Kevin Andres v. Marshall, et al
Filed order and amended opinion (J. CLIFFORD WALLACE, EDWARD LEAVY and RAYMOND C. FISHER) The opinion filed April 21, 2017, and published at 854 F.3d 1103, is amended. An amended opinion is filed concurrently with this order. Defendants-Appellees petition for rehearing, filed June 2, 2017 (Dkt. 32), is denied as moot. Appellant s Response to Defendant s Appeal, filed June 16, 2017 (Dkt. 33), is construed as an unrequested answer to the petition for panel rehearing and, as such, is ordered stricken. See Fed. R. App. P. 40(a)(3) ( Unless the court requests, no answer to a petition for panel rehearing is permitted. ). Petitions for rehearing may be filed regarding the amended opinion. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LAMARR ANDRES,
MARSHALL, Correctional Officer at
RJ Donovan; R. OLSON, CCII
Appeals Coordinator; J. RAMIREZ,
CCII Appeals Coordinator; BRIGGS,
Chief of Appeals,
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted December 14, 2016 *
Filed April 21, 2017
Amended August 8, 2017
Before: J. Clifford Wallace, Edward Leavy,
and Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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ANDRES V. MARSHALL
Prisoner Civil Rights
The panel amended the opinion filed April 21, 2017,
vacated the district court’s dismissal of California state
prisoner Kevin Andres’s excessive force claim for failure to
exhaust, vacated the judgment, and remanded for further
The panel held that Andres’s administrative remedies for
his excessive force claim were rendered effectively
unavailable by prison officials’ actions. The panel held that
when prison officials improperly failed to process Andres’s
timely filed grievance alleging excessive force, Andres was
deemed to have exhausted available administrative
The panel rejected the state’s contention that dismissal
for failure to exhaust was proper because Andres was still
utilizing the grievance process at the time he filed suit. The
panel held that exhaustion was measured at the time the
action was filed, and when Andres brought his 42 U.S.C.
§ 1983 action in July 2013, his administrative remedies were
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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ANDRES V. MARSHALL
Kevin Lamarr Andres, Imperial, California, pro se PlaintiffAppellant.
Sylvie P. Snyder, Deputy Attorney General; Neah Huynh,
Acting Supervising Deputy Attorney General; Thomas S.
Patterson, Supervising Deputy Attorney General; William
C. Kwong, Acting Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, San Francisco, California; for DefendantsAppellees.
The opinion filed April 21, 2017, and published at
854 F.3d 1103, is amended. An amended opinion is filed
concurrently with this order.
Defendants-Appellees’ petition for rehearing, filed
June 2, 2017 (Dkt. 32), is denied as moot.
Appellant’s “Response to Defendant’s Appeal,” filed
June 16, 2017 (Dkt. 33), is construed as an unrequested
answer to the petition for panel rehearing and, as such, is
ordered stricken. See Fed. R. App. P. 40(a)(3) (“Unless the
court requests, no answer to a petition for panel rehearing is
Petitions for rehearing may be filed regarding the
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ANDRES V. MARSHALL
California state prisoner Kevin Lamarr Andres appeals
pro se from the district court’s summary judgment in his
42 U.S.C. § 1983 action alleging excessive force. 1 We have
jurisdiction under 28 U.S.C. § 1291. We review de novo
legal rulings on exhaustion. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014). We vacate and remand.
This action arises from Andres’ allegations that
defendant Marshall used excessive force against him on
January 23, 2013, while Andres was incarcerated at the
Donovan Correctional Facility (“DCF”). Two days after the
incident, Andres filed a 602 grievance regarding the alleged
excessive force, but never received a response from DCF
On April 4, 2013, Andres filed a petition for writ of
habeas corpus in state court regarding his attempt to exhaust
his excessive force claim. On July 24, 2013, Andres filed
his original complaint in the instant action, alleging, in part,
an excessive force claim and arguing that his administrative
remedies were effectively unavailable because DCF failed to
process his 602 grievance. The state habeas court held an
evidentiary hearing and, on October 10, 2014 (nunc pro tunc
to August 22, 2014), granted Andres’ petition, holding that
We address Andres’ remaining claims in a concurrently filed
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ANDRES V. MARSHALL
Andres had timely filed a grievance and ordering DCF to
accept and process Andres’ 602 appeal. 2
Following the grant of Andres’ habeas petition, the
parties requested that the district court take judicial notice of
the state habeas proceedings. In December 2014, a
magistrate judge recommended that the district court dismiss
the excessive force claim for failure to exhaust because
exhaustion was not complete at the time Andres filed this
action. In March 2015, the district court adopted the
magistrate judge’s recommendation and dismissed the claim
under McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).
