Sapp v. Kimbrell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IVAN TERRANCE SAPP, 

Plaintiff-Appellant, No. 05-15745

v.

 D.C. No.

CV-02-02576-FCD

D. KIMBRELL; DOUGLAS PETERSON;

P. VAN COR; C. CRAPOTTA, OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted

May 7, 2010—Pasadena, California

Filed September 27, 2010

Before: Betty B. Fletcher and Richard A. Paez,

Circuit Judges, and Edward R. Korman, District Judge.*

Opinion by Judge Paez

*The Honorable Edward R. Korman, Senior United States District

Judge, Eastern District of New York, sitting by designation.

16419

16422 SAPP v. KIMBRELL

COUNSEL

Randall R. Lee and Matthew D. Benedetto (argued), Wilmer

Cutler Pickering Hale and Dorr LLP, Los Angeles, California,

for plaintiff-appellant Ivan Terrance Sapp.

Edmund G. Brown, Jr., Attorney General; Rochelle C. East,

Senior Assistant Attorney General; Monica N. Anderson,

Supervising Deputy Attorney General; and Michelle L. Angus

(argued), Deputy Attorney General, Sacramento, California,

for defendants-appellees Kimbrell, Van Cor, and Peterson.

OPINION

PAEZ, Circuit Judge:

In 2002, Ivan Terrance Sapp, a California state prisoner,

filed a series of administrative grievances seeking medical

SAPP v. KIMBRELL 16423

care for an eye condition. He never exhausted these griev-

ances, however, because a prison official screened them out

for various reasons. Sapp ultimately filed this suit under 42

U.S.C. § 1983, which the district court dismissed because

Sapp had not exhausted his administrative remedies, as

required by the Prison Litigation Reform Act (“PLRA”).

In this appeal, we must decide whether a prison official’s

improper screening of an inmate’s administrative appeals

excuses the inmate’s failure to exhaust under the PLRA and,

if so, whether Sapp’s appeals were improperly screened. We

hold that, although improper screening may excuse a failure

to satisfy the PLRA’s exhaustion requirement, the facts here

do not show that prison officials improperly screened out

Sapp’s administrative grievances. Accordingly, we affirm the

dismissal of Sapp’s lawsuit.

I. Background

In 1989, Sapp suffered an eye injury in prison that contin-

ues to cause him problems. In 2002, while incarcerated at the

California state prison in Sacramento, he sought medical care,

including eyelid surgery, but it is unclear whether he ever

received it. Sapp claims to have filed over twenty administra-

tive appeals about the issue with the prison. In December

2002, Sapp filed this § 1983 suit in federal court alleging

deliberate indifference to his medical needs and challenging

related actions. In particular, Sapp alleged that defendant

Douglas Peterson, a prison doctor, denied him needed medical

treatment; that defendant D. Kimbrell, the prison’s adminis-

trative appeals coordinator, improperly screened his griev-

ances seeking medical care; and that defendant P. Van Cor, a

prison official, denied him an “Olson” review1 of his medical

records. The district court dismissed Sapp’s suit without prej-

1

An Olson review is “an administrative procedure which allows an

inmate to review his central file.” James v. Scribner, No. CV 07-880-

TUC-RCC, 2010 WL 2605634, *1 (E.D. Cal. June 28, 2010).

16424 SAPP v. KIMBRELL

udice for failure to exhaust his administrative remedies, as

required by the PLRA, 42 U.S.C. § 1997e(a).

Although Sapp did not exhaust his administrative remedies,

he did pursue some administrative appeals before filing this

suit. We first describe California prisons’ grievance proce-

dures and then detail the administrative grievances that Sapp

pursued.

A. California Prisons’ Grievance Procedures

California regulations allow a prisoner to appeal any action

or decision by a prison official that adversely affects the pris-

oner’s welfare. Cal. Code Regs. tit. 15, § 3084.1(a). To

exhaust a grievance, an inmate must pursue his appeal

through four levels, one “informal” and three “formal.” Id.

§§ 3084.5, 3084.1(a). An inmate must file the initial griev-

ance within 15 working days of the action being appealed,

and he must file each administrative appeal within 15 working

days of receiving an adverse decision at a lower level. Id.

§ 3084.6(c).

At the informal level, an inmate must seek to have the

involved prison employee resolve the problem. Id.

