John Fordley v. Joe Lizarraga
18 F.4th 344
9th Cir.2021Background
- In March 2016 Fordley alleged he was physically and sexually assaulted by four Mule Creek correctional officers and filed a Form 602 grievance on March 27; the prison acknowledged receipt but never produced the Form 602 or a substantive response.
- Fordley submitted two Form 22 follow-ups in April complaining his March grievance (an emergency) had not been processed; prison replies acknowledged receipt and said the appeal was “in process” but did not assign a tracking log or complete the emergency bypass required by regulation.
- On May 8 Fordley filed a second Form 602 complaining of post‑March harassment (contraband, threats, withholding meals/sheets); that May grievance referenced the March assaults for context, was accepted and investigated (interviews occurred), and was ultimately denied on third‑level review after Fordley sued.
- Fordley filed a § 1983 complaint on August 22, 2016 while the May grievance was still pending; the district court granted summary judgment for defendants for failure to exhaust administrative remedies and dismissed the warden claim as unexhausted.
- The Ninth Circuit (majority) reversed dismissal of the claims premised on the missing March grievance, holding the prison’s failure to respond rendered administrative remedies "unavailable" under the PLRA, but affirmed dismissal of the claim against Warden Lizarraga for lack of exhaustion (Fordley never named or put the warden on notice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prison’s failure to respond to Fordley’s March 2016 grievance rendered administrative remedies "unavailable" under the PLRA | Fordley: lack of any substantive response (and no tracking/log) to an emergency grievance made remedies unavailable, so he exhausted by properly filing | Defendants: remedies remained available because Fordley later filed a May grievance that mentioned the March assaults and the grievance process was being used | Held: Court reversed—prison’s failure to process/respond to the March emergency grievance rendered remedies unavailable, so dismissal as unexhausted was error |
| Whether the May 2016 grievance (which referenced March events) either exhausted or vitiated the March grievance for PLRA purposes | Fordley: May grievance did not undo the prison’s earlier failure to process the March emergency grievance; he should not be penalized for filing the May complaint | Defendants: May grievance’s processing showed remedies were available and therefore Fordley’s suit was premature | Held: Court held the May grievance did not "unexhaust" or negate the effect of the prison’s failure to process the March grievance; the March-based claims are deemed exhausted by the unprocessed March filing |
| Whether Fordley exhausted his deliberate‑indifference claim against Warden Lizarraga without naming the warden in any grievance | Fordley: March grievance should have put officials on notice such that an action against the warden was fairly presented | Defendants: the warden was not named nor were specific actions or failures by the warden alleged in grievances | Held: Court affirmed dismissal as to the warden—grievances did not name or sufficiently put the warden on notice, so that claim was unexhausted |
| Burden and standard for PLRA exhaustion at summary judgment | Fordley: (implicit) he took reasonable steps and prison’s failures made remedies unavailable | Defendants: bear burden to show remedy was available when suit filed; summary judgment proper if plaintiff failed to exhaust | Held: Court reiterated that defendants bear the initial/ultimate burden to prove availability; if defendant shows availability inmate must show particular unavailability; review of such summary judgment is de novo |
Key Cases Cited
- Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005) (delay in responding to a grievance, especially time‑sensitive ones, may show administrative remedies were unavailable)
- Ross v. Blake, 136 S. Ct. 1850 (2016) (PLRA requires exhaustion of "available" remedies; defines when remedies are not "available")
- Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion requires compliance with the prison’s critical procedural rules)
- Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (allocation of burdens in PLRA exhaustion defenses)
- Andres v. Marshall, 867 F.3d 1076 (9th Cir. 2017) (prison officials’ failure to process a grievance can render administrative remedies effectively unavailable)
- Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010) (if officials screen out appeals for improper reasons, remedies are unavailable)
- Jones v. Bock, 549 U.S. 199 (2007) (exhaustion is an affirmative defense that defendants must plead and prove)
- Fuqua v. Ryan, 890 F.3d 838 (9th Cir. 2018) (explaining purposes of exhaustion and the need for orderly administrative process)