA,
Defendants--Appellees.
No. 05-15745
D.C. No. CV·02.()2576-FCD
United States Court of Appeals
Ninth Circuit

FlIed SePtember 27, 2010
Appeal from the United States District Court
for the Eastern District of California

Frank C. Damrell,
Senior District Judge, Presiding

Argued and Submitted
May 7, 201o-Pasadena, California
Before: Betty B. Fletcher
and
Richard A. Paez,
Circuit Judges,

and
Edward R Korman,
District Judge. *
Opinion by Judge Paez
COUNSEL
Randall R Lee and Matthew D. Benedetto
(argued), Wilmer Cutler Pickering Hale and Dorr
LLP, Los Angeles, California, for plaintiff·appellant
Ivan Terrance Sapp.
Edmund G. Browa, Jr., Artorney General;
Rochelle C. East, Senior Assistant Attorney
GeIleral; Monica N. Anderson, Supervising
Deputy Attorney General; and Michelle L Angus
(argued), Deputy Attorney General, ~a<.TalIlento,
California, for defendants·appellees Kimbrell, Van
Cor, and Peterson.
OPINION
PAEZ, CircuitJudge:
In 2002 Ivan Terrance Sapp, a California
state priso~er, filed a· series of administrative
grievances seeking medical care for an eye

hold that, although improper screening may
eXCUse a fulure to satisfY the' PLRNs
. n
requirement, llie fucts here do not 5
prison offiCials improperlY screened Qut
administrative grievances. Accordingly, we at
the dismissal of Sapp's lawsuit.
I. Background

In 1989, Sapp suffered an eye injury iu prison
that continues to cause him proD

002,

while incarcerated at the Californ
n
in Sacramento. he sought medical
g
eyelid surgery, but it is unclear whe
he ever
received it Sapp claims to have filed over twenty
adrriinisttatiVe appeals about the issue '?lith
the prison. In December 2002, Sapp filed this
§ 1983 suit in federal C{)urt alleging
e
indifferen(:e to his medical needs and
related actions. In particular, Sa
defendant Douglas Peterson, a
denied him needed medical
defendantD. Kimbrell, the prison's a m
live
appeals coordinator, improperly screened his
grievances seeking medicirl care; and that
defendant E Van Cor, a prison official, denied
hinl an "Olsoni>' review! of his m'edicaI recqrds.
~ district court dismissed Sapp's,suit without
prejudice for failure to eXhaust his ad:rirlnistrative
remedies, as required by the PLRA, 42 U.S.c. §
1997e(a).
Although Sapp did not exhaust bis
adriIiriisrratiVe remedies, he did pursue

SOtlJ.C

administrative appeals before filing this snit.
We first describe ,California prisons' gri,evance
procedures and then detail the administratiVe

gtjevaD<..'es that Sapp pursued.
A. Ciilifornia Prisons' Grievance Procedures

CalifornIa regulations allow a prisoner to
appeal any action or decisiori by a prison official
that adverselY .affects the prisoner's 'W
Cal. Code Regs. tit. 15, § 3084.1(a). To e
a grievance, an inmate must purs
through fuur levels, one "info
"formal!' /d. §§ 3084.5, 3084.I(a).
file the initial grievance within 15 w
the action being appealed, and he mu
h
administrative appeal within 15 working days of
receiving an aclverse det'ision at a lower level. Id.
§ 3084.6(c).
At the iDfonnallevel, an inmate must seek to
have the involved prison employee resolve the
problem. Id. § 3084.5(a). If this is unsuccessful
the inmate must then fill out a "Form 602," the
'1nmate/Parolee Appeal Form," describing the

Tuesday, September 28, 2010

Daily Appellate Report

problem and action requested. Id. § 3084.2(a). An
"appeals coordinator" at the prison "screen[sI"
each appeal before forwarding it on for review
on the merits. Id. § 3084.3(a). The appeals
coordinator may reject, or "screen," an appeal
for various reasons, including failure to comply
with the 15-day time limit, incompleteness or
omission of necessary supporting d()(.'Uments,
or :failure to attempt to resolve the grievance
informally. Id. §§ 3084.3, 3084.6(c). When the
appeals coordinator rejects an apm;;aI, he must
fill out a form that explains why the appeal is
unacceptable and instructs the inmate on what he
must do to qualify the appeal for processing.1d. §
3084.3(d). If it appears from the appeal form that
the prisoner has dIfficuity describing the problem
in writing, the appeals coordinator must arrange
an interview with the prisoner to help clarify or
complete the appeal. Id. § 3084.3(b) (3). Once
the appeals coordinator allows an appeal to go
forward, the inmate must pursue it tliiough three
levels of formal review. Id. § 3084.5.

B. Sapp'sAttempts to Exhaust
Although Sapp filed numerous grievances
relating to his eye .condition, none was ever
considered on the merits.
FIrst, in December 2001, Sapp mentioned
his eye condition in a second-level appeal of
a different grievance seeking care for a skfu
condition. Prison officials rejected this appeal on
the ground that the eye issue was "new" and had
to be submitted in a separate appeal.
Sapp then filed a first-level appeal regarding
his eye condition in early June 2002. This appeal
was screened for reas.ons not apparent on the
record before us. Sapp again filed a firstlevel
appeal on June 9, 2002, that explained that he
had ''been having great dIfficulty in obtaining
adequate medical care" since arriving at the
prison in July 2001. He explained that doctors
had referred him to see an eye specialist at the
University of California at Davis ("UC Davis"), but
that "this issue continues to go unrecogniied." He
explained that he had "submitted medical slips
to medical stalf' and that the prison's medical
staff were uaware of the issues." In the "Action
Requested" box on the form, Sapp indicated that
he sought to "recover from a ,criticiil problem"
and that "the only way to remedy the situation is
to contlnue filing 602s [appeal forms] and try to
remedy the issue any way possible."
The next day, Kimbrell, the prison's appeals
coordinator, screened out that appe:aI on the
ground tbat Sapp had "not adequately completed
the [60Uorm] or attached the proper documents."
Kimbrell noted that "[alnother appeal was
screened out and returned to you [five days
earlierl on the same issue, it appears. Be specific
about eye condition and action requested."
Eight days later, on June 18, 2002, Sapp visited
the UC Davis Medical Center's Ophthabnology
Department and received only an examination.
Sapp then filed another inmate appeal on June
30, 2002, that described the problem as "a long
delay in obtaining adequate medical treatment
fqr an [sic] critical eye injury which occurred
[in 1989, wbile incarcerated]." He explained that

