(PC) Mixon, Jr. v. Tyson, 1:16-cv-01868

Plaintiff Lendward Alton Mixon, Jr., a pro se state prisoner, sued under 42 U.S.C. § 1983 alleging deliberate indifference for being assigned an upper bunk despite disability; he fell May 9, 2016 (back injury) and again Aug 5, 2016 (fractured foot).
On March 5, 2016 custody (Officer Jimenez) refused to seek a bottom-bunk assignment and told Mixon to see medical; Dr. Metts examined Mixon June 17, 2016 but did not immediately issue a bottom-bunk chrono.
Mixon filed two health-care appeals about a lower-bunk chrono: SATF-HC-16063382 (received June 3, 2016) was rejected and not resubmitted; SATF-HC-16063767 (received Aug 17, 2016) was granted at the institutional (second) level on Sept 21, 2016 but Mixon appealed to the third level on Oct 5, 2016; the third-level denial issued Jan 17, 2017.
Mixon filed this lawsuit Dec 14, 2016—before the third-level decision on SATF-HC-16063767—and defendants moved for summary judgment for failure to exhaust under the PLRA.
The court found CDCR had a three-level administrative process available, defendants carried their burden showing Mixon did not exhaust before filing (first appeal was rejected and not resubmitted; the second appeal was not finally resolved at the third level until after suit), and recommended granting summary judgment and dismissing the action without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mixon exhausted administrative remedies before filing suit	Mixon says he had no further remedies because institutional (second-level) granted his lower-bunk chrono	Defendants say first appeal was rejected and not refiled; second appeal was not finally decided at third level until after suit	Court: Mixon failed to exhaust before filing; summary judgment for defendants; dismissal without prejudice
Whether a second-level grant can exhaust remedies	Mixon contends a second-level grant relieved him of need to appeal further	Defendants point to Mixon’s third-level submission (showing dissatisfaction) so remedies remained available	Court: Second-level grant did not exhaust because Mixon appealed to third level, indicating remedies remained available

Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (defendant bears burden to prove absence of exhaustion; summary-judgment framework for PLRA exhaustion)
Booth v. Churner, 532 U.S. 731 (2001) (PLRA exhaustion required regardless of relief sought)
Porter v. Nussle, 534 U.S. 516 (2002) (exhaustion requirement applies to all prisoner suits relating to prison life)
Woodford v. Ngo, 548 U.S. 81 (2006) (requires "proper exhaustion" complying with prison procedural rules)
Jones v. Bock, 549 U.S. 199 (2007) (prison’s grievance rules define proper exhaustion)
Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (claims unexhausted at filing cannot be litigated even if exhausted later)
Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005) (remedies remain "available" until no remedy exists)
Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010) (no obligation to appeal a grant of relief that satisfies the inmate)
Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) (failure-to-exhaust remedy is dismissal without prejudice)
Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2014) (on summary judgment, evidence viewed in light most favorable to nonmovant)