Juan Albino v. Lee Baca, et al

Filing

FILED OPINION (ALEX KOZINSKI, STEPHEN R. REINHARDT, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD C. TALLMAN, JAY S. BYBEE, MILAN D. SMITH, JR., SANDRA S. IKUTA, N. RANDY SMITH, MARY H. MURGUIA and PAUL J. WATFORD) REVERSED AND REMANDED.Opinion by Judge W. Fletcher; Dissent by Judge N.R. Smith FILED AND ENTERED JUDGMENT. [9042474]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JUAN ROBERTO ALBINO,
Plaintiff-Appellant,

No. 10-55702

v.

D.C. No.
2:08-cv-03790GAF-MLG

LEE BACA, Los Angeles County
Sheriff; LOS ANGELES COUNTY,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted En Banc
June 27, 2013—Seattle, Washington
Filed April 3, 2014
Before: Alex Kozinski, Chief Judge, and Stephen
Reinhardt, Kim McLane Wardlaw, William A. Fletcher,
Richard C. Tallman, Jay S. Bybee, Milan D. Smith, Jr.,
Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia and
Paul J. Watford, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge N.R. Smith

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ALBINO V. BACA
SUMMARY*

Prisoner Civil Rights
The en banc court reversed the district court’s grant of
summary judgment for defendants and remanded with
instructions to enter summary judgment for plaintiff on the
issue of whether he exhausted his administrative remedies,
pursuant to the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a), prior to bringing suit.
First, the court overruled Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003), which held that a failure to
exhaust under § 1997e(a) should be raised by a defendant as
an “unenumerated Rule 12(b) motion.” The court held that
to the extent evidence in the record permits, the appropriate
procedural device for a pretrial determination of whether
administrative remedies have been exhausted under the
Prison Litigation Reform Act is a motion for summary
judgment. If summary judgment is not appropriate, the
district judge may decide disputed questions of fact in a
preliminary proceeding.
Second, the court held that plaintiff satisfied the
exhaustion requirement of § 1997e(a). The court determined
that defendants failed to prove that administrative remedies
were available at the jail where plaintiff was confined.
Because no administrative remedies were available, the court
determined that plaintiff was excused from any obligation to
exhaust under § 1997e(a). The court sua sponte directed that
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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summary judgment be granted to plaintiff on the issue of
exhaustion.
Dissenting, Judge N.R. Smith, joined by Judges Tallman
and Ikuta, wrote that the majority opinion (1) ignored the
“clearly erroneous” standard of review in reviewing the
district court’s findings; (2) mandated the production of
unprecedented evidence in order for the defendants to meet
their burden of proof on exhaustion; (3) granted summary
judgment to the plaintiff sua sponte, without allowing the
defendants the opportunity to produce the newly mandated
evidence; and (4) changed the procedure by which courts
determine whether a plaintiff has exhausted administrative
remedies.

COUNSEL
Andrea Renee St. Julian (argued), San Diego, California, for
Plaintiff-Appellant.
James C. Jardin (argued), Melinda W. Ebelhar, Catherine M.
Mathers, Christian E. Foy Nagy, Collins Collins Muir &
Stewart LLP, South Pasadena, California, for DefendantsAppellees.

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ALBINO V. BACA
OPINION

W. FLETCHER, Circuit Judge:
Juan Roberto Albino brought suit against Los Angeles
County Sheriff Lee Baca, several Doe defendants, and Los
Angeles County, alleging violations of 42 U.S.C. § 1983, as
well as several state laws, arising out of injuries Albino
suffered while confined in Los Angeles County jail. Albino’s
claims are subject to the Prison Litigation Reform Act
(“PLRA”), which requires that a prisoner challenging prison
conditions exhaust available administrative remedies before
filing suit. 42 U.S.C. § 1997e(a). Defendants moved for
summary judgment based, inter alia, on Albino’s alleged
failure to exhaust. The district court granted the motion,
dismissing Albino’s federal claims without prejudice. The
court also dismissed his state claims without prejudice. See
28 U.S.C. § 1367(c). We reverse.
First, although it may be more a matter of a change of
nomenclature than of practical operation, we overrule Wyatt
v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), in which we
held that a failure to exhaust under § 1997e(a) should be
raised by a defendant as an “unenumerated Rule 12(b)
motion.” We conclude that a failure to exhaust is more
appropriately handled under the framework of the existing
rules than under an “unenumerated” (that is, non-existent)
rule. Failure to exhaust under the PLRA is “an affirmative
defense the defendant must plead and prove.” Jones v. Bock,
549 U.S. 199, 204, 216 (2007). In the rare event that a failure
to exhaust is clear on the face of the complaint, a defendant
may move for dismissal under Rule 12(b)(6). Otherwise,
defendants must produce evidence proving failure to exhaust
in order to carry their burden. If undisputed evidence viewed

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in the light most favorable to the prisoner shows a failure to
exhaust, a defendant is entitled to summary judgment under
Rule 56. If material facts are disputed, summary judgment
should be denied, and the district judge rather than a jury
should determine the facts.
Second, we hold that Albino has satisfied the exhaustion
requirement of § 1997e(a). Defendants have failed to prove
that administrative remedies were available at the jail where
Albino was confined. Because no administrative remedies
were available, he is excused from any obligation to exhaust
under § 1997e(a). We therefore direct the district court to
grant summary judgment to Albino on the issue of
exhaustion.
I. Background and Proceedings Below
Albino proceeded pro se in the district court. The
following narrative is based largely on the evidence submitted
to the district court by both parties. It is based partly on
allegations in Albino’s verified first amended complaint that
are uncontradicted by evidence in the record. Except where
otherwise noted, the narrative is based on undisputed
evidence.
Glendale Police officers arrested Albino for rape under
California Penal Code § 261(a)(1). He was not arrested for
a sexual crime against a minor. After his arrest, Albino was
brought to the Los Angeles County Men’s Central Jail. He
alleges that when he arrived at the jail on May 11, 2006,
deputies refused to place him in protective custody. Instead,
they placed him in the general population of a high-medium
security housing unit. Albino is 5 feet 3 inches tall. At the
time, he weighed 123 pounds.

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Albino alleges in his complaint that on June 16, 2006, an
inmate approached him and said, “[T]he deputy said you
committed sex acts with children.” A group of several
inmates then attacked Albino, beating him unconscious,
cutting him severely, and raping him. Albino reported the
assault to Deputy Jaquez, who wrote up an “Incident Report”
dated June 17. Despite the one-day disparity in dates, it is
clear that Albino’s complaint and Deputy Jaquez’s report deal
with the same incident. Deputy Jaquez wrote that Albino
“was holding a white piece of cloth over his right jaw and
was bleeding profusely. He also had multiple cuts and
redness throughout his entire facial area and he complained
of pain to his face.” Albino had “two lacerations
approximately 6 [inches] in length across the side of his right
cheek. . . . He also had multiple cuts and redness around his
right eye.” The lacerations were deep cuts in the form of a
cross. Albino also suffered broken teeth, broken ribs, a
broken shoulder, and damage to his hip.
Deputy Jaquez wrote in his report that Albino recounted
to him that he had told several inmates that he was in jail for
rape, but that it had been his partner who had raped a sixteenyear-old girl. Deputy Jaquez identified Albino’s attackers,
including an inmate named Rodriguez. Deputy Jaquez wrote
that he spoke to Rodriguez, who admitted to having been one
of those who had beaten Albino. Deputy Jaquez wrote that
Rodriguez told him that “Albino . . . came in last night
bragging about that he had raped a girl.”
Albino was taken to the hospital for treatment. When he
returned from the hospital, Albino again asked to be placed
in protective custody. He states in a declaration, “After the
first attack, I pleaded with many staff members for help but

