O'Guinn v. McDaniel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROY ALAN O’GUINN, 

Plaintiff-Appellant,

v.

No. 06-15972

LOVELOCK CORRECTIONAL CENTER;

D.C. No.

NEVADA DEPARTMEN OF

CORRECTIONS; NEVADA  CV-05-00007-

DEPARTMENT OF CORRECTIONS ECR/VPC

MEDICAL DIRECTOR; STATE OF OPINION

NEVADA; JACKIE CRAWFORD; E. K.

MCDANIEL,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Jr., District Judge, Presiding

Argued and Submitted

May 16, 2007—San Francisco, California

Filed September 5, 2007

Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

11531

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11535

COUNSEL

Brett W. Johnson, Rhonda Needham, Anne Bishop, Snell &

Wilmer L.L.P., Phoenix, Arizona for the appellant.

Catherine Cortez Masto, Nevada Attorney General; Melanie

A. Potter, Deputy Attorney General, Carson City, Nevada for

the appellees.

OPINION

IKUTA, Circuit Judge:

Roy Allen O’Guinn is a Nevada state prisoner who has

sued prison officials claiming they denied him accommoda-

tion and treatment for his mental illness. The district court

dismissed the suit pursuant to the Prison Litigation Reform

Act (“PLRA”), as amended, 42 U.S.C. § 1997e et seq., for

O’Guinn’s failure to exhaust administrative remedies prior to

filing suit. O’Guinn appealed. We have jurisdiction under 28

U.S.C. § 1291.

To resolve this appeal, we must decide whether the PLRA

requires prisoners to exhaust available administrative reme-

11536 O’GUINN v. LOVELOCK CORRECTIONAL CENTER

dies before bringing claims under the Americans With Dis-

abilities Act (“ADA”) and the Rehabilitation Act. We hold

that it does and therefore affirm the district court.

I

O’Guinn is a prisoner at Lovelock Correctional Center, a

Nevada Department of Corrections (“NDOC”) prison. He has

a history of mental illness, brain damage, and organic person-

ality disorder, which in the past have required medical treat-

ment.

On November 9, 2004, O’Guinn filed a complaint with the

Department of Justice (“DOJ”) alleging ADA and Rehabilita-

tion Act violations based on the prison’s alleged failure to

provide adequate treatment for his mental disability. The

complaint was filed on a form entitled “Title II of the Ameri-

cans with Disabilities Act/Section 504 of the Rehabilitation

Act of 1973 Complaint Form.” The DOJ sought and received

authorization from O’Guinn to investigate these complaints.

It is unclear from the record whether the DOJ took any further

action.

After filing his complaint with the DOJ, O’Guinn filed a

pro se complaint in federal district court against the Nevada

Department of Corrections and several other defendants (col-

lectively “Defendants”) on January 4, 2005. He used a pre-

printed form, captioned “Civil Rights Complaint Pursuant to

42 U.S.C. § 1983.” He identified his single cause of action

under count one as “Americans with Disabilities Act, 42 USC

§ 12101 et seq., and Rehabilitation Act 29 USC § 794 et seq.”

The complaint does not include a cause of action under

§ 1983. Under the jurisdiction paragraph he again identified

these statutes and added “Not a civil rights action except as

may be covered in the above statutes.”

O’Guinn filed an amended complaint on January 13, 2005,

again on NDOC’s pre-printed § 1983 complaint form. Instead

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11537

of leaving the default jurisdictional statement under § 1983,

O’Guinn wrote “Different: Rehab Act Title 29 U.S.C. § 794

et seq., and Americans with Disabilities Act, Title 42 U.S.C.

§ 12101, et. seq.” As with the original complaint, O’Guinn

listed only causes of action under the ADA and Rehabilitation

Act. The district court sua sponte dismissed the amended

complaint with leave to amend pursuant to 28 U.S.C.

§ 1915A, holding that O’Guinn had failed to plead his causes

of action sufficiently.

On January 31, 2005, O’Guinn filed a second amended

complaint, which is the operative complaint in this appeal.

The second amended complaint, like the two prior complaints,

used the form § 1983 complaint. As with the first two com-

plaints, O’Guinn invoked federal jurisdiction based on the

ADA and Rehabilitation Act, instead of on § 1983. He did not

mention § 1983. The second amended complaint alleged that

O’Guinn was denied participation in services, benefits, and

programs solely on the basis of his disability and that he had

been denied accommodations for his disability in violation of

these statutes. O’Guinn attached his DOJ ADA/Rehabilitation

Act complaint form to the second amended complaint. He

also indicated that he had not exhausted the NDOC’s griev-

ance procedures, stating: “Grievance not applicable to ADA/

Rehab Act and is not required under these acts.”

