SHIKEB SADDOZAI v. RON DAVIS, Warden of San Quentin State Prison; CLAWSON, Correctional Officer, San Quentin State Prison; MALIKIAN, Correctional Officer, San Quentin State Prison; C. SMITH, Correctional Officer, San Quentin State Prison; SERRINTINO, Correctional Officer, San Quentin State Prison; PRIETO, Correctional Officer, San Quentin State Prison; HERRERA, Sergeant Correctional Officer, San Quentin State Prison; M. GAITAN, CDCR Correctional Officer, Sergeant; DIRECTOR, California Department of Corrections and Rehabilitation
No. 20-17519
United States Court of Appeals for the Ninth Circuit
May 23, 2022
D.C. No. 5:18-cv-05558-BLF
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted April 15, 2022 San Francisco, California
Filed May 23, 2022
Before: EUGENE E. SILER,* A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY**
Civil Rights
The panel reversed the district court‘s dismissal of a prisoner civil rights complaint for lack of exhaustion under the Prison Litigation Reform Act and remanded.
Plaintiff alleged excessive force after being shot by a correctional officer during an incident that occurred while Plaintiff was incarcerated at California‘s San Quentin State Prison. Defendants moved to dismiss Plaintiff‘s third amended complaint against Defendant Clawson for failure to state a claim and because Plaintiff had not exhausted administrative remedies under the Prison Litigation Reform Act (“PLRA“) before he filed his original complaint. The district court agreed that Plaintiff failed to exhaust his claim against Defendant Clawson at the time he filed his original complaint and dismissed the third amended complaint for lack of exhaustion under the PLRA.
The panel clarified the underlying principle in Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), which controlled the outcome here. Jackson made clear that the PLRA does not supplant or modify
COUNSEL
Katherine Cion (argued) and Christina Davis, Roderick & Solange MacArthur Justice Center, Washington, D.C.; Easha Anand, Roderick & Solange MacArthur Justice Center, San Francisco, California; for Plaintiff-Appellant.
Oliver C. Wu (argued) and Kevin A. Voth, Deputy Attorneys General; Alicia A. Bower, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.
Eugene M. Gelernter and Abigail E. Marion, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Northern California; Brennan Center for Justice at NYU School of Law, Florida Justice Institute, Human Rights Defense Center, Prison Law Office, Southern Center for Human Rights, and Southern Poverty Law Center.
M. SMITH, Circuit Judge:
In this case we clarify the underlying principle in Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), which controls the outcome here. Jackson made clear that the Prison Litigation Reform Act (PLRA) does not supplant or modify
Plaintiff, Shikeb Saddozai, appeals the district court‘s dismissal of his complaint alleging excessive force after being shot by Defendant, correctional officer Clawson, during an incident that occurred while Plaintiff was incarcerated at California‘s San Quentin State Prison. The district court held that Plaintiff did not meet the PLRA‘s mandatory exhaustion requirement before filing suit. See
To comply with the PLRA‘s exhaustion requirement in California, Plaintiff was required to follow a three-step grievance process: first submit a grievance Form 602 to the prison appeals office and then, depending on the response, appeal that decision to a second and third level. On August 25, 2018, Plaintiff filed a first-level grievance regarding the excessive force incident. The prison appeals office rejected the grievance as procedurally improper because Plaintiff exceeded the regulatory limit on filing grievances during a fourteen-day period. He was instructed to refile after September 12, 2018. The record is not clear as to when, but at some point after September 12, Plaintiff resubmitted his grievance. On September 26, 2018, the prison appeals office again rejected Plaintiff‘s grievance on procedural grounds for being “obscured by pointless verbiage or voluminous unrelated documentation” and instructed him to resubmit.
Meanwhile, Plaintiff had also filed a pro se complaint in federal court, docketed on September 11, 2018. On October 2, 2018, as his federal complaint was pending review, Plaintiff filed a procedurally compliant prison grievance about the excessive force incident. The prison denied Plaintiff‘s requested relief at the first level of review, and so he appealed to the second level on October 28, 2018. On November 6, 2018, the prison issued a second-level response to Plaintiff‘s grievance. Plaintiff appealed to the third level, and on February 5, 2019, he received a final administrative decision. Both parties agree that as of February 5, 2019, Plaintiff had fully exhausted.