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the only thing anyone told me was; it is your attorneys [sic]
job to protect me.” Albino states in another declaration:
Of the ap[p]rox. 10 or so times plaintiff
begged defendant custodial deputies to be
placed in segregation or for the[m] to help me,
defendants[] responded that it was my
attorney’s job to protect me. As these were
sworn peace officers, I was of the belief that
I had to seek my trial attorney’s help.
Despite Albino’s pleas, deputies did not place him in
protective custody upon his return from the hospital. Instead,
they placed him in a different general-population housing
unit. Sometime in mid-July, two inmates in the new unit
attacked Albino, punching and kicking him “numerous
times.” Albino reported this second attack to Deputy
Espinosa. This time Albino did not identify his attackers. In
his “Incident Report,” Deputy Espinosa wrote, “Swelling
under his left eye, swelling to his left side of his forehead, and
swelling to his right temple.” Albino was taken to the jail
clinic rather than the hospital. He alleges in his complaint
that some of the wounds from the first attack had been
opened, and that his treatment at the clinic consisted only of
pain medication.
Albino alleges in his complaint that after the second
attack he again requested protective custody, but a deputy
told him it “wasn’t needed.” The deputy instead placed him
in yet a third general-population housing unit. In September
2006, Albino was assaulted a third time. He was taken to the
jail clinic. He alleges that he suffered “damage to old
wounds, including plaintiff’s right eye.”

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As a result of these attacks, Albino has suffered severe
nerve damage on the right side of his face. He has also lost
hearing in his right ear and most of the vision in his right eye.
He now uses a hearing aid and a cane for the blind. He states
in his declaration:
My trial attorney had to ask the court for 3
court orders to get me any medical care for
my injuries, and dental care. It was not until
I arrived at CDCR [California Department of
Corrections and Rehabilitation] that [I
received] a proper Examination, [and] the
doctor told me it was too late to repair the
nerve damage.
Albino states in a declaration filed in the district court that
he was given no orientation when he was brought to the jail,
that he never saw a manual describing complaint procedures,
that he never saw complaint forms or a complaint box, and
that when he complained and asked for help he was
consistently told by deputies at the jail that he should talk to
his attorney.
Defendants provided a declaration by Deputy Jason Ford,
to which he attaches a copy of “Custody Division Manual
§ 5-12/010.00 ‘Inmate Complaints.’” They also provided a
declaration in which Deputy Kevin Kelley describes the
complaint process in the jail, describes complaint boxes and
their placement, and recounts the manner in which complaint
forms are made available.
Defendants moved for summary judgment. They
contended that Albino had failed to exhaust his remedies at
the jail system prior to filing suit, as required by 42 U.S.C.

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§ 1997e(a). In the alternative, they contended on the merits
that Albino had failed to show any constitutional violations.
Albino did not cross-move for summary judgment.
In his Report and Recommendation, the magistrate judge
recommended granting summary judgment to defendants on
the ground that defendants had “an accessible administrative
procedure for seeking redress of grievances,” and that Albino
did not exhaust his remedies under that procedure. The
district court accepted the recommendation of the magistrate
judge and granted summary judgment to defendants. The
court dismissed Albino’s complaint without prejudice for
failure to exhaust. Neither the magistrate judge nor the
district court reached the merits of Albino’s claims.
A three-judge panel of this court affirmed, treating the
defendants’ summary judgment motion with respect to
exhaustion as an unenumerated Rule 12(b) motion. Albino v.
Baca, 697 F.3d 1023, 1029–30 (9th Cir. 2012). We vacated
the panel decision and granted rehearing en banc. Albino v.
Baca, 709 F.3d 994 (9th Cir. 2013). We now reverse.
II. Standard of Review
We review de novo a district court’s grant of summary
judgment. Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.
2008). A grant of summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In our de novo review of a district court’s
summary judgment ruling, we view the evidence in the light
most favorable to the non-moving party. San Diego Police
Officers’ Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d
725, 733 (9th Cir. 2009).

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III. Discussion

We decide two questions. First, we hold that an
unenumerated motion under Rule 12(b) is not the appropriate
procedural device for pretrial determination of whether
administrative remedies have been exhausted under the
PLRA. See 42 U.S.C. § 1997e(a). To the extent evidence in
the record permits, the appropriate device is a motion for
summary judgment under Rule 56. If summary judgment is
not appropriate, the district judge may decide disputed
questions of fact in a preliminary proceeding. Second, we
hold that defendants are not entitled to summary judgment
that Albino failed to exhaust available administrative
remedies. Further, we hold sua sponte that Albino is entitled
to summary judgment that there were no available
administrative remedies at the jail within the meaning of the
PLRA, and that he therefore satisfied § 1997e(a)’s exhaustion
requirement.
A. Summary Judgment or Unenumerated Rule 12(b)
In holding that the proper procedural device for
defendants to raise an exhaustion defense is an unenumerated
Rule 12(b) motion, the panel followed our decision in Wyatt
v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Wyatt is a PLRA
prison-conditions case in which we held that “the failure to
exhaust nonjudicial remedies that are not jurisdictional should
be treated as a matter in abatement, which is subject to an
unenumerated Rule 12(b) motion rather than a motion for
summary judgment.” Id. at 1119. After we decided Wyatt,
the Supreme Court held in Jones v. Bock, 549 U.S. 199
(2007), that exhaustion under § 1997e(a) is an affirmative
defense that must be pled and proved by a defendant. Id. at
216. In reaching this conclusion, the Court wrote that “courts

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should generally not depart from the usual practice under the
Federal Rules on the basis of perceived policy concerns.” Id.
at 212. “[T]he PLRA’s screening requirement does
not—explicitly or implicitly—justify deviating from the usual
procedural practice beyond the departures specified by the
PLRA itself.” Id. at 214.
The Court in Jones cited our decision in Wyatt
approvingly for its conclusion that PLRA exhaustion is an
affirmative defense, but it did not comment on our use of an
unenumerated Rule 12(b) motion for determining whether
administrative remedies had been exhausted. Id. at 204 n.2.
While Wyatt’s use of an unenumerated Rule 12(b) motion is
consistent with PLRA’s purpose of limiting prisoner litigation
by screening cases at the outset of the litigation, see id. at
202, it is in tension with the Court’s admonition in Jones
against deviating from “the usual practice under the Federal
Rules.” Id. at 212. The very phrase we used in Wyatt—“an
unenumerated Rule 12(b) motion”—is a concession that such
a motion is not contemplated by the rules. We conclude that
Wyatt is no longer good law after Jones (if it ever was good
law), and that we should treat an exhaustion defense under
the PLRA within the framework of the Federal Rules of Civil
Procedure.
In a few cases, a prisoner’s failure to exhaust may be clear
from the face of the complaint. However, such cases will be
rare because a plaintiff is not required to say anything about
exhaustion in his complaint. As the Court wrote in Jones,
“failure to exhaust is an affirmative defense under the PLRA,
and . . . inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Id. at 216. But
in those rare cases where a failure to exhaust is clear from the
face of the complaint, a defendant may successfully move to

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dismiss under Rule 12(b)(6) for failure to state a claim. See
id. at 215–16; Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th
Cir. 1984) (per curiam) (“[A]ffirmative defenses may not be
raised by motion to dismiss, but this is not true when, as here,
the defense raises no disputed issues of fact.” (citation
omitted)); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225
(10th Cir. 2007) (“[O]nly in rare cases will a district court be
able to conclude from the face of the complaint that a
prisoner has not exhausted his administrative remedies and
that he is without a valid excuse.”).
In a typical PLRA case, a defendant will have to present
probative evidence—in the words of Jones, to “plead and
prove”—that the prisoner has failed to exhaust available
administrative remedies under § 1997e(a). Jones, 549 U.S.
at 204. The procedure under which a defendant must do so is
provided by the Federal Rules. The general outlines of that
procedure, applicable to all civil cases, are well understood.
If the evidence permits, the defendant may move for
summary judgment under Rule 56. If there is a genuine
dispute about material facts, summary judgment will not be
granted.
The Court in Jones cautioned that we should not alter the
ordinary procedural practices and rules in order to serve the
policy aims of the PLRA. Id. at 214. At the same time,
however, the Court recognized that “the PLRA mandates
early judicial screening of prisoner complaints and requires
prisoners to exhaust prison grievance procedures before filing
suit.” Id. at 202. A rule requiring exhaustion of prescribed
administrative remedies “serves the twin purposes of
protecting administrative agency authority and promoting
judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140,
145 (1992), superseded by statute on other grounds as stated

