J. Wilkerson v. B. Wheeler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. R. WILKERSON, AKA Adonai El- No. 11-17911

Shaddai, AKA James Wilkerson,

Plaintiff-Appellant, D.C. No.

2:06-cv-01898-

v. KJM-EFB

B. WHEELER; N. ALBONICO; D. L.

THOMPSON; G. TURNER, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted

September 9, 2014—San Francisco, California

Filed November 18, 2014

Before: Stephen Reinhardt, Ronald M. Gould, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould

2 WILKERSON V. WHEELER

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s summary judgment

and vacated a judgment, entered following a jury trial, in an

action brought under 42 U.S.C. § 1983 alleging that

correctional officers used excessive force in restraining

plaintiff while he was incarcerated at High Desert State

Prison in California.

Rejecting the government’s argument that plaintiff

waived his right to appeal the magistrate judge’s findings

regarding exhaustion of administrative remedies, the panel

held that plaintiff exhausted his administrative remedies

against defendant Sergeant Gary Turner. The panel held that

plaintiff’s grievance alerted the prison to the nature of the

wrong for which redress was sought by (1) describing the use

of force; (2) identifying Turner as one of the responding

officers; and, (3) specifically describing Turner’s use of

force.

The panel held that plaintiff was prejudiced by the district

court’s jury instructions that plaintiff had been disciplined for

resisting the officers. The panel concluded that Heck v.

Humphrey, 512 U.S. 477 (1994), did not require the

challenged jury instruction because the duration of plaintiff’s

indefinite life sentence was not at stake. The panel further

held that the instruction was misleading and prejudicial

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WILKERSON V. WHEELER 3

because it contradicted plaintiff’s testimony that he had not

resisted the prison guards.

The panel reversed the award of summary judgment to

Turner, vacated the judgment as to the other officers, and

remanded for a new trial. Because the panel vacated the

judgment on the basis that the jury instructions were

improper, it did not reach any of plaintiff’s other arguments.

COUNSEL

Su-Han Wang (argued), Mark R.S. Foster, and Samuel S.

Song, Morrison & Foerster LLP, San Francisco, California,

for Plaintiff-Appellant Adonai El-Shaddai.

Jaime M. Ganson (argued), Deputy Attorney General;

Kamala D. Harris, Attorney General of California; Jonathan

L. Wolff, Senior Assistant Attorney General; and Thomas S.

Patterson, Supervising Deputy Attorney General, Sacramento,

California, for Defendants-Appellees B. Wheeler, N.

Albonico, and G. Turner.

4 WILKERSON V. WHEELER

OPINION

GOULD, Circuit Judge:

Adonai El-Shaddai1 (“El-Shaddai”) alleges that

correctional officers used excessive force in restraining him

while he was incarcerated at High Desert State Prison in

California. El-Shaddai sued the officers and the prison

librarian under 42 U.S.C. § 1983, claiming that they violated

his federal constitutional rights. Defendants prevailed at trial.

El-Shaddai appeals, contending that: (1) the district court

erred by instructing the jury that it was established that El-

Shaddai resisted the correctional officers; (2) the district court

abused its discretion in excluding certain witnesses and

evidence; (3) the failure to appoint counsel for El-Shaddai

was an abuse of discretion; and (4) the order granting

summary judgment to Sergeant Turner, one of the

correctional officers, for El-Shaddai’s failure to exhaust

administrative remedies was error.2 We have jurisdiction

under 28 U.S.C. § 1291. Because the district court erred in

granting summary judgment to Turner, and because the jury

instructions were misleading, we reverse the award of

summary judgment to Turner, vacate the judgment as to the

other officers, and remand for a new trial. Because we vacate

the judgment on the basis that the jury instructions were

1

The appellant’s legal name is James Wilkerson. But to maintain

consistency with the practice of the district court, we use his chosen name

throughout this opinion.

2

The same order also dismissed the prison librarian for failure to

exhaust administrative remedies, but El-Shaddai does not challenge that

ruling on appeal and we do not address it.

WILKERSON V. WHEELER 5

improper, we do not reach any of El-Shaddai’s other

arguments.