Defendants moved to dismiss the second amended com-

plaint on several grounds, including O’Guinn’s failure to

exhaust his administrative remedies. In response, O’Guinn

argued that exhaustion was not required because prisoners

bringing suit under the ADA do not have to exhaust prison

remedies, and the NDOC’s own administrative grievance pro-

cess, Administrative Regulation 740, prohibits grievances per-

taining to federal law. He also argued that if there were a

federal exhaustion requirement, he met it by filing his com-

plaint with the DOJ.

In her recommendation to the district court on November

14, 2005, the magistrate judge determined that O’Guinn had

11538 O’GUINN v. LOVELOCK CORRECTIONAL CENTER

filed his suit under § 1983 and had failed to exhaust adminis-

trative remedies before filing suit, as required by the PLRA.

On March 27, 2006, the magistrate judge also determined,

after an evidentiary hearing on the issue, that O’Guinn had

failed to file NDOC grievances related to mental health treat-

ment.

The district court adopted the magistrate’s recommendation

on March 28, 2006. The district court noted O’Guinn’s argu-

ment that he exhausted his mental health treatment claims

after he filed his lawsuit, but held that O’Guinn was required

to file a new action to reflect this exhaustion. Accordingly, the

district court dismissed O’Guinn’s suit without prejudice.

O’Guinn filed a timely notice of appeal.

II

Dismissals based on a prisoner’s failure to exhaust reme-

dies are reviewed de novo; factual findings are reviewed for

clear error. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th

Cir. 2003). In ruling on a dismissal motion, a “court may look

beyond the pleadings and decide disputed issues of fact. If

the district court concludes that the prisoner has not exhausted

nonjudicial remedies, the proper remedy is dismissal of the

claim without prejudice.” Id. at 1120 (internal citation omit-

ted). We may affirm on any ground present in the record. See

Sherman v. Harbin (In re Harbin), 486 F.3d 510, 520 (9th

Cir. 2007).

III

O’Guinn’s key argument is that the PLRA does not require

exhaustion of claims arising under the ADA or Rehabilitation

Act.1 O’Guinn claims that the district court erred in character-

1

O’Guinn also argues that the district court should have allowed him to

amend his complaint to reflect that he exhausted his administrative reme-

dies after filing his second amended complaint. We squarely rejected this

argument in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) (per

curiam).

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11539

izing his second amended complaint as bringing § 1983

claims, rather than ADA and Rehabilitation Act claims, and

then compounded this error by dismissing his claims for fail-

ure to exhaust administrative remedies. As explained below,

we agree that O’Guinn pleaded claims under the ADA and

Rehabilitation Act rather than under § 1983, but conclude that

the PLRA requires administrative exhaustion of ADA and

Rehabilitation Act claims.

A

[1] The district court mischaracterized O’Guinn’s com-

plaint as arising under § 1983. O’Guinn’s complaint clearly

pleaded ADA and Rehabilitation Act statutory violations. As

discussed above, each of O’Guinn’s complaints stated that his

claims were brought under the ADA and Rehabilitation Act

and that he was not filing a civil rights complaint.

[2] Further, the factual assertions in the second amended

complaint are directly related to establishing elements in his

ADA and Rehabilitation Act causes of action. In order to state

a claim under Title II of the ADA, a plaintiff must allege:

(1) he ‘is an individual with a disability;’ (2) he ‘is

otherwise qualified to participate in or receive the

benefit of some public entity’s services, programs, or

activities;’ (3) he ‘was either excluded from partici-

pation in or denied the benefits of the public entity’s

services, programs, or activities, or was otherwise

discriminated against by the public entity;’ and (4)

‘such exclusion, denial of benefits, or discrimination

was by reason of [his] disability.’

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.

2004) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th

Cir. 2002) (per curiam)). Similarly, to state a claim under the

Rehabilitation Act, a plaintiff must allege “(1) he is an indi-

vidual with a disability; (2) he is otherwise qualified to

11540 O’GUINN v. LOVELOCK CORRECTIONAL CENTER

receive the benefit; (3) he was denied the benefits of the pro-

gram solely by reason of his disability; and (4) the program

receives federal financial assistance.” Duvall v. County of Kit-

sap, 260 F.3d 1124, 1135 (9th Cir. 2001).

[3] In his second amended complaint, O’Guinn alleged that

he was an individual with a mental health disability, he was

qualified to receive the mental health services provided by

NDOC, he was denied the benefits of the program solely on

the basis of his mental illness, and NDOC received federal

financial assistance. Conversely, the only indication that

O’Guinn intended to file a § 1983 claim is the caption on the

pre-printed form which O’Guinn claims the NDOC required

him to use. Notably, O’Guinn’s complaint does not allege that

Defendants deprived him of a constitutional right while acting

“under color” of state law, a necessary element of a § 1983

claim. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.