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in Booth v. Churner, 532 U.S. 731, 740–41 (2001). Courts
have exercised substantial discretion in fashioning exhaustion
rules, though “appropriate deference to Congress’ power to
prescribe the basic procedural scheme . . . requires fashioning
of exhaustion principles in a manner consistent with
congressional intent.” Id. at 144.
The Court recognized in Jones that the exhaustion
question in PLRA cases should be decided as early as
feasible. We conclude, consistent with Jones as well as with
non-PLRA cases, that exhaustion is analogous to subjectmatter jurisdiction, personal jurisdiction, venue, and
abstention, in that all these matters are typically decided at
the outset of the litigation. There are, of course, differences.
For example, a defect in subject-matter jurisdiction, unlike a
failure to exhaust, is a nonwaivable defect. See Detabali v.
St. Luke’s Hosp., 482 F.3d 1199, 1202 (9th Cir. 2007). And
while personal jurisdiction and venue are waivable defects,
they are unlike a failure to exhaust in that they merely
concern a choice among courts; they do not concern a
prerequisite to bringing suit in any court. But, broadly
speaking, subject-matter jurisdiction, personal jurisdiction,
venue, abstention, and exhaustion are all issues of “judicial
administration” that are appropriately decided early in the
proceeding. See, e.g., Myers v. Bethlehem Shipbuilding
Corp., 303 U.S. 41, 50–51 (1938) (referring to the “longsettled rule of judicial administration that no one is entitled to
judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted”). In
the words of the Seventh Circuit, these are all issues of
“judicial traffic control.” Pavey v. Conley, 544 F.3d 739, 741
(7th Cir. 2008).

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For the guidance of the district courts in this circuit, we
describe the procedure that we believe will best achieve the
purposes of the exhaustion doctrine in PLRA cases,
consistent with the Federal Rules. The procedure we describe
is essentially that followed in PLRA cases in the Second,
Third, Fifth and Seventh Circuits. See Messa v. Goord,
652 F.3d 305, 308–10 (2d Cir. 2011) (per curiam) (court
denied defendants’ motion for summary judgment for failure
to exhaust; court rather than jury resolved disputed questions
of fact); Small v. Camden Cnty., 728 F.3d 265, 269–71 (3d
Cir. 2013) (same); Dillon v. Rogers, 596 F.3d 260, 270–73
(5th Cir. 2010) (same); Pavey, 544 F.3d at 741–42 (court
rather than jury should resolve disputed questions of fact).
All four of these circuits use a motion for summary judgment,
as opposed to an unenumerated Rule 12(b) motion, to decide
exhaustion, and all four allow resolution by the judge of
disputed factual issues. Now that we have joined these
circuits, only the Eleventh Circuit employs an unenumerated
Rule 12(b) motion to decide exhaustion of non-judicial
remedies in PLRA cases. See Bryant v. Rich, 530 F.3d 1368,
1374–75 (11th Cir. 2008).
Exhaustion should be decided, if feasible, before reaching
the merits of a prisoner’s claim. If discovery is appropriate,
the district court may in its discretion limit discovery to
evidence concerning exhaustion, leaving until later—if it
becomes necessary—discovery directed to the merits of the
suit. See Pavey, 544 F.3d at 742. A summary judgment
motion made by either party may be, but need not be, directed
solely to the issue of exhaustion. If a motion for summary
judgment is denied, disputed factual questions relevant to
exhaustion should be decided by the judge, in the same
manner a judge rather than a jury decides disputed factual
questions relevant to jurisdiction and venue. See McNutt v.

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Gen. Motors Acceptance Corp., 298 U.S. 178, 188–90 (1936)
(subject-matter jurisdiction); Murphy v. Schneider Nat’l, Inc.,
362 F.3d 1133, 1139–40 (9th Cir. 2004) (venue); Lake v.
Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (personal
jurisdiction). We reiterate that, if feasible, disputed factual
questions relevant to exhaustion should be decided at the very
beginning of the litigation.
If the district judge holds that the prisoner has exhausted
available administrative remedies, that administrative
remedies are not available, or that a prisoner’s failure to
exhaust available remedies should be excused, the case may
proceed to the merits. On appeal, we will review the judge’s
legal rulings on exhaustion de novo, but we will accept the
judge’s factual findings on disputed issues of material fact
unless they are clearly erroneous. See Akhtar v. Mesa,
698 F.3d 1202, 1209 (9th Cir. 2012); Dillon, 596 F.3d at 273.
We agree with the Seventh Circuit that, if a factual finding on
a disputed question is relevant both to exhaustion and to the
merits, a judge’s finding made in the course of deciding
exhaustion is not binding on a jury deciding the merits of the
suit. See Pavey, 544 F.3d at 742; cf. Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 508–11 (1959).
We recognize that our use of unenumerated Rule 12(b)
motions to decide exhaustion questions has not been limited
to PLRA cases. See, e.g., Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 881 (9th Cir. 2011) (en banc) (relying on Wyatt
in describing procedures to be followed in deciding whether
non-judicial remedies under the Individuals with Disabilities
Education Act had been exhausted); Inlandboatmens Union
of the Pac. v. Dutra Grp., 279 F.3d 1075, 1078 n.2
(exhaustion of non-judicial remedies under the Labor
Management Relations Act (“LMRA”)); Ritza v. Int’l

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Longshoremen’s & Warehousemen’s Union, 837 F.2d 365,
369 (9th Cir. 1988) (per curiam) (LMRA); Stauffer Chem.
Co. v. FDA, 670 F.2d 106, 108 (9th Cir. 1982) (exhaustion of
non-judicial remedies with the Food and Drug
Administration); Studio Elec. Technicians Local 728 v. Int’l
Photographers of Motion Picture Indus., Local 659, 598 F.2d
551, 552 n.2 (9th Cir. 1979) (exhaustion of non-judicial
remedies under the LMRA). In light of the decisions of our
sister circuits, and of our decision in this case, we believe that
the basic procedure outlined here—under which a party may
move for summary judgment on the exhaustion question,
followed, if necessary, by a decision by the court on disputed
questions of material fact relevant to exhaustion—is
appropriate in these other contexts as well.
B. Summary Judgment on Exhaustion
The PLRA mandates that inmates exhaust all available
administrative remedies before filing “any suit challenging
prison conditions,” including, but not limited to, suits under
§ 1983. Woodford v. Ngo, 548 U.S. 81, 85 (2006). An
inmate is required to exhaust only available remedies. Booth,
532 U.S. at 736; Brown v. Valoff, 422 F.3d 926, 936–37 (9th
Cir. 2005). To be available, a remedy must be available “as
a practical matter”; it must be “capable of use; at hand.” Id.
at 937 (quoting Brown v. Croak, 312 F.3d 109, 113 (3d Cir.
2002)).
The Court made clear in Jones that the defendant in a
PLRA case must plead and prove exhaustion as an
affirmative defense. In determining the exhaustion burdens
applicable to PLRA cases, the three-judge panel in this case
cited the exhaustion burdens applicable to claims under the
Torture Victim Protection Act (“TVPA”). Albino v. Baca,

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697 F.3d 1023, 1031 (9th Cir. 2012) (citing Hilao v. Estate of
Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). We agree
with the three-judge panel that the burdens outlined in Hilao
should provide the template for the burdens here. We wrote
in Hilao:
The legislature’s intended operation of the
exhaustion provision [of the TVPA] is set
forth with remarkable clarity in the Senate
Report:
....
. . . [T]he interpretation of [the exhaustion
provision of the TVPA] should be
informed by general principles of
international law. The procedural practice
of international human rights tribunals
generally holds that the respondent has
the burden of raising the nonexhaustion of
remedies as an affirmative defense and
must show that domestic remedies exist
that the claimant did not use. Once the
defendant makes a showing of remedies
abroad which have not been exhausted,
the burden shifts to the plaintiff to rebut
by showing that the local remedies were
ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile.
S. Rep. No. 249 at 9–10.
Hilao, 103 F.3d at 778 n.5 (emphasis added).