15079

the medical records were in his prisoner file
and that he was "having great dIfficulty in filing
a[n] inmate 602 appeal to exhaust the issue."
In the "'Action Requested" box, Sapp indicated
that he sought "treatment as soon as possible,
because I need the eyelid surgery, and I may have
developed an eye infection." He also appended a
twopage description of the problem, includiIlg a
hand-drawn diagram of his eye and an account of
the events that led to his injury.
Two days later, on July 2, Kimbrell screened
out this appeal, again because Sapp bad not
adequately completed the form or attached proper
documents. This time, Kimbrell specifica1ly
instructed Sapp to attach his Health Care Request
form (Form 7362) or to explain why the form
was not available and to "[cJlarlfy the issue, have
you been treated at SAC [this facility] for this
condition? If you have not recently requested
treatment at SAC snbmit of [sic] CDC 7362 to
the Clinic." Boilerplate text at the bottom of the
form advised: ('This screening action may not be
appealed unless you, allege that the above reason
is inaccurate. In such case, please return this form
to the Appeals Coordinator with the necessary
information."
In response, Sapp filed a Health Care Services
Request Form 7362, on July 20 seeking "followup of ue Davis otho eye exam,'" Four days later,
prison staff res]:X)nded with a note indicating that
Sapp would be "seen within the week or 2 weeks."
The record does not indicate whether or when
the medical staff actually saw Sapp. The record
before us does not show that Sapp ever filed an
administrative grievance alleging, that prison
medical stafffailed to see 1ilin as promised.
On July 30, Sapp submitted a Reasonable
Modification or Accommodation Request under
the Americans with Disabilities Act seeking
help pursuing his adiniriisttatiVe remedies. Sapp
described his disability as the "lack of knowledge
to write out a 602 [appeai form] to suite [sic] the
appeals coordinators approval., no matter how
clearly it is stated." Sapp explained that he had
onlY a seventh grade education and asked for
medical treatment. The prison ultimately dculed
this request on October 1.
On August 30, Kimbrell again screened
out Sapp's June 30 appeal. This time, Kimbrell
indicated that the appeal exceeded the 15-workingday time limit for inmate appeals. Kimbrell noted
that sapp was "personally interviewed" on AttgUst
29 and that he stated that this was an "old issue
[he] appealed in 1990." Again, Kimbrell advised
5app, "If you need medkal treatment, submit a
CDC 7362 [Health Care Services Request] to the
Clinic."
In response, Sapp submitted Health Care
Services Requestson September9 and 23, seeking
referral to an eye dodor and surgery on his left
eye. It is unclear whether, or how, prison officials
responded to these requests. In any event. Sapp
never. filed aD administrative grievance about
officials' failure to respond adequately to these
requests.
'
On September 23, Sapp submitted a request
for an Olson review of his medical records. Van
Cor appears to have forwarded this request to
the Medical Records Office sometime before

15080

Dally Appellate Report
didIlot"tneritiondefertdaritPetetso~~y~~eor

October 21.
On November 18, 2002, thesru:ne day tpaJ
Sapp signed his federal complaint in tqiscase,

sitggest thatdefendantPetersorl~~slesponsible
for the alleged inadequate treatment or delays:
Although Sapp's November 18, 2002, appeals fonn
l'I~m~<l Pe~~rs?n, thatappealwasnot eXhausted
before the suit was filed.
The district judge adopted the magistrate
~dg~~sproP9~e,dFiI1q~saJ:l4R;~0mtll~l1ga.tio~s
in full and dismissed Sapp's claims without
prejudice. Sapp timely appealed to this court
Aft:~~~?ldiJ1~tlI~cas~inab~yancell~nding 0llt
decision on remand in Ngo v. WOodjOrd, 539 E3d
1108 (9th Cir. 2008), we appointed pro bono
counsel for Sapp.

Sapp ',filed, an ,administrative' .• appeal,grieving
ab?ut the denial. ofan Olson revie'Y()fhisll1~~ical
records and' the repeated denial oiliis a~wp~s
to exhaust his appeals; eXt>lainingthathe 'Nas "at
risk with any h~alth concerns;" ()ll Dec~mber2,
he filed his complaint against the defendants in
the Eastern District of California.
At the same time that he was attempting to

pursue his. administrative re111edie~,

SaPIJS(}u1i~t

to "raise ,'his conc.erns t1lr?t1gh{)the~ ~"etl1.les.
Resubmitted ", twoConSttmer. C0ll1PI~tf0fI!ls
to the Medical Board of California claiming that
prison medical ~t::lffwere denyin~~i111' Care for II. Jurisdiction and Standard of Review
his, eye conclition. III additi(}n,heft1erte~ oth,~fS -I
about what he perceived as Kitn1)rerrsmrproper
The district court had jurisdiction under 28
U.S.c. §§ 1331 and 1343, and we have jurisdiction
screening. of his appeals. in lettersthat~e'Yl"0~e
to . theCaliforniaI~spector Gen~ralaI1dt01:11e ' under 28 USc. § 1291. We review de novo the
warden~ 'The InspectorGeneraldec1i*~dt()
dist:tictcou~fsdisnrl~salbase~on§3pp'sfailttre
investigate, and the warden informed Sapp that, to exhaust. O'Guinn v. Lovelock Corr. Ctr., 502E3d
1056,1059 (9th Cir. 2(07). In deciding amotion to
if he disagreed vvith the·· ~r~niIlg~; . . heso~ld
"provid.e.. a.·'Nrittc11 explaIlati0 I1 as}o~hY·Y~l1r dismiss fOf failure roeXhaust a court may "look
appeal should qualify forprocessing;"u.l <:l~gi~()n, beyond the pleadings and decide disputed issues
the wardenadyise~rim thathec()~I~fiI~~"sfuff of fact." Wyatt v. Terhune, 315 E3d 1108, 1119-20
complaiilt"jf he perceived thathe wasthevictim (9th Cir. 2003). We review the district courfs
ofdiscritnination.
factual findings for clear error. O'Guinn, 502 E3d
Dnring the same time frame as Sapp filed at 1059.
his appeals·.•. regarding·. his •. eye ~oI1W~on;ge
submitted liealth. Care Servi~e~l(~l1est~abol1t m;····Disctissi6n
other cOI}{litions. He also successfully eXliausted
a grievance regarding medical care· fora· skin
1'lH~. PLRA requires a .IJt"isO~el"t()eXlJ.atis~his
condition in June 2002.
ag~~trapveretnedies~efore filing a lawsuit

!

C~

IJisfricfCourtProceedings

coriccrningprisonconditions:

No action shall be bronght with respect
Sapp filed this § 1983 suit pro se against
Peterson, Kimbrell, Van Cor, and a fourth
defendant, Dr. Crapotta, in December 2002. Sapp
alleged that Peterson, .• ~ .pt"isorldo(:tof,~.eI1ied
him needed Uledical. tr~£ttIrteIlt;~atKimlJr~ll,
the prison's (lppealsc?()r~in~~()r,: impr()p~rly

screened his grievances ~e?kiI1~lIle~i~c(l~e;
that Van COf,aprisonoffki~1;d~~e4Wrpa1l9lSqn
review of his medical r(~cor4~;<lpp~atSr~tta,
another. doctor! also.•• ~ap .d~nie4ijiJ:l1Aledical
ca~e~. Theilistrict cou~t4istpis~~4>mz5~aiITls
ag<tirlst.Crapottafor~ailure·tp.•·.~eryeNm;aIl.dthe
re!llainillg.··.defe~dilntsfned.·~tll()ti()~mc1i~miss

under Federal Rule of Civil Procedure 12(b).
The·.·. assigIled.·.·. ma~Strate.···· j~4!r~i~~fd
proposed .. Fin~ings and . Rec0tntnenciati0Ils

re~0t11n1endjng di~miss<l1.()f th~ cl~~~g~st
tile remaining defendants for .tailllryt?~¥h~ltst

as required by the PLRA The magistrate judge

conclude,d that .t1:Lealleg~d. improperscre:ning
of papp'sadIllinisttiltive ~ppe~lsclid not preyent
hiIIl.from·eXhaus~ng be~ltllse; . eyen;jthi~foffilS
lladt10tbeenscreenedout.th~y ~()lll<lIlot hare
sufficed to exhaust his claims. In particular, the
magistrate judge n()t~dmat,~~for~ ~UIl~Wi~~wt,

SaiJP

n~vef su~tni~tedi:U1¥grieYanse?r ap~al

regarding the improper.s(;Teening.or~e4~pi<llOf
an Olson review otl1~sTe~on:l~: AttIt0~wh$al?1>had
filed grievances regarding the denial of medical
tre~pn~nt, tllc m~~~~trat{;jttdgeS()l'Ifll1d~4tl1at
the~igriev~nces\V?l1IcI· n()th<lye. ~ttfficed}o
exhaust his claims against Peterson because illey

t() pris()ncofl(li~(}nsHllder ~ti0I11~~

of this title, or any other Federal law, by a

priSOI:l~~c0h11neq. inatl),'i: .~. ?or~eeti0nal
facilitYuntiIsllc~adrpinist1?~tiVe·remedies

as are available are eXhausted;

42 U's.c. § 1997e(a). The Supreme Court has
held that this exhaustion requirement demands
"proper" exhaustion. Woodford v. Ngo, 548 U.S.
81, 84 (2006). To "proper[Iyj" exhaust; a prisoner
must comply "with an agency's deadlines and
mlt~rcri1:icalproceduntl·
•. ·fttles . ·beglU~~.···no
~djl,l4iC<tBY~ .· • systerp.·..• can ..iuncti0l1 .. cffe5tlyely
W~9utiInlJ()s4W.soD1.e orderlyst:t;ucture.on'the
courseofitsllr()s~editlgs.~ .ld.

atgo.91.