I

El-Shaddai alleges that while incarcerated at High Desert

State Prison in California, three prison guards used excessive

force to restrain him. According to El-Shaddai, he was in the

prison law library under the escort of two guards, Officer

Bobby Wheeler (“Wheeler”) and Lieutenant Nickolus

Albonico (“Albonico”). El-Shaddai gave his legal documents

to the prison librarian to copy. When Wheeler and Albonico

attempted to bring El-Shaddai back to his cell, El-Shaddai

said that he would not leave without his documents and that

he needed to use a stapler located in another office, and began

to walk away from the officers. The officers viewed this as

resistance, and tackled and restrained El-Shaddai. A third

officer, Sergeant Gary Turner (“Turner”), assisted in

restraining El-Shaddai. The officers testified that, while

restrained, El-Shaddai kicked and twisted. During the

struggle, El-Shaddai yelled that his leg was broken. As a

result of this incident, El-Shaddai received a Prison

Disciplinary Rules Violation Report for willfully resisting an

officer, and was found guilty in a prison disciplinary hearing.

The outcome of the hearing was upheld in state habeas corpus

proceedings.

El-Shaddai filed suit against the three correctional officers

and the prison librarian. On June 7, 2007, defendants filed a

motion to dismiss, arguing that El-Shaddai failed to exhaust

his administrative remedies. The magistrate judge construed

the motion as one for summary judgment, and, on February

12, 2008, recommended that the motion be granted as to

Turner, based on the contents of El-Shaddai’s prison

6 WILKERSON V. WHEELER

grievance. The district court adopted the magistrate judge’s

recommendations in their entirety. El-Shaddai’s grievance

had stated that he suffered injuries “[a]s a result of the assault

on my person by C/O Wheeler and C/O Albonico and

responding officers.” He specifically identifies Turner as a

responding officer, saying that Turner aided the other officers

by “continuing to apply pressure on [El-Shaddai’s] ankle

despite [his] screams of pain.” In records from the grievance

and prison discipline process, El-Shaddai says that Turner

“assisted C/O Albonico in taking control of [his] feet” and

“maintained control of [his] legs utilizing [his] hands and

lower leg to apply pressure to knowingly and deliberately

inflict pain with full knowledge that [El-Shaddai] was in

pain”. The district court held that the grievance did not

suggest that officers other than Wheeler and Albonico joined

in the alleged abuse, thereby failing to put Turner and the

librarian on notice of their need to defend against El-

Shaddai’s claims.

After the case was set for trial, El-Shaddai filed a motion

requesting appointment of counsel on the grounds that he was

an indigent prisoner and his incarcerated status made it

difficult or impossible to locate or compel testimony from

witnesses who were incarcerated in other facilities. The

magistrate judge denied the motion, stating that no

exceptional circumstances warranting a request for volunteer

counsel existed in this case. El-Shaddai raised similar

concerns shortly before trial about his ability to locate and

subpoena incarcerated witnesses, in a request that the district

court construed as a motion for appointment of counsel. It

found that these circumstances warranted appointment of

counsel if volunteer counsel were available, but no such

counsel came forward.

WILKERSON V. WHEELER 7

During pre-trial proceedings, the district court excluded

several of El-Shaddai’s incarcerated witnesses, as well as

certain documents on which El-Shaddai wanted to rely, from

use at trial.

After the evidence was in, the judge instructed the jury

that “[i]t is established that plaintiff resisted defendant

Wheeler, and that plaintiff was disciplined by prison officials

for that resistance. Plaintiff does not seek to expunge that

disciplinary record and you are directed to assume that

disciplinary record will remain unchanged.” The court gave

this instruction after defendants made a motion for judgment

as a matter of law under Federal Rule of Civil Procedure 50,

arguing that a jury finding of excessive force would

undermine the prison disciplinary decision and thereby

violate Heck v. Humphrey, 512 U.S. 477 (1994). Although

the district court declined to take the case away from the jury,

it agreed to the instruction. The instruction was refined after

objections from defense counsel, who were concerned that it

potentially violated Simpson v. Thomas, 528 F.3d 685 (9th

Cir. 2008), which holds that Heck may not be used to exclude

relevant evidence. The dispute on the instruction was

resolved by stating that El-Shaddai was found guilty of

“resisting” without specifying the conduct in the prison

disciplinary report, and without highlighting any

inconsistencies between El-Shaddai’s testimony and that

report.

