John Fordley v. Joe Lizarraga

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN FREDRICK FORDLEY, No. 19-15691

Plaintiff-Appellant,

D.C. No.

v. 2:16-cv-01985-

MCE-EFB

JOE A. LIZARRAGA, Warden;

WINKFIELD, Officer; GARCIA,

Officer; WATSON, Sergeant; OPINION

SHRODE, Officer; CODER, Officer,

Defendants-Appellees,

and

MOORE, Officer; ANDREA, Officer,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted February 12, 2021

San Francisco, California

Filed November 10, 2021

Before: Marsha S. Berzon, Morgan Christen, and

Bridget S. Bade, Circuit Judges.

2 FORDLEY V. LIZARRAGA

Opinion by Judge Christen;

Dissent by Judge Bade

SUMMARY*

Prisoner Civil Rights/Administrative Exhaustion

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of prison officials for

failure to exhaust administrative remedies under the Prison

Litigation Reform Act, 42 U.S.C. § 1997e, in an action

brought pursuant to 42 U.S.C. § 1983.

Plaintiff asserted that he was physically and sexually

assaulted in March of 2016 while he was an inmate at Mule

Creek State Prison. Plaintiff filed his first grievance (the

March grievance) in March 2016, which defendants failed to

process. Plaintiff submitted a second administrative

grievance (the May grievance) in May 2016 concerning

subsequent events, but which referred to the March assaults.

The district court reasoned that because the March assaults

were mentioned in the May grievance which was pending

when plaintiff filed his § 1983 action, an avenue of

administrative relief remained open as of the time plaintiff

filed his § 1983 complaint. Accordingly, the district court

ruled that plaintiff could not be excused from exhausting the

March grievance.

*

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

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

FORDLEY V. LIZARRAGA 3

The panel held that the prison’s failure to respond to

plaintiff’s March 2016 grievance concerning physical and

sexual assault rendered the administrative appeals process

“unavailable” within the meaning of the PLRA. Where

inmates take reasonably appropriate steps to exhaust but are

precluded from doing so by a prison’s erroneous failure to

process the grievance, the exhaustion requirement is satisfied.

The panel rejected defendants’ contention that the May

grievance had the effect of unexhausting the March

grievance. The panel held that a later-filed grievance that

alleges new complaints but refers to a previous and already-

exhausted grievance for context does not render the first

grievance unexhausted. Thus, the district court erred by

dismissing as unexhausted plaintiff’s claims premised on the

March 2016 grievance.

The panel agreed with the district court that plaintiff

failed to exhaust his claim against the warden because there

was no indication that any of plaintiff’s administrative

complaints suggested the warden was aware of the

defendants’ alleged conduct. The panel further held that

because the May 2016 grievance was still pending when

plaintiff filed his complaint, the district court properly

deemed the May 2016 grievance unexhausted.

Dissenting, Judge Bade stated that so long as there is a

possibility of some relief for the action complained of,

administrative remedies are available. Plaintiff’s May 2016

grievance clearly related to the March 2016 physical and

sexual assault claims, and it was still in process when plaintiff

filed suit. The administrative process was available because

plaintiff was actively using it at the time he filed suit and that

process provided potential remedies for his claims.

Therefore, plaintiff did not exhaust his claims that he was

4 FORDLEY V. LIZARRAGA

assaulted in March 2016, and the majority erred when it

allowed plaintiff to evade his obligation to do so. Because

plaintiff did not exhaust his claims, the defendants were

entitled to summary judgment.

COUNSEL

Margaret A. Upshaw, Latham & Watkins LLP, Washington,

D.C., for Plaintiff-Appellant.

Kevin A. Voth, Deputy Attorney General; Neah Huynh,

Supervising Deputy Attorney General; Monica N. Anderson,

Senior Assistant Attorney General; Rob Bonta, Attorney

General; Attorney General’s Office, San Francisco,

California; for Defendants-Appellees.

FORDLEY V. LIZARRAGA 5

OPINION

CHRISTEN, Circuit Judge:

John Fordley, a former inmate at California’s Mule Creek

State Prison, appeals the district court’s order dismissing his

Eighth Amendment claims against the Mule Creek warden

and several Mule Creek guards. The district court concluded

that Fordley did not satisfy the requirements of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e. We affirm in part,

reverse in part, and remand.

The prison’s failure to respond to Fordley’s March 2016

grievance concerning physical and sexual assault rendered the

administrative appeals process “unavailable” within the

meaning of the PLRA. Thus, the district court erred by

dismissing as unexhausted Fordley’s claims premised on the

March 2016 grievance. But we agree that Fordley failed to

exhaust his claim against the warden, and we affirm the

district court’s dismissal of that claim.

Fordley filed a second grievance in May 2016

complaining of different abuse he suffered after returning to

Mule Creek from a crisis bed at a different prison facility.

That grievance was still pending when Fordley filed his

complaint, so the district court properly deemed the May

2016 grievance unexhausted. Fordley does not appeal the

dismissal of the claims that were premised on his May 2016

grievance.

6 FORDLEY V. LIZARRAGA

I

A

Fordley contends that he was physically and sexually

assaulted in March of 2016 while he was an inmate at Mule

Creek State Prison. He identified four correctional officers as

his attackers: Sergeant Watson and Officers Winkfield,

Garcia and Moore. Fordley’s version of events is that

defendants came to his cell on March 10 after Fordley

objected that he had not received medical supplies. The

defendants harshly rebuked Fordley for complaining and,

over his shouted protests, radioed the watch commander that

Fordley was unresponsive and entered his cell in full tactical

gear. Fordley describes being slammed to the ground and

beaten for a period of five to ten minutes, then being thrown

into a “cage” near the Sergeant’s office, where he remained

while the defendants laughed and bragged to passers-by about

the beating. Fordley claims he was later returned to his cell

without being allowed to receive medical treatment and

asserts that defendants falsified a report stating that he

refused medical attention. Fordley alleges that three of the

four officers returned the next day, wearing face and body

shields, and beat him again. This time, Officer Winkfield

allegedly held Fordley down while Officer Garcia rubbed a

baton on his body in sensitive areas and pressed it “against

[his] anal cavity.” Fordley alleges the officers laughed and

told him “next time the whole baton goes in your a-- .”

On March 15, Fordley was sent to a crisis bed at High

Desert State Prison. There, a nurse documented bruises on

his body and open wounds on his head. Fordley contends he

sustained the wounds in the March 10 and March 11 assaults.

When he returned to Mule Creek on March 24, Sergeant

FORDLEY V. LIZARRAGA 7

Watson and Officers Winkfield and Garcia continued to work

in the unit where Fordley was held. Fordley contends they

harassed him daily by giving him razor blades and

encouraging him to kill himself, threatening to kill him

themselves, threatening future sexual assaults, spitting in his

food, and withholding both meals and sheets.

Fordley filed his first grievance (the March grievance) on

March 27, 2016. He used California Department of

Corrections and Rehabilitation (CDCR) Form 602, the form

required for presenting “Inmate/Parolee Appeals.” Form 602

consists of multiple double-sided pages that are passed back

and forth between the inmate and the prison as the inmate’s

grievance proceeds through each level of review. Thus, as is

the case here, a single Form 602 may contain entries from an

inmate and various prison officials made over the course of

many weeks or even months. The confusing format of Form

602 requires a reader to carefully decipher the chronological

sequence of exchanges between an inmate and the prison to

understand the grievance and response. No copy of Fordley’s

March Form 602 is in the record, but other documents refer

to and describe the grievance. After reviewing the record, the

district court concluded that the grievance qualified as an

emergency grievance because of the nature of its allegations.

Fordley asserts the March grievance lodged complaints

against defendants Watson, Winkfield, Garcia and Moore

arising from the assaults that allegedly occurred on March 10

and 11.

On April 5, Fordley submitted a request for information

about the status of the March grievance using CDCR Form

22, the form for an “Inmate/Parolee Request.” Prison

officials responded the same day, stating: “The appeal you

reference having filed here has been received and will be

8 FORDLEY V. LIZARRAGA

processed in the order received.” A week later, having

received no further response or information about his March

grievance, Fordley submitted a second request for a status

report, using another CDCR Form 22. Fordley wrote that he

filed the March grievance “[b]ecause of safety concerns and

harassment [and] assault by CDCR staff which per (op) is

suposed to be processed immediately. But you[’re] denying

me that, you[’re] refusing to file both of my CDCR [Form]

602s I filed due to assault and discrimination.” In a written

response dated April 14, the prison again acknowledged

receiving Fordley’s March 27 grievance and also

acknowledged receiving his April 12 request for follow up:

“Your two appeals dated 3-27-16 and 4-13-16 have been

received [and] are being processed.” On April 15, Fordley

received another confirmation from the prison that his March

27 grievance had been received. The April 15 notice also

advised that the first-level review was in process, but did not

include a log number or other means of tracking the March

grievance. This notice was the last response Fordley received

concerning the March grievance.

Fordley submitted a second administrative grievance (the

May grievance) on May 8, 2016 concerning events that

occurred after he returned from the crisis bed. In the single

line provided on Form 602 for complainants to “State briefly

the subject of your appeal,” Fordley wrote

“Harassment/Giving me contraband - CDCR staff.” And in

the space that directed “Explain your issue,” Fordley reported

that the same officers who had assaulted him in March had

continued harassing him after he returned from the hospital:

I told you in 4 prior [Form] 602s and CDCR

[Form] 22s that my life was in danger. You

ignored it. I want out of here. There going to

FORDLEY V. LIZARRAGA 9

kill me. This assault and sexual assault took

place March 9th, 10th , 11th 2016. When

returning from the hospital these officers kept

harassing me and threatening me. On May

2nd (one of the COs who sexually assaulted

me on March 10th) became the regular in A5.