Sapp acknowledges that he failed to properly
f¥til\l~t. ~i~c~airlls•• 1>utcontengsthat~~sh()uld
n~~em~les~pertrtitl1i~.suitto~o . f()rVl~dJ()r
two reasons. Frrst; Sal)P contends that the PLRA
r~uir~~· ejfuaus~?no~ly()f

Atose a<llllitrl~t:tiltiye

remedies that are "available," and that the

itypr()tJer. sc:r~~JliIIg'()f .•.• 1Iisappeals .relldered
administttt~Y~

·JetrIeqieseffectjyely .~il~I~1>le

to him. Second, Sapp urges us to recognize, and
apply to htm, an equitable exception to the PLRNs

~altstionr~quu-~ment vvl1ere ·.. apt'i~~~fs
speciaIcir<:tlIl1sti11cesjustffY n()IFcol~wIia:~ce
Wth admini~ttatiye regulations~ We addresseafh

contention in to.rn~

Tuesday, September 28, 2010

Dally Appellate Report

A. Effectively Unavailable Remedie,s
1
ThePLRArequires thatan inmateexhaustonly
those admiItistrative remedies"asare,av@aJ>le."
42 U.S.c. § 1997e(a). We have recognized thatthe
r~theJ:eforedoes notrequiree~austiotl\Vhen
circumstallces render administrative remedies
"effec:tiyelyunavailable." See Nunez. v. Duncan,
591 R3d 1217, 1226 (9th Cir. 2010).
In Nune~v. Duncan, we held that a pris{)~¢r's
failure to eXhaust was excused where he "took
reasonable and appropriatesteps to exhiitlst his
... claim and was precluded from exhausting,
uot through his own fault hut by the Wardeu's
mistake." ld. at 1224. There, the prisoner, Nunez,
had filed an administrative grievance alleging
that he had been strip searched in violation of
his Fourth Ameudmeut rights.ld. at 1220. When
pri$()n•. otficials.•. r~8P9nded .. t:o . hisgrieY?Il~\by
saying th<it tl1esearchwas c()ndUctedpursuant
to prison regnlatious, Nuuez appealed to the uext
level and, in his appeal, asked for a citation to the
relevant regulation.ld. The warden coustrued the
gri~vance as>rnerelyarequestfor.We regulation
and accordingly responded with the citation. ld.
Nuuez then sought to get a copy of the regnlation
by going to the law library, and then, when the
regulation was not available there, by fi1ing a total
of four grievances, a Freedom of Irl(()rlllatiotlAct
(FOIA) request, and four letters appea1ing the
FOIA denial. ld. at 122()'21. He never received a
copy of the regulation because, as it tuI"llsout,

officials' failure to respond to a properly filed
grievance makes remedies "unavailable" and
therefore excuses a failure to exhaust See Dole
v. Chandler, 438 F.3d 804, 809, 811 (7th Cir. 2006).
The Third Circuit has held that exhaustion was
exeusedwhere.guards.erroneously infonned an
inrrtatetllathe had to\yait
an inyestigation
:was complete peforefiling a grievance. See Bl"OJVn
u Croak, 312 R3d 109, 111·12 (3d Cir. 2002). And
several clrcuitshave held that prison officials'
threats ofretaliation Can render administrative
reDl~dieseffectiyely .·unavailable . such.. that a
prisoner need. not exhaust them. See .rurnerv.
Burnside, 541 R3d 1077, 1085 (11th Cir. 2008);
Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007); Kaba
v. Stepp, 458 R3d 678, 685-86 (7th Cir. 2006).
<=oIlsistel1twil1tthe~preced~nts .and. with
()llrdeci~i()nitI1Vullez •. ",ehoIdtlIat improper
scr~ttit1g;otan itlrnate'~.adlllitIisttative~ieyances
reIlc:lers administrative remedies.. ..>~ett~Gtively
una~<ible"suchl1t<ltex1latt!Sti(}n is ~o.trequiTed
under the PLRA If prisono~~ciaI~scr~Il(}t1tan
inttlate's ap~"lsforiml?r()perreas()~s~.th(': itlmate
cannotpursueth~.Il~~ssarY sequenceofappeals,
an.cJ.adfuhrlstrat1.ye remedies are thereforeplainIy
unavailable.
l{et;ow¥zitlg.aneJ{ceptiorl.. to ... the . ~LAA's
exhaustion requirement .",herePrisouoffit;ials
ippr(}~rl¥ . •. ~een .. (In... ·inrn<lt~'s . adnlitlistr<itive
ap~alsc:()mports . \\lith. and.. it14ee(iprornptes,
th~· r~mrewet1t'!i<p':1rpos~!S..•.. ~s
Stipreme
C:0':1rt hasexp1aiped;. a<lInillist1"tlpyeeXhaus~on
serves two purposes. First, "[elxhanstion
giyes
agency 'an oP1J()ftWtity to correct its
own mist(i}{es . with.• respe~tJ0the Pf0gratll~ it
administerspefore iti~ haletiitlW federal c~ur~: "
Ngo, 548 U.S. at 89 (quoting McCarthy v. Madigan,
503 U.S. 140, 145 (1992)). Second, "exhaustion
promotes efficiency' by allowing claims to "be
r~solved 1l1u(.':hm()re</qt1jt;l{Iy
economically
itIprpc~~dnws bef()f~.~rlag~Ilcythanjn litigation
in federal cour~' by somethnes "convinc[ing] the'
losing party not to pursue the matter in federal
court," and by "produc[ing] a useful record for
.!iUp~qtl~ntjtitlicia1F()Il~id~ratiol1" ip. fZ3ses-where
the claim does eventna1ly reach federal conrt. ld.
(mternal quotation marks omitted). If inmates
did .. notPUl"sueaclmillistra~Ye<rezpedie~, ..these
benefits would not be realized. Thus, to promote
th~~p~nefits, thePLRADlal\es ~:xhaustion
apr~requisi~e tqsuitso thatinIna~shave an
itIc:entiyeW. J>Ut1'u~<i(il)1inistrativeproceedings
that they might otherwise prefer to skip. See id.
at 90.
Just as the PLRA promotes the benefits
QfexhatistipD itlthis way, the e1{ception we
recogIl~. today promptest¥taustion'sbellefits
byrem0vitlg .any . incentiv~ .. pri~on . officials
~ht0therwise>have . . to avoid ilneaning(ullY
~()~si4eriIl~ . inrnates~ gri~vances1>Y screening
themfof. hnproper reason~. ExCUsing a failure to
~aust\Vhtm prlsonoffic;ials improperly screen
an inmate'sacltninisttltiveilppeals .helps ensure
tliatpri$()oofficials wiU.cpnsider and resolve
gri~V<l1lceSit1tern~11y an<lhelps. encourage use
of adnIinistta.tiveproceedingsin whkhil re(:Ord
can be developed that will improve the quality of
decision·making in any eventual lawsnit. At the
same time, this exception does not alter prisoners'

tintil

the..