The district court never formally ruled on the judicial notice
request, but the record makes clear that the court considered
the state court documents. We therefore treat those
documents as part of the record on appeal. In June 2015, the
district court entered judgment.
The Prison Litigation Reform Act (“PLRA”) states 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 . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). In McKinney, we addressed the question of
whether a district court must dismiss an action involving
prison conditions when the plaintiff had not exhausted his
administrative remedies prior to filing an action but was in
the process of doing so when a motion to dismiss was filed.
See id. at 1199. We concluded that exhausting available
remedies during the course of litigation did not comply with
§ 1997e(a)’s requirements and held that a plaintiff must
The California Court of Appeal later affirmed the superior court’s
order. See In re Andres, 198 Cal. Rptr. 3d 878 (Ct. App. 2016).
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ANDRES V. MARSHALL
exhaust his administrative remedies prior to filing an action.
We have also recognized that the PLRA does not require
exhaustion when circumstances render administrative
remedies “effectively unavailable.” Nunez v. Duncan,
591 F.3d 1217, 1226 (9th Cir. 2010). In Ross v. Blake, the
Supreme Court agreed, holding that § 1997e(a) requires an
inmate to exhaust only those grievance procedures “that are
capable of use to obtain some relief for the action
complained of.” 136 S. Ct. 1850, 1859 (2016) (citation and
internal quotation marks omitted). By way of a nonexhaustive list, the Court recognized three circumstances in
which an administrative remedy was not capable of use to
obtain relief despite being officially available to the inmate:
(1) when the administrative procedure “operates as a simple
dead end” because officers are “unable or consistently
unwilling to provide any relief to aggrieved inmates”;
(2) when the administrative scheme is “so opaque that it
becomes, practically speaking, incapable of use” because
“no ordinary prisoner can discern or navigate it”; and
(3) when prison administrators “thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1859–60.
Andres argues that his administrative remedies for his
excessive force claim were rendered effectively unavailable
by defendants’ actions. We agree. The state habeas court
held an evidentiary hearing and found that defendants
improperly failed to process Andres’ timely filed grievance.
Under the circumstances present here, Andres exhausted his
available administrative remedies prior to filing this action,
thereby satisfying Ross and McKinney. When prison
officials improperly fail to process a prisoner’s grievance,
the prisoner is deemed to have exhausted available
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ANDRES V. MARSHALL
administrative remedies. In such circumstances, prison
officials have “thwart[ed] inmates from taking advantage of
[the] grievance process,” making that process unavailable.
Ross, 136 S. Ct. at 1859; cf. Brown v. Valoff, 422 F.3d 926,
943 n.18 (9th Cir. 2005) (“Delay in responding to a
grievance, particularly a time-sensitive one, may
demonstrate that no administrative process is in fact
available.”); cf. also Robinson v. Superintendent Rockview
SCI, 831 F.3d 148, 153 (3d Cir. 2016) (joining other circuits
in holding “a prison’s failure to timely respond to an
inmate’s properly filed grievance renders its remedies
‘unavailable’ under the PLRA”); Boyd v. Corr. Corp. of Am.,
380 F.3d 989, 996 (6th Cir. 2004) (“Following the lead of
the four other circuits that have considered this issue, we
conclude that administrative remedies are exhausted when
prison officials fail to timely respond to a properly filed
grievance.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002) (“[T]he failure to respond to a grievance
within the time limits contained in the grievance policy
renders an administrative remedy unavailable.”); Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002) (“[W]e
refuse to interpret the PLRA so narrowly as to permit prison
officials to exploit the exhaustion requirement through
indefinite delay in responding to grievances.” (alterations
and internal quotation marks omitted)).
The state contends dismissal for failure to exhaust was
proper “because Andres was still utilizing the grievance
process at the time he filed suit.” We disagree. The PLRA
states that “[n]o action shall be brought with respect to
prison conditions . . . until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a)
(emphasis added). We therefore measure exhaustion at the
time the action is filed. See McKinney, 311 F.3d at 1199.
The district court focused on the fact that, “as of August 22,
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ANDRES V. MARSHALL
2014, administrative remedies remained available to
[Andres] on his claim against Defendant Marshall.” Andres,
however, brought this action in July 2013; at that time, these
remedies were unavailable.
We reverse the district court’s dismissal of Andres’
excessive force claim for failure to exhaust, vacate the
judgment and remand for further proceedings.
Appellees shall bear the costs on appeal.
VACATED AND REMANDED.
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