The jury returned a verdict in favor of defendants on all

claims. El-Shaddai filed a timely notice of appeal, and this

appeal followed.

8 WILKERSON V. WHEELER

II

We review questions of law related to exhaustion de novo,

but we accept the judge’s factual findings on disputed issues

of material fact absent clear error. Albino v. Baca, 747 F.3d

1162, 1171 (9th Cir. 2014) (en banc).

We review a district court’s denial of counsel to indigent

civil plaintiffs under 28 U.S.C. § 1915 for an abuse of

discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

Cir. 1986).

Evidentiary rulings are reviewed for abuse of discretion.

Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1008 (9th Cir.

2007). Errors will only support reversal if the error was

prejudicial, or in the civil context, “more probably than not

tainted the verdict.” Id. at 1009.

We review a district court’s formulation of civil jury

instructions for an abuse of discretion, but we consider de

novo whether the challenged instruction correctly states the

law. “Jury instructions must be supported by the evidence,

fairly and adequately cover the issues presented, correctly

state the law, and not be misleading.” Peralta v. Dillard, 744

F.3d 1076, 1082 (9th Cir. 2014) (en banc). But if any error

relating to the jury instructions was harmless, we do not

reverse. “In evaluating jury instructions, prejudicial error

results when, looking to the instructions as a whole, the

substance of the applicable law was not fairly and correctly

covered. Harmless error review for a civil jury trial . . . shifts

[the burden] to the defendant to demonstrate that it is more

probable than not that the jury would have reached the same

verdict had it been properly instructed.” Gantt v. City of L.A.,

WILKERSON V. WHEELER 9

717 F.3d 702, 707 (9th Cir. 2013) (internal quotation marks,

citations, and alterations omitted).

III

A. Granting Summary Judgment to Turner Was

Error

At the outset, we reject the government’s argument that

El-Shaddai waived his right to appeal the magistrate’s

findings on exhaustion because El-Shaddai did not

specifically object to them.3 “[P]arties who do not object to

a magistrate’s report waive their right to challenge the

magistrate’s factual findings but retain their right to appeal

the magistrate’s conclusions of law.” Baxter v. Sullivan, 923

F.2d 1391, 1394 (9th Cir. 1991). Here, El-Shaddai does not

challenge the magistrate’s factual findings on whether he

filed the grievance or its contents. Rather, he challenges the

legal conclusion as to whether the grievance gave adequate

notice with regard to Turner, which we review de novo. See

Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006); cf.

Vinieratos v. U.S., Dep’t of Air Force Through Aldridge, 939

F.2d 762, 768 (9th Cir. 1991). The question of whether the

district court erred in granting summary judgment in favor of

Turner is properly before us.

As to the merits of the issue, the Prison Litigation Reform

Act (“PLRA”) requires inmates to both substantively and

3

On April 9, 2008, nearly two months after the magistrate judge issued

his proposed Findings and Recommendations, and nine days after the

district court adopted them in full, El-Shaddai filed an objection to the

magistrate judge’s Findings and Recommendations stating only that

“Plaintiff make[s] this objection in order to preserve his right to appeal.”

10 WILKERSON V. WHEELER

procedurally exhaust all claims through administrative

avenues before filing a suit in court. 42 U.S.C. § 1997e(a);

Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). The scope of

this requirement depends on the scope of administrative

remedies that the state provides. Jones v. Bock, 549 U.S. 199,

218 (2007) (“[I]t is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.”).

In California, inmate grievances must “describe the

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

§ 3084.2. We have said that “when a prison’s grievance

procedures do not specify the requisite level of detail” needed

to exhaust a claim, the standard enunciated in the Seventh

Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th

Cir. 2009). That standard provides:

[w]hen the administrative rulebook is silent, a

grievance suffices if it alerts the prison to the

nature of the wrong for which redress is

sought. As in a notice-pleading system, the

grievant need not lay out the facts, articulate

legal theories, or demand particular relief. All

the grievance need do is object intelligibly to

some asserted shortcoming.

Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).

