Juan Albino v. Lee Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN ROBERTO ALBINO, No. 10-55702

Plaintiff-Appellant,

D.C. No.

v. 2:08-cv-03790-

GAF-MLG

LEE BACA, Los Angeles County

Sheriff; LOS ANGELES COUNTY, OPINION

Defendants-Appellees.

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

2 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.

ALBINO V. BACA 3

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 Defendants-

Appellees.

4 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

ALBINO V. BACA 5

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.

6 ALBINO V. BACA

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 sixteen-

year-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

ALBINO V. BACA 7

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.”

8 ALBINO V. BACA

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.

ALBINO V. BACA 9

§ 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).

10 ALBINO V. BACA

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

ALBINO V. BACA 11

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

12 ALBINO V. BACA

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

ALBINO V. BACA 13

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 subject-

matter 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 “long-

settled 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).

14 ALBINO V. BACA

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.

ALBINO V. BACA 15

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

16 ALBINO V. BACA

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,

ALBINO V. BACA 17

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).

18 ALBINO V. BACA

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,

ALBINO V. BACA 19

“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 then-

governing precedent, contending that Albino failed to exhaust

available administrative remedies. In the alternative, if

Albino had successfully exhausted, they contended that

20 ALBINO V. BACA

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

ALBINO V. BACA 21

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

22 ALBINO V. BACA

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, single-

spaced. 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

ALBINO V. BACA 23

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 § 5-

12/010.00, 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.

24 ALBINO V. BACA

....

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

ALBINO V. BACA 25

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,

26 ALBINO V. BACA

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.

ALBINO V. BACA 27

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

28 ALBINO V. BACA

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

ALBINO V. BACA 29

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.

30 ALBINO V. BACA

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

ALBINO V. BACA 31

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

32 ALBINO V. BACA

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.”

ALBINO V. BACA 33

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

34 ALBINO V. BACA

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]

ALBINO V. BACA 35

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

36 ALBINO V. BACA

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

ALBINO V. BACA 37

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.

38 ALBINO V. BACA

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.

ALBINO V. BACA 39

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”).

40 ALBINO V. BACA

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.

ALBINO V. BACA 41

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.

42 ALBINO V. BACA

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

ALBINO V. BACA 43

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

44 ALBINO V. BACA

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.