§ 3084.5(a). If this is unsuccessful, the inmate must then fill

out a “Form 602,” the “Inmate/Parolee Appeal Form,”

describing the problem and action requested. Id. § 3084.2(a).

An “appeals coordinator” at the prison “screen[s]” each

appeal before forwarding it on for review on the merits. Id.

§ 3084.3(a). The appeals coordinator may reject, or “screen,”

an appeal for various reasons, including failure to comply

with the 15-day time limit, incompleteness or omission of

necessary supporting documents, or failure to attempt to

resolve the grievance informally. Id. §§ 3084.3, 3084.6(c).

When the appeals coordinator rejects an appeal, he must fill

out a form that explains why the appeal is unacceptable and

instructs the inmate on what he must do to qualify the appeal

for processing. Id. § 3084.3(d). If it appears from the appeal

SAPP v. KIMBRELL 16425

form that the prisoner has difficulty describing the problem in

writing, the appeals coordinator must arrange an interview

with the prisoner to help clarify or complete the appeal. Id.

§ 3084.3(b)(3). Once the appeals coordinator allows an appeal

to go forward, the inmate must pursue it through three levels

of formal review. Id. § 3084.5.

B. Sapp’s Attempts to Exhaust

Although Sapp filed numerous grievances relating to his

eye condition, none was ever considered on the merits.

First, in December 2001, Sapp mentioned his eye condition

in a second-level appeal of a different grievance seeking care

for a skin condition. Prison officials rejected this appeal on

the ground that the eye issue was “new” and had to be submit-

ted in a separate appeal.

Sapp then filed a first-level appeal regarding his eye condi-

tion in early June 2002. This appeal was screened for reasons

not apparent on the record before us. Sapp again filed a first-

level appeal on June 9, 2002, that explained that he had “been

having great difficulty in obtaining adequate medical care”

since arriving at the prison in July 2001. He explained that

doctors had referred him to see an eye specialist at the Uni-

versity of California at Davis (“UC Davis”), but that “this

issue continues to go unrecognized.” He explained that he had

“submitted medical slips to medical staff” and that the pris-

on’s medical staff were “aware of the issues.” In the “Action

Requested” box on the form, Sapp indicated that he sought to

“recover from a critical problem” and that “the only way to

remedy the situation is to continue filing 602s [appeal forms]

and try to remedy the issue any way possible.”

The next day, Kimbrell, the prison’s appeals coordinator,

screened out that appeal on the ground that Sapp had “not

adequately completed the [602 form] or attached the proper

documents.” Kimbrell noted that “[a]nother appeal was

16426 SAPP v. KIMBRELL

screened out and returned to you [five days earlier] on the

same issue, it appears. Be specific about eye condition and

action requested.”

Eight days later, on June 18, 2002, Sapp visited the UC

Davis Medical Center’s Ophthalmology Department and

received only an examination. Sapp then filed another inmate

appeal on June 30, 2002, that described the problem as “a

long delay in obtaining adequate medical treatment for an

[sic] critical eye injury which occurred [in 1989, while incar-

cerated].” He explained that the medical records were in his

prisoner file and that he was “having great difficulty in filing

a[n] inmate 602 appeal to exhaust the issue.” In the “Action

Requested” box, Sapp indicated that he sought “treatment as

soon as possible, because I need the eyelid surgery, and I may

have developed an eye infection.” He also appended a two-

page description of the problem, including a hand-drawn dia-

gram of his eye and an account of the events that led to his

injury.

Two days later, on July 2, Kimbrell screened out this

appeal, again because Sapp had not adequately completed the

form or attached proper documents. This time, Kimbrell spe-

cifically instructed Sapp to attach his Health Care Request

form (Form 7362) or to explain why the form was not avail-

able and to “[c]larify the issue, have you been treated at SAC

[this facility] for this condition? If you have not recently

requested treatment at SAC submit of [sic] CDC 7362 to the

Clinic.” Boilerplate text at the bottom of the form advised:

“This screening action may not be appealed unless you allege

that the above reason is inaccurate. In such case, please return

this form to the Appeals Coordinator with the necessary infor-

mation.”

In response, Sapp filed a Health Care Services Request,

Form 7362, on July 20 seeking “follow-up of UC Davis otho

eye exam.” Four days later, prison staff responded with a note

indicating that Sapp would be “seen within the week or 2

SAPP v. KIMBRELL 16427

weeks.” The record does not indicate whether or when the

medical staff actually saw Sapp. The record before us does

not show that Sapp ever filed an administrative grievance

alleging that prison medical staff failed to see him as prom-

ised.