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Transposing Hilao’s approach onto the PLRA, we hold
that the defendant’s burden is to prove that there was an
available administrative remedy, and that the prisoner did not
exhaust that available remedy. See id. (“[T]he respondent . . .
must show that domestic remedies exist that the claimant did
not use.”). Once the defendant has carried that burden, the
prisoner has the burden of production. That is, the burden
shifts to the prisoner to come forward with evidence showing
that there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him. See id. (“[T]he burden shifts
to the plaintiff to rebut by showing that the local remedies
were ineffective, unobtainable, unduly prolonged, inadequate,
or obviously futile.”). However, as required by Jones, the
ultimate burden of proof remains with the defendant.
Our sister circuits generally agree with this description of
the respective burdens. For example, in Westefer v. Snyder,
422 F.3d 570 (7th Cir. 2005), the Seventh Circuit wrote:
[A]s this case comes to us, we find the record
hopelessly unclear . . . whether any
administrative remedy remained open for the
prisoners to challenge their transfers through
the grievance process. . . . IDOC failed to
meet its burden of proving that [the prisoners]
failed to exhaust an available administrative
remedy . . . .
Id. at 580 (internal quotation marks omitted). In Tuckel v.
Grover, 660 F.3d 1249 (10th Cir. 2011), the Tenth Circuit
similarly put the burden on defendants to prove that the
prisoner did not use existing and generally available
administrative remedies. Once that was proved, however,

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“the onus [fell] on the plaintiff to show that [these] remedies
were unavailable to him as a result of intimidation by prison
officials.” Id. at 1254; see also Turner v. Burnside, 541 F.3d
1077, 1082 (11th Cir. 2008); Foulk v. Charrier, 262 F.3d 687,
697 (8th Cir. 2001).
We have considered in several PLRA cases whether an
administrative remedy was “available.” In Nunez v. Duncan,
591 F.3d 1217 (9th Cir. 2010), we held that where a prison
warden incorrectly implied that an inmate needed access to a
nearly unobtainable prison policy in order to bring a timely
administrative appeal, “the Warden’s mistake rendered
Nunez’s administrative remedies effectively unavailable.” Id.
at 1226. In Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010),
we held that where prison officials declined to reach the
merits of a particular grievance “for reasons inconsistent with
or unsupported by applicable regulations,” administrative
remedies were “effectively unavailable.” Id. at 823–24. In
Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009) (per
curiam), we reversed a district court’s dismissal of a PLRA
case for failure to exhaust because the inmate did not have
access to the necessary grievance forms within the prison’s
time limits for filing a grievance. Id. at 1027–28. We also
noted that Marella was not required to exhaust a remedy that
he had been reliably informed was not available to him. Id.
at 1027.
In the case now before us, defendants conducted all the
discovery that they considered necessary, including taking
Albino’s deposition. They then moved for summary
judgment, even though not required to do so under our thengoverning precedent, contending that Albino failed to exhaust
available administrative remedies. In the alternative, if
Albino had successfully exhausted, they contended that

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Albino’s claims failed on the merits. The magistrate judge
recommended, and the district court granted, summary
judgment to the defendants on the issue of exhaustion. The
district court did not reach the merits of Albino’s claims.
We hold that the district court erred in granting summary
judgment to defendants on the issue of exhaustion. We
further hold that Albino is entitled to summary judgment on
that issue.
We discuss in a moment our reasons for so holding, but
we first address the contention of our dissenting colleagues
that we have improperly “ignore[d] the ‘clearly erroneous’
standard of review in reviewing the district court’s findings.”
Diss. Op. at 30–31. Our dissenting colleagues misunderstand
the procedural posture of this case. The district court granted
summary judgment to the defendants. It is black-letter law
that in granting summary judgment a district court cannot
resolve disputed questions of material fact; rather, that court
must view all of the facts in the record in the light most
favorable to the non-moving party and rule, as a matter of
law, based on those facts. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–50 (1986); United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam). On appeal, we
review de novo a district court’s ruling on a summary
judgment motion. Whitman, 541 F.3d at 931. Like the
district court, we cannot resolve any disputed questions of
material fact; rather, like the district court, we must view all
of the facts in the light most favorable to the non-moving
party and rule, as a matter of law, based on those facts. San
Diego Police Officers’ Ass’n, 568 F.3d at 733.
Our dissenting colleagues misread our decision in Morton
v. Hall, 599 F.3d 942 (9th Cir. 2010). Diss. Op. at 34. The

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district court in that case conducted an evidentiary hearing on
the question whether Morton, a prisoner, had exhausted his
administrative remedies. Id. at 944. Defendants put on two
witnesses who testified about administrative procedures at the
prison, and who testified that they had found no evidence that
Morton had ever filed a grievance. Morton contended that he
had exhausted his administrative remedies, but he put on no
witnesses of his own. Id. We wrote, “The district court
found that Morton had failed to exhaust administrative
remedies on his § 1983 claims . . . and dismissed those claims
without prejudice.” Id. We concluded, “On this record, the
district court did not commit clear error by finding that
Morton had failed to exhaust administrative remedies on his
§ 1983 assault claim.” Id. at 945. Contrary to the contention
of our dissenting colleagues, there is no indication in Morton
that we thought we were reviewing a summary judgment by
the district court on issue of exhaustion. And there is not so
much as a hint in Morton that we thought we were changing
our summary judgment procedure, such that we were required
to review for clear error the district court’s understanding, on
summary judgment, of the facts viewed in the light most
favorable to the non-moving party.
Our dissenting colleagues contend that in this case we
must review for clear error the district court’s understanding
of the facts because that court “did decide disputed factual
issues.” Diss. Op. at 34. We disagree that we must review
for clear error the district court’s understanding of the facts.
The district court was explicit in stating that it was deciding
a motion for summary judgment. Because the district court
was deciding a motion for summary judgment, it could not
decide disputed issues of material fact; and because it could
not decide any disputed issue of material fact, we are not

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required (or even allowed) to review its understanding of the
facts for clear error.
Defendants introduced two declarations specifically
directed to exhaustion. First, Deputy Ford provided a
declaration to which he attached a copy of Custody Division
Manual § 5-12/010.00, titled “Inmate Complaints.” This
portion of the Manual is four and a half pages long, singlespaced. It sets out in some detail the administrative
procedures to be followed in processing prisoner complaints.
Among other things, the Manual provides:
Each unit commander shall designate a
supervisor, at the permanent rank of sergeant
or above, to assume the collateral duty of
Inmate Complaint Coordinator. The unit
commander shall also ensure that each
housing unit within the facility has an
adequate supply of Inmate Complaint Forms
available, and that the inmates have
unrestricted access to the forms. All inmates
are permitted to report a complaint, whether
or not it is written on the specified form.
Each housing area shall have a locked
repository accessible to inmates, where they
are allowed to deposit their completed forms
without interference.
Second, Deputy Kelley provided a declaration in which
he states:
I have personal knowledge of the policies
and procedures in place regarding inmate
complaints/grievances at Men’s Central Jail as

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of the time of the incidents alleged in the First
Amended Complaint.
At Men’s Central Jail, inmates are given
access to Inmate Complaint Forms to fill out,
or they may submit a written complaint of any
kind, to address any number of issues,
including but not limited to personnel
conduct, medical care, classification actions
and conditions of confinement. The Inmate
Complaint Forms are available at various
locations within the facility, and an adequate
supply is maintained and available for any
inmate who requests them.
Inmates may place their complaints in a
locked complaint box, or give them directly to
the staff.
(Emphasis added.)
For his part, Albino provided a declaration in which he
states:
At no time during my stay was I
interviewed by jail staff, or given any type of
orientation. . . .
At no time during my stay at the jail did I
see a LASD Custody Division Manual § 512/010.00, or if I did it was not in Spanish
where I could read and understand what it
was. I have never seen or heard of a LASD
Jail complaint form.