I told them for 2 months I wasn’t safe. Now

back in ASU, Officer Winfield [sic] and Sgt

Watson tried to have me kill myself by

handing me a orange razor and told me to kill

myself or they would. I turned it in to a Lt

who 206 told to see me on 5/5/2016 around

7:20 pm. then on 5/6/2016 at breakfast time I

was given another razor by Winfield [sic] and

Officer Garcia which I turned in again to the

same Lt approx: same time 7:20 pm After he

was seeing 206 again, they keep handing me

contraband to kill myself, and if I don’t they

will they say. 106-Mullens and 206 and 205

before they moved them are witnesses. they

refuse to give me meals, sheets . . . You trying

to kill me/set me up.

In short, the May grievance referred to the March assaults to

explain: (1) that Fordley had been expressing concern for his

safety for two months’ time; (2) that the staff involved in the

March assaults continued to work in the area where Fordley

was detained; and (3) that after he returned from the crisis

bed, the same prison guards were giving him contraband,

encouraging him to take his own life, threatening to kill him

themselves, and withholding meals and sheets.

The California regulations governing the process for

reviewing inmate grievances have changed since the time of

10 FORDLEY V. LIZARRAGA

these events, but the scheme that was in place when Fordley

filed his grievances required that inmate complaints

concerning imminent assaults or concerns for an inmate’s

physical safety be given priority and bypass first-level

review.1 See Cal. Code Regs. tit. 15 § 3084.9(a)(4) (2015).

Nevertheless, the response Fordley received on April 15

informed him that his March grievance was being reviewed

at the first level.

On May 19, 2016, Fordley received notice that his May

grievance had been routed directly to second-level review,

and he was interviewed regarding the March and May

incidents. But on July 5, the prison informed Fordley that it

had completed its investigation and determined the staff’s

actions were within department policy. Fordley appealed the

denial of the May grievance to the third level the next day,

strenuously arguing that the prison officials “always try to

push crap under the carpet,” and restating that the same

officers and sergeant who sexually and physically assaulted

him in March were threatening him and refusing to feed him

or give him medical supplies. Fordley wrote, “It took 1 ½

months to accept my complaints. A violation already,” and

went on to recount “being given orange . . . razors to kill

myself, the only way one gets these is from staff.”2

1

Unless otherwise indicated, we cite to the version of the California

Code of Regulations in effect at the time Fordley filed his March

grievance.

2

This portion of the administrative record is difficult to decipher, and

both parties seem to have misread it. We have carefully examined

Fordley’s grievances and the prison’s responses to accurately recount the

sequence of events.

FORDLEY V. LIZARRAGA 11

B

Fordley filed a pro se complaint in the Eastern District of

California pursuant to 42 U.S.C. § 1983 on August 22, 2016.

It alleged that Sergeant Watson and Officers Winkfield,

Garcia and Moore violated his Eighth Amendment right to be

free from cruel and unusual punishment, and that Warden

Lizarraga was deliberately indifferent to the violation of

Fordley’s constitutional rights.3 On March 10, 2017,

approximately ten months after it was filed, Fordley’s May

grievance was denied after the third-level review was

completed. Critically for purposes of this appeal, the third-

level decision limited its description of the May grievance to

staff giving Fordley a razor and telling him to kill himself,

and refusing to give him meals and sheets. The third-level

decision made no mention of the alleged March assaults.

Defendants filed a motion for summary judgment seeking

dismissal of plaintiff’s complaint on the grounds that the

complaint was filed before Fordley had exhausted his

administrative remedies. The district court first granted

summary judgment in favor of defendants on the claims that

Fordley raised for the first time in the May grievance; i.e.,

those concerning defendants’ alleged harassment of Fordley

after he returned from the crisis bed at a separate prison

facility. Fordley does not appeal the dismissal of those

claims.4

3

Fordley named other officers in his complaint, but the district court

dismissed them early in the litigation for improper service.

4

The district court adopted in full the findings and recommendations

of the magistrate judge. References to the district court’s findings

12 FORDLEY V. LIZARRAGA

The district court gave Fordley an opportunity to produce

any evidence he had of the missing March grievance so the

court could determine whether he should be excused from

exhausting his administrative remedies as to that grievance.

The court also allowed defendants twenty-one additional days

to file a supplemental reply after receiving Fordley’s

response.

As directed, Fordley filed a statement explaining the steps

he took to file the March grievance. He also filed the prison’s

April 5 response to the grievance in which the prison

acknowledged receipt of the March grievance and informed

Fordley that the grievance would be “processed in the order

received.” The district court described Fordley’s evidence as

“compelling” proof corroborating his contention that he had

submitted a grievance in March regarding “allegations of

staff assault and an allegation of staff sexual misconduct” by

the defendants. The prison neither produced the March

grievance nor explained what became of it, and the court

decided the prison failed to timely process it.

The district court considered the Ninth Circuit’s decision

in Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005), and

concluded that the Ninth Circuit had not adopted a rule that

delay in responding to a grievance renders administrative

remedies per se unavailable. The court was persuaded by the

decisions of other district courts that a prison’s delay in

responding to an inmate complaint excuses a failure to

exhaust only where the inmate has waited a reasonable period

of time and received no response or explanation for the delay.

Applying that rule to the facts in Fordley’s case, the court

therefore refer to the findings of the magistrate judge, as adopted by the

district court.

FORDLEY V. LIZARRAGA 13

agreed with defendants that an avenue of administrative relief

remained open as of the time Fordley filed his complaint.

The court reasoned that the March 10 and 11 assaults were

mentioned in the May grievance and the May grievance was

still pending when Fordley filed his complaint. Accordingly,

the court ruled that Fordley could not be excused from

exhausting the March grievance. The order memorializes the

court’s impression that the “claims regarding the alleged

assaults were actually eventually exhausted in [the May

grievance].”

The district court also dismissed Fordley’s deliberate

indifference claim against Warden Lizarraga, concluding that

Fordley’s claims against the warden were not exhausted.

Fordley was released from prison in August 2020, but he

timely appealed the district court’s ruling. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the

district court’s judgment in part and affirm it in part.

II

We review de novo a district court’s summary judgment

ruling that an inmate has not exhausted his claims within the

meaning of the Prison Litigation Reform Act (PLRA). See

Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en

banc). The PLRA’s exhaustion requirement is an affirmative

defense. Jones v. Bock, 549 U.S. 199, 216 (2007). The

defendant bears the burden of showing that an administrative

process was available to the inmate and that the inmate failed

to exhaust it. Draper v. Rosario, 836 F.3d 1072, 1079 (9th

Cir. 2016) (citing Albino, 747 F.3d at 1172). Once the

defendant shows that such a remedy was generally available,

the burden shifts to the inmate to show that something in his

14 FORDLEY V. LIZARRAGA

particular case made the generally available administrative

remedies effectively unavailable to him. Id. Because the

failure to exhaust is an affirmative defense that defendants

must plead and prove, the ultimate burden of proving that the

inmate has not exhausted his claims remains with the

defendants. Id.

III

A

Fordley argues the district court erred by granting the

defendants’ summary judgment motion because he fully

exhausted the available administrative remedies for his March

grievance. The PLRA requires inmates to exhaust their

administrative remedies before filing suit: “No action shall

be brought with respect to prison conditions . . . 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); see also Woodford v. Ngo, 548 U.S. 81,

90–91 (2006).

In Woodford, the Supreme Court explained that

exhaustion requires complying with a prison’s “critical

procedural rules” and it is justified by the need to “impos[e]

some orderly structure on the course of its proceedings.”

548 U.S. at 90–91. We recognized in Fuqua v. Ryan,

890 F.3d 838 (9th Cir. 2018), that requiring exhaustion serves

other important objectives, including “alert[ing] prison

officials to ‘the nature of the wrong for which redress [is]

sought,’” and allowing prisons “to take corrective action

where appropriate.” Id. at 844 (quoting Griffin v. Arpaio,

557 F.3d 1117, 1120 (9th Cir. 2009) and citing Reyes v.

Smith, 810 F.3d 654, 658 (9th Cir. 2016)). “Exhaustion also

FORDLEY V. LIZARRAGA 15

allows a prison’s administration ‘to address complaints about

the program it administers before being subjected to suit,

reducing litigation to the extent complaints are satisfactorily

resolved, and improving litigation that does occur by leading

to the preparation of a useful record.’” Id. (quoting Jones,

549 U.S. at 219).

After Woodford, the Supreme Court clarified in Ross v.

Blake, 136 S. Ct. 1850 (2016), that because the PLRA only

requires exhaustion of “available” remedies, “an inmate is

required to exhaust those, but only those, grievance

procedures that are capable of use to obtain some relief for

the action complained of.” Id. at 1858–59 (internal quotation

marks omitted) (quoting Booth v. Churner, 532 U.S. 731, 738

(2001)). To exhaust administrative remedies, inmates must

comply with the prison’s “deadlines and other critical

procedural rules.” Woodford, 548 U.S. at 90.

The Supreme Court has recognized three situations in

which an administrative remedy is unavailable: (1) “when

(despite what regulations or guidance materials may promise)

it operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved

inmates”; (2) if it is “so opaque that it becomes, practically

speaking, incapable of use”; and (3) “when prison

administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or

intimidation.” Ross, 136 S. Ct. at 1859–60.