an

th~wardeIlhadgivenhinlallincorreftcitatioIlto
a regulation that \Vas "r~tricted"fronliinmates.

ld. Finally, after many months of unsuccessful
attempts to obtain the regulation, the inmate
filed the nextlevel appeal of his initial grievance
challenging the search. ld. at 1221. That appeal
and the followiug final-level appeal were rejected
as untimely.ld.
We excused Nunez's fallure to exhanst his
administrative remedies . within thepr~~b~d
time llinits because Nunez "could n()trefl~tla1)ly
be expected to exhaust his administrative
remedies without the [regnlation! . . . , and
becaUse .~unez .. timely . took . rea$Ooable.and
appropriate steps to obtain it." ld. at 1225. Nunez
reasonably believed in good faith, based on the
warden's response to his early appeal, that the
re~lati;on·.Was . neceSsar¥, not met'elyuseful,
to prepare his aPpeal. ld. at 1225-26. Because
the warden's mistake in providing the in<:0rrect
citation thus . "rendered Nunez's adlllinistl]tive
l"emedieseff~vely. unavailable,"weexcl1,sed
Nunez's failure to exhanst.ld. at 1226.
As we .. acknowledged in Nunez,·. our ~ster
cirCllitshave similtifly excused prisoners' fai!ttreS
to .~aust\Vhere. administratlye .r~Dle4~es!V~re
effectively unavailable. ld. at 1224. The Seventh
and Eighth Circuits have held that administrative
rcl11edies are not "available," and exhaustiQuis
tilel'efore not required.where.prison .offifia1s
refu~. to give a prisoner the. f0rtlls necessary
to file an administrative grievance. See Dale v.
Lappin, 376 R3d 652, 656 (7th Cir. 2004); Miller
v. N01'1'Ui, 247 R3d 736, 738, 740 (8th eir. 2001).
The Seventh Circnit similarly has held that prison

15081

I

and .

Daily Appellate Report

15082

incentive to pursue administrative remedies to

the extent possible.
2

Having recognized an exception to the PUM's
exhaustion requirement where

renders administrative

a prison official

remedies effectively

unavailable by- improperly screening a prisoner's

grievances, We must next determine whether
Sapp falls witllin this exceptioIl. To fall within this

exception, a prisoner must show that he atfempti':.~d
to exhaust ·his administrative remedies but was
thwarted by improper .screening, In particular,
the inmate must estahlhh (1) that he actually
filed a grievifIlce or grievances that, if pursued
through all levels ofadministrative appeals, would
have sufficed to exhaust the claim that he seeks
tQ pursue in federal court. and (2) that prisou
officials screened his grievance or grievances
for reasons inconsistent with or unsupported by
applicable regulations.
A, grievance suffices to exhaust a cWm if
it puts the prison on adequate notice of the
problem for which the prisoner seeks redress.
1'0 provide adequate notice, the prisoner need
only provide the level of detail required by the
prison's regulations. Jones v. Bock, 549 U.S. 199,
218 (2007). The California regulations require
only that an inmate "describe the problem' and
the action requested." Cal Code Regs. tit 15, §
3084.2(a). Where, as here, a prison's regulations
are "incomplete as to the factual specificity
[required in an mmate's grievance}. a grieV'dnce
sUffices if it alerts the prison to the nature of
the wrong for which redress is sought." Griffin
v. Arpa;o. 557 E3d 1117, H20 (9th Cir. 2009)
(internal quotation marks omitted).
Sapp pursues three claims against three
defendants in this suit. He alleges that Petersoh
denied him needed medical treatment for: his
eye condition; that Van Cor denied hi.."l1 an OlSon
review' of his medical reco'rds; and that Kirribrell
improperly screened his grievances seeking
medical care. We conclude that 3a.pp's grievances
would have sufficed to exhaust onlY th.e claim
against Peterson.
Sapp's grievances alerted the prison to
the natare of his complaint regarding medical
treatinent for his eye condition. In IDS grievances,
Sapp explained that he was having trouble
getting medical treatment and that he 'may ha,ve
developed an eye infection, and ',he requested
eyelid surgery and a fonow~up appointment with

a doctor at DC Davis. Further, contrary to the
district court's conclusion, Sapp was not required
to identify Peterson by name to eXhaust the
grievance against rum. Neither the PLRA itself
not the California regulations require an inmate to

identify responsible parties or otherwise to sigIlai
who ulUlIlately may he sued. See Jones, 549 U.S, at
217 ("[Nlothing in the [PLRA] imposes a 'name
aU defendants' requirement.''). Sapp's grievances
therefore would have snfficed to exhaust his
claim against Peterson for the denial of adequate
medical treatment
By contrast,
grievance that was screened·
-properly or improperly-would have sufficed to
exhaust Stipp's claim against Van Cor for failing to

no

Tuesday, September 28, 2010

give him an Olson review of his medical records.
Ibe grievances that Sapp alleges were improperly
screened did not mention the denial of an Olson
review at all. Although Sapp filed a suhstantively
sillficient administratiVe ap~at regarding this
prohlem on Novemher 18. 2002, he did not even
wait for a' response before pursuing this suitindeed, he sig1led his federal complaint on the
Saule day he filed that appeal. Sapp therefore
cannot establish that, any 'improper s¢reening
prevented him from exhausting this grievance,
and he acc-Ordingly cannot pursue his OlSon
review claim against Van Cor.
Sapp's screened grievances
similarlY
would not have sufficed to exhaust his claim
against Kimbrell for itnproP13r sere'ening of
his ~ administra.tive appealS'. Again, Sapp first
mentioned this problem in the November 18
grievance that he did n'ot even 'attempt to exhaust
before filing this suit Thus, to the extent that
Sapp seeks to pursue a freestanding chUm against

Kimbrell for improperly screening his appeiUs,
he cannot because he did not attempt to pursue
administrative remedies for ,this problem before
tiling this federal suit'
Thus, S<lpp filed admiiIisf:rative grievances
that would h.ave' sufficed, to exhaust only his
inadequate medical care claim against Peterson.

We a:c.cordingly must next -determine whether the
grievances raising that claim were screened for
improp,er reasons.
On the record before us, it appears that Siipp's
administrative grievances about medical care
for his eye condition wefe effectively screened
out five tinieK We consider each screeniIlg in
turn. First, prison officials declined to consider
a compliiliit about Sapp's eye condition that he
raised for the first time in a second-level appeal
about medical care for a skin condition. There,
officials explained that the eye issue had to he
raised in a separate appeal, starting at the 'first
level. This screening was proper; an inmate must

first present a complaint at the first level of the
administratiVe process. See Cal. Code Regs. 'tit.
15, § 3084.5.
Next, officials screen
about Sapp's eye' co
reason in early June'2002.

use Sa

even mention this appeal in his briefs,
that he does not "contend iliat it was
screened.
A few days later, Sappfiled an appeal indicating
tbat he was having "great difficulty" obtaining
medical care and explainilig that prison staff
had not followed, up on a referral to see' an eye
specialist at UC Davis. His appeal also noted that
he was "unable to recover in malpractice." In the
"Action Requested" box, Sapp explained that he
sought to "recover from a critical problem where a
long ongoing denial of adequate medical care ahd

malpractice which took plat~ in pnson.The issues
are so distittbing <ind complex that the onlY way
to remedy the situation is to cont:i1iue filing 002'8
and tty to remedy the issue any way possible.
'Medical staff here are aware of the issues.' "
Kimhrell screened out this appeal, telling Sapp
to "[bIe sw;cific about eye cO,ndition and action
requested." This screening also was proper,., as
the regulations require inmates to "describe'the