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....
I never seen [sic] a complaint box, and no
one told me of such a complaint box.
. . . After the first attack, I pleaded with
many staff members for help but the only
thing anyone told me was; it is your
attorney[’]s job to protect me.
....
During the 10 or so times I begged
officers to be placed in segregation. Not one
officer or staff member handed me a
complaint form or a rule book and told me to
fill out the form and they would put it in a
box. All any of the staff told me was my
public defender[’]s job to protect me. My
public defender also never informed me of a
LASD complaint form.

The Custody Division Manual, with its section dedicated
to “Inmate Complaints,” is of little help to defendants.
Defendants have conceded that the Manual was a personnel
manual that was available only to jail employees. Prisoners,
including Albino, were not given access to the Manual.
Indeed, so far as the record shows, inmates were not even told
of the existence of the Manual.
Deputy Kelley’s declaration is hardly more helpful. He
states that an “adequate supply” of Inmate Complaint Forms
is “maintained,” and that they are “available for any inmate
who requests them” (emphasis added). The clear implication

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of Deputy Kelley’s statement is that the forms are available
only on request; that is, they are not placed where inmates
may see and take them on their own. Further, there is nothing
in Deputy Kelley’s statement indicating that inmates are told
that a complaint must be in writing, or that a written
complaint, even if not on an official form, will be considered.
Finally, Deputy Kelley declares that inmates may place their
complaints in a “locked complaint box,” but he does not
describe the box or its location in the unit. Nor, indeed, does
he say that the box is labeled in any way to indicate its
function. When pressed at oral argument, defendants’
attorney rested on Deputy Kelley’s declaration, even though
he was obliged to concede that Deputy Kelley did not say
where the complaint box was placed or whether there was
anything written on the outside of the box.
Thus, so far as the record shows, there is a personnel
manual describing a complaint process, but the manual is not
available, or even known, to the prisoners. There are also
“locked complaint boxes” located somewhere in the prison
where, we may infer from Deputy Kelley’s declaration,
prisoners have access to them. But there is nothing in the
record to indicate that the boxes have anything written on
them to signify their purpose, or that prisoners are otherwise
advised of their purpose or location. Deputy Kelley states
that a written complaint may be “give[n] directly to staff,” but
there is nothing in the record to indicate that inmates are told
that a complaint must be in writing in order to be considered.
Finally, we may infer from Deputy Kelley’s declaration that
complaint forms are available only if a prisoner knows to
request them.
Albino declares, without contradiction, the following. He
declares that he was never given any orientation at the jail,

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during which he could have been informed of a complaint
process. He also declares that he has never seen the jail’s
personnel manual, a complaint box, or a complaint form.
Finally, he declares that he repeatedly sought, and was
denied, help from the prison staff. Specifically, he declares
that he repeatedly complained “directly to the staff” (to use
Deputy Kelley’s words) that he needed to be placed in
protective custody. Staff members never told him that
complaint forms were “available for any inmate who requests
them” (again to use Deputy Kelley’s words), and they never
construed Albino’s complaints as requests for such forms.
Nor did staff members tell Albino that he could put in a
complaint box, or give directly to them, a written complaint,
even if not on an official form. Instead, staff members
repeatedly told Albino that he should seek relief by talking to
his criminal defense attorney.
As we noted above, failure to exhaust administrative
remedies is an affirmative defense that the defendant must
plead and prove in a PLRA case. Jones, 549 U.S. at 212.
Viewing all of the evidence in the light most favorable to
Albino, we conclude as a matter of law that defendants have
failed to carry their initial burden of proving their affirmative
defense that there was an available administrative remedy
that Albino failed to exhaust. We therefore reverse the
district court’s grant of summary judgment to defendants on
the issue of exhaustion.
Albino, acting pro se, did not make a cross-motion for
summary judgment. However, we conclude he would have
succeeded had he made such a motion. We therefore direct
sua sponte that summary judgment be granted to Albino on
the issue of exhaustion.

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We have long recognized that, where the party moving for
summary judgment has had a full and fair opportunity to
prove its case, but has not succeeded in doing so, a court may
enter summary judgment sua sponte for the nonmoving party.
See, e.g., Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th
Cir. 1982); see also Gospel Missions of Am. v. City of Los
Angeles, 328 F.3d 548, 553 (9th Cir. 2003) (“Even when
there has been no cross-motion for summary judgment, a
district court may enter summary judgment sua sponte against
a moving party if the losing party has had a ‘full and fair
opportunity to ventilate the issues involved in the matter.’”)
(quoting Cool Fuel, Inc., 685 F.2d at 312). The Supreme
Court implicitly recognized this authority in Celotex Corp. v.
Catrett, 477 U.S. 317 (1986), noting that “district courts are
widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on
notice that she had to come forward with all of her evidence.”
Id. at 326. The authority to grant summary judgment sua
sponte was made explicit in the current version of Rule 56,
effective as of December 2010. Fed. R. Civ. P. 56(f).
If the record is sufficiently developed to permit the trial
court to consider summary judgment, ant if the court finds
that when viewing the evidence in the light most favorable to
a moving party the movant has not shown a genuine dispute
of fact on the issue of exhaustion, it may be appropriate for
the district court to grant summary judgment sua sponte for
the nonmovant on this issue. See 10A Charles A. Wright,
Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure § 2720, at 351–52 (3d ed. 1998) (“[T]he practice
of allowing summary judgment to be entered for the
nonmoving party in the absence of a formal cross-motion is
appropriate. It is in keeping with the objective of Rule 56 to
expedite the disposition of cases . . . .”). Before sua sponte

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summary judgment against a party is proper, that party “must
be given reasonable notice that the sufficiency of his or her
claim will be in issue: Reasonable notice implies adequate
time to develop the facts on which the litigant will depend to
oppose summary judgment.” Buckingham v. United States,
998 F.2d 735, 742 (9th Cir. 1993) (citation and internal
quotation marks omitted). Similarly, in Kassbaum v.
Steppenwolf Productions, Inc., 236 F.3d 487 (9th Cir. 2000),
we noted that “if a court concludes that a non-moving party
is entitled to judgment, ‘great care must be exercised to
assure that the original movant has had an adequate
opportunity to show that there is a genuine issue and that his
[or her] opponent is not entitled to judgment as a matter of
law.’” Id. at 494 (quoting Ramsey v. Coughlin, 94 F.3d 71, 74
(2d Cir. 1996)). We further noted that “we should not reverse
a summary judgment and order judgment for a non-moving
party based on an issue that the movant had no opportunity to
dispute in the district court.” Id. at 495.
We conclude that the concerns expressed in Buckingham
and Kassbaum have been satisfied in a case such as this one,
where, after having had a full opportunity to gather evidence,
a defendant moves for summary judgment based on a failure
to exhaust under the PLRA. As the movants for summary
judgment in this case, defendants were on notice of the need
to come forward with all their evidence in support of this
motion, and they had every incentive to do so. Defendants
had ample opportunity to conduct discovery and to provide
evidence to carry their burden of proof that administrative
remedies were available. There is nothing in the record to
suggest that defendants’ discovery with respect to exhaustion
was curtailed in any way. Indeed, most of the relevant
evidence was within their knowledge and control. In other