1991). As we held in Bogovich v. Sandoval, when a prisoner’s

complaint “asserts only, and details facts related to, potential

ADA violations,” the district court errs in characterizing the

suit as a § 1983 claim. 189 F.3d 999, 1001 (9th Cir. 1999).

Defendants argue that we should construe the complaint as

arising under § 1983 because O’Guinn can more readily

obtain his desired remedies under § 1983 than under the ADA

and Rehabilitation Act. But “courts should not undertake to

infer in one cause of action when a complaint clearly states

a claim under a different cause of action. ‘[T]he party who

brings a suit is master to decide what law he will rely upon.’ ”

Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392

n.7 (1987)).

B

[4] Having determined that O’Guinn pleaded causes of

action under the ADA and Rehabilitation Act rather than

§ 1983, we turn to the question whether the PLRA required

O’Guinn to exhaust available administrative remedies before

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11541

bringing these claims. The plain language of the PLRA, as

well as Supreme Court and Ninth Circuit precedent, lead us

to conclude that exhaustion is required for ADA and Rehabili-

tation Act claims.

[5] The PLRA exhaustion provision, § 1997e(a), states:

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

administrative remedies as are available are

exhausted.

42 U.S.C. § 1997e(a) (emphasis added). Because the ADA

and Rehabilitation Act are federal laws, the plain language of

the PLRA requires that prisoners bringing an action under

these federal statutes challenging prison conditions must first

exhaust available administrative remedies. The parties do not

dispute that O’Guinn’s second amended complaint challenged

prison conditions.

The Supreme Court has emphasized that the exhaustion

requirement in the PLRA means what it says. Specifically,

“exhaustion of available administrative remedies is required

for any suit challenging prison conditions, not just for suits

under § 1983.” Woodford v. Ngo, ___ U.S. ___, 126 S. Ct.

2378, 2383 (2006). A prisoner must exhaust administrative

remedies even when the prisoner’s suit seeks monetary dam-

ages that are unavailable through the prison’s grievance pro-

cess, see Booth v. Churner, 532 U.S. 731, 734-35 (2001), and

even with respect to suits alleging excessive force by prison

officials, see Porter v. Nussle, 534 U.S. 516, 520 (2002).

[6] O’Guinn argues that Bogovich v. Sandoval creates an

exception to the PLRA’s exhaustion requirement for ADA

claims. In Bogovich, we held that two prisoners could chal-

lenge certain parole board policies under the ADA, and were

11542 O’GUINN v. LOVELOCK CORRECTIONAL CENTER

not limited to filing a habeas corpus petition. 189 F.3d at

1004. By way of background, we noted that prisoners may not

evade habeas exhaustion requirements by seeking non-habeas

forms of relief and observed “[t]here is no exhaustion require-

ment for claims brought under Title II of the ADA.” 189 F.3d

at 1002. This is a correct statement of law regarding exhaus-

tion of Title II claims outside of the PLRA context. See Zim-

merman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1178 (9th

Cir. 1999). However, Bogovich did not discuss the PLRA’s

exhaustion requirement, and in fact did not reference the

PLRA at all. Therefore, Bogovich did not create an exception

to the PLRA’s exhaustion requirement for ADA claims.

[7] We recognize that neither Title II of the ADA nor sec-

tion 504 of the Rehabilitation Act generally requires adminis-

trative exhaustion before filing suit. See Zimmerman, 170

F.3d at 1178. Yet nothing in the ADA or the Rehabilitation

Act carves out an exception to the PLRA exhaustion require-

ment. On the other hand, the PLRA specifically prohibits suits

“under section 1983 of this title, or any other Federal law,” 42

U.S.C. § 1997e(a), absent exhaustion. See Salgado v. Garcia,

384 F.3d 769, 773-74 (9th Cir. 2004) (“[W]here there is no

clear indication otherwise, a specific statute will not be con-

trolled or nullified by a general one.” (quotation marks omit-

ted)). The Supreme Court has noted that in enacting the

PLRA, Congress intended it to apply to all federal laws with

respect to prisoner suits, with the intent that prison officials

would have the first opportunity to address prison conditions.

See Porter, 534 U.S. at 524-25. This congressional intent

would be defeated if prisoners were able to bring federal suits

directly in district court wherever a federal statute lacked an

exhaustion provision. Given the clear indication of congres-

sional intent in the PLRA, we interpret § 1997e(a) as requir-

ing prisoners to exhaust prison administrative remedies for

claims under Title II of the ADA and the Rehabilitation Act,

notwithstanding the absence of a federal administrative

exhaustion requirement in these statutes.

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11543

Accordingly, we hold that the plain language of § 1997e(a)

and relevant Supreme Court authority require prisoners bring-

ing ADA and Rehabilitation Act claims to exhaust those

claims through available administrative remedies before filing

suit. Cf. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005)

(finding that a prisoner had “availed himself of the adminis-

trative process the state gave him” and holding § 1997e(a) did

not require dismissal of his ADA claim). In so holding, we

join the Sixth Circuit, which has similarly dismissed ADA

claims for failure to satisfy the PLRA’s exhaustion require-

ment. See Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001)

(per curiam).