In recent decisions, we have applied the Strong standard

to California prisoner claims. Sapp v. Kimbrell held that a

prisoner who alleged that eye problems and denials of his

requests for surgery or medical appointments exhausted his

claim against a prison doctor, even though the prisoner never

specifically identified the doctor in his grievance. 623 F.3d

813 (9th Cir. 2010). We reasoned that “Sapp was not

WILKERSON V. WHEELER 11

required to identify [the doctor] 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.” Id. at 824.

Here, El-Shaddai’s grievance gave greater notice than

Sapp’s grievances. El-Shaddai described not only the nature

of the wrong but also identified Turner by name. El-

Shaddai’s grievance states that he suffered injuries “[a]s a

result of the assault on my person by C/O Wheeler and C/O

Albonico and responding officers.” It names Turner as a

responding officer and says that Turner applied pressure to

his ankle despite his screams of pain and that Turner acted

deliberately to inflict pain. Because El-Shaddai’s grievance

describes the use of force against El-Shaddai by Wheeler,

Albonico, and “responding officers,” identifies Turner as one

of those responding officers and specifically describes

Turner’s use of force, it “alerts the prison to the nature of the

wrong for which redress is sought.” Sapp, 623 F.3d at 824.

We conclude that El-Shaddai exhausted his administrative

remedies against Turner.

B. The Jury Instructions Were Erroneous

El-Shaddai raises two arguments against the challenged

jury instruction.4 First, he contends that, although the district

4

We reject the officers’ argument that the jury instructions should be

reviewed for plain error because, the officers claim, El-Shaddai failed to

properly object to the instruction. El-Shaddai, who was without counsel,

did object at other points in the proceedings that Heck v. Humphrey did

not bar his claim because it would not affect his sentence. Also, the

officers’ own counsel’s contemporaneous objection to the instruction,

12 WILKERSON V. WHEELER

court thought the instruction was required by Heck v.

Humphrey, that case does not apply where, as here, the

duration of an inmate’s sentence is not at stake. Second, he

contends that the instruction “had the effect of barring

relevant testimony in violation of Simpson v. Thomas, 528

F.3d 685 (9th Cir. 2008),” because it contradicted El-

Shaddai’s testimony that he had not resisted the prison

guards.

As to El-Shaddai’s first contention, we conclude that

Heck did not require the jury instruction given here. In Heck,

the Supreme Court ruled that an inmate may not seek

damages in a § 1983 claim when establishing the basis for the

claim necessarily involves demonstrating that the conviction,

sentence, or length of incarceration is invalid. 512 U.S. at

480–82; see also Edwards v. Balisok, 520 U.S. 641, 643–47

(1997) (extending Heck rule to § 1983 claims that, if

successful, would imply the invalidity of deprivations of

good-time credits provided for by prison disciplinary

proceedings). But the Supreme Court has clarified that Heck

does not bar a § 1983 claim that “threatens no consequence

for [an inmate’s] conviction or the duration of [his or her

sentence.]” Muhammad v. Close, 540 U.S. 749, 751 (2004).

We have also held that application of Heck “turns solely on

whether a successful § 1983 action would necessarily render

invalid a conviction, sentence, or administrative sanction that

affected the length of the prisoner’s confinement.” Ramirez

v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003).

Here, El-Shaddai is serving an indefinite life sentence.

Any loss of good-time credits could not extend his potential

arguing that it would violate Simpson v. Thomas, put the district court on

notice of potential error.

WILKERSON V. WHEELER 13

term, which is life in prison. Further, as the California

Attorney General’s office argued in El-Shaddai’s habeas

corpus proceedings challenging the prison disciplinary action,

the loss of good-time credits for a prisoner, such as El-

Shaddai, whose date at which he is initially eligible for parole

has already passed, does not affect the length of sentence.

We conclude that Heck v. Humphrey did not require the

challenged jury instruction.

Of course, even if Heck did not require the district court

to give the instruction, it would not be error for the district

court to do so unless the instruction contained some other

error of fact or law. So long as an instruction correctly states

the law and is not misleading or inadequate, a district court’s

decision to give an instruction is reviewed for abuse of

discretion. Oglesby v. S. Pac. Transp. Co., 6 F.3d 603, 606

(9th Cir. 1993). But the instruction here was misleading, and

defendants have not carried their burden to show that any

error was harmless.

