Brown v. Valoff

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER BROWN,  No. 03-16502

Plaintiff-Appellee,

v.  D.C. No.

CV-01-06526-OWW

J. VALOFF,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Submitted November 2, 2004*

San Francisco, California

ROBERT HALL, 

Plaintiff-Appellee,

v.

J. W. FAIRMAN, JR., No. 03-16552

Defendant, D.C. No.

and  CV-99-05780-AWI/

SMS

J. MATTINGLY; A. C. QUINONES; A.

VALENZUELA; C. DAVIS; L. R. OPINION

LOPEZ; C. SMITH; E. TOSTADO; G.

ZINANI,

Defendants-Appellants.



*The panel unanimously finds this case suitable for decision without

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

12343

12344 BROWN v. VALOFF

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted

November 2, 2004—San Francisco, California

Filed September 6, 2005

Before: Stephen Reinhardt, David R. Thompson, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Reinhardt

BROWN v. VALOFF 12347

COUNSEL

Bill Lockyer, Attorney General of the State of California,

Robert R. Anderson, Chief Assistant Attorney General, Fran-

ces T. Grunder, Senior Assistant Attorney General, James E.

Flynn, Supervising Deputy Attorney General, and David A.

Carrasco, Deputy Attorney General, Sacramento, California,

for the defendant-appellant in Case No. 03-16502.

Bill Lockyer, Attorney General of the State of California,

Robert R. Anderson, Chief Assistant Attorney General, Fran-

ces T. Grunder, Senior Assistant Attorney General, Sara

Tuner, Supervising Deputy Attorney General, and Barbara N.

Sutliffe, Deputy Attorney General, San Francisco, California,

for the defendants-appellants in Case No. 03-16552.

Peter Brown, pro se, Vacaville, California, plaintiff-appellee

in Case No. 03-16502.

Thomas L. Riordan, Thadd Blizzard, and Charles L. Post,

Weintraub Genshlea Chediak Sproul, Sacramento, California,

for the plaintiff-appellee in Case No. 03-16552.

12348 BROWN v. VALOFF

OPINION

BERZON, Circuit Judge:

We consider the application of the Prisoner Litigation

Reform Act’s (“PLRA”) exhaustion requirement, 42 U.S.C.

§ 1997e(a), to circumstances in which an inmate has filed a

grievance with a prison grievance system and, having

received some relief before the final level of review, does not

pursue his grievance further. In these two cases with similar

but somewhat different factual backgrounds, the district

courts certified interlocutory appellate review. We accepted

jurisdiction and have consolidated them for purposes of deci-

sion. We conclude that Peter Brown adequately exhausted the

available grievance process but Robert Hall did not.

BACKGROUND

We begin by providing a brief overview of the California

Department of Corrections’ (“Department”) internal griev-

ance system and of the factual background of each case.

1. Grievance system: California’s Department of Correc-

tions provides a four-step grievance process for prisoners who

seek review of an administrative decision or perceived mis-

treatment. Within fifteen working days of “the event or deci-

sion being appealed,” the inmate must ordinarily file an

“informal” appeal, through which “the appellant and staff

involved in the action or decision attempt to resolve the griev-

ance informally.” Cal. Code Regs., tit. 15, §§ 3084.5(a),

3084.6(c).1 If the issue is not resolved during the informal

appeal, the grievant next proceeds to the first formal appeal

1

There are eight situations in which attempted resolution at the informal

level is not required. See Cal. Code Regs., tit. 15, § 3084.5(a)(3). As rele-

vant here, the informal level is not required when a grievance involves

“[a]lleged misconduct by a departmental peace officer.” Id.

§ 3084.5(a)(3)(G).

BROWN v. VALOFF 12349

level, usually conducted by the prison’s Appeals Coordinator.

Id. §§ 3084.5(b), 3084.6(c). Next are the second level, provid-

ing review by the institution’s head or a regional parole

administrator, and the third level, in which review is con-

ducted by a designee of the Director of the Department of Cor-

rections.2 Id. § 3084.5(e)(1)-(2).

2. Brown’s case: Appellee Peter Brown’s district court

complaint states that Correctional Officer Valoff used tear gas

and assaulted him on February 24, 1999. He claims that the

alleged assault violated his Fourteenth Amendment rights to

due process and equal protection and the Eighth Amend-

ment’s prohibition of cruel and unusual punishment.

Brown made the same allegations in his formal grievance

filed with prison officials in the summer of 1999.3 In the “Ac-

tion Requested” portion of the form, Brown stated simply: “I

respectfully request to be compensated for these abuses, and

2

Department of Corrections regulations provide that “[t]he decisions of

the Departmental Review Board which serve as the director’s level deci-

sion, are not appealable and conclude the inmate’s or parolee’s departmen-

tal administrative remedy pursuant to section 3376.1.” Cal. Code Regs.,

tit. 15, § 3084.1(a); see also id. § 3084.5(e)(2) (“Third level review consti-

tutes the director’s decision on an appeal, and shall be conducted by a des-

ignated representative of the director under supervision of the chief,

inmate appeals.”).

3

Brown’s description of the incident stated:

Correctional officer J. Valoff, with his actions, violated policy

and procedure, Use of Force, and, Use of Tear Gas. His deliber-

ate actions punished me with out affording me proper due process

and equal protection rights. Officer Valoff, subjected me to cruel

and unusual punishment by physically assaulting me, and, spray-

ing me with his “chemical agent”, o.c. spray without probeble

[sic] cause, or, any threat being made to his person by petitioner

which is supported by petitioner being found not guilty, and,

Officer Valoff’s floor partner’s statement, Officer S. Pulliam.

Brown then went on to describe the “[p]sychological, [e]motional,

[m]ental, [p]hysical pain and anguish” that he suffered as a result of the

incident.

12350 BROWN v. VALOFF

blatant disregard for my constitutional rights.” The response,

on the same form that Brown submitted,4 was marked “De-

nied.” The accompanying memorandum stated:

You have failed to provide compelling information

to substantiate your allegations of staff misconduct.

In the event of staff misconduct, the institutional

supervisory and administrative staff will take the

appropriate course of action. However, this would be

confidential information, which would not be

released to the appellant. Although the appellant has

the right to submit an appeal as a staff complaint, the

request for administrative action regarding the staff

or the placement of documentation in a staff mem-

bers [sic] personnel file is beyond the scope of the

appeals process.

Brown pursued the second level of review within a week of

receiving the first response. He continued to allege that Offi-

cer Valoff used excessive force against him.5 He received a

second level, Warden’s level decision on December 13, 1999,

stating that the “Appeal Decision” was “Partially Granted.”6

4

The Department’s grievance appeals process appears to require an

inmate to continue using the same pre-printed form at each level of review

with the option to submit attachments. When a decision is reached, a

Department official informs the grievant by marking one of four check-

boxes — “Granted,” “P. Granted,” “Denied,” and “Other” — and signs

and dates the form.

5

Brown also noted that he was found “not guilty” on charges related to

the events of February 24. We assume that he referred to the results of an

internal Department disciplinary hearing, a report of which is included in

the record, that indicates that Brown was found not guilty of battery

charges. In addition, the record includes a memorandum from the Kings

County District Attorney’s office indicating that it had declined to pursue

charges against Brown for assault.

6

The Corcoran Appeals Coordinator responded on the Warden’s behalf.

See Cal. Code Regs., tit. 15, § 3084.5(e)(1) (noting an institution head

may appoint a designee to respond to inmate appeals).

BROWN v. VALOFF 12351

Identifying the “Appeal Issue” as “Staff Complaint,” the

attached memorandum stated:

A thorough investigation will be conducted into your

allegations and evaluated in accordance with Depart-

mental Policies and Institutional Procedures. The

matter has been referred to the Office of Internal

Affairs. You shall be notified by the Office of Inter-

nal Affairs of the disposition of your complaint upon

completion of the investigation, in accordance with

[California Penal Code §] 832.7 and the Department

Operations Manual Section 31140.4.2.[7]

It is the Administration’s responsibility to determine

appropriate action taken against any employee, if

deemed necessary. Additionally, inmates are not

apprised of any disciplinary action that may have

been taken against a staff member. It is beyond the

7

We take judicial notice of the Department Operations Manual. See City

of Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may

take judicial notice of a record of a state agency not subject to reasonable

dispute.”).