We have recognized specific circumstances that render

administrative remedies unavailable, see, e.g., Andres v.

Marshall, 867 F.3d 1076, 1078–79 (9th Cir. 2017), and on

more than one occasion have found administrative processes

effectively “unavailable even though they exist on the

16 FORDLEY V. LIZARRAGA

books,” Fuqua, 890 F.3d at 849. For example, in Marella v.

Terhune, 568 F.3d 1024 (9th Cir. 2009) (per curiam), we held

an administrative remedy was effectively unavailable because

the inmate did not have access to the proper grievance form

within the prison’s time limits for filing a grievance. Id.

at 1026. In Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010),

an administrative remedy was unavailable because the inmate

would have needed to access an unobtainable policy in order

to bring a timely administrative appeal. Id. at 1226. Our

court sitting en banc also concluded that administrative

remedies were unavailable where a manual describing the

complaint process was kept from inmates. Albino, 747 F.3d

at 1173–75.

Most relevant here, where inmates take reasonably

appropriate steps to exhaust but are precluded from doing so

by a prison’s erroneous failure to process the grievance, we

have deemed the exhaustion requirement satisfied. Andres,

867 F.3d at 1079; Sapp v. Kimbrell, 623 F.3d 813, 823 (9th

Cir. 2010) (“If prison officials screen out an inmate’s appeals

for improper reasons, the inmate cannot pursue the necessary

sequence of appeals, and administrative remedies are

therefore plainly unavailable.”). Where no administrative

relief is available, requiring exhaustion contradicts the

PLRA’s purpose and it is not required. See Andres, 867 F.3d

at 1079.

Fordley contends the prison never substantively

responded to his March grievance and that its failure to do so

rendered the generally available administrative remedies

effectively unavailable to him. Defendants counter that

because Fordley’s May grievance mentioned the alleged

March assaults—and because the May grievance had not been

finally denied when Fordley filed his complaint—there were

FORDLEY V. LIZARRAGA 17

still administrative remedies available and his complaint was

properly dismissed. Because this appeal requires us to decide

whether Fordley exhausted all of the administrative remedies

available to him, we describe in some detail the

administrative grievance process that was in effect when

Fordley attempted to grieve the assaults that allegedly

occurred on March 10 and 11.

B

The regulations in effect when Fordley filed the March

grievance required inmates to use Form 602 and established

a three-level review process that inmates initiated by filing

grievances with the prison’s appeals coordinator. Cal. Code

Regs. tit. 15, §§ 3084.2(a), 3084.7. The regulations required

inmates to submit their grievances within thirty calendar days

of “[t]he occurrence of the event or decision being appealed.”

§ 3084.8(b)(1).

The operative regulations generally required the prison to

respond to grievances within thirty working days.5 See

§§ 3084.7(h), 3084.8(c)(1)–(3). Inmates dissatisfied with the

prison’s first-level review were allowed to appeal to a second

level, § 3084.7(b), and then to a third-level review conducted

under the Appeals Chief’s supervision, §§ 3084.7(d)(3),

3084.8(c)(3). Prison administrators were allowed thirty

working days to respond to second-level grievances and sixty

working days to conduct third-level reviews. § 3084.8(c).

The operative regulations allowed prisons the discretion to

5

The regulations allowed the prison more time to respond to non-

emergency grievances, if the prison notified the inmate of the reason extra

time was needed and the inmate was given a new estimated response date.

Cal. Code Regs. tit. 15, § 3084.8(d), (e).

18 FORDLEY V. LIZARRAGA

dismiss inmates’ grievances if the inmates failed to comply

with any of their filing deadlines. § 3084.6(c)(4).

The regulations called for much more expedited review of

emergency grievances. Emergency grievances were those

raising “serious and imminent threat[s] to health or safety,”

such that “the regular appeal time limits would subject the

inmate . . . to a substantial risk of personal injury or cause

other serious and irreparable harm.” § 3084.9(a)(1). The

regulations required emergency grievances to be sent directly

to the second level, where prison administrators were allotted

just five working days to respond. § 3084.9(a)(4). If a

grievance was “received as an emergency” but prison

officials later determined that it did not meet the emergency

criteria, another regulation required the prison to notify the

inmate that the grievance would not be treated as an

emergency and also required the prison to give notice

whether the grievance was accepted for regular processing or

rejected. § 3084.5(b)(2).

C

After reviewing Fordley’s supplemental filing, the district

court determined that Fordley’s March grievance alleged

physical and sexual assault by defendants and that the prison

was required to treat Fordley’s March grievance as an

emergency.6 On appeal, defendants begin by arguing it

cannot be determined whether the grievance sufficiently

6

The district court mistakenly cited to newer regulations that require

a response to allegations of sexual assault within 48 hours. The regulation

in effect in March of 2016 required prison officials to respond to

emergency grievances within five working days. Cal. Code Regs. tit. 15,

§ 3084.9(a)(4).

FORDLEY V. LIZARRAGA 19

explained the nature of Fordley’s allegations without a copy

of the March grievance, and they suggest the March

grievance may not have demonstrated that it warranted

emergency processing. For several reasons, defendants’

arguments are unavailing.

First, the failure to exhaust administrative remedies is an

affirmative defense for which defendants bear the initial

burden of showing that an administrative process was

available. Albino, 747 F.3d at 1172. Defendants also bear

the ultimate burden of proof. Id. Although Mule Creek

generally had an administrative process for handling

emergency grievances, Fordley demonstrated that the

grievance process was effectively unavailable to him because

the prison never responded to the March grievance. See

Andres, 867 F.3d at 1079 (“When prison officials improperly

fail to process a prisoner’s grievance, the prisoner is deemed

to have exhausted available administrative remedies.”). The

prison acknowledged receipt of Fordley’s March grievance

three times, yet they failed to assign it a log number for

tracking purposes and never substantively respond to it. In

contrast, the prison’s response to Fordley’s May grievance

contains a log number, the date received, and a note that

“[l]og numbers are assigned to all appeals for tracking

purposes.” The record does not include the precise language

Fordley used to report the March assaults because the Form

602 was lost. The prison’s acknowledgment of the March

grievance only stated the date Fordley submitted it and

memorialized that the grievance was “in process.” But on

this record, the fact the March grievance is missing must be

attributed to a failure of the prison’s grievance processing

system.

20 FORDLEY V. LIZARRAGA

Defendants and the dissent speculate that the March

grievance may not have signaled that Fordley was reporting

an imminent risk to his health or safety. But as the district

court recognized, Fordley’s April follow-up inquiries

unambiguously put the prison on notice that he felt his life

was in danger. The only response he received from the prison

informed him that the grievance was “in process” at the first

level, contrary to § 3084.9(a)(4), which required the March

emergency grievance to bypass the first-level review

altogether.

On April 12, Fordley submitted a CDCR Form 22 in

another attempt to prompt a response to the March grievance.

He wrote that the March grievance raised “safety concerns

[and] harassment and assault by . . . staff,” (emphasis added),

and he alerted the prison that his grievance was to be

“processed immediately.” We read this record the way the

district court did, and conclude the April 5 and 12 follow-up

requests transparently communicated that Fordley’s

complaint was one that qualified as an emergency grievance

under the operative regulations. Further, the April requests

provide unrefuted evidence that Fordley contemporaneously

conveyed his sense of urgency to the officials at Mule Creek.

Defendants point to no evidence to support their suggestion

that Fordley’s characterization of the March grievance may

be a post hoc litigation strategy.

The May grievance also sheds light on how Fordley

described the March assaults. Though the dissent repeatedly

treats the May grievance as if it merely reasserted Fordley’s

complaint about the assaults that occurred in March, the May

grievance called prison officials’ attention to events that

allegedly transpired after the March assaults, and after

Fordley returned to Mule Creek from a crisis bed at a separate

FORDLEY V. LIZARRAGA 21

facility. In the process of explaining the harassment and

threats that allegedly transpired after Fordley returned from

the crisis bed, the May grievance asserted that the guards who

were harassing him in May were some of the same guards

who had physically and sexually assaulted him in March.

The May grievance also gave notice that Fordley felt his life

was in danger.7

The district court correctly ruled that the operative

regulations required the prison to treat the March grievance

as an emergency. See Cal. Code Regs. tit. 15 § 3084.9(a)(1)

(defining circumstances constituting an emergency). As

such, the prison was required to complete its second-level

review within five working days. § 3084.9(a)(4) (“If

emergency processing is warranted, . . . the second level

review shall be completed within five working days”

(emphasis added)); § 3000.5(c) (defining “shall” as

“mandatory”). Yet the prison did not respond.

7

The prison’s response confirms that it read the May grievance the

same way. As the Supreme Court explained in Woodford v. Ngo, 548 U.S.

81 (2006), an inmate must initially fill out two parts of Form 602: in part

A the inmate must describe the basis for his complaint; and in part B the

inmate must describe the relief he seeks. See id. at 85. Part C of Form

602 provides a space for the prison to respond to the inmate’s complaint,

and part D provides a space for the inmate to indicate whether he is

dissatisfied with the prison’s first-level response. In part E, the prison

notifies the inmate of its decision on second-level review, and in part F,

the inmate may request third-level review. Having carefully retraced the

language Fordley used in parts A and B of his May 8, 2016 grievance; the

prison’s response in part E dated July 5, 2016; and Fordley’s request for

third-level review in part F dated July 6, 2016; it is apparent that the initial

May grievance complained about events that occurred after Fordley

returned from the crisis bed, not the March 10 and 11 assaults.