On July 30, Sapp submitted a Reasonable Modification or

Accommodation Request under the Americans with Disabili-

ties Act seeking help pursuing his administrative remedies.

Sapp described his disability as the “lack of knowledge to

write out a 602 [appeal form] to suite [sic] the appeals coordi-

nator’s approval, no matter how clearly it is stated.” Sapp

explained that he had only a seventh grade education and

asked for medical treatment. The prison ultimately denied this

request on October 1.

On August 30, Kimbrell again screened out Sapp’s June 30

appeal. This time, Kimbrell indicated that the appeal exceeded

the 15-working-day time limit for inmate appeals. Kimbrell

noted that Sapp was “personally interviewed” on August 29

and that he stated that this was an “old issue [he] appealed in

1990.” Again, Kimbrell advised Sapp, “If you need medical

treatment, submit a CDC 7362 [Health Care Services

Request] to the Clinic.”

In response, Sapp submitted Health Care Services Requests

on September 9 and 23, seeking referral to an eye doctor and

surgery on his left eye. It is unclear whether, or how, prison

officials responded to these requests. In any event, Sapp never

filed an administrative grievance about officials’ failure to

respond adequately to these requests.

On September 23, Sapp submitted a request for an Olson

review of his medical records. Van Cor appears to have for-

warded this request to the Medical Records Office sometime

before October 21.

On November 18, 2002, the same day that Sapp signed his

federal complaint in this case, Sapp filed an administrative

16428 SAPP v. KIMBRELL

appeal grieving about the denial of an Olson review of his

medical records and the repeated denial of his attempts to

exhaust his appeals, explaining that he was “at risk with any

health concerns.” On December 2, he filed his complaint

against the defendants in the Eastern District of California.

At the same time that he was attempting to pursue his

administrative remedies, Sapp sought to raise his concerns

through other avenues. He submitted two Consumer Com-

plaint forms to the Medical Board of California claiming that

prison medical staff were denying him care for his eye condi-

tion. In addition, he alerted others about what he perceived as

Kimbrell’s improper screening of his appeals in letters that he

wrote to the California Inspector General and to the warden.

The Inspector General declined to investigate, and the warden

informed Sapp that, if he disagreed with the screenings, he

could “provide a written explanation as to why your appeal

should qualify for processing.” In addition, the warden

advised him that he could file a “staff complaint” if he per-

ceived that he was the victim of discrimination.

During the same time frame as Sapp filed his appeals

regarding his eye condition, he submitted Health Care Ser-

vices Requests about other conditions. He also successfully

exhausted a grievance regarding medical care for a skin con-

dition in June 2002.

C. District Court Proceedings

Sapp filed this § 1983 suit pro se against Peterson, Kim-

brell, Van Cor, and a fourth defendant, Dr. Crapotta, in

December 2002. Sapp alleged that Peterson, a prison doctor,

denied him needed medical treatment; that Kimbrell, the pris-

on’s appeals coordinator, improperly screened his grievances

seeking medical care; that Van Cor, a prison official, denied

him an Olson review of his medical records; and that Cra-

potta, another doctor, also had denied him medical care. The

district court dismissed the claims against Crapotta for failure

SAPP v. KIMBRELL 16429

to serve him, and the remaining defendants filed a motion to

dismiss under Federal Rule of Civil Procedure 12(b).

The assigned magistrate judge issued proposed Findings

and Recommendations recommending dismissal of the claims

against the remaining defendants for failure to exhaust as

required by the PLRA. The magistrate judge concluded that

the alleged improper screening of Sapp’s administrative

appeals did not prevent him from exhausting because, even if

his forms had not been screened out, they would not have suf-

ficed to exhaust his claims. In particular, the magistrate judge

noted that, before filing this suit, Sapp never submitted any

grievance or appeal regarding the improper screening or the

denial of an Olson review of his records. Although Sapp had

filed grievances regarding the denial of medical treatment, the

magistrate judge concluded that these grievances would not

have sufficed to exhaust his claims against Peterson because

they did not “mention defendant Peterson by name or suggest

that defendant Peterson was responsible for the alleged inade-

quate treatment or delays.” Although Sapp’s November 18,

2002, appeals form named Peterson, that appeal was not

exhausted before the suit was filed.