In relevant part, the cited regulation states that it is the responsibility of

the Department’s Hiring Authority to

[e]nsure that every complaint or allegation of employee miscon-

duct receives prompt and thorough attention including contact

with the complainant notifying them of the finding, i.e., sus-

tained, not sustained. This notification shall include the definition

of the finding as discussed in [Department Operations Manual]

31140.14. Since existing law prohibits disclosure of any specific

personnel action taken, the complainant may only be advised that

“appropriate administrative action has been taken.” Pursuant to

[California Penal Code] § 832.7 and 832.8 and EC 1043 through

1045(e), at no time should specifics relating to any personnel

action be discussed with a complainant in the matter.

Department of Operations Manual (“DOM”) § 31140.4.2, available at

http://www.corr.ca.gov/RegulationsPolicies/PDF/DOM/

00_dept_ops_maunal.pdf (last visited Aug. 26, 2005).

12352 BROWN v. VALOFF

scope of the appeals process to grant you monetary

compensation.

Brown did not proceed to the third level of review, that of

the Director of the Department of Corrections or his designee.

He did, however, inquire about the status of the promised

investigation by requesting information from the California

Office of the Inspector General. He received a letter from that

office stating,

This office contacted the California State Prison at

Corcoran, and learned that an investigation was in

fact conducted and completed. However, due to con-

fidentiality laws, Corcoran investigators were unable

to share the specific details of the investigation with

you. Confidentiality laws also prevent us from fur-

ther disclosing any information regarding this inves-

tigation.

Brown next proceeded, pro se and in forma pauperis, to

federal court, under 42 U.S.C. § 1983. As noted above, his

complaint alleged that Officer Valoff’s actions on February

24, 1999 violated the Eighth Amendment and his rights to due

process and equal protection under the Fourteenth Amend-

ment. After the case was transferred to the district court for

the Eastern District of California, Valoff filed a motion to dis-

miss, arguing that Brown had failed to comply with the PLRA

exhaustion requirement.

Magistrate Judge O’Neill made findings and recommenda-

tions suggesting that the district court deny Valoff’s motion.

He reasoned that Brown’s completion of second level review

was sufficient to comply with the PLRA exhaustion require-

ment, as “[t]he response contains no language suggesting that

plaintiff could appeal the decision to the third level of

review[, and] it is unclear what would be left to appeal, as

plaintiff’s appeal was partially granted and an investigation

was to be conducted.”

BROWN v. VALOFF 12353

Ruling on Valoff’s objections to the Magistrate’s report,

the district court agreed that Valoff was “not entitled to dis-

missal of this action.” The court explained that Brown had

exhausted his claims within the Department’s grievance sys-

tem because “[p]laintiff’s inmate appeal grieved the facts at

issue in this suit,” and “in granting plaintiff’s appeal in part

and referring the complaint for investigation by the Office of

Internal Affairs, plaintiff was provided all of the relief that the

administrative process could provide.”

The district court granted Valoff’s motion to certify his

interlocutory appeal to this court, and we accepted the appeal.

3. Hall’s case: Robert Hall is a former inmate of the

Department’s Corcoran Substance Abuse and Treatment

Facility. On September 2, 1998, Hall and his cellmate were,

allegedly, severely beaten and exposed to pepper spray during

a forced removal from their cell. Hall claims that he suffered

extensive injuries following the incident.

Hall filed a grievance, providing a detailed description of

his alleged mistreatment, on September 8, 1998. Under the

section marked “Action Requested,” Hall listed: (1) a $35,000

fine imposed on Sergeant Valenzuela and his removal or

demotion; (2) a $50,000 fine of the Corcoran Substance

Abuse Treatment Facility, and (3) an investigation of the

extraction team that assaulted him. Hall filed a second griev-

ance on December 4, 1998, virtually identical to the first

except that in the “Action Requested” section, Hall asked that

Sergeant Valenzuela be fined $30,000 instead of $35,000. In

both grievance forms Hall also complained that after the

alleged mistreatment, he did not receive adequate medical

treatment and his property was removed from his cell.

In response to Hall’s grievances, prison officials bypassed

the informal review level. Hall received a first level response

to his grievances on January 26, 1999.8 The memorandum

8

The Department consolidated Hall’s grievances and decided them

together in the first level response.

12354 BROWN v. VALOFF

issued to Hall described the “Appeal Issue” as follows: “You

request to have an Internal Affairs Investigation initiated and

to hold responsible Officials accountable for their actions.” In

the section marked “Appeal Decision,” the memorandum

stated that Hall’s requests were “Denied.” The memorandum

also described the treatment of “staff personnel matters.” It

stated:

All staff personnel matters are confidential in nature

and not privy to the inquiries of other staff, the gen-

eral public, or the inmate population. In the event of

staff misconduct, the institutional supervisory and

administrative staff will take the appropriate course

of action. However, this would be confidential infor-

mation, which would not be released to the appel-

lant. Although the appellant has the right to submit

an appeal as a staff complain [sic], the request for

administrative action regarding the staff or the place-

ment of documentation in a staff members [sic] per-

sonnel file is beyond the scope of the appeals

process.

The memorandum further counseled Hall, “[i]f you are dis-

satisfied with this decision, you may complete section ‘H’ of

your appeal and forward it for further review by following the

directions of your appeal form.” Hall did as advised, trigger-

ing further review at the second level.

A second level response was issued to Hall on March 18,

1999. The accompanying memorandum described the “Ap-

peal Issue” as follows:

You allege that Sgt. Valenzuela used excessive force

on you during the cell extraction on 9/2/98 and cal-

led you “nigger” as he beat you in your face with his

fists. You request that the cell extraction team be

investigated for excessive use of force, that Sgt.

BROWN v. VALOFF 12355

Valenzuela be demoted, that he be fined $30,000,

and that the warden be fined $50,000.

Under the section heading “Appeal Response,” the memoran-

dum stated, in part:

Your appeal is being answered as a staff complaint.

If the appeal contains other issues as well, i.e., disci-

plinary or property issues, the other issue(s) must be

appealed separately. This is in accordance with

Administrative Bulletin 98/10, issued August 21,

1998.[9]

Your allegations of staff misconduct have been

referred for investigation. You will be notified by the

Investigative Services Unit only of the conclusion of

the investigation.

The second level response memorandum included the same

9

We take judicial notice of the cited Administrative Bulletin. See

O’Neill, 386 F.3d at 1224 n.2. It sets forth Department procedures for

addressing allegations of staff misconduct in the grievance process, pro-

viding, in relevant part:

The hiring authority, or designee, shall review the allegation and

determine if:

The allegation warrants a formal . . . investigation. When an alle-

gation warrants a formal investigation, the appeals coordinator

shall bypass the First Level of Review, respond at the Second

Level of Review . . . and refer the case for formal investigation

as instructed by the hiring authority. The Second Level Response

shall note that the appeal was granted or partially granted

(depending upon the action requested by the appellant) and the

response shall consist of generic language . . . .

Processing of Inmate/Parolee Appeals, CDC Forms 602, Which Allege

Staff Misconduct, Cal. Dep’t of Corr. Administrative Bulletin 98/10, avail-

able at http://www.corr.ca.gov/regulationspolicies/PDF/ABs/1998ABs/98-

10%20Processing%20of%20Inmate%20Parolee%20Appeals%20

CDC%20Form%20602%20Whic.pdf (last visited Aug. 26, 2005).

12356 BROWN v. VALOFF

language on the treatment of “staff personnel matters” as had

the first level memorandum. Finally, the response stated:

“Considering the above information, your appeal is denied at

the second level of review. If you are dissatisfied with this

decision, you may complete section ‘H’ of your appeal and

forward it for further review by following the directions on

the back of your appeal form.”

