Rhodes v. Robinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAVIN MAURICE RHODES, 

Plaintiff-Appellant,

v.

M. ROBINSON; RON BLEVINS; SARA

MALONE; R&R OFFICER; R&R No. 08-16363

SERGEANT; OMBUDSMAN; C.

NELSON; CORRECTIONAL OFFICER; V.  DC No.

CV 02-5018

PAZO, Correctional Officer; B.

OPINION

JONES, Sergeant; ROBERTSON,

Sergeant; J. TIDWELL, Correctional

Officer; A. LOPEZ, Facility

Captain; HUEBNER, Lieutenant,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Submitted June 15, 2010*

San Francisco, California

Filed September 8, 2010

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Tashima

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C).

13667

RHODES v. ROBINSON 13669

COUNSEL

Kavin M. Rhodes, Kern Valley State Prison, Delano, Califor-

nia, the plaintiff-appellant pro se.

John W. Riches II, Deputy Attorney General, Sacramento, C

California, for the defendants-appellees.

13670 RHODES v. ROBINSON

OPINION

TASHIMA, Circuit Judge:

The district court sua sponte dismissed claims thirteen

through thirty-three of prisoner Kavin Rhodes’ (“Rhodes”)

second amended complaint (“SAC”), holding that they had

not been exhausted, as required by the Prison Litigation

Reform Act of 1995 (“PLRA”), which states “[n]o action

shall be brought with respect to prison conditions under [42

U.S.C. § 1983], or any other Federal law, by a prisoner con-

fined in any jail, prison, or other correctional facility until

such administrative remedies as are available are exhausted.”

See 42 U.S.C. § 1997e(a). We reverse, holding that the claims

were sufficiently alleged to survive sua sponte dismissal

under the PLRA.

Background

Rhodes is a prisoner in the California prison system who

has filed numerous administrative grievances about the treat-

ment he received from guards while in custody at the Califor-

nia Correctional Institution at Tehachapi (“CCI”). On

December 26, 2001, Rhodes initiated this lawsuit under 42

U.S.C. § 1983, by placing his original complaint in the prison

mail system. He alleged that prison guards at CCI had vio-

lated his civil rights by retaliating against him for exercising

his First Amendment right to pursue the prison grievance pro-

cess against them. The complaint was officially filed with the

district court on January 4, 2002.

Defendants filed a motion to dismiss Rhodes’ claims,

which the district court granted. We reversed on appeal. See

Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). On remand

to the district court, Rhodes filed his SAC on March 20, 2006,

which added claims thirteen through thirty-three. These

claims allege that the same defendant guards perpetrated new

retaliatory acts against Rhodes between January 2, 2002, and

RHODES v. ROBINSON 13671

November 15, 2003, in response to his initiating this lawsuit.

Rhodes’ SAC was filed on a form for pro se prisoner-

litigants. He checked boxes on the form that stated, and

thereby alleged, that he had completed the grievance process

available at CCI concerning the facts relating to the new

claims alleged in the SAC. Nothing in his SAC, or any docu-

ments attached to it, controverted that allegation.

The PLRA incorporates a screening procedure, which pro-

vides that the “court shall review, before docketing, if feasible

or, in any event, as soon as practicable after docketing, a com-

plaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmen-

tal entity.” 28 U.S.C. § 1915A(a). Upon review, the court may

dismiss the complaint, or any portion of it, if it “is frivolous,

malicious, or fails to state a claim upon which relief may be

granted.” See 28 U.S.C. § 1915A(b)(1). Defendants suggested

that the district court screen the SAC in order to “determine

whether Plaintiff failed to satisfy the mandatory precondition

to bringing suit in federal court, to wit: exhaustion of any

available administrative remedies before challenging prison

conditions in federal court.”

The district court sua sponte dismissed claims thirteen

through thirty-three for failure to exhaust under § 1997e. It

interpreted our decision in McKinney v. Carey, 311 F.3d

1198, 1199-1201 (9th Cir. 2002) (per curiam), as requiring

that claim exhaustion must occur prior to the filing of the

original complaint. It then held that Rhodes had failed prop-

erly to exhaust claims thirteen through thirty-three, reasoning

that because they arose from events occurring between Janu-

ary 2, 2002, and November 15, 2003, “any exhaustion of

these claims necessarily occurred after the filing of this

action,” on January 4, 2002.

Rhodes timely appeals.1 The district court had jurisdiction

1

In addition to the exhaustion issue discussed in this opinion, Rhodes

has also raised a host of other contentions on appeal. We address all of

those other issues, and affirm the district court, in a memorandum disposi-

tion filed concurrently with this opinion.

13672 RHODES v. ROBINSON

pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction

under 28 U.S.C. § 1291. We review the district court’s legal

conclusions de novo. See Wyatt v. Terhune, 315 F.3d 1108,

1117 (9th Cir. 2003).

Analysis

The district court erred in dismissing the additional claims

set forth in Rhodes’ SAC for failure to exhaust under § 1997e.

