James McBride v. S. Lopez
2015 U.S. App. LEXIS 20589
| 9th Cir. | 2015Background
- On July 4, 2010 James McBride, a California inmate at Pleasant Valley State Prison, was allegedly beaten by guards after throwing a burning liquid; he was placed in administrative segregation.
- Guards Lopez and Ruggles allegedly told McBride he was "lucky" his injuries "could have been much worse;" McBride interpreted these remarks as threats and did not immediately file a grievance.
- McBride filed an inmate appeal about ten weeks later (Sept. 16, 2010), beyond the then-15 day deadline; the appeals coordinator rejected it as untimely and found his explanation inadequate.
- McBride sued under 42 U.S.C. § 1983 for excessive force; defendants moved to dismiss for failure to exhaust administrative remedies under the PLRA.
- The district court dismissed, finding the guards’ statements were not overt threats sufficient to excuse failure to exhaust; McBride appealed.
- The Ninth Circuit considered whether a fear of retaliation can render grievance procedures "effectively unavailable" and thus excuse non-exhaustion, applying the Eleventh Circuit two-part test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fear of retaliation can excuse failure to exhaust PLRA remedies | McBride: threats deterred him from timely grieving | Defendants: statements not threats; remedies available | Fear can excuse, but not here |
| Which legal test governs threat-based unavailability | McBride: grievance unavailable due to threats | Defendants: objective basis lacking; exhaustion required | Adopt Eleventh Circuit two-part (subjective + objective) test |
| Whether McBride satisfies the subjective prong | McBride: he perceived comments as threats and was deterred | Defendants: he was not actually deterred in a legally relevant way | McBride satisfied the subjective prong |
| Whether McBride satisfies the objective prong | McBride: prior beating and comments show a reasonable fear | Defendants: comments lacked reference to grievances or explicit retaliation threats | McBride failed objective prong; dismissal affirmed |
Key Cases Cited
- Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (exhaustion issues usually resolved on summary judgment; rare exceptions)
- Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) (threats can render grievance process unavailable using an "ordinary firmness" standard)
- Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008) (adopts two-part subjective and objective test for threat-based unavailability)
- Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010) (administrative remedies rendered unavailable by prison officials’ actions)
- Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010) (improper screening can make remedies "effectively unavailable")
- Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) (threat need not explicitly reference grievance system to be relevant)
- Woodford v. Ngo, 548 U.S. 81 (2006) (PLRA exhaustion aims and requirements)