On June 7, 1999, Hall filed a complaint, pro se, in the Dis-

trict Court for the Eastern District of California alleging

Eighth Amendment and due process violations. After several

amended complaints had been filed, the defendants submitted

a joint unenumerated Rule 12(b) motion asserting that Hall

had failed to exhaust administrative remedies as required by

§ 1997e(a).

On November 2, 2000, while the case was pending, the

investigation ordered as a result of Hall’s second level review

was completed. Hall received notice of the results of the inter-

nal affairs investigation on July 2, 2001. The notice stated that

Hall’s allegations had been “partially sustained.”

Magistrate Judge Snyder issued her findings and recom-

mendations to District Court Judge Ishii on February 18,

2003. She concluded that Hall had met the exhaustion require-

ment, finding that “the court cannot find that it was necessary

for him to continue pursuing his appeal.” Magistrate Judge

Snyder noted that she found the second level response to be

“inconsistent with a true and complete denial,” and concluded

that “[p]laintiff’s inmate appeal grieved the facts at issue in

this suit and to the extent the process could provide plaintiff

with relief on the complaint stated, it provided such relief

when plaintiff’s allegation of staff misconduct was referred

for investigation.”

On April 7, 2003, the district court adopted Judge Snyder’s

findings and recommendations in full. The district court later

BROWN v. VALOFF 12357

granted the defendant’s motion to allow an interlocutory

appeal, and we accepted the appeal.

DISCUSSION

I.

Congress, through the PLRA, changed in some significant

respects the rules that had been previously applicable in fed-

eral court for prisoner suits challenging the conditions of con-

finement. Of pertinence here is amended § 1997e(a), which

creates “a general rule of exhaustion” for prisoner civil rights

cases. Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002).

[1] Section 1997e(a) provides: “No action shall be brought

with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administra-

tive remedies as are available are exhausted.” The question

before us is whether Brown and Hall properly exhausted

“such administrative remedies as are available” before pro-

ceeding to the district court.

[2] Two Supreme Court decisions, Booth v. Churner, 532

U.S. 731 (2001), and Porter v. Nussle, provide substantial

guidance in discerning the meaning of § 1997e(a) as it per-

tains to this question. In Booth, a prisoner sought injunctive

relief and monetary compensation for alleged Eighth Amend-

ment violations. 532 U.S. at 734. The issue addressed was

whether the PLRA required Booth to exhaust the prison griev-

ance process even though it promised no hope of the mone-

tary relief he sought. Couched in terms of the statutory

language, the question was “whether or not a remedial scheme

is ‘available’ where the administrative process has authority

to take some action in response to a complaint, but not the

remedial action an inmate demands to the exclusion of all

other forms of redress.” Id. at 736 (emphasis added).

12358 BROWN v. VALOFF

[3] Booth concluded that prisoner plaintiffs must pursue a

remedy through a prison grievance process as long as some

action can be ordered in response to the complaint. The Court,

construing the statutory language, considered that “[i]t makes

no sense to demand that someone exhaust ‘such administra-

tive [redress]’ as is available; one ‘exhausts’ processes, not

forms of relief, and the statute provides that one must.” Id. at

739 (alteration in original). In light of this mandate, the Court

determined, prisoners are obligated to navigate all a prison’s

administrative review process “regardless of the fit between

a prisoner’s prayer for relief and the administrative remedies

possible.” Id. at 739-41. By thus enacting “an obviously

broader exhaustion requirement” than had existed previously,

Booth held, Congress meant to eliminate “a strong induce-

ment to skip the administrative process simply by limiting

prayers for relief to money damages not offered through

administrative grievance mechanisms.” Id. at 741.

[4] At the same time, Booth made quite clear that the statu-

tory language does not require exhaustion when no pertinent

relief can be obtained through the internal process. As the

Court noted, both parties in Booth so recognized: “Neither of

them denies that some redress for a wrong is presupposedly

the statute’s requirement of an ‘available’ remedy’; neither

argues that exhaustion is required where the relevant adminis-

trative procedure lacks authority to provide any relief or to

take any action whatsoever in response to a complaint.” Id. at

736. The Court agreed with the parties’ interpretation in this

regard, recognizing that “the modifier ‘available’ requires the

possibility of some relief for the action complained of.” Id. at

738; see also id. at 736 n.4 (“Without the possibility of some

relief, the administrative officers would presumably have no

authority to act on the subject of the complaint, leaving the

inmate with nothing to exhaust.”)

As to the basic legal question before us, Booth’s statutory

interpretation is dispositive: The obligation to exhaust “avail-

able” remedies persists as long as some remedy remains

BROWN v. VALOFF 12359

“available.” Once that is no longer the case, then there are no

“remedies . . . available,” and the prisoner need not further

pursue the grievance.

[5] The other circuits that have considered whether a pris-

oner continues to have an exhaustion obligation once it is

clear that no further relief is available have agreed with our

understanding that Booth decides this question in the nega-

tive. The Tenth Circuit has held that “[o]nce a prisoner has

won all the relief that is available under the institution’s

administrative procedures, his administrative remedies are

exhausted.” Ross v. County of Bernalillo, 365 F.3d 1181,

1187 (10th Cir. 2004). Similarly, the Second Circuit deter-

mined in Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004),

that further attempts at exhaustion are unnecessary when there

is “no further ‘possibility of some relief.’ ” Id. at 669 (quoting

Booth, 532 U.S. at 738). See also Dixon v. Page, 291 F.3d

485, 490-91 (7th Cir. 2002) (asserting that once it is shown

that there is no “possibility of relief,” then “administrative

remedies are not really available,” and exhaustion is no longer

required).

[6] We conclude, as have these other circuits, that a pris-

oner need not press on to exhaust further levels of review

once he has either received all “available” remedies at an

intermediate level of review or been reliably informed by an

administrator that no remedies are available.10

Although Booth’s textual analysis provides the basic legal

principle that governs the issue before us, some inquiry into

the purpose of the PRLA exhaustion requirement will aid our

10

That it may be advisable for an inmate to appeal every issue to the

highest level to avoid any question as to whether the administrative pro-

cess has been adequately exhausted does not alter our conclusion. While

“over-exhaustion” may be wise so as to expedite later litigation, the fact

remains that Booth does not require an inmate to continue to appeal a

grievance once relief is no longer “available.”

12360 BROWN v. VALOFF

later application of the no-relief limitation on that require-

ment. Porter summarized that purpose, expansively, as “af-

ford[ing] corrections officials time and opportunity to address

complaints internally before allowing the initiation of a fed-

eral case.” 534 U.S. at 525. By providing this opportunity,

Congress expected, frivolous cases might not be pursued,

“corrective action taken in response to an inmate’s grievance

might improve prison administration and satisfy the inmate,

thereby obviating the need for litigation,” and “for cases ulti-

mately brought to court, adjudication could be facilitated by

an administrative record that clarifies the contours of the con-

troversy.” Id.

None of these purposes are served by a requirement that a

prisoner continue to pursue administrative review after all

“available” relief has been accorded. At the same time, the

purposes can be served by relief accorded outside the usual

grievance process, so that awaiting the results of investiga-

tions triggered by the grievance process but outside of it can

serve the purposes of the exhaustion requirement.

Once there is no further possibility that “corrective action

[will be] taken in response to an inmate’s grievance,” id.,

there is no hope that the inmate might be satisfied by relief

other than that requested. As long as some such possibility

persists, however, the inmate might be satisfied, even if he

cannot participate further in the investigation that could yield

that result.

In addition, no further administrative record is likely to be

developed once the system has provided whatever relief it

can; prison administrators are unlikely to waste resources on

investigations leading nowhere. See Booth, 532 U.S. at 736

n.4 (“Without the possibility of some relief, the administrative

officers would presumably have no authority to act on the

subject of the complaint, leaving the inmate with nothing to

exhaust.”) As long as there is an ongoing investigation into

BROWN v. VALOFF 12361

the facts underlying the grievance, however, the prison offi-

cials may develop information useful should litigation ensue.

