“proper exhaustion” is mandatory and requires adherence to administrative procedural rules
How later courts described this case
- “proper exhaustion” is mandatory and requires adherence to administrative procedural rules
- individuals sued in their official capacity are not entitled to any immunity other than sovereign immunity
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION OCT 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH ANTONETTI, No. 10-15762
Plaintiff - Appellant, D.C. No. 2:07-cv-00162-KJD-LRL
v.
MEMORANDUM *
MONIN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Joseph Antonetti, a Nevada state prisoner, appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging numerous constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (exhaustion); Barnett v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (Fed. R. Civ. P. 12(b)(6)
dismissal and summary judgment). We may affirm on any basis supported by the
record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in
part, reverse in part, and remand.
Dismissal of Antonetti’s claims alleging deliberate indifference to his
serious medical needs, inadequate law library access, and the general use of batons,
was proper because Antonetti failed to exhaust administrative remedies. See
Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (“proper exhaustion” is
mandatory and requires adherence to administrative procedural rules); McKinney v.
Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring exhaustion of
administrative remedies prior to filing suit). We construe the dismissal of these
claims to be without prejudice. See Wyatt, 315 F.3d at 1120.
However, dismissal for nonexhaustion of Antonetti’s claims alleging
excessive force and inadequate yard and exercise time between approximately
January 8, 2005 and November 15, 2005 was improper where Antonetti’s
grievances and appeals were accepted and processed by the prison at each level of
review. See id. at 1119 (§ 1997e(a) of the Prison Litigation Reform Act does not
impose a pleading requirement but a defense, and defendants have the burden of
raising and proving the absence of exhaustion); see also Griffin v. Arpaio, 557 F.3d
2 10-15762
1117, 1120 (9th Cir. 2009) (the primary purpose of a grievance is to alert the
prison to a problem and facilitate its resolution, and a grievance suffices if it alerts
the prison to the nature of the wrong for which redress is sought).
Regarding the exhausted meal-deprivation claims, defendants were not
entitled to qualified immunity at this stage of the proceedings because outstanding
questions remain as to how many meals he was denied, and it is possible that he
has asserted the violation of a clearly-established law. See Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan,
555 U.S. 223 (2009); Foster v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (“There
is no question that an inmate’s Eighth Amendment right to adequate food is clearly
established.”); see also Kentucky v. Graham, 473 U.S. 159, 167 (1985) (individuals
sued in their official capacity are not entitled to any immunity other than sovereign
immunity).
Finally, although the district court correctly concluded that the Eleventh
Amendment bars actions against state officials sued in their official capacities
when damages are sought, the Eleventh Amendment does not bar suits seeking
prospective relief against state officials. Dismissal was therefore improper as to
the claims for injunctive relief against defendants in their official capacities.
3 10-15762
Accordingly, we reverse the district court’s judgment and remand for further
proceedings consistent with this disposition.
Antonetti’s remaining contentions are unpersuasive.
Antonetti’s request for judicial notice is denied. See Fed. R. Evid. 201(b).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
4 10-15762