Kevin Andres v. Marshall
2017 U.S. App. LEXIS 6990
9th Cir.2017Background
- On Jan 23, 2013, prisoner Kevin Lamarr Andres alleges correctional officer Marshall used excessive force at Donovan Correctional Facility (DCF).
- Andres filed a 602 grievance two days later; DCF staff did not respond or process the grievance.
- On April 4, 2013, Andres filed a state habeas petition challenging the failure to process his grievance; while that petition was pending, he filed a § 1983 lawsuit (July 24, 2013) including the excessive-force claim.
- The state habeas court held an evidentiary hearing and on Aug 22, 2014 granted the petition, finding Andres had timely filed the grievance and ordering DCF to accept and process it.
- The district court nonetheless dismissed Andres’s excessive-force claim for failure to exhaust administrative remedies (adopting a magistrate judge recommendation), reasoning exhaustion was not complete before suit; Andres appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether administrative remedies were "available" under the PLRA such that Andres had to exhaust before filing | Andres argues remedies were effectively unavailable because DCF failed to process or respond to his grievance and the state habeas later confirmed the failure | Defendants argue exhaustion was not complete when Andres filed suit and McKinney requires pre-filing exhaustion, so dismissal was proper | Court held remedies were effectively unavailable due to DCF's failure to respond; Andres is deemed to have exhausted and dismissal was improper |
| Whether the district court should have relied on McKinney to dismiss despite state habeas ruling | Andres argues McKinney does not apply where officials prevent use of grievance process | Defendants rely on McKinney to require dismissal if exhaustion not completed pre-filing | Court reconciled McKinney with Ross: where officials thwart access (here, failure to process), remedies are not "available," so McKinney dismissal was improper |
Key Cases Cited
- Ross v. Blake, 136 S. Ct. 1850 (2016) (PLRA requires exhaustion only of grievance procedures "capable of use"; lists circumstances making remedies effectively unavailable)
- McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (plaintiff must exhaust administrative remedies prior to filing suit unless remedies are unavailable)
- Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (standard of review for exhaustion issues)
- Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010) (recognizes PLRA does not require exhaustion when remedies are effectively unavailable)