The district judge adopted the magistrate judge’s proposed

Findings and Recommendations in full and dismissed Sapp’s

claims without prejudice. Sapp timely appealed to this court.

After holding the case in abeyance pending our decision on

remand in Ngo v. Woodford, 539 F.3d 1108 (9th Cir. 2008),

we appointed pro bono counsel for Sapp.

II. Jurisdiction and Standard of Review

The district court had jurisdiction under 28 U.S.C. §§ 1331

and 1343, and we have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s dismissal based on

Sapp’s failure to exhaust. O’Guinn v. Lovelock Corr. Ctr.,

502 F.3d 1056, 1059 (9th Cir. 2007). In deciding a motion to

dismiss for failure to exhaust, a court may “look beyond the

16430 SAPP v. KIMBRELL

pleadings and decide disputed issues of fact.” Wyatt v. Ter-

hune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). We review the

district court’s factual findings for clear error. O’Guinn, 502

F.3d at 1059.

III. Discussion

[1] The PLRA requires a prisoner to exhaust his adminis-

trative remedies before filing a lawsuit concerning prison con-

ditions:

No 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 . . .

correctional facility until such administrative reme-

dies as are available are exhausted.

42 U.S.C. § 1997e(a). The Supreme Court has held that this

exhaustion requirement demands “proper” exhaustion. Wood-

ford v. Ngo, 548 U.S. 81, 84 (2006). To “proper[ly]” exhaust,

a prisoner must comply “with an agency’s deadlines and other

critical procedural rules because no adjudicative system can

function effectively without imposing some orderly structure

on the course of its proceedings.” Id. at 90-91.

Sapp acknowledges that he failed to properly exhaust his

claims, but contends that we should nonetheless permit his

suit to go forward for two reasons. First, Sapp contends that

the PLRA requires exhaustion only of those administrative

remedies that are “available,” and that the improper screening

of his appeals rendered administrative remedies effectively

unavailable to him. Second, Sapp urges us to recognize, and

apply to him, an equitable exception to the PLRA’s exhaus-

tion requirement where a prisoner’s special circumstances jus-

tify non-compliance with administrative regulations. We

address each contention in turn.

SAPP v. KIMBRELL 16431

A. Effectively Unavailable Remedies

1

[2] The PLRA requires that an inmate exhaust only those

administrative remedies “as are available.” 42 U.S.C.

§ 1997e(a). We have recognized that the PLRA therefore does

not require exhaustion when circumstances render administra-

tive remedies “effectively unavailable.” See Nunez v. Duncan,

591 F.3d 1217, 1226 (9th Cir. 2010).

In Nunez v. Duncan, we held that a prisoner’s failure to

exhaust was excused where he “took reasonable and appropri-

ate steps to exhaust his . . . claim and was precluded from

exhausting, not through his own fault but by the Warden’s

mistake.” Id. at 1224. There, the prisoner, Nunez, had filed an

administrative grievance alleging that he had been strip

searched in violation of his Fourth Amendment rights. Id. at

1220. When prison officials responded to his grievance by

saying that the search was conducted pursuant to prison regu-

lations, Nunez appealed to the next level and, in his appeal,

asked for a citation to the relevant regulation. Id. The warden

construed the grievance as merely a request for the regulation

and accordingly responded with the citation. Id. Nunez then

sought to get a copy of the regulation by going to the law

library, and then, when the regulation was not available there,

by filing a total of four grievances, a Freedom of Information

Act (FOIA) request, and four letters appealing the FOIA

denial. Id. at 1220-21. He never received a copy of the regula-

tion because, as it turns out, the warden had given him an

incorrect citation to a regulation that was “restricted” from

inmates. Id. Finally, after many months of unsuccessful

attempts to obtain the regulation, the inmate filed the next-

level appeal of his initial grievance challenging the search. Id.

at 1221. That appeal and the following final-level appeal were

rejected as untimely. Id.

We excused Nunez’s failure to exhaust his administrative

remedies within the prescribed time limits because Nunez

16432 SAPP v. KIMBRELL

“could not reasonably be expected to exhaust his administra-

tive remedies without the [regulation] . . . , and because

Nunez timely took reasonable and appropriate steps to obtain

it.” Id. at 1225. Nunez reasonably believed in good faith,

based on the warden’s response to his early appeal, that the

regulation was necessary, not merely useful, to prepare his

appeal. Id. at 1225-26. Because the warden’s mistake in pro-

viding the incorrect citation thus “rendered Nunez’s adminis-

trative remedies effectively unavailable,” we excused Nunez’s

failure to exhaust. Id. at 1226.