Finally, requiring entirely pointless exhaustion, when no

possible relief is available, is more likely to inflame than to

“mollify passions,” Booth, 532 U.S. at 737, and thus is

unlikely to “ ‘filter out some frivolous claims.’ ” Porter, 534

U.S. at 525. Once an agency has granted some relief and

explained that no other relief is available, “the administrative

process has not been obstructed. It has been exhausted,” Jasch

v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002). Insisting that

a prisoner nonetheless continue to make appeals to adminis-

trators who will not read or consider them cannot provide the

satisfaction that “very fact of being heard” Booth, 532 U.S. at

737, can sometimes provide.

With those considerations in mind, we turn to the applica-

tion of these principles to the facts of these cases.

II.

In deciding whether the PRLA exhaustion standard has

been met in the cases before us, it is of central importance that

§ 1997e(a) is an affirmative defense. Wyatt v. Terhune, 315

F.3d 1108, 1119 (9th Cir. 2003) cert. denied, 540 U.S. 810

(2003). As we explained in Wyatt, “defendants have the bur-

den of raising and proving the absence of exhaustion.” Id. As

we have concluded that there can be no “absence of exhaus-

tion” unless some relief remains “available,” a defendant must

demonstrate that pertinent relief remained available, whether

at unexhausted levels of the grievance process or through

awaiting the results of the relief already granted as a result of

that process. See Brown v. Croak, 312 F.3d 109, 112 (3d Cir.

2002) (holding that because failure to exhaust is an affirma-

tive defense under the PLRA, a complaint cannot be dis-

missed where the prisoner submits evidence showing, and the

defendants do not disprove, that no remedy was “available”).

Relevant evidence in so demonstrating would include statutes,

12362 BROWN v. VALOFF

regulations, and other official directives that explain the scope

of the administrative review process; documentary or testimo-

nial evidence from prison officials who administer the review

process; and information provided to the prisoner concerning

the operation of the grievance procedure in this case, such as

in the response memoranda in these cases. With regard to the

latter category of evidence, information provided the prisoner

is pertinent because it informs our determination of whether

relief was, as a practical matter, “available.” See id. at 113

(relying on directives given by prison officials to the inmate

regarding the grievance procedure because “ ‘[a]vailable’

means ‘capable of use; at hand,’ and if prison officials inform

the prisoner that he cannot file a grievance, the formal griev-

ance proceeding . . . was never ‘available’ . . . within the

meaning of 42 U.S.C. § 1997e”); cf. Johnson v. Testman, 380

F.3d 691, 697 (2d Cir. 2004) (remanding to consider whether

the regulations covering the grievance procedures were “suffi-

ciently confusing so that a prisoner . . . might reasonably have

believed that he could raise his claim against [the defendant]

as part of his defense in disciplinary proceedings.”); Giano v.

Goord, 380 F.3d 670, 673-74 (2d Cir. 2004) (holding that an

inmate’s reasonable interpretation of prison regulations justi-

fied his failure to exhaust when he raised allegations of retal-

iatory staff misconduct as a defense in disciplinary

proceedings brought against him, rather than affirmatively

pursuing the independent grievance system).

With that background, we turn to the facts of each of the

cases before us.

1. Brown: Considering carefully the record before us, we

conclude that the Department of Corrections did not establish

that once it had ordered an investigation into Officer Valoff’s

alleged misconduct through the separate “staff complaint”

process, it had any remaining “authority to act on the subject

of the complaint,” Booth, 532 U.S. at 736 n.4, through the

grievance procedure.

BROWN v. VALOFF 12363

The second level response memorandum characterized the

“appeal issue” as “Staff Complaint” and stated that the “Ap-

peal Decision” was “Partially Granted.” Under “Summary of

Investigation,” the memorandum stated that a thorough inves-

tigation would be conducted through the Office of Internal

Affairs; that the Administration would decide on the “appro-

priate action” to be taken if necessary: that Brown would not

be apprised of any disciplinary action taken as a result of this

complaint; and that monetary compensation is beyond the

scope of the appeals process. Under “Appeal Decision,” the

memorandum stated: “Your appeal is partially granted at the

second level of review, in that your appeal will be investi-

gated by the Office of Internal Affairs, at which time you will

be personally interviewed.” The memorandum did not counsel

that any further review was available.

[7] Even read in isolation, the reasonable import of this

memoranda is that no further relief will be available through

the appeals process, but the confidential staff complaint inves-

tigation would go forward and could result in some adminis-

trative action based on Brown’s complaint. That Brown could

reasonably have so understood the communications to him is

itself a strong indication that no further relief was “available”

other than the staff complaint investigation and (confidential)

result. See Brown, 312 F.3d at 112.

[8] Further, the Department’s governing directives confirm

that this reasonable interpretation of the response memoran-

dum reflects its actual procedures. The Administrative Bulle-

tin of the Department of Corrections, issued on August 21,

1998, before Brown’s second level response, states unequivo-

cally that “ALL complaints which allege any misconduct by

a staff member shall be logged by the appeals coordinator as

a Staff Complaint.” (bold in the original) See also id., section

3 (“It is . . . important that appeals coordinators do not log

allegations of staff misconduct into other appeal catego-

ries[ than “staff complaint.”]) (bold in the original). The Bul-

letin then goes on to prescribe that if — as the second level

12364 BROWN v. VALOFF

response stated with respect to Brown’s grievance — a staff

complaint “warrants a formal investigation,” then the second

level response “shall note that the appeal was granted or par-

tially granted (depending upon the action requested by the

appellant).” (Emphasis added.) Finally, after suggesting the

use in the second level response of language quite similar to

that used in the second level response to Brown, the Bulletin

advised that “[w]hen an appeal alleges staff misconduct and

other issues; e.g. dismissal of a Rules Violation Report or

property loss . . . the inmate/parolee shall be notified . . . that

the other issue(s) must be appealed separately.” (Emphasis

added.)

The Department’s Operations Manual explains the staff

complaint procedure referenced in the Bulletin in some detail:

A staff investigation “is a systematic gathering of all facts and

evidence concerning an allegation of misconduct. All allega-

tions, facts, evidence, and findings shall be verified and docu-

mented.” DOM § 31140.9. Only after such an investigation

may an adverse personnel action be taken against a Depart-

ment employee. See id. § 31140.15. An investigation results

in a specific finding as to each allegation: “no finding,” “not

sustained,” “unfounded,” “exonerated,” or “sustained.” Id.

§ 31140.14. Critically, for present purposes, investigative

records are “afforded the highest degree of confidentiality,”

id. § 31140.11, and “[t]he Hiring Authority [must] ensure the

proper maintenance and security of investigation/inquiry

records and files pursuant to [California Penal Code §§] 832.5

and 832.7.” Id., § 31140.16. As part of this confidentiality

policy, “the complainant may only be advised that ‘appropri-

ate administrative action has been taken . . . [A]t no time

should specifics relating to any personnel action be discussed

with a complainant.” Id., §31140.4.2. As this summary indi-

cates, this confidential investigation is intended to develop all

the facts concerning staff misconduct, and to keep both the

factual findings and the relief accorded confidential.

BROWN v. VALOFF 12365

These directives, taken together, lead us to conclude that no

further relief was in fact “available” through the appeals pro-

cess, although the staff complaint process to which the griev-

ance was directed instead had not yet run its course. The

Operations Manual specifies an extensive investigation where

the staff complaint process is triggered. The Bulletin explains

that staff misconduct grievances are to be investigated only

through the staff complaint process, thereby negating any pos-

sibility of a parallel investigation through the appeal process.

Thus, once Brown’s grievance was categorized as a “Staff

Complaint” — which the entry in the “appeal issue” box indi-

cates that it was — there was no possibility that it would be

investigated again, separately, through the appeal process.11

Further, the Bulletin explains the meaning of the “Partially

Granted” designation: Whether an appeal directed to the staff

complaint procedure is given a “granted” or “partially grant-

ed” response depends not on whether there remains some pos-

sibility of obtaining relief through the appeals process, but on

“the action requested by the appellant.” Here, the “action

requested by the appellant” was monetary compensation,

which was, as the response informed him right after telling

him that his staff complaint would be thoroughly investigated,

“beyond the scope of the appeals process. . . .”