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words, defendants “had a full and fair opportunity to ventilate
the issues involved.” Cool Fuel, Inc., 685 F.2d at 312.
Viewing the evidence in the light most favorable to
defendants, defendants have failed to show a genuine dispute
as to whether administrative remedies in the jail were
available. Albino was beaten several times and repeatedly
complained orally to deputies in the jail, asking repeatedly to
be placed in protective custody. The jail had a manual
describing a procedure for handling inmate complaints, but
this manual was for staff use only and was not made available
to inmates. An “adequate supply” of Inmate Complaint
Forms was kept “at various locations” within the jail. But
such forms had to be requested by an inmate and were never
provided to Albino, despite his repeated complaints. Nor was
Albino told that he could write a complaint on an ordinary
piece of paper and hand it to one of the deputies. Instead,
Albino was told that it was his criminal defense attorney’s
job to protect him from attacks in the jail. In these
circumstances, we conclude as a matter of law that defendants
have not carried their burden of proving that the jail provided
an “available” administrative remedy.
Conclusion
We reverse the district court’s grant of summary
judgment for defendants and remand with instructions to
enter summary judgment for Albino on the issue of
exhaustion.
REVERSED and REMANDED.

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N.R. SMITH, Circuit Judge, joined by TALLMAN and
IKUTA, Circuit Judges, dissenting:
Albino is a sympathetic plaintiff. However, that fact
should not excuse Albino from his duty to exhaust available
administrative remedies, while other sympathetic plaintiffs
are required to exhaust.
The Prison Litigation Reform Act of 1996 (PLRA)
provides that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a).
“Available” means “capable of use for the accomplishment of
a purpose,” and that which “is accessible or may be
obtained.” Booth v. Churner, 532 U.S. 731, 737 (2001)
(quoting Webster's Third New International Dictionary 150
(1993)). Recently, the Supreme Court instructed us to adhere
closely to the plain language of the statute and not interpolate
our policy concerns into the statute. Jones v. Bock, 549 U.S.
199, 212, 216-17 (2007).
Here, the district court found administrative remedies that
the County of Los Angeles offered in the jail were “capable
of use” and could be obtained. Therefore, Albino had the
obligation to exhaust these remedies before he could bring an
action. The majority excuses Albino from that duty and
instead places an affirmative duty on prison officials to
inform inmates about the administrative remedies available.
Nothing in the plain language of the PLRA even suggests that
prison officials have the duties that the majority places upon
them today. In other words, in order to afford relief to a
sympathetic plaintiff, the majority takes extraordinary steps

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and (1) ignores the “clearly erroneous” standard of review in
reviewing the district court’s findings; (2) mandates the
production of unprecedented evidence in order for the
defendants to meet their burden of proof on exhaustion;
(3) grants summary judgment to the plaintiff sua sponte,
without allowing the defendants the opportunity to produce
the newly mandated evidence; and (4) changes the procedure
by which our courts determine whether a plaintiff has
exhausted administrative remedies. Because the majority’s
interpretation and application of the PLRA in this case
deviates from the approach required by the Supreme Court
and creates a circuit split with the Eighth and Tenth Circuits,
I must dissent.
I.
The majority rightly adopts the burden shifting
framework for administrative exhaustion disputes applied in
Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir.
1996). Maj. op. at 17. When a defendant alleges a failure to
exhaust, it “has the burden of raising the nonexhaustion of
remedies as an affirmative defense and must show that . . .
remedies exist that the claimant did not use.” Maj. op. at 17.
(internal quotation marks omitted). Once a defendant shows
that nonexhausted remedies exist, the plaintiff must show that
the administrative remedies were unavailable to him. See
Hilao, 103 F.3d at 778 n.5.
Applying this burden shifting framework to all of the
evidence presented by both parties, the magistrate judge
found that Baca met his burden. The court supported its
conclusion with the following factual findings: (1) a
grievance procedure existed at the Jail; (2) the procedure was
accessible to inmates; and (3) Albino failed to “avail himself

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of it.” The district court adopted these findings in full. Even
Albino concedes that Baca met his burden, as did the
dissenting panel member of the three-judge panel. Albino v.
Baca, 697 F.3d 1023, 1039–40 (9th Cir. 2012) (Gilman, J.,
dissenting) (concluding instead that Albino met his burden of
establishing unavailability).
A district court’s factual findings mandate our deference.
The majority writes, “[D]isputed factual questions relevant to
exhaustion should be decided by the judge.” Maj. op. at 14.
“[W]e will accept the judge’s factual findings . . . unless they
are clearly erroneous.” Maj. op. at 15. This clear error
standard “does not entitle a reviewing court to reverse the
finding of the trier of fact simply because it is convinced that
it would have decided the case differently. . . . Where there
are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson
v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)
(emphasis added); see also United States v. Hinkson,
585 F.3d 1247, 1260 (9th Cir. 2009) (“[O]ur review of a
factual finding may not look to what we would have done had
we been in the trial court’s place in the first instance, because
that review would be de novo and without deference.”). The
clear error standard of review “is significantly deferential” to
the district court. Lentini v. Cal. Ctr. for the Arts, Escondido,
370 F.3d 837, 843 (9th Cir. 2004). As a result, a trial court’s
factual findings must be upheld when “fall[ing] within any of
the permissible choices the court could have made.” Hinkson,
585 F.3d at 1261.
In declining to defer to the district court’s factual findings
in this case, however, the majority contends that “[i]t is
black-letter law that in granting summary judgment a district
court cannot resolve disputed questions of material fact.”

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Maj. op. at 20. Because, in its view, the district court found
only undisputed facts, it owes those findings no deference.
See id. In so holding, it misunderstands the issue of
exhaustion and the district court’s role as factfinder.
Even when a nonexhaustion allegation is raised in a
summary judgment motion, “we review the district
court’s . . . factual findings for clear error.” Morton v. Hall,
599 F.3d 942, 945 (9th Cir. 2010). Because the general
summary judgment standard is designed to determine whether
there “is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986), it is inapposite in the
exhaustion context. Instead, regardless of the form of the
motion, district courts have simply decided the issue, and we
have deferred to that finding on appeal. See, e.g., Morton,
599 F.3d at 944–46; Wyatt v. Terhune, 315 F.3d 1108,
1119–20 (9th Cir. 2003).
This is so whether the findings pertain to disputed or
undisputed facts. For instance, in Morton v. Hall, the district
court ruled in favor of a defendant on its motion for summary
judgment because the defendant had “sustained its burden to
demonstrate the Plaintiff . . . did not exhaust his
administrative appeals as required.” 455 F. Supp. 2d 1066,
1075 (C.D. Cal. 2006). The district court’s factual findings,
upon which it based this decision, were based on evidence not
disputed by the plaintiff. Id. at 1075. On appeal, this court
reviewed the district court’s factual findings and concluded
that it “did not commit clear error by finding that Morton had
failed to exhaust administrative remedies on his § 1983
assault claim.” Morton, 599 F.3d at 945 (emphasis added).
Therefore, the majority’s contention that the presence of
undisputed facts in this case gives it the right to find its own