22 FORDLEY V. LIZARRAGA

In Andres, our court considered whether an administrative

remedy was rendered unavailable to an inmate who had

submitted a first-level grievance, received no response for six

months, and then filed suit. 867 F.3d at 1077–78. We

concluded the grievance process was effectively unavailable

because the prison’s failure to respond thwarted the inmate

from taking advantage of the grievance system. Id. at 1079.

And in Brown, we specifically cautioned that “[d]elay in

responding to a grievance, particularly a time-sensitive one,

may demonstrate that no administrative process is in fact

available.” 422 F.3d at 943 n.18 (emphasis added). Every

circuit to have considered the issue has agreed that a prison’s

failure to respond renders an administrative remedy

unavailable.8 Our court has also expressly recognized that

8

See Hayes v. Dahlke, 976 F.3d 259, 270–71 (2d Cir. 2020); Shifflett

v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019) (“[W]e hold that as soon

as a prison fails to respond to a properly submitted grievance or appeal

within the time limits prescribed by its own policies, it has made its

administrative remedies unavailable and the prisoner has fully discharged

the PLRA’s exhaustion requirement.”); Moore v. Bennette, 517 F.3d 717,

725 (4th Cir. 2008) (holding an inmate who uses all available remedies

has exhausted “even if prison employees do not respond”); Boyd v. Corr.

Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (holding “that

administrative remedies are exhausted when prison officials fail to timely

respond to a properly filed grievance”); Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002) (“[T]he failure to respond to a grievance

within the time limits contained in the grievance policy renders an

administrative remedy unavailable . . . .”); Lewis v. Washington, 300 F.3d

829, 833 (7th Cir. 2002) (agreeing remedies are exhausted “when prison

officials fail to respond to inmate grievances because those remedies had

become unavailable,” because the court “refuse[d] to interpret the PLRA

so narrowly as to permit prison officials to exploit the exhaustion

requirement through indefinite delay in responding to grievances”

(internal quotation marks and alterations omitted)); Foulk v. Charrier,

262 F.3d 687, 698 (8th Cir. 2001) (agreeing inmate’s administrative

proceedings were not available when prison did not respond to complaint).

FORDLEY V. LIZARRAGA 23

once an administrative remedy is exhausted, a claimant need

not do more. See id. at 935 n.10 (observing that “over-

exhaustion” is not required); accord Williams v. Wexford

Health Sources, Inc., 957 F.3d 828, 833–34 (7th Cir. 2020)

(explaining inmates must complete the prison’s required

steps, but that “does not mean that [an] inmate must go

beyond the established system and guess at some other way

of attracting the attention of the prison authorities”).

Defendants next contend that, by filing his May

grievance, Fordley initiated a new round of administrative

review of the March assault allegations. Their argument is

that by accepting the May grievance and processing it, the

prison corrected its failure to respond to the March grievance

and provided an avenue for Fordley to secure administrative

relief. In other words, defendants contend that Fordley’s May

grievance had the effect of unexhausting the March

grievance.

The first problem with defendants’ argument is that it is

premised on a version of the facts that is not supported by the

administrative record. The record establishes that the

subjects of Fordley’s May grievance were events that

occurred after he returned to Mule Creek from the crisis bed

at a separate facility, not the March assaults. Beginning with

his succinct description in the space on the Form 602 that

directs inmates to “State briefly the subject,” Fordley wrote

that the May grievance concerned “Harassment/Giving me

contraband - CDCR staff,” and went on to describe actions

that allegedly took place after he returned from the hospital,

well after the alleged March 10 and 11 assaults.

The record does show that the prison responded to the

May grievance by interviewing Fordley twice. One interview

24 FORDLEY V. LIZARRAGA

concerned the March assaults and one addressed the events

that allegedly transpired after Fordley returned from the off-

site crisis bed. Defendants suggest that if an inmate files

duplicative grievance forms, the inmate is obliged to await

the prison’s response before filing suit. But defendants offer

no support for this proposition, and even if we were to accept

it, the text of Fordley’s May 8 grievance refutes the

applicability of such a rule here because Fordley’s May

grievance was not duplicative of his March grievance.

Fordley’s entries in parts A and B of the May 8 Form 602

show Fordley was grieving new threats and harassment. The

prison’s choice to respond to the May grievance by

interviewing Fordley about the March assaults cannot be

accurately described as an attempt by Fordley to give the

prison officials another shot at responding to the March

assaults. And contrary to the defendants’ argument on appeal

and the district court’s ruling, the prison’s third-level

response leaves no doubt that the prison did not consider the

May grievance to include the March allegations. The prison’s

third-level response stated:

I. Appellant’s Argument: It is appellant’s

position that Mule Creek State Prison (MCSP)

staff tried to have him kill himself by handing

him a razor. The appellant asserts that

Correctional Officer (CO) Winkfield and

Correctional Sergeant Watson gave him a

razor and told him to kill himself. The

appellant contends that he gave the razor to a

Correctional Lieutenant. The appellant claims

that on May 5, 2016, he was given another

razor by CO Winkfield and CO Garcia, which

he again gave to the same Correctional

Lieutenant. The appellant states they keep

FORDLEY V. LIZARRAGA 25

giving him contraband to kill himself and they

are refusing to give him meals and sheets.

The appellant requests that he be moved.

In short, the May grievance was not directed at the March

assaults and was not understood by the prison officials to be

a complaint about those assaults. Contrary to the district

court’s ruling, the prison’s third-level response expressly

resolved only the May grievance.

Even if the May grievance had comprised an

unambiguous, standalone reassertion of a grievance

concerning the March assaults, we have no case law

supporting defendants’ suggestion that an inmate’s

reassertion of a concern—especially a request for a response

to an ignored emergency grievance—somehow operates to

unexhaust a previously exhausted claim. Cf. Brown, 422 F.3d

at 935 n.10 (concluding that there is no requirement for “an

inmate to continue to appeal a grievance once relief is no

longer ‘available’”). Nor can we see how such a rule could

be reconciled with the PLRA’s goal of an orderly claims

process. See Fuqua, 890 F.3d at 844 (explaining one of the

PLRA’s purposes is to “impos[e] some orderly structure on

the course of its proceedings” (alteration in original) (quoting

Woodford, 548 U.S. at 90–91)).

We cannot agree with defendants’ suggestion that an

unexhausted second grievance that mentions the factual

context underlying an earlier, ignored grievance renders the

first grievance unexhausted. The unworkability of this

argument is best illustrated by considering how it would

apply to inmates who claim to have suffered retaliation in

response to filing a grievance. Where retaliation is alleged,

inmates typically file an initial grievance and follow it with

26 FORDLEY V. LIZARRAGA

a second grievance describing retaliatory action(s) taken in

response to the first grievance. It is unreasonable to expect

that an inmate would describe retaliatory conduct in a

subsequent grievance without mentioning the initial

grievance. Cf. Rhodes v. Robinson, 408 F.3d 559, 563 (9th

Cir. 2005). But by the defendants’ and dissent’s reckoning,

any mention of a first and unanswered grievance in a second

grievance would render the first grievance unexhausted.

Defendants and the dissent also overlook that their

interpretation of the regulations would leave Fordley with no

recourse after the defendants failed to respond to the March

grievance, a result entirely contrary to the goals and purpose

of the PLRA. It is undisputed that after he filed the March

grievance, the regulatory scheme severely cabined Fordley’s

options: it did not allow him to file a second grievance, Cal.

Code Regs. tit. 15, § 3084.6(b)(1), or a duplicate grievance,

§ 3084.6(c)(2), or an untimely grievance concerning the

March assaults, § 3084.6(c)(4). Further, as defendants

conceded at oral argument, Fordley would not have been

allowed to file an appeal to the next level of review because

he had not received a response from the prison. Fordley’s

only recourse to the prison’s silence was to file requests for

information using CDCR Form 22 (Inmate/Parolee

Request)—which he did—and to wait. After several months,

it was apparent that no substantive response to his March

grievance was forthcoming, and Fordley was permitted to file

suit.

Boiled down, defendants’ suggestion is that we should

consider the prison’s response time to be so flexible that an

administrative process would be deemed unexhausted when

a prison neither responds nor provides notice that additional

time is needed. Such a rule would obliterate the primary

FORDLEY V. LIZARRAGA 27

incentive for prisons to respond to inmates’ grievances and

leave inmates and courts guessing about whether and when

suit may be filed. Yet the Supreme Court has cautioned that

“no adjudicative system can function effectively without

imposing some orderly structure on the course of its

proceedings.” Woodford, 548 U.S. at 90–92.

Defendants’ fallback argument is that we should not

rigidly apply the response times in the regulations. See Cal.

Code Regs. tit. 15, §§ 3084.9(a)(4), 3000.5(c). They urge us

to consider California’s deadlines for prison responses to be

flexible because § 3000.5(f) “do[es] not create a right to have

[a] specified action taken within the time limits.” But the

regulations in effect in March 2016 prohibited prison officials

from obtaining extensions of time to respond to emergency

grievances. See § 3084.8(c), (f). Further, defendants’

suggestion that they can benefit from a flexible view of the

prison’s allowable response times appears to be based on

their contention that they were entitled to thirty working days

to respond to Fordley’s grievance. That assertion, in turn, is

premised on defendants’ continued and unavailing position

that the March grievance did not allege an emergency. We

agree with the district court that the record confirms the

grievance was submitted, and the prison was on notice that

Fordley was raising an emergency situation. From there, it

follows that regulations allowed the prison just five working

days to complete its second-level review. § 3084.9(a)(4).

Because the prison never responded, viewing the allowable

response times as flexible does not help the defendants in this

case. The prison was not just tardy in responding to the

March grievance; it never responded at all.