On January 16, 2019, the district court first screened Plaintiff‘s complaint pursuant to
Plaintiff then filed a second amended complaint on August 15, 2019, raising claims against Defendant Clawson related only to the excessive force incident. The district court found that Plaintiff‘s second amended complaint “stated a cognizable claim” against Defendant Clawson “for failure to protect under the Eighth Amendment.” Plaintiff then supplemented his complaint “as a matter of course.” The district court declared that Plaintiff‘s third amended complaint filed on March 6, 2020, was the “operative complaint.”
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to
ANALYSIS
This is a simple case. Both parties agree that Plaintiff had not exhausted his administrative remedies at the time he filed his initial complaint in federal court. The parties also agree that Plaintiff had fully exhausted by the time he filed his third amended complaint, which the district court deemed the “operative complaint.” In Jackson, 870 F.3d at 934, we held that a prisoner “can cure deficiencies through later filings, regardless of when he filed the original ‘action.‘” We made clear that “[e]xhaustion requirements apply based on when a plaintiff files the operative complaint, in accordance with the Federal Rules of Civil Procedure.” Id. at 935. Therefore, Plaintiff‘s operative third amended complaint controls the PLRA exhaustion analysis, and the district court erred in dismissing it for lack of exhaustion.
Defendant describes Jackson as “an outlier” and as having “departed from” earlier cases. He argues that Jackson‘s reasoning was wrong and that the case “should be limited to that particular factual setting.” Jackson is not distinguishable from this case, as Defendant implicitly acknowledges. Jackson involved a prisoner who also filed a federal complaint prior to exhausting his administrative remedies. Id. at 931-32. As his federal complaint was pending review, the plaintiff was released from prison. Id. at 932. The plaintiff in Jackson amended his complaint after release, and our court concluded that the “amended complaint,” not the original complaint, “controlled the PLRA exhaustion analysis.” Id. at 934. Because PLRA exhaustion requirements do not apply to non-prisoners, when Jackson filed his third amended complaint, the exhaustion requirement did not apply to him. Id.
Defendant asks us to distinguish this case because of Jackson‘s change in prisoner status. This fact is irrelevant. Because Jackson was a non-prisoner at the time he filed his amended complaint, he no longer had to comply with the PLRA‘s requirements. Yet, it was not his status as a non-prisoner that cured the initial lack of exhaustion. Rather, it was because Jackson filed a new operative complaint at a time when the PLRA exhaustion requirement no longer applied to him. Just as in Jackson, this case turns on whether the court should look to the initiation of the suit (when Plaintiff had not exhausted his remedies), or to Plaintiff‘s operative third amended complaint (filed when Plaintiff had fully exhausted his administrative remedies). Id. at 934. Jackson answered with the latter.
In a legal Hail Mary, Defendant argues that even if Jackson applies, we should decline to follow it because it is irreconcilable with the Supreme Court‘s intervening authority in Ross v. Blake, 578 U.S. 632 (2016). Nothing in Jackson, however, is inconsistent with Ross. In Ross, the Supreme Court explained the narrow availability exception to the PLRA‘s mandatory exhaustion requirement. 578 U.S. at 635, 643-45. Jackson has nothing to do with exceptions to the exhaustion requirement, and neither does the case here. On the contrary, Plaintiff has—on the admission of Defendant—fully exhausted his administrative remedies and has no use for an exception. Moreover, if we had any doubts, we note that as this case was pending on appeal, the Supreme Court cited our Ninth Circuit precedent favorably in positing that “[t]he original defect” of lack of exhaustion in a prisoner‘s complaint “was arguably cured by ... subsequent filings.” Ramirez v. Collier, 142 S. Ct. 1264, 1276 (2022) (citing Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010)). Although the discussion in Ramirez is dicta because the prison defendants failed to raise the exhaustion argument, the fact that the Supreme Court favorably cited our precedent undercuts Defendant‘s position that our precedent is unlawful.
We are equally unmoved by Defendant‘s policy arguments, which are similar to those advanced by the defendants in Jackson. See 870 F.3d at 934. Defendant contends that prisoners will now have a green light to file simultaneous federal complaints and prison grievances, knowing they can later cure through amendment. This position ignores the realities of prison litigation and, in particular, the operation of the “three strikes” rule. See
CONCLUSION
This case is controlled by our decision in Jackson, and we agree with the result. Plaintiff‘s operative third amended complaint is the only relevant pleading for purposes of the PLRA exhaustion analysis. The district court therefore erred in dismissing Plaintiff‘s operative complaint for lack of exhaustion.
REVERSED and REMANDED.