As we acknowledged in Nunez, our sister circuits have sim-

ilarly excused prisoners’ failures to exhaust where administra-

tive remedies were effectively unavailable. Id. at 1224. The

Seventh and Eighth Circuits have held that administrative

remedies are not “available,” and exhaustion is therefore not

required, where prison officials refuse to give a prisoner the

forms necessary to file an administrative grievance. See Dale

v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Miller v. Norris,

247 F.3d 736, 738, 740 (8th Cir. 2001). The Seventh Circuit

similarly has held that prison officials’ failure to respond to

a properly filed grievance makes remedies “unavailable” and

therefore excuses a failure to exhaust. See Dole v. Chandler,

438 F.3d 804, 809, 811 (7th Cir. 2006). The Third Circuit has

held that exhaustion was excused where guards erroneously

informed an inmate that he had to wait until an investigation

was complete before filing a grievance. See Brown v. Croak,

312 F.3d 109, 111-12 (3d Cir. 2002). And several circuits

have held that prison officials’ threats of retaliation can render

administrative remedies effectively unavailable such that a

prisoner need not exhaust them. See Turner v. Burnside, 541

F.3d 1077, 1085 (11th Cir. 2008); Macias v. Zenk, 495 F.3d

37, 45 (2d Cir. 2007); Kaba v. Stepp, 458 F.3d 678, 685-86

(7th Cir. 2006).

[3] Consistent with these precedents and with our decision

in Nunez, we hold that improper screening of an inmate’s

administrative grievances renders administrative remedies

SAPP v. KIMBRELL 16433

“effectively unavailable” such that exhaustion is not required

under the PLRA. If prison officials screen out an inmate’s

appeals for improper reasons, the inmate cannot pursue the

necessary sequence of appeals, and administrative remedies

are therefore plainly unavailable.

Recognizing an exception to the PLRA’s exhaustion

requirement where prison officials improperly screen an

inmate’s administrative appeals comports with, and indeed

promotes, the requirement’s purposes. As the Supreme Court

has explained, administrative exhaustion serves two purposes.

First, “[e]xhaustion gives an agency ‘an opportunity to correct

its own mistakes with respect to the programs it administers

before it is haled into federal court.’ ” Ngo, 548 U.S. at 89

(quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).

Second, “exhaustion promotes efficiency” by allowing claims

to “be resolved much more quickly and economically in pro-

ceedings before an agency than in litigation in federal court,”

by sometimes “convinc[ing] the losing party not to pursue the

matter in federal court,” and by “produc[ing] a useful record

for subsequent judicial consideration” in cases where the

claim does eventually reach federal court. Id. (internal quota-

tion marks omitted). If inmates did not pursue administrative

remedies, these benefits would not be realized. Thus, to pro-

mote these benefits, the PLRA makes exhaustion a prerequi-

site to suit so that inmates have an incentive to pursue

administrative proceedings that they might otherwise prefer to

skip. See id. at 90.

[4] Just as the PLRA promotes the benefits of exhaustion

in this way, the exception we recognize today promotes

exhaustion’s benefits by removing any incentive prison offi-

cials might otherwise have to avoid meaningfully considering

inmates’ grievances by screening them for improper reasons.

Excusing a failure to exhaust when prison officials improperly

screen an inmate’s administrative appeals helps ensure that

prison officials will consider and resolve grievances internally

and helps encourage use of administrative proceedings in

16434 SAPP v. KIMBRELL

which a record can be developed that will improve the quality

of decision-making in any eventual lawsuit. At the same time,

this exception does not alter prisoners’ incentive to pursue

administrative remedies to the extent possible.

2

[5] Having recognized an exception to the PLRA’s exhaus-

tion requirement where a prison official renders administra-

tive remedies effectively unavailable by improperly screening

a prisoner’s grievances, we must next determine whether

Sapp falls within this exception. To fall within this exception,

a prisoner must show that he attempted to exhaust his admin-

istrative remedies but was thwarted by improper screening. In

particular, the inmate must establish (1) that he actually filed

a grievance or grievances that, if pursued through all levels of

administrative appeals, would have sufficed to exhaust the

claim that he seeks to pursue in federal court, and (2) that

prison officials screened his grievance or grievances for rea-

sons inconsistent with or unsupported by applicable regula-

tions.