We hold that a later-filed grievance that alleges new

complaints but refers to a previous and already-exhausted

28 FORDLEY V. LIZARRAGA

grievance for context does not render the first grievance

unexhausted. Accordingly, while the district court correctly

ruled that an avenue of administrative relief remained open

for Fordley’s May grievance at the time Fordley filed his

complaint, Fordley’s May Form 602 did not render his March

grievance unexhausted. Defendants’ contrary rule would

thwart the orderly process Congress envisioned when it

required compliance with an agency’s internal administrative

rules, because inmates—and courts—must know when

remedies are exhausted. See Ross, 136 S. Ct. at 1859; Ahktar

v. Mesa, 698 F.3d 1202, 1211–12 (9th Cir. 2012) (reversing

dismissal of inmate’s complaint because he had exhausted the

grievance process; the exhaustion of another grievance

arising from the same issue, after the complaint was filed,

was “immaterial”). We need not and do not decide whether

to adopt a bright-line rule that any delay in a prison’s

response to an inmate’s grievance is sufficient to render

administrative remedies unavailable. Cf. Shifflett, 934 F.3d

at 366. Nor, contrary to the dissent’s assertion, do we suggest

that deeming Fordley’s March grievance exhausted is an

equitable or discretionary remedy. By any measure, the

prison’s failure to respond to Fordley’s emergency grievance

over the course of several months rendered Fordley’s

administrative remedies unavailable.

IV

Fordley’s complaint also asserted a deliberate

indifference claim against Warden Lizarraga for ignoring

defendants’ assaultive and harassing conduct. The district

court dismissed this claim for failure to exhaust because

Fordley’s grievances did not “name or refer to” the warden.

Fordley does not dispute that he did not name Warden

Lizarraga in his March grievance. Indeed, none of Fordley’s

FORDLEY V. LIZARRAGA 29

administrative filings named the warden, nor did they

describe the warden taking, or failing to take, actions that

deprived Fordley of any federally guaranteed right. Fordley

argues that his March grievance should have put the prison on

notice that he intended to assert a deliberate indifference

claim against the warden. “[W]hen a prison’s grievance

procedures are silent or incomplete as to factual specificity,

‘a grievance suffices if it alerts the prison to the nature of the

wrong for which redress is sought.’” Griffin, 557 F.3d

at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.

2002)). Here, there was no indication that any of Fordley’s

administrative complaints suggested the warden was aware of

defendants’ alleged conduct. On this record, the district court

correctly ruled that Fordley did not exhaust his claim against

Warden Lizarraga.

REVERSED IN PART, AFFIRMED IN PART,

REMANDED.

BADE, Circuit Judge, dissenting:

In March, May, and June 2016, while he was an inmate at

Mule Creek State Prison in California, John Fordley filed a

series of three administrative grievances in which he alleged

that correctional officers assaulted and harassed him and that

the warden was deliberately indifferent to this conduct.1 In

1

Most of Fordley’s claims, which the majority describes at length, are

not at issue in this case. There is no dispute that Fordley failed to exhaust

administrative remedies for his claims that the defendants tampered with

his food, threatened future assaults, identified Fordley as a racist and sex

offender before other inmates, and provided him with razor blades and

30 FORDLEY V. LIZARRAGA

August 2016, while the claims he asserted in these grievances

were still pending in the administrative review process before

prison officials, Fordley sued the warden and several

correctional officers, pursuant to 42 U.S.C. § 1983, and

alleged that they subjected him to cruel and unusual

punishment in violation of his Eighth Amendment rights.

The district court granted summary judgment and

dismissed Fordley’s claims without prejudice because it

concluded that Fordley did not comply with the Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, which

requires that a prisoner exhaust administrative remedies

before filing suit.2 As the district court correctly concluded,

at the time Fordley filed suit “an avenue of administrative

relief remained open to him on his claims—the third level of

review for” the grievance he filed in May 2016. Therefore,

Fordley had not exhausted administrative remedies before

filing suit.

The majority, however, concludes that because the prison

did not timely respond to Fordley’s earlier grievance, filed in

March 2016, “the administrative appeals process [was]

encouraged him to kill himself. The district court dismissed these claims

without prejudice, and Fordley did not challenge the dismissal of these

claims on appeal. Moreover, as the majority correctly concluded, Fordley

failed to exhaust remedies for his claim against Warden Lizarraga, and the

district court correctly dismissed this claim. Maj. Op. 28. Therefore, this

appeal addresses only his claims that he was physically and sexually

assaulted on March 10 and 11, 2016.

2

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 administrative remedies as are available are exhausted.”

42 U.S.C. § 1997e(a).

FORDLEY V. LIZARRAGA 31

‘unavailable’ within the meaning of the PLRA.” Maj. Op. 5.

Remarkably, the majority reaches this conclusion even

though the prison was reviewing those claims on the merits

in response to Fordley’s subsequent grievance, filed in May

2016. See Maj. Op. 18, 27–28.

The majority relies, in part, on a characterization of

Fordley’s grievances that cannot be squared with the record.

Specifically, the majority asserts that Fordley did not assert

the claims at issue here—that he was physically and sexually

assaulted—in his May 2016 grievance, but instead only

alleged those claims in his March 2016 grievance. The

majority reasons that Fordley exhausted remedies for these

assault claims and that they were not “unexhausted” by his

subsequent grievance and the prison’s investigation of these

claims on the merits. Maj. Op. 23, 25, 27–28.

Thus, the majority wrongly concludes that courts can

deem a prisoner’s claims exhausted if prison officials failed

to timely respond to a grievance, even if administrative

remedies are available at the time the prisoner files suit.

Maj. Op. 22, 25–28. But in Ross v. Blake, the Supreme Court

rejected such equitable exceptions to the PLRA’s exhaustion

requirement and explained that the statute unambiguously

provides that “[n]o action shall be brought” absent exhaustion

of available administrative remedies. 136 S. Ct. 1850, 1856

(2016) (quoting 42 U.S.C. § 1997e(a)). Therefore, if

administrative remedies are available, a prisoner has not

exhausted his claims under the mandatory terms of the PLRA.

Id.

While I agree that in some circumstances a prison’s

failure to timely respond to a prisoner’s grievance may

prevent the prisoner from using the grievance system, thus

32 FORDLEY V. LIZARRAGA

rendering administrative remedies unavailable, see Maj.

Op. 22 & n.8, the majority’s holding goes far beyond that

unremarkable proposition. And although the majority

disavows any bright-line test, Maj. Op. 28, its exhaustion

analysis in effect establishes a rule that a prison’s failure to

timely respond to a grievance means a prisoner’s claims are

deemed exhausted, even if administrative remedies are

available. Maj. Op. 19, 22–23, 25–26, 27–28. Because the

majority mischaracterizes the record and its analysis cannot

be reconciled with the PLRA’s mandatory exhaustion

requirement and the Supreme Court’s explication of that

requirement in Ross, 136 S. Ct. at 1856–58, I respectfully

dissent.

I.

The majority mischaracterizes the record to assert that

Fordley alleged that he was physically and sexually assaulted

on March 10 and 11, 2016 only in the March grievance and

that he merely “referred to” or “mentioned” these alleged

assaults in the May grievance to provide context for his other

claims. Maj. Op. 9, 12, 16–17, 23–25, 27. Based on this

false premise, the majority asserts that even though prison

officials accepted Fordley’s May grievance and investigated

the merits of Fordley’s claims that on March 10 and 11, 2016

he was physically and sexually assaulted, the prison did not

respond to the March grievance and therefore administrative

remedies were unavailable to him. Maj. Op. 19, 21, 22–24.

Although lengthy, the following detailed examination of

Fordley’s grievances and the prison’s responses is necessary

to clarify the record.

As an initial matter, it is worth noting that Fordley

admitted in his complaint that his requests for administrative

FORDLEY V. LIZARRAGA 33

relief on his claims were “pending” and “still in Sacramento

at Chief of Appeals Office.”3 Even if we were to disregard

these sworn statements in Fordley’s complaint as mistaken,

we cannot disregard the record. And, as set forth below, the

record overwhelmingly supports Fordley’s admissions that he

did not exhaust his administrative remedies for his claims.

The record clearly establishes the following timeline for

Fordley’s March, May, and June 2016 administrative

grievances, including the specific claims in each of those

grievances.

1. March 2016 Grievance. The March 2016 grievance

is not in the record because neither party has possession of it,

but the defendants do not dispute that Fordley filed a

grievance on March 27, 2016, and that prison staff received

it on March 28, 2016. The only information in the record

about this grievance comes from Fordley’s subsequent

requests for information (CDCR Form 22s) that he filed on

April 5, 2016 and April 12, 2016.

a. On April 5, 2016, Fordley filed a request for

information that focused on a grievance about missing

property that he had filed at a different prison. But he

included a final sentence stating: “I filed a staff assult

complaint here in March havent heard noth.”4 Prison staff

responded to his statement about the March grievance by

3

In his complaint, Fordley asserted three claims and for each claim

stated that administrative remedies were available for his claims, that he

submitted a request for administrative relief, and that his “appeal [of his]

request for relief . . . to the highest level” was “pending.”

4

The quoted language from Fordley’s grievances, requests for

information, and other filings includes his errors in spelling, punctuation,

and grammar. I have omitted using “sic” to indicate these errors.