Dally Appellate Report
... action requested." Id. § 3084.2(a). Although
Sapp'sgfievance may have implied that he
jVaIlied t~see any eye specialls~ Sapp indicated
iJr tlle"ActioIJ Requested" hox that he wanted
to "recover from a critical problem" involving

malpractice. Given the mixed messages in Sapp's

grievance, it was appropriate for the screener to
seek clarification of the prohlem for which Sapp
sought tedress.
About a week after that appeal was
rejected, Sapp visited a doctor at the UC Davis
Ophthalmology Department Approximately two
week~ later, on JUlIe 30, 2002, ,Sapp suhmitted an
adrniriistrative grievance tllatcontllined a detailed
description of the history and nature of his eye
ifijury.In the "Action Requested" hox, Sapp wrote,
;1I'm •requesting treatment as soon as possible,
hecause I need the eyelid surgery, and I may
have developed an eye infection. Plus the doctor
seems to know what to do as far as my eyelids,
The issues that lead [sic] up to the damage are
disturhifig and I have heen diligent ifi tr[Y]ifig to
remedy the situation." Two days later, Kimbrell
screened out this appeal, this thne because Sapp
had not attached a Health Care Request Form
showing that he had songh~ and heen denied,
m."Jical ,treatment Kimhrell further explaified,
"ClarifY the issue, have you heen treated at SAC
[this prison] for this condition? If you have not

recently requested treatment at SAC submit
of [sic] CDC 7362 [Health Care Request form]
to the Clinic." This screening was also proper.
The regniations allow an appeal to be rejected
if uDec¢:ssary supporting documents are not
attached." Id. § 3084,3(c)(5). Sapp did not include
a copy of a Health Care Request form indicating
that he had tried to ohtain medical care through
the proper channels. Not did Sapp contest the
screenifig decision by returnifig the form "with
the necessary information"-in this case, a 7362
Health Care Request form showing that he had

sought. and 'been denied, ,medical care- as
boilerplate text at the bottom of the screenifig
form advised him he could do. importantly, the
screening did not preclude Sapp from getting
medical care. To the contrary, it ifistructed him
on how to get it hy submittifig a CDC 7362 form
to the clinic.
More than two weeks later, on July 20, Sapp
submitted a 7362 form requesting a follow-up
appoifitment with the ophthalmologist at UC
Davis. Although the record does not reveal

whether or how prison officials responded to
this request, Sapp never filed a grievance about
the officials' failure to respond adequately to this

request
On August 30, Kimbrell agaifi rejected the
appeal that Sapp had submitted on June 30, this
tilIle for failure to comply with the 15-day time
limit' On the screenifig form, Kimbrell explaified
that a prison official had personally interviewed
Sapp the day before, and that Sapp had indicated
that this was an "old issue" that he had appealed
ill 1990. This screening was also proper. The fonn
indicates. that prison officials, consistent with
tlle re~Jations, recognized that Sapp appeared
to have difficulty explaifiing his complaifit in
wrifu)g and accordingly had ifiterviewed hhn in
persOn to clarify the basis of the grievance. See

15083

id. § 3084.3(b) (3) (requiring an ifiterview when
"an appeal indicates the appellant has difficulty
describing the problem in writing"). In this
ifiterview, Sapp apparently explained that he
sought to appeal. the inadequate·· medical care
he had received. in 1990 when his eye was first
injured ill prison. If this. were his complaint, he
did ifideed miss the 15-day deadline. hnportantly,
however, Kimbrell also acknowledged that Sapp
might .·be . seeking current .medical tteatIllent
and agaifi advised him on how to get i~ noting
at the bottom of the form, "If you need medical
treatment, suhmit a CDC 7362 to the Clinic."
Thus, all of Sapp's adrnifiistrative appeals
",ere screen~dforp~oper reasons. Administrative

rell1edi~swere . accorclingly"available," and Sapp
wasre<iuire? to eXhaustthem.
InreachingthiscoDflttsion,\Vedo notforeclose

the possibility that exhaustion might also be
excusedwhererepeate~rejections
of an inmate's
grievances a~ the screening·stige give rise. to. a
reilsonablegood fait1Jb~li~f that administrative
reIlle~ies are .effectiy~ly. unavailable•.. Sl1c~ an
eXeu~e is not availablel1~re'l1owever,because,
~~spit~tl1e r~p~at~d scr~nings,Sapp could have
no reasonable belief that administrative remedies
were effectively unavailable. Kimbrell specifically
il1stI"tlctedsappon hoW f<) seek m~dicalcare, and
on how to appeal any denial of care, but Sapp did
notfoilowthose instructions.
We further note that nothing in the district
court record suggests that tlle prison had created
draconian· procedural requirements that would
"trlp[ ] up all bnt the most skillful prisoners"which mightfllso render administratiVe remedies
effectively unavailable so as to excuse a :failure: to
exhaust. See Ngo, 548 U.s. at 102 (leaving open
the possihility that an exception to the exhaustion
requireIl1en~ might exist such cirCUJ!lstances).
S3pphad a clear aVenue .to .foTIo\V to receive
mewcal··care or to exhaust his· remedies· if he
did Jl9tre ive tllcdesiredcarc. Frrst, he could
have filed a 7362 Health Care Request form, as
Kimbrell suggested he do. If prison officials did
not respond, or did not provide theIle~dedcare,
he could have filed a grievance about the denial
of care, and appended the form showing that he
l1ilgrequested the Care inaccor~ilncewitll prison
procedllres.1lIen;hecouldhave.pursued that
grievance through the full administrative appeals
proce~;Nothing inthet"e~ord indicatesthat these
apparently straightforward procedures "trip[ ]
up" ordinary illIUates;Ththe·contrary,Sapp has
proven hisownabilitYtQnavigate them' as he
successfully exhausted a grievance about medical
care for askin condition around the sametimeas
he pnrsued his appeals about his eye condition.
~. Be:cause .Sapp'sgrie:vances··.",ere . pr?perly
screened•..·•..• because-. he . . ha4110·.· reasonable
good faith belief that adrnrnistrative remedies
were effectively unavailable, and because the
prison's·· administranvegrievance. r~IriIl1c was
not so coll1plex as to triP. up mostpnsoners,
administrative remedies were available within the
meanifig of the PLRA, and Sapp was accordifigly
required to exhaust them.