A grievance suffices to exhaust a claim if it puts the prison

on adequate notice of the problem for which the prisoner

seeks redress. To provide adequate notice, the prisoner need

only provide the level of detail required by the prison’s regu-

lations. Jones v. Bock, 549 U.S. 199, 218 (2007). The Califor-

nia regulations require only that an inmate “describe the

problem and the action requested.” Cal. Code Regs. tit. 15,

§ 3084.2(a). Where, as here, a prison’s regulations are “in-

complete as to the factual specificity [required in an inmate’s

grievance], a grievance suffices if it alerts the prison to the

nature of the wrong for which redress is sought.” Griffin v.

Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (internal quota-

tion marks omitted).

[6] Sapp pursues three claims against three defendants in

this suit. He alleges that Peterson denied him needed medical

SAPP v. KIMBRELL 16435

treatment for his eye condition; that Van Cor denied him an

Olson review of his medical records; and that Kimbrell

improperly screened his grievances seeking medical care. We

conclude that Sapp’s grievances would have sufficed to

exhaust only the claim against Peterson.

Sapp’s grievances alerted the prison to the nature of his

complaint regarding medical treatment for his eye condition.

In his grievances, Sapp explained that he was having trouble

getting medical treatment and that he may have developed an

eye infection, and he requested eyelid surgery and a follow-up

appointment with a doctor at UC Davis. Further, contrary to

the district court’s conclusion, Sapp was not required to iden-

tify Peterson by name to exhaust the grievance against him.

Neither the PLRA itself nor the California regulations require

an inmate to identify responsible parties or otherwise to signal

who ultimately may be sued. See Jones, 549 U.S. at 217

(“[N]othing in the [PLRA] imposes a ‘name all defendants’

requirement.”). Sapp’s grievances therefore would have suf-

ficed to exhaust his claim against Peterson for the denial of

adequate medical treatment.

By contrast, no grievance that was screened—properly or

improperly—would have sufficed to exhaust Sapp’s claim

against Van Cor for failing to give him an Olson review of his

medical records. The grievances that Sapp alleges were

improperly screened did not mention the denial of an Olson

review at all. Although Sapp filed a substantively sufficient

administrative appeal regarding this problem on November

18, 2002, he did not even wait for a response before pursuing

this suit—indeed, he signed his federal complaint on the same

day he filed that appeal. Sapp therefore cannot establish that

any improper screening prevented him from exhausting this

grievance, and he accordingly cannot pursue his Olson review

claim against Van Cor.

Sapp’s screened grievances similarly would not have suf-

ficed to exhaust his claim against Kimbrell for improper

16436 SAPP v. KIMBRELL

screening of his administrative appeals. Again, Sapp first

mentioned this problem in the November 18 grievance that he

did not even attempt to exhaust before filing this suit. Thus,

to the extent that Sapp seeks to pursue a freestanding claim

against Kimbrell for improperly screening his appeals, he can-

not because he did not attempt to pursue administrative reme-

dies for this problem before filing this federal suit.2

Thus, Sapp filed administrative grievances that would have

sufficed to exhaust only his inadequate medical care claim

against Peterson. We accordingly must next determine

whether the grievances raising that claim were screened for

improper reasons.

[7] On the record before us, it appears that Sapp’s adminis-

trative grievances about medical care for his eye condition

were effectively screened out five times. We consider each

screening in turn. First, prison officials declined to consider

a complaint about Sapp’s eye condition that he raised for the

first time in a second-level appeal about medical care for a

skin condition. There, officials explained that the eye issue

had to be raised in a separate appeal, starting at the first level.

This screening was proper; an inmate must first present a

complaint at the first level of the administrative process. See

Cal. Code Regs. tit. 15, § 3084.5.

Next, officials screened out a first-level appeal about

Sapp’s eye condition for an unknown reason in early June

2002. Because Sapp does not even mention this appeal in his

briefs, we assume that he does not contend that it was improp-

erly screened.

A few days later, Sapp filed an appeal indicating that he

was having “great difficulty” obtaining medical care and

2

We do not, however, mean to suggest that an inmate must attempt to

exhaust a grievance about any improper screening in order for improper

screening to excuse a failure to exhaust other claims.