34 FORDLEY V. LIZARRAGA

stating: “The appeal you reference having filed here has been

received and will be processed in the order received.”

b. On April 12, 2016, Fordley filed another CDCR

22 stating:

I filed a CDCR 602 because of safty concerns

and harrassment & assult by CDCR staff

which per (op) is susposed to be processed

immediately. But your dening me that. Your

[illegible] to file both of my CDCR 602s I

filed due to assult and discrimination. Why?

Ive written the wardens office and internal

affairs as well as my attorney, Sacramento &

appeals coordinator due to this hatred &

discrimination against me.

In response, prison staff noted at the bottom of the form:

“Your two appeals dated 3-27-16 and 4-13-16 have been

received + are being processed.”

c. On April 15, 2012, prison staff sent Fordley a

CDCR Form 695, Screening for CDCR 602 Inmate/Parolee

Appeals, “RE: Screening at the FIRST level.” This form

advised Fordley as follows: “Appeal Received, 03/28/2016;

Appeal dated 03/27/16.” It further stated: “Be advised that

your appeal was previously received and is in process.”

From Fordley’s requests for information about the

processing of his March 2016 grievance, we can determine

only that he described his March 2016 grievance as alleging

that on some unspecified date or dates in March 2016,

unnamed CDCR staff subjected Fordley to safety concerns,

harassment, and assault—purportedly requiring immediate

FORDLEY V. LIZARRAGA 35

processing as a result—and that unnamed CDCR staff further

subjected him to “assult and discrimination” as well as

“hatred and discrimination.”5

2. May 2016 Grievance. On May 8, 2016, Fordley filed

a grievance on CDCR Form 602, and it was assigned Log No.

MCSP-C-16-01365. Near the top of the form, on the line

directing the filer to “State briefly the subject of your appeal

(Example: damaged TV, job removal, etc.),” Fordley wrote:

“Harrassment/Giving me Contraband—CDCR Staff.” In the

first section of the form, Section A, which instructs the filer

to “Explain your issue,” Fordley stated:

In March on the 26th 2016, I filed a sexual

assult complaint against officers in ASU

Building 12, I also filed a assult complaint

5

On this scant record, the majority suggests that we can determine

that Fordley’s March 2016 grievance asserted an emergency claim and

should have been processed in five days. Maj. Op. 18–21; Cal. Code

Regs. tit. 15, § 3084.9(a)(1), (4) (2015). The majority asserts that the

district court also reached this conclusion. Maj. Op. 21. But the district

court improperly relied on section 3084.9(a)(5), which was not in effect

at the time Fordley filed his March grievance. See Cal. Code Regs. tit. 15,

§ 3084.9(a)(5) (2016) (stating that “[a] grievance in whole or part

containing allegations of sexual violence or staff sexual misconduct shall

be processed as an emergency appeal”). Moreover, the majority does not,

and cannot, cite any support for its suggestion that because the prison did

not timely respond to an emergency appeal, administrative remedies were

not available to Fordley. Indeed, the majority’s argument is defeated by

Booth v. Churner, where the Court held that the unavailability of a

specific form of relief does not render administrative remedies

unavailable. 532 U.S. 731, 736, 738–41 & n.6 (2001) (holding that

prisoner had to exhaust available administrative procedures even though

they could not result in the relief he sought, namely damages). Here,

regardless of the availability of emergency processing, regular processing

provided the opportunity for some relief for Fordley’s claims. See id.

36 FORDLEY V. LIZARRAGA

against officers in B Complex. All this assult

and sexual assult took place March 9th, 10th,

11th 2016, when returning from the hospital

these officers kept harrassing me and

threatening me. On May 2nd (one of the C/Os

who sexually assaulted me on March 10th

2016,) became the regular in A5. I told them

for 2 months I wasnt safe. Now back in ASU,

Officer Winfield and Sgt Watson tried to have

me kill myself by handing me a orange razor

and told me to kill myself or they would. I

turned it in to a Lt, who 206 told to see me on

5/5/2016 around 720 pm, then on 5/6/2016 at

breakfast time I was given another razor by

Winfield and Officer Garcia which I turned in

again to the same Lt Appret: same time 720

pm after he was seeing 206. Again, they keep

handing me contraband to kill myself, and if

I dont they will they say 106-Mullers and 206

and 205 before they moved them are

witnesses. They refuse to give me meals

sheets, ect. You trying to kill me/set me up.

a. On May 11, 2016, prison staff indicated in

Sections C and D of the May grievance form that the first

level of review was “bypass[ed].” That same day, prison

officials also sent Fordley a CDCR Form 695 Screening for

Inmate/Parolee Appeals, “RE: Screening at the FIRST level,”

for Log. No. MCSP-C-16-01365, “STAFF COMPLAINTS,

Sexual Misconduct, 05/11/2016.” This form stated: “Be

advised your appeal was received and is in process.”

b. On May 19, 2016, prison staff indicated in Section

E of the May grievance form that the grievance was accepted

FORDLEY V. LIZARRAGA 37

at the second level of review. That same day, prison officials

sent Fordley an Inmate Appeal Assignment Notice, regarding

Log No. MCSP-C-16-01365, identifying the appeal issue as

“Staff Complaints.”

c. On June 22, 2016, prison officials sent Fordley a

memorandum entitled “Staff Complaint Response—Appeal

# MCSP-C-16-01365 Second Level Response.” This

memorandum describes the “appeal issue,” in relevant part,

as follows6:

FORDLEY’s appeal alleges Correctional

Officer M. Winkfield, Correctional Officer K.

Garcia, and Sergeant J. Watson battered and

sexually assaulted him on March 10, 2016.

On this same date, FORDLEY alleges Sgt.

Watson taunted him while FORDLEY was

being held in a holding cell in Building 12.

FORDLEY alleges Officers Winkfield and

Officer Garcia battered and sexually assaulted

him on March 11, 2016.

This memorandum also advised Fordley that his claims were

“[b]eing processed as an Appeal Inquiry.”

Next, the memorandum summarized the appeal inquiry

and described, in detail, the two interviews Fordley had with

reviewer J. Carrillo on May 10, 2016 and June 7, 2016. In

6

I have omitted the description of Fordley’s allegations that on May

5 and 6, 2016, Officers Winkfield and Garcia gave him razor blades and

told him to kill himself and that staff in Building 12 refused to provide

him meals.

38 FORDLEY V. LIZARRAGA

the May 10, 2016 interview, Fordley described the physical

and sexual assaults on March 10 and 11, 20167:

On May 10, 2016, I conducted an interview

with you in ASU regarding your misconduct

allegations against staff in Building 12. You

stated on March 9, 2016, you arrived to

MCSP and subsequently remanded to ASU

after being involved in a physical altercation

with an inmate on Facility “B.” You state on

March 10, 2016, when you complained to

staff in Building 12 you were not receiving

your medical supplies, Sgt. Watson,

Winkfield and Garcia arrived at your door and

stated, “F-ck you. You’re not getting nothing.

We don’t put up with this crap over here.

Listen to us or we’re going to make you

listen.” Upon making this statement, you

claim Watson immediately announced (via

radio) that he had an unresponsive inmate and

proceeded to enter [your] cell with Winkfield

and Garcia. During the extraction, you claim

Winkfield utilized the shield and “cracked

your head open” after you rushed staff. You

stated after you were slammed to the floor,

staff began to punch and kick you. You claim

it was during this time, Winkfield placed his

7

In the June 7, 2016 interview, Fordley described his allegations that,

on May 5 and 6, 2016, Officers Winkfield and Garcia gave him

razorblades and implied that he should kill himself and that they told him

to kill himself or they would kill him. Fordley also described his

allegations that staff in Building 12 were refusing to feed him, and that he

had lost a substantial amount of weight and was emaciated.

FORDLEY V. LIZARRAGA 39

“knight stick” (baton) between [your]

buttocks and laughed and stated, “Next time

I’ll put it inside your a--.” You claim after

you were placed in handcuffs, you were

escorted out of the cell and placed in a

holding cell. You claim as you were in the

holding cell, Sgt. Watson began to taunt you

by bragging about the extraction. When asked

if you received medical attention, you stated

you refused medical attention even though

you were bleeding profusely. You stated you

were then escorted back to your cell without

incident. You stated the next morning, on

March 11, 2016, when you complained that

Officer Vasquez had turned off the water in

your cell, Winkfield, Garcia and an

unidentified Sergeant extracted you again.

You claim that during the extraction, you

again were beaten and had a baton placed

between your buttocks by Winkfield. When

asked if you were penetrated during the

incident(s), you clarified your anal cavity was

never penetrated.

Finally, the memorandum advised Fordley that several

correctional officers and inmates had been interviewed,

various documents were reviewed, and the appeal inquiry was

complete. The memorandum concluded that staff did not

violate CDCR policy with respect “to one or more of the

issues appealed.” The memorandum also advised Fordley:

“If you wish to appeal the decision and/or exhaust

administrative remedies, you must submit your staff

complaint appeal through all levels of appeal review up to,

and including, the Secretary’s/Third Level of Review. Once

40 FORDLEY V. LIZARRAGA

a decision has been rendered at the Third Level,

administrative remedies will be considered exhausted.”

d. On July 6, 2016, in Section F of the May

grievance form, which directs the filer, if dissatisfied with the

second-level response, to explain his reasons, attach

supporting documents, and mail it for third-level review,

Fordley stated:

Yes these people sexually and physically

assulted me. You mother f-ckers always try

to push crap under the carpet. You assulted

me, I have evidence the 7219 showing bodly

fluids that didn’t belong to me. You assulted

me on March 9th 2016 [illegible], March 10th

2016; you assulted me in ASU saying I was

unresponsive and again March 11th 2016. In

[illegible] you sexually assulted me and this

a--hole from ISU Sgt J Carrillo keep saying

on video on May 10th 2016 did they stick it in

your a--, how far how do you know its

sexually assult and now they harrass me

everyday the same officers and Sgt who

sexually assulted me and physically assulted

me, they refuse to feed me, give me medical

supplies and physically threaten me everyday

with beating me or sexually assulting me

again but you people always justifiey your

actions so a person hangs themselfs or kills

themselfs from the torture. You every f-cken

day keep torturing me. It took 1½ months to

accept my complaints, a violation already.