Finally, the Bulletin also specifies the language to be used

if there is some separate matter that can still be pursued

through the appeals process: In that event, “the inmate/parolee

shall be notified that the staff complaint is being handled and

that the other issue(s) must be appealed separately.” Brown

11

The partial dissent criticizes our conclusion on the basis that the con-

sequence will be that allegations of staff misconduct will never be able to

be pursued through the prison’s administrative appeals process. See Con-

curring and dissenting op. at 12380. This result, however, is dictated by

the Department’s own Administrative Bulletin, which shunts off such

grievances into the Staff Complaint process. The dissent’s quarrel, then,

is not with our holding, but instead with the system designed by the Cali-

fornia Department of Corrections.

12366 BROWN v. VALOFF

was given no such advice, indicating — correctly, as we read

his appeals — that there was no issue other than staff miscon-

duct, and therefore no matter “that must be appealed separate-

ly.”

No other evidence in the record contradicts the conclusion

that no further relief was “available” through the appeals pro-

cess once the staff misconduct investigation was opened.12

While Valoff argues that an appeal to the Director’s level

might have netted additional relief to Brown, he produced no

evidence — which would have had to contradict his own

directives — that it could have.

The evidence Valoff submitted consisted of a declaration

from the Chief of the Inmate Appeals Branch confirming that

Brown did not file an appeal relating to this case at the third

level and an appeal Brown did file at the third level regarding

an entirely separate incident, involving a different corrections

officer.13 This evidence does not demonstrate that the appeals

process could have, or did, yield any relief under circum-

stances similar to those here.

In lieu of evidence, Valoff now proffers that, “[o]ne can

easily imagine actions that [the Department] could have taken

12

Valoff relies on Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001), to

support his contrary position. In that case, however, the plaintiff did not

contend that his complaint was “beyond the authorized jurisdiction” of the

prison’s administrative process, and the court held that there was “no

question that some action could have been taken in response to the com-

plaint.” Id. at 723.

13

The district court decided this case before we clarified our earlier

opinion in Wyatt v. Terhune, 280 F.3d 1238 (9th Cir. 2002), by specifying

that an affirmative defense for failure to exhaust can be raised through an

unenumerated Rule 12(b) motion, and can therefore rely on evidence out-

side the record. Wyatt v. Terhune, 315 F.3d at 1119-20. Consequently, the

district court was in error, although understandably so, in refusing to con-

sider the evidence outside the record submitted by the defendant. We do

consider that evidence, although we do not find that it illuminates the issue

before us.

BROWN v. VALOFF 12367

to provide relief to Brown. For example, the [Department]

could have transferred Valoff to a different post, transferred

Brown to a different cell or prison, or modified its policies

and procedures concerning the use of pepper spray. At a mini-

mum, CDC could have afforded Brown another opportunity

to be heard.” (Emphasis added.) Establishing, as an affirma-

tive defense, the existence of further “available” administra-

tive remedies requires evidence, not imagination.

Moreover, the evidence that is in the record is not consis-

tent with Valoff’s speculations. It is clear, for example, from

the Department’s general directives and from its responses in

this case, that only after the staff misconduct investigation,

through which Brown’s allegations were considered, would

the Department of Corrections have determined whether Val-

off’s transfer to another institution was appropriate. Those

documents emphasize that all investigations into staff miscon-

duct are to take place through the staff complaint process; that

the choice of relief in the event a complaint is sustained is up

to the Department; and that the results of the staff complaint

process are confidential. For similar reasons, any transfer of

Brown because of Valoff’s behavior would depend on sus-

taining the complaints about that behavior and thus could not

come through the appeals process.

Valoff also posits a change in the pepper spray policy as a

possible remedy following an appeal to the Director’s level.

Brown did not, however, complain about the pepper spray

policy; rather, his complaint was that the policy had been violat-

ed.14 As Brown’s grievance in no way challenged the pepper

spray policy, we can conceive no reason the Director would

reconsider that policy in response to Valoff’s grievance. See

Booth, 532 U.S. at 736 n.4 (“Without the possibility of some

relief, the administrative officers would presumably have no

14

Brown’s grievance stated in relevant part: “Correctional Officer J.

Valoff, with his actions, violated policy and procedure, Use of Force, and

Use of Tear Gas.”

12368 BROWN v. VALOFF

authority to act on the subject of the complaint, leaving the

inmate with nothing to exhaust.” (emphasis added)). For that

same reason, the notion that “[a]t a minimum, CDC could

have afforded Brown another opportunity to be heard,” is not

true, on the present record. An “opportunity to be heard”

means that someone must be listening. Yet, all indications are

that on a third level appeal, no one would be listening —

because the investigation and consideration of the grievance

had been directed, in their entirety, to the staff complaint pro-

cess.

We note, finally, that Brown did give the process to which

his complaint was directed a full opportunity to develop the

facts and reach a conclusion. When he was not notified of the

results of the staff complaint process, he made inquiry of the

California Office of the Inspector General. In a letter dated

before the federal court complaint was filed the Inspector

General notified Brown that “an investigation was in fact con-

ducted and completed.” The Department, consequently, had a

full opportunity to consider and investigate the complaint

before this suit was filed, in accord with its own processes. As

those processes did not involve any further appeals, Brown

had no obligation to pursue the third level appeal before pro-

ceeding to court.

[9] We conclude that Brown did exhaust “such administra-

tive remedies as are available.” Section 1997e(a) therefore

creates no barrier to Brown’s pursuit of monetary relief. The

decision of the district court must therefore be affirmed.

2. Hall: Hall’s case differs from Brown’s in two critical

respects, both of which we deem to support a conclusion that

he, unlike Brown, did not meet the PRLA exhaustion require-

ment.

First, while Hall, like Brown, was informed in his second

level response memorandum that his “appeal is being

answered as a staff complaint,” Hall, unlike Brown, was also

BROWN v. VALOFF 12369

informed that “[i]f the appeal contains other issues as well,

i.e., disciplinary or property issues, the other issue(s) must be

appealed separately. This advice is in accordance with

Administrative Bulletin 98/10, issued August 21, 1998.” Hall

was also advised that “[i]f . . . dissatisfied with th[e] deci-

sion,” “further review” was available. Finally, Hall’s second

level response was marked “Denied” rather than “Partially

Granted.”

These differences in the second level response reflect a dif-

ference in the nature of Hall’s grievance, as compared to

Brown’s. Both Hall’s grievance and his federal court com-

plaint, unlike Brown’s, raised issues other than those relating

to the misconduct of the correctional officers who assertedly

used excessive force. Hall also complained in his grievance

that he did not receive adequate medical care after the exces-

sive use of force and that he was “returned to an empty cell

with no property.” Similar allegations were repeated in Hall’s

complaint in this suit: “[P]laintiff[ ] . . . received no medical

attention [although he] had complained . . . during medical

deliveries that he was in severe pain . . . and need [sic] to be

seen by a doctor . . . ;” “[P]rison officials had confiscated . . .

Plaintiff’s personal property.”15

15

The partial dissent argues that Brown’s complaint is indistinguishable

from Hall’s because it also contained allegations of inadequate medical

care. Concurring and dissenting op. at 12374-75 n.1. This argument is

based on the following language from Brown’s complaint:

As a result of being sprayed in my left eye by Officer Valoff, I

now have three little spots in my left eye, which I complained

about to staff, Captain Sanchez, who heard my 114D lock up

order the following day, Sgt. Flores, Ad, Seg Sgt., RN Bengi, and

several MTA’s and nurses that I can’t identify by name, but, can

recognize. I complained in my first ICC committee hearing, and

no one responded with any interest. I submitted several sick call

application, and met again with cancellations and excuses about

not receiving my submitted medical applications. With such neg-

ative results, I kept this information to myself until I could find

someone who would listen.