SAPP v. KIMBRELL 16437

explaining that prison staff had not followed up on a referral

to see an eye specialist at UC Davis. His appeal also noted

that he was “unable to recover in malpractice.” In the “Action

Requested” box, Sapp explained that he sought to “recover

from a critical problem where a long ongoing denial of ade-

quate medical care and malpractice which took place in

prison. The issues are so disturbing and complex that the only

way to remedy the situation is to continue filing 602’s and try

to remedy the issue any way possible. ‘Medical staff here are

aware of the issues.’ ” Kimbrell screened out this appeal, tell-

ing Sapp to “[b]e specific about eye condition and action

requested.” This screening also was proper, as the regulations

require inmates to “describe the . . . action requested.” Id.

§ 3084.2(a). Although Sapp’s grievance may have implied

that he wanted to see any eye specialist, Sapp indicated in the

“Action Requested” box that he wanted to “recover from a

critical problem” involving malpractice. Given the mixed

messages in Sapp’s grievance, it was appropriate for the

screener to seek clarification of the problem for which Sapp

sought redress.

About a week after that appeal was rejected, Sapp visited

a doctor at the UC Davis Ophthalmology Department.

Approximately two weeks later, on June 30, 2002, Sapp sub-

mitted an administrative grievance that contained a detailed

description of the history and nature of his eye injury. In the

“Action Requested” box, Sapp wrote, “I’m requesting treat-

ment as soon as possible, because I need the eyelid surgery,

and I may have developed an eye infection. Plus the doctor

seems to know what to do as far as my eyelids. The issues that

lead [sic] up to the damage are disturbing and I have been dil-

igent in tr[y]ing to remedy the situation.” Two days later,

Kimbrell screened out this appeal, this time because Sapp had

not attached a Health Care Request Form showing that he had

sought, and been denied, medical treatment. Kimbrell further

explained, “Clarify the issue, have you been treated at SAC

[this prison] for this condition? If you have not recently

requested treatment at SAC submit of [sic] CDC 7362 [Health

16438 SAPP v. KIMBRELL

Care Request form] to the Clinic.” This screening was also

proper. The regulations allow an appeal to be rejected if “nec-

essary supporting documents are not attached.” Id.

§ 3084.3(c)(5). Sapp did not include a copy of a Health Care

Request form indicating that he had tried to obtain medical

care through the proper channels. Nor did Sapp contest the

screening decision by returning the form “with the necessary

information”—in this case, a 7362 Health Care Request form

showing that he had sought, and been denied, medical care—

as boilerplate text at the bottom of the screening form advised

him he could do. Importantly, the screening did not preclude

Sapp from getting medical care. To the contrary, it instructed

him on how to get it: by submitting a CDC 7362 form to the

clinic.

More than two weeks later, on July 20, Sapp submitted a

7362 form requesting a follow-up appointment with the oph-

thalmologist at UC Davis. Although the record does not

reveal whether or how prison officials responded to this

request, Sapp never filed a grievance about the officials’ fail-

ure to respond adequately to this request.

On August 30, Kimbrell again rejected the appeal that Sapp

had submitted on June 30, this time for failure to comply with

the 15-day time limit.3 On the screening form, Kimbrell

explained that a prison official had personally interviewed

Sapp the day before, and that Sapp had indicated that this was

an “old issue” that he had appealed in 1990. This screening

was also proper. The form indicates that prison officials, con-

sistent with the regulations, recognized that Sapp appeared to

have difficulty explaining his complaint in writing and

accordingly had interviewed him in person to clarify the basis

of the grievance. See id. § 3084.3(b)(3) (requiring an inter-

view when “an appeal indicates the appellant has difficulty

3

Sapp claims that he did not resubmit his June 30 appeal form, so it is

unclear why Kimbrell rejected this form a second time. Why Kimbrell

considered this appeal again, however, is irrelevant to our analysis.

SAPP v. KIMBRELL 16439

describing the problem in writing”). In this interview, Sapp

apparently explained that he sought to appeal the inadequate

medical care he had received in 1990 when his eye was first

injured in prison. If this were his complaint, he did indeed

miss the 15-day deadline. Importantly, however, Kimbrell

also acknowledged that Sapp might be seeking current medi-

cal treatment and again advised him on how to get it, noting

at the bottom of the form, “If you need medical treatment,

submit a CDC 7362 to the Clinic.”

[8] Thus, all of Sapp’s administrative appeals were

screened for proper reasons. Administrative remedies were

accordingly “available,” and Sapp was required to exhaust

them.