You gave me orange state razors to kill

FORDLEY V. LIZARRAGA 41

myself. The only way one gets these is from

staff.

e. On August 15, 2016, while his appeal to the third-

level review was still pending, Fordley filed his civil rights

complaint in the district court.

f. On March 10, 2017, prison officials issued the

Third Level Appeal Decision and denied Fordley’s appeal.

The third-level decision considered “[a]ll submitted

documentation and supporting arguments of the parties,”

explained that “[t]he Second Level of Review (SLR)

identified and addressed the appellant’s allegations of staff

misconduct,” and concluded that at the third level of review

“the appellant’s allegations were appropriately reviewed and

evaluated by administrative staff.” The Third Level Appeal

Decision also stated that “[t]his decision exhausts the

administrative remedy available to the appellant within

CDCR.”

In contrast to the repeated and explicit allegations—

throughout Fordley’s May grievance, his appeals of that

grievance, and the responses to that grievance—that he was

physically and sexually assaulted in March 2016, the majority

asserts that “the May grievance was not directed at the March

assaults and was not understood by the prison officials to be

a complaint about those assaults.” Maj. Op. 25. But given the

prison’s repeated statements about the appeal inquiry, that

assertion strains credulity. It is beyond dispute that Fordley

asserted his claims that he was physically and sexually

assaulted in his appeals to the second and third levels of

42 FORDLEY V. LIZARRAGA

review and the prison accepted these claims and investigated

them on the merits.8

Fordley’s May grievance clearly related to the March

2016 physical and sexual assault claims, and it was still in

process when Fordley filed suit. Thus, Fordley had not

exhausted his administrative remedies because the

“administrative process ha[d] authority to take some action in

response to [his] complaint,” specifically a review of the

second-level decision. Brown v. Valoff, 422 F.3d 926, 934

(9th Cir. 2005) (quoting Booth v. Churner, 532 U.S. 731, 736

(2001)); see id. at 942 (“[A] prisoner may not proceed to

federal court while exhausting administrative remedies . . . .”

(citation omitted)).

3. June 2016 Grievance. In the meantime, on June 12,

2016, while his May grievance was still pending in the

administrative process, Fordley filed a third grievance,

assigned Log No. MCSP-C-16-01704, and in Section A of the

CDCR 602 alleged that Officer Winkfield harassed him and

“mess[ed] with [his] food” because on June 8, 2016, the day

8

The majority also argues that the third level of review did not

explicitly discuss Fordley’s physical and sexual assault claims. Maj. Op.

23–25. But even if the broad statements in the third-level decision were

not sufficient to encompass Fordley’s assault claims, the second-level

decision clearly addressed these claims, as the majority acknowledges.

Maj. Op. 21 n.7, 23–24. And where “there is an ongoing investigation

into the facts underlying the grievance, . . . prison officials may develop

information” that could lead to corrective action, and thus, the availability

of relief. Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). Thus,

because the second-level response to the May grievance addressed

Fordley’s claims that he was physically and sexually assaulted in March

2016, Fordley appealed that response, and the third-level response had not

been issued when Fordley filed his complaint, Fordley had available

administrative remedies.

FORDLEY V. LIZARRAGA 43

after his second interview with J. Carrillo in ISU, Winkfield

gave him a paper tray instead of a regular tray.9 Fordley

further stated:

this harrassment, mental/sexual/physical will

continue until you get me out of here or I kill

myself or the court intervens, everyday I’m

being harrassed by Officer Winfield and now

he has other officers doing his dirty work. I

believe ISU is involved, the Sgt of ISU kept

asking me how far did they stick the stick in

your a--, that isn’t helping its harrassing me.

A paper trail is a mother f-cker.

The appeal bypassed the first level of review and was

accepted for the second level of review.

a. On July 15, 2016, prison officials sent Fordley a

memorandum entitled “Staff Complaint Response—Appeal

# MCSP-C-16-01704 Second Level Response.” The

memorandum described the “Appeal Issue” as “Inmate

FORDLEY alleges Correctional Officer M. Winkfield is

threatening and harassing him.” The memorandum further

explained that Lt. Altschuler interviewed Fordley on July 9,

2016, and Fordley stated that “everything is in the CDCR

602” and answered questions. Fordley’s appeal was denied

at the second level of review, and the second-level decision

advised him of his rights “to appeal the decision and/or

exhaust administrative remedies” and that he must submit his

complaint through all levels of appeal review up to and

including the third level of review.

9

Fordley identifies this corrections officer as “Winfield” and

“Winkfield,” but the prison identifies him as “Winkfield.”

44 FORDLEY V. LIZARRAGA

b. On August 1, 2016, Fordley appealed the second-

level decision to the third level of review. In Section F of the

June grievance he stated:

I am dissatisfied. Officer Winkfield and

Garcia always sexual harrass me and threaten

me daily. They grab there nuts and tell me its

my next meal. But you f-cken people don’t

want to know the truth because your afraid

what the truth will tell you: look at the weight

loss on my chart. They spit in my food, and I

pull it out or save the tray and you refuse to

come get the evidence, they gave me paper

trays for no reason 2½ months and tell me to

enjoy my food, they spiced it up, they

constantly grab there nuts and tell me its my

next meat or they say there going to rape me

with the paton again only next time the whole

stick goes up my a--. I can’t handle it[,] they

say I don’t come out of my cell for nothing, I

cut my arm 5 times and put blood on the

window while I [illegible] up on there s-it.

Everyday they walk by, by saying let him kill

himself, they gave me orange razors on May

5 and 6 to kill myself, this is harrassment,

mental and physical and sexual harrassment

everyday on 2nd watch and you people think,

well I’ll talk to the inmate and that will

conclude my investigation.

Fordley’s appeal was accepted at the third level of review but

later denied.

FORDLEY V. LIZARRAGA 45

c. On August 15, 2016, while Fordley’s appeal of his

June grievance to the third level of review was pending,

Fordley filed his civil rights complaint.

d. On January 23, 2017, prison officials issued the

Third Level Appeal Decision and denied Fordley’s appeal.

“This decision exhaust[ed] the administrative remedy

available to the appellant within CDCR.”

***

The May and June grievances demonstrate that Fordley

repeatedly raised his claims that he was physically and

sexually assaulted in March 2016. In contrast to the

majority’s speculation that the prison could have canceled

Fordley’s claims as untimely or duplicative, Cal. Code Regs.

tit. 15, § 3084.6(c)(2), (4) (2015), Maj. Op. 26, the history of

Fordley’s grievances and the appeals process clearly

establishes that it did not do so and that it did not take any

action to improperly screen Fordley’s claims. Rather, the

prison processed and responded to his claims of physical and

sexual assault on the merits. The majority simply misstates

the record by suggesting that the prison did not do so.

II.

The majority, however, does not rely solely on its

mischaracterization of the history of Fordley’s grievances.

Instead, it argues that “[e]ven if the May grievance had

comprised an unambiguous, standalone reassertion of a

grievance concerning the March assaults, we have no case

law supporting defendants’ suggestion that an inmate’s

reassertion of a concern—especially a request for a response

to an ignored emergency grievance—somehow operates to

46 FORDLEY V. LIZARRAGA

unexhaust a previously exhausted claim.” Maj. Op. 25. The

majority then repeatedly states in various formulations

throughout the opinion the basic premise of its exhaustion

analysis: an exhausted grievance cannot be “unexhausted.”

Maj. Op. 23, 25, 27–28. This premise is flawed because it

imports a fairness analysis into the PLRA’s mandatory

exhaustion requirement, it focuses the exhaustion analysis at

some time other than when the prisoner files his complaint in

federal court, and it assumes circumstances that are not

present in this case.

A.

The majority’s conclusion that an exhausted claim cannot

be “unexhausted” adopts Fordley’s reasoning that it was

unfair to consider his second grievance, and the availability

of administrative remedies for the claims in that grievance,

when determining if he exhausted his claims. As Fordley

stated in his opening brief, his “decision to file a second

grievance did not somehow excuse the prison’s failure to

process the first grievance. [He] was under no obligation to

file that grievance and should not be penalized for his good

faith efforts to continue working within the prison grievance

system.”

The majority makes its fairness analysis of the exhaustion

requirement even more explicit when it states that “[t]he

prison’s choice to respond to the May grievance by

interviewing Fordley about the March assaults cannot be

accurately described as an attempt by Fordley to give the

prison officials another shot at responding to the March

assaults.” Maj. Op. 24. Thus, the majority essentially adopts

the reasoning of the Third Circuit in Shifflett v. Korszniak that

it is unfair to require a prisoner to exhaust available remedies

FORDLEY V. LIZARRAGA 47

if prison officials have not strictly complied with their own

regulations. 934 F.3d 356, 367 (3d Cir. 2019) (“The PLRA

requires strict compliance by prisoners seeking redress of

their grievances, and by the same token we hold that it

requires strict compliance by prison officials with their own

policies.”).

By applying a fairness analysis to deem a claim exhausted

even if administrative remedies are available at the time a

prisoner files suit, the majority applies a form of “judicial

discretion” to modify the PLRA’s exhaustion requirement.

