The opinion
FILED
NOT FOR PUBLICATION MAY 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL FIELDS, No. 13-15963
Plaintiff - Appellant, D.C. No. 2:08-cv-00659-KJD-
GWF
v.
CHERYL BURSON; BRIAN MEMORANDUM*
WILLIAMS; CAMERON SEISAN,
Correctional Officer - erroneously sued as
C/O Seisan,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted April 13, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges and BENITEZ,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Mitchell Fields is a Nevada state prisoner who has claimed numerous
violations of federal law and his constitutional rights by prison officials. We
earlier affirmed the summary judgment against him on all grounds except his
claims for excessive force and retaliation. Fields v. Bannister, 453 F. App’x 720,
721 (9th Cir. 2011). We remanded the excessive force and retaliation claims
because the defendants had not shown that Fields failed to exhaust his
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). Id.
On remand, the defendants demonstrated that Fields received notice of the
prison’s rejection of his excessive force grievance, but he failed to timely appeal
that decision. We therefore affirm the district court’s determination that Fields
failed to exhaust his excessive force grievance.
In Fields’s earlier appeal, we remanded the retaliation claim because the
record showed that prison officials improperly screened Fields’s two grievances
claiming retaliatory placement in administrative segregation (“ad seg”) as
duplicates of his excessive force grievances. Id. On remand, the district court
agreed with defendants that our earlier decision had overlooked a third retaliation
grievance which was properly screened. The record before us now, however, does
not show that the third grievance was properly screened. If it was not, Fields’s
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failure to exhaust his retaliation claim is excused. See Sapp v. Kimbrell, 623 F.3d
813, 823–24 (9th Cir. 2010) (excusing failure to exhaust where improper screening
of grievances renders administrative remedies “effectively unavailable”).
Assuming the failure to exhaust was excused, we look to the merits and conclude
the retaliation claim fails.
Fields claims he was placed in ad seg for filing an excessive force grievance
against a guard. The defendants contend that Fields was placed in ad seg for his
own protection. In response, Fields contends that the motivation must have been
retaliatory because the guard in question had been assigned to ad seg during
Fields’s stay there. The record reflects, however, that when Fields was placed in
ad seg in November 2007, the prison did not know the identity of the guard who
allegedly used excessive force on Fields, and the motivation for his placement
could not have been retaliatory.
Fields also points to the fact that he was kept in ad seg after the investigation
of the excessive force grievance was complete, and after he had informed prison
officials of the guard’s identity and his assignment to ad seg. Absent a showing of
retaliatory motives on the part of prison officials with respect to the initial
placement, maintaining the placement for the additional period does not give rise
to a viable claim of retaliation. There is no clearly established law that a prisoner
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should be released from ad seg immediately upon the prison’s learning of the
presence of a hostile guard. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Even if Fields could establish a violation of his rights, the defendants would be
entitled to qualified immunity. See id.
Fields’s unopposed motion to take judicial notice is granted.
AFFIRMED.
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