In reaching this conclusion, we do not foreclose the possi-

bility that exhaustion might also be excused where repeated

rejections of an inmate’s grievances at the screening stage

give rise to a reasonable good faith belief that administrative

remedies are effectively unavailable. Such an excuse is not

available here, however, because, despite the repeated screen-

ings, Sapp could have no reasonable belief that administrative

remedies were effectively unavailable. Kimbrell specifically

instructed Sapp on how to seek medical care, and on how to

appeal any denial of care, but Sapp did not follow those

instructions.

We further note that nothing in the district court record sug-

gests that the prison had created draconian procedural require-

ments that would “trip[ ] up all but the most skillful

prisoners”—which might also render administrative remedies

effectively unavailable so as to excuse a failure to exhaust.

See Ngo, 548 U.S. at 102 (leaving open the possibility that an

exception to the exhaustion requirement might exist in such

circumstances). Sapp had a clear avenue to follow to receive

medical care or to exhaust his remedies if he did not receive

the desired care. First, he could have filed a 7362 Health Care

Request form, as Kimbrell suggested he do. If prison officials

16440 SAPP v. KIMBRELL

did not respond, or did not provide the needed care, he could

have filed a grievance about the denial of care, and appended

the form showing that he had requested the care in accordance

with prison procedures. Then, he could have pursued that

grievance through the full administrative appeals process.

Nothing in the record indicates that these apparently straight-

forward procedures “trip[ ] up” ordinary inmates. To the con-

trary, Sapp has proven his own ability to navigate them, as he

successfully exhausted a grievance about medical care for a

skin condition around the same time as he pursued his appeals

about his eye condition.

[9] Because Sapp’s grievances were properly screened,

because he had no reasonable good faith belief that adminis-

trative remedies were effectively unavailable, and because the

prison’s administrative grievance regime was not so complex

as to trip up most prisoners, administrative remedies were

available within the meaning of the PLRA, and Sapp was

accordingly required to exhaust them.

B. Equitable Exception to Exhaustion

We next consider whether, notwithstanding the availability

of administrative remedies, Sapp’s special circumstances enti-

tle him to an equitable exception to the PLRA’s exhaustion

requirement. Although Sapp does not precisely articulate what

equitable exception would apply to him, he suggests that his

significant difficulty in following the grievance process, his

reasonable belief that he could not pursue the grievance pro-

cess any further, his limited education, and the fact that he did

not deliberately bypass the administrative scheme warrant an

equitable exception here.

[10] We need not decide here whether such circumstances

might warrant an equitable exception to the PLRA’s exhaus-

tion requirement, however, because Sapp would not qualify

for it. Although Sapp’s request for a reasonable accommoda-

tion to help him satisfactorily complete an administrative

SAPP v. KIMBRELL 16441

grievance form and his many attempts to pursue his complaint

outside of the prison’s administrative grievance process—

through letters to the Medical Board of California, the war-

den, and the California Inspector General—suggest that Sapp

did believe in good faith that he could not pursue the adminis-

trative grievance process any further, that subjective belief

was not reasonable, as explained above. The procedures for

obtaining medical care were clear: file a 7362 Health Care

Request form, and then file an administrative grievance if

officials failed to respond. Kimbrell specifically advised Sapp

to submit a 7362 form if he sought medical care. Although

Sapp filed several such forms, he never followed up by filing

a grievance about prison officials’ failure to respond ade-

quately to those requests. Because he never even attempted to

file any such grievance, he could not have reasonably

believed that he could not pursue the administrative appeals

process any further.

[11] We therefore decline to excuse Sapp’s failure to

exhaust under the equitable exception he proposes.

IV. Conclusion

We hold that administrative remedies are “effectively

unavailable”—and that the PLRA’s exhaustion requirement is

therefore excused—where prison officials improperly screen

a prisoner’s grievance or grievances that would have sufficed

to exhaust the claim that the prisoner seeks to pursue in fed-

eral court. Nonetheless, we conclude that Sapp’s failure to

exhaust is not excused because prison officials did not

improperly screen any grievances that would have sufficed to

exhaust his claims. We further conclude that Sapp is not enti-

tled to any equitable exception to the PLRA’s exhaustion

requirement. We accordingly affirm the district court’s order

dismissing Sapp’s claims without prejudice.

AFFIRMED.