See Ross, 136 S. Ct. at 1857. In Ross, the Court rejected a

similar “extra-textual” or “judge-made” exception to the

PLRA’s “mandatory” exhaustion requirement. Id.

at 1856–58. The Court held that “special circumstances,”

such as a prisoner’s mistaken but reasonable belief that he

had sufficiently exhausted remedies, could not limit the

prisoner’s obligation to exhaust remedies.10 Id. at 1858.

10

The Court further explained that in enacting the PLRA Congress

substituted an “invigorated” exhaustion requirement in place of the

“discretionary” and “inadequate” exhaustion provisions of the Civil Rights

of Institutionalized Persons Act (CRIPA), which required exhaustion only

if a state provided “plain, speedy, and effective” remedies, and only then,

if exhaustion were deemed “appropriate and in the interests of justice.”

Ross, 136 S. Ct. at 1858–59 (citation omitted). The Court concluded that

a “special circumstances” exception to exhaustion, even if limited to cases

in which a prisoner makes a reasonable mistake about the meaning of

grievance procedures, “would resurrect CRIPA’s scheme” by

reintroducing the “requirement that the remedial process be ‘plain.’” Id.

at 1858. Similarly, the majority’s conclusion here that a prison’s failure

to timely respond to a grievance renders remedies unavailable improperly

reintroduces the requirement that the remedial process be “speedy.” See

id.

48 FORDLEY V. LIZARRAGA

In rejecting such exceptions, the Supreme Court explained

that “courts have a role in creating exceptions only if

Congress wants them to.” Id. at 1857. Thus, “mandatory

exhaustion statutes like the PLRA establish mandatory

exhaustion regimes, foreclosing judicial discretion.” Id.

(citation omitted). The Court further explained that “[t]ime

and again, this Court has taken such statutes at face

value—refusing to add unwritten limits onto their rigorous

textual requirements.” Id. (citations omitted). And, as

particularly relevant here, the Court stated that “the PLRA

prevent[s] a court from deciding that exhaustion would be

unjust or inappropriate in a given case.” Id. at 1858.

Therefore, “all inmates must now exhaust all available

remedies: ‘Exhaustion is no longer left to the discretion of

the district court.’” Id. (quoting Woodford v. Ngo, 548 U.S.

81, 85 (2006)).

The exhaustion “edict” of the PLRA has only one

qualifier—“the remedies must indeed be ‘available’ to the

prisoner.”11 Id. at 1856. Thus, the PLRA’s “exhaustion

requirement hinges on the ‘availab[ility]’ of administrative

remedies.” Id. at 1858 (alternation in original).

Administrative remedies are available under § 1997e(a) when

they “are ‘capable of use’ to obtain ‘some relief for the action

complained of.’” Id. at 1858–59 (citation omitted) (applying

11

The Court identified three circumstances in which administrative

remedies, “although officially on the books,” would not be available:

(1) when an administrative procedure operates as a “dead end” and prison

officials are “unable or consistently unwilling to provide any relief”;

(2) when an administrative scheme is “so opaque that it becomes . . .

incapable of use”; and (3) “when prison administrators thwart inmates

from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859–60 (citation

omitted). These circumstances are not present in this case.

FORDLEY V. LIZARRAGA 49

ordinary meaning of the word “available” and collecting

dictionary definitions).

We have applied a similar explanation of available

remedies, stating that administrative relief is available when

“the administrative process has authority to take some action

in response to a complaint.” Brown, 422 F.3d at 934 (quoting

Booth, 532 U.S. at 736). Indeed, we held that a prisoner must

“press on to exhaust further levels of review” until “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.” Id. at 935. Therefore, a

prisoner’s “obligation to exhaust ‘available’ remedies persists

as long as some remedy remains ‘available.’”12 Id. And it is

Fordley’s burden to bring forward evidence to create a

material dispute of fact on whether prison staff’s delay in

responding to the March 2016 grievance meant that there was

no “possibility of some relief for the action complained of.”

Id. (quoting Booth, 532 U.S. at 738; other citation omitted);

see Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en

banc).

Here, as detailed in the history of the grievance processes

in Section I, it is beyond dispute that administrative remedies

were available to Fordley when he filed his complaint.

Indeed, as Fordley admitted in his complaint, prison officials

were addressing his claims on the merits when he decided not

12

In Brown, we considered whether two prisoners, Brown and Hall,

had exhausted administrative remedies before filing suit. See 422 F.3d

926. We concluded that while Brown had exhausted such remedies, Hall

had not, in part, because he filed suit before the conclusion of a staff

misconduct investigation, which was not part of the prison grievance

process. Id. at 940, 942–43.

50 FORDLEY V. LIZARRAGA

to wait for the conclusion of that process before filing suit.

Consequently, Fordley did not exhaust administrative

remedies and the district court properly granted the

defendants’ motions for summary judgment.

B.

Moreover, the majority’s premise that an exhausted claim

cannot be unexhausted also conflicts with our precedent

because it attempts to focus the exhaustion analysis on some

time other than when the prisoner files suit. But our case law

establishes that we examine the availability of administrative

remedies “at the time the action is filed.” Andres v. Marshall,

867 F.3d 1076, 1079 (9th Cir. 2017) (per curiam) (citation

omitted); see also Brown, 422 F.3d at 942 (“[A] prisoner may

not proceed to federal court while exhausting administrative

remedies . . . .” (citation omitted)). Even Fordley concedes

that “the exhaustion inquiry looks to the state of the world at

the time the complaint was filed.”

The majority nonetheless justifies determining exhaustion

at a time other than when the prisoner filed his complaint by

stating that “once an administrative remedy is exhausted, a

claimant need not do more.” Maj. Op. 22–23 (citing Brown,

422 F.3d at 935 n.10; other citation omitted). But the

majority necessarily assumes that Fordley’s claims were

exhausted as soon as prison officials failed to timely respond

to his initial grievance.13 Under some circumstances that may

13

The majority’s analysis is based on the fundamental misconception

that the prison’s failure to timely respond to the March grievance under

the prison’s own regulations, in and of itself, rendered administrative

remedies unavailable. Maj. Op. 27. But the applicable regulations

provide that “time limits are directory, and the failure to meet them does

FORDLEY V. LIZARRAGA 51

be true. However, here, prison officials accepted Fordley’s

subsequent grievances and processed them on the merits,

demonstrating that the prison’s failure to timely respond to

Fordley’s first grievance did not render administrative

remedies unavailable.14

The majority’s analysis does not consider whether

administrative remedies were available after prison officials

failed to timely respond to a grievance and whether those

remedies remained available at the time he filed suit. But we

must view the availability of administrative relief from the

lens of “how the prison viewed and treated the[] complaint

based on its own procedures,” Brown, 422 F.3d at 942 n.17,

especially considering that it is “difficult to imagine an

activity in which a State has a stronger interest, or one that is

not preclude taking the specified action beyond the time limits.” Cal.

Code Regs. tit. 15, § 3000.5(f) (2015).

14

For example, the majority argues that after the prison failed to

timely respond to the March 2016 grievance Fordley had “no recourse”

because the regulatory scheme did not allow him to file a second,

duplicative, or untimely grievance. Maj. Op. 26. But the regulatory

provisions allowing cancellation of grievances are not mandatory.

Instead, by their terms, these procedures are discretionary. The

regulations state that the appeals coordinator “may” cancel grievances for

many reasons. See Cal. Code Regs. tit. 15, § 3084.6(c)(2), (4) (2015).

Thus, because prison officials had discretion in determining whether to

cancel the May grievance, there was a possibility of some relief and the

PLRA required that Fordley wait for the completion of the processes he

invoked by filing that grievance. See Brown, 422 F.3d at 935. Moreover,

the regulations provide that the cancellation of a grievance may be

separately appealed, Cal. Code Regs. tit. 15, § 3084.6(e), thereby

providing another potential avenue for relief had the prison canceled

Fordley’s May grievance. At bottom, the majority’s analysis “hinges” not

on the availability of relief but instead on hypotheticals founded on

nothing in the record. See Ross, 136 S. Ct. at 1858.

52 FORDLEY V. LIZARRAGA

more intricately bound up with state laws, regulations, and

procedures, than the administration of its prisons,” Woodford,

548 U.S. at 94 (citation omitted).

Here, even if prison officials could have rejected

Fordley’s May 2016 grievance on procedural grounds, they

did not do so. Instead, they accepted the May grievance,

granted partial relief, initiated an investigation, and responded

to it on the merits. Thus, the May 2016 grievance triggered

the possibility of administrative remedies, and “[w]e are

bound by the literal command of the PLRA, which precludes

an action by a prisoner ‘until such available administrative

remedies as are available have been exhausted.’” Panaro v.

City of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005)

(quoting 42 U.S.C. § 1997e(a)). Fordley’s failure to do so

means he did not exhaust his administrative remedies. See

Brown, 422 F.3d at 936, 941–43.

III.

Administrative remedies are exhausted when they are no

longer available. See Ross, 136 S. Ct. at 1856, 1859–60. So

long as there is a “possibility of some relief for the action

complained of,” remedies are available. Brown, 422 F.3d

at 935 (citations omitted). The administrative process was

available here because Fordley was actively using it at the

time he filed suit and that process provided potential remedies

for his claims. Therefore, Fordley did not exhaust his claims

that he was assaulted in March 2016, and the majority errs

when it allows Fordley to evade his obligation to do so.

Because Fordley did not exhaust his claims, the defendants

were entitled to summary judgment. I respectfully dissent.