IV

Having determined that O’Guinn was required to exhaust

available administrative remedies before filing his ADA and

Rehabilitation Act claims, we turn to the question whether he

did so. O’Guinn alleges he satisfied the PLRA’s exhaustion

requirement through his repeated requests to move to the bot-

tom bunk, or in the alternative, by filing the ADA/

Rehabilitation Act complaint form with the DOJ.

First, even liberally construing the grievances O’Guinn

filed requesting a lower bunk due to poor balance resulting

from a previous brain injury, we conclude that these lower-

bunk claims are not equivalent to claims of denial of mental

health treatment in violation of the ADA and Rehabilitation

Act. After “scour[ing] the record for any indicia that plaintiff

exhausted available remedies,” the magistrate judge ruled that

O’Guinn’s complaints contained “no requests for treatment or

any other documents that might be construed as complaints

seeking mental health treatment in accordance with the

[ADA] that were submitted to prison officials.” The magis-

trate judge reiterated this conclusion after the evidentiary

hearing, stating: “no requests for mental health treat-

ment . . . were submitted to prison officials.” The district

court adopted the magistrate’s conclusion, stating that

11544 O’GUINN v. LOVELOCK CORRECTIONAL CENTER

O’Guinn “did not exhaust his grievances with respect to the

claims made in this case.” Reviewing this conclusion for clear

error, see Wyatt, 315 F.3d at 1120, we agree that O’Guinn did

not exhaust his ADA and Rehabilitation Act claims here.

Second, O’Guinn asserts that the complaint he filed with

the DOJ alleging denial of mental health treatment should sat-

isfy § 1997e(a).2 However, the Supreme Court has made clear

that the PLRA requires a prisoner to exhaust the prison’s

internal grievance process. See Jones, 127 S. Ct. at 922

(“[T]o properly exhaust administrative remedies prisoners

must complete the administrative review process in accor-

dance with the applicable procedural rules—rules that are

defined . . . by the prison grievance process itself.” (internal

citations and quotation marks omitted)).

Relying on the statement in Brown v. Valoff that “awaiting

the results of investigations triggered by the grievance process

but outside of it can serve the purposes of the exhaustion

requirement,” 422 F.3d 926, 936 (9th Cir. 2005), O’Guinn

argues that the DOJ’s investigation of his claims satisfies the

PLRA’s exhaustion requirement. In that case, a California

state prisoner took his excessive force complaint through the

second level of the prison’s four-level grievance process. Id.

at 929-31. After the second level, the prison afforded Brown

partial relief and turned Brown’s grievance into a “Staff Com-

plaint” to be investigated by the Office of Internal Affairs. Id.

at 931. This sort of personnel investigation could not afford

Brown any relief. Id. at 937-38. Thus, we determined that

Brown had properly exhausted his remedies for purposes of

the PLRA because he had no further “available” remedy. Id.

2

As mentioned above, neither Title II of the ADA nor the Rehabilitation

Act requires federal administrative exhaustion before bringing claims in

court. See Zimmerman, 170 F.3d at 1178. O’Guinn bases his argument on

the fact that federal regulations permit individuals who believe they have

suffered discrimination based on a disability to file a complaint with the

Department of Justice. See, e.g., 28 C.F.R. 35.170(c).

O’GUINN v. LOVELOCK CORRECTIONAL CENTER 11545

at 940. In this context, Brown’s statement that an outside

investigation “can serve the purposes of the exhaustion

requirement,” id. at 936, means that a prisoner has exhausted

all available remedies when the prison administration’s refer-

ral of a complaint for investigation ends a prisoner’s appeal

rights. As the DOJ investigation did not terminate O’Guinn’s

rights to pursue his ADA and Rehabilitation Act claims inter-

nally, the investigation did not serve to exhaust his adminis-

trative remedies.

V

[8] Because O’Guinn failed to exhaust his administrative

remedies before filing his ADA and Rehabilitation Act

claims, the district court correctly dismissed his lawsuit with-

out prejudice.3 We note, however, that because O’Guinn

appears to have exhausted these claims after he filed his origi-

nal complaint, he need only file a new suit to have his case

heard in a federal forum.

AFFIRMED.

3

On appeal, O’Guinn raises two additional arguments, namely that: 1)

his misinterpretation of Administrative Regulation 740 amounts to a “spe-

cial circumstance” excusing exhaustion; and 2) an inherent Eighth

Amendment “emergency exception” applies because he is in urgent need

of medical treatment. Because these arguments were not raised before the

district court, they are waived. See Scott v. Ross, 140 F.3d 1275, 1283 (9th

Cir. 1998).