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facts or attach differing weight to evidence than did the
district court is without merit. The district court’s factual
findings in deciding an exhaustion issue warrant our
deference, whether disputed or undisputed.
Further, the trial court did decide disputed factual issues
in this case. For example, “[t]he Court [found], based upon
the submissions of the parties, that the Los Angeles County
Jail had an accessible administrative procedure for seeking
redress of grievances at the time of the incidents” despite
Alibno’s allegations that the Jail never informed him of the
grievance procedure. Indeed, only “in light of the Court’s
finding that the jail had available administrative remedies,”
was it able to conclude that “summary judgment based on
failure to exhaust [was] warranted.” Thus, the trial court’s
conclusion that there was no “genuine issue of material fact
as to the existence of a grievance procedure at the jail, its
accessibility to inmates, or Plaintiff’s failure to avail himself
of it,” was predicated upon its own factual findings to that
effect. Regardless of the nature of these findings, this court
may only overturn them if they are clearly erroneous. Morton,
599 F.3d at 945.
The trial court’s factual findings here are supported by
ample evidence in the record. Nevertheless, the majority
concludes “as a matter of law” that Baca failed to satisfy his
burden of proving “that there was an available administrative
remedy . . . that Albino failed to exhaust.” Id. However, that
is not what happened here. Rather, the majority
impermissibly seizes on facts considered and weighed by the
district court and arrives at its own conclusion. See Maj. op.
at 20–26; Anderson, 470 U.S. at 574 (“[T]he court of appeals
may not reverse [the district court’s account of the evidence]

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even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.”).
The posture of the majority opinion speaks louder than
the one sentence purporting to decide the case as a matter of
law. Indeed, the majority develops its own facts to support its
conclusion that Baca failed to carry his burden. See Maj. op.
at 20–26. That process is de novo review and conflicts with
the Supreme Court’s instruction to accord deference to lower
court findings, Anderson, 470 U.S. at 573–74, and the
majority’s own framework, maj. op. at 15. Further, the
majority’s factual conclusions are wrong, as it discredits each
piece of evidence supporting the existence of the Jail’s
grievance procedure independently, absent consideration of
the process as a whole.
First, the majority decides the Custody Division Manual
§ 5-12/010.00 “is of little help to defendants,” because Albino
never saw it. Maj. op. at 24. However, Baca did not submit
the Custody Division Manual’s grievance procedure to prove
Albino was aware of the procedure. He submitted it to
document the existence of the procedure, as affirmed by Jail
personnel. See Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.
2005). Indeed, “it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007). This section of the
Custody Division Manual gives credence to the testimony
that the grievance procedure existed.
Next, the majority discredits the availability of the
grievance procedure, because Inmate Complaint Forms were
only “available for any inmate who requests them.” Maj. op.
at 24 (quoting Deputy Kelley’s declaration). However, the
majority takes the quote out of context. Deputy Kelley’s

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affirmation also states that “Inmate Complaint Forms are
available at various locations within the facility.” Further, the
majority fails to recognize that Jail procedures do not require
that complaints only be filed on an Inmate Complaint Form
to be effective—a complaint will be considered so long as it
is written.
Third, the majority takes issue with a locked complaint
box, decrying Baca’s failure to confirm whether “the box is
labeled in any way to indicate its function.” Id. at 25.
However, the majority ignores the fact that a complaint does
not even need to be filed in a complaint box—the Jail would
consider written complaints handed directly to Jail personnel.
The correct inquiry would have been to determine
whether the district court’s factual findings were “plausible.”
Lentini, 370 F.3d at 850. The evidence strongly supports the
district court’s factual findings, namely the presence of an
“available” administrative remedy that Albino failed to
exhaust. Indeed, it is beyond comprehension how a procedure
as simple as writing a few words on a piece of paper and
handing it to Jail personnel could somehow be “[in]capable
of use.” Maj. op. at 16. The majority’s de novo review (in an
effort to conclude otherwise) is inconsistent with governing
law, the majority’s own framework, and conflicts even with
Albino’s view of the law and facts. Albino never once argued
that Baca failed to satisfy his burden, arguing rather that he
had satisfied his own burden of showing how the procedures
were effectively unavailable.
II.
The majority shoulders Baca with production of evidence
never before required in proving failure to exhaust

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administrative remedies, focusing on the lack of evidence
confronting Albino’s testimony that the Jail never informed
him of administrative remedies. Maj. op. at 24 (“[I]nmates
were not even told of the existence of the Manual.”); id. at 25
(“[T]here is nothing in Deputy Kelley’s statement indicating
that inmates are told that a complaint must be in writing.”);
id. at 26 (“Staff members never told him that complaint forms
were ‘available for any inmate who requests them.’”); id. at
29 (“Nor was Albino told that he could write a complaint on
an ordinary piece of paper and hand it to one of the
deputies.”) (emphasis added in each).
Our prior prisoner exhaustion cases required jail officials
to prove that they did not “hide the ball” from defendants.
See, e.g., Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010)
(“[I]mproper screening of an inmate’s administrative
grievances renders administrative remedies ‘effectively
unavailable’ such that exhaustion is not required under the
PLRA.”); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.
2010) (excusing inmate’s failure to exhaust, because “he took
reasonable and appropriate steps to exhaust his . . . claim and
was precluded from exhausting, not through his own fault but
by the Warden’s mistake”); Marella v. Terhune, 568 F.3d
1024, 1027 (9th Cir. 2009) (per curiam) (excusing inmate’s
failure to exhaust, because he pursued some relief but was
informed by prison personnel that no remedies were
available). Today, the majority requires jail officials prove
that, not only did they not hinder a prisoner’s access to
administrative remedies, but also that they informed the
prisoner of them. What comes in the next case to excuse a
sympathetic plaintiff?
Albino’s counsel conceded at oral argument that Albino
never even asked if there were a grievance procedure.

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Although Albino spoke with his attorney about seeking
medical care, the record does not show that he ever raised the
issue of seeking protective confinement with him. His sole
complaint: the Jail did not inform him of the procedure. As
Baca’s counsel aptly noted in oral argument, this case boils
down to an inmate that alleges “I didn’t see” rather than “I
looked and couldn’t find”; that alleges “no one told me”
rather than “I asked and wasn’t told or was told
misinformation.”
Indeed, neither the PLRA nor the Supreme Court has ever
imposed such a duty on jail officials (alleging failure to
exhaust) when the prisoner only alleged ignorance of the
procedures; nor have any of the federal courts of appeal.1 To
the contrary, the majority’s opinion creates a split with the
Eighth and Tenth Circuits, which have held that such is
irrelevant to defendants’ burden. See Chelette v. Harris,
229 F.3d 684, 688 (8th Cir. 2000) (“Section 1997e(a) says
nothing about a prisoner’s subjective beliefs, logical or
otherwise, about the administrative remedies that might be
available to him.”); Yousef v. Reno, 254 F.3d 1214, 1221
(10th Cir. 2001) (holding that there is “no authority for [the]
assertion that the [prison] should have advised plaintiff of the
need to follow BOP administrative procedures” (internal
quotation marks omitted)).
It is no wonder then that Baca did not consider it
necessary to confront Albino’s testimony about his alleged
unawareness of administrative remedies. Instead, litigants in
this circuit were presumed to have knowledge of duly enacted
laws, regulations, and procedures. See Luna v. Holder,
1

Indeed the majority did not cite a single case to support this novel
proposition. See Maj. op. at 25.