in

ce

15084

Daily Appellate Report

B. Equitable Exception to Exhaustion
We next: consider whether, notwithstanding

the avaiJahilityof administrative remedies, Sapp's
special circumstances entitle him to. an equitable
exception to the PLRA's exhaustionrequire1l1ent
Although Sapp does notpreciselyarticlliate
what equitable exception ¥{ould applytQ him,he
suggests that his significant difficulty in following
the!,rrievance process, his reasonable beliefthat

he could not pursue thegrievanceprosess anY
further, his .1imited education, and the 'fact. that
he did not deliberately bypass the .administrative
scheme "Warrant an equitableexc~ptionhere.
We need not. decide her{'; whether such
drcumstancesrnight. \Varra~t..anequitable
exception to the PLRA's exhausriourcql1iremel1t,
however,. becausc .. Sapp .wou1d. not . qualify for
it. Although Sapp's request. for a re:asonable
accoll1Jl1odation to. help him satisfactorily
complete an aqrninistrative grievance . . f9pn .and
hi~n~anyattempts t()pursue his complaintoutside
of the prison's adrninistrativegrievance processthrQug!J letters.to the MedicaIBoard qf CWifornia,
the warden, and the c:a1ifornia ~nspector Gellcr<il-suggest that.Sappqid.. believe ing(){)d faith
that hec9ulclnotpllfsuethe. adIuillistratlye
grievance· process any further, . th?t subjective
belief was. not reasol\able,.<Jsexplained <llJove.
The procedures for optainingrnedicalc<wewere
dear: file a 7362 HealthQare Reqttest form, arid
then file an administr4tive gtievance jfofjicials
failed to respond. Kimprenspedfically~dv:ised
Sapp to submit a 7:J62 form if he sought medical
care.. Although. Sapp.fileq. several $uch forms,
he neyerfollowed up by filing a grievance about
prison o:ffidals' failure to respond adequately to
those requests. Because he never eyenauempted
to. file ·.any such grievance, he. could not have
reasonably believed that he couJd not pursue the
administrative appealspfocess any further.
We therefore dedineto ex;:;useSapp'sfailure
to exhaust. under the . equitable exception. he
proposes,

IV. Conclusion

We hold that administrativeremeqiesare
"effectively unavailable"~and that .the .. PLRA's
exhaustion requirement is therefore excused·
~where

prison . officials improMrly.·..··.scr(;;Cn a
prisoner'sgrievance orgrievances that woul<lhave
sufficed to exhaustthecla:im that the prisoner
seeks to pursue. in federal. court Nonethele!:>s,
we conclude that .Sapp's failure to exhaust is
not excused because prisunoffidals did not
improperly .screen any grievances .that . would
have sufficed to. exhaust his (:laims. We further

conduqe that 5appis not entitled toanY\,;<ltlitable
exception to the PLRNs exhaustionrequireluent
We accordinglyaffirmthedistrict. court's order
dismissing Sapp's claims "'filhollt prejudice.

AFF1RMED.

1be Honorable Edward R Korman, Senior ljl\iv,~d States
District Judge, Eastern Dblrid of New York, sitting by

Tuesday,

SeptefTlb~r28,2010

designation.

1 An{)m;on~~1ew. is ~atl adlnhlistr~ti~epr()&qufeWhich
allows an i t1Tllltte to review his centr<il ~~e. ~[tun!!$ v.SC1'ibn~,
No, CV074381F TUG-RCC, 2010 WL 2605634, *1 (KD; Cal.
Jllne28i201O).
Z We do not, however, mean to suggest ·that an iiltnate
tnust attempt toexhao.st a grievance about any improper
screening in order for improper screening to eJ<:qlSea
failure toexhan;:;t other claiills.

J Saw clajms that l1c did not res\1brnithisl11lle 3Q <ippeal
form,so it is u~d{'.ar'oVI1Y Killlbre;llrejf)cted this. f9frn a
sccpnd . tillle, WIY KimbreU considered this ap~laga,in,
however, is irrelevantto our analysis,

TUe'§c1{1Yt§eptembe'[.2~,:ZQ:J,O

Daily Appellate Report

PRISONERS' RIGHTS
'Gate money'does not violate prisoner's
Fifth Amendment rights because
prisoner does not have current
possessory interest in funds.

denied Ward's claim, We affirm.

1. Background

Plaintiff-Appellan~

Ward was sentenced to 197 years in the
custody 'of the Department as a result of tWenty·
{:l;yo. felony convictions. As.a prisoner. who
w()rks, .Ward is entitled undf'x, Arizona .law .to
compellsati0n at a rateta be determined by the
Director. j\liz. Rev. Stat § 31-254(A). For the most
Part; thisc{HUpensation is placed in the inmate's
spe~4able·5ccollntan? l11ttybe withdra
for
certain.snuIllcrated· purposes~suchasinmate

v.
CHARLES L. RYAN,

Witp~r~wal?ffunq~re~uires<approv~ by prison

Cite as 2010 DJDAR 15085

TIMOTHY LEE WARD,

Director,
Defendant-Appellee.
No. 07-17156
D.C. No. CV-01-02226-ROS
United States Court of Appeals
Ninth Circuit
FlIed September 27,2010
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver,
District Judge, Presiding
Argued and Submitted
January 12, 20lO-San Francisco, California
Before: Alex Kozinski,
ChiefJudge,J.
Clifford Wallace
and
Richard R Clifton,
CircuitJudges.
Opinion by Judge Clifton
COUNSEL
Beau Sterling, Las Vegas, Nevada, for the
plaintiff.appellant
Michele L. Forney, Phoenix, Arizona, for the
defendant-appellee.
OPINION
CI1FTON, Circuit Judge:
Thnothy Lee Ward, an inmate held by
Arizqna Department of ..... ~orrections
("Department"), appeals from the district court's

the

~y

nu

l uediate access to the funds, because his 197year sentence makes it unlikely that he win ever
ber~Ieased pn{)r to his death; The district court

ju<4rtPentin favor of tile Director

of the Department 1 Ward alleges that the
Department's withdrawal of $50.00 from his
priSODJVages pUrSttaIlt to an Arlz()oa statute that
requ~s that. amount of. IIloney be placed in a
dedicated discharge account, to be paid to him

upon his releasefrom incar~eration,violatesthe
Fifth and Fourteenth Amendments. He seeks

vm

store pt!fchases or l011gdistance telephone calls,

officials.
Pursuant to Section 3H37(A) of the Arizona
~eyi~ed ..S~tutes, apercentage . . of . the·. wages
eartl:ed~Y<lprisonerl11usth~deposited·.by.ti1e

DePctrtllJeJlt into a separ~te account, call~da
dedicat?d;qischarge .• 3cc{)unt.until. ti1at.account

rcbristers.::t ·.$;;O~()().~aIaI1~e.TI1 e money ~ ~ldin
tl"l~sacfountisnot~vailabl~fort~e.j)tison~r to
spend while he in prison but will be distributed
t(}hiIJ1~~-~'~atB rnon~r''1Vhenh.e isdischarg-ed
oris ~r~~f~rredtocomlll111lityrelease or home

arrest. See Ariz. Rev. Stat. § 31·237(B). Ii a

pti~l1er di~s inpri:30l1,the.~ate mOIl~risappli~d
UJ('r~ll1ati?ncostsoroth~~relate<l expenses; and
allY .reIIl~ining funds are •. r~{(".asedto his· estate

or heir,z. AS.f{:quiredbytheArizona .•. statute,
$50.00 was withheld from Ward's prison wages
and is held by the Department in his dedicated
discharge account
Ward filed pro se a 42 U.S.c. § 1983 civil rights

sl1ita~ll~t thepirectgraJleging deniru6fa~~~,s
toth~5?l1rts iil violationoftll€ Six.thAmendiriel1t
l1e:aII'len4~d hisc()rnplahl~to ·~4dachlimthatthe
witl1h()l~ng of his :va!resc~:m_stitutedaviQla~on

of the Eighth Amendment and sought both
q}1ll~l1satoryand·pttni~ve,. damages' against
thepirector, as ¥i'ellasinjunctivereliet '"\yard's
complaiiltwasdismissed· by the~istrlctc0lirt
for failure to state a claim. Ward appealed the
dismi~saltq this court We aifinned,t~edisrnissal
of tl-le .3c(C.ess-bJ.co rtsdail11 .but~everse~ the

tt

disrrtissalpfthe .dll€pn)cessdaim;remanding
forfurtherpr?ceedillgs; l;VhichwilI be more fitllY
described below.' See Ward v. Stewart, 81 F. App'x
229 (9th Cir. 20(3) (unpublished).
AftertlJ~case teturnedt6 district coUrt.the
Dlrec~?r

plovedforsu1UIll ary jUdgrnentpJ1the

dll(7PfOC~SS claiU1,asserting r~athe was'entitled

to <tualified. and sovereign illlDlUnity: The district
court granted partial· summary judgment in the
Director's .favor, holdingth<ttthe DirectOTW3S
entitl~ t(» qualified immunity regarding his
personal liability and to sovereign irnmu:nityfor his
summary
judgrnentforthe Director on Ward'sdue-process
claim for punitive damages; The court did notat
that point··grant summary jU:dgmenton Ward's
daimfor injunctivetelief,hi'stead ordering
officialactioIis~l1lecourtalsogtanted

suppJeinentalbriefihg·on that issue,
In his . supplemental brief Ward for the first
time alleged violations of his Fifth and Fourteenth

15086

Dally Appellate Report

Amendment rights against the government's
taking of property without just compensation.

