Andres v. Marshall, 867 F.3d 1076

Kevin Lamarr Andres, a California state prisoner, alleged excessive force by defendant Marshall at Donovan Correctional Facility on Jan. 23, 2013.
Andres filed a CDCR Form 602 grievance two days after the incident but received no response; he later filed state habeas seeking relief for failure to process the grievance.
Andres filed his § 1983 complaint in July 2013 asserting the excessive force claim and arguing administrative remedies were unavailable because DCF failed to process his 602.
The state habeas court held an evidentiary hearing and granted relief, finding Andres had timely filed the grievance and ordering DCF to process the appeal (decision later affirmed by the California Court of Appeal).
The federal district court, after considering the state-court materials, dismissed Andres’ excessive force claim for failure to exhaust, relying on McKinney v. Carey; the district court entered judgment in June 2015.
On appeal, the Ninth Circuit treated the state-court record as part of the record, concluded administrative remedies were effectively unavailable because officials failed to process the grievance, vacated the dismissal, and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Andres exhausted available administrative remedies under the PLRA before filing suit	Andres: remedies were effectively unavailable because DCF failed to process his timely 602 grievance	State: Andres was still pursuing the grievance when he filed suit, so dismissal for failure to exhaust was proper	Held: Remedies were effectively unavailable because officials failed to process the grievance; exhaustion satisfied at time of filing; dismissal reversed
Proper timing for measuring exhaustion under § 1997e(a)	Andres: measure availability at time suit is filed	State: pointed to later availability during litigation	Held: Exhaustion is measured at the time the action is filed, per McKinney
Whether prison officials’ failure to respond can render remedies unavailable	Andres: failure to process equals unavailability; so he is deemed to have exhausted	State: implicit dispute that ongoing process meant remedies were available	Held: Failure to process/thwarting grievance renders administrative remedies unavailable under Ross; prisoner deemed to have exhausted
Whether district court properly considered state habeas record	Andres: state-court findings show unavailability	State: argued remedies were being utilized	Held: District court considered state documents (judicial notice treated as part of record); Ninth Circuit relied on those findings to reverse

Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (standard of review for exhaustion legal rulings)
McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (exhaustion must be completed before filing suit)
Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010) (PLRA does not require exhaustion when remedies are effectively unavailable)
Ross v. Blake, 136 S. Ct. 1850 (2016) (administrative remedies only required if capable of use; outlines three circumstances rendering remedies unavailable)
Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005) (delay or failure to respond may show remedies are unavailable)