12370 BROWN v. VALOFF

[10] It thus appears that in Hall’s case, unlike in Brown’s,

there were matters separate from the staff complaint about

excessive force — i.e., allegations regarding lack of medical

care and deprivation of property — that, according to both the

Administrative Bulletin referenced in the second level

response and the response itself, “must be appealed separate-

ly.” That is why, presumably, the response memorandum to

Hall, unlike the response to Brown, did note the possibility of

further appeal.16 We conclude that both a reasonable interpre-

tation of the responses made to Hall and the Department’s

When read in context, it is evident that Brown’s discussion of his treat-

ment by medical staff was not raised as a separate complaint, but rather

as a way of explaining the steps Brown took to complain about the mis-

treatment and, in support of his request for damages, the medical impact

of the alleged attack. Hall, in contrast, stated in his complaint that “[i]t

must be noted that, myself nor my cellie (Petillo) was given adequate

medical care, we were merely questioned about our injuries, but medical

staff did not apply proper medical aid to me after brutal cell extraction

also. (emphasis in original). That Hall’s intention in making this statement

was to raise a separate claim of improper medical care, along with his alle-

gations of excessive force and property loss, is reinforced by the fact that

in his federal complaint, Hall reasserted his complaints about medical care

and confiscation of personal property. In contrast, Brown’s federal com-

plaint does not assert issues surrounding his medical treatment.

Furthermore, contrary to our dissenting colleague’s claim that Hall

made no “specific allegation as to what property was taken,” Concurring

and dissenting op. at 12375 n.1, Hall’s grievance form states that he was

returned to a cell with “no sheets, no mattresses, no blankets. And no other

article of clothing except boxer shorts.”

16

We do not rely on the fact that Hall’s appeal was marked “denied.”

This notation may simply reflect the fact that “partially granted” seems to

have been reserved for situations like Brown’s, in which there was other

relief requested for the same set of alleged facts but that relief is not avail-

able through the appeals grievance. Whether that is so or not, we agree

with the district court that the notation used is not controlling. Here, Hall

was granted the same relief — a full staff complaint investigation — that,

in Brown’s case, was denominated a partial grant. Characterizing Hall’s

appeal as “denied” was inaccurate or, at least, misleading, and not entitled

to weight.

BROWN v. VALOFF 12371

actual practices as reflected in the governing directives indi-

cate that, as to certain aspects of Hall’s grievance, some relief

might have been available had he pursued his third level appeal.17

[11] Second, unlike Brown, Hall filed his federal court

complaint in June 1999, before the staff complaint investiga-

tion was completed on November 2, 2000, and before he was

notified on July 2, 2001 that “[t]he findings of said allega-

tion(s) were partially sustained.” Until the staff misconduct

investigation was completed, the Department had not had a

full opportunity to investigate the complaint and to develop an

understanding of the facts underlying it. Moreover, even

absent any specific information regarding the results of the

investigation, it is conceivable that a prisoner who learns that

his allegations were “partially sustained” would be satisfied

that he had been heard and proceed no further.

We recognize that, as the facts of this case illustrate, await-

ing the results of a staff misconduct investigation can substan-

tially expand the time required to exhaust the Department’s

available administrative remedies. Unlike the grievance pro-

cess, through which prompt responses are ordinarily required,

see Cal. Code Regs., tit. 15, §§ 3084.5(I) & 3084.6(b), inter-

nal regulations mandate only that the Department complete an

investigation within one year. See DOM § 31140.8.

17

Our dissenting colleague relies on the fact that the pre-printed inmate

appeal form used by both Brown and Hall contained a notation that a

Director’s level review existed. Concurring and dissenting op. at 12374.

This argument misses the point. The “availability” of relief does not turn

on what the prisoners might have been told at the time they filed their

complaints, but rather on how the prison viewed and treated their com-

plaint based on its own procedures. The Administrative Bulletin states that

where the inmate raises both staff complaint and other issues, the prison

is to inform the inmate that those issues “must be appealed separately.”

The fact that Hall was so advised supports our conclusion that officials

viewed his complaint, unlike Brown’s, as containing issues for which

relief was still available. The informative factor, then, is the difference in

treatment of the two complaints, not the pre-printed language found on the

appeal form.

12372 BROWN v. VALOFF

We have held that a prisoner may not proceed to federal

court while exhausting administrative remedies, see McKin-

ney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (per

curiam). At the same time, awaiting the completion of a staff

misconduct investigation could, absent some adjustment,

endanger the prisoner’s ability to file his court complaint

within the limitations period. See Cal. Civ. Proc. Code

§ 335.1; Maldonado v. Harris, 370 F.3d 945, 954 55 (9th Cir.

2004), cert. denied sub nom. Kempton v. Maldonado, 125

S. Ct. 1725 (2005) (holding that there is a two year statute of

limitations in California in §1983 cases). We do not regard

the intersection of the exhaustion and statute of limitations

requirements as creating a problem for prisoners, however, as

we agree with the uniform holdings of the circuits that have

considered the question that the applicable statute of limita-

tions must be tolled while a prisoner completes the mandatory

exhaustion process. See Johnson v. Rivera, 272 F.3d 519, 522

(7th Cir. 2001) (“We thus hold that in the ordinary case, a fed-

eral court relying on the Illinois statute of limitations in a

§ 1983 case must toll the limitations period while a prisoner

completes the administrative grievance process.”); Brown v.

Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (tolling is appro-

priate while prisoner completes mandatory exhaustion); Har-

ris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir. 1999) (same).18

18

We also note that, again like all the other circuits that have considered

the question, “we refuse to interpret the PLRA ‘so narrowly as to . . . per-

mit [prison officials] to exploit the exhaustion requirement through indefi-

nite delay in responding to grievances.” Lewis v. Washington, 300 F.3d

829, 833 (7th Cir. 2002). See also Jernigan v. Stuchell, 304 F.3d 1030

(10th Cir. 2002); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001);

Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam).

Delay in responding to a grievance, particularly a time-sensitive one, may

demonstrate that no administrative process is in fact available. See Jerni-

gan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“[F]ailure to

respond to a grievance within the time limits contained in the grievance

policy renders an administrative remedy unavailable . . . .”); Foulk v.

Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (affirming district court deci-

sion not to dismiss for failure to exhaust when a Department of Correc-

tions’ failure to respond to a preliminary grievance precluded the plaintiff

from pursuing a formal grievance). Here, however, there are no facts sug-

gesting that Hall was prejudiced by the long time it took to conclude the

investigation into his staff complaint.

BROWN v. VALOFF 12373

[12] Hall did not await the completion of the staff miscon-

duct investigation before filing his complaint in district court.

For that reason, as well as because his grievance and federal

court complaint both address issues separate from the exces-

sive force staff complaint as to which a full investigation was

conducted, the defendants of his case have met their burden

of demonstrating that Hall did not exhaust “such administra-

tive remedies as are available.” The district court’s decision

is, therefore, reversed as to Hall.

Conclusion

We AFFIRM in Brown’s case and remand for further pro-

ceedings consistent with this opinion. We REVERSE in

Hall’s case.

REINHARDT, Circuit Judge, concurring in part, and dissent-

ing in part:

Because neither Brown nor Hall exhausted all of the

administrative relief that was available through the California

Department of Corrections’ grievance process and because

Booth v. Churner, 532 U.S. 731 (2001), requires that in such

circumstances their complaints be dismissed, I respectfully

concur as to Hall and dissent as to Brown.

Notwithstanding the majority’s attempt to distinguish

Brown’s case from Hall’s, the factual and legal similarities

between these two cases are overwhelming. Hall and Brown

were inmates at the same prison at the time of the alleged

assaults. In both cases, the plaintiffs were physically

assaulted; they were pepper sprayed; and they suffered inju-

ries for which both sought and allegedly failed to receive

proper medical treatment. Both plaintiffs sought relief for

their grievances through the Department of Corrections’

12374 BROWN v. VALOFF

administrative appeals process; both sought compensation for

their injuries and the alleged violations of their rights.

After their appeals were received by the appropriate offi-

cials, both inmates bypassed the informal and formal levels

and both appeals were denied at the first level. At the second

level, both were notified that their complaints of staff miscon-

duct would be investigated, but that as inmates they would be

informed only of the conclusion of the investigation.