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659 F.3d 753, 759 (9th Cir. 2011) (presuming aliens had
notice of duly enacted federal regulations and guidelines
issued thereunder). Grievance procedures in California jails
are promulgated under the direction of state laws and
regulations. See Cal. Penal Code § 6030(a); Cal. Code Regs.
tit. 15, § 1073(a).2
III.
While our court may grant summary judgment sua sponte
to a non-moving party, “we should not [do so] based on an
issue that the movant had no opportunity to dispute in the
district court.” Kassbaum v Steppenwolf Prods., Inc.,
236 F.3d 487, 495 (9th Cir. 2000) (citing Fountain v. Filson,
336 U.S. 681, 683 (1949)). Rather, “great care must be
exercised to assure that the original movant has had an
adequate opportunity to show that there is a genuine issue and
that his [or her] opponent is not entitled to judgment as a

2

Also instructive, the Third Circuit interpreted a statutory exhaustion
provision similar to section 1997e(a) and declined to require a union to
inform union members of grievance procedures in order for the procedures
to be considered “available” under the exhaustion requirement. Donovan
v. Local 1235, Int’l Longshoremen’s Ass’n, 715 F.2d 70, 75 (3d Cir. 1983)
(“The Secretary argues that we can [excuse the failure to exhaust,
because] the union[] fail[ed] to inform its members as to the procedural
requirements of its internal remedies. . . . The statute and regulations on
which he relies do not support such a sweeping position. They provide
only that the union must make its constitution and bylaws ‘available’ to
its members.”). See also Hedges v. United States, 404 F.3d 744, 753 (3d
Cir. 2005) (stating that the plaintiff “cites no cases for the proposition that
the Government [(in this case the Department of the Interior)] has an
affirmative duty to inform litigants . . . that they have viable judicial, as
well as administrative remedies,” and refusing to “place such a
responsibility on the Government which has inquiries from millions of
individuals each year”).

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matter of law.” Id. at 494 (quoting Ramsey v. Coughlin,
94 F.3d 71, 74 (2d Cir. 1996)) (alteration in original). In
Kassbaum, the court saw the issues and the law aligning in
the non-moving parties favor, but “in the exercise of caution,”
it still declined to grant summary judgment sua sponte in
favor of the non-movant. Id. at 495. The court respected the
right of the parties to “have notice of [its] decision and an
opportunity to be heard.” Id.
The majority fails to exercise such caution here. Instead,
the majority mandates the production of evidence never
before necessary for defendants to prove that a plaintiff did
not exhaust his administrative remedies. Then, without
providing prior notice to Baca or an opportunity to submit
evidence required under its newly articulated ruling, it grants
sua sponte summary judgment in Albino’s favor on the
present record. The majority’s lip service to the Kassbaum
standard is the antithesis of “great care.” 236 F.3d at 494.
No jail or prison in this circuit had previously been
obliged to evidence that it had informed prisoners of
administrative remedies to show those remedies’ availability.
Likewise, an inmate’s subjective intent was previously
inapposite to the inquiry. Thus, without notice, Baca has been
afforded no opportunity to evidence, for example, (1) that the
Jail actually informed Albino of the Jail’s grievance
procedure; (2) the number of inmates filing written
complaints under the present system; or (3) the nature and
labeling of the locked complaint box. Before today, Baca had
no reason to dispute Albino’s factual allegations to the
contrary, because the resolution of those allegations was not
necessary to resolving a motion for summary judgment for
failure to exhaust administrative remedies.

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Baca is entitled to notice and an opportunity to be heard.
Kassbaum, 235 F.3d at 495. Given the new evidence which
a defendant must hereafter produce to demonstrate the
availability of administrative remedies, granting summary
judgment sua sponte in favor of Albino is error. See Norse,
629 F.3d at 972.
IV.
Finally, the majority overrules circuit precedent to
purportedly effect a “change of nomenclature” without
changing the “practical operation” of court procedure dealing
with exhaustion issues. Maj. op. at 4. However, if the
majority means what it says in the opinion, it effects more
than a “change of nomenclature.”
Our opinion in Wyatt v. Terhune directed courts to treat
a summary judgment motion alleging failure to exhaust
administrative remedies “as a matter in abatement, which is
subject to an unenumerated Rule 12(b) motion rather than a
motion for summary judgment.” 315 F.3d 1108, 1119 (9th
Cir. 2003). Because exhaustion is a matter of judicial
administration rather than an issue regarding the merits,
district courts could “look beyond the pleadings and decide
disputed issues of fact.” Sapp, 623 F.3d at 821 (quoting
Wyatt, 315 F.3d at 1119–20). In doing so, the court had
“broad discretion as to the method to be used in resolving the
factual dispute.” Ritza v. Int’l Longshoremen’s and
Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988)
(per curiam) (internal quotation marks omitted). Then, on
appeal, our court reviews the dismissal under Rule 12(b) de
novo but reviews the district court’s factual findings for clear
error. Id.

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Under the purported authority of Jones v. Bock, the
majority now pens this decision overruling Wyatt. In the
future, an allegation of “failure to exhaust is more
appropriately handled” as a motion for summary judgment.
Maj. op. at 4. Then if a factual dispute still persists at
summary judgment, the motion must be denied. Id. at 14.
Then only on the eve of trial (or later) may the district court
decide the issue of exhaustion. Id. at 15. “On appeal, we will
review the district judge’s legal rulings on exhaustion de
novo, but we will accept the judge’s factual findings . . .
unless they are clearly erroneous.” Id. at 15. This decision is
particularly surprising for a number of reasons.
First, “[a] goal of our circuit’s decisions, including . . . en
banc decisions, must be to preserve the consistency of circuit
law.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).
In other words, while an en banc panel has the authority to
overrule circuit precedent, id. at 899, it must have a good
reason to do so. I question whether a “change of
nomenclature” constitutes such good reason.
Second, the Supreme Court cited Wyatt approvingly in
Jones. 549 U.S. at 204 n.2, 212 (holding that circuit courts
treating exhaustion as an affirmative defense “have the better
of the argument”). In light of this favorable citation, the
majority’s decision to overrule Wyatt reads too much into
Jones. Instead, it should “abide by the ‘duty of restraint, th[e]
humility of function as merely the translator of another’s
command.’” Id. at 216 (quoting Frankfurter, Some Reflections
on the Reading of Statutes, 47 Colum. L. Rev. 527, 533–34
(1947)) (alteration in original).
Finally, and most importantly, the Jones Court
emphasized that “the PLRA mandates early judicial screening

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of prisoner complaints.” Jones, 549 U.S. at 202; accord
Woods v. Carey, 722 F.3d 1177, 1182 (9th Cir. 2013)
(“Congress enacted the PLRA to . . . provide for [frivolous
prisoner lawsuits’] dismissal at an early stage.”). This “allows
prison officials an opportunity to resolve disputes concerning
the exercise of their responsibilities before being haled into
court.” Jones, 549 U.S. at 204. Early judicial screening also
helps “ensur[e] that the flood of nonmeritorious claims does
not submerge and effectively preclude consideration of the
allegations with merit.” Id. at 203. However, by designating
summary judgment as the appropriate procedure in which to
address allegations of nonexhaustion, maj. op. at 15, the
majority’s new framework will delay resolution of exhaustion
disputes. In fact, the majority opinion guarantees it. Only in
“rare” cases may exhaustion be decided on a motion to
dismiss. Id. at 4. Then, even a decisive ruling at the summary
judgment stage will be unlikely, because the district court
cannot resolve factual disputes relating to exhaustion in
deciding the motion for summary judgment. Id. at 5, 15. Only
after denying summary judgment may the court then conclude
whether a plaintiff has exhausted administrative remedies. Id.
at 15 Even though the majority has stipulated that exhaustion
is not a jury issue, id. at 5, its opinion has the effect of
commissioning a trial (by the judge) to decide an issue that is
widely viewed as one of judicial traffic control. Id. at 14;
Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008). This new
procedure is utterly inconsistent with the PLRA, which
“mandates early judicial screening of prisoner complaints.”
Jones, 549 U.S. at 202.
In summary, while the majority correctly preserves the
district court’s ability to make factual findings in determining
an exhaustion issue and mandates our deference to the district
court’s factual findings on appeal (though it refuses to do so

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here), it impermissibly alters the usual procedural practice in
this circuit on the basis of perceived policy concerns. See
Jones, 549 U.S. at 212. This alteration eliminates the district
court’s ability to decide the exhaustion issue “at an early
stage.” Woods, 722 F.3d at 1182. As a result, it effects much
more than a “change of nomenclature.” Maj. op. at 4.

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