Following consideration of Ward's claims,
including the, new takings c1aim,4 t11e district
court denied Ward's request for injunctive relief
and dismissed the remainder of his claims.
This appeal followed. 5

II. Discussion
We review the district court's sununary
judgment de novo. See Universal llealth $ervs.,
Inc. v. T'iuJmpson, 363 F.3d 1013, 10lQ (9tlI Cir.
2004). Our review is govertlcdby thesa,I1W
standard used by the trial <;ourt under Fedel'al
Rule of Civil Procedure 56(c). Adco,kv, C~rysler
eery., 166 E3d 1290, 1292 (9th Cir. 1999). '''Ne
Illust determine, viewingtflc evid,ence Itlth~ 1i1tht
most favorable to the nonmoving party, wlletlier
there are any genuine issues of materiaL fact
and whether the district court correctlY applied
the relevant,substantive, law,... "U~i1!ersal, Health
Sert)s" 363 F.3d at 1019 Qnternal quotatl9n lIlarks
omitted). Where, as here, the underlying tacts are
not in dispute, we are left.to deterrrtinewhether
the district court correct!)" applied the law. Id.
Ward's primary argument on appealis that t~e
withholding of the $5Q for gate money constituted
a taking of hi:; private property in viol~ti6I1 ofhis
constitutional rights. The '1'akings Clallse o( tlIe
Flfill Amendment prohibits the goverlltnellffr()fll
takirtg private property for public use without
just compensation. This rigbt isavvlicahle to
the .sUltes through the Due Process Clallse of
the. Fourteenth Amendment webb, Eahu/Qus
Pharmacies, Inc. V. I3~ckwith, 449 U.S. 155, 1oo
(1980).
'1'0 establish a violation of the TakingsClause,
Ward must first demonstrate he has apr(}perty
interest. that. is constitutionally . protected.
Sch,,~ider

v. Cat.. Dep't Of Cor< (Sch~eid~r II),
151 F.3d 1194, 1198 (9th Ck 1998). "Oriiy if[tlIe
plaintiff] .does indeed possess such Mi int~rest
will . a reviewing court . proceed to detet1I1ine
whether the exp(Opriatipfi .. of that . interest
constitutes a 'taking'withinthe meaning9f the
Fifth Am.endment" Id. Property interests are
not constitutionally .created; rather~ . prote<:ted
property rights are "created and theirdif!lensions
are defined by existing rules orunderstlndings
that stem from an independentsottrcesu<:has
state law." Bd. ofRegents OfState ColI, v. Roth,408
U.S. 564, 577 (1972).
Inmates forfeit many oftheir traditional rights
to property. S~e Givens V. Ala. Dep't of Cor~, 381
F.3d 1064, 1068 (11th Cir. 2004). And inmates
did not have a protected property interest in
their wages at. common law,. See Calero-: .Toledo
v. Pearson Yacht Leasing Co., 416 U.s, 663, 682
(1974). The Supreme Court of Arizona has
recognized, however, that Arizona created a
protected property interest in inmate ~g~sby
ststute. SeeZuther V. State, 14 P.3d 295,302 (Ariz.
20(0); Ariz. Rev, Stat § 31-254W C'Each prisoner
whois engagedin productivework ... shallreceive
f()r tile prisoner's work the compensation that the
director determines,"'). It is thus undisputed that
Ward has a protected property interest in his
prison wages.

Tuesday,S:epternt>l3r.:28,:2019

Nonetheless, courts have consistently held
that such statutes granti:fig inmates a protected
properi:)r )nter~st in .their w-ages~~sptiwit
and deJiri~Jhe c()l1t~~~s ofsll(;liirltere~~$~e. e.g.,
Washt¢;ke v. Winston, 234 F.3d 179, 185 (4th Cir.
2000) ("[A]n inmate has no property interest in
anY "wages'ffomhisworkinprison except insofar
as the State migbt elect, through statute, to give
him rights."); Rochon v, La. Stat~ Penit€ntiary
Inmate Account, 880 F.2d 845, 846 (5th Cir_ 1989)
("[Petitioner] receives incentive wages solely
because.of the state statutory scheme. Thus, the
nature of his property in~restin those funds tnay
be defined by the reasonahle provisions of that
legislation."); s~e also Givens, 381 F.3d at 1069-70
(holding that the statutory provisions creating a
property interest in inmate wages do not create an
interestin the int~restaccrtl~4(,lIl their accounts);
Allen V. Cuomo, 100 F.3d 253, 261-62 (2d Cir. 1998)
(holding that the statute providing for payment
of inmate wages did not create an entitlement
in access to wages prior to release); Hrbek v.
Farrier, 787 F.2d 414, 416 (8th Cir. 1986) (holding
that the statutory scheme allowed for deductions
from prison wages and stating that the "statutory
provisions clearly establisb that [petitioner] can
assert no le~itimateclWIll Qf~~tiqement to the
full amount of his wages hased upon state law").
In Tellis v, Godinez,S F.3d 1314 (9th Cir. 1993),
we considered a Nevada inmate's right to interest
earned on money dePosited· in his personal
propertyfund. In holding that the inmate did have
a constitutionally protected property interes~ we
determined that we needed to look not only at
the plain language of the section of the statute
provi<1ing.for the.iIlrpate'~t>r(}~inten~:;~'but
also its context within the surrounding statutory
framework. Id. at 1316-17 ("[T]he statute is to be
read as a whole, sinc~ff1e ll"l~~ing of statutory
language, piain or not depends on context'')
(internal quotation marks omitted).
In turning to the Arizona statutory tramework,
we begin by observing that in Zuther, the
Supreme Court of Arlzona rejected a challenge
hy a different Department inmate to the same
gate-money requirement that is at issue in this
case. While recognizing that the inmate had a
statutorily-ereated property interest in his wages,
the Arizona court held that the inmate had "no
constitutional rigbt to possess that property
while in prison, and [that] the delay in access to
the amountwithheid [was] at most a de minimus
deprivation." Zuther, 14 P.3d at 302.
We pointed out in our previousdedsi6rim
this case, however, that Zuther might not be
dispositive bere because Zuther had actually
been released and granted access to the withheld
funds, see id. at 298 n.2, while Ward is serving
a 197-year sentence and therefore will probably
I1eyer gainpers()nal ac;cesst() the fun<1s.Wardi~l
F. App'x at 229.
On remand, the distrlct court considered
tIle collsequepses of"Ward'sp~tiCtJ¥u."sen~~I1~~
on the withholding of wages in the dedicated
discharge account and concluded that the
application of the requirement did not alter the
outcome for two. rellS?fis. F'~t~Yetl t>ri~ol),~t'S
sentenced. to lif~ iI)lpr$()nIl1ent>at'esotl1,~tiIl"l~s
ahle to obtain release prior to expiration of their