Although Brown’s appeal was “partially granted” and Hall’s

appeal was “denied” at the second level, the majority agrees

that the Hall label is erroneous. See Maj. op. at 12370 n.16.

Hall’s appeal should also have been labeled “partially grant-

ed.” Although the majority opinion states that the second level

Brown memorandum “did not counsel that any further review

[was] available,” Maj. op. at 12363, Brown, like Hall, was in

fact notified on his appeal form that if he was dissatisfied

with the second level response, he could appeal to the Direc-

tor’s Level for review. Given these similarities, I simply can-

not see how the majority can dispose of these cases differently

under Booth.1

1

Both Brown and Hall’s complaints resulted in the treatment of their

grievances as “Staff Complaints.” Both were referred for investigation of

the officers’ conduct. The majority suggests that Hall’s grievance was dif-

ferent in that he also complained that he did not receive adequate medical

care and that his property was taken. See Maj. op. at 12369. First, notwith-

standing the separation under the administrative procedures of the staff

complaint (which I will discuss later), both Brown and Hall were left with

complaints that they had been deprived of their rights by virtue of the use

of excessive force. The complaints were not fully remedied by the institu-

tion of personnel proceedings with respect to the offending guards. Other

relief could have been afforded to the prisoners had they continued with

the administrative appeals process. Second, as to the statement that “Hall

also complained that he did not receive adequate medical care . . . and that

his property was taken,” that fact is of no consequence. Brown too com-

plained about inadequate medical care. He alleged that he attempted to get

medical appointments regarding the injury he suffered, but that each time

they were cancelled and (false) excuses were made that his applications

were not received. Surprisingly, the majority refuses to acknowledge

BROWN v. VALOFF 12375

The issue in Booth was “whether an inmate seeking only

money damages must complete a prison administrative pro-

cess that could provide some sort of relief on the complaint

stated, but no money.” 532 U.S. at 733. The Court explained

that, as with the two cases before us, “[t]he meaning of the

phrase ‘administrative remedies . . . available’ [in 42 U.S.C.

§ 1997e(a)] is the crux of the case . . . The dispute . . . comes

down to whether or not a remedial scheme is ‘available’

where . . . the administrative process has authority to take

some action in response to a complaint, but not the remedial

action an inmate demands to the exclusion of all other forms

of redress.” Id. at 736 (emphasis added).

In Booth, the Court defined available relief broadly. “[A]n

inmate must exhaust irrespective of the forms of relief sought

and offered through administrative avenues.” Id. at 741 n.6.

The Court specifically rejected any attempt to “read futility or

other exceptions” into the requirement of exhaustion. Id. It

held that as long as some relief is available through the

administrative process, regardless of whether it is the relief a

prisoner seeks, the prisoner must exhaust the process. The

Court said that as long as the Department’s grievance system

“has authority to take some responsive action,” relief is avail-

able. Id. at 736 n.4.

Although the Court did not specify precisely what consti-

tutes available relief, it noted the argument that Congress

must have accorded weight to the non-compensatory benefits

of total exhaustion:

Brown’s complaint about his medical treatment because it is not separately

stated. See Maj. op. at 12369 n.15. We do not ordinarily read a prisoner’s

handwritten submission of his grievances to prison authorities with so fine

and legalistic an eye. Brown clearly complained about his medical treat-

ment. As to Hall’s property loss, the form includes a brief general state-

ment that when he returned to his cell it was empty, but no specific

allegation as to what property was taken or that his property was retained

by prison officials for an undue time.

12376 BROWN v. VALOFF

[R]equiring exhaustion in [ ] circumstances [where

the prison’s process cannot satisfy the inmate’s sole

demand] would produce administrative results that

would satisfy at least some inmates who start out

asking for nothing but money, since the very fact of

being heard and prompting administrative change

can mollify passions even when nothing ends up in

the pocket. And one may suppose that the adminis-

trative process itself would filter out some frivolous

claims and foster better-prepared litigation once a

dispute did move to the courtroom, even absent for-

mal factfinding.

Id. at 737. Under this view, even when a prisoner requests

only relief that is not available through the administrative pro-

cess, the threshold for determining what constitutes available

relief is so low that “the very fact of being heard and prompt-

ing administrative change” may be sufficient in itself to

require exhaustion of the administrative process. See id.

Given that the mere existence of an additional hearing or pro-

cess may be sufficient to constitute an available administra-

tive remedy under Booth, any question as to whether there are

in fact other types of available relief is inconsequential. (See

list of relief available for Brown, infra Dissent at 12376-77).

All that the defendant need establish generally is that an addi-

tional hearing was available. The key to Booth is that the

Court held explicitly that for relief to be “available” in the

administrative process it need not be “effective”; nor need it

be desired by the prisoner. As long as some administrative

action can be ordered, the prisoner must exhaust the process.

I believe that Booth squarely controls the outcome of both

appeals here. Brown, like Booth, was an alleged victim of a

prison guard assault and was allegedly denied adequate medi-

cal treatment. Brown, like Booth, was clear in his request for

relief: “I respectfully request to be compensated for these

abuses, and blatant disregard for my constitutional rights.”

Brown, like Booth, sought compensation for his physical inju-

BROWN v. VALOFF 12377

ries. Moreover, Brown, like Hall, was informed that further

relief was available at the time the second level decision was

communicated to him. Brown, like Hall, was told that he had

a right to appeal to the third level. However, Brown admits

that he chose not to appeal to the third level because of the

delay in the administrative appeals process. Although we may

assume that Brown could not have requested any further per-

sonnel investigation with respect to Valoff’s conduct and that

he could not have sought greater discipline of Valoff, he

unquestionably might have received some relief for himself at

the Director’s level had he done what he was advised to do

— file an appeal with the Director. For example, Brown

might have received the medical treatment that had been with-

held, and/or a transfer to a different correctional facility away

from his “persecutor,” and/or a change in the prison’s pepper

spray policy, and/or the adoption of new disciplinary proce-

dures or regulations governing prisoner’s rights, and/or cor-

rection of his prison records and/or the restoration of good-

time credits, and/or an apology from the Warden. There is no

question that had Brown appealed he would have received an

opportunity “to be heard and to prompt administrative

change.” Booth, 532 U.S. at 737. Each of the remedies men-

tioned constitutes available relief that Brown could have

received at the third level of the administrative appeals pro-

cess. In light of Booth, I believe that the majority opinion is

simply incorrect in its statement that no further relief was

available to Brown.

My colleagues suggest that there are circumstances in

which a prisoner need not proceed through the whole admin-

istrative process because no relief would be available. I agree.

There are two principal examples that I would offer, neither

of which is applicable here. The first situation in which a pris-

oner may be excused from exhausting all steps in the process

occurs when the prisoner’s request is fully granted prior to the

final level of the administrative process. See Abney v. McGin-

nis, 380 F.3d 663 (2d Cir. 2004); Ross v. County of Ber-

nalillo, 365 F.3d 1181, 1187 (10th Cir. 2004); Dixon v. Page,

12378 BROWN v. VALOFF

291 F.3d 485, 490-91 (7th Cir. 2002). The majority relies on

these cases for the conclusion that “[t]he other circuits that

have considered whether a prisoner continues to have an

exhaustion obligation once it is clear that no further relief is

available have agreed with our understanding that Booth

decides this question in the negative.” Maj. op. at 12359. To

the contrary, those cases hold only that an inmate need not

continue to exhaust the administrative process once his

administrative appeal has been fully granted. See Abney, 380

F.3d at 665 (Abney’s request for orthopedic footwear was

fully granted); Ross, 365 F.3d at 1187 (Ross’ request for

shower mats was fully granted); Dixon, 291 F.3d at 490-91

(Dixon’s request for a transfer was fully granted). These cases

are inapposite. At the second level, Brown’s request was “par-

tially granted” but, more important, was necessarily also par-

tially denied. The denial pertained to the part of the request

that sought a remedy for the violation of Brown’s rights. No

court has held after Booth that a prisoner whose appeal is

denied or partially denied is excused from exhausting the

administrative process if that process could offer him some

additional relief. Here, there is no question that the adminis-

trative process could have afforded Brown and Hall further

relief — even though that relief was not the relief they

requested. The institution of an investigation of a guard is

hardly all the available relief when a prisoner’s constitutional

rights have been violated. In fact, such a personnel proceeding

is not a “remedy” at all. It does not provide relief to the pris-

oner. It is simply the state’s internal administration of its own

personnel policies for its own benefit.