The district court reasoned that the PLRA’s exhaustion

requirement bars amended complaints from asserting new

claims based on conduct that occurred after the initial com-

plaint was “brought,” even when the prisoner has exhausted

the administrative remedies available to address this new con-

duct before filing the amended complaint. In doing so, the dis-

trict court relied on our opinion in McKinney. More recently,

we interpreted the PLRA’s exhaustion requirement in Vaden

v. Summerhill, 449 F.3d 1047 (9th Cir. 2006). Neither of these

cases, however, addresses the circumstance of the case at

bench, in which a prisoner is filing an amended complaint

based on new conduct. Nor do they support the dismissal of

claims thirteen through thirty-three, which were newly added

in Rhodes’ SAC.

[1] McKinney held that the PLRA’s exhaustion require-

ment does not allow a prisoner to file a complaint addressing

non-exhausted claims, even if the prisoner exhausts his

administrative remedies while his case is pending. See 311

F.3d at 1199. Vaden held that a prisoner must exhaust his

administrative remedies before he tenders his complaint to the

district court. See 449 F.3d at 1050. Vaden also held that the

claims which are exhausted after the complaint has been ten-

dered to the district court, but before the district court grants

him permission to proceed in forma pauperis and files his

complaint, must be dismissed pursuant to § 1997e. See id. at

1050-51. Together, these cases stand for the proposition that

a prisoner must exhaust his administrative remedies for the

RHODES v. ROBINSON 13673

claims contained within his complaint before that complaint

is tendered to the district court.

Neither McKinney’s holding that exhaustion is a prerequi-

site to suit (as opposed to merely a prerequisite to judgment),

nor Vaden’s holding that a case is “brought” within the mean-

ing of § 1997e at the time it is tendered to the district court

(as opposed to the time it is filed by the clerk), requires the

dismissal of the newly-alleged claims in Rhodes’ SAC.

Rather, they support Rhodes’ argument that the new claims in

his SAC should not have been dismissed, because they were

properly exhausted before he tendered his SAC to the district

court for filing.

[2] Both McKinney and Vaden must be read and applied in

the larger context of the pleading framework established by

the Federal Rules of Civil Procedure. As a general rule, when

a plaintiff files an amended complaint, “[t]he amended com-

plaint supercedes the original, the latter being treated thereaf-

ter as non-existent.” Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

1976). Nothing in the PLRA’s exhaustion requirement creates

an exception to this basic premise of our jurisprudence on

pleadings.

As the Supreme Court has admonished, “courts should gen-

erally not depart from the usual practice under the Federal

Rules on the basis of perceived policy concerns” when inter-

preting the PLRA. Jones v. Bock, 549 U.S. 199, 212 (2007).

In drafting the PLRA, “when Congress meant to depart from

the usual procedural requirements, it did so expressly.” Id. at

216. Addressing an exhaustion issue related to, but not

directly controlling, the case at bench, the Court held that the

PLRA “does not — explicitly or implicitly — justify deviat-

ing from the usual procedural practice beyond the departures

specified by the PLRA itself.” Id. at 214.

In Jones, the Supreme Court struck down a Sixth Circuit

decision requiring prisoners to plead exhaustion or face dis-

13674 RHODES v. ROBINSON

missal during the district court’s PLRA screening process,

holding that the circuit’s decision imposed an impermissible

judicially-created heightened pleading requirement. In doing

so, it reasoned that “[t]here is . . . no reason to suppose that

the normal pleading rules have to be altered to facilitate” the

PLRA’s screening and exhaustion requirements. Id.

[3] In these circumstances, the new claims in Rhodes’

SAC were “brought” within the meaning of § 1997e on March

20, 2006, when he tendered that complaint for filing with his

motion for leave to file an amended complaint. The SAC

alleged that, at the time of filing, all of the claims within it

had been properly exhausted. Defendants’ argument that the

PLRA requires the newly-added claims in the SAC to have

been exhausted before the original complaint was “brought”

on January 4, 2002, fails because it ignores the general rule

of pleading that the SAC completely supercedes any earlier

complaint, rendering the original complaint non-existent and,

thus, its filing date irrelevant.

The Seventh Circuit addressed the same issue of the

PLRA’s treatment of amended complaints in a slightly differ-

ent, but closely analogous, context. Its holding in Barnes v.

Briley, 420 F.3d 673 (7th Cir. 2005), supports reversing the

district court’s dismissal of claims thirteen through thirty-

three. In Barnes, an inmate brought an action under the Fed-

eral Tort Claims Act (“FTCA”) in October of 2000. Id. at 675.

In August 2003, in light of subsequent factual developments

in his case, the inmate moved to file a second amended com-

plaint dismissing his FTCA claims against the original defen-

dant and adding new claims under § 1983, governed by the

PLRA, against new defendants. Id. at 676.