Tw:,:sdaY,'$.eptempBr 28,201Q

Daily Appellate Report

na.tural life through reversal of their conviction
or sentence on appeal; reprieve, computation, or
pardon; or a r~dt1ction of sentence bysutksequent
l'1'w, Second, funds held in a dedicateddi~harge
account for. an .inmat.e who dies in . prison are
~BP~ed to his cremation or other final expenses,
any remaining funds inure to his estate. We
agree with the districtcourfs conclusion.
,. Arizona statutes impose several limitations on
an inmat.e's spending of his wages and delineate
Iilandatory deductions from inmates' accounts.
These limitations and mandatory deductions
iIidkate the state's intent to place restrictions
on ,an inmate's control over the wages he has
earned. Sl-"Ction· 31-254 of the Arizona Revised
Statutes leaves the amount of compensation for
inniate work to the discretion of the Director.
Ariz· Rev. Stat § 31-254(A).'Ibe statute provides
formandatory deductions from inmate wages, not

and

only for the dedicated discharge account,but also
for court costs,.room and board costs, and court
ordered dependent care.ld. § 31-254(D), (E). 'The
Director is also given t-"xplicit authority to regulate
inmate usage of the funds in prisoner spendable
accounts. ld. § 31-230(B) ("The director shall
adopt rules for the disbursement of monies froro
prisoner spendable accounts."). Additionally, the
statute creating the dedicated discharge account
does not: provide for ex,ceptipns or adjustments
based on the length of an inmate's sentence. ld.
§ 31- 237.
These statutes dearly establish a framework
under which inmates' property interest in their
\Vages is limited by the oversight of the Director
and is subject to mandatory deductions. The
statutes do not give inmates a fun and unfettered
right to their property hut rather resh"kt their
control over their eamings. 'Accordingly, Ward
does not possess a protected property interest
in'the immediate access to ·wages held in his
dedk:ated discharge accoUnt, because he does
ll()tcurrently have the statutory right to use
these funds in the account. Ward's life sentence
does not alter this outcome. While these funds
are Ward's property, the Director may properly
restrict his access to them without offending
traditional notioIls ofpr()perty law.
Ward argues that even ita statute does not
explkitly create a property interest, such right
Il1aynonethe1ess stin exist. That is true. We held
in Schneider II that courts must consider whe:t~er
the claimed property.interest is "a 'core' notion
()f constitutionally protected property into which
state regulation simply may not intrude without
prompting Takings Clause scrutiny." 151 E3d at
~20~~ Property's "core" meaning is determined "by
ref~rence to traditional 'background principles' of
pr()perty law." ld. at 1201.
In Schneider II we examined the California
Department of Corrections' failure to pay interest
on funds deposited in htmate trust accounts.
ld.~t 1195., We held that "[t]he 'interest follows
principal' rule's common law pedigree. . leaves
u$with little doubt thatinterestincome of the sort
a,~issue here is fundamental that states may not
aPPropriat.e it without implicating the Takings
qai1Se." ld. In the fourth round of litigation ill
Sr~neider, we held that California's failure to pay
interest was therefore a taking under the Fifth

15087

Amendment where the interest was diverted to
a common inmate welfare fund. Schneider v. Cal.
Dep't of Corr. (Schneider lV), 345 F:3d 716, 719-21
(9th Clr. 2003).
Ward's chini does notrancern a "core notion
of constitutionally protected property)' As we
preViously explained, under common law prison
inmates lost their rights to unfetteredcorttr61 and
US~

of ptivatep~operty.Thededkate~discharge

account. while not eurrentlyaccessible by Watd,
is being heldJonVard's benefit It \'/ill he paid to
him ~P?pdjsch<trge,u8<;dfor ,hisflnal ex~enses,

orleftto hi~heir.ltllaspotatldWillnotryetaken

at14tfsedpYtl1~ 15?Vernrqent for its {)\Vnbent;fit
or for thek~nefitofanyoI1e el~, I,tullke. the
interest income intheSch1udder cases, which was
perm?Ilelltly 1:al\:~tibythe California Department
of Correctiollsanqplacedin aCOIIlmOn fund to he
used for the inmate population as a whole, In light
ofWard's limited property right in his wages and
thefa(.,thehasnotsuffereda permane:Qt taki11g
of hiswag~s?¥·theirplace11lentinadedicated
dischar~~,aC(;~unt, 'Yar(l··has

not stated a flai1l1

for .theunconstifuti()~~ltaking .of..his·. properi]'.
The> dedk~teddischargeaccount .. here thus
differs from inmate ac(;ounts at issue in other

ca~~~.yvller{:.·.. "{·~.·.hdd. ·.that thR.·.Ta19ngs ... Glau~e
was implicated Sir:, eg, Schneitkr IV; 345.l.'3d
at 719-21; McIntyre v. Bayer, 339 F.3d 1097, 10991100 (9th Cir.2003) (holding that pooling interest
on Nevada i.nmate trust accounts and requiring
inmates . to· contribute a portion of thdrwages
to a victims' compensation fund implicated the
Taldrigs Clause).
Ward also makes a due process claim, but that
is not viable either. To establish a due process
violation, an inmate "must demonstrate that' {he]
hals] be{;ll deprivedofa protected liberty {)f
property interest arbitrary governmentaction."
McKinney v. Andemoo, 924 F.2d 15QO, 1510 (9th
CiT 1991), vacated on other grounds by Hitling v.
McKinney, 502 U.S, 903 (1991), As db'C'U",,,,d
above, 'Nard does nothavea protected property
interest in the current use of the funds in the
deditatedd.ischarge¥cou:n4 and he has not been
~nnane!lt1Ydeprive4of any property interest.
Furthermore~.·theg{)yernmenfs .action here is
not arbitrary; as the···distrid court pointed ;out,
"[g}ate money promotes public welfare and the
co:rnnlon good hy- aidinginrnates' Integration into
socieo/ and rerno\riIlg the immediate temptation
to acquire needed funds through illegal means."

by

III. Conclusion
Ward· does· not have a current possessory

property interest in the wages :'withhe1d in the
dedicated discharge account ~nd he has not
'beet! permanently deprived of· those funds, so
the Departuienfs withholding of the $50.00 from
his wages for gate money does not violate his
constitutional rights. The district court: properly
granted s(ulllIl:ary judgment for the Director.
Becatlse offour resol11tionofthat issue, we do not
needtoadd:ress theseparatearguments regarding
qualified irtnnurtity aIidpmlitive damages.
AFFIRMED.

15088

1

Dally Appellate Report

Charles L Ryan is substituted for former Director Dora

Schriro, who had herself been substitilted for former
DirectorTerry L Stewart.
2 Department Order 711.05, providing for the disposal of a
deceased inmate's property, was amended effective April16,
2009. It supercedes the previous 2007 version of the order,

which was dted in the district cQurt'sdecision below. The
Cllrrentversion makes no specificinention ofthe proposition
that dedicated discharge account funds Will be applied first
to a deceased inmate's cremation costs, SUggestiilg that the
funds may simply be released to the prisoners estate or heir.
This amendment has no effect oli oUr decision.
The district court interpreted Ward's Eighth Amendment
as a due-procp.$s clairri; and we fOllowed this
interpretation.

:J

c1aml

'fltedistrict court elet.~ted to consider Ward's takings claim
because the allegations of a pro se complaint are held to
alessstHngent "iandard, Haines v. Kerner, 404 US. 519,
520 (1972) (per curiam), and because the. Director had
the opportunity to respond to Ward's takingS claim in his
supplemental reply brief.
4

, In this appeal Ward has been represented by counsel
appearing pro oono.

TuesdaY,September28,201Q