The second circumstance in which relief would be unavail-

able occurs when the prisoner is explicitly told, or the regula-

tions make it plain, that there is no further relief available to

him. No such statement was made to Brown or Hall. Nor do

the regulations so provide. Although Brown was told that

monetary compensation was “beyond the scope of the appeals

process” and that he would not be informed of any disciplin-

ary action taken against Valoff, he was at no time told that the

BROWN v. VALOFF 12379

administrative appeals process could offer him no further

relief. In fact, there is no reason he could not have been

afforded various forms of relief. See supra Dissent at p.

12377. The prison officials certainly had the authority to do

so.2

Relying on Administrative Bulletin 98/10, the majority

concludes that because Brown alleged staff misconduct, his

grievance was categorized as a “Staff Complaint” and that the

issue of staff misconduct is investigated separately and apart

from the ordinary appeal process. I do not dispute this conclu-

sion. The Administrative Bulletin does appear to create a sep-

arate and collateral administrative procedure for allegations

of staff misconduct for the administration of its own person-

nel proceedings. See Admin. Bulletin 98/10 (“ALL com-

plaints which allege any misconduct by a staff member shall

be logged by the appeals coordinators as a Staff Complaint,

Category 7.”).3 Nevertheless, I disagree with the majority’s

conclusion that “all indications are that on a third level

appeal, no one would be listening — because the investigation

and consideration of the grievance had been directed, in their

entirety, to the staff complaint process.” Maj. op. at 12368. At

no time was Brown informed that the Department “was not

2

An example of when an agency would not have the authority to offer

a prisoner any relief and the prisoner could proceed directly to the district

court would be if a prisoner’s grievance pertained to an act that prison

officials are required to perform pursuant to a statute and as to which no

non-statutory relief was possible.

3

Both Brown’s and Hall’s complaints were labeled by the prison author-

ities initially as Category 7A and, thus, as staff complaints. See Admin.

Bulletin 98/10. Both were considered and denied at level one by the Divi-

sion head. Both then appealed, and both appeals were then considered and

decided by the Warden. Both responses at the second level stated that the

appeals were being treated as staff complaints. Nothing in the prison regu-

lations or procedures suggests that some appeals are deemed exhausted

after the second level and that others must be processed through the third

level (except for appeals from disciplinary actions taken against the pris-

oner. See Cal. Code Regs. tit. 15, § 3084.7(b). If Hall was required to

appeal to the third level, as the majority and I agree, so was Brown.

12380 BROWN v. VALOFF

going to listen” to his medical complaints or even to his alle-

gations of physical mistreatment and violations of his consti-

tutional rights. Requests for relief arising out of those

complaints might have been denied at the third level, but the

prison authorities would have been required to listen to the

complaints and the appeals might well have resulted in some

remedial response, even if one that did not satisfy Brown.

Because Brown was informed that he could be afforded no

further relief with respect to any request to have Valoff inves-

tigated or disciplined, the Staff Complaint portion of his griev-

ance was granted; but his entire appeal was only “partially

granted,” as no administrative relief directly benefitting him

or addressing the violations of his rights or the injuries he

incurred was afforded.

The basic problem with the majority’s approach is that its

interpretation of Administrative Bulletin 98/10 would lead to

the conclusion that the administrative appeals process is

unavailable in California for all complaints of mistreatment of

prisoners by prison staff. Yet, that is likely the principal rea-

son for the existence of the administrative appeals process.

The appeal form used by both Brown and Hall begins, “You

may appeal any policy, action or decision which has a signifi-

cant adverse affect upon you.” (Emphasis added). This would

clearly appear to include the deprivation of a prisoner’s con-

stitutional rights by prison officials. However, under the

majority’s view, when a prisoner’s grievance identifies

improper actions by prison guards or other officials, it must

be treated as a “Staff Complaint” and removed from the nor-

mal appeals process. According to the majority’s view of the

process, when prisoners complain that their constitutional

rights have been violated by the prison staff, they will simply

be told that an investigation will be conducted and that they

will later learn of its conclusion, although not of the specific

actions taken, if any. Under that view, prisoners would have

no opportunity within the ordinary administrative appeals pro-

cess to have their complaints of mistreatment, including con-

stitutional deprivations, considered and remedied.

BROWN v. VALOFF 12381

My view is to the contrary. I believe that, under the Califor-

nia regulations, a personnel complaint is separated out and is

treated as being of no direct consequence to the prisoner or,

put differently, as affording no direct relief to the prisoner.

Such a complaint is viewed as initiating an internal state pro-

cess, part of the state’s own personnel procedures. That is

hardly the end of the matter, however. The prisoner’s griev-

ance concerning his abuse or mistreatment and the questions

as to what relief, if any, should be afforded him as a result of

the violation of his rights continue to proceed within the

administrative appeals process, regardless of what happens on

the separate track with the personnel complaint. Thus, the

prisoner is, under my view of the process, afforded an oppor-

tunity to obtain a remedy for the constitutional violation he

suffered. His use of the administrative process is not termi-

nated simply because prison officials are investigating a per-

sonnel complaint. It is not simply a question of whether a

prisoner must take the third appeal as Brown failed to do. The

personnel complaint could as easily be filed directly, or segre-

gated out, at the very first step of the process or even earlier.

See Admin. Bulletin 98/10 at ¶ 4. In such case, under the

majority’s theory, the entire appeals process would be

unavailable with respect to the entire complaint, not just with

respect to the personnel proceedings; and the prisoner could

proceed directly to the court in all cases.

The question the majority’s decision poses is fundamental.

Is the administrative appeals process limited to complaints by

prisoners about general policies and other matters that do not

involve the deprivation of prisoners fundamental rights by

prison staff? I hardly think so. I think that a complaint regard-

ing the deprivation of such rights is precisely the type of com-

plaint the appeals process is designed to encompass.

Once the personnel aspect of Brown’s complaint is

removed to its separate track, the complaint is remarkably

similar to Booth’s. Both prisoners sought monetary relief;

indeed, such was the only relief requested in each case.

12382 BROWN v. VALOFF

Brown was told at step two that the “monetary compensation”

he sought was “beyond the scope of the appeals process.” The

Booth Court expressly determined that the fact that monetary

compensation is “beyond the scope of the appeals process” is

inconsequential to the prisoner’s obligation to continue to pur-

sue his appeal. See Booth, 532 U.S. at 733, 736-38. The Booth

Court clearly held that, when the administrative process can

offer any relief, prisoners must continue to exhaust adminis-

trative procedures regardless of the relief requested, regard-

less of the relief offered, and regardless of the futility of

exhaustion. See Booth, 532 U.S. at 741, 741 n.6. As I see it,

Booth controls our resolution of these appeals. Although I

find Booth extremely troubling and would have decided it dif-

ferently, it is precedent and it is clearly applicable; and it is

binding on us.

In sum, Brown was informed that he could appeal the sec-

ond level decision to the director’s level. Apart from the fact

that California removes from the normal appellate process the

portion of the case that pertains to disciplinary action against

the prison staff (including any disciplinary investigation),

Brown’s case is identical to Booth’s. Both were allegedly

assaulted by prison guards. Brown’s request for relief is no

different than Booth’s. Both limited their requests for relief to

compensation. Both are required to exhaust the administrative

process, even if that process is futile. See Booth, 532 U.S. at

741 n.6. So, too, is Hall. Because neither Brown nor Hall

exhausted all of the administrative relief that was available

through the Department of Corrections’ administrative

appeals process, Booth requires that both of their complaints

be dismissed. I therefore respectfully concur as to Hall and

dissent as to Brown.