“The defendants moved to dismiss the suit on the basis that

[the prisoner-plaintiff] had failed to exhaust the prison griev-

ance process related to the incidents underlying his § 1983

claims before filing his original complaint,” although he had

exhausted the claims by the time he moved to file his second

RHODES v. ROBINSON 13675

amended complaint and tendered it to the court. Id. The dis-

trict court granted the motion to dismiss, holding that the

additional claims in the second amended complaint were

barred by § 1997e because they had not been exhausted prior

to the date that the original complaint was brought. Id.

The Seventh Circuit reversed, holding that the prisoner had

“complied with the purpose and letter of the PLRA.” Id. at

678. He fulfilled the purpose of the PLRA because he

exhausted all of the remedies available to him through the

prison grievance process, therefore “afford[ing] those defen-

dants the opportunity to address his grievances before he filed

suit against them.” Id. He followed the letter of the PLRA

because he:

filed his original complaint alleging properly

exhausted claims . . . under the FTCA. After an

investigation by his newly appointed counsel

revealed that the circumstances underlying his origi-

nal complaint supported different claims against dif-

ferent defendants, [plaintiff] initiated the prison

grievance process, as required by the PLRA. Once

he had exhausted those administrative remedies,

[plaintiff] dismissed his FTCA claims and, with the

district court’s leave, substituted his § 1983 claims

against the . . . defendants. It is evident, therefore,

that [the plaintiff] did not attempt to replead improp-

erly exhausted claims in his amended complaint.

Rather, he asserted properly exhausted FTCA claims

in his original complaint, and later he raised new,

properly exhausted § 1983 claims against new defen-

dants.

Id. (footnote omitted). The Seventh Circuit observed that “the

rationale of the district court demanded that [plaintiff] shoul-

der an impossible task — to exhaust remedies not yet perti-

nent to the allegations of the filed complaint.” Id.

13676 RHODES v. ROBINSON

[4] As in Barnes, Rhodes asserted properly exhausted

claims in his original complaint and later raised new, properly

exhausted, claims in his SAC. The fact that both of Rhodes’

complaints were § 1983 claims against the same group of

defendants does not affect the applicability of Barnes to this

case. We agree with the Seventh Circuit that “[t]he filing of

the amended complaint was the functional equivalent of filing

a new complaint . . . and it was only at that time that it

became necessary to have exhausted all of the administrative

remedies” perquisite to bringing the new claims in the

amended complaint. Id.

[5] Moreover, Rhodes’ SAC was, in fact, a supplemental

complaint, regardless of the label attached to it by the pro se

prisoner-plaintiff, permitted under Federal Rule of Civil Pro-

cedure 15(d) because claims thirteen through thirty-three

arose after the initial complaint was filed. See Fed. R. Civ. P.

15(d); Griffin v. County Sch. Bd., 377 U.S. 218, 227 (1964)

(“Rule 15(d) . . . plainly permits supplemental amendments to

cover events happening after suit . . . .”); William Inglis &

Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014,

1057 (9th Cir. 1982) (“The purpose of Rule 15(d) is to pro-

mote as complete an adjudication of the dispute between the

parties as possible by allowing the addition of claims which

arise after the initial pleadings are filed.”). Rhodes’ SAC fits

precisely within the language and purpose of Rule 15(d) as a

supplemental pleading based on facts that occurred after the

filing of the original complaint. The district court’s interpreta-

tion of the PLRA’s exhaustion requirement — and McKinney

— necessarily implies that Rule 15(d) and supplemental

pleadings do not apply to actions under the PLRA. A supple-

mental complaint alleging new, and newly-exhausted, claims

could never be filed in a PLRA action. Congress has never

indicated, however, that it intended to do away with Rule

15(d) and supplemental pleadings in PLRA actions. And, as

we have noted, the Court has expressly reminded us that

“when Congress meant to depart from the usual procedural

requirement, it did so expressly.” Jones, 549 U.S. at 216.

RHODES v. ROBINSON 13677

We hold that the district court erred when it dismissed

claims thirteen through thirty-three of Rhodes’ SAC under

§ 1997e. This result is necessary to harmonize the PLRA with

the requirements of the Federal Rules of Civil Procedure, as

the Supreme Court has instructed; it is also consistent with

our holdings in Vaden and McKinney.

Conclusion

[6] The PLRA’s exhaustion requirement is satisfied so

long as Rhodes exhausted his administrative remedies with

respect to the new claims asserted in his SAC before he ten-

dered that complaint to the court for filing. Rhodes’ SAC

alleges that he did this, and there is nothing in the record to

the contrary. The district court therefore erred in dismissing

claims thirteen through thirty-three as unexhausted under the

PLRA.

This is not to say defendants cannot question on remand the

veracity of Rhodes’ allegations of exhaustion. We make no

finding that the claims have, in fact, been exhausted.

[7] For the foregoing reasons, the portion of the district

court’s order dismissing claims thirteen through thirty-three

of the SAC is reversed and the case remanded to the district

court for further proceedings. Each party shall bear his own

costs on appeal.

REVERSED in part and REMANDED.