In Simpson v. Thomas, we reversed a district court’s

exclusion of a § 1983 plaintiff’s testimony. 528 F.3d at 696.

The district court had held that, because Heck barred the use

of § 1983 suits to collaterally attack prison disciplinary

proceedings, and a disciplinary proceeding had found inmate

Simpson responsible for instigating the use of force

challenged in the § 1983 suit, Simpson was not permitted to

testify that a guard had punched him first. Id. at 688–89.

However, we held that Heck is not an evidentiary bar, but a

claims bar, and so long as the § 1983 suit did not impact the

disciplinary proceedings, the plaintiff was “entitled to tell the

jury the entire story.” Id. at 696.

14 WILKERSON V. WHEELER

Here, the district court’s instruction, though it did not

directly exclude any testimony, was in tension with El-

Shaddai’s trial testimony in a way that likely confused the

jury. El-Shaddai testified: “I didn’t refuse to comply with

him. I just told him I’m getting my legal stuff first. I never

said that I was—I’m not leaving the law library. I just said

let me—I’m not leaving without my material.” Even if, as

defendants contend, El-Shaddai’s statements that he did not

immediately obey the officer constitute resistance under the

relevant California penal regulations, the instruction that El-

Shaddai did resist and was disciplined for that resistance,

without clarifying for the jury that resistance need not be

physical, posed a severe risk of prejudice. In light of the

instruction, the jurors may well have understood that they

were to disbelieve El-Shaddai’s testimony in whole or in part.

Even if such an instruction did not actually bar testimony

within the meaning of Simpson, we conclude that it was

misleading and therefore error.

We conclude that El-Shaddai was prejudiced by the

instruction that he had resisted the officers. Because his own

testimony was the central component of El-Shaddai’s case,

the likelihood of prejudice here is difficult to overcome. El-

Shaddai testified that he was handcuffed and in waist

restraints in the library. There was no evidence that El-

Shaddai tried to assault any of the officers or posed a similar

physical threat. The jury, without the instruction that El-

Shadai resisted the officers, or even with that instruction if it

had been adequately clarified on the nature of his

“resistance,” might well have decided that the force used

against El-Shaddai was excessive.

WILKERSON V. WHEELER 15

The crux of this appeal is this: The district court gave a

general instruction on excessive force telling the jury to

consider:

the need to use force, the relationship between

that need and the amount of force used,

whether defendants applied the force in a

good faith effort to maintain or restore

discipline, any threat reasonably perceived by

the defendants, any efforts made to temper the

severity of a forceful response, and the extent

of the injury suffered. In considering these

factors, you should give deference to prison

officials in the adoption and execution of

policies and practices that in their judgment

are needed to preserve discipline and to

maintain internal security in a prison.

Being told that El-Shaddai had resisted the officers without

more clarification would probably lead a reasonable jury to

think that his resistance had a physical component, and that

in turn would justify the use of physical force by the officers

to restrain him. But if in fact, as he testified, his only

resistance was briefly to delay complying with a command to

come back to his cell and to say that he would await his legal

papers from the copier, a jury would not necessarily have

determined that physical force used against him was not

excessive. The instruction that El-Shaddai had resisted the

officers, as determined in a prison discipline proceeding that

wasn’t appealed, was likely to lead the jury to conclude that

he had used physical force in resisting, rendering use of

physical force against him not excessive. Yet, if El-Shaddai’s

testimony was credited by a jury, the jurors might have

concluded that the officers did use excessive force, as El-

16 WILKERSON V. WHEELER

Shaddai had not physically resisted. To level the playing

field in a fair way required either not giving the instruction

that he had resisted the officers, or giving an adequate

explanation of the nature of his resistance consistent with his

testimony.

We hold that the challenged instruction was misleading

and that there was resulting prejudice. Because we vacate the

district court’s judgment and remand for a new trial on the

basis of the flawed jury instructions, we do not address El-

Shaddai’s arguments about his first request for appointed

counsel or the evidentiary issues. We note, however, that at

oral argument, El-Shaddai’s pro bono attorneys indicated that

they would continue to represent him on remand.

IV

The judgment is vacated and this case is remanded to

the district court for new trial and proceedings consistent

with this opinion.

REVERSED as to Summary Judgment for Turner,

VACATED and REMANDED.